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ities have departed from this common

ages though no authorization or ratification au sauration, than there is in terred 17" 1. on the part of the master can be shown,

se individual. Because ment by !". law rule, and hold the master or principal subject to vindictive damages, es- Thus, if the master employ the servant about

cu fe has other employees the defemia a business and the natural and proximate re

*st and control, with legerdem pecially in the case of corporations, where the act of the servant is willfully and mali- sult of the performance of that work by the

ze sbarge and also boas this pubije :

2 en veing done, notice to moner of : ciously committed, in the line of his employ- servant is great damage to a third person, the master will be liable to punitive damages,

it affects the conduct the fundas ment, though the master may have neither ratified nor authorized the servant's act.10 if the servant perform the work and do great

mit bis control is notice to ages are so These authorities atterly ignore the question damage thereby to a third person. The rea- wa mach a servant stands in emplary ilin. of the authorization or ratification on the son of this is obvious. The master knew polyesents the corporation, approved t... part of the master of the servant's act; either when he set the servant about the work that eztas de men under his charge fundamenta! this, or they make the act itself supply these the natural and proximate result of the per

rude dl their work, is con- allowed: It

formance of that work by the vant would necessary elements to the assessment of vin

a of grounds does the doc- liable to sub dictive damages. But the decisions of these be great injury to another. Knowing this he 2.3 dusges rest. How do presumed to

a warding of damages be the parties, a courts give no indication that they make any is responsible for punitive damages, although

vestice dor the act done? In the or as the last such inferences, and they declare in plain he may bave had no knowledge of, and may terms that if the injurious act of the employee not have approved, the particular act which 1. Satz the Supreme Court to the defe was willfully or maliciously committed in the caused the injury.18 No man should be pun- per teaking of punitive dam. | ing from ne line of his employment, the master is liable ished for the act of another, for an act which seaward such damages is liabıle. if il to punitive damages, without anything else he did not do. It shocks our sense of justice Este single ground of wrong. cumstaniem,

hit trongtal personal in- reasonably ! being shown." On the other hand, there is a when any one is punished for an act which very able line of authorities, which hold that he did not authorize or approve. Turn to *** calls for the penalty. sue from the the master is not liable to exemplary dam- the criminal law--how stands the matter?

het stent knowledge is an es- elements of i ages for the malicious act of the servant, un- Is not the intent the very essence of the et" It is generally said, can the defe's

te ziction of punitive dam- have conten less he authorized or ratified such act. There offense. I know of no case wherein the law

And the circumstances of will. when he barl must be something done or forborne by the ignores the intent, except in some peculiar

ex or fraud. But there caused the i master showing a personal willingness that statutes, like those against the unlawful sale

inki çrasion, malice or fraud, ant intend t the act shall be done, to the extent of authorof liquor, and in the common law distinction

este personal intent, and Again, the in izing the act—or an approval and ratification

between actions of trespass and actions on of the act when done; and no mere act of

Astra intent without knowl. servant's art the case.

In all other cases so far as my the servant separate and alone, can supply knowledge extends, the intent is the very gist

Asiciend & thing without the courts v these necessary elements. If the servant

a Czepration is one thing and master's lia',

of the offense. A criminal is not punished committed the act, of his own volition, with

ta is quite another and dif- ized or apļır. unless he intended to commit the offense. out the master's consent or approval, howIntent includes personal knowledge--that is,

De right to compensation the principi

at u de ground of injury; it is to that is, they ever malicious and even injurious the act

the criminal authorized himself to commit the

yandant to restore to the plaint- tive damages may be, the master is not liable to vindictive

offense, if we may so speak.4 We have said

fitus be the defendant, has deprived that if the damages. There may be circumstances unthat those courts which hold to the doctrine

id the intent with which done by the der which the master will be liable for act of

of imputed liability, so far as the same the servant to the extent of punitive dam.

alir ao part in the penalty.ployment, th concerns exemplary damages, are especially

prone to so hold in the case of corporations. The person may become master peiti Noidstrom, 1 Taunton, 568. Chitty says, unless there be an actual consent to the trespass, either after or They seem to go on Lord Coke's idea, that a

vi et armes, even in servant's COL before it was committed, even a master is not liable

free da lawful act, if in the master an in in an action of trespass for the act of his servant,

corporation has no soul, has no personal

kertomance he be guilty of and a declar thougb case may be supported against him in some

sense that can be reached, and on account of instances for injuries in respect of which the servant what they call the “logical difficulty" of

such damag is liable in trespass. Chitty's Pld., vol. 1, p. 137. 10 Hachi v. Wabash R. Co., 24 S. W. Rep. 737;

showing a personal authorization or ratificaVawter v. Hatz, 112 Mo. 633; Hopkins v. St. & St. L.

tion on the part of the corporation, they

melandant has not only in | would only R. Co., 36 N. H. 9. Fay v. Parker, 53 N. H. 312; God. make such authorization and ratification a pre

es vat he has been guilts cious injury dard v. Grand Trunk R. Co., 57 Me. 202. 11 Rouse v. R. Co., 41 Mo. App. 298; Smith v. R. Co., sumption of law, or else hold the same to be

se public good, in order was done

o personas may be de-employment 92 Mo. 359; Dixby v. Dunlap, 56 N. H. 456.

12 Hogan v. P. & W. Ry. Co., 3 R. L. 88; Philadel. of showing a personal authority or approval phia R. Co. v. Quigley, 21 How. 202; Salt Lake City v.

anal R. CO.N.Y. 44; Howe doctrine, Hollister, 118 U. S. 256; Reed v. Home Savings Bank

in ; Ramsden T. Boston By.

13 Whittaker's Smith on Negligence, p. 137; Cooler 130 Mass.:443;Krulivitz v. Easter R. Co., 140,573; Der

kv. Holbrok, 3 A. B. D. 60; mott v. Evening Journal, 14 Vroom. 488; Bank of New

on Torts, p. 212; Lothrop v. Adams, 133, Mass. 471;

Denver, etc. R. Co. y. Harris, 122 U. S. 597. South Wales v. Owston, 4 App. Cas. 270; Caldwell v.

14 Chitty on Pld., Vol. 1 p. 435; Blackstone's Comm.

putie 1p. 133; Coderwood . Hew. | Williams, 75 T Spherd, a Wills, 411.

Sharp v. Pou New Jersey Steamboat Co., 47 N. Y. 282.

Vol. 4, p. 110.

se punitive damages the ing on a con

unnecessary. But there is no more difficulty

follow as a

17 Texas & I

1% Whittaker

I though no authorization of retia he part of the master cas de un 9, if the master employ the servei siness and the natural and pror'u of the performance of that works ant is great damage to a third pa. raster will be liable to punitive ikke e servant perform the work and d age thereby to a third person. It of this is obvious. The este i be set the servant about the per atural and proximate result of a ance of that work by the sertari i eat injury to another. Knowing ponsible for punitive damages. e. ay have had no knowledge of so ave approved, the particular se d the injury. No man shouli's for the act of another, for an ste I not do. It shocks our sense of

any one is punished for so 3:1 i not authorize or approve. I:: riminal law-how stands the it the intent the very esser le. I know of no case wherein : ?s the intent, except in some face es, like those against the unlawt

. 1or, and in the common law en actions of trespass and ana se. In all other cases so far $ edge extends, the intent is tle rest offense. A criminal is not pa he intended to commit the de includes personal knowledgminal authorized himsell to (II

on the part of a corporation, than there is in terred from doing likewise needs punishthe case of a private individual. Because ment by the intliction of punitive damages on whenever an employees has other employees the defendant, and then, by a species of legal under bis management and control, with legerdemain, the plaintiff is subrogated to power to hire and discharge and also has this public right and thereby recovers smart charge of the work being done, notice to money of the defendant. It is contrary to such an employee, as it affects the conduct the fundamental principles on which damof the servants under bis control is notice to ages are allowed to hold the master for exthe corporation. Such a servant stands in emplary damages when he neither ratified or the shoes of and represents the corporation, approved the servant's act. What is this so far as the acts of the men under his charge fundamental principle on which damages are in the performance of their work, is con- allowed? It is this, that the defendant is cerned. Upon what grounds does the doc- liable to such damages as may reasonably be trine of exemplary damages rest. How do presumed to have been in the minds of courts justify the awarding of damages be- the parties, as the result of the transaction, yond compensation for the act done? In the or as the matter is sometimes put in reference case of Haines v. Schultz the Supreme Court to the defendant's liability to injuries resultof New Jersey said speaking of punitive dam- ing from negligence, -that is, the defendant ages - that the right to award such damages is liable, if in view of all the facts and cirreste primarily on the single ground of wrong- cumstances, at the time, such injuries might tul motive. It is the wrongful personal in- reasonably have been foreseen as likely to entention to injure that calls for the penalty. sue from the alleged negligence," the other To this wrongful intent knowledge is an es- elements of liability being present.17 Now, how sential prerequisite.” It is generally said,

can the defendant be presumed or thought to that to justify the infliction of punitive dam- have contemplated the result of an injury, ages there must be circumstances of will- when he had no knowledge of the act which

oppression, malice or fraud. But there caused the injury. How could the defendcan be no willful oppression, malice or fraud, ant intend that which he knew not of.18 without the wrongful personal intent, and

Again, the injury which is the result of the there can be no such intent without knowl. servant’s act, springs from a tort. Yet enge, a man cannot intend a thing without

the courts which hold to the doctrine of the knowing it. Compensation is one thing and

master's liability though he neither authorexemplary damages is quite another and dif- ized or approved the servant's act, proceed on ferent thing. The right to compensation

the principles of the contract of insurance, rests alone on the ground of injury; it is to

that is, they hold the master liable to punicompel the defendant to restore to the plaint- tive damages at all events, that is, they hold, iff that which he, the defendant, has deprived

that if the malicious and injurious act was biin, the plaintiff, of ; the intent with which

done by the servant in the course of his emthe act was done plays no part in the penalty. ployment, the master is liable, though the As said by Mr. Chitty "a person may become

master peither authorized nor approved the an immediate trespasser vi et armes, even in

servant's conduct. This doctrine makes the the performance of a lawful act, if in the

master an insurer of the servant’s conduct, course of such performance he be guilty of neglect.''16

and a declaration might well be drawn for

such damages, as if the pleader were declarBut in the case of punitive damages the ing on a contract of insurance, that is, he

would only be required to allege the maliof an act, which for the public good, in order

cious injury and that the same occurred or

2, it we may so speak." Webs lose courts which hold to the de" juted liability, so far as they ns exemplary damages, freezer to so hold in the case of comme eem to go on Lord Coke's idea 2 ation has no soul, has no metu bat can be reached, and og ha hey call the "logical disa g a personal authorization c. 1 the part of the corpordit ach authorization and ratifsadi on of law, or else hold the con ssary. But there is no ne? ring a personal authority ttaker's Smith on Vegligence, \p. 212; Lothrop v. Adam, la. etc. R. Co. v. Harris, 19[..

idea is that the defendant has not only in-
jured the individual, but he has been guilty

lat other evil disposed persons may be des employment, and the master's liability would

that de

* Cleghorn v. N. Y. Central R. Co., N. Y. 44; Howe F. Newmarch, 12 Allen, 49; Ramsden v. Boston Ry. Co.

, 104 Mass. 117; Regina v. Holbrok, 3 A. B. D. 60; Kennon v. Gilmer, 131 U. S. 22.

Chitty on Pid., vol. 1 p. 128; Underwood v. Hew800, 1 Str. 596; Scott v. Shepherd, 3 Wills, 411.

follow as a legal consequence. But the better doctrine, as held by the best considered cases,

17 Texas & P. R. Co. v. Reed, 31 S. W. Rep. 1059; Sharp v. Powell, L. R. 7 C. P. 253; Railway Co. v. Williams, 75 Texas, 4.

18 Whittaker's Smith on Negligence, 471.

ir on Pld., Vol. 1 p. 435; Bladet

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beoblible as a surety for its that tertu dist redingls, unless be cat bote, bisi TER: HPl agreement of 11 - part of its i Stories, which it is com

maker OL Trigbt v. Carpenter, 9 contract rithith13 Obio, HS; if the map 36: Sesmoor 5. Les- tunity.'agi 1! E v. Micker, 15 be & 0-4.* 5.41 Ohio Si. 190, 9 to require

id in Rand. com. maker, an.. f which finds inosi order to Chi Tibbolds tbe indorse. note. Hie in i singer before or and notine, a

the pasée to be the patirt * islag as jointmaker, ibe know,

ich to the paree and names on: - present case most be is no less ir.

lii: rendered inap- appears un il note in suit is pas.

or at the 1,'. i and his name ap. indor-emve that of the de.

an indurats alt cases in which that term. The

T. Colton. 13 Gray. is itsed, ibal I Mass. 37: Bank vclude any po

T. Rep. 41; Bank v. to another ...ES. E. Rep. 148. These

bot use it ir. the grounds that the legal and cu

of a note in rate is conclusively de. | part of the i to the signatures witb dorsee and is

note is trans1 is a note parable to title to the i

ment, and we zon, in placing his which bea] suis pas une previous to its in-delivery of 1 i tale, canis to become liable that, to give

an indor-er.

na nane names appear on

as I think, hold that a declaration so drawn

thus contracted must be determined from the facts would show no liability on the part of the attending the transaction, which, as shown by the

record, are substantially that the name of the master to exemplary damages; but to be

company was signed on the back of the note good and proof against a demurrer, such a

when it was delivered to the plaintiff, and it was declaration would be required to go a step purchased and received by her from the maker farther in its averments, and allege in an is- on the day of its date, without information of any suable form, either that the master authori. agreement concerning the company's obligation, zed the servant's act, or ratified and approved

other than that derived from the note itself. The

note, being payable to the order of the maker, the same afterwards. 19

When we
come to

was incomplete in its execution until indorsed by carefully consider the doctrine of the liability

him, and delivered to another for value; and it of the master for the malicious act of the was so indorsed when received by the plaintiff, servant, to the extent of the infliction of who paid to the maker its full value. The expunitive damages on the master, though he

ecution of the note being thus completed,

it then, for the first time, became may neither have ratified nor authorized such

valid obligation, and, in legal effect, was act, and especially when we consider how

payable to the plaintiff or bearer. At that variant such a doctrine is from the common time it bore the signature of the company law, the source of our jurisprudence; and written on its back. There is here no room for lastly, when we consider how violative this any inference that the note had been previously doctrine is of all right and justice, we can

transferred by the maker to the company, and

thereafter indorsed by it, in order to transfer the only feel deep regret and profound astonish

title. If the company had thus become the inment that such a principle ever found an dorsee, the note, in due course of business, could advocate on the supreme bench of any State only have found its way back into the hands of of this Union. LINTON D. LANDRUM. the maker upon its surrender on payment or other

satisfactory discharge, and its indorsement by 19 Chitty on Pld., 16th Ed. Vol. 1, 478; Denver Ry. Co.v. Harris, 122 U. S. 597; National Bank v. Grabam,

the company on such surrender would be so en100 U. S. 699; Krulevitz v. Eastern R. Co., 140 Mass.

tirely out of the usual course of business as to 573.

raise a presumption against it. The note being
found in the hands of Cox on the day of its date,
with the company's name indorsed upon it, is in-

consistent with the theory that it had been inNEGOTIABLE INSTRUMENT-NOTE-PAYABLE

dorsed and transferred to the company as the TO MAKER-BLANK INDORSEMENT OF THIRD

owner of the note, or that it had been taken up PERSON-PAROL EVIDENCE.

by payment. A more reasonable inference would

be, that the note was then in the maker's hands, EWAN v. BROOKS-WATERFIELD CO.

with authority from the company to negotiate it

for his accommodation. "If a holder produce a Supreme Court of Ohio, January, 26, 1897.

note having a blank indorsement of one not the 1. The indorsement of the maker's name on the back of a promissory note payable to his order, and

payee, the presumption is that it was made at the its delivery in that form to another for value, are es

inception of the instrument." Good v. Martin, 95 sential parts of the execution of the note, which then

U. S. 90. So that, upon presentation of tbis note becomes, in legal effect, payable to the holder or

to the plaintiff, she was authorized to deal with it bearer; but the maker does not thereby become an in

as belonging to Cox, with the signature of the dorser in the legal sense of the term, nor contract any

company indorsed thereon at the time of its exeliability but that of a maker.

cution, in order to give it credit, and aid in its 2. The undertaking of a third person who places

negotiation; she not having been informed of any his name in blank on the back of such a note before or at the time it is so delivered by the maker, rests upon

different agreement or understanding between the

parties. the consideration which supports the note in the hands of the holder, and prima facie is that of a

Precisely what is the nature of the legal oblisurety of the maker for the payment of the note; and

gation contracted by a stranger who indorses his he will be held accordingly, unless he can show a

pame in blank on the back of a negotiable promdifferent understanding or agreement between the

issory note before or at the time it takes effect is parties, which it is competent for him to do.

a question upon which the courts have widely WILLIAMS, C. J.: The allegations of the an

differed; some holding that his obligation is that swer, that the Brooks-Waterfield Company, by

of a second indorser; others have held bim liable signing its name on the back of the note, as

as a guarautor; and still others as a maker with sumed the position of an indorser, is an admis

the rights of a surety. The rule established in sion of the due execution of the note, and of the

this State is that, when the name of such third genuineness of the company's signature thereon;

party appears upon the note at the time it ta kes but the nature of the obligation the company

aber parties when the

una cu take effect until in

27. He understands that - mblitr, it is zaid, and a

been the pa!!

is the cases (Bank v.

PA?! i cannot be shown with y. liga

135. Her un of the decision is maker's namn

as the note can HLV name of the payee third persoli Tin nonser, the person writ. I execution si

van the note understands dorsement of 2017 in ffect, bis dame will contract aris teisiti indorser; and it is blank, the tel

bis order to

under hela was the position

ed in ribich these decisions

Robe saker, by placing his

by law, and a ried by parol son in such irregular or : ligation der ties; and, bei

to give it effect, be.

luitbe sbird person who 20 L tboughi done before evidence bec

non it, contracts the of the agreeli Linger. It is undoubtedly or other fact

na ada pihout any validity 90

sands of the maker, and I his name in

der bis him to a holder | note, payable

The assum

e a dire it obligatory effect. to contract ?

whitp indorsing his name

effect, his undertaking rests upon the considera tion which supports the note; and the presump

the consider

beni delivering it in that I become effect

pler does not become of the make pierscial acceptation of the latter dee

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If the company had thus become the i , the pote, in due course of busines. have found its way back into the bal

ctory discharge, and its indorsement ompany on such surrender would here out of the usual course of business 2

presumption against it. The net in the hands of Cox on the day of its la be company's name indorsed upon it be tent with the theory that it had ben

and transferred to the company of the note, or that it had been taken

contracted must be determined fra det ding the transaction, which, as shemtra

tion is be intended to be liable as a surety for its that term. He is, nevertheless, the maker of the rd, are substantially that the named

payment, and is held accordingly, unless he can note, his signature on its back being an essential

show that tbere was a different agreement or un- part of its execution, and his liability is that of a pany was signed on the back of the

derstanding between the parties, which it is comit was delivered to the plaintiff , and is

maker only. He does not thereby enter into the petent for him to do. Bright v. Carpenter, 9 based and received by her from the ne

contract of an indorser, which is to pay the note Ohio, 139; Champion v. Griffith, 13 Ohio, 228; | if the maker, upon demand, fail to do so at mae day of its date, without information de Robinson v. Abell, 17 Ohio, 36; Seymour v. Ley- turity, and due notice thereof be given. It would pment concerning the company's olimpi

man, 10 Ohio St. 284; Seymour v. Mickey, 15 be a useless ceremony, if not a palpable absurdity than that derived from the note ital

Ohio St. 615; Castle v. Rickly, 44 Ohio St. 490, 9 to require the holder to make demand of the being payable to the order of the sea

N. E. Rep. 136. And it is said in Rand. Com. maker, and give him notice of his own default in ncomplete in its execution until indeed

Paper, $ 831, that "the view which finds most order to charge him with the payment of the and delivered to another for valse;

support is probably that which holds the indorse- note. He is liable as a maker, without demand o indorsed when received by the piird

ment of a negotiable note by a stranger before or and notice, and sustains no other legal relation to paid to the maker its full value. Th4

at the time of its delivery to the payee to be bn of the note being thus fare prima facie an original undertaking as joint maker,

the paper, which, it must be presumed, is within

the knowledge of third persons who place their hen, for the first time. became

with an implied liability as such to the payee and names on the note while in the maker's hands. It obligation, and, in legales

all holders for value.” The present case must be is no less true that such third person, whose name ble to the plaintiff or bearer

. Ste

governed by this rule, unless it is rendered inap- appears on the back of a note of that kind before it bore the signature of the came plicable by the fact that the note in suit is pay- or at the time its execution is completed by the en on its back. There is here no min

able to the order of the maker, and his name ap- indorsement of the maker's name thereon, is not pference that the note had been prete

pears indorsed thereon above that of the de- an indorser, in the proper and legal sense of the ferred by the maker to the compete

tendant in error. There are cases in which that after indorsed by it, in order to traged distinction is made. Bigelow v. Colton, 13 Gray,

term. There is a popular sense in which the term 309; Dubois v. Mason, 127 Mass. 37; Bank v.

is used, that is sufficiently comprehensive to inPayne, 111 Mo. 291, 20 S. W. Rep. 41; Bank v.

clude any person who lends his name in any form Nordgren, 157 Ill. 663, 42 N. E. Rep. 148. These

to another on commercial paper. But courts do

not use it in that sense. In its well-understood a ker upon its surrender on paymenia i decisions are placed upon the grounds that the liability of the parties whose names appear on

legal and commercial meaning, the indorsement the back of a negotiable note is conclusively de

of a note in blank amounts to a contract on the termined by the position of the signatures with

part of the indorser, with and in favor of the inreference to those of the other parties when the

dorsee and every subsequent holder to whom the note takes effect, and that, as a note payable to

note is transferred, that the indorser had a good the maker's order cannot take effect until in

title to the instrument at the time of its indorsedorsed by him, a third person, in placing his

ment, and was competent to transfer that title, name on the back of the note previous to its in

which he undertook to do by the indorsement and dorsement by the maker, intends to become liable

delivery of the instrument to his indorsee; so

that, to give rise to the contract and relation of ment. A more reasonable infarement only as a second indorser. He understands that to be the nature of his liability, it is said, and a

an indorser, it is necessary that he should have

been the payee or indorsee of the paper. Beckuthority from the company to negatih different intention or agreement capnot be shown with v. Angell, 6 Conn. 317; Story, Prom. Notes, accommodation. "If a holder produse by parol proof. In one of the cases (Bank v. Nordgren, supra), the reason of the decision is

$ 135. Hence neither the indorsement of the stated as follows: "Inasmuch as the note can

maker's name on the back of a note payable to his order to complete its execution, nor that of a

third person in blank before or at the time of its plaintiff, she was authorized to dealing his name in blank upon the note understands 0. So that, upon presentation of the appears upon it as an indorser, the person writ- execution and delivery, constitutes a regular in

dorsement of commercial paper, nor creates the nging to Cox, with the signature that, when the note takes effect, his name will contract arising from a regular indorsement in py indorsed thereon at the time of 128 Appear upon it as a second indorser; and it is blank, the terms of which are distinctly defined

by law, and are therefore not subject to be varied by parol. The indorsement of the third person in such case belongs to that class known as irregular or anomalous indorsements, whose obligation depends upon the agreement of the par

ties; and, being ambiguous in that respect, parol contracted by a stranger who inden

evidence becomes admissible to show the terms

of the agreement as actually made by the parties, note before or at the time it takes

or other facts showing their intention at the time.

The assumption that the stranger who places ond indorser; others have held Lalong as it remains in the hands of the maker, and his name in blank on the back of a negotiable

note, payable to the order of the maker, intends iraptor; and still others as a metru

to contract as a second indorser, is based upon ats of a surety. The rule estimated

the consideration that he knows the note cannot form to the holder, the maker does not become

become effectual without the indorsement thereon nu indorser, in the commercial acceptation of

of the maker's name. But he must also know is undertaking rests upon the

the latter does not become the first indorser, nor ich supports the note; and the prese

It the note was then in the målera bu

aving a blank indorsement of de De

the presumption is that it was made on of the instrument." Good r. Mart

in order to give it credit, and it ation; she not having been informe it ht agreement or understanding betet sely what is the nature of the lega!

a blank on the back of a negotiable !

ion upon which the courts barem 1; some holding that his obligatiei

te is that, when the name of sad till ppears upon the note at the time

be said in this case, the defendant in error must home wa itonalous indorsement. In pavee, ons contract the liability of an indorser at all, and

have known when it placed its name on the back * Pas in England, be vrima ucb un late, that his own signature placed on the note before

of the note in suit, while in the hands of Cox, 971 t u indorser, but parol evi. Rep. 14, 1.1 or at the time of its delivery creates no such con

By intention of the parties party to a!.!. that its indorsement by him could have no other

12 termines bis liablutr. 4 comes KUD tract; and, since he does not thereby contract the

effect than to complete its execution, and that he

bilp. 135, citing Coulter . bam v. (011 liability of a regular indorser, the presumption

would not thereby become a regular indorser of

LYF. Brown, it S. T.

than a paper that he did not intend to do so would be quite as the paper, and that the defendant in error was

Ky, Clod. 49; C'ady v. Sbep

back of a prola reasonable and legitimate as that he intended to not the owner of the note, nor had any beneficial

. Frekbeimer, es PR. SL. 943; and before *** do what he knew his act would not accomplish. interest in it, and therefore could not, and did

11.09; Vyrick v. Hases, ?? quent bon!" It is not doubted that such third person may,

not, become a regular indorser, but that the ef

19:00, (al. 485; Hooks 1. Ander joint makei, by proper stipulation, prescribe the extent

| T. Mason, 127 Msse. ; Salisbury 1.F fect of its signature on the note was to give it

DOI:1: smith v. Long, 40 Micb. of the liability he intends to incur by his indorse

Neb.872. W credit, and enable Cox to negotiate it for his ben

IEEJintbority be liable as a ment, and make it that of a second indorser, or

1 note befort efit. Speaking of irregular indorsements of this

e non ti be indorses the pote be credit, he a: whatever else he chooses; but, in the absence of

character, and of the understanding of parties to

Proces presuded; but it bowo

was that of such stipulation, the nature of his undertaking, them, the court, in Douglass v. Waddle, supra,

ste, be is llable as a was indore like that of other irregular indorsers, must be said: “In this country the parties to this de

meridence is admissible of substituted. I determined from the circumstances of the case. scription of paper have usually understood their

the arties, which, when ascer.

Rep. 19%. W That neither the order in which the names ap

relation to be that of principal and surety, and,

mahaty. Cpion Banks. Wil.

Dame on the pear on the back of the paper, nor the order in

artin, % 1.9.90; Carpenter

ble as all orig upon this understanding, have generally acted point of time in which they were placed there, is

!11.2: Stein v. Pasmore, 25 | the faith the

both in creating the paper and adjusting their conclusive of the relation of the parties to the

Estee, 10 Mich. 387; Chalee south. Rip. $ liabilities upon it." And in Rand. Com. Paper,

AL Siirester v. Donner. ® VL paper, or to each other, or the liability incurred

ery i liable to $ 888, that anthor says: “That in a great ma

20 . 156; Martio v. Boyd, 11 | Provident sa where the paper is for the accommodation of the maker, was held in the early case of Douglas v. jority of instances the purpose of all the original

Sha'aber, 59 Mo. 342; Hoogbton (Teon.1, 31 . Waddle, 1 Ohio, 413, and in the late case of Casparties to such irregular indorsements was to fur

aras, Remington, 41 X. J. L. payee of the bu nish additional security, by way of guarantor or

2 Fils. 188; Kealing v, l'an | by the maher. tle v. Rickly, 44 Ohio St. 490, 9 N. E. Rep. 136.

** beint. Hansford, 10 W, 12. 470: ican Vat. Bania In the first case, a note drawn by Barnes, payable surety, to the actual or nominal payee."

That the defendant in error intended and un

$1.3. 150; National Pemberton Persons who to the order of Waddle, was indorsed by Waddle,

2. fl. Some courts, however, note, the intes and afterwards by Douglass, and then discounted derstood its liability to be that of a surety, and

achistake to vary the contract thus the followio: for the maker's benefit. Douglass paid half of

not of a second indorser, is manifest from its sub

er l'env. Brown. 124 Maie

. 7: Stacks. I notice, we ha the note after maturity, and sued Waddle for re- sequent conduct. The payment of $500 on the

I abs courts have beld that the full payment imbursement, claiming that, as second indorser, note by the defendunt in error was made long

ments of pri he bad recourse on Waddle, tbe first indorser, and after the maturity of the note, and after the fail

thereof bot ni that parol evidence was inadmissible to show any ure to make the demand and give the notice nec

E: broon v. Pierce, 79 Ill. 145; 1.), 30 Atl. Rep.

makers of the different relation between the parties. But the

essary to charge the company as an indorser. It court sustained Waddle in his claim that, as the

then was aware that, if its liability originally was

ASLO: Gillespie v. Wheeler, of the pote, ind

Tento interson, 34 Cal. 673; Great is admissible to indorsements were made before the discount of

that of an indorser only, that liability had the paper, to give it credit, for the maker's acceased; and it was under no obligation to make

or an indorser. commodation, the obligation of Waddle and any payment to the plaintiff. It is not to be sup

Civ. App.), 29

ndorsement. Cbaddock v. who indorses 3 Douglass was that of cosureties for the maker,

posed that the check was given the plaintiff as a

11: Lazer P. Chambers, 20 N. by the payee, and therefore Douglass, having paid no more than gratuity. The evidence shows it was a payment

(Micb.), 66 X his share of the debt, was not entitled to recover on the note, which is a recognition of the validity

on the back o against Waddle. The court say that: '“When a

of the demand. The payment, therefore, is af

2048 en maker if the paree sub purpose of aidi

and by him ind note is indorsed and transferred by a payee, the

variance with the claim that the liability of the indorsement is an actual contract between the incompany was conditional, dependent upon proper

is liable as indo dorser and indorsee of the note, that the latter demand and notice, and amounts to an unequiv

& Savings Ban received it for a consideration paid, and thereocal acknowledgment of an absolute and uncon.

Ill. 663. One fore the indorsement, like the making, is evidence ditional liability at the time of payment. And

note at the time

e, by a person who is the absence of 1 this construction by the defendant in error of its

ee, before or after its in alimport the contract of

v. Title Guaran upon demand, fails to do so, and the requisite

sidered it to be, both on principle and in view of

** , absequent holders." Held notice is given the indorser. But when the trans

the former adjudications of the court--that of a action between the parties is different, when it is

surety for the payment of the note. This code

es va asee before delivery, and a mere accommodation transaction, neither the clusion has not been reached without a careful

*** relation thereto, and 00 reason of the rule nor the justice of the case ad

consideration of the cases which hold otherwise.

onderent from that implied to the Editor mits of its application." And the court further

But we have found ourselves unable to concar in say that “Douglass knew that Waddle did not in

their holdings, reluctant as we are to differ with

Vedlerton, 22 Ad. Rep. 778,60 | Court of Appes fact own the note, but had indorsed it for the ac- the courts by which they were decided, and de

wben a person not a commodation of Barnes, as surety. He knew sirable as it is that there should be uniformity of

e upon it before delivery the maintenanc that he himself indorsed it for the same purpose, decision on so important a question of conimer

original promisor does and not as owner. It was intended to pay a debt cial law. Judgment reversed.

to tbe waker, and in State must proi due from Barnes, who, and not Waddle, was the

B. Payne (Mo. Sup.), 20 S.

A or Degotiation by the rigbts of the pu person benefited. Douglass himself never had a NOTE.-It is generally held that a person who in beneficial interest in the note, and the money

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15: Forsyth v. Day, 46 Me.
and cont de law implies no contract

Dapat lis name on the back of a
la torst another, on the condition

ss second indorser, cannot

10 his name. Grensel v.

M.-Gen. St. Coon, gec. til indonement of a nego

and the former is bound to pay if the maker, obligation is in harmony with what we ha view of

3s between such

** Hargent is made in the pres

INJUNCTIC

But be admitted to vary or

In your issue

not maintain a

court distinct)s

dorses a bill or note payable to order at a time wben

panding between parties mak | Debs Case. It paid by him was paid for Barnes." So, it may he is not the payee or holder, is not strictly an in

but those lodorsing it shall well read laws dorser. He is generally called a quasi-indorser and

, will avail against the of chancery to e

remark that in

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