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TIEfollowing decisions were handed down Tuesday,
AN INDIAN SUMMER PROBLEM.
appears to be incomplete. There is no such alternative Editor of the Albany Law Journal:
in England. In English criminal procedure the jury Reading the answers of your correspondents to
consists of 12 men, who must be unanimous in their
verdict of guilty or not guilty; when not being able to "Midsummer's” problem, suggests to me to present to them and you the following:
agree, after hours of wrangling together, they are disA being the owner of three lots, X, Y and Z, exe
missed, thereby occasioning a new trial. In Scotland
the thing is conducted more in accordance with human cutes a mortgage upon them all, which is duly re
nature. The jury is composed of 15 men, who, if not corded. He then alienates them as follows: 1st lot X to B; 21 lot Y to C; 3d lot Z to B. B then alienates unanimous, may decide by a majority, such as 8 to 7, his two lots as follows: 1st lot Z to D; 20 lot X to E.
or possibly 14 to 1; by which means a juror with
twisted notions, resolved on being singular, as often Upon foreclosure of the mortgage, in what order should the lots be sold ?
D. M. W.
happens, is unable to thwart the ends of justice. The CAMBRIDGE, N. Y., Oct. 4, 1880.
decision by a majority is accepted without demur. In the trial of civil cases, a latitude is also allowed. The
jury consists, as in England, of 12 men; but if they NEW YORK COURT OF APPEALS DECISIONS. have been in consultation for three hours a majority
of nine is sufficient for a verdict. If after pine hours HE
there be not a majority of nine, the jury may be disOct. 12, 1880:
missed. These Scotch arrangements seem to be in all Judgment affirmed with costs – Atlantic State Bank, respects more rational than the practice prevalent in in Brooklyn v. Savery and ors., impleaded; Argotsinger | England and Ireland. No one ever heard of a miscarv. Vines, The People ex rel. Larrabee v. Mulholland, riage of justice, civil or criminal, in Scotland, owing police justice, etc. - Judgment reversed and new trial granted, costs to abide event - - The Trustees of
to decisions by a majority. The accurate and imparForrestville Baptist Society v. Farnham and ors.; Wine- tial method of summoning Scotch jurors, special and gar v. Fowler: - Judgment affirmed, and case re- common, in itself merits commendation. manded for the proper sentence to the court of sessions of the county of Albany The People v. Apropos of Judge Hammond's learned decision and Cronin. Order allirmed with costs - In re Church- note, in United States v. Coppersmith, ante, 250, we ill, to racate, etc. ; Tompkins v. Greene; Phimney v.
call attention to the following extract from the WestOrth; Schell (Rodman) v. Derlin und ors., executors;
minster Review, Vol. XX, p. 72, A. D. 1838; 1 Am. Jur. Ammerman v. Peck; Ammerman v. Moore; In re Attorney-General v. The Guardian Mutual Life Insurance
253: “The favorite classification of offenses is into Company. - Orders of General and Special Terms felonies and misdemeanors; though these epithets give reversed with costs, and motion granted, costs to be no more idea of the nature of the offenses, to which paid out of the fund - The People v. The National they are applied, than if two Chinese words were used Trust Company of New York. Order of General in their stead. A very vague idea of the quantum of Term reversed and judgment on report of referee punishment, which may be awarded to the offeuder, is affirmed with costs - Hamlin v. Sears.
the full extent of the information conveyed by them;
for some misdemeanors are punished as severely as NOTES.
many felonies, always excepting that iniquitous adR. JOHN D. PARSONS, JR., of this city, has in junct to the punishment of all felonies, the forfeiture
of goods and lands. Should an ignorant man wish to press, to be issued in the course of three weeks, a
know something more of the meaning of these terms, volume of National Bank Cases, edited by Irving he may learn that a starving child who steals a pennyBrowue, editor of this JOURNAL, on the same plan as loaf is guilty of a felony, while a man who forges the Mr. Thompson's volume of like cases. The forthcom
mark of the Goldsmith's Hall on plate to any amount ing volumo will contain all the cases to date since the is only guilty of a misdemeanor. The man who adformer volume, and also a copy of the National Bank- ministers an unlawful oath is guilty of felony, but the ing Act, with sectional references to the cases in the
man who falsely swears away the life of another is two volumes. In our note last week of the com
only guilty of a misdemeanor. An apprentice, who plaints of the Chicago Legal News, on Judge Harker's appropriates a shilling to his own use received on his decision prohibiting a woman from serving as master master's account, commits a felony, while the man in Chancery, we distinctly wrote the name of the
who maliciously destroys the dam of a mill-pond is editor as “Mrs." Bradwell, but the compositor or only guilty of a misdemeanor. So much for classificaproof-reader, wiser in his generation than the editor, tion and consistency." carefully corrected it to "Mr." We hasten to apologize before the News annihilates us.
From the same volume of the Jurist, p. 254, we ex
tract the following form of the advocate's oath preTrial by jury, that much-honored palladium of civil scribed by law, adopted hy the representative council rights, differs materially in the two countries. A of Geneva, June 20, 1834: “I swear before God, to be Scottish criminal trial is a model of fairness and delib- | faithful to the Republic and Canton of Geneva; never eration. The accused is in good time served with a to swerve from the respect due to the tribunals and to very precise indictment, along with a list of the wit- the authorities; not to advise or maintain any cause nesses to be used in evidence against him. At the trial which does not appear to me to be just or equitable, the jurors are chosen by ballot, and each is furnished unless in the defense of an accused; not to employ with a printed copy of the indictment, with paper, kuowingly, in order to maintain the causes which shall ren and ink to write notes of evidence as it proceeds. be confided to me, any means contrary to the truth, The trial begins by the clerk of the court reading the and not to attempt to deceive the judges by any artiindictment, by which means the exact nature of the fice, or by any false exposition of facts or of law; to accusation is openly and clearly defined, and there is abstain from all offensive personality, and not to adno need for a lengthened prefatory harangue by coun- vance any fact against the honor and the reputation sel for the prosecution. The indictment being read of the parties, unless it be indispensable to the cause, the evidence is at once proceeded with. Any one can with which I shall be charged; not to encourage the compare this precision with what occurs, and is occa- commencement or the carrying on of any process, sionally complained of, in England. A Scottish jury from any motive of passion or of interest; and not to may give a verdict of guilty, not guilty, or not proven, refuse from any personal considerations, the cause of this last alternative being adopted when the evidence | the feeble, the stranger, or the oppressed."
The Albany Law Journal.
, one in reference to the bench, the other
Friars, whose privilege of sanctuary is pernicious to the best interests of society,” it seems to us he sac
rifices fact to a clever expression. Mr. Thompson ALBANY, OCTOBER 23, 1880.
complains of the unfitness of a jury, through inexperience and ignorance, to pass on particular states
of facts. CURRENT TOPICS.
Well, where will he get his Admirable
Crichton of a judge who is any better fitted ? The E have noted two recent utterances from the one as well as the other must be instructed by ex
pert testimony for the occasion. We dissent from to the jury: Mr. Gantt, in the current number of Mr. Thompson's view that a judge is much better the Southern Law Review, in an article entitled “ Ju- qualified to weigh evidence than a jury. His very dicial Nominations,” says some things to which we "expertness" disqualifies him. Let us ask Mr. heartily assent. His belief that judicial nominations, Thompson why, if judges are so much fitter to pass if left to the bar, would without exception be good, on questions of fact than juries, it is deemed necescoincides with our own. “The bar naturally and sary in so many communities to prohibit the judges necessarily desires to see the best of its number ad- | by legislative enactment from expressing their opinvanced to the place of honor." “Not only is the ion on the facts to the jury? The truth is that bar the most competent to judge of qualifica- judges and referees are very poor arbiters of fact, and tions for the judgeship, but it is more directly and that juries are right nineteen times out of twenty, vitally interested than any class of the community and we believe, even ninety-nine iimes out of a hunin the selection for the bench of him who possesses
dred. Such is judicial experience and testimony. them in the fullest measure." We would like to Do not the best judges shrink from passing on dissee judicial nominations always made by the bar. puted facts? Is there a judge on the bench who would But we do not agree with Mr. Gantt that "the prac- prefer to submit his right of person and property in a tice of electing judges by popular vote is essentially case of conflicting testimony to a judge rather than a vicious.” We think it is theoretically right that jury? We never heard of one, and we believe if the citizen should elect his judge as well as his law- we could poll the bench we should hear an almost maker or his governor. We do not know why the unanimous voice in favor of the theory of the jury principal should directly appoint his own legislative system. In truth, Mr. Gantt's and Mr. Thompson's and executive officers, and in the selection of judges present utterances are simply those forms of speech be compelled to express his choice only through an in which intelligent men are prone to indulge about agent of his own selection. And in practice we be- the time when they are temporarily tired of a relieve that elected judges have generally been fitter public, fear that men are not fit to rule themselves, than appointed judges. Such certainly is the history and yearn for a strong government. of our State. Undoubtedly we shall have Cardoza and Barnard cited against us, but we reply that the A correspondent, in commenting on same influences which produced their election would marks on the comparative number of reversals in probably have produced their. appointment, and the New York and in the Illinois Supreme Court, when they were clected they were unexceptionable calls our attention to the fact that the law under men. Certainly abler men have rarely sat on the which Bradwell's Reports are issued requires that bench in New York city. Mr. Gantt's idea springs no opinions should be published except in cases of from a distrust of the people which we believe to be reversal. We were aware of this fact, and our point unfounded.
was that the reversals in our Supreme Court in three
years would not fill six volumes. We agree with The same distrust of the people is disclosed in our correspondent that the limitation of the reports Mr. Thompson's dedication to hi excellent little to reversals is inexpedient. Our correspondent has book, “Charging the Jury.” Although the author ascertained that judging from one district “fully is a contingent judge- we hope to be elected two-thirds of the cases are affirmed.” Our recoland although his book is dedicated to an excellent lection of statistics is that in our court at least threejudge, we hardly think there is any necessity or ex- quarters are affirmed. cuse for his somewhat studied attack upon the jury system, and his expressed preference for a one-man Two rather novel points as to the rights of authors jury, especially as he admits that there is no proba- in their literary productions have been recently bility of any radical change of system. Mr. Thomp-ruled, one in England, the other in this country. son complains of the uniform verdicts against Miss Genevieve Ward, it seems, has bought from corporations. In our opinion they are quite right. Messrs. Merrivale and Grove the privilege of acting If it were not for the jury, great corporations, like for a term of years a play called “Forget me not." railroads and insurance companies, would oppress Miss Ward has seen fit, in putting the play upon the community by their recklessness and unconsci- the stage, to omit a single character. Messrs. Merentiousness. The jury are an indispensable counter- rivale and Grove sued to restrain her from making acting influence like the different metal in a this omission, and Lord Coleridge has denied the chronometer. When Mr. Thompson says the pro- application. The London Neus asks: “If the manvince of the jury" is in many cases a judicial White ager of a theatre has a right to alter a play which
VOL. 22.- No. 17.
he has purchased the privilege to represent for a ing – viz., starvation from every thing but cold term of years, why might not a publisher be al- water, for a period of one, two, or any number of lowed to improve, according to his notions of im- days under forty. The thing can be put in force provement, the novels, the poems, and the scientific instantly and everywhere, and then behold the treatises bought by him?” This is indeed a curious result! The present continually increasing expense point. The probability is that the play is the better of prisons to the community would be cut down to for the omission, and that the author would be glad, generally three days, in place of three years ; while after an experience of the restoration, to consent to the hitherto too well-fed vagabonds would be reabide the manager's discretion. It is said that Anna turned to society in a purer state of physical conDickinson is about to bring a similar suit to restrain stitution, and with a lively presentiment, enforced Fanny Davenport from making changes in her play, by Nature herself, that they must work honestly in “An American Girl," which the latter is acting. future if they would eat.” On this the London Law
Times remarks: “The only weak point in the sysThe other point is as to the copyright of Irving's | tem appears to be the absence of any thing cornieces in his works. We have commented on this case responding to hard labor in aggravated crimes, and before. See 21 Alb. L. J. 162. It will be remem- this might be supplied by a judicial direction to the bered that the copyright having expired, a firm pre- gaoler to hold at the keyhole of the cell door, durpared to issue a volume of selections from this ing certain specified hours, à savoury dish, the author's writings, entitled “Irving's Works." Theodor of which will pervade the cell. The nature of Misses Irving and their publishers, George P. Put the dish should be varied in proportion to the serinam's Sons, sought a permanent injunction, claim- ousness of the crime and the tastes of the criminal. ing that after the expiration of his copyright, an Offenders of the deepest dye should starve amid the author has, or his heirs have, a common-law fumes of roast goose, and Scottish criminals should right to control the publication of his works. They suffer in the midst of an atmosphere of haggis." also claim a trade-mark right to the title “ Irving's Carrying out this idea, an odor of apple pie should Works.” The suit has just been decided in favor of tantalize the Yankee, the Southerner should be the defendants. Beach, J., said: “I consider it made to smell of hog and hominy, while the native settled by authoritative adjudications that an au- of the western plains should snuff the scent of thor has no common-law right of property in literary buffalo or “grizzly” steak. Would not this be an works, after publication, id est, by printing and sale; effective treatment for tramps? We should not like and even had it existed, the right was taken away to live in a country controlled by Carlyle, Ruskin by the act of Congress relating to copyright. Palmer and Professor Piazzi Pyramid Smyth. v. De Witt, 2 Sweeny, 547; S. C., 47 N. Y., 532, 539; Dulley v. Mayhew, 3 N. Y. 912; Millar v. Taylor, 4 Burr. 2303. The defendants' use of the title
NOTES OF CASES. right of the plaintiffs. It is true they have applied In Docht of Appeal, it was held that a chromoit for many years to the author's revised, corrected, printed Berlin woolwork pattern is not a piratical and complete writings. But the defendants' use does not mislead the public, because the application copy of an engraving from the same design. The is to the author's productions, although not revised picture in question was Millais' famous “ Huguenot."
The court said, per James, L. J.: "No doubt the or corrected, and in some instances incomplete.
art of the engraver is often of the very highest Nevertheless, what the defendants print and sell are in truth the works of Washington Irving as they difficult to conceive any thing of much higher skill
character of art, as in the print before me. It is originally appeared. They made no effort to induce
or art than that which has by a wonderful combinathe public to think their publication to be that of
tion of lines and touches reproduced the very texture the plaintiffs. This designation could not be the
and softness of the hair, the very texture and softexclusive property of the plaintiffs unless it marked
ness of the dress, and the wonderful look of love a published work which they had the exclusive
and admiration in the eyes of the young lady lookright to print as against the defendants. This right ing up at her lover – it is dificult to conceive, as I they do not possess, and any one lawfully printing
That art or the writings of Irving may designate them “Irving's say, any art or skill greater than that. Works.' The name seems merely descriptive of an
skill was the thing I believe, and am satisfied, which article of trade, of its qualities, its ingredients, and
was intended to be protected by the acts of Parlia
ment, and what we have to consider is whether the characteristics."
other thing which is before us is a copy of the enProfessor Piazzi Smyth, the celebrated astronomer, graver's work. Now, as to this woolwork pattern, and discoverer of the true inwardness of the Great I am satisfied upon the evidence that its production Pyramid, has invented a method of criminal pun- must have been aided by the man who produced it ishment, combining efficiency with economy, which having before him a copy or a photograph of Mr. will commend itself to statesmen. He says: “Dr. Brooks' print in some shape or other, because the Tanner's mode of fasting furnishes us with the design is reproduced, the attitude is the same, and identical arm which the law has so long been in in some things in which the print differs from the want of, prompt, salubrious, and mentally improve picture, there appears to be a resemblance between this thing and the print before me. But then is that for his own amusement to etch, draw, or make a a copy of the engraver's work ? It appears to me, water-color, he would still be within the very strict without going into any etymological definition of meaning of the language, because he would have the word 'copy,' but using the word copy in the made a copy or copies of the print which is proordinary sense of mankind as applied to the subject- tected.” “Now I think in the case of Gambart v. matter before us, and as used in the act of Parlia- Ball, 8 L. T. (N. S.) 426, the object of those acts ment, the question is, Is it a piratical imitation of was very well pointed out as being of a two-fold the engraver's meritorious work in the print? Now character, first, the protection of the reputation of I am of opinion, as a matter of fact, that the thing the engraver, and secondly, his protection against is not a copy, nor a piratical imitation, nor a colora- any invasion of his commercial property in the print. ble imitation, nor a piratical reproduction of Brooks' It seems to me idle to suggest that in this case the engraving. The work itself was intended to be reputation of the engraver from whose hands that and appears at sight to be something intended for a beautiful engraving proceeded, will suffer from the totally different purpose, and not to be intended as publication of a print intended for the purpose of a print in the ordinary sense of the word. It was ladies or others working in Berlin wool from it. It intended to be printed, and was printed as a pattern would be idle to suggest that his reputation could for Berlin woolwork, not put forward in any way suffer, and as far as regards his commercial propfraudulently, or as a sham, but really in truth in-erty, it appears to me to be almost as absurd to imagine tended to be, and it looks upon the face of it to be that the commercial position of the owner of a print that which it is said to be, a pattern for working in should suffer by the sale or the publication of this Berlin wool. Now I am of opinion that whatever article. Now I would not desire to say that a repmay be the similarities between the one and the resentation of this print in chromo-lithography, other, the attempt to produce, not the print but executed with that high skill and art with which something which has some distant resemblance to works of art are now executed in chromo-lithothe print, not by any thing in the nature of engrav-graphy, of a character fitted to be framed and hung ing ork, or the introduction of the engraving up in a person's room or used as an ornament in that lines, but by what I might call a mosaic of colored way, could not be treated as a copy of the print parallelograms, is not in any sense of the word a prohibited by the statute. I do not say that it piratical imitation of the print. Nobody would would be so, but that it might be a matter of conever take it to be the print; nobody would ever buy test. Looking at the deviations even in the subjectit instead of the print; nobody would ever suppose matter here you have no doubt a young man and a that it was, to use the language of the first act, a young woman standing up in the centre of the picbase copy of the print in any sense of the word. It ture, but beyond that almost every detail is altered is a work of a different class of art intended for a from beginning to end. Again, you have no work different purpose, and in my opinion, no more cal- of art in this woolwork pattern. The woolwork culated to injure, in the sense in which protection eventually to be made might probably be a work of is given by these acts of Parliament, the print quá | art, but you cannot call this a work of art. You print, or the reputation of the engraver, or the com- might almost as well call a representation of the king mercial value of the property in the hands of the and queen on a gingerbread stall at a fair a work proprietor, than if the same group exactly were re- of art. I cannot, therefore, at all understand in produced from the same engraving by waxwork at what way this thing can be looked upon as a copy Madame Tussaud's, or in a plaster of Paris cast, or within the intent and meaning of these acts of Parif taking or using this print as the design or model liament, and at present it is not necessary to go into something were devised from it as like it as could any other part of the case.” Bramwell, L. J., said: be for the purpose of being printed upon a surface “What these statutes intended was to protect the of porcelain or upon any other material of that kind. artist in engraving, and that what the Legislature I cannot conceive myself that such a reproduction contemplated was that his work, as an engraver, of the subject as that, whether it is worked in should not be pirated by any thing which copied tapestry or Berlin wool, printed upon china, or re- what he had done, and the author of which availed produced in earthenware, or any other material of himself of what the engraver had done for the purthat kind, is within the meaning of the act of Par- pose of making a copy which would be a substitute liament. What the act of Parliament intended to for what he had done. What really was in the conprevent was the piratical appropriation of the work templation of the Legislature at that time was that of the engraver for the profit of some person minded there should not be another plate made — another to steal that work." Baggallay, L. J., said: “I engraving — the engraver of which would have the also am of opinion that this Berlin wool pattern is benefit of what had been done by his predecessors." not a copy of a print protected by the statutes." “There is a picture of which Mr. Brooks is not the “Now it is perfectly clear that those words must owner, I mean the picture by Mr. Millais. It is receive some limitation, because if a lady was to conceded, as I understand, that anybody might have paint upon a china plate and procure it to be baked, gone to that picture and made a fresh engraving of a copy of that print, or a copy reduced in size, or it upon a fresh plate, unless there had been some bareven of a portion of that or any other print, the gain which possibly might have precluded his having acts could not be said to extend to such a case as a right to do it if it was known to him, as to which that. So, in like manner, if a person were simply "I say nothing, because I know nothing. It is conceded a multo fortiori that the person who prepared this maker, if when the note is negotiated the maker's might have gone to the picture and taken from it the name stands first on the back. materials for producing that which is produced here Woodward v. Torone, p. 41.- An attorney in fact before us." “But if that is so, if this Berlin wool pat does not act in “ fiduciary character" within the tern might with these trifling variations have been meaning of the Federal bankrupt act. taken from the original picture without ivfringing the Connecticut River Railroad Co. v. County Commiscngraving, how can it be possible to say that the case sioners, p. 50.— A statute authorizing the taking of is within the acts because the man who did it, instead lands for the use of a railroad owned by the State, of going to the picture (if he could have got access and of other railroads, without providing for comto it), thought it more convenient to take this en- pensation to the owners except from the earnings graving, or possibly a smaller one, or possibly the of the State railroad, is unconstitutional. etching — for any one of them would have served Freeman's National Bank v. Savery, p. 78.-L., a his purpose, because all he wanted was the outline member of the firms of S. & Sons and P. & Co., and the scale in order to produce it with trifling made bis own notes, payable to the order of P. & variations, which do not identify it with this en- Co., and without authority indorsed them in the graving, and are no piracy of the engraver's skill name of S. & Co. D., another member of the firm or art? How can it possibly be said that that is of P. & Co., then indorsed the name of that firm as within the act? I really cannot think it is."
first indorsers. They were presented to plaintiff
for discount, before maturity, one by a broker and The Vienna Juristische Blaetter contains a decision the other by D., who was known to it to be a member by the Austrian courts on the formalities necessary of the firm of P. & Co., and discounted by the to the execution of a will. The evidence showed plaintiff. S. & Sons had no benefit from the notes. that John P. intended to make a written testimony Held, in an action against S. & Sons, that the facts according to law. He procured a notary, N., to showed no conclusive notice of the invalidity of the draw the same for him. The law requires that the indorsements. testator shall subscribe the instrument; that he shall Mullen v. Old Colony Railroad Co., p. 86.- If one affirm the instrument to be his will before three fraudulently obtains from another his signature to a competent witnesses, and that the witnesses shall discharge of a cause of action, the latter may mainsign the paper as witnesses. It appeared that the tain the action without returning the money. notary had written the will at his office; that then Bradlee v. Warren Five Cents Savings Bank, p. he had called in three clients of his to act as wit- 107.— The treasurer of a savings bank cannot bind nesses; that the will was read in their presence and it by his indorsement in its name, although it had in that of the testator, and then subscribed by them; directed the sale of its notes, and authorized him that they did not speak with John P., and he was to “draw all necessary papers and discharge all silent during the transaction. The notary, the tes- obligations." tator and the witnesses were the only persons present Towne v. Fiske, p. 125.- A portable hot-air furin the room. The will contained the following con- nace and gas-fixtures in a house, although connected clusion: “I have declared, before the testamentary with the house in the usual manner, are not part of witnesses called in, these provisions to be my the realty. last will, and subscribe the same before them.” Churchill v. Holt, p. 165. —An occupant of a buildThe Supreme Appellate Court decided that the willing, who has been compelled to pay damages for was not legally executed. They say: “The law injuries sustained by another by falling into a hatchdoes not indeed require that the affirmation shall be way on the premises negligently left open and unexpress and oral, in a certain formula, but must guarded by a third person, may maintain an action be declared in a manner excluding any doubt of the against such third person for indemnity. witnesses, that the instrument contains the last will Donlan v. Provident Institution for Savings, p. 183. of the testator. The mere and silent presence of - The by-laws of a savings bank provided that dethe latter at the reading of the instrument cannot positors should sign and conform to the by-laws; in be taken for such affirmation, the less so, as the wit- case of loss or theft of the deposit-book, should nesses do not state that they observed an utterance give immediate notice to the bank; and that the of the testator which would show in an unmistaka- bank would not be responsible for payment to a ble manner that he had heard what was read, had wrong person in absence of such notice. A. subunderstood it, and would have it in force as his last scribed the by-laws by his mark, and was unable to will."
read. Having died, his book was presented to the
bank by one fraudulently personating him, and his ONE HUNDRED AND TWENTY-SEVENTH deposit was paid by the bank. His executors had MASSACHUSETTS REPORTS.
previously published the usual citation for proof of
his will. The bank did not know of his inability to NHIS volume contains the following cases of gen- read, and had received no actual notice of the theft eral interest:
of the book nor of his death. Held, that the bank Dubois v. Mason, p. 37. · Where one indorses a was not liable in an action by the executor for the note, payable to the order of the maker, before deposit. negotiation and before indorsement by the maker, Blagge v. Ilsley, p. 191.— An action for seduction his liability is that of indorser, and not of joint of a daughter may be maintained upon proof that