« AnteriorContinuar »
sidering that Macaulay was free from the cares and one looked at him, that it is difficult to speak the pressures of a profession, and, indeed, from any truth of him without exposure to the charge of demands that interfered with his entire devotion to | exaggeration. His affection and his domestic life any subject that interested him, he gave compara-how charming! his sense of honor how keen; his tively little to society and to the world. He made subjection to the control of high moral prina few speeches (not many) in the House of Com- | ciples how complete and constant; his imaginamons. He wrote a few reviews and essays. Hetion how brilliant and chaste; his logical power wrote some pretty poetry, and he wrote his History | how masterly, his memory how tenacious and of England. He prepared also (with much help) his industry how untiring! He seems to have united his Indian Code. All these things were well done; in himself the highest excellencies that are genermost of them were brilliant. They were, and they ally considered inconsistent with each other; for will long continue to be, very readable. But every illustration, the power of exact reasoning and of one of them was the product of long and uninter- sharp discrimination, with the most playful fancy, rupted labor; written and re-written again and and a devotion to his professional engagements again, and never permitted to go from him until he | apparently disdainful of rest, with a ceaseless and had expended upon it his best culture, and his bigh-demonstrative outflow of the best affections of the est power. We see, therefore, in “ Trevelyan's heart. He proved that these virtues are not necesLife,” Macaulay at his best, and only on the very sarily incongruous. And then where could he have apices of his powers. Choate never had time for found time for so much classical reading? Macaulay such expenditure of labor, and he was less careful had no profession to which he was tied. His busiof his posthumous reputation. Yet he was, at ness was to be a reader and a general student. Mr. least, equally brilliant, more versatile, and far more Choate had enough for a life's work which demanded logical. His style, undressed, is equally beautiful his first attention, and that work was always done.” with that of Macaulay, arrayed in its best costumes, and his oratorical powers seem to me to have been
In a letter received from the late Emory Washmuch higher. His ability to influence and sway burn, written a few days before his death, he said: other minds has never been surpassed. But I have "I am glad Mr. Choate is taking his true position, no time to go into an analysis of Macaulay's and as the scholar, the orator, and the jurist, among the Choate's mental powers, acquisitions and culture." men of genius and learning of our country, instead
“In moral traits the two men are not to be com of that blazing comet-like creation of fact and fancy pared. Though Macaulay was tender and loving to which several writers had been disposed to picture bis mother and sisters, perhaps also to Ellis, he loved him. I am glad that you have told the public, in himself supremely. Beyond the narrow circle men- coolness and candor and discrimination, just what tioned, there can hardly be said to have been any sort of a man he was, and his true claims upon their who had a place in his heart. He was conspicuously | admiration and respect.” vain, envious, jealous and lastingly malignant. Yet he was a great and brilliant man. But how
We give the following extracts from a letter reunlike the great and brilliant American."
ceived from a distinguished advocate, much at the “I shall wait for the completion of your articles
bar with Mr. Choate, but now retired from practice: with much interest, and, perhaps, I should not have
“A peculiarity, undoubtedly observed by you, is thrown out the crude observations I have made.
that many of the most characteristic stories of Mr. Yet I will add one remark. Perhaps the mellowing
Choate are likely to convey a false impression of influence of a cordial acceptance of christianity will
his character to those who did not know him. This account for the superior loveliness of Mr. Choate's
is because many of his witty sayings derived their character over that of Macaulay. Can there be any
point and force from the clever portraiture of some thing more touching than the former's conduct at
trait of character or peculiarity of the person to the baptism of his dying daughter?”
whom they referred. Perhaps I can illustrate this
better than I can explain. Take, for example, the [Extracts from letter of June 16, 1877.)
anecdote to which the Hon. Mr. Thompson, represen“I have read with great interest all you have said tative in Congress, lately referred in the House of of Mr. Choate in the ALBANY LAW JOURNAL. You Representatives. A suit was brought against Major certainly have no reason to regret the work you have Osborne who commanded the minute men who went done in bringing before the thought of the country from Danvers on the 19th of April, 1775, to Lexthe most remarkable man in some particulars) who, ington. He had been a stockholder of the Boston in modern times, has appeared in the legal profes- and Salem Stage Company, and was sought to be sion. I have admired your analysis of his character | held individually liable, as such stockholder, for and endowments. You have done a work I should the debts of the corporation. Before the suit he have feared to attempt. There was so much to had transferred his stock, and it was claimed that admire in Mr. Choate, from whatever stand-point I the transfer was made to avoid the liability. Mr. Choate was engaged for the defense. His fame was | tion. Messrs. Abbott and Ives both spoke to it, then comparatively local, but he was in the prime | and Judge Thomas replied, closing the discussion. and vigor of young manhood, and the village of the court sustained the objection. Mr. Choate was South Danvers flocked to hear him in a case which, immediately on his feet, with: “May it please your they rightly judged, would call out all his powers. Honor," when Judge Bigelow somewhat sharply said The case (Bordman v. Osborne) is reported in the that the question had been decided and that two 23 Pick. A reference to it will show that the de- / bad already spoken upon it. Mr. Choate pleaded, fense prevailed, upon an issue which did not in “ Only as amicus curiæ, your Honor, may I be volve the question of fraudulent transfer. The trial pardoned for a word,” and proceeded with one of was some sixty years after the battle of Lexington, his most magnificent arguments in favor of the and, during the argument, Mr. Choate exclaimed: admissibility of the evidence. But the judge ad“Would my client have done this thing? He would hered to his decision, though I am by no means have stood another shot at Lexington first !” He re sure he would have done so had the argument been ferred repeatedly to his á venerable client," and as | | made before, instead of after, the court had passed you may well imagine, indulged in many patriotic upon the matter. This, I am quite sure, was the embellishments. It was, indeed, one of his most last argument made in court by Mr. Choate, alsplendid efforts. You have, perhaps, heard of the though I have an impression that he subsequently uncourtly, not to say rough, manner of the late appeared before some judge at chambers. Chief Justice Shaw. Mr. Thompson had stated sub | “The most marked characteristic of Mr. Choate, I stantially the colloquy which took place between think, was his capacity to so enter into the hopes that great magistrate and Mr. Choate as he closed, and feelings of every one with whom he came in and which was heard by all in attendance. But it contact as to impress each with the notion that he requires a knowledge of both parties to appreciate had some special and peculiar interest in him. I the remark which Mr. Choate made, as he was put- confess I do not understand this mystery, but I ting on his overcoat, to the person sitting next to know the feeling almost always came over me when him, sotto voce : “ The old chief doesn't know much I met him, and considerable effort of reason and law, but he has very pretty manners.” I give this judgment was necessary to realize that it could not simply to illustrate what I mean by the difficulty of be so. I could plainly see, too, that others were relating some of his most piquant remarks, without impressed with a similar feeling as regarded themconveying an inaccurate impression.
selves. “In the last trial which Mr. Choate attempted in “The town of Essex, in which Mr. Choate was his life, an incident occurred which shows how ab- | born, was, at the time of his birth, a part of the solutely absorbed he then was in his professional ancient town of Ipswich. He was born, as you duty. It was a trial before a jury upon the validity probably know, upon an island at the mouth of of a will, Judge Bigelow, afterward Chief Justice | Essex river, bearing the euphonious and fragrant of the Supreme Judicial Court, presiding. Mr. name “Hog Ísland." Ipswich was incorporated in Choate and the Hon. Alfred A. Abbott were in favor 1634, and in 1834 the second centennial was celeof the will; Mr. Otis P. Lord, now judge of the brated, and Mr. Choate delivered an oration. At Supreme Court in Massachusetts, with Judge the dinner which followed, Nehemiah Cleaveland, Thomas, who had then resigned his seat upon the LL. D., whom, perhaps, you know as having formSupreme Bench, as senior counsel, disputed its va- erly had a school for young ladies in Brooklyn, but lidity. It was evident to all that Mr. Choate was who now resides in Conneticut, toasted Hog Island too sick to try the cause. By a rule of the court, in compliment of the “shoats” it had produced. only two counselors on each side could take part in I believe Mr. Choate was chagrined at the pun in the trial. Very soon after the trial commenced, spite of the evident good feeling with which the Mr. Choate requested Mr. Stephen B. Ives, Jr., then sentiment was proposed, being, in this, unlike Lord a young man, but now a leader of the bar, to take Bacon, who “playfully declared himself a descendnotes of evidence for him. The trial occupied sev-ant of 'Og, the King of Bashan." eral days, and the courts made long days then. Be “You, of course, know his handwriting, and that fore the evidence was concluded Mr. Choate was it was in his youth the same as through his life. obliged to succumb. He, therefore, requested the When he first opened his office in Salem, he was court so far to modify the rule as to allow him to compelled, as young attorneys usually are, to attend withdraw, and let the case be continued by Messrs. to all kinds of business, conveyancing among the Abbott and Ives. This was, of course, assented to, rest. He sorely tried the patience of the registrars. and Mr. Choate withdrew from the table and took On one occasion a classmate called upon him, and, his seat in the center of the room. During the finding him free from clients, felt at liberty to remain. same session of the court a questión arose as to the In a few minutes a gentleman from the registry adınissibility of certain evidence. Mr. Lord ob- office came in, whispered to Mr. Choate earnestly, jected to it, and briefly stated the ground of objec- 1 and went away. Mr. Choate begged his classmate to excuse him for a few minutes, but the latter, sup
THE JUDICIARY AND RAILROAD PASSES. posing it a professional case, and one of urgency,
IN the case of Goodwin v. New York and New Haven said he would go and leave him to his duties. “No,
1 R. R. Co., the habit of giving railroad passes to no,' said Mr. Choate, “Sit down; it is but a minute; |
public officials was commented upon, and their acit is nothing -- only they have got a register of deeds
ceptance by judicial officers strongly condemned. The up here who can't read writing. I'll be back at action was an equitable one, a stockholder in a railonce.'
road company seeking by an injunction to restrain the "He had a habit of catching popular phrases, even
company from granting free passes to members of the
general assembly and to State officers. It was not slang phrases, and using them not only effectively,
found by the court that the company contemplated but without losing his own dignity. Irony, too,
doing this, but only that it had given such passes to was one of his favorite modes of expression, and some former members of the general assembly and to beyond the power of any other person I have ever some former State officers, and that the petitioner was known, he would use an expression which should be apprehensive that it would grant such passes to mem
bers of the general assembly and State officers then interpreted as ironical, or as direct assertion accord
| about to be elected. It was therefore held that there ing to the hearer's state of feeling. You may have
was not sufficient ground for interference by injuncheard his remark to Dr. Adams, his pastor, an or tion. In respect to giving and accepting passes, Fosthodox clergyman, upon Mr. Webster's religious | ter, J., who delivered the opinion of the court, said: views. “He understood the scheme." This reminds The question arising on the record is thus disposed me of an incident. A gentleman was in his study
of, and we might leave the case here. But lest it
should seem that we regard with indifference the effort one day, and Mr. Choate, who had a closet in which
of the petitioner to put a stop to the practice, which he kept bottles and glasses and ice water, had taken
the facts of the case show to be a not uncommon one, out his decanter and was enjoying a social glass (a
of giving free passes or tickets by railroad companies, thing, by the way, which he did very rarely and with as a gratuity, to the public officers of the State, a few great moderation) when he heard some one coming words on that subject may not be impertinent. As up the stairs, and, expecting Dr. Adams, he suddenly
the views about to be expressed are not essential to and hastily gathered all the implements, thrust
the result at which the court has unanimously arrived,
it may be due to some of my brethren to say that, them into the closet and shut it, when his library
while they regard the subject essentially as I do, they door opened, and, instead of Dr. Adams, there ap
have some doubts as to the propriety, where it is not peared before him his friend, Mr. Peter Harvey. clearly demanded of us, of laying down what may seem "Why, Harvey ! is that you? I thought it was a to be a rule of action in such a matter for other departPresbyterian foot-fall;" and he immediately re ments of the government. I take, therefore, the per
sonal responsibility of all which is now added, feeling placed the paraphernalia so suddenly hidden from
sure that, whatever sense of delicacy would keep any sight.
of my brethren silent on the subject, we all agree as “On one occasion, in reference to a criminal case
to the moral question involved. which he bad in charge, a friend said to him, “Why, The practice referred to may be viewed in two asMr. Choate, I hear your client has confessed. Is pects: first, its effect on the railroad companies: next, that so ?” “Yes,” said Mr. Choate, “he's 'fessed.
on those who receive the tickets, and through them on He's 'fessed he didn't do it.”
It may be safely assumed, generally, that the di" The article in the ALBANY LAW JOURNAL does
rectors and managing agents of these corporations not give his description of the Rhode Island boun- I have the int
have the interest of those corporations primarily in dary as tradition gives it among us, and perhaps view. Good dividends being the supreme object, they our version of it may not be uninteresting to you :
will probably issue no more of these tickets than are “A line from John Corey's barn to John Corey's
likely to redound to that end. A full equivalent, in
some form, will doubtless be looked for in each case, ledge, the boundary of a sovereign State ! On the
and if not realized, it may be presumed that the issusouth, a line drawn through the shadow of a fallen
ing of such tickets will be discontinued. Should the leaf, to a drop of a summer shower, and, on the issue at any time be extended beyond profitable limwest, a hundred foxes with firebrands attached to its, the stockholders must have abundant power in their tails."
their own hands to correct the evil by a change of “I had thought of adding other matters, but fear
Among the obvious effects of receiving these tickets, I have already subjected myself to a censure
by persons in official positions, is the public scandal such as that uttered by Mr. Choate when asked if which it creates. That may not be a sufficient cause the report of one of his speeches was accurate. for abolishing the practice, but it is an evil of such “Not verbally — not verbally — but the general magnitude that right-minded men should be willing nonsense of the thing they've got.” How true of
to make some sacrifice to prevent it. The members
of the executive and legislative branches of the govmuch that has been printed concerning him ! But
ernment are no doubt fully competent to decide for I rejoice that the time has come when the more
themselves as to the propriety of accepting these earnest and dignified side of his character is be tickets. It would be an assumption of superiority ginning to be appreciated.”
most unbecoming in us, were we thus, prematurely and gratuitously to volunteer an opinion. For judi- | Phelps v. Fisher, 50 N. Y.; Shafer v. Bank, 59 Penn. cial officers, however, I feel free to say, that I con- | St. 148. demn the practice, wholly and entirely. Not because | Even elementary rules show that he cannot be first we should any of us be conscious that our judgment indorser, for the reason that he is not payee, and it is would be warped or influenced by so slight a cause. We well-settled law that no one but the payee can sustain flatter ourselves that it would not be. Still, it would that relation to the maker or put the note in circulaprovoke comment, if not condemnation, from suitors tion as a negotiable instrument. Essex Co. v. Edagainst whom judgments might be rendered where munds, 12 Gray, 276; Moies v. Bird, 11 Mass. 440. the interest of these corporations was concerned. The Three of the counts of the declaration are framed charge, or the suspicion, of bias is to be avoided. upon a promissory note, dated June 29, 1866, payable Dimes v. Grand Junction Canal, 3 H. L. Cas. 793. The to Alexander Davidson or order, sixty days after administration of justice should not only be pure, but, date, signed by the first two defendants, and the recas far as possible, free from suspicion. To attain the ord shows that it was indorsed by the other defendant high ends of his office, a judge must be of good re before it was indorsed by the payee and before it was port. That a gift perverteth the ways of judgment, delivered to take effect as a negotiable instrument. is a truth coming to us with so lofty a sanction that it His indorsement was in blank, and of course was withmay not be questioned. Lord Chief Justice Hale, out any written explanation as to its nature and inwhom Lord Campbell justly describes as an object of tended effect. admiration and love to all his contemporaries, and as Besides the three counts framed upon the promisa model of public and private virtue by succeeding sory note, the declaration also contained the common generations, refused to try a cause of a party who had counts, in which it was alleged that the defendants sent him a present of some venison, until his butler were indebted to the plaintiff in the sum of $2,000 for had ascertained and paid its full value. The payment work and labor done and performed, and in the same being refused, the cause was postponed. This, by sum for goods, wares, and merchandise sold and delivsome, was thought to be over scrupulous, and possibly ered, and in the same sum for money had and received, it may have been so; but for myself, I prefer, on this and other counts in indebitatus assumpsit. subject, to err with Lord Hale, rather than to follow Service was made, but the two defendants first Lord Bacon. In this opinion the other judges con named failed to appear and were defaulted. Instead curred.
of that the other defendant appeared, pleaded the
general issue, and went to trial. Evidence was introINDORSEMENT OF PROMISSORY NOTE BY duced on both sides, and the verdict and judgment STRANGER BEFORE DELIVERY.
were for the plaintiff in the sum of $3,625.33. Excep
tions were filed by the defendant who went to trial, SUPREME COURT OF THE UNITED STATES - OCTO
and he sued out a writ of error and removed the cause BER TERM, 1877.
into this court.
Only two of the exceptions are embodied in the asGood v. MARTIN.
signment of errors, and those only will be re-examWhen a prom en a promissory note made payable to a particular per
ined: (1) That the court erred in instructing the jury son or order is first indorsed by a third person, such third person is held to be an original promisor, guar
that if they found from the evidence that the defendantor or indorser. (1) If he put his name in blank on ant wrote his name upon the back of the note before the back of the note to give the maker credit with the payee, or if he participated in the consideration of the
the delivery of the same to the payee, and that he did note, he is held as joint maker. (2) If subsequent to
not then make any statement of his intention in so the making and delivery of the note, he did the act in pursuance of a contract between the maker and payee
doing, he is presumed to have done so as the surety of for forbearance, he is held as guarantor. (3) If he did the makers and for their accommodation, to give them it with the understanding of all parties that the note was to be inoperative until indorsed by the payee, he
credit with the payee, and is liable for the payment of would be held liable only as second indorser.
the note in this action; and that if that presumption The presumption where such an indorsement is made in blank is, that the party is liable as maker or guarantor.
is not rebutted by the evidence in the case they must Where the party is held as a promisor or a second indorser, find for the plaintiff in the issue joined between her
it is not necessary to allege or prove any other than the original consideration, but if it is attempted to hold
and the last-named defendant. (2) That the court m as guarantor, a distinct consideration must appear. erred in excluding the testimony of the two defendTRROR to the Supreme Court of the Territory of ants called as witnesses by the defendant who apV Colorado. The action was one of assumpsit upon peared and went to trial. a promissory note brought by Ida Martin against Par Decided cases almost innumerable affirm the rulo ker B. Cheney, William M. Shephard and John Good, that if one not the promisee indorses his name in and payable to the order of Alexander Davidson. blank on a negotiable promissory note before it is inCheney and Shephard were makers of the note and dorsed by the payee and before it is delivered to take Good indorsed the same. Other facts appear in the effect as a promissory note, the law presumes that he opinion. The case is reported below in 1 Colorado, at intended to give it credit by becoming liable to pay it pages 105 and 406.
either as guarantor or as an original promisor. BryMr. Justice CLIFFORD delivered the opinion of the unt v. Eastman, 7 Cush. 113; Benthal v. Judkins, 13 court.
| Meto. 267; Colbun v. Averill, 30 Me. 317. Decisions of a conflicting character exist as to the Different courts, as remarked in that case, hold difnature and legal effect of the obligation which a third ferent views in respect to the question here involved, person assumes who indorses his name in blank on a | but all concur that such an act constitutes a contract negotiable promissory note before the payee and be which is to receive a reasonable and an available confore the instrument is delivered to take effect. Courts struction. Great conflict exists in the decided cases, of justice in some jurisdictions hold that such a but the better opinion is that there are certain genparty is a second indorser even though it be true eral rules and principles to be followed in the interthat the payeo may never indorse the instrument, 'pretation of such a contraot, which, in the absence of other evidence, will lead to satisfactory results, even tract of the maker with the payee for further indulamid the conflicting decisions.
gence or forbearance, he can only be held as guarBeyond all doubt the contract should be construed antor, which can only be done where there is legal as it was at the time it was made. If made at the in proof of consideration for the promise, unless it be ception of the note it is presumed to have been for shown that he was connected with the inception of the the same consideration and a part of the original con- | note. tract expressed by the note. If made subsequently to 3. But if the note was intended for discount and hethe date of the note and without a prior indorsement | put his name on the back of the note with the underby the payee, it will be presumed that it was not made standing of all the parties that his indorsement would for the same consideration, and the party, if liable be inoperative until the instrument was indorsed by the at all, will be regarded as a guarantor. Such a con- | payee, he would then be liable only as a second intract to guarantee the debt of a third person must be dorser in the commercial sense, and as such would in writing and there must be sufficient proof of the clearly be entitled to the privileges which belong to such consideration. Brewster v. Silence, 4 Seld. 211; Leon an indorser. ard v. Vredenberg, 8 Johns. 28; Hall v. Farmer, 5 Considerable diversity of decision, it must be adDenio, 484.
mitted, is found in the reported cases where the recThese remarks apply where the third person indorses ord presents the case of a blank indorsement by a the note before the payee, but where such a person in- :| third party, made before the instrument is indorsed dorses the note after a priorindorsement by the payee, by the payee and before it is delivered to take effect, the law presumes it to have been done in aid of the the question being whether the party is to be deemed an negotiation of the note, and the party will be regarded original promisor, guarantor or indorser. Irreconas a subsequent indorser, the rule being that if the cilable conflict exists in that regard, but there is indorsement is without date it will be presumed to one principle upon the subject almost universally have been made at the inception of the note. Ranger | admitted by them all, and that is that the interpretav. Cary, 1 Metc. (Mass.) 373; Noxon v. De Wolf, 10 tion of the contract ought in every case to be such as Gray, 760; Collins v. Gilbert, 4 Otto, 760.
will carry into effect the intention of the parties, and Irregularities of the kind in the execution of prom- in most cases it is admitted that proof of the facts issory notes are noticed by Judge Story in bis work and circumstances which took place at the time of ou Promissory Notes, and he says that the maker and the transaction are admissible to aid in the interpresuch a party are both to be deemed original prom- tation of the language employed. Law Rep., 5 Q. B. isors and the note a joint and several promissory note 475. to the payee, although as between the maker and the Facts and circumstances attendant at the time the other party they stand in the relation of principal contract was made are competent evidence for the and surety. Standard authorities too numerous for | purpose of placing the court in the same situation and citation here are referred to by the author in support | giving the court the same advantages for construing of the proposition. Story on Promissory Notes, $ 58; the contract which were possessed by the actors. Sylvester v. Downer, 20 Vt. 358; Lewis v. Harvey, 18 | Cavazos v. Trevino, 6 Wall. 781. Mo. 76; 1 Pars. on Cont. (6th ed.) 243.
Courts of justice may acquaint themselves with the None will deny, it is presumed, that the cases cited | facts and circumstances that are the subjects of the sustain the proposition where the third person in- statements in the written agreement and are entitled dorses his name in blank on the note at the time when to place themselves in the same situation as the parit was made and before it was indorsed by the payee, ties who made the contract, so as to view the circumand the same learned author admits that the rule stances as they viewed them and so to judge of the would be otherwise if the party actually wrote bis meaning of the words and of the correct application name at a subsequent period, unless it was done in com- | of the language to the things described. Shore v. Wilpliance of an agreement made before the note was son, 9 Cl. & Fin. 569; Clayton v. Grayson, 4 Nev. & executed. Haukes v. Phillips, 7 Gray, 286; Leonard Man. 606; Addison on Cont. (6th ed.) 918; 2 Taylor's v. Wilder, 36 Me. 268; Champion v. Griffith, 13 Ohio, Ev. (6th ed.) 1035. 239. Prior decisions of this court are to the same Evidence to show that the indorsement of the deeffect, as appears by the following citation: Rey v. fendant in this case was made before the instrument Simpson, 22 How. 350.
was indorsed by the payee or delivered to take effect When a promissory note made payable to a particu- | was admitted without objection, but it is not neceslar person or order is first indorsed by a third person, sary to rest the decision upon that suggestion, as it is such third person is held to be an original promisor, clear that the evidence would have been admissible guarantor or indorser, according to the nature of the even if seasonable objection had been made to its comtransaction and the understanding of the parties at petency. Hopkins v. Leek, 12 Wend. 105. the time the transaction took place.
Like a deed or other written contract, a promissory 1. If he put his name in blank on the back of the note takes effect from delivery, and as the delivery is note at the time it was made and before it was in- something that occurs subsequent to the execution of dorsed by the payee, to give the maker credit with the the instrument, it must necessarily be a question of payee, or if he participated in the consideration of fact when the delivery was made. Parol proof is, the note, he must be considered as a joint maker of therefore, admissible to show when that took place, as the note. Schneider v. Schiffman, 20 Mo. 571; Irish v. it cannot appear in the terms of the note. 2 Taylor's Cutler, 31 Me. 537.
Ev. (6th ed.) 1001; Hall v. Cazenove, 4 East, 477; Cooper 2. Reasonable doubt of the correctness of that rule v. Robinson, 10 Mees. & Wels. 694. cannot be entertained, but if bis indorsement was Opposed to that the suggestion is that if a holder subsequent to the making of the note and to the de- produces a note having a blank indorsement of one livery of the same to take effect, and he put his name not the payee, the presumption is that it was made at there at the request of the maker, pursuant to a con- | the inception of the instrument. Childs v. Wyman,