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v. Merriweather, 11 East, 375, n.; Bateman v. Black, Swansey, 10 Metc. 363, where it was held that a 18 Q. B. 870; Campbell v. Lang, 28 Eng. L. & Eq. person traveling on the Lord's day could not re30. A road may be lawfully laid out or dedicated cover for injuries received from a defect on the highto public use as a highway, though it have, at one way, unless he could show that he was traveling end, no outlet, and abut on private property. Peo- from necessity or charity, and that the burden was ple v. Kingman, 24 N. Y. 560; People v. Van Alstyne, on him to bring himself within the excepted cases. 3 Keyes, 35. The case of Wiggins v. Tallmadge, 11 Jones V. Andover, 10 Allen, 18; Stanton v. MetropoliBarb, 457, contains a very careful discussion of the tan R. R. Co., 14 id. 485, where the same rule was question, and the same conclusion is reached as in applied to one traveling by a horse car; Bennett v. the principal case. In the case of Holdane ů. Trus- Brooks, 9 id. 118; Connolly v. Boston, 117 Mass. 64; tees of Cold Spring, 23 Barb. 103, it is stated in the see, also, McGrath v. Merwin, 112 id. 467; Cratty leading opinion that a cul de sac is not susceptible of v. City of Bangor, 52 Me. 423; 2 Am. Rep. 56; dedication as a highway. This was a general term McClary v. Lowell, 44 Vt. 116; 8 Am. Rep. 366, and decision, participated in by three judges, two of note at p. 367; Sutton v. Wauwatosa, 29 Wis. 21; whom held in accordance with the doctrine of the 9 Am. Rep. 534, and note at p. 544. The court cite, opinion and one did not. The case on this point is as sustaining the doctrine, Heland v. Lowell, 3 Allen,
by the Court of Appeals in People v. King- 407, where it was held, that a person driving across man, supra. It has, however, been doubted in a bridge unlawfully, faster than a walk, could not numerous cases, whether a cul de sac can be a public recover for an injury to his horse, caused by slipping highway. Abbott, C. J., in Wood v. Veal, 3 B. & into a hole in the floor of the bridge. But the rule Ald. 454, says: “I have great difficulty in conceiv- in such cases seems now to be that, unless the violaing that there can be a public highway which is tion of the law by plaintiff contributed to the injury, not a thoroughfare, because the public at large can he can recover. See note to Klipper v. Coffey, not well be in the use of it.” The point was not 44 Md. 117; 15 Alb. L. J. 402. decided in this case. See, also, Woodyer v. Hadden, 5 Taunt. 142, where the opinion of Lord Kenyon,
The case of Inhabitants of Hyde Park v. Gay, at in Rugby Charity v. Merriweather, supra, is ques
| p. 589 of the same volume, which was an action for tioned by Lord Mansfield, and King v. Marquis of
| the destruction of fire hose, is another application Devonshire, 4 Ad. & El. 968.
of the same statutes. On Sunday morning, before daylight, the fire department of a town, for the
purpose of extinguishing a fire, ran hose from a The law reports of the New England States con river across a railroad track, which hose was cut in tain numerous cases involving different subjects, but two by a gravel train, owned by defendant. There which are decided upon a single ground. We refer were no signals given to warn approaching trains to wbat may be, for convenience, classed as the Sab- of the position of the hose. The court held that bath-day cases. Each of the States mentioned has the persons in charge of the hose had a right, in the statutes forbidding secular labor upon the first day absence of positive information, to expect that no of the week. These statutes were undoubtedly origi train would be run on that day, and that a refusa nally intended to secure religious uniformity, but to charge that danger signals should have been the modern excuse for them is, that they are for the made in either direction, was rightly refused. It purpose of insuring quiet on a day that the majority held, also, that if the running of the train on Sunof people abstain from labor. They are, however, | day, in violation of law, was the direct cause of generally disregarded, and only show their exist- | the injury, the action could be maintained without ence when they can be used as a defense to some showing further proof of negligence on the part of just claim that otherwise would sustain an action. | defendant. The distinction between the two prinThere are two cases in the 120th Massachusetts cipal cases mentioned is, that in one instance plaintiff Reports, just issued, in which this defense was was violating the law, and it was immaterial whether pleaded. In Smith v. Boston & Maine R. R. Co., p. defendant was or not. In the other case, when 490, plaintiff, while traveling through the streets of | plaintiff was not violating the low, the violation of Boston on Sunday, was injured at a railroad cross it by defendant was in itself negligence, making ing, through the negligence of the servants of the him liable, and plaintiff was not negligent in not railroad corporation who were operating the road on taking precautions against the contingency of such that day. It appeared that he was at the time violation. See further upon the general subject, going to ascertain whether a house which he had note to Meader v. White, 15 Alb. Law. Jour. hired, and into which he intended to move the next 403; Whelden v. Chappel, 8 R. I. 230; Melchoir v. day, had been cleaned. The court held that this McCarthy, 31 Wis. 252; 11 Am. Rep. 605; Feital was neither a work of charity, nor of necessity, and v. Middlesex R. R. Co., 109 Mass. 398; 12 Am. Rep. that plaintiff could not recover for his injuries. The 720; Hall v. Corcoran, 107 Mass. 251; 9 Am. Rep. decision is sustained by the cases of Bosirorth v. I 30; Hill v. Wilker, 41 Ga. 449; 5 Am. Rep. 510.
some other form, then the plaintiff might have INDORSEMENT OF NON-NEGOTIABLE PAPER
written over the name such a contract as would BY ONE NOT A PARTY.
carry into effect the intention of the parties.” In THE cases of Hahn v. Hull, 4 E. D. Smith, 664 ; Hall v. Newcomb, Cowen, J., says: “The question 1 Waterbury v. Sinclair, 16 How. 329; Moore v. depends entirely on the fact of negotiability * * Cross, 19 N. Y. 227; Lester v. Paine, 39 Barb. 616; 1 * ut res magis valeat quam pereat." Bacon v. Burnham, 37 N. Y. 616; Meyer v. Hibsher, In Seymour v. Van Slyck, 8 Wend. 403, Albany, 47 id. 265; Phelps v. Vischer, 50 id. 69; Hull v. Marvin, 1832, Sutherland, J., uses the following language in 2 T. & C. 420; Clothier v. Adriance, 51 N. Y, 322; reference to a non-negotiable note indorsed by the Woodruff v. Leonard, 4 T. & C. 208; 8. C., 1 Hun, payees: “The indorsement in such a case is equiva632, and Weld v. Bowns, 9 Daily Regr. 921, have lent to the making of a new note; it is a guaranty finally and effectually settled the law in this State, that the note will be paid - it is a direct and posithat one, other than the maker, who indorses a tive undertaking, on the part of the indorser, to negotiable promissory note before its delivery to pay the note to the indorsee, and not a conditional the payee, is presumptively a second indorser, and | one to pay if the maker does not, upon demand, is entitled to all the rights, privileges and exemp after due notice. Chitty on Bills, 142; Strange, tions incident to that situation; that prima facie | 478; 3 East, 482; 6 Cranch, 222; 4 Mass. 258. The he is not liable to the payee, whose name precedes indorser in such a case, I apprehend, is not entitled his on the note, but only to subsequent indorsers ; to the usual privilege of an indorser of negotiable that an action upon such a note by payee against paper; he stands in the relation of principal and not indorser may nevertheless be maintained, provided surety to his indorsee. * * * An absolute guarthe former shows (which he may do by parol) that anty may be written over his indorsement upon the apparent relative situation of the parties is not which a recovery may be had against him. 12 Johns. the real one, and that the payee took the note | 159; 17 id. 326." from, and gave credit or parted with value to the
White v. Lou, 7 Barb. 204, was a Special Term maker with the knowledge of the indorser and decision in 1849. The suit was brought by a upon the faith of his indorsement. At first it was receiver of a bank as owner of a non-negotiable held that, as the payee is presumably liable to the
note against the maker and payees (indorsers) indorser, he must, in order to recover of him and to
charging the latter as indorsers and as guarantors. avoid circuity of action, indorse the note without The indorsers demurred. Hand, J., seemed to think recourse, and could do so even at the trial, but they could be treated as indorsers and that they since Moore v. Cross, supra, this requirement has should not be held in any other capacity. “But, been abandoned, and it is now held that having although not negotiable,” he says, “by indorsing it the right so to indorse it will be presumed to be the note) they conferred upon the Canal Bank such done and treated as if done, and therefore in fact right of action as against themselves. Story on Bills, need not be done at all.
$ 199; Chitty on Bills, 196, 241, 242; Seymour v. Van But as to non-negotiable paper a different rule Slyck, 8 Wend. 404; Hill v. Lewis, 1 Salk. 132. And has prevailed. The doctrine which has grown up see Phinley v. Westley, 2 Bing. N. C. 249." in New York on this point seems to have been The doctrine in this case on the main point seems grounded upon the earlier cases, and notably that contrary to the general current of authority and has of Josselyn v. Ames, 3 Mass. 273, where it was held not since been followed. that an indorsee for value of a non-negotiable note The question came up squarely in Griswold v. Slomay write over the name of the indorser a promise cum, 10 Barb. 402, Albany General Term, 1851. The to pay the contents of the note to the indorsee, action was against the indorser of a note made by who may thereupon sue the indorser upon such S. & Co. payable to the plaintiff. The complaint was promise. This was practically turning the indorser in the usual form of indorsee against indorser. The into a maker.
defendant claimed to be liable only as second The cases of Dean v. Hall, 17 Wend. 219; Seabury | indorser. Per Parker, J.: “The defendant canv. Hungerford, 2 Hill, 84, and Hall v. Newcomb, 3 id. not be charged as indorser because the promissory 233, though all suits on negotiable paper, contain note is not negotiable. * * * The defendant suggestive dicta on this question. In Dean v. Hall, put his name on the note as security at the time the Judge Cowen says: “Where the defendant is privy note was made and before its delivery to the plainto the consideration and indorses a note not negoti- tiffs. I think the law well settled that under such able * * * the declaration may then charge the circumstances the defendant may be held liable as defendant directly as maker.” In Seabury v. Hun-maker or guarantor; unless he is thus liable he gerford, Bronson, J., says: “If the note had not escapes all liability on his contract. His name is been negotiable, or if * * * the defendant placed on the back of the note, but he is not strictly could not have been charged as indorser, and there an indorser, because a legal indorsement can only had been an agreement that he would answer in 'be made on a negotiable note. * * * The dis
tinction in this respect between paper negotiable back, yet the precise locality of their respective and not negotiable has been plainly recognized, signatures is immaterial. The opinion is full, citing and is now well established. All the conflict of numerous authorities, especially Moies v. Bird, 11 authority has been in regard to negotiable paper. Mass. 436; Griswold v. Slocum, supra; Lake v. There has been none in regard to paper not nego McVean (an unreported case), and Chitty on Bills, tiable,” quoting Josselyn v. Ames, Dean v. Hall, 177. . Seabury v. Hungerford, and Hall v. Newcomb, supra. This case went to the Court of Appeals, and was Watson, J., dissented.
there affirmed. 1 Keyes, 576. The opinions were The decision was in conformity with the rule laid | written by Hogeboom and Davies, JJ. Hogeboom, J., down in Story's Prom. Notes, $ 473, 6th ed., and cases says, that it was fair to infer from the evidence that cited, that "if the blank indorsement was made at the | the defendant was not contemplating the continsame time as the note itself, the indorser ought to gent liability of an indorser, “ for the law, which he be held liable as an original promisor or maker of is presumed to know, did not admit of such a relathe note, and that the payee is at liberty to write tion, but rather that he would indorse the paper by over the blank signature, “For value received I writing his name upon the back of it and contract undertake to pay the money within mentioned to thereby such relations to the other parties to the B. (the payee)."
paper as such a signature would confer or entail The next case in this State was Richards v. War upon him. * * * He designed, then, to be a ring, 39 Barb. 42, 1863, Schenectady General Term. surety of the makers to the payee, and may be held The note here was similar in form to the one in in that character. * * * He is in effect a maker Grisuold v. Slocum, and no steps had been taken to ) of the note, an original party to the i charge the defendant as indorser. Per Potter, J.: whose name, equally with that of the other makers, “What then is the legal effect to one who writes his was intended to give currency and credit to it in name, without any thing more, upon the back of a the hands of the payee, and on the faith of whose promissory note not negotiable, which is thereupon signature, either as principal or as surety for the transferred to the payee named in the note, and who other makers, the paper was discounted. The sigat the time of the delivery thereof to him parts with nature on the back of the instrument is not inconthe full consideration mentioned in it, upon the sistent with his liability as maker, if he in fact incredit of the note?” After defining an indorsement tended to assume that character.” The opinion as the writing of one's name on the back of or concludes with an approval of the rule laid down across a note, etc., by which the property in the in 1 Abb. Dig. 491 (new ed.), viz.: “If the note same is transferred, the court say: "This effect, be not negotiable, the payee is authorized to overthat is, a transfer is not wrought upon a note not write a contract of guaranty, on an original promnegotiable, by a signature across the back of it. The ise to pay the note over the name indorsed, and title, or property, does not pass by merely writing may maintain an action thereon. Because, unless the name thus upon it. * * * The note is thereby the indorsement is held to imply such an authority, not transferred. * * * Not being such an it is wholly inoperative and senseless, as there can be indorser as to pass the title * * * the defendant no liability as indorser in strictness, of a non-negois not liable as such. But did not the defendant | tiable note.” therefore make any contract with the payee by so Davies, J., says: “When a party writes his affixing his name to the note? * * * It is name on the back of a note not negotiable, as there insisted, and with great force, that he intended only | is no contract of indorsement, the courts endeavor to bind himself as indorser, and not otherwise, and to prevent the utter failure of the contract by givthat the court cannot make another contract for ing it effect in some other way, as by allowing the him. It is clear that he put his name on the note, holder to overwrite the indorser's name, with the knowing that the money was to be obtained on the real contract implied by law, or recover against note from Richards (payee). It is equally clear that him as a maker or guarantor of the note.” Cithe knew his name was wanted to give credit to the ing Edwards on Bills, 167, 230, and cases cited note to Richards." After reasoning that the legal above. presumption as to the intent of the defendant is! The last reported case in this State was Cromwell opposed to the contract of an indorser, and that his v. Hewitt, 40. N. Y. 491, 1869. This case differed from signature warrants the legality of the contract, and Griswold v. Slocum and Richards v. Warring, in that that the only other parties to such a note are maker there the actions were by payees against indorsers, and guarantor, and that he could not be held liable who were charged as makers or joint promisors, as the latter, the conclusion is reached that the whereas here was a suit against the payee (who had defendant is a maker or joint promisor; that the indorsed to the plaintiffs), seeking to hold him as law prescribes no place for the signatures of maker guarantor. No steps had been taken to charge him and indorser, and that although it is customary as indorser. The court below held the suit could for the one to sign on the face and the other on the 'not be maintained. On appeal the judgment was reversed upon the authority of Richards v. Warring. | that the note may be made subject to an indorser's This was carrying out the doctrine of the previous contract does not make it subject thereto when it is cases to the fullest extent.
delivered. The payee may choose * * * not to There are two considerations, however, in refer indorse at all, and * * * the paper will never ence to this question which must be borne in mind, come into a negotiable state." viz. :
II. In all the cases in this State upon non-negoI. The prima facie and presumptive liability in- tiable paper, the exact relation of the parties and the curred by the technical indorsement of commercial circumstances and purpose of the indorsement were paper generally (by the payee or otherwise), accord | fully ventilated, and were the subject of evidence ing to our New York rule, depends entirely upon aliunde, upon the trial. But none of the decisions the form of the paper at its inception -- as contra have as yet gone so far as to declare the effect of the distinguished from the doctrine of other States, bare indorsement of paper non-negotiable in form which in this respect place non-negotiable paper by one not a party, and the presumptive liability of and paper negotiable but not negotiated on the such an indorser to the payee prima facie, and unsame footing. This latter rule was sought to be supported by any proof whatever, nor have we been established in this State in the earlier cases, but has able to discover any decision on this point. Vide been overslaughed, as we have seen. The New Reporter's note, 40 N. Y. 496; Rothschild v. Grix, York distinction has not escaped criticism. The supra, 156. learned reporter of 40 New York, in an able and The question arose in a late case, Lynch v. Lery, exhaustive note to Cromwell v. Hewitt, 494, says: N. Y. Sup. Ct., Gen. Term, May, 1877, not yet re. “Indeed, if it be true," as stated by the Chancellor ported. The complaint was upon a note made by in 7 Hill, 416, “that when & man writes his name one C., payable to the plaintiff, and alleged “that upon the back of a promissory note, he only agrees the defendant then and there and before the deliv. that he will pay the note to the holder on receiving ery of said note to the plaintiff, indorsed the same due notice that the maker, upon demand made at | to the plaintiff for value; that said note was afterthe proper time, has neglected to pay it, can he be ward, and before the commencement of this action, properly held to any greater or other liability in delivered to the plaintiff herein for value, and the the case of one non-negotiable in form? And is it plaintiff became and now is the owner thereof for really much more difficult to presume this to be his value ;” and alleged demand, notice and non-paycontract, when he indorses a note made payable to ment. The defendant demurred for insufficiency. the payee alone, than when he has indorsed his Plaintiff obtained judgment on motion, on the name, before delivery to the payee, upon paper nego- ground of the frivolousness of the demurrer, from tiable in form, hut, of course, as yet as utterly in- which judgment defendant appealed. On the argucapable of being indorsed by him as first indorser, ment the question was discussed from the standand liable as such to the payee, as if it contained point of both negotiable and non-negotiable paper. no negotiable words ?”
It was urged on behalf of the appellant and inIn Rothschild v. Grix, 31 Mich. 150, 1875, the Su- dorser, that a note must be sued on according to its preme Court of Michigan, per Graves, Ch. J., after legal import (Bishop v. Hayward, 4 Term R. 471; reviewing the decisions of the various States on the Collins v. Everett, 4 Ga. 274); that if the effect of general question of indorsements by third parties, the indorsement of a non-negotiable note by one uses the following language in reference to the dis not a party, be to authorize the payee to overwrite tinction adopted in New York: “The reasoning on the name of the indorser with the obligation or conwhich the distinction proceeds does not seem quite tract agreed to be assumed, or with an original clear and convincing, * * * and it neither re- promise to pay the note, yet the plaintiff could gards any extrinsic arrangement nor understanding not recover until he should first overwrite such bearing on the quality of the undertaking, nor the indorsement, and declare upon the overwritten circumstances that when the backer's contract is contract (Castle v. Candee, 16 Conn. 232; Labcomplete and defined by delivery to the payee, theron v. Woram, '1 Hill, 93; Seabury v. Hungerford, words of negotiability still remain dormant, and the 2 id. 84; Josselyn v. Ames, supra); that alleganote without an indispensable quality to make it tions charging one as indorser are not sustained by presently negotiable. Now the backer's contract proof of a contract or liability as maker (Dean v. takes effect simultaneously with that of the party Hall, supra; Cottrell v. Conklin, 4 Duer, 45; Heffer who signs upon the face, and the right of the payee v. Alden, 3 Minn. 335; Parkinson v. McKim, 1 Pinagainst each inures at the same time, * * * the ney [Wis.], 214; Perry v. Barret, 18 Mo. 140); that contract relation of the backer to the payee is con where the obligation charged is one which the law stituted at the outset. If the backer's attitude to does not recognize in the form as charged, the conthe payee is not then that of indorser, it cannot | tract is presumed to be a nullity, and allegations grow into it by mere lapse of time. The possibility and evidence aliunde are necessary to give it vitality
and effect (Second Nat. Bank v. Miller, 63 N. Y. 639); So far as presumptions of intent are to be inand that if the instrument sued upon is one which dulged in, they must be judged from the surroundcannot be the subject of a valid legal indorse- | ing circumstances; the place of the signature is one ment, then a declaration charging the indorser of circumstance, the form of the note another. 2 such an instrument upon his assumed contract of Caines, 343. He who indorses a note upon the indorsement fails to charge him legally at all. back can scarcely be presumed per se and prima facie
The judgment was affirmed, but the question of to intend to bind himself primarily and as an orignon-negotiability was not passed upon or consid- inal promisor, equally with one who signs on the ered. After reciting the allegations of the com- | face. plaint, the opinion proceeds as follows: “It may be Take a note drawn by A to B or order, and supposed from these averments that the credit was indorsed by B, the payee, to C, and payable in mergiven either to the maker or the defendant, on the chandise or Canadian bank notes. This is a nonstrength of the latter's indorsement, but it matters negotiable note. Now, does it sound reasonable to not which, so far as the defendant's liability is con- say, that when B, the payee, indorses that note, he is cerned. The allegations are therefore sufficient, al- presumed to intend to make himself primarily liable though signalized by the words “for value,' to ex- | as an original promisor and a joint maker? Vide 2 press the fact that a consideration moved to the Kans. 527; 1 Nev. 386. The theory of indorsement defendant from the plaintiff, for the indorsement, is opposed to the idea of primary liability. It is and that the plaintiff was not in any sense bound backing or guaranteeing the contract of another. to the defendant by reason of his relation to the The indorser does not promise that he will pay, but paper." The opinion also suggests that the proper that the maker will pay; the presumption from the remedy for the defendant was a motion to make the place of the respective signatures is, that the debt complaint more definite and certain. The cases is the debt of the maker. In South Carolina, the cited are Moore v. Cross and Woodruff v. Leonard, indorsement of non-negotiable paper is equivalent supra; Prindle v. Caruthers, 15 N. Y. 426, and to a guarantee of the solvency of the maker. 3 McBenson v. Couchman, 1 Code, 119. These cases can Cord, 236; 1 Hill's L. R. 58; 1 Nott & McCord's L. scarcely be said to affect non-negotiable paper; and R. 128. So in Connecticut, 4 Conn. 124; 26 id. 437; the reasoning of the decision would seem to be 32 id. 378. In Tennessee such an indorser is only equally if not more applicable to negotiable paper. liable upon special contract, or where he transfers The allegations of indorsement were doubtless equiva-paper fraudulently. 3 Humph. 171; 6 id. 303; 3 lent to saying that the defendant wrote his name | Sneed, 49; 3 Caldw. 429. For a further expoacross the back of the note and received value for sosition of the law of other States see Redf. & H. doing, thereby contracting a liability which the law Leading Cases on Promissory Notes, and reporter's declares to be that of a maker or joint promisor, | note, 40 N. Y. 494. and that the averments of demand, notice, etc., The result of the various decisions, however, could be regarded as mere surplusage, as in Griswold seems to be as follows, viz. : that except in the v. Slocum, supra, as to the effect of allegations of technical sense of the words there is no such thing in indorsement for value. Vide Smith v. Smith, 5 Jones this State as indorser or indorsement of non-nego& Sp. (Super. Ct.) 203.
tiable paper; that the blank subscription of one's Notwithstanding the apparent harmony in the name upon or across such paper constitutes the various decisions in this State, it is noticeable that subscriber presumptively & co-maker or joint the conclusions are not always based upon the same promisor and surety of the maker, and he can be reasoning, nor do they lead to the same identical declared and recovered against as such; that a result. In Griswold v. Slocum, the third party in consideration is not presumed and must always be dorser of non-negotiable paper is styled a guarantor ; | alleged and established; that proof of an intent in Richards v. Warring (in Supreme Court), a joint to subscribe strictly as indorser, and to be liable promisor, and the same case in the Court of Ap only as such, is repugnant to the form of the conpeals, a surety.
tract, and will not be received; that subject to The elements of non-negotiability in commercial this rule the parties may severally show and claim paper are usually found in three principal classes or the benefit of the exact agreement and understandkinds of notes, viz. : 1. Where the note is drawn ing upon which the indorsement was made; that and reads in all other respects like ordinary nego- | the holder of the note may overwrite the name of tiable business paper, but the maker has affixed his the blank indorser with such agreement or underseal. 2. Where the payment is to be made in other standing, or with a contract of original promise, or than the ordinary currency or money of the country. I guaranty, or suretyship, and may recover upon 3. Where the note is not drawn to order or bearer, such overwritten contract; and finally, that the but to the payee alone, by name. The decisions in this maxim ut res magis valeat quam pereat, applies. State are all based on the last-named class of notes.
J. C. L.