ST. LOUIS, JANUARY 7, 1887.

CURRENT EVENTS.

A MERRY CHRISTMAS AND A HAPPY NEW YEAR. We hope we are not belated in offering to our readers the compliments of the season. Our publication days unfortunately did not fall within the festive period, but as good wishes, like most other good things, are always in order, we take the liberty of tendering our respects, nunc pro tunc.

We do this with the more confidence, as our efforts to please our readers have met with such unmistakable approval. So far as we have been able to ascertain, the management of the JOURNAL has given entire satisfaction to its subscribers. In the language of Mr. Webster, "the past at least is secure," but with that we are not content. We will use our utmost exertions to render the paper still more acceptable and interesting to its readers, and more worthy of the liberal patronage which it has heretofore received.

The general plan of the JOURNAL is, of course, well-known to its readers. We furnish every week a very full, carefully prepared, and comprehensive digest of the most select and important of the recent decisions of all the courts of the last resort. In each number we publish in full one, two, and sometimes three cases, carefully selected and annotated by experienced writers, more accurately and exhaustively than those published by any other legal journal on either side of the water.

These features of our JOURNAL, we think, render it an efficient, and decidedly preferable substitute for any or all of the numerous "Reporters" that have sprung up throughout the country. Life is too short for a busy practitioner to wade through the great mass of decisions ground out daily by nearly fifty courts of the last resort throughout the United States. What the busy lawyer needs is a law journal that will relieve him of that drudgery. This the CENTRAL does, and proposes to do by winnowing the immense mass of legal matter, throwing out the chaff and presenting the valuable portion in an available form. And whenever the matter which we furnish on any par. Vol. 24-No. 1.

the purposes of the reader, he will always find a distinct reference to the full case published elsewhere, which he can obtain with but little expense.

Besides all this, in our department of "Current Events" we furnish our readers with editorial comments on matters of general professional interest; in that of Notes of Recent Decisions with abstracts of current leading cases with notes and comments; and in our "Leading Articles" with original essays by contributors of ability, learning and experience on subjects of interest to the practitioner. These departments alone are worth the subscription price of the JOURNAL, and in this connection we may add that the CENTRAL LAW JOURNAL, in our judgment, furnishes more good matter for less money than does any other legal journal whatever.

THE LIBERTY OF THE PRESS AND THE ABUSE OF IT.-We learn from a recent newspaper that Mr. Gladstone, Cardinal Manning, the Archbishop of Canterbury, and other gentlemen of distinction, have requested the newspapers of London to discontinue the practice of publishing the details of the testimony in divorce and criminal trials. It is not a little discreditable to the press, and, still more to the law, and to its administration that such a request from persons of such distinction, or indeed from anybody else, should become necessary, or appropriate. The law should speak on this subject in a voice potential and mandatory. The reports of recent divorce trials in England have been as distinctly "obscene literature" as anything which ever called out for its suppression the powers of the police. The newspapers should not be requested to abstain from the publication of such matter; they should be forbidden, and disobedience should be followed by condign punishment. If the law is not strong enough, it should be made stronger, and its enforcement should be made the special duty of the proper officers of the law.

We have the highest respect for the liberty of the press-and an abhorrence not less vivid of its abuse. It is not the liberty of the press, but an undoubted abuse of it to publish in detail matters occurring in a court

of justice, which, emanating from any other source would, under existing laws, subject the publisher to heavy penalties, and severe punishment.

The reform is not less needed on our side of the water, and if possible there is even less excuse for the practice here than in England. The plea that courts are open, and the public entitled to know every thing that takes place within them, does not apply in this country, with reference to English courts. We need not care whether in England divorce trials are conducted with closed doors or not, it is no affair of ours. There is even less excuse for our newspaper press than for that of England, and yet almost every newspaper in the country has recently had column after column of cablegrams setting forth in detail, testimony tending to show that a husband or wife has been faithless, and how, and why, and when, and where, and all about it. There is manifestly a need of some careful, but stringent legislation on this subject.

NOTES OF RECENT DECISIONS.

FROM

CONDITIONAL SALES PURCHASER VENDEE WHERE NO TITLE PASSES.-The Supreme Court of the United States has recently laid down the law on the subject of conditional sales. The vendor, a manufacturer of steam engines and saw-mills, seems to have had very little faith in the vendee, or any body else, and by the terms of the contract seems to have exhausted the vocabulary of caution, and multiplied conditions and penalties to a degree hitherto unparalleled; indeed, as far as human ingenuity could effect it, he "took a bond of Fate." Nevertheless, the vendee failed to come to time, and sold the engines and saw mills to a purchaser, from whom the original vendor sought to recover the value of the property so sold.

The supreme court adopts Lord Blackburn's rules: "1, that where, by the agreement, the vendor is to do anything to the goods before delivery, it is a condition precedent to the vesting of the property; 2, that where anything remains to be done to the goods for ascertaining the price, such as

1 Harkness v. Russell, 7 S. C. Rep. 51.

This rule is very generally applied in cases of sales at auction. And in the very common case of sales upon installments the same principal has been held in England. In this connection the court remarks, that although these cases are supported by local custom and usage they nevertheless show that the intention of parties will be sanctioned when it is not contrary to the policy of the law. The policy of the English bankruptcy law is to regard as the owner of chattels one who has them in his "possession, order or disposition," and hence a vendor could not set up a conditional sale against the assignee in bankruptcy of his vendee. Apart, however, from any complication with the bankruptcy laws, the principle is fully established in England in conformity with the rules already cited from Lord Blackburn and Mr. Benjamin.

In America, too, it is well settled that if the parties agree that the title shall not pass until the condition be fulfilled, the law will respect their intention, always provided that such agreement contravenes no statute of the State. In the last cited case, the court holds that a sale and delivery of goods on condition that the title shall not vest until

2 Blackb. on Sales, 152.

3 Benj. on Sales, (2d ed.) 236; Id. (3d ed.) § 320. The author cites for this proposition Bishop v. Stillito, 2 Barn. & Ald. 329, note a; Brandt v. Bowlby, 2 Barn. & Adol. 932; Barrow v. Coles, (Lord Ellenborough,) 3 Camp. 92; Swain v. Shepherd, (Baron Parke,) 1 Moody & R. 223; Mires v. Solebay, 2 Mod. 243.

4 Lament v. Duval, 9 Q. B. 1030.

5 Ex parte Crawcour, L. R. 9 Ch. Div. 419; Crawcour v. Salter, L. R. 18 Ch. Div. 30.

6 Holroyd v. Gwynne, 2 Taunt. 176; Horn v. Baker, 9 East. 215.

7 Hussey v. Thornton, 4 Mass. 404; Marston v. Baldwin, 17 Mass. 606; Barrett v. Pritchard, 2 Pick. 512; Coggill v. Hartford, etc. Co., 3 Gray, 545; Sargeant v. Metcalf, 5 Gray, 306; Deshon v. Biglow, 8 Gray, 159; Whitney v. Eaton, 15 Gray, 225; Herschorn v. Canney, 98 Mass. 149; Chase v. lugalls, 122 Mass. 381.

PERSON-CHARACTER OF THE LIABILITY ASSUMED.

8

The cases cited, it will be observed, are all Massachusetts cases. The same doctrine prevails in Connecticut. In New York, the rule is the same, so far as relates to the vendee and his creditors, though it is not so clear as affecting a bona fide purchaser. In several cases it was held in New York that the rule did not apply to a bona fide purchaser from the vendee without notice of the condition.10 These cases are regarded by the Supreme Court of the United States as overruled by that of Ballard v. Burgett," but its reasoning does not appear to us to be perfectly clear.12 In Pennsylvania, the doctrine is that if a delivery be made to a bailee with the option of purchasing, the vendor's title may be asserted against the creditors of the bailee or purchasers from him, but if there is a sale upon condition that the title shall not pass until the are paid for, they are are subject to executions in favor of the bailee's creditors and are transferable to bona fide purchasers. 13

We have not space to pursue further this interesting topic, but will conclude our present remarks by saying that, in the absence of express statutory provisions, the rules stated by Lord Blackburn and Mr. Benjamin, and followed by the court in the case under consideration, are in full accord with legal principles and supported by abundant authority.

8 Forbes v. Marsh, 15 Conn. 384; Hart v. Carpenter, 24 Conn. 427.

9 Haggerty v. Palmer, 6 Johns. Ch. 437; Strong v. Taylor, 2 Hill, (N. Y.) 326; Herring v. Hoppock, 15 N. Y. 409.

10 Smith v. Lynes, 1 Seld. 41; Wait v. Green, 35 Barb. 585; s. c. 36 N. Y., 556.

11 40 N. Y. 314. See also Cole v. Mann, 62 N. Y. 1; Bean v. Edge, 84 N. Y. 510.

12 See Dows v. Kidder, 84 N. Y. 121; Parker v. Baxter, 86 N. Y. 586; Farwell v. Importers, etc. Bank, 90 N. Y. 483.

13 Chamberlain v. Smith, 44 Penn. St. 431; Rose v. Story, 1 Penn. St. 190; Martin v. Mathiott, 14 Serg. & R. 214; Haak v. Lindermann, 64 Penn. St. 499.

If a person who is neither the maker nor payee of a negotiable promissory note, payable on time or on demand, indorses it in blank, before its delivery to the payee, aud for the purpose of lending faith and credit to the instrument and making it acceptable to the payee, what is the character of the liability which he assumes? The conflict of the authorities upon this point is too wide and too deeply settled to make any reconciliation possible, except through the intervention of statutes. No less than four distinct views have been presented, and each has been urged with able and forcible reasoning. It is impossible to say where the truth lies; and as each State manifests a fixed intention to abide by the rule established by its own courts, it is vain to hope for any ultimate harmony of the decisions. The different theories can merely be placed side by side and contrasted.

The first view-and this prevails in more than half the States-is that the person so indorsing becomes liable as a joint-maker of the note, exactly the same as if his signature appeared below that of the maker at the foot of the paper, and, consequently, that he is not entitled to notice or protest, and should be sued in a joint action with the maker. This

1 Massachusetts: Essex Co. v. Edmands, 12 Gray, 273; Benthall v. Judkins, 13 Met. 265; Union Bank v. Willis, 8 Met. 504; Bryant v. Eastman, 7 Cush. 111; Riley v. Gerrish, 9 Cush. 104; Austin v. Boyd, 24 Pick. 64; Way v. Butterworth,108 Mass. 509. New Hampshire: Currier v. Fellows, 27 N. H. 366; Martin v. Boyd, 11 N. H. 385. Maine: Adams v. Hardy, 32 Me. 339; Colburn v. Averill, 30 Me. 310; Malbon v. Southard, 36 Me. 147; Childs v. Wyman, 44 Me. 433; Woodman v. Boothby, 66 Me. 389. Vermont: Flint v. Day, 9 Vt. 345: Nash v. Skinner, 12 Vt. 219. Rhode Island: Perkins v. Barstow, 6 R. I. 505. Delaware: Massey v. Turner, 2 Houst. 79; Gilpin v. Marley, 4 Houst. 284. New Jersey: Chaddock v. Vanness, 35 N. J. L. 517. Maryland: Schley v. Merrit, 37 Md. 352; Norris v. Despard, 38 Md. 491; Watz v. Alback, 37 Md. 404. Virginia: Comm. v. Powell, 11 Gratt. 828. West Virginia: Burton v. Hansford, 10 W. V. 470. North Carolina: Hoffman v. Moore, 82 N. C. 313: Baker v. Robinson, 63 N. C. 191. South Carolina: Carpenter v. Oaks, 10 Rich. 17. Georgia: Quinn v. Sterne, 26 Ga. 223. Mississippi: Thomas v. Jennings, 5 Sm. & Mar. 627. Missouri: Lewis v. Harvey, 18 Mo. 74; Perry v. Barset, 18 Mo. 140; Powell v. Thomas, 7 Mo. 440; Mammon v. Hartman, 51 Mo. 168; Baker v. Block, 30 Mo. 225. Michigan: Wetherwax v. Paine, 2

theory proceeds upon the following reasoning he certainly means to pledge his responsibility in some way, and to the payee; he cannot be considered a first indorser of the note, because no one but the payee, can occupy that position;2 neither can he be regarded as the second indorser, because, to bring about that effect, he must appear on the face of the paper to stand in the relation of an assignor, and to have given currency to the paper by his transfer of it for a valuable consideration. Nor is it possible to treat him as a guarantor of the note, for that would import a separate consideration which is not assumed in the case.* We are thus brought, by the exclusion of every other hypothesis, to the necessity of holding him as an original promisor jointly with the maker of the note. But it is generally held, in those States which adopt this doctrine, that parol evidence is admissible to show that it was the contemporaneous and mutual understanding of all the parties to the transaction that he should be held liable only as an indorser and not as an original promisor, and in that case he would be entitled to notice and protest." It is stated, however, that this permission will be accorded only as between parties who are entitled to look into the original transaction; that such proof cannot be admitted against one who took the note before it was due, in the usual course of business, for value, and without notice. In Massachusetts and Minnesota, however, it is held that no evidence can be received to change the character of his liability as a joint-maker, and that neither parol proof, nor a mortgage, given with the note to secure its payment, is admissible to

Mich. 555; Herbage v. McEntee, 40 Mich. 337; Moynahan v. Hanford, 42 Mich. 330. Minnesota: Robinson v. Bartlett, 11 Minn. 410; Peckham v. Gilman, 7 Minn. 446; McComb v. Thompson, 2 Minn. 139; Marienthal v. Taylor, 2 Minn. 147. Colorado: Kiskaddon v. Allen, 7 Col. 206; Good v. Martin, 2 Col. 218. Oregon: Barr v. Mitchell, 7 Oreg. 346

2 Good v. Martin, 95 U. S.90.

3 Martin v. Boyd, 11 N. H. 385.

4 But when he is held as joint maker, the consideration moving to the original party is the consideration for his undertaking; nor is the fact altered by proof that he did not actually participate in such consideration: Good v. Martin, 2 Col. 218.

Lewis v. Harvey, 18 Mo. 74; Seymour v. Farrell, 51 Mo. 95; Mammon v. Hartman, 51 Mo. 168; Cahn v. Dutton, 60 Mo. 297; Barrows v. Lane, Vt. 161; Sylvester v. Downer, 20 Vt. 355; Owings v. Baker, 54 Md. 82; Rey v. Simpson, 22 How. 341. 6 Schneider y. Schiffman, 20 Mo. 571.

show that he was to be bound only as an indorser. And the fact that he agrees with the maker to be simply surety for the latter will not alter his attitude toward the payee.8 But it appears that he will not be liable as a joint-maker if the payee afterwards indorses his own name above the stranger's, before the note is delivered; in that case he merely becomes a second indorser.9 In Massachusetts, it is now provided by statute10 that "all persons becoming parties to promissory notes payable on time, by a signature in blank on the back thereof, shall be entitled to notice of the non-payment thereof the same as indorers;" which will take that State hereafter out of the category of those holding this doctrine.

The view just presented is also definitely established as the rule of the federal courts. In the language of Mr. Justice Clifford: "Third persons indorsing a negotiable promissory note before the payee, and before it is delivered to take effect, cannot be held as first indorsers, for the reason that they are not payees; and no party but the payee of the note can be the first indorser, and put the instrument in circulation as a commercial negotiable security. Such a third party may, if he chooses, take upon himself the limited obligation of a second indorser; but if he desire to do so he must employ proper terms to signify that intention, the rule being that a blank indorsement supposes that there are no such terms employed, and that he is liable either as promisor or guarantor. But if anyone not the payee of a negotiable note, or, in the case of a note not negotiable, if any party writes his name on the back of the note, at or sufficiently near the time it is made, his signature binds him in the same way as if it was written on the face of the note, and below that of the maker; that is to say, he is held as a joint-maker, or as a joint and several maker, according to the form of the note."'ll And the circuit courts will follow this construction, holding that for them the question is one of general commercial

7 Essex Co. v. Edmands, 12 Gray 273; Wright v. Morse, 9 Gray 337; Peckham v. Gilman, 7 Minn. 446. 8 Perkins v. Barstow, 6 R. I. 505.

9 Clapp v. Rice, 13 Gray, 403.

10 Mass. Stat. 1874, ch. 404; Nat'l Bank v. Law, 127 Mass. 72.

11 Good v. Martin, 95 U. S. 90; Rey v. Simpson 22 How. 341.

law, and that the decisions of the State courts, though entitled to the highest respect, are not to be followed as authorities unless agreeing with the decision above quoted, which case is regarded as conclusively settling the doctrine for the federal courts.12 The anomalous state of affairs which will follow upon this course is apparent at a glance. For example, a citizen of New York, who indorses a note in this way, will be an indorser when brought into the courts of that State, but an original promisor if he can be sued in the circuit court. Or, supposing him to have had no notice of non-payment, he will be liable in the federal courts, but not in the courts of his own State. However, since the supreme court has adopted a definite rule of construction, it is evidently better that those courts over which it has an appellate jurisdiction should follow the same rule than that they should conform to the practice of the particular State where they happen to be sitting.

The second view is, that a third party indorsing a note in blank before delivery to the payee enters into the original contract of the maker of the note as a co-maker, but in the character of surety or guarantor. And this opinion obtains principally in Louisiana, Texas, and Arkansas.18 It is founded upon the theory that the place of signature, and the general import of the note indicate an intention to become responsible as surety for the maker, while, for the reasons already given, the person so signing cannot properly be regarded as an indorser. But here, also, it is generally held that evidence is admissible to show that a different obligation was designed to be assumed.14

The third view is the one maintained in Illinois, Kansas, California, and Connecticut; that the person so signing assumes the responsibility of a guarantor pure and simple; that his liability is only secondary, and can

12 National Bank v. Lock-Stitch Fence Co., 24 Fed. Rep. 221; s. C., 20 Reporter, 235; Miller v. Ridgely, 22 Fed. Rep. 889.

13 McGuire v. Bosworth, 1 La. Ann. 248; Penny v. Parham, 1 La. Ann., 274; Chorm v. Merrill, 9 La. Ann. 533; Syme v. Brown, 19 La. Ann. 147; Collins v. Trist, 20 La. Ann. 348; Cook v. Southwick, 9 Tex. 615; Carr v. Rowland, 14 Tex. 275; Chandler v. Westfall, 30 Tex. 477; Killian v. Ashley, 24 Ark. 212; McGee v. Connor, 1 Utah, 92; Nathan v. Sloan, 34 Ark. 524; Heise v. Bumpass, 40 Ark. 545.

14 Cook v. Southwick, 9 Tex. 615.

not be fixed except by proof that the remedies against the maker have been exhausted; but that he is not generally entitled to notice unless injury be shown to have resulted from the want of it. This doctrine is supported in several important cases. 15 But again we find the courts permitting him to rebut the presumption that he put his name on the note as guarantor, by showing the true character of his obligation.16

Finally, the doctrine entertained in New York, Pennsylvania, Wisconsin, and in a few cases elsewhere, is as follows: Taking the note as it stands, and without any extrinsic proof of the intention of the parties, the person who indorses in blank before delivery to the payee is to be regarded as a second indorser. In this capacity he is not liable to the payee at all; nor is he liable to any subsequent holder for value, unless the payee complies with the implied condition of his signature by writing his own name above that of the blank indorser, and thus assuming the place and responsibilities of a first indorser. But parol evidence is admissible to show that the object designed to be attained by the addition of the stranger's indorsement was to give the note faith and credit, and render it acceptable to the payee, and this may also be shown by the stranger's express acknowledgment of that fact to the payee. With this extrinsic light upon the contract. he will assume the position of first indorser, the payee being second. Thus, he becomes liable to the payee (but only upcn receiving all the rights of a regular indorser), and also, in like manner, to any subsequent indorsee of the payee.17 As remarked by

15 Camden v. McKay, 3 Scam. 437; Carroll v. Weld, 13 Ill. 682; White v. Weaver, 41 Ill. 409; Blatchford v. Milliken, 35 Ill. 434; Parkhurst v. Vail, 73 Ill. 343; Glickauf v. Kauffman, 73 Ill. 378; Boynton v. Pierce, 79 Ill. 145; Eberhart v. Page, 89 Ill. 550; Firman v. Blood, 2 Kans. 496; Fuller v. Scott, 8 Kans. 25; Riggs v. Waldo, 2 Cal. 485; Pierce v. Kennedy, 5 Cal. 138; Crooks v. Tully, 50 Cal. 673; Ranson v. Sherwood, 26 Conn. 437; Holbrook v. Camp, 38 Conn. 23; Van Doren v. Tjader, 1 Nev. 380; Harding v. Waters, 6 Lea (Tenn.) 324.

16 Carroll v. Weld, 13 Ill. 682.

17 Cottrell v. Conklin, 4 Duer, 45; Gilmore v. Spies, 1 Barb. 158; Spies v. Gilmore, 1 N. Y. 321; Waterbury v, Sinclair, 26 Barb. 455; Paine v. Noelke, 45 N. Y. Super. Ct. 176; Phelps v. Vischer, 50 N. Y. 69; Coulter v. Richmond, 59 N. Y. 478; Barto v. Schmeck, 28 Pa. St. 447; Schollenberger v. Nehf, 28 Pa. St. 189; Eilbert v. Finkbeiner, 68 Pa. St. 243; Arnot v. Symonds, 85 Pa. St. 99; Taylor v. McCune, 11 Pa. St. 460; Heath v.