tract, and substitutes a different agreement for that into which he entered. In the application of this rule it is not only well settled that a material alteration of a promissory note by the payee or holder discharges the maker, even as against a subsequent innocent indorsee for value: but it has been adjudged by this court that a material alteration of a note, before its delivery to the payee, by one of two joint makers, without the consent of the other, makes it void as to him; and that any change which alters the defendant's contract, whether increasing or diminishing his liability, is material, and therefore the substitution of a later date, delaying the time of payment, is a material alteration. Wood v. Steele, 6 Wall. 80. See also Angle v. Northwestern Ins. Co.. 92 U. S. 330; Greenfield Savings Bank v. Stowell. 123 Mass. 196, and cases there cited.

The present case is not one of a change in the terins of the contract, as to amount or time of payment, but simply of the effect of adding another signature, without otherwise altering or defacing the note. An erasure of the name of one of several obligors is a material alteration of the contract of the others, because it increases the amount which each of them may be held to contribute. Martin v. Thomas, 24 How. 315; Smith v. U. S., 2 Wall. 219. And the addition of a new person as a principal maker of a promissory note, rendering all the promisors, apparently, jointly and equally liable, not only to the holder, but also as between themselves, and so far tending to lessen the ultimate liability of the original maker or makers, has been held in the courts of some of the States to be a material alteration. Shipp v. Suggett, 9 B. Mon. 5; Henry v. Coats, 17 Ind. 161; Wallace v. Jewell, 21 Ohio St. 163; Hamilton v. Hooper, 46 Iowa, 515. However that may be, yet where the signature added, although in form that of a joint promisor, is in fact that of a surety or guarantor only, the original maker is, as between himself and the surety, exclusively liable for the whole amount, and his ultimate liability to pay that amount is neither increased nor diminished; and, according to the general current of the American authorities, the addition of the name of a surety, whether before or after the first negotiation of the note, is not such an alteration as discharges the maker. Montgomery R. Co v. Hurst, 9 Ala. 513, 518; Stone v. White, 8 Gray, 589; McCaughey v. Smith, 27 N. Y. 39; Brownell v. Winnie, 29 N. Y. 400; Wallace v. Jewell, 21 Ohio St. 172; Miller v. Findley, 26 Mich. 249. The English cases afford no sufficient ground for a different conclusion. In the latest decision at law, indeed, Lord Campbell and Justices Erle, Wightman, and Crompton, held that the signing of a note by an additional surety, without the consent of the original makers, prevented the maintainance of an action on the note against them. Gardner v. Walsh, 5 El. & Bl. 83. But in an earlier decision, of perhaps equal weight, Lord Denman and Justices Littledale, Patteson, and Coleridge held that in such a case the addition did not avoid the note, or prevent the original surety

on paying the note, from recovering of the principal maker the amount paid. Catton v. Simpson, 8 Adol. & E. 136; s. c., 3 Nev. & P. 248. See also, Gilb. Ev. 109. And in a later case, in the Court of Chancery, upon an appeal in bankruptcy, Lords Justices Knight, Bruce, and Turner, held that the addition of a surety was not a material alteration of the original contract. Ex parte Yates, 2 De G. & J. 191; s. c., 27 Law J. (N. S.) Bankr. 9.

The case at bar, being on the equity side of the court, is to be dealt with according to the actual relation of the parties to the transaction, which was as follows: The note, though in form made by the husband to his partner, Krueger, and indorsed by Krueger,was without consideration as between them, and was in fact signed by both of them for the benefit of the partnership. The mortgage of the wife's land was executed and delivered by her and her husband to Krueger, for the same purpose. The name of the wife was signed to the note by Krueger, or by his procurement, before it was negotiated for value. The plaintiff received the note and mortgage from Krueger, and advanced his money upon the security thereof, in good faith, and in ignorance that the note had been altered. If the wife had herself signed the note, she would have been an accommodation maker, and, in equity, at least, a surety for the other signers; and neither the liability of the husband as maker of the note, nor the effect of the mortgage executed by the wife, as well as by the husband, to secure the payment of that note, would have been materially altered by the addition of her signature. There appears to us, therefore, to be no reason why the plaintiff, as indorsee of the note, seeking no decree against the wife personally, should not enforce the note against the husband, and the mortgage against the land of the wife.

This suit being between citizens of different States, and founded on a negotiable promissory note, the indorsement of which to the plaintiff carried with it as an incident, in equity, the mortgage made to secure its payment, was within the jurisdiction of the circuit court, under the act of March 3, 1875, c. 137, although Krueger, the payee and mortgagee, could not have maintained a suit in that court. 18 St. 470; Sheldon v. Sill, 8 How. 441, 450: Tredway v. Sanger, 107 U. S. 323 ; s. c. 2 Sup. Ct. Rep. 691. Decree reversed.

cover up the real contract between the parties, which was one of lease, to enable the plaintiff to carry on a brothel, contrary to law.

HENRY, J., delivered the opinion of the Court: Pending this cause in this court, Jno. Anthony suggested that since the appeal herein was taken, he had intermarried with appellant, and asked to be made a party plaintiff, which was granted.

The suit is for the enforcement or specific performance of the following contract, in writing. entered into by plaintiff. then Bessie Stevenson. and defendant.

"This article of agreement, entered into this 20th day of February, 1878. by and between Catherine Rooney of the one part and Bessie Stevenson of the second part. witnesseth, that the said Catherine has this day bargained and sold to said Bessie Stevenson for the sum of two thousand five hundred dollars, the following real estate, lying and being in the City of Kansas, County of Jackson, State of Missouri, namely: Lot No. 11, block 3. Likin's Addition to the City of Kansas, Old Town. as the same appears on record of the recorded plat of said addition, upon the following terms and conditions, to-wit: The said Bessie Stevenson to pay the sum of twenty-five dollars per month, payable monthly on the 20th day of each month. until the sum of one thousand dollars is thus paid; then the said Catherine Rooney to execute and deliver to the said Bessie Stevenson a good and sufficient warantee deed to the same, taking the notes of the said Bessie Stevenson, secured by deed of trust on the property conveyed, for the same deferred payments. But if said Bessie Stevenson fail or refuse to make any monthly payments, as herein provided until deed made, her rights under this agreement to cease, and said Catherine Rooney to be immediately entitled to the possession of said estate. In witness whereof, the parties have set their names and affixed their seals to duplicate copies hereof, one to be retained by each, the day and year aforesaid.

MRS. CATHERINE ROONEY [SEAL]. MISS BESSIE STEVENSON [SEAL]." The answer set up in substance that the contract really made by the parties was one of lease, by which the premises were let to plaintiff at $25 per month, payable monthly; but that, in order to evade the Statute, section 1551, R. S., which forbids the lease of a house for the purpose of being used as a brothel, it was agreed between the parties that they should execute the agreement in question.

A replication filed put in issue the allegations of the answer, and on a trial of the cause the court found the issue for defendant and entered a judgment accordingly, from which this appeal was prosecuted. Plaintiff at the trial objected to any evidence in support of the allegations in the answer. Her objection was overruled, and by plaintiff's own testimony, if at all, they were established. Whether the court erred in admitting such evidence, is the only question for consideration. This is not a suit to enforce a contract for a lease

of the premises. If it were, the doctrine invoked by defendant and sustained by the authorities cited by her counsel would be in point. An agreement to sell a house to one whose purpose is to keep it as a bawdy house, although known to the vendor. is not forbidden by the Statute. Defendant is endeavoring to defeat a legal and valid contract by proof that it was not the contract between the parties, but that another was, which is forbidden by the law. In other words she seeks by parol evidence to substitute an invalid parol agreement for a valid one in writing and under seal. There is certainly no public interest to be subserved by withdrawing the case from the rule which forbids the introduction of parol evidence to vary or contradict a written instrument. If the contract were for a lease, and the purpose expressed therein was that the lessee would keep a hotel or conduct other legitimate business in the house. it might be shown by parol evidence that it was let to be used for an illegal purpose. But here is an agreement in writing signed and sealed by the parties. Its execution is admitted-no fraud is charged to procure defendant's signature to it, but she says it was not the real agreement of the parties, but that the agreement between them rested in parol and was a lease of the premises. In Brown's Appeal, 55 Pa. St. 299, cited by defendant's counsel, it was the consideration of the notes which was held open to inquiry, and having been found to be a "stock gambling transaction," the notes were held void. Fowler v. Scully, 72 Pa. St. 465, was a proceeding to foreclose a mortgage of real estate given to a national bank to secure future advances, and this appeared upon its face. But, if it had not, evidence would have been admissible to show the fact. There is no analogy, however, between such a case and the one under consideration. Here the evidence was not offered to show that the contract sued on was an illegal contract, but to prove that it was not the contract made by the parties.

If the Statute forbade the sale of premises to be used by the vendee for an illegal purpose, on a suit to enforce the contract, the defendant might show the illegal purpose, although a different one was expressed in the contract. To that extent the authorities cited go, and no further. The judgment is reversed and the cause remanded.

SHERWOOD, J.. dissented.

NEGLIGENCE-ONE ACTION FOR THE TEAR AND ANOTHER FOR THE SCRATCH.

BRUNSDEN v. HUMPHREY.*

English Court of Appeal, Feb. 12 and July 12, 1884. Action for Negligence-Injury to Vehicle-Personal Injury caused by same Negligence-Distinct Cause of

*Reported by P. B. Hutchins, Esq., Barrister at Law in the Law Times Reports.

Action.-Plaintiff sued defendant in the county court to recover damages for injury done to plaintiff's cab in a collision caused by the negligence of defendant's servant, and obtained judgment. Afterwards plaintiff sued defendant in the High Court to recover damages for personal injury, which he had suffered in the same collision. Held, by Brett, M. R., and Bowen, L. J., (Lord Coleridge, C. J. dissenting), that the damages to the cab and the personal injury constituted two distinet causes of action, and therefore, the judgment recovered in the county court was no bar to the subsequent action in the High Court, and plaintiff was entitled to recover. Judgment of Pollack, B., and Lopes, J., reversed.

Appeal from the Queen's Bench Division.

Before Lord Coleridge C. J., Brett. M. R., and Bowen, L. J.

The plaintiff was a cab driver, and while he was driving his cab, a two-horse van, driven by the defendant's servant, came into collision with the cab, and the plaintiff was thrown from the box.

The plaintiff sued the defendant in the Whitechapel County Court, to recover the amount of the damage done to the cab.

The particulars were as follows:
For carelessly driving a van into

38. Od.

Repairing woodwork
Painting

Three weeks' hire of cab

a cab, £4

The defendant paid the amount claimed, and costs, into conrt.

Afterwards the plaintiff discovered that he had sustained more serious personal injury, owing to the collision, than he had at first been aware of, and he wrote to the defendant asking for compensation; his request was refused, and he thereupon commenced the present action in the High Court to recover damages for the personal injury which he suffered by being thrown from the box of the cab in the collision.

At the trial before Grove, J., the jury found a verdict for the plaintiff for £350 damages.

A rule was afterwards obtained, calling on the plaintiff to show eause why there should not be a new trial or judgment entered for the defendant. on the ground of misdirection in not holding that the proceedings in the county court, were a bar to the present action.

On the 5th of July, 1883. the divisional court, Pollack, B., and Lopes, J., made the rule absolute to enter judgment for the defendant, and from this decision the plaintiff now appealed.

Waddy, Q. C., and Crispe for the plaintiff.

The fact that the plaintiff had recovered in the county court is no bar to his subsequently recovering in the High Court, for the two causes of action are separate and distinct. At the time when the plaintiff recovered for damage to the cab, the cause of action on which he now relies was incomplete, for he had not then suffered the

injuries which afterwards resulted from the collision, and negligence alone, without injury, gives no cause of action. They referred to Fetter v. Beal. 1 Lord Raymond, 339; Greathead v. Bromley. 7 T. R. 455; Earl of Bandon v. Becher, 3 Cl. & F. 479; Kitchen v. Campbell, 3 Wils. 304; Markham v. Middleton, 2 Stra. 1259; Bonomi v. Backhouse, in the Exchequer Chamber, E. B. & E. 646; 28 L. J. 378, Q. B.; and in the House of Lords, 34 L. J. 181, Q. B.; 9 H. L. C. 503: Lee v. The Lancashire and Yorkshire Railway Company, 25 L. T. Rep. N. S. 77; L. Rep. 6 Ch. 527; Seddon v. Tutop, 6 T. R. 607; Read v. The Great Eastern Railway Company, 18 L. T. Rep. N. S. 822; L. Rep. 3 Q. B. 555; Nicklin v. Williams, 10 Ex. 259; 23 L. J. 335 Ex.

Murphy, Q. C., and Hannen for the defendant.

The plaintiff is seeking to recover twice over for the same cause of action. The test is whether he could have recovered for personal injury in the county court, and it is clear that he could. They referred to Lamb v. Walker, 38 L. T. Rep. N. S. 643; 3 Q. B. Div. 389; Barnett v. Lucas, Irish Rep. 6 Com. Law, 247: Wright v. The London General Omnibus Company, 36 L. T. Rep. N. S. 590: 2 Q. B. Div. 271.

WADDY, Q. C., replied.

Cur, adv. vult. July 12.-The following judgments were delivered:

BRETT, M. R.-It was urged on behalf of the defendant, that the plaintiff could not succeed in the second action because he had already recovered damages in respect of the collision, and no person can sue twice for the same cause of action. Upon the other side, it was said that the two injuries, although one part of the cause of action was common to both, were in reality two different causes of action, and no rule exists against bringing separate actions for two separate and distinct causes of action. It was admitted that it may be oppressive to bring several actions, but it was said that if they were brought oppressively, the court would have power to stop them, but that, in this case, where there was an undeveloped injury, an action is brought bona fide and is not oppressive. Therefore the question is, whether the causes of action are the same, because the law is that a person can not, in different actions, recover successive amounts of damages for the same cause of action, but he must, when he first brings the action, recover all the damages to which he is entitled in respect of that cause of action. When this rule is applied to damages, which are, or must be known to the plaintiff at the time of the first action. I have always thought it a good rule; but when applied to cases where the damage is not known at the time of the first action, but develops itself afterwards, and when the claim is made bona fide for ulterior damages, and could not, in fact, have been made at the time of the first action, because the further damage was not known, I have always been of opinion that it is a harsh rule, and if it were to be established now for the first time, it

could not have my concurrence. It is based upon the maxim that it is for the benefit of the State that the litigation of individuals should come to an end. To my mind, that is one of those maxims which appear to be the less true the more one looks into them. It can not matter to the State, and the maxim is never vouched, except in cases where the subsequent litigation would be just, if it were not for the maxim. In these cases of undeveloped injury, the maxim is not only untrue, but also unjust as between individuals. However, the rule exists, and I have not the smallest intention of cavilling at it. It must remain, although the subsequent injuries are unknown, and can not be known. Nevertheless, in cases where there has already been a trial, one is to suppose that which is not the truth, viz., that the first jury tried the case, when the subsequent damage or injury could not be known to them, and that they have, in contemplation of law, given damages for the prospective injury. The question is, whether the cause of action in this case, is the same as that in the former action. The cause of action alleged is an injury to the plaintiff's person, by reason of the negligent driving of the defendant's servant. The existence of that negligence and the collision alone, do not give any cause of action. Supposing that by negligent driving, the wheel of a cart is run against a carriage, and there is no injury caused, the owner of the carriage could not succeed in an action for nominal damages; such au action would not lie. The cause of action in such a case, is the negligence which causes appreciable injury to the vehicle. There must be both the negligence and the appreciable injury. Therefore, in the first action, the cause of action was the negligent driving and the appreciable injury to the plaintiff's cab. Suppose that in the days of strict pleading, he had relied upon that cause of action, and had pleaded it, he could not have given evidence of the personal injury. The cause of action in such a case, is injury to property. That is the cause of action, and is in respect of a right of property. Now, the plaintiff brings an action in which he says that he has been injured in his person. That is a different right. He has a perfect right, by law, to have his person unmolested by the negligence of another man's servant. The mere fact of the defendant's vehicle having touched or shaken the person of the plaintiff, would give no cause of action, if no appreciable damage had been caused. Therefore, it is clear, that the cause of action is the negligent driving, and the injury to the plaintiff's person; that is, the injury to the right to have his person unmolested. That is a distinct cause of action, and. therefore, the plaintiff is entitled to maintain the second action. That in itself seems to me to be sufficient reasoning upon which to found a decision that the two causes of action are different. But different tests have been applied by judges at different times. They are not grounds of judgments, but tests by which to determine sometimes, but not always, whether the causes of action are

It

the same or different. A very good. though not always a very accurate, test, is to see whether the same sort of evidence would prove both cases. is plain that, where damage to a vehicle is in question, persons who know about vehicles should be called to show what the injury was, but in the case of injury to the person, doctors are called to show what was, the external or internal damage to the person. The cases would be tried with two different sets of witnesses. In my opinion that is only a test, and not always an accurate one, but here it is sufficient to show that the causes of action are different. Therefore, in my opinion. we are not called upon in this case, to apply the maxim I have mentioned, which for my part. I think the law ought never to apply, except in cases where it has already been determined that it must apply. It ought not to be stretched, and it is not applicable in this case. Therefore, I am of opinion that the plaintiff is entitled to recover the sum awarded to him by the jury. Two different actions may be brought for different causes of action, but not to recover damages for the same cause of action. It follows that the judgment of the divisional court can not be supported, and this appeal ought to be allowed.

BOWEN, L. J.-The plaintiff in this case has recovered a verdict and £350 damages for personal injuries sustained by him through the negligence of the defendant's servants in driving a van. which had come into collision with the plaintiff's cab. thrown the plaintiff from his box, and seriously injured him in his legs. Previously to bringing the action, the plaintiff had sued the defendant in the county court for damages done to his cab in the collision, and the particulars delivered under this plaint had been confined to the damages which the cab had sustained. The defendant in the county court action paid £4 3s. into court, together with 6s. costs, upon which the plaintiff had discontinued the county court plaint. The present action was now brought in the high court for personal injuries, of the importance and extent of which the plaintiff alleged that he had been ignorant, at the time of the county court proceedings. On a motion for a new trial, the court below have entered a verdict for the defendant, on the ground that the recovery in the county court of damages in respect of the cab, is a bar to any further action for injury to the plaintiff's person. The rule of the ancient common law is, that where one is barred in any action real or personal by judgment, demurrer, confession, or verdict, he is barred as to that, or the like action, of the like nature, for the same thing, for ever. It has been well said," says Lord Coke, in a note to Ferrer's case, 6 Coke, 9 a. "Interest reipublicæ ut sit finis litium, otherwise," says Lord Coke, "great oppression might be done under color and pretence of law;" see also Sparry's case, 5 Coke, 61; Higgen's case, 6 Coke, 44 b, Yearbook, 12 Edw. 4, p. 13, 9. Accordingly in Hudson v. Lee, 4 Co. p. 43, it was held to be a good plea in bar, to an appeal of mayhem, that the ap

pellant had recovered damages in an action for trespass brought for the same assault, battery, and wounding. So in Bird v. Randall. 3 Burr. 1346, it was decided to be an answer to an action for seducing a man's servant from his service that penalties had previously been recovered by the master in satisfaction of the injury done him. So too, in Phillips v. Berryman, 3 Doug. 286, a recovery in replevin, was held to be a good bar to an action on the Statute of Marlbridge, for an excessive distress, on the ground that the plaintiff had already had his remedy, and that a recovery in one personal action, is a bar to all other personal actions on the same subject. The principle frequently stated in the form of another legal proverb: Nemo debet bis vexari pro eadem causa. It is a wellsettled rule of law, that damages resulting from one and the same cause of action, must be assessed and recovered once for all. The difficulty in each instance, arises upon the application of this rule. How far is the cause which is being litigated fresh the same cause in substance with that which has been the subject of the previous suit? The principal consideration," says DeGrey, C. J., in Hitchen v. Campbell, 2 Wm. Bl. 827, "is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case; and one great criterion," he adds, "of this identity is that the same evidence will maintain both actions:" See per Lord Eldon in Martin v. Kennedy, 2 Bos. & Pull. 71. “The question," says Gorse, J., in Seddon v. Tutop, 6 Term Rep. 607, "is not whether the sum demanded might have been recovered in the former action; the only inquiry is whether the same cause of action has been litigated and considered in the former action." Accordingly, though a declaration contain counts under which the plaintiff's whole claim might have been recovered, yet, if no attempt was made to give evidence upon some of the claims, they might be recovered in another action: Thorpe v. Cooper, 5 Bing. 129. It is evident, therefore, that the application of the rule depends not upon any technical considerations of identity of cause of action, but upon matters of substance. I have now to consider the application of the above doctrine to the present action; and the question to be decided is, whether the damage done by the negligent driving of the defendant's servant to the plaintiff's cab is in substance the same cause of action as the damage caused by such negligence to the plaintiff's person. Nobody can doubt that, if the plaintiff had recovered any damages for injuries to his person, he could not have maintained a further action for fresh bodily injuries caused by the same act of negligence, merely because they had been discovered or developed subsequently: See Fetter v. Beal, 1 Lord Raymond, 339. "The jury," says the court in that case, have in the former action considered the nature of the wound and given damages for all the damage that it had done to the plaintiff.” This authority, however, leaves still open the

point we now have to determine, whether the cause of action arising from damage to the plaintiff's cab is in substance identical with that which accrues in consequence of the damage caused to his person. In order clearly to elucidate this question, let me assume for the sake of argument. that the damage had been caused by some act of the defendant himself, and not merely an act of his servant. According to the old distinction of forms of actions, which still have a historical value as throwing light upon the principles and definitions of the cominon law, the form of action upon such an hypothesis would have been trespass to the person for the personal injury-trespass to goods for the damage to the vehicle. Injury would have been done to the plaintiff in respect of two absolute and independent rights, the distinction between which is inveterate both in the English and the Roman law. Everyone in this country has an absolute right to security for his person. Everybody has, further, an absolute right to have the enjoyment of his goods and chattels unmeddled with by others. In the hypothetical case I am assuming both these rights would have been injured, and, though the two injuries might have been combined in one suit, could it have been said that the subject-matter of each grievance was the same? Applying the test of identity furnished by DeGrey, C. J., in Hitchin v. Campbell, the first matter that is obvious is, that the same evidence would not have supported an action for trespass to the person and an action for trespass to the goods. In the one case the identity of the man injured and the character of his injuries would be in issue, and justification might conceivably be pleaded as to the assault, which would have nothing to do with the damage done to the goods and chattels. In the other case the plaintiff's title to the goods might have been in issue, in addition to the question of the damage done to them. Different provisions of the Statute of Limitations might possibly have applied in each case. And finally, the damage in one case might have been directly due to the wrongful act complained of; in the other case it might not. There is no authority, so far as I know, in the books for the proposition that the recovery in an action for a trespass to the person would be a bar to the maintenance of an action for any trespass to goods committed at the same time. In the present instance, as the defendant himself was not driving, but his servant, trespass would not have lain under the old law. and the plaintiff's remedy would have been in an action on the case for negligence, based on the negligent management by the servant of his master's horses, a negligence for which in the eye of the law the master or employer is responsible. Now what is the gist of such an action on the case for negligence? If the whole of the plaintiff's case were to be stated, and the entire story told, it seems to me that it would have comprised two separate or distinct grievances, narrated, it is true, in one statement or case. Action for the negli