The Albany Law Journal.

ALBANY, AUGUST 26, 1871.

POWER OF PASSENGER CARRIERS TO LIMIT THEIR LIABILITY FOR NEGLIGENCE. The State of New York has the questionable honor of standing nearly or quite alone in the holding of its courts, that carriers of passengers may exempt themselves from all liability for injuries arising from the negligence of their servants.

The question came before the court of appeals in Wells v. The New York Central Railroad Company, 24 N. Y. 181, and it was there held, that a contract exempting the company from all liability to a free passenger for any negligence of their servants was not against public policy. The controlling opinion is devoted mainly to the question, whether the term "gross negligence" is applicable to the acts of servants of a corporation a question in no wise material in the case and the policy and legality of the contract is disposed of in a dozen lines. Sutherland, J., wrote a dissenting opinion, in which the question of the legality of contracts exempting passenger carriers from liability for negligence was very elaborately examined, and the conclusion reached that they were against public policy and void.

The next case in the same volume, is Perkins v. The New York Central Railroad Company. There the plaintiff's intestate was killed while riding upon a free pass, which contained an indorsement that the person accepting it " assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence by their agents or otherwise," etc. The accident which occasioned the death was the result of the negligence of defendants' agents. The judge charged at the trial that if the negligence of the agents was gross and culpable it was not embraced in the contract. This charge was held to be erroneous, on the ground that the contract covered all negligence. Smith, J., | it seems from the report, wrote two opinions; one for reversal and the other for affirmance, which presents the curious judicial phenomenon of a judge dissenting from his own opinion in the same case and on the same hearing.

The case of Smith v. The New York Central Railroad Co., 24 N. Y. 222, presented the question in a somewhat different aspect. In that case the person killed was a drover, and was riding on what is known as a drover's pass that is, a pass furnished to a person in charge of stock transported for a consideration, and which stipulates that the person receiving it takes all responsibility as to injury to himself or stock. The contract for the transportation of the stock also contained this provision: "And it is further agreed, that the persons riding free to take charge of

the stock do so at their own risk of personal injury from whatever cause." The jury found that the death of the intestate was occasioned by gross negligence on the part of defendants or its agents. Judgment was rendered for the plaintiff, and sustained at general term. On appeal to the court of appeals the judgment was affirmed by a divided court. Wright, J., wrote for affirmance, taking the broad ground that a contract limiting the liability of passenger carriers for their own or their servants' negligence was void. Denio and Davies, JJ., were also for affirmance, on the ground that the intestate was not a gratuitous passenger, and that such a contract was void as to paying passengers, though not as to free passengers. Smith, J., was for affirmance on the ground that the negligence was that of the corporation itself—that is, that the corporation could legally contract against liability for its servants' negligence, but not for its own negligence. Sutherland, J., was for affirmance on the ground stated in his dissenting opinion in Wells v. The New York Central Railroad Co., supra, that the contract was void irrespective of the question whether the transportation was gratuitous or for hire. Allen, J., wrote an elaborate opinion for reversal, on the ground that the negligence was that of the servants of the defendant, and, therefore, covered by the contract with him. Selden, Ch. J., and Gould, J., concurred.

It will be observed that the greatest number agreeing to any particular reasoning or grounds were for reversal, while of the five judges for affirmance not more than two agreed on the same grounds.

The facts in Bissell v. The New York Central Railroad Company, 25 N. Y. 442, were substantially the same as in the case last cited. Bissell was a drover, and made a contract with the defendants which recited that, in consideration that the defendants would convey the stock at what were termed reduced rates, the plaintiff would assume the risk of injury to the cattle, and also that the persons riding free to take charge of the stock do so at their own risk of personal injury from whatever cause. The pass furnished Bissell contained a "notice," that the owner of stock receiving this ticket assumes all risks for injuries, whether from negligence of defendants' servants or otherwise. The jury found that plaintiff's intestate met his death through the gross and culpable negligence of defendants' agents. The judgment entered thereon was reversed by the court of appeals. Gould, J., was for reversal, of course, holding that the ticket was a free ticket, and the case within the rule laid down in the Wells case and the Perkins case. Selden, Smith, Davies and Allen were also for reversal, the first two expressly on the ground that Bissell was a free passenger, and Davies presumably on the same ground as he had before declared, that the company could not limit their liability for negligence in case of a paying passenger, and he had put his reason for affirmance in Smith's case, supra, expressly on the ground that he

was a paying passenger, although his pass was on precisely the same conditions as that of Bissell. Denio, C. J., dissented on the ground that Bissell was not a gratuitous passenger, and Wright and Sutherland also dissented on the ground, it is to be presumed from their former opinions, that such a limitation of a carrier's duty was void.

It appears, therefore, that thus far the court of appeals has stood about in this wise: Gould and Allen, JJ., that passenger carriers could limit their liability for their own and their servants' negligence, absolutely; Denio, Davies and Selden, JJ., that they could limit their liability as to free passengers; Smith, J., that they could limit their liability for the negligence of their servants; Sutherland and Wright, JJ., that they could not so limit their liability in any event.

The rule, so far as one can be said to exist, considering this diversity of judicial opinions, is, that carriers can limit their liability for injuries to free passengers, either from their own or their servants' negligence; and that shippers of stock riding on a "drover's pass' are free passengers. "The fruits of this rule," says Davies, J., in Stinson v. New York Central R. R. Co., 32 N. Y. 333, "are already being gathered in increased accidents, through the decreasing care and vigilance on the part of these corporations, and they will continue to be reaped until a just sense of public policy shall lead to legislative restrictions upon the power to make this kind of contracts." It occurs to us, that if the courts would exhibit a little more of that "just sense of public policy," legislative interference would not be necessary.

It would not be difficult to cite a great array of authorities to show that these decisions of the New York courts are directly counter to the current of decisions, but we have only space for one- the last one on the subject, we believe that of the Cleveland, Painesville and Ashtabula Railroad Co. v. Curran, 19 Ohio St. 1, and to appear in 2 American Reports. That was a case on all-fours with those of Smith and Bissell, before cited. The plaintiff - or defendant in error to explain the inverted title- was a drover, who contracted with the company for the transportation of stock. The contract contained the usual statement, that, in consideration of obtaining the transportation at reduced rates, the plaintiff agreed to assume the risks of injury to the animals from a number of specified causes, and also that the person riding in charge of the stock should do so at his own risk of personal injuries, from whatever cause, etc. The ticket, or "drover's pass," given him at the time of making the contract, contained the following: "The person accepting this free ticket assumes all risk of accident, and expressly agrees that the company shall not be liable, under any circumstances, whether of negligence by their agents, or otherwise, for any injury to the person, or for any loss or injury to the property, of the passenger using the ticket, and agrees

that as for him he will not consider the company as common carriers, or liable as such." The plaintiff accepted and used this pass, knowing its contents, and while so using it was injured by reason of the negligence of defendants' servants. The supreme court held, unanimously, 1. That the plaintiff was not a gratuitous passenger, inasmuch as the pass and the agreement for transporting the stock constitute together a single contract; and 2. That the stipulation in the contract and in the pass, exempting the defendants from liability for negligence, was against public policy and void, and therefore no defense to an action for the injuries.

It is worthy of note that in this case—and it was, no doubt, the same in the New York cases — the pretense of carrying the stock at reduced rates was merely a sham. The superintendent of the company testified that the contract was "of the kind alone used by the company at the time the said stock was transported, and that the company would not, at any time, have received and transported the hogs except under such contract."

NEGOTIABLE PAPER SIGNED IN BLANK. It has recently been decided, in the exchequer chamber, that if a deed be delivered and a blank left therein be afterward improperly filled up (at least if this be done without the grantor's negligence), it is not the deed of the grantor. Swan v. The North British Australasian Company, 2 Hurls. & C. 175. But this principle, when applied to negotiable instruments, has been limited in its application. These instruments are not only assignable, but they form part of the currency of the country. It has, therefore, been uniformly held that where a man writes his name across the back of a blank bill or note, and parts with it, and it is afterward improperly filled up, he is liable as indorser; if he write it across the face of the bill he is liable as acceptor; or if he sign his name to a blank note he is liable as maker, provided, in either case, the instrument has once passed into the hands of an innocent indorsee, for value, before maturity.

The English cases cited, as holding the improper filling up of a blank instrument to be forgery, were, most of them, criminal prosecutions. For the purpose of obviating the incongruity of allowing a recovery upon an instrument which was itself a forgery, the courts of this country, in civil actions, have placed the liability of the author of the blank signature on the ground of estoppel.

The question was much discussed in Van Duzer v. Howe, 21 N. Y. 531, where a blank acceptance had been filled with a sum exceeding that fixed by the acceptor, and the acceptor's liability was vested solely on the ground of estoppel. The principle that when one of two innocent parties must suffer, he should bear the loss whose act has caused the injury has also been generally relied upon in the cases, and in

some of them has ruled the decision. Ingham v. Primrose, 7 C. B. 82.

The paper at delivery may be entirely blank above the signature, or in the ordinary form of a printed bill or note, with the material parts in blank, and if it be filled up consistently with the purport or tenor of the form signed or indorsed, the signer or indorser will be liable. Orrick v. Colston, 7 Grat. 189; Visher v. Webster, 8 Cal. 112; Ives v. Bank, 2 Allen, 236; Moody v. Threlkeld, 13 Geo. 155; Mitchell v. Culver, 7 Conn. 336; Robertson v. Smith, 18 Ala. 220; Duglass v. Scott, 8 Leigh, 43; Fullerton v. Sturgis, 4 | Ohio St. 529; Norwich Bank v. Hyde, 13 Conn. 279; Torrey v. Fiske, 10 S. & M. 590; Bank v. Curry, 2 Dana, 143.

It is now well settled that, in order to impeach the title of a purchaser of current negotiable paper, it must be shown that he acted in bad faith, believing at the time of the purchase that there was some infirmity about the paper. Goodman v. Harvey, 4 | Adol. & Ellis, 870; Goodman v. Simonds, 20 How. (U. S.) 343; Steinhart v. Baker, 34 Barb. 436; Benior v. Paquin, 40 Vt. 199; Bassett v. Avery, 15 Ohio St. 299. But, if the paper be so filled up as to create a questionable appearance, or not according to the purport and tenor of such an instrument, it is sufficient to put the purchaser on his guard. Crosby v. Grant, 36 N. H. 273; Mehaime Bank v. Douglas, 31 Conn. 170. But if the defect does not appear on the face of the paper, it seems the purchaser may safely rely on the maker or indorser. Merriam v. Rockwood, 47 N. H. 81; Bank v. Guss, 31 Vt. 315; Haskins v. Lombard, 16 Maine, 140; Smith v. Maberly, 10 B. Monr. 266.

A person who has signed a blank instrument for accommodation may revoke it at any time before its in- | ception or delivery to a third party (Smith's Execrs. v. Wyckoff, 3 Sandf. Ch. 77); and the delegated power to fill up such a paper is revoked by the death of the signer, and if it be afterward filled and transferred, it seems the decedent's estate cannot be made liable, even when the instrument is in the hands of a bona fide purchaser without notice of the death. Smith's Execrs. v. Wyckoff, 3 Sandf. Ch. 77; Michigan Ins. Co. v. Leavenworth, 30 Vt.

PERSONAL LIABILITY OF AGENT FOR NOTES AND BILLS.

The general rule is well established that a person who has in fact signed a written document cannot discharge himself from personal liability on the ground that he only signed as agent for another, unless it appear upon the face of the instrument that he signed as such and this is peculiarly so with regard to negotiable instruments. But it is often a nice question to determine whether the agent is or is not personally bound. The authorities are not harmonious, and we shall attempt to refer to only the most

important. In Price v. Taylor, 5 H. & N. 540, merely appending to the signature a word of description, such as "director," "secretary," etc., was thought not to be sufficient. It seems, however, that the word as prefixed to the description would properly indicate the agency. In Aggs v. Nicholson, 1 H. & N. 165, a promissory note ran in form: "We, two of the directors of the A. L. A. S., by and on behalf of the said society, do hereby promise to pay," etc. (Signed) Charles Nicholson, H. Wood. The court held the directors not to be personally liable, though Martin, B., hesitated to accede to the judgment. In Alexander v. Sizer, L. R., 4 Ex. 102, the note ran: "I promise to pay," etc., and was signed for M. T. & W. company, J. S., secretary. The court held the defendant not personally liable, although Cleasby, B., dissented. In Dutton v. Marsh, Q. B., 19 W. R. 754, the note ran: "We, the directors of, etc., do promise to pay," etc. (Signed) P. J. Marsh, chairman, J. Higgins, S. Broadbent, H. Johnson. The note contained no word indicating agency except the word denoting an office in the body, but the corporate seal was affixed. The court held the directors personally liable. In the case of Lindus v. Melrose, 2 H. & N. 293, the note read: "Three months after date we jointly promise to pay S., or order, 6007., for value received in stock on account of the London and Birmingham Iron Hardware Company (limited)—payable at the London Joint Stock Bank," etc. (Signed) James Melrose, H. W. Wood, John Haines, directors, (countersigned) Edwin Guest, secretary. The exchequer chamber held, that the signers were not personally liable, but inserted a denial that "we intend to throw any doubt upon the rule that an agent putting his name to a mercantile instrument is liable as a principal, unless the instrument distinctly shows that he signs as agent, or that we mean to break in upon the rule verba fortius accipiuntur contra proferentem. In this country it has been held, that, where an agent made a promissory note thus: "I promise to pay," and signed it Pro. C. D., A. B., it was the note of the principal and not of the agent. Long v. Coburn, 11 Mass. 97. So where A, and B. wrote a note in these

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words: We jointly and severally promise," and signed it A. and B. for C., it was held to be the note of C. Rice v. Gove, 22 Pick. 158; Emerson v. Prov. Hat Manufac. Co., 12 Mass. 237. So a note of like tenor, signed "A. B., agent for C. D.," was held to be the note of the principal. Ballou v. Talbot, 16 Mass. 461.

Where a promissory note was in these words: "I, the subscriber, treasurer of the Dorchester Turnpike corporation, for value received, promise" etc., and was signed "A. B., treasurer of the Dorchester Turnpike corporation," it was held to be the note of the corporation and not of the treasurer. Mann v. Chandler, 9 Mass. 335. So, where a note purported to be a promise by "The president and directors of a corporation," and was signed "A. B.-president," it was held to be the note of the corporation. Mott v

Hicks, 1 Cow. 513. The decision in Hill v. Bannister, 8 Cow. 31, is not in harmony with these decisions, nor has it been followed in this State. There the defendants gave their note with the addition of "Trustees of Union Religious Society, Phelps," and proved that it was given for a debt due from the society. The court, nevertheless, held the defendants to be personally liable.

As a general proposition it is undoubtedly true, that one who signs a writing as "agent," "trustee" or "president," is regarded as merely describing himself, and hence is held to be personally liable. Taft v. Brewster, 9 Johns. 334; Stone v. Wood, 7 Cow. 453. But when a writing is thus executed, with full authority from a principal, the party on whose account it is executed is alone liable. Bank of Genesee v. Patchin Bank, 19 N. Y. 315. In this case the several New York decisions are examined and the above principle announced. There, S. B. S., cashier of a bank, sent plaintiff, to be discounted, a bill of exchange, dated ten days previous, payable to the order of S. B. S., Cash., indorsed by him, with the same addition to his signature, and inclosed in a letter, dated at the banking-house, and signed S. B. S., Cash. It was held that these circumstances imported that the indorsement was that of the bank, and not that of S. B. S. individually. So it has been held that an indorsement of a note to the cashier of a moneyed corporation, by adding the word "cashier" to his name in the indorsement, is a transfer to the corporation when that was the design of the transaction. Watervliet Bank v. White, 1 Denio, 608. And so an officer of a corporation to whose order, as such, a note executed to it is payable, and who indorses the note, adding to his name his official character, and negotiates it on behalf of the corporation, is not personally responsible as indorser. Babcock v. Beman, 11 N. Y. 200; see, also, Bank of N. Y. v. Bank of Ohio, 29 id. 619.

The true rule of construction is said by Mr. Justice Story to be "that if it can, upon the whole instrument, be collected, that the true object and intent of the instrument are to bind the principal and not to bind the agent," courts of justice will adopt that construction of it, however informally it may be expressed.

ACTIONS FOR MONEY HAD AND RECEIVED, AND MONEY PAID.*

Money had and received. (1)—This action lies to recover money in the hands of one person equitably belonging to another, (2) as where one has received the money of another through the intervention of a forgery by a third person, although he who received

*From Mr. Moak's forthcoming edition of Van Santvoord's Pleadings.

(1) Upon the subject, generally, see 2 Conway, Rob. Prac. 449-488; 1 Chit. Pl. 351 et seq.; 1 Cow. Tr. (Kingsley's ed.) 88 307-316; 1 Wait's Law and Prac. 706 et seq.; 1 Estee's Plead. and Prac. 464-476.

(2) 1 Chit. Pl. 351, note 3; Buel v. Boughton, 2 Den. 91.

the money did so in good faith, and without knowledge thereof;(1) so by a stockholder, whose stock has been sold under a forged power of attorney, against the party who holds the proceeds of the sale; (2) by the owner of the draft issued by the government for his bounty or back pay, against one who received it through a forged or unauthorized indorsement; (3) by the owner of a draft against one who, as agent for a party who acquired his title thereto, under a forged indorsement, collected the same without disclosing his agency, and paid over the proceeds of such collection to his principal. (4)

An action will not lie by one claimant of money due under a contract with the government against another, when the same is paid by an officer thereof, to the claimant, with notice of the claims of both, notwithstanding the plaintiff proves himself to have been entitled, as between himself and the defendant, to have received such moneys from the government; (5) and so in all cases where two persons claiming ad versely to each other apply for payment to the debtor, and one of them is recognized as the creditor, and paid to the exclusion of the other.(6) The distinction between the latter cases, and those where one receives the money of another through the means of a forged indorsement, is apparent. In the one case, the party receiving the money receives it as his own, claiming under an independent title, and without in any way claiming through the other party; in the case of a forged indorsement, the person receiving the money necessarily does so, admitting that it originally belonged to the payee, and that he is receiving it under or by virtue of his rights. Where one, by mistake, receives plaintiff's wheat, sells it as agent for another, and accounts therefor to his principal, he is, nevertheless, liable to the plaintiff; (7) so, generally, the action lies to recover back money paid by a mistake of fact; as by a subsequent judgment creditor against a prior one to recover moneys paid by the sheriff, with plaintiff's assent, he mistakenly supposing defendant's execution had not expired at the time of making the levy. (8)

The right to the salary or emoluments of an office depends upon the performance of the duties thereof; one who was deprived of the right to perform them by an

(1) 1 Chit. Pl. 352.

(2) Marsh v. Keating, 1 Bing. (N. C.) 198, 27 Eng. C. L. Rep. (3) Holtsinger v. National, etc., 37 How 203, affirmed by Court of Appeals, Feb. 14, 1871; 3 Alb. Law Jour. 305.

(4) Holt v. Ross, 4 Alb. Law Jour. 11; Canal Bank v. Bank of Albany, 1 Hill, 287; Schaffer v. McKee, 19 Ohio St. 526. (5) Butterworth v. Gould, 41 N. Y. 450.

(6) Patrick v. Metcalf, 37 Ń. Y. 331; Murphy v. Ball, 38 Barb. 262.

(7) Cobb v. Dows, 10 N. Y. 335.

(8) Kingston Bank v. Eltinge, 40 N. Y. 391. This case, and Butterworth v. Gould, supra, are apparently, but not really, we think, in conflict. In Butterworth v. Gould the creditor's remedy against the debtor remained unaffected by the payment. In Kingston Bank v. Eltinge, although defendant claimed the money as his own under an independent title, the plaintiff's assent to the sheriff paying the money to defendant precluded him from maintaining an action against the sheriff to recover what was really his own, and what should have been paid to him. In one case the debtor decided for himself, and at his peril, who was the creditor; in the other the creditors themselves decided it for him, but did so under a mistake of facts, which, as between themselves, rendered the consent legally invalid, and which left the money subject to the plaintiff's equitable rights thereto.

officer de facto cannot maintain an action against the government for the salary, on the ground that the payment thereof to the de facto incumbent was wrongful (1) It has been repeatedly held, that an officer de jure may maintain an action against a de facto incumbent receiving the salary or emoluments of an office; (2) but this, under the recent cases, may be doubted, unless the courts, to accomplish an act of seeming justice, are able to make a distinction more subtle than now occurs to us between such a case and that of an ordinary creditor of the government, who receives payment of a demand under an independent claim of right thereto. If it be said that an officer de jure may practically be deprived of the emoluments of an office, the answer is, that he has no legal claim thereto, except where he acquires it by a discharge of the duties thereof. (3) An agent who receives the note of a debtor to his principal, and sells the same for less than its face, is liable to his principal, in an action for money had and received, for the face of the note. He will be treated as having made himself answerable to his principal for the full amount he ought to have received from the debtor. (4)

Money paid by an agent under a mistake as to the legal obligation of his principal may be recovered back by the principal, in an action for money had and received, as, for instance, where a government collector improvidently and mistakenly pays a fishing bounty to a vessel which has not been enrolled in a manner entitling her to the bounty; (5) so where the principal himself so pays the money, (6) or where a person who is not entitled to a pension fraudulently obtains one, and the money is obtained by another with notice thereof. (7)

Money paid to defendant, and for his use. (8)—One who refuses to perform a contract, on the ground that it is void by the statute of frauds, cannot recover what he has paid thereon, if the other party be ready and willing to perform. (9) If the vendor have not refused to perform, the vendee cannot recover back what he paid upon the contract without averring and showing that the vendee's title is absolutely bad. It is not sufficient to show it doubtful.(10) The rule is different in an action at law, from a suit in equity by the vendor, to compel the specific performance of a contract to purchase. (11)

One who pays money is not bound to show he

(1) Smith v. Mayor, etc., 37 N. Y. 518. This case must be held to overrule People v. Brennan, 30 How. 417; 1 Abb. (N. S.) 184; although nothing is said therein of the latter. See, also, Montgomery v. United States, 5 Court of Claims Rep. 93, where an officer was dismissed and reinstated.

(2) Platt v. Stout, 14 Abb. 178;1 Chit. Pl. 100, and cases cited. (3) Smith v. Mayor, etc., 37 N. Y. 518.

(4) Allen v. Brown, 51 Barb. 86; Van Rennselaer v. Morris,

1 Paige, 13; Beardsley v. Root, 11 Johns. 464.

(5) U.S. v. Bartlett, Davies' 9, Ware District Judge.

(6) Pitcher v. The Turin, etc., 10 Barb. 337.

(7) U. S. v. Inhabitants, etc., Davies', 154, Ware, D. J.

(8) Upon the subject, generally, see 2 Conw. Rob. Prac. 434,

et seq.; 1 Estee's Pl. and Prac. 481, et seq.; 1 Cow. Tr. (Kingsley's ed.) $ 317-330 b.; 1 Wait's Law and Prac. 698, et seq.

(9) Moak's note to Clarke's Ch. 350, marg. p., and cases cited; see also Simon v. Kaliske, 6 Abb. (N. S.) 225. (10) O'Reilly v. King, 2 Rob. 587. (11) O'Reilly v. King, 2 Rob. 587.

paid it in the discharge of a liability, binding either on the plaintiff or on the defendant; it is enough to show that it was paid in accordance with an uncountermanded authority, or in compliance with an express or implied request, (1) as an usurious note; (2) or an agreement void by the statute of frauds; (3) or on bets which were illegal; (4) the principal can only prevent the surety who pays an usurious debt from recovering, on the ground that he expressly forbade his doing so before the payment was made. (5)

It has been held that money paid to another for an illegal purpose, as for betting, cannot be recovered back, though it be never used for such purpose; (6) but after a retrial of the case, it was held, on appeal, that if the money was not, in fact, used according to directions, or if the plaintiff had countermanded his instructions before it was so used, it might be recovered back; (7) so it has been held in Massachusetts, that an indorser who pays a note before it is protested, and he charged as indorser, cannot recover the money so paid, on the ground that the payment is gratuitous, (8) but the court did not notice a prior decision in that State to the contrary, (9) and the English courts have held the reverse. e.(10) The rule, however, only enables the surety to recover of a principal debtor, on the ground of an implied request, until countermand, to pay the obligation. It does not apply against a surety. Where sureties in a bail bond had the right to surrender their principal, before suit brought against them, and one of them being sued before the other paid the bond, held, he was not entitled to contribution; that he had paid the bond before his co-surety became fixed, and had no right to thus deprive him of his right to surrender the principal. (11) In this case the co-surety was not, as will be readily seen, the principal debtor, and the law would not imply a request to his co-surety to pay the inchoate obligation. Where a surety on a bill, after acceptance, paid it before it was demanded of the acceptor, and protested as against the drawer, it was held, he could not recover of the drawer, for as soon as it was accepted he was not the principal debtor, but a surety for the acceptor, and could only be made liable upon the bill after demand and protest. (12)

Hon. John M. Reed, associate justice of the supreme court of Pennsylvania, denies that he has any idea of resigning his seat on the bench.

(1) Alexander v. Vane, 1 Mees. and Wels. 511; Brittain v. Lloyd, 14 id. 762; Ford v. Keith, 1 Mass. 139; Shaw v. Loud, 12 id. 447; Harpinger v. Solms, 5 Serg. and Rawle, 4; 1 Cromp. and Mees. 480, note (Johnson's ed.); Armstrong v. Toller, 11 Wheat. 258; Bullard v. Raynor, 30 N. Y. 197; see Rust v. Morse, 2 Hill, 656; and Theob. Pr. and Surety, 173, and cases cited.

(2) Curtis v. Leavitt, 17 Barb. 311.

(3) Rust v. Morse, 2 Hill, 656, 657; Pitman Pr. and Surety, 130. (4) Knight v. Chambers, 15 C. B. 561, 80 Eng. C. L.

(5) Ford v. Keith, 1 Mass. 139, 142.

(6) Morgan v. Groff, 5 Den. 364.

(7) Morgan v. Groff, 4 Barb. 524.

(8) Bachelor v. Priest, 12 Pick. 399.

(9) Ellsworth v. Brewer, 11 Pick. 316.

(10) Hantly v. Sanderson, 1 Cromp. and Mees. 467.

(11) Skillin v. Merrill, 16 Mass. 41.

(12) Monroe v. Easton, 2 Johns. Cas. 75.