held not to discharge the surety, although the contrary is held by some courts of the highest respectability. Wright v. Bartlett, 43 N. H. 548; Deal v. Cochran, 66 N. C. 270.

A covenant not to sue is not necessarily an agreement to extend the time for payment. The debtor or his surety, notwithstanding a covenant not to sue the principal debtor, could, if he desired, pay the demand before the expiration of the time named in the covenant, and the creditor would be compelled to receive it. Such a covenant neither modifies the original agreement nor changes its terms, but leaves that contract in full force, and does not suspend the right of action upon it. Not so, however, as to an agreement upon sufficient consideration to change the time of payment or performance or any other of the terms of the contract. The contract, wherein it has been so modifled, is at an end, and the terms of the new agreement become substituted for so much and a part of the original contract. Greenlf., supra.

The evidence in this case tended to prove an express agreement in consideration of ten dollars paid to the creditor for an extension of the time for payment of the balance of the note. If it was legal interest in advance, the payment thereof was a sufficient consideration to support the express promise.

"In the first place, as to considerations arising from benefit or injury: The principal requisite, and that which is the essence of every consideration, is that it should create some benefit to the party promising, or some trouble, prejudice or nconvenience to the party to whom the promise is made. Wherever, therefore, any injury to the one party, or any benefit to the other party, springs from a consideration, it is sufficient to support a contract." Story on Contracts, sec. 548.

"Every, party to a contract may ordinarily exercise his own discretion as to the adequacy of the consideration, and if the agreement be made bona fide, it matters not how insignificant the benefit may apparently be to the promissor, or how slight the inconvenience or damages appear to the promisee, provided it be susceptible of any legal estimation." Ibid.

That interest paid in advance is a sufficient consideration to support a contract for the extension of the time of payment of a note or other money demand, is fully sustained by the following cases: Smarr v. Schnitter, 38 Mo. 479; Lime Rock Bk. v. Mallet, 34 Mo. 547; Bank v. Woodward, 5 N. H. 99; Wright v. Bartlett, 43 N. H. 548; Montague v. Mitchell, 28 Ill. 485; Kennedy v. Evans, 31 Ill. 258; Myers v. First Nat. Bk, 78 Ill. 258; Cross v. Ward, 30 Ind. 378; White v. Whitney, 51 Ind. 124; Vilas v. Jones, 10 Paige, 76; Miller v. McCann, 7 Paige, 441; Kenningham v. Bedford, 1 B. Monroe, 325; Austin v. Dorman, 21 Vt. 38. In most of the above cases it was held that payment of usurious interest is a sufficient consideration for the promise to extend the time of payment.

We are aware that the contrary was held in Wiley v. Hight, 39 Mo. 132; and in Farmers and Traders' Bank v. Harrison, 57 Mo. 506; but the case principally relied on to support the ruling

was Marks v. Bank of Missouri, 8 Mo. 318, in which Judge Scott expressly stated as the ground of that decision that "the usurious interest might have been recovered back the next moment after it was paid." Such is not the law at present in this State. Ransom v. Hayes, 39 Mo. 445; Rutherford v. Williams, 42 Mo. 18. If usurious interest be paid, it can not be recovered back; and if one make an agreement to extend time of payment of a note or other money demand, in consideration of usury paid, the agreement is binding upon him. If the consideration be a promise to pay usury, as this promise could not be enforced and would not maintain an action, the contract would not bind the other party. The distincton is between executed and executory contracts. In Fawcett v. Freshwater, 31 Ohio St. 637, an agreement in consideration of the same rate of interest named in the note for the extension of time of payment without payment of interest in advance, if made without the knowledge of the sureties, was held to discharge the sureties. It is contended by appellant's counsel that defendant, having executed the note as a maker, stands as a principal debtor after indorsement, and the indorser as a surety.

This might be true if the paper were negotiable in the ordinary course of business. If Stillwell had purchased the note of the payee, even with knowledge that Aaron had executed it for accommodation, he, under the case cited by counsel, would have had the right to treat him as principal, and Steers as his surety throughout, The cases cited fully sustain that view. But here there was a borrowing of money. It was prearranged by Stillwell, Blair and Steers, who borrowed the money, that the latter should procure the name of some other person to the note as surety. It was in no sense a note negotiated in the ordinary course of business, or rather of a note bought by Stillwell of the payee.

It was of such a note that it was said in Bank of Montgomery v. Walker, 9 Serg. & Rawle, 238, that, "when the note was indorsed it passed into the defendant's hands as a business note; it was drawn in that form; it was negotiated in that form; it assumed that shape to serve the purpose of Walker & George." There Walker & George, the payees, were the principal debtors, and the maker had executed the note for their accommodation.

That case is distinguishable from this, in the fact that there the note was executed by the maker under circumstances which indicated that he intended to be held as the principal debtor.

In Laxton v. Peat, 2 Camp. 185, the doctrine was announced by Lord Mansfield that "if the indorsee of a bill of exchange having notice that it was accepted without consideration, receive part payment from the drawer and give time to pay the residue, he thereby discharges the acceptor," but this was afterwards denied in Kerrison v. Cooke, 3 Camp. 362, by Gibbs, J., and also in a case in 11 Ves.; also in Fentum v. Pocock, 5 Taunt. 192.

We think it will be found that the recent American cases do not hold the strict doctrine announced in the English cases, which repudiate that held by Lord Mansfield in Laxton v. Peat. Regard is

to the substance of the transaction, and the agreement of the parties express or implied. If one who is but a surety execute a note as maker or accept a bill intending to be held as a principal, and the security is so taken by the indorser, he may be treated in the character he has assumed on the face of the transaction, notwithstanding the holder when he received the security was aware that the maker and acceptor had become so for the accommodation of the drawer of the bill or indorser of the note. This proposition the authorities fully sustain.

The German Savings Association v. Helmrick, 57 Mo. 100, was a case like the present. The note was executed by Helmwick & Co. and James M. Ward, payable to Helmwick & Co., who assigned it to the German Savings Association. Ward executed the note for the accommodation of Helmwick & Co., and the court decided that Ward was released in consequence of binding agreement for extension of the time of payment between the holder and Helmwick & Co.

In the case at bar the court erred, not to the prejudice of plaintiff, however, but against the defendant. The cases of Hosea v. Rowley, 57 Mo. 357, and the German Savings Association v. Helmrick, Id. 100, seem to have been misunderstood by the court below. The opinions in those cases do not really assert a doctrine different from that here announced.

The judgment is affirmed. All concur.

NATIONAL BANKING ACT-EMBEZZLEMENT.-Section 5209 of the National Banking Act, which provides that "every president, director, cashier, teller, clerk or agent of any association who embezzles, abstracts, or wilfully misapplies any of the moneys, funds or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the association, with intent in either case to injure or defraud the associa tion or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and any person who, with like intent. aids or abets any officer, clerk or agent, in any violation of this section, shall be deemed guilty of a misdemeanor," construed.

2. THE WORD "EMBEZZLE,” as found in the United States Revised Statutes, is used to describe a crime which a person has an opportunity to commit by reason of some office or employment, and which may include some breach of confidence or trust.

Motion to quash indictment.
LOWELL, J.:

These indictments are drawn under section 5209 of the Revised Statutes: "Every president, director, cashier, teller, clerk, or agent of any association" (that is, national banking associations, which are mentioned in this chapter), "who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association, or who, without authority from the directors, issues or puts in circulation any of the notes of the association, or who, without such authority, issues or puts forth any certificate of deposit, draws any order or bill of exchange, makes any acceptance, assigns any note, bond, draft, bill of exchange, mortgage, judgment or decree; or who makes any false entry in any book, report or statement of the associatio, with intent in either case to injure or defraud the association or any other company, body politic or corporate, or any individual person, or to deceive any officer of the association, or any agent appointed to examine the affairs of any such association; and any person who, with like intent, aids or abets any officer, clerk or agent, in any violation of this section, shall be deemed guilty of a misdemeanor."

The principal points that have been taken appear to be objections to the mode in which the indictments charge this crime. That may be subdivided, and there are two principal objections:

One is that the facts to show an embezzlement, as distinct from some other crime-for instance, larceny are not sufficiently set out in the indictment, and has been very fully and ably argued from what may be called the foundation. The leading idea of the argument is that the word "embezzle," by its own force, describes something which was known to the common law, and now by statute, like the words "murder" and "steal;" and that the sense in which the word "embezzle" is already well known in our laws, must give the interpretation to the word in this statute.

That is a very important point, and I have given it such attention and consideration as I might. I have come to the conclusion that there was no common law definition of embezzlement when our Constitution was formed. There was a very ancient statute, which was in force in some of the States and not in others-that of Henry VIII-at least it has been decided not to be in others, though I should have supposed it was in all; but I must take the decisions, of course. But if there was any such statute, which by reason of having been passed as early as Henry VIII was in force here, it does not define the word "embezzlement" in this statute. There was no common law definition of it, there never has been, and there is not now. Some elements of the crime are probably common to the statutes, and also to the familiar meaning of the word; that is to say, the word appears to

mean, whenever used to distinguish a crime which a person has the opportunity to commit, by reason of some office or employment which may include, in its signification, some breach of confidence or trust, some misuse of an opportunity of that sort. That is about all, I think, that can be found of a general nature in the meaning of the word. I do think, however, that there is one mode of comparison-one source of comparison-and that is by the various statutes which make up the body of the Revised Statutes-all passed on a certain day of 1874, and all forming one body of law.

Examining the word "embezzle," as used in these various statutes, which are all contained in this very large volume now, I think it will be found that the only general idea which runs through the whole use of the word "embezzle" generally, is the one that I have stated.

The crew of any merchant vessel may commit the crime of embezzlement in regard to the cargo or stores of the vessel. That cargo and those stores are not in their possession, and not entrusted to them in any technical sense. They are not in law in the possession of a seaman. He has an opportunity, being a member of the crew, to steal them. Undoubtedly it would be larceny at common law, but it would be embezzlement by the statute, if he took them fraudulently to convert to his own or some improper use.

Any person who receives public money from any agent of the United States-some agents being designated by a particular name, and also a general word being used-without authority, not being a duly authorized depository, commits the crime of embezzlement in receiving that money. He becomes a sort of agent, and cannot say he was not an agent, and is guilty of embezzlement, for the statute says: "Every banker, broker or other person not an authorized depository of public moneys, who knowingly receives from any disbursing officer any public money on deposit, or by way of loan, is guilty of an act of embezzlement."

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There are many other statutes. The word as used in the post-office laws, applies only to agents, clerks, etc., of the United States. But if I remember rightly-I have not looked at all the statutes, but I have a very strong impression, for I have tried a good many of the cases-it does not depend upon the letter being intrusted to the particular officer or clerk or agent, under the circumstances which would constitute embezzlement under many of the statutes. Any officer of the mint or assay office may embezzle coins, medals or moneys in his charge, or of which he assumes charge, or any other moneys, medals or coins in his office.

It is very apparent, I think, from an examination of these various statutes, which were re-inacted on the same day, and which before that time formed a body of law enacted at various times, that the word is not used generally in the statutes. I do not know that it is at all in the United States in so sharp and technical a sense as it has been construed to be under some statutes, and of course the definition of the crime must be followed by the courts. There is no definition of it here or in any

of the statutes of the United States, but the word is used in such a way as to show the meaning which I have mentioned, and therefore I think, though I do not find it necessary to decide, that it will not be found, when the point comes to be decided, that in those cases those rules that have been laid down in some courts-and the courts have differed as the statutes have-those sharp lines would be found to be drawn about the word "embezzle" in the statutes of the United States. But I do think and this is a point of law not pleading-I do think that the intent here governs the whole fraud. It is not a perfectly clear point. In the only case that is cited on either side, the pleader averred that the acts had been done with intent, as I gather from the report. There are several counts. In one, for instance, an embezzlement with intent was charged. In the next, abstracting with intent. In the next, willful misapplying with intent. It was conceded, therefore, in that case by the prosecuting attorney representing the government, that the intent governed the whole cause. The court carefully say that they do not decide that point, evidently seeing ambiguity and doubt which had not been argued to them, and therefore, perhaps, having quite as much weight as if it had been argued, as showing how a person reading the statute would say there was a doubt on this point. But when taken with the original statute, in which there are no semicolons, and if it is taken with the remainder of the section-"Every person who with like intent aids or abets any officer, clerk or agent in any violation of this section"-I think the better opinion is-and of course we must decide the doubtful points as well as the clear ones-that that governs the whole section. There are reasons for it also, as was said by the counsel in argument. A person may willfully misapply money without doing any wrong in fact, and without Intent of any. For instance, he may pay Mr. "A" instead of Mr. "B," both being honest creditors. It is a misapplication, and it might injure or not the employer.

"Abstracts;" that is rather a tender word. That might possibly be held to be committed without willful intent, and even without actual injury. That is a matter that is a good deal discussed in the case of the United States v. Taintor, assuming that the intent is necessary. The meaning and importance of the intent is a good deal discussed on the supposition that it is a part of the statute.

mean

in

The word "embezzlement" of itself would hardly seem to require any such qualification, because I think that would carry in any sense-I in any sense which it could be used-would carry with it some intent. But when we look back to one of the statutes I have cited, it will be seen that the mere receiving of public money is embezzlement. There is embezzlement without intent, and without injury in fact. So that as to the meaning of the word. embezzle"-taking, as I do take, the meaning of that word from the statutes of the United States themselves, it might be necessary (in the opinion of Congress, I mean, for I have nothing to

do with that) to say that that crime could not be committed without the positive intent to "injure" or "deceive," or "defraud," for all three words are used, and at any rate as to the two words "abstract" and "misapply," there is an obvious reason for it.

I think I can see why the semicolons were put in, and that is to meet another argument made that the words “such authority" govern the whole sentence. It is very clear they do not. This section is carefully parted off by the semicolons, and by the sense also. "Every president, director, cashier, teller, clerk or agent of any association, who embezzles, abstracts, or willfully misapplies any of the moneys, funds, or credits of the association;" 46 or who, without authority from the directors, issues or puts in circulation any of the notes of the association;" and that must be done with 'intent to defraud, or injure or deceive; and then, repeating the words "without such authority,' and it is repeated because they meant to repeat it. "Or who without such authority issues, or puts forth any certificate of deposit, draws any order or bill of exchange, mortgage, judgment or decree;"

Now, in the next clause of the sentence they -omit the words" without authority," so that it is perfectly clear. I think, from the statute, that whenever they meant to say "without authority," they do say so, and when they do not say so they do not mean so to do. They put these words in twice, and leave them out of all the others, and they part off the seutence carefully with semicolons so as to show to what portions of it these words are intended to refer, and that is the reason why the semicolons were put in.

I have consulted Judge Nelson about it, and he agrees with me. That being so, I think that the only counts which are sufficient, are those for making false entries. To be sure the statute says, sec. 1025, "No indictment shall be deemed insufficient in matter of form

only."

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That "only" is important. It must be a matter of form," and in construing that in this circuit we have been very liberal. I have no sympathy with the extreme technicality of the ancient crimnal law-do not like it, and do not believe in it. At the same time, I have to administer it as I find it, and anything which forms a part of the description of the crime, does not seem to me to be a matter of form. In this particular case it might turn out to be a matter of very little importance. Undoubtedly the intent might often be presumed from the fact; but when Congress, sees fit to make the intent part of the crime, I do not think the courts have any right to say it is a mere matter of form. So far as "misapplying" and "abstracting" are concerned, that is a very important part of the substance. I do not think that this statute means that we should find out what is an important point of the substance, but only an important point of form. I do not mean to say that the matter of substance may not be very loosely stated, and if the substance of the offence is loosely stated-badly stated-imperfectly and ungrammatically stated, still, if the meaning

1. NEGLIGENCE RAILROAD COMPANY USING TRACK OF ANOTHER COMPANY.-A railroad company using the track of another company for the purpose of transporting passengers and property, is liable for damages caused by defects in the road, or through the negligence of the servants or employees of the latter company. This rule applies as well to its own employees as to passengers and freighters.

2. MASTER AND SERVANT- CONTRIBUTORY NEGLIGENCE-FELLOW-SERVANT.-In an action for injuries to a servant, caused by the negligence of the master, the contributory negligence of a fellow-servant is no defense. Contributory negligence to defeat such an action must be that of the plaintiff, or of some person for whose acts he is responsible.

Appeal from the Circuit Court of Sauk County. Smith & Lamb, for appellant; J. W. Lusk, for respondent.

TAYLOR, J., delivered the opinion of the court: This is an action commenced by the plaintiff to recover damages for injuries sustained by him whilst in the employ of the defendant. The injury occurred whilst the plaintiff as a fireman was assisting in running a train of cars on a short line of railroad extending from its main track to Crystal Lake, a distance of about one mile. The evidence shows that this short track was built by private persons for the purpose of shipping ice over the defendant's road, and that the owners of the ice houses at the lake kept the road in repair. It also shows that this track was never used by any other railroad company except the defendant, and whenever desired by the men controlling the ice business at the lake, the company sent its cars and engines over the track for the transportation of the ice to market. The proof shows that the plaintiff was directed by the proper officer of the company to go upon the engine of the company as fireman, and assist in running cars in and out over this track, and that whilst he was so engaged, and whilst backing in a train of empty cars from the main track to Crystal Lake, the track gave way, and several cars and the engine upon which he was engaged as fireman were thrown from the track, and he suffered severe injuries to his arm, head and other parts of his person.

The evidence shows that the train which was so thrown from the track consisted of twenty-one empty cars, and that it was being backed over the track at the time at a speed of from ten to twelve

miles an hour; it also shows that the immediate cause of the accident was the giving way of the rails at a place where the ties were very defective and rotten, and where there was a short rail in the track.

The evidence tends to show that some of the officers of the defendant had some knowledge that this side track was not at the time in a very safe condition, and that the conductor of the train upon which the plaintiff was employed at the time of the accident, was cautioned by the train dispatcher, when sent out to run over such track, to run slow. The plaintiff recovered in the court below, and the defendant appealed.

The learned counsel for the appellant insists (1), that the court below erred in holding that the defendant was liable to the plaintiff for an injury resulting from the insufficiency of the railroad track which it did not own, and was not bound to keep in repair; and (2), that the court erred in refusing to so instruct the jury, "that if they found that negligence of the defendant's employees caused the injury, or contributed to it, the defendant would not be liable," and because in reply to such request, the judge said he did not think there was any negligence on the part of anybody running that train, "I mean the train hands, that the negligence, if any, was higher up;" and (3), that the damages were excessive, and that the verdict should have been set aside, and a new trial granted for that reason.

We do not think the first point well taken. The authorities are quite uniform, that when the railroad company uses the track of another company for the purposes of transporting passengers or property, the company transporting the persons or property is liable for any damages which may be sustained, either by the passengers or the owners of the property so transported, caused by any defects in the road of the other company so used, or from the negligence of the servants or employees of such other company occurring during such transportation. Redfield, in his work on the Law of Railways, says: "The rule of law in regard to passenger-carriers, who run over other roads than their own, seems now to be pretty well established, that the first company is responsible for the entire route, and must take the risk of the negligence of the employees of the other companies.” 2 Redfield on the Law of Railways, 303. See Railway Co. v. Barron, 5 Wall. 90; 2 Redf. Am. Railw. Cases, 471; Central R. Co. v. Kanouse, 39 Ill. 272; McElroy v. Railroad Co., 4 Cush. 400. We are of the opinion that proper regard for the safety of both passengers and property transported by railroad companies requires that such rule should be maintained, and that when a corporation of this kind undertakes to transport passengers or property from one point to another, such passengers and the owner of such property have the right to throw upon such corporation the responsibility of seeing that the roads used by them for such transportation, whether owned by them or not, are safe and in good repair, and that those having them in charge, whether the employees of such company or not, shall exercise due

care and diligence to secure the safe transportation of such persons and property. Any other rule, would, we think, be destructive of the rights of the public in the use of railroads.

We are also of the opinion that the same rule should apply as between the railroad company and its employees, and we do not understand the learned counsel as contending that a different ruleshould apply, as between the railroad company and its employees, and the railroad company and passengers and freighters. In the case at bar, there would seem to be every reason for holding that the same rule should apply. The company, when the accident happened, was running its trains over a short line of road, which terminated at the main track of its road, which was never used as a railroad for any purpose except as the trains of the defendant ran over it, and for all practical purposes was of no use as a railroad, except as used by the defendant. There is no evidence that the plaintiff had any knowledge that the road did not belong to the defendant, and he had every reason for supposing it did He was directed by the proper agents of the defendant, to assist in running its cars and engines over it. As between itself and its employees, who were directed to use the road in the business of the defendant company, such employees have the right to treat the road as the company's road, and the company as to its employees was bound to see that such road, whilst so used for its benefit by its employees, was in such condition as not to unnecessarily endanger their lives or limbs. There was no error, therefore, in refusing to nonsuit the plaintiff or direct a verdict in favor of the defendant, as there was no claim made by the counsel for the defendant that there was not sufficient evidence of negligence to carry the case to the jury on the part of the defendant, in the matter of keeping the track of such road in a safe condition, if by law they can be held responsible for its not being in a safe condition.

The exception to the refusal of the learned circuit judge to give the instruction asked, and his remarks accompanying such refusal, we think must be held to be well taken, especially as his general charge was entirely silent upon the point sought to be raised, and which we think the defendant, upon the evidence in the case, had the right to insist should be submitted to the jury. We have very serious doubts whether the defendant had the right to demand of the court an instruction that if the negligence of a co-employee contributed to the injury the plaintiff could not recover, but we are very clear that he had the right to demand an instruction that if they found from the evidence that the accident happened by reason of the negligence of a co-employee, then the plaintiff could not recover. As the instruction asked was in the alternative, if the learned judge had simply denied it, without comment, we should have hesitated to reverse the judgment for that cause, but as the learned judge, as a matter of law, decided there was no evidence of any negligence on the part of any persons in charge of, or running the train at the time, which would have caused the