law suits between other persons in regard to funds in their official custody. Besides, the warden holds the personal property of the prisoners in his charge upon an official trust created by law. It is to be 'preserved by the warden, and to be restored to the prisoner on his discharge.' It is in custodia legis. It cannot be seized by a creditor or diverted to any other purpose. The warden's duty is to keep it for the prisoner, and he cannot lawfully rid himself of the trust except by delivering the property to the prisoner when he is discharged."

In Merrill v. Eastern Railroad Co., Supreme Court of Massachusetts, the plaintiff's intestate was riding upon one of the engines of the defendant. The train having stopped at a station he got off the engine, and after the train had started ran and jumped upon the step of one of the passenger cars. Owing to the crowded condition of the car and platform he was unable to get into the car, and remained on the step. When the train had gone about half a mile, he fell off the car and was killed. Held, that he was not a passenger, and the company was not liable for his death. The court, Holmes, J., said: "If we should assume that the deceased had acquired the rights of a passenger, and that the defendant failed to make proper provision for carrying passengers, or that the train was overloaded by the unfitness of the defendant's servants, still we should have some difficulty in saying that the overloading was the cause of the death, notwithstanding Commonwealth v. Boston & Lowell Railroad, 134 Mass. 211. For if the place which the deceased took was unfit and dangerous its unfitness and danger already existed, and were manifest before he took it. If there was a crowd on the platform the deceased saw it. And certainly the argument would be strong that he, rather than the defendant, was the cause of his being where he was, and of his exposure to the danger incident to that place. But we do not pass upon this point, because we cannot assume that the deceased had

acquired the rights of a passenger. He did not do so when he got upon the engine, a place to which he was not invited, and which every one knows is not intended for passengers, and where in this case he would have escaped paying fare, as it was inaccessible to the conductor. Then, supposing that his start upon the engine did not give a character to his subsequent relation to the defendant, and that the deceased was in the same position as if he had attempted to get on at East Salisbury for the first time, it is clear that when he attempted to get upon the moving train after it had started, he was outside of any implied invitation on the defendant's part, and did not at once acquire the rights of a passenger in the hands of a carrier. We may admit that if he had reached a place of safety, and seated himself inside the car, the bailment of his person to the defendant would have been accom. plished; and that he would not have been prevented from asserting such rights because of his

But we

improper way of getting upon the train. think that he could not assert them until he had passed the danger which met him at the threshold, and had put himself in the proper place for the carriage of passengers. It is no answer to say that he was prevented from doing so by the defendant's fault. There was no evidence that the deceased was compelled to remain on the step of the platform. But even if the jury would have been warranted in finding that there was such a crowd that the deceased naturally stopped where he was, although not strictly compelled to do so, and that the crowding was due to the defendant's fault, still there was no fault as toward the deceased, because the defendant was not bound to provide for the contingency of people getting upon the train after it had started."

This may

In Anheuser-Busch Brewing Association v. Piza, United States Circuit Court for the Southern District of New York, it was held that the plaintiff, of St. Louis, making and exporting beer under the name of "St. Louis " beer, might restrain the defendant, of New York, from the use of that name to his injury. Wallace, J., said: The defendant "alleges that purchasers of beer at Panama and the other places in question in South America do not discriminate between the complainant's article and other beer made in the United States, but buy it simply because they suppose St. Louis lager beer is beer produced in the United States as distinguished from German and English beer. be true, but if it is, it does not seem conclusive against the right of the complainant to the injunction which he seeks. As the goods of the parties go to the same markets it can happen that the complainant will lose sales, and the defendants will get customers in consequence of the defendant's acts. Although the complainant cannot have an exclusive property in the words 'St. Louis' as a trademark, or an exclusive right to designate its beer by the name 'St. Louis Lager Beer,' yet as its beer has always been made at that city, its use of that designation upon its labels is entirely legitimate, and if the defendant is diverting complainant's trade by any practices designed to mislead its customers, whether these acts consist in simulating its labels or representing in any other way his products as those of the complainant, the latter is entitled to protection. It is no answer for the defendant, when the complainant asks for protection, to say that it has no exclusive right to designate its product in the manner, although this might very properly be asserted by a competitor selling beer made at St. Louis, or who by reason of any circumstances might be entitled to represent his product as originating there. Canal Co. v. Clark, 13 Wall. 332." Citing Newman v. Alvord, 51 N. Y. 189; S. C., 10 Am. Rep. 588; and the cases of "Glenfield Starch,” Wotherspoon v. Currie, L. R., 5 H. L. 508, 513; "Anatolia Liquorice," M'Andrew v. Bassett, 10 Jur. (N. S.) 492; "Seixo Wine," Seixo v. Provezende,

L. R., 1 Ch. App. 192. "It is unnecessary for present purposes to consider whether the complainant has a valid trade-mark, or can have a technical trademark in the name St. Louis; it is sufficient that it was lawful for the complainant to use that name to designate its property; that by doing so it has acquired a trade which is valuable to it, and that the defendant's acts are fraudulent, and create a dishonest competition detrimental to the complaint."

In Pritchard v. Hamilton, in the Supreme Court of the Second District, Judge Bartlett has recently decided a rather novel question. The action was brought to recover five months' rent of a dwelling-house in Fort Greene Place, leased by plaintiff to defendant for one year, the lease being signed by both parties. The defendant's only defense was that after the execution and delivery of the lease the plaintiff had without his consent affixed seals to the signatures. Judge Bartlett decides that the addition of the seals was immaterial, and says: "Upon the authority of Green v. Elwell, 13 W. Dig. 236, I think the

v. Chicago, 4 Wall. 657. * * * Such an excavation in a street, unless protected to guard persons and animals using the street from falling into it, was necessarily dangerous. The city was under the statutory obligation at the time of the accident to keep its streets open, in repair, and free from nuisance, and it could not cast this duty upon a contractor, so as to relieve itself from liability to one who should receive an injury. It is primarily liable for an injury resulting from such a dangerous place in a street. If it has required the contractor to assume the risk of such damage it may have a remedy against him. But the public in the use of the streets may rely upon the legal obligation of the city to keep them free from dangerous places,

or if such places become necessary to be made in the course of an improvement or work necessary or them that no injury shall result in the ordinary use proper for the city to do, that it shall so guard of the street.”

TRIAL BY JURY, AS IT IS AND AS IT SHOULD BE.

In Circleville v. Neuding, 41 Ohio St. 465, where a city contracted for the construction of a cistern eighteen feet wide and twenty feet deep in a street, and before it was completed a horse fell into it and was killed, for want of a sufficient guard around it, held, that the city was liable, although it did not reserve or exercise any control or direction over the manner of doing the work, except to see that it was done according to specifications, which were a part of the contract. The court said: "The relation between the city and Barndt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But this liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor of his agents or servants. Where however the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application. This distinction has been taken in this State in a number of cases. Carman v. Railroad Co., 4 Ohio St. 399; Tiffin v. McCormack, 34 id 638; Hughes v. Railway Co., 39 id. 461, and elsewhere, in Mc Cafferty v. Railroad Co., 61 N. Y. 178; S. C., 19 Am. Rep. 267; Prentiss v. Boston, 112 Mass. 43; Baltimore v. O'Donnell, 53 Md. 110; S. C., 36 Am. Rep. 395; Logansport v. Dick, 70 Ind. 65; S. C., 36 Am. Rep. 166; Crawfordsville v. Smith, 79 id. 308; S. C., 41 Am. Rep. 612; Robbins

of some of the defects and inadequacies of that system of trial, is deserving of much more attention on the part of the legal profession and of the law-makers than it is accustomed to receive. That this mode of trial, in both civil and criminal causes, cannot be too highly valued nor too firmly adhered to, goes without saying; yet considered in its practical aspect it is hardly what we would wish it to be, and is capable of vast improvement. It unquestionably falls short of the results which should flow it, because of the un

wisdom of many of the rules by which it is governed, and the manner in which some of those rules are applied in our courts.

That no man should be deprived of life, liberty or property, or have any of his vested rights abridged, except by the impartial judgment of his peers, is a proposition to which almost universal assent is given. It can safely be said that no lawyer of experience, and no experienced layman for that matter, can seriously advocate the abolition of trial by jury. The idea, it is true, has occasionally been voiced, but the speaker has been generally found to be either a man who knew better and was not sincere in his utterances, or an im. becile who knew not what he was talking about. There can be but one sound and healthy opinion on the subject. From the time of Magna Charta trial by jury has been wisely regarded as the supremest blessing secured to mankind in their civil and social life. In our own country the natural rights of life, liberty and the pursuit of happiness, together with the civil right of trial by jury, compose the creed of the citizen. And the opinion is growing in this country that this mode of trial should not be confined to the narrow sphere in which it is now applied, but that it should be extended so as to cover every case where questions of fact are involved in an action in the courts of equity as well as the courts of law.

It is believed that thereby the ends of justice would be surer of attainment in our courts. It is believed that a petit jury, intelligently and properly drawn from the body of the people, are calculated to arrive at a more impartial and correct conclusion on given questions of fact between litigants than any individual judge, however learned and experienced he may be, and however desirous of doing right. It is the opin ion of many members of the profession, who have given

the subject a thoughtful consideration, and who are not too closely wedded to old theories and habits, that our laws should be so changed as to clothe a litigant with an absolute right to a trial by jury in all suits at present triable by the court without a jury under the chancery system, whenever in such cases questions of fact are to be decided; and that the now separate and distinct systems of law and equity, and their peculiar rules of practice, should be fused and assimilated into one simple and harmonious system of law and practice.

determining questions, whatever be their nature, than the minority. As human nature is constituted, a division of opinion is unavoidable among a collection of individuals on almost every conceivable question. The minds of men do not run in the same chaunels; their plans and modes of thought are not the same; they are not impressed in the same manner by a given state of facts; and their conceptions of the relevancy and strength of evidence are not alike. What is a decisive fact to one set of brains on a given issue is not so to another. We are bound to differ in our opinions on social, political and religious matters, in our tastes, iu our moral conceptions, and in our ideas of justice. Able doctors will differ in their conclusions on the same state of symptoms; surgeons will differ on matters pertaining to their science; practical mechanics will differ among themselves on practical questions pertaining to their callings; lawyers of ability will differ as to the strength or weakness of a given case; and even learned judges, whose minds and lives have been dedicated for years to the study of the law, perpetually differ among themselves as to what the law really is upon this or that point. Such being the inherent disposition of the human mind, it is utterly absurd to insist upon unanimity in the jury box. By doing so we clog the wheels of justice, impede the progress of legal proceedings, and unreasonably delay the enforcement of rights and the redress of wrongs. We all know that it not infrequently happeus that ten or eleven members of a jury will be agreed in their conclusions and united on a verdict, and yet the jury will fail to reach a verdict simply because the remaining one or two of their number differ with the majority. The result is a mistrial-a complete waste of the time of court, counsel, parties and witnesses, and a complete waste of the cost and expenses of court and parties.

It would not be a very difficult task to accomplish this object. The old lines and distinctions which have separated the two systems should be obliterated. All rights which the courts recognize and enforce of every kind and description should be susceptible of enforcement under one simple system. We have no further use for the old and cumbersome frictions and theories which have come down to us from the mouldy past. They tend rather to complicate and embarrass than to aid the cause of justice. There no longer exists any reason why one set of rights should be enforced and one set of wrongs redressed in courts of equity and another set in courts of law. In the infancy of the chancery practice there were of course good and sufficient reasons for the application of the then extraordinary rules of relief, in order. to escape the harsh and inflexible theories and fictions of the common law courts and the rules governing the practice therein. Those reasons no longer exist. The extraordinary rules and remedies thus gradually developed for the purpose aforesaid are now firmly established in this country, and form a vast system. They are capable now of being united with the rules and remedies belonging to the courts of law into perfect and harmonious wedlock, so that whenever litigants disagree on matters of fact a jury may determine those matters for them. Thereby greater justice would result to litigants, and the time of the judges would be very largely saved from the consideration of questions of fact. More cases would be disposed of by the courts per annum than now, and litigatious would be more speedily terminated. Our judges would not be compelled to wade through immense masses of evidence and proofs upon which to base lengthy findings of fact whereon to support their legal conclusions, and the time thus saved could be wisely utilized in the consideration of the matters of law applicable to the cases that come before them. Questions of fact which now require weeks for the judges to determine would be decided by juries in as many hours, and more satisfactorily and correctly too as a general rule.

With all that can be said however in praise of the system of trial by jury, it is, as has been said, far from being perfect, even in the cases to which it is now applied. The most prominent defect of that mode of trial as it is applied at the present time lies in the rule which requires unanimity on the part of the jury to determine a question submitted to it. This rule is as illogical and unreasonable in theory as it is unsatisfactory and harmful in results.

Unanimity on the part of a body of individuals, clothed with the power of deliberating upon and determining questions of a public or private nature is enforced only in the jury box. In all other bodies aggregate the convictions of a majority is sufficient to constitute a binding determination. In the English Parliament, in our Congress, in our State Legislatures, in subordiuate legislative bodies, in grand juries, in the boards which regulate trade and commerce, in international commissious, the majority rule prevails, as it does in the appellate branches of our Federal and State courts. It so prevails in those bodies, for the very self-evident reason that the majority are more likely to be right in

Oftentimes these mistrials result disastrously to poor litigants, who are not pecuniarily able to continue in the legal pursuit of their rights. Sometimes a series of such mistrials occur in the same case on account of the want of unanimity among the jury. It is time the Legislature eliminated this absurd rule from our practice, for there is no reason that can be presented why a majority of eight of nine of a petit jury should not constitute a binding determination. The rule that the majority shall prevail lies at the very foundation of our institutions, and logically belongs to the jury system.

This reasoning applies as well to criminal causes as to civil, except that in capital cases, where a human life is at stake, a majority of ten might be made the rule. Many a criminal has escaped well merited punishment because he happened to be fortunate enough to have one or two dissenting jurors in his favor, preventing a conviction. It is the aim of criminal lawyers with a desperate case to secure one or two of the jury in favor of the prisoner, and thus save his client; and this way of saving criminals is quite common. Ꭺ disagreement of the jury in criminal cases, so far as the prisoner is concerned, is generally equivalent to an acquittal, and is followed by liberation. The pressure of business in the hands of prosecuting attorneys will not permit them to spend their time in retrying cases in which juries have disagreed.

Another unpleasant feature of the system of trial by jury as applied nowadays lies in the fact that the quality of citizens that we were wont to see in the jury box in bygone times is found there no louger. It is a matter of common knowledge that the more intelligent and better qualified classes of citizens do not serve as jurymen. By some peculiar way they fail to be drawn from their private paths to the public duty of jury service, or if perchance drawn, manage to get ex

cused. All lawyers know this to be a fact. Private convenience and personal interests are regarded of greater importance than the public interests and the proper protection of litigants in their rights and properties. As a result there is generally left for this important public service but a residuum of stupid and incompetent species of the genus homo. In fact our average jury nowadays represents but a minimum of the intelligence and respectability of the community.

Of course at infrequent intervals we see a tolerable amount of intelligence and competency in the jury box; that sight however is phenomenal; it is not the rule, but the exception. It is true that some of the judges are exerting themselves to correct this evil, and to improve the quality of juries; but we know by personal observation that most of our judges are ceedingly indifferent in the matter, and habitually excuse the larger part of the more competent citizeus who are noticed before them for jury service.

ex

A flimsy excuse, based solely upon personal convenience of the individual, or the interposition of some influential friend, is sufficient to enable the applicant to escape his duty. As a result of this excusing process, and of the failure of the proper officials to draw from the community the more capable citizens for jury duty, we are compelled to try our cases before juries with whom stupidity, prejudice and unreasoning sympathy are the cardinal characteristics.

It were as reasonable and proper in time of war to excuse our able-bodied men and draft none but cripples and puny-bodied unfortunates to fight our battles and save the country. There are thousands of intelligent and desirable men in our large cities who are never drawn for jury service, and thousands who, when accidentally drawn, invariably get excused through the favor of the presiding judges.

Men have lived in our midst for years, enjoying the protection of life, limb and property which the law secures to them, who have never given a moment to jury service, while others are called for such service to this court or that court once or twice a year. This is not because we have not adequate statutory provisions upon the subject.

In this regard I do not suppose our statutory rules can be improved upon. The fault lies in the application of those rules by the officials whose duty it is to see that the letter and spirit of the statute is carried out. It is not for me to say why these officials fail to do their duty, but it is an established and undoubted fact that they don't do it. There are scores of familiar faces we constantly see in the jury box, while there are hundreds whom we meet in our business and social walks every day whom we never see doing jury service, and what is more, we know hat most of them have never done such service. Men engaged in mercantile pursuits, in banking, in real estate, in manufacture, in the higher occupations, though not exempt by law from jury duty, are most of them exempt in fact. The coal-heaver, the hod-carrier, the street-vendor, the knight of the pickaxe and shovel, and people of that sort, men of little or no experience in the general affairs of the world, who are illiterate and narrowminded, constitute about four-fifths of the men who nowaday determine the all-important issues that are taken into the courts for determination.

I do not mean to say that these men in the lower walks of life are objectionable because of their unfortunate conditions; but I do mean to say that such men are generally unqualified intellectually and otherwise to properly discharge the duties which usually devolve upon jurors. Their misfortunes and unpleasant positions in life tend to sour their tempers, and make them constitutionally discontented and pessimistic; and these traits, together with their want of knowl

edge and experience in the general affairs of the world, utterly unfit them for jury service. Their sympathies and prejudices may be operated upon, but their free and impartial judgments are usually too feeble to be brought into play.

If we are entitled to have competent physicians when we are sick, competent carpenters to build our houses, competent men to man our navy, competent executive officials to administer the affairs of government, and competent judges to expound and administer the laws, so we are equally entitled to have competent jurymen to determine our cases they should be the better classes in the community in point of intelligence and experience.

As an outgrowth of this deterioration of the quality of our juries, of which I have spoken, we find that damage suits based upon negligence, trespass, slander, etc., bave multiplied most wonderfully of late years. The courts are fairly choked with such cases. Negligence suits in particular, instituted against corporations and well-to-do individuals, have increased to such an extent that little else seems to occupy the time of the courts. This is undoubtedly the result of the inferior quality of jurors made use of nowadays, for it is well known that in that class of cases appeal is made to the sympathies and prejudices of juries rather than to their reasoning and judging faculties. The aim is always to persuade, not to convince. Cases which in bygone years lawyers would be ashamed to bring into court before a jury of intelligence and respectability, are now freely and unblushingly lugged into the courts before juries, and meet with considerable success. Of course in such cases where an impecunious person is on one side, and a corporation or wellto-do individual on the. other, the latter stands but little show. The idea of equal and exact justice between parties is utterly disregarded. A corporation, especially if it be a railroad, steamboat or manufacturing company, seems to be regarded as an institution whose funds are legitimately available for distribution by juries among all persons who come into the courts to seek for them. And the same idea prevails where an individual, who by industry and economy has been enabled to gather to himself a quantity of this world's goods, is made defendant. The weight and preponderance of evidence in the case, one way or the other, is but seldom regarded; for so long as the case goes to the jury they exercise the privilege of pronouncing generally upon the issues, without being able, if called upon, to give any good reason why they came to their general conclusion.

If in such cases the plaintiff's lawyer can so shape his case as to escape by a hair's breadth a nonsuit, then the chances are nine out of ten in his favor for a verdict, however weak or suspicious may be his case. We see this illustrated every day. Juries do not discriminate between well founded cases and weak and doubtful cases, but through the general propensity of their unreasoning and sympathetic souls almost invariably find for the plaintiffs in the class of cases alluded to without distinction. Probably forty per cent of the verdicts so rendered are unjust, undeserved and against the preponderance of evidence. In actions founded upon slander, libel, assault and battery, and in civil damage suits under the statute, the percentage of unjust and improper verdicts is about the same as in the negligence suits. The judges and the lawyers are all conscious of this unpleasant fact, yet little effort has been made to remedy the evil.

Were the quality of our jurors improved; were the more experienced and intelligent classes of our citizens made to do their proper share of jury duty in our courts, causes would be determined more upon their merits than they are now, and the "contingent-fee

lawyer," the "ambulance lawyer," and the "civil damage-suit lawyer" would be relegated to the realm of obscurity, where they belong. These new-born specialists have cheapened and lowered the general tone of the profession; they have glutted the courts with unjust and scaly cases taken upon speculation; and are encouraged in their work by the manner in which trial by jury is at present managed.

There is no reason why every citizen, whatever may be his walk in life, should not be called upon in turn to serve in the jury box. The public interests and the ends of justice should not be subordinated to the private convenience of individuals. No person not exempt by statute should be allowed immunity from jury service, unless it be temporarily and for very potent reasons. The judges of our courts should not be content to do without the services of the better classes of citizens simply because they have enough of the inferior class to carry on the business of the courts. A citizen who has inportant interests at stake in our courts is entitled to have his rights passed upon by men of intelligence and experience, who are competent to understand and decide the issues involved. No man who enjoys the protection of the law and the blessings of a free government, and who is not especially exempt by statute, should be excused from doing his share of jury duties. There should be no discrimination, no partiality on the part of the commissioners of jurors, nor on the part of the judges. The bench and the bar should unite and labor together for the correction ofthe evils to which reference has been made.

In the first place, the statutory rules for the impartial drawing of jurymen from the body of the people should be strictly enforced, so that in so far as it is possible, every unexempt citizen should do his share of jury duty.

Secondly. The favor of the trial judges should be very sparingly extended to applicants who for private convenience strive to shirk their duty in this field of public service, which every citizen who is protected by the laws owes to the community in which he lives.

Thirdly. A strong effort should be made and vigorously persisted in to obtain legislation doing away with the rule requiring unanimity in the jury box, and making the agreement of a majority of eight or nine in civil cases, and ten in criminal cases, a binding determination of a jury.

Fourthly. A like effort should be made for the extension of the mode of trial by jury to all questions of fact involved in suits in equity as well as in actions at law, and for the consolidation of the two systems into one simple system of procedure.

The margin for reform in the matters alluded to is very broad; the plans to be adopted to accomplish such reform are apparent and feasible; the objects to be accomplished are worthy of the effort; and the bench, the bar, and the press should not be slow in undertaking the duty which lies before him.

S. STEWART WHITEHOUSE.

NEGOTIABLE INSTRUMENTS - IRREGULAR INDORSEMENTS.

UNITED STATES CIRCUIT COURT, W. D. TENNESSEE, FEBRUARY 6, 1885.

MILLER V. RIDGELY.*

A blank indorsement by a stranger to the note, made before delivery to the payee, to secure to him a pre-existing debt of the maker, and extend the time of payment, binds the *S. C., 22 Federal Reporter, 889.

indorser as a joint maker, under the rule of the Supreme Court of the United States, and as a guarantor under the rule in Tennessee and Texas, where the parties respectively resided.

The defendant indorsed in blank a few days after its date the note sued on, which a few days later was delivered to the plaintiffs by C. H. Bond & Co., and accepted in payment of a balance then due by said C. H. Boud & Co. to the plaintiffs on an open account of dealings between them as merchants and bankers. The note is as follows: "$2,500.

BELTON, Texas, February 1, 1882. "Twelve months after date we promise to pay to the order of Miller Bros. twenty-five hundred dollars at their office in Belton, Texas, with interest at the rate of eight per cent per annum from maturity until paid, value received.

"Indorsed: "S. E. RIDGELY."

"C. H. BOND & Co.

When the note was due it was protested for nonpayment, and notice was sent to the defendant at Memphis, Tenn., where he resided.

There was no other consideration for the note than the balance due the plaintiffs, as bankers, from C. H. Bond & Co., merchants, on an account arising out of dealings previously had between them, and the extension of the debt for the twelve months the note had to run to maturity. The defendant in no way participated in that consideration, or received any benefit from it.

C. H. Bond was a nephew of defendant, and doing business in Texas as a cotton merchant. At the date of the rote he owed the plaintiffs a balance of $2,500 on a banker's account, aggregating some $300,000, from May 12, 1881, to the date of the note, which balance plaintiffs had demanded that he should secure before auy further facilities would be extended. He expressed the belief that his uncle at Memphis "would go on a note" at twelve months, and thereupon opened negotiations with him by mail. He informed the plaintiffs, just previous to the date of the note, that his uncle "would go his security on the note," and thereupon the plaintiffs, in their banking office, on the day of its date, prepared the note sued on, and it was signed by bond in the name in which he did business, and by him sent in the mail to his uncle at Memphis, where it was indorsed and returned by mail to Boud, who, about February 11, 1882, delivered it to the plaintiffs.

The plaintiffs expected and intended that the defendant would sign as maker, jointly with C. H. Bond & Co., but they had no distinct understanding with Bond or the defendant to that effect. Their only agreement with Bond was that they would take a twelve-months note with his uncle "as security." They accepted the note as it was handed to them by Bond, without complaint as to its form, and subsequently, in their correspondeuce and otherwise, treated it as an indorsement by Ridgely.

The defendant at first refused his aid to his nephew, but being assured by his letters that "he had received a sacred promise from plaintiffs that he should never be called on for payment, except in case of Bond's death without paying it, and that their only purpose was to provide against that event, as he had made arrangements to continue business with plaintiffs, who promised to extend all necessary facilities," he indorsed the note with no other intention than to make that contract.

Bond did continue business with plaintiffs until August 30, 1882, when his account was again in balance against him, and plaintiffs refusing further credit, he made an assignment and left the State.