tion has not been passed upon by the appellate court. If he is shown by argument to be wrong, he is not so lost in pride of opinion that he will not frankly change his views. Not so, however, when he has the approval of the Supreme Court behind him by memorandum decision. He would not then dare, for he would thus invite reversal.

Worse still, the decision has become law for the whole state. The point has been presented, argued, decided upon-but the law has not been declared. If there is any virtue in the doctrine of precedents, the case is, so long as the memory of it abides with the particular bench, as definitely part of the tissue of the law of that State as if it had been handed down by formal opinion Pity the unfortunate wight of a lawyer, the hapless judge of a court of first instance, who go merrily on their unwitting way, ignorant of the law they help to administer. It reminds one of that Roman ruler who wrote his laws small and posted them high, that they might not be read, in order to enjoy chastising offenders thereof. Yet we are supposed to do reverence to the maxim "Ignorance of the law is no excuse."

We consequently have litigation that would never have arisen, and judgments that no preparation could anticipate, all as the product of the memorandum decision. Each circuit or district has its memorandum decision law. Hundreds of points have become fixed by an unpublished and unwritten process. law, we encourage more cases.

In order to have less case

No case that goes to an appellate court is so unworthy as not to warrant a short statement of facts, a short point, and a citation of authority. If the appellate courts do not wish to consider cases, they can adopt a few salutory rules about printing the record and the briefs, or the like, and close their doors to supplicants. Far better this than that they admit the appeal by the front portal and let it escape by a rear exit.

GEORGE PALMER GARRETT.

Kissimmee, Fla.

BILLS AND NOTES-STATUTE OF

LIMITATIONS.

HOLLAND v. TJOSEVIG.

Supreme Court of Washington. Dec. 18, 1919.

156 Pac. 317.

Where one signed a note as a joint maker, is an accommodation to another maker, and subsequently paid the note, his cause of action against his comaker to recover the amount paid did not accrue until the note was paid, and limitations then began to run.

MAIN, J. The purpose of this action was to recover money which the plaintiff had paid on a promissory note he claiming that it was the primary obligation of the defendant. The cause was tried to the court without a jury, and resulted in findings of fact, conclusions of law, and a judgment sustainng the plantiff's right to recover. From this judgment the defendant appeals.

On April 6, 1908, the appellant and respondent at Valdes, Alaska, signed and delivered a promissory note, payable to A. L. Levy & Co., and due six months after date. The note was a joint and several obligation, upon which both of the parties signing were liable as principals. On September 19, 1913, the respondent paid the note to the holder thereof. In the complaint two Alaska statutes are pleaded, one relative to the interest rate in that district, and the other the statute of limitations. The latter statute, among other things, provides that an action upon a contract, express or implied, shall be barred after the lapse of six years. When the cause was called for trial the defendant asked leave to file an amended answer in which he sought to plead the same statute of limitations as a defense. This request, upon objection by the respondent, was refused by the court. The present action was begun on February 11, 1918, or within six years after the respondent had paid the note.

The first question is whether the evidence sustains the finding of the trial court that the appellant was the sole beneficiary of the consideration for which the note was given. The testimony upon this question took a somewhat wide range. The trial court, as already indicated, found that, as between the parties to this action who were the makers of the note, the respondent signed as an accommodation maker

and in the capacity of a surety, and that the appellant had received the entire consideration for which the note was given. As we view the record, the preponderance of the evidence sustains the findings of the trial court.

The next question is whether oral testimony is admissible to show that, as between the makers of a note, one of the parties was in fact a surety, and that the obligation was primarily that of the other signer where the parties as to the holder were jointly and severally liable. Upon this question the rule is that, as between the makers of a note and the holder, all are alike liable, all are principals, but that between themselves their rights depend upon other questions, and these rights may be determined by oral testimony. Robinson v. Lyle. 10 Barb. (N. Y.) 512; Apgar's Administrative v. Hiler, 24 N. J. Law, 812. In the latter case it was said:

"But it was clearly competent for the plaintiff to show in what relation the several signers of the note stood to each other-as to the payee they were all principals, and all bound jointly and severally to pay the debt. But their relation to each other depended, not upon the form of the note, nor whether their names were signed first or last to the note, but upon the character in which they became parties to the note, and the agreement or contract made among themselves at the time of signing. This was matter in pais proper to be proved by parol. And though the memorandum imports prima facie that Apgar and Hiler were joint securities, it was compentent for the plaintiff to show whether they were securities for Fisher alone, or for each other also."

As to the statute of limitations, the appel lant claims that the statute runs from the due date of the note. The respondent claims that the staute was not set in motion until he paid the note. This is not an action upon the note, but upon an implied obligation which arose when the respondent paid the note upon which he, as related to the appellant, was a surety. The cause of action did not accrue until the note was paid, and the statute of limitations then began to run. Reid v. Flippen, 47 Ga. 273; Shepard v. Ogden, 2 Scam. (Ill.) 257; Wilson v. Crawford, 47 Iowa, 469; Barnsback v. Reiner, 8 Minn. 59 (Gil. 37); Thayer v. Daniels, 110 Mass. 345. In the last case cited it was said:

"There was an implied promise on the part of the defendant, as principal, to indemnify the surety, and to repay to him all the money that he might be compelled, in consequence of his liability as surety, to pay to the creditor. Until the surety has been compelled to make such payment, there is no breach of this implied promise. The cause of action accrues then for the first time, and the statute of limitations then begins to run. Of course, the exception

that the claim of the plaintiff is barred by that statute cannot be maintained."

In this case the repsondent paid the note on September 19, 1913. The cause of action arose when the note was paid by respondent. The statute of Alaska permits an action to be maintained upon an implied obligation within six years after the cause of action accrued. The present action was instituted on the 11th day of February, 1918, and within the six-year period, and hence was not barred by the statute of limitations.

The appellant cites a line of cases which hold that the acknowledgment by one partner of a partnership debt after the dissolution of the partnership does not deprive the other partner of the benefit of the staute of limitations. This rule, however, has no application to the facts in the present case. The parties here were not partners but the makers of a promissory note, and, as between themselves, one was a principal and the other a surety.

Some complaint is made of the ruling of the trial court in refusing to permit the amended answer to be filed. Upon this question it only need be said that by this ruling the appellant was not prejudiced. He sought to plead as a defense a statute which had been set out in the complaint. Upon the trial he was not denied the right to offer any testimony by reason of the fact that the amended answer was not filed. The statute of limitations, having been pleaded in the complaint could be invoked by the appellant in his behalf, even though not pleaded in the answer.

The judgment will be affirmed.

HOLCOMB, C. J. and MACKINTOSH, MITCHELL, and PARKER, JJ., concur.

NOTE-Right of Accommodation Indorser to Recover Though Action on Note is Barred.Where the law implies a contract of reimbursement, then the party to be reimbursed has a right of action from the time the reimbursee pays. And this principle operates where compulsory payment is made by an administrator at a time when the obligation on which payment is made is barred against an accommodated party. Thus in Blanchard v. Blanchard, 201 N. Y. 134, 94 N. E. 630, a decedent was indorser on a note, which became barred in September. 1906. His administrator was appointed in March, 1906. and the note was paid by the administrator in February, 1907. He brought suit in October, 1907. So far as decedent was concerned the statute of limitations was suspended from March, 1906, for eighteen months. The Court said the payment was not voluntary. It was the right of the indorser to pay the note and he could "bring his action upon the implied promise, inde

pendent of the promise by the note of the (maker) to reimburse him."

It is said that "In such cases the indorsement is an independent collateral contract entered into by the indorser, that (the maker) may sell the note and no relation of principal and surety exists between him and the maker." Colgrove v. Fallman, 67 N. Y. 95, 23 Am. Rep. 90.

It was ruled in Reynolds v. Doyle, 1 Mann. & G. 753, in 1840, that the time within which an accommodating party pays a note is from the date he pays, and it has nothing to do with the obligation of the principal obligor, so far as the statute of limitations is concerned. That obligation had passed out of existence when the accommodating party paid. He had done what he was obligated to do.

If an indorser pays a note and strikes out all intermediate indorsements, he stands like any purchaser of the note. Pinney v. McGregory, 102 Mass. 186.

Whenever a surety is compelled to pay from that time his right to indemnification accrues and the statute of limitations then begins to run. Thayer v. Daniels, 110 Mass. 345.

As a distinction it is pointed out that if a surety pays a note before maturity his right of action is governed by the statute of limitations applicable to the obligation that has been discharged. Tillotson v. Rose, 11 Metc. (Mass.) 299.

The rule as to accrual of action in favor of an accommodating party applies also to one who pays more than his proportionate share and seeks reimbursement from cosureties. Washington v. Norwood, 128 Ala. 383, 30 So. 405; Pass v. Granada County, 71 Miss. 426, 14 So. 447; Singleton v. Townsend, 45 Mo. 379; McCrady v. Jones, 44 S. C. 406, 411, 22 S. E. 414. When a surety makes partial payments, the statute runs from each payment.

Bushnell v. Bushnell, 77 Wis. 435, 46 N. W. 442, 9 L. R. A. 411.

All accommodation parties as signers to negotiable papers stand on the same rule as does any surety. Augrove v. Tippett, 11 L. T. Rep. (N. S.) 708; Godfrey v. Rice, 59 Me. 308; Farmers' Bank v. Gilson, 6 Pa. St. 51; Wilson v. Crawford, 47 Iowa 469, whether the payment be at one time or by partial payments. Darrow v. Summerhill, 24 Tex. Civ. App. 208, 58 S. W. 158; Bullock v. Campbell, 9 Gill (Md.) 182; Frank v. Brewer, 4 Sil v. Sup. (N. Y.) 155, 9 N. Y. Supp. 182.

The principle on which the cases go is referable to negligent performance or neglect of duty imposed by contract. Lattin v. Gillette, 95 Cal. 317, 30 Pac. 545, 29 Am. St. Rep. 115; Taylor v. Hammell, 201 Pa. St. 546, 51 Atl. 316; O'Connor v. Aetna L. Ins. Co., 67 Neb. 122. 93 N. W. 137. The Courts view the extension of liability beyond the life of a promissory note to a new circumstance within the contemplation of the parties, and they so rule as to protect fully the accommodating party. Any other rule has within it the possibility of an accommodating party paying at the last moment his liability exists and then, by some unfortunate circumstance, being unable to get reimbursement.

C.

CORRESPONDENCE.

IS THE CONSTITUTION EVER UNCONSTI

TUTIONAL?

To the Editor of the Central Law Journal:

I hold no retainer in any case, civil or criminal, involving the application of a prohibition law, State or Federal, and write in a judicial spirit. The thesis of Mr. Wayne B. Wheeler, in your issue of February 27, 1920, "The Constitutionality of the Constitution is Not a Justiciable Question" sounds strangely in lawyer ears, because his argument in support of it is of itself an appeal to legal judgment, proving that his thesis is a contradiction in terms.

If Mr. Wheeler does not hold a retainer for Prohibitionists, he is one of those extremists who wilfully close their eyes to the fact, that the use of alcohol as an "ingredient of beverage liquor" is the least part of its use.

The principal part of the uses of alcohol is in medicine and in the arts. Alcohol is absolutely indispensable in both of those uses. Nothing can take its place.

Storer's "Dictionary of Solubilities" shows that as far back as in 1864, there were one thousand one hundred seventeen substances, which can be used only in solution, are indispensable in medicine and in the arts, yet can be dissolved only by alcohol and by nothing else. The use of alcohol is, therefore, a blessing, not a curse to humanity. To assert otherwise is to fly in the face of a Divine Providence.

Now, any legislation which would force upon the citizens of a sovereign state of this union, the prohibition of the manufacture of an article absolutely essential to medicine and to the arts, is an invasion of the personal rights of the free citizens of that state, unwarranted by Article V of the Constitution of the United States.

Nothing in that article sanctions amendments whose effects invade the personal rights, which citizens of states had when they formed the union. Those rights are those which they brought with them from England, and are such as Englishmen now possess in England.

A simple test to apply to any proposed amendment of the Constitution of the United States to determine its legality is-would it deprive the people of the objecting states of any personal right enjoyed by a citizen of England today? If it does, it is not such amendment as Article V permits.

The colonial states united to form a union, they did not consolidate into an empire. The states remain independent sovereigns and Article V is to be construed with reference to the foregoing fact.

The United States form a corporation.

That the United States are a corporation has been distinctly held by the United States Supreme Court in the case of United States v. Perkins, 163 U. S. 625. In that case the court say:

"The case really presents two questions:

(P.

1. Whether it is within the power of the State to tax bequests to the United States. 627.)

2. Whether, under these statutes, the United States are a corporation exempted by law from taxation."

Further on, the court say:

"What the corporations are to which the exemption was intended to apply are indicated by the tax laws of New York, and are confined to those of a religious, educational, charitable or reformatory purpose. We think it was not intended to apply it to a purely political or governmental corporation like the United States." (P. 631.)

It is elementary law that a corporation cannot make by-laws inconsistent with its fundamental charter. It is as ridiculous to assert that the legislatures of three fourths of the states can say to the people of the other onefourth of the states "You shall not make and use alcohol in medicine and the arts" as for three-fourths of the stockholders of a business corporation to make a by-law forbidding the other one-fourth stockholders of the bank to make and use alcohol in their homes.

"Non in haec foedera venimus" is the proper answer to the defenders of the Federal prohibition amendment.

FREDERICK G. BROMBERG.

Mobile, Alabama, March 1, 1920.

There is much that is interesting in the argument of our correspondent who seeks to establish the proposition that no amendment can be made to the constitution which would destroy "any personal right enjoyed by a citizen of England today." What the writer means is probably rights existing at the time of the settlement of the English Colonies in America. Any new rights created or recognized since then could be no criterion for any purpose. The thought occurred to us, however, that the southern states made that argument in order to retain slaves, which was undoubtedly a right of a citizen of England at the time of the revolution. The point is interesting, however, and may be pressed with some force.

ED.

HUMOR OF THE LAW.

At a banquet at Delmonico's Mr. Choate, looking up at the balconies, which were filled with women, said:

"I understand now why it is said that man is a creature a little below the angels."

"Keeping quiet," was the reply of a reporter to the question: "What is the noblest quality in a good woman?"

"At last, after much faltering, I found courage to pop the question. The date was July 4, 1861. It was on Independence Day that I sacrificed my independence," he said in a speech to his neighbors on the celebration of his golden wedding.

"My learned friend and I," said Mr. Bangs, a distinguished lawyer opposing Mr Choate in the famous Cesnola case, "tried a case before Judge Wheeler some time ago. He is now using whatever knowledge of law he happened to glean from me then before this court. I submit it is hardly fair." Instantly Choate replied: "Why, I had forgotten that you ever said anything regarding the law."

"If your proposition is good law, Mr. Choate," said one of the Tweed judges in an argument, "I will go home and burn my law books." "Better read them, Your Honor," was the reply, given with Mr. Choate's blandest smile.

On Abraham Lincoln:

"In the zenith of his fame he was the wise, patient, courageous, successful ruler of men, exercising more power than any monarch of his time, not for himself, but for the good of the people who had placed it in his hands; commander-in-chief of a vast military power which waged with ultimate success the greatest war of the century. The triumphant champion of popular government, the deliverer of 4,000,000 of his fellow men from bondage; honored by mankind as statesman, President and liberator."-Address before the Edinborough Philosophic Institute, Nov. 13, 1900.

On Judges:

"Jerrold's counsel to the young author might be taken to heart by every candidate for admission to the bar: 'Don't take down the shutters until you have something to show in the window; above all, never try to fool a jury; they are likely to end by fooling you.'"-Address to graduating class of Columbia Law School.

.26, 41, 55, 63, 73 35 .66 36, 48, 52, 86 21 80

Missouri..

Montana..

North Dakota.

Nebraska.

Oklahoma.

Oregon

Pennsylvania.

Rhode Island.

Texas

U. S. C. C. App..

United States S. C.

Vermont

Washington...

West Virginia. Wisconsin.

.5, 16, 28, 34, 40, 44, 78 ...3, 37, 75 .12, 18, 38, 59, 60

1. Appearance-Voluntary.-A voluntary appearance in an action to foreclose a mechanic's lien is the equivalent of service of summons upon the person so appearing.-Carr-Cullen Co. v. Cooper, Minn., 175 N. W. 696.

2. Banks and Banking-Insolvency.-A bank director could not be convicted, under Code 1906, § 1169, for receiving a deposit, "having good reason to believe that the bank was then and there insolvent," upon evidence only showing him to be grossly negligent in the discharge of his duty as a director of the bank.-Buckley v. State, Miss., 83 So. 403.

3. Collection.-A bank's neglect to demand payment of notes given to it for collection and bind the indorsers by protest and notice does not make it liable for the notes as if it were surety, guarantor, maker, or indorser, but only for resulting damages to holder.-Farmers' & Merchants' Bank of Reedsville v. Kingwood Nat. Bank, W. Va., 101 S. E. 734.

4. Bills and Notes-Delivery.-Where a note is procured by fraud and misrepresentation, there is no legal execution nor delivery of it, and it is of no legal force nor effect.-Stevens v. Barnes, N. D., 175 N. W. 709.

5. Parties Inter Sese.-As between the makers of a note and the holder all are alike liable, all are principals, but between themselves their rights depend on other questions.-Holland v. Tjosevig, Wash., 186 Pac. 317.

was

Charities-Hospital.-A hospital of the class commonly known as charitable corporations, which founded and its buildings erected partly by money donated and partly by money borrowed, and which was not maintained for profit, but in which most of the patients were pay patients so that receipts largely exceeded cost of maintenance, was liable in damages for the negligent death of a patient.Mulliner v. Evangelischer Diakonniessenverein of Minnesota Dist. of German Evangelical Synod of North America, Minn., 175 N. W. 699.

10.

Chattel Mortgages—Assignment of Note. -A mortgage of real or personal property being but an incident or accessory of the debt secured, an assignment of the note evidencing the debt carries the mortgage with it.-Waterbury Co. v. Weisman, Conn., 108 Atl. 550.

11. Compromise and Settlement - Disputed Claim. Where plaintiff physician, after some discussion with defendant client regarding a disputed bill, received and cashed defendant's check, stating that it was in full payment of the account to date, held, such action precluded plaintiff from recovering the balance of the bill from defendant.-Booth v. Dougan, Mo., 217 S. W. 326.

12. Conspiracy-Damages.-In an action for damages for conspiracy an express agreement between the defendants to defraud plaintiffs is not necessary; such a tacit understanding being sufficient.-Lange v. Heckel, Wis., 175 N. W.

788.

13. Contracts -Law of Domicile.-Parties may contract with reference to the laws of another state or country, although they may not be domiciled there at the time of making the contract, and such contracts will be enforced and recognized in other forms where contrary rules of law may prevail.-Fidelity Loan Securities Co. v. Moore, Mo., 217 S. W. 286.

14. Option.-Option given to buyer by fig crop sale contract to accept or reject defective figs was not void for lack of mutuality, being part of the entire contract, which was supported by mutual promises and a money consideration. -Rosenberg v. Rogers, Cal., 186 Pac. 366.

15. Oral Waiver.-The conditions of a written contract may be orally waived.-Walker v. Harbor Business Blocks Co., Cal., 186 Pac. 356.

16. Rescission.-A party cannot rescind a contract without offering to put the other party