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tion has not been passed upon by the appel

BILLS AND NOTES-STATUTE OF late court. If he is shown by argument to

LIMITATIONS. be wrong, he is not so lost in pride of opinion that he will not frankly change his

HOLLAND v. TJOSEVIG. views. Not so, however, when he has the approval of the Supreme Court behind him | Supreme Court of Washington. Dec. 18, 1919. by memorandum decision. He would not then dare, for he would thus invite reversal.

156 Pac. 317. Worse still, the decision has become law for the whole state. The point has been

Where one signed a note as a joint maker, presented, argued, decided upon—but the is an accommodation to another maker, and

subsequently paid the note, his cause of action law has not been declared. If there is any

against his comaker to recover the amount virtue in the doctrine of precedents, the

paid did not accrue until the note was paid,

and limitations then began to run. case is, so long as the memory of it abides with the particular bench, as definitely pari

MAIN, J. The purpose of this action was of the tissue of the law of that State as if it

to recover money which the plaintiff had paid had been handed down by formal opinion

on a promissory note he claiming that it Pity the unfortunate wight of a lawyer, the was the primary obligation of the defendant. hapless judge of a court of first instance, The cause was tried to the court without a

jury, and resulted in findings of fact, conclusions who go merrily on their unwitting way,

of law, and a judgment sustainng the plantiff's ignorant of the law they help to administer.

right to recover. From this judgment the deIt reminds one of that Roman ruler who fendant appeals. wrote his laws small and posted them high, On April 6, 1908, the appellant and rethat they might not be read, in order to spondent at Valdes, Alaska, signed and delivenjoy chastising offenders thereof. Yet we

ered a promissory note, payable to A. L. Levy

& Co., and due six months after date. The are supposed to do reverence to the maxim

note was a joint and several obligation, upon "Ignorance of the law is no excuse."

which both of the parties signing were liable We consequently have litigation that as principals. On September 19, 1913, the rewould never have arisen, and judgments | spondent paid the note to the holder thereof.

In the complaint two Alaska statutes are that no preparation could anticipate, all as

pleaded, one relative to the interest rate in that the product of the memorandum decision.

district, and the other the statute of limitations. Each circuit or district has its memorandum The latter statute, among other things, provides decision law. Hundreds of points have be that an action upon a contract, express or im

plied, shall be barred after the lapse of six come fixed by an unpublished and unwrit

years. When the cause was called for trial the ten process. In order to have less case

defendant asked leave to file an amended law, we encourage more cases.

answer in which he sought to plead the same No case that goes to an appellate court is

statute of limitations as a defense. This re

quest, upon objection by the respondent, was so unworthy as not to warrant a short state

refused by the court. The present action was ment of facts, a short point, and a citation

begun on February 11, 1918, or within six years of authority. If the appellate courts do not after the respondent had paid the note. wish to consider cases, they can adopt a few

The first question is whether the evidence salutory rules about printing the record and

sustains the finding of the trial court that the the briefs, or the like, and close their doors appellant was the sole beneficiary of the conto supplicants. Far better this than that sideration for which the note was given. The

testimony upon this question took a somewhat they admit the appeal by the front portal

wide range. The trial court, as already indiand let it escape by a rear exit.

cated, found that, as between the parties to this GEORGE PALMER GARRETT. action who were the makers of the note, the Kissimmee, Fla.

respondent signed as an accommodation maker

and in the capacity of a surety, and that the that the claim of the plaintiff is barred by that appellant had received the entire consideration | stalute cannot be maintained." for which the note was given. As we view the

In this case the repsondent paid the note record, the preponderance of the evidence sus

on September 19, 1913. The cause of action tains the findings of the trial court.

arose when the note was paid by respondent.

The statute of Alaska permits an action to be The next question is whether oral testimony

maintained upon an implied obligation within is admissible to show that, as between the

six years after the cause of action accrued makers of a note, one of the parties was in fact

The present action was instituted on the 11th a surety, and that the obligation was primarily

day of February, 1918, and within the six-year that of the other signer where the parties as

period, and hence was not barred by the statute to the holder were jointly and severally liable.

of limitations. Upon this question the rule is that, as between the makers of a note and the holder, all are

The appellant cites a line of cases which alike liable, all are principals, but that between

hold that the acknowledgment by one partner themselves their rights depend upon other

of a partnership debt after the dissolution of questions, and these rights may be determined

the partnership does not deprive the other by oral testimony. Robinson v. Lyle. 10 Barb.

partner of the benefit of the staute of limita(N. Y.) 512; Apgar's Administrative v. Hiler,

tions. This rule, however, has no application 24 N. J. Law, 812. In the latter case it was

to the facts in the present case. The parties said:

here were not partners but the makers of a "But it was clearly competent for the plain

promissory note, and, as between themselves, tiff to show in what relation the several sign one was a principal and the other a surety. ers of the note stood to each other as to the payee they were all principals, and all bound Some complaint is made of the ruling of the jointly and severally to pay the debt. But their

trial court in refusing to permit the amended relation to each other depended, not upon the form of the note, nor whether their names were

answer to be filed. Upon this question it only signed first or last to the note, but upon the reed be said that by this ruling the appellant character in which they became parties to the was not prejudiced. He sought to plead as a note, and the agreement or contract made among

defense a statute which had been set out in themselves at the time of signing. This was

the complaint. Upon the trial he was not dematter in pais proper to be proved by parol. And though the memorandum imports prima nied the right to offer any testimony by reason facie that Apgar and Hiler were joint securi of the fact that the amended answer was not ties, it was compentent for the plaintiff to show

filed. The statute of limitations, having been whether they were securities for Fisher alone, or for each other also.”

pleaded in the complaint could be invoked by

the appellant in his behalf, even though not As to the statute of limitations, the appel

pleaded in the answer. lant claims that the statute runs from the due date of the note. The respondent claims that The judgment will be affirmed. the staute was not set in motion until he paid

HOLCOMB, C. J. and MACKINTOSH, the note. This is not an action upon the note, | MITCHELL, and PARKER, JJ., concur. but upon an implied obligation which arose when the respondent paid the note upon which he, as related to the appellant, was a surety.

NOTE-Right of Accommodation Indorser to

1 Recorer Though Action on Note is Barred. The cause of action did not accrue until the

Where the law implies a contract of reimbursenote was paid, and the statute of limitations

| ment, then the party to be reimbursed has a right then began to run. Reid v. Flippen, 47 Ga. 273; of action from the time the reimbursee pays. Shepard v. Ogden, 2 Scam. (111.) 257; Wilson

And this principle operates where compulsory

payment is made by an administrator at a time v. Crawford, 47 Iowa, 469; Barnsback v. Reiner,

when the obligation on which payment is made 8 Minn. 59 (Gil. 37); Thayer v. Daniels, 110 is barred against an accommodated party. Thus Mass. 345. In the last case cited it was said: in Blanchard v. Blanchard, 201 N. Y. 134, 94

N. E. 630, a decedent was indorser on a “There was an implied promise on the part note, which became barred in September, 1906. of the defendant, as principal, to indemnify the His administrator was appointed in March, 1906. surety, and to repay to him all the money that and the note was paid by the administrator in he might be compelled, in consequence of his February, 1907. He brought suit in October, liability as surety, to pay to the creditor. Until 1907. So far as decedent was concerned the statthe surety has been compelled to make -uch ute of limitations was suspended from March, payment, there is no breach of this implied 1906, for eighteen months. The Court said the promise. The cause of action accrues then for payment was not voluntary. It was the right the first time, and the statute of limitations of the indorser to pay the note and he could then begins to run. Of course, the exception "bring his action upon the implied promise, inde

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

CORRESPONDENCE.

IS THE CONSTITUTION EVER UNCONSTI.

TUTIONAL?

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 y. 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.

To the Editor of the Central Law Journal:

I hold no retainer in any case, civil or crimipal, 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 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.)

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.

299.

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.

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.

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 amend. ment 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,

HUMOR OF THE LAW. they did not consolidate into an empire. The states remain independent sovereigns and Article V is to be construed with reference to

At a banquet at Delmonico's Mr. Choate, lookthe foregoing fact.

ing up at the balconies, which were filled with The United States form a corporation.

women, said: That the United States are a corporation has

"I understand now why it is said that man is been distinctly held by the United States Su

| a creature a little below the angels." preme Court in the case of United States v. Perkins, 163 U. S. 625. In that case the court

\ "Keeping quiet," was the reply of a reporter say:

to the question: "What is the noblest quality "The case really presents two questions:

in a good woman?” 1. Whether it is within the power of the State to tax bequests to the United States. (P. "At last, after much faltering, I found cour627.)

age to pop the question. The date was July 4, 2. Whether, under these statutes, the United States are a corporation exempted by law from

1861. It was on Independence Day that I sactaxation."

rificed my independence," he said in a speech to Further on, the court say:

his neighbors on the celebration of his golden

wedding. "What the corporations are to which the exemption was intended to apply are indicated by the tax laws of New York, and are confined

"My learned friend and I," said Mr. Bangs, a to those of a religious, educational, charitable distinguished lawyer opposing Mr Choate in the or reformatory purpose. We think it was not

famous Cesnola case, "tried a case before Judge intended to apply it to a purely political or governmental corporation like the United

Wheeler some time ago. He is now using whatStates." (P. 631.)

ever knowledge of law he happened to glean It is elementary law that a corporation can

from me then before this court. I submit it is not make by-laws inconsistent with its funda

hardly fair.” Instantly Choate replied: "Why. mental charter. It is as ridiculous to assert

I had forgotten that you ever said anything that the legislatures of three fourths of the

regarding the law." states can say to the people of the other onefourth of the states “You shall not make and "If your proposition is good law, Mr. Choate," use alcohol in medicine and the arts" as for said one of the Tweed judges in an argument, three-fourths of the stockholders of a business "I will go home and burn my law books." "Betcorporation to make a by-law forbidding the ter read them, Your Honor," was the reply, other one-fourth stockholders of the bank to ! given with Mr. Choate's blandest smile. make and use alcohol in their homes.

"Non in haec foedera venimus" is the proper On Abraham Lincoln: answer to the defenders of the Federal prohi- ! "In the zenith of his fame he was the wise, bition amendment.

patient, courageous, successful ruler of men, FREDERICK G. BROMBERG. exercising more power than any monarch of Mobile, Alabama, March 1, 1920.

his time, not for himself, but for the good of

the people who had placed it in his hands; There is much that is interesting in the ar commander-in-chief of a vast military power gument of our correspondent who seeks to which waged with ultimate success the greatest establish the proposition that no amendment ! war of the century. The triumphant champion can be made to the constitution which would of popular government, the deliverer of 4,000,destroy "any personal right enjoyed by a 1 000 of his fellow men from bondage; honored citizen of England today.” What the writer by mankind as statesman, President and libmeans is probably rights existing at the time l erator."-Address before the Edinborough Philof the settlement of the English Colonies in i osophic Institute, Nov. 13, 1900. America. Any new rights created or recog. nized since then could be no criterion for any On Judges: purpose. The thought occurred to us, however, “Jerrold's counsel to the young author might that the southern states made that argument ! be taken to heart by every candidate for admisin order to retain slaves, which was undoubt sion to the bar: 'Don't take down the shutters edly a right of a citizen of England at the time until you have something to show in the winof the revolution. The point is interesting, dow; above all, never try to fool a jury; they however, and may be pressed with some force. are likely to end by fooling you.'”-Address to

ED. graduating class of Columbia Law School.

WEEKLY DIGEST.

Weekly Digest of Important Opinions of the

State Courts of Last Resort and of the Federal Courts.

Copy of Opinion in any case referred to in this digest may be procured by sending 25 cents to us or to the West Pub. Co., St. Paul, Minn.

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Arizona

.51 California..................14, 15, 19, 31, 39, 56, 69, 71, 89 Colorado Connecticut........................................10, 17, 50, 64, 72 Florida.....

... 33 Georgia

........................................... 25 Indlana

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62 Iowa.......

.....58, 84, 88, 90 Kentucky..

................... 7, 74, 76, 77, 87 Louisiana Massachusetts..............20, 42, 43, 54, 65, 79, 82, 83 Minnesota.......

..............1, 9, 23, 32, 57, 67 Mississippi.....

...........2, 29 Missouri.......

................8, 11, 13, 22, 49, 61 Montana.......

...........24, 27 Nebraska......

....................46, 81, 85 North Dakota.

.............4, 70 Oklahoma........

.................30, 53, 68 Oregon ....... .. Pennsylvania.....

................26, 41, 55, 63, 73 Rhode Island................ Texas ...........

66 C. S. C. C. App.......... ...................36, 48. 52, 86 United States S. C..... Vermont ....

... 80 Washington..........................5, 16, 28, 34, 40, 44, 78 West Virginia....

.......3, 37, 75 Wisconsin.........

...................12, 18, 38, 59, 60

.. 45

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6.- Repurchase of Note.--Where a bank was not originally a holder of note in due course, it could not repurchase the note from such a holder and acquire his immunities.-Peltier v. McFerson, Colo., 186 Pac. 524.

7. Burglary – Property Stolen. - One who broke into a storehouse and carried away articles therefrom committed no offense, under Ky. St. $ 1164, unless the articles taken were goods, wares, or merchandise" of value.-Ellis v. Commonwealth, Ky., 217 S. W. 368.

8. Carriers of Passengers — Passenger. Where one boards a street car, intending to become a passenger, the conductor making no objection, and thus impliedly accepting him as a passenger, it is immaterial that he has not paid his fare.-Chapman v. Kansas City Rys. Co., Mo., 217 S. . 290.

9. Charities-Hospital.-A hospital of the class commonly known as charitable corporations, which was 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

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 duiy 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 noie 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.

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