was honestly mistaken, and the law does not visit upon him consequences which result from no fault of his.

The plaintiff's counsel, in his closing argument, said: "When people get $1,200 or $1,500 for a fracture, is $3,000 too much in this case?" The plaintiff contends that this remark could not have influenced the verdict unless on the question of damages; that it had no relevancy upon the question whether there was a defect in the highway which the city was in fault for permitting to exist. By this remark it was intended the jury should understand that in this class of cases juries commonly award for fractures in sums varying from $1,200 to $1,500. The plaintiff would not have been allowed to show by evidence for what sums verdicts for fractures have been recovered. The remark was incompetent, and tended to prejudice the defendant. It is impossible for the court here to say how far the jurors may have been influenced in their verdict upon the question of the defendant's liability by the unwarranted remark. A person cannot always appreciate the influences that lead to a result. Jacques v. Railroad Co., 41 Conn. 61; Dougherty v. Welch. 53 Conn. 558, 560, 5 Atl. 704. "In a legal sense, a trial is not fair when such statements * *. can have any influence favorable to the party making them." Bullard v. Railroad, 64 N. H. 27, 32, 5 Atl. 838. In that case it was decided that if the trial is allowed to go on, the party in fault will be bound, after verdict in his favor, to obtain a finding that the result was not affected by his tort, and ought not to be annulled on account of it. That fact has not been found in this case. The plaintiff has not met the burden which is upon him of showing it. Verdict set aside.

*

BLODGETT, J., did not sit. The others concurred.

(67 N. H. 589)

LYNCH v. STOTT et al. (Supreme Court of New Hampshire. Rockingham. March 11, 1892.) SALES-ORDERS SOLICITED BY DRUMMER PLACE OF THE CONTRACT.

Where a traveling salesman solicits orders for rum and carries them to plaintiff's place of business in Boston, where they are filled and shipped to defendant, who receives them in the original packages, and pays the freight thereon, the place of the contract is in Boston.

Case reserved from Rockingham county. Action by Eugene Lynch against G. and J. W. Stott.

Assumpsit to recover the price of four barrels of rum. Facts agreed. An order for one barrel of rum was solicited and taken in December, 1888, and for another barrel in February, 1889, at the defendants' place of business in Portsmouth, by the plaintiff's traveling salesman, and by him carried to the plaintiff's place of business in Boston. Or ders for the other two barrels were sent by

JACKSON BANK v. IRONS et al. (Supreme Court of Rhode Island. Nov. 3, 1894.)

PLEADING AMENDMENT-NOTE-JOINT MAKERS, 1. An amendment of a complaint demurrable on the ground that counts in assumpsit and debt are joined will be allowed.

2. Persons who, before delivery, sign on the back of a note, the interest for which is payable in advance, the following agreement: "Waiving demand and notice, we hereby indorse and guaranty the full payment of the within note; future payments of principal or of interest in renewal thereof not releasing us as indorsers," -are joint makers of the note.

Action by the Jackson Bank against Frank A. Irons and others. Demurrer sustained, and amendment allowed.

W. G. Roelker, for plaintiff. Cooke & Angell, Frederick Rueckert, and R. Mathewson, for defendants.

MATTESON, C. J. The plaintiff sues in debt on a promissory note of the tenor following: "$4,000. Providence, R. I., August 1st, 1873. One year after date, I promise to pay to the order of the Jackson Institution for Savings four thousand dollars at bank, with interest at the rate of eight per cent. per annum, payable semiannually, in advance, until paid. Value received. Frank A. Irons." On the back of the note is indorsed the following: "Waiving demand and notice, we hereby indorse and guaranty the full payment of the within note; future payments of principal or of interest in renewal thereof not releasing ús as indorsers, Samuel A. Irons. N. Molter. Jackson Institution for Savings, by Theo. B. Talbot, Cashier." The suit is against Frank A. Irons, as the maker of the note, and Samuel A. Irons and Nicholas Molter, as the signers of the undertaking on its back.

Each of the defendants has demurred to the declaration and the special count in it, and has assigned for causes of demurrer (1) that the plaintiff has declared in an action of debt,

while the declaration and its averments are in form and substance an action of assumpsit; that an action of debt and causes of action in assumpsit on promises are incompatible, and cannot be joined in the same declaration. Doubtless, the declaration is demurrable on these grounds, but as the special count and the general or common counts can be amended, and made proper counts in debt, we think that, if the action can be maintained, the plaintiff should be permitted, if it desires, to make such amendments as may be necessary, on such terms as may be deemed just and reasonable. Hobbs v. Ray, Index LL, 76, 25 Atl. 694; Wilson v. Railroad Co., Index 00, 86, 87, 29 Atl. 300,

Each of the defendants has also further assigned as causes of demurrer (2) that the plaintiff has in its special count declared against the maker of the note and the other two defendants jointly on a joint indebtment; whereas the pretended obligations of the defendants set forth do not constitute a joint obligation of the three defendants, but two several and distinct obligations and causes of action, to wit, a several obligation of the defendant Frank A. Irons, as maker of the note, and a distinct obligation of the defendants Samuel A. Irons and Nicholas Molter, as guarantors of the note; (3) that the pretended cause of action set forth in the special count against the defendants Samuel A. Irons and Molter is the guaranty of the debt of another, and that an action of debt does not lie on such guaranty; (4) that the cause of action set forth against the defendants, other than the maker of the note, is a pretended guaranty of the debt of another given by them to the Jackson Institution for Savings, and not to the plaintiff, between whom and the said defendants there is no privity under said pretended guaranty. These grounds of demurrer raise the question of the proper construction of the anomalous undertaking on the back of the note. If that undertaking is to be construed as a guaranty, the defendants' contentions that it is a separate and distinct cause of action from the note, and, not being negotiable, that there is no privity between the plaintiff and the signers of it, are not without authority, and perhaps a preponderance of authority, for their support; and it would follow that the signers of the undertaking ought not to have been joined as defendants with the maker of the note. If, on the other hand, the legal effect of the undertaking, notwithstanding the use of the word "guaranty," is to constitute the signers of it merely joint makers of the note with the defendant Frank A. Irons, the suit was properly brought against all of the defendants. We are of the opinion that the latter view is correct. The signing of the undertaking was prior to the delivery of the note to the payee, and, consequently, before the note took effect.

Neither Samuel A. Irons nor Nicholas Molter was a payee of the note, or had any title to it to transfer. It is apparent, there

on.

fore, that notwithstanding the use of the words "waiving demand and notice," which would be apt words to waive the rights of technical indorsers, the words "indorse" and "indorsers" were used in their literal sense, to describe the act of writing on the back of the note, and the signer as having signed on the back of the note, and not in the technical sense, to denote the transfer of title to the note, and incurring liability for its payment, provided it be duly presented to the maker at maturity, and, if not paid by him, that notice of the nonpayment be seasonably given to the one incurring the liability, and the character of the signer as one who has thus transferred title to the note, and incurred liability thereThe signers of the undertaking, then, in so far as they are described as indorsers, have no other rights than they would have if their names were simply written on the back of the note. A guarantor of a note is entitled to notice of its nonpayment within a reasonable time, and, in case of the failure of the holder to give the notice, is relieved from liability to the extent of loss resulting from the failure. In the present instance, however, the guarantors have waived the right to notice, and hence stand on the footing of sureties merely. A surety is released from liability if the creditor extends the term of payment without the consent of the surety, or without reserving his right to insist upon immediate payment by the principal, and, in default of such payment, to pay the debt himself, and proceed at once against the principal. By the terms of the note the interest was to be paid semiannually, in advance. Acceptance of interest in advance after maturity of the note would have the effect to extend the term of payment during the period for which the interest is paid, and thus to have discharged the sureties, but for the fact that they had stipulated that future payments of interest in renewal of the note should not release them from liability. They thereby waived the rights which they would otherwise have been entitled to insist on as sureties, and made the legal effect of their undertaking precisely the same as though they had merely written their names on the back of the note, without more. By repeated decisions in this state, a person who indorses a note payable to another at the time it is made is to the payee a joint and several maker. Matthewson v. Sprague, 1 R.

I. 8; Perkins v. Barstow, 6 R. I, 505; Bank y, Follett, 11 R. I. 92; Carpenter v. McLaugh lin, 12 R. I. 270. We are of the opinion, therefore, that the defendants Samuel A, Irons and Nicholas Molter are to be regarded as joint makers with Frank A. Irons of the note in suit, and were properly joined as such as defendants in the suit.

The demurrers are sustained, but we will direct the common pleas division to entertain a motion by the plaintiff for leave to amend the declaration by changing the counts from counts in assumpsit to counts in debt.

(18 R. I. 716)

LOCKE v. LOCKE. (Supreme Court of Rhode Island. Oct. 31, 1894.)

Decree of DIVORCE-VACATION WITHIN SIX
MONTHS-FAILURE TO SERVE PROCESS.

Under Judiciary Act, c. 26, § 2, giving the court control over its decrees for six months after their entry, a decree of divorce granted on an unanswered petition may be set aside, and the cause reinstated on the docket, where it appears from affidavits that the petition was never served on the defendant, notwithstanding a return of the service thereof by the officer, and he may have been mistaken as to the identity of the defendant, and the latter gives evidence of having acted in good faith.

Motion by Sarah A. Locke to set aside a decree of divorce granted Ernest C. Locke, and to reinstate the case on the docket for trial. Granted.

George J. West, for petitioner. John D. Thurston, for defendant.

TILLINGHAST, J. This is a motion to set aside the decree entered in said case on the 9th day of May, 1894, and reinstate the case on the docket for trial, on the ground that the defendant had no notice of the pendency thereof. The facts which appear of record are these: On February 9, 1894, the plaintiff filed in this court a petition for divorce against the defendant, on the ground of adultery, upon which petition a citation was duly issued, returnable on the fourth Monday of April, 1894; that said citation was duly served upon the defendant February 16, 1894, by a deputy sheriff, by reading the same to her in her presence and hearing, and by leaving a certified copy of the petition with the defendant in person; and that on the 9th day of May, 1894, said petition, which was unanswered and uncontested, was heard and granted nisi. In support of her motion, the defendant makes affidavit that no service of any paper was ever made upon her in the matter of said petition for divorce, and that she had no notice or knowledge whatever that any such petition had been filed until some time after the entry of said decree; that the first knowledge she ever had that said petition had been filed, and that any proceedings had been had thereon, was on the 16th day of October, 1894, when a complaint which she had made against her husband for nonsupport was on trial before the district court of the city of Providence, wherein he testified that he had obtained a divorce from her. The defendant further makes affidavit that she is entirely innocent of the charge brought against her in said petition, and that she will prove her innocence if allowed an opportunity to be heard.

While it is true that an officer's return upon a writ is conclusive, and cannot be controverted incidentally by motion or plea, except in cases specially provided for by statute (Angell v. Bowler, 3 R. I. 77), yet as, under section 2 of chapter 26 of the judiciary act, the court has control over its decrees for the

period of six months after the entry thereof, and may, for cause shown, set aside the same, and reinstate the case, or make new entry and take other proceedings, with proper notice to parties, as it may by general rule or special order direct, it is clearly within the power of the court to grant the relief asked for in this case, without any infringement of the rule above stated, and without any reflection upon the officer who served the writ. He states that he did not know the defendant, and doubts if he should be able to identify her now; and although he testifies that he went to the street and number to which he was directed by the plaintiff, and there found a woman who said she was Mrs. Locke, and upon whom he served said papers, yet it is possible that some one may have personated the defendant; that the service may have been made upon some person other than the defendant, by mistake; or, even if made upon the defendant herself, that, by reason of ignorance or misapprehension, she failed to understand the significance thereof. At any rate, that she is acting in good faith in the matter is quite evident from the fact that she prosecuted the plaintiff, as her husband, for nonsupport more than five months after the granting of said decree. We think it would be too strict and technical a construction of the rule concerning the conclusiveness of an officer's return to hold that, in case of the existence of either of the suppositious cases above mentioned, the defendant, though making her motion within the said six months, should, nevertheless, not only be deprived of her marital rights, but also branded as an adulteress, and this without any adequate remedy. Moreover, we think that the court should be very liberal in granting an application to set aside decrees in divorce cases within the six months allowed by law, when it appears at all probable that there was no service, or where, for other reasons, the defendant has not had a fair opportunity to be heard in his defense. Not only the parties themselves, but the public also, have an interest in the result of every suit for divorce, and the court should aim to afford the fullest possible hearing thereof. See Browne, Div. 400; McBlain v. McBlain, 77 Cal. 508, 20 Pac. 61. See, also, Lawrence v. Lawrence, 73 Ill. 577. The decree is set aside, and the case reinstated on the docket for trial.

(51 N. J. E. 323)

COLES v. VANNEMAN. (Court of Errors and Appeals of New Jersey. June Term, 1893.)

Appeal from court of chancery.

Bill by Richman Coles, administrator of Daniel Lynch, against Charles L. Vanneman. From a decree dismissing a bill, complainant appeals. Affirmed.

David J. Pancoast, for appellant. John W. Wescott, for respondent.

PER CURIAM. Decree unanimously affirmed, for the reasons given in the court of chancery. 18 Atl. 468.

BALDWIN v. HOWELL et al. (Court of Chancery of New Jersey. Oct. 18, 1894.)

UNAUTHORIZED ACT OF AGENT RATIFICATION-FAILURE TO OBJECT-LACHES.

1. Where an agent, having possession of securities, exchanges them for others, without authority so to do from his principal, and the principal does not, upon full information, promptly repudiate the transaction and assert his rights, it will be presumed that he acquiesced in and ratified what had been done by his agent.

2. When an attorney, with whom securities have been deposited for safe-keeping, which were designed as protection or indemnity to other persons, who had become sureties upon the bond of the principal, exchanges such securities for others, less valuable, without the consent of his client (the principal), and the client, 11 years afterwards, brings an action at law against his sureties, because of their consent to and participation in such exchange, to recover damages which he sustained by such exchange, it will be presumed therefrom that he ratified the act of his attorney.

3. In case the principal neglects, for 13 years after having complete information, to repudiate the alleged wrongful act of his agent, and the agent and others having knowledge of the transaction dying in the meantime, and the memory of others equally interested becoming very uncertain or entirely failing as to important particulars, the principal will be charged with laches, and presumed to have waived the alleged wrongful transactions of his agent. (Syllabus by the Court.)

On rehearing. Affirmed.

For prior report, see 15 Atl. 236.

Wm. H. Morrow, for complainant. L. De Witt Taylor and H. S. Harris, for defendant.

BIRD, V. C. This case was brought to a final hearing in 1887, and argument of counsel presented in 1888, and my opinion (Baldwin v. Howell, 45 N. J. Eq. 519, 15 Atl. 236), filed at the May term, 1889. Within a reasonable time thereafter, application was made for a rehearing, which was granted. After this the case was not moved until the month of March or April of the present year. Counsel for the administrators of Smith insisted that the order for rehearing should be discharged, because of the delay. While I thought the delay was of such a character as to deserve the attention and consideration of the court, I felt that under the circumstances of the case, considering also the importance of the issues and principles involved, the complainant should have a rehearing. The arguments upon such rehearing have been most comprehensive. However, I have been unable to discover the presentation of any new features of the case arising from the facts, or any new legal or equitable principles; yet the very thorough reiteration of both, as well for the defendants as for the complainant, has increased the impression which they had previously made upon my

mind, and strengthened the convictions which I had when I prepared the opinion in the case.

The case presents, two prominent features: First, the understanding or agreement Detween the Mutual Life Insurance Company, by its attorney, Mr. Burnham, on the one part, and David K. Howell, the owner of the mortgaged premises, and Edwin A. Van Syckle, the agent or attorney of John Baldwin, if not with John Baldwin himself, on the other part, to the effect that the Wells mortgage, which was then held by Van Syckle, as the agent or attorney of Baldwin, should be surrendered and canceled of record, with a view of making the mortgage of the company a first lien upon the premises; and, second, the ratification of such an agreement or arrangement by John Baldwin in case he had not actually participated therein, which ratification is shown by his long acquiescence after he was made fully aware that the original Wells mortgage had been surrendered, and another mortgage taken in its stead. It will be remembered that Baldwin, as the administrator of George Nyce, was the legal custodian of the Wells bond and mortgage, they having been assigned to Nyce in his lifetime. As such he placed them in the possession of his bondsmen, in Orange county, N. Y. This was done at the instance of Edwin A. Van Syckle, the attorney whom Mr. Baldwin consulted with respect to procuring letters of administration in that county. They required the deposit of these and other securities for their protection. By the consent of all concerned, these securities were deposited in the safe of the said attorney. While these securities were in the possession of the said Edwin A. Van Syckle, David K. Howell, the mortgagor, desired to raise $10,000 of the Mutual Life Insurance Company, and to secure the same by mortgages upon the farms which were embraced in the said Wells mortgage. In 1872, if not earlier, David K. Howell, or John E. Howell in his behalf, opened negotiations with the company with the view of affecting a loan of that amount. As early as February of that year, at least, the company passed the matter over to Mr. Burnham; for, on the 22d day of that month, he prepared two mortgages, one upon one farm for $6,000, and one upon the other for $4,000. The one upon the Cook farm, being for $4,000, was acknowledged on the 29th day of February, and recorded the 9th day of March. These mortgages were held by Mr. Burnham until the 20th day of July, following, when, the said Wells mortgage having been canceled of record in the manner referred to in my opinion, he presented them to the clerk for record, and paid the amounts secured by them by the checks of the company. It is perfectly clear that it was agreed between Edwin A. Van Syckle, representing himself as the agent or attorney of John Baldwin, and Mr. Burnham, that Mr. Burn

ham should retain the possession of the mortgages which had been executed in his presence, and also the possession of the said Wells mortgage, which had been forwarded to him, until he should have instructions to procure the cancellation of the latter, and that, when that was accomplished, he should present the mortgages given to the insurance company for record, and pay the moneys secured thereby. Mr. Burnham says: "I received from the representative of the person holding that mortgage a mortgage, with written instructions to have it canceled upon the performance of such conditions. I am quite positive that my instructions with the bond and mortgage was sent to me; the Wells bond and mortgage with directions to have it canceled upon the doing of certain things, as I have said. Those things were that, upon the carrying out of this loan from the Mutual Life, Howell and his wife were to execute at that time and in my office a new bond and mortgage, which I suppose was sent to me with the instructions; and as to that I am in doubt whether it was sent to me, or wnether I was requested to prepare a duplicate, but, at any rate, I had nothing to do with the Howell second mortgage, except to have the first mortgage canceled, as I have told. Howell and his wife came to my office, and executed this second mortgage, which I think had been sent to me ready for execution. They performed all the conditions which I had received, and which were necessary to be performed in order to have the Wells mortgage canceled; and this permitted my client the Mutual Life to make its loan. That being done, the Mutual Life made its loan, and I sent, I think, the Wells mortgage to the clerk of this county for cancellation." The money was not paid until after the cancellation of the Wells mortgage. This statement of Mr. Burnham, to the effect that he forwarded the Wells mortgage for cancellation, may appear to be in conflict with the testimony of the clerk, Mr. Simonson, who said that he received a letter from John E. Howell, together with the mortgage, directing it to be canceled. This may be true, and yet that letter may have been forwarded with the mortgage by Mr. Burnham; yet counsel for both parties insisted upon the argument that Mr. Burnham never had the possession of the original Wells mortgage. While this seems to be the more probable view, I think it proper to give the statement of Mr. Burnham. And now, proceeding towards the just conclusion which seems to arise from the foregoing facts, it will be noticed that the complainant proceeds upon the ground that the Wells mortgage, which he is asking to foreclose, remains and is to be considered a first lien upon the premises described therein, notwithstanding all that has been said and done respecting it. He treats the attempted cancellation as utterly void. He bases this upon the allegation that whatever

was said or done was without any authority from Baldwin, the owner, and, this being so, it was impossible to bind him. My opinion, under the circumstances, was that the mortgage of the Mutual Life Insurance Company should be considered a first lien, and that a purchaser under a decree for closing the equity of redemption in that case would be protected. As intimated, it is not disputed but the purchaser in such case takes and enjoys all the rights of the mortgagee. But, as intimated, it is insisted that Baldwin knew nothing about these negotiation, and that since Van Syckle, his attorney, was not authorized to enter into any negotiations whatsoever with the bond and mortgage, he (Baldwin) cannot be in any sense affected by the surrender.

This brings us directly to the inquiry as to the equitable rights of the Mutual Life Insurance Company, and those who claim under it, by virtue of the transaction as detailed above between Mr. Burnham, on the one hand, and Edwin A. Van Syckle, upon the other. In other words, did the insurance company secure a lien prior to that of the Wells mortgage by virtue of what transpired between Burnham and Van Syckle? The company, by its agent, Mr. Burnham, expressed a willingness to make the loans proposed in case they could have the first lien, to do which it was necessary to procure the cancellation of the Wells mortgage, and perhaps others. After months of waiting, the Wells mortgage, (the one now sought to be foreclosed) was sent by mail to Mr. Burnham, by the clerk of the county, with his certificate thereupon that it is canceled. The only circumstance in the case which might be supposed to awaken inquiry in the mind of Mr. Burnham is his own statement that he had possession of this Wells mortgage, from which it might possibly be insisted that he ought to have presumed that, since it did not appear upon the face of it that Van Syckle was the lawful owner, he ought to have inquired as to his authority to deal with it, and that, having such knowledge, he had no right to close his eyes to the situation; and it also appears from Mr. Burnham's own statement that he had secured a search of the record, which presented this among other liens upon the premises. It is manifest that he did not rely upon anything that might be learned from the mortgage itself, supposing that he once had the actual possession of it, but upon what took place afterwards; that is, its cancellation of record. It still seems to me that, as between John Baldwin and the insurance company, this cancellation is properly chargeable to him, and, consequently, that the insurance company thereby was entitled to the first lien.

If the testimony of witnesses is to be considered more in detail, it appears that John E. Howell, an attorney at law, then resid-. ing at Goshen, in the state of New York,