manner connected with the title to it or its transfer, assumes by signing his name in blank upon the back thereof, is a question upon which there is much confusion and weighty conflict in the adjudged cases. They cannot be harmonized, and we shall not attempt any analysis of them. In some States, notably in Massachusetts, the question has been put at rest by a statute to the effect that in all such cases, whether his name is placed upon the paper before its delivery to the payee or afterwards, the party shall be charged only as an indorser. This is a certain, practical, and desirable rule; and, if it had been adopted by the courts when the question first arose, it would have saved litigation and some lying. But we cannot now adopt the rule without disregarding well-settled principles and resorting to judicial legislation. The position of the name of such a party upon the paper is in itself one of ambiguity. It is an irregular indorsement. and does not, without parol evidence as to when the indorsement was made and its purpose, indicate the relation of the indorser to the paper or the parties to it. He is not strictly an indorser, for the paper is not negotiated or title made through his indorsement; hence there is a pretty general agreement of the authorities that parol evidence is admissible, as between the original parties, to show the relation of such party to the paper, and to fix his liability as maker, indorser, or guarantor, according to the intention of the parties. Rey v. Simpson, 1 Minn. 380 (Gil. 282), 22 How. 341; Kern v. Von Phul, 7 Minn. 430 (Gil. 341); Good v. Martin, 95 U. S. 90; Coulter v. Richmond, 59 N. Y. 479; Tied. Com. Paper, $ 270; 1 Daniel, Neg. Inst. §§ 710, 711. In case of regular indorsement-that is, where the paper is first indorsed by the payee-the law attaches a definite liability to the act, and parol evidence is not admissible to vary it. Knoblauch v. Foglesong, 38 Minn. 352, 37 N. W. Rep. 586; Farwell v. Trust Co., 45 Minn. 495, 48 N. W. Rep. 326. This rule, however, does not apply to an irregular indorsement, except that this court has held that where it is once shown by parol evidence that the name of an apparent stranger to the paper was signed upon the back of it before its delivery to the payee, to induce acceptance, he will be held as an original maker, and such evidence is not competent to show that he intended to charge himself as indorser only. Peckham v. Gilman, 7 Minn. 446 (Gil. 355); Robinson v. Bartlet, 11 Minn. 410 (Gil. 302). We have also held that where such an indorsement is made for a valuable consideration, after the delivery of the paper to the payee, but while it is in his hands and before its maturity, and the payee subsequently indorses it to a bona fide holder, the party making the irregular indorsement will, in favor of such holder, be held as an indorser. Buck v. Hutchins, 45 Minn. 270, 47 N. W. Rep. 808. Except as limited in these cases, the general rule that parol evidence is admissible to ascertain the intention of the parties to an irregular indorsement is in force in this State; and such evidence was properly received in this case to show the actual relation the defendant agreed to and did assume with reference to the note in question.

This leaves only the question of the statute of frauds to be considered. The defendant's contract of guaranty was a collateral one to answer for the debt of another, and must, to enable the plaintiffs to enforce it, be evidenced by a note or memorandum in writing expressing the consideration. The signature of the defendant alone on the back of the note is not sufticient. Moor v. Folsom, 14 Minn. 340 (Gil. 260). As. suming the facts which the evidence tends to establish, we have a case where the defendant, for a valid

consideration, agreed to guaranty the payment of a note then past due, and still in the hands of the payees. His contract excludes the idea that he intended to be held only as an indorser, and, in execution of his contract, he writes his name upon the back of the note, and leaves it with the payees, who overwrite his signature, with the actual contract he has made, which satisfies in form the statute of frauds. The question, then, in its last analysis, is one of agency only. The actual contract is proved for the purpose of showing the authority to overwrite the signature. Were the payees authorized to thus overwrite the signature? The question is an open one in this State, although the case of Moor v. Folsom seems to indicate that an affirmative answer should be given to the question, but the opinion expressly disclaims any purpose to so decide. It was a matter of indifference who wrote out the formal contract of guaranty after the minds of the parties had met, the contract made and the defendant had signed his name on the back of the note. The writing was only the evidence of what the parties had done. The defendant's signature tot was the material thing. He could sign his name in blank, and authorize the payees or any one else to write his contract over his signature. It was not necessary that the authority to do so should be in writing or expressly given, if clearly indicated by his acts.

In the light of the law and commercial usage, there can be but one reasonable inference to be drawn from the defendant's act in delivering his blank indorsement to the payees in execution of his contract of guaranty. Such act was authority to them to write over his signature anything that was consistent with his undertaking to guaranty the paper. We are of the opinion upon principle and authority, and so decide, that where one not a party to a negotiable note, after it has been delivered to and while it is in the hands of the payee, indorses it in blank, upon a valid consideration, for the purpose of assuming the liabil. ity of a guarantor, such act authorizes the payee to write over the signature the contract of guaranty in full, and, that being done, it is a sufficient note or memorandum in writing to take the case out of the statute of frauds. Beckwith v. Angell, 6 Conn. 815; Ulen v. Kittredge, 7 Mass. 233; Tenney v. Price, 4 Pick. 385; Webster v. Cobb, 17 Ill. 459; Chaddock v. Vanness, 35 N. J. Law, 517; Harding v. Waters, 6 Lea, 324; 1 Brandt, Sur. § 176, and notes; Tied. Com. Paper, $ 270. Such was the rule in the State of New York at one time, and it is still the law of thit State that, where the paper is not negotiable, the holder may overwrite the indorser's name with a contract of guaranty or that of a maker, according to the intention of the parties. Richards v. Warring, 40 N. Y. 576; Cromwell v. Hewitt, 40 N. Y. 491.

CEMETERY ASSOCIATION-ILLEGAL D.SINTERMENT-TRESPASS-DAMAGES. - In Thirkfeld v. Mountain View Cemetery Association, 41 Pac. Rep. 564, before the Supreme Court of Utah, which was a suit against a cemetery association for disinterring the body of plaintiff's child from one of its lots, it appeared that the defendant sold the lot to plaintiff for full value, executing to him a deed; that defendant had previously sold the same lot to another person, but had executed no deed of it; that the first purchaser, discovering the

interment shortly after it had been made, requested, and defendant promised, to have the body removed; that, more than a year afterwards, the defendant disinterred the child, reinterring it in an adjoining lot; that defendant never notified plaintiff that the removal would have to be made. It was held that punitive damages were properly allowed on the ground that the defendant, in thus recklessly disregarding plaintiff's right, committed a willful trespass. The court said in part:

From an examination of the evidence in this case, the conclusion is irresistible that the trespass was willful, being characterized by a wanton and reckless disregard of the rights of the plaintiff. The defendant is therefore liable for full compensation in damages, and, in estimating the damages, the jury had a right to take into consideration, not only the injury to the property, which was comparatively trifling, but also the injured feelings of the plaintiff. We have been cited to no law which relieves the defendant from the consequences of his willful act, or requires the mental sufferings of the plaintiff to be disregarded. In such a case aggravated damages are allowable because of the wantonness of the injury, which might have been averted by ordinary regard for human feelings or mental suffering. We conclude, therefore, that the instruction complained of was proper, under the circumstances of this case. We are aware that by some writers, and in some of the cases, the doctrine of exemplary damages has been questioned, and that in others the term is held to signify no more than a liberal extension of compensation for the wrong done, or the mental suffering induced thereby; but by the great weight of authority, in the cases of tort or trespass, where the injury has been wanton and malicious, or the result of gross negligence, or of a reckless disregard of the rights of others, equivalent to an intentional violation of them, the rule is that exemplary or vindictive damages may be awarded in aggravation of the actual damages occasioned by the injury. And this is so at common law as well as by statute. In Day v. Woodworth, 13 How. 363, Mr. Justice Grier said: "It is a well-established principle of the common law that in actions of trespass, and all actions on the case for tort, a jury may inflict what are called "exemplary," "punitive," or "vindictive" damages upon a defendant, having in view the enormity of his offense rather than the measure of compensa. tion to the plaintiff. We are aware that the propriety of this doctrine has been questioned by some writers; but, if repeated judicial decisions for more than a century are to be received as the best exposi tion of what the law is, the question will not admit of argument. Suth. Dam. §§ 391, 392, 395; 2 Greenl. Ev. §§ 266, 267; Railway Co. v. Harris, 122 U. S. 597, 7 Sup. Ct. Rep. 1286; Meagher v. Driscoll, 99 Mass. 281; Railway Co. v. Beckwith, 129 U. S. 26, 9 Sup. Ct. Rep. 207; Brewer v. Dew, 11 Mees. & W. 625; Nagle v. Mullison, 34 Pa. St. 48.

fraud as vitiating a release, the court holding that one can sue on a policy without first bringing suit to set aside a release thereof claimed to have been obtained by fraud. Such question may be litigated in the same action and that one who sues on a policy need not, before attacking as fraudulent a release thereof, set up as a defense, restore the consideration obtained for the release. It is enough that the judgment provides for such restoration, especially where it is appar ent that a tender would have been rejected. The court says:

The next question for consideration is whether the action could be maintained until the release and socalled "settlement" had been canceled by a decree in equity. Upon the proposition here stated the authorities are conflicting. We believe, however, that to permit the action to be brought in the present form, and all of the rights of the parties to be determined and adjusted therein, best harmonizes with the spirit of our code system. The right to do so is upheld in O'Brien v. Railway Co. (Iowa), 57 N. W. Rep. 425; Steel Co. v. Copple (Ky.), 22 S. W. Rep. 323; Butler v. Railroad Co., 88 Ga. 594, 15 S. E. Rep. 668; Sheanon v. Insurance Co., 83 Wis. 507, 53 N. W. Rep. 878; O'Neil v. Iron Co., 63 Mich. 690, 30 N. W. Rep. 688; Bean v. Railroad Co., 107 N. C. 731, 12 S. E. Rep. 600; Railway v. Higgins, 44 Ark. 293; Lusted v. Railway Co., 71 Wis. 391, 36 N. W. Rep. 857; Railway Co. v. Lewis, 109 Ill. 120; Railroad v. Doyle, 18 Kan. 58; Packet Co. v. Defries, 94 Ill. 598; Bussian v. Railway Co., 56 Wis. 325, 14 N. W. Rep. 452. In the last case cited the court say: "It is claimed by the learned counsel for the appellant that the release given by the plaintiff pending the action was a complete defense to the action, and that there was no evidence in the case which would justify either the court or jury in setting it aside for fraud, misrepresentation, or any other cause. The learned counsel takes the ground that the release can only be impeached by a proceeding in equity, and that if the submission of the question to the jury was proper for any purpose, it should be held that it was simply for the purpose of aiding the court in the determination of the question of fraud, and that their verdict should have no more conclusive effect than a verdict of a jury upon any other issue of fact in an equitable action. We think the learned counsel is in error in regard to the practice. If the release was obtained by fraud or misrepresentation, then it is void, and that question could always be tried in a court at law before the adoption of the Code. Chitty, in his work on Pleadings, says that to a plea of release it is proper to reply that "the release was obtained by fraud." 2 Chit. Pl. (16th Am. Ed.), 455. Also 1 Chit. Pl. 692, 693, and note d. The Supreme Court of Missouri divided upon this question in the recent case of Girard v. Car Wheel Co. (decided June 19, 1894), 27 S. W. Rep. 648, a majority of the court holding that resort to equity to cancel the release need not be made prior to maintaining the action at law. From the opinion of Mr. Justice Barclay in that case we quote: "Defendant's first proposition is that this action for damages is not maintainable, because the release has not been set aside by a decree in

question is a complete defense at law to the cause of

...

action to which it relates, no matter how the paper may have been obtained. This position has been defended with much ability, but no resources of counsel are sufficient to conceal its inherent weakness. The paper in question is, in contemplation of law, nothing more than the form of a contract; and, on finding that the substance which should give life to an obligation is wanting, the court may cast aside the form, and proceed to judgment, notwithstanding the fraud which may have brought the verisimilitude of an obligation into existence. Hartshorn v. Day, 19 How. 211. A court of law, upon ascertaining such a fraud, may properly pass over it to the conclusion which it considers to be just; thus, in effect, discarding the fraud as an obstacle to the exercise of its jurisdiction." From the concurring opinion of Mr. Justice MacFarlane in the same case we quote: "This leaves simply the question whether the reply properly putin issue the validity of the release; or, in other words, whether a release of the character of this one can be avoided, in an action at law, on the ground of fraud, charged in the reply to the answer of defendant setting it up in bar of plaintiff's action. Defendant insists that it is a complete bar until canceled by the decree of a court of equity. It is undoubtedly true that fraud was one of the original heads of equity jurisdiction, 'but,' says Blackstone, 'every kind of fraud is equally cognizable in a court of law, and some frauds are cognizable only there; as fraud in obtaining a devise of lands." 2 Bl. Comm. 431. 'Courts of equity and courts of law have a concurrent jurisdiction to suppress and relieve against fraud.' Lord Mansfield, in Bright v. Eynon, 1 Burrows, 396. This principle has received recognition and approval by this court from the decision of Montgomery v. Tipton, 1 Mo. 446, to that of Clough v. Holden, 115 Mo. 336, 21 S. W. Rep. 1071. The principal ground of objection urged to the right to raise the question of fraud by reply is that such a course of proceeding permits questions of fraud to be tried by a jury, instead of a chancellor, and the recission of a release to be obtained upon evidence which would have been insufficient in a court of equity. But this objection can be urged with equal plausibility to pleading fraud by answer, which, it is conceded, may be done. When we keep in view the fact that courts of law have jurisdiction to relieve against fraud, it would seem to follow logically that its jurisdiction may be exercised to relieve against a fraudulent contract pleaded as a defense, as well as against a fraudulent contract which is made the subject-matter of the suit. It would seem wholly unnecessary and oppressive to drive a plaintiff to another jurisdiction for relief against a defense when the forum, having all the parties before it, has concurrent jurisdiction of the same subject-matter." This view is, we think, supported by what is said in the case of New York Cent. Ins. Co. v. National Protection Ins. Co., 14 N. Y. 85, although it must be admitted that upon the question we are now considering the court of appeals of that State have held contrary to the conclusion which we have reached. In that case the learned Chief Justice Denio says: "As the courts of the State are now constituted, they apply legal and equitable rules and maxims indiscriminately in every case. In a suit which could not formerly have been defended at law, but as to which the defendant would have been relieved in equity, he can now have the like relief in the first action. It was always theoretically unreasonable that in one branch of the judiciary the court should hold that the party prosecuted had no defense, while in another branch

.

the judges should decide that the plaintiff had no right to recover. The authors of the Code, aiming at greater theoretical perfection, have abolished the anomaly; and now, when an action is prosecuted, we inquire whether, taking into consideration all the principles of law and equity bearing upon the case, the plaintiff ought to recover."

Under the Code of this State, legal and equitable rights or administered by one court and in one form of proceeding, and we venture to assert that the tendency of modern authority, as a result, we believe, of the extension of the code system, supports the view of this question which we have herein expressed, and which we are constrained to adopt. And this brings us to the third principal contention, viz. that the release could not be attacked for fraud or otherwise until respondent had restored to the appellant the consideration received therefor. This is somewhat intimately connected with the preceding question, and many of the authorities above cited also hold that it is not necessary for plaintiff to pay back, or offer to pay back, the money received at the time of signing the release as a condition precedent to his right to sue upon his claim for loss or damages, where the judgment songht will accomplish this result. In many of the cases so cited it is held to be sufficient that upon the trial the jury were permitted to give the defendant credit for the money paid at the time the release, so called, was executed. Railroad v. Doyle, supra; O'Brien v. Railway Co., supra; O'Neil v. Iron Co., supra. In Sheanon v. Insurance Co., supra, it is said that: "The $450 being credited upon the recovery of the full amount, the company cannot complain that said sum was not tendered or paid back before the com mencement of the action as a condition of recovery." In Harris v. Society, 64 N. Y. 196, the court says: "In Allerton v. Allerton, 50 N. Y. 670, this court held that the rule that be who seeks to rescind an agreement upon the ground of fraud must place the other party in as good a condition as that in which he was when the agreement was made, is satisfied if the judgment asked for will accomplish that result, and in such case no offer to return that which was received is necessary. It is true, in the case cited the plaintiff had brought the action claiming that there was fraud, and that the contract was void; but the principle is equally applicable where the defendant asserts that the contract was fraudulent and void. law looks to the result, and not the means.' It was also remarked that the reason of the rule is that the party shall not retain the thing which is the subject of the contract, and, on his action, recover the price paid for it, or retain the price paid, and, on his ac tion, recover the thing; and that this reason is satis fied when the claim made and the judgment sought by the plaintiff will leave with the defendant all that he parted with, and thus put him in as good plight as at the time of the agreement." This view is supported in the more recent case of Berry v. Insurance Co., 132 N. Y. 49, 30 N. E. Rep. 254: "One who attempts to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain, either by virtue of the contract sought to be set aside or of the original liability." Kley v. Healy, 127 N. Y. 555, 28 Ν. Ε. Rep. 593; Fisher v. Bishop, 108 N. Y. 25, 15 N. E. Rep. 331. Counsel for appellant, in their very able and exhaustive brief, concede that in suits in equity, where a bill is filed for a rescission, a restoration of the con sideration received is not necessary before suit, it being sufficient that such restoration be provided for by

the judgment. Such being the rule in equity, it would seem to follow as a result of our holding upon the preceding question that the rule is applicable to the case at bar. The only consideration which appellant claims was paid to respondent's assignors for the release was the premium note and one dollar. Concerning the payment of the "one dollar," expressed in the release, the evidence showed that it was not paid or mentioned in the talk leading up to the settlement, but on the morning following the sum of $10 was handed to the younger Harford by the adjuster, Fuller, who says that he then told Harford it was the amount due upon the 10 policies. Harford testified that he did not understand that it had anything to do with the surrender of the policies; that the adjusters had occupied their banking office for a period of about 10 days, having a key to the same during the time that they were at work upon the adjustment of the fire losses, and that he understood that the $10 was to be considered as compensation for the use so made of their office. But we think it matters little which view is adopted. Before entering judgment in this case the respondent remitted and appellant had credit in the judgment for the full amount of the premium note and the $10 additional; hence we think that the case falls squarely within the rule announced in the foregoing decisions. Then, too, the attitude of the appellant throughout as well as before the litiga. tion, and its plea of release, indicate very clearly that any tender or repayment would have been useless. "It has been decisively held in other cases that no preliminary tender can be insisted upon as a bar to legal action where the facts show that the tender would have been rejected." Girard v. Car-Wheel Co., supra. See, also, Deichmann v. Deichmann, 49 Mo. 107; Bigelow, Frauds (1888), p. 424. The evidence shows, and it is admitted by the appellant, that on the morning succeeding the execution of the socalled "release" a demand was made for a return of the policies by the younger Harford. The conduct of the adjuster, Fuller, upon whom this demand was made, was such as to make it clearly apparent that it would have been entirely useless and unavailing to have offered or tendered the premium note. The judgment in this case fully protects the appellant, and that, we think, is the controlling consideration.

THE ACTION FOR THE MALICIOUS PROSECUTION OF AN ORDINARY CIVIL ACTION.

The term "ordinary civil action" as herein used includes only those civil actions in which no special proceedings are had, i. e., in which no such proceedings as arrest, imprisonment or other restraint of personal liberty, or attachment, injunction or other restraint of or interference with property. Both in England and the United States the law is well settled that an action will be sustained for maliciously and without reasonable and probable cause procuring the arrest of the plaintiff, or holding him to bail, or instituting proceedings to adjudge him insane, or attaching his property, or instituting proceedings to declare him a

bankrupt or otherwise restraining his personal liberty, or interfering with the use or possession of his property by any judicial proceedings whatsoever.1 It is also well settled law in England that no action will be sustained for prosecuting maliciously and without reasonable and probable cause an ordinary civil action. Various reasons are advanced by text writers and judges for the English rule of law above stated. It is argued by some that litigation must end somewhere, but that if each successful defendant in a civil suit is thereupon allowed to turn about and bring an action against the former plaintiff for malicious prosecution, and so ad infinitum that there would be no end to such vexatious litigation and that the courts would be overcrowded. Others suggest that the damages sustained by one who is compelled to devote his time and money in the defense of a civil suit are not such damages as the law will recognize, while others hold that the courts should be freely accessible to all to assert their claims without restraint or fear of liability for prosecuting a losing suit. But such reasoning is superficial and inadequate, even to the extent of utterly failing to support in the slightest degree the English rule in question. The idea that vexatious litigation would be increased by allowing an action for the malicious prosecution of an ordinary civil action is undoubtedly erroneous, because the action is not allowed unless the previous action was brought maliciously and without reasonable and probable cause. Both malice and want of reasonable and probable cause must be proved before the action will be sustained. Again, if the action for malicious prosecution of an ordinary civil action is sustained it would have the tendency to decrease vexatious litigation rather than increase it, for then an individual would not be at liberty to use the courts as a tool with which to work his ill will upon an enemy. To say that the damages sustained in defending an ordinary civil suit brought maliciously are not such damages as the law will recognize is to utterly avoid the question at issue. The time necessarily expended in arranging a defense, procuring witnesses and counsel,

1 See Webb's Pollock on Torts, 400; Stephen's Malicious Prosecution, 20, 26; American & English Encyclopedia of Law, vol. 14, p. 32.

2 See Clerk & Lindsell's Law of Torts, 520; Pollock's Law of Torts, second ed., 278.

and money expended in travel and attorney fees, are as actual and direct as are any damages recognized by law. It is even argued by some that indirect and consequential damages as loss of credit should also be considered. Neither would the allowance of this action in any way retard the free and unrestrained access to the courts for all proper purposes. The courts would be as accessible as ever to the honest plaintiff. Only the plaintiff actuated by malice need fear, and he only when his cause is also groundless. There remains only one other argument found in the books in support of the English rule, which is the only reasonable one and probably is the true ground upon which the rule is founded. Previous to the statute of 52 Henry III (1277), the plaintiff, in England, who prosecuted a losing suit, was amerced or fined for bringing his groundless suit. This fine or the amount of the amercement was largely in the discretion of the court, and one who prosecuted a vexatious suit or instituted a suit maliciously was probably held to a heavier fine or amercement pro falso clamore. Since the statute of 52 Henry III, the plaintiff who prosecutes a losing suit is held to pay heavy costs. These costs are in excess of the costs usually allowed in the United States, as they include besides the ordinary costs allowed here the attorney and witness fees, together with the honorarium or counsel fees, which latter is an indefinite amount allowed the defendant for the defending of the case in court as counsel fees, and might be a greater or less amount according to the aggravation of the plaintiff's wrong.

Thus it was the policy of the English law to punish by amercement at first, and later by heavy costs, the plaintiff who brought a malicious suit, without probable cause, in the first instance, without waiting for a second suit to be brought by the injured party. In this way the English remedy is summary and certain. Every offender is punished forthwith without the uncertainty of awaiting the bringing of a second action by the injured defendant. In other words, the English policy has been and is to entrust the remedy for the bringing of a malicious suit to the courts rather than to the injured defendant, and it is enforced by way of a fine or amercement or in more modern times by costs. In America the reasons for the English rule, however,

fail. Here we have provided no punishment, either by fine or amercement, or costs as they have in England. True we do allow costs in favor of the successful defendant but not such costs as are allowed in England where are allowed costs much in excess of any such allowance in this country. As our conditions thus differ from those of England to the extent that the reasons which support the English rule do not apply here we cannot look to the English decisions for authority upon this action to determine the rule in this country. The reasons for the English rule having failed here there is much cause to believe that the rule itself must fail also. The American law on this subject is not well settled and until quite recently the weight of authority, following the English rule, blindly, was against allowing the action. No text writer has thoroughly treated the subject with particular reference to this country. The most recent decisions are to be found in the 21 Amer. L. R. 287 and 353, by John D. Lawson in 1882, at which time he found the weight of authority against allowing the action but concluded that the weight of reason allowed the action. Since that article was written several decisions have been rendered in the various States which at least tend to fix the rule in favor of the action. We have taken the pains to look up all of the decisions in the various States of the Union on this subject, a brief review of which we believe make clear the present condition of the American law on this subject.

Obiter Dictum Opposed to the Action.-In our search we have been able to find four cases giving obiter remarks against allowing the action in question. In Taylor v. Wilson (1795), the court uses the following language: "No action lies to recover the expenses to which a party has been put by being im properly sued." But it does not appear in this case that the improperly brought suit was brought maliciously.

A similar case in the same State arose in 1806, Woodmansie v. Logan, in which we find: "Now, it is clearly established in our books, that for commencing a civil action, though without probable cause, no action on the case for a malicious prosecution will lie. Every man is entitled to come into a court of

31 N. J. L. 362. 4 2 N. J. L. 67.