1855. HARRIS May Term, aware of no rule of law which authorizes a public officer to certify what does not appear in his office, for the purposes of evidence. His deposition should be taken, to prove that upon diligent search the fact did not appear. Per Curiam.-The judgment is reversed with costs. Cause remanded, &c. PIERCE. W. March, for the plaintiff. J. S. Buckles, for the defendant. Tuesday, HARRIS V. PIERCE. If A. execute a note to B., and C. indorse the same, parol evidence is admissible to show that C. intended to be held as a surety or a guarantor. A party can not complain of an instruction which is in his favor. A surety in a note is liable on the default of the principal, without notice. ERROR to the Wayne Circuit Court. GOOKINS, J.-Assumpsit by Pierce against Harris, on a promissory note made by one Winebrener, payable to Pierce, and indorsed by Harris. The declaration contains six counts. The first charges Harris as maker of the note; the second, third and fourth allege that Harris indorsed his name on the back of the note, and thereby guaranteed its payment, and that Winebrener, at the maturity of the note, was and still remained wholly insolvent. The fifth is like the second, third and fourth, with the additional averment of a special demand of payment upon Winebrener, four days after the note became due, and notice to Harris of its non-payment. Sixth, a common count for goods sold and delivered. Plea, non assumpsit. There was a trial by jury, and a verdict for the plaintiff. Motion for a new trial overruled, and judgment. The record does not contain the evidence. The questions presented by this record arise upon instructions to the jury, the third of which was to the following effect: "If the evidence shows that Harris, by indorsing his name on the note, intended to become the surety of Winebrener to Pierce, he is liable in the same manner as if he had signed his name under Winebrener's, on the face of the note." There is no error in this instruction. The effect of a blank indorsement of a note by a third party, was considered by this Court, in the cases of Wells v. Jackson, 6 Blackf. 40, and Early v. Foster, 7 id. 35. After citing various authorities, the conclusion arrived at in Wells v. Jackson, was, that such indorsement of paper, not negotiable by the law-merchant, was, unexplained, the undertaking of a surety, and that the indorser was liable jointly with the principal. In Early v. Foster, the plaintiff declared upon a negotiable note so indorsed, against the maker and indorser as joint makers. A general demurrer to the count was sustained, upon the ground that the unexplained indorsement of mercantile paper, by a third person, must be presumed to be the undertaking of an indorser, with all the rights and incidents of such an undertaking. But in both the cases referred to, it was held that the prima facie liability was open to explanation, and that the undertaking might be shown to be in either character. According to these authorities, it was competent for the plaintiff to show by proof, that Harris intended to make himself liable as a surety of Winebrener, in the first instance, or that he intended only to guarantee the ultimate payment. We are to presume that there was evidence to which this instruction applied, and it stated the law correctly. The fourth instruction was to the effect, that if Harris, by his indorsement, intended only to guarantee the payment of the note, on the failure of Winebrener to pay it, Harris would not be liable, unless the plaintiff had demanded payment within a reasonable time after the note became due, or unless Winebrener was notoriously insolvent. The first part of this instruction was in favor of May Term, 1855. HARRIS V. PIERCE HARRIS V. May Term, Harris, and he can not complain of it. The only ques1855. tion he can raise upon it, is, whether the insolvency of the maker rendered a notice of the non-payment to the guarantor unnecessary. Upon this point, we think the authorities settle the question in favor of the ruling of the Circuit Court. Lewis v. Brewster, 2 McLean 21.3 Kent's Comm., 123.—Reynolds v. Douglass, 12 Pet. 497. PIERCE. The fifth instruction was as follows: "If the jury find from the evidence that Harris indorsed the note, intending thereby to sign it as a surety, they should find for the plaintiff." The reasons we have given in support of the third instruction apply equally to this. The sixth instruction was substantially this: "If Harris indorsed the note as a guarantor, and a demand was made of Winebrener, and notice of the non-payment given to Harris, within a reasonable time after the note became due, or if the maker was then notoriously insolvent, the verdict should be for the plaintiff." This does not differ materially from the fourth instruction. These several instructions informed the jury of the difference in law between the contract of suretyship and that of guaranty. The third and fifth suppose Harris to have become liable upon the note as a surety jointly with the principal; the fourth and sixth as a guarantor. If his undertaking was that of a surety, as first supposed, he was liable on the default of his principal, without notice; if that of a guarantor, he was entitled to notice of the default of the principal, unless he was insolvent; but if so, the want of notice could do him no harm, and he was liable without it. There was no error in these instructions. Per Curiam.-The judgment is affirmed, with 5 per cent. damages and costs. O. P. Morton and N. H. Johnson, for the plaintiff. May Term, 1855. BUTLER and Others v. THE STATE. BUTLER V. THE STATE. 6 165 Indictment against the persons composing the trustees of the Wabash and Erie Canal, for a nuisance in erecting a feeder-dam, &c., which was part of said canal. The dam was erected under the act of 1846 to provide for the funded 140 202 debt of the state, and for the completion of said canal to Evansville. No act of wantonness was shown in the erection of the dam. Held, that the indictment was not sustained. The state has exclusive jurisdiction over streams within her territorial limits, which can be navigated only for short distances, at brief periods, by inferior craft, and may obstruct them at pleasure for the public good. The act of March 4, 1853, (Acts 1853, p. 17,) clearly manifests the state's intention to remit the punishment for the act on which the indictment in this case is founded; and in a case so anomalous as this, it is not perceived that any principle would be violated by giving it full effect. APPEAL from the Greene Circuit Court. STUART, J.-Indictment for a nuisance in erecting a feeder-dam, &c. The dam erected was part of the Wabash and Erie Canal, and the persons here indicted are the trustees, &c., of that work. Trial by the Court, on an agreed state of facts. Finding and judgment for the state. The evidence agreed upon is all in the record. The trustees claim the right of erecting the dam, under the authority of a law of the state, entitled “an act to provide for the funded debt of the state of Indiana, and for the completion of the Wabash and Erie Canal to Evansville." Gen. Laws, 1846, p. 1. The 23d section of that act provides, that "said trustees shall have the right to locate and construct such feeders, feeder-dams, side-cuts, and reservoirs as may be necessary to supply said canal with water, and may take such timber, stone, or other materials as may be necessary for the construction of said canal, by making to the proper owners reasonable compensation therefor, on the same terms and in the same manner as the superintendent of said canal is now authorized by law to do; and the word 'canal,' wherever used in this act, shall be construed to mean and include all its feeders, feeder-dams, side-cuts and reservoirs." The agreed state of facts discloses no act of wantonness in the erection. It states that there is a lock in the dam, of 6165 162 253 Tuesday, 1855. May Term, sufficient capacity to admit the passage of vessels of one hundred and five feet long and twenty feet wide, &c.; that the dam was erected by the trustees under the act of 1846, THE STATE. &c., and that it was part of the Wabash and Erie Canal, BUTLER V. &c. The act referred to partakes of the nature both of a law and a contract. It could not have been contemplated by the trustees and the state, regarded as contracting parties, that the completion of the "canal," as defined in the foregoing section, might subject them to a criminal prosecution. But the state has even more than one side of the contract. By the act of 1846, the state is not only a contracting party, but one of the three trustees is an officer of her own selection. As to that trust, he is there, out of abundant caution in the legislative contract, to represent and sustain the interests of the state. She is thus, in some measure, a component part of both sides of this anomalous proceeding. Thus, in the case before us, the state further appears by her attorney prosecuting. And the prosecution is for the very acts of construction which she had authorized to be done-bound the trustees to do; and so far as representation by one of the trustees could go, actually participated in doing. The prosecution of such acts, under such circumstances, can not be sustained. The position is not be thought of as a construction of the statutes, civil and criminal, bearing on the subject. It could be neither explained nor justified, consistently with good faith on the part of the state. Its very complexity would give it the appearance of covert repudiation. Without pretending to say what this anomalous legislative contract, in many of its provisions, does mean, it is not difficult to discover what it does not mean, as applicable to the question before us. Beyond that we will let it be its own interpreter. Its design is matter of public history. And we are clear, alike from the wording of the act itself, from the position of the contracting parties, and from the well-known end to be accomplished, that it was never the |