mons.

sidering that Macaulay was free from the cares and pressures of a profession, and, indeed, from any demands that interfered with his entire devotion to any subject that interested him, he gave comparatively little to society and to the world. He made a few speeches (not many) in the House of ComHe wrote a few reviews and essays. He wrote some pretty poetry, and he wrote his History of England. He prepared also (with much help) his Indian Code. All these things were well done; most of them were brilliant. They were, and they will long continue to be, very readable. But every one of them was the product of long and uninterrupted labor; written and re-written again and again, and never permitted to go from him until he had expended upon it his best culture, and his highest power. We see, therefore, in "Trevelyan's Life,” Macaulay at his best, and only on the very apices of his powers. Choate never had time for such expenditure of labor, and he was less careful of his posthumous reputation. Yet he was, at least, equally brilliant, more versatile, and far more logical. His style, undressed, is equally beautiful with that of Macaulay, arrayed in its best costumes, and his oratorical powers seem to me to have been much higher. His ability to influence and sway other minds has never been surpassed. But I have no time to go into an analysis of Macaulay's and Choate's mental powers, acquisitions and culture.”

"In moral traits the two men are not to be compared. Though Macaulay was tender and loving to bis mother and sisters, perhaps also to Ellis, he loved himself supremely. Beyond the narrow circle mentioned, there can hardly be said to have been any who had a place in his heart. He was conspicuously vain, envious, jealous and lastingly malignant. Yet he was a great and brilliant man. But how unlike the great and brilliant American."

"I shall wait for the completion of your articles with much interest, and, perhaps, I should not have thrown out the crude observations I have made. Yet I will add one remark. Perhaps the mellowing influence of a cordial acceptance of christianity will account for the superior loveliness of Mr. Choate's character over that of Macaulay. Can there be any thing more touching than the former's conduct at the baptism of his dying daughter? "

[Extracts from letter of June 16, 1877.]

"I have read with great interest all you have said of Mr. Choate in the ALBANY LAW JOURNAL. You certainly have no reason to regret the work you have done in bringing before the thought of the country the most remarkable man (in some particulars) who, in modern times, has appeared in the legal profession. I have admired your analysis of his character and endowments. You have done a work I should have feared to attempt. There was so much to admire in Mr. Choate, from whatever stand-point

one looked at him, that it is difficult to speak the truth of him without exposure to the charge of exaggeration. His affection and his domestic life how charming! his sense of honor how keen; his subjection to the control of high moral principles how complete and constant; his imagination how brilliant and chaste; his logical power how masterly, his memory how tenacious and his industry how untiring! He seems to have united in himself the highest excellencies that are generally considered inconsistent with each other; for illustration, the power of exact reasoning and of sharp discrimination, with the most playful fancy, and a devotion to his professional engagements apparently disdainful of rest, with a ceaseless and demonstrative outflow of the best affections of the heart. He proved that these virtues are not necessarily incongruous. And then where could he have found time for so much classical reading? Macaulay had no profession to which he was tied. His business was to be a reader and a general student. Mr. Choate had enough for a life's work which demanded his first attention, and that work was always done."

In a letter received from the late Emory Washburn, written a few days before his death, he said: "I am glad Mr. Choate is taking his true position, as the scholar, the orator, and the jurist, among the men of genius and learning of our country, instead of that blazing comet-like creation of fact and fancy which several writers had been disposed to picture him. I am glad that you have told the public, in coolness and candor and discrimination, just what sort of a man he was, and his true claims upon their admiration and respect."

We give the following extracts from a letter received from a distinguished advocate, much at the bar with Mr. Choate, but now retired from practice:

"A peculiarity, undoubtedly observed by you, is that many of the most characteristic stories of Mr. Choate are likely to convey a false impression of his character to those who did not know him. This is because many of his witty sayings derived their point and force from the clever portraiture of some trait of character or peculiarity of the person to whom they referred. Perhaps I can illustrate this better than I can explain. Take, for example, the anecdote to which the Hon. Mr. Thompson, representative in Congress, lately referred in the House of Representatives. A suit was brought against Major Osborne who commanded the minute men who went from Danvers on the 19th of April, 1775, to Lexington. He had been a stockholder of the Boston and Salem Stage Company, and was sought to be held individually liable, as such stockholder, for the debts of the corporation. Before the suit he had transferred his stock, and it was claimed that the transfer was made to avoid the liability. Mr.

Choate was engaged for the defense. His fame was then comparatively local, but he was in the prime and vigor of young manhood, and the village of South Danvers flocked to hear him in a case which, they rightly judged, would call out all his powers. The case (Bordman v. Osborne) is reported in the 23 Pick. A reference to it will show that the defense prevailed, upon an issue which did not involve the question of fraudulent transfer. The trial was some sixty years after the battle of Lexington, and, during the argument, Mr. Choate exclaimed: "Would my client have done this thing? He would have stood another shot at Lexington first!" He referred repeatedly to his "venerable client," and as you may well imagine, indulged in many patriotic embellishments. It was, indeed, one of his most splendid efforts. You have, perhaps, heard of the uncourtly, not to say rough, manner of the late Chief Justice Shaw. Mr. Thompson had stated substantially the colloquy which took place between that great magistrate and Mr. Choate as he closed, and which was heard by all in attendance. But it requires a knowledge of both parties to appreciate the remark which Mr. Choate made, as he was putting on his overcoat, to the person sitting next to him, sotto voce: "The old chief doesn't know much law, but he has very pretty manners." I give this simply to illustrate what I mean by the difficulty of relating some of his most piquant remarks, without conveying an inaccurate impression.

"In the last trial which Mr. Choate attempted in his life, an incident occurred which shows how absolutely absorbed he then was in his professional duty. It was a trial before a jury upon the validity of a will, Judge Bigelow, afterward Chief Justice of the Supreme Judicial Court, presiding. Mr. Choate and the Hon. Alfred A. Abbott were in favor of the will; Mr. Otis P. Lord, now judge of the Supreme Court in Massachusetts, with Judge Thomas, who had then resigned his seat upon the Supreme Bench, as senior counsel, disputed its validity. It was evident to all that Mr. Choate was too sick to try the cause. By a rule of the court, only two counselors on each side could take part in the trial. Very soon after the trial commenced, Mr. Choate requested Mr. Stephen B. Ives, Jr., then a young man, but now a leader of the bar, to take notes of evidence for him. The trial occupied several days, and the courts made long days then. Before the evidence was concluded Mr. Choate was obliged to succumb. He, therefore, requested the court so far to modify the rule as to allow him to withdraw, and let the case be continued by Messrs. Abbott and Ives. This was, of course, assented to, and Mr. Choate withdrew from the table and took his seat in the center of the room. During the same session of the court a question arose as to the admissibility of certain evidence. Mr. Lord objected to it, and briefly stated the ground of objec

tion.

Messrs. Abbott and Ives both spoke to it, and Judge Thomas replied, closing the discussion. The court sustained the objection. Mr. Choate was immediately on his feet, with: "May it please your Honor," when Judge Bigelow somewhat sharply said that the question had been decided and that two had already spoken upon it. Mr. Choate pleaded, "Only as amicus curia, your Honor, may I be pardoned for a word," and proceeded with one of his most magnificent arguments in favor of the admissibility of the evidence. But the judge adhered to his decision, though I am by no means sure he would have done so had the argument been made before, instead of after, the court had passed upon the matter. This, I am quite sure, was the last argument made in court by Mr. Choate, although I have an impression that he subsequently appeared before some judge at chambers.

"The most marked characteristic of Mr. Choate, I think, was his capacity to so enter into the hopes and feelings of every one with whom he came in contact as to impress each with the notion that he had some special and peculiar interest in him. I confess I do not understand this mystery, but I know the feeling almost always came over me when I met him, and considerable effort of reason and judgment was necessary to realize that it could not be so. I could plainly see, too, that others were impressed with a similar feeling as regarded themselves.

"The town of Essex, in which Mr. Choate was born, was, at the time of his birth, a part of the ancient town of Ipswich. He was born, as you probably know, upon an island at the mouth of Essex river, bearing the euphonious and fragrant name "Hog Island." Ipswich was incorporated in 1634, and in 1834 the second centennial was celebrated, and Mr. Choate delivered an oration, At the dinner which followed, Nehemiah Cleaveland, LL. D., whom, perhaps, you know as having formerly had a school for young ladies in Brooklyn, but who now resides in Conneticut, toasted Hog Island in compliment of the "shoats" it had produced. I believe Mr. Choate was chagrined at the pun in spite of the evident good feeling with which the sentiment was proposed, being, in this, unlike Lord Bacon, who "playfully declared himself a descendant of 'Og, the King of Bashan."

"You, of course, know his handwriting, and that it was in his youth the same as through his life. When he first opened his office in Salem, he was compelled, as young attorneys usually are, to attend to all kinds of business, conveyancing among the rest. He sorely tried the patience of the registrars. On one occasion a classmate called upon him, and, finding him free from clients, felt at liberty to remain. In a few minutes a gentleman from the registry office came in, whispered to Mr. Choate earnestly, and went away. Mr. Choate begged his classmate

and gratuitously to volunteer an opinion. For judicial officers, however, I feel free to say, that I condemn the practice, wholly and entirely. Not because we should any of us be conscious that our judgment would be warped or influenced by so slight a cause. We flatter ourselves that it would not be. Still, it would provoke comment, if not condemnation, from suitors against whom judgments might be rendered where the interest of these corporations was concerned. The charge, or the suspicion, of bias is to be avoided. Dimes v. Grand Junction Canal, 3 H. L. Cas. 793. The administration of justice should not only be pure, but, as far as possible, free from suspicion. To attain the high ends of his office, a judge must be of good report. That a gift perverteth the ways of judgment, is a truth coming to us with so lofty a sanction that it may not be questioned. Lord Chief Justice Hale, whom Lord Campbell justly describes as an object of admiration and love to all his contemporaries, and as a model of public and private virtue by succeeding generations, refused to try a cause of a party who had sent him a present of some venison, until his butler had ascertained and paid its full value. The payment being refused, the cause was postponed. This, by some, was thought to be over scrupulous, and possibly it may have been so; but for myself, I prefer, on this subject, to err with Lord Hale, rather than to follow Lord Bacon. In this opinion the other judges concurred.

INDORSEMENT OF PROMISSORY NOTE BY

STRANGER BEFORE DELIVERY.

SUPREME COURT OF THE UNITED STATES- остоBER TERM, 1877.

GOOD V. MARTIN.

When a promissory note made payable to a particular person or order is first indorsed by a third person, such third person is held to be an original promisor, guarantor or indorser. (1) If he put his name in blank on the back of the note to give the maker credit with the payee, or if he participated in the consideration of the note, he is held as joint maker. (2) If subsequent to the making and delivery of the note, he did the act in pursuance of a contract between the maker and payee for forbearance, he is held as guarantor. (3) If he did it with the understanding of all parties that the note was to be inoperative until indorsed by the payee, he would be held liable only as second indorser. The presumption where such an indorsement is made in blank is, that the party is liable as maker or guarantor. Where the party is held as a promisor or a second indorser,

it is not necessary to allege or prove any other than the original consideration, but if it is attempted to hold him as guarantor, a distinct consideration must appear.

ERR

RROR to the Supreme Court of the Territory of Colorado. The action was one of assumpsit upon a promissory note brought by Ida Martin against Parker B. Cheney, William M. Shephard and John Good, and payable to the order of Alexander Davidson. Cheney and Shephard were makers of the note and Good indorsed the same. Other facts appear in the opinion. The case is reported below in 1 Colorado, at pages 165 and 406.

Mr. Justice CLIFFORD delivered the opinion of the court.

Decisions of a conflicting character exist as to the nature and legal effect of the obligation which a third person assumes who indorses his name in blank on a negotiable promissory note before the payee and before the instrument is delivered to take effect. Courts of justice in some jurisdictions hold that such a party is a second indorser even though it be true that the payee may never indorse the instrument.

Phelps v. Fisher, 50 N. Y.; Shafer v. Bank, 59 Penn. St. 148.

Even elementary rules show that he cannot be first indorser, for the reason that he is not payee, and it is well-settled law that no one but the payee can sustain that relation to the maker or put the note in circulation as a negotiable instrument. Essex Co. v. Edmunds, 12 Gray, 276; Moies v. Bird, 11 Mass. 440.

Three of the counts of the declaration are framed upon a promissory note, dated June 29, 1866, payable to Alexander Davidson or order, sixty days after date, signed by the first two defendants, and the record shows that it was indorsed by the other defendant before it was indorsed by the payee and before it was delivered to take effect as a negotiable instrument. His indorsement was in blank, and of course was without any written explanation as to its nature and intended effect.

Besides the three counts framed upon the promissory note, the declaration also contained the common counts, in which it was alleged that the defendants were indebted to the plaintiff in the sum of $2,000 for work and labor done and performed, and in the same sum for goods, wares, and merchandise sold and delivered, and in the same sum for money had and received, and other counts in indebitatus assumpsit.

Service was made, but the two defendants first named failed to appear and were defaulted. Instead of that the other defendant appeared, pleaded the general issue, and went to trial. Evidence was introduced on both sides, and the verdict and judgment were for the plaintiff in the sum of $3,625.33. Exceptions were filed by the defendant who went to trial, and he sued out a writ of error and removed the cause into this court.

Only two of the exceptions are embodied in the assignment of errors, and those only will be re-examined: (1) That the court erred in instructing the jury that if they found from the evidence that the defendant wrote his name upon the back of the note before the delivery of the same to the payee, and that he did not then make any statement of his intention in so doing, he is presumed to have done so as the surety of the makers and for their accommodation, to give them credit with the payee, and is liable for the payment of the note in this action; and that if that presumption is not rebutted by the evidence in the case they must find for the plaintiff in the issue joined between her and the last-named defendant. (2) That the court erred in excluding the testimony of the two defendauts called as witnesses by the defendant who appeared and went to trial.

Decided cases almost innumerable affirm the rule that if one not the promisee indorses his name in blank on a negotiable promissory note before it is indorsed by the payee and before it is delivered to take effect as a promissory note, the law presumes that he intended to give it credit by becoming liable to pay it either as guarantor or as an original promisor. Bry unt v. Eastman, 7 Cush. 113; Benthal v. Judkins, 13 Metc. 267; Colbun v. Averill, 30 Me. 317.

Different courts, as remarked in that case, hold different views in respect to the question here involved, but all concur that such an act constitutes a contract which is to receive a reasonable and an available construction. Great conflict exists in the decided cases, but the better opinion is that there are certain general rules and principles to be followed in the interpretation of such a contract, which, in the absence of

other evidence, will lead to satisfactory results, even amid the conflicting decisions.

Beyond all doubt the contract should be construed as it was at the time it was made. If made at the inception of the note it is presumed to have been for the same consideration and a part of the original contract expressed by the note. If made subsequently to the date of the note and without a prior indorsement by the payee, it will be presumed that it was not made for the same consideration, and the party, if liable at all, will be regarded as a guarantor. Such a contract to guarantee the debt of a third person must be in writing and there must be sufficient proof of the consideration. Brewster v. Silence, 4 Seld. 211; Leonard v. Vredenberg, 8 Johns. 28; Hall v. Farmer, 5 Denio, 484.

These remarks apply where the third person indorses the note before the payee, but where such a person indorses the note after a prior indorsement by the payee, the law presumes it to have been done in aid of the negotiation of the note, and the party will be regarded as a subsequent indorser, the rule being that if the indorsement is without date it will be presumed to have been made at the inception of the note. Ranger v. Cary, 1 Metc. (Mass.) 373; Noxon v. De Wolf, 10 Gray, 760; Collins v. Gilbert, 4 Otto, 760.

Irregularities of the kind in the execution of promissory notes are noticed by Judge Story in bis work on Promissory Notes, and he says that the maker and such a party are both to be deemed original promisors and the note a joint and several promissory note to the payee, although as between the maker and the other party they stand in the relation of principal and surety. Standard authorities too numerous for citation here are referred to by the author in support of the proposition. Story on Promissory Notes, § 58; Sylvester v. Downer, 20 Vt. 358; Lewis v. Harvey, 18 Mo. 76; 1 Pars. on Cont. (6th ed.) 243.

None will deny, it is presumed, that the cases cited sustain the proposition where the third person indorses his name in blank on the note at the time when it was made and before it was indorsed by the payee, and the same learned author admits that the rule would be otherwise if the party actually wrote his name at a subsequent period, unless it was done in compliance of an agreement made before the note was executed. Hawkes v. Phillips, 7 Gray, 286; Leonard v. Wilder, 36 Me. 268; Champion v. Griffith, 13 Ohio, 239. Prior decisions of this court are to the same effect, as appears by the following citation: Rey v. Simpson, 22 How. 350.

When a promissory note made payable to a particular person or order is first indorsed by a third person, such third person is held to be an original promisor, guarantor or indorser, according to the nature of the transaction and the understanding of the parties at the time the transaction took place.

1. If he put his name in blank on the back of the note at the time it was made and before it was indorsed by the payee, to give the maker credit with the payee, or if he participated in the consideration of the note, he must be considered as a joint maker of the note. Schneider v. Schiffman, 20 Mo. 571; Irish v. Cutler, 31 Me. 537.

2. Reasonable doubt of the correctness of that rule cannot be entertained, but if his indorsement was subsequent to the making of the note and to the delivery of the same to take effect, and he put his name there at the request of the maker, pursuant to a con

tract of the maker with the payee for further indulgence or forbearance, he can only be held as guarantor, which can only be done where there is legal proof of consideration for the promise, unless it be shown that he was connected with the inception of the note.

3. But if the note was intended for discount and he put his name on the back of the note with the understanding of all the parties that his indorsement would be inoperative until the instrument was indorsed by the payee, he would then be liable only as a second indorser in the commercial sense, and as such would clearly be entitled to the privileges which belong to such an indorser.

Considerable diversity of decision, it must be admitted, is found in the reported cases where the record presents the case of a blank indorsement by a third party, made before the instrument is indorsed by the payee and before it is delivered to take effect, the question being whether the party is to be deemed an original promisor, guarantor or indorser. Irreconcilable conflict exists in that regard, but there is one principle upon the subject almost universally admitted by them all, and that is that the interpretation of the contract ought in every case to be such as will carry into effect the intention of the parties, and in most cases it is admitted that proof of the facts and circumstances which took place at the time of the transaction are admissible to aid in the interpretation of the language employed. Law Rep., 5 Q. B. 475.

Facts and circumstances attendant at the time the contract was made are competent evidence for the purpose of placing the court in the same situation and giving the court the same advantages for construing the contract which were possessed by the actors. Cavazos v. Trevino, 6 Wall. 784.

Courts of justice may acquaint themselves with the facts and circumstances that are the subjects of the statements in the written agreement and are entitled to place themselves in the same situation as the parties who made the contract, so as to view the circumstances as they viewed them and so to judge of the meaning of the words and of the correct application of the language to the things described. Shore v. Wilson, 9 Cl. & Fin. 569; Clayton v. Grayson, 4 Nev. & Man. 606; Addison on Cont. (6th ed.) 918; 2 Taylor's Ev. (6th ed.) 1035.

Evidence to show that the indorsement of the defendant in this case was made before the instrument was indorsed by the payee or delivered to take effect was admitted without objection, but it is not necessary to rest the decision upon that suggestion, as it is clear that the evidence would have been admissible even if seasonable objection had been made to its competency. Hopkins v. Leek, 12 Wend. 105.

Like a deed or other written contract, a promissory note takes effect from delivery, and as the delivery is something that occurs subsequent to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place, as it cannot appear in the terms of the note. 2 Taylor's Ev. (6th ed.) 1001; Hall v. Cazenove, 4 East, 477; Cooper v. Robinson, 10 Mees. & Wels. 694.

Opposed to that the suggestion is that if a holder produces a note having a blank indorsement of one not the payee, the presumption is that it was made at the inception of the instrument. Childs v. Wyman,