truly pay the said Whitney the sum of sixtyfive hundred dollars, now due and owing said Whitney," etc. At the time of Hale's failure he owed Whitney $6,500 on account of transactions, independent of the $4,000 note. That note was the only note in the bank which had the names of both Whitney and Hale upon it. Whitney's name was not on any other Hale paper in 1885. June 5, 1885, immediately after his failure, Hale informed Whitney he had secured him in the Victory land matter by the mortgage in suit, and informed him how he could secure his claim for $6,500 by attachment. Following Hale's suggestions, Whitney collected, by suit and otherwise, $6,500 to $6,600. The Peterborough Savings Bank and the Hudson National Bank brought suits against Hale after the mortgage, attached the equity,-the Peterborough bank first, and the Hudson bank next, and at a sale of it, under executions in their favor, bought it in. Whitney's damages are assessed at $5,553.81, as of November 5, 1891. The two banks object that his claim for that sum is not secured by the mortgage as against them.

Josiah G. Bellows and Charles H. Hersey, for plaintiffs. Frank G. Clark, for defendant Peterborough Sav. Bank. Batchelder & Faulkner, for defendant Hudson Nat. Bank.

CLARK, J. The defendants, who are creditors of Hale, the mortgagor attaching the equity in the mortgage premises, object that the mortgage does not indemnify Whitney against the $4,000 note to the Keene National Bank. In January, 1883, Hale received of Whitney $5,000, upon an agreement to convey to Whitney a one-fourth interest in certain timber land, or refund the money, with interest. The land was never conveyed. Of the money received by Hale, $4,000 was borrowed of the Keene National Bank, on a joint and several note signed by Whitney as principal and Hale as surety, and dated January 22, 1883. When the mortgage was executed (June 3, 1885), Hale had disposed of the land, and was bound to refund the money received of Whitney, with interest. The note to the bank was outstanding, and, as between Hale and Whitney, was then, in fact, Hale's debt. He had received the money for which the note was given, and, by the contract with Whitney, he was required to refund it, having failed to convey the land.

The condition of the mortgage, so far as it relates to the note, is: "And shall well and truly indemnify and save harmless the said Whitney from all loss, costs, damage, and expense to which he may be subjected by reason of his signing, at the request of said Hale and for his accommodation, a certain promissory note for four thousand dollars, with said Hale, payable to the Keene National Bank." It does not admit of a doubt that Hale intended to indemnify Whitney against his liability on the note. He treated

the debt represented by the note as incurred for him, and executed the mortgage to secure Whitney against liability upon it. There is no error in the description of the note in the condition of the mortgage. The note described is for $4,000, payable to the Keene National Bank, and sigred by Whitney and Hale. This corresponds with the note which was the only note held by the bank signed by Whitney and Hale. It is no error in the description that it does not specify that Whitney signed as principal and Hale as surety, or that it states that the note was signed by Whitney at the request and for the accommodation of Hale. There is no variance between the note and the description in the condition of the mortgage. There is evidence in the case indicating that the transaction was, in fact, as described in the condition of the mortgage, that the money was raised and the note signed at the request of Hale, and for his accommodation. It appears that Hale offered an interest in the timber land for $5,000, and obtained that amount of money, of which $4,000 was raised on the note, upon an agreement to convey the land or repay the money. The transaction was, in effect, an arrangement for obtaining a loan of $5,000 for Hale's accommodation. It seems to be assumed by the defendants in argument that the condition of the mortgage describes a note signed by Whitney as surety for Hale; whereas it describes a note signed by Whitney, with Hale, for Hale's accommodation, which would naturally be signed by Whitney as principal. The defendants do not set up want of notice or infirmity of fraud in the mortgage, but insist that the note is not covered by it, because Whitney regarded the debt as his when the mortgage was made. The mortgage is to indemnify Whitney against the liability assumed by him on the note at Hale's request and for his accommodation. The indebtedness to the bank for which the note was given was incurred in consequence of Hale's agreement to convey the land, or refund the money, with interest. Hale's promise was the inducement for obtaining the loan, and therefore the note was signed by Whitney, at Hale's request, as stated in the condition of the mortgage. Hale, having failed to convey the land, and being liable to Whitney for the money obtained on the note, treating the indebtedness as incurred for him, executed the mortgage with the intention and for the purpose of indemnifying Whitney against loss by reason of procuring the loan and signing the note, of which he had received the proceeds. The defendants are creditors, claiming title under Hale by an attachment and levy subsequent to the mortgage; and the only question is whether the mortgage is valid as to the note. The description was sufficient to direct the defendants to the note and the character of the incumbrance created by the mortgage; and there is no intimation that they were misled or in doubt as to its being

the note described in the condition of the mortgage, and intended to be secured by it, and there is no suggestion of fraud or estoppel. When the mortgage was executed, Hale had disposed of the land, and put it out of his power to convey it, and it had become certain that Whitney's liability upon the note had been incurred for Hale's accommodation; and the undertaking of Hale to secure Whitney against loss by reason of the transaction was upon a sufficient consideration, and the mortgage is valid against the subsequent attaching creditors.

Whitney's supposition, at the time of Hale's failure, that Hale had conveyed or secured to him a quarter interest in the land, and the fact that he regarded the note to the bank as his own debt, are immaterial. As between him and the bank, it was his debt. His understanding, founded upon a mistake of fact, did not affect his rights under the mortgage. Nor is it material whether he understood, when it was made, that it indemnified him against loss on account of the $4,000 note. The validity of the mortgage did not depend upon Whitney's knowledge of the extent of his rights under it, or even his knowledge of its existence. It was not a personal mortgage, to which the affidavit of the parties was required. Being for his benefit, Whitney's acceptance of it would be presumed if no actual acceptance was shown. Frazier v. Perkins, 62 N. H. 69; Johnson v. Farley, 45 N. H. 505; Peavey v. Tilton, 18 N. H. 151. As the validity of the mortgage did not depend upon it, the time of the actual acceptance is not material. Case discharged.

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

NOBLE v. CITY OF PORTSMOUTH. (Supreme Court of New Hampshire. Rockingham. March 11, 1892.) AMENDMENT-AD DAMNUM-INJURY FROM DEFECTIVE HIGHWAY-STATEMENT-REMARKS OF COUNSEL.

1. The allowance of an amendment, before the opening of a case, increasing the ad damnum, will not ordinarily be reviewed.

2. Gen. Laws, c. 75, § 7, requiring the filing, within 10 days after an injury from a defective highway, with the responsible municipality, of a statement giving a description of the injury, the extent thereof, and the damages claimed, does not prevent recovery of a greater sum, the injury thereafter appearing greater.

3. A remark by counsel to jury in a personal injury case, that "when people get $1,200 or $1,500 for a fracture, is $3,000 too much in this case?" is improper, as evidence of the size of verdicts for fractures would not be admissible; and, in the absence of positive showing that it was not prejudicial, is ground for reversal.

Case reserved from Rockingham county. Action by Ann Noble against the city of Portsmouth.

Case for injuries from a defective highway. The injury complained of was a sprain of the ankle and foot. In the statutory state

ment filed by the plaintiff the amount of damages claimed was $1,500, and in the writ $1,000. Before the case was opened to the jury the plaintiff was allowed to amend by increasing the ad damnum to $3,000, and the defendant excepted. Verdict, $1,559. Case reserved. Verdict set aside.

In his closing argument to the jury, the plaintiff's counsel, after he had finished the discussion of the question of the defendant's liability, said to them upon the question of damages: "When people get $1,200 or $1,500 for a fracture, is $3,000 too much in this case?" The defendant seasonably objected to this remark as not authorized by any evidence in the case. Thereupon counsel desisted, but neither withdrew the remark nor asked the jury to disregard it, and no action was taken by the court in reference to it.

J. S. H. Frink and C. Page, for plaintiff. E. L. Guptill and S. W. Emery, for defendant.

SMITH, J. Whether justice required the allowance of the amendment increasing the ad damnum was a question for the trial court, and ordinarily such questions will not be revised at the law term. Broadhurst v. Morgan (N. H.) 29 Atl. 553. It is usual to grant such leave as of course, upon motion, before trial. No reason has been shown why the exception to its allowance should be sustained. Gen. Laws, c. 226, § 9; Laws 1879, c. 7, § 1; Howe, Pr. 365; Judge of Probate v. Jackson, 58 N. H. 458. The statement required by Gen. Laws, c. 75, § 7, must be filed within 10 days from the date when the traveler was injured. He is required to give, among other matters, a full description of his injuries, the extent of the same, and the amount of damages claimed therefor. The statement is sufficient if it describes the injury as it existed at the time it was filed. "The plaintiff may recover damages not only for the injury described, but also for all the directly resultant injurious consequences, though they may not appear until long afterwards." Robin v. Bartlett, 64 N. H. 426, 429, 13 Atl. 645. The object of the statement is to enable the town authorities to investigate the alleged defect in the highway, and the extent of the injuries sustained by the traveler. Leonard v. Bath, 61 N. H. 67; Carr v. Ashland, 62 N. H. 665. The town may settle the claim if, upon investigation, it shall deem that a proper thing to do, and thus protect itself from unnecessary and useless costs. But if the town declines to settle, there is no reason why the plaintiff, who has innocently underestimated his claim, should not recover his actual damages. His injury, which at first may have seemed slight, may prove to be serious. Within the brief period for filing the statement the nature and extent of his injuries may not have become developed. Robin v. Bartlett, qua supra. Time may demonstrate that he

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.

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. Orders for the other two barrels were sent by

the defendants, one in January and the other in March, 1889, to the plaintiff, in Boston. The liquor was shipped to the defendants at the dates named from the plaintiff's store in Boston by express, and delivered to the defendants at Portsmouth in the same packages it was in when shipped, the express charges being paid by the defendants. The plaintiff had a license to sell intoxicating liquors in Boston. Case reserved. Judgment for plaintiff.

C. Page, for plaintiff. C. E. Batchelder, for defendant J. W. Stott. S. W. Emery, for defendant George Stott.

SMITH, J. The plaintiff is entitled to judgment. Durkee v. Moses (N. H.) 23 Atl. 793.

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

JACKSON BANK v. IRONS et al. (Supreme Court of Rhode Island. Nov. 3, 1891.)

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 us 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 though they had merely written their names on the back of the note, without more. 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 v. Follett, 11 R. I. 92; Carpenter v. McLaughlin, 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.

By

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.

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

DECREE OF DIVORCE-VACATION WITHIN SIX MONTHS-FAILURE TO SERVE PROCESS.

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 de

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

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 with

out 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.

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.