Sweeney, 14 Bush, 1; Guest v. Reynolds, 68 Ill. 478. In Maryland, by a dictum in Wright v. Freeman, 5 Har. & J. 477, it was thought the English doctrine would prevail, but in Cherry v. Stein, 11 Md. 23, the contrary was decided.

In opposition to this long array of adjudications, the English rule has had the certain support of but one state, viz., Delaware, though New Jersey may possibly be included as approving that doctrine. In Delaware, in the case of Clawson v. Penrose, 15 Am. L. Reg. (N. S.) 6, after an exhaustive review of American and English decisions, the court adopted the English doctrine, and enjoined the defendant from building a house on a vacant lot adjoining plaintiff's, by which plaintiff's windows would be darkened. In New Jersey the same doctrine seems to have been approved, in Robeson v. Pittenger, 1 Green's Ch. 57; but the question was not necessarily decided in the case, and may have rested upon another ground, and if it did not, it still may be considered as overruled: Hayden v. Dutcher, 31 N. J. Eq. 217.

MYRICK V. HASEY.
[27 MAINE, 9.]

WORDS, "I HEREBY GUARANTEE THE PAYMENT OF THE WITHIN NOTE, R. D. H.," written on the back of a note, R. D. H. being the payee, are a sufficient indorsement to enable the holder to sue in his own name.

MAKER OF A NOTE IS NOT ENTITLED TO PROVE IT USURIOUS by his own oath, in an action upon the note by an indorsee.

WHEN A STATUTE HAS RECEIVED A JUDICIAL CONSTRUCTION of the court of the state where it was in force, and has been re-enacted, the legislature is understood to have adopted the construction given.

ASSUMPSIT upon a promissory note for forty dollars. The case was submitted to the court upon the agreement, that if the court should be of opinion that the plaintiff had no right to bring said action in his own name as indorsee, the plaintiff is to become nonsuit. If the court should be of opinion that the plaintiff might bring said action in his own name, by virtue of the original writing, indorsed on said note and signed by said Hill, then the defendant is to be defaulted; unless the court should further be of opinion, that the defendant ought to be permitted to prove the original contract usurious by his own oath, in which case the action is to be opened for a hearing upon that point. The other facts appear in the opinion.

J. S. Abbott, for the plaintiff.
E. Everett, for the defendant.

By Court, TENNEY, J. The defendant made his note to R. D. Hill or order, on October 7, 1837, on demand and interest. The plaintiff's agent, on the thirteenth day of May, 1843, settled a claim of the plaintiff against the payee, and received the note in

part payment with the following agreement on the back: "May 13, 1843. I hereby guarantee the payment of the within note. R. D. Hill." At the trial of the action the plaintiff was permitted by the court, against the objection of the defendant, to alter the indorsement, so that it now reads: "May 13, 1843. Pay the within to Josiah Myrick, and I hereby guarantee the payment of the within note, for value received. R. D. Hill.”

The defendant denies that the note was ever transferred, so that an action can be maintained in the name of the plaintiff; and insists, that as the name of the payee was placed to an agreement, which was perfect in itself, it can have no other effect than that, which its terms import, therein differing from an indorsement in blank. A blank indorsement is sufficient of itself to transfer the right of action to any bona fide holder: Chitty on Bills, c. 6, p. 255. The additional words permitted by the court, would in no respect change the rights of parties. If the note had not been transferred before the alteration, it was not so afterwards. Several cases are relied upon by the defendant, in support of the position taken. The case of Taylor v. Binney, 7 Mass. 479, was where one Fales made his note to the defendant or order, dated April 21, 1805, payable in six months, on the back of which was the following: "December 13, 1805. I guarantee the payment of the within note in eighteen months, provided it can not be collected of the promisor before the time," signed by the defendant. The plaintiff was not the party to the guaranty or assignment, when it was made; and no evidence was in the case of any subsequent privity or assent between him and the defendant. The question, whether an action could have been sustained in the name of the party, to whom the guaranty was made, against the maker of the note, did not and could not arise. The court say, however: "If this indorsement, in the whole tenor of it, may be construed to be not only a guaranty, but also a transfer and assignment of the note, which seems to have been the intention and understanding of the parties; the principal objection to the title of the plaintiffs remains in force." The court held the guaranty not negotiable, and therefore the action not maintainable.

In True v. Fuller, 21 Pick. 140, three notes were given by Bryan Morse to Elisha Fuller, secured by mortgage of real estate the payee indorsed the note in blank, and on the same the defendant signed the following: "I guarantee the payment of semi-annual interest on this note as well as the principal." The action was not in the name of the person to whom the guaranty was made. The court held, that " the guaranty was

not negotiable in itself, and could not be altered either by striking out words, so as to convert it into a general indorsement, or by filling up as in case of a blank indorsement. In the latter case an indorser, by leaving a blank over his name, tacitly agrees, that any subsequent lawful holder may insert suitable words, to render him liable in the same manner and to the same extent implied by his indorsement and the usages of business." Here the paper was negotiated and transferred by the indorsement of the payee, and the only question was, whether the guaranty of a stranger to the note in its inception was negotiable. The case of Lamourieux, in error, v. Hewit, 5 Wend. 307, was similar to the one last cited. The note was given by P. Williamson to S. Beecher or bearer, and while it was owned by one Tuttle, previous to its becoming due, the plaintiff in error indorsed on it the following: "I warrant the collection of the within note for value received," and signed his name to the same. The court held the guaranty not negotiable. The note itself being the property of the holder, and payable to Williamson or bearer, the decision would be no impediment to the successful prosecution of a suit against the maker. In Canfield v. Vaughan et al., 8 Mart. 695, no such question as the one under consideration was presented for decision. But the case contains a dictum which supports the ground taken by the defendant. It is the opinion of a great judge, and so far is entitled to consideration.

The question does not seem to have been distinctly raised in those cases, when the subject of the negotiability of guaranties, on bills of exchange and promissory notes, has been discussed, whether the contract, which was full and perfect in itself upon a note, and not containing words of transfer, did or did not have the effect to transfer it. But there are many cases, where the court seem to consider it as a matter not admitting of a doubt that the note or bill was transferred. In Blakely v.

Grant, 6 Mass. 386, the plaintiff, as indorsee of the payee, brought an action on a foreign bill of exchange against the defendant as drawer. The bill was on Johnson Grant & Son, payable to Dominique Lajus, and on the back was the following indorsement: "Should the within exchange not be accepted and paid agreeably to its contents, I hereby engage to pay the holder, in addition to the principal, twenty per cent. damages." Signed, Dominique Lajus. Parsons, C. J., in delivering the opinion of the court says: "As the payee, if he made the indorsement, expressly promises to pay the holder twenty per cent. damage, besides the principal, if the bill should be dishonored, we are

satisfied that the indorsement is evidence of a transfer of the bill without naming the indorsee; and in this respect the indorsement may be considered as general, and a bona fide holder may fill it up, by inserting above the express stipulation a direction to pay the contents to his order for value received." The same principle is found in that of Upham v. Prince, 12 Id. 14. A note dated March 23, 1809, made to the payee or order on demand, was delivered to one Faulkner, indorsed thus: "Boston, March 25, 1809. I guarantee the payment of this note within six months. Andrew H. Prince." Faulkner transferred the same as collateral security for a bona fide debt. The action was against the payee as indorser of the note. The court say: "The defendant's engagement amounts to a promise, that the note should at all events be paid within six months. Now this promise may not be assignable in law; and yet the note itself may be assignable to the party to whom it was so transferred, so that upon non-payment of it by the promisor, the holder would have a right of action against Prince as indorser.”

Judge Story, in view of all these cases, remarks: "An indorsement by the payee, or other lawful holder, may enlarge his responsibility beyond that ordinarily created by law, without in any manner restraining the negotiability of the bill." "An indorser may absolutely guarantee the payment of the bill in all events, and dispense with demand or notice." In such case there is no reason to infer, that the indorser means to restrain the further negotiability of the bill, even if he does mean to restrain the effect of the guaranty to his immediate indorsee. And if the indorsement is either without the name of any person, to whom it is indorsed, but a blank is left for the name, or if the bill is indorsed to a person or his order, or to the bearer, with such a guaranty, there is certainly strong reason to contend that he means to give the benefit of the guaranty to every subsequent holder, and at all events such a holder has a right to hold him as indorser of the bill, as he has left its negotiability unrestrained:" Story B. Exch., sec. 215. The author's references are to cases, where there was no other indorsement of the name of the party, than that affixed to the guaranty. In reference to the case of Upham v. Prince, supra, he remarks in a note to the section referred to: "This last decision seems to me to contain the true doctrine, and it is not easy to perceive what reasonable objection lies to it. The indorsement amounts in legal effect to an agreement to be bound as indorser for six months, and that a demand need not be made upon the maker of the note for pay

ment at an earlier period. It is therefore a mere waiver of the ordinary rule of law as to reasonable demand and notice upon notes payable on demand." The right to sustain this action in the name of the plaintiff, the bona fide holder of the note, against the maker, is fully supported by the authorities of Massachusetts, while we were a part of that state, and since the separation, and by all the authorities, which have been examined, excepting by the dictum of the court of Louisiana, which, notwithstanding its high character, is by no means sufficient to overbalance all which exists against it.

2. By the agreement of the parties, if the court should be of the opinion, that the defendant is entitled to prove the note usurious by his own oath, the action is to be opened for a hearing upon that point, as the court shall order. The statute of 1783, c. 55, sec. 2, was the subject of judicial construction, and held to mean, that "the statute contemplates causes only, where the original contracting parties are also parties to the suit:" Putnam v. Churchill, 4 Mass. 516; Binney v. Merchant, 6 Id. 190. The language of the statute of 1834, c. 122, sec. 3, and the revised statutes, c. 69, sec. 3, is substantially the same so far as it relates to the right of the parties to tender and take their oaths respectively. When a statute has received a judicial construction of the court of the state where it was in force, and the same statute has been re-enacted with the same provision, which has been the subject of judicial discussion and decision, the legislature are understood to have adopted the construction given: Rutland v. Mendon, 1 Pick. 154.

By agreement of the parties, the defendant is to be defaulted.

CONSTRUCTION OF COMMON LAW TERMS IN STATUTE.-Where terms used in the common law are contained in a statute or the constitution, without an explanation of the sense in which they are employed, they should receive that construction which has been affixed to them by the common law: Carpenter v. State, 34 Am. Dec. 116.

PLAISTED V. BOSTON AND KENNEBEC STEAM NAVIGATION CO.

[27 MAINE, 132.]

COLLISION OF VESSELS AT SEA, WITHOUT FAULT IMPUTABLE TO EITHER, is not an "act of God."

OWNERS OF STEAMBOAT, ADMITTED TO BE COMMON CARRIERS, ARE LIABLE for a shipment lost by means of a collision with another vessel at sea, and without fault imputable to either, there being no express stipula tion that they should be exempt from perils of the sea.