amount of the overdraft on the bank against him. In these circumstances the court held that the bank, having knowledge that the husband was insolvent, was not a holder in due course without notice, and could not hold the wife to the full extent of the note, but only to the extent that it represented notes of her own taken up by it; at least, in the absence of proof that the overdrafts of the account in the husband's name were made up of sums used for the wife's benefit, or that the husband's account was in fact the wife's account.

And in Snyder v. Armstrong (1873) 9 Phila. (Pa.) 146, an employer intrusted a blank note signed by himself and indorsed by the defendant, to a confidential clerk, to be used if any unforeseen contingency should arise, requiring the aid of the defendant's credit; the clerk left the employer's service, retaining the note as well as another note executed by the employer alone, and more than a year later filled out the blank note, giving it to the plaintiffs, as a security for goods advanced to the employee, who had gone into business for himself. And it was held that the fact that the note had remained in the clerk's hands unused during the period of more than a year after he had left his employer's service was a circumstance which should have induced the plaintiffs to investigate, and sufficient to charge them with constructive notice of the facts, and so prevent them from recovering against the defendant on the note. It was stated that under the rule that delivery of a note indorsed in blank authorizes the payee to fill it up and put it in circulation, the power must be exercised within a reasonable period.

In England, the maker or drawer of a blank instrument (at least, if it is not stamped) who places it in the custody of one in his employment to be filled out and used is not liable, even to a bona fide holder for value,

if the instrument is wrongfully filled out by the employee. Thus, the English court of appeals, in the case of Smith v. Prosser [1907] 2 K. B. (Eng.) 735, 5 B. R. C. 682, 11 Ann. Cas. 191

C. A., held that one signing his name on two blank, unstamped, lithographed forms of promissory notes, which he intrusted to one of two persons to whom the maker had given a power of attorney to act for him during his absence from the country on business, with instructions that the instruments should be retained until the signer should give instructions for their issue as promissory notes, and as to the manner in which they should be filled up, was not liable to a holder of the instruments in good faith who gave full value, where the instruments in fraud of the maker were filled in by the agent so as to make them appear promissory notes for a considerable sum and negotiated. The reason. given was that, when the maker handed the notes to his agent, the agent took as custodian only; and that they were not delivered with the intention that they should be issued as negotiable instruments until he so ordered, so that the maker was not estopped from denying the validity of the notes as between himself and the holder. It will be observed from the decision that the court in this case expressly assumed that the plaintiff was a holder in due course, without notice, though as a matter of fact there was evidence from which it might have been held that facts within the plaintiff's knowledge were such as to put him on inquiry as to the agent's authority to negotiate the notes. All the judges, however, expressly refrain from putting their decision upon this ground. Williams, L. J., in his opinion, states: "In my judgment it is of the very essence of the liability of a person signing a blank instrument that the instrument should have been handed to the person to whom it was in fact handed, as an agent for the purpose of being used as a negotiable instrument, and with the intention that it should be issued as such. In my opinion this is not a case in which such facts appear. The defendant came to England, and, being desirous that sums of money should be raised on his behalf if the necessity should arise while he was away, he delivered these notes to his attor

ney, not as notes to be issued, and which the attorney was from the first to have authority to fill up and issue, but as custodian only, and intending that the notes should not be issued until he sent instructions to that effect from England. Under these circumstances the authorities seem to show that, in the absence of a delivery of notes to an agent with the intention that they shall be negotiated, or, at any rate, that the agent shall have power to negotiate them, the signer is not responsible, even to a bona fide holder for value." Further he states that the mere fact that the signer of a negotiable instrument has been negligent in regard to a signed paper never renders him liable to be estopped from showing the conditions under which he parted with its possession, unless he has so dealt with the instrument or given such instructions with regard to it as to raise a duty between himself and the commercial public; that mere negotiation, by itself, cannot raise an estoppel.

The court in the Smith Case (Eng.) supra, distinguished that case from the decision in Lloyd's Bank v. Cooke [1907] 1 Κ. Β. (Eng.) 794, 5 B. R. C. 666, 8 Ann. Cas. 182-C. A. (a case not within the scope of the present annotation), which held that one who signs his name on a blank, stamped piece of paper, and intrusts it to another with authority to fill it up as a promissory note for a certain sum, and deliver it to the plaintiff as security for an advance to be made by him, is estopped from denying the validity of the note as between himself and the plaintiff, where the one to whom the note was intrusted fraudulently filled it up for a larger amount, and by that means obtained advances from the plaintiff, who had no notice of fraud, on the ground that the documents in the Cook Case were handed to the agent for the purpose of issuing promissory notes, while in the Smith Case a negotiable instrument had never been given at all.

In the earlier case of Baxendale v. Bennett (1878) L. R. 3 Q. B. Div. 525, 4 Eng. Rul. Cas. 637-C. A., the English court of appeals were unanimous

ly of the opinion that one writing his blank acceptance upon a stamped paper, which he placed in the drawer of his writing table, from which it was lost, or stolen, and afterwards filled in by a stranger without the accepter's authority, would not be liable upon the bill. Bramwell, L. J., reached this conclusion on the ground that the accepter was not estopped as between the parties setting up the true facts; that even conceding the negligence of the accepter in not keeping the instrument in a safe place, from which it could not be stolen, his negligence was not the proximate cause of the fraud, inasmuch as a crime was necessary for its completion. Brett, L. J., placed his decision upon the ground that the defendant had never authorized the bill to be filled in with the drawer's name, stating that he did not think it was right to say that the accepter was negligent.

The English rule prevails in Canada. Thus, in Ray v. Wilson (1911) 24 Ont. L. Rep. 132, affirmed in (1911) 45 Can. S. C. 401, where the defendant, an old man, intrusted signed promissory note forms to one who acted as his agent in the management of property owned by him, to be used by the agent, if necessary, in paying for repairs on the property, but not to be used until the defendant notified the agent to fill them out and negotiate them, but the agent, in violation of his instructions, filled out one of the notes and used it for his own purposes, it was held, following the decision of the English count of appeals in Smith v. Prosser [1907] 2 K. B. (Eng.) 735, 5 B. R. C. 682, 11 Ann. Cas. 191, supra, that the defendant was not liable to a holder of the bill, since he delivered it to his agent as custodian only, and there being nothing in the defendant's conduct to raise the ground of an estoppel against him; at least, so far as the present holder was concerned. It was argued strenuously in this case that § 31 of the Bill of Exchange Act, providing that where a signature on blank paper is delivered by the signer in order that it may be converted into a bill, it operates as prima facie

Sayre, J., delivered the opinion of the court:

Plaintiff, Courson, sued the Alabama Fuel & Iron Company in an action of malicious prosecution. Verdict and judgment went for defendant, but, upon plaintiff's motion for a new trial, a venire de novo was awarded by the court, and from that order this appeal is prosecuted according to the statute in such cases made and provided. Defendant owned a mining camp at Acmar. Jim Herring occupied one of defendant's houses, under a written contract of lease, clauses of which read as follows: "This lease is entered into by lessor because of the employment by lessor of lessee. It is understood and agreed that the premises rented are a part of the plant facilities of the lessor.

Necessary ingress and egress over the adjoining premises of lessor to reach the nearest public highway are hereby given to lessee and the members of his family living with him; however, a way of ingress and egress may be designated by lessor, to the enjoyment whereof lessee and the members of his family living with him will thereafter be restricted; and lessor may at any time forbid ingress and egress over the adjoining premises of lessor to reach said premises to any and all persons other than lessee and the members of his family living with him."

Defendant had caused plaintiff to be arrested and prosecuted on a charge of trespass after warning because, as defendant's evidence went to prove, plaintiff, after warning, had gone upon its premises in order to deliver a can of oil to his customer, the wife of Jim Herring. The trial court, by admitting the lease contract in evidence, and by the giving and refusal of special instructions requested by defendant and plaintiff, indicated its judgment that the clause set out above witnessed a valid contract between defendant and Herring. The motion for a new trial was based exclusively on the ground that the

court had erred in that judgment and the rulings giving it effect. We must assume, therefore, that the court's final conclusion was that the indicated clause of the lease contract was not enforceable against its tenant, Herring, or persons passing over defendant's premises to get to the premises held and occupied by Herring upon the latter's invitation, express or implied, or upon any business or errand which would have been lawful in the absence of the clause in question. The correctness of this conclusion is the sole question presented for decision.

The premises were the private property of appellant. It had the right to impose such terms upon the use of its property, not forbidden by specific law or public policy, as its interest dictated, and, the tenant consenting, the stipulations of the contract of lease became obligatory on both parties. Thousand Island Park Asso. v. Tucker, 173 N. Y. 203, 60 L.R.A. 786, 65 N. E. 975. The contract shows a common intention that appellant's property not included in the lease should remain subject to its control, and, with a saving in favor of lessee and the mem- Landlord bers of his family and tenant living with him, -restriction should have a right to determine who might go upon or be excluded from it. True, of course, in the absence of the stip ulation in question, appellant's lessee would have had a way of necessity over the dominant estate which all persons might, with his permission, use as occasion required for the transaction of business with him; but, as noted by this court in Tutwiler Coal, Coke & I. Co. v. Tuvin, 158 Ala. 666, 48 So. 79, such way is -restriction a matter of pre- of way of nesumption, and may be limited or restricted by special contract.

of access.

cessity.

Here we have a special contract limiting the use of appellant's other property for passage to the leased