In conclusion it may be said, that when an attorney is guilty of malpractice attended with fraud and corruption, and which is an indictable offense, whether committed inside or outside the professional relation, the court should exercise its summary power of removal and disbar him. For a court to refuse to act, or to exercise its summary power under such circumstances, and continue him upon the roll, thus holding him out to the community as a member of the bar, and an officer of the court, worthy of its confidence and support, and clothed with the prestige of its authority, "would be a scandal to the court, a reproach to the administration of justice, and a grave wrong against an honorable profession."

"Legal knowl

edge and skill are not the only requisites of attorneys, but they must be conjoined with that ancient requirement of the law, integrity of character. ''14

HENRY Z. JOHNSON.

practice for the court itself, to dispose of such matters. An exhaustive review of the authorities will also be found in a note in 45 Am. St. Rep. 71, et seq. And see the very late case of In re Wharton (Cal. 1896), 46 Pac. Rep. 172, where an attorney filed, as genuine, a false and fraudulent affidavit of service of summons, it was held that he was not entitled to a trial by jury, notwithstanding the charge amounted to a felony. That there was nothing in the contention that the court must "defer action until the district court or the grand jury have had an opportunity to act in the matter" before disbarment proceedings could be entertained.

14 Lord, J. in State v. Winton, supra.

Appellate Court of Indiana, Sept. 30, 1896.

The fact that the agent of the holder of a note, empowered to collect the note, and apply the proceeds in payment on a debt due him from his principal, inserted in the note in pencil, as a memorandum merely, the name of a bank, in the blank left in the note after the words "payable at," so as to remind him where to present the note for payment, is not such an alteration as will prevent a recovery on the note, the words inserted having been eliminated before suit was brought.

REINHARD, J.: Killinger sued appellants Light and Dixon upon a promissory note alleged to have been executed by Light to Dixon, and by Dixon indorsed to Killinger. Dixon and Light each filed a separate answer, in two paragraphs, the first of which was the general denial, and the second set up a material alteration of the note.

The appellee replied the general denial. The cause was submitted for trial to the court. When the evidence was closed, the appellants filed a demurrer thereto, which was overruled, and an exception reserved to the ruling. The sole assignment of error presents the question of the correctness of the ruling of the court in overruling the demurrer to the evidence.

The evidence shows that Killinger was a manufacturer of refrigerators, and sold a quantity of such furniture to Dixon, and took, in part payment, the note executed by Light to Dixon, reading as follows: "Indianapolis, Ind., July 31, 1891. Sixty- -after date, I promise to pay to W. H. Dixon one hundred dollars, with interest at the rate of 6 per cent. per annum. Negotiable and payable at, and five per cent. attorney's fees, value received, without any relief whatever from valuation or appraisement laws. The drawers and indorsers severally waive presentment for payment, protest, or notice of protest and non-payment of this note. (Signed) R. C. Light." Dixon indorsed the note to Killinger by signing his name across the back. Two or three days before the note matured, Killinger indorsed the same to Balke & Krauss, a business firm in Indianapolis, with whom Killinger had dealings, and to whom he was indebted on an account current. It was the practice of these parties that Killinger would turn over to Balke & Krauss notes received by him from his customers, and, as payments on such notes were made, they were placed to Killinger's credit. If any note was not paid, it was returned to Killinger. When Killinger indorsed and delivered the note in suit to Balke & Krauss, Mr. Krauss, a member of said firm, asked Killinger in what bank Dixon transacted his business. Killinger answered that he did not know, but would ascertain the fact from Mr. Dixon. He saw Dixon, and learned from him that it was the Bank of Commerce. He so reported to Krauss, and the latter thereupon, with a lead pencil, inserted the words "Bank of Commerce" in the blank space left in the body of the note following the words, "Negotiable and payable at." This was done in the presence of Killinger, but not by his direction. When the note became due, Balke & Krauss presented it for payment at the Bank of Commerce, but it was returned to them unpaid, and they returned it to Killinger, who, after repeatedly asking Dixon to pay it, and failing in the collection thereof. at the expiration of more than two years, brought this action upon it. The suit is brought upon the note as it was before the insertion Bank of Commerce" was made, said words not being contained in the copy declared upon.

It is the contention of the appellants' counsel that the facts above stated constitute a material alteration of the note made by and while in the hands of a legal holder or owner thereof, and that such alteration destroys the validity of the note, and defeats the appellee's right to recover

thereon, either in its original or its altered form. We have carefully considered the question, and our conslusion is that the court committed no error in overruling the demurrer to the evidence. There was evidence from which the court might legitimately have found, conceding that the insertion was made by the legal holder of the note, although it was shown that the firm of Balke & Krauss only held the paper for collection, that the words "Bank of Commerce" were inserted as a mere memorandum, so as to enable the said Balke & Krauss to present it for payment when it became due, inasmuch as Dixon's residence was a considerable distance from their office. The words were written in pencil, and there appears to have been no attempt to indorse the note to an innocent purchaser, or to defraud or impose upon any one of them. It could easily have been seen at a glance that they were written in a different hand from those written in ink in the body of the note, and this was sufficient to put any purchaser upon inquiry. No harm has resulted to the maker or any other person from the placing of the words in the blank space. There was no attempt at any time to treat the note as commercial paper, and, as we have said, the action is upon the note in its original form. Even if the appellee had treated the note as one governed by the law merchant, we doubt our authority to hold that the alteration was unauthorized. The note bears upon its face every evidence of one negotiable under the statute as an inland bill of exchange. It contains the usual stipulation in such paper "that the drawers and indorsers severally waive presentment for payment, protest, or notice of protest and non-payment." It also contained the incomplete sentence, "Negotiable and payable at," followed by a blank space. Under such circumstances, the place of payment may be filled in by the holder. Rand. Com. Paper, § 186, and cases cited. Of course, to make the paper negotiable by the law merchant, it must be made payable at a bank in this State. Rev. St. 1894, § 7520. But when a bank is named in the note, without naming the State in which it is located, it will be presumed that such bank is within this State. Manufacturing Co. v. Caven, 53 Ind. 258; Henderson v. Ackelmire, 59 Ind. 540; Clark v. Carey, 63 Ind. 105. Hence if the note had been made payable at the Bank of Commerce, it would have been a negotiable instrument, under the statute. The words inserted were not repugnant to the plain purport and tenor of the contract, but in harmony with it. This being so, in the absence of any agreement or direction to the contrary, would the holder not be authorized impliedly to fill up the blank space, and, if so, could the note not be collected even in its changed form, especially by an innocent holder? Spitler v. James, 32 Ind. 202; Luellen v. Hare, Id. 211; Gillaspie v. Kelley, 41 Ind. 158; Blackwell v. Ketcham, 53 Ind. 184, 186; Emmons v. Meeker, 55 Ind. 321, 326; Marshall v. Drescher, 68 Ind. 359; Rand. Com. Paper, § 123.

The

As to this, however, we need not decide. rule is different, of course, where the note, perfect in its terms, is a non-negotiable one, but is changed so as to make it negotiable. Cronkhite v. Nebeker, 81 Ind. 319; DePauw v. Bank, 126 Ind. 553, 25 N. E. Rep. 705, and 26 N. E. Rep. 151. In such a case the holder would have no implied authority to change the purport of the note by filling the blank space with matter which is foreign to the apparent purpose for which the blank has been left. McCoy v. Lockwood, 71 Ind. 319. There may also be instances when the maker would be liable to a bona fide holder without notice of the alteration, while not liable to the original payee or an indorsee who made the change. See Cronkhite v. Nebeker, supra. But we have no such case here, nor do we hold that in the present case the maker is liable because he conferred an implied authority to fill up the blank space, for the appellee has not sought to hold him responsible on that ground. What we do decide is that there was no material al teration. or, at least, that the trial court had the right to so conclude from the evidence.

That a material alteration of a note made by the holder will discharge the maker from liability on the instrument, there can be no doubt, under the authorities. 1 Am. & Eng. Enc. Law, 508. But in the present case there was evidence from which the court could easily have drawn its inference that the pencil writing was made as a mere memorandum, without any intent to defraud, and without any intent to change the character of the obligation. In Horst v. Wagner, 43 Iowa, 373, the payee, desiring to transfer the note, ignorantly erased his own name, and wrote, instead, the name of the transferee. He afterwards restored the note to its original form, and indorsed it, and it was held in an action on the note that the alteration was immaterial. An author of recognized standing says: "There may be many cases of innocent material alterations in which it would work injury, loss, or inconvenience to confine the holder to a suit upon the original consideration. If the indorser were sued, and were held liable, he could not have the maker's note restored to him as a foundation for his action if it were utterly annihilated by the alteration. And the indorsee might have rendered such a consideration as could not be recovered back; for instance, professional services, labor, or another note. For these reasons, it would seem just to allow a more specific remedy; and, while we have seen no precedent which so decides, it has been suggested that a court of equity would, under its jurisdiction over mistakes, correct an alteration innocently and mistakenly made, and restore the instrument to its original form. And there is no sufficient reason why the party should not himself be permitted to undo what he has mistakenly done, provided no other person has become so situated towards the instrument that it would operate prejudically upon him. The burden of proving innocence

would be a sufficient safeguard to prior parties; and when innocence is clearly proven, and the prima facie presumption of guilt overthrow, it would seem too rigorous to inflict upon the innocent a penalty only deserved by the guilty." 2 Daniel, Neg. Inst. § 1414. In a Pennsylvania case, where, within an hour after the note was signed, the payee returned to the maker's office, where the clerk, at the payee's request, but without the knowledge and consent of the indorser, inserted the words "with interest," the maker ratifying the action of the clerk, but subsequently the payee had the inserted words expunged, apparently with chemicals, and sued the maker upon the note in its original form, the latter resisted payment on the ground that the note had been altered; but it was held that, no fraud having been intended, the plaintiff had a right to restore it to, and sue upon it in, its original form, Thompson, C. J., saying: "Now, it seems to me that, as the identity of the note remained, and there was nothing in it to enlarge the obligation of the indorser, and as what had been done was innocently but mistakenly done, and expunged, for aught we know, within an hour after it had been done, there is no rule of law unreasonable enough to hold it avoided by this. I admit that, if there had been evidence of a fraudulent tampering with the note, a different rule would apply. But regarding it as mistakenly done, in an attempt to make the note comply with the contract, and assented to by the original parties, one of them the principal in it, and without fraud, ought the consequences of such an act, done under such circumstances, be made to rank with fraud and perjury? It ought to be regarded, as it manifestly was, to the indorser immaterial." Kountz v. Kennedy, 63 Pa. St. 187. In Shepard v. Whetstone, 51 Iowa, 457, 1 N. W. Rep. 753, a blank in the note, after the word "at," was filled, without any fraudulent design, with the words "with ten per cent. interest from date." The note was subsequently restored to its original form, and negotiated to an innocent holder without notice. It was held that he could recover on the note. In Bank v. Bangs, 42 Mo. 454, there had been added at the foot of the note, to the left of the signature, the words "at Goodyear Bros. and Durands, New York, Jan. 10-13," after the words "due at." It was urged that this was such a material alteration as would avoid the note. The court held that the words were to be taken as a mere memorandum, and therefore immaterial, the court saying: "It should be kept in mind that this action is against the makers themselves. It was not declared upon as a note payable at the City of New York. The memorandum in this case does not increase or vary in any respect the liability of the defendants, and therefore presents no obstacle to the recovery of the plaintiff." As said by Lotz, J., in Kingan & Co. v. Silvers, 13 Ind. App. 80, 37 N. E. Rep. 413: "No direct injury was done the defendants by the alteration of the note. The utmost that

* * *

can be said is that a rule of public policy was violated. The doctrine of public policy, like the statute of frauds, should be invoked to prevent, and not to perpetrate, a fraud. A clear and unmistakable case of the violation of a rule of public policy should be made before the law will lend its aid to deprive one person of property for the benefit of another." See, also, Palmer v. Largent, 5 Neb. 224; Derby v. Thrall, 44 Vt. 413. The court did not err in overruling the demurrer

to the evidence. The judgment is affirmed.

NOTE.-Late Cases on Alteration of Negotiable Instruments.-Where no rate of interest is expressed in a note, and the legal rate is 7 per cent., an addendum placed "on the lower end of the note," after its exetion and delivery, and not incorporated in the body of it, reciting that "the above note is to be accounted for with interest at 8 per cent. per annum," which is signed by the principal, but not signed by the surety, nor assented to by him, is not a new contract of the principal alone, but constitutes such a material alteration of the original note as will discharge the surety. Sanders v. Bagwell (S. Car.), 16 S. E. Rep. 770. A pencil indorsement on a note, stating it to be on the indebtedness of a certain person, is not such an alteration as to render the note inadmissible in evidence, but is merely a memorandum. Maness v. Henry (Ala.), 11 South. Rep. 410. A note, when executed, read as follows: "On or before the first day of November, 1889, I promise to pay. If paid at maturity, interest at per cent. from November 1, 1889; but if not paid when due, interest at per cent. per annum from date until paid." Afterwards it was altered by inserting the word "eight" in the second sentence, so as to read: "If paid at maturity, interest at eight per cent. from November 1, 1889; but if not paid when due, interest at per cent. per annum from date until paid." Held, that the alteration avoided the note, since, with the days of grace, the note fell due on November 4, 1889, and if paid at maturity, as executed, it bore no interest, but, as altered, it bore interest from November 1 to November 4, 1889. Little Rock Trust Co. v. Martin (Ark.), 21 S. W. Rep. 468. The addition to a note after execution of the name of a maker, done by permission of the holder, without the knowledge of the original maker, is a material alteration destroying the effect of the note as evidence. Soaps v. Eichberg, 42 Ill. App. 375. Where one signs a printed blank form of a note, and delivers it to another, with verbal instructions to purchase certain merchandise, and to fill the blanks in the note and give it in payment, the fact that the one to whom the note is delivered signs his own name also as one of payors or makers, does not relieve the original signer from liability. Geddes v. Blackmore, 32 N. E. Rep. 567, 132 Ind. 551. A note which, after its execution, is secured by a mortgage, is not materially altered by a red-ink memorandum to that effect made on its margin without the maker's knowledge. Yost v. Watertown Steam-Engine Co. (Tex. Civ. App.), 24 S. W. Rep. 657. The insertion of a place of payment in a note after delivery is a material alteration. Winter v. Pool (Ala.), 14 South. Rep. 411. A note due at a future time, not specifying any place of payment, nor rate of interest from date, is materially altered by inserting the name of a bank, which includes its location, as place of payment, and 6 as the rate per cent. of interest from date. Gwin v. Anderson, 18 S. E. Rep. 44, 91 Ga. 827; Baugh v. Same, 18 S. E. Rep. 44, 91 Ga. 831. The purchasers of goods gave the seller

in payment therefor their note, payable to a bank. In order to have it discounted by the bank, the seller signed his name below the makers', intending thereby to indorse the note. Afterwards he induced the cashier to change the note so as to make it payable to his order, and he immediately indorsed and guaranteed it to the bank, erasing his signature on the face of the note. Held, that this alteration though made without the makers' knowledge, did not invalidate the note, since it did not change their liability. Reilly v. First Nat. Bank (Ill. Sup.), 35 N. E. Rep. 1120, 148 Ill. 349. The fact that some of the makers signed the note as sureties for the others is immaterial on an issue as to whether an alteration of the note affected its validity. Reilly v. First Nat. Bank, 35 N. E. Rep. 1120, 148 Ill. 349. The signing of a fully executed and delivered note, by a stranger, at the instance of the payee, is such an alteration as will release previous signers, not knowing thereof. Browning v. Gosnell (Iowa), 59 N. W. Rep. 340. The addition of the forged signature of a third person to a note after its execution and delivery to the payee is a material alteration, which will discharge from liability the original maker, who did not consent thereto. Farmers' Bank of Maitland v. Myers, 50 Mo. App. 157. Defendants executed their notes, payable to plaintiff's order, and placed them in the hands of one D, to be used by him in a business matter with, and to be delivered to plaintiff. Prior to such delivery, D signed the notes himself, and obtained the signature of his wife thereto. Held that, by the act of D, there was no alteration of the notes which affected their validity. Babcock v. Murray (Minn.), 59 N. W. Rep. 1038. An alteration of the printed form of a note, so as to make it payable to bearer, instead of to order, will not invalidate it, and prevent a recovery thereon, unless such alteration was made after a delivery of the note. Fowles v. Bebee, 59 Mo. App. 401, 1 Mo. App. Rep. 57. The erasure of the name of the payee of a note, and the substitution of another without consent of the maker, renders the note void, even in the hands of a bona fide purchaser. Erickson v. First Nat. Bank (Neb.), 62 N. W. Rep. 1087. An alteration of a note, without the knowledge of the maker, by filling up a blank space in a printed form thus increasing the amount, avoids it as to the maker. Searles v. Seipp (S. Dak.), 61 N. W. Rep. 804. Erasing from a note after delivery the words "agreeing to pay all expenses incurred by suit or otherwise in attempting the collection of this note, including reasonable attorney's fees," is a material alteration, which renders the note void, since without such words the note is negotiable. First Nat. Bank v. Laughlin (N. Dak.), 61 N. W. Rep. 473. Where the maker of a note, after it has been signed by the surety, alters it by affixing to it the rate of interest agreed upon in the original contract, and the payee thereafter strikes out such alteration, it does not constitute such an alteration of the note as will discharge the surety. McAlpin v. Clark, 11 Ohio Cir. Ct. Rep. 524. It is not an alteration of the contract of the maker of a note that the payee, on transferring it to a third person, in addition to indorsing it, writes thereon a guaranty of payment thereof. Hutches v. J. I. Case Threshing Mach. Co. (Tex. Civ. App.), 35 S. W. Rep. 60. When a note is given by a corporation, payable to the manager's wife, for money due him for salary, and for expenditures made in behalf of the company out of funds represented by him to have belonged in part to the wife, an alteration of the note so as to make it payable to the manager himself is a material one. Sneed v. Sabinal Mining & Milling Co. (C. C. A.), 71

Fed. Rep. 493, 18 C. C. A. 213. Where a note is made in California, without designating a place of payment, and is indorsed by sureties, the subsequent insertion of "at Ilion National Bank, Ilion, N. Y.," written by the maker before delivery, is a material alteration, which releases the sureties; since without the alteration the note would have been payable only in Cal. ifornia, under Civ. Code, Secs. 1489, 3100. Pelton v. San Jacinto Lumber Co. (Cal.), 45 Pac. Rep. 12. Where a note provided that the makers, indorsers, and guarantors waived presentment of payment, notice of non-payment, protest, notice of protest, and due diligence in bringing suit, it was not a material alteration thereof to write over the blank indorsement of the payee, "Payment guarantied." Iowa Valley State Bank v. Sigstad (Iowa), 65 N. W. Rep. 407. The addition to a note of the words, after the name of the payee, "or holder," and, "A lien is retained on said land until all the purchase money is paid," is a material alteration, and no action can be brought on such note. McDaniel v. Whitsett (Tenn.), 33 S. W. Rep. 567. To add a name to a note as a joint maker thereof, without the knowledge and consent of the original maker of the note, after it has been transferred, is a material alteration thereof, and discharges the original maker from liability thereon. Ford v. First Nat. Bank (Tex. Civ. App.), 34 S. W. Rep. 684. The alteration of a note by the payee so as to have it bear interest from date, instead of from maturity, for the purpose of making it conform to the agreement of the parties, and without fraudulent intent, invalidates the note itself, and hence discharges the collateral security. Otto v. Halff (Tex. Sup.), 34 S. W. Rep. 910. Where a note is indorsed in blank, the unauthorized insertion of a waiver of exemptions over the name of the indorser releases the indorser. Jordan v. Long (Ala.), 19 South. Rep. 843. An accommodation indorser is not liable on a note where the date is altered after indorsement without his knowledge or consent. McMillan v. Hefferlin (Mont.), 45 Pac. Rep. 548. On an issue as to whether the erasure of the word "maturity" from a note, whereby interest became payable from the date of the note, was ratified by the makers, a charge that if the attention of the makers, "or any of them," was called to the alteration, and they said that it was all right, there was a ratification, was not objectionable, as authorizing an inference that such action by any one of the makers would amount to a ratification by all, where other charges stated that only the makers who consented to the change were bound thereby. Matlock v. Wheeler (Oreg.), 43 Pac. Rep. 867. Where, after making a payment on a note within the statutory period, the maker acquiesces in its alteration, the new promise implied from such payment will be regarded as a promise to pay the note as altered. Jacobs v. Gilreath (S. Car.), 22 S. E. Rep. 757. Where the payee of a note materially altered it, an offer by the maker to renew the note and pay it, after the alteration, on conditions which the payee did not accept, was not a waiver of such alteration. McDaniel v. Whitsett (Tenn.), 33 S. W. Rep. 567. In an action on a note, the burden of showing its invalidity rests on the defendant; but, if it be shown that the name of the payee has been changed without the consent of the maker, the defense is established, and the burden is then on the plaintiff to show that the alteration was ratified, or for other reasons was not available as a defense. Sneed v. Sabinal Mining & Milling Co. (C. C. A.), 73 Fed. Rep. 925.

BOOK REVIEWS.

BEACH ON THE MODERN LAW OF CONTRACTS. In adding this to his already numerous contribu tions in the field of law, the author only increases the debt of gratitude due him from the bar. The title is suggestive of the want which he has so successfully satisfied a presentation of the modern law. It has long been recognized that there have been great developments in the law of contracts, with which text books have not kept pace. Although elementary principles have not been overturned or set aside, the constantly growing complexity of our business life has required modifications and new applications of the principles to be made, to such an extent that the old discussions upon them are inadequate to the demands of the busy lawyer. By this comprehensive work in which special attention is given to the new features of the law, the author has greatly lightened the labors of his fellows in the profession.

The work is in two volumes containing 2,300 pages of text with elaborate notes. Even a superficial glance at the notes shows the great care that has been taken to select the best and latest adjudications upon every proposition. As shown in the alphabetical table, the cases cited number over 20,000, and many of these are cited several times. There has been no attempt to swell number at the expense of quality by injecting into the notes long lists of cases upon indisputable general propositions of law, but every citation is of practical use to the lawyer.

Beginning with an introductory chapter in which the essential elements of contracts are considered in their relation to each other and definitions are given, the author takes up the elements in detail, devoting a separate chapter to each. With masterly clearness and conciseness he treats of offer and acceptance, of certainty, of conditions and of the consideration. Then follow chapters bearing upon the obligation, discharge or performance of contracts, warranty, performance, tender, payment, breach, release, accord and satisfaction. Matters relating to the statute of frauds and the law of place follow, and the first vol. ume closes with chapters upon the interpretation of contracts and the right of rescission and cancellation. In the second volume special topics under the law of contracts are considered. First, the equitable power of reforming contracts and enforcing specific performance is treated elaborately. Following this come what are probably the most valuable chapters of the work, upon the subjects which the author's previous works qualify him to treat with exceptional clearness and accuracy. The chapters on contracts of corpora tions cover more than four hundred pages. The contractual powers of corporations generally, of their officers and of their stockholders, and the liabilities growing out of their several acts are subjects of two chapters. Two chapters are given to the discussion of railroad companies and their contracts, and one chapter each to municipal corporations and building associations. Next in order the author takes up the causes that go to invalidate contracts, giving in successive chapters the law of contracts as affected by coverture, infancy, insanity, duress, illegality, fraud, gambling, public policy, re

than 300 pages which has evidently been prepared with a care so painstaking as to leave nothing more to be desired. Published by Bowen-Merrill Co., Indianapolis.

LIFE AND SPEECHES OF THOMAS CORWIN.

This interesting volume has been in our hands for some time and we have found great enjoyment in the study of the life and speeches of a man whose oratorical abilities are unsurpassed and who played so important and prominent a part in the political history of this country. The student of history will find this volume worthy of thoughtful study. It is a handsomely bound book of six hundred pages published by W. H. Anderson & Co., Cincinnati.

BOOKS RECEIVED.

The American Digest (Annual, 1896). A Digest of all the Decisions of all the United States Courts, the Courts of Last Resort of all the States and Territories and the Intermediate Courts of New York, Pennsylvania, Ohio, Illinois, Kansas, Missouri, Texas, and Colorado, U. S. Court of Claims, Court of Appeals and Supreme Court of the District of Columbia, etc., as Reported in the National Reporter System and Elsewhere, From September 1, 1895, to August 31, 1896. With Notes of English and Canadian Cases, etc. A List of the Reports Included, a Table of the Cases Digested, and a Table of Cases Overruled, Criticised, Followed, Distinguished, etc., During the Year. References to the State Reports Given by an Improved Method of Topical Citation. Prepared and Edited by the Editorial Staff of the National Reporter System. St. Paul, Minn. West Publishing Co. 1896.