the subject a thoughtful consideration, and who are not too closely wedded to old theories and habits, that our laws should be so changed as to clothe a litigant with an absolute right to a trial by jury in all suits at present triable by the court without a jury under the chancery system, whenever in such cases questions of fact are to be decided; and that the now separate and distinct systems of law and equity, and their peculiar rules of practice, should be fused and assimilated into one simple and harmonious system of law and practice.

It would not be a very difficult task to accomplish this object. The old lines and distinctions which have separated the two systems should be obliterated. All rights which the courts recognize and enforce of every kind and description should be susceptible of enforcement under one simple system. We have no further use for the old and cumbersome frictions and theories which have come down to us from the mouldy past. They tend rather to complicate and embarrass than to aid the cause of justice. There no longer exists any reason why one set of rights should be enforced and one set of wrongs redressed in courts of equity and another set in courts of law. In the infancy of the chancery practice there were of course good and sufficient reasons for the application of the then extraordinary rules of relief, in order. to escape the harsh and inflexible theories and fictions of the common law courts and the rules governing the practice therein. Those reasons no longer exist. The extraordinary rules and remedies thus gradually developed for the purpose aforesaid are now firmly established in this country, and form a vast system. They are capable now of being united with the rules and remedies belonging to the courts of law into perfect and harmonious wedlock, so that whenever litigants disagree on matters of fact a jury may determine those matters for them. Thereby greater justice would result to litigants, and the time of the judges would be very largely saved from the consideration of questions of fact. More cases would be disposed of by the courts per annum than now, and litigatious would be more speedily terminated. Our judges would not be compelled to wade through immense masses of evidence and proofs upon which to base lengthy findings of fact whereon to support their legal conclusions, and the time thus saved could be wisely utilized in the consideration of the matters of law applicable to the cases that come before them. Questions of fact which now require weeks for the judges to determine would be decided by juries in as many hours, and more satisfactorily and correctly too as a general rule.

With all that can be said however in praise of the system of trial by jury, it is, as has been said, far from being perfect, even in the cases to which it is now applied. The most prominent defect of that mode of trial as it is applied at the present time lies in the rule which requires unanimity on the part of the jury to determine a question submitted to it. This rule is as illogical and unreasonable in theory as it is unsatisfactory and harmful in results.

Unanimity on the part of a body of individuals, clothed with the power of deliberating upon and determining questions of a public or private nature is enforced only in the jury box. In all other bodies aggregate the convictions of a majority is sufficient to constitute a binding determination. In the English Parliament, in our Congress, in our State Legislatures, in subordiuate legislative bodies, in grand juries, in the boards which regulate trade and commerce, in international commissious, the majority rule prevails, as it does in the appellate branches of our Federal and State courts. It so prevails in those bodies, for the very self-evident reason that the majority are more likely to be right in

determining questions, whatever be their nature, than the minority. As human nature is constituted, a division of opinion is unavoidable among a collection of individuals on almost every conceivable question. The minds of men do not run in the same channels; their plaus and modes of thought are not the same; they are not impressed in the same manner by a given state of facts; and their conceptions of the relevancy and strength of evidence are not alike. What is a decisive fact to one set of brains on a given issue is not so to another. We are bound to differ in our opinions on social, political and religious matters, in our tastes, in our moral conceptions, and in our ideas of justice. Able doctors will differ in their conclusions on the same state of symptoms; surgeons will differ on matters pertaining to their science; practical mechanics will differ among themselves on practical questions pertaining to their callings; lawyers of ability will differ as to the strength or weakness of a given case; and even learned judges, whose minds and lives have been dedicated for years to the study of the law, perpetually differ among themselves as to what the law really is upon this or that point. Such being the inherent disposition of the human mind, it is utterly absurd to insist upon unanimity in the jury box. By doing so we clog the wheels of justice, impede the progress of legal proceedings, and unreasonably delay the enforcement of rights and the redress of wrongs. We all know that it not infrequently happens that ten or eleven members of a jury will be agreed in their conclusions and united on a verdict, and yet the jury will fail to reach a verdict simply because the remaining one or two of their number differ with the majority. The result is a mistrial-a complete waste of the time of court, counsel, parties and witnesses, and a complete waste of the cost and expenses of court and parties.

Oftentimes these mistrials result disastrously to poor litigants, who are not pecuniarily able to continue in the legal pursuit of their rights. Sometimes a series of such mistrials occur in the same case on account of the want of unanimity among the jury. It is time the Legislature eliminated this absurd rule from our practice, for there is no reason that can be presented why a majority of eight of nine of a petit jury should not constitute a binding determination. The rule that the majority shall prevail lies at the very foundation of our institutions, and logically belongs to the jury system.

This reasoning applies as well to criminal causes as to civil, except that in capital cases, where a human life is at stake, a majority of ten might be made the rule. Many a criminal has escaped well merited punishment because he happened to be fortunate enough to have one or two dissenting jurors in his favor, preventing a conviction. It is the aim of criminal lawyers with a desperate case to secure one or two of the jury in favor of the prisoner, and thus save his client; and this way of saving criminals is quite common. disagreement of the jury in criminal cases, so far as the prisoner is concerned, is generally equivalent to an acquittal, and is followed by liberation. The pressure of business in the hands of prosecuting attorneys will not permit them to spend their time in retrying cases in which juries have disagreed.

A

Another unpleasant feature of the system of trial by jury as applied nowadays lies in the fact that the quality of citizens that we were wont to see in the jury box in bygone times is found there no longer. It is a matter of common knowledge that the more intelligent and better qualified classes of citizens do not serve as jurymen. By some peculiar way they fail to be drawn from their private paths to the public duty of jury service, or if perchance drawn, manage to get ex

lawyer," the "ambulance lawyer," and the "civildamage-suit lawyer" would be relegated to the realm of obscurity, where they belong. These new-born specialists have cheapened and lowered the general tone of the profession; they have glutted the courts with unjust and scaly cases taken upon speculation; and are encouraged in their work by the manner in which trial by jury is at present managed.

There is no reason why every citizen, whatever may be his walk in life, should not be called upon in turn to serve in the jury box. The public interests and the ends of justice should not be subordinated to the private convenience of individuals. No person not exempt by statute should be allowed immunity from jury service, unless it be temporarily and for very potent reasons. The judges of our courts should not be content to do without the services of the better classes of citizens simply because they have enough of the inferior class to carry on the business of the courts. A citizen who has inportant interests at stake in our courts is entitled to have his rights passed upon by men of intelligence and experience, who are competent to understand and decide the issues involved. No man who enjoys the protection of the law and the blessings of a free government, and who is not especially exempt by statute, should be excused from doing his share of jury duties. There should be no discrimination, no partiality on the part of the commissioners of jurors, nor on the part of the judges. The bench and the bar should unite and labor together for the correction of the evils to which reference has been made.

In the first place, the statutory rules for the impartial drawing of jurymen from the body of the people should be strictly enforced, so that in so far as it is possible, every unexempt citizen should do his share of jury duty.

Secondly. The favor of the trial judges should be very sparingly extended to applicants who for private convenience strive to shirk their duty in this field of public service, which every citizen who is protected by the laws owes to the community in which he lives. Thirdly. A strong effort should be made and vigorously persisted in to obtain legislation doing away with the rule requiring unanimity in the jury box, and making the agreement of a majority of eight or nine in civil cases, and ten in criminal cases, a binding determination of a jury.

Fourthly. A like effort should be made for the extension of the mode of trial by jury to all questions of fact involved in suits in equity as well as in actions at law, and for the consolidation of the two systems into one simple system of procedure.

The margin for reform in the matters alluded to is very broad; the plans to be adopted to accomplish such reform are apparent and feasible; the objects to be accomplished are worthy of the effort; and the bench, the bar, and the press should not be slow in undertaking the duty which lies before him.

indorser as a joint maker, under the rule of the Supreme Court of the United States, and as a guarantor under the rule in Tennessee and Texas, where the parties respectively resided.

The defendant indorsed in blank a few days after its date the note sued on, which a few days later was delivered to the plaintiffs by C. H. Bond & Co., and accepted in payment of a balance then due by said C. H. Bond & Co. to the plaintiffs on an open account of dealings between them as merchants and bankers. The note is as follows: "$2,500.

BELTON, Texas, February 1, 1882. "Twelve months after date we promise to pay to the order of Miller Bros. twenty-five hundred dollars at their office in Belton, Texas, with interest at the rate of eight per cent per annum from maturity until paid, value received. "C. H. BOND & Co.

"Indorsed: "S. E. RIDGELY.”

When the note was due it was protested for nonpayment, and notice was sent to the defendant at Memphis, Tenn., where he resided.

There was no other consideration for the note than the balance due the plaintiffs, as bankers, from C. H. Bond & Co., merchants, on an account arising out of dealings previously had between them, and the extension of the debt for the twelve months the note had to run to maturity. The defendant in no way participated in that consideration, or received any benefit from it.

C. H. Bond was a nephew of defendant, and doing business in Texas as a cotton merchant. At the date of the note he owed the plaintiffs a balance of $2,500 on a banker's account, aggregating some $300,000, from May 12, 1881, to the date of the note, which balance plaintiffs had demanded that he should secure before any further facilities would be extended. He expressed the belief that his uncle at Memphis "would go on a note" at twelve months, and thereupon opened negotiations with him by mail. He informed the plaintiffs, just previous to the date of the note, that his uncle "would go his security on the note," and thereupon the plaintiffs, in their banking office, on the day of its date, prepared the note sued on, and it was signed by bond in the name in which he did business, and by him sent in the mail to his uncle at Memphis, where it was indorsed and returned by mail to Bond, who, about February 11, 1882, delivered it to the plaintiffs.

The plaintiffs expected and intended that the defendant would sign as maker, jointly with C. H. Bond & Co., but they had no distinct understanding with Bond or the defendant to that effect. Their only agreement with Bond was that they would take a twelve-months note with his uncle "as security." They accepted the note as it was handed to them by Bond, without complaint as to its form, and subsequently, in their correspondence and otherwise, treated it as an indorsement by Ridgely.

The defendant at first refused his aid to his nephew, but being assured by his letters that "he had received a sacred promise from plaintiffs that he should never be called on for payment, except in case of Bond's death without paying it, and that their only purpose was to provide against that event, as he had made arrangements to continue business with plaintiffs, who promised to extend all necessary facilities," he indorsed the note with no other intention than to make that contract.

Bond did continue business with plaintiffs until August 30, 1882, when his account was again in balance against him, and plaintiffs refusing further credit, he made an assignment and left the State.

The note has never been paid, Bond being unable and the defendant unwilling to pay it.

H. C. Warinner, for plaintiff.

L. Lehman, for defendant.

HAMMOND, J. On the facts of this case, and very much against my own opinion, and with a sense of its injustice, I feel constrained by authority to pronounce judgment for the plaintiffs. Outside the statute of frauds the defendant would, under the ordinary law of contracts, be held liable only to the extent of his agreement, or else the contract would wholly fail for want of that consent of the two minds necessary to make a contract effective as between the parties to it. I am unable to see any sound and unsatisfactory reason why this transaction is not within the statute of frauds, which enacts that "no action shall be brought whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, unles the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereunto lawfully authorized." Code Tenn. (T. & S. ed.), § 1758.

If the defendant had taken the precaution to write his actual contract above his signature he could not be held beyond it, whatever may have been the plaintiffs' intentions or expectations; and why should he now be so held? If he had thus written it, and the plaintiff accepted it, both would have been bound by it; if it were not in accordance with the agreement or understanding with Boud, they could have refused acceptance and been in no worse situation that they already were, or could have insisted on a compliance with that agreement. Here were creditors anxious to secure an antecedent debt on an insolvent man; any thing they could get in the way of security was better than nothing. The defendant was in no sense, legal or moral, bound to become liable for it; nor was be, in becoming surety, limited to any particular form, but could prescribe his own terms. He sought to fix those terms, and signed the note in the confident belief that he had done so. And yet, in aid of these creditors, we find the courts ignoring the statute of frauds - ignoring the actual intention of the surety, and by a system of judicial legislation binding him to an arbitrary contract he never made, and that the creditors never supposed he had made, until advised perhaps by their lawyers to that effect; for the plaintiffs always treated it as an "indorsement," as no doubt the defendant thought it was. It is just the case that falls within the letter and policy of the statute of frauds, and illustrates its wisdom.

In my judgment there is nothing in the commercial law of negotiable instruments demanding that this case shall not be governed by the statute of frauds. Such is the law of England, whence we derive our own, and where the defendant could not be held as maker or indorser, for the obvious reason that he was in fact neither, but only as a guarantor-no matter what the terms of the guaranty may have been, whether of absolute payment at maturity as plaintiffs insist, or conditionally as defendant Intended to be bound-which liability could not be enforced because the contract was not expressed in writing. "He is not liable at common law as a surety, because of the statute of frauds; and he is not liable by the law-merchant, because he has not followed the law-merchant." 1 Dan. Neg. Inst. (3d ed.), § 714a; 1 Ames Bills & Notes, 243; 2 id. 839; Steele v. McKinlay, L. R., 5 App. Cas. 754, 772, 783; McDonald v. Whitfield, L. R., 8 App. Cas. 733, 748.

In Steele v. McKinlay, supra, is a very instructive

statement showing how the English commercial law has modified the old foreign law-merchant as to the liability called an aval, which held any stranger who lent his name to the paper bound as an underwriter in the capacity in which he so lent it, whether he placed his name on the paper itself or on a separate paper; and he incurred his liability by writing his name under that of the drawer, acceptor or indorser, and was held according to the place where he put it; owing however to the statute of frauds, this never operated in English law between the original parties to the paper, but "solely for the benefit of those who take subsequently;" and the cases holding otherwise are pronounced unsound. Hence under the English law the defendant here could be held only as a second indorser to one who took the note from the plaintiffs with their name written above it, and he could not rely upon the statute of frauds, for the reason that his indorsement would then appear to be regular, and he could be justly held according to its import. But the English law goes no further than this; and if our American courts, in their struggles with this question, had so confined themselves, there would not now exist the pitiable confusion exhibited in having neither the old law-merchant nor the English modification of it, but a nondescript law-merchant, which differs so materially in the several States that there are almost as many rules of decision as there are States, that no two writers agree upon a classification of them, and that scarcely any State court of last resort has uniformly adhered to any given rule of decision. Mr. Daniel has boldly suggested a new way out of these bogs of the commercial law, which is interesting because new. 1 Dan. Neg. Inst. (3d ed.), §§ 707-716, 714; 4 South. Law Rev. (N. S.) 539; 20 Am. Law Reg. (N. S.) 331; 16 id. 649.

Those "who do not follow the law-merchant" should not expect any aid from it, and these irregular indorsements are not in accordance with it until they have assumed the regular form of the well-defined contracts of the law-merchant. Any attempt to assimilate them to the regular forms of contract leads to confusion, as our American authorities abundantly illustrate. The regular contract, whether in blank or not, is as well understood as if it were written out word for word, and though blank as to form, is in legal effect written in full. It is not therefore within the statute of frauds, and is protected against parol evidence as other written contracts are. But the same treatment cannot be applied to these irregular blank indorsements, unless the Legislature or the courts can write a uniform and well understood contract above them; the former might, but certainly the latter have not been able to agree on such a contract, and we have the remarkable exhibition of a variety of artificial and wholly arbitrary rules of decision as perplexing as it is possible to make them. If parol testimony is to be at all admitted to show a contract, I cannot comprehend why it shall not be admitted at large to prove the real contract, or that there was in fact no agreement of the minds; nor why it should not be enforced or fail according to the proof. But this is not what the courts do; they admit parol proof only for the limited purpose of enabling them to make a choice as to the form of the liability. If they chose to hold him as indorser he may defend by showing that there was no demand and notice; if they conclude to hold him as a guaran. tor he is not permitted to show the actual terms of his guaranty, but held to an absolute one, except perhaps in some States he may show that he was only a guarantor of solvency; and if they decide to hold him as maker, there is no escape for him, although he had no more intention of becoming a maker of the note than he had of becoming the architect of a new system of

commercial law.

Where the object is to prevent one from escaping his contract, who actually intended to become a first indorser or a maker, but by a blunder did not sign a proper paper in the proper place, there may be some excuse for a wish "to baffle such a defense," though Lord Blackburn, in the opinion before cited, thinks it better, even in such cases, to adhere to the law. But this desire to impose some liability upon the irregular indorser has led the courts to an exaggeration of that doctrine. For example: In this case it may be true, as stated by Mr. Justice Cooper in one of the Tennessee cases, that the defendant intended to be bound in some form, and that he should be held to some liability; but it does not follow from this that he should be held bound to one of the three, or at most four, forms of contract, namely, as maker, as second indorser, as guarantor of payment at maturity, or as guarantor of payment when the holder fails to collect of the maker. Why may he not be held to the contract he made, namely, that he would pay if the maker should die without payment, or according to any other condition he might attach? If it be said that this was not the plaintiff's contract, the reply is that if he accepted the indorsement, such was his contract; for the indorser's consent is as necessary as his own, which will be implied from his acceptance, or else there was in fact no contract, because the parties did not in fact agree to any thing.

As I understand the class of cases to which Boyer v. Boogher, 11 Mo. App. 130, belongs, this may be done if the indorser can prove that the payee of the note had knowledge of the particular conditions attached by him to the indorsement, but not otherwise; but I am unable to see why the payee should be more under the protection of the law than the other party to the contract, or why he may fill the blank space above the signature with a more absolute and a different agreement than that which the party signing intended to write therein. No man should be bound beyond his actual intention, upon an arbitrary implication or some other intention, unless the law, as in the case of regular indorsements, fixes an invariable contract to be always implied from a blank signature. Confessedly it does not do this; and while it opens the case to parol proof of intention it illogically denies to him the privilege of proving any intention different from that of the other party, and often implies one wholly foreign to himself. In the effort to make efficacious that which in itself expresses nothing in particular, the cases build, upon facts and circumstances surrounding the transaction, some contract which does not express the actual intention of the surety, but that of the court

be enforced as an acceptance by the payee of the terms attached to his contract by the guarantor, and that efect could not be given to any guaranty not expressed in writing, because the statute of frauds has forbidden it; and that until the payee had indorsed this note and transferred it to some stranger to the original contract, the blank indorsement of the defendant would not fall within the law-merchant. This was originally the law of Tennessee, but it has been changed by later decisions which would now hold the defendant as a guarantor. Cahal v. Frierson, 3 Humph. 411; Comparree v. Brockway, 11 id. 355; Clouston v. Barbiere, 4 Sneed, 338; Newell v. Williams, 5id. 212; Talley v. Courtney, 1 Heisk. 718; Brinkley v. Boyd, 9 id. 152; Iser v. Cohen, 1 Baxt. 423; Rivers v. Thomas, 1 Lea, 649; Taylor v. French, 2 id. 257; Harding v. Waters, 6 id. 324. So would he be held in Texas, as I understand the cases there. Cook v. Southwick,

9 Tex. 615; Carr v. Rowland, 14 id. 275; Chandler v. Westfall, 30 id. 477.

But according to the rulings of the Supreme Court of the United States, which follow the Massachusetts rule, somewhat regretted in Essex Co. v. Edmands, 12 Gray, 273, the defendant is to be held as a joint maker of the note, the case falling within the first category enumerated by Mr. Justice Clifford in the two cases cited from that court. Rey v. Simpson, 22 How. 341; S. C., Law Pub. Co. Ed. 260, and note; Good v. Martin, 95 U. S. 90.

Judgment for plaintiffs. [See 28 Am. Rep. 624; 29 id. 745; 34 id. 638.-ED.]

MATTER OF UNION FERRY CO.*

The delegation to a corporation of the power to acquire title to land for public purposes is not a grant of an "exclusive" privilege, for the same power may be conferred upon any corporation. Should the Legislature see fit to intrust it therewith, there is nothing in the Constitution to prevent its so doing.

The use being public, the legislature has the power to determine the necessity of the exercise of the right of eminent domain, and its determination is conclusive in the

courts.

Act of 1882, ch. 259, in relation of ferries on New York city, is not unconstitutional.

ought to have been expressed; and scarcely any two agree about this on the same state of facts. Parol proof is admitted to aid the courts in determining what they should make the blank mean,but not to help the parties in showing what it means in fact.

Still more illogically, some cases hold that the defendant here could not prove his conditional guaranty because that would be within the statute of frauds, while the courts may imply an absolute guaranty which the defendant did not make, and that is not within the statute. No such distinction exists in the terms of the statute, and if one be within it I do not comprehend why the other is not. Such confusion cannot be beneficial to commercial intercourse, and the policy of the statute for preventing frauds and perjuries is reversed for one encouraging them.

On my independent judgment I should hold that according to the common law, which is the substratum of all our laws, this contract would either fail for want of mutual understanding of the contracting parties, or

*To appear in 98 N. Y.