want of consideration and that the note was given for the purchase price of five other notes made payable to the order of the plaintiff and by her indorsed after maturity as valid and collectible, which five notes had not been paid. It was held that the indorsement of the five notes was intended merely to convey title and the plaintiff is entitled to recover on the note sued The N. I. L. was not cited. See sec. 68 (38). Six cases had arisen under this section prior to the date of this case, none of which were cited, nor are they pertinent to this case.

on.

In the case of Evans v. Freeman, 142 N. Car. 61; 51 S. E. 847, 1906, it was held that "I hereby transfer and assign all my right, title and interest in and to the within note to J. D. Evans, July, 1899," constituted a qualified indorsement, citing sec. 68 (38). But the court overlooked the fact that the note or bond was non-negotiable and therefore the N. I. L. was not applicable.

In Gale v. Mayhew, 161 Mich. 96; 125 N. W. 781, 1910, the words "I hereby assign my interest in this note to William H. Gale" were held not to constitute a qualified agreement, citing sec. 68 (38).

DAYRIES V. LINDSLY, 128 La. 259, 54 So. 791, 1911.

A husband signing notes as "Agent" without also disclosing for whom he is agent, does not thereby bind his wife as the maker of a note, she having received no consideration, even though the purchaser knew that the husband held her power of attorney duly recorded, giving him full power to represent her. The N. I. L. sec. 39 (20) was cited and was supposed to be followed. It is difficult to see why the wife was not estopped from denying her husband's authority to issue the

(3) These were Kerby v. Ruegamer, 107 A. D. 491, 1905, holding that the makers of a note signing as "trustees" without further disclosure of their principal, the payee knowing who it was. were held not to be individually liable. Daniel v. Glidden, 38 Wash. 556, 80 Pac. 111, as Daniel v. Buthier, 1905, holding that although the note was headed in print with the name of a corporation, was signed by one defendant as "Sec'y" and by the other as "President," it was held that no principal was disclosed, and the name of the corporation printed at the top, constituted no material part of the instrument. Birmingham Iron Foundry v. Regnery, 33 Pa. Sup. Ct. 5, 1907. In an action against an indorser of a corporate note, he being the President of the corporation and adding "Prest." after his signature, evidence is admissible to show that his intention in so doing was that the corporation and nct he personally, should to become liable such intention being known the plaintiff. was Sec. 39 (20) cited. Am. Trust Co. v. Canivan, 107 C. C. A., 543; Pa., 1911. When one, indorsing a note, adds, after his name, "Trustee," intending to sign in his representative capacity, which the indorsee knew, the addition of the word "trustee" is not a mere descriptive personae and the indorser is bound only in his representative capacity. The N. I. L. was cited.

If these three cases, Kerby v. Rugamer, Birmingham Iron Foundry v. Regnery and American Trust Co. v. Canevin, all under the N. I. L. and all prior to the Louisiana case, had been cited to the court, the decision in Dayries v. Lindsley would probably have been different. The attention of all courts in any case arising under the N. I. L. should be called to the statement on p. 549 in Am. Tr. Co. v. Canevin, 107 C. C. A., 543: "The negotiable instruments law has been enacted in a large number of our states. Its uniform construction is most desirable." This can only be secured through examination by both bench and bar of all the cases arising under the same sections in all the other states that have adopted the same statute. Why is it that there is failure to do this in the majority of cases?

Without citing this section or any case, either under it or not under it, the court said: "As to the defendants, sureties in solido, it is too well settled for discussion that one not party to a note, who puts his name upon it, is presumed to have signed. as surety and is bound in solido as between him and the owner of the note."4

It is difficult to understand this case. The opinion begins: "Plaintiff sued on a promissory note before maturity and prayed for judgment individually and in solido." The note was signed by Marion M. Magee. principal, and indorsed by Joe N. Magee, A. C. Williams, C. A. Jenkins and W. J. Jones as sureties: it was indorsed by B. O. Bickland as a transfer in favor of plaintiff." Are we to understand from this that the defendants wrote their names on the back of the note, each one adding to his name the word "surety?" As no copy of the note is given, it is difficult to understand what was done, for if they added "surety" to each one's signature, they were not "indorsers" even though their names were written on the back of the note. The difficulty in understanding the case is increased by the statements, p. 1010, "The answer of the sureties denies indebtedness. They admit that they indorsed the note, but allege its payment." The head note adds further to confusion by saying "One who puts his name on a note as security in solido with others, becomes liable to the

(4) The writer is informed by a member of the bar in La. that a surety in solido means in La. one who is bound for the same debt in the same contract at the same time and in the same way.

(5) Upon examination of the papers kindly made in the clerk's office for the writer, it was found that the opinion read: "Plaintiff sued on a promissory note acquired before maturity. The writer is informed that although sometimes suit may be brought before maturity in La., in this instance it was brought after maturity and on application for a rehearing counsel for the defendant filed a brief citing the N. I. L. and decisions under it in other states, but to no avail for the court persisted in its error. That suit can be brought on a negotiable note before its maturity shows a strange conception of the principles of the law merchant.

holder without regard to the principal or his responsibility."

Allowance must be made for the differences in procedure, etc., between Louisiana and other states, nevertheless it would seem to be well, in the decision of a case by a court, to adhere to the strict legal meaning of "indorser."

It is noticeable that the word "surety' is unknown to the law merchant and for that reason is nowhere to be found in the N. I. L. Thirty cases have arisen prior to 1911, when this case was tried in Louisiana, under the N. I. L. not one of which was apparently cited to the court.

WOLF V. ZACHARY, ETC., 128 La. 1092; 55 So. 685, 1911.

Equities cannot be set up as against the holder of negotiable paper who has acquired title in good faith for value before maturity under circumstances apparently regular. The N. I. L. is properly cited, sec. 98, 91, 94, 95, 96 (51, 52, 55, 56, 57). Sec. 98 (59) should have been cited also. Several hundred cases have been decided under these sections of the N. I. L. in courts of states that have adopted that law, but none are cited in this case. Were any of them cited to the court? FIRST NAT. BK. OF VICKSBURG V. MAYER, 129 La. 981; 57 So. 308, 1912.

A stipulation in a note for ten per cent attorneys' fees if the note is placed in the hands of an attorney for collection, is a stipulation for liquidated damages and they are recoverable in an action on the note, without proof they were incurred. The N. I. L. was not cited. See sec. 21 (2). Nine cases had arisen under this section prior to 1912, in courts of other states that had adopted the N. I. L.

(6) These were: Exchange Bk. v. Apalachian Land & Lumber Co., 128 N. C. 193, 1901 holding that although the note was executed and made payable in Georgia, where the N. I. L. was not in force, when sued upon in North Carolina where the N. I. L. was in force, the validity of a provision in the note for attorney's fees "in case suit is necessary for collection." must be determined by the laws of North Carolina. The court held that this stipulation is no part of the indebtedness, for the

Without entering into an analysis of the bearing of these cases upon the decision in First Nat. Bank of Vicksburg v. Mayer, 129 La. 981, it is evident that with these cases and sec. 21 of the N. I. L. before them, the court might have come to a different conclusion.

HIBERNIA BK. & TR. CO. V. DRESSER, 61 So. 561, 1912, 1913.

The opinion first rendered in this case calls for no summary, for the vital point. raised and decided at the rehearing was

note could have been discharged before action brought by payment of the principal and interest. This stipulation was only a penalty in case of suit, is matter affecting purely the remedy, the lex fori governs, and the stipulation is to be construed by the procedure of North Carolina under which, citing Bank v. Sevier, 14 Fed. Rep. 662, "Such a provision is a stipulation for a penalty or forfeiture, tends to the oppression of the debtor and to encourage litigation, is a cover for usury, is without any consideration to support it, is contrary to public policy and void," ignoring the statute law of the state, the N. I. L. sec. 21 which was not cited by any one, so far as the report shows. We may regret that the N. I. L. should have admitted a principle that, although frequently admitted, is not in accord with the law merchant as to negotiable instruments. Nevertheless we cannot escape the conclusion that had this section of the statute of the state been cited to the court, the decision in this case would have been different, for it is not in accord with the statute of the state. Morrison v. Ornbaum, 30 Mont. 111; 75 Pac. 953, 1904, holding a note payable with reasonable attorney's fees entitles the holder to collect such fees when the note is not paid at maturity and it is placed in the hands of an attorney for collection, even though no suit is brought, citing Session Laws, 1899, p. 124, instead of the N. I. L. sec. 21 (2) in effect March 7, 1903. Although the result was the same, yet sec. 21 does not contain the word "reasonable" and the court erred in citing the wrong statute as its authority. Prof. Brannan, p. 5 of his work on "The Negotiable Instruments Law," erred, apparently in assuming that this decision was made under the N. I. L. Chesterton Bk. v. Walker, 163 Fed. 510; 90 C. C. A. 140 Md. 1908, holding that a contract in a note to pay a collection fee of five per cent if the note is not paid when due, is valid, to the extent of a reasonable fee actually expended or agreed to be paid, but no further. The N. I. L. was not cited. What were counsel doing when they prepared their case for trial?

First Nat. Bk. of Shawano v. Miller, 139 Wis. 126; 120 N. W. 820, 1909. In this instance it is refreshing to come across a case where the N. I. L., to the law of the state, was cited and followed. The court said: "In all situations where the negotiable instruments law, passed in 1899, conflicts with our adjudication, as to instruments made subsequent to that time, the

apparently overlooked, i. e. that the note sued on, otherwise negotiable in form, contained the statement that it was secured by a pledge of securities as collateral, and should they decline in value, the maker agreed he would pledge additional securities satisfactory to the holder of the note, within 24 hours of demand on him by the holder so to do, or otherwise the note would mature at once, etc. It was held (correctly) that the note is non-negotiable under sec. 23 sub sec. 3 (4 subsec 3) being payable on a contingency. It was held further, p. 571 (incorrectly) that the case is governed by the law merchant and that the note is negotiable thereunder. But neither the N. I. L. nor the law merchant deals with non-negotiable instruments. The case is, in reality, one in assumpsit, upon an agreement in writing cast in the form of a promissory note that the court found to be non-negotiable. That ends the case, so far as either the N. I. L. or the law merchant is concerned. The discussions and arguments upon the first hearing and upon rehearing, concerning other sections of the Act, of decisions thereunder and of old decisions, whether in the opinion or in the

Pac.

former rules." To this it should be added in the interests of uniformity of decision as well as of uniformity of law, that in all cases where the negotiable instruments law is the law of the state and speaks, it governs, and prior statutes or decisions do not, even though to the same effect, and while they may be cited by way of illustration to explain the actual statute the N. I. L. is the real source of authority. Mc102 Cormick v. Swem, 36 Utah 6; 626, 1909, citing the N. I. L. it was held that a provision for an attorney's fee does not render a note non-negotiable, and where the amount of the fee is left blank, the court will allow a reasonable sum. Mackintosh v. Gibbs, 79 N. J. L. 40; 74 Atl. 708, 1909, affirmed except on one point, 81 N. J. L. 577; 80 Atl. 554, 1911, citing several sections of the N. I. L., including sec. 21 (2). Tipton v. Ellsworth, 18 Idaho, 207; 109 Pac. 134, 1910. Newburn v. Banking & Trust Co. v. Duffy, 153 N. C. 62; 68 S. E. 915, 1910, affirmed, 156, N. C. 83, 1911.

Holston Nat. Bk. v. Wood, 125 Tenn. 6, 1911. A clause in a note agreeing to pay 10 per cent attorney's fees and all expenses of collection, if not paid at maturity, is not invalid, but the court will see that only a reasonable amount is allowed, whatever the agreement may be. The N. I. L. was not cited.

is the most remarkable of all the Louisiana decisions in cases under the Act. These all show, particularly this one, that counsel and court are not learned in the law merchant, of the Act nor of the cases thereunder.

It is unnecessary to examine Thiel v. Butker, 125 La. 473; 51 So. 500, 1910, and Taylor v. Vosburg Mutual Springs Co., 128 La. 364; 54 So. 907, 1911, as the notes in suit in both cases were dated before the N. I. L. was approved in Louisiana (on June 29, 1904).

To sum up: In the courts of Louisiana, state and federal, thirteen cases have arisen under the N. I. L. In seven of those cases the N. I. L. was not cited, in five cases it was cited, and in one case while it was cited in part, one section bearing upon the case was not cited, while in no case were any one of the hundreds of decisions under the same sections of the same uniform law, in other states that have adopted the N. I. L., referred to or cited by court or counsel, so far as the reports show. Uniform laws cannot be made effective under such treatment. AMASA EATON.

Providence, R. I.

ACCIDENT INSURANCE-VISIBLE MARKS OF INJURY.

PETERSON v. LOCOMOTIVE ENGINEERS' MUT. LIFE & ACCIDENT INS. ASS'N.

Supreme Court of Minnesota. Dec. 5, 1913.

144 N. W. 160.

Plaintiff, a locomotive engineer, held an accident policy issued by defendant. The by-laws precluded recovery for "an invisible injury unless certified to by a medical expert designated by the association." Plaintiff's engine was derailed while running at a rapid rate. He sustained only slight external injuries, but there is evidence tending to show that for nearly two years, beginning a few days after the accident, he was mentally deranged, so as to unfit him for duty, and that this condition resulted from the accident. Held that, if his condition could be ascertained by observation or examination, it was a "visible injury" within the meaning of the by-law.

TAYLOR, C. Plaintiff brought suit upon an accident policy issued by defendant, and recovered a verdict. A motion for a new trial was denied, and defendant appealed.

(1) While plaintiff, a locomotive engineer upon a Great Northern passenger train, was running at a rate of 45 or 50 miles per hour, his engine, for some unexplained reason, "jumped" the track and went down a 15-foot embankment. Plaintiff jumped or was thrown from the engine, and apparently was unconscious for a few moments, but arose unaided and went to the assistance of the fireman. The external marks of injury upon his person consisted of slight abrasions of the skin upon one of his elbows and one of his legs, and of black and blue spots which remained for sev eral weeks: These wounds were superficial, and not of a serious nature. Immediately after the accident he assured his friends that he had escaped without injury of any conse quence. However, when requested to take out another train a few days later, he declined on the ground that he was not in fit condition to do so, and has never since returned to work. There is evidence tending to show that his nervous and mental condition was abnormal, and his mind unbalanced to such an extent as to unfit him for work, for nearly two years after the accident.

The policy in controversy entitled plaintiff to an indemnity of $15 per week for a period not exceeding 52 weeks, "if totally disabled by accidental injury from following his vocation." By their verdict, the jury found that he was disabled within the meaning of the policy. The by-laws of the association are made a part of the policy and contain the following provision: "No claim for weekly indemnity of any policy holder will be recog nized when loss of time is caused by an invisible injury, unless certified to by a medical expert designated by the association. dant never designated, and was never requested to designate, any medical expert to examine or certify as to plaintiff's injury and contends that the injury, if any there is was an invisible injury within the meaning of the by-law, and that plaintiff cannot recover therefor in the absence of the prescribed certificate.

Defen

The purpose of such a provision is to protect the insurer against sham claims, by barring the insured from recovering for alleged injuries of which there is no proof, except his own assertion. But it is well settled that visible injuries, within the meaning of such a provision, are not limited to external in juries, but also include any internal injuries,

the existence of which may be ascertained through observation or examination. Union Casualty & Surety Co. v. Mondy, 18 Colo. App. 395, 71 Pac. 677; Pennington v. Pac. Mut. Life Ins. Co., 85 Iowa, 468, 52 N. W. 482, 39 Am. St. Rep. 306; Barry v. U. S. Mut. Acc. Ass'n. (C. C.) 23 Fed. 712; Id., 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60; Menneilly v. Employers' Liability Assur. Corp., 148 N. Y. 596, 43 N. E. 54, 31 L. R. A. 686, 51 Am. St. Rep. 716; Gale v. Mutual Aid & Acc. Ass'n., 66 Hun, 600, 21 N. Y. Supp. 893; Horsfall v. Pac. Mut. Life Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846; Thayer v. Standard Life & Acc. Ins. Co., 68 N. H. 577, 41 Atl. 182; Dent v. Railway Mail Ass'n. (C. C.) 183 Fed. 840.

[2] If plaintiff's mental derangement was such as to be observable and could be ascertained by proper examination, we think it was a visible injury within the meaning of the by-law. Of course it must be shown to have resulted from the accident before a recovery can be had. But the evidence tending to show that the derangement existed, that it was observable, and that it resulted from injuries received in the accident, was sufficient to make these questions proper matters for determination by the jury.

[3] 2. In defining the meaning and effect of the by-law the court, among other things, charged the jury: "If it can be determined from the facts in the case that the thing which produced the internal injury came from the outside, that will be sufficient to come within the terms of this section. So if you conclude, from all the evidence in the case, that the injury which he complains of-the mental disturbance was due to an outside force, either from jumping or falling from the engine, and that that was the proximate cause of this injury, then he would be entitled to recover, providing you find that the injury existed as claimed by him; that is, the result of the injury-the disturbance of the mind."

The jury must have understood from the instructions that if the injury resulted from external force, the by-law did not bar recovery, therefor, even if the injury was invisible. They were told in substance that if the alleged injury existed, and "was due to an outside force," plaintiff was entitled to recover. Whether the injury was visible was not submitted to them to determine. The charge practically eliminated this provision of the bylaws from the case, and submitted to the jury only the question as to whether plaintiff's

mind had been unbalanced as claimed, and, if so, as to whether that condition resulted from the accident. This was error. Whether the injury was visible was not established conclusively, and should have been left to the jury to determine. Order reversed.

NOTE-Accident Causing Visible Mark, of an Injury on the Body-The clauses in policies on this subject vary somewhat, and are not only strictly construed but also rigidly against companies. We find no clause like that in the instant case, and no case seems to cover the clause. All the company required in this case was that if there was an invisible injury, it should have opportunity to have a medical expert selected by itself certify to the fact. Here there was slight abrasions, but they were superficial and the accident may have had or not something to do with the injury. These abrasions were slight proof, if any, in this direction. They scarcely had anything to do with the case. All the cases cited consider clauses providing for absence of visible marks. This one scarcely doees. In Menneiley v. Employers' Liability Assur. Corp., 148 N. Y. 696, 43 N. E. 54, 51 Am. St. Rep. 716, 31 L. R. A. 686, the policy provided that it "does not insure against death or disablement from accidents that shall bear no eternal and visible marks." Deceased was alleged to have died from the inhaling of gas accidentally escaping into his room. There were no visible marks of the accident upon his body, but when artificial respiration was produced it was perceived that illuminating gas emanated therefrom. This was held to take the death out of the exception. The court thought it was difficult to understand precisely what was meant, but deemed it more reasonable to say that external evidence must be perceptible and not necessarily that there must be "external and visible marks on the body." We do not see how this may be so, as "marks" mean signs and "external" must refer to something as to which there may be an interior-a something affected by an accident.

The clause in Horsfall v. Pac. M. L. Ins. Co., 32 Wash. 132, 72 Pac. 1028, 63 L. R. A. 425, 98 Am. St. Rep. 846, speaks of injuries of which "there are no visible external marks on the body (the body itself not being considered such mark) produced at the time of and by the accident." The evidence showed that immediately after the accident the deceased became deathly pale and sick, his hands and feet cold and the perspiration stood out on his face and hands. The next day his skin became bluish gray in color and so remained until his death. The court thought these were visible, external marks within the terms of the policy. This seems a harsh construction. These marks were reflex-coming from an internal cause, and seem to be within the bracketed clause, supra, as otherwise what does that mean?

The clause in Pennington v. Pac. M. L. Ins. Co., 85 Iowa 468, 52 N. W. 482, 39 Am. St. Rep. 306, says the "insurance shall not cover disappearances nor injuries of which there is no visible, external mark upon the body of the insured." The injury was alleged to be a wrenched, bruised and strained back, and there was conceded to be no visible mark on the body at the