a public nuisance, and it was also conceded that the subjecting of any person, natural or artificial, in the prudent pursuit of his own lawful business, to the payment of consequential damages to other persons in their property or business, was, in the absence of a statutory provision to that effect, unjustifiable both on principle and authority. Now having admitted that the occupation of the street was not a nuisance, because it was authorized by competent authority, and hence could not be wrongful, and that if the use of the street was lawful, in the absence of negligence, no action would lie for consequential damages to any one, it might well have been thought that the case was closed; but not so. The court proceeded to pull down the premises it could not escape by saying that it was not satisfied that the use of a public street in a city by steam power was within the legitimate use of such street. It, of course, followed that the use, not being legitimate, was wrongful and unlawful. But the court did not stop here. It said: "A very delicate question arises upon construction, as to whether there can be a taking, within the constitutional inhibition of rights and easements, which are a part of the necessary use to the full enjoyment of the property, without compensation." After calling up a vision of a man "driven from his home and household gods" by trains screaming and smoking by his floor to the detriment of his health and lawful pursuits, the court asked, "Are not these equivalent, in construction of law, to a taking?" In answer to the question, the following from Cooley on Const. Lim. is cited with approval. "Any injury to the property of an individual, which deprives the owner of the ordinary use of it, is equivalent to a taking, and entitles him to compensation." C. C. L. 545. The court then added: "We, therefore. arrive at the conclusion that, when the state grants a right, the use of which works an injury to another, and the law provides no mode of assessing compensation for such an injury, the right of suit for damages * is not taken

*

away by such law." A most remarkable conclusion, truly, and not wholly consistent with the “recognized principles,” first laid down. But the court very properly refused to follow its own conclusion, holding that "insomuch as the law allowed [illegitimately] the use of the streets by steam-cars the passage over the street would not be, in itself, an obstruction, while reasonably exercised. And the laying of iron upon the street, though it may create a jolt in crossing, would not be an element of damage; for it lies there by direction of law." It was also held that the fanciful and speculative damages so feelingly alluded to by the court would not give a right of action; that danger to children, possibility of sickness, danger of injury from runaway horses, loss of the society of visitors, loss of trade, and sentimental injuries must be excluded. The actual depreciation in value of the abutting property was held to be the measure of damages. In this decision two judges concurred and one dissented.

In the subsequent case of the Savannah etc. R. Co. v. City of Savannah, 45 Ga. 602; People v. Kerr, 27 N. Y. 188; was cited with approval. The court said: "The City of New York holds the title to the streets of that city, upon the same trusts and limitations that the City of Savannah holds the streets, squares, lanes and passages of that city, to-wit.: for the use of the public, and not as corporate property.' And the trust of the city being publici juris, it is under the unqualified control of the legislature; and any appropriation of it to the public use by legislative authority is not a taking of private property, so as to require compensation to the city to render it constitutional. People v. Kerr," supra. In this case of People v. Kerr it was found that the laying out, constructing, and operating the railroad in the street "would be a material interference with, and injury to the use and enjoyment of the lots fronting thereon." And yet it was held that insomuch as the use was a public one, the railroad company could not be required "to make compensation to the owners of any property affected by their proceedings for the consequential damages which might follow to the latter, however great, and however inevitable it may be." It was also said that the appropriation of property to the construction or use of a railway was a public use, and that "of course the motive power used does not affect the question." The same view is taken by Cooley: "The constitutional question cannot depend upon the accidental circumstance that the new road will or will not have an injurious effect." Again: "This consideration cannot affect the question of the right of property, or the increase of burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement, and would not affect the principle." Const. Lim.

547-8. And in summing up on the general question involved in this inquiry the same high authority says: "It is not easy, as is very evident, to trace a clear line of authority running through the various decisions bearing upon the appropriation of the ordinary highways and streets to the use of railroads of any grade or species; but a strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterwards to devote it, in furtherance of the general purpose of the original appropriation, and if this is so, the owner must be held to be compensated for the original taking for any such possible use." Const. Lim. 554-5. "When land is taken or dedicaed for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes for which such streets were formerly applied, but those demanded by new improvements and new wants." Id. 556.

The Connecticut cases frequently cited against the doctrine of the principal case are not in point for two reasons; first, because the title to the streets there in controversy was not in the public, but in the abutting lot owners; and second, because decided under laws or charters requiring compensation for property taken or damaged. See Nicholson v. N. Y. & N. H. R. Co., 22 Conn. 74; Imlay v. Union Branch R. R. Co., 26 Conn. 249. In this last case it was said: "The case of the Ohio and Lexington R. R. Co. v. Applegate, 8 Dana, 289, was cited at the bar. But it is quite clear that the Kentucky decision, like many of those reported by Barbour (Sup. Ct. N. Y.) proceeded on the ground that the ownership of the fee of a highway is vested in the public or its representatives, instead of the original proprietor. The present decision is founded upon opposite premises." In Walker v. Old Colony, etc. R. R. Co., 103 Mass. 10, the question raised was "whether the jury might consider the depreciation of the value of the estate by reason of the proximity of the railroad to the dwelling house, and the incidental effect of the running of trains thereon." The court said: "These incidental effects are the natural and inevitable consequence of the exercise of the franchise which the legislature has granted to the corporation. They do not, therefore, constitute a public nuisance, and, independently of the taking of land, they cannot be made a ground for the recovery of damages, as for a private injury." To the same effect, Rex. v. The London Docks, 5 Ad. & E. 163.

It has been contended that the more recent English cases arising under the Land Clauses Consolidation Act, the Railway Clauses Consolidation Act, and the Thames Embankment Act, militate against the rule here asserted; but we do not think so. In the cases in this country where the right to recover damage caused by the lawful appropriation of a public street for the purposes of a railway is involved, it is generally conceded that such damages cannot be recovered in an ad quod damnum proceeding, unless compensation is expressly given by statute. Protzman v. Indianapolis, etc., R. Co., 9 Ind. 467; Street Rw. Co. v. Cumminsville, 14 Oh. St. 523. But the English cases referred to were all actions for damages assessed under the acts authorizing the construction of the public works giving rise to the injuriescomplained of. Duke of Bucchleuch v. Metropolitan Board of Public Works, L. R., 5. H. L. 418, was a claim for damages under the Thames Embankment Act. The plaintiff occupied premises with a garden fronting on the Thames, with a private easement over a causeway to the river at low water mark. In constructing the embankment, the premises were severed from the river, a public road was constructed between the embankment and plaintiff's premises on the space between the low and high water mark, and his easement destroyed. The act gave compensation "not only to the value of the land taken, but to the damage sustained by the severance of the land taken from other lands, or by otherwise injuriously affecting such other lands by the exercise of the powers of the special act." And by the terms of the act, the term "lands" was defined to include "easements, interest, rights and privileges in, over or affecting lands." Under this state of facts it was held that the plaintiff was entitled to recover the amount to which the premises were depreciated in value by reason of the public work. But it was expressly admitted in this case that his land, within the meaning of the act, must be taken to entitle a claimant to damages. On this point Mr. Justice Hannen said: "It may well be that there is a hardship in awarding no compensation to a person who sustains loss for public benefit unless his lands are taken; but there is a

manifest difference between the position of a person whose lands are taken, and that of one whose lands are not. The former was possessed of something without which the proposed public purpose could not be accomplished; he could have prevented the carrying out of the undertaking if he had not been deprived of his power by act of parliament, whereas the person whose lands are not taken had no such power, and could not have hindered the appropriation of lands, not his own, to any purpose not amounting to a nuisance. The legislature has recognized this right of property, and the power growing out of it, as a fact, but has guarded against its abuse by compelling its possessor to avail himself of it only as a means of obtaining a fair compensation for real damages."

The subsequent case of McCarthy against the same defendant, was an action for damages caused by the same work. In this case the plaintiff's premises abutted on a public highway, on the opposite side of which was a public draw dock communicating with the Thames. In constructing the Thames embankment this dock was filled up, cutting off access from the river to the public street adjoining plaintiff's premises, whereby they became permanently depreciated in value. The Court of Common Pleas held that the plaintiff's interest was "injuriously affected" within the meaning of the acts before referred to, so as to entitle him to compensation. L. R. 7C.P. 508. This judgment was affirmed in the Exchequer Chamber, L. R. 8 C. P. 191, and by the House of Lords, L. R. 7, H. L. 243. The rule laid down as applicable to cases under the acts in question was that when "there is a physical interference with a right, whether public or private, which an owner of a house is entitled by law to make use of, in connection with the house, and which gives it a marketable value apart from any particular use to which the owner may put it, if the house, by reason of the works, is diminished in value, then arises a claim to compensation." But in adopting this rule Lord Chelmsford said: "I think the rule as thus stated may be accepted with this necessary qualification, that where the right which the owner of the house is entitled to exercise is one which he possesses in common with the public, there must be something peculiar to the right in its connection with the house to distinguish it from that which is enjoyed by the rest of the world. The case of Caledonian Railway Company v. Ogilvy, 2 Macq. Sc. App. 229, furnishes an illustration of the propriety of the qualification of the proposed rule as far as it applies to an interference with a public right. There the claim for compensation was grounded upon the injury done to the appellant's house as a residence, and the deterioration of its value by the railway crossing the approach of the lodge and gate on a level immediately in front of and within a few yards of the gate, whereby the free and open communication with the highroad was cut off, and all access prevented without constant liability to very great inconvenience and delay. This House held that the damage sustained was one which, though it might be greater in degree, was not different in kind from that to which all Her Majesty's subjects were exposed."

To entitle the land-owner to compensation under the acts of parliament in question, three things must concur:

1. There must be a taking of land within the declared meaning of the acts.

2. The taking must be of such a nature that it would have given the land-owner a right of action if the works had been done without legislative authority.

3. The injury sustained, to be the subject of an action, must be different in kind from that suffered by the public. This last rule grows naturally out of the second.

And

These English cases are important in connection with the constitutional provision recently adopted in this state, declaring that private property shall not be taken or damaged for public use without just compensation. As that clause of the Missouri constitution was taken substantially from that of Illinois, the decisions of the Illinois courts prior in date to its adoption here will probably be followed here, and it seems that such decisions, made after its adoption by the people of this state, are entitled to more than ordinary consideration. McMahon v. Bridwell, 3 Cent. L. J. 798. the rule laid down in Stone v. Fairbury, etc., R. Co., 68 Ill. 394, that to give a right of action, there must be a direct physical injury, seems to be in harmony with the English cases, as well as those in Massachusetts and Connecticut, where statutory provisions, similar to the constitutional provision referred to, exist. And the same may be said of the decisions under the laws of Ohio and Indiana, and under the constitution of Pennsylvania. In the English cases there was not a direct physical injury to the prem

ises, but there was to an easement which, by the terms of the law, was brought within the meaning of the term land, as used therein. It does not follow that the damages are special and actionable in such a case, because the value of property is injuriously affected; for it is only where the work would have been a private wrong, actionable as such, but for the legislative permission, that an action will lie for compensation, and it will then lie for only such damages and depreciation in value as are caused by injurious conditions which would have been of themselves actionable but for the statute or constitution. In other words, when the law declares that property shall not be taken or damaged by legal process for a public use without just compensation, it is not intended to give a right of action for the doing of an act by legislative permission, where no action would have lain, had the act been done without such permission. 2. Where the title is in the abutting lot-owner.-In this class of cases it seems to be well settled that the imposition of an additional burden will entitle the owner of the fee to compensation. But the authorities are by no means harmonious as to what constitutes an additional burden. The decided weight and tendency of the cases are in favor of the doctrine that a street railway whose vehicles are propelled by horse-power is not an additional burden, and that a steam railway is. The rule laid down in I. B. & W. R. Co. v. Hartley, 67 Ill. 438, is as follows: "Where the fee of the street remains in the abutting land-owner, the corporation may grant the right to a railway company to lay its track along or across any street; but the company avails of its privilege at its peril." Williams v. N. Y. Cent. R. Co., 16 N. Y. 97; Hegar v. Ch. & N. W. R. Co., 26 Wis. 624; Nicholson v. N. Y. & N. H. R. Co., 22 Conn. 83; South. Pac. R. Co. v. Reed, 41 Cal. 256; Haynes v. Thomas, 7 Porter (Ind.) 39; The Marquis of Salisbury v. Great Northern Rw. Co., 5 C. B. (N. S.) 174; Harrington v. St. Paul, etc., R. Co., 17 Minn. 215; Adams v. H. & D. R. Co., 18 Minn. 260.

"In regard to street railways, not operated by steam power," said Judge Redfield in an article on this subject, 1 Am. L. Reg. (N. S.) 197, "the decisions have been uniform, we believe, that the land-owners are not entitled to any additional compensation." And as supporting this view, see Elliott v. F. H. & W. R. Co., 32 Conn. 579; Brooklyn, etc., R. Co. v. B. C. R. Co., 33 Barb. 420; S. & T. R. Co. v. City of Savannah, 45 Ga. 602; Murphy v. Chicago, 29 Ill. 279; Brown v. Duplessis, 14 La. Ann. 842: Hogencamp v. Patterson Horse R. Co., 17 N. J. Eq. 83; Brooklyn, etc., R. Co. v. Coney Island R. Co., 35 Barb. 364; Hobart v. Milwaukee City Rw. Co., 27 Wis. 194; Commonwealth v. Temple, 14 Gray, 75; New Albany, etc., Rw. Co. v. O'Daily, 12 Ind. 551; Street Rw. v. Cumminsville, 14 Oh. St. 523. This statement, however, must be restricted to an ordinary street railroad laid on the surface of the grade. On principle we are unable to see why the motive power used can make any difference. It is true that the additional burden of a street railroad would not be so great as that of an ordinary railroad laid on ties on a different grade from that of the street. It is also true that a street railroad operated by steam power would be more burdensome than one operated by horsepower; but after all it is simply an increased burden, the use being public. It is different in degree, not in kind.

discharged; (2.) that J. became thereby the maker of a new note, and that the discharge of the other maker was sufficient consideration to support his promise, the law presuming that he knew that the effect of his signature would be to discharge M.

APPEAL from Winneshiek District Court.

The plaintiff filed a petition claiming of defendants, Nelson Miner and Ira Johnson, the sum of $100, with 10 per cent. interest from January 19, 1867, on a promissory note purporting to be made by them to Wm. N. Strong, and by said Strong endorsed to plaintiff before due and for a valuable consideration. The defendants filed their joint answer, alleging that since the execution of the note sued on, the date thereof had been altered from January 19, 1870, to January 19, 1867. The defendant Miner filed his separate answer, alleging "that at the time he signed said note no other name was signed thereto; that the name of Ira Johnson was signed to said note without the consent of defendant Miner; that defendant Miner executed said note to said Wm. N. Strong, the payee thereof, as part consideration for the purchase of a horse sold by said Strong to said Miner; that said Miner was entitled to a set-off against said note on account of a breach of warranty in the sale of said horse; that said Johnson added his name to said note for the purpose of effecting a transfer thereof by said Strong to said plaintiff, and thus cut out defendant Miner of his defense thereto; that such addition of the name of defendant Johnson to said note was made without the knowledge or consent of defendant Miner, and with the knowledge and consent of plaintiff to all of above facts, except as to the consideration of said note; that by the addition of the name of said Johnson to said note and not otherwise, said Strong was enabled to transfer the same to plaintiff, and thus deprive defendant Miner of his defense thereto." The plaintiff replied, alleging that he had no knowledge of any alteration in the date of said note at the time that he purchased the same, and also admitting that after the execution by Miner of said note the name of Ira Johnson was added thereto, but alleging that defendant Miner afterwards consented to the addition of defendant Johnson as a co-maker of said note.

Upon the trial, it was admitted that the names signed to the note are genuine, and that the name of Johnson was signed to the note after being made by Miner, and without his knowledge or consent. The defendant Miner offered to prove the facts alleged in his separate answer, but upon plaintiff's objection the proof was rejected.

The Court rendered judgment for plaintiff. Defendants appeal.

M. P. Hathaway, for appellant; Chas. P. Brown, for appellee.

DAY, J., delivered the opinion of the Court:

I. The very decided weight of authority is that the adding the name of another maker to a bill or note is a material alteration, such as will discharge the original parties not consenting thereto, without inquiry as to whether the alteration is injurious or beneficial to them. 2 Parson's Notes and Bills, pp. 556-560, and cases cited. Hall's Administratrix vs. McHenry, 19 Iowa, 521.

II. The signature of Johnson imparts a sufficient consideration. For aught that appears, he knew that Miner had no knowledge of the addition to the note. The law presumes that he knew the effect of his signature would be to discharge Miner. There is no reason why he should be discharged from his obligation voluntarily assumed. The effect of his act was to execute a new note at the time he attached his name. As the maker of such note he should be held liable.

Upon the appeal of Johnson the case is affirmed, and on the appeal of Miner it is reversed.

NOTE.-While the result reached in the foregoing case was undoubtedly correct, the reasons given seem to be somewhat questionable. The joint answer set up a good defence, and the reply admitted that defence as to the original maker. The change of the date of the note was a material alteration, and avoided it in the hands of an innocent holder. If Johnson signed the note after the alteration and it was taken, as it presumably was, on the faith, in whole or in part, of his signature, he was bound, notwithstanding the alteration. But we desire to refer more particularly to the questions discussed in the opinion.

It is now too well settled to require the citation of authorities, that the material alteration of a contract without the consent of a party thereto will release him. It is equally well settled that the addition of the name of another maker without the consent of the original maker will release him; for the contract is thereby materially enlarged, and that which before was the individual obligation of the first maker, becomes the joint contract of the two makers. One has the right to choose his company even in making a promissory note. A joint contract is materially different from a several contract. But we cannot see the logic in holding,

as the court did in this case, that the original maker was discharged because the contract was enlarged by the addition of another party, and that such other party was bound as on a new contract, having for its consideration the destruction of the old. It would seem that if Johnson, in fact, became a party to the original contract so as to alter it, he must be held on it until discharged by some subsequent matter. If his intrusion into the original contract required a consideration, it would not be valid,and would not discharge the original maker without a consideration. If he did not get in so as to bind himself, the other party was not materially discommoded with other company. The signing of the additional name to the note could not be treated as a spoliation of the contract. The contract is enlarged and left in force as to the party consenting to the enlargement, upon a valid consideration.

It must not be supposed that the mere act of signing an additional name under that of the maker of a note without his consent will discharge him. To have that effect, the party so signing must be bound as an original maker, so that if both makers were held it would be their joint, or joint and several contract. If the second signer does not become an original maker, if his contrat is independent of, or collateral to that of the original maker, or if it is that of a mere surety, the original contract is left intact and the original parties thereto are not discharged.

Prima facie, one who signs a note at the lower right hand corner before its delivery to the payee, becomes thereby an original principal maker, and the better opinion seems to be that such is the effect of an unqualified endorsement on the back of a note under such circumstances by one not the payee, although numerous authorities of a very high character declare that it has the effect of a second endorsement, while other cases hold it to be a guaranty. But what is the presumption where a third party signs a note after delivery to the payee? The original contract being complete, it seems to us that the most natural conclusion would be that the party so signing intended to become a collateral surety or guarantor. This presumption, however, would, we think, be open to evidence to show a contrary intention.

The answer in the case under consideration alleges that Johnson signed after delivery to enable the payee to negotiate it; this, if true, and without more, would, we think, constitute him a guarantor; but the answer also alleges that he signed it as a maker, and the record shows an offer to prove the allegations of the answer. How far the latter allegation negatives or qualifies the former, is a question of pleading that it is not necessary to consider here.

In Stone v. White, 8 Gray, 589, the suit was on a promissory note, signed by three parties; the last signer added the word surety to his signature. The first two pleaded that the name of the third was signed to the note without their knowledge or consent, and claimed to be discharged on that ground. The other answered that he signed the note after its delivery to the payee, as surety, without consideration. Reply that the surety signed as consideration for an extension of time; and such was the proof. Held, that the consideration was sufficient, and that the original makers were not discharged. Bigelow, J., delivering the opinion of the court, said: "His contract was collateral to

that of the signers of the note, and was in its nature a guaranty of their promise. * * * The placing of the name of Snow on the note, under the circumstances proved, did not constitute an alteration of the contract of the original parties. It did not in any way change or affect their rights. It was a new and independent contract, made on sufficient consideration with a third party, to which their consent was unnecessary. The validity of such a contract has often been recognized in this commonwealth." In this last case, the third party in signing designated himself as surety, but we do not think that made any difference. It might have been shown by evidence outside the instrument, Kelley v. Gillespie, 12 Iowa, 55; nor do we think the addition was material. If he had signed as surety before the delivery of the note, he would still have been an original promisor and jointly liable with the principal makers. The contract of a surety may be a part of the original contract or collateral to it, and in the latter case it is in the nature of a guaranty. Green v. Shepherd, 5 Allen, 589, was a suit on notes signed "Geo. H. Shepherd,Joseph Shepherd.” Joseph signed after the delivery of the note to the payee, and as the case states, "there was no evidence of what the arrangement was, if any, under which he signed them, other than the notes themselves." Held, that in the absence of evidence of a new consideration he was not liable. In Miller v. Finley, 26 Mich. 249, where, after the delivery of a note by F., the maker, to the payee, his father was induced to sign it without F's consent, it was held that the original maker was not discharged. The court said: "There is no doubt that any material alteration in a note, without the consent of the party responsible on it, and affected by it, will destroy it as to him. And there can be no question but that an addition to the number of signers of an instrument may, in some cases, at least, affect the operation of it, as to some or all of those who have already signed." But the court held that the contract of the father was that of suretyship merely, and laid down the broad, and, perhaps, too broad, rule that "It has always been competent for a person to become surety by signing the note of the principal, so as to become a joint and several maker. There is no rule which requires that a contract of surety. ship must be contemporaneous with the principal obligation. And unless the principal's liability is in some way affected by the addition it cannot be material. ** We think, therefore, that the original maker of the note could not complain of the procurement of his father's signature, and that he could not be discharged thereby." No consideration was shown for the contract of suretyship; but the surety made no defence, and the suit was by a bʊna fide holder. McCaughey v. Smith, 27 N. Y. 39, recog

nizes the rule that the addition of another maker to a note made by one or more parties is a material alteration of the contract," because, as was there said, "Instead of being the several or the joint obligation of the original party or parties, it becomes the joint or joint and several undertaking of different contractors. It is not material whether the change be prejudicial or the contrary; it is sufficient that it is material." Gardner v. Walsh, 5 El. & B. was cited with approval; and referring to the case of Chappell v. Spencer, 23 Barb. 584, the court said, this doctrine was applied in that case "in its strictest form, to vitiate a negotiable note whose holder had added his name as joint maker, instead of indorsing it, upon negotiating and obtaining the money upon it." "There is," continued the court, “a difference between the present case and these however, which must not be lost sight of. [The court here referred to the facts which were, in substance, that the note was originally made by one Hall and indorsed by Smith, in which condition it was delivered to plaintiffs who were the payees, in payment for goods sold to Hall and Hungerford. Afterwards, at the request of plaintiff, and without the consent of Smith, Hungerford signed his name to the note just above that of Hall, for the purpose of adding further security. Smith, the indorser, alone defended.] This made no alteration of the terms of the contract. *** It was not adding a joint maker, because the note had been made and negotiated. It was subscribing to become security upon a note already made and negotiated. * * If he could be held at all, I think it must have been by treating him as guarantor. If this were so, the case is out of the rule; for a guaranty of the note is not an alteration of it or of the maker's contract on it."

In Brownell v. Winnie, 29 N. Y. 400, it was held that the addition of the name of another maker to a several note after delivery, without the knowledge or consent of the original maker, would not avoid the note. But this was an

action against the second maker alone, who was also the payee. And in the course of the opinion the court said: "Whatever rights the first maker may have to complain, the second can have none." And see Muir v. Demaree, 12 Wend. 468. The case of Brownell v. Winnie, supra, in so far as it held that the addition of the name of another maker to several notes, without the consent of the original maker, did not avoid it as to him, was criticised in the very well considered case of Wallace v. Jewell, 21 Oh. St. 163. In Brownell v. Winnie it was held, that insomuch as the note was in form several, the addition of the name of another maker did not make it the joint note of the two. In Wallace v. Jewell, supra, the court said: "We cannot assent to this view. *** The contention of the earlier cases was that such a note was joint only, but we have found no case in which such a note has been declared not to be joint, except that of Brownell v. Winnie." In this Ohio case there was nothing in the pleadings to show that the additional name was placed on the note for any other purpose than that of adding another maker. Alluding to this fact the court said: "If the object had been to guaranty payment, or to furnish additional security otherwise than by becoming or assuming to become a joint maker, there could be no objection to the accomplishment of such an object. The new agreement in such a case would be a collateral one, and it would leave the integrity of the original note unaffected. Nor do we suppose the case would be altered, if in giving such security the new party should, by mistake or inadvertence, sign the note in such a way as to indicate, prima facie, that he was an original promisor, the real intention being otherwise." Mr. Daniel, in his recent work on Negotiable Instruments, first states the rule very correctly, that "any change in the personality, number or relations of the parties, is, as a general rule, a material alteration;" p. 350, § 1387. But afterwards, in § 1389, he says: "Where there is but one maker to a note and another is added, these views [i. e., that it is an immerteial alteration] apply with enhanced emphasis. The addition does not vary the original maker's liabilities in any respect. There could be no motive of fraud upon him or others to induce the addition. And while it would come within the letter of these declarations of courts that maintain anything which affects the integrity of the instrument to be a material alteration, it does not seem to us to come within their spirit. And on the whole, we think, it may be regarded as an immaterial alteration. In support of this novel doctrine, Miller v. Finley, supra, is cited. But that case is not authority for any such conclusion. The question did not even arise; for it was found that the additional name was placed on the note as security merely. The doctrine of Gardner v. Walsh is firmly es tablished both in this country and England. It has been repeatedly approved by the courts of nearly every state in the union. And it is believed that no case in the United States can be found where it has been held that the addition of the name of another maker to a note, without the consent of the original maker, would not discharge him. There are some cases, like Brownell v. Winnie, supra, which attempt to evade the rule in a quibbling sort of a way, but none of them deny it. M. A. L.

Held, that the libelant was not entitled to a maritime lien on the vessel.

APPEAL in Admiralty.

A libel in rem, was filed in the United States District Court for Minnesota, in August, 1875, to enforce a maritime lien for necessary material and supplies furnished by the libelant to the Albany, at the request of the master. These were so furnished by libelants in 1873, at La Crosse, in the State of Wisconsin, where the libelants resided and did business. The owner of the Albany was then and still is, one Jacob Heime, who resided at Boscobel, in the State of Wisconsin. Boscobel is within the collection district which has its collector's office at Galena, Illinois, where the said Albany was enrolled and licensed, and Galena is the nearest collector's office to Boscobel. The Albanay was engaged in navigating the Mississippi river, and during the winters she regularly laid up at Boscobel. She has painted on her stern, as required by the act of Congress, the words, "The Albany, Boscobel, Wisconsin."

In 1875, the Albany was mortgaged to certain of the claimants, whose mortgages were duly registered just before the seizure of the boat. The mortgagees had no notice of the libelant's claim.

The Albany has been at the port of La Crosse as often as once a month during each season of navigation, since the libelants furnished said materials and supplies.

There were two main questions argued in the district court: 1st. Has the libelant a maritime lien? 2d. If so, is the same stale as respects the mortgagees? The district court entered a decree in favor of the libelants. The owner and mortagees appeal.

J. H. Davidson, for libelant (appellees); W. P. Warner, for claimants, (appellants).

DILLON, Circuit Judge:

The decisive question in this case is, what was the home port or state of the steamboat, "Albany." It is a question of very great importance, and in respect of which some conflict of judicial opinion appears to exist. It has been deliberately considered, and without spreading upon this opinion all the learning applicable to it, I proceed to state my views concerning it. As strengthening the conclusion arrived at, and illustrating the reasons upon which it is based, it is desirable briefly to advert to the general law upon the subject of maritime liens or hypothecations.

By the civil law, the material-man, for repairs made or necessary supplies furnished to a vessel, had an implied or tacit lien, whether the vessel was in her homeport or in a foreign port. Abbott on Shipping, 142. The Lottawanna, 21 Wall. 590;2 CENT. L. J. 410. And such is the undoubted rule in the maritime nations of Europe, which have adopted the civil law as the basis of their jurisprudence. It is equally well known that this principle has not been adopted as the law of England, or rather, after having obtained in the admiralty courts of that country, for a long time, it was overturned by the hostility of the common law courts. The Zodiac, 1 Haggard Adm. 325.

In the present case, the supplies were furnished to the vessel at the instance of the master, and in the maritime law of Europe, certain limitations upon his power, as between him and the owner, in respect of contracts for supplies or money to obtain or make these, are declared to exist.

By the celebrated marine ordinance of Louis XIV, whose provisions have been largely embodied in the Code de Commerce, material-men furnishing supplies are entitled to a lien; but this right is subject to the qualification (Article 232, Code de Commerce) that the master shall act in the place of residence (dans le lieu de la demeure) of the owners or their agent,

without special authority, cause repairs to be made, buy sails, cordage, etc., or take up money for that purpose. But if the master violate this duty, the materialman, acting in good faith is not deprived of his right or remedies. The words "the place where the owner resides," are construed in France to comprehend the whole district, but not the whole country. Selden v. Hendrickson (The Richmond), 1 Brockenbrough, 396, 399. But in England there is no implied lien recognized for repairs made or supplies furnished in that countrythe principle of the civil law in this respect having been, as above observed, overthrown by the early hostility of the common law courts to the admiralty jurisdiction. But for necessary repairs made and supplies furnished abroad, or in a foreign port, the English courts recognize and enforce a maritime lien.

It is important to notice the reasons given in the English courts for this distinction. Lord Mansfield says: "Work done for a ship in England, is supposed to be on the personal credit of the employer "-the owner or master. "In foreign ports," he adds, "the master may hypothecate the ship." Wilkins v. Carmichael, Douglas, 101. And finally, the House of Lords, in 1789, to conform the law of Scotland to the law of England, in Wood v. Hamilton, decided that persons who had repaired and furnished a ship in Scotland, the place of the owner's residence, had no lien or privilege upon the ship itself. Abbott on Shipping, Ch. 3, part 2, page 147.

A maritime lien for supplies and necessary repairs abroad at the instance of the master, the owner being absent, is allowed from necessity and the encouragement of trade. Abbott on Shipping, 144, 145.

The question in England, as to what is the place of residence of the owner, has given rise to controversy; but Lord Tenterden says: "I apprehend the whole of England is considered, for this purpose, as the residence of an Englishman; at least before the commencement of the mortgage." Abbott on Shipping, 155; Selden v. Hendrickson, 1 Brockenb, 402, where the subject is discussed by Ch. J. Marshall. But the question is now settled in Great Britain by statutable provision. By 19 and 20 Vict. c. 97, Sec. 8, all ports within Great Britain and Ireland, the Channel Islands, and the Islands adjacent, if part of the Queen's Dominions, are to be deemed home ports in relation to the rights and remedies of persons having claims for repairs done, or supplies furnished to ships.

Such being the state of the law in Europe and England, it became a question in the Admiralty courts in this country, soon after their creation under the constitution, what doctrines they would adopt in respect of repairs and supplies. Some followed the more enlarged right given by the Continental or general maritime law; others the more restricted right recognized by the English courts. In this condition of the law at home and abroad, the Supreme Court of the United States in 1819, decided the case of the General Smith, 4 Wheaton, 438. In that case a Baltimore merchant furnished supplies to the ship General Smith, which was owned at Baltimore, and the court decided that there was no lien upon the vessel. In delivering its judgment, Mr. Justice Story thus states the doctrine of the court: "Where repairs have been made or necessaries have been furnished to a foreign ship, or to a ship in the port of a state to which she does not belong, the general maritime law, following the civil law, gives the party a lien on the ship itself for his security. But in respect to repairs and necessaries in the port or state to which the ship belongs, the case is governed by the municipal law of that state, and no lien is implied, unless it is recognized by that law." The case of the General Smith has been frequently approved by the supreme court, and in the recent case of The