Abraham Clark Freeman John Proffatt.

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ant's negligence that the promisor had been enabled to commit
the fraud, and they must suffer: Lickbarrow v. Mason, 2 T. B.
TO. Moreover, the note is indorsed in blank, is transferable by
delivery only, the possession carrying with it the property: 1
Salk. 126; 2 Show. 235; 3 Burr. 1516; and where the holder
received the note for a valuable consideration, bona fide, he may
recover against the drawer, acceptor or indorser in blank: Kyd.
102; Peacock v. Rhodes et al., Doug. 632; Miller v. Race; Bus-
*fiy. Langstaffe, Doug. 514.

By Court, Pabsons, 0. J. The first objection made by the
defendants is founded on a want of a demand of payment on
the promisor when the note was payable. As to this objection,
the facts are, that on the first day of grace, which was the last
day of February, notice was left at the lodgings of the promisor,
that the note would be due on the last day of grace, with a re-
quest to pay it then; but it also appears that before that time
it was known to the parties that he had absconded, and, when
the note was payable, he was not to be found. The condition
on which an indorser of a note is holden is, that the indorsee
shall present the note to the promisor when due, and demand
payment of it, if it can be done by using due diligence. Now,
it appears that when the note in this case was due, it could not
be presented to the promisor for payment, and that there was
no neglect in the indorsers. We are all, therefore, satisfied
that the indorsers are holden on their indorsement in this case,
notwithstanding there was no demand on the promisor.

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208 Putnam v. Sullivan. [Mass.

The second objection is, that the defendants did not, in con-
struction of law, indorse this note. On the facts in this case
we are to decide who shall suffer the loss of the money; the
plaintiffs, who, it is agreed, are innocent indorsers, or the de-
fendants. It is objected that this note ought to be considered
as a forgery of the names of the indorsers; because a note was
afterwards written on the face of the paper by the promisor,
not only without the direction or consent of the defendants,
but against their express instruction; and therefore that it was
a false and fraudulent alteration of a writing, to the prejudice
of the indorsers.

This objection would have great weight if, when the indorsers
put the name of the firm on the paper, they had not intended
that something should afterwards be written, to which the
name should apply as an indorsement; for then the paper would
have been delivered over unaccompanied by any trust or con-
fidence. If the clerk had fraudulently, and for his own bene-
fit, made use of all the indorsements for making promissory
notes to charge the indorsers, we are of opinion that this use,
though a gross fraud, would not be in law a forgery, but a
breach of trust. And for the same reason, when one of these
indorsements was delivered by the clerk, who had the custody
of them, to the promisor, who by false pretenses had obtained
it, the fraudulent use of it would not be a forgery, because it
was delivered with the intention that a note should be written
on the face of the paper by the promisor, for the purpose of
negotiating it as indorsed in blank by the house. And we must
consider a delivery by the clerk, who was intrusted with a
power of using these indorsements (although his discretion was
confined), as a delivery by one of the house, whether he was
deceived, as in the present case, or had voluntarily exceeded
his direction. For the limitation imposed on his discretion
was not known to any but to himself, and to his principals.

It is further objected that if the writing of this note under
these circumstances is not a forgery, yet it is such a fraud as
will discharge the indorsers against an innocent indorsee. The
counsel for the defendants agree that generally an indorsement
obtained by fraud shall hold the indorsers according to the
terms of it; but they make a distinction between the cases
where the indorser, through fraudulent pretenses, has been in-
duced to indorse the note he is called on to pay, and where he
never intended to indorse a note of that description, but a
different note, and for a different purpose.

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March, 1808.] Putnam v. Sulliyan. 209

Perhaps there may be cases in which this distinction ought to
prevail, as if a blind man had a note falsely and fraudulently
read to him, and he indorsed it, supposing it to be the note
read to him. But we are satisfied that an indorser cannot avail
himself of this distinction, but in cases where he is not charge-
able with any laches or neglect, or misplaced confidence in
others. Here, one of two innocent parties must suffer. The
indorsees confided in the signature of the defendants, and they
could have no reason to suppose that it had been improperly
obtained. The note was openly offered to the plaintiffs by a
broker, and when they objected on account of the absence of
both the indorsers, they were answered, on the information of
the promisor, whose character then stood fair, that blank in*
doraements had been left with the clerk, and that the indorsers
had before indorsed a number of notes for the same person,
which had been negotiated by a broker. On the other hand,
the loss has been occasioned by the misplaced confidence of the
indorsers in a clerk too young or too inexperienced to guard
against the arts of the promisor. It is to be regretted that the
blank indorsements had not been deposited with the brother of
the partners, who was directed to be consulted as to the use of
them; for then no innocent person would have been a suffer*'*

From a view of all the facts, as they are presented to us, it is
our opinion that the indorsers must be holden, and that judg-
ment must be entered according to the verdict, with the addi-
tional interest agreed.

In forming this opinion, we have been necessarily led to con-
sider the effect of a different opinion on the commercial part of
the community. How far it is common for merchants to in-
trust their clerks with blank signatures or indorsements, is not
known. But when merchants are in the habit of indorsing for
each other at the banks, it is very common to put their names
on blank paper, and deliver them to the party to be accom-
modated, for the express purpose of obtaining a renewal of cer-
tain notes, when they become due. And if the party having
these signatures should employ them as names to other nego-
tiable securities not contemplated, and the signatures should
for that reason be void, much injury might result to innocent
indorsers, or the bank discounts would be greatly embarrassed.

This case is particularly noticed by writers on negotiable instruments on

the point as regards the liability of one who intrusts an agent with blank

indorsements. Thus Parsons, on Notes and Bills, notices it extensively,

and points it out as an important and leading case on this head; and

Av.Dso. Vol. 111—14

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210 Wallis v. Wallis. [Mass.

Daniel, on Negotiable Instruments, cites it frequently on the same point.
It is cited on this point and its authority recognized in Mussey v. Beecher,
3 Cush. 519; Riley v. Oerrish, 9 Id. 107; Androscoggin Bank v. Kimball, 10
Id. 374; Belknap v. National Bank of North America, 100 Mass. 381; Roe v.
Jerome, 18 Conn. 157; Cliemnng Canal Bank v. Bradner, 44 N. Y. 686;
CJiapman v. Rose, 56 Id. 143.

On the point as to a necessity for a demand, it is noticed in Tasker v.
BartleU, 5 Cush. 363; Pierce v. CaU, 12 Id. 192; Rhett v. Pot, 2 How. 482;
Fotter v. Julien, 24 N. Y. 37.

Wallis v. Wallis.

[4 Mam. 135.]

Consideration for Deed— Action to Recover back.— A grantor by
bargain and sale, for a valuable consideration, sold land with warranty,
the grantee to hold from the grantor's death. It was held that during
the grantor's life no action would lie to recover back the consideration;
although an action on the covenant would, after death of the grantor,
if a title to the land were not made to the grantee or his heirs.

Covenant to stand seised.— If such bargain and sale be made by a
father to his son, a consideration of natural affection from the relation
of the parties will be presumed in addition to the valuable considera-
tion expressed- in the deed; and it will be construed as a convenant cf
the grantor to stand seised to his own use during life, and after his
death to the use of the grantee. •

Assumpsit. The action was originally brought by plaintiffs
testator, and on his decease prosecuted by plaintiff. The case
was submitted to this court upon the following statement of
facts: On the eleventh of June, 1805, defendant by his deed
conveyed to the plaintiff's testator, defendant's son, his heirs
and assigns, a certain tract of land, to have and to hold after
the death of the grantor, the consideration of four hundred
dollars being expressed in the deed. The grantor entered into
covenants of seisin and against incumbrances, except his, the
grantor's, right to the use and improvement of the land during
his life, and also of warranty. The defendant refused to permit
the testator to enter under the said deed; and this action was
brought to recover the four hundred dollars consideration money,
on the ground that nothing 'passed by the deed.

Hastings and Bigelow, for the plaintiff.

Dana, for the defendant.

By Court, Pabsons, C. J. We do not know any legal prin-
ciples on which this action can be supported. The money was
not paid through mistake, being supposed to be due when it
was not; it was not obtained by deceit, fraud, imposition or

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March, 1808.] Waujs t;. Wallib. 211

oppression; nor was it paid upon an executory contract, which
has happened to fail, or which has been or might be lawfully
disaffirmed by either party. The most that can be urged for
the plaintiff is, that nothing passed by the deed, as it was
intended to convey a freehold in fuluro; but he voluntar-ly
paid the money for such a conveyance, and took a covenant
from the grantor that, after his death, the grantee and his heirs
should have the land; which covenant, at the grantor's death,
may be broken, and the foundation of an action for damages, if
a title to the land be not made to the grantee or his heirs.

But fortunately for the grantee, he is mistaken in the con-
struction of his deed. For, although it is true that by a com-
mon law conveyance a freehold cannot be conveyed in futuro,
yet by a covenant to stand seised to uses, such conveyance can
be effected. And every deed ought to be construed, if it be
legally possible, so as to effect the intent of the parties. In '
this case, beside the valuable consideration expressed, a con-
sideration of natural affection may be averred as consistent
with it, for the consanguinity of the parties, though not men-
tioned in the deed, is agreed in the case. The intent of the
parties is clear, and there is a covenant of the grantor, that
after bis death the grantee shall have the land. This convey-
ance is therefore to be considered, in law, as a covenant by the
grantor to stand seised of the land, to his own use during his
life, and after his decease to the use of the grantee and his
heirs. And upon the execution of the deed the grantor was
tenant for life, and a remainder in fee was vested in the

The plaintiff' must be called.

The principle laid down in this case, thai, in addition to the pecuniary
consideration expressed in the deed, a consideration of consanguinity nay
be shown, to support the conveyance as a covenant to stand seised, has been
recognized, and this case cited with approval in Parker v. Nichols, 7 Pick.
115; Oale v. Coburn, 18 Id. 401; Brewer v. Hardy, 22 Id. 380; Clark v.
Deshon, 12 Cush. 591; Barrett v. French, 1 Conn. 364; Wardwellr. Bassett,
8 K. I. 305; Jackson v. Stoats, 11 Johns. 351. In Brewery. Hardy, decided
in 1839, the court say: "The case of WalUs v. Wallis has stood not only
unimpeached for thirty years, but is recognized as sound law. It is part of
the established legal conveyancing of the commonwealth, and not now to
to be shaken by this court.*' The principal case is also cited and explained
in Wyman y. Brown, 50 Me. 154. On the point as to the recovery of the
consideration paid, Parker, C. J!, delivering the opinion of the court in
Watkins v. Otis. 2 Pick. 97, citing this case, says: "The consideration paid
for the purchase of land which is conveyed by deed cannot be recovered
back in an action for money had and received, although the title fail in the

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212 Commonwealth v. Clap. [Mass.

hands of the purchaser, and this because there are either covenants upon
which the party may have a remedy; or if there be not, the absence of
them is evidence that the purchaser took the title at his own risk."

Commonwealth v. Clap.

[4 Mam. 163.]

JUSTIFICATION of Libel. — In a criminal prosecution for a libel the truth
is no justification; but the defendant may show the purpose of the
publication to have been justifiable, and then give the truth in evi-
dence to negative the malice and intent to defame.

Publication respecting Public Officers.— Publications of the truth
regarding the character of a public elective officer, and referring to his
qualifications for such office, made with intent to inform the people,
are not libelous.

Same, when Libelous. — Because of the important public interests in-
volved in the election of public officers, the publication of falsehood
and calumny against public officers and candidates for public office, is
a very high offense.

Indictment for libel. Clap had posted in several public
places the following: " Caleb Haywood is a liar, a scoundrel, a
cheat, and a swindler. Don't pull this down."

On the trial, defendant's counsel offered evidence of the
truth of the matters charged as libelous, which evidence was
rejected. Upon the return of a verdict of guilty, defendant
moved for a new trial on the ground of the rejection of the
evidence offered.

Otis and Self ridge, for the defendant, contended that at com-
mon law the charge must be both false in itself, and maliciously
published: 3 Inst. 174; 2 Id. 226, 227; 5 Rep. 125; 9 Id. 59;
Ihe Seven Bishops' case, 4 State Trials, 394; Laker. Ration, Hob.
252, The King v. Haswell, 4 Moore, 627; that Hayward, being
an auctioneer, an officer publicly appointed, his character is of
interest to the citizens at large, who have a right to speak and
publish the truth respecting him.

Attorney-general Bidwell and solicitor-general Davis, contra,
urged that it was not the falsity, but the provocation, that was
to be punished criminally: 4 Bl. Com. 150; 1 Hawk. P. C, c.
73, sec. 6; 5 Hep. 125; Hobart, 253; Moore, 627; Strange,
498; 11 Mod. 99; Franklin's trial, 9 State Trials, 275. An in-
formation for libel need not allege the libel to be false: Bex v.
Burks, 7 T. R. 4. The libelous words were not applied to
Hayward in his official character, but relate to the private deal-
ings and character of him as an individual.

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March, 1809.] Commonwealth v. Clap. 213

By Court, Pabsons, C. J. The defendant has been convicted
by the verdict of a jury of publishing a libel. On the trial, he
moved to give in evidence, in his defense, that the contents of
the publication were true. This evidence the judge rejected,
and for that reason the defendant moves for a new trial.

It is necessary to consider what publication is libelous, and
the reason why a libelous publication is on offense against the

A libel is a malicious publication, expressed either in print-
ing or writing, or by signs and pictures, tending either to
blacken the memory of one dead, or the reputation of one who
is alive, and expose him to public hatred, contempt, or ridicule.
The cause why libelous publications are offenses against the state,
is their direct tendency to a breach of the public peace, by pro-
voking the parties injured, and their friends and families, to acts
of revenge, which it would not be easy to restrain, were offenses
of this kind* not severely punished. And every day's experience
will justify the law in attributing to libels that tendency which ren-
ders the publication of them an offense against the state. The
essence of the offense consists in the malice of the publication,
or the intent to defame the reputation of another. In the defi-
nition of a libel, as an offense against law, it is not considered
whether the publication be true or false; because a man may
maliciously publish the truth against another, with the intent
to defame his character, and if the publication be true, the tend-
ency of it to inflame the passions, and to excite revenge, is not
diminished, but may sometimes be strengthened. The infer-
ence is, therefore, very clear, that the defendant cannot justify
himself for publishing a libel, merely by proving the truth of
the publication, and that the direction of the judge was right.

If the law admitted the truth of the words in this case to be
a justification, the effect would be a greater injury to the parly
libeled. He is not a party to the prosecution, nor is he put on
his defense; and the evidence at the trial might more cruelly
defame his character than the original libel Although the
truth of the words is no justification in a criminal prosecution
for a libel, yet the defendant may repel the charge, by proving
that the publication was for a justifiable purpose, and not
malicious, nor with the intent to defame any man. And there
may be cases where the defendant, having proved the purpose
justifiable, may give in evidence the truth of the words, when
such evidence will tend to negative the malice and intent to de-

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214 Commonwealth v. Clap. [Maas.

Upon this principle, a man may applj by complaint to the
legislature to remove an unworthy officer; and if the complaint
be true, and made with the honest intention of giving useful
information, and not maliciously, or with intent to defame, the
complaint will not be a libel. And when any man shall consent
to be a candidate for a public office conferred by the election of
the people, he must be considered as putting his character in
issue, so far as it may respect his fitness and qualifications for
the office. And publications of the truth on this subject, with
the honest intention of informing the people, are not a libel.
For it would be unreasonable to conclude that the publication
of truths, which it is the interest of the people to know, should
be an offense against their laws. And every man holding a
public elective office may be considered as within this principle;
for as a re-election is the only way his constituents can manifest
their approbation of his conduct, it is to be presumed that he
is consenting to a re-election if he does not disclaim it. For
every good man would wish the approbation of his constituents
for meritorious conduct.

For the same reason, the publication of falsehood and cal-
umny against public officers, or candidates for public offices, is
an offense most dangerous to the people, and deserves punish-
ment; because the people may be deceived, and reject the best
citizens, to their great injury, and it may be to the loss of their
liberties. But the publication of a libel maliciously, and with
intent to defame, whether it be true or not, is clearly an offense
against law, on sound principles, which must be adhered to so
long as the restraint of all tendencies to the breach of the pub-
lic peace, and to private animosity and revenge, is salutary to
the commonwealth.

Motion denied.

On account of the precise and clear definition of libel given by Chief Jus-
tice Parsons, in this case, it has been frequently cited with approbation.
Thus, in Clark v. Binncy, 2 Pick. 115, Lincoln, J., says: "To the correct-
ness of this definition no objection can now be urged. It rests upon the
authority of an unbroken series of decisions for ages, and its application to
the condition of civilized society, and to individuals in social life, has the
sanction of reason and the approval of every reflecting and intelligent

It is cited in CommonweaUh v. Sndling, 15 Pick. 214, as to the admissi-
bility of the truth in evidence in a criminal prosecution for libel. And in
WliiU v. NicJiolU, 3 How. 290. as to malice being the essence of libeL

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March, 1808.] Clap v. Draper. 215

Clap v. Draper.


Grajtt of Inheritance in Trees.— A grant to one, his heirs and assign*,
of all the trees and timber standing and growing on certain lands for-
ever, with liberty to cut and carry them away, conveys an estate of
inheritance in the trees and timber, and the grantee can maintain tres-
pass quart clausum/rtgii against the owner of the soil for cutting down
the trees.

Construction op Contemporaneous Instruments.— Where two instru-
ments are executed at the same time, one referring to the other, and
relating to the same transaction, they must be considered as intended
to effect the same contract, and must be construed together.

Trespass for breaking and entering the plaintiff's close, and
catting and carrying away five hundred trees of the value of
five hundred dollars. Upon not guilty pleaded, a special ver-
dict was found containing the following facts: Joseph Humfrey
was seised of the close in fee, and conveyed the same by deed,
dated eighteenth May, 1763, to Stephen Fowler, in fee; on the
«aame day, Fowler reconveyed to Humfrey, his heirs and assigns,
all the trees and timbers standing and growing on said land
forever, with free liberty for them to cut and carry away said
trees and timber, at all times, at their pleasure, forever; the
deed to Fowler expressed no consideration. The plaintiff holds
all the right which was conveyed by Fowler to Humfrey, and
the defendant holds all the estate that was Fowler's; the de-
fendant cut and carried away the trees mentioned in the declara-
tion, some of which were standing on the eighteenth May, 1763;
and the plaintiff and those claiming under him have, from that
date to the present time, taken and carried away the trees at
their pleasure. During all this time, the defendant, and those
claiming under him, have had the herbage.

L. Richardson, for the plaintiff, contended that he had an
estate of inheritance in the timber and trees, and was entitled
to this form of action: Lifford's case, 11 Co. 49; Sir Francis
Barringion's case, 11 Co. 271; Ives's case, 6 Co. 11; 3 Dyer, 286;
2 Brownl. 289, 322, 328; Brae ton, 222; Co. Litt. 4; Rolle'a
Bep. 96, 99, 137.

J. Richardson, for the defendant, contended that the grant of
the trees amounted only to a license: Spyve v. Topham, 3 East,
115; that the grant was confined to trees then growing, not to
such as should spring up afterwards: Whistler v. Paslow, Cro.
Jac. 487; Pincvmb v. Thomas, Id. 524; that the plaintiff could

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216 Clap v. Draper. [Mass.

not maintain trespass -quare clausum f regit, he not being the
owner of the soil.

By Court, Parsons, C. J. [after stating the facts of the
case]. The two deeds in this case, executed on the same day,
the latter referring to the former, and relating to the same
transaction, must be considered as intended to effect the same
contract, and must be construed together. The result of this
joint construction is, that the grantor conveyed the close to
the grantee in fee, reserving to himself an inheritance in the
trees and timber, not only then growing, but which might there-
after be growing in the close. This is the natural effect of the
grantee's agreement that the grantor and his heirs should have
all the trees and timber standing and growing on the close for-
ever, and not merely those then standing, or which should be
standing within a limited time; and of a perpetual license t j
cut and carry them away. The plaintiff having all the estate
in the trees, timber and close, which the grantor had after the
execution of these two deeds, he has an inheritance in the
trees and timber, with an exclusive interest in the soil so far
only as it may be necessary for the support and nourishment of
the trees: 8 Co. 271; Cro. Jac. 487; 2 Boll. Abr. 465; 11 Co.
46. For cutting down and carrying away the trees, trespass un-
doubtedly lies: Hitchcock v. Harvey, 2 Leon. 213.

But the defendant insisted that the plaintiff could not main-
tain trespass for breaking the close. Upon looking into the
cases, we are satisfied that the plaintiff, having an inheritance

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