CASES OVERRULED, DOUBTED AND DENIED.

Barefield v. State (14 Ala. 603), denied; People v. Markham (64 Cal. 157), 702, 704.

Chicago R. v. Pondrom (51 Ill. 333; 2 Am. Rep. 306), denied; Dun v. Seabord and Roanoke R. Co. (78 Va. 645), 393.

City of Detroit v. Beckman (34 Mich. 125; 22 Am. Rep. 507), denied; Gould v. City of Topeka (32 Kans. 485), 500.

City of Navasota v. Pearce (46 Tex. 525; 26 Am. Rep. 279), denied; Gould v. City of Topeka (32 Kans. 485), 498, 500.

Clark v. Allen (11 R. I. 439; 23 Am. Rep. 496), denied; Gilbert v. Moore (104 Penn. St. 74), 573.

Cluff v. Mutual, etc. Ins. Co. (13 Allen, 308), doubted; Bloom v. Franklin Life Ins. Co. (97 Ind. 478), 472, 473.

Collier v. Early (54 Ind. 559), overruled; Terre Haute, etc. R. Co. v. Buck (96 Ind. 346), 175.

Cummings v. Gossett (19 Vt. 310), denied; Richardson v. Bricker (7 Colo.. 58), 345.

Detroit v. Blakeby (21 Mich. 84; 4 Am. Rep. 450), denied; Gould v. City of Topeka (32 Kans. 485), 498.

Fairbanks v. Kerr (70 Penn. St. 86; 10 Am. Rep. 664), denied; Terre Haute, etc., R. C. v. Buck (96 Ind. 346), 175.

First Cong. Soc. v. Miller (15 N. H. 522), denied; Richardson v. Bricker (7 Colo. 58), 345.

Fogarties v. Skillman (12 Rich. 518), denied; Dickinson v. Coates (79 Mo. 251), 232.

Hatfield v. Roper (21 Wend. 615), denied; Huff v. Ames (16 Neb. 139), 7, 17. Horner v. Starkey (27 Ill. 13), denied; Richardson v. Bricker (7 Colo. 58), 345. Isaacs v. Third Ave. R. Co. (47 N. Y. 122; 7 Am. Rep. 418), denied; Carter v. Somerville, etc., Ry. Co. (98 Ind. 552), 789.

Krach v. Heilman (53 Ind. 517), overruled; Terre Haute, etc. R. Co. v. Buck (96 Ind. 346), 175.

Laing v. Calder (8 Penn. St. 479), denied; Dun v. Seabord and Roanoke R Co. (78 Va. 645), 391.

Lee v. Giles (1 Bailey, 449; 21 Am. Rep. 476), denied; Hummer v. Lamphear (32 Kans. 439), 493.

McCutcheon v. Homer (43 Mich. 483; 38 Am. Rep. 212), denied; Gould v. City of Topeka (32 Kans. 485), 498, 500.

McDowell v. Bank of Wilmington (1 Harring. 369), denied; People's Bank of Wilkesbarre v. Segrand (103 Penn. St. 309), 128.

XXXVI CASES OVERRULED, DOUBTED AND DENIED.

McManus v. Crickett (1 East, 106), denied; Carter v. Louisville, etc., Ry. Co. (98 Ind. 552), 788.

Mum v. Burch (25 Ill. 35), denied; Dickinson v. Coates (79 Mo. 251), 233. Murray v. Haverty (70 Ill. 320), doubted; McCord v. Oakland Quicksilver Mining Co. (64 Cal. 134), 691.

New Jersey Railroad v. Kennard (21 Penn. St. 203), denied; Dun v. Seabord and Roanoke R. Co. (78 Va. 645), 393.

Norton v. Shepard (48 Conn. 142; 40 Am. Rep. 157), denied; Richardson v. Bricker (7 Colo. 58), 345.

Owsley v. M. and W. P. R. Co. (37 Ala. 560); denied; Jordan v. Alabama, etc., R. Co. (74 Ala. 85), 800, 804.

Pitzer v. Russell (4 Oreg. 124), denied; Hummer v. Lamphear (32 Kans. 439), 493, 496.

Pray v. Mayor, etc. (32 N. J. L. 394), denied; Gould v. City of Topeka (32 Kans. 485), 498.

Pullman, etc., Co. v. Barker (4 Colo. 344; 34 Am. Rep. 89), denied; Terre Haute, etc., R. Co. v. Buck (96 Ind. 346), 173, 175.

Roberts v. Austin (26 Iowa, 315), denied; Dickinson v. Coates (79 Mo. 251), 233. Ryan v. N. Y. etc., R. Co. (35 N. Y. 210), denied; Terre Haute, etc., R. Co. v. Buck (96 Ind. 346), 175.

Spencer v. Railroad (17 Wis. 487), denied; Dun v. Seabord and Roanoke R. Co. (78 Va. 645), 393.

State v. Harrison (10 Yerg. 542), overruled; State v. Gardner (13 Lea, 134), 661, 662.

State v. Parham (5 Jones, 416), denied; Alonzo v. State (15 Tex. Ct. App. 378), 208.

State v. Mainor (6 Ired. 340), denied; Alonzo v. State (15 Tex. Ct. App. 378), 208.

Union Nat. Bk. v. Oceana County Bk. (80 Ill. 212), denied; Dickinson v. Coates (79 Mo. 251), 233.

Urquhart v. City of Ogdensburgh (91 N. Y. 67; 43 Am. Rep. 212), denied; Gould v. City of Topeka (32 Kans. 485), 500.

Whitaker v. Howe (3 Beav. 383), overruled; Wiley v. Baumgardner (97 Ind. 66), 429.

Winchell v. Insurance Co. (8 Ins. L. J. 851), denied; Smith v. Nat. Life Ins. Co. (103 Penn. St. 177), 125.

Winter v. Behmont Mining Co. (63 Cal. 428), overruled in part; Barstow v. Savage Mining Co. (64 Cal. 388), 707, 708.

Wright v. Wilcox (19 Wend. 343; 32 Am. Dec. 507), denied; Carter v. Louisville, etc., Ry. Co. (98 Ind. 552), 788.

In an action for contribution upon a promissory note purporting to be made by A. as principal, and the plaintiff and defendant as sureties, evidence is competent to show that the signers were joint makers by agreement."

A

CTION for contribution upon a note. The opinion states the facts.

H. W. Ely and C. F. Ely, for plaintiff.

G. M. Stearns, for defendant.

C. ALLEN, J. [Omitting other points.] The third count set forth specially that one Alden and the plaintiff and the defendant were joint makers of a promissory note, a copy of which the plaintiff was unable to give, but which was described; and that the plaintiff, the defendant, and said Alden each bound to pay an equal proportion of the principal and interest thereof; that the plaintiff paid $3,680 thereof, and the defendant about $1,100.85 thereof; that Alden became insolvent ; and the plaintiff claimed a contribution from the defendant as a * See Robinson v. Barnett (18 Fla. 602), 43 Am. Rep. 327. VOL. XLIX-1

Mansfield v. Edwards.

joint maker with the plaintiff of the promissory note. And there was an averment that the three counts were for one and the same cause of action.

The original answer, upon which at the outset the case proceeded to trial, denied each and every allegation of the declaration and denied that the plaintiff paid the note mentioned in the declaration; meaning, no doubt, in the third count of the declaration.

It would seem, though it is not stated in direct terms, that the note itself was introduced in evidence by the plaintiff, and there was no dispute as to its execution; and both in the body of the note and in the signatures, Alden was expressly mentioned and designated as principal, and the plaintiff and the defendant as sureties, the name of the plaintiff standing before that of the defendant. Upon the face of the note there was nothing from which it could be inferred that the relation of the parties to each other was any thing else than that the plaintiff and the defendant were joint sureties for Alden. Assuming therefore that the payments by the plaintiff and the defendant respectively were made as alleged, nevertheless the production of the note did not support the averments of the third count that the three parties who signed it were joint makers, and each bound to pay an equal proportion of the principal and interest; and if the proof had rested there, and if objection had been taken, the judge would have been obliged to rule that there was a variance. The plaintiff however did not intend to rest his case so, and offered to prove that the signers of the note, by agreement among themselves, were joint makers; but upon the defendant's objection, the court ruled that parol evidence was not admissible to change the relations of the parties to each other as expressed in the note. The question therefore arises whether this ruling was correct.

Ordinarily the rights and duties of innocent holders of negotiable paper, toward the signers, are what appear from the face of the instrument. Indorsers must have notice. Sureties have a right that no extension shall be given to the principal. In an action by the holder, upon the paper itself, it.is a general rule, though perhaps subject to exceptions not necessary to be dwelt upon here, that the holder's rights depend exclusively upon the form of the instrument, and the capacity in which the several parties to it respectively assume to stand. But in an action for indemnity or contribution, as between the parties themselves who have become bound

Mansfield v. Edwards.

for the payment of the instrument, whether it be a note, a bill, or a bond, a different rule prevails. In such case, the action is upon a different and collateral agreement, and proof of an oral collateral agreement that as between themselves the parties shall stand in a different relation from that which would be inferred from the form of the instrument which is signed, or even from that which is expressed in explicit terms upon the face of such instrument, does not have the effect to contradict or vary its terms. The written instrument is designed to express the undertaking and obligation of the signers to the holder of it, and is not designed to show their agreement or understanding among themselves. For example, if A. applies to B. to borrow money, and B. has no money on hand, but is willing to lend his credit, he may give his note directly to A. as payee, or to a third person for A.'s benefit, or may accept a bill of exchange drawn upon him by A. In either of these cases, prima facie, B. is the principal, but in each, if he pays the note or bill, he may maintain an action for indemnity against A., and show by parol evidence that he signed merely for A.'s accommodation.

Accordingly it has been held in a number of cases, that in an action for indemnity or contribution for money paid, parol evidence is admissible to show the true relations of the parties, no matter in what form their obligation may have been expressed in the instrument which they signed. Thus it has been held or declared that such evidence is competent in such an action by a first indorser against subsequent indorsers; Weston v. Chamberlin, 7 Cush. 401; Phillips v. Preston, 5 How. (U. S.) 278; by an indorser against principal and sureties; Sweet v. McCallister, 4 Allen, 353; by one joint promisor against other joint promisors; Clapp v. Rice, 13 Gray, 403; Carpenter v. King, 9 Metc. 511; 43 Am. Dec. 405; by one who was apparently a principal against a surety; M'Gee v. Prouty, 9 Metc. 547; by the drawer of a bill against the indorser; Batson v. King, 4 H. & N. 739; by the acceptor against the drawer; Hawley v. Beverley, 6 M. & G. 221; or against the indorser; Griffith v. Reed, 21 Wend. 502; by the maker of a note against the payee; 21 Wend. 505; by a surety against an accommodation indorser; Harshman v. Armstrong, 43 Ind. 126; by the principal on a note against a surety; Robison v. Lyle, 10 Barb. 512; by one surety against another, for full indemnity by the latter as principal. Apgar v. Hiler, 4 Zabr. 812.

The competency of parol evidence for this purpose is also de