Statement of the case.

passengers from Boston, went on board of the boat at New London about eleven o'clock in the evening. A detachment of United States soldiers-sixty, perhaps, in number-were on board, and were behaving in a disorderly and riotous manner, having overpowered their sentinels and rushed to the after-deck set apart for passengers. A portion of the detachment, which had been assigned as a guard over the rest, were armed, and in the melee a musket was thrown upon the deck and discharged, and the ball entered the plaintiff's foot, injuring him severely. His action was based on a charge of negligence on the part of the defendants in not providing against and quelling the disturbance. At the trial of the cause, after considerable evidence had been adduced tending to show the transactions which occurred on the boat at the time of the injury, the plaintiff offered in evidence the testimony of certain passengers, who testified that after they had gone down to the dining saloon, and were at the table, a man in military uniform, whom they supposed from the stripes on his arm to be a sergeant, came into the saloon and saluted an officer in uniform, whom they supposed to be a lieutenant, and who was sitting at the table with another officer, whom, from his uniform, they supposed to belong to the navy, and said to him, "There is a row on deck, and I cannot suppress it;" that the officer addressed replied, "Mind your orders;" that the sergeant said, "I am afraid some oue will be hurt;" that the officer replied, "You have your orders-mind your orders;" that the sergeant then retired, and, after a few minutes, came down again into the saloon hurriedly, very soon after the report of a gun had been heard, and said to the officer, "For God's sake, come up; a man has been shot!" This testimony was offered for the purpose of proving the condition of affairs on the deck, the extent and character of the disturbance, the condition and situation of the officers and soldiers on board, and the manner in which they discharged their duty prior to and at the time when the plaintiff received his injury, the time the disturbance continued, and the failure of the officers of the soldiers to repress the disorder, it being admitted that no

Argument against the admission.

other persons on board were directly charged with the care of preserving order among them.

The defendant objected to the testimony thus offered, but the court received it. As appeared from its opinion, which had been printed for the use of this court, the court below regarded the evidence admissible: "as indicating, first, the relation of the sergeant to his officer-not as a mere declaration, but as an act of subordination; second, as showing the alarm and fright of the sergeant and a state of mind indicating need of assistance; and, finally, because the whole transaction was a part of the res gesta, in such sense that the jury might properly be permitted to hear it." The connection of the whole testimony with the circumstances of the case, gave it, in the opinion of that court, "credit and significauce, not as the isolated act or statement of the sergeant, but as a narrative of occurrences in their connection with the principal events, receiving significance and inviting belief."

The jury having found $10,000 for the plaintiff, and judgment being given accordingly, the transportation company brought the case here; the admission of the evidence being the only error relied on.

Mr. J. Halsey, for the plaintiff in error:

The evidence was inadmissible for the purpose of proving the state of affairs on deck prior to and at the time the plaintiff received his injury; because,

1. As evidence of the truth of the words spoken, it was mere hearsay.

2. It was not spoken in the presence and hearing of any officer of the boat. It was res inter alios acta.

3. It was not addressed to any agent or officer of the defendants.

4. It was no part of the res gestæ.

5. The declarations were not admissible as part of the transaction. What is the transaction but a description of the person who said the words, and the person to whom they were addressed? The transaction in and of itself was

Syllabus.

nothing. Declarations of this sort having been allowed to go to the jury, and counsel to comment upon them as evidence of the condition of affairs on deck, the jury regarded it in the same way that it would have done the sworn evidence of an eye-witness; which certainly it was not.

Mr. R. H. Dana, contra.

Mr. Justice BRADLEY delivered the opinion of the court. It is hardly necessary for us to enter into a lengthy discussion on the admissibility of the testimony in question. The opinion of the Circuit Court, which has been laid before us, is sufficiently full on the subject, and need not be repeated. We have no hesitation in regarding the incident testified to as part of the res gesta, and as entirely competent for the purposes for which it was offered. The statements of the sergeant were not offered in evidence for the purpose of proving the facts stated by him, but the whole incident (including those statements) was adduced in evidence for the purpose of showing the manner in which the officers attended to their duty whilst the disturbance was going on, the fact that notice of its progress was communicated, the time that it continued, and the degree of alarm it was calcu lated to excite in such a person as the sergeant appeared to be. These were substantially the purposes for which the evidence was professedly offered, and for these purposes, as part of the res gesta, it was clearly competent.

Judgment affirmed.

YEAGER V. Farwell.

1. A., residing in St. Louis, and treating through B., of the same place, for a loan of money from C., in Boston, got a promise from C. of the money wanted, A.'s own note and a mortgage by him on real estate near St. Louis being contemplated and agreed on as the security to be given. C. relied wholly on B. to look after the sufficiency of the security (which he desired "first and foremost" should be ample) and after the preparation of the note and mortgage, all of which B. assumed to do. Having

.

Statement of the case.

had both note and mortgage executed by A, B. sent them to C. with a slight departure in the note from the agreement, and, in addition, a slight informality in the mortgage. No money being yet advanced by C. he returned both papers to B. in order to have the informality in the mortgage corrected, and, at the same time, requested B. to indorse the note, saying: "This will do you no harm, and will be an accommodation to me." B. did indorse the note. The mortgaged property having proved insufficient to pay the debt, B., on suit brought by C., was held liable as indorser.

2. On the last day of grace, B., in St. Louis, wrote to C., in Boston (which letter, of course, C. did not get until some days after the said last day of grace), saying that A. could not take up the note, expressing regret therefor, and adding that he, B., held himself "responsible for the payment of the note," and should see that "it was done at an early day." Held, that he was liable as indorser, although no demand of payment had been made of A., or notice given to him, B., and though, thus in point of fact, B. (except in so far as it may have been prevented by his letter) had been, as indorser, discharged.

3. When an indorser of a matured note, not knowing whether demand has or has not been made of the maker, writes to the holder, stating that the maker is unable to pay, expressing regret that this is so, and promising, himself, to pay the note, such indorser will be held to have waived proof of demand and notice, and will be held liable as indorser, although quite without reference to his letter, and before any receipt of it, no demand of payment was made or notice of dishonor given.

ERROR to the Circuit Court for the District of Missouri, the case being thus:

Yeager & Co., shippers of flour, in St. Louis, and intimately associated with one Kerckhoff, a miller of that place, who was then building a mill, and needing $15,000 to complete it, wrote to Farwell & Co., flour commission merchants and capitalists, of Boston, intimate correspondents of their own, telling them what Kerckhoff was doing; that he wanted $15,000; that he would give security by trust deed on a valuable farm near St. Louis; that the security was good, and urging them to lend him the amount, "for, say one or two years, or even one year, after which," says the letter, "we would make the advances ourselves." As an inducement for "coming to a favorable conclusion on their proposition," they request Farwell & Co. to bear in mind that they, Farwell & Co., will get, as flour commission merchants in Boston, a large share of the business of the new mill.

Statement of the case.

Farwell & Co. did not (so far as their real wishes were expressed in their letters) seem much disposed to lend the money; at least they wanted 13 per cent. interest. However, on some remonstrance at such a rate from Yeager & Co., who proposed 10 per cent., they couclude "to come as near the wishes of Yeager & Co. as they can," and to lend the money at 12 per cent., provided, "first and foremost," they can feel that the farm is good and ample security beyond a question, for which certainty they say that they rely on Yeager & Co. "The rate of interest," they add, “in itself is no object, for we can use our money to better advantage in Boston; but, desiring very much," they continue, "to accommodate you, and for the further consideration of getting a large share of the business of the new mill, we are willing to lend you the money on the above terms, but shall be very glad if you can obtain it more cheaply."

Yeager & Co. now directed a note for the $15,000 and a trust deed of the farm to be prepared, and both were executed and the deed put on record. For some reason the rate of interest on both was put at 10 per cent, instead of 12, the rate agreed on. There were also certain clerical errors in the deed of trust, showing some carelessness in the preparation of it. Farwell & Co., on receiving the papers, and not having themselves as yet advanced any part of the money (though Yeager & Co. had advanced about $4000 to Kerckhoff as on account of the $15,000), noted the departure from the rate of interest proposed, as also the clerical errors in the deed. They accordingly returned both papers to Yeager & Co., saying, in regard to the interest, that unless a new note should be made, the drafts on them by Kerckhoff must be for 2 per cent. less, and requesting, unconditionally, that one of the clerical errors, deemed by them more important, in the deed, should be rectified, remarking that they think it better to have it put right "in the beginning." In the letter inclosing the papers they add:

"And, too, we will thank your Mr. Yeager to indorse the notes in the name of your firm, or his individual name, as may