the establishment of a separate appellate court of last resort court at Jefferson City, and said court shall hear and determine all the cases for St. Louis county. The following provision establishing

the court and fixing its jurisdiction, was adopted in the convention by the decisive vote of forty-seven to five:

14. There is hereby established in the county of St. Louis, an appellate court, to be known as the "St. Louis Court of Appeals," the jurisdiction of which shall be co-extensive with the county of St. Louis. Said court shall have power to issue writs of habeas corpus, quo warranto, mandamus, certiorari, and other original remedial writs, to hear and determine same, and shall have a superintending control over all inferior courts of record in St. Louis county. Appeals shall lie from the decisions of said St. Louis Court of Appeals, to the supreme court, and writs of error may issue from the supreme court, to said court, in the following cases only: In all cases where the amount in dispute, exclusive of costs, exceeds the sum of two thousand five hundred dollars; in cases involving the construction of the constitution of the United States, or of this state; in cases where is drawn in question the validity of a treaty or statute of or authority exercised under the United States; in cases involving the construction of the revenue laws of this state, or the title to any office under this state; in cases involving title to real estate; in cases where a county or other political subdivision of the state, or any state officer is a party; and in all cases of felony.

The following provisions were also agreed to. We print them in full, because our readers may wish to refer to them hereafter :

thus transferred as other cases.

It will be observed that this measure entails no additional expense upon the people of the state at large; but that it is directly beneficial to them, since it will enable the Judges of the Supreme Court to devote more time to their litigation than they are now able to do. There seems, therefore, no reason to anticipate any general opposition to it.

Negligence

1. Bills and Notes-Maker's Signature Procured by Fraud of Maker-Rights of Bona Fide Holders.-Where it appears that the party sought to be charged intended to bind himself by some obligation in writing, and voluntarily signed his name to what he supposed to be the obligation he intended to execute, having full and unrestricted means of ascertaining for himself the true character of such instrument before signing it, but neglecting to avail himself of such means of information, and

relying on the representations of another as to the contents of the instrument, signed and

delivered a negotiable promissory note, instead of the instrument he intended to sign, he can not be heard to impeach its validity in the hands of a bona fide holder. Presumption-Admission.- It will be presumed, in the ab

15. The St. Louis Court of Appeals shall consist of three judges, to be elected by the qualified voters of St. Louis county, who shall hold their offices for the period of twelve years, and until their successors shall be duly qualified. They shall be residents of St. Louis county, shall possess the same qualifications as judges of the supreme court; and shall each receive the same compensation as is now, or may be, provided by law for the judges of the circuit court of St. Louis county, and be paid from the same sources. 16. The judges of said court shall be conservators of the peace through-sence of proof to the contrary, that the holder of negotiable paper received it for value, out the county of St. Louis; any two of said judges shall constitute a quo- before maturity, and in the regular course of business; but it is error to instruct the jury rum; there shall be two terms of said court, to be held each year on the first that such presumptions are admitted facts. Mondays of March and October, and the first term of said court shall be held on the first Monday of May, 1876.

17. The opinions of said court shall be in writing, and shall be filed in the cases in which they shall be respectively made, and become parts of their record, and all laws relating to the practice in the supreme court shall apply to this court, so far as the same may be applicable.

18. At the first general election held in St. Louis county in the year 1876, three judges of said court shall be elected, who shall determine by lat, the duration of their several terms of office, which shall be respectively four,

eight and twelve years, and certify the result to the secretary of state, and every four years thereafter one judge of said court shall be elected to hold office for the term of twelve years, and the term of office of said judges shall begin on the first Monday in January next ensuing their election. The judge having the oldest license to practice law in the state shall be the presiding judge of said court.

19. Upon the adoption of this constitution, the governor shall appoint three

judges for said court, who shall hold their offices until the first Monday of January, eighteen hundred and seventy-nine, and until their successors shall be duly qualified.

20. The clerk of the supreme court at St. Louis, shall be the clerk of the St. Louis court of appeals until the expiration of the term for which he was

2.

3.. Cases in Judgment.-O., supposing he was signing a receipt for plows, to be left with him on sale, signed and delivered a negotiable promissory note. The never delivered. Learning afterwards the true character of the plows were instrument, and that the payee was endeavoring to negotiate it, O. caused a notice to be published, warning the public against purchasing the note. Thereupon, E., the payee, complained to O. that he was doing him an injustice, saying that he had sold two of the plows and would endorse a credit of fifty dollars on the note. To this proposition O. assented, and the endorsement was made and O. signed the memorandum. Held, (1.) That as a matter of

law, the circumstances under which the note was signed constituted no defence to an ac

tion on it by a bona fide holder; and (2.) that the act of O. in assenting to and signing the endorsement on the note, after acquiring full notice of its true character, amounted to a ratification of the instrument.

Error to the Linn Circuit Court.

HOUGH, J., delivered the opinion of the court.

This was an action instituted by Shirts, before a justice of the peace against the defendant, Overjohn, as maker of a promissory note for $200, dated October 19, 1872, and payable twelve months after date, to the order of T. England. There was a Judgment for the plaintiff before the justice, and defendant appealed to the Linn County Common Pleas Court. At the trial in the common appointed clerk of the supreme court, and until his successor shall be duly pleas court, the note was read in evidence without objection, toqualified. gether with an endorsement and guarantee in blank by T. Engthe time of the adoption of the constitution, which by the terms of this consti- land, and also the following endorsement: "Credit fifty dollars on Oct. 28, 1872. H. Overjohn."

21. All cases which may be pending in the supreme court at St. Louis, at

tution would come within the final appellate jurisdiction of the St. Louis court
of appeals, shall by the supreme court be certified and transferred to the St.
Louis court of appeals, to be heard and determined by said court.
22. All cases coming to said court by appeal or writ of error, shall be triable
at the expiration of fifteen days from the filing of the transcript in the office of

the clerk of the said court.

23. Upon the adoption of this constitution, the office of the clerk of the su

preme court at St. Louis and St. Joseph shall be vacated, and said clerks shall transmit to the clerk of the supreme court at Jefferson City all books, records, documents, transcripts and papers belonging to their respective offices, except those required by section 21 of this article to be turned over to the St. Louis Appellate Court, and said records, documents, transcripts, and papers shal become part of the records, documents, transcripts, and papers of said supreme

The defendant, Overjohn, testified as follows: "At the time I made the note sued on, the payee in said note came to me, and wanted me to act as agent for the sale of his plows. England, the payee, was to let me have three plows, but only left one, which was left as a sample to show to farmers, not to sell. At the time I signed the note sued on, I supposed I was giving a receipt for the plows, I never received the plows he promised to send nor anything else. There was no consideration of any kind for the note, which I thought and understood to be a receipt only."

On cross-examination the defendant said that England wrote the note, and he signed it. He afterwards learned that England was

trying to sell the note, and he published a notice in the Brookfield Gazette, warning the public not to purchase it. The day after the advertisement, England called on him feeling badly about the advertisement, and said that he had sold two of the plows; and that he would give him, defendant, credit on the note for fifty dollars.

England then wrote the credit of fifty dollars on the back of the note and defendant signed it. The editor of the Ga zette testified that after a single insertion, the defendant withdrew the advertisement, and according to his best impression, said to him at the time, it was all right.

Plaintiff then offered his own and other testimony to show that he was a bona fide holder for value, and before maturity of the note sued on, which testimony was objected to by the defendant, and excluded by the court, and plaintiff excepted.

The plaintiff asked the following instructions:

1. The jury are instructed that it stands admitted that the plaintiff in this suit, purchased said note before it came due, for a valuable consideration, and without notice of any fraud between defendant and said England.

2. The jury are instructed that fraud can not be presumed, but that it must be proven, and although the jury may believe from the evidence, that the defendant did not know at the time he signed said note, that it was a note, yet if they believe from the evidence that the defendant placed his name on the back of the note, after he was aware that it was a note, and recognized it as a note, then they will find for the plaintiff.

3. It stands admitted that defendant signed his name on the back of the note in controversy, after he found out that it was

a note.

The court refused to give the first instruction as asked, but gave all of it except that portion in italics, and gave the second instruction and refused the third; to which action of the court in refusing to give the third and the latter portion of the first instruction, plaintiff at the time excepted.

the plaintiff. But another, and as we think, a very grave error, was committed in directing the jury in this instruction, to find for the defendant, if they believe from the evidence that he did not fully understand the character of the instrument signed by him, and thought it to be a receipt and not a note, omitting all reference to the testimony of the defendant himself as to the circumstances under which he signed the note, which was all the testimony there was on that subject, and from which it plainly appears that the mistake of signing a note instead of a receipt, resulted solely from his own negligence and carelessness, without any constraint, artifice or fraud whatever on the part of England. Indeed, on the defendant's own testimony, the plaintiff was entitled to a verdict as a matter of law. The facts testified to by him constituted no defence to the plaintiff's action.

It would be exceedingly difficult to lay down with accuracy a general rule which would be applicable to all cases of this character which might arise; but the result of the best considered cases on this subject may be generally stated to be, that where it appears that the party sought to be charged, intended to bind himself by some obligation in writing, and voluntarily signed his name to what he supposed to be the obligation he intended to execute, having full and unrestricted means of ascertaining for himself the true character of such instrument before signing the same, but by his failure to inform himself of its contents, or by relying upon the representations of another, as to the contents of the instrument presented for his signature, signed and delivered a negotiable note in lieu of the instrument intended to be signed, he can not be heard to impeach its validity in the hands of a bona fide holder.

In the case of Foster v. Mackinnon, Law Reports, 4 C. P. 704, decided in 1869, Byles, J., delivering the opinion of the court, affirmed the charge of the chief justice at the assizes, in which he had directed the jury, that if the endorsement of the defendant of the bill of exchange sued on was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it At the instance of the defendant, the court gave the following without knowing that it was a bill, and under the belief that it instruction: "That if the jury believe from the evidence, that was a guarantee, and if the defendant was not guilty of any negOverjohn when he signed the note sued on, did not fully under-ligence in so signing the paper, he was not liable as endorser to a stand its character, but thought and understood it to be a receipt for plows, for the sale of which he was to act as agent and to account to England for them, they are bound to find for defendant." To the giving of which instruction plaintiff at the time excepted. There was a verdict and judgment for the defendant, and plaintiff brings the case here by writ of error.

There were no pleadings in this case, and as there was no testimony of the defendant as to the purchase by plaintiff of the note sued on before maturity for value, and without any notice of any fraud on the part of England, the court committed no error in refusing the first instruction as asked by the plaintiff. The prima facie presumption of law, that every holder of any negotiable paper is the owner of it; that he took it for value, before dishonor and in the regular course of business, would not have warranted the court in instructing the jury that such presumptions were admitted facts.

The third instruction asked by plaintiff should have been given. It clearly appears from the testimony of the defendant, that after he ascertained that he had signed a note to England, instead of a receipt, and England proposed to allow a credit of fifty dollars upon it; that such credit was endorsed upon the note, and was accepted and signed by defendant. This testimony of the defendant constituted an admission as fully as if it had been embodied in an answer. The instruction given by the court on behalf of the defendant is seriously objectionable. It directed the jury to find for the defendant, notwithstanding the fact that he freely acquiesced in and ratified the execution of the note, with full knowledge of his mistake and before England had negotiated it; besides it is directly in conflict with the second instruction given for

bona fide holder.

In the case of Whitney v. Snyder, 2 Lansing, 477, decided by the Supreme Court of New York in 1870, the action was against the defendant as maker of a promissory note, the plaintiff being a bona fide holder for value, before maturity. The defendant had offered to prove in defence, that he was unable to read, and that when he signed the note, it was represented to him, and he believed, that it was a certain other contract, offered to be also produced in evidence and which purported to be a contract inter partes of an entirely different character. The testimony was rejected, and the supreme court held that it should have been received, on the authority of the case of Foster v. Mackinnon, approving both branches of the rule; as stated in that case, and say, that it was in its circumstances, quite similar to the case at bar, except that the present is a somewhat stronger case for the defendant on the question of negligence. The case of Gibbs v. Linabury, 22 Mich. 479, approves the foregoing cases.

In the case of Chapman v. Rose, 56 N. Y. 137, decided by the court of appeals in 1874,* it appears that the defendant entered into a contract with one Miller to act as agent for the sale of a patent hay-fork and pulley. A contract was filled out by Miller, and signed by both; also an order which was signed by the defendant for one of the hay-forks and two pulleys, for which, by the order, defendant agreed to pay nine dollars. These were delivered to the defendant. Another paper was then presented to the defendant for his signature, which Miller represented to be but a duplicate of the order. Defendant, without reading or examining it, signed and delivered it to Miller; the paper so signed was a promissory *S. C., I CENT, L. J., 242,

note for $270, and was the note in suit. The plaintiff purchased in good faith before maturity. The judge charged the jury that if the paper sued upon was never delivered as a note, the plaintiff must fail in the action; and that, even if it was delivered, and the plaintiff neglected to make proper enquiry as to its origin, he was not a bone fide holder, and could not recover. Johnson, J., in delivering the opinion of the whole court, says: "There does not appear to have been any physical obstacle to the defendant's reading the paper before he signed it. He understood that he was signing a paper by which he was about to incur an obligation of some sort, and he abstained from reading it. He had the power to know with certainty the exact obligation he was assuming, and chose to trust the integrity of the person with whom he was deal ing, instead of exercising his own power to protect himself. It turns out that he signed a promissory note, and that it is now in the hands of a holder in good faith for value. The question which arises on the branch of the charge now under consideration is, whether it is enough, as against a bona fide holder, to show that he did not know or suppose that he was signing a note, unless it also appears that he was guilty of no laches or negligence in signing the instrument. To that enquiry, the attention of the judge, at the trial, was distinctly called; and the instruction which he gave, and which was excepted to, did not submit, but excluded the consideration of it from the jury. It is quite plain that if the law is, that no such enquiry is admissible, a serious blow will have fallen upon the negotiability of paper. It will be a premium offered to negligence. To insure irresponsibility, only the utmost carelessness, coupled with a little friendly fraud, will be essential. Paper in abundance will be found afloat, the makers of which will have no idea they were signing notes, and will have trusted readily to the assurance of whoever procured it, that it created no obligation. To avoid such evils it is necessary at least to hold firmly to the doctrine that he who, by his carelessness or undue confidence, has enabled another to obtain the money of an innocent person, shall answer the loss." The cases of Foster v. Mackinnon, and Whitney v. Snyder, supra, and Putnam v. Sullivan, 4 Mass. 45, and Douglass v. Matting, 29 Iowa, 498, decided in 1870, are cited in support of the foregoing observations; and the charge of the judge presiding at the trial, was accordingly held to be erroneous, In the reasoning of that opinion and the conclusion reached, we entirely concur.

approval of the bar of this state. They did not accept as final the three preceeding cases on the same subject. The conviction was strong that these cases would not stand the test of a careful consideration, and that when the court should give them a critical examination they would be so modified as to conform to the rule adopted in the other states and in England. We think the rule as stated in the principal case is recognized as the correct one on the subject by all the courts of last resort in the United States that have passed on it. But while the rule is uniform, the application of it gives rise to an apparent conflict of authority.

One reason for the want of uniformity in the application of the rule arises probably from the fact that the leading cases in this country were decided about the same time, and without reference to each other; and it is not a little singular that all the cases on the subject under consideration have been decided within the last seven years. The integrity of commercial paper seems to be subject to periodical attacks from unlooked-for sources, very much as the crops are every now and then threatened with destruction from some newly developed insect or parasite. The timely decision in the principal case, nips in the bud-or, more strictly speaking, in the blossom-one impending peril.

As the authorities are not numerous, a hasty review of them may not be uninstructive.

Foster v. Mackinnon, L. R., 4 C. P. 704, is the leading case under this head in point of time, having been decided in July, 1869; but Douglass v.

Matting, 29 Iowa, 498, and Taylor v. Atchison, 54 Ill. 195, were decided in June, 1870, and apparently without any knowledge of the English decision. The next case was that of Whitney v. Snyder, 2 Lans. 447, decided in September of the same year, on the authority of Foster v. Mackinnon, and it seems without notice of the Iowa and Illinois decisions. Gibbs v. Linabury, 22 Mich. 479, was decided in April, 1871, upon the authority of Foster v.

Mackinnon and Whitney v. Snyder, without reference to Douglas v. Matting, or Taylor v. Atchison; and the same may be said of Walker v. Egbert, 29 Wis. 194, decided in June, 1871.

In our opinion Douglas v. Matting deserves to rank first as a leading case on this subject, on account of its clear and compact statement of the rule and the reasons upon which it is founded. In that case it was held that one who is induced to sign and deliver a promissory note through the false and fraudulent representations of the payee, in whom he had no right to place special confidence, believing it to be a contract in relation to services, is liable thereon to a bona fide holder who takes it before maturity; and it was further held, as a matter of law, that it was gross negligence for a party dealing with a stranger to sign an instrument creating some obligation, without reading it, or attempting to ascertain its true contents And this seems to be the only safe rule. Any relaxation of the rule would impair the value of commercial paper; and would add greatly to the convenience of "a little friendly fraud," to the manifest injury of innocent parties who have been guilty of no want of care or caution. It is certainly more just that he who recklessly and carelessly signs his name to an instrument, the true character of which is unknown to him, should suffer the loss consequent thereto, if any, rather than an innocent purchaser, for value, who takes it in the regular course of business. There would be no safety in purchasing commercial paper if it was required that the purchaser should first ascertain, at his peril, the degree of care exercised by the maker in its execution.

Taylor v. Atchison, sura, entitled to very little weight. The case was poorly considered; no authorities are referred to, and, in fact, it is difficult to determine just what the court did hold. The defendant was induced to sign the note by the fraudulent representations of the payee that it was a contract. Two papers of about the same size and appearance were signed. One of these papers was used by the payee of the note, at the request of the maker who could read, but not very well. A third party, in no way connected with the transaction, was present when the note was signed, and was a witness for

In the cases of Briggs v. Ewart, 51 Mo. 245, and Martin v. Smylee, 55 Mo. 577, which were similar to the case at bar, the instructions which were brought under review, and which received the approval of this court, declared the law to be, that a person signing a promissory note could not be held liable as maker, by a bona fide holder, if his signature was obtained without his fault or negligence, on the fraudulent representations of the payee that the paper offered for signature was not a note, and that the party sought to be charged, did not know it was a note and did not intend to sign a note. Some observations, however, of the judge who delivered the opinion of the court in the case of Briggs v. Ewart seem to reject the qualification of negligence, and to announce the broad doctrine, that to be binding, the instrument must be executed as, and for the paper it purports to be, and if the party to be charged did not intend to make a promissory note, he can not be held bound even in favor of a bona fide holder for value. These observations and the subsequent case of Corby v. Weddle, 57 Mo. 452, in so far as it is based upon them, are disapproved. We consider the rejection of the testimony offered by the defen-able and ordinary precaution to avoid imposition, when the suit is by an endant, an immaterial matter, as we do not think the defence made devolved upon the plaintiff the duty of showing by positive testimony that he was a bona fide holder for value before maturity. The judgment will be reversed and the cause remanded. All the Judges concur except Judge Vories, who concurs in the result. JUDGMENT REversed.

NOTE. The foregoing opinion will, we think, meet with the unqualified

the defendant on the trial. It does not appear that he was unable to read, or that he was requested to read the instruments signed. The court conceded that at common law the defendant would have been liable, but placed its decision on the ground that a local statute of that state authorized the defence. It then added: "It is, however, necessary that a person executing such an instrument, which is procured by fraud or circumvention, should use reason

dorsee before maturity. If able to read readily, he should examine the instrument, or procure it to be read by some one in whom he can place confidence. If he is unable to read readily, or does so with difficulty, then he may avail himself of the usual means of information by having it read by some person present. He can not act recklessly, and disregard all the usual precautions, to learn the contents of the instrument, and then interpose the defence against an assignee. The court then held, as a matter of law, that the defendant used ordinary precaution. And the court further held that the endorsee of the note was guilty of negligence in purchasing it of a stranger

Controversy, sometimes of an embittered character, existed in Subsequent attempt was made by Congress to furnish a remedy the courts of the parent country respecting the jurisdiction of the for the difficulty, which was by no means satisfactory, and expedadmiralty court for a century before the American colonies separ-ients to obviate the embarrassment were also attempted by the ated from that country and proclaimed their indpendence. Differences of opinion also have existed here as to the proper extent of that jurisdiction ever since the adoption of the federal constitution, as evidenced by the decisions of the supreme court at different periods in our judicial history.

proved to be insufficient to restrain the advance of admiralty jur-commerce and navigation, are of admiralty cognizance and propisdiction or to prevent it from entering even into the acknowledged erly cognizable in the district courts. The Belfast, 7 Wall. 637 limits of states having tide-waters within their borders, and it was again destined to a still greater defeat when it was invoked as the means of perpetuating the great error that the admiralty jurisdiction did not extend to the great lakes and fresh water rivers of our country.

Public duty required the court to review the former case, and the great magistrate presiding over the court did not hesitate to reverse the rule of decision there established, and to determine to the effect that the admiralty jurisdiction is not limited to tide-restriction, did not hesitate to decide that the act of Congress in waters, and that it extended to all public lakes and rivers used for the purpose of commerce and navigation between the states or for foreign trade. The Genesee Chief, 12 How. 454.