The plaintiff, in rebuttal, denied that he had any knowledge of the agreement between Cozens and Fulmor, as to the use of the note at the time he accepted it. You that of Fulmor, who also testified that Middleton | when the note was given, really existed. If the was informed at the time he accepted the note contemplated settlement with E. P. Allis & Co., that the same had been indorsed by defendant was simply the occasion of giving the note, and solely for the purpose above stated. He also tes- when the note was given its use was not retified that the note had been received by Middle-stricted to that purpose alone, then Mr. Fulmor ton in place of a former note made by witness, received the note primarily for that purpose, but which was overdue. Defendant testified that without restriction as to its use for another. Middleton had admitted to him that he had been You must be satisfied that this alleged agreement fully informed by Cozens at the time the note was not an afterthought, and in the consideration was handed to him of the fact that the indorser of that question you will recall the testimony in had intended it to be used only as above. relation to the conduct of the parties. It was the duty of Fulmor, according to that agreement, if it existed, to have returned the note to Cozens when the contemplated settlement with E. P. Allis & Co. failed. It was not returned. will take into consideration what passed when Mr. Middleton called upon Mr. Cozens to arrange (4) If the jury find that the defendant loaned for the payment of that note. Upon this subthe note in suit to Fulmor for the specific purpose ject the testimony varies. Mr. Middleton swears to use it in settlement of E. P. Allis & Co.'s that Mr. Cozens said that he had been at exclaim, and for no other purpose, then when that pense lately in erecting certain buildings, and purpose failed, it was dead in law and belonged that he was short of money, and gave that as an absolutely to the defendant, and any subsequent excuse for not paying anything upon the note. use by Fulmor of said note, without the knowl- Mr. Cozens swears on the contrary, that he reedge and consent and concurrence of the defend-minded Mr. Middleton of the circumstances unant, was a fraud upon the rights of the defendant. der which the note was originally given, not by Answer. This is true, if the jury find that detailing the circumstances, but by making an when the defendant gave the note to Fulmor it allusion to the terms upon which the note had was expressly restricted to the settlement with been given, and swears that Mr. Middleton reE. P. Allis & Co. Exception. (First assign-plied that he knew of that fact. Upon this point ment of error.) The defendant requested the Court' to charge, inter alia, as follows: (5) If the jury find that Fulmor used the note in suit in clear disregard of his promise to Cozens, and passed it to the plaintiff as security for a debt which he already owed the plaintiff, and told him to have it discounted and use the proceeds, and he would take it up when due, the plaintiff is not a bona fide purchaser for value, and he cannot recover from the defendant. Answer. This is true, if the jury also find, as before stated, that the note was not given to be used by Fulmor at his discretion, but solely for the purpose of settlement with E. P. Allis & Co. But if, after the settlement with E. P. Allis & Co. failed, the note was left in Fulmor's possession, to be used by him for general purposes, the defendant would be bound. Exception. (Second assignment of error.) The Court charged the jury that it was for them to determine whether or not it was true that defendant had indorsed the note with the understanding that it was to be used only in the settlement with E. P. Allis & Co., and also whether plaintiff had any knowledge at the time he accepted the note of the agreement as to the restricted use of it. In the charge, the Court said, inter alia, as follows: "The vital question in this case, as I view it, is the question whether the contract which is alleged between Fulmor and Cozens it is important to consider when this knowledge came to Mr. Middleton, because if it came to him after his acceptance of the note, it would make no difference so far as the notice is concerned; but I call your attention to these circumstances in order that you may scrutinize, by the light of all the facts in the case, whether or not there was an original agreement when the note was given, restricting Fulmor to the use of the note solely for the purpose of settling with E. P. Allis & Co." Exception. (Third assignment of error.) Although Fulmor took the note subject to the equities between Cozens and himself, Middleton could recover, provided the note was not given with the express understanding that it was to be used for a specific purpose." Exception. (Sixth assignment of error.) 66 After dwelling upon the facts relative to the transfer of the note from Fulmor to the plaintiff, continued: "Now the presumption of law is, in the absence of other evidence, that when a creditor under such circumstances receives a security, that he receives it as collateral to the antecedent debt, and therefore, unless evidence can be found in this case that Middleton agreed to take this note in satisfaction of his claim, it is but a collateral in his hands; and if it be a collateral in his hands, then, supposing it to have been given by Fulmor to Middleton in fraud of Cozens, in consequence of the special purpose for Verdict and judgment for the plaintiff. Defendant thereupon took this writ assigning for error, inter alia, the answers to his points and the portions of the charge of the Court above cited. which it was given, then Cozens can defend | Bank of the Republic, 106 Pa. 170, and cases against this action, provided he has shown to there cited.) The doctrine of these and other your satisfaction that the agreement as to the cases is, that an accommodation indorser of special use to which the note was to be restricted, negotiable paper pledged by the maker for an existed at the time the note was given between antecedent debt cannot defend on the ground that him and Fulmor." Exception. (Seventh assign- his indorsement was without consideration, bement of error.) cause that would defeat the purpose for which he loaned his credit; but he may successfully defend by proving to the satisfaction of the jury that his indorsement was fraudulently procured, or that instead of being a general and unrestricted loan of credit, the indorsement was made for a specific purpose, and that without his knowledge or consent the note was fraudulently used for another and entirely different purpose and the like; but as against a bona fide holder for value, without notice, no such defence is available. In Lord v. Ocean Bank, supra, which was the case of an accommodation maker, it is said: "He who chooses to put himself in the front of a negotiable instrument, for the benefit of his friend, must abide the consequence, and has no more right to complain if his friend accommodates himself by pledging it for an old debt than if he had used it any other way." N. H. Larzelere and Franklin March, for the plaintiff in error. As the plaintiff held the note as collateral security only, he was not in the position of a holder for value and could not claim as such. Appeal of Liggett Spring Co., 1 Amer. 291. Hunter v. Moul, 2 Id. 13. Kirkpatrick v. Murhead, 4 H. 117. Welmaharding v. Lenheim, 5 Smith, 73. A fraudulent use having been made of the note, it was clearly competent to defend on that ground. Edwards on Bills, Vol. 1, 320. Dennisten v. Bocou, 10 Johns. R. 198. An accommodation indorsement is, prima facie, a loan of the indorser's credit without restriction, but it may be shown to have been otherwise un The authorities are very clear in defendant's derstood by the parties. In this case defendant favor. Moore v. Rider, N. Y. 441. below denied that the indorsement in question Roye v. Keystone Nat. Bk., 4 WEEKLY NOTES, 359. was an unrestricted loan of his credit, and under Sitgreaves v. Bank, 13 Wright, 359. Carpenter v. Bank, 15 WEEKLY NOTES, 523. Charles Hunsicker, for defendant in error. Parol evidence was not admissible to vary the terms of the note. Philips . Meily, 15 WEEKLY NOTES, 228; S. C., 16 Id. 429. February 13, 1888. THE COURT. The note in suit after being indorsed by the payee, defendant below, was returned to the maker, who afterwards and before maturity transferred it to plaintiff below for an antecedent debt, but whether in payment thereof or merely as collateral security was a disputed question. In taking the note directly from the maker with the words, "credit the drawer," written on the lower left corner, and signed by the payee, plaintiff below is presumed to have known it was an accommodation indorsement, and therefore without consideration as between the maker and payee; but that fact without more would be no defence. (Appleton v. Donaldson, 3 Pa. 381; Lord v. Ocean Bank, 20 Id. 384; Twining v. Hunt, 7 WEEKLY NOTES, 223; Carpenter v. took to prove by his own testimony and that of the maker that the note was indorsed for the specific purpose of being used by the latter in the settlement of a certain claim, and for no other purpose whatever; that after it ceased to be available for that purpose, the maker wrongfully and without defendant's knowledge and consent transferred it to plaintiff below as collateral security for an antecedent debt, etc. In view of this evidence, the Court was requested to charge: "If the jury find that the defendant loaned the note in suit to Fulmor for the specific purpose to use it in settlement of E. P. Allis & Co.'s claim, and for no other purpose, then when that purpose failed it was dead in law and belonged absolutely to defendant, and any subsequent use by Fulmor of said note without the knowledge, consent, and concurrence of the defendant, was a fraud upon the rights of the defendant." The answer of the learned Judge was as follows: "This is true, if the jury find that when the defendant gave the note to Fulmor it was expressly restricted to the settlement with E. P. Allis & Co." It is contended that this answer, with the exception of the first three words, is erroneous; but we are unable to see wherein it is so. It is a mistake to call it a qualification of the affirmance or to claim that it was prejudicial to defendant below. The legal conclusion, stated in the point, necessa Error to the Common Pleas No. 3, of Philadelphia County. rily depended on the facts the jury was asked to note delivered up to him, but had left it in possession find, and it was certainly not improper, in affirm- of the parties for whose accommodation it was made, ing the point, to call their attention to the princi- he could not set up the above facts as a defence. pal question of fact upon which it was necessary for them to pass. That question, as well as others presented by the evidence, was exclusively Assumpsit, by the United States Trust Comfor their consideration and determination under all the evidence in the case, including the repany, of New York, against William R. Hart, butting testimony offered for the purpose of show-upon two promissory notes of the defendant drawn to the order of Martin Kalbfleisch's Sons, and by them indorsed. ing a different state of facts. If the jury made a mistake in not finding according to the weight of the evidence before them, the error is one which we are powerless to correct. The only remedy was an appeal to the discretionary power of the Court to set aside the verdict and order a new trial. The Court refused to exercise that discretion, presumably for the reason that, on all the questions of fact involved in the case, the verdict was fully warranted by the evidence. The first specification of error is not sustained. The second specification is not according to rule, but, waiving that, the answer to the point referred to was entirely proper. The defendant filed an affidavit of defence as follows: "The notes of which copies have been filed are notes signed by the deponent for the accommodation of the payees, Martin Kalbfleisch's Sons, and by him delivered to them without receiving any consideration therefor; the said Martin Kalbfleisch's Sons suspended payment early in August, 1886, and at that time, as this deponent is informed, had in their possession the notes in suit which they then promised this deThat thereafter this deponent is informed the said ponent not to use, but to return to this deponent. payees caused these notes to be deposited with this deponent is informed that the plaintiff gave the plaintiff as collateral for an antecedent debt, but no value and allowed nothing upon the notes in suit, and therefore this deponent avers that the plaintiff is not a holder of the notes in suit for a valuable consideration." What was said by the learned Judge in those portions of his charge which constitute the third, sixth, and seventh specifications, respectively, was clearly warranted by the evidence. Special reference has already been made to the questions of fact upon which defendant below mainly relied; but there were others upon which it might become necessary for the jury to pass in making for want of a sufficient affidavit of defence. The Court made absolute a rule for judgment up their verdict. Those questions were all pro- Whereupon the defendant took this writ, assignperly presented and fairly submitted to the jury.ing for error the action of the Court as above. The fourth and fifth specifications are not according to rule, and therefore not entitled to further notice. There appears to be no error in the record. Judgment affirmed. Opinion by STERRETT, J. TRUNKEY and CLARK, JJ., [See next case.] July '87, 18. absent. L. L., Jr. January 11, 1888. Hart v. The United States Trust Company, of New York. Samuel Dickson (Richard C. Dale with him), for the plaintiff in error. Where a party for whose accommodation a note is made, uses the same in fraud of an agreement with the maker, the latter may defend as against a holder as collateral security for an antecedent debt. Carpenter v. Bank of Republic, 10 Out. 170. Royer v. Keystone Bank, 2 Norris, 248. Maynard v. Sixth Nat. Bk, 2 Out. 250. William S. Divine and Samuel B. Huey, for defendant in error. The well-settled rule of law, as appears from a long and uniform line of adjudications in this State, is that the indorsee of accommodation Promissory note-Accommodation makers-In- paper pledged for an antecedent debt, may recover against the maker, and that the maker cansolvency Holder for collateral — Defence not set up want of consideration as a defence. Practice. The holders of a note made solely for their accommodation became insolvent before negotiating the same and thereupon promised the maker not to use the note, but to return it. They failed to keep this promise, but subsequently indorsed the note over, before maturity, to a party as collateral ́security for an antecedent debt. In an action by the holder, who had no knowledge of the foregoing promise, against the maker, the circumstances above detailed were set up as a defence: Held, that as the maker had reglected to have the Appleton v. Donaldson, 3 Barr, 381. Schaeffer v. Fowler, 1 Amerman, 451, 459. February 13, 1888. THE COURT. This action was brought to recover the amount of two promissory notes. They were given by Hart | holding that the insolvency of the payee happenpayable to the order of Martin Kalbfleisch's Sons, ing between the procurement and the negotiation and indorsed by them to the Trust Co. The of an accommodation note, gives the maker the affidavit of defence set out the following facts: right to have his note retired; and that the 1st. That the notes were without consideration, having been made for the accommodation of the payees. 2d. That before their negotiation the payees becoming insolvent suspended payment. 3d. After such suspension the payees promised Hart not to use, but to return the notes. 4th. Notwithstanding such promise the payees did not return them, but turned them over to the Trust Company as collateral security for an antecedent debt. The Court below entered judgment against the defendant for want of a sufficient affidavit of defence, and this ruling is here assigned for error. The general rule as to the liability of the maker of an accommodation note was laid down with clearness in Lord v. The Ocean Bank (20 Pa. 384). It was there said that "he who chooses to put himself in the front of a negotiable instrument, for the benefit of his friend, must abide the consequences, and has no more right to complain if his friend accommodate himself by pledging it for an old debt than if he used it in any other way." Proof, therefore, that the bill or note sued on was given as an accommodation will not put the holder on proof of the consideration paid. The legal presumption is that he is a holder for value. This presumption is rebutted by proof that the bill was negotiated after its maturity, and the maker is let into any defence that he might make against the payee. (Bower v. Hastings, 36 Pa. 285; Hoffman v. Foster, 43 Pa. 137.) So where the note was procured by fraud the holder is affected by the fraud unless he shows himself to be a holder for value, before maturity, and without notice. So if one not a party to the bill or note is intrusted with it indorsed in blank, for the purpose of getting it discounted for the benefit of the maker and payee, and fraudulently appropriates it to his own use by pledging it as security for an existing debt, the maker may set up the want of consideration and the fraudulent diversion of the note as a defence against the holder. (Royer v. Keystone Bank, 83 Pa. 248.) Where the note was given as a memorandum, and not for negotiation, but the payee fraudulently pledged it as collateral security for an antecedent debt, it was held that the holder not being a purchaser for value could not recover. (Carpenter v. National Bank, 106 Pa. 170.) These exceptions rest on the proposition that fraud in the procurement, or misappropriation, of the note as against one not a purchaser for value, is a defence. We are now asked to take one more step in the way of impairing the commercial value of accommodation paper, by promise of the payee to deliver it up to him makes the subsequent negotiation of it a fraud on the maker, which he can set up' against the holder who has taken it as security for an existing debt of the payee. But one who lends his credit, like one who lends his money, takes the risk of the continuing solvency of the borrower. If insolvency happens it is not easy to see how the lender of his credit is placed in a worse position where it happens before than where it happens after the negotiation of the note. If it be conceded, as perhaps it should be, that where the insolvency happens before the note is negotiated the maker has the right to recall his loan of credit, yet such right like the vendor's right of stoppage of goods sold while in transit must be effectually exercised or it is lost. A request that the note be returned is not enough, nor is the promise of the payee that it will be. It must be taken up. So long as it is left in the hands of the payee it must be presumed in favor of one having no notice to the contrary that it is left on the same terms on which it was originally given, and his power to use it continues. The duty of the maker in such cases is stated by Chitty in his work on Bills at page 457 in these words: "Upon payment or satisfaction of a bill or note, the party making such payment should take care that the instrument be delivered up to him or his payment indorsed thereon, or he may be liable in an action by a third party, who has hecome the holder of the note before it became due." On page 458 of the same work an illustration is given in which it was held that not taking up an accommodation bill which A. had given to B., and which B. had pledged to C. for the payment of certain acceptances, but permitting them to remain in C.'s hands after the acceptances were paid, raised a presumption that A. had left his acceptance as security for advances subsequently made by C. to B. In the case now before us Hart lent his note to Kalbfleisch's Sons for their accommodation. Whatever conversation he may have had with them after their failure, he did not take back his note but left it in their possession. They made use of it before its maturity to secure an antecedent debt and perhaps saved themselves thereby from legal proceedings at the instance of the creditor. The Trust Company appear to have taken it without notice of the alleged agreement, in the ordinary course of business, before maturity, as security for an antecedent debt and we can see no reason why they should not be permitted to collect it. It is better not to extend the exceptions to, or go further in the impairment of the such determination of this lease by notice as aforesaid or otherwise, nor any recovery in ejectment upon any such judgment by confession, shall operate to relieve the lessee from liability in damages for the breach of any covenant herein contained." negotiability of accommodation paper. A note of Court to the contrary notwithstanding. But no fairly obtained and properly used cannot be defeated in the hands of the holder, because the payee had promised to deliver it up, but had not done so, and that is the substance of the defence set up in this case. If the maker had the right to recall it when the payee became insolvent, he did not do so, and he cannot ask us to do after the negotiation of the note what he should have done, but failed to do, while it was in the hands of the payee. Judgment affirmed. Opinion by WILLIAMS, J. TRUNKEY, J., absent. [See preceding case.] July '87, 109. L. L., Jr. January 13, 1888. Limbert's Appeal. Appeal from judgment in amicable action of ejectment Act of April 4, 1877— Words "warrant of attorney or judgment note” seem to apply only to money judgments. The judgment confessed in an amicable action of ejectment is not within the Act of April 4, 1877, P. L. 53, allowing an appeal to the Supreme Court, where the record does not show that the attorney in entering it was acting by virtue of a warrant of attorney. Under the law of this State the authority of an attorney to confess judgment need not be in writing. Whether the Act of April 4, 1877, P. L. 53, was intended to apply to any judgments other than money judgments, not decided. Appeal from the Common Pleas No. 1, of Philadelphia County. This was an amicable action of ejectment between Joseph L. Jones, guardian, and Harry A. Limbert, assignee of Mahlon Schoch. The lease from plaintiff to defendant's assignor contained the following provision: "And when the lease shall be so determined by condition broken and notice as aforesaid, and also when and as soon as the term hereby created shall have expired by its own limitation, it shall be lawful for any attorney of any Court of this county to appear for the lessee in an action of ejectment to be therein brought Defendant refused to vacate, after notice, at the end of the term. A copy of the lease and the plaintiff's affidavit was filed, judgment entered, and hab. fa. erit. Defendant took a rule to open the judgment, proceedings to stay, etc. This rule the Court discharged, at the same time ordering proceedings to stay for twenty days to allow time for the defendant to perfect an appeal. This order the Court subsequently, following Times Publishing Co. v. Siebrecht (11 WEEKLY NOTES, 339), struck off. Defendant took this appeal, assigning for error the refusal of the Court to open the judgment and submit certain questions of fact to a jury, and its action in striking off the order which made the appeal a supersedeas. Jourdan W. Roper, for appellant. The February 13, 1888. THE COURT. We are of opinion that no appeal lies in this case. Act of April 4, 1877, gives the right of appeal only where the judgment "has been entered by virtue of a warrant of attorney or on judgment note." The judgment in this case was confessed in an amicable action of ejectment. It was done by an attorney it is true, but there is nothing on the record to show that it was by virtue of a warrant of attorney. Flanigan v. The City (51 Pa. 491), was also a judgment confessed in an amicable action of ejectment brought upon a lease, and it was said by AGNEW, J., that "it nowhere appears in this record that the confession of judgment by the attorney of the defendant was in pursuance of a warrant of attorney. The amicable action and confession of judgment is according to ancient and established practice, existing before the Act of 1806, as well as since, and recognized in Cook v. Gilbert (8 S. & R. 567), and McCalmont v. Peters (13 Id. 196). It has never been understood to be the law of this State that the authority of an attorney must be in writing to enable him to confess a judgment.' The use of the words "warrant of attorney or judgment note" in the Act of 1877, makes it doubtful at least whether the provisions of said Act were intended to apply to any but money by the lessor for the recovery of the demised premises and therein confess judgment by non sum informatus, nil dicit or otherwise, without stay of execution by entry of bail or otherwise, and with waiver and release of all errors in the said judgment or any process and proceedings thereon: Provided, That the lessor shall first cause to be filed in such action an affidavit made by himself, judgments. But we are not required to decide or some one on his behalf, setting forth the facts neces- this now. This appeal must be quashed for the sary to authorize the entry of such judgment according reasons above given. We do it with the less shall be evidence, and if a true copy of this lease shall regret from the fact that the case is without be annexed to such affidavit it shall not be necessary merit. It appears that the sum of one hundred to file the original as a warrant of attorney, any rule dollars claimed to have been paid as rent on the to the terms of this lease of which facts such affidavit |