Page:Harvard Law Review Volume 10.djvu/85

59 RECENT CASES, 59 a right which makes a title good against all the world except his assignee and credit- ors," and that plaintiff is therefore entitled to prosecute this action. Lancey v. Foss^ 11 At). Rep. loyi (Me.). This decision is unexceptionable. The Bankruptcy Act is silent on the question here presented; no common law principle requires a different decision of the point; in point of natural justice the argument is altogether in favor of the decision as made. " It is no defence to the debt that the creditor has become a bankrupt ; and if an as- signee, after notice, permits a pending suit to proceed in the name of the bankrupt for its recovery, he is bound by any judgment that may be rendered." Per Waite, C. J., in Thatcher v. Rockwell, 105 U. S. 467. In accord with the principal case, see Sawtelle V. Rollins, 23 Me. 196; Conner v. Southern Express Co., 42 Ga. 37; contra. Mounts v. Manhattan Co., 41 N. J. Eq. 211 ; on an earlier Bankruptcy Act, contra, Berry v. Gillts, 17 N. H, 9; Deaderuk v. Armour, lo Hump. 588. Bills and Notes — Alteration — Presumption. — Where the plaintiff sought to recover on a note bearing evidences of alteration, held, that he must show that the alteration took place before negotiation by maker. The rule applies to all alterations of written instruments that there is no presumption as to the time they were made. Goodin V. Pliigge, 71 Fed. Rep. 931. Here is an unequivocal statement of the general rule which it is believed represents the existing state of the law both in England and in this country. The American courts have, to be sure, spoken strictly with reference to each case as it came up, but the decisions taken together completely bear out the broad doctrine laid down. Hills V. Barnes, II N. H. 395 (promissory note) ; Ely v. Ely, 6 Gray, 439 (deed); Crossman V. Crossman, 95 N. Y. 145 (will) ; and see i Greenleaf Ev. 564. In England there is a seeming confusion, bills and notes being the only instruments to which the rule of the principal case is in terms applied. Stephen's Digest, Ev., art. 89; Johnson v. Duke of Marlborough, 2 Stark. 313. It is submitted, however, that the apparent difference in the rules regarding these and other documents is a matter ol phraseology only, and that the effect is simply that the plaintiff must always make out his case. Clearly that is all that a presumption of alteration subsequent to execution amounts to. Cooper v. Beckett, d^ Notes of Cases, 685; Williams v. Ashton, i Johns. & Hem. 115; and in Doe V. Catomore, 16 Q. B. 745, relied on to show that an alteration in a deed is presumed to be before execution, the remarks are only dicta, the jury having been directed to judge from the deed itself. Bills and Notes — Antecedent Debt — Payment by Note. — Held, that tak- ing a note does not operate as an absolute payment of an existing debt. In re Scott, 24 N. E. Rep. 1079 (N. Y.). The decision is so clearly in accordance with the overwhelming weight of authority that it seems somewhat singular that the court should have been so evenly divided. As an original question, something perhaps might be said in support of the view that receiving a note from a debtor should have the same effect as receiving a specialty, and discharge the prior obligation. But it; has long been well settled in England, and in most American jurisdictions, that merely taking a note is presumptively only a con- ditional payment of a pre-existing debt. While the note runs, the right of action on the original claim is suspended, but it revives if the note is not paid at maturity. In a few States — Maine, Vermont, Massachusetts, Indiana, and Louisiana — a contrary presumption prevails, to the effect that the execution of a note is an absolute discharge of prior indebtedness. Everywhere these presumptions are rebuttable by evidence; if the parties show an intention that the debt shall or shall not be completely extmguished by the note, such intention will be given effect. Constitutional Law — City Ordinance — State Discrimination. — Heldy that an ordinance requiring all peddlers who were not residents of the city, selling goods within the city, to pay a license tax, is in violation of the Constitution of the United States, art. 4, § 2, providing that " the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." McGraw v. Toivn of Marion, 34 S. W. Rep. 18 (Ky.). This decision seems open to doubt. A statute drawing a discrimination strictly upon State lines is '>rposed to this clause of the Constitution. Cooley on Taxation, 99. But the present case is somewhat different. Here the exemption from tax applies, not to the entire Commonwealth, but only to a very small fraction 6f it; Kentucky as a whole derives no benefit from the exemption. Can it be said that the citizens of other States are deprived of any privileges which the citizens of Kentucky enjoy .'' The other difficult question, as to whether the ordinance was repugnant to the grant by the Constitution to Congress of the power to regulate interstate commerce, was not touched upon by the court. Emert v. Missouri, 156 U. S. 296.