and amount of population and business. A contract ⚫ to leave a certain distance along the line of the road destitute of depots is in contravention of this duty." Under the allegations of the petition, the location of the post-office in this case was to be restricted to one place. The government locates only one post-office in a city, and such office is a public one, and the general public has an interest in the location of the office. Any contract which is made for the purpose of securing the location of such an office, or which prevents, or tends, to prevent, the change or removal of such an office, when the necessities of business or the interest of the public demand a change or removal, tends to the injury of the public service, and therefore is against public policy. Such contracts as referred to in the petition tend to improperly influence those engaged in the public service, and also tend to subordinate the public welfare to individual convenience or gain. Parties should not be permitted to make contracts which induce personal and private interest to overbear public duty or public welfare. County Lodge v. Crary, 98 Ind. 238. Counsel for plaintiffs say that the written contract of the parties is enforceable, because it is not shown that it is unfair, or that any undue influence was to be used to retain the post-office on Main street. Such contracts lead to secret, improper, and corrupt influence, to the injury of the public. In this view, we cannot think it good policy for the courts to enforce such contracts. "All agreements for pecuniary considerations, to control the business operations of the government, or the regular administration of justice, or the appointments to public offices, or the ordinary course of legislation, are void, as against public policy, without reference to the question whether improper means are contemplated or used in their execution. The law looks to the general tendency of such agreements; and it closes the door to temptation, by refusing them recognition in any of the courts of the country." Tool Co. v. Norris, 2 Wall. 45. If W. C. Woodman had no control over the location of the post-office, or if he could not, by his influence, representations, or otherwise, induce the United States post office department to permit him to retain the post-office upon Main street, then the contract sued upon was wholly without consideration, and for that reason ought not to be enforced. The case of Beal v. Polhemus, 67 Mich. 130, 34 N. W. Rep. 532, which is referred to as fully sustaining the petition, is somewhat different in its facts, but all said therein is not satisfactory to us.

,,

CRIMINAL LAW HOMICIDE MALICE DEFINITION.-Upon the subject of "malice,' express and implied, the Court of Appeals of Texas, in Martinez v. State, 16 S. W. Rep. 767, says:

By reference to the bill of exceptions maintained in the motion for a rehearing, it will be seen that it was saved to the supposed error on the part of the trial court in failing to define "express" and "implied" malice. The charge thus defines "express malice:" "Express malice' is where one, with a sedate and deliberate mind and formed design, unlawfully kills another, which formed design is evidenced by external circumstances discovering that inward intention, as laying in wait, antecedent menaces, former grudges, and concerted schemes to do him some bodily harm, or any other circumstances showing such sedate and deliberate mind and formed design unlawfully to Kill another, or to inflict serious bodily harm, which

might probably end in the death of the person upon whom the same was inflicted. * * * 'Implied malice' is that which the law infers or imputes to certain acts. Thus, when the fact of an unlawful killing is established, and there are no circumstances in evidence which tend to establish the existence of express malice, nor which tend to mitigate, excuse, or justify the act, then the law implies malice. These charges are precisely in the language contained in Willson's Crim. Forms Nos. 710, 711, and which has been recognized as the correct rule for charging upon and defining the two phases of malice. Jordan v. State, 10 Tex. 479; McCoy v. State, 25 Tex. 33; Farrer v. State, 42 Tex. 271; Plasters' Case, 1 Tex. App. 673; Cox v. State, 5 Tex. App. 493; Sharpe v. State, 17 Tex. App. 486; Harris v. State, 8 Tex. App. 90; Douglass v. State, Id. 520; Neyland v. State, 13 Tex. App. 536; Reynolds v. State, 14 Tex. App. 427a; Turner v. State, 16 Tex. App. 378; Hubby v. State, 8 Tex. App. 597; and numerous other authorities. While the bill of exceptions is not reserved to any supposed defect of the charge in failing to define the terms "malice" or "malice aforethought," yet the question sought to be raised will be treated as if it was so reserved. By an examination of the charge, we find this language contained therein: "Malice' is a I condition of the mind which shows a heart regardless of duty and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken." "This form of a definition is now and has been recognized as a correct one by the courts of last resort, as announcing a true rule by which to measure malice under our statute of murder. Another rule laid down, and equally correct, is thus defined: "Malice, in this legal sense, means the intentional doing of a wrongful act towards another, without legal justification or excuse." Sometimes one of these forms is employed in the charge, and sometimes the other, and some of our judges use both. It is wholly immaterial which is used, as they convey substantially the same idea. Judge Clark, in a carefully considered opinion, in speaking of a proper definition of the term "malice," said that "a perfectly exact and satisfactory definition of that term signifying its legal acceptation in a form at once clear and concise, has been often attempted, with no very satisfactory permanent result." The differing minds of different courts have employed different terms and language in an attempt to convey substantially the same meaning, and, while a general similarity is apparent in all the definitions, the legal mind has not yet crystallized the substance of the term into a terse sentence, readily comprehensible by the average juror. About as clear, comprehensive, and correct definition as the authorities afford is that malice is a condition of the mind which shows a heart regardless of social duty, and fatally bent on mischief, the existence of which is inferred from acts committed or words spoken. Harris v. State, 8 Tex. App. 109, 110; McKinney v. State, Id. 643; Gallaher v. State, 28 Tex. App. 247, 12 S. W. Rep. 1087, and authorities cited; Bramlette v. State, 21 Tex. App. 619, 2 S. W. Rep. 765; Pickens v. State, 13 Tex. App. 357, and cited authorities; Hayes v. State, 14 Tex. App. 331, 332; 3 Crim. Law Mag. 216; Willson, Crim. Forms, No. 708. The authorities sustain the definition of "malice" embraced in the court's charge as given in this case. Other language might be used to convey the same idea, and other words could be employed that would give as satisfactory a definition of the term "malice" as is employed in the two forms quoted above. We do not intend to say that such a result could not be reached. We simply say that the forms given by Judge Willson

are sufficient, and are abundantly supported by the authorities. We cannot agree with appellant that "malice" or "malice aforethought" is not defined in the charge because the record shows directly to the contrary, from the above-quoted charge defining "malice."

CRIMINAL LAW LARCENY CONVICT SENTENCE.-The Supreme Court of Utah, in People v. Flynn, 26 Pac. Rep. 1114, hold that a convict who escapes from the penitentiary and commits a grand larceny, may be convicted and sentenced therefor before he has served out his first sentence. Miner, J.,

says:

are

The next question presented by counsel for the defendant is that the defendant had been attainted of felony, and was serving a two years' sentence in the penitentiary, previously imposed by the court, and that such period had not yet expired when this indictment was found and trial had; and that the court had no jurisdiction over the subject-matter, or the person of the defendant. Section 4749, Comp. Laws 1888, provides that "A sentence of imprisonment in the penitentiary for any term less than life suspends all civil rights of the person so sentenced, and forfeits all pub. lic offices, and all private trusts, authority or power during such imprisonment." In California, under a similar statute, it is held (In re Nerac, 35 Cal. 392) that a creditor whose debtor is imprisoned in the penitentiary for a term less than life may sue and subject the property of such debtor to the satisfaction of his debt during the term of his imprisonment, and that the person so sentenced is not dead in law; that his civil rights in some matters merely suspended, but that the rights of his creditors to sue and recover judgment against him are not suspended (Phelps v. Phelps, 7 Paige, 150); and that the forfeitures and disabilities imposed by the common law upon persons attainted of felony are not known in this country; that no consequences follow a conviction of felony, except those declared by statute. It was early held in England that persons convicted of felony, and thereby attainted, might plead the same in bar to a subsequent prosecution for any other felony, whether committed before or after the first conviction, for the reason that by his first attaint his possessions were forfeited, his blood corrupted, and he became dead in law; therefore any further conviction or attaint would be fruitless. 4 Bl. Comm. 336; 2 Hale, P. C. 250; 1 Chit. Crim. Law, 464. This same doctrine was carried out in the case of Crenshaw v. State, 1 Mart. & Y. 122, wherein it is held that a conviction, judgment, and execution upon one indictment for a felony not capital is a bar to all other indictments for felonies not captial, committed previous to such conviction. This doctrine, however, has seldom been followed in the United States, and the above case, though not expressly overruled, seems to be the only adjudication in this country, recognizing this doctrine. Bishop, in his Criminal Law (volume 1, § 898), says: "It was a doctrine of the English law at the time when this country was settled, that, as a general rule, to which there were few exceptions, a person attainted for one felony could not be prosecuted criminally for another. But this doctrine, though recognized in one or two American cases, is not usually followed in this country. In England it was long ago abolished by an act of parliament." In

Com., Eng.

Hawkins v. State, 1 Port. (Ala.) 475, the court holds that neither a conviction nor pardon for any partic. ular offense can, in that State, operate as a bar or discharge of any other distinct offense; and it is now generally conceded throughout the United States that the doctrine that a conviction for another distinct felony, committed either before or after the first conviction, or while the criminal is serving out his sentence thereon, does not prevail in this country, and is as repugnant to the established principle of modern criminal law as it is unsupported by reason. Rex v. Vandercomb, 1 Lead. Crim. Cas. 528; Archb. Crim. Pr. (Pom. Notes) 350; State v. Commissioners, 2 Murph. 371; State v. McCarty, 1 Bay, 334; 1 Bish. Crim. Law, §§ 731-884, 898, 953. Again, referring to Bishop's Criminal Law, the writer lays down the rule to be that, "when a prisoner, under an unexpired sentence of imprisonment, is convicted of a second offense, or when there are two or more convictions on which sentence remains to be pronounced, the judgment may direct that each succeeding period of imprisonment shall commence on the termination of the period next preceding." 1 Bish. Crim. Law, §§ 731, 884; Comp. Laws Utah, 1888, §§ 4746, 4749, 4750; In re Nerac, 35 Cal. 393; People v. Forbes, 22 Cal. 136; McQuoid v. People, 3 Gilman, "6; Bryan v. Atwater, 5 Amer. Dec. 136, 142; Com. V. Goodenough, Thacher, Crim. Cas. 132; Kite v. 11 Metc. (Mass.) 581; Reg. V. Bird, 2 Law & Eq. 439; Mahon v. Justice, 127 U. S. 700, 8 Sup. Ct. Rep. 1204; Ker v. People, 119 U. S. 437, 7 Sup. Ct. Rep. 225. In the case of People v. Majors, reported in 65 Cal. 138, 3 Pac. Rep. 597, it is held that a person may be tried and convicted for the crime of murder, notwithstanding he is at the time of the trial and sentence serving out a previous sentence of life imprisonment for anothor murder, committed at the same time, and imposed by another court. So in the case of People v. Hong Ah Duck, 61 Cal. 387, it was held that, on a trial for murder, it was competent for the prosecution to show that at the time of the homicide the defendant was a convict in the penitentiary, serving out a life sentence, and that the homicide was committed while so imprisoned; the object being to give the jury to understand that if they found the defendant guilty of murder in the first degree, with a recommendation to imprisonment for life, and by said verdict fixed the imprisonment for life, the punishment would be no more than the defendant was then undergoing under a former conviction, and that such a verdict would be no punishment whatever, unless the jury made it punishable with death. In this territory there is no statute exempting a convict from punishment for an offense committed by him while serving out his term of imprisonment. Our general penal laws include all persons within their scope. The criminal is protected by the law, and is made amenable to it, while in prison, for any term of imprisonment. The statute of limitations requires prosecution for all felonies, other than for murder, to be commenced within four years after the commission of the offense (Comp. Laws 1888, § 4830), and, if not so commenced, the prosecution is barred. It is true an indictment may be found before the expiration of the statutory limit, and the prisoner may be arrested and tried thereon after the expiration of his term of imprisonment; but it is not difficult to discover that this practice, if inaugurated, would not only greatly delay the execution of public justice, but in many instances would prevent a speedy trial that is guarantied to all accused persons. It would impair the

necessary dicipline required in public prisons, and, in a measure, become a shield and protection to the criminals therein confined.

COMPARATIVE CHARACTERISTICS OF NOTES, BILLS AND CHECKS.

The usual mode of discussing strictly negotiable instruments is to first take bills up and notes as the typical forms of such instruments, and later to consider checks separately. Bills are dealt with before notes, perhaps mainly because they are historically the earlier instruments. But a note is the simpler instrument, and it certainly seems conducive to clearness, conformable to modern ideas, and advantageous in every way to consider notes first. So it seems to be equally useful to then pass from bills to checks, thus treating instruments of such similar character together. Accordingly this method will be adopted in the present article, which is designed to develop the negotiable nature of these and other instruments, and the features in which notes, bills and checks resemble and differ from one another, in the light afforded by a special investigation of the authorities.

Negotiable Instruments in General.-The term "negotiable instruments" is well understood to cover various obligations in writing for the payment of money or the meeting of indebtedness. Yet every written contract to pay money, or instrument of indebtedness, does not necessarily constitute a negotiable instrument. The criterion for bringing the document within such a category concerns the effect of delivery alone, or when following indorsement, that familiar transaction which, as is quite universally known among those interested in business affairs, consists in writing the name of the party on the back of the instrument, or in some equivalent position.

Strictly speaking, a negotiable instrument is one capable of being transferred by commercial indorsement, or simply by delivery, so as to be free from any questions between original parties.1 This definition covers such written promises, requests and orders to pay money as notes, bills and checks, and many other instruments placed on the same footing.

1 See 2 Abb. L. Dict. tit. "Negotiate," 163.

But the term "negotiable," in its enlarged signification, applies to any written security which may be transferred by indorsement and delivery, so as to vest in the indorsee a legal title such as will enable him to sue thereon in his own name. This meaning would include many instruments, such as certificates of corporate stock, which resemble strictly negotiable instruments, and are generally known as "quasi-negotiable instruments." Here the term "assignable" would preferable, as the modern use of that term involves the idea that the assignee may sue in his own name.

seem

In order to understand the term "negotiability," it is necessary to remember that it is a technical term derived from the usage of merchants and brokers, in transferring, in the first place, bills of exchange, and afterwards promissory notes. At common law no contract was assignable, so as to give an assignee the right to enforce it by suit in his own name; but to this rule. bills of exchange and promissory notes, commonly called "bills and notes," payable to "order" or to "bearer," that is, to a particular person or to any one into whose hands they may come, have been admitted exceptions, made such by the adoption of the law merchant as part of the common law; and they may be transferred by indorsement and delivery, so as to give a right to sue in the name of the transferee. Such a transfer, which is a common business transaction, is called "negotiation." The capability of being thus transferred, so as to give to the indorsee a right to sue on the contract in his own name, is what constitutes "negotiability." The term "negotiable" indicates, at least primarily, this mode

2 Odell v. Gray, 15 Mo. 337, 342, 55 Am. Dec. 147, 148; International Bank v. German Bank, 71 Mo. 183, 190, 36 Am. Rep. 468, 473.

3 Walker v. Ocean Bank, 19 Ind. 247, 250.

4 Shaw v. Railroad Co., 101 U. S. 557, 562, 5 Myer's Fed. Dec. pp. 176, 177.

of transfer and its effect. But in regard to bills and notes, and other instruments placed on the same footing, certain other consequences generally follow, though they do not always do so. Thus, as is widely known, the party placing his name on the back of such instrument, or in some equivalent position, thereby, as it is termed, "indorsing" it, incurs peculiar liabilities of the most important character; while the person who takes such instruments from another before they are due, in the usual course of business, in good faith and for value, without notice of any infirmity in the title, is called a bona fide holder, and is generally protected against the claims of the real owner, and of course against the claims of any other prior party to the instrument.

This exemption of the bona fide holder is regarded as one of the leading exceptions to the usual rule concerning personal property, which makes any transferee take only the .title or interest of his predecessor. It is this peculiar feature which constitutes "negotiability" in the strict sense, though such consequences are not necessary attendants or constituents of "negotiability" in the looser sense, as indicating that the assignee may sue in his own name. Instruments which

6

5 This language is varied from that of Mr. Justice Strong, in Shaw v. Railroad Co., 101 U. S. 557, 562-3, or 5 Myer's Fed. Dec. pp. 176, 177-78. The term "negotiation," when applied to a bill or note, is defined in Walker v. Ocean Bank, 19 Ind. 247, 250; Whitworth v. Adams, 5 Rand. 333, 515.

6 See the opinion in Shaw v. Railroad Co., just cited, 101 U. S. 563, or 5 Myer's Fed. Dec. p. 178.

7 The rules regulating the transfer of title to personal property in general are fully developed in Velsian v. Lewi-, 15 Oreg. 539, 541-50; and the doctrine on the subject, with its various exceptions, is further ably considered in the note to that case in 3 Am. St. Rep. 196-207. The rule as to negotiable instruments is fully considered in Saltus v. Everett, 20 Wend. 267, 277, 32 Am. Dec. 541, 545-47; Wheeler v. Guild, 20 Pick. 545, 32 Am. Am. Dec. 231, 233-36; is stated as to stolen paper in East Birmingham Land Co. v. Dennis, 85 Ala. 565, 7 Am. St. Rep. 73, 74; and is discussed as to paper fraudulent in its inception in Bedell v. Herring, 77 Cal. 572, 573-74, 11 Am. St. Rep. 307, 309, with extended note commencing on latter page. See also, as to effect of fraud or duress, Vosburgh v. Difendorf, 119 N. Y. 357, 364, 16 Am. St. Rep. 836, 839, and notes, 842-43. It has been forcibly said that the exception in the case of negotiable instruments "to the common law rule, that the purchaser of a chattel can acquire no better title than the vendor had, has been adopted because, in the language of Lord Kenyon, in Lawson v. Weston, 4 Esp. 56, the contrary principle would at once paralyze the circulation of all paper in the country, and with it all its commerce." Jones v. Nellis,

Commercial Currency of Strictly Negotiable Instruments.-Bills of exchange and promissory notes, and strictly negotiable instruments in general, in their most usual form, are exceptional in their character in being representatives of money. They circulate in the commercial world as evidence of money, "of which any person in lawful possession may avail himself to pay debts or make purchases," or send remittances of money from one country to another, or to remote places in the same country. Hence, as said by Story, J., "it has become a general rule of the commercial world to hold bills of exchange as in some sort sacred instruments in favor of bona fide holders for a valuable consideration without notice." Indeed, without such a holding they could not have performed their peculiar functions. The same is true of other instruments regarded as of a fully negotiable character.

It is for this reason that it is held that if a bill or note, indorsed in blank, that is, not to a particular person, is lost or stolen, and be purchased from the finder or thief, without any knowledge of want of ownership in the vendor, the bona fide purchaser may hold it against the true owner. He may even hold it though he took it negligently, and when there were suspicious circumstances attending the transfer; and nothing will defeat the right short of mala fides or bad faith as shown by actual or constructive notice that the instrument is not the property of the person who offers to sell it. The rule is the same in 41 Ill. 482, 484, 39 Am. Dec. 389, 390. Concerning this view of the matter, it is aptly remarked by Lawrence, J., in the case last cited, that this "is perhaps a strong way of stating the difficulty," but that there can be no doubt it would lead to much embarrassment if it should be held that money, or negotiable paper passing by delivery, which has once been stolen, can be recovered from any person into whose hands it may afterwards come.

8 Strong, J., in Shaw v. Railroad Co., 101 U. S. 557, at p. 564, or 5 Myer's Fed. Dec. 176, at p. 178.

9 Shaw v. Railroad Co., supra. The unimpeachable title of the bona fide holder of a negotiable instrument as against antecedent parties thereto, is reiterated by the Supreme Court of the United States as the established doctrine in Goodman v. Simonds, 20 How. 343, 365-70, 3 Myer's Fed. Dec. pp. 572, 579 82 (1857), which is affirmed in Murray v. Lardner, 2 Wall. 110, 118, at p. 121, Myer's Fed. Dec. pp. 646, 648. See also Williams v. Huntington, 68 Md. 590, 601, 6 Am. St. Rep. 477, 482. Gross negligence is held insufficient as an

such a case as that which protects the bona fide indorsee of a bill or note purchased directly from the true owner; and the purchaser is not bound to look beyond the instrument. 10

Promissory Notes.-A promissory note, or, briefly, a "note," is a written engagement by one person to pay to another person therein named, absolutely and unconditionally, a certain sum of money at a time specified therein.11 Usually the note is made payable either to the person therein designated, or to his "order," that is, to any person he may indicate, or else the alternative words are to "bearer," that is, any person into whose hands the note may come.12 So, the time specified, instead of being a definite date, is often "on demand" or "on sight," that is, when payment is asked, or the instrument subjected to inspection.18 The alternative words, "to order" or "to bearer," render the note negotiable in the strict sense, if it is sufficient in other respects. Negotiability is, however, not an essential element in a promissory note. It

objection to the bona fide holder's title by Lord Denman in Goodman v. Harvey, 4 Ad. & E. 870, at p. 876 (1836). See also Worcester County Bank v. Dorchester and Milton Bank, 10 Cush. 488, 490 92, 57 Am. Dec. 120, 121-22, with notes on latter page; Credit Company v. Howe Machine Co., 54 Conn. 357, 383-84. The doctrine of the need of mala fides is further developed in Matthews v. Poythress, 4 Ga. 287, 298-308 (1848).

10 The rule was first applied, as further appears from Shaw v. Railroad Co., supra, by Lord Mansfield, to the case of a lost bank note (Miller v. Race, 1 Burr. 452, 457-60, 1 Smith's Lead. Cas. 9th Am. ed. 750, decided in 1758), upon the ground that it was required by the interests of trade, the usual course of business, and the fact that bank notes pass from hands as coin. It was subsequently held applicable by him to merchants' drafts (Grant v. Vaughan, 3 Burr, 1516, 152228, decided in 1764), and later to bills and notes (Peacock v. Rhodes, 2 Doug. 633, 636, decided in 1781), as coming within the same reason.

11 Whiteman v. Childress, 6 Humph. 303, 304; Bank of Louisiana v. Williams, 21 La. Ann. 121, 122; Mason v. Metcalf, 4 Baxt. 440, 441, 442; Morgan v. Edwards, 53 Wis. 599, 606, 40 Am. Rep. 781, 782; Klauber v. Biggerstaff, 47 Wis. 551, 555, 32 Am. Rep. 772, 773. Less complete characterizations are those given in Lowe v. Bliss, 24 Ill. 168, 170; Longwell v. Day, 1 Mich. (N. P.) 286.

12 See definitions in Bates v. Butler, 46 Mo. 387, 390; Augusta Bank v. Augusta, 49 Me. 507, 518; 2 Blackst. Com. 567; Newton Wagon Co. v. Diers, 10 Neb. 284, 287; Morgan v. Edwards, 53 Wis. 599, 606, 40 Am. Rep. 781, 782.

13 See definitions in Hall v. Farmer, 5 Denio, 484, 486-87; Lowe v. Bliss, 24 Ill. 168, 169, 76 Am. Dec. 742, 743.

was, it is true, for some time unsettled whether it was not essential that a note should be payable either to order or bearer, but it has long since been settled 14 that it is not. 15 But it is expressly provided by statute in some States that a promissory note is "an instrument negotiable in form, whereby the signer promises to pay a specified sum of money." 16 The ordinary form of a promissory note, though greatly varied, conforms to that given in the note below.17 The party who signs the note and makes the promise to pay is called the maker, and the party to whom the promise is made, and to whom the amount mentioned in the note is payable, is called the payee. If the payee transfers the note to another, he writes his name on the back, or perhaps elsewhere, and thus becomes the indorser; and so there may be successive indorsements as the note is transferred from hand to hand. But another person, aside from the payee, may become the indorser in the first instance to add financial strength to the note; and there may be several such indorsements. 18

14 See Smith v. Kendall, 6 Term. Rep. 123-25 (1794); Rex v. Box, 6 Taunt. 325, 328 (1815); also Downing v. Blackenstoes, 3 Caines, 137 (1805); Goshen Turnpike Road v. Hurtin, 9 Johns. 217 (1812.)

15 Bates v. Butler, 46 Me. 387, 390.

16 Cal. Civ. Code, § 3244; Dak. Comp. Laws, § 4562. Compare Ga. Code, § 2774.

(inserting date.) (inserting (inserting

17$ (inserting number in figures.) (inserting place), For value received I promise to pay name) or order [or, bearer] the sum of number in full) dollars [on demand, or] in - (inserting number) months [or, one year, or, any other period], with interest on said sum from date [or, maturity] until paid, at the rate of (inserting num. ber) per cent. per annum.

(inserting name of signer.) 18 Ordinarily the expression, in reference to a party, that "he made a note," imports that it was not only signed but delivered as an obligation, since the instru ment has no inception if the subscriber retains it for future delivery. 2 Abb. L. Dict. tit. "make," 70. Indeed, an allegation that a party made a note has been held sufficient without averring delivery. Russell v. Whipple, 2 Cowen, 536. See also Chappell v. Bissell, 10 How. Pr. 274, 275; Sawyer v. Warner, 15 Barb. 282, 285; Peet v. Bratt, 6 Barb. 662, 663. But where the context shows, as it may, that a narrower sense was intended, then the use of "make" and "made" to import execution without delivery is not unusual or improper. 2 Abb. L. Dict. tit. "make," 71. The maker of a note is often called the "drawer," though this term is properly applied to a party to a bill. 2 Bouv. L. Dict. "maker" (15th ed.) 139. "Indorse," ex vi termini, means putting a name on the back of any instrument or paper (Hartwell v. Hemenway, 7 Pick. 117, 119); but sometimes the word "indorsed"