security for a debt, and he is deemed entitled to recovered upon it, he is still limited to the amount of the debt which it secures, if there be a valid defense against his transferror being regarded as, at all events, a bona fide holder, and entitled to stand upon a better footing only pro tanto. Thus, such a holder could recover against an accommodation party no more than the consideration actually advanced; but, in the absence of proof, he will be deemed to have advanced the full amount of the paper." The pledgee of the note is fully protected against loss by its right to recover the full amount of the debt lue to it by the payee. Its rights are preserved, which is all it may reasonably ask. This general principle was recognized over 50 years ago in the case of Williams v. Smith, 2 Hill, 301, where the court, after declaring that a person to whom a promissory note was transferred before due as collateral security for indorsements to be made to him, which were afterwards made, and who took the note without notice of a defense existing against it in the hands of the person from whom he received it, was entitled to be treated as a bona fide holder, decided, however, that, inasmuch as the person who took the note received it as collateral security, he could recover no more than the amount remaining due on the principal demand. This doctrine was followed in the early case of Valette v. Mason, Smith (Ind.) 89. That was an action in assumpsit by an assignee against the makers of a promissory note. The defendants pleaded that the note was assigned to the plaintiff only as collateral security for certain money lent and advanced to the payee. It was decided, as in the case of Williams v. Smith, cited above, that the holder of commercial paper assigned as collateral security is entitled to be regarded as a holder for a valuable consideration, and is not bound by equities existing between the payee and the makers which would interfere with the collection of his debt, but that in a suit on such paper the holder is not entitled to recover more than the debt actually due to him, if any part of it has been previously paid, or if there is no good consideration as between the original parties. Chief Justice Shaw, in Stoddard v. Kimball, 6 Cush. 469, briefly discussed the question of what amount the holder of a promissory note, as indorsee, had a right to recover of the maker where the note was negotiated to the plaintiff as collateral security for a debt due to him. He was of the opinion that, the plaintiff having taken the note to secure a pre-existing debt of a less amount, he was a holder for value in his own right only to the amount of the debt due him. In Youngs v. Lee, 18 Barb. 187, it was also decided that the bona fide purchaser and holder of a note was entitled to recover the amount paid for it, "with interest, and no more." Colebrooke on Collat. eral Securities (section 92) cites several of the cases just referred to, and deduces the following text from them: "Where negotiable promissory notes, pledged as collateral security, are accommodation paper, with out consideration, or subject to an equitable set-off, or, in cases of misappropriation, as between the makers and payees and indorsers thereof, and the collateral securities are of greater amount than the loan represented by the principal evidence of indebt. ediless, the recovery of the pledgee against the makers upon an action thereon is limited to the mount of his advances. The pledgee in such cases of fraud is a holder for value of the collateral note, as against the makers of such paper, to the extent only of his interest at the time he acquires the title or has notice of the defenses to it." This doctrine is also followed in Bank v. Barnett, 27 La. Ann. 177. In Fisher v. Fisher, 98 Mass. 303, the court affirmed the case of Stoddard v. Kimball, heretofore cited, and held that where the evidence established the fact that the plaintiffs received the note from the holder before its maturity, without any knowledge of the circumstances under which the defendants had delivered it to the payee, or the purpose for which the latter delivered it to the holder, and where it was shown that it was held by the plaintiffs as collateral security for a valid debt due from the holder to them, plaintiffs as bona fide holders for value and without notice, could recover "to the extent of their debt for which the note was pledged as collateral security." In Huff v. Wagner, 63 Barb. 215, the court sustained the principle that "a bona fide holder of commercial paper, to which, as between the maker and payee, there is a good defense, is entitled to be protected only to the extent of the value which he has paid." The court there further said: "The protection of the holder for value in such cases, as in other cases where the law protects bona fide purchasers against latent claims, is founded upon the idea of protecting such bona fide purchasers for value against any possible loss. And this is the precise reason why a bona fide holder of such paper, which has been transferred to him to secure an antecedent debt, cannot recover against the party who has been defrauded, namely, that he has lost nothing by his reliance upon the face of the paper." The Supreme Court of New Jersey, in Duncan v. Gilbert, 29 N. J. Law, 521, followed a like doctrine, and said: "It is certainly true that the holders of accommodation paper, assigned as collateral security, can recover against the accommodation maker and indorser no more than the consideration actually advanced." In a very able able review of the decisions upon the question of whether a person situated as was the plaintiff in the case at bar is entitled to the position of a holder of negotiable paper for value, and therefore not affected by the defense of want of consideration to the maker, the Court of Appeals of Maryland, through Chief Justice Alvey, also decided that all the plaintiff in such a case can recover is the amount due on the debt for which the note had been taken as collateral security. "In such case," said the chief justice, "while the plaintiff is entitled to be treated as a holder for value, it is only so to the extent necessary to protect the debts intended to be secured." Maitland v. Bank, 40 Md. 540. Tiedeman on Commercial Paper (section 304) states that, where the pledge of a negotiable note is made for the purpose of securing the payment of a debt, the better rule is that the pledgee can recover the whole of the face value of the note, and hold the balance over and above the amount of his own claim as a trustee for the pledgor. It would seem, therefore, as if he took a different view of the law from that taken by Daniel, although he expressly states in a subsequent part of his text that the pledgee in such a case is a bona fide holder only in respect to the amount of his claim against the pledgor; and, if there be a good defense to an action on the collateral by the pledgor, recovery of the pledgee is limited to the amount of his claim against the pledgor. But we think that if the pledgee is to be regarded in such a case (as he undoubtedly should be) as a bona fide holder only to the amount of his claim against the pledgor, and if he be limited in his recovery to the amount of his clair, is most reasonable that the controversy over the balance be litigated by those directly interested, and that ordinarily the pledgee is not to be held as a trustee for the pledgor. We are aware that there is a contradiction of opin. ion as to the attitude of the pledgee who seeks to recover the full amount of the collateral where such amount is in excess of the debt secured to him; but we are content to adopt the rule sustained by the decisions already cited, which limit his recovery to the amount due to him. In addition to the cases above cited, we may include Steere v. Benson, 2 Ill. App. 560, and Bank v. Hemingray, 34 Ohio St. 381. A recent case upon this subject is that of Bank v. Blevins, 46 Kan. 536, 26 Pac. Rep. 1014. There the court stated the question substantially as follows: In an action against the maker of the notes which had been transferred before maturity to an innocent and bona fide holder as collateral security for an indebtedness existing between the payee of such notes and the indorsee is the indorsee entitled to recover against the maker to the full amount of such collateral notes, where such amount exceeds the indebtedness which they were transferred to secure, without regard to any defenses that may exist between the original parties to such notes, or is in such case the right of the plaintiff to recover limited to the amount of the principal debt? In that case, as in the one before us, equitable defenses were made by the pleadings; and it appeared that there was a controversy between the maker and the payee of the notes, by which it appeared that the paper was subject to equitable set-offs between the maker and payee. The court answered the question by holding "that the doctrine that the pledgee cannot recover more than the amount of the debt of the pledgor is in accord with natural justice," and that, while it hesitated to state that as a rule, yet it did not think that any other rule ought to be applied without great caution. We are impressed with the reasoning in the Kansas case, and believe it correct in principle, as well as more practical, and well founded by the several decisions relied upon in the opinion of that court and the additional authorities above referred to by us. HUSBAND AND WIFE INJURY TO WIFEACTION BY HUSBAND.-In Kelly v. New York, N. H. & H. R. Co., decided by the Supreme Judicial Court of Massachusetts, it was held that an action by a husband for the loss of consortium, caused by injuries to his wife through the negligence of defendant, will lie, though the wife has already recovered in her own right for the injuries received. The court said: "In Bigaouette v. Paulet, 134 Mass. 123, a husband's action for loss of consortium with his wife was held to be maintainable, although there was no loss of service or payment of expenses in consequence thereof. And in Bennett v. Bennett, 116 N. Y. 584, 23 N. E. Rep. 17, it is said that the basis of the husband's action for loss of consortium is his right to the conjugal society of his wife, and that it is not necessary that there should be proof of any pecuniary loss or loss of service. The present case was tried with an action brought by the plaintiff's wife, and the same jury fixed the damages in both cases. The defendant took exceptions in this case, but none in the action brought by her. The jury were instructed that the division of the rights to recover which by law is made between the husband and the wife does not, in any sense, increase the aggregate right of recovery, and that the damages which are to be divided between the husband and the wife should not, in the aggregate, exceed the damages which the wife, if unmarried, would be entitled to recover; with the qualification, however, that one additional element should be considered, namely, the loss of consortium by the hus band. The defendant contends that now an action will not lie for loss of consortium, or, at least, that it will not, in case of an injury to her through negli gence, and that the incurring of expenses will not alone give a ground of action. It might be sufficient, to dispose of this case, to say that the plaintiff was bound to support his wife, and that the expenses incurred by him appear to have exceeded the amount of the verdict, and that, therefore, the defendant's exceptions should be overruled; but, in view of the ruling at the trial allowing the jury to take into ac count the plaintiff's loss of consortium, and of the defendant's request that the correctness of this ruling should be determined, we proceed to consider it. By the common law it is quite clear that a husband might maintain an action in his own name alone for an injury to his wife which resulted in his loss of consortium with her; as, for example, for an injury caused by an assault and battery upon her, by med. ical or surgical malpractice, or by other negligence. Hyde v. Scyssor, Cro. Jac., 538; Guy v. Lusy, 2 Rolle, 51; Russell v. Corne, 2 Ld. Raym. 1031; Dix v. Brooks, 1 Strange, 61; Smith v. Hixon, 2 Strange, 977; 2 Rolle, Abr. 556; Hale, Anal. 40; 3 Bl. Comm. 140; 1 Chit. Pl. 83; Yelv. (Met. ed.) 89; Baker v. Bolton, 1 Camp, 493; Carey v. Railroad Co., 1 Cush. 475, 478; Barnes v. Hurd, 11 Mass. 59; Laughlin v. Eaton, 54 Me. 156; Hopkins v. Railroad Co., 36 N. H. 9, 14; Lewis v. Babcock, 18 Johns. 443; Matteson v. Railroad Co., 35 N. Y. 487; Jones v. Railroad Co., 40 Hun, 349 (a case much like the present); Berger v. Jacobs, 21 Mich. 215; Hyatt v. Adams, 16 Mich. 180; Long v. Morrison, 14 Ind. 595; Nixon v. Ludlam, 50 Ill. App. 273; Mewhirter v. Hatten, 42 Iowa, 288; Mowry v. Chaney, 43 Iowa, 609; Smith v. City of St. Joseph, 55 Mo. 456. The contention of the defendant, therefore, must rest entirely on the ground that the husband has lost his right of consortium by reason of the legislation of this commonwealth increasing the rights of married women. Harmon v. Railroad Co., 165 Mass. 100, 42 N. E. Rep. 505. But there has been no substantial change in the statutes upon this subject since the decision in Bigaouette v. Paulet. Notwithstanding the progress of legislation in giving to married women the control of their time and actions, this right of the busband is not destroyed. The unity and indemnity of interest which by the common law existed between husband and wife have been impaired. Butler v. Ives, 139 Mass. 202, 29 N. E. Rep. 654. They are not, however, entirely done away with. The husband's right to compel his wife to work for him is abridged, but he still has a right to her society and assistance, which is different in character and degree from that which other people have, or which she is at liberty to give to them. By marriage, both husband and wife take upon themselves certain different duties and obligations toward each other, in sickness and health, which it cannot be supposed that the legislature has intended wholly to uproot. A married woman may now perform any labor or services on her sole sepa rate account, as her husband may; nevertheless each owes certain duties to the other which are not an nulled by the statutes. Mewhirter v. Hatten, 42 Iowa, 288. These duties are included in the word "consortium;" but the extent of these duties, or of the right of consortium, need not now be determined. The only question presented to us is whether the pre siding justice was right in allowing the jury to consider at all the loss of consortium. It is argued by the defendant that, if a husband has a right to recover for loss of consortium through an injury caused by neg. ligence, a wife also would have the same right, by virtue of the existing statute, in case of such an injury to her husband; and that this has never been held, or even contended for. She has no such right at common law, but whether she has by statute we do not now consider. The question has been considered elsewhere, but the decisions are not in harmony." INCOMPATIBILITY IN THE EXER- The Supreme Court of the State of Mich- the corporate interests, in this particular municipality especially, to combine very generally against him, in politics. By his pronounced political doctrines he has also antagonized politicians of his own political faith. To the fact of this bitter opposition of politi 1 Moreland v. Common Council of Detroit, 70 N. W. Rep. 450. cians of the same and of a different faith, politically speaking, as much as to any other cause, may be attributed the proceeding to oust him from office, since the same condition of things has been permitted to exist in some other States, New Hampshire for instance, and no motion of politicians or others to correct the abuse by a resort to the courts. Two questions are raised in the argument of such a case: First, that such an occupancy of office is prohibited under the expressed terms of the constitution. Second, that the two offices are incompatible under the rule of the common law. Art. 5, sec. 15, of the constitution of Michigan, is as follows: "No member of congress, nor any person holding office under the United States, or this State, shall execute the office of governor." The State courts of last resort furnish a number of cases which have arisen under provisions of constitutions quite similar to the foregoing provision of the Michigan constitution. These decisions are not entirely harmonious along some lines, yet where the question is simply concerning offices of concerning offices of a purely municipal character, and where no question of the exercise of a function derived from the State is involved, the courts have, very generally, held that there is no sufficient breach of constitutional authority, or of the common law rule justifying the interference of a court. But where officials are elected or appointed in furtherance of charter provisions, or otherwise, by which duties are imposed upon them concerning State affairs distinct from municipal affairs, they then come within such constitutional or common law inhibition. There seems to be no question so far as to what would be the plain duty of the court. But as the Michigan practice furnishes no precedent, it becomes necessary to draw largely upon the opinions of other State courts, in construing such language as is found in the provision above quoted. It will appear also by the debates in the Michigan constitutional convention of 1850, that the question of an interpretation of the language found in this provision before referred to, seemed to be regarded as very important, and called forth a good deal of discussion. It also appears from such debates that a distinction was made between "offices under the State" and "State officer." And upon the question of settling the eligibility of members of the legis 3 lature as provided in art. 4, section 6, constitution of 1835, which reads: "No person holding any office under the United States, or of this State, officers of the militia, justices of the peace, associate judges of the circuit and county courts, and postmasters excepted, shall be eligible to either house of the legislature," it seemed to be the opinion of leading members of such convention that all officers not particularly excepted were ineligible. But the difficulty about the matter, at that time, was the fact that several members were in practically the same interesting condition as our good friend, the governor of Michigan. From these debates of the constitutional delegates we can readily see that an agreement was finally arrived at that the section of the Michigan constitution of 1835 relating to the eligibility of certain officers, excluded others than those who were appointed directly by State authority. The Michigan court says, in its opinion in the case just decided: "It is not easy to see why there should have been any disagreement in this convention over the construction of this language of the constitution. For in the same instrument, art. 6, sec. 6, it was provided that each township might elect four justices of the peace. It was perfectly obvious, therefore, that if the words, "office under the United States, or of this State" were given a construction which limited them to "officers appointed directly by State authority," the exception in the same section of justices of the peace, was senseless, and, as the words were susceptible of a construction which excluded officers mediately holding office under authority of the State, and administering State functions, it is to be assured that they were employed in that sense. It is also plainly inferable that if the words were used in a like sense in sec. 16, art. 5, which reads: "No member of congress nor any other person holding office under the United States, or this State, should execute the office of governor," as in the present constitution of the State, even in the absence of direct precedent or plain terms, we may safely conclude that the constitutional provision heretofore referred to intended to render the holding of certain offices, other than 5 2 Con. Debates, 1850, pp. 129-131. 3 Art. 4, Sec. 8. 4 Moreland v. Common Council of Detroit, supra. 5 Art. 5, Sec. 15. those specifically named, by the governor of the State, as incompatible with his duties as such governor. And whether or not this prohibition extends to municipal offices, such as that held by Mr. Pingree previous to his election as governor, it is the purpose of this paper to discuss. So far as the Michigan court is concerned, it goes upon record, in this case so very recently decided, in the language following: "In the absence of authorities we should hesitate before saying that the constitutional convention contemplated that a governor might be a sheriff, or a county clerk, or a supervisor, or highway commissioner, upon the ground that counties and townships are recognized agencies of government, each forming a territorial division to, and upon which is given the privilege, and imposed the responsibility of managing certain public affairs of the State in the respective localities. The sheriff is a conservator of the peace, and it is the peace of the State. The county clerk keeps the records of the State courts and other State records for his county, as to births, deaths, taxes and elections, and makes reports to superior officers. The county treasurer, judge of probate, superintendent of schools, the board of supervisors, all perform the duties imposed upon them, within their respective counties, it is true, but in obedience to laws of general application and regulating State affairs. The same can be said of township, school and highway officers. These are all part and parcel of the one great scheme of State gov. ernment." Well, then, are we next to say, "thus far and no farther." Must we here draw the line that when we apply this rule to the officers of a municipality it will not work? Why so? Such localities are still but parts of the State which created them, and State laws are being enforced therein. And in pursuance of such State laws, the officers of any such municipality are performing many functions belonging to State government. It is apparent to the observer that in any large, busy city, the volume of State business is increased manifold. How can it then be successfully claimed that the framers of a constitutional provision like the one in question did not intend the inhibition to the governor exercising the duties of any of these county and township officers, extending such inhibi tion to the town and cities, and their busy populations and officials. And just why the mayor of a great city should be permitted to exercise this function together with that of the governor of the State, when the prohibition extends to the humblest township official, is not so apparent. But In a discussion of this subject, we find, as a matter of course, that the wording of the constitutional provision of a particular State has much to do with the determination of this incompatibility. It will be noticed in most, if not all these cases, that the court makes the distinction between municipal offices exercising no State authority, and those where some portion of State authority is exercised. And in the case State v. Wilmington, above cited, which, by the way, is a leading case upon this subject, the court says, among other things, as follows: "But if the office of city treasurer be an office within the meaning of the constitution, the whole affair is wrong, and the people of Wilmington have no right to choose the person who shall fill that office. If this be a civil office within this State, such an office as is embraced in the constitution, it is an office 'under the State,' and the appointment is, by the same constitution, vested in the government. the constitution nowhere descends to notice a corporation official, such an office forms no part of the system of government; it is perfectly immaterial for all the purposes of State government, whether the City of Wilmington has a treasurer or not." It is obvious from the language of the court that the distinction referred to was intended by the court. This case also cites Respur v. Dallas," as in point. And again in the case of Atty. Gen. v. Connors, above cited, the court draws a plain line of distinction and holds that while a sheriff is within the prohibition of one of these constitutional provisions because he is a State officer a city marshal is not, because he holds under a municipal corporation and not under the State. Under the constitution of the State of Michigan the incorporation and organization of towns and cities are required to be made by legislative act. And authority is given to confer powers of a local legislative and administrative character upon 6 See Atty. Genl. v. Connors, 9 South. Rep. 7; State v. Wilmington Common Com., 3 Har. (Del.) 300; Santo v. State, 2 Iowa, 220; Carpenter v. People, 8 Colo. 129. 7 3 Yeates. 8 Art. 15, Sec. 13. 12 townships, cities, etc." In Missouri the constitutional provision reads:10 "No senator or representative shall during the term for which he shall have been elected, be appointed to any civil office under this State, which shall have been created, or the emolument of which, shall have been increased, during his continuance in office as a senator or representative except to such offices as shall be filled by election of the people." A member of the house of representatives was appointed by the mayor as a member of the board of water commissioners of the city of St. Louis. The court in State v. Valle, "held that he not fill such appointment. "The government is the fountain of office" says the court in the above case, "and civil officers have a right to exercise a public employment and take the keys and emolumentsthereto belonging," And the same court holds that a civil office is a grant and possession of the sovereign power, and the exercise of such a power within the limits prescribed by the law, which creates the office, constitutes the discharge of the duties of the office; and it is distinguished in this respect from a mere employment as a contractor or agent under some public office.13 Further the court says the legislature had the constitutional power to establish the board of commissioners as a part of the local administration of the city officers, and to appoint the officers and to provide that they should be paid out of the city treasury; and as a body constituted for purposes of civil government, they are unquestionably civil officers under this State.14 In a certain popular acceptation the words civil officer under this State might possibly be interpreted to mean State officers in the sense of participating directly in the administration of the State government as such, but they are none the less civil officers under the State, because their functions are confined to the local administration. The offices are created and the officers are appointed, and their Art. 4, Sec. 38. 10 Art. 4, Sec. 12. 11 41 Mo. 29. 12 Citing 1 Black. Com. 272; 2 Black. Com. 36. 13 Citing 3 Mo. 48i; Com. v. Burns, 17 Serg. & R. 219; Sampson v. Sutherland, 13 Vt. 309; County, etc. v. Carbry, 3 Smed. & Mar. 550. 14 Citing People v. Draper, 51 N. Y. 532; Hamilton v. County Ct., 15 Mo. 3; Daly v. City of St. Paul, 7 Minn. 390. |