
    *Bank of St. Clairsville v. S. Smith, O. Wells, and others.
    Uotes under seal, for the payment of money, negotiated before due, in good faith, are'to be regarded as commercial-paper, and the makers can not avail themselves of any breach of confidence, by one of the parties, in filling them up and putting them in circulation.
    This cause came before the court upon a motion made by the plaintiffs for a new trial. It was adjourned from the county of Belmont upon the subjoined state of facts.
    This suit was founded upon a note under seal for seven hundred dollars. Smith, one of the defendants, set up, by way of defense, that he executed and delivered the note as an escrow. At the time it was signed by Smith it was left blank for the amount. Smith, stipulated that it should not be filled up for more than two hundred dollars, and Wells, for whose use it was made, promised that it should not be filled up for a greater sum. Seven hundred dollars was inserted, and the note was discounted by the bank without any knowledge of the private agreement between Smith- ‘ and Wells.
    At the trial the court instructed the jury that upon the facts alleged, if proved, Smith could not be held liable, and for this,, charged to be a misinstruction, a new trial was asked.
    Goodenow and Hubbard, for plaintiff.
    Tapp an, for defendant.
   By the Court :

The charge to the jury in this case was grounded upon the authority of Pawling and others v. United States, 4 Cranch, 219. That was the case of an official bond delivered by one of the obligors, a surety, to his co-obligor, upon the condition, expressed only in parol, that it must be executed by certain other individuals named in the body of the bond as obligors before it should become obligatory, and it was never executed by some of these-parties. Upon reconsidering the case before us, the court are satisfied that the decision relied upon does not sustain the charge-given.

*In that case the bond was not complete when signed by a part of the obligors; on its face it contained evidence that it was to be signed by others who had not signed it. Besides, it was not a bond direct for the payment of the money, but for the perform - adce of a collateral condition. The ease turns now upon the-question whether notes under seal, made for the payment of money-in Ohio, are to be assimilated to commercial paper or to common law bonds. If the former, then it is well settled that he who reposes the first confidence must bear the ultimate loss. And we believe it ought to be so. When notes under seal for the payment of money at a day yet to come, complete upon their face, are negotiated in good faith, they should be treated as commercial or business paper, and all the incidents of such paper should attach to them. The statutes of the state give, them a negotiable-character, and we but- follow their indication in so regarding, such notes. There was error in the charge, and a new trial is.awarded.  