(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "A treatise upon some of the general principles of the law : whether of a legal, or of an equitable nature : including their relations and application to actions and defenses in general : whether in courts of common law, or courts of equity : and equally adapted to courts governed by codes"

I 




UNIVERSITY 

OF CALIFORNIA 

LOS ANGELES 



SCHOOL OF LAW 

LIBRARY 

Oift of 

John Adams 



A TREATISE 



0PON SOME OF THE 



GENERAL PRINCIPLES OF THE LAW, 



WHETHER OF A 



LEGAL, OR OF AN EQUITABLE NATL. 



INCLUDING THEIR 



RELATIOlSrS AISTD APPLIOATIOi^ 

TO 

ACTIONS AND DEFENSES 

IN GENERAL, 

WHETHER IN 

COURTS OF COMMON LAW, OR COURTS OF EQUITY; 

AND EQUALLY ADAPTED TO 

COURTS GOVERNED BY CODES. 
By WILLIAM WAIT, 

COtmSELOK AT LAW. 

VOLUME V. 



ALBANY: 
WILLIAM GOULD, Jr., & CO., 

Law Booksellers and Ptiblisheks. 
1885. 



Entered, accordiDg to act of Congress, in the year eighteen hundred and sev«nty-eigbt, 

By WILLIAM WAIT, 
In the office of the Librarian of Congress, at Washington. 



WEED. fAnflONfi AND COM PANT, 
PUINTEItfl AM) ELECTUOTYPEH8, 
AI.IJANY, N. Y. 



TABLE OF CONTENTS. 



CHAPTER cm. 

PAOB. 

Office and officer 1 

Article I. Of officers in general 1 

Section 1. Definition and nature 1 

Section 2. Office, how created 2 

Section 3. Officer, liow appointed 2 

Section 4. Who are officers 3 

Section 5. Public officers 4 

Section 6. Who may hold office 4 

Section 7. Official oath 5 

Section 8. Official bond 5 

Section 9. Officers de facto 7 

Section 10. Title to office, how tried 9 

Section 11. Expiration of term 10 

Section 13. Holding over 11 

Section 13. Resigning office 11 

Section 14. Removal from office 12 

Section 15. Vacancy in office 13 

Article II. Of the powers and duties of officers in general 14 

Section 1. In general 14 

Section 2. Of particular officers 15 

Section 3. Mode of exercising powers 16 

Section 4. Review or control over officer's action 16 

Section 5. General duties of officers 16 

Section 6. General powers of officers 17 

Section 7. Assigning or transfer of office 18 

Section 8. Deputies or assistants 18 

Article III. Rights and compensation 19 

Section 1. In general 19 

Section 2. Right to office, books and papers 19 

Section 3. Fees or salary 19 

Section 4. Pay of judicial officers 22 

Section 5. Fees of attorneys 22 

Section 6. Fees of clerks of courts 25 

Section 7. Fees of officers of courts 26 



vi TABLE OF CONTENTS. 

Office ajtd officer — Continued. pagb. 

Section 8. Extra pay 27 

Section 9. Assigning fees or pay 28 

Article IV. Liabilities of officers 29 

Section 1. In general 29 

Section 2. Fees for olficial acts 29 

Section 3. Liability for judicial acts 30 

Section 4. Liability upon contracts 30 

Section 5. Liability for neglect 31 

Section 0. Liability for losses 32 

Section 7. Liability for toils 33 

Article V. Remedies by and against 33 

Section 1. In general 33 

Section 2. Action by officer 34 

Section 3. Action against 35 

Section 4. Injunction as a remedy 36 

Article VI. Defenses 38 

Section 1. In general 38 

CHAPTER CIV. 

Parent and child 40 

Title I. Of the relation of parent and child 40 

Article I. Of legitimate children 40 

Section 1. Who are legitimate children 40 

Title II. Of the rights of parents 41 

Section 1. Custody of children 41 

Section 2. Custody of the father 42 

Section 3. Custody of the mother 43 

Article II. Parental control 43 

Section 1. Control in person . 43 

Section 2. Control by teacliers 44 

Article III. Right to child's services, etc 44 

Section 1 . Rights of the father 44 

Section 2. Rights of the mother 45 

Article IV. Recovery for injuries to child 46 

Section 1 . Recovery by father 46 

Section 2. Recovery by mother 47 

Article V. Control of child's jjroperty 47 

Section 1. In general 47 

Article VI. Of illegitimate children 48 

Section 1. Who are illegitimate 48 

Section 2. Of their custody 48 

Section 3. Of tlieir suj)port 49 

Section 4. Of their rights of property 49 

THlc III. Duti«;H and liabilities of parents 50 

Article I. Wliat arc their duties and liabilities 50 

Section 1. To support cliildren 50 

Section 2. Duty of the fatlier 52 

Section 3. Duty of the motlier 52 



TABLE OF COA'TENTS. vii 

Pabent and cbUjT) - -Continued. page 

Section 4. To educate children 53 

Section 5. Lial)ilities for child's torts 53 

Title IV. Rights and duties of children 54 

Article I. What are such rights and duties , 54 

Section 1. Obedience and service 54 

Section 2. Emancipation 54 

Section 8. Of stepfathers , 55 

Section 4. Agreement between father and child 55 

Section 5. Support of parents 56 

Title V. Rights, duties and liabilities of infants 56 

Article I. Of an infant's rights in general 56 

Section 1. His legal status generally 56 

Section 2. Emancipation and right to wages 58 

Section 3. Rights in real proiierty 58 

Section 4. Rights in personal jiroperty 59 

Section 5. Right to redress for torts 60 

Article II. Duties and liabilities of infants 60 

Section 1, Of their contracts generally 60 

Section 2. Contracts for service 62 

Section 3. Contracts for necessaries 68 

Section 4. Contracts under seal 65 

Section 5. Negotiable instruments 66 

Section 6. Confirmation and ratification 67 

Section 7. What is not a confirmation 70 

Section 8. Disaffirmance 71 

Section 9. Liability for torts and frauds 73 

Section 10. Gifts by infants 74 

Article III. Suits by and against infants 75 

Section 1. Suits by infants 75 

Section 2. Suits against infants 77 

Section 8. Infancy as a personal defense 80 



CHAPTER CV. 

Pabtition g2 

Article I. Of partition in general 82 

Section 1. Definition and nature 82 

Section 2. General rules and principles 82 

Section 8. Partition of real estate 87 

Section 4. Partition of personal property 89 

Section 5. Who may claim partition 89 

Section 6. Who to be made defendants 94 

Section 7, What is a defense , 96 

Section 8. Jurisdiction of court 98 

Section 9. What judgment or decree proper 100 

Section 10. Execution of judgment or decree 102 

Section 11. Costs 108 



viii TABLE OF CONTENTS. 

CHAPTER CVI. PAGE. 

-t(\K 

Partnebships . , ^""^ 

Article I. Of partnership in general 105 

Section 1. Definition and nature 105 

Section 2. General principle 105 

Section 3. Partners as between themselves 108 

Section 4. Partnei-s as to third persons Ill 

Section 5. Dormant partners 114 

Section 6. Construction of contract between 114 

Section 7. Limited partnership 115 

Section 8. Joint-stock companies 117 

Article n. Rights, powers, duties and liabilities to each other. 118 

Section 1. In general 118 

Section 2. Interest in the stock in trade 119 

Section 3. Stock in hand or real estate 119 

Section 4. Ship-owners .... 122 

Section 5. Construction of contracts between. . . 123 

Section 6. Dealing on separate account 124 

Article III. Wliat acts bind the firm 126 

Section 1. In general 136 

Section 2. Simple contracts 126 

Section 3. By chattel mortgage 127 

Section 4. By purchase of goods 127 

Section 5. By making bills or notes 128 

Section 6. By indorsement 129 

Section 7. By guaranty 130 

Section 8. By transfer of paper 130 

Section 9. By disposing of goods or assets 131 

Section 10. By admitting debts or liabilities 131 

Section 11. By making assignment 132 

Section 12. By submission to arbitration 133 

Section 13. By executing deeds, mortgages, etc 133 

Section 14. By executing bonds and other sealed instruments. . 134 
Section 15. By receiving payments, etc 135 

Article I V. Dissolution 135 

Section 1. In general 135 

Section 2. Voluntary act or by limitation 135 

Section 3. By death 137 

Section 4. By insanity 138 

Section 5. By bankruptcy 138 

Section 0. By judicial decree 138 

Section 7. Inability to act 140 

Section 8. EfTcct of dissolution 140 

Section 9. Acts after dissolution 141 

Section 10. Powers of liquidating partners 142 

Section 11. Powers of survivor 143 

Section 12. Retiring ])artncrs 144 

Article V. Actions at law or in etjuity 145 

Section 1. In general 145 



TABLE OF CONTENTS. ix 

Partnekships — Continued. page- 

Section 2. Actions by partners against third persons 146 

Section 3. Actions by survivor 147 

Section 4. Suits by third persons against partners 147 

Section 5. Suits between partners 149 

CHAPTER CVn. 

Penalties 156 

Article I. Of penalties in general 156 

Section 1. Definition and nature 156 

Section 3. When an action will lie for 158 

Section 3. When no action will lie 158 

Section 4. Who may sue 159 

Section 5. Who may be sued 161 

Section 6. Defenses 162 

Section 7. Recovery and judgment 163 

Section 8. Costs 165 

Section 9. Compounding penalties 165 

CHAPTER CVm. 

Pledge 167 

Article I. Of pledges in general 167 

Definition and nature 167 

What may be pledged 170 

What may not be pledged 170 

Who may pledge 171 

Who cannot pledge 171 

Who may be pledgee 171 

Rights of pledgor 172 

Rights of pledgee 173 

Rights of third persons 177 

Action by pledgor against pledgee 178 

Action by pledgee against pledgor 180 

Section 12. Action by pledgor against third person 181 

Section 13. Action by pledgee against third person 181 

Section 14. Remedy in equity 182 

Section 15. Redemption 183 

CHAPTER CIX. 

Fbinoipal and surety 185 

Article I. Of principal and surety in general . 185 

Section 1. Definition and nature. 185 

Section 2. Who are considered sureties 186 

Section 3. Of the contract of the surety 187 

Section 4. Construction of the contract 189 

Section 5. Validity of the contract 190 

Article H. Of the rights and liabilities of the principal 193 

Section 1. In regard to the surety 193 

Section 2. In reference to the creditor 194 

Vol. v.— b 



Section 


1. 


Section 


2. 


Section 


3. 


Section 


4. 


Section 


5. 


Section 


6. 


Section 


7. 


Section 


8. 


Section 


9. 


Section 10. 


Section 11. 



X 



TABLE OF CONTENTS. 



Pbikcipai. ANT) SURETY — Continued. pagb. 

Section 3. lu reference to third persons 194 

Article III. Of the rights and liabilities of the surety 195 

Section 1. In general 195 

Section 2. Liability to third persons 196 

Article IV. Of the rights and Uabilities of tlie surety 197 

Section 1. In general 197 

Section 2. Liabilities and rights as to third persons 198 

Section 3. Of tlie creditor's right of substitution 198 

Section 4. Perfecting right of action 199 

Section 5. Exhausting remedy against the principal 200 

Section 6. Parties in suits against sureties 201 

Section 7. Defense to suit against surety 202 

Section 8. What is not a defense 203 

Section 9. Surety's rights of re-imbursement from principal . . . 204 

Section 10. Amount of recovery 205 

Section 11. Limits of recovery • 206 

Section 12. Eight to retain funds of the principal 208 

Section 13. Surety taking security 208 

Section 14. Insolvency of principal 209 

Section 15. Sureties' rights to priority 210 

Section 16. Part payment by surety 211 

Section 17. Demand or notice 211 

Section 18. Defense to sureties' action 212 

Section 19. Subrogation of surety to the rights of creditor 213 

Section 20. When not subrogated 215 

Section 21. Eflect of subrogation 216 

Section 22. Assigning creditor's securities 217 

Article V. Of the rights of co-sureties 218 

Section 1. In general 218 

Section 2. Rights to contribution 220 

Section 3. Amount recoverable 221 

Section 4. When not recoveral>le 222 

Section 5. How oljtained. . 234 

Section C. Parties to action 224 

Section 7. Defenses to action 225 

Article VI. Of the discharge of sureties 226 

Section 1. In general, what is , 226 

Section 2. What is not a discharge 227 

Section 3. Payment of creditor's demand . . „ , 239 

Section 4. Discharge of the principal 230 

Section 5. Changing the contract or obligation 231 

Section 6. Taking a new security 232 

Section 7. Iin|)ai ring the sureties' remedy 233 

Section 8. Refusal of creditor to sue principal on notice or de- 
mand 234 

Section ll. When a refusal to sue is no disciiarge 230 

Section 10. Indulgence to principal. Forbearance 236 

Section 1 1. Mere delay no discharge 237 



TABLE OF CONTENTS. 



XI 



Principal and surety — Continued. page. 

Section 12. Negligence of creditor 238 

Section 13. Giving time to the principal, when a discharge 239 

Section 14. When not a discharge 242 

Section 15. When a forbearance to sue is a discharge 244 

Section 16. When forl^earance is no discharge 244 

Section 17. Staying proceedings against the debtor 244 

Section 18. Sureties' assent to giving time 246 

Section 19. Discharge, how set up 247 

CHAPTER ex. 

Prohibition ^'^8 

Article I. Of prohiljition iu general 248 

Section 1. In general 248 

Section 2. What court may grant 249 

Section 3. When granted 250 

Section 4. When refused 251 

Section 5. When a matter of riglit and when discretionary . . . 253 

Section 6. At what time granted 254 

Section 7. To what courts awarded 254 

Section 8. Bar by delay , 255 

Section 9. Who may join iu 256 

Section 10. Enforcing prohibition 256 

Section 11. Costs 256 

CHAPTER CXI. 

Quo WARRANTO • 258 

Article I. Quo warranto in general 258 

Section 1. Definition and nature 258 

Section 2. In what cases it lies 259 

Section 3. When it does not lie 260 

Section 4. When discretionary 261 

Section 5. Trying title to office 262 

Section 6. Usurping franchise 263 

Section 7. Forfeiting franchise 264 

Section 8. Upon whose application 264 

Section 9. What court has jurisdiction 266 

Section 10. AVitliiu what time 266 

Section 11. Defenses 267 

Section 12. What title in issue 268 

Section 13. Hearing or trial 269 

Section 14. Judgment 269 

Section 15. Costs 270 

CHAPTER CXII. 

Railroads 272 

Article I. Creation of corporation 272 

Section 1. In general 272 

Section 2. Organization of company 373 



Xll 



TABLE OF CONTENTS. 



Railroads — Continued. page. 

Section 3. Subscriptions to stock 274 

Section 4. Powers as to property 278 

Section 5. Power to make contracts 279 

Section 6. May sue or be sued 281 

Section 7. Dissolution or forfeiture 283 

Article II. Acquiring lands for roads, etc 284 

Section 1. In general 284 

Section 2. By consent or grant 284 

Section 3. Right of eminent domain 286 

Section 4. Title or interest acquired 288 

Section 5. Taking for public use 289 

Section G. Taking highways 290 

Section 7. Bridging streams . . 291 

Section 8. Obstructing streams 292 

Section 9. Obstructing private ways 292 

Section 10. Locating road 293 

Section 11. Changing location 294 

Section 12. Compensation 295 

Section 13. Interest acquired in land 300 

Article III. Construction of the road 300 

Section 1. On what line 300 

Section 2. Mode of construction 301 

Section 3. Liable for defects and injuries 802 

Section 4. Contracts for construction 303 

Section 5. Fencing line of road 305 

Section 6. Cattle guards 306 

Section 7. Road crossings . 306 

Article IV. Lial)ilities in regard to officers, agents and servants 308 

Section 1. In general 308 

Section 2. Officers 309 

Section 3. Agents 310 

Section 4. Conductor 311 

Section 5. Superintendent 313 

Section G. Employees and laborers 314 

Article V. Rights, duties and liabilities in management of road. . . . 315 

Section 1. In general 315 

Section 2. Carrying goods, etc 315 

Section 3. Right to tolls 316 

Section 4. Delivery of goods 318 

Section 5. Delay in transportation or delivery 319 

Section G. Lo.ss of goods 319 

Section 7. Injury to goods 320 

Section 8. Dangerous goods 320 

Section 9. Stoppage in transit 321 

Section 10. Lien for freiglit 321 

Section 11. Carrier's insural)le interest 321 

Section 12. Injuries to passengers 322 

Section 1 :5. Delay of trains 323 



TABLE OF CONTENTS. xiii 

Railroads — Con tinned. page . 

Section 14. Refusal to carry passengers 323 

Section 15. Ejection of passengers 334 

Section 16. Using tracks of another road 335 

Section 17. Baggage 325 

Section 18. Regulations, notice, etc 336 

Section 19. Negligence 336 

Section 30. Injuries to adjoining property 338 

Section 31. Injuries to employees 338 

Section 33. Injuries in crossing track 339 

Section 33. Injuries to stray animals 331 

Article VI. Connected or associated railroads 333 

Section 1. In general 333 

Section 3. Contracts, how construed 333 

Section 3. Duty to keep the road safe 334 

Section 4. Carriage of goods 335 

Article VII. Of horse and street railroads 337 

Section 1. In general 337 

Section 3. Using streets 337 

Section 3. Rules and regulations 340 

Section 4. Collecting fares 340 

Section 5. Injuries to passengers 340 

Section 6. Injuries to other persons 343 

Section 7. Contributory negligence 345 

Article VIII. Remedies 346 

Section 1. In general 346 

Section 3. Actions at law 346 

Section 3. Injunction 348 

Section 4. Specific performance 350 

Section 5. Receivers 351 

CHAPTER CXm. 

Receivers 353 

Article I. Of receivers in general 353 

Section 1. Nature of the office 353 

Article II. In what cases and over what property a receiver wiU be 

appointed 355 

In general ... 355 

Corporations and associations 359 

Partnership 360 

Mortgages 363 

Executors and trustees 364 

Infants 367 

Lunatics 367 

Vendors and purchasers 367 

Tenants in common 369 

Partition , 369 

Construction of will 370 

Section 13. Debtor and creditor 370 



Section 


1. 


Section 


3. 


Section 


3. 


Section 


4. 


Section 


5. 


Section 


6. 


Section 


7. 


Section 


8. 


Section 


9. 


Section 


10. 


Section 11. 



xiv TABLE OF CONTENTS. 

Receiveks — Continued. page. 

Section 13. Specific performance 371 

Section 14. Divorce 372 

Section 15. Ejectment 372 

Section 16. Supplementary proceedings 373 

Article III. When a receiver will not be appointed 373 

Section 1. In general 373 

Article IV. Who appointed receiver 376 

Section 1. Who appointed 376 

Section 2. Who not appointed 376 

Article V. Rights, powers, and duties 377 

Section 1. In general 377 

Article VI. Liabilities 384 

Section 1. In general 384 

Article VII. What title he takes 388 

Section 1. In general 388 

Article VIII. Salary and allowances 389 

Section 1. In general 389 

Section 2. Accounts 391 

Article IX. Discharge of receiver 392 

Section 1. In general 392 

Section 2. Removal and substitution 393 

CHAPTER CXIV. 

Recogkizance 395 

Article I. Of recognizance in general 395 

Section 1. In general , 395 

Section 2. When required or given 397 

Section 3. Who authorized to take 398 

Section 4. Of the form and requisites 400 

Section 5. Mode of executing 402 

Section 6. Of the construction and effect 403 

Section 7. Of forfeiture 404 

Section 8. Disci large of the sureties . 406 

Section 9. Of the right of action 408 

Section 10. Proceedings by scire facias 409 

Section 11. Declaration or complaint 411 

Section 12. Plea or defense 412 

Section 13. Evidence 414 

Section 14. Matter of practice 415 

Section 15. Of tJie judgment 416 

CHAPTER CXV 

Redemption op real estate 419 

Article I. Actions to redeem mortgaged lands 419 

Section 1. In general 419 

Section 2. Of the right to redeem 422 

Section 3. Of conditional sales , 426 

Section 4. Who may redeem 427 



TABLE OF CONTENTS. xv 

Redemption op real estate — Continued. page. 

Section 5. Who defendant 431 

Section G. Action, when to be brought 431 

Section 7. Assignee of mortgage 432 

Section 8. Mortgagee in possession 432 

Section 9. Terms of redem23tion 433 

Section 10. Judgment 435 

Section 11. Costs 435 

CHAPTER CXVI. 

Reformation op instruments 437 

Article I. Of reformation in general 437 

Section 1. Definition and nature 439 

Article II. In what cases decreed 439 

Section 1. In general 439 

Section 2. For error or mistake 443 

Section 3. For fraud 445 

Section 4. For error of scrivener 447 

Section 5. Sealed instruments 448 

Section 6. Unsealed instruments 449 

Section 7. Who may demand relief 451 

Section 8. Against whom declared 451 

Section 9. In what cases denied 452 

Section 10. Decree rendered 453 

CHAPTER CXVII. 

Replevin 454 

Article I. Of replevin in general 454 

Section 1. In general 454 

Section 2. Jurisdiction 458 

Section 3. When the action lies 458 

Section 4. When it does not lie 463 

Section 5. What title or possession will support the action . . . 471 

Section 6. What title or possession is not sufficient 475 

Section 7. What property may be replevined 477 

Section 8. What property may not be replevined 478 

Section 9. When demand is necessary 480 

Section 10. When no demand is necessary 481 

Section 11. Who may maintain the action 484 

Section 12. Who cannot maintain the action 485 

Section 13. Who may be sued 486 

Section 14. Who may not be sued 487 

Section 15. Of defenses in general 489 

Section 16. Abatement 490 

Section 17. Pleas to the action 491 

Section 18. Insufficient pleas 493 

Section 19. General issue 494 

Section 20. Non cejnt 494 

Section 21. Mn detinet 4SJ5 



XTl 



TABLE OF CONTENTS. 



Replevin — Continued. page. 

Section 23. Avowry 496 

Section 23. Plea of property 497 

Section 24. Replication 498 

Section 25. Judgment for the plaintiff 498 

Section 26. Damages for detention 499 

Section 27. Judgment of return to defendant 500 

Section 28. Of the verdict or finding 501 

Section 29. What judgments are proper 502 

Section 30. What judgments are not proper 502 

Section 31. Effect of verdict and judgment 503 

Section 32. Costs 503 

Section 33. Execution 504 

Section 34. Action on replevin bonds 504 

Section 35. When an action lies 504 

Section 36. When the action does not lie 505 

Section 37. Amount of recovery 506 

CHAPTER CXVIII. 

Rescission of instrtjments 507 

Article I. Of rescission in general 507 

Section 1. Definition and nature 507 

Article II. In what cases decreed 510 

Section 1. In general 510 

Section 2. For error or mistake 513 

Section 3. For fraud 514 

Section 4. For error of scrivener 519 

Section 5. Sealed instruments 519 

Section 6. Unsealed instruments 521 

Section 7. Who may demand relief 521 

Section 8. Against whom decreed 523 

Section 9. In wliat cases denied 523 

Section 10. Decree rendered ■ 552 

CHAPTER CXIX. 

Sales 527 

Article I. Of sales in general 527 

Section 1. Definition and nature 527 

Section 2. Wiio may sell 528 

Section 3. Who may l>uy , 528 

Section 4. Must l^c a thing to l)e sold 530 

Section 5. The price to be paid 532 

Section 0. Mutual assent of the parties 533 

Section 7. What dealings amount to a sale 536 

Section 8. What dealings do not amount to a sale 538 

Section 9. Contract of sale in writing 539 

Section 10. Executed and executory contracts 541 

Section 11. Transfer of specific cliattels 542 

Section 12, Transfer of chattels not specific 543 



TABLE OF CONTENTS. xvii 

Sales — Continued. page. 

Section 13. Subsequent appropriation 544 

Section 14. Seller's right of sale 546 

Section 15. Conditional sales 547 

Section 16. Sale or return, or on trial 551 

Section 17. Sale by sample 553 

Section 18. Warranty in exjiress terms 554 

Section 19. Implied warranty of title 560 

Section 20. Implied warranty of quality 561 

Section 21. Caveat emptor 564 

Section 22. What is a breach of warranty 566 

Section 23. Delivery of the property 567 

Section 24. Time of deUvery 568 

Section 25. Place of delivery 570 

Section 26. Quantity delivered 571 

Section 27. How delivered in general 572 

Section 28. Delivery to third persons 573 

Section 29. Delivery to carrier 573 

Section 30. Constructive delivery 574 

Section 31. Symbolic delivery, illustrations of 575 

Section 32. By deed or bill of sale 577 

Section 33. By transfer of bill of lading 578 

Section 34. Buyer's duty to accept 579 

Section 35. Buyer's duty to pay 580 

Section 36. Mode of payment 581 

Section 37. DeUvery without payment 584 

Section 38. At which time title passes 586 

Article II. Of the statute of frauds 589 

In general 589 

What contracts are within the statute 590 

"Wliat are goods, wares and merchandise 591 

Of the value of ten pounds, etc 596 

What is a sufficient acceptance 598 

Earnest and part payment 601 

A^^luit is a sufficient memorandum 603 

What is not a sufficient memorandum 605 

Signature by the party 606 

Signature by agent 607 

Remedies of parties 608 

In general 608 

Action by seller against buyer, where title has not 

passed 608 

Action where title has passed 610 

Seller's remedies against the goods 611 

Stoppage in transitu 611 

Resale 613 

Lien 620 

Action by buyer against seller when contract is ex- 
ecutory 632 

Vol. v.— c 



Section 


1. 


Section 


2. 


Section 


3. 


Section 


4. 


Section 


5. 


Section 


6. 


Section 


7 


Section 


8. 


Section 


9. 


Section 10. 


iclelll. ] 


Eler 


Section 


1. 


Section 


2. 


Section 


3. 


Section 


4. 


Section 


5. 


Section 


6. 


Section 


7. 


Section 


8. 



xviii TABLE OF CONTENTS. 

SaXiES — Continued. page. 

Seotion 9. Action when title has passed 624 

Section 10. Action after receiving goods 625 

Section 11. -Rescission by seller 630 

Section 13. Rescission by buyer 633 

Section 13. Mutual rescission 633 

Section 14. Illegality at common law 634 

Section 15. Illegality by statute 635 

Section 16. Rights of bona fide purchasers 637 

Section 17. Defense of fraud in action by seller 638 

Section 18. Defense of fraud in action by buyer 639 

CHAPTER CXX. 

SCIHE FACIAS 641 

Article I. Of »cire facias in general 641 

Section 1. Definition and nature 641 

Section 3. In what cases a proper remedy 643 

Section 3. On judgments between the parties 643 

Section 4. Against heirs, devisees, etc 645 

Section 5. Reviving decree in chancery 646 

Section 6. Renewing execution 646 

Section 7. Foreclosing a mortgage 646 

Section 8. Recognizances or statutes 647 

Section 9. Effect of 647 

Section 10. Jurisdiction of court .... 647 

Section 11. "Within what time 648 

Section 13. Leave of court 648 

Section 13. Who to be plaintiff 649 

Section 14. Who to be defendants 649 

Section 15. Form and complaint, etc 650 

Section 16. Defenses 651 

Section 17. Plea or answer 653 

Section 18. Judgment 653 

Section 19. Costs 654 

Section 30. Execution 654 

CHAPTER CXXI. 

Sbduction 655 

Article I. Of seduction in general 655 

Section 1. Definition and nature 655 

Section 2. General grounds of the action 655 

Section 3. Founded on tlie loss of service 656 

Section 4. Wliat acts or results not a ground of action 656 

Article II. Who may maintain tlic action 657 

Section 1. In goniMiil 657 

Section 2. Action l)y tiie father 658 

» Sectif »n 3. Action by the mother 659 

Section 4. Action by stepfather 660 

Section 5. Action by grandfather 660 



TABLE OF COXTENTS. 



KIX 



Seduction — Continmd. page. 

Section 6. Adopted child 660 

Section 7. Action by relative 661 

Section 8. Action l)y one in place of parent 661 

Section 9. Action by master 661 

Section 10. Action when female over twenty-one 661 

Article III. Who canuot maintain the action 663 

Section 1 . In general 662 

Section 2. Injured female unless by statute 662 

Section 3. The mother 663 

Section 4. Female over twenty-one 663 

Section 5. One consenting or negligent 663 

Article IV. Who made defendant 664 

Section 1. In general 664 

Article V. Damages 665 

Section 1. In general 665 

Section 2. Aggravation of damages 665 

Section 3. Mitigation of damages 666 

Section 4. Amount recoverable 667 

Article \a. Defenses 668 

Section 1. In general 668 

Section 2. Character of female 670 

Section 3. Character of plaintifE 671 

CHAPTER CXXn. 

SHrppiNG 672 

Article I. Of shipping in general 672 

Section 1. In general 672 

Article II. Of the title to vessels 674 

Section 1. In general 674 

Section 2. Sale of ships without writing 675 

Section 3. Transfer by bill of sale 675 

Section 4. Sale by master 676 

Section 5. Sale under decree of admiralty 677 

Section 6. Of possession by purchaser 677 

Section 7. What jJasses to purcliaser 677 

Section 8. General rules of sale applicable 677 

Section 9. Sale of part of a vessel 678 

Section 10. Sale of vessel at sea or abroad 678 

Section 11. iCortgage of vessel .... 678 

Section 12. Rights and liabilities of mortgagee 679 

Section 13. Recording mortgages and bills of sale 680 

Section 14. Of part-owners of a vessel 681 

Section 15. Liabilities for repairs or supplies 682 

Section 16. Liability for torts of employees 683 

Section 17. LiabHity to each other 683 

Section 13. Of tlie sliip's husband 683 

Section 19. Liens of part-owners 684 

Section 20. Suits by and against part-owners 685 



XX 



TABLE OF CONTENTS. 



Shipping — Continued. , page. 

Section 21. Liabilities of owners generally 685 

Article III. Bottomrj- and respondentia 686 

Section 1. In general 686 

Section 2. Bonds by the owner . . ., 687 

y. Section 3. Bond by the master 687 

Section 4. Dutj and obligation 688 

Section 5. Additional security 688 

Section 6. Bond for supplies or repairs 689 

Section 7. To whom borfd may be made 689 

Section 8. Bond good in part and void in part 689 

, Section 9. Hypothecation of freight. 690 

Section 10. Construction of bond 690 

Section 11. Special rules 690 

Section 12. Respondentia bonds 691 

Section 13. Validity of bonds 692 

Section 14. Enforcement of bonds 693 

Article IV. Use of the ship by the owner 693 

Section 1. In general 693 

Section 2. Carriage of goods on freight 693 

Section 3. Delivery to the vessel 694 

Section 4. Bill of lading 694 

Section 5. Liability for freight 696 

Section (x Delivery of goods by the vessel 697 

Section 7. Forwarding in other vessels 698 

Section 8. Freight pro rata 698 

Section 9. Ships as common carriers 698 

Section 10. Suing for non-delivery or injury to goods 699 

Section 11. Damages for breach of contract of affreightment. . 699 

Section 12. General liabilities of owner 700 

Article V. Of charter-parties 701 

Section 1. In general 701 

Article VI. Of general average 702 

Section 1. Definition and nature 702 

Section 2. Sacrifice of property for general good 702 

Section 3. Loss by perils of sea 703 

Section 4. Of the sacrifice generally 703 

Section 5. Sale l)y master 704 

Section 6. What expenses come in general average 704 

Section 7. Adjustment of general average 705 

Section 8. Wliat adjusted as general average losses 705 

Section 9. Cargo to contribute 706 

Section 10. Loss of freight or profit 707 

Section 11. Expenses 707 

Section 12. Value of interest on adjustment 707 

Section 13. Effect of adjustment 708 

Section 14. Foreign adjustment 708 

Section 15. Payment of adjustment 708 

Artirl'^ VT'^. Ptoppnge in frnnsifu 709 



TABLE OF CONTENTiS. xxi 

Shippeng — Continued. page. 

Article VIII. Of collision , 709 

Section 1. lu general 709 

Section 2. Lights - 71 i 

Section 3. Fog signals. 712 

Section 4. Steering and sailing rules 713 

Article IX. Carrying passengers .1 -. 715 

Section 1 . In general 715 

Section 2. Passengers by water 1 715 

Section 3. Power and duty of master 716 

Article X. Powers and duties of master 716 

Section 1. In general 716 

Section 2. Appointment and removal 717 

Section 3. Authority over crew , 717 

Section 4. Power over vessel '. 717 

Section 5. Power over cargo , . 717 

Section 6. Powers as agent of owners 718 

Section 7. Power as to supplies, repairs, etc 718 

Section 8. Power to hypothecate vessel 718 

Section 9. Power to sell vessel •. 718 

Section 10. Power to sell cargo 719 

Section 11. Duties and liabilities of master _ 719 

Section 12. Owner's liability for torts of master 720 

Section 13. Liens for wages, disbursements, etc 720 

Axticle XI. Of the seamen 721 

Section 1. In general ' 721 

Section 2. Shipping articles 721 

Section 3. Wages 722 

Section 4. Provisions 722 

Section 5. Seaworthiness of ship 722 

Section 6. Cure in sickness 722 

Section 7. Return home 723 

Section 8. Disobedience of seamen 723 

Section 9. Desertion of seamen 723 

Article XII. Of pilots 724 

Section 1. Powers and duties 724 

Section 2. Liabilities of owners for pilots 724 

Article XIII. Liens upon vessel 724 

Section 1. In general 724 

Section 2. "When a lien arises 725 

Section 3. Home and foreign ports 725 

Section 4. Lien, how lost or waived 725 

Section 5. Priority and enforcement 726 

CHAPTER CXXIII. 

Slander 727 

Title I. Of slander in general 727 

Article I. Of actionable words 727 

Section 1. In general 727 



Slakder — Continued 




Section 


3. 


Section 


3. 


Section 


4. 


Section 


5. 


Section 


6. 


Section 


rv 
i. 


Section 


8. 


Section 


9. 


Section 


10. 



xxii TABLE OF CONTENTS. 

PAGE. 

What words are actionble ^^cr se. 728 

What words are not actionable .... 729 

When special damage must be shown 730 

Charging crime 731 

Charging adultery or fornication 733 

Murder 734 

Arson 735 

Forgery 735 

Larceny 73G 

Section 11. Perjury 738 

Section 13. Other crimes and misdemeanors 740 

Section 13. Slander of profession, office or vocation. 741 

Article II. Action for slander 743 

Section 1. In general 743 

Section 3. Who may sue 745 

Section 3. Who may be sued 746 

Section 4. Of malice 746 

Section 5. Of the construction of the words 749 

Section 6. Of the damage 750 

Article m. Defenses 753 

Section 1. In general ... 753 

Section 2. Privileged communications 754 

Section 3. What are not privileged 756 

Section 4. Justification or excuse 758 

Section 5. Mitigation of damages 759 

Article IV. Slander of title 761 

Section 1. In general 761 

Section 2. When the action lies 761 

Section 3. Damages 763 

Section 4. Defenses 762 

CHAPTER CXXIV. 

Specific perfokmaxce 763 

Article I. Of specific performance in general. 763 

Section 1. Definition and nature 763 

Section 2. Discretion of the court 764 

Section 3. Jurisdiction as to land 765 

Section 4. Contracts as to personal property 766 

Section 5. Performance of personal acts, etc 767 

Section 6. Specific delivery of chattels 771 

Section 7. Matters submitted to arbitration 772 

Section 8. When left to courts of law 774 

Article II. What contracts may be enforced 775 

Section 1. In general 775 

Section 2. Contract must be one proper to be enforced 775 

Section 3. Covenants to sell or renew 776 

Section 4. Vendor of land, wlien he may enforce contract. . . . 778 

Section 5. When vendor cannot enforce 778 



TABLE OF CONTENTS. xxiii 

Specific pekformaxce — Continued. page. 

Section 6. When vendee may enforce 779 

Section 7. When vendee cannot enforce 780 

Section 8. Enforcing contracts of married women 783 

Section 9. Must be competent parties 784 

Section 10. Assent to the contract 735 

Section 11. Of the consideration 78G 

Section 12. Mutuality of contract 787 

Section 13. Certainty 788 

Section 14. Contract must be proved or admitted 790 

Section 15. Contract must be reasonable 791 

Section 16. Court will not vary terms of contract . 791 

Section 17. Vendor not compelled to jierform a different con- 
tract 792 

Section 18. Assignee of contract 793 

Section 19. Fairness and good faith 793 

Section 20. Fraud and misrepresentation 794 

Section 21. Mistake 795 

Section 22. Effect of waiver, release, novation, etc 796 

Section 23. Contract affects those only who claim under its 

parties 797 

Article III. Effect of the statute of frauds 797 

Section 1. Written contract or memorandum 797 

Section 2. Requisites of writing 798 

Section 3. Dispensing with writing 798 

Section 4. Effect of performance or payment of price 799 

Section 5. Effect of part performance 799 

Section 6. Taking possession and making improvements 800 

Section 7. Signing of contract by one party 802 

Article IV. Performance by complainant 802 

Section 1. Performance by plaintiff 802 

Section 2. When performance excused 803 

Section 3. Mode of performance 804 

Section 4. Tender, wlien necessary 805 

Section 5. What is sufficient tender 806 

Section 6. Effect of inability or failure of plaintiff to perform. . 807 

Section 7. When time is not of the essence of the contract 807 

Section 8. Where time is essential 808 

Article V. Effect of delay 810 

Section 1. In general 810 

Section 2. Delay arising from the state of the title 810 

Section 3. Compensation for delay 811 

Section 4. Where vendor seeks performance 813 

Section 5. Where vendee seeks jierformance , . . . . 815 

Section 6. Delay when not important 815 

Article VI. Parties to action 816 

Section 1. Wlio ought to be plaintiffs 816 

Section 2. When not proper parties plaintiff 817 

Section 3. Who to be defendants 818 



xxiv TABLE OF CONTENTS. 

Specific performance — Continued. pagh. 

Section 4. Who not to be defendant , . . . . 819 

Article VII. Pleadings 820 

Section 1. Bill or complaint 820 

Section 2. Plea or answer 822 

Section 3. Matters of defense 822 

Article VIII. Evidence 824 

Section 1. What is admissible 824 

Section 2. ^Yllat not admissible 825 

Section 3. Burden of proof 826 

Section 4. Variance 837 

Article IX. Decree - . 828 

Section 1. In general 828 

Section 2. The relief in general 829 

Section 3. Compensation in damages in lieu of performance 831 

Section 4. Compelling part performance 831 

Section 5. Decree, how enforced 831 



TABLE OF CASES. 



A. PAGE. 

Abbey v. Van Campen 208, 310 

Abbot V. Bayley 530 

Abbott V. Berry 89, 100 

Abbott V. Gilchrist 594 

Abbott V. Lyon 413 

Abbott V. Shepard 534 

Abdil V. Abdil 79 

Abell V. Warner 539 

Aberaman Iron Works v. Dickens. . . 764 

Abercrombie v. Knox 200 

Abraham v. Great Northern Ry 291 

Abrahams v. Kidney 656, 669 

Abrams v. Ervin 31 

Abrams v. Myers 140 

Abrams v. Smith 748 

Acebal v. Laroy 533 

Ackland v. Gravernor 303 

Acker v. Campbell 585 

Acker v. McCullough 734 

Acker v. PhceniX 771 

Acker v. White 504 

Ackerman v. Kink ov G 

Ackerman v. Voorhies 507 

Ackley v. Dygert 92 

Ackley v. Staehlin 131 

Acraman v. Morrice 542 

Adair v. State 404 

Adams v. Adams 493 

Adams v. Ames Iron Co 86, 90 

Adams v. Ashby 399 

Adams v. Dale 670 

Adams v. Flanagan 223 

Adams v. Funk 151 

Adams v. Haskell 388 

Adams v. Lindsell .535 

Adams v. McMillan 604 

Adams v. O'Connor 181, 547 

Adams v. Patrick 822 

Adams v. Roane 236 

Adams v. Robertson 443 

Adams v. Robinson 397 

Adams v. Scull 156 

Adams v. Saratoga, etc., R. R. Co. . . . 286 

Adams v. Smith 758 

Adams v. State 400, 415 

Adams v. Stevens. . 33, 487, 451, 452, 453 

Vol. y. — D 



PAGE. 

Adams v. Way 246 

Adams v. Wood 383 

Adcock V. Marsh 748 

I Adden v. White Mts. R. R. Co 298 

I Adderlay v. Dixon 625, 766, 767 

Addie v. McDonald 453 

Adolph V. Central Park, etc., R. R. 

I Co 345 

Adsit V. Brady 31 

Aechternacht v. Watmough 27 

Agawam Bank v. Strever 190 

Agnew V. 3ell 219 

Agnew V. Merritt 231 

Agra & Mastermans Bk. v. Leighton, 628 

Aguierre v. Parmelee 614 

Aiken v. Blaisdell 655 

Aiken v. Hyde 552 

Ainslie v. Wilson 205 

Ainsworth v. Bowen 176 

Akin V. Matteson 262 

Alabama, etc., R. R. Co. v. Kidd .... 810 
Albany, etc., R. R. Co. v. Brownell. . 278 

Albany Ins. Co. v. Devendorf 242 

Albergottie v. Chaphn 99 

Albert v. Winn 822 

Albright v. Tapscott 163 

Alcock V. Hill 245 

Alden v. Carver 476 

Alden v. Wells 108 

Alder v. Fouracre 154 

Alderman v. Tirrell 78 

Aldrich v. Cheshire R. R. Co 302 

Aldrich v. Drury 289 

Aldrich v. Grimes 68 

Aldrich v. Hapgood 219 

Aldrich v. Jackson 564 

Aid ridge v. Johnson 544, 545 

Alexander v. Alexander 735 

Alexander v. Bank 245 

Alexander v. Gardner 545 

Alexander v. Ghiselin 591 

Alexander v. Lewis 218 

Alexander v. Rea 444 

Alexander v. State 127 

Alexandria, etc., R. R. Co. v. Burke. 176 

177 



XX NT 



TABLE OF CASES. 



PAGE. 

Alfred v. Farlow 740 

Alger V, Tbacher 634 

Algier v. Black 507 

Alguire v. Commonwealth 413 

Allaire v. Howell "Works Co 156 

Allan V. Lake 557 

Allard v. Greasert 597 

Allen V. Aguirre , . . . . 595 

Allen V. Beal 777 

Allen %-. Bennet 604, 606 

Allen V. Berryhill 185 

Allen V. Brown 448 

Allen V. Burke 830 

Allen V. Central Val. Co 148 

Allen V. Central R. R. Co 389 

Allen V. Chambers 800, 820, 825 

Allen V. Clark 428 

Allen V. Commonwealth 28 

Allen V. Crary 458, 463 

Allen V. Culver 223 

Allen V. Davis 109 

Allen V. Delano .... 549 

Allen V. Deming 635, 636 

Allen V. Farrow 159 

Allen V. Gardiner 635 

Allen V. Hammond 536 

Allen V. .larvis 609 

Allen V. McGaughey 453 

Allen V. Minor 61 

Allen V. Robinson 10 

Allen V. Smith 462, 471 

Allen V. Staples 404 

Allen V. Webb 788, 790 

Allen V. Wells 149 

Allen V. Williams 547, 691 

Allen V. Wood 221 

Allensworth v. Coleman 750 

Allev V. Deschamps 763, 810 

AUev V. Neely 737, 751 

Alley V. People 418 

Allman v. Davis 543 

Alloway v. Braine 810 

Allsop v. Allsop 734 

Almy V. Harris 157 

Alpin V. Morton 759 

Alsbrook v. Shields 489 

Alton, etc., Uy. Co. v. Deitz 344 

Al van lev v. Kinnaird 795 

Alven V. Bond 384 

Alvord V. Smith 118 

Ambler v. Bradley Ill 

Amt;ricaa Bank Note Co. v. Edson . . 125 

AiJiericiiii Inn. Co. v. Ogden 719 

Ames V. Birkenhead Docks. .354,377, 3H8 

Ames V. Downing 144 

Amicable Ins. Co. v. Sedgwick 232 

Amory v. Brodrick 623 

Amory v. Fairbanks 420 

AnioH V. Sinnott 506 

Amoskeag, etc, Co. v. The John Ad- 

jiniH 714 

Anderson v. Brad ford 522 

Anderson v. Darby 48 



PAGE. 

Anderson v. Hapler 458 

Anderson v. Hughes 102 

Anderson v. Johett 32 

Anderson v. Lemon 119, 125 

Anderson v. Scott 576 

Anderson v. Tompkins 131 

Anderson v. Tydings 452 

Anderson v. Tyson 498 

Andres v. Koppenheafer 730, 741 

Andress v. State 409, 410 

Andrews v. Andrews 794, 828 

Andrews v. Askey 665, 668 

Andrews v. Bell 809 

Andrews v. Brown 121, 143, 764, 831 

Andrew v. Dieterich 533 

Andrews v. Durant 544, 546 

Andrews v. Keith 148 

Andrews v. Marrett 230, 241 

Andrew v. Newcomb 531 

Andrews v. Pr^.rtington 52 

Andrew v. Spurr 441 

Andrews v. Woodmansee 736 

Androscoggin, etc., R. R. Co. v. An- 
droscoggin R. R. Co 350 

Androscoggin R. R. v. Auburn Bank, 175 
Androscoggin R. R. Co. v. Richards . . 279 
Androscoggin, etc., R. R. Co. v. Ste- 
vens 281 

Angel V. McLellaa 64 

Angel V. Smith 354, 388 

Angell V. Keith 461 

Angle V. Alexander 743 

Annett v. Carstairs 679 

Anonymous. . 165, 179, 180, 361, 366, 373 
409, 730, 733, 744, 751, 814 

Anshutz's Appeal 819 

Anspach v. Railroad Co 301 

Anstedt v. Suter 583 

Anstice v. Holmes 492 

Anthony v. Anthony 434 

Anthony v. Chapel 188 

Anthony v. Leftwich 822 

Anthonj'' v. Wheatons 575 

Antoni^z v. State 399 

Apgar V. Hiler 219 

Apperson v. Moore 539 

Applegate v. Hogan 619 

Applegate v. Ruble 667 

Appleman v. Fisher 635 

Appleton V. Bascom 204 

Appleton V. Fullerton 89 

Appleton V. Parker 241, 242 

Aquierre v. Allen 605 

Arbuthnot v. Norton 28 

Anjhibald v. Argall 583 

A idon V. Sharpe 129 

Arendale v. Morgan 173, 180 

Arinington v. Houston 586 

Armistead v. Ward 244 

Armitage v. Baldwin 216 

Armitage v. Insole 568 

Armitage v. Pulver 222, 225 

Armour v. Michigan Cent. R. R. Co. . 315 



TABLE OF CASES. 



XX\^] 



PAGE. 

Armstrong's Appeal 215, 2lS 

Armstrong v. Bufford 566 

Armstrong v. Falinestock 119 

Armstrong v. Hussey Ill, 114 

Armstrong v. McDonald 55 

Armstrong v. McMillon 491 

Arnold v. Brown 131, 136, 138, 140 

Arnold v. Delano 620, 621 

Arnold v. Fowler 4.38 

Arnold v. Fuller 643 

Arnold v. Hicks 215 

Arnold v. Mayor of Poole 784 

Arnold v. Shields 250 

Arnot V. Woodburn 214 

Arnott Y. Pittston, etc.. Coal Co 63G 

Arnoux v. Homans 797 

Arrison v. Commonwealth 649 

Arrington v. Sneed 25 

Ai'taza V. Smallpeice 603 

Artcher v. Dudley 505 

Arther v. Pearson 805 

Arthur v. Arthur 440 

Artieta v. Artieta 729 

Artisans' Bank v. Backus 241 

Artz V. Grove 799, 822 

Asbury v. Flesher 205 

Ashby V. Eastern R. R. Co 297 

Ashby V. Smith 234 

Ashby V. West 494 

Ashcom V. Smith 514 

Ashe V. Johnson 767 

Ashley v. Ashley 793 

A^hmore v. Evans 815, 827 

Ashtabula, etc., R. R. Co. v. Smith. . 276 

Ashlou V. Sproule 240 

Ash worth v. Stanwis .... 107 

Astey V. Emery 597 

Aston V. Blagrave 741 

Astor V. Turner 363 

Atcherley v. Vernon 793 

Atkins V. Baily 204 

Atkins V. Byrnes 491 

Atkins V. Cobb 629 

Atkinson v. Bell 545, 546 

Atkinson v. Maling 168, 675, 677 

Atkinson v. Marietta, etc., R. R. Co. 286 

295 

Atkinson v. Reding 735 

Atkinson v. Scammon 736 

Atlanta v. Grant 282 

Atlanta, etc., R. R. Co. v. Speer 451 

Atlantic Tel. Co. v. Barnes 239 

Atlantic Ins. Co. v. Conard 688 

Atlantic, etc., R. R. Co. v. Reisner . . 313 

Atlas Bank v. Brownell 192, 228, 239 

Atone V. Hicks 723 

Attorney-Gen. v. Bank of Columbia. . 377 

Attorney-Gen. v. Barstow 270 

Attorney-Gen. v. Blossom 266 

Attorney-Gen. v. Chicago, etc., R. R. 

Co 333 

Attorney-Gen. v. Delaware, etc., R. R. 

Co 264 

Attorney-Gen. v. Foote 2l!u 



PAGE. 

Attorney-Gen. v. Forbes 36 

Attorney-Gen. v. Mathias 18 

Attorney Gen. V. Petersburg, etc., R. 

R. Co 2S3 

Attorney-Gen. v. Poole 12 

Attorney-Gen. v. Purmort .522 

Attoruey-Gen. v. Riddle 162 

Attorney-Gen. v. Sitwell 799 

Attorney-Gen. v. Utica Ins. Co 258 

Attorney-Gen. v. Vigor 383, 390 

Atwatei' V. Clancy 605 

Atwater v. Hough 593 

Atwell V. Miller 575 

Atwood v. Cobb 569 

Atwood v. Emery 569 

Atwood v. Fisk 513 

Atwood V. Holcomb 54 

Atwood V. Lucas .599 

Atwood V. Vincent 214, 217 

Aubin V. Holt 76'.) 

August V. Seeskind 445 

Augusta, etc., R. R. Co. v. Renz 345 

Augusta V. Sweeney 11 

Auriol V. Smith 77'J 

Austin V. Charlestown 62 

Austin V. Charlestown Fem. Sem. . . 79 

Austin V. Craven 543 

Austin V. Curtis 243 

Austin V. Ewell 780, 796 

Austin V. Goodale 644 

Austin V. Reynolds 049 

Austin V. Towney 809 

Averill v. Hedge 535 

Averill v. Taylor 427 

Avery v. Griffin 783 

Avery v. Ryerson 431, 432 

Aylett V. Ashton 782 

Ayles V. Cox .... 814 

Ayer v. Ayer 45, 55 

Ayers v. Grider 738 

Avers v. Hewett 481 

Ayre v. Craven 731, 742, 744 

Ayres v. Ilewett 459 

Ayres v. Mitchell 512 

Azemar v. Cassella 536 



B. 



Babcock v, Hubbard 204 

Babcock v. Stone 129 

Babcock v. Western R. R. Co 284 

Babonneau v. Farrell 743 

Bach V. Owen 623 

Bachelder v. Fiske 222 

Bachellor v. Priest 207, 209, 212 

Bachman v. Chrisman. 103 

Backus' Appeal 773 

Backus v. Richardson 729, 743 

Bacon v. Dahlgreen 204 

Badger v. Phinney 72, 74 

Badger v. State 403, 417 

Badgley v. Decker 660, 662, 666 

Eadlam v. Tucker 177, 678, 679 



:viu 



TABLE OF OASES. 



PAGE. 

Baglehole v. Walters 677 

Bagot V. Bagot ^77 

Bagott V. Arnott C3-4 | 

Bagott V. Mulleu 222 

Bagueley v. Ilawley 560 

Bailey v. Adams 242 | 

Bailev v. Belmont 358 . 

Bailev v. Colby 174 

Bailey v. Collett 812 I 

Bailev v. Freeman 188 | 

Bailey v. Gould 243 j 

Bailey v. James 792 

Bailey v. Litten 521 

Bailev v. New 234 

Bailey v. Ogden 575, 591, 603 

Bailev v. Ricketts 570 

BaileV v. Rust 88 

Bailay v. Sisson 82 

Bailey v. Smith 542 

Bailev v. Sweeting 589. 597, 604 

BaileV v. Welch 211 

Bain V. Clark 490 

Baines v. Ewing 608 

Bainbrigge v. Blair 392 

Bainhridge v. Kinnaird 783 

Bainbridge v. Wade 188 

Baird v. Baird 86, 153 

Baird v. Commonwealth 402 ] 

Baker v. Backus. . 107, 355, 357, 358, 375 

377 

Baker v. Baker 45, 55 | 

Baker t. Briggs 233 

Baker v. Dening 606 j 

Baker v. Drake 169, 176 I 

Baker v. Dubois 458 

Baker v. Fales 476 

Baker v. Garrett 196 

Baker v. Glass 790 

Baker v Gray 674 

'inker v. Ilaldeman 53 

Baker v. Hathaway 783 

Baker v. Henderson 555 

Baker v. Hoag 455, 458 

Baker v. HoUobaugh 799 

Baker v. Hudson River R. R. Co 338 

Baker v. Keene 51 

Boker v. Kennett 67 

Baker v. T.ever 508 

Baker v. Lovett 61 

Baker v. Marshall 245 

Baker v. Pierce 749 

Baldey v. Parker 597, 599 

Baidiiey V. Ritchie 68o 

Bald win v. (!ooley 250 

Baldwin v. Farn.sworth 570 

Baldwin v. Mississippi, etc.,R.R. Co, 282 

Baldwin v. Richardson 134 

Baldwin v. Soule 744, 747 

Baldwin v. Tynes 133 

liiild win V. Van Vorst 808 

Baldwin v. Williams 595 

Baldwin v. Western Reserve Bank. . 24(! 

Bale.s of Cotton 707 

Bales V. Scott 498 



PAGE. 

Ball V. Bruce 657, 661 

Ball V. Storie 790 

Ballard v. Burgett 548 

Balientine v. Robinson 573, 609 

Ballou V. Hale 84 

Ballou V. O'Brien 4, 481 

Balmanueo v. Lumley 782 

Baltimore v. Baltimore 27 

Baltimore, etc., R. R. Co. v. Blocker. 311 
Baltimore, etc., Turnp. Co. v. Boone, 342 
Baltimore, etc., R. R. Co. v, Comp- 

ton 295 

Baltimore, etc., Ins. Co. v. Dalrymple, 175 

179 
Baltimore, etc., R. R. Co. v. Glenn, 282 
Baltimore, etc., R. R. Co. v. Lan- 
sing 298 

Baltimore, etc., R. R. Co. v. Magru- 

der 292 

Baltimore, etc., R. R. Co. v. Mc Cul- 

lough 304 

Baltimore, etc., R. R. Co. v. Mulli- 
gan 331 

Baltimore, etc., Ry. Co. v. Nesbit . . . 286 
Baltimore, etc., R. R. Co. v. Reaney, 291 

302 
Baltimore, etc., R. R. Co. v. Wilkens, 315 

694, 718 
Baltimore, etc., Ry. Co. v. Wilkinson, 340 

Bamtield v. Massey 670 

Baiiclior v. Marnel (J36 

Banchor v. Warren 586, 587 

Bancroft v. Pearce 206 

Bauet V. Alton, etc., R. R. Co 277 

Bangor, etc., R. R. Co. v. McComb. . 298 

299 

Bangs V. Strong 232 

Bank v. Carrolton Railroad 148, 154 

Bank v. Dixon 245 

Bank v. Douglass 238 

Bank v. Fletcher 216 

Bank v. Horn 138 

Bank v. Johnson 246 

Bank v. Joynes 191 

Bank v. Matson 245 

Bank v. Saifarrans 130 

Bank v. Sattorlee 189 

Bank v. Sears 232 

Bank v. Smith 234 

Banks v. Conant 45 

Banks v. Potter 382, 393 

Bank of Ala. v. Godden 203 

Bank of Albion v. Burns 187 

Bank of America v. McNeil 177 

Bank of Bethel v. Pahquioque Bank, 360 

380 

Bank of Hopkinsville v. Rudy 216 

Bank of Middlobury v. Edgerton . . . 272 
Bank of Middlebury v. Rutland, etc., 

R. R. Co 10 

Bank of Miss. v. Duncan 353 

1 Bank of Monroe v. Schermerhorn. . . 393 
, Bank of N. Y. v. Vanderhorst. . 129, 1:17 
' Bankhart v. Bowers ~ '9 



TABLE OF CASES. 



xxi:; 



P^GE. 

Bannerman v. Clarke 812 

Barbee r. Pitman 287 

Barber v. Burrows 24U 

Barber v. Graves 79 

Barber Surgeon's Co. v. Pelson 158 

Barbour v. VVLite 485 

Barclay v. Clyde 698 

BarcLiy R. R., etc., Co. v.Ingbam. . . . 297 

BardTrell v. Catchpole 432 

Bard well v. Perry 149 

Barficld v. Price 508, 524 

Bargat" v. Sbortridge 118 

Barger v. Barger 740 

Bariug v. Corrie 584 

Baring v. Crafts 146 

Baring v. Dix 189 

Baring v. Louder 684 

Baring v. Lyman 106 

Barker v. Cheriot 696 

Barker v. Hibbard 65 

Barker v. Higbley 6S4 

Barker v. Marine Ins. Co 



589 

Barker v. McClure 246 

Barker v. Midland Ry. Co 278 

Barker v. Miller 83 

Barker v. Phoenix Ins. Co 704, 707 

Barker v. Wilson 66 

BarkfM- v. Windle 572 

Barkley v. Barkley 780 

Barkley v. Lord Reay 365 

Barksdale v. Payne 765 

Barksdull v. NewOrleans, etc., R. R. 

Co 344 

Bark worth v. Young 821 

Barlow v. Scott 764 

Barnaby v. Barnaby 63 

Barnard v. Kellogg 554, 564, 565 

Barnard v. Lee 802, 809 

Barnard v. Pope 90 

Barnard v. Wallis 284 

Barnard v. Yates 564 

Barnardiston v. Chapman 685 

Barnes v. Barnes 767, 770, 774 

Barnes v. Bartlett 438 

Barnes v. Bruddel 751 

Barnes v. Cole 711 

Barnes v. Foley 34 

Barnes v. Gregory 442 

Barnes v. Morris 213 

Barnes v. Tannehill 493 

Barnes v. Wood. 781, 815 

Barney v. Baltimore 94 

Barney v. Brown 576 

Barney v. Clark 245 

Barney v. Douglass 499 

Barney v. Smith 147 

Barnett v. Higgins 779 I 

Barnett v. Reed 190, 229 

Barnett v. Smith 114 

Barnett v. Stanton 562, 632 ' 

Barr v. Gibson 565 > 

Barr v. Hughes 496 ; 

Barr v. Logan 619, 020 

Barr v. Myers 570 ! 



PAGE. 

Barrera v. State 400 

Barratt v. Collins 746 

Barrett v. Barrett 55 

Barrett v. Cole. . . 173 

Barrett v. Darlington, etc., Ry. Co. . . 316 

Barrett v. Deere 584 

Barrett v. Goddard 548 

Barrett v. Hall 55T 

Barre Lewis 1 78 

Barrett v. Seward . . . 5? 

Barrett v. Third Av. R. R. Co 885 

Barron v. Barron 819 

Barron v. Tart 65! 

Barrow v. Arnaud 609, 622 

Barrow v. Barrow 783, 784 

Barrow v. Y»^indow 618 

Barrows v. Downs 117 

Bartholow v. Bean 229 

Bartholomew v. Finnemore 72 

Bartle v. Vosburg 445 

Bartle v. Coleman 106 

Bartlett v. Dubuque, etc., R. R. Co.. . 806 

Bartlett v. Hoppock 561 

Bartlett v. Wells 80 

Barvlett v. Williams 679 

Bartley v. Richtmeyer.. 46,657,659 660 

661, 669 

Bartemeyer v. Iowa 635 

Bartolett v. Achey 157 

Barton v. Kane 574 

Barton v. Lord Downes si5 

Barton v. Vanzant 410 

Barton v. Williams 681 

Bartow v. Brands 748 

Barwick v. Noakes 582 

Barwick v. Reade 1 71 

Bash V. Sommer 746 

Bass V. Chicago, etc., R. R. Co 3^7 

Bass V. Gilliland 829 

Bass V. Tavlor 140, 142, 143 

Bassell v. Elmore 731, 745, 752 

Bassett v. Armstrong 471 

Basse tt v. Spofford 744 

Bast's Appeal 125 

Batchellor v. Lawrence 612 

Bate V. Hill 670 

Bateman v. Lyall 751 

I3ateman v. Mid. Wales Ry. Co 280 

Bates V. Ball 529 

Bates V. Brothers 368 

Bates V. Ccnrow 432 

Bates V. Coster 537, 593 

Bates V. State Bank 236 

Bates V. \Mlbur 502 

Batesville Institute v. Kauffman .... 11 

Rath V. Miller .503 

Batsford v. Every 635 

Batson v. Lasselle 224 

Battaile v. Fisher 386 

Battis V. Hamlin 488 

Battle V. Davis 355, 379 

Battle V. Han 208, 210 

Battle V. Stephens 201 

Batturs v. Sellero 603 



:vxx 



TABLE OF CASES. 



PAGE. 

Battv V. McCundie 126 

Baucu3 V. Albany Northern R. R. Co. 349 

Bauendahl v. Horr 547 

Baum V. Stevens 555 

Baviugton v. Clarke 87 

Bawrtee v. Watson 785 

Baxter v. Brooks 20 

Baxter v. Bush 'i^3 

Baxter v. Conolly 770 

Baxter v. Knowles 82 

Baxter v. Moore 222 

Baxter v. West 361, 362 

Bay V. Gunn 78, 81 

Bay City, etc., R. R. Co. v. Austin. . 332 

Bayler v. Commonwealth 787 

Bavlis V. Dineley 66 

Beach v. Cooke 427 

Beach v. Ranney 746, 751 

Beacli V. Shaw 429 

Beacham v. Eckford 124 | 

Beadleston v. Sprauge 160 

Beal.s V. Cobb 431 

Beals V. Olmstead 555 

Beals V. See 529 

Bean v. James 582 

Beau V. Parker 192 

Beard v. Hubble 439 

Beard v. Linthicum 788 

Beard v. Webb 530 

Beardsley v. Duutley 795, 800 

Beardsley v. Hall 132 

Beardsley v. Warner 216 

Beardsley Scythe Co. v. Foster 817 

Beasley v. McGrath 785 

Beason v. Porterfield 424 

Beatty v. Sylvester 183 

Beatty v. Wray 144 

Beaumont v. Brengeri 600 

Beaumont v. Meredith 139 

Beauregard v. Case 109 

Beavau v. McDonnell 529 

Beaver v. Beaver 208, 210 

Beazley v. xMitchell 528 

Bechervaise v. Lewis 186 

Bechtell v. Shatler 744 

Bech V. Allison 771 

Beck V. Simmons 512 

Beck V. Stitzel 742 

Becker v. Boon 133 

Becker v. TenEyck 22 

Beckley v. Muusou 206, 212 

Beck with v. Kouns 803 

Beck with v. I'hilleo 475, 479 

Bedell v. Lf^wis 79 

Bedford v. Brutton 152 

Bedford ". McKowl 66S 

Bedford Ins. Co. v. Parker 707, 708 

Bee v. San Francisco, etc., R. R. Co. . 314 

Be»'be v. Robinson 9,13, 37 

Beechcr v. < TouHe 76 

Beel.:r v. Bullitt 80 

Beeler v. Young 01, 67 

Beers v. Chelsea Bank 393 

Beer.s v. Rcynolda 116 



PAGE 

Beers v. Wuerpul 46 ! 

Beesley v. Hamilton 191 

Beeson v. Carlton (i2 

Beetem v. Burkholder 516 

Bee vor v. Luck 426 

Beirne v. Dord 554 

Belden v. Laing 489 

Beldeu V. Perkins . 167, 173, 174 

Belding v. Reed 532 

Belfast, etc., R. R. Co. v. Brooks 276 

Belfast V. Morrill 9, 14 

Belknap v. Sealey 778 

Bellv.Bruen 186,189 

Bell V. CafFerty 564 

Bell V. Drummond 19 

Bell V. Farusworth 739, 760 

Bell V. Farrar 541, 584 

Bell V. Hartman 511 

Bell V. Indianapolis R. R. Co 351 

Bell V. Jasper 225 

Bell V. Lamkin 219 

Bell V. Lawrence 513 

Bell V. Martin 233 

Bell V. Morrison 132 

Bell V. Moss 613, 615 

Bell V. Offutt 609, 610, 619 

Bell V. Phyn 120 

Bell V. Rinker 055 

Bell V. Shiblev 885 

Bell V. Thompson 807, 820 

Bell V. Vance 522 

Bell V. Williams 652 

Bells Gap R. R. Co. v. Christy 30.") 

Bellaii' v. Ebs worth 194 

Beller v. Block 541 

Bellows V. Allen 218 

Bellows V. Lovell 236, 245 

Bellows v. Wells 531 

Belt v. Marriott 598 

Belton V. Fisher 147 

Bement v. Smith 546, 573 

Bendell v. Hettrick Ill 

Bendish v. Lindsey 740 

Benedick v. Bachelder 508 

Benedick v. Davis 113 

Benedict v. Field 553 

Benedict v. Lyuch 808 

Benedict v. Schaettle 613 

Beuford v. Schell 576 

Benjamin v. Stremple 181 

15eiijiunin v. Wheeler 36 

Beniii'son v. Bill 377 

Bennett's Case 142 

Bennett v. Abrams 829 

Bennett v. Bayes 494 

Bennett v. Cliapin 389 

Bennett v. Button 323 

B.-nnett v. Earll 578 

Bennett v. Smith 671 

lien.ion v. New Jersey R'y, etc., Co.. . 323 

Benson v. Thompson 082 

Bent V. Manning 64 

B(!nt]i;y v. Craven 125 

Beutlev v. Sevier 041 



TABLE OF CASES. 



XXXI 



PAGE. 

Benton v. Central R. R. Co 330 

Benton v. Chamberlin 114 

Benton v. Fletcher 200 

Beresford v. McCune 620 

Berghoff V. Heckwolf 505 

Bergold v. Puchta 729, 742 

Berks County v. Ross 2^1 

Berlin v. Eddy 179 

Bernard v. Torrance 145 

Berndtson v. Strang 615 

Berney v. Sewell 363 

Berolles v. Ramsay 65 

Berrett v. Oliver 783 

Berry V. Brett 385 

Berry v..Carter 734 

Barry v. Cox 784 

Berry v. Van Winkle 764 

Berthold v. Fox 476, 484, 498, 501 

Bertie v. Lord Abingdon 394 

Bertram v. Lyon. 557 

Bertrand v. Daviea 393 

Best V. Bauder 158 

Best V. Givens 67 

Best V. Staple 679 

Best V. Stow. 823 

Bestor v. Wathen 15 

Beswick v. Cliappell 740 

Bethea v. McColl 89 

Bethel v. Lloyd 97 

Betterbee v. Davis 582 

Betts V. Gibbins 632 

Bendel v. Hettrick 112 

Beverly v. Brooke 354, 363 

Beyer v. Marks 831 

Bezzell v. White 225 

Bibb V. Martin 199 

Bickel V. Erskine 80 

Bickett V. White 790 

Bierce v. Red BluflF Hotel Co 615 

Biernan v. Braches 150 

Bigelow V. Benton. 189 

Bigelow V. Cassedy 426, 430, 432 

Bigelow V. Grannis 70, 78, gl 

Bigelow V. Kinney 69 

Bigelow V. Littlefield 89 

Bigelow V. Willson 419 

Bigge V. Parkinson 562 

Biggs V. Perkins 566 

Bigler v. Flickinger 559 

Bigley v. Williams 715 

Bill v. Bament 598, 600 

Bill V. Cureton 787 

Bill V. Smith 710, 714 

Bills V. Vose 497 

Billings V. Sprauge 215 

BilliH..rs V. Waller 758 

BillingtOH V, Wagoner 240 

Binney v. Annan 767 

Binsse v. Wood 202 

Birch V. Benton 731 

Birch V. Jov 852 

Birchett v. Boiling 769 

Bird V. Benton 209 

Bird V. Boulter 607 



PAGE, 

Bird V. Brown 613, 614 

Bird V. Hamilton 123 

Bird V. McCoy 114 

Eirdv. Pegg 79 

Birdsall v. Patterson 480 

Birge v. Edgerton 573 

Birkenhead, etc., R'y Co. v. Pilcher.. 59 

Birkley v. Presgrave 703, 706 

Birley v. Gladstone 698 

Birtwhistle v. Vardill 41 

Bisbey v. Shaw 759 

Bishop V. Breckles 136 

Bishop V. Day 195 

Bishop V. Drake 647, 649 

Bishop V. Georgeson 105, 114 

Bishop of Winchester v. Mid Hants 

Rv. Co 818 

Eis.sell V. Campbell 695, 700 

Bissell V. Cornell 728 

Bissell V. Mepham 719 

Blackford v. Preston 634 

Black V. Black 120 

Black V. Bush 108 

Black V. Ottoman Bank 192, 198, 239 

Blackburn v. Beall 230 

Blackburn v. Mackey 51 

Blackburn v. Vick 10 

Blackmau v. Pierce 614, 615 

Blackmore v. Shelby 531 

Blackwell v. State 192, 641 

Black well v. Wiswall 309 

Blackwilder v. Loveless 765 

Black River, etc., R. R. Co. v. Barnard 

274, 297 
Black River, etc., R. R. Co. v. Clarke. 274 

Black River Bk. v. Page 238 

Blaerden v. Bradbear 799 

Blagg V. Stark 747 

Blaine v. Chesapeake & Ohio R. R. 

278, 331 
Blaine v. Ship Charles Carter. . . 690, 692 

Blair v. Erie Ry. Co 322 

Blair v. Parker 649 

Blair v. Perpetual Ins. Co 189 

Blair v. Snodgrass 798 

Blai.'idell v. Todd 588 

Blake v. Buffalo Creek R. R. Co 310 

Blake v. Cole 225 

Blake v. Dorgaa 139 

Blake v. Rich 288 

Blake v. Shaw 34 

Blakely v. Calder 93 

Blakemore v. Glamorganshire Canal 

Co 294 

Blakeuey v. Dufaur 155, 376, 390 

Blanchard v. Cawthome 357 

Blanchard v. Child 482, 483 

Blanchard v. Detroit, etc., R. R. Co.. . 775 

Blanchard v. Illslev 661 

Blanchard v. McDougal 800 

Blanchard v. N. J. Steamboat Co 715 

Blandford v. Barger 243 

Blazer v. Bundy 241 

Blenkinsop v. Clayton 601 



xxxu 



TABLE Ox^ CASES. 



PAGE. 

Blest V. Brown 226 

Blewett V. Baker 806 

Blewett V. Evans 567 

Bliph V. James 636 

Bliss V. Lawrence 28 

Bliss V. Passumpsic River Ry 293 

Blodgett V. Bickford 228 

Blodgett V. Hildreth 93 

Blodgett V. Weed 126, 128 

Blondbeim v. Moore 355, 374 

Blood V. Palmer 539 

Bloodgood V. Clark 358 

Bloodgood v. Mohawk, etc., R. R. Co. 

286 

Blood worth, v. Gray 728 

Bloom V. Burdick 79 

Bloomer v. Craie: 491 

Bloomer v. Juhel 497 

Bloomfield, etc., Gas-light Co. v. Cal- 
kins 290 

Bloomington v. Ileiland 396 

Bloxam v. Sanders 568 

Bloxsome v. Williams 635 

Blue V. Leathers 110 

Blum V. !Marks 613 

Blumenthal v. Brainard 385 

Blunt v. Clitherow 390 

Blunt V. Melcher 78 

Blydenbnrgh v. Bingham 234 

Blydenburgh v. Welsh 568 

Blyth V. Smith 206 

Board man v. Gore 127, 129 

Boardman v. Spooner 604 

Board of Commissioners v. Dougherty 163 
Board of Commissioners v. Sivey. ... 26 
Board of Commissioners v. Spitler. . . 251 
Board of Liquidation v. McComb. ... 16 

Board of Supervisors v. Arrghi 523 

Bobbitt V. Flowers 219 

Bobo V. Hansen 67 

Bodine v. Commonwealth 648 

Bodine v. Glading 788 

Bod well V. Eastman 126 

Bodwi-U V. Osgood 753 

Bod well V. Swan 753, 760 

Boelim V. Wood 371, 373 

Boeklen v. Hardenbergh 105 

Bogaii V. Camj) 775 

Bogan V. Daughdrill 839 

Bogan V. Stoutenburgh 463 

Bogard v. Jones 476 

Bogardus v. Parker 94 

Boggs V. Curtin 207 

Bogget V. Frier 530 

Bogie V. Bogie 520 

Boice V. Maine 246 

BoifH V. Vincent 023 

Boisauljin v. Reed 538 

Boit V. Maybin 637 

Bobui V. Williamson ;'2 

Bolander V. (ientry 26 

Bolinger v. Fowler 049 

Boll.,-H V. Duff 363, 393 

BmIIo V. Navarro 98 



PAGE. 

Bomior v. Caldwell 808, 827 

Bompart v. Roderman 83 

Bond V. Bronson 479 

Bond V. Clark 555 

Bond V. Paddlf ford 34 

Bond V. The Superb 704 

Bouduraut v. Crawford 639 

Bouested v. Orvis 501 

Bonham v. Galloway 207 

Bonnell v. Chamberlin 533 

Bonner v. Coleman 500 

'.■onner v. Kennebeck Purchase 90 

Bonner v. McPhail 739 

Bonner, Petitioner 83 

Bonnett v. Sadler 795 

Bonney v. Seely 305, 207 

Bonsailv. Comly 479 

Boobier v. Boobier 60 

Boody v. McKenney 67, 70 

Boody V. Rutland, etc., R. R. Co 633 

Booe V. Wilson. 205 

Bool V. Mix 59, 66 

Boone v . Boone 99 

Booth V. Ableman 500 

Booth v. Clark 379 

Booth V. Pollard 768 

Booth V. Spuyten Duyvil Rolling Mill 

Co 624 

Boothby v. Scales 557 

Bopp v. Fox 131 

Bordeaux v. Erie Ry. Co 317 

Bordelon v. Weymouth 237 

Bormin v. Elliott 753 

Borradaile v. Brunton 637 

Borichert v. Brown 227, 234 

Rosley v. Taylor 220 

Bostick V. Brittain 471 

Boston, etc., Co. v. Condit 91 

Boston Bank v. Chamberlain .... 66, 70 
Boston Water Power Co. v. Boston, 

etc., R. R. Co 291 

Boston, etc.. Steamboat Co. v. Munson. 710 
Boston Gas-light Co. v. Old Colony, 

etc, R. R. Co 301 

Boston, etc., R. R. Co. v. Wellington 

275, 277 

Bostwick V. Atkins 68 

Bostwick V. Elton 381 

Bostwick V. Isbell 361 

Bostwick V. Menick 388 

Bostwick V. Stiles 439 

Boswoll V. Green 130, 574 

BoHweli V. Kilborn ... 609 

Botelar v. Bell 760 

Hoitiller V. Newport 58 

Botianchaud v. D'Herbert 4 

Bourluuid V. Dias 223 

Bonchc V. Rvan 76 

Bouchell V. Clary 67 

Bouduir v. Vanbuskirk 802 

Boiick V. Wilber 773 

Bougliton V. Bank of Orleans 219 

Houghton V. Standish 632 

Boughtou V. United States 177 



TABLE OF CASES. 



XXXlll 



PAGE. 

Bouldin v. Alexander 460 

Boultbee v. Stubbs 195 

Boultou V. Jones 53G 

Boult on V. Lundy 235 

Boulsvnre v. RobinBon 205 

Bound V. Latlirop 132 

Bourk V. Riggs 494 

Bourne v. Bourne 419 

Bourne v. Sej'niour 572 

Boutelle v. Nourse 1G3 

Boutell V. Warne 022 

Boutwell V. Foster 635 

Bowditcli V. Green 220 

Bowen v. Argall 115 

Bowen v. Burk 585 

Bowen v. Hull 760 

Bowen v. Hutching 473 

Bowen v. Pvne 412 

Bowen v. Rutherford 113, 114 

Bower t. B., etc., Ry. Co 332 

Bower v. Higbee 490 

Bowers v. Johnson 557 

Bowers v. Law 769 

Bowie V. Maddox 113 

Bowie V. Neale 652 

Bowler v. Bingham 48 

Bowles V. McAllen 90 

Bowlin V. Pollock 514 

Bowling V. Scales 367 

Bowman v. Bailey 110 

Bowman v. Clemmer 565 

Bowman v. Conn 597 

Bowman v. Cunningham 777, 789 

Bowyer v. Bright 813 

Boyce v. Bayliffe 716 

Boyce v. Burchard 155 

Boyce v. Grundy 515 

Boyce v. Higgins 160 

Boyce v. McCulloch 797 

Boyce v. Washburn 596 

Bovd V. Blaisdell 60 

BoVd V. Brent 734 

Boyd V . Byrd 659 

Boyd V. Mc Adams 495 

Boyd V. Mynott 124 

Boyd V. SifiFkiu 547 

Boyd V. Wilson 554 

Boydel] v. Jones 744 

Boyden v. Boyden 68 

Boyden v. United States 39 

Boylan v. Anderson 647 

Boyle V. Phila., etc., R. R. Co 316 

Boyle V. Rowaud 812 

Boynton v. Clay 76 

Boynton v. Veazie 575 

Bozeman v. Browning 62, 72 

Bozon V. Farlow 770 

Brace v. Reid 103 

Brace v. Wilmert 768 

Braches v. Anderson 128 

Brackenbury v. Pell 505 

Bracy v. Kibbe 46, 660 

Bradbury v. White 794 

Braden v. Gardner 684 

YOL. Y— E 



PAGE. 

Bradford v. Bradford 438, 452 

Bradford v. Justices 4 

Bradford v. Marberry 573, 574 

Bradley v. Amidon 75 

Bradley v. Baldwin 164 

Bradley v. Chamberlain 124 

Bradley v. Fuller 94 

Bradh'y v. Gamelle 486 

Bradley v. Gibson 760 

Bradley v. Heath 755 

Bradley v. New York, etc., R. R. Co. 286 

Bradley v. Pratt 78 

Bradley v. Rea 627, 628 

Bradley v. Sylvester 263 

Bradshaw v.'Callaghan 89, 92, 96 

Bradshaw v. Thomas 586 

Bradstreet v. Baldwin 697 

Bradstreet v. Neptune Ins. Co 677 

Bradt v. Towsley 731, 750 

BradAvay v. Le Worthy 165 

Bradv v. Howe 8, 267 

Brady v. Todd 557 

Braidy v. Theritt 10 

Brainard v. Arnold 447 

Brainard v. Clapp 288 

Brainard v. Cooper 423 

Brainard v. Missisquoi R. R. Co 290 

Bragg V. Morrill 562 

Bragg V. Sham 232 

Braker v. Devereux 95 

Braley v. Boomer 203 

Braucli v. Branch 504 

Branch V. Elliot 5 

Branch Bank v. James 189 

Branch Bank v. Robertson ........ 199 

Branch Bank v. Robinson 210 

Brancker v. Molyneaux 679 

Brand v. Boulcott 211 

Brandenburg v. Flynn 221 

Braiidon v. Nesbitt 634 

Brandt v. Bowlby 543, 623, 700 

Brantley v. West 451 

Brashier v. Grats. . ." 799, 808 

Brassell v. McLemore 804 

Brav V. Bates 686 

Bray v. Howard 238 

Brav V. Wheeler 60 

Brayley v. Goff 135 

Brayshaw v. Eaton 65 

Brearley v. Cox 478 

Breckinridge v. Clinkiubeard 804 

Breckenridge v. Hoke 812 

Breckinridge v. McAfee 528, 637 

Breckenridge v. Waters 522 

Breed v. Judd 73 

Breese v. Schuvler 203 

Brehen v. O'Donnell 549. 581 

Brenmer, Ex parte 24 

Brenan v. Preston 357 

Brent v. Green 607 

Brent v. Hagner 480 

Brettel v. Williams 604 

Brewer v. Brewer 800 

Brewer v Fleming 478 



XXXIV 



TABLE OF CASES. 



PAGE. 

Brewer v. Franklin Mills 217 

Brewer v. Knapp 203, 225, 226 

Brewer v. Thorp 80(> 

Brewer v. Wilson 824 

Brewster v. Hardman 132 

Brewster v. Hartley 168 

Brewton v. Smith 447 

Bricker v. Potts 739 

Brickett v. Davis 758 

Brick nail v. Waterman 564 

Bridge v. Ford 396, 409, 412 

Bridge v. McCullough 149 

Brido'e v. The Grand Junction R. R. 

711 



Brigg.s 
Briggs 



Co 

Bridge v. W^yman 

Bridges v. Hales 

Bridges v. Nicholson 194, 

Bridges v. Phillips 

Bridges v. Winters 

Bridgman v. Hopkins 

Bridgeport Savings Bank v. Eldridge, 
Bridgwater, etc., Plank Road Co. v. 

Robbins 

Brien v. Harriman 136, 

Brien v. Smith 

Brierly v. Cripps 

Brierly v. Kendall 

Briggs V. Boston, etc., R. R. Co 

Briggs V. Boyd 193, 203, 

Briggs V. Briggs 

Briggs V. Byrd 745, 

Briggs V. Evans 658, 

Briggs V. Merchant Traders' Ins. Ass. 

Briggs V. Oliver 

Seymour 

Strange 

Briggs v. Walker 

Briggs V. Wilkinson 

Brighain v. Wentworth 

Brightly v. Norton 

Brightnian v. Reeves 

Brink v. New Amsterdam Ins. Co. . . 

Briukerhoff v. Olp 

BrinlMy v. Spring 577, 

Brinsmead v. Harrison 

Brisbane v. Parsons 

Bristol v. Chicago, etc., R. R. Co. . . . 

Bristow V. Eastman 73, 

Bristowe v. Needham 

Britisli Empire, etc., Co. v. Somes . . 

Brittiri v. Handy 

Britlon v. Dierker 

Britton v. McDonnell 

Briltfia v. Williams 

Broad Ijtint v. Jjcdward 

Broadwater v. Darine 

Broadway v. Buxton 

Broadwidl v. C'onger 

Broadwell v. Howard 

Broafl well v. Paradico 

Brock V. Eastman 

Brock V. Hidy 

Brocket v. Ohio, etc., R. R. Co. . .286, 
Brock way v. Burnap Ill, 478, 



33 

367 

205 

230 

235 

760' 

432 

159 
139 
199 
151 
181 
694 
225 
145 
749 
662 
708 
818 
420 
677 
182 
679 
231 
581 
177 
133 
SOiJ 
678 
535 
62(1 
281 

74 
390 
620 

86 
232 
392 

62 
490 
455 
449 
156 
578 
499 

93 
805 
301 
484 



PAGE. 

Broderick v. James 727, 732 

Brodie v. Campbell 11 

Brodie v. Howard 123 

Bromage v. Prosser 749 

Bromley v. Elliot 112 

Bromley v. Holland 520 

Bromlev v. Wallace 671 

Bronsou v. Cahill 826 

Brooke v. Garrod 809 

Brooke v. White 583 

Brooker v. Coffin 728 

Brooker v. Scott 65 

Brooks v. Bondsey 677 

Brooks v. Byam 532 

Brooks V. Glencross 157 

Brooks V McDonnell 626 

Brooks V. Shepherd 233 

Brooks V. Sullivan 133 

Brooks V. Wheelock 822 

Brooks V. Wright 241 

Brookover v. Esterly 408 

Brooklyn v. Cleves 157 

Brooklyn Life Ins. Co. v. Bledsoe. . . 551 
Brooklyn City Ins. Co. v. Furey .... 340 
Brooklyn, etc., R. R. Co. v. Brooklyn 

R. R. Co 839 

Broom v. Broom 120 

Brophy v. Marble 19 

Brothers v. South Carolina R. R. Co. 331 

Brough V. Oddy 79 2 

Broughton v. Bank 245 

Broaghton v. Coffer 822 

Broughton v. Smart 655, 664 

Browell v. Reed 365, 367 

Brower v. Lewis 553 

Brown v. Allen 591 

Brown v. Armistead 512 

Brown v. Bailey 165 

Brown v. Bateman 531, 544 

Brown v. Beatty 284, 286 

Brown v. Bellows 533 

Brown v. Bigelow 556, 557, 559, 626 

Brown v. Bissett 485, 496 

Brown v. Brooks 760 

Pnown V. Brown 92, 200, 201, 738 

Brown v. Burhans 563 

Brown v. Caldwell 466, 478, 488 

Brown v. Campsall 488 

Brown v. Cayuga, etc., R. R. Co. 292, 302 

Brown v. Chickopee Falls Co 473, 474 

Brown v. Clark 141 

Brown v. Crandall 114 

Brown v. Dunham 74 

Brown v. Eaton 805 

Brown v. Edington 565 

Browji V. Elkington ti60 

Brown v. Elliott 441 

Ikown V. Gaffney 423, 434 

Brown v. (Jibboiis 751 

Brown v. (iilmore 381 

Brown v. (i rover 12 

Brown v. Hanson 739 

Brown v. Harlay 641 

Brown v. llaynes 548 



TABLE OF CASES. 



XXXV 



PAGE. 

Brown v. Higginbotham ] 09 

Brown v. Hull 77 

Brown v. Jewett 140 

Brown v. Johnson 569 

Brown v. Kidd 207 

Browne v. Lee "24 

Brown V. Lester 32 

Bruwn .'. McCune 74 

Brown V. McFarland 144 

Brown v. McMuUen 82 

Brown v. McRea's Exr 79 

Brown v. Milwaukee, etc., Ry. Co. . . 330 

Brown v. Molineaux 519 

Brown v. Muller 623 

Browu V. MurpUee 562 

Brown V. Nichols 371, 373 

Brown v. Nickersou 728 

Brown v. Orland 541 

Browu V. Peevey 490 

Browu V. Powell Coal Co 315 

Browu V. Prophet 240 

Brown v. Ralston 697 

Brown v. Ray 219 

Browu V. Riggins 234 

Brown v. Runals 182 

Brown v. Second Nat. Bk. of Erie. . . 165 

Browu V. Simons 582 

Browu V. Smith 462, 729 

Brown v. Speyers 635 

Brown v. Stamford 503 

Brown v. Stapyleton 708 

Brown v. State 650 

Brown v. Tapscott 151 

Biown V. The Bradish Johnson 722 

Brown v. Town of Canton 45 

Brown v. Tuttle 639 

Brown v. Wade 576, 591 

Brown v. Wallace 812 

Browne v. Warner 790 

Browu V. Warren 168, 169 

Browu V. Wood 93 

Brownell v. Bradley 86 

Browuell v. Brownell 90 

Brownell v. Hawkins 170 

Browing v. Fountain 191 

Browning v. Hamilton 625 

Browning v. Magill 528 

Browulee v. Allen ... Ill, 120 

Brownson v. Gilford 96 

Brubaker v. Okeson 242 

Bruce v. Davenport 516 

Bruck V. Tucker 775 

Brueggemau v. Jurgensen 780 

Bruffett V. Great Western R. R. Co. . 283 

Brunswick, etc., R. R. Co. v. Gale.. . . 327 

Bruton V Rutland 99 

Bryan v. Baldwin 176 

Bryan v. Cormick 370, 371, 389 

Bryan v. Read 803, 807 

Bryau v. Simonton 406 

Bryan v. Whitsett 472 

Bryant v . Booze 818 

Bryant v. Carson, etc., Co 424 



PAGE. 

Bryant v. Crosby 193, 550, 555, 558 

Bryant v. Erskine 421 

Bryant v. Hawkius 107 

Bryant v. Pottinger 73 

Bryant v. Richardson 529 

Bryson v. Rayner 175 

Bryson v. Whitehead 770 

Bubier v. Babur C25 

Buchan v. Sumner 123 

Buchanan v. Curry 133 

Buchauau v. Lorman 813 

Buck V. Buck 817 

Buck V. Lane 723 

Buck V. Mosley 131 

Buck V. Pickwell 605 

Buck V. Remsen 501 

Buck V. Smith 769 

Buck V. Swazey 771 

Buckalew v. Smith 238 

Buchenau v. Horney 631, 633 

Buckingham v. Osborne 629 

Buckle V. Knoop 696 

Buckley v. Bramhall 115 

Buckley v. Buckley 120, 121, 468 

Buckley v. Howard 52 

Buckmaster v. Consumers Ice Co. . . . 767 

Buckmaster v. Grundy 777 

Buckmaster v. Thompson 790 

Buckmyr v. Darnall 185 

Bucknam v. Nash 587 

Bucknam v. Ruggles 7 

Buckuer v. Morris 210 

Buckner v. Ries 106, 591 

Buck worth v. Buck worth 53 

Buell V. Cole 153 

Buffalo R. R. Co. v. Buffalo 340 

Buffalo, etc., R. R. Co. v. Dudley 276 

Buffalo, etc., R. R. Co. v. Ferris 396 

Buffalo City Bk. v. Howard 144 

Buffalo, etc., Ry. Co. v. Supervisors of 

Erie 283 

Buffalow V. Buffalow 513 

Buffiugtou V. Curtis 694 

Buffit V. Trov. etc., R. R. Co 280 

Buffum V. Buffum 106, 120 

Buffum V. Merry 551 

Bulger V. Albany Ry 346 

Bulklev V. Marks 116 

Bull v.'Bell 829 

Bull V. Robison 574 

Bullen V. Sharp 109, 113 

Bullock V, Babcock 73 

Bullock V. Koon 739 

Bunce v . Bunce 204 

Buudy V. Hart 744, 745 

Bunker v. McKenney 459 

Bunnv. Guy 769 

Bunting v. Willis 13 

Bunton v. Smith 800 

Burbanks v. Horn 744 

Burch V. Hardwicke 251 

Burchard v. Boyce 137 

Burchard v. Tapscott 677 



XXXVl 



TABLE OF CASES. 



PAGE, 

Burdell v. Berdell 375 

Burtre v. Cedar Rapids, etc., R. R. 

Co 510 

Burge V. Stroberg 567 

Burge V. Sure 189 

Burgess v. Eve 239 

Burghart v . Agnerstein 64 

Burgliart V. Gardner 22 

Burghart v. Hall 78, 528 

Burgliardt v. Van Deusen 102 

Bui bans V. Burbaus 90, 94 

Bulk's Appeal 779, 793 

Burke v. Clarke 683 

Burke v. Bruger 240 

Burke v. Glover 242 

Burke v. Louisville, etc., R. R. Co 47 

Burke v. The M. P. Rich 688, 692 

Burke v. Trevitt 34 

Burke v. Winkle 530 

Burkett v. McCartj 739 

Burleson v. Burleson 97 

Burley v. Burley 165 

Burley v. R ussell 62, 68 

Burling v. King 803 

Burlingame v. Burlingame. . 58, 728, 757 
Burlington, etc., R. R. Co. v. West- 
over 328 

Buru« V. Wells 729 

Buruell v. Brown 814 

Burnett Lime v. Blackmar 106 

Burnet v. Courts 229 

Burnett v. Smith 628 

Burnett v. Wells , 731 

Burnbam v. Grand Trunk R. R.Co. . 312 

Burnbam v. Seaverns 74 

Burnbam v. Stevens 35 

Burnbam v. Web.ster 162 

Burns v. Nottingham 149, 151 

Burr v. Boyer 238 

Burr V. D.nugberty 469 

Burr v. Hutchinson 442 

Burr V. Williams 141 

Burrage v Melson 469 

Burrill v. Eames 832 

Burnett V. Swan 106 

Burritt v. Burritt 52 

Burroughs v. Lott 224 

Burl v. Burt 374 

Burt v. Dewey 5()0 

Burt v. Farrar 273, 274 

Burt v. McBain 733 

Burt V. Wilson 452 

Burt eh V Nickerson 729 

Burlis V. Thompson 551 

Burton V. Burton 741 

Burt'.n V. Curyca 462 

Burton V. Fulton 29 

ButKiii V. Patton 267 

liiirton V. State 412 

Hiirucll V. Mandevillo 137 

Burv V New]iort 390 

Busby V, Littlefield 447 

Busb'v. Harlield 543 

Bush V B„f.b 42 



PAGE. 

Bush V. Hicks 439, 444 

Bush V. Holmes 599 

Bush V. Lyon 181, 182 

Bush V. Prosser 759 

Bush V. Stamps 199 

Bush V. Steinman 309 

Busbell V. Wheeler 598, 600 

Buskirk v. Judge 251 

Bussing v. Rice 482 

Bustard v. Gates 78 

Butcbart v. Dresser 140, 142, 155 

Butcher v. Buchanan 446 

Butcher v. Forman 152 

Butler v. Butler 207 

Butler V. Freeman 367 

Butler V. Gambs 243 

Butler V. Lee 636 

Butler V. Mehrling 499 

Eutler V. Murray 676 

Butler V. Northumberland. . 628,629, 635 

Butler V. Reynolds 473 

Butler V. Stocking 180 

Butler V. Thomson 527, 608, 788 

Butman v. Vermont, etc., R. R. Co.. . 347 

Butt V. Ellett 539 

Butts V. Burnett 179 

Butterfield v. Beardsley 117 

Butterfield v. Buffum 739, 749 

Butterfield v. Forrester 711 

Butterfield v. Hemsley 134 

Butterfield v. Lathrop 537 

Butters v. Haughwut 481, 483 

Button V. Hey ward 735 

Buxton V. Lister. . . 767 

Buxton v. Rust 603, 604 

Buys V. Eberhardt 778 

Buzzell V. Gallagher 44 

Byasse v. Reese 590 

Byers v. Chapin 516 

Byers v. McClauahan 221 

Byrd v. Fox 156 

Byrket v. Monohon 742 

Byrne v. Janseu 565 

Byrne v. Van Hoesen 72 

Byrne v. Weeks 696 

Byron v. Crippen 470 



c. 



Cabell V. Vaughan 77 

Cabeen v. Campbell 614 

Cable V. People 409 

Cabot Bank v. Morton 192 

Cadman v. Horner 794 

Cadv V. Potter 451 

Cady V. Shepherd 132, 134 

Cage V. Foster 221 

Cahen v. Piatt 558, 624 

Caban v. Michigan, etc., R. R. Co.. . 319 

( "aine V. (^oulton 583 

Calahan v. Babcock 614, 616, 617 

Calcraft v. Earl of Harborough 671 

Calcutta Co. v. DeMattos 542 



TABLE OF CASES. 



XXX\11 



PAGE. 

Caldwell v. Bartlett 637 

Caldwell v. Dickinson 77'3 

Caldwell v. Leiber 12") 

Caldwell v. Mvers 766 

Caldwell v. Roberts 219 

Caldwell v. Scott 131 

Caldwell v. West 506 

Caley v. Pbila., etc., R. R. Co 277 

Calhoun v. Curtis 88 

Calhoun v. Hays 84 

California, etc., R. R. Co. v. Armstrong, 298 

Calkins v. Falk 604 

Calkins v. Griswold 536 

Calkins v. Lockwood 531 

Calkins v. Sumner 754 

Call V. Perkins 685 

Callaghan v. Callaghan 786 

Callanan v. Brown 555 

(^allanan v. Show 363 

Callender v. Hudson, etc., R R. Co . . 274 

Caller v. Malone 646 

Callisou V. Hedrick 3 

Calloway v. Ewbank 646 

Calverley v. Williams 796 

Calvert v. Marlow 151 

Cambell v. Marietta, etc., R. R. Co. . . 333 

Cambria Street 5 

Cambridge v. Anderton 676 

Camden, etc., R. R. Co. v. Briggs. . . . 316 
Camden, etc., R. R. Co. v. Stewart. . . 789 

Cameron v. Adams 422 

Cameron v. Baker 49 

Camp V. Baker 652 

Camp V. Barney 315 

Camp V. Bostwick 223 

Camp V. Grant 149 

Camp V. Hamlin 609 

Camp V. Martin 729, 742 

Campbell v. Beck 159 

Campbell v. Bowen 126 

Campbell v. Butts 753 

Campbell v. Campbell 100 

Campbell v. Dent Ill, 112, 126 

Campbell v. Fleming 633 

Campbell v. Foster 448 

Campbell v. Hadley 648 

Campbell v. Hastings 114 

Campbell v. Hewlitt 19 

Campbell v. Lowe 86, 89, 99 

Campbell v. :\Iacomb 207 

Campbell v. McElvey 428 

Campbell v. Mersey Docks Co 543 

Campbell v. Parker 170 

Campbell v. Rawdon 645, 654 

Campbell v. S'akes 73 

Campbell v. The Sunlight 694 

Campbell v. Wilson 80 

Canastota, etc., Plank Road Co. v. 

Parkill 159 

Candler v. Candler 357 

Cfvndy v. Stradley 94 

Cane v. Lord Allen 786 

Canfield v. Ford 95 

Canfield v. :Mitchell 156 



PAGE. 

Cannaday v. Shepard 794 

Cannon v. Alsbury 63, 75 

Canovar v. Cooper 55 

Canterbury Aqueduct Co. v. Ens- 
worth 777 

Cantey v. Blair 230 

Capehart v. Hale ,. . . . 821 

Capehart v. Mhoon 451 

Cappel V. Hall 106 

Capelle v. Hall 126 

Capen v. Barrows 150, 152 

Capps V. Holt 789 

Caraway v. Wallace 550 

Cardesa v. Humes 651 

Cardot v. Barney 315 

Carey v. Barrett 55 

Carey v. Carey 358 

Cargill V. Corby 127 

Carliu v . Donegan 107 

Carlisle Bank v. Barnett 229 

Carlisle v. Eransville, etc., R. R. Co. 278 

Carlisle v. Wallace 537 

Carleton v. People 7 

Carley v. Wilkins 557 

Carlock v. Spencer 747 

Carlton v. ( ummins 136 

Carlton v. Ludlow Woollen Mills. . . 114 

Carman v. Page 533 

Carman v. Smick 590 

Carman v. Steubenville,etc., Ry 309 

Carolina v. Humphreys 141 

Carondelet Iron Works v. Moore, 558, 639 

Carothers v. Van Hagon 501 

Carpenter v. Carpenter 71 

Carpenter v. Central Park, etc., R. R. 

Co 344 

Carpenter v. Dennis 729 

Carpenter v. Devon 241 

Carpenter v. Kelly 220 

Carpenter v. King 186, 203, 237 

Carpenter v. Mutual Ins. Co 771 

Carpenter v. Pridgen 74 

Carpenter v. Schermerhorn 85 

Carpenter v. Stevens 506 

Carpenter v. Wall 667, 670 

Carpenter v. Whitman 48 

Carpster v. Griffith 98 

Carr v. Callaghan 511 

! Carr v. Card 301 

I Carr v. Carr 42 

I Carr v. Duval 534 

! Carr v. Georgia, etc., Ry. Co 347 

Carr v. Glasscock 215, 218 

I Carr v. Lewis 243 

I Carr v. Passaic Land, etc., Co 789 

I Carr v. Smith 151 

I Carrier v. Cameron 129 

I Carrington v. Carson 224 

I Carrington v. Pratt 688 

Carrington v. Roots 595 

I Carrodus v. Sharp 813, 813 

i Carrol v. Bird 756 

I Carroll v. Hart 494 

: Carroll v. Hussev 464 



XXXYIU 



TABLE OF CASES. 



PAGE. 

Carroll's Lessee v. Llewellin 642 

Carroll v. Rice olG 

Carroll v. Rossiter 429 

Carroll v. Siebenthaler. 19, 20 

Carroll v. Waters 683 

Carroll v. White 742 

Carroll v. Wiggins 547, 568 

Carroway v. State 23 

Carruthers v. Sydebotham 724 

Carson v. Bailli'e 558 

Carson v. Central R. R. Co 297 

Carter v. Andrews 733, 737 

Carter v. Black 555 

Carter v. Carter 551 

Carter v. Dean of Ely 784 

Carter v. Hamilton 826 

Carter v. Jarvis 538 

Carter v. Jones 237 

Carter v. Piper 495 

Carter v. Taylor 99 

Cartriglit v. Plicenix 575 

Cartwright v. Wilmerding 617 

Carver v. Richards 813 

Casaday v. Woodbury 439 

Casamajor v. Strode 814 

Case V. Abel 144 

Case V. Bersvin 380 

Case V. Buckley 739 

Case V. Dean 32 

Case V. James 818 

Case V. Marchand 380 

Case V. Marks 760 

Casey v. Holmes 822 

Cash V. Hinkle 540,541, 572 

Ca^-on V. Cheely 590 

Cassell V. Backrack 581 

Cassidy v. Begoden 452 

Ca.^sin v. Delaney 753 

Castle V. Play ford 543, 581 

Castle V. Wilkinson 781,783, 818 

Castleman v. Veitch 98 

Caswell V. Allen 166 

Carerham R. Co. v. London, etc., Ry. 

Co 278 

Cates V. Kellogg 759 

Cates V. Raleigh 519 

Cai heart v. Robinson 763, 787, 798 

Catlin V. Fletcher 512 

Cato V. Gill. 158 

Caton V. Caton 604,606, 607 

Catterall v. H indie 584 

Candell V. Shaw 530 

Caulkins v. Hellman 579, 598 

Cavanaugh v. Austin 748 

Cave V. Burns 225 

Cayton v. Hardy 131 

Ccfi! V. Ju.xon 530 

Central I.. I!., etc., v. Georgia. . ... 283 
Central K. R. ('o. v. Hetfield. . . . 284, 296 
C'litral Ohio R. R. Co. v. Lawrence. 331 

Central R. R. Co. v. Smith 318 

Central, etc., Hk. v. Walker 112 

Certwell v. Iloyt 660 

Chace v. Shennan 735 



PAGE. 

Chadsev v. Harrison 151, 152 

Chadwick v. Miller 456, 502 

Chaffee v. Jones 220, 221 

Chaffee v. U. S 158 

Chaffin v. Doub 569 

Chahoou v. Hollenback 649 

Chaires v. Brady 449, 517 

Chalfant v. Monroe 80 

Chalmers v. Payne 748 

Chalon v. Walker 95 

Chambers v. Carson 648 

Chambers v. Crook 153 

Chambers v. Goldwin 377 

Chambers v. Grantzon 676 

Chambers v. Green 254 

Chambers v. Hun' 466, 485 

Chambers v. Livermore 825 

Chambers v. Miller 542, 580 

Chambers v. Waters 506 

Chambers v. White 731 

Chamberlain v. Bancroft. 141 

Chamberlain v. Blue 767, 771 

Chamberlain v. Dickey 550 

Chamberlain v. Lee 788 

Chamberlain v. Reed 708 

Chamberlain v. Smith 551 

Chamberlain v. Thompson 419 

Chamblas v. Phila., etc., R. R. Co. . . 316 

Chamblee v. McKenzie 542, 586 

Chambliss v. Smith 801 

Champion v. Bostwick 113 

Champion v. Brown 793, 816 

Champion v. Memphis R. R. Co 277 

Champion v. Plummer 604 

Champion v. Rigby 786 

Champion v. Short 534 

Champion v. Lay tin 5 i 3 

Chance v. Beall 775 

Chancellor v. Wiggins 560 

Chandler v. Deatou 53 

Chandler v. Dyer 428 

Chandler v. Fulton 611, 613 

Chandler v. McKinney 66 

Channel v. Fassitt 105 

Chanter v. Plopkius 536, 555, 565 

Chapiu v. Potter 586 

Chapin v. Shafer 61, 71 

Chapin v. Sullivan Ry 289 

Cha])liu v. Rogers 575, 600 

Chaplin v. Young 357 

Chapman v. Calder 748 

Chainnan v. Collins 189, 229 

Chapman v. Devereaux 109 

Chapman v. Durant 533, 685 

Chapman v. Ingram 609 

('lia])nian v. Limerick 15 

Chapman v. Mad River, etc., R. R. Co 295 

Chapman v. Searle 575 

Chapman v. Shepard 587 

C'hajjman v. Turner 183 

Cha[)nian V. Wilbur 817 

Cha{)pi'l V. Dann 24 

Chappel V. Marvin 576 

Chappell v. Gregory 793 



TABLE OF OASES. 



XXXJLX. 



PAGE. 

Chappell V. Statfi 408 

Chaople v. Cooperi 65, 529 

Charles v. Malott 493 

Charuley v. Hansbury 802 

Chartiera Ry. Co. v. Hodgens 277 

Chase v. Barrett Ill 

Chase v. Garvin 151 

Chase v. People. . . 399, 403, 404, 405, 047 

Chase v. Washburn 537 

Chase v. Wash. Mat. Ins. Co 321 

Chase v. Whitlock 729 

Chatfield v. Washington County. ... 28 

Chautauqua Bk . v. Risley 388 

Chautauqua Bk . v. White 377 

Cheek v. Tilley 37 

Cheeny v. Clark 152 

Cheesebrough v. Millard 214 

Cheeseman v. Thorne 90, 97 

Cheesman v. Excell 180 

Cheeverv. Rutland, etc., R. R. Co... 3G3 

Chenery v . Dole 91 

Cheney v. Boston, etc., R. R. Co. . . . 32G 

Cheshire v. Barrett 68 

Chester v. Dickerson. . .106, 107, 121, 122 

Chesterman v. Lamb 609 

Chestnut v. Chestnut 641, 642, 643 

Chicago, etc., R. R. Co. v. Ames 318 

Chicago, e^c, R. R. Co. v. Austin 330 

Chicago, etc., R. R. Co. v. Bensley. . . 318 
Chicago, etc., R. R. Co. v. Boyce .... 325 
Chicago, etc., R. R. Co. v. Cauffinaun 330 
Chicago, etc., R. R. Co. v. Clayton. . . 325 
Chicago, etc., R. R. Co. v. Coleman. . 309 
Chicago, etc., R. R. Co. v. Dickson . . 314 
Chicago, etc., Ry. Co. v. Donahue. . . 329 

Chicago, etc., R. R. Co. v. Doyle 329 

Chicago, etc., R. R. Co. v. Dunning. . 26 

Chicago, etc., R. R. Co. v. Flagg 324 

Chicago, V, Greer 609 

Chicago, etc., R. R. Co. v. Griffin 312 

Chicago, etc., R. R. Co. v. Howard. . . 160 
Chicago, etc., R. R. Co. v. Larned. . . 23 

Chicago, etc., Ry. v. Parks 317 

Chicago, etc., R. R Co. v. Stein 296 

Chicago, etc., R. R. Co. v. Stumps. 327 

Chicago, etc., R. R. Co. v. Swett 328 

Chicago, etc., R. R. Co. v. Swinney . . 285 

Chicago, etc., Co. v. U. S. Co 356 

Chicago, etc., R. R. Co. V. Vosburgh. 304 

Chicago, etc., R. R. Co. v. Wilson 287 

Chicago City Ry. Co. v. Young 341 

Chickasaw Co. v. Pitcher 241 

Chidney v. Porter 114 

Chilcott V. Trimble 52 

Child V. Affleck 755 

Childs V. Childs 434, 494, 502 

Child V. Eureka Works 209 

Child V. Hugg 177 

Childress V. Holland 810 

Chilliner v. Chilliner 763 

Chilton V. Chapman 323, 225 

Chilton V. Robbins 243 

Chinery v. Viall 625 

Chinn v. Russell 484 



PAGE. 

Chinnery v. Blackburne 679 

Chinnock v. Sainsbury 768 

Chipley v. Keatou 181 

Chipman v. Todd 225, 24." 

Chisholm v. Cowlea . 110 

Chissom v. Lamcool 499 

Chittenden v. Catlin 403 

( 'hoteau v. Jones 205 

Chouler v. Smith 218 

Chouteau v. Paul 91, 92 

Christian v. Cabell 778 

Christian v. Christian 100 

Christian V. Crocker Ill 

Christian v. Gibbs 20 

Christie v. Cowell 740 

Christie v. Lewis 694 

Christy v. Cummins 632 

Christy v. Douglas 24 

Christy v. Home 235 

Christuer v. Brown. . . ., 187 

Chumasero v. People 649 

Church V. Bridgman 736 

Church V. Hopkins ao 

Church of the Advent v. Farrow 783 

Churchill v. Merchants' Bk 569 

Cilley V. Huse 432 

Cincinnati, etc., Ry. Co. v. Cummings- 

ville 337 

Cincinnati, etc., R. R. Co. v. Pontius. 336 
Cincinnati, etc., R. R. Co. v. Ridge. . 806 

Cincinnati v. Stone 309 

City Bank v. Dudgeon 213 

City Bank v. Rome, etc., R. R. Co. . . 547 

City of Brooklyn v. Toynbee 157 

City of Chicago v. Wright 37 

City of London v. Goree 158 

City of London v. Nash 764, 767 

City of Maquoketa v. Willey 148 

City of Providence v. St.John's Lodge 773 
City, etc., Ins. Co. v. Olmstead.. .766, 767 

Clagett V. Worthington 202 

Claiborne v. Birge 231 

Claiborne v. Creditors 139 

Clapp V. Bromagham 86, 97 

Clapp V. Hayward 33 

Clapp V. Rice 225 

Clark V. Adair 455 

Clark V. Barnwell 693, 696 

Clark V. Boston, etc., R. R 292, 293 

Clark V. Brockway 388 

Clark V. Brown 759 

Clark V. Bulmer 595 

Clark V. Clark 776 

Clark V. Condit 419 

Clarke County v. Covington 240 

Clark V. Crandall 623 

Clark V. Crosby 424 

Clark V. Cuson 571 

Clark V. Dibble 15i 

Clark V. Draper 575, 577, 620 

Clark V. Duffey 591 

Clark V. Eighth Ave. R. R. Co. . .341, 345 

Clark V. Ely 199 

Clark V. Fitch 46, 655, 659 



xl 



TABLE OF CASES. 



PAGE, 

Clarke V. Grant 833 

Clark V. Griffith 450 

Clark V. Houghton 127 

Clarke v. Howe 147 

Clarke v. Hutchins 574 

Clark V. Lewis 481 

Clark V. Lowell, etc., R. K. Co G94 

Clark V. Lrnch 614 

Clark V. Martin 500 

Clark V. Metropolitan Bank 1(52 

Clark V. Miller 31 

Clark V. Neufville 633 

Clark V. Nichols 593 

Clark V. People 267 

Clark V. Petty 417 

Clarke v. Price 768 

Clarke v. Reins 783, 793 

Clark V. Ridgley 358, 374 

Clarke v. Ritchie 193, 202 

Clark V. Rives 130 

Clark V. Sears 805 

Clark V. Seirer 792, 823 

Clark V. Sickler 227 

Clark V. Skinner 455 

Clark V. Small 188 

Clarke v. Spence 546, 631 

Clark V. West 489, 490 

Clark V. Wilson 679 

Qark v. Wright 579 

Clarkson v. Edes 694 

Clason V. Bailey 606 

Clason V. Morris 217 

Clay V. United States 80 

Clay V. Yates 593 

Clayton v. Andrews 590, 594 

Clayton v. Ashdown 785 

Clayton v. Heidleberg 351 

Clayton v. Illingworth 771 

Clayton v. McLean 393 

Cleary v. Babcock 443 

Cleirac, Us et Coustumes de la Mer. . 693 

Clements v. Hall 143 

Clements v. Reid 794 

Clements v. Welles 769 

Clement, etc., Manuf. Co. v. Meserole, 610 

f'lendaniel v. Tuckernian 697 

Clermont v. Taaburgh 783, 794 

Cleveland v. Burrill 766 

Clev.land, etc., R. R. Co. v. Ball 298 

Cleveland, etc., R. R. Co. v. Bartrani, 324 

Cleveland V. Clark 420 

Cleveland v. Detweiler 733 

Heveland, etc., Ry. Co. v. Elliott 330 

Cleveland v. State Bank 178 

Cleveland, etc., R. R. Co. v. Stack- 
house 293 

Cleveland, etc., R. R. Co. v. Terry. . . 329 

C'leveland v. Williams 572 

' Tman v. Cook 798, 800, 832 

Cline v. Wilson 138 

Clingman v. Hopkie 422 

Clinton V. Ustes 639 

Clinton Bank v. Hart 650 

Clitherall v. Ogilvie 765, 795 



PA on 

Clopton V. Spratt 287, 239 

Cloud V. Hamilton 55 

Clough V. Ratcliffe 139 

Clowes V. Brooke 65 

Coale V. Barney 98, 839 

Coale V. Hannibal, etc., R. R. Co. . . . 328 

Coamalt v. Stanley 466 

Coates' Appeal 215 

Coates V. Railton 614 

Coates V. Stevens 558 

Coates Street 83 

Cobb V. Havnes 331, 223 

Cobble v. Tomlinson 143 

Cobbold V. Caston 598 

Cobequid Marine Ins. Co. v. Barteaus, 676 

Coble V. Clapp 103 

Coburn v. Ware 628 

Cochran v. Gottwold 498 

Cochran v. IMcLeary 264 

Cochran v. Perry IIS 

Cochran v. Retberg 569 

Cociiran v. Shields 217 

Cochran v. Stewart 637, 638 

Cochrane v. Willis 796 

Cock V. Weatherby 738 

Cockerell v. Aucompte 572 

Cockrill V. Dye 335 

Cocksedge v. Cocksedge 777 

Coddington v. Goddard 605 

Coddington v. Paleologo 570 

Coder V. Huling 107, 119. 135 

Codrington v. Johnstone 384 

Codwise v. Qleason 192 

Coe v. New Jersey, etc., R. R, Co, 853, 383 

Coe V. Vodges 188 

Cofer V. Echerson 874 

Coffee V. Brain 151 

Coffee V. Ruffin 517 

Coffin V. Coffin 754, 756 

Coffin V. Jenkins 109 

Coffin V. Knott 492 

Coffin V. Shaw 45 

Coffin y. Weld 723 

Coffing V. Taylor 440 

Coggs V. Bernard 167, 179 

Coggins V. Murphy 716 

Cogley V. Cushman 67 

Cohea V. Commissioners 228 

Coil V. Willis 568, 581 

Coit V. Humbert 174 

Coit V. Waples 502 

Colburn v. Swett 161 

( 'olchester v. Culver 449 

Colcock V. Ferguson 66 

Colcock V. Reid 563 

Cole V. Justice 239 

Cole V. Mann 548 

Cole V. O'Neill 356 

Cole V. Ponnoyer 538 

Cole V. Potts 799, 800 

Cole V. Saxby 70 

Cole V. Swanston 568 

Coleman v. Coleman 94, 441 

Coleman v. Eastern Counties Ry . . . . 580 



TABLE OF CASES. 



xfi 



PAGE. 

Coleman v. Edwards 649 

Coleman v. Gibson 600 

Coleman v. Playsted 736 

Coleman v. Salisbury 353 

Coleman v. Shelton 181, 183 

Coleman v. South wick 753 

Coleman v. Wade 242 

Colem?" V. Wbite 669 

Colerick v. Hooper 789, 818 

Colerick v. McCleas 235 

Coles V. Hulme 540 

Coles V. Trecotbick 788, 823 

Coles V. Wooding 83 

Colier v. Cross 128 

Collamer v. Foster 150 

Collard v. Soutb Eastern R. R. Co. . . 699 

Collett V. Morrison 446 

Collier v. Munu 890 

Collier v. Thompson 513 

Collins V. Boston, etc., R R. Co 320 

Collins T. Boyd 211 

Collins V. Dickinson 91 

Collins V. Rig£rs 434 

Collins V. Ripley 36 

Collins V. Tracy 12 

Collins V. Warren 121 

Collins V. Wheeler 722 

Collins V. Young 362 

Collumb V. Read 121 

Colman v. Godwin 732 

Colquitt V. Howard 33 

Colt V. Cone 540 

Colton V. Beardsley 4 

Colton V. Price 37 

Colton V. Ross 822 

Colton V. Smith 94 

Columbian Ins. Co. v. Ashby 704 

Columbine v. Chichester 821 

Columbus, etc., R. R. Co. v. Powell. . 312 
Columbus, etc., R. R. Co. v. Skid- 
more 282 

Colvin V. Owens 213 

Colvin V. Williams 595 

Colwell V. Easley 653 

Colyer v. Clay 781 

Combs V. Bateman 602 

Combs V. Jackson 47 

Combs V. People 396 

Comegys v. Cox 246 

Comegys v. State Bank 221 

Commercial Bank v. Martin 178 

Commercial Bank v. Muirhead 225 

Commercial Bank v. Western, etc.. 

Bank 197, 224 

Commercial Bank of Manchester v. 

Kendall 645 

Commissioner v. Robinson 193 

Commissioner's Court v. Gold- 

thwaite 26 

Commissioners of Excise v. Keller. . 102 

Commonwealth v. Addick 42 

Commonweal I'a v. Allen 266 

Commonwealth v. Anderson 49 

Commonwealth v. Armstrong 44 

YOL. v.— E 



PAGE. 

Commonwealth v. Athearn 260 

Commonwealth v. Ball 402 

Commonwealth v. Bolton 396 

Commonwealth v. Bonner 746 

Commonwealth v. Braynard 416 

Commonwealth v. Briggs 42 

Commonwealth v. Burrell 263 

Commf.nwealth v. Callan 63 

Commonwealth v. Clayton 404 

Commonwealth v. Cluley 258 

Commonwealth v. Com. of Phila. . . . 265 

Commonwealth v. Daggett 396 

Commonwealth v. Dearborn. . . . 259, 261 
Commonwealth v. Delaware, etc., 

Co 266 

Commonwealth v. Douglass 260 

Commonwealth v. Downey 395, 400 

Commonwealth v. Emery 400, 415 

Commonwealth v. Farmers' Bank. . . 265 

Commonwealth v. Fee 49 

Commonwealth v. Fitchburg R. R. 

Co 283 

Commonwealth v. Fowler. . 259, 263, 264 

Commonwealth v. Franklin 385 

Commonwealth v. Gilkeson 43 

Commonwealth v. Graham 260 

Commonwealth v. Greene. . .396, 409, 643 

647 

Commonwealth v. Hammond 48 

Commonwealth v. Harrison 63 

Commonwealth v. Hartford, etc., R. 

R. Co 306 

C(»nmonwea]tli v. Howard 160 

Commonwealth v. Jones 263 

Commonwealth v. Kennard 33 

Commonwealth v. Kneeland 749 

Commonwealth v. Lexington, etc., 

Turnpike 263 

Commonwealth v. Littell 399 

Commonwealth v. Loveridge 399 

Commonwealth v. Mason 403 

Commonwealth v. McCombs 8 

Commonwealth v. McKeagg 58 

Commonwealth v. McNeill, 399, 409, 410 

Commonwealth v. Meeser 259 

Commonwealth v. Murray 63, 261 

Commonwealth V. Old Colony, etc , 

R. R. Co 287, 291 

Commonwealth v. Phillips 396, 3y8 

Commonwealth v. Porter 416 

Commonwealth v. Power ... 278 

Commonwealth v. Ramsay 403 

Commonwealth t. Reigart 361 

Commonwealth v. Seed 44 

Commonwealth v. Shick 406 

Commonwealth v. Sigman 44 

Commonwealth t. Small 259 

Commonwealth v. Smith 266 

Commonwealth r. Stebbins 654 

Commonwealth v. Stevens 163 

Commonweal ill v. Strieker 48 

Commonwealth v. Sutherland 13 

Commonwealth v. Swank 263 

Commonwealth v. Temple 338 



xlii 



TABLE OF CASES. 



PAGE. 

Commonwealth v. Thompson 416 

Commonwealth V. Union Ins. Co... 259 

200 
Commonwealth V. Vermont, etc.R. 

R. Co 306 

Commonwealth v. Walter 260 

Commonwealth v. Wentz 48 

Commonwealth v. West 400 

Commonwealth v. Winchester 161 

Commors v. Adam 31 

Comstock V. Affcelter 574 

Comstock V. Buchanan 131 

Comstock V. Holbrook 642 

Comstock V. Johnson 526 

Conant v. Frary 13~ 

Conaut V. Jackson 785 

Conawingo Co. v. Cunningham 569 

Concord R. R. v. Clough 313 

Concord R. R. Co. v. Greely 289 

Condon v. South Side R. R. Co 304 

Conery v. Hayes 141 

Conger v. Burlington, etc., Ry. Co. . 285 

Congor V. Chamberlain 555 

Congregational Soc. v. Fleming 478 

Conklin v. Ogborn 67, 143 

Conklin v. Thompson 73 

Conkling v. Butler 391 

Conley v. Palmer 160 

Conn V. Coburn 189 

Conn V. Corn 185 

Conner v. Comstock 480 

Conner v. Drake 773 

Conner v. Mayor 2 

Conner v. People 651 

Connerat v. Goldsmith 185 

Connecticut, etc., R. R. Co. v. Cooper, 281 

Connely v. Bourg 217 

Connolly v. Devoe 510 

Connolly v. Hull 64 

Conard v. Atlantic Ins. Co 678, 687 

Conover v. Wardell 791 

Conrad v. Lindley 794 

Conroe v. Birdsall 62, 66 

Conroe v. Conroe 760 

Conroy v. Twenty-third St. R. R. 

Co 343 

Const V. Harris 124, 362 

Constant v. Matteson 208 

Contee v. Godfrey 101 

Converse v. Shambaugh 114 

Converse v. United States 27 

Conway v. Bush . . 625 

Conway v. Nicol 669, 670 

Con well V. Sandidge 1 19 

Conyiigham's Appeal 176 

Cook V. Bradley 56 

Cook V. Clavsvorth 529 

Cook V. Cook 730, 742, 752 

Cook V. Fink.T 432 

Cook V. Hamilton, etc.. R. R. Co. . . . 305 

Cooke V. Millard 543, 544, 593, 598 

Cook V. Moore 523 

Cook V. Moseley 559 

Cook V. Rawdon 77 



PAGE. 

Cook V. Vick 773 

Cooke V. Wildes 749, 755 

Cooley V. Davis 463 

Cooley V. Weeks 582 

Coombs V. Bristol, etc., Ry. Co 599 

Coombs V. Gordon 463 

Coombs V. Rose 755 

Coombs V. Parker 228 

Coon V. MoflFett 659, 663 

Coope V. Bowles 133 

Coope V. Twynam 220 

Cooper V. Alden 36 

Cooper V. Bakeman 494, 495 

Cooper V. Bill 618 

Cooper V. Butterfield 452 

Cooper V. Carlisle 552, 826 

Cooper V. Elston 590 

Cooper V. Evans 191 

Cooper v. Garesche 104 

Cooper v. Gray 413 

Cooper V. Lawson 759 

Cooper V. Martin. 50, 52 

Cooper V. Moore 9 

Cooper V. Newman 637 

Cooper V. Pena 804, 806 

Cooper V. Phibbs 823 

Cooper V. Ray 173, 180 

Cooper V. State 399 

Cooper V. Stocker 252 

Coop wood V. Wallace 23 

Cope V. Rowlands 635 

Cope V. Smith 236 

Copeland v. Yoakum's Admr 431 

Copis V. Middleton 188, 210 

Corbin v. Tracy 767 

(.^orbitt V. Heisey 489 

Corbus V. Teed 816, 832 

Corcoran v. Corcoran 762 

Corder v. Morgan 797 

Cordiell v. Frizell 10 

Cordingley v. Cheeseborough 781 

Cordray v. Mordeica 679 

Core v. Wilson 186 

Corey v. Burton 67 

Corlies v. Gardner 551 

Cornelius v. Van Slyck 737 

Corning v. Abbott 636 

Cornwall v. Gould 208 

Cornwall v. Hawkins 769 

Cor])e V. Overton 73 

Corp. of Washington v. Fowler .... 158 

Corrigan v. Sheffield 588 

Corsieus' Appeal 674 

Corson v. Mulvaney ... 823 

Cort V. Ambergate, etc., Ry. Co 610 

Cortelyeu v. Ilathaway 363 

Cortelyou v. Lansing.. 167, 172, 176, 183 

Corwin v. Shoup 69 

Corwitho v . Griffing 99, 102 

Cory v. Gertchen 784 

Cosby v. Owenboro, etc., R. R. Co. . . 303 

Cost v. Rose 100 

Costar v. Davics 532 

Coster v. Clarke 121 



TABLE OF CASES. 



yh'ii 



PAGE. 

Costigan v. Hawkins 561, 633 

Cotbeal V. Brouwer 157 

Cothran v. Flint 586 

Cotliran A. Scanlan 582 

Cott V. Lewiston R. B. Co 301 

Cotterill v. Stevens 602 

Ck)ttin V. Blane 200 

Cotton V. Westcott 77 

Cotrells' Appeal 214 

Couch V. Terry 224 

Cougheuour v. Suhre 825 

Coulthurst V. Sweet 69G 

County of Dubuque v. Cock 201 

Courcier v. Graham 828 

Coursen v. Hamlin 144 

Coursins' Appeal 107, 125, 681 

Couston V. Chapman 579, 581, 597 

Couturier v. Hastie 536 

Coventry v. Gladstone 616 

Coverlee v. Warner 494, 495 

Covington v. Roberts 703 

Covington, etc., Co. v. Shepherd .... 357 

Cowan V. Milbourn 634 

Cowan V. Shields 644 

Cowden v. Stevenson 647 

Cowdrey v. Galveston, etc., R. R. Co. 

351, 385 
Cowdrey v. The R. R. Co. .. 382, 383, 

390, 391 

Cowles V. Garrett 106 

Cowling V. Ely 79 

Cox V. Boyd 803 

Cox V. Clift 520 

Cox V. Cox 827 

Cox V.Hickman 106, 109, 112, 126 

Cox V. Louisville, etc., R. R. Co 296 

Cox V. Midland Counties Ry 313 

Cox V. Morrow .... 471 

Cox V. Peters 155 

Cox V. Reed 645 

Coxe V. Smith 86, 96 

Coyie V. Davis 799 

Cozine v. Graham 821 

Craddock v. Shirly 521 

Craft V . Bent 828 

Craft V. Dickens 443 

Craft V. Dodd 235 

Cragoe v. Jones 230 

Craig V. Ankeney 220 

Craig V. Bradford 18 

Craig V. Brown 741 

Craig V. Godfrey 607 

Craig V. Leiper 815 

Craig V. Parkis 226, 235 

Craig V. Rochester City, etc., R. R. Co, 337 

Cram v. Aiken 703 

Cram v. Metropolitan Ry. Co 346 

Cramer v. Noonan 753 

Crandall v. State 399 

Cranden v. Walden 729 

Crane v. Gough 765 

Crane v. London Dock Co 528 

Crane v. McCoy 355 

Crane v. Newell 203 



PAGE. 

Cranson v. Goss 635 

Cranston v. Plumb 365 

Cranston v. Smith 831 

Crantz v. Gill 51 

Crary v. Smith 805 

Crater v. Binninger 150 

Crawford v. Cincinnati, etc., R. R. Co. 326 

Crawford v. Delaware 337 

Crawford v. Gaulden 244 

Crawford v. Roberts 682, 685 

Crawford v. Smith 543 

Crawford v. Taylor 421, 431 

Crawford v. The Caroline 725 

Crawford v. The William Penn 692 

Crawford v, Wick 801 

Crawshay V. Collins.. 106, 107, 138, 

143, 144 

Crawshay v. Eades ... 614 

Crawshay v. Homfray 621 

Craythorne v. Swinburne 221, 222 

Creager v. Brengle 218 

Creager v. Minard 208, 210 

Creath v. Sims 248 

Creekmore v. Chit wood 634 

Creekmore v. Commonwealth 399 

Cregier v . Bunton 749 

Cregler v. Durham 136 

Creigh v. Shatto 778, 779 

Creighton v. Comstock 540, 630 

Creigh ton v. Pringle 443 

Cremer v. Higginsou 194 

Cresinger v. Reed 750 

Cresinger v. Welch 71 

Cresson v. Stout 468, 478 

Crews V. Threadgill 436 

Crissey v. Hestonville, etc., Ry. Co. . 341 

Crittenden v. Drury 808 

Crittenden v. Wilson 347 

Crocker v. Col well 129 

Crocker v. Franklin 569 

Crocker v. GuUifer 538, 551 

Crocker v. Lewis 557 

Crocker v. Mann 456, 484 

Crocker v. New London, etc.,Ry. 317, 342 

Crockett v. Grain 149 

Crockett v. Dodge 703 

Crofoot V. Bennntt 543 

Cromelein v. Brink 466, 478 

Crommelin v. New York, etc., R. R. 

Co 620 

Cromwell v. Owings 486 

Crone v . Angel 739 

Croninger v. Crocker 570, 572 

Cronise v. Clark 66 

Crooker v. Crooker 108 

Crooker v. Holmes 431 

Crooks V. Moore 619 

Crookshank v. Burrell 593, 597 

Cropsey v. Sweeney 45 

Crosby v. Crafts 199 

Crosby v. Wadsworth 595 

Crosby v. Wyatt 225, 246 

Crosier v. McLaughlin. 97 

Cross V. Hulett 488 



XilV 



TABLE OF CASES. 



316 
280 
433 
759 



PAGE. 

Cross V. Laneley 114 

Cross V. 0-Donnell 574, 599, 600, 618 

Cross V. United States 164 

Crottes V. Friserio 146, 149 

Crow V. "Wood 389 

Crowder v. Langdon 514 

Crowder v. Mooue 373 

Crowder v. WagstaflF 166 

Crowe V. Clay '^^^ 

Croydon Co. v. Dickinson. . . 231, 241, 242 

Crozier v. Grayson 207, 221 

Criiger V. Burke 233 

rrumless v. Sturgess 132 

Crump V. People 409, 477 

Crutcher v. Trabue 246 

Cubbage v. Franklin 101 

Cud V. Rutter 764 

Cudworth v. Scott 539 

Culhane v. New York Cent., etc., R. 

R.Co 331 

Culp V. Atcliinson, etc., R. R. Co 330 

Culver V. Culver 9'^ 

Cumberland Valley R. R. Co.'s Ap 

peal 

Cumberland, etc., R. R. Co. v. Baab. 
Cumberland, etc., Co. v. Parrish . . . 

Cumberford v. McAvoy 

Cummings v. Bank 

Curamings v. Chandler l')9 

Cummings v. Freer 444 

Cummings v. Gann 494, 499 

Cummings v. McGill 484 

Cummings v. Vorce 455, 457, 458 

Cummins v. Garretson 236 

Cunliffe v. Harrison 571 

Cunningham v. Ashbrook. . 533, 541, 591 

Cunningham v. Hall 678 

Cunningham v. Hawkins 422, 431 

Cunningham v. Sharp 814 

Cunningham v. Smith 210 

Cuppy V. Hixon 799 

Curan v. Colbert 180. 245 

Curd V. Wunder 486 

Cureton v. Moore 198 

Curlin v. Hendricks 786 

Curling v. Marquis of Townshend. . . 371 

Currie v. Anderson 601 

Currie v. Cowles 25 

Currier v. Baker 222, 2L^ 

Currier v. Boston & M. R. R 24 

Currier v. Ford 474, 484, 490 

Currier v. Howard 810, 820 

Currier v. Marietta, etc., Ry. Co 287 

Currier v. Rowe 150 

Currier v. Webster 152 

Curry v. State 401 

Curson v. Bel worthy 822 

Curtin v. Patton 62, 69 

Curtis V. Curtis 732 

Curtis V. Hurlburt 162 

Curtis V. .Jones 492 

Curtis V. McDougal 72 

Curtis V. Perry 123 

Curtis V. Snead 101 



PAGE. 

Curuana v. British S. P. Co 700 

Cusack V. Robin.son 599 

Cushman v. Jewell 549 

C ashman v. State 647 

Cutter V. Cochrane 509 

Cutting V. Grand Trunk R. R 699 

Cutts V. Thodey 811 

Cuyler v. Ensworth 221 



D. 



DaCosta v. Newnham 705 

Dade v. Mandeville 334 

Daggy V. Ash 98 

Dahoney v. Hall 819 

Daily v. Litchfield 763, 819 

Dain v. WycoflT 46, 663, 669, 671 

Daines v. Hartley 750 

Dalby v. Pullen 814 

Dale V. Harris 746, 755 

Dale V. Roosevelt - 536 

Dalrymple v. Lamb 77 

Dalrvmple v. Sheehan 680 

Dalton v. Dal. Manuf. Co 106 

Dalton V. Gibb 65 

Dalton V. Higgins 739 

Dalton V. Rust 453 

Dalzell V. Crawford 766 

Dame v. Dame 456, 484, 487 

Dame v. Kenney 760 

Damon v. Moore 666 

Dana v. Boyd 580 

Dana v. New York Cent., etc., R. R. 

Co 337 

Dance v. McBride 669 

Dand v. Kingscote 273 

Dane v. Cordnan 195, 236 

Dane v. Derber 445 

Dane v. Kirkwall 529 

Danforth v. Walker 568, 599, 610 

Daniel v. Ballard 221 

Daniels v. Davison 793, 814 

Daniel v. Frazer 794 

Daniel v. Mitchell 513 

Daniel v. Townsend 149 

Dan vers v. Dorrity 89 

Danville, etc., Co. v. State 264 

D'Aquila v. Lambert 612 

Darby v. Boucher 65 

Darby v. Cabanne 530 

Darby v. Darby 120, 121 

Darbey v. Whitaker 770, 814 

Darling v. Banks 739 

Darling v. Boston, etc., R. R. Co 381 

Darling v. Conklin 458 

Darling v. Hubbell 396, 399, 409 

Darling v. March 130, 141 

Darlington v. McCoole 786 

Darling v. McKean 186 

Darling v. Koarty 774 

Darling v. Tegler 480, 484 

Darlington's Appropriation 84 

Darrow v. Lee. . . 373 



TABLE OF CASES. 



xlv 



PAGE. 

Dart V. Barbour 443, 448 

Davenport v. Hardman .... 214 

Davenport v. Kelly 388, 389 

David V. Bradley 504 

David V Maloue 240 

DavidKou v. Carroll 215 

Davidsou v. County Commissioners.. 289 

Daviilrion v. Goodall GOl 

Davidson v. Greer 442 

Davidson v. Pope 213 

Davidson v. Thornton G48, G5i 

Davies v. Sol Oman 733, 752 

Davies v. Turton . . , 62, 75 

Davies v. Williams 069 

Davies v. Womack 237 

Davis V. Adams 568, 572, 581 

Davis V. Bradley 548 

Davis V . Briggs 146 

Davis V. Caldwell 64 

Davis V. Calvert 496 

Davis V. Christian 120, 121, 137 

Davis V. Commonwealth 643 

Davis V. Converse 192 

Davis V. Dresback 421 

Davis V. Duffie 436 

Davies v. Duke of Marlborough. 371, 392 

Davis V. Dumont 276 

Davis V. Easley 478 

Davis V. Emerson 221 

Davis V. Farrington 729 

Davis V. Fish 627 

Davis V. Fox 523 

Davis V. Gardiner 733, 751 

Davis V. Harrison 820 

Davis V. Hedges 626, 627 

Davis V. Henry 526, 819 

Davis V. Hill 533 

Davis V. Johnston 737 

Davis V. Jones 575, 578 

Davis V. Kansas, etc., R. R. Co 324 

Davis V. Keys 142 

Davis v. La Cross, etc., R. R. Co. . . . 296 

Davis V. Lewis 743, 759 

Davis V. Lottich 466 

Davis V. Murphy 563 

Davis V. Providence, etc., R. R. Co. . . 332 

Davis V. Richardson 126 

Davis V. Ruflf 745 

Davis v. Shields 606 

Davis V. Smith 561 

Davis V. Statts 185 

Davis V. Tyler 497 

Davis V. Whithead 643 

Davis V. Wilson 14 

Davis V. Winn 433 

Davany v. Koon 30 

Davy V. Grouow 392 

Dawes v. Peck 621 

Dawes v. Shed 202 

Daws V. Rush 498 

Dawson v. Collies 629 

Dawson v. Lawes 239 

Dawson v. Lawrence 83 

Dawson v. Morgan 185, 187 



PAGE. 

Dawson v. Wetherbee 502 

Dawson v. Yates 373 

Day V. Aldermen of Springfield. 249, 251 

Dav V. Btissett 588 

Day V. Buller 729 

Day V. Croft 389 

Day V. Griffith 578 

Day V. Pool 553, 629 

Day V. Raguet 553 

Day V. Stetson 277 

Day V. Swift 168 

Day V. Wells 796 

Daylight Burner Co v. Odlin 584 

Dayton v. Fry 492 

Dayton v. Paine 251 

Dayton v. Wilkes 383 

Dearborn v. Taylor 214 

Deardorff v. Foresman 191 

Deariug v. Ford 483 

Dc Armand v. Phillips 523 

Dean v. Dean 823 

Dean v. Peel 655 

Dean v. State 418 

Dean v. Sullivan Ry 288, 347 

Deaver v. Parker 824 

Deberry v. Adams 243 

De Camp v. Mississippi, etc., R. R. Co. 311 

De Castro v. Barry 91 

Decker v. Anderson 505 

Decker v. Howell 106, 126 

Deere v. Lewis 623 

Deey v. Shee 635 

De Fon clear v. Shottenkirk 537 

Deford v. Merces 444 

Deford v. Smiller 728 

Def ries v. Davies 746 

Defries v. Davis 73 

DeGaillon v. L'Aigle 530 

De GrafEenried v. Brunswick, etc., R. 

Co 389 

Degrauw v. Queens County 31 

De Harde v. The ]Magdelena 720 

De Hoghton v. Money 519 

Deicliman v. Deichman 805 

Dela V. Stan wood 433 

Delancey v. Holcomb 483 

Delaney v. Tipton 215 

Delano v. Blake 68 

Delano v. Cargo of the Gallatin 703 

Delavan v. Duncan 815 

Delaware Ins. Co. v. Delaunie 708 

Delaware, etc., R. R. Co. v. Erie R. 

R. Co 360 

Delaware Mut. Saf. Ina. Co. v. Gos- 

sler 687 

Delaware R. R. Co. v. Tharp 277 

Delfosse v. Crawshay 387 

Delvee v. Boardman 655 

Delzell v. Indianapolis, etc., R. R. Co. 344 

Demarest v. Haring 729, 741, 749 

Dement v. Williams 84 

Deming v. Foster »65 

Deming v. Grand Trunk R. R. Co. . . 311 
Demott V. Hagerman 468 



xLvi 



TABLE OF CASES. 



PAGE. 

Deuipsey t. Bush 213 

Den V. Longstreet 84 

Deuman v. Dossoii. ... 144 

Dennis v. Alexander 541 

Dennis v. Clark 47 

Dennis v. Gillespie 225 

Dennis v. Rider 217, 2o(J 

Dennison v. Gibson 192 

Denniston v. Coquillard 810 

Denny v. Cabot 108 

Denny v. Hancock 828 

Denny v. Lyon 214 

Denny V. Met calf 146 

Denny v. N. Y. C, etc., R. R. Co 324 

Denny v. Williams 599 

Dennysville v. Trescott 55 

Densou v. McLeroy 452 

Dent V. Bennett . 785 

Denton v. Great Northern Ry 323 

Den ton v. Stewart 764 

Denton v. Woods 90 

Denver v. Hobart 21 

Denver, etc., R. K. Co. v. Denver, etc., 

R. R. Co 272, 339 

De Pevster v. Hasbrouck 446 

Derby" v. Philadelphia, etc., Ry. Co. . 308 

Derby shires Estate 675 

Dermott v. \^'allach 497 

De Roo V. Foster 80 

Deshler v. Dodge 492 

Deshon v. Bigelow 547 

Desmond v. Brown 727, 732, 74.") 

De Tastet v. Bordenave 154 

Detroit, etc.. Stove Co. v. White 477 

De Varaigne v. Fox 288 

Devane v. Fennell 541 

Devendorf v. Dickinson 394 

De Visme v. De Visme 812 

Devisser v. Blackstone. 354, 379 

Devlin v. Court of Oyer and Terminer 403 

Devlin v. Hope 366 

De Wahl v. Braune 530 

Dewar v. Spence 100 

Dewey v. Dewey 120 

Dewey v. Erie Borough 552 

De Winton v. Mayor of Brecon 357 

Dewitt v . Ackerman 99 

De Witt ,v. Hastings 275 

De Wolf V. Babbett 568 

De Wolf V. Harris 109, 485, 490 

])e Wolf V. Haydn 420 

De Wolf V. Lindsell 612 

Dewolf V. Rabaud 188 

Dexter v. Norton 024 

Dexter, etc.. Plank Road Co. v. Allen 162 

Deyeo v. Jamison 499 

Dezel V. Odell 460 

Dial V. Holter 741 

Dias V. Bouchaud 202 

Dias V. Freeman 505 

Dias V. The Privateer Revenge 720 

Dibbli- v. Morgan 695 

Dick v. Lindsav 538 

Dickason v. Bell 231 



PAGE. 

Dicken v. Shepherd 744 

Dickens v Williams 555 

Dickerson v. Chrisman 800 

Dickerson v. Shelby 26 

Dickins v. Harris 367 

Dickinson v. Allison 647 

Dickinson v. Dickinson 128, 145 

Dickinson v. Glenney 437 

Dickinson v. Granger 151, 153 

Dickinson v. Valpy 113, 127 

Dickson v. Mathers 454 

Dierker v. Hess 54 

Deitrich v. Penn. R. R. Co 312 

Diggs V. State 8 

Dill v. Camp 633 

Dill v. O'Farrell. . . 636, 629 

Dill V. Shahan 440 

Dill V. Wabasq, etc., R. R. Co 276 

Dillard v. Collins 747, 758, 760 

Dillard v. Scruggs Ill 

Dillenback v. Jerome 181 

Dillingham v. Jenkins 188, 191 

Dillingham v. Mudd . . . : 231 

Dillingham v. Smith 479, 494 

Dillingham v. United States, 395, 406, 415 

Dillon v. Anderson 508 

Dillon V. Brown 134 

Dillon V. Lord Mount Cashell 367 

Dillon V. Wright 469 

Dil worth v. Mayfield 121, 147 

Diman v. Providence, etc., R. R. Co. . 351 

Dingle v. Hare 026 

Dings V. Parshall 429 

Dinsmore v. Dinsmore 132 

Disbrow v. Jones 516 

Ditson V. Randall 637 

Ditto V Harding 808 

Divine v. McCormick 561 

Dixon V. Clarke 583 

Dixon v. Dixon 191 

Dixon v. Merritt 59, 66, 72 

Dixon v. Smith 751, 753 

Dixon V. Stewart 749 

Dixon V. Thatcher 498 

Dixon V. The Cyrus 723 

Dixon V. Yates 543 567. 576, 613, 033 

Doak V. Bank of the State 167 

Doan V. Mauzey 764 

Doane v. Keating 703 

Dobson V. Swan 777 

Dobson V. Wilson 704 

Dodd V. Arnold 637 

Dodds V. Henry 741 

Dodd V. McCraw . 486 

Dodd V. Norris 656, 666, 670 

Dodd V. Robinson 729 

Dodd V. Winn .231, 223, 234, 230 

Dodge V. Barnes 570 

Dodge V. Bartol 703 

Dodge V. Brewer 433 

Dodge V. Chandler 500 

Dodge V. Essex 303 

Dodge V. Nichols 98 

Dodsley v. Varley 600 



TABLE OF CASES. 



xlvii 



PAGE. 

Dodson V. Harris 636 

Doe V. Read 879, 384 

Doe d. 1 homaa v. Roberts 61 

Doe V. Tupper 134 

Doering v. State 16 

Dolan V. Mayor 9 

Dole V. Vau Rensselaer 741 

Doloret v. Rothschild 767 

Dolson V. Hope 635 

Dominick v. Michael 72 

Donald v. Suckling 175 

Donaldson v. Farwell 630 

Donath v. Broomhead 617 

Doncaster v. Hewson 757 

Douelson v. Posey 108 

Donnaher v. State 273 

Donnell v. Mateer 89, 98 

Donnelly v. The People 258 

Donohoe v. Richards 60 

Donovan v. Willson 594 

Doorman v. Jenkins 180 

Doremus v. McCormick 135 

Dorin v. Dorin 49 

Dorian v. Christie 241 

Dorian v. East Brandy wine, etc., Ry. 

Co 299 

Dorland v. Patterson 749 

Dorman v. Bigelow 234 

Dorrance v. Commonwealth 32 

Dorsey v. Smyth 34 

Dorsey v. Wayman 239 

Dorsey v. Whips 740 

Doss V. State 163 

Dottarer v. Bushey 736 

Dougherty v. Jones 394 

Dougherty v. McDougald 365 

Dougherty v. Richardson 216 

Dougherty v. State 397 

Douglas V. Moody 707, 717, 719 

Douglas V. Neil 8 

Douglas V. Patrick 582 

Douglass V. State 20 

Douglas V, Waddle 220 

Douglas V. Winslow 118, 148, 149 

Douglass V. Woodworth 426 

Dounce v. Dow 558 

Dover v. Rawlings 495 

Dow v. Clark 73 

Dow V. Jewell 83 

Dow V. Sanborn 631 

Dow V. Sayward 127, 149 

Dowell V. Goode 726 

Dowell V. Richardson 501 

Dowell V. The Gen. Steam Nav. Co. . 711 

Dowling V. Betjemann 772 

Dowling V. The Reliance 684 

Dowling V. Todd 42 

Downer v. Baxter 205 

Downer v. Thompson 572 

Downey v. Dillon 758, 759 

Downey v. Forrester 645 

Downie v. Hoover 281 

Downs V. Hawley 744, 758 

Downs V. Ross 590, 594 



PAGE. 

Dows V. Congdon 300 

Dows V. Nat. Exchange Bank 175 

Dowzelot V. Rawlings 132 

Doyle V. Jessuo 656, 667 

Doyle V. Teas '. 803 

Doyley v. Roberts 742 

Dozier v. Lewis 214 

Drago V. Moso 77 

Drake v. Goodrich 369 

Drake v. Ramsay 71 

Drake v. Wells 570 

Draper v. Romeyn 243 

Draper v. Weld 243 

Drenoan v. House 113 

Dresel v. Jordan 783 

Dresher v. Allentown, etc., Co 103 

Dresser v. Ainsworth 561 

Drever v. Maudsley 387 

Drew V. Central Pac. R. R. Co 326 

Drew V. Clemmons 89 

Drew V. Sixth Av. R. R. Co 341 

Drewe v. Corp 814 

Drewry v. Barnes . . 357 

Drewry v. Montgomery 121, 125 

Drinkwater v. Brig Spartan 721 

Drish V. Davenport 670 

Driskell v. Mateer 227 

Drought V. Curtiss 388 

Drummond v. Hopper 456, 459, 490 

Drum Wright v. Philpot 134 

Drury v. Conner 828 

Drury v. Defontaine 635 

Druse v. Wheeler 9 

Dry V. Davy 189 

Duaue v. McDonald 10 

Duble V. Batts 535 

Dubois' Appeal 24 

Dubois V. Baum 810 

Dubose V. "WTieddon 78 

Dubuc V. Voss 12 

Ducher v. Rapp 241, 245 

Duckitt v. Stachwell 77 

Duddell v. Simpson 782 

Dudley v. Abner 549 

Dudley v. Bachelder 821 

Dudley v. Littlefield 121 

Dudley v. Robinson 737 

Dudley v. Ross 487 

Duell V. Cudlipp 180 

Duff V. Bayard 679 

Duff V. Fisher 764, 820 

Duffield V. Scott 206, 212 

Dugau V. Commonwealth 399 

Dugau V. Hollins 87 

Duggins V. Watson 711 

Duke V. Asbee 634 

Dukea v. Clark 734 

Duke of Beaufort v. Berty 367 

Duke of Beaufort v. Neeld 796 

Duke of Bedford v. Trustees, etc. . . . 791 

Duke of Chandos v. Talbot 793 

Duke of Somerset v. Cookson 773 

Dumont v. Dufore 777 

Dumont v. Ruepprecht 139, 140 



xlviii 



TABLE OF CASES. 



TAGE. 

Dumont v. Williamson 563 

Dunbar v. Pettee 5T9 

Duncan v. B:owu 749 

Duncan v. Holt C20 

Duncan v. Lyon 150 

Duncan v. McCalmont 691 

Duncan v. iSandeis o'So 

Duncan v. Stone 547 

Duncan v. Sylvester 85, 89 

Duncan v. Tliwaites 746 

Duncan v. Tophaui 534, 569 

Duncan v. Welty 671 

Duuliam v. Com. Ins. Co 704, 705 

Dunham v. Downer 240 

Dunham v. Jarvis 155 

Dunham v. Powers 754 

Dunliam v. Troy Union R. R. Co 489 

Duukham v. WyckofE 484 

Dunkin v. McKee 474, 484 

Dunklin v. Kimball 133 

Duulap V. Berry 573 

Dunlap V. Clements 219 

Dunlap V. Foster 223 

Duulop V. Hepburn 521 

Dunlop V. Higgins 534 

Dunlop V. Lambert 574 

Dunlop V. Munroe 32 

Dunlop V Spear 644 

Dunuell V. Fiske 750 

Dunnell v. Keteltas 773 

Dunning v. Merchants', etc., Ins; Co. 688 

717 

Dunning v. Stearns 622 

Dunton v. Brown 61, 67 71 

Dupre V. Boyd 126 

Dupuy V. Leavenworth 120 

Duraut V. Bacot 439, 440, 453 

Durant v. Einstein 183 

Durgin v. Burfield 432 

Durgy, etc., Co. v. O'Brien 613, 614 

Durham v. Bischof 453 

Durkee v. Vermont Cent. R. R. Co. . 534 

Durrell v. Evaus 606, 607 

Durell V. Pritchard 764 

Duryea v. Bun 106, 108, 109 

Duryea v. Whitcomb 106 

Dusar v. Murgatroyd 699 

Dustan v. McAudrew 010, 619 

Dutch's Appeal 102 

Dutchers Co. v. Harding 554, 580 

D utons V. Robsou 252 

Dution V. City 33 

Dutton v. Soloraonson 545, 574, 583 

Dutton V. Woodman 112, 113 

Du Val V. Marshall 365 

Duvall V. Myers 788, 802 

Dwiglit V. Enos 501 

Dwiiicl V. Howard 031 

Dwiiiel V. Stouo Ill 

Dvf V. Kerr 45 

Dyer v. Clark 120, 121, 122 

Dyer v. Lewis 077 

Dyer v. Pearson 528 

Dygert v. Schenck 104 



Dykers v. Allen 179 



E. 



Eads V. Williams 810, 816 

Eager v. Grimwood 657, 668, 669 

Eagle Fire Co. v. Lent 69, 72 

Earl of Cholmondeley v. Clinton. ... 38 

Earl of Durham v. Legard 781 

Earl of Macclesfield v. Davis 772 

Earl of Northampton's Case 732 

Earle v. Reed 64, 78 

Early v. Garrett, 564 

Eason v. Petway 201 

East Anglian Ry. v. Eastern, etc., Ry 332 
East Brandy wine, etc., R. R. Co. v. 

Ranck 298 

East, etc., Ry. Co. v. Qattke 346 

Eastern R. R. Co. v. Benedict 595 

Eastern R. R. Co. v. Knott 810 

Eastern Archipelago Co. v. Regina. . 283 
Eastern Penn. R. R. Co. v. Schollen- 

berger 288 

Eastman v. Avery 167 

Eastman v. Clark 112, 126 

Eastman v. Plumer 794, 810, 833 

East Tennessee, etc., R. R. Co. v. Nel- 
son 319 

East Tennessee, etc., R. R. Co. v. 

Whittle 320 

Eaton V. Bender 423 

Eaton V . Cook 613 

Eaton v. Delaware, etc., R. R. Co. . . . 312 

Eaton v. Eaton 452 

Eaton V. Harris 9 

Eaton V. Hill 73 

Eaton V. Munroe 487 

Eaton V. State 264 

Eaton V. Tallmadge 83 

Ebersoll v. Krug 746 

Ebert v. Woods 83 

Eccles v. Shannon 739 

Eckart v. Wilson 732, 734 

Eckford v. Halbert 805 

Eckstein v. Franks 74 

Eddy V. Davis 466, 478 

Edens v. Williams 136 

Edgerly v. Emerson 217 

Edgerly v. Shaw 68 

Edgerton v. Hodge 602 

Edgerton v. Wolf 71 

Edmonds' Appeal 487, 793 

Ednioudsou v. Machell 661 

Edmunds v. Venable , 214 

Edney v. King 37 

i:dson V. Munsell 102 

Edwards' A p]i('al 044 

Edwards v. Atkinson 808 

Edwards v. Benham 228 

Edwards v. Bennett 89 

Edwards v. Brewer 613 

Edwards v. Chandler 747 

Edwards v. Clay 772 



TABLE OF CASES. 



xlix 



PAGE. 

Edwards v. Coleman 246, 648 

Edwards v. Crume 53 

Edwards v. Davis •")6 

Edward.s V. Elliott 674 

Edwards v. Fry 801 

Edwards v. Grand Trunk Ry 579 

590, 592, 596 

Edwards v. Jones . 786 

Edwards v. Kilkenney, etc. Hy. Co. . 641 

Edwards v. McCardy 497 

Edwards v. McCurdy 503 

Edwards v. Morris 521 

Edwards v. Tracy 106, 111 

Edwards "Wood v. Majoribanks 781 

Egberts v. Wood 138, 148 

Egerton v. Alley 210, 211 

Eggleston v. Mundy. . . 456 

Eichar v. Kistler 669 

Eichelberger v. McCauley 592 

Eicliholz V. Bannister. . . 560, 625 

Elam V. Badger 734, 747 

Elder v. Hood 150 

Elder v. Rouse ISO 

Eldred v. Bennett 506 

Eldridge v. Smith 287 

Elfe V. Gadsen 606 

Elkins V. Kenyon 55S 

Ellett V. Wade. 831 

Ellicott V. Nichols 193 

Ellicott V. White 778, 830 

EUicottville Plank-road Co. v. Buf- 
falo R. R. Co 300 

Ellin trer v. Crowl 445 

Ellington v. Ellington 657, 665. 668 

Ellington v. King 509 

Elliott V. Ailsberry 734 

Elliot V. Armstrong 172,820 

Elliott V. Boyles 748 

Elliott V. Edwards 546 

Elliott V. Fair Haven, etc., R. R. Co. 337 

Elliott V. Geise 188 

Elliott V. Gibbons 52 

Elliott V. Horn 66 

Elliott V. Xicklin 666 

Elliott V. Powell 467 

Elliott V. Pyljus 546 

Ellis V. Bronson 114 

Ellis V. Buzzell 759 

Ellis V. Coleman 281 

Ellis V. Fleming 254 

Ellis V. Joae.s 236 

Ellis V. Lindley 748 

Ellis V. McCormick 232 

Ellis V. Mortimer 547 

Ellis V. Xarragausett Steamship Co.. 716 
Ellis V. Sheffield Gas Consumers Co. 309 

Ellis V. Thompson 569 

Ellis V. Whitlock 158 

Ellis V. Wilmot 230 

Ellsworth V. Central R. R. Co 307 

Ellsworth V. Lock wood 426, 4-32 

Ellsworth V. The Wild Hunter 697 

Elmeudorph v. Tappen 196, 198, 216 

Elmore v. Sands 312 

YOL. v.— G 



PAGE. 

Elrod V. Myers 04 

Elton V. Brogden 567 

El well V. Martin 73 

Elwood V. Diefendorf. . . . . . 205, 232, 233 

Ely V. Ehle 456, 484, 487, 494 

Eiiierick v. Sloan 477, 479, 488 

Emerson v . Harmon 129 

Emerj^ v. Irving Nat . Bk 694 

Emery v. Mohler 437 

Emmerson v. Heelis 591 

Emmerton v. Matthews 565 

Emmett v. Briggs 495 

Emmons v. Dowe 503 

Emmons v. Keeler 375 

Emmons v. Murray 71 

Emmon? v. Westfield Bank Ill 

Emppon V. Fairfax 759 

Endsworth v Griffiths 419 

England v. Bourke 758 

England v. Cowling. 139 

England v. Curling 124, 769 

England v. Jackson 823 

Englis v. Furniss 146 

English V. Delaware, etc.. Canal Co. 325 

Ennis v . Williams 142 

Ensworth v. Davenport 646 

Erb's Appeal 213 

Erie Bk. v. Gibson 236 

Erie Ry. Co. v. Lockwood 320 

Ern.st V. Hudson R. R. R. Co 163 

Errington v. Aynesly 768 

Crwin v. Arthur 172 

Erwin v. Maxwell 559 

Erwin v. Meyers 792 

E.-^daile v. Setephenson 812 

Esmay v. Groton 8^5 

Esminger v. People 258 

Essex V. Essex , 120 

Estab rooks v. Peterborough, etc., R. 

R. Co 348 

Estate of Davis, etc 141 

Estate of Webb 786 

Estes v. Furlong 802 

Estes V. Whipple 146, 150, 152 

Estey V. Love 486 

Estill v. Clay 818 

Estill V. Fox 163 

Etchison v. Dorsey 832 

Eubank v. People 417 

Euraght v. Fitzgerald 812 

Evans v. Boiling 519 

Evans v. Bremridge 191 

Evans v. Coventry 353, 355, 364 

Evans v. Evans 143, 155 

Evans v. Fitchburg R. R. Co 320 

Evans v. Folsoin 524 

Evans v. Gibson 107, 119, 120, 125 

Evans v. Haefner 289 

Evans v. Harris 541, 751 

Evans v. Huey 185 

Evans v. Ingersol 675 

Evans v. King.sberry 807 

Evans v. Kittrell 777 

Evans v. Kneeland 191, 202 



TABLE OF CASES. 



PAGE. 

Evans v. Reed 645 

Evans v. Roberts, 595 

Evans v. State 410 

Evans V. Walton 656 

Evansville, etc., R. R. Co. v. Dexter, 329 
Evans villa, etc., R- R. Cb. v. Dick.. . 303 
Evans ville, etc., R. R. Co. v. Fitz- 

patrick 298 

Everts v. Steger 437 

Eveleth v. Blossom 456 

Evelyn v. Cliicliester 78 

Evelva v. Lewis 373, 388, 389 

Everard v. Kendall 255 

Everett v. Hall 548 

Everett v. Prytliergch 366 

Everson v. Carpenter 66, 70 

Ewing V. Lusk 26 

Ewins V. Gordon 788, 816 

Exeter Bank v. Sullivan 133 

Ex parte Billingliurst 367, 369 

Ex parte Blackburn 251, 254 

Ex parte Bradley 253 

Ex parte Braudlacht 252, 253 

Ex parte Briggs 518 

Ex parte Brook 215 

Ex parte Brown 252 

Ex parte Christy 249 

Ex parte Clay 149 

Ex parte Denton 255 

Ex parte Fell 148 

Ex parte Franks 530 

Ex parte Gardner 811 

Ex parte Gifford 220 

Ex parte Gordon 249 

Ex parte Greene 251, 253 

Ex parte Grisenwood 118 

Ex parte Hamilton 252, 253 

Ex parte Hodges 805 

Ex ])arte Hodgson 138 

Ex parte Jacobs 203, 230 

Ex parte James 785 

Ex parte Kendall 148, 149 

Ex parte Kensington 149 

Ex parte Langdale 112, 114 

Ex parte Llamsomlet Tin Slate Co . 633 

Ex parte Lord Petre 53 

Ex parte Matliews 113, 678 

Ex parte McMeeclien 254 

Ex parte Mountfort 367, 373 

Ex parte Neal 396 

Ex parte Overseers, etc 25(5 

Ex parte Radcliffe 367, 369 

Ex parte Reid 251, 353 

Ex parte Roundtree 255 

Ex parte RiifBn 138, 144 

Ex parte Ruslifortli . . .190, 196, 213, 210 

Ex parte Safford 600, 601 

Ex parte Smith 147, 250 

Ex ])arte Stickney 253 

Ex ]iarte Swift 156 

Ex T)arte Walker 370 

Ex parte Warmouth 249 

Ex parte Warr 367 

Ex parte Whitfield 373 



PAGE. 

Ex parte Williams. . . . 188, 143, 148, 397 

Ex parte Wood 118, 643 

Ex parte Young 684 

Eyre v. Everett 245 

Eyre v. Eyre 799 

Ezell V. English 578 



F. 



Fagan v. Armistead 159 

Fagan v. Jacobs 222 

Fairbairn v. Fisher 366 

Fairbank v. Cudworth 467 

Fairchildv. Fairchild. 107,119, 120, 

121, 125 

Fairfield v. Weston 383 

Fairfield Bridge Co. v. Nye 544, 546 

Fake v. Whipple 187, 203, 204 

Falcke V. Gray 625, 764, 767. 774 

Faler v. Jordon 129 

Fallon V. Manning 501 

Fallon V. Railroad Co 768 

Fall River Whaling Co. v. Borden . . 

120, 121 
Fall River Iron Works v. Old Colony, 

etc.Ry.Co 291, 293 

Falls V. Carpenter 816, 823 

Fancher v Goodman 537 

Fannin v. McMullen 799, 800 

Fardy v. Williams 824 

Faris v. Starke 755 

Farley v. Bryant 443 

Farley v. Lincoln 459 

Farley v. Nelson 649 

Farley v. Palmer 784 

Farley v. Ranck 746, 748 

Farley v. Vaughn 804 

Farlow v. Ellis 585 

Farman v. Child 753 

Farmer v. Farmer 785 

Farmer v. Joseph 670 

Farmers' Bank v. Buchard 303 

Farmers etc., Nat. Bk. v. Deering. . . 165 

Farmers, etc., Bk. v. Green 145 

Farmers Bank v. Reynolds 243 

Farmington v. Stanley 193 

Farquhar v. Farley 813 

Farr v. Gladding 794 

Farr v. Johnson 118, 119, 124 

Farr v. State 418 

Farrant v. Barnes. 321 

Farrell v. Farrell 55 

Farrell v. Parlier 428 

Farrington v. Gallaway 247 

Farris v. Bennett 815 

Farris v. People 414 

Farwoll v. Johnston 803 

Farwell v. Meyer 343 

Farwell v. Rockland 31 

Fash V. Third Av. R. R. Co 343 

Fassett V. Smith 637, 638 

Faulds V. Yates 155 

I Faulkner v. Hebard 534 



TABLE OF CASES. 



li 



PAGE. 

Faulkner v. South Pac. R. R. Co 319 

Fausler v. Parsons 30 

Faver v. Brings 141 

Fawcett V. Kimmey 214 

Fay V. Davidson 110 

Feather t. Strohoecker 93 

Featherstonehaugh v. Fen wick 125 

Feise v. Wray G12 

Felkner v. Scarlet 668 

Fell V. Chamberlain 825 

Fellows V. Niver 77 

Fellows V. Wyman 141 

Fells V. Read 771, 772 

Felt V. Heye 181 

Fenly v. Stewart 606 

Fensler v. Prather 187 

Fenton v. White 67 

Fenwick v. Ruff 452 

Ferebee v. Doxey 652 

Ferguson v. Carrington 625, 630 

Ferguson v. Clifford 585 

Ferguson v. Tadman 813 

Ferguson v. Wilson 764 

Fernsler v. Moyer 661 

Fero V. Ruscoe 758 

Ferrell v. Humphrey 498 

Ferren v. O'Hara 584 

Ferrero v. Buhlmeyer 136 

Ferrier v. Buzick 780 

Ferrier v. Wood 549 

Person v. Sanger 764 

Fessenden v. Wood 378 

Fesslers' Appeal 809 

Fetrow v. Wiseman 61 

Fidler v. Delavan 745, 758 

Field V. Commonwealth 266 

Field V. Hamilton 211, 213 

Field V. Kinnear 562 

Field V. Moore 783, 819 

Field V. Post 497 

Field V. Rawlings 189 

Field V. Ripley 358, 374 

Field V. Runk 570, 597 

Field V. Tennie 113 

Fielden v. Lahens 186 

Fielder v. Starkin 629 

Fifield V Elmer 547 

Filber v. Dauterman 730, 741 

Filley v. Phelps 148 

Finch V. Brook 582 

Finch V. Finch 53 

Finch V. HoUinger 464 

Findlay v. Bank of U. S 186, 193 

Finegan v. L'Engle 304 

Fink V. Mahaffy 216 

Finley v. Aiken 778 

Finley v. Babin 93 

Finley v. Quirk 635 

Finn v. Stratton 246 

Finney v. Apgar 592 

Firemens' Ins. Co. v. Fitzhugh 705 

Firestone v. Mishler 486 

Firmstone v. De Camp 437 

First Nat. Bk. v. Breese 130 



PAGE. 

First Nat. Bk. v. Carpenter. 106,126, 130 
First Nat. Bk. of Cairo v. Crocker. . 

472, 695 

First Nat. Bk. v. Crowley 544 

First Nat. Bk. v. Nelson 167 

First Nat. Bk. v. Watkins 29 

First Nat. Bk. v. Whitman 193 

Fish V. Cleland 518 

Fish V. Dodge 309 

Fish V. Ferris 73 

Fish V. Kempton 584 

Fish V. Leser 777 

Fish V. Roseberry 562 

Fisher v. Bowser 821 

Fisher v. Cutter 189 

Fisher v. Dewerson 93 

Fisher v. Kay 764 

Fisher v. Mowbray 61 

Fisher v. New York Cent., etc., R. R. 

Co 164, 317 

Fisher v. Patterson 760 

Fisher v. Probart 519 

Fisher v. Rottereau 737 

Fisher v. Shattuch 202 

Fisher v. Willing 679 

Fisk V. Keene 103 

Fitch V. Burk 543 

Fitch V. Harrington 113 

Fitchburg, etc., R. R. Co. v. Gage. . . 316 
Fitchburg, etc., R. R. Co. v. Grand 

Junction, etc., R. R. Co 273 

Fitchburg, etc., R. R. Co. v. Hanna. . 318 

Fitts V.Hall 72, 78 

Fitz V. The Amelie 676, 719 

Fitzgerald v. Fitsgerald 390 

Fitzgerald v. Peck 514 

Fitzgerald v. Robinson 730 

Fitzgerald v. Stewart 760 

Fitzhugh V. Wyman 498 

Fitzmaurice v. Bay ley 607 

Fitzpatrick's Case 399 

Fitzpatrick v. Bales of Cotton 702 

Fitzpatrick v. Fain 580 

Fitzsimmons v. Baxter 723 

Fitzsimmons v. Joslin 631 

Flagg V. Mann 426 

Flagg V. Roberts 753, 760 

Flagg V. Upham 188 

Flamingham v. Boucher 748 

Fleece v. State 413 

Fleet V. Dorland 92 

Fleming v. Bailey 161 

Fleming v. Brooklyn City R. R. Co.. 328 

Fleming v. Duncan 797 

Fleming v . Kerr 84 

Fletcher v. Atlantic, etc., R. R. Co. . 330 
Fletcher v. Auburn, etc., R. R. Co.. . 290 

Fletcher v. Boston, etc. R. R. Co 335 

Fletcher v. Bowsher 677 

Fletcher v. Burroughs 760 

Fletcher v. Dickinson 177 

Fletcher v. Dodd 391 

Fletcher v. Gamble 246 

Fletcher v. Jackson 221, 323 



lii 



TABLE OF CASES. 



PAGE. 

Fletcher v. Peck 541 

Fletcher v. People 43 

Flight V. Bolland 785 

Flint V. Brandon 768 

Flint V. Corbitt 593 

Flint, etc., R. R. Co., v. Dewey 305 

Elint V. Lyon 557 

Flowers v. Sproule 183 

Flynn v. Abbott 267 

Flynn v. Allen 564 

Fogg V. Johnston 139 

Foley V. Crow 791, 803, 813 

Foley V. Mason 639 

Folger V. Mitchell 83 

Polk V. Crukshanks 234, 238 

Follett V. Rose 533 

Folsom V. Evans 353 

Foltier v. Schreiber 167 

Fonda v. Van Home 47 

Fontaine v. Beers 675 

Foot V. Bentley 556 

Foot V. Brown 742 

Foot V. Marsh 573 

Foot V. Sabin 130 

Foot V. Stiles 5 

Foote V. Storrs 180 

Forbes v. Atlantic, etc., R. R. Co 332 

Forbes v. Marshall 147 

Forbes v. Rice 698 

Forbes v. Scannell 133 

Force v. Warren 732, 758 

Ford V. Beard 242 

Ford V Chicago, etc., R. R. Co. . 290, 296 

Ford V. Clough 204 

Ford V. Cotesworth 551, 569 

Ford V. Jermon 768 

Ford V. Johnson 729 

Ford V. Keith 206 

Ford V. Peering 525 

Ford V. Phillips 70 

Ford V. Primrose 735 

Forde v. Herron 122 

Forder v. Davis ; 102 

Fordyce v. Ford 814 

Fores V. Johnes 634 

Forest v. Price 654 

Forinan v. Homfray 153 

Forster v. Forster 254 

Forster v. Lawson 746 

Forsyth v. Clark 820 

Forsyth v. Edmiston 744 

Forsyth v. North American Oil Co. . . 634 

Forward v. Adams. 742 

Foss V. Chicago 234 

FoHs V. Haynes 774, 779, 793 

FoHS V. Hildreth 758 

FoH8 V. Stewart 33 

Foster v. Alston 42 

Foster V. Andrews 128 

Foster v. Caldwell 555, 559 

Foster v. Deacon 812 

Foster v. Johnson 221 

Foster v. Newton 95 

Foster v. Pettibone 537 



PAGE. 

Foster v. Smith ... 555 

Foster v. State 400 

Foster v. Trustee 217 

Foster v. Walker 226 

Foulger v . Newcomb 743 

Foulke V. San Diego, etc., R. R. Co. . 280 

Fountain v. Boodle 756 

Fountaine v. Urquhart 153 

Foust V. Moorman 99 

Fowle V. Freeman 798 

Fowle V. New Haven, etc., R. R. Co.. 303 

Fowle V. Robbins 739 

Fowler v. Bailley 120 

Fowler v. Brooks 246 

Fowler V. Commonwealth. . 400, 411, 418 

Fowler v. Rathbone 702 

Fowler v. Thurmond 648 

Fowles V. Bowen 749, 756 

Fox V. Alexander 214 

Fox V. Clifton 113 118 

Fox V. Cosby 79 

Fox V. Harding 420 

Fox V. Holt 679, 695, 697, 717 

Fox V. Norton 134 

Fox V. Nott 696 

Fox V. Parker 241 

Fox V. Stevens 665, 666, 668 

Fox V. The Lodemia 675 

Fox V. Webster 630 

Fox V. Western Pacific R. R. Co 290 

Foxcroft V. Barnes 94, 103 

Foxcroft V. Nevens 203 

Foxtwist V. Tremaine 77 

Fragano v. Long 545 

Fraley v. Bispham 558 

Francis v. Dubuque, etc., R. R. Co. . 319 

Francisco v. Fitch 149 

Frank v. Dunning 730 

Frank v. Edwards 233 

Frank v. Harrington 596 

Franklin Bk . v. Cooper 226 

Franklin V. Kirby 35 

Franklin v. Long 531 

Franklin v. Neale 173 

Franklin v. Ridenhour 518 

Franklin Bridge Co. v. Wood 273 

Frans v. Young 466 

Franz v. Orton 818 

Frarey v. Wheeler 819 

Fraschieris v. Henriques 613, 617 

Fraser v. Ooode 213 

Eraser v. Kershaw 863 

Frazer v. Harvey 633 

Frazer v. Hilliard 531 

Frazier v. Massey 66 

Frazier v. McClosky 748, 753 

Freaner v. Yingliug 234, 237, 238 

Freeby v. Tupper 420 

Freedle v. North Car. R. R. Co 298 

Freeland v. Stansfield 138, 362 

Freelovo v. Cole 523 

Freeman v. Bloomfield 105 

Freeman v. Clute 637 

Freeman v. Curtis 447 



TABLE OF CASES. 



liii 



PAGE. 

Freeman v. Freeman 800 

Freeman v. Howe 463, 479, 488 

Freeman v. Mebane 215 

Freeman v. Robinson. . . ., 56 

Freeman v. Ross 129 

Freeman v. Stewart 108 

Freeman v. Tinsley 760 

Freetly v. Barnhart 778 

Frei v. Vogel 504 

French V. GiflFord 358 

French v. Hickox 529, 785 

French v. Parish 206 

French v. Rowe 131 

French v. Vining 639 

Freshwater v. Nichols 471, 485 

Fridge v. The State 66 

Friuch v. Houghton 363 

Fripp V. Bridgewater & C. R. R. Co. 354 

Fripp V. Chard R. R. Co 376, 394 

Frisbee v. Longworthy 473 

Frisbie v. Fowler 741 

Frisby v. Ballance 794 

Frith V. Sprague 205, 206 

Frizell v. White 476, 484 

Fromme v. Jones 130 

Fromont v. Coupland 151 

Frost V. Hill 608 

Frost V. Knight 551, 610 

Frost V. Mott 471 

Frost V. Reynolds 647 

Frost V. Roatch 398 

Frost V. Rowse 163 

Frost V. Shaw 171 

Fry V. Bennett 747, 751 

Fry V. Lexington, etc., R. R. Co 277 

Fry V. Throckmorton 567 

Frye v. Tucker 280 

Fryer v. Kinnersley 747 

Fuchs V. Treat 449 

Fulgham v. Johnson , . . . . 10 

Fuller V. Acker 485 

Fuller V. Bowker 504 

Fuller V. Buswell 527 

Fuller V. Chicago, etc., R. R. Co 318 

Fuller V. Dean 760 

Fuller V. Fenner 734 

Fuller V. Loring 201 

Fuller V. Miller 124 

Fuller V. Perkins 795 

Fulton V. Loftis 524 

Fulton V. Norton 588 

Fulton V. Roswell 77 

Furguson v. Turner 234 

Furillio v. Crowther 49 

Furlong v. Polleys 622, 623 

Furman v. Applegate 661 

Furman v. Chirk 766 

Furman v. Van Sise, 45, 47, 656, 657, 659 

Furniss v. Ferguson 564 

Furniss v. Hudson River Ry. Co. . . , 347 

Furnis v. Smith 78 

Furniss v. The Brig Magorm 691 

Furnival v. Crew 770 

Futrill V. Futrill 513, 517 



Gr- PAGE. 

Gaflf V. Harding 476 

Gaflf V. Homeyer 600 

Gaffney v. Hayden 62 

Gage V. Brewster 423, 436 

Gage V. Shelton 732, 735, 741 

Gager v. Babcock 682 

Gahagan v. Boston, etc., R. R. Co. . . 279 

Gahn v. Niemeswiez 231, 243 

Galbraith v. Fullerton 240 

GalbruLth v. Galbraith 802 

Galbraith v. Gedge 120, 820 

Gale V. Delaware, etc., R. R. Co. . , . 326 

Gale V. Laurie 677 

Gale V. Miller 142 

Galena, etc., R. R. Co. v. Jacobs. . . . 329 
Galena, etc., R. R. Co. v. Rae. . .311, 319 

Gallagher v. Cohen 179 

Gallagher v, Davis 210 

Gallagher v. Fayette, etc., R. R. Co. 304 

Galleo v. Eagle 90 

Galloway v. Barr 787 

Galloway v. Bird 454, 455 

Galloway v. Finley 521 

Galloway v. Western, etc., R. R. Co. 335 

Galveston Hotel Co. v. Bolton 275 

Galvin v. Bacon 482 

Gal way v. Fullerton 524 

Gammell v. Gunby 563 

Gannett V. Blodgett... 205,211,213, 216 

218 
Gannett v. Cunningham. . . . 140, 141, 143 

Gano v. Samuel 130 

Gano v. State 263 

Gansevoort v. Williams 130 

Garahy v. Bayley 637 

Garbutt v. Watson 590 

Gardener v. Bataille 136 

Gardiner v. Gray 554 

Gardiner v. Tyler 389 

Gardner v. Campbell 455, 463, 488 

Gardner v. Clark 585 

Gardner v. Cleveland 122 

Gardner v. Howland 578 

Gardner v. Humphrey 497 

Gardner v. Joy 593 

Gardner v. Lane 527, 536 

Gardner v. Newburgh 292 

Gardner v, Ogden 832 

Gardner v. Slade 756 

Gardner v. Smith 381 

Gardner v. Van Norstrand 244 

Gardon v. Slowden 106 

Garland v. Garland 377 

Garland v. Lane 636 

Garland v. Spencer 632 

Garlick v. James 172, 177 

Garner v. Gordon 42 

Garner v. McGowen 190 

Garnett v. Macon 778, 787, 797 

Garr v. Selden 742, 747, 754 

Garrett v. Dickerson 747 

Garrett v. Messenger 164 

Garrett v. Miss., etc., R. R. Co 520 

Garrett v. White 99 



liv 



TABLE OF CASES. 



PAGE. 

GaiTPtt V. Wood 501 

Garrison v Burden 665 

Garrow v. Brown 512 

Gartside v. Isherwood 785 

Gartside v. Nixon 476 

Gascoigne v. Ambler 734 

Gaskell v. Morris 619 

Gaskins v. Peebles 820 

Gasque v. Small 787 

Gass V. Stinson 226 

Gaston's Case 160 

Gates V. Delaware 11 

Gates V. Meredith 760 

Gates V. Renfroe 212 

Gates V. Salmon 84 

Gates V. Thompson 676, 719 

Gatliffe v. Bourne 698 

Gatlin v. Wilcox 510 

Gaul V. Fleming 736 

Gault V. Brown 599 

Gaul tier v. Douglass Manuf . Co 627 

Gay V. Ballou 50 

Gay V. State 415 

Gaylord Manuf. Co. v. Allen 554 

Gaylord v. Saragen 636 

Gazyniski v. Colburn 746 

Gear v. C. C. & D. R. Co 299 

Geare v. Britton 752 

Geary v. Physic 606 

Geddes v. Moody 443 

Geddis v. Hawk . . 201 

Gedye v. Duke of Montrose 809 

Gedney v. Commonwealth 641 

Gelston v. Sigmond 770, 790 

Genet v. Howland 176, 183 

Gent V. Cutts 504 

Gentry v. Rogers^ 803 

George v. Evans 368 

George v. Skivington 629 

George v. Van Horn 663 

Georgia, etc., R. R. Co. v. Goldwire. . 329 

Gerard v. Basse 133 

Gerber v. Monie 489 

Gerhard v. Bates 557 

German v. Machin 96 

Germania Ins. Co. v. La Cross, etc., 

Co 698 

Geron v. Geron 179 

Gerrard v. Dickenson 762 

Gerregani v. Wheelwright 388 

Gerrish v. Black 434 

Gervais v. Edwards 773, 788 

Getty V. Binsse 227 

Getty V. Campbell 383 

Getty V. Hudson R, R. Co 817 

Getty V. Rountree 501 

Gevers v. Wright 786 

Gibbens v. Peeler 480 

Gibba v. Benjamin 541, 587 

Gibba V. Bryant 187 

Gibba V. Champion 764, S06 

GiVjson V. Boyd 173 

Gibson v. Brown 104 

Gibson v. Carruthers 612 



PAGE. 

Gibson v, Chouteau 79 

Gibson v. Crehore 428, 434 

Gibson v. Davis 647 

Gibson v. Fifer 513, 518 

Gibson v. Holland 603 

Gibson v. Love 204 

Gibson v. Martin 179 

Gibson v. Mason 373 

Gibson v. Moore 151 

Gibson v. Mozier 494 

Gibson v. Rix 229 

Gibson v. Stevens , 577 

Gibson v. Sturge , . . 696 

Gibson v. Tobey 585 

Gibson v. Warden 134 

Gibson v. Williams 750 

Gibson v. Woodworth 648 

Giddens v. Mirk 733 

Giddey v. Altman 548 

Giddings v. Mirk 735 

Giddings v. Palmer 137 

Giesy v. Cincinnati, etc., Ry 288 

Gifford V. Allen 240 

Gilford V. Kollock 44 

Gilbank v. Stephenson 109 

Gilbert v. Bone 156 

Gilbert v. Field 781, 744 

Gilbert v. People 757 

Gilbert v. Trustees, etc 798 

Gilchrist v. Moore 480 

Gill V. Atlantic, etc., R. R. Co 306 

Gill V. Kuhn 113, 115 

Gillerson v. Mansur 475 

Gillespie v. Goddard 469 

Gillett v. Ellis 709, 717 

Gillett v. Fairchild 381 

Gillett v. Hill 543 

Gillett V. Stanley 59, 66 

Gillett V. Treganza 471 

Gillies V. WoflFord 501 

Gilliam v. Esselman 215 

Gilligan v. New York, etc. , R. R. Co. 47 

Gillighan v. Boardman 188 

Gilligham v. Dempsey 700 

Gilliu water v. Miss., etc., R. R. Co. . 286 

Gilman v. Eastern R. R. Co 329 

Gilman v. Hill 597, 598 

Gilman, etc., R. R. Co. v. Kelley 310 

Gilman v. Lowell 739 

Gilmore v. Menard 93 

Gilman v. Stetson 97 

Gilpin V. Enderbey 115 

Gilreath v. Allen 753 

Gilroy v. Alia 795 

(iilson V. Madden 696 

Gingell v. Turnbull 506 

Giun V. Ginn 45 

Ginua v. Second Av. R. R. Co 345 

Gipson V. Bump 496 

Girard v. Beach 746 

Girard, etc., Ins. Co. v. Marr 175 

Girard v. Taggart 580 

Gist V. Cole 455, 463, 488, 490 

Givin V. Givin 383 



TABLE OF CASES- 



Iv 



PAGE. 

Gladding v. Warner 434 

Gladdon v. Stoneman 366 

Glading v. George C83 

Glascock V. Lyons 9 

Glascott V. Lang 691 

Glass V. Alt 636 

Glass V. Hulbert 795, 800 

Glass V. Pullen 215 

Glass v.Read 564 

Glass V. State 409 

Glassell v. Thomas 509, 513 

Glassington v. Thwaites 154 

Gleason v. Drew 591 

Gleason v. White 143 

Glenn's Case 27 

Glidden v. Towle 14 

Glines v. Smith 730 

Globe Mut. Life Ins. Co. v. Reals . . 518 

Glover v. Austin 147, 674 

Glover v. Chase 466 

Glover v. Ott 65 

Goad V. Johnson 563 

Goddard v. Binney 546, 592 

Goddin v. Taughn 828 

Godfrey v. Godfrey 98 

Godolphin v. Tudor 22 

Godts V. Rose 547 

Godwin v. Francis 608 

Goflf V. Bankston 191 

Going V. Orns 462 

Golden v. Fowler 420 

Golding's Petition 5 

Goldrich v. Ryan 563 

Goldsborough v. United States 21 

Goldsmith v. Bryant 548, 581 

Goldstein v. Hort 174 

Goldthwaite v. State 400 

Gomersall v. Gomersall 146, 149 

Gooch v. Gregory 16 

Gooch v. Holmes 595 

Good V. Blewitt 685 

Good V. Good 398 

Goodall V. Bedell 23 

Goodall V. Richardson 178 

Goodburn v. Stevens. 137 

Goode V. Goode 442 

Goode V. Harrison 113 

Goode V. McCartney Ill 

Goode V. State 653 

Goodenow v. Curtis 435 

Goodeuow v. Dunn 171, 577 

Goodenow v. Tappan 756 

Goodhue v. Barnwell 84 

Goodhue v. Butman 580 

Gooding v. Riley 421 

Goodloe V. Clay 223 

Goodman v. Griffin 234 

Goodman v. Griffiths 605 

Goodman v. Whitcomb 136, 139, 360 

Goodrich v. Church 34 

Goodrich v. Friedersdorff 433 

Goodrich v. Fritz 455, 463 

Goodrich v. Goodrich 43 

CkxKlaell V. Myers 67 



PAGE 

Goodwillie v. McCarthy 705 

Goodwin v. Doage 399 

Goodwin v. Lyon 828 

Goodwin v. May 580 

Goodwin v. The Governor 400 

Goodwin v. United States 719 

Goodwyn v. Hightower 242 

Goodyear v. Watson 218 

Gordere v. Downing 440 

Gordon v. Brown 831 

Gordon v. Cameron 621 

Gordon v. East India Co 675 

Gordon v. Kennedy 148 

Gordon v. Mahoney 816 

Gordon v. Mass. F. & M. Ins. Co 676 

Gordon v. Norris. .573, 609, 619, 620, 622 

Gordon v. Pearson 100 

Gordon v. Potter 51 

Gordon v. Sterling 96 

Gordon v. Strange 582 

Gore V. Gibson 529, 784 

Gore V. Ross 202 

Gorham v. Fisher 598 

Gorham v. Gorham 90, 96 

Gorman v. Russell 139 

Gorman v. State 44 

Gorman v. Sutton 759 

Gosbell V. Archer 608 

Gosling V. Morgan 745 

Goss V. Turner 557 

Goss V. Whitney 636 

Gosse V. Jones 800 

Gossler v. Schepeler 612 

Gotloffv. Henry 502 

Gottbehuet v. Hubachek 729 

Gotts V. Clark 51 

Gould V. Fuller 222 

Gould V. Gapper 250 

Gould V. Gould 119,207, 211 

Gould V. Hudson River R. R. Co 292 

Gould V. Stanton 681 

Gould V . Warner 506 

Gourley v. Haukins 9 

Gourley v. Woodbury 86 

Gove V. Blethen 729 

Governor, etc., v. Petch 535 

Gowan v. Forster 123 

Gower v. Bennett 773 

Gower v. Winchester 429 

Grable v. Margrave 665 

Grace v. Hale 65 

Grace v. Mitchell 29. 488 

Grady v. Robinson 134 

Graff v. Fitch 586 

Graff v. Shannon 478 

Grafton Bank v. Moore 114 

Graham v. Call 790 

Graham v. Castor 510 

Graham v. Columbus, etc., R. R. Co. 295 

Graham v. Cook 681 

Graham v. Holt 151 

Graham v. Oliver 779, 792 

Graham v. Roberts 204 

Graham v. Smith 664, 667 



Ivi 



TABLE OF CASES. 



PAGE. 

Gram v. Cadwell 135 

Grand Junction R. R., etc., Co. v. 

County Commissioners 297 

Grand Rapids, etc., R. R. Co. v. Al- 
ley 299 

Grand Rapids, etc., R. R. Co. v. Grand 

Rapids, etc., R. R. Co 287 

Grand Trunk Ry. Co. v. Richardson, 279 

Grander V. McGilvra 140 

Granite Bank v. Ellis 226 

Grant v, Bryant 389 

Grant v. Chambers 262 

Grant v. Davenport 377 

Grant v. Duane 427 

Grant v. Gould 255 

Grant v, Ludlow 217 

Grant v. Poillon 685 

Grant v. Smith 231 

Grant v. Sir Charles Gould 252 

Grant v. Williams 538 

Graser v. Stall wagen 131 

Graves v. Kellenberger 128 

Graves v. Lebanon Bk 239 

Graves v. Skeela 650 

Gray v. Brown 246 

Gray v. Cook 397 

Gray v. Court of Magistrates . . 253, 254 

Gray v. Davis 576, 820 

Gray v. Durland 47 

Gray v. Gaither 365 

Gray v. Hook 21, 634 

Gray v. Lessington 72 

Gray v. Liverpool, etc., Ry. Co 286 

Gray v. Matthias 520 

Gray v. Millay 539 

Gray v. State 397, 398, 399 

Gray v. Stevens 638 

Gray v. Wilson 208 

Graydon v. Church 379, 380 

Grayson v. Weddle 449 

Gratz V. Bayard 137, 139, 154 

Gratz V. Gratz 84 

Greatrex v. Greatrex 154 

Great Northern Ry. v. Manchester, 

etc.,Ry 350 

Greaves v. Wilson 782 

Greely v. Tremont Ins. Co.., 702 

Greeley v. Waterhouse 687 

Green v. Armstrong 595 

Green v. Ashland Iron Co 466, 478 

Green v. Beeson 14 

Green v. Boody 288 

Green v. Bostwick 354 

Green v. Briggs 122 

Green v. Burke 74 

Green v. Chapman 146 

Green v. Dodge 199 

Green v. Finin 800 

Greene v. Godfrey 636 

Greene v. Graham 91 

Green «fe Graham's Case 252 

Green v. (ireen 72 

Green v. Hall 546 

Green v. Kemp 420 



PAGE. 

Green v. Merriam 591 

Green v. Morris, etc., R. R. Co 443 

Green v. Putnam 96 

Green v. Richards 788 

Green v. Swift 29 

Green v. Thompson 512 

Green v. Warrington 233 

Green v. Wescott 434 

Green v. Young 186 

Greenawalt v. Kreider 235 

Greenawalt v. McDowell} 229 

Greenaway v. Adams 765 

Greenfield's Case 743 

Greenfield v. Carlton 821 

Greenleaf v. Quincy 141 

Greenup v. Sewell 100 

Greenville, etc., R. R. Co. v. Coleman. 277 

Greenville, etc., Ry. v. Partlow 298 

Greenwood V. Greenwood.. . 46, 657, 658 

Greenwood v. Wilton R. R 293 

Greer v. Boone 796 

Greer v. Caldwell 442 

Gregg V. Blackmore 84 

Gregg V, Jamison 8 

Gregg V. Tesson 41 

Gregg V. Wells 177 

Gregg V. Wilson 225, 230 

Gregory v. Brooks 17 

Gregory v. Gregory 100 

Gregory v. McDowell. 618 

Gregory v. Murrell 219 

Gregory v. Schoenell 630 

Grenell v. Sharp 049 

Gresham v. State 406, 414, 415 

Grey v. Cooper 80 

Gray v. Tubbs 775 

Groffv. Belche 587 

Grice v. Randall 103 

Grider v. McClay 419 

Grier v. Taylor 251 

Gritfin v. Commonwealth 405 

Griffin v. Griffin 98 

Griffin v. Keith 538 

Griffin v. Sketoe 518 

Griffin v. State 411 

Griffith v. Buck 148 

Griffith V. Buffum. 128 

Griffith V. Fowler 528 

Griffith V. Frederick Co. Bk 818 

Griffiths V. Fowler 528 

Griffiths V. Grederick Co. Bk 818 

GrilBths v. Hardenbergh 14 

Griffith V. Ingledew 545 

Griffiths V. Lewis 729, 758 

Griffiths V. Owen 583 

Griffiths V. Perry 583, 619, 623 

Griffiths V. Smith 455, 463, 469, 479, 490 

Griffiths V. Teetgen 659 

Griffith V. Wilson 645 

Griggs V. Clark 118, 124 

Grigsby v. State 400 

Grimes v. Butts 84 

Grimes v. Coyle 755 

Grimes v. Gates 781 



TABLE OF CASES. 



Ivii 



PAGE. 

Grimes v. Van Vechten 600 

GrinneU v. Wells 656, 657 

Grinestaff v. State 400 

Grimolby v. Wells 553 

Qris wold v. Haven 131 

Griswold V. Jackson 234 

Griswold V. Waddington. . . 135, 137, 138 

Groat V. Gile 587, 603 

Groenvelt v. Burwell 36 

Groom v. Blake 354 

Gross V. Kierski 560 

Gross V. Leber. ... 440 

Groundie v. Northampton Water Co. 83 

Grove v. Bastard 812 

Grove v. Brien 211 

Grover v. Hoppock 228 

Groves v. Buck 590 

Groves v. Groves 99 

Grubbs v. Kyzer 744 

Grymes v. Sanders 632 

Guard v. Bradley 817 

Guernsey v. Powers 375 

Guild V. Butler 203, 2.30 

Guly V. Dickinson 503 

Gumbel v. Abrams Il3 

Gumberts v. Adams Express Co 9 

Gunby v. Sluter 516 

Gunby v. Thompson 368 

Gunn V.Blair 364 

Gunter v. Thomas 512 

Gunther v. Atwell 554 

Gurney v. Atlantic, etc., Ry. Co 553 

555, 565 

Gurney v. Howe 582 

Guthing V. Lynn 540 

Guthrie v. Murphy 64 

Guthrie v. Weaver 470 

Gutsole V. Mathers 744, 761 

Gylbert v. Fletcher 78 

H. 

H. V. W ,. 777 

Haas V. Tompkins 620 

Hacker v. Johnson 477 

Hackman v. Cantwell 426 

Hackwood v. Lyall 680 

Haddan v. Lott 761, 762 

Hadden v. Knickerbocker 638 

Hadden V. Spader 371 

Haddock v. Crockeron 141 

Hadencamp v Second A v. R. R. Co. . 340 

Hadlev v. Hevwood 669 

Hadlock v. Williams 513 

Haescip v. Crown 638 

Hagar v. King 595 

Hagey v. Hill 230 

Haggerty v. Granger 133 

Haggerty v. Taylor 116 

Haggin v. Haggin 99 

Hahn v. Southern Pac. R. R. Co 330 

Haight v. Love 2 

Haile v. Fuller 732 

Vol. v.— h 



PAGE. 

Haile V. Lillie 73 

Haiue v. Tarrant 78 

Haines v. Carpenter 3G4, 374 

Haines v. Haines 817 

Haines v. Pearce 239 

Haines v. Tucker 535, 571, 609, 624 

Haire v. Wilson 746 

Haldemau v. Bank 128 

Hale V. Gerrish 70 

Hale V.Hale 139 

Hale V. Hays 532 

Hale V. Huntley 541 

Hale V. Rawson 553 

Hale V. Wilkinson 823 

Haley v. Bagley 451 

Haley v. Bannister 53 

Hall v. Adkins 756 

Hall V. Aetna Manuf. Co 551 

Hall V. Brown 334 

Hall V. Center 770 

Hall V. Conder 564 

Hall V. Creswell 207 

Hall V. Cushman 219 

Hall V. Fullerton 630 

Hall V. Gaylor 574 

Hall V. Gilmore 456, 484 

Hall V. Hall 155, 362, 421, 423 

Hall V. Henline 497 

Hallv. Hiles 770 

Hall v. Hinks 637 

Hall V. Hollander 76 

Hall V. Jenkinson 371, 373 

Hall V. Joiner 766 

Hall V. Lanning 141 

Hallv. Little 710 

Hall V. Meriweather 553 

Hall V. Montgomery 739 

Hall V. Pickering 348 

Hall V. Piddock 100 

Hallv. Power 278 

Hall V. Richardson 576 

Hall V. Smith 505 

Hall V. State 21 

Halls V. Thompson 515, 516 

Hall V. Tuttle 460, 453 

Hall V. White 488 

Hallett V. Bonsfield 709 

Hallett V. Dowdall 117 

Halliday v. Hart 240, 243 

Halliday v. Holgate 176 

Halliday v. Lewis 471, 484 

Halliday v. McDougall 114 

Hallock V. Commercial Ins. Co 534 

Hallock V. mUer 730, 751 

Hallon V. Adkins 749 

Hallowell Bk. v. Howard 583 

Halsey v. Grant 778, 813 

Halsey v. Norton 138 

Halstead v. Brown 236 

Halstead v. Mayor, etc., of N. Y. 272, 286 

Halsted v. Schmelzel 151 

Halstead v. Shepard 106, 131 

Hatterline v. Rice 544 

Ham v. Goodrich 800 



Iviii 



TABLE OF CASES. 



PAGE. 

Ham V. Greve 191, 226, 228 

Ham V. Van Orden 600 

Hamberlain v. Marble 356 

Hambleton v. People 266 

Hamblin v. McCallister 235 

Hamersley v. Hamersley 103 

Hamillv. Hamill 155 

Hamilton v. Accessory Transit Co . . . 356 

374 

Hamilton v. Cummings 520 

Hamilton v. Dobbs 428 

Hamilton v. Hamilton 829 

Hamilton v. Iowa City Bank 477 

Hamilton v. Jones 800 

Hamilton v. Lomax 60, 62, 662 

Hamilton v. New Castle, etc., R. R. 

Co 280 

Hamilton v. Rogers 531 

Hamilton v. Singer S. M. Co 471, 620 

Hamilton v. State Bk 176 

Hamilton v. Watson 190 

Hamlett v. Common wealth 397, 398 

Hamlin v. Great Northern Ry 323 

Hamlin v. McNeil 652 

Hammer v. McEldowney 789 

Hammett v. Liuueman 547, 585 

Hammon v. Allen 513 

Hammond v. Corbett 45 

Hammond v. Hammond 149 

Hammond v. Hussey 728 

Hammond v. Northeastern R. R. Co. 322 

Hammond v. Pennock 509 

Hampshire Bk. v. Billings 228 

Hampton v. Brown 400 

Hampton v. Snipes 829 

Hanauer v. Woodruff 634 

Hanbury v. Litchfield 804 

Hanchett v. McQueen 821 

Hancock v. Stephens 749 

Hand v. Dexter 374 

Hands v. Slaney 528 

Haney v . Schooner Rosabelle 674 

Hanks v . Baber 155 

Hanly v. Adams 647 

Hanna v. Holton 239 

Hanna v. Wray 143 

Hannah v. Wells 411 

Hannahan v. Hannahan 654 

Hanner v. Douglass 218 

Hannibal, etc., R. R. Co. v. Muder.. 287 
Hannibal Bridge Co. v. Schaubacker 299 

Hannum v. State 411 

Hanover R. R. Co. v. Coyle 334 

Hansbrough v. Stinnett 745, 752 

Hanson v. Armitage 573 

Hanson v. Busse 553 

Hanson v. Crawley 232 

Hanson v. Edgerly 562 

Hanson v. European, etc., R. R. Co. . 324 

Hanson v. Field 511, 518 

Hanson v. Michelfon 786 

Harbert V. Dumont 244 

Harden v. Gordon 721 

Hardeaty v. Sturges 233 



PAGE. 

Hardin v. Branner 193, 206 

Harding v. Davis 582 

Harding v. Glover 155, 361, 375 

Harding v. Meitz 585 

Harding v. Wheaton 517 

Hard wick V. Hook 381 

Hardy v. McCleUan 357 

Hardy v. Mills 86 

Hardy v. Scanlin 76, 77 

Hardy v. Sproule , 683 

Hare v Stegall 460 

Harford v. Furrier 813 

Hargrave v. LeBreton 761 

Hargraves v. Lewis 207 

Harker v. Arendell 504 

Harkness v. Eraser 517 

Harlan v. Harlan 467 

Harlan v. Stout 94 

Harman v . Delany 729 

Harman v, Kelley 94 

Harman v. Reeve 590, 596, 597 

Harmon v. Harmon 748, 753 

Harmer v. Killing 67 

Harner v. Fisher 630 

Harnett v. Yielding 763, 796, 831 

Harney v. Owen 73 

Harnsberger v. Geiger 243 

Harnsbarger v. Kinney 228 

Harper v. Archer 56 

Harper v. Baker 490, 494 

Harper v. Beaumond 742 

Harper v. Dougherty 577 

Harper v. Ely 432 

Harper v. Godsell 527 

Harper v. Harper 733, 747 

Harper v. Indianapolis, etc., R. R. Co 314 

Harrell v. Harrell 100 

Harrell v. Miller 595 

Harriman v. Egbert 235 

Harrington v. Stratton 627 

Harris' Case 534 

Harris v. Brooks 226 

Harris v. Burley 743 

Harris v. Butler 657 

Harris v. Columbian! Co. Mut. Ins. 

Co 440 

Harris v. Flenniken 412 

Harris v. Furguson 220 

Harris v. Hart 321 

Harris v. Huntbach 185 

Harris v. Moody 708 

Harris v. Moore 160 

Harris v. Packwood 180 

Harris v. Pratt 614, 616 

Harris v. State 404 

Harris v. Stevens 278 

Harris v. Taylor 506 

Harris v. Tyson 782 

Harris v. Wamsley 512 

Ilarriss v. Williams 623 

Harris v. Woody 789 

Harris v. Youman 80 

Harrison v. Bevington 743 

Harrison v. Boydell 891 



TABLE OF CASES. 



lix 



tAGE. 

Harrison v. Bush 755 

Harrison v. Elvin 606 

Harrison v. Fane 64 

Harrison v. King 732 

Harrison v. Lane 223 

Harrison v. Luke 527 

Harrison v. Sterry 131 

Harrison v. Stewart 696 

Harrison v. Stowers 510 

Harrison v. Sratton 732 

Harrison v. Tennant 139 

Harrison v. Thornbo rough 743 

Harrison v. Town 787 

Harrold, Ex parte 32 

Harrup v. Winslet 364 

Harsh v. Klepper 232 

Harshey v. Blackmarr 430 

Hart V. Brand 803 

Hart V. Bush 574, 600 

Hart V. Clarke 140 

Hart V. Coffee 201 

Hart V. Coy 738 

Hart V. Crow 746 

Hart V. Fitzgerald 466, 490 

Hart V. Gumpach 744 

Hartt V. Harvey 270 

Hart V. McClellau 820 

Hart V. Middleton 569 

Hart V. Mills 571, 597 

Hart V. Blum 14 

Hart V. Prater 65, 529 

Hart V. Ten Eyck 178, 182 

Hart V. Tulk 364 

Hart V. Tyler 573 

Hart V. United States 36 

Hart V. "Woods 607 

Harter v. Crill 670 

Hartfield v. Roper 47, 73, 77 

Hartford Sorghum Man. Co. v. Brush 552 

Hartley v. Herring 731, 733, 751 

Hartley v. Tapley 531 

Hartley v. Wharton 67 

Hartley v. Estis 517 

Hartman v. Alden 652 

Hartman v. Woehr 139 

Hartshorne v. Hartshorne 98 

Hartshorn v. Schoff 3 

Hartz V. Shrader 154 

Hartz V. St. Paul, etc., R. R. Co 290 

Harvey v. Childs 112 

Harvey v. Hall 57 

Harvey v. Harris 539 

Harvey v. Stevens 604, 600 

Harvey v. United States 437 

Harwood v. Keech 748, 756 

Harwood v. Kirby 95 

Harwood v. Underwood 423 

Hasbrouck v. Vandervoort 168 

Hasbrouck v. Weaver 162 

Haskell v. Adams 151 

HaskeU v. Hunter 622 

Haskins v. Hawkes 432 

Haskins v. Newcomb 166 

Haskins v. Patterson 167 



PAGE. 

Hassam v. Day 86, 99 

Hassam v. St. Louis Ins. Co 704 

Hasaon v. Oil Creek R. R. Co 288 

Hastie v. Couturier 531 

Hastings v. Lovering 557 

Hastings v. Lusk 754 

Hastings v. Palmer 731 

Hatch V. Cobb 764 

Hatch V. Fowler 473 

Hatch V. Potter 748 

Hatch V. State 409, 417 

Hatch V. Vermont Cent. Ry 292, 299 

Hatcher v. Hatcher 215, 822 

Hatchett v. Pegram 205 

Hathaway v. Bennett 532 

Hathaway v. Brady 451 

Hathaway v. St. John 486 

Hattersley v. Shelburne 281 

Hatton V. Johnson 510 

Haughabaugh v. Honald 84 

Haughton v. Newberry 488 

Haughwout v. Murphy 793, 810 

Haupt V. Davie 646 

Hausman v. County Commissioners. 251 

Hause v. Judson 616 

Haven v. Emery 279 

Haven v. Foley 199 

Havens v. Hartford, etc., R. R. Co. . . 324 

Havens v. Patterson 58, 807 

Haven v. White 146 

Haviland v. Chace 116 

Hawcroft v. Great Northern Ry 323 

Hawes v. Watson 620 

Hawk V. Greensweig 805 

Hawkes v. Hawley 745 

Hawkins v. Chase 603, 605 

Hawkins v. Hunt 800 

Hawkins v. Mclntyre 110 

Hawkins v. Miss., etc., R. R. Co 277 

Hawkins v. Rutt 582 

Hawkins v. State 405, 416 

Hawley v. Keeler 602 

Hawn V. Smith 738 

Hawralty v. Warren 788, 793 

Haws V. Stanford 739 

Hawver v. Hawver 747 

Hay V. Estill 99, 100 

Hay V. Star Fire Ins. Co 450 

Hayden v. Anderson 500 

Hayden v. Cabot 206 

Hayden v. Demets 572, 578, 610 

Hayden v. Stoughton 547 

Hayes v. Davis 219 

Hayes v. New York, etc., R. R. Co . . 307 

Hayes v. Seaver 262 

Hayes v. Ward 195, 200 

Hayes v. Wells 233, 240, 241 

Hayman v. Moulton 676 

Hayne v. Hood 29 

Hayner v. Fowler 373 

Haynes v. Leland 759 

Haynes v. Seachrest 134 

Hays v. Hays 734 

Hays v. Houston, etc., R. R. Co 311 



Ix 



TABLE OF CASES. 



PAGE. 

Hays V. Mitchell 738 

Hays V. Mouille 614 

Hays V. Riddle 173 

Hays V. The Columbus 216 

Haythorn v. Rushforth 461, 485 

Hayward v. French 12(5 

Hay ward v. Naylor 732 

Hayward v. Foster 759 

Hazard v. Hazard 108 

Hazen v. Barnett 85 

Head v. Egerton 525 

Head v. Goodwin 531 

Head v. McDonald 194, 212 

Head v. Tattersall 551 

Headlee v. Jones 233 

Headrich v. Virginia, etc., R. R. Co. . 700 

Heald v. Hay 357 

Heald v. Wright 508 

Healey v. City Passenger R. R. Co . . 342 

Heapliy V. Hill 826 

Heard v. Brooklyn 288 

Hearle v. Greenbank 57 

Hearne v. Garton 321 

Hearne v. Tenant 809 

Heartt v. Walsh 142 

Heaston v. Cincinnati R. R. Co 274 

Heath v. Key 240 

Heath v. West 72 

Heathcote v. North Stafford Ry. Co. . 768 

Hebb's Case 534 

Hedenberg v. Jones 811 

Hedges' Appeal 105 

Hedges v. Tagg 658 

Hedges v. Wallace 636 

Hedgley v. Holt 65 

Heermans v. Clarkson 384 

Heerou v. Beckwith 494 

Hefford v. Alger 500 

Heftv. McGill 77 

Heilbutt V. Hickson. . . .541, 542, 553, 629 

Heimberger v. Boyd 422 

Heimstreet v. Howland 112 

Heine v. Anderson 577 

Heinekey v. Earle 630 

Heineman v. Grand Trunk Ry. Co . . 318 

Heinrichs v. Kirchner 663 

Heinrichs v. Kerdener 659 

Heirn v. McCaughan 323 

Heirs v. State 413 

Heiflter v. Den 24 

Hellon V. Crawford 235, 236 

Helm V. Young 199 

Helme v. Littlejohn 362 

Helme v. Smith 122 

Helsliaw v. Langley 0U6 

Heming v. Power 732 

Hemingway v. Fernandez 272 

Hemmich v. High 83 

Hempstead v. Watkins 234, 235 

Hemson v. Spenzo 166 

Henderson v. Dickey 437, 439 

Henderson v. Lanck 549 

Henderson v. Walker 315 



PAGE, 

Henderson & Nashville Ry. v. Dicker- 
son 398 

Henkel v Pape 535 

Henly v. Gore 79 

Henley v. Soper 151, 152 

Henn v. Walsh 154, 155, 361, 375 

Hennen v. Munro 703 

Hennequiu v. Nayler 630 

Henry v. Coats 194 

Henry v. Commonwealth 404 

Henry v. Dubuque, etc., R. R. Co . . . 288 

Henry v. Fine 481 

Henry v. Hamilton 739 

Henry v. Jackson : . . 117, 118 

Henry v. Root 69 

Henry v. Vermont, etc., R. R. Co 302 

Henry County v. Gates 134 

Henshaw v. Wells 355 

Henson v. Veatch 758 

Henson v. Walts 42 

Hentz V. Long Island R. R 294 

Hepburn v. Auld 778, 803 

Hepburn v. Dunlop 521 

Herbert v. Hobbs 238 

Hermanos v. Duvigneaud 109 

Heroy v. Gibson 373 

Herrick v. Carter 532, 537 

Herring v. Winaus 202 

Herron v. State 399 

Hersh v. Northern Central R. R. Co . 316 

Herwig v. Oakley 693 

Heseltine v. Siggera 594 

Hesketh v. Go wing 49 

Hesler v. Degant 747 

Hess' Estate 211, 213 

Hess V. Werts 117 

Hessev v. Christie 720 

Hew.'s V. Jordan 598, 599 

Hew«tt V. Adams 228 

Hewett V. Buck 684 

Hewitt's Case 98 

Hewit V. Mason 734 

Hewit V. Prime 666 

Hewitt V. Rankin 121, 125 

Hewlet V. Flint 622 

Hext V. Walker 37 

Heyliger v. N. Y. Firemen Ins. Co. . . 705 
^ " 708 

Hey wood v. Wingate 14G 

Hibblewhite v. McMorine 531 

Hickam v. Hollingsworth 236 

Hickman v. Cox 108 

Hickman v. Kunkle 129 

Hickman v. McCurdy 307. 222 

Hicks V. Britt 483 

Hicks V. Cleveland 602 

Hicks V. Flint 474 

Hicks V. Foster 752 

Hicks V. Hicks 361 

Ilicks V. Pacific R. R. Co 327 

Hicks V. Rising 757 

Hicks V. State 659 

Hiern v. Mill 821 



TABLE OF CASES. 



Ixi 



PAGE. 

Higginbottom v. Short 85, 89 

Higgins V. Wright 218 

Higgins V. Watervliet Turnpike Co. 

341, 344 

Higginson v. Clowes 825 

Hight V. Ripley 594 

Hightower v. Slaton 22 

Hildreth v. Sands 519, 523 

Hiles V. Moore 3G3 

Hills V. Bailey 109 

Hill V. Brinkley 24 

Hill V. Buckley 814 

Hill V. Carley 631 

Hill V. Croll 788 

Hill V. Crook 49 

Hill V. Cunningham 25 

Hill V. Dunham G36 

Hill V. Fiske 781 

Hill V. Great Northern Ry. Co 822 

Hill V. Hanford 52 

Hill V. Kirby 830 

Hill V. Kirwan 368 

Hill V. Manser 213 

Hill V. North 565 

Hills V. Parker 384, 387 

Hill V. Paul 28 

Hill V. Portland, etc., R. R. Co 330 

Hill V. Robinson 476 

Hill V. Sherman 236 

Hill V. Smith 623 

Hill V. Southwick 628 

Hill V. Spear 635 

Hill V. Sturgeon 095 

Hill V. Syracuse, etc., Ry. Co 326 

Hill V. Voorhies 114 

Hill Manufacturing Co. v. Providence, 

etc., Co 700 

Hilliardv. Goold 310, 317 

Hilliard v. Richardson 309 

Hillman v. Reis 125 

Hillyer v . Bennett 72 

Hilton V. Crist 224 

Hilton V. Duncan 830 

Hilton V. Houghton 636 

Hilton V. Lothrop 431 

Himes v. Keller 217 

Himrod Furnace Co. v. Cleveland, etc.. 

R. R. Co 603 

Hinchman v. Emans 513 

Hinchmau v. Paterson Horse R. R. 

Co 337 

Hinckley v. Cape Cod R. R. Co. ." '...'. 330 
Hinckley v. Chicago, etc., R. R. Co. . 314 

Hinckley v. Kersting 566 

Hinde v. Whitehouse. 576, 599, 602, 606 

Hindmarsh v. Chandler 79 

Hinds V. Ingham 243 

Hine v. Keokuk, etc., R. R. Co 291 

Hinely v. Margaritz 71 

Hinkler v. Davenport 745, 748, 759 

Hinsdill v. Murray 222 

Hinton v. Law 122 

Hintermister v. First Nat. Bk 165 

Hipwell V. Knight 809, 811 



PAGE. 

Hirschorn v. Canney. • 548 

Hirsch v. Whitehead 456 

His Creditors • 149 

Hitchcock v. Hunt 628 

Hitchman v. Whitney 665, 668 

Hite v. Campbell 204 

Hoadley v. McLaine 533, 580, 610 

Hoag V. Hatch 730 

Hoagland v. Cincinnati, etc., R. R. Co. 275 
Hoagland v. Hannibal, etc., R. R. Co. 280 

Hoar v. Ward 730, 731 

Hoar V. Wood 754 

Hoare v. Parker 171 

Hobart v. Lemon 530 

Hobart v. ]\Iilwaukee City R. R. Co. . 337 

Plobart V. Stone 233 

Hobbit V. London, etc., Ry 308 

Hobbs V. London, etc., R. R. Co •. 609 

Hoben v. Burlington, etc., R. R. Co.. 329 

Hobson v. Porter 134 

Hockaday v. Newsom , 251 

Hodgkinson, Petitioner 93 

Hodgkinson v. Long Island R. R. Co . 349 

Hodgson V. Scarlet 732, 754 

Hodson V. Shaw 214 

Hoe V. Sanborn 562, 565 

Hoffman v. Beard 86 

Hoffman v. Carow 528 

Hoffinan v. Duncan 376, 390 

Hoffman v. Kemerer 667 

Hoffman v. The Union Ferry Co 713 

Hoftailing v. Teal 76 

Hogan V. Cregan 655 

Plogau V. Smith 448 

Hogden v. Guttery 429 

Hoge V. Lansing 186 

Hogg V. Ellis 116 

Hogg V. Wilson 737 

Hoggart V. Scott 788, 811 

Hoggins V. Plympton 558 

Holbrook v. Baker 169 

Holbrook v. Burt 633 

Holbrook v. Receivers of Am. Fire 

Ins, Co 390 

Holcroft V. Wilkes 683 

Holden v. Clancy 563 

Holden v. McFaul 145 

Hole V. Sittingboume, etc., Ry. Co. . 309 

Holifield V. White 109 

Holland v. Bouldin 413 

Holland v. Drake 133 

Holland v. Fuller 121 

Holland v. Teed 190 

Holley V. Burgess 736 

Holliday v. Holliday 523 

Holliday v. Lewis ,-..,,... 476 

Holliday v. Morgan , 558, 560 

Hollingshead v. McKenzie 823 

Hollingsworth v. Shaw 729 

Hollingsworth v. Swedenborg 44 

Hollis V.Wells 664,669 

Holloway v. Abell 668 

Holloway v. Brinkley 110 

Holmark v. Mollin 474, 485 



Lxii 



TABLE OF CASES. 



PAGE. 

Holmes v. Burton 127 

Holmes v. By bee 430 

Holmes v. Durell 225 

Holmes v. Grant 426 

Holmes v. Hawes 148 

Holmes v. Higgins 146, 149 

Holmes v. Holmes 89 

Holmes v. McCray 105 

Holmes v. Seely 76 

Holmes v. Shands 141, 143 

Holmes v. The Old Colony R. K . . . . 110 

Holmes v. Wakefield 325 

Holmes v. Weed 204, 206, 212 

Holroyd v. Marshall 532 

Holt V. Bodey 186, 234 

Holt V. Holt 61 

Holt V. Scholefield 739, 741 

Holt V. Wescott 696 

Holtzapffel v. Baker 790 

Holyoke v. Mayo 151 

Homan v. Laboo 480, 481 

Home Ins. Co. v. Flint 251 

Homer v. Ashford 634 

Homer v. Thwing 73, 78 

Homfray v. Fothergill 770 

Honeffsberger v. Second Ave. R. R. 

Co .... 77 

Honeyman v. Marryatt 822 

Hood V. Northeastern Ry. Co 769 

Hooe V. Barber 215 

Hooks V. Bank 237, 239 

Hook V. Craigherd 445 

Hook V. Hancock 759 

Hook V. Stone 133 

Hook V. Stovall 567 

Hooker v. Knab 590 

Hooker v. Pynchon 763, 780 

Hooper v. Fisher 98 

Hooper v. Goodwin 7 

Hooper v. Lusby 123 

Hooper v. Rathbone 700 

Hooper v. Truscott 748, 757 

Hooper v. Winston 382, 383 

Hoover v. Calhoun 803, 818 

Hoover v. Peters 561 

Hope V. Eddington 226 

Hope V. Lawrence 179 

Hopkins v. Burney 494 

Hopkins v. Canal Proprietors 353 

Hopkins v. Connel 351 

Hopkins v. Drake 463 

Hopkins v. Forsyth 110 

Hopkins v. Gilman 770, 773 

Hopkins v. Hopkins 490, 497 

Hopkins v. Howard 041 

Hopkins v. Ladd 50(1 

Hopkins v. Snedaker 525 

Hopk ins v. Tauqueray 555 

Hopkins v. Ware 583 

Hopkins v. Western Pacific R. R. Co., 314 

Hopley v. Young 4 

Hopper V. Hopper 775 

Hopper V. Miller 471, 470, 485 

Hopwood V. Thorn 751 



PAGE 

Hord V. Miller 770 

Horn V. Ludington 800 

Hornstein v. Atlantic, etc., R. R. Co. 298 

Horrell v. Parish 695 

Horton's Appeal 119, 136 

Horton v. Banner 754 

Horton v. Green 555, 556 

Horton v. McCarty 607 

Horton v. Sledge 99 

Horton v. State 400 

Horton v. Vowell 486 

Hortsman v. Covington, etc., R. R. Co., 302 
Hortsman v. Lexington, etc., R. R. Co., 284 

Hosack V. Rogers 365 

Hosford V. Merwin 99 

Hosher v. Kansas City, etc., R. R. Co., 296 

Hosie V. Gray 401 

Hoskins v. Johnson 148 

Hoskins v. Parsons 222 

Hosley v. Brooks 746 

Hosmer v. Loveland 757 

Hotchkiss V. Hunt 586 

Hotchkiss V. Oliver 533 

Hotchkiss V. Olmstead 736 

Hotham v. East India Co 551 

H ottenstein v. Conrad 356, 362 

Hotton v. Binns 485 

Houdlette v. Tallman 58 

Hough V. Cook County Land Co 524 

Hough V. Hunt 513 

Hough V. May 583 

Houghton V. Houghton 119 

Houghton V. Nash 509 

Houghwout V. Murphy 818 

House V. Fort 555, 559 

House V. House 735 

Houser v. Lamont 799 

Housh V. People 38 

Houston V. Cooper 62 

Houston V. Lane 758 

Houston V. Neuse River, etc., Co. . . . 264 

Houton V. Holiday 179 

Houx V. County of Bates 438 

Hovey v. Storer 523 

How v. Codman 643 

How v. Kemball 188 

How v. Prinn 741 

Howard v. Borden 599 

Howard v. Harris 532 

Howard v. Lincoln 538 

Howard v. Moore .... 765 

Howard v. Papera 365 

Howard v. Pierce 256 

Howard v. Sexton 739 

Howard v. Sheward 567 

Howard v. Thompson 756 

Howe v. Batchelder 595 

How.! V. Buffalo R. R 233 

Howe V. Hay ward 601 

Howe V. Nickerson 770. 773 

Howe V. Rogers 801 

Howe V. Shaw 487 

Howell V. Harvey 105, 139 

Howell v. Howell 760 



TABLE OF CASES. 



Ixiii 



PAGE. 

Howell V. Kroose 480 

Howell V. Lawrence ville Co 243 

Howell V. March 647 

Howell V. Morris 165 

Howey v. Goings 98 

Howie V. Rea 626 

Howie V. State 418 

Howland v. Harris 575 

Howland v. Howland 667, 668 

Hoxie V. Carr 120 

Hoxie V. Lincoln 73 

Hoxsie V. Ellis 96 

Hoy V. Hansborough 766 

Hoye V. Penn 242 

Hoyle V. Huson 93 

Hoyle V. Plattsburg, etc., R. R. Co. . . 310 

Hoyle V. Stowe 69, 80 

Hoyle V. Young 744 

Hoyt V. Blain 654 

Hoyt V. French 229 

Hoyt V. Kimball 809 

Hoyt V. Tuxbury 811 

Hubbard v. Bliss 548 

Hubbard v. Bolls 652 

Hubbard v. Cummings 65 

Hubbard v. Curtis 149 

Hubbard v. Guild 376 

Hubbard v. Gurney 186 

Hubbard v. Kansas, etc., R. R. Co. . . 285 

Hubbard v. Moore 636 

Hubbard v. Shaw 433 

Hubbell V. Bissell 231 

Hubbell V. Carpenter 244 

Hubbell V. Courtney 821 

Hubbell V. Sibley 431 

Hubbell V. Von Schoening. 808, 809, 810 

Huber v. Shack 462, 464 

Huchting v. Engel , 73 

Huddleston v. Briscoe 798 

Hudler v. Golden 477, 488 

Hudson V. JeflFerson County 16 

Hudson V. Layton 765 

Hudson V. Plets 388 

Hudson V. Temple 808 

Hudson V. Weir 541, 595 

Hudson, etc., Canal Co. v. N. Y., etc., 

R. R. Co 295 

Huebschman v. McHenry 467 

Hueston v. Eaton, etc., R. R. Co 347 

Huey V. Pinney 200, 201 

HuflF V. Cole 240, 241 

HuflF V. Gilbert 501 

Huff V. McCauley 595 

Huffman v. Hummer 776, 797 

Huffman v. Hurlbert 240 

Hughes' Case 41 

Hughes V. Devlin 88, 97 

Hughes V. Hardisty 188 

Hughes V. Humphreys 63 

Hughes V. Littlefield 204 

Hughes V. Providence, etc., R. R, Co. 307 

Hughes V. Sheaff 550 

Hughes V. United States 619 

Huguenin v. Baseley 368, 785 



PAGE 

Hull V. Peer 823 

Hull V. Sturdivant 763, 776 

Hulland v. Malken 48 

Hulme V. Coles 242 

Humble v. Mitchell 594 

Humphreys v. Crane 237 

Humphrey v. Douglass 78 

Humphrey v. Foster 100 

Humphrey v. Hurd 422 

Humphreys v. Pratt 34 

Humphrey v. Taggart 505 

Humphreys v. Mut. Ins. Co 708 

Humphreys v. Carvalho 534, 552 

Humphries V. Horn 825 

Hungerford v. Redford 472 

Hunnewell v. Taylor 86, 93 

Hunsaker v. Sturgis 179 

Hunt V. Bay State Ijon Co 279 

Hunt V. Bennett 747 

Hunt V. Benson 120 

Hunt V. Bridgham 237 

Hunt V. Haskell 698 

Hunt V. Hecht 599 

Hunt V. Knickerbacker 635 

Hunt V. Knox 244 

Hunt V. Moore 557 

Hunt V. Morris 151 

Hunt V. Peake 63 

Hunt V. Postlethwait 240 

Hunt V. Propeller Cleveland 696 

Hunt v. Roberts 800 

Hunt v. Round 506 

Hunt V. Strew 475 

Hunt v. Thimblethorpe 733 

Hunt V. Thompson 51 

Hunt V. Townsend 215 

Hunt V. Turner 798 

Hunt V. U. S 203, 237 

Hunt V. Wyman 527, 553 

Hunter v. Agnew 66 

Hunter v. Bilyeu 437, 445 

Hunter v. Chandler 9, 266 

Hunter v. Goude 514, 521 

Hunter v. Le Conte 497 

Hunter v. Leran 209 

Hunter v. Nolf 634 

Hunter v. Parker 675, 676 

Hunter v. Prinsep 696 

Hunter v. Wetsell 603 

Hunter v. Wright 574 

Huntington v . Potter 143 

Huntington, etc., R. R. Co. v. Decker 329 

Hurd V. Haggerty 129 

Hurd V. Spencer 233 

Hurlburt v. Goodsill 498 

Hurry v. Ship John & Alice 689 

Hurst V. Great Western Ry 323 

Hurst V. Williamson 644 

Huson V. Dale 759 

Hutchings v. Nunes 613 

Hutchesou v. Blakeman 535 

Hutchinson v. Bowker 534 

Hutchinson v. Ford 531 

Hutchinson v, Guion 320 



Ixiv 



TABLE OF CASES. 



PAGE. 

Hutchinson v. Hampton 390 

Hutchinson v. Pettes 25 

Hutchinson v. Watkins 637 

Hutchinson v. Wheeler 759 

Huth V. Carondelet R. R. Co. . T. 68 

Huthmacher v. Harris 527 

Hutley V. Hutley 634 

Hutsen v. Fumes 453 

Button V. Arnett 180 

Hutton V. Edgerton 510 

Hutton V. Eyre 153 

Hutton V. London, etc., Ry. Co 284 

Hutton V. Moore 533 

Hutts V. Hutts 737, 744 

Hyatt V. Boyle 629 

Hvde V. Cooper 798 

Hyde v. Hyde 41 

Hyde v. Melvin 163 

Hyde v. State 2, 258 

Hyde v. Stone 77 

Hyde v. Trent Nav. Co 697 

Hyde v. Trewhitt 259 

Hyer v. Little 518 

Hyman v. Cook 467 



Iddings V. Bruen 382 

Ide V. Churchill 243 

Ide V. Stanton 604 

Ihmsen v. Negley 129 

Ijams V. Hoffman 698 

Ilifif- V. Brazill 110 

Illinois, etc., R. R. Co. v. Benton 329, 330 

Illinois L. & L. Co. v. Bonner 40 

Illinois Cent. R. R. Co. v. Cobb 319 

Illinois, etc., R. R. Co. v. Cook 274 

Illinois, etc., R. R. Co. v. Godfrey. . . 329 

Illinois Cent. R. R. Co. v. Kanouse. . 334 

Illsley V. Stubbs 460 

Imlay v. Union Branch R. R. Co 290 

Inbuster v. Bank 236 

Indiana, etc., R, R. Co. v. Oakes 347 

Indianapolis, etc., R. R. Co. v. Horst. 327 

Indianapolis, etc., R. R. Co- v. Jones . 282 

Indianapolis, etc., R. R. Co. v. Rinard 317 

323 

Indianapolis, etc., R. R. Co. v. Smith. 302 

Indianapolis, etc., Ry. Co. v. Strain. . 320 

Ingalls V. Allen 732, 730 

Ingalls V. Bulkley 481, 494 

Ingalls V. Dennett 207 

Iuger.soll V. Buchanan 250 

Ingersoll v. Jones OGl, 667 

Inger.soU v. Sawyer 421 

Ingersoll v. Skinner 101 

lugersoll V. Stockbridge, etc., R. R. 

Co 332 

Ingersollv. VaiiBokkelin.. 174, 181, 721 

Ingerson v. Miller 658 

Inglehart v. Vail 765, 794 

Ingraham v. Hammond 497 

Ingraham v. Martin 490 



PAGE. 

ngraham v. Wheeler 678 

ngram v. State 403, 408 

nnis V. Steamer Senator 711 

n re Bateman 249 

n re Bunbury's Estate 783 

n re Cormick's 367 

n re Cork, etc., Railway Co 035 

u re De La Touche 441 

n re Foster 249 

n re Goodenough 43 

n re Horner's Estate 284 

n re Lindsay 546 

a re McDouglas 396 

u re N. Y. C. etc., Co. v. Metropoli- 
tan, etc., Co 287 

n re Tarble 63 

n re Van Allen 378 

n re Wilson , 454 

ns. Co. of Penn. v. Duval 691 

nslee v. Lane 614, 616 

reland v. Johnson 602 

reland v. McGarvish 742 

reland v. Nichols 357, 393 

reland v. Thomson 676 

rick V. Black 186 

rish V. Dean 512 

rons V. Field 728 

rvin V. Bleakley 805 

rvin V. Gregory 806 

rvine v. Irvine 72 

rvine v. Stone 597 

rving V. Tbomas 566, 638 

rvin V. Brandwood 729 

rwin V. Dearman 660, 665, 668 

rwin V. King 89 

rwin V. Milburn 26 

saacs V. Boyd 48 

saac V. Clark 167 

saacs V. New York Plaster Works. . 623 

saacs V. Third Av. R. R. Co 341 

sabel V. Hannibal, etc., R. R. Co 330 

shell V. New York, etc., R. Co 331 

sler V. Baker 138 

som V. McGee 646 

srael v. Jacksonville 158 

ves V. Hazard 802 

ves V. Miller 150 



Jackman v. Mitchell 520 

Jackson v. Ashton 512 

Jackson v. Bowles 419 

Jackson v. Brown 101 

Jackson v. Calesworth 165 

Jackson v. Carpenter .69, 71 

Jackson v. Crapp 114, 123 

Jackson's Assignees v. Cutright .... 799 

Jackson v. Deese 136, 139 

Jackson v. Deforest 382 

Jackson v. Duchaire 191 

Jackson v. Edwards ... 101 

Jackson v. Hanison 505 



TABLE OF CASES. 



1x7 



PAGE. 

JackBon v. Harder 83 

Jackson v. Holloway 131 

Jackson v. Hubbard 472 

Jackson v. Jackson 814 

Jackson v. Jacob . . 584 

Jackson v. Ligon 807 

Jackson v. Livingston 84 

Jackson v. Ludeling 15 

Jackson v. Myers 94 

Jackson v. Nichol 615 

Jackson v. Payne 442 

Jackson v. Rutland, etc., Ry. Co 288 

Jackson v. Sacramento, etc. , R. R. Co. 319 

327 

Jackson v. Sedgwick 124 

Jackson v. Shawl 184 

Jackson v. Sparks 469 

Jackson v. Stopberd 151 

Jackson v. Turquand 534 

Jackson v. Wetberill 555 

Jacksonville v. Block 158 

Jacob V. City of Louisville 300 

Jacobs V. Fyler 739 

Jacobs V. Locke 792 

Jacobs V. Peterborough, etc., R. R. 

Co 801 

Jacquen v. Buisson 155, 166 

Jagers v. Griffin 629 

James v. Brook 742 

James v. Griffin 615 

James v. James 80 

James v. Lichfield 780, 781 

James v. London, etc., R. R. Co 255 

James v. Malone 197 

James v. Muir 605 

James v. State Bank 795 

James v. Williams 583 

Jameson v. Gregory 551 

Jamison v. Governor 228 

Janesville v. Milwaukee, etc., R. R. 

Co 306 

Jane way v. Green 365 

Janney v. Columbian Ins. Co 677 

Jarman v. Davis 832 

Jarnigan v. Fleming. . 727, 746, 749, 758 

Jarrett v. Morton 509 

Jarvis v. Hyatt 240 

Jarvisv. Rogers. 170, 171, 172, 175, 176 

177 

Jatho V. Railway Co 345 

Jauch V. Jauch 760 

Jay County v. Templer 27 

JeflPerson v. Chase 470 

Jefferson ville v. Patterson 15 

Jeffersonville, etc., R. R.Co. v. Parma- 
lee 322 

Jefford V. Ringold 62 

JefiFrey v . Bigelow 027 

Jeffrie v. Robideaux 79 

Jefixies v. Duncombe 743 

Jellison v. Goodwin 746 

Jenks V. Cox 722 

Jenksv. Jenkins 66 

Jenkins v. Clarkson 235, 243 

Vol. v.- 1 



PAGE. 

Jenkins v . Dalton 90 

Jenkins v. Eichelberger 537 

Jenkins v . Freyer 56 

Jenkins v. Jarrett 542 

Jenkins v. Jenkins 59, 364 

Jenkins v. McNeese 245 

Jenkins v . Pye 512 

Jenkins v. Van Schaack 86 

Jenkins v. Wheeler 680 

Jenkinson v. Pepys 825 

Jenkyns v. Brown , 527 

Jenkyns v . Usborne 612 

Jenuer v. Smith .545 

Jenness v . Wendell 597 

Jennings v. Broughton 632 

Jennings v . Brown 49 

Jennings v . Estes 114 

Jennings v . Flanagan 588 

Jennings V. Gage 637 

Jennings v. PaL 754 

Jennings v. Rundall 74 

Jennings v. State 410 

Jerome v. McCarter 177 

Jerome v. Scudder 780 

Jersey City, etc., R. R. Co. v. Jersey 

City, etc., R. R. Co 338, 339 

Jervoise v. Silk 52 

Jeter ads. State 2 

Jetton V. Smead 498 

Jewett V. Davis 524 

Jewett V. Lawrenceburgh, etc., R. R. 

Co 276 

Jewett V. Limberger 519 

Johns V. People 9 

Johns V. Battin 134 

Johns V. Johns 358 

John V. Jones ; 220 

Johns V. Norris 824 

Johnes v. Claughton 389 

Johnson v. Beardslee 132 

Johnson v. Bernheim 128 

Johnson v. Brown 728 

Johnson v. Buck 591, 604 

Johnson v . Burrell 648 

Johnson v. Cattle 600 

Johnson v. Chapman 706 

Johnson v. Crutcher 441 

Johnson V. Dicken 744 

Johnson v. Dodge 607, 776 

Johnson v. Dodgson 604, 606 

Johnson v. El wood 472, 747 

Johnson v. Evans 449, 755 

Johnson v. Furnum 376 

Johnson v . Filkington 512 

Johnson v. Garlick 457, 488 

Johnson v. Gibson 52 

Johnson v. Gunter 383 

Johnson v . Harmon 424, 429 

Johnson v. Howe 500.. 50i. 

Johnson v. Hudson River R. R. Co .. 157 

Johnson v . Hunt 480 

Johnson v. Ivey 230 

Johnson v. Joli'et, etc., R. R. Co., 284, 286 
Johnson V. Kimbro 99 



Ixvi 



TABLE OF CASES. 



PAGE. 

Johnson v. McLane 584, 538, 552 

Johnson v. Miller Ill 

Johnson v. Mills 230 

Johnson v. Morrison 217 

Johnson v. Noble 90 

Johnson v. Planters' Bank 237 

Johnson v. Randall 396, 406 

Johnson v. Rickett 775 

Johnson v. Robertson 729, 730, 742 

Johnson v. Rockwell 59, 66 

Johnson v. Shields 732, 736 

Johnson v. Shrewsbury, etc., Ry. Co., 

332, 350 

Johnson v. Stear 176 

Johnson v. Stewart 366 

Johnson v. Terry 42 

Johnson v. Titus 564 

Johnson v. Tucker 369 

Johnson v. Vaughn 224 

Johnson v. Walker 509 

Johnson v. Western, etc., R. R. Co . . 329 

Johnston v. Browne 537 

Johnston v. Dutton 127 

Johnston v. Glancy 830 

Johnston v. Johnson 827 

Johnston v. Lance 759 

Johnston v. Morrow 741 

Johnston v. Searcy 237 

Johnston v. Thompson 234 

Johnston v. Wilson 13 

JoUand v 391 

Jones V. Alley 803 

Jones V. Baldwin 173 

Jones V. Bennett 774 

Jones V. Blanton 224 

Jones V. Boston Mill Corp 773 

Jones V. Bradford 222 

Jones V. Bridges 706 

Jones V. Bright 565 

Jones V. Brown 244 

Jones V. Carter 83 

Jones V. Chapman 737 

Jones V. Clark 138 

Jones V. Crocker 87 

Jones V. Davids 188 

Jones V. Dilworth .... 044 

Jones V. Diver 742 

Jones V. Dodge 468, 478 

Jones V. Earle 615 

Jones V. Estia 156 

Jones V. Fleming 247 

Jones V. Flint 595 

Jones V. Hagler 230 

Jone.s V. Hawkins 175 

Jones V. Hungerford 735 

Jones V. Ins. Co. of N. America 704 

Jones V. Jones 375, 022, 770 

Jones V. Just 553, 501, 504, 027 

Jones V. Keen 389 

Jones V. Keer 239 

Jones V. Marrs 739 

Jones V. McDowell 730 

Jones V. Mechanics' Bank 600 

Jones V. Meredith 427 



PAGE. 

Jones V. Murray 561 

Jones V. New York, etc. , R. R. Co. . . 319 

Jones V. Noble 788, 802, 809 

Jones V. Noy 188 

Jones V. Phoenix Bank 61, 68 

Jones V. Pugh 356 

Jones V. Reeves 85 

Jones V. Robbins 809 

Jones V. Roberts 778 

Jones V. Smith 167 

Jones V. Thurmond 172, 183 

Jones V. Tincher 201, 214 

Jones V. United States 36 

Jones V. Wassou 554 

Jones V. Welwood . 773 

Jones V. Williams 163 

Jordan v. Adams 207 

Jordan y. Fay 789 

Jordan v. James 578 

Jordan V. Warren Ins. Co 719 

Jordans v. Van Hoesen 23 

Jordon v. Deaton 789, 803 

Jordon v. Parker 630 

Jordon v. Trumbo 344 

Jose V. Hewett 193 

Josling V. Kingsford 554 

Joslyn V. Eastman 337 

Joslyn V. Smith 243 

Jowers V. Blandy 547 

Joy V. Sears 678 

Joyce V. Swann 533, 534, 535 

Joynes v. Statham 825 

Joyslin v. Taylor 147 

Judd V. Fox 460 

Judson V. Blanchard 76, 77 

Jummel v. Marine Ins. Co 707 

Junction R. R. Co. v. Boyd 289 

Justices V. Croft 766 

Justice V. Lang 608, 606, 788, 803 



K. 



Kafer v. Harlow 505 

Kaighn v. Fuller 240 

Kain v. Old 540, 556 

Kain v. Smith 315, 351 

Kaiser v. St. Paul, etc., R. R. Co 291 

Kane v. People 268 

Kansas City, etc., R. R. Co. v. Alder- 
man 277 

Kansas, etc., Ry. v. Fitzsimmons. . . . 309 

Kansas Pac. Ry. Co. v. Hopkins 347 

Kansas, etc., R. R. Co. v. Miller 327 

Kansas, etc., Ry. Co. v. Pointer 338 

Karr v. Parks 47 

Karthaus v. Ferrer 133 

Kaufman v. Schilling 459, 468, 478 

Kaufman v. Stone 9 

Kaufmuu v. Wilson 236 

Kay V. Frcdrigal 758 

Kayo v. Brett 584 

Kean v. McLaughlin 757 

Kearns v. State 403 



TABLE OF CASES. 



Ixvii 



PAGE. 

Keaton v. Cox 201 

Keeble v. Jones 239 

Keegan v. Cos 477 

Keegan v. Western R. R. Co 328 

Keeler v. Taylor 787 

Keenan v. Perry 12 

Keene v. Reiley 370 

Keenliolts v. Becker 731 

Keeran v. Clowser. 77 

Keesling v. McCail 745 

Kelioe V. Rounds 498 

Keller v. Tutt 532 

Kein v. Tupper 588 

Keipp V. State 416 

Keisselbracli v. Livingston .... 825, 828 

Keith V. Bradford 497 

Keith V. Goodwin 223 

Kelleher v. Tisdale lOG 

Keller v. Donnelly 659, 661 

Keller v. Rhoads 208 

Kelley v. Davis 51 

Kelley v. Hume 492 

Kelley v. Roberts 540 

Kelley v. Sheldon 795 

Kelley v. Story 18 

Kellingerv. Forty-second St. R. R. Co. 838 

Kellogg V. Denslow 629 

Kellogg V. Malin 288 

Kellogg V. Olmstead 240 

Kellogg V. State 401, 404 

Kellum V. Emerson 685 

Kelly V. Cushing 688 

Kelly V, Page 222 

Kelly V. Upton 540 

Kemble v. Kean 153, 769 

Kemeys v. Richards 130 

Kemp V. Carnley 133 

Kemp V. Coffin 142 

Kemp V. Mitchell 435 

Kemp V. Westbrook 170, 172, 182 

Kempshall v. Stone 764 

Kempton v Sullivan Sav. Inst. .. 159, 163 

Kendall v. Fitts 500 

Kendall v. Rider 120 

Kendall v. Stokes 31 

Kendall v. Stone 761, 762 

Kendillon v. Maltby 756 

Kendrick v. Lomax 532 

Kendrick v. McCrary 657, 661, 662 

Kendrick v. Price 201 

Kendrick v. Rice 193 

Kendrick v. Wentworth 648 

Kennard v. George 451 

Kennebec Bank v. Turner 190 

Kennedy v. Bohannon 114 

Kennedy v. Clayton 491 

Kennedy V. Doyle 67 

Kennedy v. GiflFord 732, 747 

Kennedy v. Kennedy 98, 512, 517 

Kennedy v. Milwaukie, etc., R. R. Co. 300 

Kennedy v. Shea. . . . , 659 

Kennedy v. St. Paul, etc., R. R. Co. . 359 

Kennedy v. Wolfolk 804 

Kennett Nav. Co. v. Witherington . . . 347 



PAGE. 

Kenney v. Altvater 106, 126 

Keuney v. McLaughlin 728, 734, 746 

Kenningham v. Bedford 244 

Kenosha, etc., R. R. Co. v. Sperry. . 643 

646 

Kent V. Long 219 

Kent V. Manchester 440 

Ken worth v. Schofield 591 

Kenyon v. Welty 440 

Keokuk v. Love 214 

Keppell V. Bailey 273 

Kerlev v. Hume 502 

Kern v. Thurber 637 

Kern v. Towsley 739 

Kerns v. Chambers 223, 225 

Kerr v. Bell 72 

Kerr v. Cameron 246 

Kerr V. Potter 115 

Kerr v. Purdy 809 

Kerschbaugher v. Slusser 744 

Kesler v. Zimmerschitte 441 

Kessler v. New York, etc., R. R. Co . 335 

Kestner v. Spath 235 

Kester v. Stark 94 

Ketchum v. Breman 548, 631, 638 

Ketch um v. Catlin 535 

Ketcham v. Clark , 142 

Ketchum v. Dew 567 

Ketchum v. Stout . 779 

Key V. Commonwealth 405 

Keys V. Harwood 527 

Kiddell v. Bumard 558, 560 

Kiff V. Old Colony, etc., Railway 33 

Kiffin V. Kiffin 367 

Kilgore v. Jordan 74 

Kilgour V. Crawford 100 

Kilmorey v. Thackeray 770 

Killam v. Preston 151 

Killmore v. Howlett 596 

Kilpatrick v. Kilpatrick 452 

Kilshaw v. Jukes 112 

Kimball v. Adams 462, 497 

Kimball v. Alcorn 7, 9 

Kimball v. Hildreth 168, 170 

Kimball v. Lolimas 467 

Kimball v. Thompson 490, 500 

Kimball, etc. , Manuf. Co. v. Vroo- 

man 629 

Kimbell v. Moreland 639 

Kimberley v. Jennings 788 

Kimberly v. Patchin 587 

Kimble v. Cummins 204, 205, '212 

Kimbro v. Hamilton 621 

Kimmis v. Stiles 728, 740, 745 

Kiucade v. Bradshaw 759 

Kiucaid v. Smyth 26 

Kindv V. Green 465 

King'v. Baldwin 195, 201 

King v. Bardeau 804 

King V. Brown 75 

King V. Cutts 379 

King V. Elliott 275 

King V. Green 169 

King V. Hamilton 765 



Ixviii 



TABLE OF CASES. 



PAGE. 

King V. Howard ''^S 

Kiug V. Hunter 19 

King V. Jones 399 

King V. King 88, 370 

Kiul: V. Kuapp 803 

King V. Lake 739 

King V. Livermore 309 

King V. Lowiy 123 

King V. Meighen 432 

King V. Perry 688 

King V. Ramsay 501 

King V. Piuckman 789 

King V. Sliepherd 699 

King V. Smith 143 

King V. State Bk 340 

King V. Zell 443 

Kingman v. Spurr 105, 118, 119 

Kingsbury v. Phelps 179 

Kingsbury v. Taylor 563 

Kingshvndv. Palmer 14 

Kingsley v. Holbrook 595 

Kingsley v. Young , 790 

Kiuley v. Fitzpatrick 559 

Kinloch v. Craig 613 

Kinney v . Hosea 753 

Kinney T. Kiernan 631 

Kinney v. McLaughlin 759 

Kinney v. Nash 743. 745 

Kinsey V. Stewart 34 

Kip V . Berdan 060 

Kipp V. Hanna 356 

Kip V. New York, etc., R. R. Co. . . 350 

Kipling V. Turner 194 

Kirby v. Carr 138 

Kirby v. Commonwealth 413 

Kirby v. Harrison 808 

Kirby v. Johnson 591 

Kirljy v. Kirby 358 

Kirby v. Miller 471, 484 

Kirby v. Studebaker 337 

Kirk V. Blurton 146 

Kirklaud v. Krebs 641 

Kirkner v. Commonwealth 413 

Kirksey v. Fike 738 

Kirksey v. Kirksey 799 

Kirle v. Osgood 741 

Kirton v. Elliott 65 

Kisterbock v. Building Assoc 650 

Kitrhell V. Vanadar 179 

Kitchen v. Lee , 72 

Kitchen v. Sheets 80 

Kiilredge v. Holt 464 

Kitlrcdge v. Peaslee 383 

Klein V. Mather 223 

KloinhauH v. Generous 243, 243 

Klei.ser v. Scott 215 

Kleizer v. Symmes 748 

KlincU V. Colby 753 

Kline v. Baker G30 

Klino V. Be.-lje 48, 07, 09 

Kline V. L'Anioreaux 05 

Kliiigman v. Holmes 47 

Klingensmith v. Klingeusmith 228 

Klopfer V. Bromme 065 



PAGE. 

Klopp V. Lebanon Bk 315 

Klumph V. Dunn 744, 752 

Klyce V. Broyles 805 

Koch V. Oregon Steamship Co 716 

Kohl V. Lindley 565 

Kohler v. Hayes 586 

Kohn V. Packard 700 

Kooutz V. Franklin 31 

Koontz V. Northern Bk 368 

Knapp V. McAuley 397 

Knapp V. McBride 139, 137 

Knapp V. Smith 486 

Knickerbacker v. Harris 806 

Knight V. Gibbs 731, 733, 751, 756 

Knight V. Lord Plimouth 386 

Knight V. Sampson 406 

Knights V. Whiffen 574 

Knight V . Wilcox 656, 666 

Knoblauch v. Kronschnabel 579 

Knoll V, Harvey 801 

Knott V. Stephens 808 

Knowles v. Dabney 551 

Knowles v. Haughton 153 

Knowles v. Rablin 430 

Knowlton v. Walker 431 

Knox V. Flack 65 

Knox V. So. Car. R. R. Co 316 

Knox V. Vallandingham 232 

Krafts V. Creighton 207 

Kramer's Appeal 199 

Kramer v. Arthurs 132 

Krebs v. Oliver 728 

Kreidler v. State 11 

Krohn v. Oechs 699 

Krulder v. Ellison 545 

Krumbhaar v. Birch 611 

Kruttschmitt v. Hauck 6 

Kuchenbeiser v. Beckert 443 

Kugler V. Wiseman 241 

Kunkel v. Fitzhugh 199 

Kyle v.Bostwick 242 

Kyle V. Roberts 134 



La Chaise v. Lord 375 

Lachaise v. Marks 115, 116 

Lacks v. Stouder 561 

Lacey v. Weaver 459 

Ladd V. Billings 486 

Ladd V. Brewer 499 

Ladd V. Perley 89 

Ladd V. Wiggin 233 

Lady Beresford v. Driver 772 

Lafayette Bank v. Buckingham 388 

Lafayette, etc., Co. v. New Albany, 

etc.,R. R. Co 272 

Lafayette, etc., R. R. Co. v. Winslow. 299 

LafTan v. Naglee 125 

LalHin v. Gritfith 485 

La Follet v. Akin 379 

Lafond v. Deems 139 

La Grange v. Merrill 330 



TABLE OF CASES. 



Ixiy 



PAGE. 

Lagrange v. State Treasurer 19 

Laidler v. Burlinson 674 

Laiug V. Fidgeon 565 

Laird v. Boyle 822 

Lake v. Jarrett 90 

Lake V. Morris 571 

Lakeman v. Grinnell 699 

Lamb v. Durant 123, 131 

Lamb v. Grover 108 

Lamb v. Montague 428 

Lambert v. Bluiueuthal 86 

Lambert v. Buckmaster 24 

Lamberton v. Windom 176 

Lamkin v. Crawford 619 

Lamme v. Gregg 557 

Lammot v. Bowly 514 

Lamond v. Da vail 619 

Lamos v. Suell 760 

Lampton v. Bruner 224 

Lamson v. Drake 425 

Lamson v. Patch 577 

Lancaster v. French 743 

Lancaster v. Smith 647 

Lancaster, etc. , Ry. Co. v. Northwest- 
ern Ry. Co 769 

Lance's Appeal 289, 290 

Laucey v. Bryant 748 

Landauer v. Cochran 630 

Lander v. Seaver 44 

Landers v. George 491 

Landrigan v. State 278 

Landrum v. Brookshire 205 

Lane v. Applegate 754 

Lane v. Latimer 510, 511 

Lane v. McKeen 783 

Lane v. Stacy 2l9 

Lane v. Tyler 151 

Lang V. Berard 238 

Lang V. Fiske 131 

Lang V. Majestre 154 

Lang V. State 409, 410 

Lang V. Waring 120, 121, 130 

Langdon v. Hewett 127 

Lange v. Benedict 30 

Lang V. Kennedy 141 

Langford v. Frey 66 

Langford v. Perrin 223 

Langford v. Pitt 811 

Langfort v. Tiler 601, 603 

Langley v. Boston, etc., R. R. Co 336 

Langstaffe v. Fenwick 377 

Langston v. Abney 652 

Langton v. Higgins 545 

Langton v. Waring 541 

Lanier v. Wvman 437 

Laning v. Co'le 771, 802 

Lansing v. Pine 88 

Larison v. Burt 804 

Larke v. Crawford 267 

Larkins v. Biddle 447 

Larned v. Andrews 635 

Lasher v. Williamson 204 

Lasselle v. Godfroy 650 

lAtesoQ V. Goslin 230 



PAGE. 

Latham v. Kenniston 150 

Lathrop v. Cook 455, 463, 479, 488 

Lathrop v. Wilson 186, 187 

Latimer v. Hanson 95 

Latimer v. Wheeler 489 

Lattin v. Davis 627 

Laughlin v. Lorenzo 137 

Lauman v. Nichols 240 

Laurens v. Lucas 807 

Lavender v. Lee 447 

Laverty v. Moore 779, 823 

Law v. Cross 125 

Law V. Hatcher 578 

Law V. Patterson 97 

Lawrence v. Ball 803 

Lawrence v. Dale 512 

Lawrence v. Gallagher 605 

Lawrence v. Great Northern Ry. 292, 302 
Lawrence v. Greenwich Fire Ins. Co. 359 

Lawrence v. Jackson 240 

Lawrence v. Johnson 243 

Lawrence v. Maxwell 174 

Lawrence v. McArter 65 

Lawrenson v. Butler 781 

Laws V. North Carolina R. R. Co 331 

Lawson v. Hicks 754 

Lawson v. Lovejoy 66, 68 

Lawson v. Morgan 154 

Lawson v. Snyder 237 

Lawton v. Keil 555 

Lazard v. Wheeler 485 

Lea v. Dozier 241 

Lea V. Henderson 667 

Lea V. White 754 

Leachman v. Dougherty 29 

Leaf V.Coles 138 

Leahy v. Arthur 363 

Learnard v. Bailey 414 

Leather Cloth Co. v. Hieronimus. . . . 603 

Leatherdale v. Sweepstone 582 

Lea veil v. Robinson 550 

Leavenworth etc., R. R. Co. v. Maris, 

318, 319 

Leavitt v. Palmer 440 

Leavitt v. Peck 127 

Leavitt v. Savage , 237, 242 

Lebanon v. Griffin 56 

Leckie v. Sears 696 

Lecky v. McDermot 492, 493 

Ledbetter v. Gash 89 

Leddel's Exr. v. Starr 364 

Ledley v. Hays 483 

Ledoux V. Durrive. 224 

Lee V. Bayes 528 

Lee V. Cass 166 

Lee V. Griffin 215, 592, 593 

Lee V. Heflev 656, 662, 669 

Lee V. Hodgts 661 

Lee V. Kane 744 

Lee V. Kirby 823 

Lees V. Laforest 143 

Lees V. Newton 164 

Lees V. Waring 373 

Lee V. Portwood 480 



L\X 



TABLE OF CASES. 



PAGE. 

Lee V. Sewall 24 

Lee V. State 266 

Leefir v. Commonwealth 413 

Lefevre v. Laraway 80 

Leffler v. Rice 126 

LefBngwell v. Freyer 196 

Legal Tender Cases 582 

Legal V. Miller 825 

Leggett V. Humphreys 189 

Leggett V. Hyde. . 105, 109, 111, 112 151 
Lehigh Valley R. R. Co. v. Lazarus.. 298 

Lehman v. Kellerman 467, 473 

Leigh V. Everheart 154 

Leighton v. Brown. , 506 

Leighton v. Wales 634 

Leitrim v. Stewart 418 

Leland's Appeal 783 

Leland v. The Medora 690, 692 

Leming v. Snaith 572 

Lemke v. Chicago, etc., R. R. Co. . . . 319 

Lengle v. Smith Ill, 112 

Lenoir v. Winn 210 

Lenox v. Notrebe 356 

Lenox V. United States Ins. Co 703 

Lent V. McQueen 373 

Leonard v. Allen 760 

Leonard v. Bosworth 157 

Leonard's Case 251 

Leonard v. Fowler 554 

Leonard v. Gidding 200 

Leonard v. Peoples 533, 555 

Leonard v. Pope 746, 752 

Leonard v. Storrs 380 

Leonard v. Wannemacher 603, 604 

Leitoy V. Johnson 128 

Lesassier v. The Southwestern 618 

Leslie v. Crommelin 815 

Lester v. Kinne 802 

Lester v. Thurmond 747 

Letts V. Brooks 44 

Letton V. Young 748 

Leverton v. Waters 86 

Levisse v. Shreveport City R. R. Co. 

27, 310 

Levy V. Cadet 182, 141 

Levy V. Green 572 

Levy V. Hampton 187 

Levy V. The Great Republic 700 

Lewis v. Atkinson 94 

Lewis V. Black 740 

Lewis V. Graham 172, 176 

Lewis V. Grieder. Ill 

Lewis V. Hancock 721 

Lewis V. Hudson , 728 

Lewis V. Lyster 613 

Lewis V. Masters 480, 481, 483 

Lewis V. Nanglo. . . „ 427 

Lewis V. New York, etc., R. R. Co. . . 824 

Lewin V. Palmer 213 

Lewis V. Peake 027 

Lewis V. Smith 048 

Lewis V. South Wales R. R. Co 812 

Ijewis V. Walter 754 

Lrwis V. WilliamB 703, 705, 708 



PAGE, 

Lewis V. Wright 187 

Leycrof t v. Dunker 743 

Libby v. Downey 635 

Libby v. Main 409, 412 

Lickbarrow v. Mason 616 

Lidderdale v. Montrose 171 

Liddle v. Hodges 749 

Liddy v. St. Louis R. R. Co 341 

Lightfoot v. Heron 785 

Light Street Bridge Co. v. Bannon. . 816 

Like V. McKinstry 761 

Lillie V. Price 753 

Lime Rock Bank v. Mallett 186, 240 

Linck V . Kelly , 733 

Lincoln v. Bassett. 203 

Lincoln v. Hapgood 36 

Linden v. Graham 761 

Lindsey v. Att.-Gen 263 

Lindsay v. Davenport 439 

Lindsay v. Davis 556, 559 

Lindsey v. Lindsey 524 

Lingen v. Simpson 153 

Lingham v. Eggleston 543, 586 

Linkous v. Cooper 807 

Linn v. Barker 442 

Linn v. McClelland 221 

Linnegar v. Hood 49 

Linney v. Maton 734, 750 

Lintuer v. Millikin 108, 111 

Lipe V. Eisenlerd. .659, 661, 665, 666, 668 

Lipprant v. Lipprant 734 

Lister v. Wright 744, 760 

Litchfield v. Burwell ._ 80 

Litt V. Crowley 321, 615 

Littell V. Fitch 129 

Little V. Barker 178 

Little V. Barlow 737 

Little V. Clarke 142 

Little V. Duncan 68 

Little V. Snedecor 120, 121 125 

Littlefield v. Tinsley 807 

Little Miami Ry. v. Collett 298 

Little Miami Ry. v. Nayler 294, 348 

Little Miami R. R. Co. v. Stevens 329 

Livingston v. Livingston 783 

Livingston v. Ralli 773 

Livingston v. Roosevelt 127, 128 

Livingston v. Smith 493 

Livingston v. VanRensselaer 221 

Lloyd V. Galbraith 216 

Lloyd V. Gordon 84, 97 

Lloyd V. Mason 389 

Ivloyd V. State 409 

Lobdell V. Lobdell 824 

Locke V. Williamson 611 

Lockhart v. Cameron 442 

Lockhart v. Power 86 

Jjockname v. Emerson 232 

Lockridgo v. Upton 286 

liockridge v. Wilson 114 

Lockwood V. Perry 461 

Lodge v. Leverton 801 

Tioeschigk v. Addison 143 

Loflin v. Fowler 407 



TABLE OF CASES. 



Ixxi 



PAGE. 

Logan V. Birkett 786 

Logan V. Cloyd 643, 646 

Loganv. McChard 815 

Logan V. Murray 656 

Logan V. LeMesurier 543 

Logan V. Steele 732, 735 

Logan V. The JEolian 720 

Logansport, etc., R. R. Co. v. Bu- 
chanan 298 

Lokerson v. Stillwell 789 

Londegan v. Hammer 35 

London, etc., Ry. Co. v. Glyn 321 

London, etc., Ry. v. South, etc., Ry. . 332 

Londonderry v. Chester 62 

Long's Appeal 84, 94 

Long V. Barnett 225 

Long V. Bowling 797 

Long V. Colston 774 

Long V. Eahle 759 

Long V. Isreal : 521 

Long V. Knapp 575 

Long V. Mulford 102 

Long V. Preston 633 

Long V. Story 141, 143 

Long V. Warren 639 

Longhurst v. Star Ins. Co 450 

Longley v. Griggs 198, 222 

Longwell v. Bentley 91, 97 

Longworth v. Mitchell 535 

Longworthy v. Knapp 157 

Loomis V. Barker 107 

Loomis V. Cline 46, 76 

Loomis V. Fay 234 

Loomis V. Foster 494 

Loomis V. Marshall 105, 108, 111 

Loomis V. McKenzie 155 

Loomis V. Xewhall 56 

Loomis V. Riley 94 

Looney v. Hughes 245 

Loop V. Chamberlain 295, 348 

Loop V. Loop 74 

Lord V. Ferguson 677 

Lord V. Stephens 812 

Lord Camden v. Home 252 

Lord Walpole v. Lord Oxford 790 

Loring v. Cooke 423 

Loring v. Neptune Ina. Co 708 

Lorymer v. Smith 553 

Lot of Dry Hides 696 

Lottimer v. Lord 393 

Loud V. Penniman 103 

Louisiana State Bk. v. Gainunie.... 170 
Louisville, etc., R. R. Co. v. Campbell 336 
Louisville, etc., R. R. Co. v. Glaze- 
brook 298 

Louisville, etc., Ry. v. Thompson. . . . 298 
Louisville, etc., Turnpike Co. v. Nash- 
ville, etc., Turnpike Co 294 

Love V. Allison 652 

Love V. Baehr 28 

Love V. Carpenter 107, 125 

Love V. Cobb 781 

Love V. Oldhame 632 



PAGE. 

Lovejoy v. Bowers 127 

Lovett V. Salem, etc., R. R. Co 343 

Low V. Conn., etc., R. R. Co 305 

Low V. Crown Point, etc., Co 251 

Low V. Freeman 475 

Low V. Griffiths 65 

Low V. Holmes 94 

Low V. Martin 476, 470 

Low V. Mumford 685 

Low V. Pew 531 

Low V. Tread well 794 

Lowe V. Brigham 502 

Lowe V. Griffiths 58 

Lowery v. Drew 134 

Lowndes v. Lane 778 

Lowndes v. Pinckney. 201 

Lowry v. Buffington 765, 800 

Lowry v. Cobb 119 

Lowry v. Muldrow 807 

Lowther v. Lowther 771, 772 

Lucas V. Beach 152 

Lucas V. Flinn 730 

Lucas V. King 99 

Lucas V. Laws 148, 149 

Lucas V. Nichols 570, 733, 750 

Lucas V. Peters 89 

Lucketts V. Townsend 167, 174 

Luckett V. Williamson 778, 799 

Lucy V. Mouflet 598 

Ludington v. Renick 51 1 

Ludgater v, Channell 392 

Ludlow V. Cooper 106, 120 

Ludlow V. Simond 226, 232 

Luebbering v. Oberkoetter 636 

Luke V. Leland 191 

Luke V. Lyde 698 

Lukehart v. Byerly 745, 749 

Lumberman's Bank v. Pratt 141 

Lumby v. Allday 741 

Lumley v. Wagner 153, 769 

Lumsden v. Leonard 227,237, 245 

Lunay v. Vantyne 56 

Lunt v. Stevens 135 

Lupin V. Marie 514 

Lupton V. Stephenson 376 

JiUscom V. Osgood 45 

Luse V. Deitz 788 

Lusk V. Davidson 645. 650, 654 

Lusk V. Graham 153 

Lusk V. Smith 141, 143 

Lyde v. Mynn 770 

Lyle V . Barker 181 

Lyle V. Clason 732 

Lyle V. Morse 228, 237, 247 

Lyman v. Robinson 635 

Lynch v. Knight 751 

Lynde v. Budd 70 

Lyon V. Alvord 707 

Lyon V. Gormley 288 

Lyon V. Jerome 286 

Lyon V. Leavitt 217 

Lyon V. Sanders 440 

Ly tie V. People 415 



Ixxii 



TABLE OF CASES. 



M. PAGE. 

Mabry v. Harrison 391 

Mackay v. Bloodgood 134 

Maclae v. Sutherland 147 

Maclean v. Dunn 607, 618, 619, 620 

Macomber v. Parker 171, 173, 541 

Macou, etc., R. R. Co. v. Davis 327 

Macon, etc., R. R. Co. v. Mayes 334 

Mactier v. Frith 535 

Madeley v. Booth 814 

Madison v. Commonwealth, 403, 416, 417 

650, 651 

Madox V. McQuean 789 

Maddox v. Miller 65 

Maddox v. Simmons 517 

Mad River, etc., R. R. Co. v. Barber. . 328 

Magee v. Billingsley 553 

Magee v. Cowperthwait 389 

Magee v. Leggett 211, 213 

Magee v. Magee 45 

Magee v. Stark 739 

Magee v. Toland 172 

Maggrath v. Church 704 

Maggs v. Ames 185 

Magruder v. Gage 545, 574 

Magruder v. Marshall 505 

Maguinay v. Saudek 660 

Maguire v. Middlesex Ry. Co 345 

Mahama v. Blunt 801 

Mahoney v. Atlantic, etc., R. R. Co. . 335 

Mahood v. Tealza 636 

Mahuim v. Pearson 236 

Mailhi v. Lassabe 830 

Maillard v. Duke of Argyle 583 

Mailler v. Express Propeller Line . . 714 

Maingay v. Lewis 186, 241 

Mains v. Cosner 666, 667 

Mair v. Himalaya Tea Co 768 

Mairsv. Taylor 173, 180 

Maithey v. Wood 516 

Maitland v. Qoldney 746 

Makarell v. Bachelor 65 

Malachy v. Soper 761, 762 

Malcolm v. O'Callaghan 390 

Maiden v. Fyson 780 

Malins v. Freeman 785 

Mallett V. Uncle Sam, etc., Co 8 

Mallory v. Mallory 820 

Mallory v. Willis 538 

Malone v. Stewart 733 

Malone v. The Western Transp. Co. 700 

Malony v. Bourne 654 

Maltby v. N. W. & R. Co . 127 

Manahan v. Gibbons 152 

Manahan v. Noyes 511 

Manchester, etc., R. R. Co. v. Fisk . . 317 

318 

Mandel v. Buttles 029 

Mandell v. New Orleans 17 

Mandigo v. Mandigo 194 

.Maney v. Porter 515 

Maiiliattan, etc., Co. v. Sears. . . .112, 115 

vlanice v. Duncan 243 

•laiilove v. Burger 379 

Amnly v. Field 657, 602 



PAGE. 

Mann v. ^tna Ins. Co 127, 134 

Mann v. Evertson 563, 574 

Mann v. Great Southern, etc., Ry. . . . 293 

Mann v. Perkins 493 

Manners v. Manners 99 

Manning v. Albee 639 

Manning v. Avery 763 

Manning v. Clement 758 

Manning v. Gashaire 106 

Manniog v. Lunn 583 

Manning v. Wadsworth 765 

Mansfield v. Dorland 24 

Mansfield v. Trigg 633 

Mantague v. Reakert 143 

Manufacturers' Bank v. Cole 189 

Manufacturers' Bank v. Frederick- 
son 644 

Manufacturers' & Mechanics' Bank v. 

Wiuship 129, 146 

Manwell v. Thompson 661 

Maquoketa v. Willey 245 

Marble Co. v. Ripley 768, 788 

March v. Eastern R. R. Co 334 

Mariners' Bank v. Abbott 347 

Marion County v. Moflfett 234 

Market Street Ry. Co. v. Central Ry. 

Co 339, 349 

Markham v. Jaudon 169 

Marks v. Hapgood 635 

Marks v. Stein 106 

Marland v. Stanwood 571 

Marlatt v. Warwick 517 

Marlett v. Jackman 137, 144 

Marmaduke v. Tennant 94 

Marquand v. New York Manuf. Co. 

105, 119, 136, 138 

Marquette, etc., R, R. Co. v. Taft 313 

Marr v. State 416 

Marsden v. Cornell 181 

Marselis v. Seaman 163 

Marsellis v. Thalhimer 56 

Marsh v . Ellsworth 754 

Marsh v. Fairburg, etc., R. R. Co. . . . 304 

Marsh v. Griffin 231 

Marsh v. Home 180 

Marsh v. Hyde 599, 603 

Marsh v. Keating 528 

Marsh v. Loader 58 

Marsh v. Richards 538 

Marsh v. Wickham 538 

Mar.shall v. Baltimore, etc., R. R. Co., 283 

Marshall v. Bryant 178 

Marshall v. CoUett 823 

Marshall v. Crow . , 89 

Marshall v. Cuken 247 

Marshall v. Davis 456, 458, 484 

Marshall v. Johnson 125 

Marshall v. McLean 103 

Marshall v. Sloan 203 

Marston v. Baldwin 461 

Marston v. Brackett 519 

Marston v. Humphrey 777 

Marston v. Knight 639 

Marston v. Phillips 535 



TABLE OF CASES. 



Ixxifi 



PAGE. 

Martin v. Adams 540 

Martin v: Byrom 70 

Martin v. Henrickson 730 

Manin v. Hurlbut 541 

Martin v. Martin 51G 

Martin v. Mayo 70 

Martin v. Nutkin 769 

Martin v. Payne 46, 659 

Martin v. Pensacola, etc., R. li. Co . . 276 

Martin v. Pope 203 

Martin v. Raid 168, 176 

Martin v. Searles 142 

Martin v. Skehan 235 

Martin v. Stillwell 734 

Martin v. Stribling 191 

Martin v. Taylor 245 

Martin v. Thrasher 133 

Martin v. Trustees 24 

Martin v. Van Schaick 360 

Martin v. Wade 634 

Martin v. Watson 474, 484 

Martindale v. Brock 207 

Martindale v. Smith 610, 618 

Martineau v. Kitching 581 

Martyn v. Gray 112 

Mason v. Denison 62 

Mason v. Foster 820 

Mason v. Kennebec, etc., R. R. Co., 

302, 340 

Mason v. Richards 505 

Mason v. Wallace 816 

Mason v. Wright 65 

Massey v. Pike 134 

Massey v. Sladen 581 

Massie v. W'atts 766 

Master v. Kirton 136, 154 

Masterson v. Finnigan 82, 103 

Mastin v. Halley 789 

Mastin v. Mario w. . . 771 

Matheson v. Jones 202 

Mathews v. Aiken 213, 217 

Mathews v. Beach 753 

Mathews v. Crass 733 

Mathews v. Felch 114 

Mathews v. Ritenouz 197 

Mathewson v. Johnson 96 

Mathewson v. Strafford Bank 243 

Matlock V. Straughn 501 

Mattair v. Payne 101, 523 

Matter of Baker 777 

Matter of Boston & Albany R. R. Co. 287 

Matter of the Bowery Bank 376 

Matter of the Bank of Niagara 390 

Matter of Cohen 354, 357 

Matter of Colvin 365, 394 

Matter of Ellison 66 

Matter of Gardner 17 

Matter of Hebra Hased Va Emet 262 

Matter of Heli 367 

Matter of Howe 87 

Matter of Kane 52 

Matter of Kenton 367 

Matter of Kerr 273 

Vol. v.— j 



PAGE. 

Matter of the Long Branch, etc., R. E. 

Co 378 

Matter of Merritt 381 

Matter of Montgomery 390 

Matter of Norton v. Cowling 249 

Matter of New York Central R. R. Co. 333 
Matter of New York, etc., R. R. Co. 

V. Gunnison 287, 390 

Matter of Prentiss 94 

Matter of Rosey 158 

Matter of Ryder 50, 53 

Matter of Stafford 386 

Matter of Vanhorne 367, 393 

Matter of W^aldron 42 

Matthews v. Cowan 74 

Matthews v. Hartson 562 

Matthews v. Hobby 581 

Matthews v. Lee 5 

Matthews v. Matthews 96, 98 

Matthews v. Offley 723 

Matthews v. Wallwin 433 

Mattliewsou v. Perry 45 

Matthiessen, etc., R. Co. v. McMahon, 529 

Mattingly v. Speak 445 

Mattocks V. Young 582 

Mauge V. Heringhi 176 

Maughan v. Walker 165 

Maughlin v. Perry 809 

Mawson v . Fletcher 782 

Maxwell v. Allison 745 

Maxwell v. Brown 573, 598 

Maxwell v. Connor 247 

Maxwell v. Day 145 

Maxwell v. Maxwell 99 

Maxwell V. Pittinger 794, 805 

May V. Calder 48 

May V. Snvder 445 

Maybee v.'Fish 750 

Mayer v. Clark 148 

Mayer v. Foulkrod 648 

Mayer v. McLure 67 

Mayer v. Schleichter 734 

Mayfield v. Barnard 567 

Mayfield v. Moore 35 

Mayfield v. Wadsley 598 

Mayhew v. Boyd 231 

May hew v. Crickett 220, 245 

Mayhew v. Herick 149, 681 

Mayo V. James 248, 256, 257 

Mayo V. Purcell 812, 828 

Mayo V. Sandle 755 

Mayor of Baltimore v. Chase 386 

Mavor of Ludlow v. Charlton 785 

Mayor, etc., v. Cos 248, 253 

Mayor, etc., of N. Y. v. Hyatt 161 

Mayor, etc., of N. Y. v. Ordrenan 157 

Mayor, etc., of N. Y. v. Sibberns 6 

Mayor of Lichfield v. Simpson 347 

Mayor of Macon v. Trustees, etc 649 

Mayrant v. Richardson 741 

Mavs V. Rose 356, 358 

Ma'zetti v New York, etc., R. R. Co. 302 
McAdams v, Hawes 135 



Ixxiv 



TABLE OF CASES 



PAGE. 

McArthur v. Laue 485, 490 

McArtliur v. Martiu 213 

McAuley v. Birkhead 665, 670 

McBrayer v. Hill 734 

McBride v. Protection Ins. Co 114 

McBroon v. The Governor 239 

McCabe v. Bellows 427 

McCaflFerty v. Spuyten Duyvil, etc., 

R. R. Co 309 

McCahon v. Commissioners 7 

McCall V. Carpenter 99 

McCall V. Parker 61 

McCalla v. Clark 179 

McCandlish v. Newman 533 

McCann v. Nashville R. R. Co 768 

McCants v. Wells 694 

McCarthy v. Goold 171 

McCarthy v. Peake 394 

McCartney v. Wilson 468 

McCartv v. Blevins 531 

McCarty v. Gordon 637 

McCarty v. Kyle 794 

McCarty v. State 403 

McCauley v. Fulton 121 

McCay v. Barber 564 

McClaughry v. Cratzenberg 488 

McClartey v. Gokey 570 

McClelland v. Remsen 137, 130, 135 

McClintic v. Manus 96 

McClintock v. Crick 760 

McClinton v. Pittsburgh, etc., R. R. 

Co ... 296 

McCloskey v. Cyphert 58, 60 

McClung v. Bergeld 489 

McClung V. Kelley 541, 563, 586 

McClure v. McLane 388 

McClure v. Phila.. etc., R. R. Co. . . 312 

McComas v. Easeley 765, 828 

McComb V. Kittridge 244 

McCombie v. Davies 174 

McConnell v. Crarey 84 

McConnell v. Hughes 533 

McConnell v. Kibbe 90 

McConnell v. Murphy 572 

McConnell v. Scott 310 

McCoon v. Smith 74 

McCord V. Boyd 26 

McCorkle v. Brown 823 

McCormick's Appeal 122 

McCormick v. Bay City 6 

McCormick v. Fitch 9 

McCormick v. Hadden 575 

McCormick v. Irwin 214, 220 

McCoaker v. Brady 392 

NcCotler v. Lawrence 817 

McCourtney v. Sloan 224 

McCowin V. Cubbison 143 

McCoy V . Cadle 480 

McCoy V. Hoffman 58 

McCoy V . State 653 

McCracken v . Swartz 651 

Mc('rae v. Young 540 

McCraw v. Davis' 513 

McCraw v. Welch 492 



PAGE 

McCray v. Clark 645 

McCready v. Woodhull 683, 684 

McCrillis v. Howe 67 

McCue V. Ferguson 734, 750 

McCue V. Johnston 836 

McCulloch V. Scott , 632 

McCurdy v. Brown 474, 476, 484 

McDaneld v. Kimbrell 806 

McDaniel v. Edwards 661, 663 

McDauiel v. Lee 218 

McDaniel v. Watson 832 

McDermid v. McGregor 810 

McDermot v. Lawrence 120, 122 

McDiarmid v. Fitch 19 

McDonald v. Egglestoq, 133 

McDonald v. McDonald 79 

McDonald v. McGruder 220 

McDonald v. Scaif e 499 

McDonald v. Stanley 443 

McDougald v. Dougherty 218 

McDougall v. Jersey, etc.. Hotel Co. 275 

McElderry v. Flanuagan 485 

McElderay v. Shipley 439 

McElrath v. Pittsburg, etc., R. R. Co. 305 

McElwee v. State 405 

McEwan v. Smith 621 

McEwen v. Morey 533 

McFadden v. Robinson 639 

McFarland v. Farmer 586 

McFarlan v. Irwin 651 

McFarlan v. People 399 

McFarsons' Appeal 798 

McFerrin v. Perry 489 

McGarvey v. Hall 766 

McGee v. Metcalf 243 

McGeehe v. Scott 228 

McGiffin v. Baird 560 

McGill v. U. S. Bank 211 

McGoon v. Irvin 51 

McGowan v. Morrow 103 

McGowin v. Remington 772 

McGrath v. Snure 381 

McGraw v. Fletcher 560, 561 

McGraw v. Pulling 124 

McGregor v. Comstock 24 

McGregor v. Kilgore 699 

McGuire v. Stevens 800 

McHancy v. Crabtree 247 

McHenry v. Cooper 430 

Mcllvaine v. Holland 498, 502 

Mclniflfe v. Wheelock 584 

Mclutire v. Oliver 133 

Mclntire v. Young 747 

Mclntyre v. Borst 226 

Mclntyre v. Kline 544 

McKay v. Harrington 511 

McKay v. McDonald 226, 231 

McKecknie v. Ward 238 

McKee v. Amonett 215, 318 

McKee v. Beall 816 

McKe.j v. Brown 396 

McKeo v. lugalls. . 729, 733, 737, 748, 760 

McKeuna v. George 331, 223 

McKenna v. Metropolitan R. R. Co. 343 



TABLE OF CASES. 



Ixxv 



PAGE. 

McKenzie v. Dickinson 153 

McKern v. Calvert 670 

McKewan v. Sanderson 192, 203 

McKibbin v. Brown 770, 789 

McKialey v. Rob 758 

McKinny v. Brights 131 

McKinney v. Mehaffey 649 

McKinny v. Watts 807 

McKnew v. Duvall 651 

McKniglit V. Bradley 208, 210 

McKnight v. Dunlop 599 

McKuight V. Hogg 78 

McKnight v. Walsh 52 

McLane v. Elmer 774 

McLaughlin v. Bascom 736, 749 

McLaughlin v. Russell 750 

McLean v. Cook 14 

McLean v. Nicoll 589 

McLean v. State 7 

McLellan v. Young 22 

McLeod V. Jones 571 

McLeod V. Gates 479 

McLoon V. Cummings 686, 705 

McMahon v. Fawcett 219 

McMahon v. New York, etc., R. R. 

Co 305 

McMahon v. Second Ave. R. R. Co . . 343 

McMechan v. Griffing 87 

McMillen v. Lee 55 

McMillan v. Maysville, etc., R. R. Co. 276 

McMillan v. Mich., etc., R. R. Co 334 

McMillan v. Parkell 186 

McMorris v. Crawford 816 

McMullin v. Bank of Penn Town- 
ship 222 

McMullan v. Birch 755 

McMullen v. Hinkle 227 

McMurray v. Spicer 810 

McMurray v. St. Louis, etc., Co 440 

McXail V. Zeigler 476 

McNair v. Lot 432 

McNamara v. Edmister 542, 543 

McNamara v. Shannon 728, 737 

McNaught V. Dodson 609 

McNaught V. McClaughry 188 

McNees v. Swaney 421 

McNeill V. Arnold 481, 483 

McNeil V. Chicago City Ry. Co 339 

McNeill V. Jones 801 

McNeil V. Magee 773 

McNeil V. Tenth Nat. Bank 175, 177 

McNutt V. Livingston 32 

McPherson v. Daniels. .744, 746, 753, 759 

McPherson v. Neuffer 579 

McPherson v. Rathbone 114, 141 

McQueen v. Choteau 831 

McQueen v. Fulcham 734 

McTucker v. Taggart 439 

McVean v. Scott 228 

McVickar v. Ludlow 650 

Mc\M)orter v. McMahon 816 

McWilliams v. Mason 191 

Meacham v. Fitchburg R R. Co 298 

Mead v. Case 590 



PAGE. 

Mead v. Kilday 471 

Mead v. Merchants' Bank 241 

Mead v. Randolph 827 

Mead v. Westchester Fire Ins. Co . . 437 

Meagher v. O'Shaugnessy 384 

Meaher v. Cox 139 

Mealing v. City Council 252 

Means v. Williamson 568 

Meany v. Head 454, 465, 494 

Meara v. Holbrook 315, 351, 380, 385 

387 

Mears v. Bickf ord 45 

Mears v. Waples 472, 630, 695 

Meason v. Kaine 769 

Mechanics' Bank v. Foster 126, 128 

Mechanics' Bank v. Hazard 413, 415 

Mechanics' Bank v. Seton 766 

Mecutcheu v. Kennady 130 

Medbury v. Watson 147 

Medlin v. Steele 84 

Meech v. Allen 149 

Meech v . Robinson 703 

Meek v. Kettlewell 771 

Meek v. Walthall 780 

Meesel v. Lynn, etc., R. R. Co. . . . . 345 

Megargell v. Hazleton Coal Co 160 

Melcher v. Lamprey 455, 479, 488 

Meldrum v. Snow 474 

Melledge v. Boston Iron Co 533 

Mellen v. Western R. R. Co 292 

Mellendy v. Austin 191, 198 

Mellish V. Robertson 440 

Melvin v. Hoitt 277 

Melvin v. Wiuslow .... 506 

Memphis Freight Co. v. Memphis . . . 289 
Memphis, etc., R. R, Co. v. Neigh- 
bors 508 

Memphis, etc., R. R. Co. v. Payne. . . 296 
Memphis, etc., R. R. Co. v. Scruggs. . 773 

Menagh v. Whitwell 119 

Mennie v. Blake 454 

Menomonee, etc., Co. v. Langworthy, 450 

Mercantile Bank v. Cos 146 

Mercer v. Jackson 46 

Mercer v. Stark 786 

Mercer v. Walmsley 658, 668 

Meredith v. Crawford 63 

Meredith v. Meigh 600 

Merchant v. Belding 127 

Merchants' Nat. Bank v. Bangs. .544, 545 

547 

Merchants' Bank v. Maud 198, 215 

Merchants' Bank v. Rudolf 227 

Merchants' Bank v. Thomson 810. 812 

Merchants' Mut. Ins. Co. v. Baring. . 725 
Merchants' Fire Ins. Co. v. Grant. ... 70 

Mercier v. Mercier 777 

Meriden Britannia Co. v. Zingsen. . . . 570 

Merk v. Gelzhaueser 759 

Merklein v. Trapnell 102 

Merriam v. Cunningham . .65, 68, 80, 529 

Merriam v. Field 556, 562 

Merriam v. Rock wood 191 

Merrick v. Greely 228 



Ixxvi 



TABLE OF CASES. 



PAGE. 

Merrill v. Bartlett 684 

Merrill v. Downs 636 

Merrill v. Peaslee 747 

Merrill v. Walker 643 

Merrimack Bank v . Brown 246 

Merrimack Mauui. Co. v. Quintard. . 626 

Merritt v . Brown 808 

Merritt v. Day 132 

Merritt v. Deautli 749 

Merritt v. Hosmer 429 

Merritt v. Johnson 674 

Merritt v. Pollys 142 

Merritt v. Walsli 122, 681 

Meshke v. Van Doren 499 

Messer v. Bailey 500 

Messer v. Swan 223 

Messenger v. Penn. R. R. Co . . .278, 316 

Metcalf V. Putnam 446 

Metcalfe v. Pulvertoft 371 

Metier v. Easton, etc., R. R. Co . . . 298 
Metropolitan R. R. Co. v. Quincy R. 

R. Co 339 

Metz V. Albrecht 549, 581, 623 

Metz V. Buflfalo, etc., R. R. Co 314 

Mens V. Anthony 205 

Meyer v. Bohlfing 747, 753 

Meyer v. Johnston 852 

Meyerstein v. Barber 168, 169 

Michaud v. Judge , 253 

Michell V. Cue 644 

Michel V. Ware 561 

Michigan, etc., R. R. Co. v. Bacon . 277 
Michigan, etc., R. R. Co. v. Day. . . 320 
Michigan, etc., R. R. Co. v. Dun- 
ham 509 

Michigan, etc.,R. R. Co. v. Shurtz, 319 

Micklethwait v. Micklethwait 371 

Micklethwaite v. Rhodes 357 

Middlebury Coll. v. Chandler. ..... 65 

Middlesex R. R. Co. v. Boston, etc., 

R. R. Co 338 

Middlesex Bank v. Minot 176 

Middlesex Co. v. Osgood 589 

Middlesex v . Thomas 583 

Middlesex R. R. Co. v. Wakefield. 338 

Middleton v. Dodswell 364, 365 

Middleton v. New Jersey, etc., R. 

R. Co 382 

Middletown Bank v. Russ 194 

Mifflin V. Smith 124, 146 

Milam v. Burnsides 757 

Milburn v. Cedar Rapids 349 

Mildmay v. Hungerford 790 

Miles V. Bacon 221 

Miles V. Boyden 48, 76 

Miles V. Gorton 613, 620 

Miles V. Harrington 753, 760 

Miles V. Kaigler 48 

Miles V. Thomas 154 

Milford V. Worcester 62 

Milkman v. Ordway 764, 831 

Millard v. TTewlett 73 

MUler V. Auburn, etc., R. R. Co. .284, 290 
Miller V. Ball 800 



PAGE. 

Miller v. Bartlet Ill 

Miller V Beal 23 

Miller v. Bear 816 

Miller v. Board of Supervisors 11 

Miller v. Brigham 186 

Miller v. Butler 750 

Miller v. Chittenden 98 

Miller v. Cotten 525 

Miller v. David 731, 744 

Miller v. Dennett 90 

Miller v. Eatman 89 

IMiller v. English 268 

Miller v. Finn 425 

Miller v. Fraley 517 

Miller v. Grove 632 

Miller v. Hines 129 

Miller v. Johnson 758 

Miller v. Jones 143, 862, 581 

Miller v. Lvnch 635 

Miller v. M'ansfield 321 

Miller v. Miller 85, 210, 732, 786 

Miller v. Parish 728, 734, 741 

Miller v. Pittsburgh, etc., R. R. Co. . 276 

Miller v. Porter 245 

Miller v. Stewart 281 

Miller v. Stoy 158 

Miller v. Thomas 427 

Miller v. Thompson 076 

Miller v. Town of Palermo 265 

Miller v. Twittey 042 

Miller v. Washburn 043 

Miller v. Whittier 818 

Miller v. Woodward 205 

Millerd v. Thorn 145 

Milligan v. Cooke 779 

Milligan v. Poole 100 

Milligan v. Wedge 309 

Milliken v. Bailey 425 

Milliken v. Brown 416 

Milliken v. Steiner 8 

Milliken v Warren 021 

Milliman v. New York, etc., R. R. Co. 323 

Mills V. Ball 616 

Mills V. Conner 644 

Mills V. Dennis 80 

Mills V. Graham 73 

Mills V. Hunt 597 

Mills V. Lewis 487 

Mills V. Lockwood 444 

Millri V. Malott 488 

Mills V. Orange, etc., R. R. Co 386 

Mills V. Pittman 357 

Mills V. Redick 467 

Mills V. The Nathaniel Holmes 710 

Mills V. Van Voorhies 766 

Millspaugh V. Mitchell 480 

Miln V. Spinola 679 

I\liln(} V. Bartlett 138 

Milner v. Patton 684 

Milton V. Mosher 679 

Milwaukic, etc., Ry. Co. v. Arms. . . . 328 
Milwaukii; It. R. Co. v. Soutter. .356, 393 
Milwaukic, etc.. School v. Suprs' of 
Milwaukie Co 41 



TABLE OF CASES. 



Ixxvii 



PAGE. 

Mims V. Lockett 801 

Mims V. McDowell 213 

Minchin v. Nance 813 

Miner v. Beekman 421, 435 

Miner v. Bradley 624 

Minnesota, etc., R. R. Co. v. McNa- 

mara 298 

Minor v. State 403, 416 

Mint on v. Wood worth 166 

Minturn y. Barlis 789 

Minzeskeimer v. Heine 620 

Misliler v. Commonwealth 406 

Mississippi, etc., R. R. Co. v. Caruth. 292 
Mississippi, etc., R. R. Co. v. Crom- 
well 777 

Mississippi, etc., R. R. Co. v. Cross. . 282 
Mississippi, etc., R. R. Co. v. Devaney . 295 
Mississippi, etc.,R. R. Co. v. Mason. . 292 
Missouri River, etc., Co. v. Commis- 
sioners 519 

Missouri, etc., Ry. Co. v. Ward 295 

Mitchell V. Georgia Banking Co 568 

Mitchell V. Gile 527, 539 

Mitchell V. Hinman 489 

Mitchell T. Ingram 504 

Mitchell V. Lapage 536 

Mitchell V. Miller 202 

Mitchell v. Reed 107, 125 

Mitchell V. Shell 817 

Mitchell V. Starbuck 92 

Mitchell V. Tarbutt 685 

Mitchell v. Taylor 675 

Mitcheson v. Oliver 716 

Mix V. Balduc 810 

Mix V. Page 412 

Mix V. White 826 

Mixer v. Cook 477, 585 

Mixer v. Howarth 593 

Moakes v. Nicholson 547 

Moberly v. Preston 734 

Mobile, etc., R. R. Co. v. Hudson 331 

Moderwell v. Mullison 122 

Modisett v. Johnson 776 

Moffatt v. Farquharson 685 

Moffatt v. Van Doren 171 

Mohawk, etc., R. R. Co. v. Artcher. . 36 

Mohn V. Stoner 455, 458 

Mohney v. Evans 65 

Mohr v. Boston, etc., R. R, Co 614 

Molloy v . Eagan 809 

Moloney v. Davis 150 

Molton V. Camroux 529 

Monaghan v. School District, etc. ... 54 

Moncrief v. Ely 49 

Mendel v. Steel 555, 628 

Monell V. Smith 209 

Moneypenny V. Sixth Av. R. R. Co. 340 

Monro v. Taylor 812, 813 

Monroe v. Fort Wayne, etc., R. R. Co. 275 

Monroe v. Reynolds 631 

Monroe v. Shelton 445 

Montgomery v. Deeley 732 

Montgomery v. Edwards 589 

Montgomery v. Hamilton 343 



PAGE. 

Montgomery v. Ricker 514 

Montgomery v. State 403 

Montgomery v. Wharton 681 

Montpelier, etc. , R. R. Co. v. Lang- 
don . 274 

Monty V. Arnsou 465 

Moody V. Baker 731, 750 

Moody V. Brown 544, 546, 674 

Mooklar v. Lewis 626, 628 

Mooney v. People 402 

Moor V. Ames 757 

Moor V. Forster 740 

Moore v. Bare 118, 119, 124 

Moore v. Beasom 427 

Moore V. Boudinot 6 

Moore v. Bray 199, 221 

Moore v. Butler 750 

Moore v. Cable 434 

Moore v. Campbell 572 

Moore v. Clay 760 

Moore v. Cord 436 

iloore v. Curry 522 

Moore v. Eagles 83 

Moore v. Eastman 73 

Moore v. Fitz Randolph 788 

Moore v. Garrettson 655 

Moore V. Graves 2 

^loore V. Higbee 828 

Moore v. Holland 539 

Moore y. Horner 732 

Moore v. Isle 223 

Moore v. Isle 207, 213 

Moore v. Kerr 84 

i\Ioore v. Marable 770 

Moore v. McKinley 561 

Moore v. Meagher 733, 751, 753 

Moore v. Moberly 194 

Moore v. Moore 193, 455, 463, 472, 484 

Moore v. Murrah 819 

Moore v. Newberry 620 

Moore v. Paine 237 

Moore v. Pierce 553 

Moore v. Shenk 499 

Moore v. Smith 110 

Moore v. State , 403, 404 

Moore v. Stevens 497 

Moore v. Superior, etc., R. R. Co 286 

Moore v. Wingate 447 

Moorehead V. Little Miami Ry 295 

Moorman v. Quick 476, 484 

Moran v. McClearns 29, 30 

Moran v. McLarty 453 

Moran v. Palmer 120 

Moran v. Prather 130 

M. ravia v. Levy 151 

Moreau v. Saffarans 225 

Morehead v Qilmore 129 

Morehead v. Murray 605 

Moren v. Blue , 21 

Morenhout v. Higuera 98 

Morey v. Medbury 588 

Morford v. Davis 185 

Morgan v. Bain 633 

Morgan v. Biddle 675, 678 



Ixxviii 



TABLE OF CASES. 



PAGE. 

Morgan v. Craig 455 

Morgan's Lessees v. Davis 419 

Morgan v . Gatli 571 

Morgan v . Herrick 809 

Morgan v. Livingston. 732, 736, 747, 750 

Morgan v . McKee 610 

Morgan v. Morgan 819 

Morgan v. New Orleans, etc., R. R. 

Co 511 

Morgan v . Scott 808 

Morgan v. Shinn 679, G80 

Morgan v. Smith 336, 577 

Morgan v . Staley 91 

Morgan v. Stearns 108 

Morgan v . Tborne 76 

Morgan v . Vance 3 

Morganthau v . White 795 

Morin v. Martin 149 

Morin v . Martz 803 

Morley v. Boothby 188 

Morley v. Dickinson 246 

Morrill v . Aden 80 

Morrill v . Cooper 799 

Morrill v . Wallace 556 

Morris v . Barker 760 

Morris v. Barrett 130 

Morris v. Cannon 469 

Morris v . Carey 35 

Morris v. Coleman 768 

Morris v . Davies 48 

Morris v. Dewitt 455, 464 

Morris v. Evans 321 

Morris v . Harris 87 

Morris v . Hoyt 818 

Morris v . Islip 434 

Morris v. Langdale 743 

Morris v. Lenox 351 

Morris v. Lewis 817 

Morris v. Eexford 547 

Morris v. Shryock 616 

Morris v. Underwood 366 

Morris Canal, etc., Co. v. Fisher 170 

Morris Canal Co. v. Van Vorst 204 

Morris, etc., R. R. Co. v. Central R. R. 

Co 294 

Morris, etc., R. R. Co. v. Newark. . . . 291 

Morriso V. Philliber 517 

Morrison v. Blodgett 148 

Morrison V. Brand 426 

Morrison v. Cassell 212 

Morison v. Gray 612 

Morrison v. Marvin 218 

Morrison v . McLeod 785 

Morrison v. Mendenhali 127, 135 

Morrison v . Peay 794 

Morrison v . Taylor 223 

Morrow v. Lawrence 819 

Morrow v . State 399 

Morse v. Brackelt 629, 632 

Morse v. Braiuard 236 

Morse v . Royal 786 

Morse v. Sherman 542 

MorsH V. Elmendorf 792 

MorBB V. Gleason 119 



PAGE. 

Morss V. Stone 539 

Mortara v. Hall 64 

Mortimer v. McCallan 531 

Mortland v. Himes 194 

Mortlock V. Buller 792, 793, 815 

Morton v. Comp . General 17 

Morton v. Dean 591 

Morton v . Groghan 649 

Morton v, Morton 643 

Morton v. Tibbett 598, 599 

Mosby V. Wall 442 

Moseley v. Anderson 479 

Moseley v. Moss 748 

Mosely v . Virgin 767 

Mosher V Hotchkiss 197 

Moss V. Craft 228 

Moss V. Hanson 778 

Moss V. Sweet 534, 551 

Mott V. Ruckanan 680 

Mottram v. Heyer 616 

Moulding v. Prussing 540 

Moulton V. Bennett 24 

Moulton V. Bird 500 

Moulton V. Kurd 453 

Moulton V. Smith 503 

Mounsell v. Midland Ry. Co 381 

Mount V. Harris ■ 550 

Mount V. Lyon 549, 633 

Mount V. Morton 83 

Mount V. Tappey 338 

Mt. Carbon R. R. Co. v. Andrews 488 

jMousler v. Harding 760 

Mowatt v. Wright 536 

]\lowbray v. Cady 553 

Mowbry v. Mowbry 55 

Mower v. Watson 739 

Mowry v . Adams 304 

Mowrey v. Walsh 549, 637 

Mowry v. Wood 176 

Moyer v. Moyer 760 

Muchler v. Mulhollen 740 

Muchlow V. Mangles 674 

Mudd V. Bast 137 

Mueller v. Engeln 638 

Muir V . Crawford 280 

Mullain v. Thomas 561 

Muller v.Pondir 613 

Mullett V. Mason 637, 630 

Mullins V. North & South R. R. Co. 376 

Mulveliall v. Millward 46, 658 

Mumford v. Nicoll 109, 133 

Mundorffv. Singer 303 

Muiidy V. Earl Howe 53 

M uun V . Burgess 431, 431 

Munn V. Illinois 316 

Munroe v . Cooper 138 

Munroe v. Walbridge 93 

Murch V. Concord K. R. Co 334 

Murdock v. Prophet Park, etc., R. .. . 

R. Co 350 

Murlcy V. Ennis 533 

M ur])hy v . Abrams 131 

Murjihy V. Dunning 511 

Murphy v. McVicker 779 



TABLE OF CASES. 



IXXLX 



PAGE. 

Murphy v . Orr 513 

Murphy v. Paynter 524 

Murphy v. Tyndall 454, 461 

Murphy v. Union Ry. Co 342 

Murray v. ^tna lua. Co 693, 696 

Murray v . Baker 653 

Murray v. Barlee 784 

Murray v . Bogart 151 

Murray v. Dake 438 

Murray v . Graham 186 

Murray v. Harway 507 

Murray v. Lazarus 690 

Murray V. Mumford 147 

Murray v. Murray 119, 138, 144, 149 734 

Murray v. Sells 438 

Murray v . Smith 556 

Murray v . South Carolina R . R. Co . 306 

307 

Murrell v. Goodyear 811 

Musgrave v . Bovey 729 

Musgrave v. Glasgow 229 

Musgrave V. Hall 479, 488 

Musgrove v. Nash 391 

Mussey v. Sanborn 92 

Mut. Saf . Ins. Co. v. Cargo of the Ship 

George 708 

Myatta v. Bell 143 

Myers v. Credle 455, 490 

Myers v. Crockett 23 

Myers v. Dresden 750 

Myers v. First Nat. Bk 240 

Myers v. Forbes 790 

Myers v. Nat. Bk 240 

Myers v . Smith 535 

Myers v. The Lizzie Hopkins 722 

Myers v. Willis 680 

Myrick v. Selden 373 



N. 



Nabours v . Cocke 439 

Naff V. Homer 231 

Nagle V . Newton 831 

Naglee's Estate 97 

Nairn v. Browse 786 

Nail V. Mclntyre 131 

Napier v. Darlington 815 

Napier v. McLeod 142 

Narthern v. Williams 700 

Nashville Bk. v. Campbell.... 237, 239 
Nashville, etc., R. R. Co. v. Carroll 335 
Nashville, etc., Ry. v. Cowardin. . . . 301 

Nashville Bk. v. Grundy 199, 200 

Nashville, etc., R. R. Co. v. Mes- 

sino 327 

Nashua Lock Co. v. Worcester, etc., 

R. R. Co 335 

Nason v. Willard 92 

Nat. Bk. of Green Bay v. Dearborn. 472 

National Bk. v. Landon 106, 128 

Nalional Bank of Norwalk v. Lanier 442 

National Bk. v. Lasher 118 

Natumal Bk. v. Smith 230 



PAGE- 

National Iron Armor Co. v. Bruner. 826 
National, etc., Ins. Co. v. Crane.... 442 
Naugatuck R. R. Co. v. Waterbury 

Button Co 334 

Naylor v. Dennie 616 

Neal V. Pittsburgh, etc., R. R.Co. . . 293 

Neale v. Neales 786 

Neave v . Douglas 389 

Neel v. Harding 243 

Neff's Appeal 214, 234 

Neff V. Thompson 461, 468 

Neil V. Chives 603 

Neilson v. Fry 220 

Neilson v. The Laura 717, 722 

Neisv. Gillen 495 

Neldou V. Smith 553, 569 

Nelson v. Belmont 706, 707 

Nelson v. Brochenius 729, 750 

Nelson v. Boynton 188 

Nelson v. H ayner 144 

Nelson v. Long Island R. R. Go 324 

Nelson v. Nat. Steamship Co 695 

Nelson V. Vermont, etc.,R. R. Co. 

273, 333 

Nelson v. Wellington 175, 181 

Nelson v. Wilson 25 

Nelson v . Woodruff 695 

Nelthorpe v. Holgate 815, 816, 831 

Nepouset Bk. v. Leland 195 

Neptune Ins. Co. v. Dorsey 218 

Nerot V. Burnand 140 

Nesbit V. Burry 602 

Ness V. Angas 118 

Nettletou v. Dinehart 746 

Nevins v. Dunlap 443 

Newall V. Wright 420 

New Albany, etc., R. R. Co. v. Fields 278 
New Albany R. R. Co. v. McCormick 275 
New Albany Ry. Co. v. 0'Daily..337, 349 
New Barbadoes Toll Bridge v. Vree- 

land 816 

Newbery v. Wall 566, 605 

Newby v. Rogers 569 

Newcomb v. Blakely 233 

Newcomb v. Cabell 527, 578 

Newcomb v. Cramer 571 

Newell v. Fisher 379 

Newell V. Humphrey 144 

Newell V. Smith 351, 385 

New England Ins. Co. v. Brig Sarah 

Ann 676 

New England, etc., Co. v. Merriam. 433 

Newhall V. Galena, etc., R. R.Co 274 

Newhall v. Vargas 611, 612, 618 

Newham V.May 831 

New Hampshire Bk. v. Colcord 233 

New Hampshire Bk. v. Downing. . . . 243 

New Hampshire Bk. v. Gill 243 

New Hampshire, etc., R. R. Co. v. 

Johnson 275 

New Hampshire Fire Ins. Co. v. 

Noyes 68, 528 

New Haven Co. v. Hayden 190 

New Haven Bank v. Mitchell 189 



L\xx 



TABLE OF CASES. 



PAGE. 

New Haven v. Rogers 395 

New Jersey K. R. Co. v. Perm. R. R. 

Co 319 

Ne wmau v. Beau 108 

NewuiJiu V. Hazelrigg 233 

Newman v. Jenne 480 

Newman v. Morris 590 

Newman v. Sylvester 31 

New Orleans, etc., R.R. Co. v. Burke, 311 

324 

New Orleans Canal Co. v. Hagan 189 

New Orleans, etc., R. R. Co. v. Har- 
rison 311 

New Orleans, etc., R. R . Co. v. Hurst 323 
New Orleans, etc., R. R. Co. v. Mit- 
chell 330 

Newport V . Cook 52 

New Providence v. McEachron 39 

Newry, etc, Ry. v. Combe 78 

Newsam v. Finch 209 

Newsom v. Cocke 12, 258 

Newsom v. Thornton 181, 613 

Newton v. Agricultural Branch, etc., 

R. R. Co 301 

Newton V. Bronson 607 

Newton v. Stubbs 741 

New York, etc., R. R. Co. v. Boston, 

etc., R. R. Co 294 

New York, etc., R. R. Co. v. Forty- 
second Street R. R. Co 338, 349 

New York, etc., R. R. Co. v. Kip 301 

New York, etc., R. R. Co. v. New 

York 339 

New York, etc., R. R. Co. v. Young. 299 
N. Y. Steamboat Co. v. Caldewood. . 711 

New York Ins. Co. v. Bennett 130 

New York Ice Co. v. Northwestern, 

etc., Ins. Co 437, 453 

Nichols V. Dusenbury 502 

Nichols V. Johnson 606 

Nicholl v. Jones 783, 819 

Nichols V. Lefeuvre 612 

Nichols v. McDowell 235, 244 

Nichols V. Nichols 91 

Nichols v. Packard 748 

Nichols V. Parsons 186, 243 

Nichols V. Perry & Co 359 

Nichol V. Steger 78 

Nichols v. Woodruff 412 

Nicholson v. Bradford Union 572 

Nickels v. Hancock 773 

Nickelsou v. Striker 46, 663 

Nicolls v. Bastard 181 

Nicol V. Carr 780 

Nicol v. Crittenden 638 

Nicol 1 V . Mason 453 

Nicoll v. New York, etc., Ry. Co 288 

Niehoff v. Dudley 108, 115 

Niglitingale v. Withington 66 

Niniick v. Holmes 706 

Nims v. Bigelow 151 

Nisbet V. Smith 195 

Nixon V. Phelps 25 

Noakes v. Morey 601, 608 



PAGE 

Noble V. Epperly 476, 502 

Nockels v. Crosby 139 

Noesen v. Town of Ft. Washington . 276 

277 

Noice V. Brown 658 

Nokes V. Lord Kilmorey 808 

Noles V. Marable 182 

Noouan v . McNab 138 

Noouan v. Orton 830 

Nopsonv. Horton 434 

Nordemeyer v. Loescher 694 

Norman v. Phillips 621 

Norman v. Rogers , 180 

Norris v. Blair 606 

Norris v. Cooper 273 

Norris v. Elliott 748 

Norriss v. Vermont, etc., R. R. Co.. 302 

North V. Forrest 595 

Northam, etc., Co. v. London, etc., 

Ry 308 

Northy v. Field 614 

Northrup v. Trask 467, 468, 477 

North Carolina R. R. Co. v. Leach. . . 277 
North Carolina R. R. Co. v. Swepson 17 
North Lebanon R. R. Co. v. McGrann 304 
North Mo. R. R. Co. v. Wheatley. ... 7 

North Penn. Coal Co.'s Appeal 120 

North Penn. R. R. Co. v. Heileman. .. 329 
Northern, etc., R. R. Co. v. Baltimore 349 
Northern R. R. Co. v. Concord, etc. , 

R. R. Co 333 

Northern Cent. R. R. Co. v. State ... 337 
Northern Ind. R. R. v. Mich., etc., 

R. R. Co 283 

Northwestern Ins. Co. v. Forward 686 

692 
Northwestern Ry. Co. V. McMichael 59 

78 

Northwestern R. R. v. Whinray 233 

Norton v. Coons 320 

Norton v. Dowling 255 

Norton v. Eastern R. R. Co 330 

Norton v. Ittner 346 

Norton v. Roberts S41 

Norton v. Sholefield 754 

Norton v. Soule 317 

Norton v. Young 632 

Norway v. Ro we 139, 155, 356 

Norway Plains Co. v. Boston, etc., R. 

R. Co 319 

Norwood V. Norwood 83 

Nott v. Ricard 216 

Nottlebohm v. Maas 183 

Nourse v. Pope 193 

Noyes v. Jenkins 539 

Noyes v. New Haven R. R. Co 135 

Noyes v. Rich 353. 381 

Noy.H v. Rutland, etc., R. R. Co. .380, 308 

Noyes v. Staples 683 

Nusbaum v. Stein 358 

Nutbrown v. Thornton 772 

Nye v. Lamphere 160 

Nye V. Otis 737 

Nye V. Taggart 800 



TABLE OF CASES. 



Ixxxi 



O. PAGE. 

Oakden v. Pike 808 

Oakes v. Gushing G79 

Oakes V.Hill 36 

Oakes v. Turquaud 639 

Oakland K. R. Co. v. Fielding 46 

Oakland, etc., Co. v. Jennings 686 

Oakland R. R. Co. v. Oakland, etc., 

R. R. Co 339 

Oakley v. Farriugton 743 

Oakeleyv. Pasheller 240 

Oakman v. Rogers 605 

O'Blenis v . Karing 223 

O'Brien v. Boston, etc., R. R. Co 324 

O'Brien v. Norris 613, 616 

O'Connor v. Blake 499 

OConnor v. O'Connor 734 

O'Connor v. Pittsburgh 273 

O'Connor v. State 29 

O'Connor v. The Ocean Star 702 

O'Counor v. Union Lime, etc., Co. . . . 497 

O'Donnell v. Leeman 591, 605, 606 

O'Dounell v. White 384 

O'Dougherty v. Aldrich 90, 92 

O'Fallou V. Kennerly 808, 816 

O'Hanlon v. Myers 730 

O'Kane v. Kiser 803 

O'Keef e v. Kellogg 501 

O'Neal V. Bacon 555 

O'Neil V. Garrett 615 

O'Reilly v. Good 477, 488 

O'Reilly v. Thompson 801 

O'Shaugnessy v. Baxter 29 

Ober V. Carson 542 

Ober V. Pratte 403 

Obert V. Obert 86, 99 

Ochs V. Price 539 

Oddy V. Paulet 757 

Odeil V. Dana 205 

Odell V. Hole 506 

Odell V. Morin 789 

Odell V. Stephens 666 

Odiorne v. Bacon 729 

Odiorne v. State . . 652 

Odlin V. Greenleaf 211 

Officer V. ]Murphy 525 

Offley V. Clay 584 

OfiFutt V. Bank of Ky 228 

Offutt V. Early wine 744, 758 

Offutt V. Glass 242 

Offutt V. Scott 145 

Ogden V. Astor 144 

Ogden V. Kirby 277 

Ogden V. People 416 

Ogden V. Riley 750 

Ogden V. Smith 645 

Ogdensburg v. Arnold 363 

Ogg V. Shuter 547 

Ogle V Atkinson 615 

Ogle V, Graham 208 

Ogle V. Philadelphia, etc., R. R. Co. 307 

Ohio V. Baum 788 

Ohio, etc., R. R. Co. v. Applegate. . . 290 

Ohio, etc., R. R. Co. v. Brubaker 306 

Ohio, etc., R. R. Co. v. Davis 351 

Vol. v.— k 



PAGE. 

Ohio, etc., R. R. Co. v. Noe 481 

Ohio, etc., R. R. Co. v. Wheeler .... 282 

Oil Co. V. Petroleum Co 355 

Oil Run Petroleum Co. v. Gale 358 

Old V. Chambliss 223 

Oldaker v. Lavender 139 

Old Colony R. R. Co. v. Evans. . 606, 802 

Oldfield V. Cobbett 366 

Oldham v. Oldham 517 

Old Town, etc., R. R. Co. v. Veazie. . 275 

Oliphant v. Mathews 146 

Ollivant v. Bayley 565 

Oliver v. Croswell 804 

Oliver v. Dis 803 

Oliver v. Houdle 71 

Oliver V. Houdlett 80 

Oliver v. Northeastern Ry. Co 308 

Olmstead v. Brown 731, 759 

Olmsted v. Olmsted 189 

Omro v. Kaime 190 

Onslow V. Home 728, 741, 742 

Ontario Bank v. Hennessey 115 

Opdyke v. Bartles 427 

Opdike V. Weed 747 

Oppenheim v. Russell 613 

Oram v. Franklin 742 

Orange, etc., R. R. Co. v. Placide 304 

Oriental Co. v. Overend 240 

Ormond v. Martin 98 

Ormsby v. Douglass 747 

Ornamental Co. v. Brown 275 

Orneville v. Pearson 225 

Orphan Asylum v. McCartee 365 

Orr V. Box 29 

Orr V. Irwin 765 

Orr V. Skotield 729 

Orrok v. Commonwealth Ins. Co. 705, 707 

Orvis V. Kimball 67 

Osborn v. Gantz 554, 555, 585 

Osborn v. Noble 199 

Osborn v. Bobbins 202, 204 

Osgood V. Green 496 

Osgood V. Laytin 381 

Osgood V. Lewis 557, 559 

Osgood V. Thurston 647 

Oswitchee Co. v. Hope 27 

Otis V. Cusack 87 

Ottawa, etc., R. R. Co. v. Black. .278, 334 

Ottman v. Moak 72, 214 

Otts V. Alderson 566. 638 

Overaker v. State 411 

Overback v. Heermance 61 

Overbay v. Lighty 566 

Overend v. Oriental Co 233, 240 

Overton v. Freeman 309 

Owen V. Blake 425 

Owens V. Collins 120 

Owen V. Frink 779 

Owens V. Hall 828 

Owen V. Homan 190, 370 

Owen V. Long 68 

Owens V. Miller 194, 199 

Owen V. White 51 

Owenson v. Morse 532 



/yyxii 



TABLE OF CASES. 



PAGE. 

Owing'a Case 368 

Owings V. Baldwin 778, 802 

Oxendale v. Wetherall 571, 581 

Osley V, Storre 233 

Oxley V. Tryon 75 

Osnard v. Swanton 530 



Pace V. People 11 

Pacific R. R. Co. v. Brown 331 

Pacific Iron Works v. Newhall 562 

Pack V. Gaither 776 

Packard v. Dunmore 576 

Paddleford v. Boardman 704, 705 

Paddleford v. Thaclier 230 

Paddock v. Strobridge 639 

Padmore v. Lawrence 732, 756 

Padwick v. Hurst 183 

Page v. Brant 143 

Page V. Cowasjee Eduljee 677 

Page V. Greeley 821 

Page V. Heineberg 288 

Page V. Munro 696, 701 

Page V. Parker 626 

Page V. Pavey 626 

Page V. Webster 86, 92, 245 

Pahlman v. Taylor 106, 126 

Paige V. McMillan 552 

Paige V. Smith 385 

Paine v. Chicago, etc., Ry. Co 317 

Paine v. Farr 38 

Paine v. Moffitt 200 

Paine v. Tliacher 150 

Paine v. Voorliees 229 

Paine v. Ward 103 

Painesville, etc., R. R, Co. v. King. . 281 

Painter v. Newby 815 

Palethorpe v. Lesher 246 

Palmer v. Bate 634 

Palmer v. Conley 161 

Palmer v. Danpy 427 

Palmer v. Dodge 141 

Palmer v. Foley 13 

Palmer v. Foote 420 

Palmer v. Meiners 499 

Palmer v. Miller 70 

Palmer v. Myers 133 

Palmer v. Pinkham 113 

Palmer v. Vaughan 357 

Palmer v. Woodbury 259 

Pangborn v. Patridge 454, 458 

Pannell v. Ilampton 501 

Paramore v. Western R. R. Co 336 

Parham v. Green 221 

Paris V. llulett 199 

Pari.sh of Bellport v. Tooker 260 

Park V. Johnson 792, 822 

Parke's Appeal 293 

Parke v. Leewright 800 

Parker v. Alexander 238 

Parker v. Brancker 176 

Parker v. Browning 355, 378, 384 



PAGE. 

Parker v. Burnes 617 

Parker v. Canfield Ill, 112, 115 

Parker V. Child 421 

Parker v. Cousins 143 

Parker v. Elliott 664, 667 

Parker v. Gossage 614 

Parker v. Great Western R. R. Co. . 273 

Parker v. Leek 207 

Parker v. Lewis 736 

Parker v. Marquis 515 

Parker v. McAllister 806 

Parker v. Meek 657, 661 

Parker v. Mitchell 541 

Parker v. Northern Central, etc., R. 

R. Co 277 

Parker v. Palmer 553 

Parker v. Parker 108, 812 

Parker v. Phillips 143 

Parker v. Pringle 637 

Parker v. Rochester 198 

Parker v. Smith , 264 

Parker v. Staniland 596 

Parker v. Taswell 796 

Parker v. Thomas 294 

Parker v. Wallis 600 

Parkham v. Riley 475, 485 

Parkhurst v. Cummings 434 

Parkhurst v. Ketchum 760 

Parkhurst v. Kinsman 109, 355 

Parkins v. Scott 746 

Parkinson v. Lee 565 

Parkman v. Welch 438 

Parks V. Evansville, etc., R. R. Co. . 516 

Parks V. McKamy 777 

Parks V. Morris, etc., Co. . . .555, 556, 563 

Parmlee v. Adolph 508, 516 

Parnell v. Price 240 

Parrill v. McKinley 801 

Parrish v. Gray 236 

Parrot v. Cincinnati, etc., R. R. Co. . 303 
Parrott V. Knickerbocker, etc., Co.. 17 

714 
Parrott v. Knickerbocker Ice Co. . . . 714 

Parry v. The Peggy 722 

Parsel v. Barnes 29 

Parshall v. Eggert 169 

Parsons v. Bowdoin 26 

Parsons v. Hardy 698 

Parsons v. Hill 63 

Parsons v. Howe 289 

Parsons v. Keys 64 

Parsons v. Loucks 593 

Parsons v. Overmire 169 

Parsons v. Wells 420 

Partlow V. Lano 205 

Parton v. Crofts 603, 608 

Partoii V. Ilervey 62 

Partridge v. Gorden 431 

Pasley v. Freeman 556 

Passaic Manuf. Co. v. Hoffman. . .593, 604 

Passenger R. R. Co. v. Young. 341 

Passmore v. Phila., etc., R. R. Co 299 

Patapsco Ins. Co. v. Soutbgate 676 

Patch V. Wheatland 127 



TABLE OF CASES. 



Ixxxiii 



PAGE. 

Patchin v. Cromach 79 

Pate V. Wright 635 

Pater v. Baker 761, 762 

Patershall v. Tranter 628 

Patou V. Stewart 786 

Paton V. Wright 133 

Patrick v. Horton 789 

Patridge v. McMartin. ... 160 

Patten v. Accessory Transit Co. .355, 364 

Patten v. Darling 702, 706 

Patten v. Gurney 147, 685 

Patten v. Northern R. R. Co 299 

Patten v. Wilson 28 

Patterson v. Bangs 201 

Patterson v. Blake 120 

Patterson v. Bloomer 796 

Patterson v. Brock 245 

Patterson v. Chalmers 122, 684 

Patterson v. Choate 132 

Patterson v. Copeland 800 

Patterson v. Cox 582 

Patterson v. Fowler 494 

Patterson v. Hubbs 262 

Patterson v. Miller 9 

Patterson v. Patterson 220 

Patterson v. Silliman 124 

Patterson v. Thompson 661 

Patterson v. Yeaton 798 

Pattison v. Culton 613 

Pattison v. Jones 753, 757 

Patton V. Campbell 630 

Patton V. Develin. 798 

Patton V. Shanklin 247 

Patton V. Stewart 423 

Paul V. Berry 186, 220, 223 

Paul V. Hummel 53 

Paul V. Meservey 507 

Paul V. Reed 547, 585 

Paul V. Stackhouse 188 

Paulev. Halferty 761 

Paulin V. Howser 53 

Paulin V. Kaighn 219, 220, 225 

Payne v. Cave 533, 534 

Payne v. Hornby 140 

Payne v. Matthews 149 

Payne v. Slate 141 

Payne v. Wallace 832 

Payne v . Webster 234 

Paynter v. Carew 391 

Paynter v. Paynter , 681 

Pay son v. Macomber 754 

Paxton V. Newton 768 

Pea body v. Chapman 211 

Peabody v. Minot 82 

Peabody v. Patten 428 

Peacock v. Chapman 226 

Peacock v. Peacock 136 

Peak V. Cogborn 459 

Peake v. Conlan 491 

Peake v. Oldham 732, 735, 751 

Pearce v. Blackwell 562 

Pearce v. Brooks 634, 636 

Pearce v. Carter 622 

Pearce v. Davis 583 



PAGE. 

Pearce v. Morris 427 

Pearce v. Pearce 77 

Pearce v. Piper 791 

Pearce v. Savage 420 

Peard v. Jones 743 

Pearl v. Deacon 213 

Pearne v. Lisle 773 

Pearpoint v. Graham 136 

Pears v. Bache 648 

Pearson v. Knapp 794 

Pearson v. Parker 205 

Pease v. Gloahec 616, 637 

Peavey v. Calais R. R. Co 286, 291 

Peay v. Wright 524 

Pechell V. Watson 634 

Peck V. New York, etc., R R. Co 314 

Peck V. Wilson 505 

Pecker v. Hall 144 

Peckham v. Barker 801 

Peek V. North Staffordshire R. R. Co. 604 

Peeler v. Levy 829, 831 

Peer v. Humphrey 528 

Peers v . Lambert 813 

Peigne v. Sutcliffe 78 

Peik V. Chicago, etc., R. R. Co 316 

Peirce v. Ocean Ins. Co 676 

Peirce V. Partridge 32 

Peirsoll v. Elliott 520 

Pellage v. Pellage 55 

Pellecat v. Angell 634 

Peltier v. Collins 540, 605 

Peltier v. Mict 734, 752 

Pelton V. Ward 739 

Pemberton v. Colls 729 

Pemberton v. Oakes 190, 229 

Pembroke Iron Co. v. Parsons 572 

Pence v. Dozier 658 

Pender v. Forbes 556 

Pendleton v. Dalton 796 

Penfold V. Westcote 737 

Penn v. Baltimore 770 

Penn v. Hayward 766, 833 

Penuimau v. Cole 386 

Pennimau v. Hartshorn 606 

Pennington v. Meeks 745, 746 

Pennock v. Ela 808 

Penuock v. Hart 644 

Penn. Coal Co. v. Delaware, etc., Co. 774 
Pennsylvania Ins. Co. v. Murphy. . . . 117 

Penn. R. R. Co v. Hope 328 

Penn. Ry . Co. v. Commonwealth. • . . 318 

Penn. R. R. Co. v. Lewis 329 

Peunybecker v. McDougal 466, 478 

Pennyman v. Reabanks 761 

Penobscot, etc., R. R. Co. v. Dunn. . . 275 

Renters v. England 746 

Pentz V. Clarke 682 

People V. Albany 37 

People V. Albany, etc., R. R. Co. .9, 259 

269 283 

People V. Bearfield ' 262 

People V. Bissell 3, 13 

People V. Blankman 400, 412 

People V. Bull 11, 12 



Ixxxiv 



TABLE OF CASES. 



PAGE. 

People V. Bush 15 

People's Ferry Co. v. Balch 277 

People V. Canal Board 37 

People V. Carey 417 

People V. Carpenter 269 

People V. Central City Bk. 376, 378 

People V. Cicott 269 

People V. Circuit Court 252 

People V. Clute 3, 252, 259, 271 

People V. Cogbill 17 

People V. Connor 270 

People V Cook 259, 414 

People V. Corey 647 

People V. Cushney 414 

People V. Doesburg 269 

People V. Draper 37 

People V. Duncan 219 

People V. Eaton 401, 407 

People V. Fairchild 262 

Penj)le v Flanagan 12, 261 

Peoj)le V. Forquer 259 

People V. Gilson . 324 

People V. Green 13 

People V. Haggerty 417 

People V. Harlow 25 

People V. Hartwell • 266 

People V. Hickey - 417 

People V. Hill 263 

People V. Hillsdale, etc., Turnp. Co. . 262 

People V. Humphreys 42 

People V. Jansen. 227, 238 

People V Johr 6 

People V. Jones 268 

People V. Kane 411 

People V Kip 263 

People V. Knight 269 

People V. Kolb 162 

People V. Laenna 276 

People V. Law 296, 348 

People V. Lobman 397 

People V. Manhattan Co 264 

People V. Marine Court 251, 252 

People V. Mayor of N. Y 357, 372 

People V. May worm 268 

People V. McCullough 267 

People V. McKinney 5 

People V. Mead 373 

People V. Mellor 403, 647 

People V. Michigan, etc., R. R 297 

Pwple V. Miller 20 

People V. Mitcliell 49 

People V . Moorea 61 

People V. Mercien 43, 777 

People V. Mullin 57 

People V. Murray 269 

People V. New York 496 

People V . Niagara 503 

People V. Nichols 1, 4 

People V. Northern R. R. Co 375 

Peoido V. Nostrand 17 

People's Bank v. Pearsons 240 

Peoi)le V. Pease 259 

People V Percells 267 

Peoplo y. Pertit 404 



PAGE. 

People V. Phillips 269 

People V. Pratt 263 

People V. President, etc., of Man- 
hattan Co 282 

Peojilev. President, etc., Turnp. Co. 270 

People V. Porter 12 

People V . Randolph 58 

People V. Ridgley 260 

People V. River Raisin, etc., R. R. 

Co 263 

People V. Ross 5 

People V. Russell 237, 252 

People V. Rutan 399 

People V. Ryder 265 

People V. Scannell 262, 268 

People V. Scott 405 

People V. Seaman. . . 270 

People V. Seward 250, 251 

People V. Slator 9 

People V. Solomon 32 

People V. Stratton 267 

People V. Supervisors of N. Y 32 

People V. Sweeting 261, 266 

People ex rel. Judson v. Thacher, 

268, 269 

People V. Thompson 268 

People V. Tibbits. 260 

People V. Tieman 11 

People V. Tilton 3 

People V. Tisdale 262 

People V. Tompkins Co. Gen Ses- 
sions 250 

People V. Troy House Co 275 

People V, Tubbs 413 

People V. Turner 41, 53 

People V. Utica Ins. Co 263 

People V. Utter 162 

People V. Vail 267 

People V. Van Cleve 268 

People V. Van Eps 409, 412 

People v. Van Home 398, 399 

People V. Van Slyck 260, 262 

People V. Vilas 5, 6, 227, 231 

People V. Waite 261 

People V. Walker 569 

People V. Warren 29 

People V. Welch 401 

People V. Whitcomb 261 

People V. White 17, 237 

People V. Winchell 408 

People V. Young 161 

Peoria F. & M. Ins. Co. v. Hall 123 

Peoria, etc., R. R. v. Sawyer. 299 

Perkins v. Ament 193 

Perkins v. Barnes 483 

Perkins v. Emerson 681 

Perkins v. Hill 694 

Perkins v. Hume 647 

Perkins v. Pitts 84 

Perkins v. Portland, etc., R. R. Co. 279 

Perkinsv. Scott 517 

Perkins v . Squier 187, 197 

Perkins v . Wright 794 

Perley V. Balch 626, 628 



TABLE OF CASES. 



Ixxxv 



PAGE. 
Perley v. B. C. & M. R. R. Co . . . . 347 

Perley v. Foster 33, 474, 485 

Perley V. New York, etc., R. R. Co. 325 

Perrin v . Keene 141 

Perrin v . Lyman 31 

Perriu v . Wilson 65 

Perriue v. Hankinson Ill 

Perrine v. Poulson 434 

Perrine v. Striker 201 

Perry v. Butt 106 

Perry v. Craig 172 

Perry v. Holloway 118 

Perry v . Johnson 39 

Perry v. Patterson 191 

Perry v. Richardson 463, 469, 479 

Perry v. Stowe 459, 465 

Perry v. Yarbrough 193 

Persely v. Bacon 740 

Person v . Chase 75 

Persse v. Watrous 505 

Peter v. Kendal 642 

Peter v. Rich 224 

Peters v. Davis 143, 147 

Peters v. Elliott 475 

Peters v. Fleming 64, 528 

Peterson v. Hutchinson 748 

Peterson v . Laik 72 

Peterson v . Morgan 758 

Peterson v. Sentman 730 

Petersilea v. Stone 7 

Petre v. Petre 525 

Petrick v. Ashcroft 800 

Pettibone v. La Crosse, etc., R. R. 

Co 300 

Pettibone v. Simpson. .731, 733, 734, 752 

Pettis V. Atkins 118 

Pettis V. Bloomer 134 

Petitt V. First Nat. Bank 169 

Pettit V. Shepherd 154 

Petty V. Cooke 229 

Petty V. Overall 178 

Petty V. Roberts 68 

Pewtress v. Harvey 256 

Pfieffer v. Steiner 147 

Phares v. Barbour 234 

Phares v. State 13 

Phelan v. Andrews 626 

Phelan v. Bonham 456, 469 

Phelan v. Crosby 631 

Phelin v. Kenderdine. .656, 665, 666, 668 

Phelps V. Campbell 34 

Phelps V. Cutler 576 

Phelps V. Green 86 

Phelps V. Hawkins 644 

Phelps V. McGee 569 

Phelps V. Palmer 91 

Phelps V. Parks 396 

Phelps V. Quinu 563, 632 

Phelps V. Sill 36 

Phelps V. Stewart 104 

Phelps V. Townsley 93 

Phenix v. Romer 23 

Phojnix Mut. Ins. Co. v. Bailey 5251 

Philadelphia, etc., R. R. Co 290» 



PAGE. 

Philadelphia, etc., R. R. Co. v. Bar- 
nard . '. 696 

Phila. V. Empire, etc., Ry. Co 340 

Philadelphia, etc., R. R. Co. v. How- 
ard 304 

Philadelphia, etc. , R. R. Co. v. Hum- 

mell 329 

Philadelphia, etc., R. R. Co. v. Kerr, 

713, 714 
Philadelphia, etc., R. R. Co. v. Lehigh 

Nav. Co 804 

Philadelphia, etc., R. R. Co. v. Lewis, 280 
Philadelphia, etc., R. R. Co. v. Wil- 
liams 300 

Philadelphia R. R. Co. v. Wilt 311 

Philbrook v. McEwen 234, 238 

Philips V. Atkinson 362 

Phillips V. Berger 767, 770 

Phillips V. Bevans 159 

Phillips v. Cook 149 

Phillips V. Dunkirk, etc., R. R. Co. . . 286 

Phillips V. Eiland 363 

Phillips V. Foxall 192, 239 

Phillips V. Graves 784, 819 

Phillips V. Great Western Ry. Co. ... 769 

Phillips V. Green 68, 69 

Phillips V. Harriss 502 

Phillips V. Hoefer 743 

Phillips V. Hollister 445 

Phillips V. Homfrey 782 

Phillips V. Leavitt 429 

Phillips v. Price 505 

Phillips V. Reitz 637 

Phillips V. Riley 236 

Phillips V. Rounds 242 

Phillips V. Solomon 228 

Phillips V. Thompson 764, 802 

Phillips V. Townsend 498 

Phillips V. Trezevant 154, 155 

Phillips V. Williams 623 

Phillipson v. Gibbon 811 

Phincle v. Vaughan 740 

Phipps v. Buckman 795 

Phvfe V. Warden 774, 778 

Picard v. McCormick 527, 532 

Pickard v. Smith 31 

Pickell V. The Loper 725 

Pickens v. Finney 234, 238 

Pickering v. Bishop of Ely 768 

Pickering v. Busk 174, 181 

Pickering v. Dowson 540, 562 

Pickering v. Pickering 765 

Pickersgill v. Brown. 174 

Pickersgill v. Lahens 190 

Pickett V. Bates 211 

Pickett V. Bullock 621 

Pickett V. Loggon 785 

Pickett V. Pickett 644 

Picot V. Douglass 507 

Pidcock V. Bishop 190, 566 

Pier V. Finch 326 

Pierce v. Bryant 115 

Pierce v. Chace 423 

Pierce v. Concord, etc., R. R. Co 335 



ixxxvi 



TABLE OF CASES. 



PAGE. 

Pierce v. Delesdernier 27 

Pierce v. Emery 531 

Pierce v. Jackson 119, 129, 149 

Pierce v. Lyman 589 

Pierce v. Millay 43 

Pierce v. Oliver 102 

Pierce v. Stevens 486 

Pierce v. Tiernan 119, 120 

Pierce v. Trigg 120 

Piercy v. Adams 821 

PiersoU v. Elliott 154 

Piersol V. Grimes 507 

Pierson v. Hooker 133 

Pierson v. Steortz 737 

Pignolet V. Bush 370 

Pigon V. French 217 

Pike V. Bacon 134 

Pikev. Balch 670 

Pike V. Douglass 128 

Pike v. Megoun 30 

Pike v. Van Wormer 732 

Pilgrim v. Dykes 240 

Pilkington v. Trigg 484 

Pillsbury v. Pillsbury 108 

Pine V. Ormsbee 135 

Pinkerton V. Manchester, etc., R. R. 

Co 170 

Pinkston v. Taliaferro 220 

Pinney v. Andrus 556 

Pintard v. Davis 201 

Pintard v. Martin 511, 522 

Pipe V. Bateman 117 

Piper V. Buckner 84 

Pipkin V. Bond 244 

Pippin V. Wesson. ... 530 

Pirie v. Anderson 675 

Pirkins v. Rudolph 506 

Pitcher v. Barrows 146 

Pitcher v. Hennesey 437 

Pitcher v. Laycock 72 

Pitkin V. Noyes 592 

Pitkin V. Pitkin 137 

Pitman v. Thornton 435 

Pitt V. Albritton 180 

Pitt V. Bonner 391 

Pitt V. Donovan 761 

Pitts V. Beckett 605 

Pitts V. Owen 585 

Pittsburgh, etc., R. R. Co. v. Barker. 310 
Pittsburgh, etc., Ry. Co. v. Bingham. 303 
Pittsburgh, etc., Ry. Co. v. Caldwell. 342 
Pittsburgh, etc., R. R. Co. v. Donahue . 342 
Pittsburgh, etc., R. R. Co. v. Dunn. . 

306, 307 
Pitt.sburgh, etc., R. R. Co. v. Hinds. . 322 
Pittsburgh, etc., R. R. Co. v. Maurer. 307 
Pittsburgh, etc., R. R.Co. v. Methven. 

157, 163 
Pittsburgh, etc., Ry. Co. v. Nazum.. 322 
Pittsburgh, etc., R. R. Co. v. Smith. . 306 
Pitt.sburgh, etc., R. R. Co. v. Theobald. 314 

Piscr V. Stearns 586 

Pixley V. Boynton 541 

Plant V. Condit 628 



PAGE. 

Plant V. Long Island Ry. Co 290 

Planters' Bank v. Hornberger 25 

Plaskett V. Lord Dillon 371 

Piatt V. Hibbard 180 

Piatt V. Maples 786 

Piatt V. Stewart 99 

Pleak V. Chambers 95 

Pleasants v. Pendleton 575, 587 

Plitt, Ex parte 26 

Plowman v. Sliidler 445 

Plowman v. Thornton 3 

Plummer v. Harbut 80 

Plummer v. Keppler 777, 791 

Plummer V. Webb 42 

Plummer v. Wildman 707 

Plummer v . Shirley 550 

Plymouth v . Plymouth Co 17 

Poag v. Sandifer 821 

Poe V. Grever 744 

Poe V. Grover 728, 732 

Poindexter v. McCannon 427,551 

Polack V. Everett 227, 231 

Polhemus v . Heiman 555 

Polhemus v. Hodson 98 

Polite V. Jetferson 474 

Polk V. Gallant 210 

Pollard V. Clayton 768, 773 

Pollard V. Eckford 653 

Pollard V. Lyon 727, 730, 734 

Pollard V. Pollard 648 

Pollard V. Stanton 108, 213 

Pollen V. Le Roy 580, 620 

Polston V. ^See 759 

Pomeroy v. Sigerson 110 

Pomeroy v . Smith 183 

Pomroy v. Sperry 163 

Pomeroy v. Taylor 83 

Pomeroy v. Winship 420 

Pond v. Curtiss 76 

Ponder v. Carter 207 

Ponsonby v. Ponsonby 393 

Pontifex v. Midland Ry. Co 321 

Poock V. Miller 50 

Pool V. Devers 747 

Poole V. Lewis 128 

Poor V. Woodburn 503 

Poorman v. Kilgore 826 

Pope V. Davidson 800 

Pope V. Jackson 491 

Pope V. Lemaater 80 

Pope V. Lynn 635 

Pope V. Nickerson 690, 691, 716 

Pope V. Randolph 151, 153 

Pope V. Risley 144 

Poplett V. Stockdale 634 

Popper V. Scheider 375 

Porter v. Bleiler 75 

Porter v. Bright 566 

Porter v. Chicago, etc., R. R. Co 311 

Porter v. Haight. 31 

Porter v. Hannibal, etc., R. R. Co 328 

Porter v. Hiil 83, 84 

Porter v. Hodenpuyl 246 

Porter v. Howard 209 



TABLE OF CASES. 



Ixxxvii 



PAGE. 

Porter v. McClure 105 

Porter v. Mount 157 

Porter v. Pettingill ^ 548 

Porter v. Robinson 79 

Porter v. Spencer 183 

Porter v. Williams 379 

Porter v. Wilson 114 

Portland v. Atlantic, etc., R. R. Co. . 307 

Portland Bk. v. Stacey 675, 678 

Portland Bk. v. Stubbs 678 

Portland, etc., R. R. Co. v. Grand 

Trunk Ry . Co 333 

Port Carbon Iron Co. v. Groves. 564, 565 
Port Clinton R. R. Co. v. Cleveland, 

etc., R. R. Co 350 

Port Huron, etc., R. R. Co. v. Judge 

of St. Clair Circuit 360 

Port Royal R. R. Co. v. Hammond. . 832 

Postlewaite v. Parkes 46 

Postley V. Kain 90 

Postmaster Gen. y. Reeder 233 

Potter V. Ellis 23 

Potter V. Green 228, 230 

Potter V. Kingsbury 412 

Potter V. Mardre 460, 470 

Potter V. Ocean Ins. Co 707 

Potter V. Potter 442 

Potter V. Sanders 793 

Potter V. State 188 

Potter V. Tuttle 808 

Potter V. Wasbburn 573 

Potter V. Wbeeler 89 

Pott V. Natbans 218 

Pott V. Oldwine 463, 469, 488, 490 

Potts V. Leighton 391 

Potts V. Whitehead 534 

Poulin V. Broadway, etc., Ry. Co. . . . 841 

Poulton V. Lattimore 625, 628 

Powell V. Bradlee 474, 484, 568 

Powell V. Conant 779 

Powell V. Hopson 137 

Powell V. Horton 554 

Powell V. Martyr 812 

Powell V. Mattliio 224 

Powell V. Messer 129 

Powell V. Pittsburg, etc., R. R. Co. . 826 

Powell V. Plunkett 757 

Powell V. Preston 548 

Powell V. Smith 217, 466, 478, 796 

Powell V. State 399 

Powell V. White 217 

Powell V. Wood worth 683 

Power V. Miller 740 

Power V. Power 96 

Power V. Whitmore 703 

Power's Appeal 771 

Powers V. Florance 499 

Powers V. Hale 787 

Powers V. Presgroves 760 

Powys V. Blagrave 376, 890 

Poythress v. Povthress 365 

Praed v. Gardiner 198, 215 

Prater v. Frazier 476, 484 

Prather v. Manro 650 



PAGE. 

Pratt V. Canton Cotton Co 513 

Pratt V. Chase 678 

Pratt V. Hudson River R. R. Co 590 

Pratt V. Langdon 109, 11 1 

Pratt V. Law 831 

Pratt V. Parkman 577 

Pratt V. Skolfield 420 

Pray v. Burbauk 159 

Prell V. McDonald 29 

Prendergrast v. Devey 942 

Prentice v. Achorn 785 

Prentice v. Decker 59 

Prentice v. Ladd 485 

Prentiss v. Kelley 114 

Presbury v. Morris 564 

Prescott V. Locke 593 

Prescott V. Newell 325 

Prescott V. Norris 80 

Prescott V. Wright 565 

President, etc., v. Troy, etc.,R. R. Co. 380 

PrestDu V. Dubuque, etc., R. R. Co. . 289 

Preston v. Hodgen 430 

Preston v. Liverpool, etc., Ry. Co. . . . 305 

Preston v. Williams 453 

Price's Case 13 

Price V. Alexander 134 

Price V. Cavens 1.53 

Price V. Edwards 323 

Price V. Furman. 73 

Price V. Hewett 74 

Price V. Kirkham 190 

Price V. Ley 825 

Price V. Macauley 814 

Price V. McCallister 538 

Price V. Salisbury 803 

Price V. Whiteley 731, 752 

Price V. Winter 69 

Prichett v. Cook 537 

Prideaux v. Bunnett 586 

Priest V. Hamilton 79 

Priest V. Wheeler 508 

Priest V. Whitelow 649 

Prignitz v. Fischer 353 

Prime v. Cobb 480, 481, 483 

Prime v. Twenty-third St. Ry. Co.. . 350 

Pringle v. Sturgeon 84 

Printup V. Mitchell 835, 826 

Pritchard v. Draper 132 

Pritchard v. Fleetwood 868 

Pritchard v. Fox 567 

Pritchard v. Todd 808 

Proctor V. Jones 600, 621 

Propeller Commerce 881 

Proprietors Ken. Pur. v. Davis 643 

Proprietors, etc., v. Nashua, etc., R. 

R. Co 301 

Prosser v. Henderson 534 

Prosser v. Hooper 629 

Prosser v. Woodward 498 

Prothro v. Smith 780 

Protzman v. Indianapolis, etc., R. R. 

Co 301 

Proudfoot V. Wightman 837 

Prout V. Branch Bk 243 



-xxxvm 



TABLE OF CASES. 



PAGE. 

Prout V. Wiley 69 

Pruitt V. Cox ' 656, 665 

Pruitt V. Hamilton, etc., R. R. Co 310 

318 

Pryse v. Cambrian Ry 285 

Puchett V. Reed 579 

Pugli V. Calloway 484 

Pugh V. Clieseldine 796 

Pulbrook, In re 41 

Pullan V. Cincinnati, etc., R. R. Co. . 362 

Pulliam V. Owen 765 

Pulliam V. Withers 188 

Pullman Palace Car Co. v. Smith . . 336 

Pulver V. Harris 35 

Pulvertoft V. Pulvertoft 787 

Purcell V. Mather 531 

Purcell V. McNamara 786 

Purcell V. Miner 798, 800, 801 

Purdy V. Carpenter 747 

Purdy V. Peters 193 

Purdy V. Stacey 740 

Pursley v. Ramsay 145 

Purves V. Moltz 483, 483 

Purvis V. Wilson 96 

Pusey V. Pusey 773 

Putland V. Newman 648 

Putnam v. Gushing 483 

Putnam v. Lamphier 586 

Putnam v. Schooner Polly 688 

Putnam v. Traeger 39 

Pyle V. Cravens 65 

Pym V . Bowreman 437 



Q. 



Queen v. Birmingham, etc., Ry 311 

Queen v. Blizzard 370, 371 

Queen v . Herford 255 

Queen v. Lofthouse 365 

Queen v. Twiss 354 

Queen v. Wake 17 

Quick V. Stuyvesant 795 

Quigley v. Central, etc., R. R. Co. . . . 325 

Quigley v. Roberts 79 

Quimbo Appo v. The People 248, 250 

253 

Quincey v. Hall 500 

Quiner v. Marblehead Ins. Co 130 

Quinn v. Britain ... 363 

Quinn v. Davis 402 

Quinn v. O'Gara 739, 738, 750 

Quinn v. Roth 808, 823, 824 

Quinn v. Stout 553 

Quintard v. Bacon 000, 001 

Quintard v. Newton 559 



R. 



Rackstraw v. Imber 152 

Radcliffe v. Warrington 705 

RaffloB v. Wichelhaus 535 

Rahilly v. Wilson 537 

/ 



PAGE 

Ralford v. Hyde 455, 463, 469, 479, 488 

490 

Rail v. Dotson 93 

Railey v. Bbcon 785 

Railroad Co. v. Barrow 334 

Railroad Co. v. Brown , 334 

Railroad v. Bucher 399 

Railroad v . Davis 288 

Railroad Co. v. Pratt 335 

Railroad Co. v. Tyree 898 

Railton v. Mathews 190 

Rainbolt v. State 403 

Rainey v. Tar borough 324 

Rainsford v. Rainsford 61 

Rainwater v. Durham 539 

Raleigh, etc., R. R. Co. v. Wicker 398 

303 

Ralph V. Chicago, etc., Co 639 

Ralston v. Laliee 80 

Ramey v. Purvis 335 

Rammell v. Otis 728. 731 

Rammelsberg v. Mitchell 119 

Ramsdell v. Buswell 470 

Ramsdell v. Creasey 94 

Ramsden v. Fairthorpe 367, 369 

Ramsden v. Manchester Junction R. 

R. Co 291 

Ramsay v. The Court of Wardens . . 350 

Ramsay v . Carhart 360 

Ramsay v. Lewis 323 

Rand v. White Mts. R. R 609 

Randall v. Bradley 425 

Randall v. Brigham 30, 36, 754 

Randall v. Cook 457 

Randall v. Holsenbake 748 

Randall v. Kehlor 557 

Randall v. Raper 636, 637 

Randall v. Rhodes 556 

Randall v. Rich 305 

Randall v. United States 30 

Randle v. State 108, 110 

Randleson v. Murray 309 

Randolph v. Brown 651 

Randolph v. Randolph 207, 312 

Randolph, etc., Co. v. Elliott 588 

Randolph County v. Post 376 

Ranger v . Goodrich 760 

Ranger v. Hearne 556 

Rankin v. Commonwealth 406 

Rankin v. Hurkison 769 

Rankin v. Maxwell 779 

Ranney v. Iligby 574 

Ransom v. Keyes 331 

Ransome v. Frayner 426 

Raphael v. Thames Valley Ry. Co. . 285 

304 

Rappleye v. Adee 601 

Raritun, etc., R. R. Co. v. Delaware, 

etc.. Canal Co 272 

Rasberry v. Moye 628 

Ratcliffe v. Allison 825 

Ratcliffo V. Vance 172, 183 

Rates v. Vary 208 

Rathbone v. Fowler 703, 706 



TABLE OF CASES. 



Ixxxix 



PAGE. 

Ravenga v. Mcintosh 747 

Rawark v. Lee 4'Jo 

Bawls V. Deshler 618 

Rawlyns v. Van^Dyke 51 

Rawson v. Rawson 213 

Ray V. Brenner 228 

Ray V. Haines 62 

Ray V. Thompson 551 

Raymond v. Bolles 36 

Raymond v. Loyl 52 

Rea V. Copelin 681 

Rea V. Tucker 635, 6G0 

Read v. Ambridge 749 

Read v. Bostick 24 

Read v. Lambert 179 

Read v. St. Louis, otc, R. R. Co 319 

Reade v. Commercial Ins. Co 689 

Reade v. Hamlin 371 

Reading R. R. v. Boyer 299 

Reading v. Wedder 276 

Ready v. Commonwealth 398 

Re Babcock 200, 201 

Re Batchelder 579, 621 

Reber v. Col. Mach. Man. Co 113 

Re Bulger 12 

Receivers v. Patterson Gas-light Co. 360 

Rector v. Chevalier 456 

Rector v. Smith 754 

Reddie v. Scoolt 664, 669 

Reddish v. Watson 243 

Redington v. Chase 832 

Redington v. Roberts 631 

Redman v. Hendricks 455 

Redmond v. Smock 619, 620, 631 

Redmond v. State 403 

Reece v. Trye 772 

Reed v. Abbey 537 

Reed v. Bank of Newburgh 523 

Reed v. Batchelder 67, 68 

Reed v. Boardman 227, 230 

Reed v. Amory 210 

Reed v. Garvin 226 

Reed v. Harrison 33 

Reed v. Hastings 555 

Reed v. Noe 807 

Reed v. Randall 579 

Reed v. Reed 433, 434, 489 

Reed v. Upton 532 

Reed v. Williams 667, 670, 671 

Rees V. Berrington 245 

Reese v. Beck 549 

Reese v. Bradford 148 

Reese v. Harris 181 

Reese v. Lawless 249, 250 

Reese v. Lee County 817 

Reese v. Mitchell 485 

Reese v. Reese 789 

Reese v. United States 408 

Reeve v. Holgate 729 

Reeves v. Capper 168 

Reeves v. Cox 388 

Reeves v. Pulliam 228 

Reeves v. Ship Constitution 709 

Refining, etc., Co. v. Miller 585 

YOL. Y — L 



PAGE. 

Reg. V. Collins 261 

Reg. V. East & West., etc., Ry. Co. . . 308 

Reg. V. Ely 308 

Reg. V. Mansfield 48 

Reg. V. Meek 739 

Reg . V. Murphy 4 

Reg. V. Price 404 

Reg. V. Sadlers' Co 13 

Reg. V. Simpson 261 

Reg. V. W'ard 261 

Reggio V. Braggiotti 626, 627 

Regina v. Armstrong 261 

Regina v. Francis 267 

Regina v. Hartley 271 

Regina v. Kenrick 639 

Register v. Layman 643 

Re Great West. Tel. Co 106 

Rehauser v. !;chwerger 744 

Reid v. Cox 234 

Reid V. Middleton 363 

Reid V. Nunnelly 226 

Reilly v. Smith 829 

Reimers v. Ridney 558 

Reiuheimer v. Hemingway 476 

Reitenbaugh v. Chester Val. Ry 286 

Re Jewett 113 

Relf V. Eberly 520 

Relf V. Ship Maria 723 

Relyea v. New Haven Rolling Mill 

Co 695 

Re Merrill 116 

Remick v. Sandford 579, 599 

Remington v. Irwin 809 

Remsen v. Beekman 187, 196, 235 

Rendall v. Rendall 370 

Renfrew v. McDonald 523 

Renfrew v. Pearce 144 

Renuell v. Kimball 684 

Rensselaer, etc., R. R. Co. v. Davis . . 287 

Renton v. Chaplain 136 

Renton v. Maryott 566 

Reppert v. Colvin 132 

Respublica v. Prior 165 

Respublica v. W' ray 258, 260 

Reston v. Pomfreicht 733, 751 

Reuss V. Picksley 603, 606 

Revenue Cutter No. 1 725 

Reynolds v. Baldwin 260 

Reynolds v. Boston, etc., R. R. Co. . . 611 

613, 615 

Reynolds v. Cleveland 128 

Reynolds v. Harral 213 

Reynolds v. Henderson 649 

Reynolds v . McAfee 11 

Reynoles v. McCormick 491 

Reynolds v. McWilliams 19 

Reynolds v. Rogers 201 

Reynolds v. Ross 738 

Reynolds v. Sallee 464, 486 

Reynolds v. The Joseph 718 

Rex V. Adams 209 

Rex V. Bingham 401 

Rex V. Clarke 162, 164 

Rex V. Clifton 165 



xc 



TABLE OF CASES. 



PAGE. 

Rex V. Colchester 260 

Rex V. Creevey 754 

Rex V. Darby 741 

Rex V. Delavel 43 

Rex V. Dutchess of Kingston 411 

Rex V. Greenhill 42 

Rex V. Hymen 160 

Rex V. Kealing 256 

Rex V. Lord Abingdon 754, 756 

Rex V. Moseley 49 

Rex V. Owen 58 

Rex V. Patteson 13 

Rex V, Skinner 754 

Rex V. Soper 49 

Rex V. Stancher 405 

Rex V. Winchester 262 

Rhame v. Lewis 214 

Rheinhart v. State 412 

Rhodes v. Bates 517 

Rhodes v. Bunts 501 

Rhodes v. Hart 241 

Rhodes v. Mostyn 371 

Ricardo v. Board of Health 254 

Rice's Appeal 199 

Rice V. Andrews 584 

Rice V. Austin 108, 110, 115, 148 

Rice V. Barnard 121 

Rice V. Benedict 179 

Rice V. Commonwealth 9 

Rice V. Forsyth 556, 565 

Rice V. Free'land 88 

Rice V. Hart 319 

Rice V. Osgood 91 

Rice V. Pollard 244 

Rice V. Poynter 444 

Rice V. Rice , 213 

Rich V. Baker 456 

Rich V. Davis 129 

Rich V. Livingston 740 

Rich V. Lord 94 

Rich V. Loutrel 386 

Rich V. Ryder 472 

Richards v. Baurman 140, 155 

Richards v. Chesapeake, etc., R. R. 

Co 377 

Richards v. Commonwealth 233 

Richards v. Davis 177 

Richards v. Des Moines, etc., R. R. 

Co 348 

Richards v. Green 785 

Richards v. Perkins 364 

Richards v. Richards 821 

Richards v. Simms 220 

Richardson v. Boright 67 

Richardson v. Clark 677 

Richardson v. Copeland 279 

Ricliardflon v. Farmer Ill 

Ricliardson v. Fonts 664, 667 

Ricliardson v. (irundy 555, 628 

Ridiardson v. Hogg 115 

Richardson'v. Uouck 562 

Richardson v. Ins. Co 177 

Richardson v. Mason 559 

Richardson v. McDougall 654 



PAGE. 

Richardson v. Merrill 88 

Richardson v. Moies 141 

Richardson v. Nourse 704 

Richardson v. Reed 486 

Richardson v. Roberts 747 

Richardson v. Smith 814 

Richardson v. Squires 599 

Richardson v. Ward 393 

Richardson v. Whiting 731 

Richardson v. York 460, 478 

Richmond v. Dubuque, etc., R. R. Co 768 
Richmond v. Sacramento, etc., R. R. 

Co 331 

Richmond Trading, etc., Co. v. Far- 

quar 557 

Rickard v. Rickard 90 

Ricker v. Cross 678 

Ricker V. Ross 575 

Ricketts v. Dorrell 467, 478 

Ricks V. Cooper 735 

Riddle v. Bowman 304 

Riddle v. Parke 498 

Riddle v. Varnum 543, 631 

Rider v. Gray 809 

Rider v. Kelley 544 

Rider V. Maul 83 

Rider v. Powell 442, 445, 828 

Ridgefield, etc., R. R. Co. v. Brush. . 375 

Ridgely v. Clodfelter 779 

Ridg way's Appeal 130, 133 

Ridgway v. Bownan 540 

Ridgway v. Clare 148, 149 

Ridgway V. Grant 150, 153 

Ridgeway v. Kennedy 547 

Ridgway v. Wharton 535, 604 

Ridley V. McNairy 800 

Riesz's Appeal 779, 793 

Rietzell v. People 642 

Rigby V. Great Western Ry. Co 769 

Rigge V. Burbridge 628 

Riggins V. Brown 247 

Riggs V . Magruder 595 

Riggs V. Pursell 807 

Riggs V. Whitney 387 

Righterv. Roller 632 

Rikur V. Darke 90 

Riley v. McCord 651 

Riley v. Noyes 487 

Riley V. Nugent 753 

Riley V. Wheeler 584 

Riley V. Whittiker 33 

Ring V. Ash worth 442 

Ring V. Wheeler 757 

Ringgold V. Ringgold 179 

Ringgold C'o. v. Ross 405 

Ripley v. GJflFord 26 

Ri])ley v. Hazleton 508 

Ripple V. Gilborn 90 

Rlst V. Faux 659 

Ritchie V. Smith 635 

Rittenhouse v. Levering 216 

Ritteuhouse v. Tomlinson 792 

River Dun Nav. Co. v. North, etc., 
Ry 348 



TABLE OF CASES. 



xci 



PAGE. 

Roach V. Perry 118 

Roach V. Summers 232 

Roach V. Thompson 306, 207 

Roane v. Pickett 201 

Robalina v. Armstrong 48 

Robards v. Hutson 530 

Robbins v. Abraham 419 

Robbins v. Butler 117 

Robbins v. Eaton 69, 71 

Robbins v. Fletcher 747 

Robbins v. Fuller 140 

Robbins v. Harrison 581 

Robbins v. Laswell 1 06 

Robbins V. Milwaukee, etc., R. R. Co. 299 
Robbins v. St. Paul, etc., R. R. Co. . 289 

Robert v. Lane 718 

Roberts v. Berry 809 

Roberts v. Brett 569 

Roberts v. Camden 749 

Roberts v. Colvin 199 

Roberts v. Connelly 655, 657, 660 

Roberts v. Dauphin Deposit Bank 467 

478 

Roberts v Fitler 150 

Roberts v Fleming 422, 429 

Roberts v. Humby 254 

Roberts v. Jenkins 558, 567 

Roberts v. Johannas 491 

Roberts v Johnson 107 

Roberts v Littlefield 432 

Roberts v Lovejoy 832 

Roberts v. Lovell 74.5 

Roberts v Marchant 816 

Roberts v Randel 455, 458, 484 

Roberts v. Roberts 733 

Roberts v Sayre 225 

Roberts v Tennell 497 

Roberts v Tucker 603 

Roberts v. Wiggin 66 

Roberts v Wyatt 173 

Roberts v. Yarboro 180 

Robertson v. Atlantic, etc., R. R. Co. 306 

Robertson v. French 675 

Robertson v. Lea 738 

Robertson v. Maxcey 220 

Robertson v. Smith 452 

Robertson v. M. Ins. Co 691 

Robertson v. Vaughn 594 

Robeson v. Hornbaker 789 

Robeson v. Roberts 245 

Robinson v. Atlantic, etc., R. R. Co., 

354, 370 

Robinson v. Baker 321 

Robinson v. Burton 671 

Robinson v. Brooks 219 

Robinson v. Commonwealth Ins. Co. 719 

Robinson v. Ferreday 582 

Robinson v. Gregory 733 

Robinson v. Hurley 176, 177 

Robinson v. Jones 258 

Robinson v. Kettletas 776 

Robinson v. Keyser 737 

Robinson v. Marchant 743, 745 

Robinson v. McDonnell 677 



PAGE. 

Robinson v. Miller 240 

Robinson v. New York, etc., R. R. 

Co 301, 302 

Robinson v. Perry 776 

Robinson v. Reynolds 530 

Robinson v. Taylor 143 

Robinson v. Weeks 61, 71 

Robinson v. Wilson 188, 210 

Roby V. Cossitt 810, 818, 821 

Roby V. West 635 

Rochester v. Anderson 819 

Rochester, etc., R. R. Co. v. Clarke 

Nat. Bank 8 

Rockford, etc., R. R. Co. v. Byam. . . 330 
Rockford, etc., R. R. Co. v. Heflin. . . 304 
Rockford, etc., R. R. Co. v. Hillmer . 330 

Rockford, etc., R. R. Co. v. Lent 571 

Rockford, etc., R. R. Co. v. Rafferty . 381 

Rockwell V. Saunders 476 

Rockwell V. Third Ave. R. R. Co 343 

Rodee v. Wade 586 

Rodgers v. McCluer 215 

Rodgers v. Meranda 149 

Rodgers v. Phillips 600, 601 

Rodman v. Thalheimer 631 

Rodman v. Zilley 787 

Rod well V. Phillips 595 

Roe V. Clarges 741 

Roella V. Follow 739, 740 

Roethke v. Philip Best Brewing Co. 636 

Rogers v. Abbott 444 

Rogers v. Arnold 454, 458, 466, 497 

Rogers v. Batchelor 119, 131 

Rogers v. Burlington 289 

Rogers v. DeForest 376 

Rogers v. Hanson 629 

Rogers v. Kennebec, etc., R. R. Co., 

291 297 

Rogers v. Marshall 368,' 373 

Rogers v. McLean 99 

Rogers v. Nichols 136, 148 

Rogers v. Saunders 765, 788, 802 

Rogers v. Steamer St. Charles 711 

Rogers v. Taylor 806 

Rogers v. Thomas 614, 618 

Rogers v. Turner 51 

Rogers v. Van Hoesen 571 

Rogers' Locomotive, etc., Works v. 

Erie Railway Co 818 

Rohde v. Thwaites 544, 545 

Rolin V. Steward 743 

Rollins V. Stevens 130 

Rommel v. Wingate 569, 571 

Rondeau v. Watts 590, 591 

Roof V. Stafford 72 

Rooney v. Sacramento, etc., R. R. 

Co 296 

Root V. Lowndes 747 

Roots V. Lord Dormer 597 

Roper V. Johnson 624 

Roscorla v . Thomas 555 

Rose v. Beattie 553 

Rose v. Bevan 871 

Rose v. Tolly 502, 503 



XCll 



TABLE OF CASES. 



PAGE. 

Rosekrans v. White 96 

Roseubaums v. Weeden 619 

Roseutlial v. Dessau 613, 616 

Rosenthal v. Freeburger 801 

Rosetto V. Gurney 698 

Ross V. Allen 204 

Ross V . Bridge 393 

Ross V. Cassidy 484 

Ross V. Chicago, etc., R. R. Co 300 

Ross V. Cobb 48 

Ross V . Cornell 152 

Ross V. Elizabeth, etc., R. R. Co 348 

Ross V. Jones 235, 236 

Ross V. Ross 753 

Ross V. Rouse 739 

Ross V. Ship Active 689, 704 

Ross V. Singleton 530 

Ross V. State 410 

Ross V. Union Pacific R. R. Co 768 

Ross V. Williamson 31 

Ross V. Woodville 193 

Rosslyn v. Atoun 3 

Roth V. Moore 128 

Rounds V. Del. Lack, etc., R. R. Co., 

311, 342 

Roundtree v. Barnett 15 

Roundtree v. McLain 767 

Rourke v. Bullens 533 

Routh V. Thompson 123 

Ronton v. Lacy 235 

Rowan v. Sharp Manuf. Co 232 

Rowan v. Teague 501 

Rowan v. Union Arms Co 550 

Rowe V. Buchtel 236 

Rowe V. Wood 363 

Rowland v. Long Ill 

Rowland v. Mann 494 

Rowlans v. Evans 138 

Rowley v. Bigelow 637 

Rowton V. Rowton 778 

Royal Ins. Co. v. Da vies 190 

Royce v. Strong 646 

Royston v. Howe 245 

Rozet V. McClellan 177 

Rozier v. Griffith 90 

Rozier v. Johnson 93 

Ruble v. Norman 239 

Ruby V. Portland 107 

Rucker v. Conyngham 689 

Rucker v. Donovan 468, 616 

Rucker v. Robinson 240 

Ruckman v. King. , 808 

Ruddick v. Otis Ill 

Rudolph V. Covell 765 

Ruffner v. Hewitt 142 

RufFner v. McConnel 134, 441 

Rugg V. Minett , 580 

Rugg V. Weir 583, 584 

Rugge V. Ellis 781 

Ruhe V. Burnell 114 

Ruhling V. Hickett 452 

Rumsey v. Webb 757, 758 

Rundel v. Keeler 528 

Runyon v. Central R. R. Co 330 



PAGE. 

Runyon v. Farmers', etc., Bank 378 

Ruohs V. Backer 757 

Ruppert V. C. O. & St. J. R. R. Co. . . 299 

Rush V. Cavenaugh 729 

Rush V. State 216 

Russell V. Allen 466 

Russell V. Blake 432 

Russell V. Carrington 543 

Russell V. East Anglian R. R. Co 389 

Russell V. Failor 223 

Russell V. Grimes 150 

Russell V. Ligon 741 

Russell V. Miller 121 

Russell V. Minor 585 

Russell V. Perkins 189, 194 

Russell V. Smith 499 

Russell V. Southard 427 

Russell V. State 415 

Russell V. Stinson 787 

Rust V. Eckler 628 

Rust V. Low 288 

Rutherford v. Green 779 

Rutherford v. Jones 26 

Rutherford v. Smith 224 

Rutland v. Paige 197 

Rutledge v. Greenwood 238 

Rutter V. Blake 633 

Rutter V. Tallis 155 

Ryall V. Kennedy 719 

Ryan v. Daniel 791 

Ryan v. Mackmath 154 

Ryan v. Trustees 189 

Ryberg v. Snell 611 

Ryder v. Glover 644 

Ryder v. Neitge 561 

Ryder v. Wombwell 65, 529 

Ryerson v. Grover 80 

Ryerson V. Utley 30 

Ryerss v. Wheeler 85 



s 



Sabin v. Angell 737, 738 

Sacramento v. Kirk 239 

Saco Water Power Co. v. Qoldth- 

waite 97 

Satfell V. Wash 464, 486, 500 

Safford v. McDonough 577, 599 

Sage V. Sleutz 548 

Sager v. Tupper 431 

Sailly V. Elmore 227, 234 

Sainsbury v. Jones 764 

Sainsbury v. Matthews 596 

St. Albams v. Gilliland 129 

St. Albans Bk. v. Dillon 185, 231 

St. Ferdinand, etc., Academy v. Bobb. 55 

St. John V. Griffith 786 

St. Johnsbury v. Bagley 439 

St. Joseph, etc., R. R. Co. v. Callender. 300 

St. Joseph, etc., R. R. v. Ryan 304 

St. Losky v. Davidson 178 

St. Louis, etc., R. R. Co. v. Dalby 283 

St. Louis, etc., R. R. Co. v. Gilham. . 328 



TABLE OF CASES. 



xcm 



PAGE. 

St. Louis, etc., R. R. Co. v. Mathers. 304 
St. Louis, etc., R. R. Co. v. Mollett. 299 
St. Louis, etc., R. R. Co. v. Mont- 
gomery 319, 328 

St. Louis Ry. Co. v. Myrtle 317 

St. Louis V. St. Louis R. R. Co 344 

St . Louis V . Sickles 6 

St. Louis, etc., R. R. Co. v. Soutli. 317 

St. Louis Co. Ct. V. Sparks , 259 

St. Paul Division, etc., v. Brown. 765 770 

Saladin v. Mitchell 619 

Saline Co. v. Pine 234 

Salisbury v . Hatcher 788 

Salisbury v. Stainer 565 

Salmon v. Clagett. 243 

Salmon Falls Manuf. Co. v. Goddard . 

600, 607 

Salter v. Ham 108 

Salter v. Sample 467 

Salter v . Woollams 578 

Saltmarsh v. Planters, etc., Bk.... 283 

Saltmarsh v. Tuthill 035 

Saltus V. Everett 719 

Saltus V. Ocean Ins. Co 704 

Salway v. Salway 387 

Same v. Same 641 

Sampson v. Smith 723 

Sampson v. United States 709 

Sams V. Fripp 802 

Sams V. Stockton 04 

Samuel v. Zachery 221, 222 

Sanborn v. Batchelder 510 

Sanborn v. Benedict 531 

Sanborn v. Flagler 603, 604, 000 

Sanborn v. Leavitt 455, 404 

Sandeman v. Scurr 015 

Sanderlin v. Robinson 447 

Sanders v . Buck 397 

Sanders v. Johnson 753 

Sanders v. Watson 210 

Sanders v. Wilson 432 

Sanderson v . Aston 232 

Sanderson v. Caldwell 745 

Sanderson v. Hubbard 745 

Sandford v. Ballard 309 

Sandford v. Wiggins Ferry Co 546 

Sands v. Taylor 619 

Sandford v. Bennett 746 

Sandford v. Bulkley 582 

Sandford v. Eighth Av. R. R. Co 342 

Sandford v. Gaddis 739 

Sandford v. Sinclair 858 

San Francisco, etc., R. R. Co. v. Cald- 
well 298 

Sappington v. Jeffries 230 

Sargent v. Denison 659 

Sargent v. Matthewson 42 

Sargent v. Metcalf 586 

Sargent v. Ohio, etc., R. R. Co 849 

Sarter V. Gordon 787 

Sartin v. Weir 504 

Sartling v . Buttles 235 

Sasscer v . Young 245 

Saterthwaite v . Dewhurst 055 



PAGE. 

Saunders v. Commonwealth 397 

Saunders v. Frost 433 

Saunderson v. Jackson 604 

Saundersou v. Marr 61 

Sauntry v. Dunlap 131 

Savage v . Ball 9 

Savage v . Carleton 236 

Savage v . Carter. 120 

Savage v . Putnam 137 

Savage v. Williams 89 

Savery v. Hays 461, 478 

Savery v. Spence 625, 766 

Sawtelle v. Rollins 456, 458, 484 

Sawyer v. Baldwin 478, 485 

Sawyers v. Cator 87 

Sawyer v . Corse 31 

Sawyer v. Fisher 622 

Sawyer V. Freeman 123 

Sawyer v. Hopkins 733 

Sawyer v. Hovey 443 

Sawyer v. Rutland, etc., R. R. Co. . 333 

Sawyer v. Sauer 47 

Sawyer v. Ware 593 

Saver v. Bennet 138 

Sables V. Tibbitts 777 

Sayre v. Peck 540 

Sayre v . Sayre 760 

Sayre v. Wheeler 635 

Say ward v. Warren 401, 484 493 

Scadding v. Lorant 14 

Scales V. Ashbrook 447 

Scambles v. Waters 5 

Scanland V. Little 383 

Scarborough v. Lyrus. ... 688 

Schalck V. Harmon 118 

Schaw V . Dietrick 4 

Schemerhora v. Loines 685 

Schenkl v. Dana 144 

Schenley v. Commonwealth 643 

Schenck v. Peay 17 

Schettiger v. Hopple 442, 451 

Schierhold v. North Beach, etc., R. 

R. Co 844 

Schlesinger v. Stratton 551 

Schmertz v. Shreeve 126, 134 

Schneider v. Norris 607 

Schneider v. Staihr 66 

Schmidt v. Coulter 219 

Schnitzel's Appeal 196, 214 

Schoettgen v. Wilson 14 

Schofield v. Ferrers 499 

Schofield v. Whitteledge 491 

Scholfieldv. Eichelberger 135, 137 

Scholefield v. Robb 560 

School Directors v. People 5 

School District v. Dauchy 544 

School District v. Lyford 6 

School District v . Tebbetts 35 

Schooner Freeman v. Buckingham. . 315 
Schotsman v. Lancashire, etc.. Ry. 

Co 321, 618 

Schroeder v. Gemeinder 788 

Schroeder v. Hudson River R. R. 

Co 318 



xciv 



TABLE OF CASES. 



PAGE. 

Scliroeppel v. Hopper 774 

Schroeppeil v. Shaw 237 

Schroyer v. Lynch 33 

Schuchardt v. Aliens 534 

Schulemberg v. Harriman 460, 478 

Schultz V. State 397 

Schultzer v. State 395 

Schurick v. Kollmau 734 

Schurtz V. Kleimmeyer , . , . 558 

Schutt V. Baker 557,636 

Schwartz v. Skinner 485 

Sell wear v. Haupt 451 

Schooley v. Fletcher 334 

Scott V. Billgerry 764, 766, 767, 831 

Scott V. Blood 114 

Scott V. Bradford 236 

Scott V. Brest. 377 

Scott V. Buchanan 69 

Scott V. Campbell 108, 150 

Scott V. Clark 364 

Scott V. Cook 656 

Scott V. Eastern Counties R. R. Co. . 590 

Scott V. Elmore 388 

Scott V. Guernsey 95 

Scott V. Harmon 634 

Scott V. Harris 240 

Scott V. Hix 561 

Scott V. McKinuish 760 

Scott V. Perkins o 1 

Scott V. Rayment 764, 709 

Scott V. Saffold 340 

Scott V. Stansfield 754 

Scott V. Uxbridge Ry. Co 583 

Scott V. Whitney 533 

Scottish, etc., R. R Co. v. Stewart. . . 273 

Scovil V. Kennedy 89 

Scranton v. Coe 675 

Scranton v. Stewart 71 

Screill v. Boxall 595 

Screven v. Clark 379 

Scroggin v. Holland 203 

Scruggs V. Blair 121 

Scrugham v. Carter 485 

Scudder v. Bradford 703 

Scudder v. Calais Steamboat Co 676 

Scudder v. Worster 494, 543 

Scull V. Briddle 719 

Scull V. Shakespear 674 

Sc wretzer v . Mayhew 433 

Sea Ins. Co. v. Stebbina 363 

Seager v. Burns 817 

Seale v. Soto 100 

Seaman v. Bigg 753 

Seaman v. Johnson 150 

Seaman v. Luce 499, 501 

Seaman v. Netherclift 754 

Seaman v. Vawdrey 815 

Seaman v. Waddington 135 

Seaman v. White 233 

Searle v. Galbruith 529 

Searle v. Lackawanna R. R. Co 299 

Searles v. Jacksonville, etc., R. R. 

Co 373 

Sears v. Laforce 214 



PAGE, 

Sears v. Van Dusen 227 

Seatou V. Cordray 733 

Seaver v. Dingley 639 

Sebring v. Mesereau ... 94 

Secomb v. Nutt 617 

Second Bank v. Poucher 227 

Secor V. Harris 729, 742 

Secretary v. McGarrahan 16 

Sedgwick v. Stanton 634 

Sedgwick v. Richardson 165 

Seed v. Lidener 191 

Seed V. Lord 54S 

Seely v. Blair 758 

Seeley v. Howard 805 

Seighortner v. Weissenborn. . . . 136, 139 

361 

Selby V. Selby 607 

Selden v. Myers 825 

Selden v. Vermilya 85 

Selfridge v. Gill 217 

Sellars v. Kinder 665, 669 

Sellers v. Killew 742 

Selma, etc., R. R. Co. v. Webb 313 

Selser v. Brock 303 

Semmes' Case 398 

Semmes v. Worthington 824 

Seneca Road v. Auburn R. R. Co. . . 295 

Senio.- v. Medland 757 

Servante v. James 685 

Servatius v. Pichel , . . 730 

Sessions v. Jones 154 

Seton V. Slade 803 

Severance v. Hilton 748 

Sevier v. Hill 643 

Sewall V. Catlin 757 

Sewall V. Fitch , 593 

Seward v. Beach 156, 161 

Sexton V. Brock 746 

Seymour v. Davis 594 

Seymour v. Delancy. . .763, 803, 804, 807 

Seymour v. Hubert 653 

Shackle v. Baker 770 

Shackelford v. Handley 515 

Shackelford v. Miller 648 

Shackleford v. Mississippi, etc., R.R. 

Co 283 

Shackleford v. Stockton 333 

Shackleton v. SutliflFe 813 

Shadley v. People 651 

Shaefer v. Gates 79 

Shaeller v. McKinstrey 204 

Shafer v. Davis 439, 440 

Sliakel v. Marlborough 871 

Shannon v. McMullin 245 

Shannon v. Taylor 820 

Sharmau v. Brandt 608 

Sharp v. Caldwell 208 

Sharj) v. Cropsey 52 

Sharp V. Embry 243 

Sharpe v. Foy 784, 819 

Sliarpe v. Robertson 23 

Sharpe v. Stephenson 758 

Sharp V. Whitteuhall 455, 463 

Sharpley v. Hurrell 686 



TABLE OF CASES. 



xcv 



PAGE. 

Shattuck V. Green 561 

Shattuck V. Hammond 671 

Shattuck V. Myers 667 

Shattuck V. People 403 

Shauss V. Meyer 752 

Shaw V. Bintard 244 

Shaw V. Boylan 107 

Shaw V. Coffin 73 

Shaw V. First Church 241 

Shaw V. Gookiu 721 

Shaw V. Livermore 803 

Shaw V. Loud 205 

Shaw V. Peckett 33 

Shaw V. Spencer 171, 175 

Shaw V. Thackray 785 

Shawhan v. Van Nest 573 

Shea V. Potrero & Bay View R. R. 
qq 33g 

Shea V.' Sixth aV.'r. r! Co'. '. '. '. ". '. *. *. *. 345 

Sheahan v. Collins 760 

Shearer v. Shearer 121, 143 

Shearer v. Winston 86, 99 

Shearick v. Huber 462, 464 

Shedd V. Troy, etc., R. R. Co. . . .312, 326 

Sheehan v. Collins 754 

Sheehan v. Gleeson 14 

Sheffer v. Montgomery 550 

Sheffield Gas Co. v. Harrison 769 

Sheffill V. Van Deusen . .732, 760 

Sheldon v. Capron 539 

Sheldon v. Newton 57 

Sheldon v. Smith 133 

Shelfer v. Gooding. 754 

Shelton v. Farmer 223 

Shelton v. Lake Shore, etc., Ry. Co. . 324 

Shelton v. Nance 755 

Shelton v. Pendleton 528 

Shelton v. Simmons 748 

Shelton v. Springett 52 

Shepard v. Ogden 207 

Shepard v. Rinks 84 

Shepardson v. Cary 574 

Shepard v. Payne 19 

Shepherd v. Bevin 787 

Shepherd v. Boyce 496 

Shepherd v. Chewter 708 

Shepherd v. Haralson 11 

ShepLerd v. Harrison 547 

Shepherd v. Kain 557 

Shepherd v. Pybus 565, 678 

Shepherd v. Shepherd 786 

Shepherd v. Staten 35 

Shepley v. Waterhouse 132 

Sheppard v. Oxenford 360 

Sheridan v. Brooklyn, etc., R. R. Co. 841 

Sheridan v. Medara 112 

Sherlock v. Ailing 724 

Sherman v. Champlain Transp. Co. . 561 
Sherman v. CTiicago, etc., R. R. Co. . 326 
Sherman v. Hudson River R. R. Co. . 335 
Sherman v. Milwaukie, etc., Ry. Co. 346 
Sherman v. Rochester, etc., Ry. Co. . 308 

Sherman v. Spencer 163 

Shermerhorn v. Jenkins 77 



PAGE. 

Sherraden v. Parker 234 

Sherrod v. Langdon 113 

Sherrod v. Woodard 224 

Sherwin v. Shakspear 812, 813 

Sherwood v. Hall 42 

Sherwood v. Saratoga, etc., R. R. Co. 281 

Sherwood v. St. Paul R. R. Co 120 

Shewmake v. Williams 523 

Shields V. Lozear 422, 436 

Shields v. Pettee 552, 624, 632 

Shields v. Trammell 780 

Shiff V. La. State Ins. Co 703 

Shimer v. Morris Canal, etc., Co. . . . 763 

Shinloub v. Ammerman 740 

Shinn v. Bodine 549 

Ship Elizabeth v. Bickers 720 

Shipley v. Todhunter 746 

Shipp V. McCraw 728, 744 

Shipton V. Thornton 698 

Shirley v. Fearne 134 

Shirley v. The Richmond 715 

Shively v. U. S 226 

Shively v. Welch 443 

Shoemaker v. Benedict 132 

Shoemaker v. Simpson 483 

Shoflfner v. Fogleman 211, 419, 420 

Shook V. State 243 

Shore v. State 398 

Shorey v. Rennell 723 

Short V. Hubbard 505 

Short V. Kalloway 206, 207 

Short V. Simpson 617 

Shotwell V. Smith 363 

Shoulty V. Miller 759 

Shreeve v. State 399 

Shrewsbury, etc., Ry. v. London, etc., 

Ry 332, 350 

Shrewsbury, etc., Ry. Co. v. North- 
western Ry. Co 281 

Shriver v. Lovejoy 245 

Shriver v. Stevens 314 

Shropshire v. Brown 778, 789 

Shropshire v. Burns 68 

Shufeldt V. Gustin 231 

Shugart v. Thompson 510 

Shuil V. Kennon 100 

Shultz V. Carter 210 

Shumway v. Sargeant 648 

Shurtz V. Schoolcraft, etc., R. R. Co. 275 

Shute V. Barrett 753 

Shute V. Chicago, etc., R. R. Co 296 

Shute V. Dorr 44, 58 

Shute V. McMahon 504 

Sibley v. Holden 88 

Sibley v. McAllister 237, 239 

Sibley v. Tomlins 743 

Sidgreaves v. Myatt 734 

Siebert v. Thompson 219 

Siegel V. Chidsey 137, 138 

Sieve Wright v. Archibald 603 

Siffkin V. Wray 613 

Sigerson v. Harker 575 

Sigourney v. Drury 132 

Sigourney v. Lloyd 175 



XC'V'l 



TABLE OF CASES. 



PAGE. 

Sikes V. Joliusou 73 

Sikes V. Quick 211 

Sikes V. Work IHl 

Silliman v. Lewis 713 

Silliman v. U. S 701, 702 

Silloway v. Brown 485 

Simmons v. Curtis lo6 

Simmons v. Swift r»76 

Simms v. Norris 65 

Simon V. Hailieigli 15 

Simon V. Lloyd 583 

Simond v. Braddon 557 

Simonds v. Strong 143 

Simonds v. Wheeler 207 

Simpkius v. Low 634 

Simpson v. Blunt 236 

Simpson v. Bovard 191 

Simpson v. Commonwealth .... 400, 651 

Simpson v. Crippin 624 

Simpson v. ]\Iari;:itson 569 

Simpson v. McFarland 474, 485, 500 

Simpson v. Ottawa, etc., Ry. Co 353 

Simpson v. Robinson 747, 753 

Simpson v. Wrenn 463, 471, 475 

Sims V. Canfield 167 

Sims V. Gurney 703, 704 

Sims V. Howell. , 563 

Sims V. Marrvat 560 

Sims V. McEwen 834, 831 

Sims V. Smitli 135 

Simson v. Cooke 194 

Sinclair v. Healy 637 

Sinclair v. Sinclair 77 

Sinclair v. Wood 114 

Skidmore v. Romaine 539 

Skidmore v. Taylor 461, 478 

Skiff V. Cross 2l4 

Skiff" V. Johnson 636 

Skillett V. Fletcher 231 

Skillin V. Merrill 223 

Skinner v. Dayton 117, 124, 136 

Skinner v. Grant 758 

Skinner v. Maxwell 71 

Skinner v. Tinker 135 

Skinner v. White 511 

Skinners Soc. v. Irish Soc 356 

Skipper v. Stokes 531 

Skipwith V. Dodd 798 

Slack V. Gibbs 159 

Slade V. Arnold 635 

Slater v. Willis 123 

Slatten v. Des Moines Valley R. R. Co. 302 

Slaughter v. Cunningham 75 

Slayton v. Russell 407 

Slee V. Manhattan Co 435 

Sleeper v. Pollard 573 

Sleigh V. United States 20 

Slemmer's Appeal 360 

Slice V. Derrick 83 

Hliver v. Shelback 80 

Sloan V. Moore 138, 155, 357 

Sloan V. Pacific R. R. Co 273 

Sloan V. Van Wyck C31 

Blocum V. Hooker 63, 66 



PAGE. 

Slowman v. Dutton 737 

Sluder v. Wilson 740 

Slutz V. Desenberg 426 

Small V. Bixley 503 

Small V. Clewley 740 

Small V. Hutchins 460 

Smallcombe's Case 514 

Smalley v. Hendrickson 632 

Smart v. Schnitter 341 

Smart v. Hunt 432 

Smalley v. Stark 750 

Smiley v. Allen 180 

Smith's Case 252 

Smith V . Addison 227 

Smith V. Alexander 215 

Smith V. Allison 376 

Smith V. Allen 146, 149 

Smith V. Anderson 189, 322 

Smith V. Argall 115 

Smith V. Arnold 604 

Smith V. Atkins 171 

Smith V. Austin 427 

Smith V. Barrow 150 

Smith V. Biug 197, 198, 316, 223 

Smith V. Brown 355 

Smith V. Clark 537 

Smith V. Colby 33 

Smith V. Commonwealth 242 

Smith V. Compton 206 

Smith V. Conrad 219 

Smith V. Crandall 794, 800 

Smith V. Crease 341 

Smith V. Dallas 540, 550, 588 

Smith V Day 384 

Smith V Derr's adm'rs 41 

Smith V. De Silva 684 

Smith V. Dunn 89 

Smith V. Evans 72 

Smith V Field 633 

Smith V Fleek's Appeal 788 

Smith V Gillett 570 

Smith V. Gould 690 

Smith V. Grant 488 

Smith V Green 627 

Smith V. Harrison 215 

Smith V. Hicks 220 

Smith V. Higgins 755 

Smith V Howard 754, 757 

Smith V. Hudson 598, 599, 600 

Smith V. Hughes 536 

Smith V Huntington 463, 488 

Smith V. Hurst , 371 

Smith V. James 181 

Smith V. Jeyes 106, 362 

Smith V. Johnson 776 

Smith V. Jones 583 

Smith V. Jordon 438 

Smith V. Justice 559 

Smith V. Kerr 134 

Smith V. Kitchens 407 

Smith V. Lewis 536, 571 

Smith V. Look 161 

Smith V. Low 375 

Smith V. Ludlow 133, 141 



TABLE OF CASES. 



XCVll 



PAGE. 

Smith V. Lyford 23 

Smith V. Lynes 548 

Smith V Lystel 393 

Smith V Lyster 369 

Smith V Mackiu 441 

Smith V Marsaclc 193 

Smith V Martiu 719 

Smith V Mayo 67 

Smith V Mayor, etc., of N. Y 1 

Smith V McDonald 79 

Smitu V McLeod 233 

Smith V. McVeigh 820 

Smith V Milburu 6GG 

Smith V Miller oS;; 

Smith V Milliken o9D 

Smith V Mitchell 649 

Smith V. Moberly 191, 190 

Smith V Morgan 495 

Smith V Moyneihan 110 

Smith V Myers 553 

Smith V. Neale 606 

Smith V. X. Y. Consolidated Stage 

Co 357,377,381, 393 

Smith V. N. Y. C. R. R. Co 593 

Smith V. New York, etc., R. R. Co. . 334 

Smith V. Pettus 521 

Smith V. Pittsburgh, etc.. R. R. Co. . 317 

Smith V Proviu 428 

Smith V. Ramsey 107, 119, 125 

Smith V. Rice 227 

Smith V. Richards 515, 677 

Smith V Rines 213 

Smith V. Rosencrantz 406 

Smith V. Rumsey 214 

Smith V. Schneider 217 

Smith V. Smith.. 16, 59, 85, 89, 101, 120 
121, 149, 222, 364, 633 

Smith V Sparrow 635 

Smith V Spooner 761, 762 

Smith V State 270, 401, 418 

Smith V Steele 199, 203 

Smith V Stewart 728 

Smith V Surman 596, 598 

Smith V Swain 213 

Smith V The Creole 724 

Smith V Thomas 753 

Smith V Thompson 25 

Smith V. Trawl 31 

Smith V. Van Houten 77 

Smith V. Wells 373 

Smith V Winston 502, 645 

Smith V. Wood 794 

Smith V. Wyman 747 

Smith V. Young 64 

Smithurst v. Edmunds 170 

Smoot V. Ilea 793 

Smoot V. United States 551 

Smyth V. Tankersley. 33 

Snediker v. Poorbaugh 734 

Snee v. Prescott 615 

Snell V. DeLand 110 

Snell V. Mitchell 765, 776 

Snell V. Snow 743, 750 

Snively v. Luce 83 

Vol. v.— m 



PAGE. 

Snow V. Witcher 734, 758 

Snowden v. Dunlavey 88 

Suowden V. State 412 

Snowman v. Harford 804, 818 

Snyder v, Dagant 739 

Snyder v. May 134 

Snyder v . Neef us 607 

Snyder v. Vaux 466, 478 

Society v. Gibb 144 

Society v. Imlay 234 

Soles V. Hickman 604 

Solomon v. Central Park, etc., R. R. 

Co 345 

Solomon v. Fitzgerald 121 

Solomon v. Gregory. ... 246 

Solomon v. Neidig 632 

Solomon v. Reese 222 

Somerby v. Buntin 105, 109 

Sonierville v. Hawkins 756 

Somerville v. Marbury 234 

Somerville v. The Francisco 721 

Somerville Ry. v. Doughty 297, 298 

Somes V. Directors, etc 174 

Sonnebom v. Bernstein 748 

Sooy V. State 5 

Sortwell V. Hughes 159 

Soule V. Union Bank 239 

Soules V. Burton 125 

Souley V. Burns 610 

South V. Denniston 657, 660, 663 

South V. Maryland 754 

South comb v. Bishop of Exeter 811 

Southee v. Denny 729, 743 

Southgate v. Atlantic, etc., R. R. Co. 15 

Southern v. Cunningham 551 

Southern v. Grim 144 

Southern Life Ins. Co. v. Cole . .595, 789 
Southern Minn. R. R. Co. v. Stod- 
dard , 293 

Southern Plank Road Co. v. Hixon, 

478, 485 

Southeastern Ry. v. The Queen 308 

Southwestern R. R. Co. v. Paulk 281 

Southwestern Freight Co. v. Plant, 

581, 621 
Southwestern Freight Co. v. Stanard, 621 
South Australian Ins. Co. v. Randell, 532 

South Carolina Ry. v. Blake 295 

South Wales Rv. Co. v. Redmond. . . 280 

South Wales Ry. Co. v. Wythes 768 

South wick V. Beach 753 

Southworth v. Sebring 577 

SpafiFord v. Dodge 702, 707 

Spaulding v. Alexander 816 

Sparks v. Hall 233 

Sparkes v. Marshall 545 

Sparks v. Messick 556, 561 

Spartali v. Benecke 631 

Spaulding v. Chicago, etc., Ry. Co. . . 328 

Spaunhorst v. Link 137 

Spear v. Cummiugs 60 

Spear v. Newell 151, 152 

Speer v. Bishop 144 

Speer v. Speer 95 



XCVlll 



TABLE OF CASES. 



PAGE. 

Speight V. Oliviera 663 

Speights V. Peters 355, 361 

Speiglemeyer v. Crawford 515 

Spence v. Barclay 222 

Spence v. Duren 515 

Spencer V. Billing 113 

Spencer v. Hale 573, 600 

Spencer v. Hartford, etc., R. R. Co . . 803 

Spencer v. McMaster 738, 734 

Spencer v. Roberts 473 

Spencer v. St. Clair 509, 532 

Sperry v. Wilcox 759 

Speyer v. The Mary Belle Roberts . . 699 

Spickler v. Marsh 538, 551 

Spiller V. Creditors 213 

Spooner v. Brewster 580 

Spooner V. Keeler 739, 754 

Sprauge v. Clark 466, 467, 476, 484 

Sprauge v. Kneeland 495 

Sprauge v. Smith 335, 385 

Sprauge v. Zunts. 130 

Sprigg V. Bank 187. 243 

Sprights V . Peters 155 

Spring V. Bourland 469, 479, 488 

Springer v. Springer 217 

Springer v. Toothaker 383, 245 

Springfield v. Conn. River R. R, 

Co 290 

Springle v. Shields ^ 779 

Springs v. Sanders 778 

Springstead v . Lawson 567 

Sprott V. Reid 104 

Spunnerv. Walsh 813 

Spurr V. Benedict 795 

Squires v . Payne 576 

Stacey v. Vermont Cent. Ry 280 

Stafford v. Green 740 

Stainbank v . Penning 686 

Stainton v. Carron Co 366 

Stall V. Catskill Bank 180 

Stallings v . Newman 732 

Stallworth v . Preslar 221 

Stamford Bank v. Benedict 216 

Stanley v . Neale 476 

Stanton v. Austin 568 

Stanton v. Eager 618 

Stanton V. Mille 789 

Stanton V. Willson 51, 64 

Stan wood v. Whitmore 752 

Staples V. Bradley 87 

Stapp V. Anderson 578 

Stapp V. The Swallow 726 

Stark V. Burke 359 

Starkweather v. Quigley 164 

Starnes v . Allison 803 

Starnes v. Newsom 768 

Starr v. Commonwealth 413 

Starr v. Vanderheyden 38 

Startup V. Macdonald 570 

State V. Alford 44 

State V. Allen 3, 13 

State V. Ashley 267 

State V . Atherton 19 

State V. Austin 398 



PAGE. 

State V. Baird 43 

State V . Bankston 4 

State V. Beecher 367, 368 

State V. Benton 407 

State V. Bierce 655, 669 

State V. Bishop 160 

State V. Boal 10, 265 

State V. Boecker 13 

State V. Borroum 204 

State V. Boston, etc., R. R. Co 366 

State V. Bradley 403 

State V. Brown. . . .263, 368. 369, 408, 651 

State V. Cahaba 365, 371 

State V. Carroll 7 

State V . Casey 401 

State V. Cheeseman 43 

State V. Cincinnati, etc., Co 364 

State V. City Council 265 

State V. City of Newark 3 

State V. City of Paterson 14 

State V. Clark 251 

State V. Clerk of Passaic 259 

State V. Clinton, etc., R. R. Co 381 

Statev. CofiFee 264 

State V. Columbia, etc., R. R. Co . . 253 
State V. Commissioners of Mansfield, 285 
State V. Commissioners of Roads . . . 254 

State V . Common Council 13 

State V. Cone 407 

State V. Conklin 266 

State V. Cooper 5, 14 

State V . County Court 5 

State V . Cripe 24 

State V. Crowley 409 

State V. Curtis 263 

State V . Davis 2 

State V. Dawson 399 

Statev. Dews 1 

State V . Dimick 63 

State V. Doherty 12, 58 

State V. Douglas 11 

State V. Ely 5 

State V. Falconer 5 

State V. Fisher 260 

State V. Fitts , 13 

State V . Gardner ... 363 

State V. Gary 249, 251 

State V. Gibson 403 

State V. Gleason 264, 267 

State V. Glaevecke 401 

State V. Goold 317 

State V. Hammond 245 

State V. Hardie 264 

State V. Hauss 11 

State V. Heed 647 

State V. Hiney 411 

State V. Hinson 417 

State V. Hitchcock 16 

State V. Hotchkiss 400 

State V. Houston 395, 405 

State V. Howe 10 

State V. Iloyt 3 

State V. Humphreys 200 

State V. Irwin 3 



TABLE OF CASES. 



XCIX 



PAGE. 

State V. Jackson 4 

State V. Jacobs 266 

State V. Jefferson 15 

State V. Johnson 269 

State V. Jones 13 

State V, Judge 250, 253 

State V. King 569 

State V. Kingan 261 

State V. Kromer 271 

State V. Kupferle 259 

State V. Kill Cuck Turnp. Co 264 

State V. Lavel 419 

State V. Lawrence 266 

State V. I^earnard 58 

State V. Lewis 9 

State V. Loeb 400 

State V. Lyons 260 

State V. Mackey 408 

State V. Marshall 400 

State V Matheny 31 

State V. Mayor, etc., of Jersey Citv. . 157 

State V. McAllister '. . . 407 

State V. McDaniel 268 

State V. Mcneal 414 

State V. McNeely 8 

State V. Messmore 259 

State V. Meyers 653 

State V. Miami Exporting Co 268 

State V. Mills 398 

State V. Miller 298 

State V. Mitchell 250 

State V. Moffit 265 

State V. Montclair Ry. Co 287 

State V. Montgomery 398 

State V. Moody 408 

State V. Morgan 396 

State V. Morris, etc., R. R. Co 301 

State V. Nathan 252 

State V. New Haven, etc., R. R. Co. . 273 

State V. Northern Cent. R. R. Co 357 

State V. Noyes 272 

State V. Overton 324 

State V. Palmer 263 

State V. Patterson, etc., Turnp. Co. . 264 

State V. Pawtuxet Turnp. Co 267 

State V. Pearcy 10 

State V. Peck 6 

State V. Pendergrass 44 

State V. Pepper 192 

State V. Pettaway 48 

State V. Poston 414 

State V. Price 204 

State V. Prup 440 

State V. Queen 30 

State V. Real Estate Baak 264 

State V. Rhoades 5 

State V. Rhodius 401 

State V. Richardson 414 

State V. Ridgell 2o2 

State V. Rives 283, 286, 289 

State V. Rollins 407 

State V. Root 402 

State V. Ross 324 

State V. Rosseau 414 



PAGE. 

State V. Schnierle 262 

State V. Schulein 631 

State V. Shean 670 

State V. Shideler 405, 416 

State V. Shumpert 48 

State V. Simons 250 

State V. Smith 161, 265, 395, 407 

State V. Stanley 1, 4 

State V. Steers 38 

State V. Stewart 262, 266 

State V. Stone 258 

State V. Stout 395, 4l7, 647 

State V. Stumpf 269 

State V. Sullivant 401 

State V. Summons 398 

State V. Sutherland 667, 670 

State V. Tate 34 

State V. Taylor 264, 270 

State V. The Judge of County Court, 252 

State V. Tierney 3, 268 

State V. Tolan 262 

State V. Tombeckbee Bank 159 

State V. Vail 268 

State V. Van Pelt 231 

State V. Vermont, etc., R. R. Co 301 

State V. Wakely 252 

State V. Walker 409 

State V. Weatherwax 61, 395 

State V. Weaver 398 

State V. Wells 401 

State V. Wheadon 304 

State V. Whitaker 399 

State V. Wiley 185, 228 

State V. Wilson 1 

State V. Young 400 

State Bank v. Davis 196 

State Bank v. Edwards 234 

State Bank v. Robinson 204 

State Bank v. Thompson 129, 635 

State Treasurer v. Cook 399 

State Treasurer v. Danforth 396 

State Treasurer v. Rice 398 

State of Illinois v. Delafield 365 

State Prison Keepers 639 

Staunton v. Wood 569 

Steamboat Orleans v. Phoebus 685 

Steamer Petrel v. Dumont 725 

Stearns v. Haven 114 

Stearns v. Marsh 172 

Stearns v. Raymond 460 

Stedmau v. Boone 193 

Stedman v. Gooch 583 

Steedman v. Rose 65 

Steedman v. Weeks 88, 89 

Steel V. Southeastern Ry 309 

Steele v. Boyd 231 

Steele v. Branch 804 

Steele v. Cobham 366 

Steele v. Mealing 219 

Steele v. Phillips 758 

Steelman v. Taylor 696 

Steen v. State 401 

Steer v. Field 33 

Stees V. Kemble 730 



TABLE OF CASES. 



PAGE. 

Stegall V. Coney 131 

Stegall V. Stegall 48 

Stein V LaDow 133 

Stein V. Robertson 118, 119, 124 

Steinbach v. Relief Fire Ins. Co 450 

Steinman v. McWilliams 750 

Steinuietz v. U. S. Ins. Co 677 

Stephens v Orman 524 

Stephens v. Santee 586, 593 

Stephenson v. Hall 46, 76 

Steohenson v. New York & Harlem 

R. R. Co 313 

Stephenson v. Piscataqua, etc., Ins. 

Co 676 

Stephenson v, Stephenson 80 

Stephenson v. Taylor 515 

Sterling v. Adams 74 

Sterling v. Baldwin 596 

Sterling v Jandon 126 

Sterling V. Nevassa Phosphate Co . . 682 

Stern v. Katz 737 

Stetson V. Chicago, etc., R. R. Co 296 

Stevens v. Bell 183 

Stevens v. Boston, etc., R. R. Co 547 

Stevens v. Campbell 235 

Stevens v. Cooper 797 

Stevens v. Enders 90, 95 

Stevens v. Erie R. R. Co 294 

Stevens v. Faucet 108 

Stevens v. Hay 406 

Stevens v. Hurlbut Bank 176 

Stevens v. Jackson 189 

Stevens v. Oswego, etc., R. R. Co. . . . 330 

Stevens v. Stewart 576 

Stevens v. Yeatman 137 

Stevenson v. Belknap 662 

Stevenson v . Buxton 780 

Stevenson v. Hayden 729 

Stevenson v. Maxwell 812 

Stevenson v. Ridgely 488 

Stevenson v. Taylor 487 

Steward v. Allen 046 

Stewart's Appeal 91, 281 

Stewart v. Behm 185 

Stewart v. Bland 451 

Stewart v. Emerson 630 

Stewart v. Howe 728. 732 

Stewart v. Hutchinson 820 

Stewart v. Mayor, etc., of Baltimore. 800 

Stewart v. Mizell 102 

Stewart v. Parker 240 

Stewart v. Peterson 644 

Stewart v. Raymond R. R. Co 348 

Stewart v. Vaughan 204 

Stewart v. Wills 458 

Stich V. Wisedome 732 

Btieber v. Wensel 734 

Stief v. Hart 182 

Stiles V. Eastman 222 

Stiles V. iQranville 55 

Stiles V. Griffith 469, 488 

Stiles V, Tilford 665 

Stille v. Wood 64:5 

Stillman v. Squire 481, 483 



PAGE 

Stillwellv. Adams 580 

Stilwell v. Barter 758 

Stillwell V. Bowling 570 

Still well V. Wilkins 368 

Stinson v. Breunan 205 

Stimson v. Lewis 118 

Stinson v. Minor 681 

Stinson v. Wyman 720 

Stirling v. Forrester 196 

Stirling v. Loud 685 

Stitwellv. Williams 353 

Stitzell v. Reynolds 730, 738, 741 

Stivers v. Home 523 

Stoallings v. Baker 110 

Stober v. Green 743 

Stockdale v. Ullery 129, 154 

Stockett v. Holliday 783 

Stock v. Dobson 432 

Stockton V. Shasta 27 

Stockton, etc., R. R. Co. v. Stockton. 277 
Stockton V. Union Oil Co. . .780, 792 815 

Stock well V. Dillingham 131 

Stoddard v. Oilman 498 

Stoddart v. Smith 791, 803, 814 

Stodghill V. Chicago, etc., R. R. Co. 292 

301 

Stoker v. Brock lebank 768 

Stokes V. Arey 738 

Stokes V. Brown 61, 67 

Stokes V. Middleton 102 

Stokes V. Perry 405 

Stokes V. Recknagel 578 

Stokes V. Stevens 131 

Stollenwerck v. Thacher 695 

Stone V. Augusta 31 

Stone V. Bartlett 431 

Stone V. Bird 483 

Stone V. Browning 579, 580, 598, 599 

Stone V. Buckner 221, 818 

Stone V. Carr 50, 52 

Stone V. Chamberlain 141 

Stone V. Clark 738 

Stone V. Commercial Ry 348 

Stone V. Dennison 63 

Stone V. Fairbury, etc., R. R. Co 303 

Stone V. King 578 

Stone V. Marsh 528 

Stone V. Peacock 541 

Stone V. Perry 548 

Stone V. Pointer 561 

Stone V. Riddell 408 

Stone V. State Bk 247 

Stone V. Stone 56 

Stone V. Wilson 455 

Stone V. Wishart 377 

Stoner v. Stroman 649 

Stoneham, etc., R. R. Co. v. Gould. . 275 

Storer v. Great Western Ry. Co 763 

Storey v. Challands 751 

Storms v. Smith 561 

Storms v. Thorn 245 

Story v. Conger 441 

1 Story V. Johnson 70 

Story V. Norwich, etc., R. R. Co 773 



TABLE OF CASES. 



ci 



PAGE. 

Story V. Perry 64, 78 

Stothoff v.- Dunham 321, 223 

Stoughton V. Lynch 124 

Stout V. Fortner 148 

Stout V. Merrill 72 

Stout V. Sioux City, etc., R. R. Co. . . 60 

Stout V. Vause 220 

Stoutenburgh v. Konkle 640 

Stoutenburgh v. Tompkins. 794, 795, 836 

Stowv. Russell 808 

Stowell V. Goodenow ...... 241 

Strader v. Houghton 235 

StrafiTord Bk . v. Crosby 246 

Strang, Ex parte 7 

Strang v. Aliens 429 

Strang v. Welch 452 

Stratton v . Allen 480 

Straughan V. Wright 99 

Straus V. Ross 541 

Strauss v. Myer 731 

Street v. Anderton 369 

Street v. Blay 580, 63o 

Street v. Chapman 533, 563 

Street v. Dow 516 

Street v. Rigby 773 

Streety v. Wood 755 

Strieker v. Tinkham 441 

Strickler v. Burkholder 235 

Strickland v. Parker 279 

Strickland v. Turner 531 

Stringfellow v. Williams 245 

Strohecker V. Alabama, etc., R. R. 

Co . . . 292 

Strohl V. Levau 53 

Strong V. Blanchard 433 

Strong V. Firemens Ing. Co 708 

Strong V. Foote 65, 528 

Strong V. Lawler 491 

Strong V. Lee 650 

Strong, Petitioner 259 

Strong V. Stebbins 163 

Stroud V. State , 403 

Strutliers v. Pearce 125 

Stryker v. Lynch 90 

Stuart V. Baker 84 

Stuart V. Coalter 99 

Stuart V. London, etc. Ry. Co 820 

Stucker v. Yoder 61, 71 

Stucley V. Bailey. . . 556 

Studwell V. Shapter 62 

Stull V. Hance 189 

Stumm V. Hummell 667 

Sturgess v. Cary 703 

Sturges V. Mait"land 163 

Sturgis V. Spofford 104 

Sturgenegger v. Taylor 738 

Sturtevant v. Milwaukee, etc., R. R. 

Co 348 

Suber v. Pullin 507 

Succession of Andrew 138 

Succession of Whitehead 221 

Sudbury v. Stearn.s 259, 462, 485 

Sugarman v. State 653 

Sugg V. Stowe 829 



PAGE. 

Sugg V. Thrasher 37 

Suit V. Woonhall 637 

Sulakowski v. Flint 699 

Sulliugs V. Sullings 803 

Sullivan v. Tuck 766 

Summers v. Bean 625, 766 

Summers v. Mills 534 

Summers v. Vaughn 555 

Summerhill v. Tapp 237 

Sumner v. Beeler 29 

Sumner v. Cook 501 

Sumner v. Cummings 159 

Sumner v. Hamlet 674 

Sumner v. Parker 101 

Sumner v. Woods 548, 637 

Sunmau v. Brewin 758 

Supervisors v. Otis 238 

Supervisors of Portage v. Wisconsin, 

etc.,R. R. Co 281 

SutclifFe V. Dohrman ... 148 

Sutherland v. Sutherland 437 

Sutphen v. Fowler 766, 830 

Sutton v. Ballou 575 

Sutton V. Bowker , 697 

Sutton V. Crosby 605 

Sutton V. Hoffman 656 

Sutton V. Jones 377 

Suydam v. Clark 540 

Suydam v. Grand Street, etc., Ry. Co 345 

Suydam v. Owen 143 

Suydam V. Smith 164 

Suydam v. Vance 246 

Swaby v. Dickon 890 

Swain v. Fidelity Ins. Co S07 

Swain v. Senate 25 

Swain v. Shepherd 543 

Swaisland v. Dearsley 796 

Swann v. Buck 9 

Swan V. Patterson 218 

Swan V. Steele , 129 

Swancott v. Westgarth 583 

Swasey v. Vanderheyden 67 

Swearengen v. Magruder 496 

Sweeney v. O'Hora 765 

Sweet V. Hulbert 250, 253 

Sweet V. Pym 612 

Sweetser v. French 130 

Sweetzer v. Mead 502 

Swepson v. Rouse 819, 833 

Swett V. Bussey. 104 

Swezey V. Lott 34 

Swift V. Brownell 712 

Swift V. Duffield 56 

Swire V. Leach 181, 182 

Swire v Redman 186, 241, 246 

Switzer v. Heinn 726 

Switzer v. Smith 148 

Syeds v. Hay 321 

Sykes v. Giles 584 

Sykes v. Hastings 377, 390 

Sykes v. Lawlor 47 

Sylvester V. Smith 114 

Sylverstein v. Atkinson 129 

Symonds v. Carter 784, 753 



cu 



TABLE OF CASES. 



Symonds v. Kimball. 



PAGE. 

. . 104 



Tabler v. Wiseman 90 

Taft V.Pike 72 

Taft V. Sergeant 68 

Taft V. Stetson 433 

Taggart v. Hart 469, 488 

Taggard V. Loring 122, 675 

Taggart v. Western, etc., R. R. Co . . 276 

Tainter v. Lombard 550 

Tait V. Culbertson 745 

Talbott V. Rudisill 654 

Talbot V. United States 21 

Talcott V. Belding 480, 484 

Tallman v. Franklin 604 

Talmage v. Burlingame 195 

Talty V. Freedman's Saving & Trust 

Co 175 

Talvande v. Cripps 492 

Tandy v. Rowell 651 

Tauer v. Ivie 77 

Taney v. The Louisiana 713, 715 

Tanner v. Niles 96, 103, 104 

Tanner v. Oil Creek R. R. Co 311 

Tanner v. Scovell 622 

Tausley v. Turner 543, 576 

Tapley v. Butterfield 127 

Tapley v. Martin 192, 239 

Tappan v. Bailey 117 

Tappan v. Brown 21 

Tappan v. Gray 37, 357, 375 

Tarbell v. Central Pacific R. R. Co. . 323 

Tarbox v. Eastern Steamboat Co 695 

Tarr v. Scott 788 

Tasburgh v. Day 761 

Tasker v. Small 797 

Tate V. Wymond 243 

Tattan v. Great Western Ry 323 

Tattersall v. Groote 139 

Tatum V. Bonner 189 

Tatum V. Tatum 217 

Taunton Copper Co. v. Merch. Ins. 

Co 703 

Tayloe v. Merchants' Fire Ins. Co. . . 534 

Taylor v. Bank of Kentucky 202. 203 

Taylor v. Beck 236 

Taylor v. Bullen 677 

Taylor v. Castle 118, 138 

Taylor v. Chichester, etc., Ry. Co . . . 280 

Taylor V. Church 147, 745, 746 

Taylor v. Clemson 284 

Taylor v. Coffing 123 

Taylor v. Davis 235 

Taylor v. Doremus 16, 35 

Taylor v. Ilarwood 70!) 

Taylor v. Henderson 114 

Taylor v. Jenkins 489 

Taylor v. Jeter > 234 

Taylor v. Johnson 231 

Taylor v. Knecland 748 

Taylor v. Moore 490 



PAGE. 

Taylor v. Moran 744 

Taylor v, Morrison 223, 225 

Taylor v. Morton 29 

Taylor v. Neville 767 

Taylor v. New York, etc., R. R. Co. . 288 

Taylor v. Oldham 377 

Taylor v. Rasch 116 

Taylor v. Rowland 79, 779 

Taylor v. Savage. 221, 222 

Taylor v. Short 737 

Tay]or v. State 417 

Taylor v. Steamboat Robert Camp- 
bell 534 

Taylor v. True 465 

Teagle v. Deboy 743, 753, 758 

Teague v. Williams 750 

Teeter v. Pierce 219, 223 

Tempest v. Chambers 732 

Tempest v. Ord 383 

Temple v. Johnson 799, 800 

Ten Broeck v. Sloo 388 

Ten Eyck v. Cased 432 

Ten Eyck v. Holmes 199 

Tennessee, etc., R. R. Co. v. Adams, 

294, 347, 348 

Tenney v. Clement 733 

Tenney v. State 27 

Tenney v. State Bank 679, 793, 831 

Tenny v. The N. E. Prot. Union 117 

Terre Haute, etc., R. R. Co. v. Fitz- 
gerald 311 

Terre Haute, etc., R. R. Co. v. Gra- 
ham 311 

Terrell v. Farrar 779 

Terrell v. Goddard 155 

Terrell v. Hunter 191 

Terrett v. Cowenhoven 793 

Terrill v. Boulware 103 

Territory v. Lockwood 263 

Terry v. Bissell 564 

Terry v. Bright 734 

Terry v. Fellows 754 

Terry v. Hooper 743 

Terry v. Hutchinson 659 

Terry v. Stauffer 263 

Terwilliger v. Wands 731 

Tessou v. Atlantic Mut. Ins. Co 450 

Tessimond v. Yardley 256 

Tevis V. Richardson 777 

Tewksbury v. Bennett 555 

Thacher v. Boston Gas Light Co 701 

Thayer v. Buffum 146 

Thayer v. Dwight 173, 181 

Thayer v. Lane 99 

Tliayer v. Lapham 540 

Thayer v. Luce 604 

The Att'y. Gen. v. Case 724 

The Queen v. Saddlers Co 614 

The State v. Lehre 259, 261 

The State v. Wadkins 261 

Thetford v. Hubbard 583 

The Acme 680 

The A. M. Bliss 701 

The Almatia 722 



TABLE OF CASES. 



cm 



PAGE. 

The Amelia 675, 676 

The Antoinetta C 700 

The Armadillo 687 

The Atlas 686 

The Aurora 687, 689 

The Australia 722 

The Avon 726 

The Balize 723 

The Bark Rajah 721 

The Betsey 690 

The Blohm 682 

The Boston 688 

The Bridgeport 709 

The Brig Ann C. Pratt 688 

The Brig Draco 686, 687 

The Brig Hunter 690 

The Bristol 712 

The Brutus 673 

The California G95 

The Calypso 690 

The Carroll 713 

The Carolus 724 

The Catharine 676 

The Catawanteak 723 

The Champion 726 

The Christina 722 

The Chusan 692 

The Circassian 688, 726 

The City of New York 714 

The Clarita and the Clara 709 

The Cognac 686 

The Congress 706 

The Constancia 690, 691 

The Constantia 614 

The Continental 711, 712 

The Copenhagen 704, 707 

The Corsica 715 

The Costa Rica 700 

The Dawn 677 

The Dexter 710, 713 

The Dubuque 716, 720, 725 

The Duke of Bedford 687 

The Dundee 677 

The Earl Spencer 712 

The Eclipse 725 

The Eledoua 688, 718 

The Eliza 690 

The Eliza Ladd 673, 674 

The Emily Souder 725 

The Empire State 711, 712 

The Ericson 723 

The Ethel 700 

The Eureka 689 

The Fairbanks 714 

The Farragut 715 

The Francis King 717 

The Free State 713 

The Fremont 710 

The Galloway C. Morris 725 

The Garnet 723 

The Gate City 725 

The George 724 

The Glasgow 676 

The Glover 697 



PAGE. 

The Gold Hunter 693 

The Grace Greenwood 681 

The Grapeshot 688, 717 

The Gratitudine 690, 691, 704, 717 

The Gray Eagle 712 

The Heart of Oak 689 

The Hercules 726 

The Hermine 722 

The Hermon 722 

The Hero. 689 

The Hoop 34 

The Hunter 689 

The Huutsville 713 

The Jane 688, 692 

The Jerusalem 690 

The Johnson 713, 714 

The J. F. Spencer 725 

The John L. Hasbrouck 714 

The Joseph Grant 718 

The Juniata Paton 720 

The Kennersley Castle 688 

The Lady Franklin 710, 715 

The Larch 684 

The Lord 699 

The Lord Cochrane 719 

The Louisa Bertha 690 

The Louis Dole 714 

The Lulu 688, 718 

The Madonna D'Idra 722 

The Magnet 723 

The Maria 675, 724 

The Maria Martin 710 

The Mary 687, 690 

The Mary Ann 687 

The Mary Bell 725 

The Mary Elizabeth 725 

The Mary Merritt 673 

The Mary Washington 698 

The Milwaukee 710 714, 715 

The Milwaukie Belle 706 

The ]\Iinerva 722 

The Mohawk 698 

The Monongahela 720 

The M . K. Rawley 695 

The Nathaniel Hooper 696 

The Nelson 688 

The Nimrod 704 

The Northern Belle 693 

The Nostra Senora del Carmine 691 

The Ocean Wave 720 

The Gibers 699 

The Omer 726 

The Orelia 687, 690 

The Oriental 688 

The Oriflame 716 

The Osmanli 691 

The Packet 689, 690 

The Peerless 724 

The Peyton a 698 

The Planter 700 

The Plvmouth Rock 725 

The Porter 713 

The Port Tenant Co 142 

The Potomac 714 



CIV 



TABLE OF CASES. 



PAGE. 

The Rapid 135 

The Reliance 690 

The Rhadamanthe 690 

The Richard Matt 723 

The Ringleader 721 

The Robert L. Lane 688 

The Rochambeau 722 

The Royal Stuart 688, 689, 690 

The R. G. Winslow 720 

The R. W. Burrowes 712 

The Rubicon 689 

The Same 388 

The Sam Gaty 710 

The Santa Claus 711 

The Sarah Harris 725 

The Sarah J. Weed 725 

The Schooner Sarah 693 

The Schooner Tilton 676 

The Schooner Zephyr 690, 691 

TheScio 681 

The Scotia 711 

The Scottish Bride v. The Anthony 

Kelley ; 711 

The Senator 718 

The Ship Fortitude 688 

The Ship Lavinia Barclay 689 

The Ship Moslem 722 

The Ship Nathaniel Hooper 707 

The Ship Packet 690, 691, 721 

The Sicoto 709 

The Star of Hope 700, 702, 708 

The Steamboat New Jersey 699 

The St. J. Indiano 673 

The St. Lawrence 725 

The Sydney Cove 690 

The Tangier 725 

The Tarter 689 

The Thames 697 

The Tobago 692 

The Trident 690 

The Una 717 

The Tillie 714 

The Vaugh and Telegraph 624 

The Vcloua 719 

The Vibilia 689, 690 

The Victoria 711 

TheVille de Paris 697 

The Virgil 709 

The Virgin 688, 689, 690 

The Wave 699 

The Washington Irving 688, 718 

The Western Metropolis 714 

The Williams 725 

The William Carey 676 

The Woodland 682, 718 

The Woodrop 709 

The Yuba 688, 689 

The Zola 722 

Thing v. Libbey 67 

Thomas v. Bartow 632 

Thomas v. Bickman 205 

Thomas v. Churton 755 

Thomas v. Cleveland 232 

Thomas v. Dering . . . 782, 831 



PAGE,' 

Thomaa v. Dike 76 

Thomas v. Evans 583 

Thomas v. Foyle 675 

Thomas v. Garvan 85 

Thomas v. Jackson 729, 743 

Thomas v Mead 249 

Thomas v Pullis 68 

Thomas v. Sheppard 513 

Thomas v. Spafford 506 

Thomas v Wilson 506 

Tliombleson v. Black 771 

Thompson v. Adams 223, 228 

Thompson v. Alger 603 

Thompson v Baltimore, etc., R. R. Co. 573 

Thompson v. Barkley 758 

Thompson v. Bernard 737, 740 

Thompson v. Botts 629 

Thompson v. Bowers 758 

Thompson v. Bowman 120 

Thompson v. Bruen 803 

Thompson v. Buckhannon 204 

Thompson v. Button 460 

Thompson v. Chunney 551 

Thompson v. Cincinnati, etc.,R. R. Co. 574 

Thompson v. Clendenning 666, 671 

Thompson v. Conover 587 

Thompson v. Currier 33 

Thompson v. Deane 773 

Thompson v. Diifenderf er 356 

Thompson v. Dougherty. . . 644, 645, 648 

651 

Thompson v. Finden 685 

Thompson v. Grimes 750 

Thompson v. Hall 237 

Thompson v. Haskins 685 

Thompson v. Howe 160 

Thompson v. Jackson 510 

Thompson v. Lay 67 

Thompson v. Lyon 57 

Thompson v. McDonald 237 

Thompson v. New Orleans, etc., Ry.. 309 

Thompson v. Palmer 188 

Thompson v. Patrick 174 

Thompson v. Ray 547 

Thompson v. Raymon 604 

Thompson v. Rose 630 

Thompson v. Ross 656, 658 

Thompson v. Sherrard 875 

Thompson v. State 400 

Thompson v. Stewart 615 

Tliompson v. Strickland 70 

Thompson v. Thompson 614 

Thompson v. Vanvechten 364 

Thompson v. Young 663 

Thomson v. Cook 681 

Thomon v. Tracy 250, 253, 255 

Thorn v. Hicks 679 

Thorn v.Moser 758 

Thorn v. Thorn 120 

Thornbury v. Bevill 769 

Thornbury v. Madren 227 

Thoriidike v. Stone 687, 691 

Thorne v. McVeagh. . 555, 556 

Tliorne v. White 717 



TABLE OF CASES. 



cv 



PAGE. 

Thornton v. Thompson G2G 

Thornton v. Thornton 90 

Thornton v. U. S. Ins. Co 704, 708 

Thornton v. Wynu 629, 63:J 

Thornton v. York Bank lOo 

Thorp V. Pettit 803 

Thorp V. The J. D. Martin G81 

Thrall v. Wright 65, 529 

Throgmorton v. Davis 748 

Thrower v. Vaughan 27 

Thrupp V. Fielder 70 

Thurston v. Arnold 7G5 

Thurston v. James 232 

Thurston v. Minke 95 

Thurston v. Prentiss 205, 207 

Thurston v. Spratt 5G1 

Tibbals v. Sargeant 358 

Tibbets v. Gerrish G8 

Tibbetts v. Flanders 168, 170 

Tibbits V. Tibbits 104 

Tibbs V. Allen 100 

Tice V. Norton 49G 

Tide Water Canal Co. v. Archer .... 297 

Tierney v. State 400 

Tiernan v. Granger 824 

Tiffany v. Breese 649 

Tiflt V. Tifft 53 

Tilden v. Minor 578 

Tilford V. Ramsey 145 

Tillett V. Charing Cross Co 285 

Tillinghast v. Champlin 362, 379 

Tilt V. La Salle Silk Manf . Co 580 

Tiltou V. Palmer 96 

Tilton V. Tilton 822 

Tilton Safe Co. v. Tisdale 512, 630 

Timmons v. Nelson 549 

Tindall v. Bell 206, 208 

Tindall v. Carson 653 

Tindal v. Drake 92 

Tinkcom v. Lewis 431 

Tinney v. Stebbins 99 

Tinsman v. Belvidere, etc., R. R. Co. 286 

Tipton V. Tipton 61 

Tisdale v. Harris 595 

Tison V. Howard 694 

Titman v. Titman 45, 55 

Titus V. Sumner 747, 748 

Titus V. Todd 145 

Tobey v. County of Bristol 773 

Tobiu V. Wilson 201 

Todd V. Gee 764 

Todd V. Lee 370 

Todd V. Lorah 131 

Todd V. Miller 376 

Todd V. Taft 625, 767 

Toledo, etc., R. R. Co. v. Brooks 327 

Toledo, etc., R. R. Co. v. Cole 306 

Toledo, etc., R. R. Co. v. Corn 328 

Toledo, etc., R. R. Co. v. Daniels 287 

Teledo, etc., R. R. Co v. Fredericks. 329 

Toledo, etc., Ry. Co. v. Green 289 

Toledo, etc., Ry. Co. v. Lockhart 336 

Toledo, etc., R. R. Co. v. Milligan ... 282 
Teledo, etc., Ry. Co. v. Morrison 303 

YoL. Y.— .x 



PAGE. 

Toledo, etc., R. R. Co. v. Prince 313 

Toledo, etc., R. R. Co. v. Rodrigues. . 313 

Tolman v. .Johnson 636 

Tolson V. Tolson 825 

Tom V. Goodrich 207 

Toms V. Wilson 581 

Tombeckbee Bk. v. Dumell 141 

Tombeckbee Bk. v. Stratton 228 

Tombs V. Tucker 514 

Tomlin v. Hilyard 85 

Tomlinson v. Brittlebank 737 

Tomlinson v. Collins 473 

Tomlinson v. Hewitt 722, 723 

Tompkins v. Saltmarsh 180 

Tompkins v. Tompkins 53 

Toogood V. Spyring 747, 757 

Toomer v. Dickerson 226, 238 

Toomer v. Toomer 101 

Torreuce v. Gibbins 668 

Torrens v. Campbell 58 

Torrey V. Buck 515 

Touliiiin v. Bennett 650 

Toussaint v. Martinnant 204 

Towers v. Da-vy s 525 

Towers v. Osborne 590 

Town V. Taber 489 

Towne v. Collins 528 

Townsend v. Downer 85 

Townsend v. Goeway 153 

Townsend v. Henry 582 

Townsend v. Hughes 741 

Townsend v. N. Y. Central, etc., R. R. 

Co 313 

Townshend v. Dyckman 36 

Townshend v. Stangroom 814, 825 

Townshend v. Townshend 96 

Town of Venice v. Woodruff 526 

Township of Corwin v. Moorehead 467 

470 

Tracy v. Swartwout 34 

Tracey v. Talmage 636 

Traill v. Gibbons 191 

Trammell v. Swan 193 

Traphagen v. Burt 119 

Trapuall v. Hattier 456, 484, 487 

TrapnaU v. State Bank. 71 

Trask v. Stone 76 

Traver v. Eighth Avenue R. R. Co. . 46 

Travis v. Barger 664, 6G9 

Trayner v. Brooks 99 

Treacey v. Hecker 452, 511 

Treadwell v. Reynolds 579, 600 

Treadwell v. Williams 133 

Treasurer v. Commercial, etc., Co. . . 767 

Treasurer v. Foster 644, 654 

Treasurer v. Merrill 415 

Treasurer of Vt. v. Brooks 398 

Treasurer of Vt. v. French 413 

Treasurer of Vt. v. Rolfe 398 

Treat v. Jones 25 

Treat v. Smith 246 

Treat v. Staples 465 

Tregelles v. Sewell 545 

Trenton, etc., v. Perrine 731, 746 



CVl 



TABLE OF CASES. 



PAGE. 

Trescott v. Smith 324 

Trevor v. Wood 535, 603, 608 

Trexler v. Millar 442 

Trieber v, Andrews 577 

Triebert v. Burgess 358 

Tripp V. Armitage 546, 595 

Tripp V. Bishop 803 

Tripp V. Leland 463 

Tripp V. Potter 646 

Trist V. Child 634 

Tritton v. Foote 770 

Trotter v. Strong 227 

Trexler v. Richmond, etc.,R. R. Co. . 328 

Troy, etc , R. R. Co. v. Kerr 383 

Trudo V. Anderson 483, 483 

True V. Plumley 732, 747, 752, 753 

Truman v. Loder 146 

Trulock V. Robey 432 

Truman v. Taylor 734 

Trumbull v. Healy 407 

Truslow V. Putnam 182 

Trustees v. Miller 326 

Trustees, etc., v. Brighter Stockyard 

Co 611 

Tryon v. Munson 646 

Tubb V. Harrison 50 

Tucker v. Call 759 

Tucker v. Madden 792 

Tucker V. Mass. Cent. R. R. Co 298 

Tucker v. Moreland 69, 71, 171 

Tucker v. Peaslee 128 

Tucker v. St. Louis, etc., Ry. Co 313 

Tudor V. White 143 

Tuff V. Warman 711 

Tufts V. Kidder 547 

Tufts V. Little 368, 371 

Tuley V. Mauzey 501 

Tullidge V. Wade 666 

Tumlinson v. York 786 

Tupper V. Cadwell 65, 539 

Turbeville v. Ryan 134 

Turberville v. Whitehouse 61 

Turgeau v. Brady 358 

Turner v. Coolidge 577 

Turner v. Melony 9 

Turner v. Parry 806 

Turner v. Trustees, etc 615 

Turner v. Turner 518 

Turnipseed v. Goodwin 140 

Turnpike Co. v. Ilosmer 395 

Turnpike Co. v. State 273 

Turpin v. Banton '773 

Turrill v. Dolloway 750 

Tuson V. Evans 755 

Tutty V. Alewin 739, 743 

Tuttle V. Cooper 114 

Tuttle V. Garrett 80 

Tuttle V. Moore 772 

Tuttli! V. Robinson 483 

Tweed v. Mills 533 

Twelve Hundred, etc., Pipes 690 

Twining v. Morrlce 814 

Tyler v. Burrington 55 

Tyler v. Hougton 249 



PAGC 

Tyler v. McCardle 803 

Tyler v. Ulmer 34 

Tyrrell v. Washburn 117, 138 

Tyson v. Tox 195 

Tyson v. Fairclough 369 

Tyson v. Thomas 635 

Tyson v. Watts 765 

Tyte v. Glode 165 

Tyus V. De Jarnette 220 

Tyus V. Rust 469 



U. 



Uhler V. Browning 139 

Ullery v . Commonwealth 398 

Ullman v. Barnard 600 

Ulmer V, Reed 190 

Lnangst's Appeal 387 

Uuderhill v. Allen 830 

Underbill v. Welton 733 

Underwood v. Robinson 14 

Underwood v. West 511 

Underwood v. White 503 

Unger v. Forty-Second St, R. R. Co. . 344 

LTnion Bank v. Edwards 215 

Union JMutual Ins. Co. v. Com. etc., 

Ins. Co 771 

United States v. Addison 1 

United States v . Alden 733 

United States v. Allen 163 

United States v. Astley 133 

United States v. Austin 37 

United States v. Bainbridge 63, 78 

United States Bank v. Binney 146 

United States v. Bougher 158 

United States v. Boyd 193, 196 

United States v. Chassell 37 

United States v. Delaware Ins. Co.. 691 

United States v. Dennis 400 

United States v. Fanjul 397 

United States v. George 411 

United States v. Green 42 

United States v. Hanford 644 

United States v. Harris 388 

United States v. Hillegas 331 

United States v. Hodge 241, 343 

United States v. Hoffman 249, 354 

United States v. Horton 401 

United States v. Howell 247 

United States v. Kirkpatrick 239 

United States v. Lyman 158 

United States v. Peters 249 

United States v. Pickett 397 

United States v. Preston 210 

United States v. Riddle 723 

United States v. Ruggles 733 

United States v. Smith 21, 28, 717 

United States v. Staly 720 

United States v. Stansbury 230 

United States Bank v. Stewart 209 

United States v. Sturges 203 

United States v. The Grace Mead . . . 673 
United States v. Thomas 6 



TABLE OF CASES. 



c\ni 



PAGE. 

United States v. Thomasson 107 

United States v. VanjFossen 407 

United States v. Willetts 158 

United States v. Wiltberger 157 

UpdegraflF v. Bennett G58 

Updike V. Henry 475, 479 

Uphaui V. Bradley 93 

Upham V. Dickinson 736, 750 

Uppertou V. Nickolson 815 

Upshaw V . Debow 513 

Upton V. Suffolk County Mills 557 

Urban v. Grimes 09 

Urban v. Hopkins 103 

Urmston v. Newcomen 51 

Urton V. State 411 

Usry V. Rainwater 459, 465 

Utica Ins. Co. v. Lynch 386, 390 



V. 



Vaccari v. Maxwell 8 

Vaiden v. Bell 456 

Vail V. Dinning 9 

Vail V. Strong 527 

Valentine v. Farrington 238 

Valle V. Cerre 486 

Valpv V. Oakeley 619 

Van Akin v. Caler 737, 750 

Van Alstyne v. Cook 359, 361 

Van Ankiu v. Westfall 728, 758 

Van Antwerp v. Newman 402 

Vanarsdale v. Drake 93 

Van Baalen v. Dean 473 

Van Brunt v. Applegate 122 

Van Buren v. Chenango Mut. Ins. 

Co 389 

Van Casteel v. Booker 613 

Vance v. Lancaster 209 

Vancouver v. Bliss 815 

Vanderbilt v. Richmond Tump. Co. . 342 
Vandergrift v. Delaware R. R. Co . . . 306 

Vanderhaise v. Hugues 428 

Vanderhorst v. McTaggert 580 

Vanderhyden v. Gardenier 644 

Van Derburgh v. Bassett 135 

Van Doren v. Mayor, etc., of N. Y. . . 520 

Van Doren v. Stickle 130 

Vanderlip v. Roe 734, 750 

Vanderveer v. Alston 89 

Vanderveer v. Sutphin 760 

Vandewalker v. Osmer 639 

Van Derwerker v. Van Derwerker. . 91 
Vanderwerker v. Vermont, etc., R. R. 

Co 304 

Vanderzee v. Willis 172, 183 

Van Dyne v. Vreeland 816, 817 

Van Epps v. Jones 731, 744, 751 

Van Hoozer v. Cory 531 

Vanhorn v. Freeman 656, 669 

Van Ingen v. Whitman 116 

Van Keuren v. Parmelee 132 

Van Kirk v. Penn. R. R. Co 324 

Van Kleeck v. Leroy 631 



PAGE. 

Van Namee v. Bradley, 474, 491, 494, 495 

Van Natta v. Security Ins. Co 322 

Van Ness v. Hamilton 728 

Van Orden v. Durham 194, 199 

Van Orsdall v. Hazard 11 

Van Ostrand v. Reed 532 

Van Pelt v. Corwine 71 

Van Rensselaer v. Dole 750 

Van Rensselaer v. Morris 358 

Van Scoter v. Letferts 119 

Van Tassel v. Capron 729, 743 

Van Trott v. Weise 509 

Van Valkenburg v. Bradley. . . . 141, 143 

Van Valkenburgh v. Watson 50 

Van Vechten v. Hopkins 750 

Vanwey v. State 400 

Van Winkle v. Ketcham 67 

Varney v. Young 51 

Vartie v. Underwood 201 

Vary v. B. C. R., etc., R. R. Co 335 

Vassault v. Edwards 802 

Vassar v. Camp 354 

Vasser v. Vasser 786 

Vasse V. Smith 73 

Vaughn v. Hopson 549 

Vaughan v. Parr 61 

Vause V. Woods 356 

Vaussee v. Russell 478 

Vawter v. Griffin 594 

Veazie v. Penobscot Ry 290 

Venable v. Curd 9 

Vere v. Ashby 114, 139 

Vermont, etc., R. R. Co. v. Vermont 

Cent. R. R. Co 355 

Vernon v. Keys 566 

Verona Central Cheese Co. v. Mur- 

taugh 157, 159 

Very v. Watkins 382, 392, 666 

Vicars v. Wilcocks 731, 751 

Vickers v. Hand 812 

Vickers v. Vickers 533 

Vickery v. Sherburne 494 

Viele V. Gray 741, 747 

Viele V. Hoag 243 

Viele V. Troy, etc., R. R. Co 787 

Vigers v. Sainer 117 

Vignolles v. Bowen 813 

Vilas V. Barker 33 

Vilas V. Jones 243 

Villa V. Rodriguez 434 

Villars V. Palmer 237, 239 

Villepigue v. Shular 660 

Vinal V. Burrill 133 

Vincent v. Germond 601 

Vincent v. Leland 556, 628 

Vincent v. Parker 353 

Vining v. Gilbreth 576 

Vinsen v. Lockard 61 

Vinton v. Middlesex R. R. Co 342 

Virginia, etc., R. R. Co. v. Sanger. . 327 

Vitt V. Owens 251 

Vivian v. Otis 6 

Vlierboom v. Chapman 717 

Vocht V. Reed 465 



CVIU 



TABLE OF CASES. 



PAGE. 

Van Puhl v. Rucker 650, 658 

Voorhees v. De Myer 807 

Voorhies v, Voorliies 72 

Vose V. Allen 097 

Vose V. Harris 494 

Vose V. Reed 31, 306 

Vessel T. Cole 661, 663, 004, 069 

Vredenburgh v. Snyder 653, 654 

Vreeland v. Blauvelt 779 



w 

Wabash Elevator Co. v. First Nat . 

Bank 547 

Wack V. Sarber 801 

Waco Tap. R. R. Co. v. Shirley 519 

Wade V. Coope 216 

Wade V. Deray 102 

Wade V. Green 213 

Wade V. Staunton 232, 233 

Wadley v. Jones 1j3 

Wadlington v. Gary 240, 242 

Wager v. Troy, etc., R. R. Co 296 

Wagman v. Hoag 230, 242 

Wagner v. Freschl 129 

Wait V. Baker 544, 574 

Wait V. Brewster 532 

Waite V. Foster 142 

Waithman v. Miles 136 

Waithman v. Weaver 700 

Wakefield v. Conn., etc., R. R. Co. . 330 
Wakefield v. South Boston R. R. Co. 340 

Walcott V. Keith 167, 173 

Waldee v. Craig 645 

Walden v. Sherburne 128 

Waldman v. Broder 500 

Waldo V. Chicago, etc., R. R. Co.. 281 

285 

Waldron v. Berry 36 

Waldron v. Chase 587 

Walford v. Duchess de Pienne 530 

Walker v. Bank 180 

Walker v. Briggs 410 

Walker v. Butterick 539 

Walker v. Davis 74 

Walker v. Dry Dock, etc., R. R. Co. . 340 

Walker v. Gilbert 203 

Walker v. Great Western Ry. Co 313 

Walker V. Hallock 30 

Walker v. Hill 822 

Walker v. Hoiaington 560, 028 

Walker v. Iliuigh 510 

Walker v. Iluu'ier 498 

Walker v. Lafiiu 9!) 

Walker v. McKay 207, 208 

Walker v. Mulvean 0!) 

Walker v. Nussey 001, 002 

Walker v. Perkins 034 

Walker v. Sargent 24 

Walker v. Staples 170 

Walker v. Trott 154, 375 

Walker v. United States Ins. Co 703 

Walker v. Walker 799 



PAGE. 

Walker v. Wells 641 

Walker V. Winn 732 

Wall V. Pulliam 384 

Wall V. Trumbull 80 

Wallace v. Agry 533 

Wallace v. Anderson 258 

Wallace v. Clark 058, 659, 670 

Wallace v. Lawyer 22 

Wallace v. Lewis 69 

Wallace v. Morss 78 

Wallace v. Stevens 430 

Wallace v. Vigus 699 

Wallace v. Young 735 

Waller v. Cralle 533 

Waller v. Todd 209 

Wall Street Fire Ins. Co. v. Loud 363 

Wall worth v. Holt 153 

Walpole v. Smith. 455, 471, 474, 484, 495 

Walrath v. Nellis 732, 739 

Walsh v. Bailie 189, 196, 198 

Walsh V. Barton 827 

Walsh V. Powers 69 

Walter v. Beaver 738 

Walter v. Brewer 720 

Walters v. Morgan 792 

Walter v. Smith 183 

Walton V. Oswald 246 

Walton V. Tusten 134 

Walton V. Wilson 807 

Walworth, etc.. Bank v. Farmers, etc., 

Co 309 

Warmsley v. Linderberger 68 

Waples V. Hastings 66 

Waples V. Mcllvine 505 

Warburton v. Lanman 439 

Ward V. Bodeman 675, 682, 718 

Ward V. Bourne 532 

Ward V. Camp 447 

Ward V. Central Park, etc., R. R. Co. 345 

Ward V. Howell 141 

Ward V. Newell 116 

Ward V. Prather 650 

Ward V. Ruckman ... 678, 681 

Ward V. Shaw 141 

Ward V. Syme 193 

Ward V. Taylor 461, 463, 464 

Ward V. Thompson 109 

Ward V. Tyler 141 

Ward V. Vanderbilt. 333 

Ward V. Weeks 746 

Warden v. Marshall 671 

Ware v. Adams 188 

Ware v. Brown 35 

Ware v. Cartledge 744, 747 

Ware v. Clowney 729 

Ware v. ('ratty 425 

Waring v. Ayres 789 

Waring v. Cram 144 

Waring v. Mason 554 

Waring v. Waring 95 

Warmouth v. Cramer 744 

Warner v. Augenbaugh 500 

Warner v. Beardsley 235 

Warner v. Cuahman 478 



TABLE OF CASES. 



cix 



PAGE. 

Warner v. Matthews 486 

Warner v. Myers 19 

"Warner v. Price 186 

Warren v. Ball 114 

Warren v. Doolittle 161 

Warren v. Leland 474, 476, 485 

Warren v. Mayor of Lyon City 817 

Warren v . Norman 780 

Warren v. Richmond 818 

Warren v. Sprauge 381 

Warren v. Tyler 509 

Warren v. Wheelock 151 

Warrington v. Langham 792 

Warwick v. Cooper 63 

Washburn v. Bank 147, 148 

Washburn v. Burrows 595 

Washburn v. Cooke 746 

Washburn v. Cuddichy 560 

Washburn v. Dewey 806, 823 

Washburn v. Goodman 137, 142, 144 

Washburn v. Holmes 238 

Washburn v. Nashville, etc., R. R. Co. 

310, 313 

Washburn v. Phillips 249, 25-") 

Washington v. Johnson 531 

Washington v. Tait 240 

Washington Ice. Co. v. Webster. ... 001 

Wason V. Rowe . 559 

Waterbury v. Merch. Un. Ex. Co. . . . 139 

Waterman v. Dutton 828 

Waterman v. Matteson 478 

Waterman v. Meigs 594, 603 

Waterman v. Robinson 476, 485 

Waters v. Creagh 227 

Waters v Howard 625, 802 

Waters v. Jones , 732 

Waters v. Simpson 240 

Waters v. Travis 778, 792, 815 

Waters Heater Co. v. Mansfield 552 

Watkins v. Collins 512 

Watkins v. Maule 770 

Watkins v. Page 479 

Watkins v. Paine 574, 579, 611 

Watkins v. Pinkney 354 

Watkins v. Watkins 435, 799 

Watkins v. White 461 

Watkins v. Worthington 356 

Watkinson v. Laughton 699, 700 

Watrous v. Chalker 783 

Watson V. Fraser 77 

Watson V. Mahan 799 

Watson V. Nicholas 749 

Watson V. Pittsburgh, etc., R. R. Co. 299 

Watson V. Poague 229 

Watson V. Spratley 594 

Waters v. Smoot 758 

Watts V. Commonwealth 402 

Watts V. Creswell 784 

Watts V. Friend 597 

Watts V. Hendley 586 

Watts V. Morgan 745 

Watts V. Waddle 829 

Waugh V. Carver 113 

Waugh V. Waugh 734 



PAGE 

Way v. Illinois Cent. R. R. Co 329 

Wayne County v. Benoit 3, 20 

Wayne v. Kirby ... 227 

Wear v. Sawyer 185 

Weatherwas v. State 411 

Weaver v. Hendrick 747 

Weaver v. Shryock 237 

Weaver v. State 408 

Webb V. Anderson 697 

Webb v. Browning 23 

Webb v. Fairmaner 569 

Webb V. Hughes 809 

Webb V. Portland, etc., R. R. Co 335 

Webber v. Davis 542 

Webber v. Donnelly 636 

Webber v. Mallett., 101 

Webber v. Minor 573 

Webber v. Read 491 

Weber v. Fowler 828 

Webster v. Cecil 825 

Webster v. Dillon 769 

Web.ster v. Skip with 439 

Webster v. Zeilly 594 

Wedgwood v. Chicago, etc., R. R. Co. 329 

Weeks v. New York, etc., R. R. Co. . 325 

Weems v. Brewer 811 

Weems v. Lathrop 378, 386 

Weightman V. Caldwell 606 

Weightman v. Washington 31 

Weller v. Hock 237 

Weintz v. Hafner 510 

Weiser v. Weiser 83 

Weiseger v. Wheeler 571 

Welborn v. People 414 

Welch v. Anderson 90 

Welch V. Moffatt 540 

Welchel v . Thompson 84 

Weld V. Chad bourne 34 

Weld V. Oliver 123, 681 

Welford v. Beezeley 798 

Welker V. Wolverknehler 461, 473 

Weller v. Rauson 228 

Weller v. Weyand 783 

Wells V. Hutchinson 33 

Wells V. March 133 

Wellesley v. Mornington 18 

Wellesley v. Wellesley 770 

Wells V. Carpenter 150, 151 

Wells V. Maxwell 809 

Wells V. Ogden 444, 453 

Wells V. Osmond 723 

Wells V. Smith 805 

Wells V. Somerset, etc., R. R. Co 286 

Wells V. Wells 151 

Wells V. Wilmington, etc., R. R. Co. 320 

Welsh V. Bayaud 829 

Welsh V. Bell 541 

Wendover v. Hogi-boom 675 

Wentworth v. Outwaite 618 

Wentz V. Erie Ry. Co 326 

Werner v. Leisen 139 

Wert v. Strouse 661 

Wesley Church v. Moore 208 

West v. Bank 208 



ex 



TABLE OF CASES. 



PAGE 

West V. Chastem 356 

West V. Commouwealtli 410 

West V. Cuuningbam 580 

West V. Ferguson 251 

West V. Greggs 65 

West V. Reed 425 

Westchester, etc., R. R. Co. v. Miles. . 342 

Westcott V. Nims 628 

Westcott V. Thompson 539 

Westenberger v. Wheaton 463 

Westerdell v. Dale 083 

Western v. Russell 815 

Western Bank v. Tallman 279, 280 

Western Insurance Co. v. The Goody 

Friends 710 

Western, etc., R. R. Co. v. Adams. . . . 329 

Western R. R. Co. v. Babcock 796 

Western R R. Co. v. Young 312 

Western Md. R. R. Co v. Owings 347, 348 

Western Penn. R. R. Co. v. Hill 300 

Western Transp. Co. v. Hawley 615 

Westervelt V. Haff 87 

Westfall V. Peacock 610, 618 

Weston V. Chamberliu 186 

Weston V. Foster 95 

Weston T. Morse 726 

Weston V. Train 708 

Wetherell v. Clarkson 730 

Wetherell v. Collins 436 

Wetmore v. Campbell 33 

Wetter v. Schlieper 133, 155, 393 

Wetzell V. Sponsler 235 

Wharton v. McKeuzie 65, 528 

Wheat V. Cross 534, 536 

Wheatley V. Calhoun 107, 119, 125 

Wheatley v. Westminster, etc., Coal 

Co 768 

Wheaton v. East 61, 69 

Wheaton v. Hibbard 157 

Wheeden v. Fiske 507 

Wheeler v. Arnold 152 

WTieeler v. Newbould 176 

Wheeler v. Nichols 576 

Wheeler v. Patterson 76 

Wheeler v. People 404, 410 

Wheeler v. Reynolds 799, 800 

Wheeler v. San Francisco, etc., R. R. 

Co 280, 323 

Wheeler v. Sumner 675, 678 

Wheeler v. Washburn 232 

Wheeler v. Wheeler 531 

Wheelock v. Doolittle 132 

Wlieel Wright v. Depeyster 685 

Wlielan v. Kinsley 183 

Wh.-liin V. W liflan 517, 518 

AVhelpley V. Erie R. R. Co 359, 374 

Wliillock V. Hale 99 

Whii)ple V. Briggs 209, 212 

Whipple V. Giles 530 

Wliipple V. McClure 512 

Whipple V. Thayer 576 

Whiskard v. Wilder 411 

Whistler v. Forster 528 

Whitaker v. Bond 795 



PAGEi 

Whitaker v. Brown 128 

Whitaker v. Carter 758 

Whitaker v. Eastwick 558 

Whitaker v. Eighth Av. R. R. Co 338 

Whitaker v. Kirby 227 

Whitaker v. Smith 230 

Whitaker v. Sumner 168, 172, 178 

Whitcomb v. Vermont Cent. Ry. . . . 284 

White V. Albertson 79 

White V. Banks 223 

White V. Baugh 387 

White V. Branch 72, 75 

White V Bullock 20 

White V. Campbell 666 

White V Carlton 219, 220 

White V. Carroll 750, 754, 757 

White V Crew 607 

White V. Dobson 780, 814 

White V. Dollivor 464, 487 

White V. Fitzgerald 120 

White V. Foster 596 

White V. Garden 637 

White V. Hampton 484 

White V. James .... 355 

White V. Jones 135 

White V. McDonough 719 

White V. McGannon 824 

White V. Miller 205, 206, 557 

White V. Murtland 658, 662, 666, 667 668 

669, 670 

White V. Nellis 655, 656, 657, 658 

White V. Nicholls 727, 754 

White V. Osborne 123, 681 

White V. Phelps 17G, 173 

White V. Port Huron, etc., R. R. Co. 440 

White V. Ross 274 

White V. Schuyler 767, 788 

White V. Smale 355 

White V. South Shore R. R 297 

White V. Spettigue 528 

White V. Steele 256 

White V. Swift 200 

White V. Thayer 524 

White V. Tudor 141 

White V. United States 702 

White V. Welsh 611 

White V. Whitney 240, 420 

White V. Williams 796 

Whiteaker v. Vanschoaick 790 

Whitehall, etc.. R. R. Co. v. Myers. 277 
Whitehall Transp. Co. v. N. J. Stb. 

Co 711 

Whitehead v. Anderson 613, 614, 615 

616 

Whitehead v. Peck 194 

Whitehead v. Wooten 358, 363 

Whitehill V. Wilson 220 

Whitehorn v . Hinea 513 

Whitehouse v . Frost 587 

Whitehousc v. Hanson 187 

Whiteh^y v. Adams 755 

Whitemau v. Wilmington, etc., R. R. 

Co 311 

White Mountain Bk. '.v. West 118 



TABLE OF CASES. 



CXI 



PAGE. 

White Mts. R. R. Co. v. Bay State 

Iron Co 183, 183 

Whitesides v. Allen 40 

Whitesides v. Greenlee 794 

Whiteside v. Prendergast 392, 393 

Whiteworth V. Tillman 212 

Whitfield V. Whitfield 59 

Whiting V. Smith 744 

Whitlock V. Duffleld 776 

Whitman v. Boston, etc., R. R. Co. . 285 

Whitman v . Leonard 140 

Whitman v. St. Paul, etc. R. R. Co. 349 

Whitmarsh v. Hall 71, 75 

Whitney v. Cotton 125 

Whitney v. Dutch 67 

Whitney v. Elmer 656, 666 

Whitney v. Heyword 561 

Whitney v. Hitchcock 46, 76 

Whitney v. McConnell 483 

Whitney v. Peay 178 

Whitney v. Reese 132 

Whitney v . Rogers 698 

Whitney v. Slayton 634 

Whitney v. Taylor 559 

Whitney v. Tibbits 168 

Whitney v. Whitcomb 588 

Whittaker V. Howe 769 

Whittaker v. Hueske 553 

Whittead v. The Governor 410 

Whittemore v. Gibbs 594 

Whittemorev. Whittemore 781 

Whitten v. Whitten. 90 

Whitteridge v . Norris 703 

Whitwell V. Brigham 180 

Whitwell V. Warner 310 

Whitwell V. Wells 494, 500 

Whitworth v. Carter 566 

Whitworth v. Harris 769 

Whitworth v. Tilman 206 

Whitworth V. Whyddon 364 

Wibert v. New York, etc., R. R. Co. 319 

Wickens v. Townsend 387, 388, 389 

Wickersham v. Young 94 

Wierbach v . Trone 729 

Wiggin V. Cumings. 149 

Wipigin V. Goodwin 150, 151 

Wiggins V. Boeram ^ 818 

Wiggins V. Graham Ill 

Wiggins V Keizer 49 

Wightman v. McAdam 707 

Wilborne v. Commonwealth 233 

Wilby V. Elston 733, 754 

Welby V. Phinney 151 

Wilcox V. Edwards 741 

Wilcox V . Lucas 449 

Wilcox V. Roath 70 

Wilcox V. Rodman 19 

Wilcox V . Turner 462 

Wilcoxen v . Calloway 780 

Wildbahm v. Robidoux 821 

Wilber v Manley 489 

Wiley V. Cempbell 728 

Wiley V. Ewing 429 

Wiley V. Worth 19 



PAGE. 

Wilgus V . Hughes 521 

Wilks' Case 737 

Wilkes V. Dinsman 36 

Wilkes V. McCluny 51 

Wilkins v. Bromhead 544, 545, 546 

Wilkius V. Davis 138 

Wilkins v. French 427 

Wilkin.? v. Lynch 384 

Wilkin V. Wilkin 86, 99 

Wilkinson v. Clements 768 

Wilkinson v. Dalferes 701 

Wilkinson v. Evans 603, 604 

Wilkinson v. Oliver 80 

Willan V. Willan .789, 791, 796 

Willard v. Cora 720 

Willard v. Newburry 294 

Willard v. Tayloe 765 

Willard v. Willard 88 

Willett V. Stringer 127 

Williams v. Baily 777 

Williams v. Barnett 131 

Williams v Beede 501 

Williams v. Bowers 143 

Williams v. Carpenter 583 

Williams v. Central R. R. Co 290 

Williams v. Covilland 194, 243 

Williams v. Davis 630 

Williams v. Edwards 815 

Williams v. Evans 584 

Williams v. First Presbyterian Soc. . 817 

Williams v. Gillies Ill 

Williams v. Given 637 

Williams v. Glenton 813 

Williams v. Gordon 747 

Williams v. Hall 504 

Williams v. Hart 33 

Williams v. Henshaw ..... .150. 151, 153 

Williams v. Hill 742, 751 

Williams v. Holdredge 728, 746 

Williams v. Houston 447 

Williams v. Howard 774 

Williams v. Hutchinson 52, 55 

Williams v. Ingram 565 

Williams v. Jackman 546 

Williams v. Jenkins 358, 369, 647 

Williams v Keats 113 

Williams v. Lawrence 681 

Williams v. Mabee 69 

Williams v. Marshall 193 

Williams V. Miner 747 

Williams v. Moor 61 

Williams v. Natural Br. Plk. Road 

Co.. 290 

Williams v. New York, etc., R. R. Co 290 

Williams v. Noland. 363 

Williams v. Roberts 131 

Williams v. Robinson 363 

Williams v. Shelby 396 

Williams v. Shelly 188 

Williams v. Spafford 553 

Williams v. Spears 739 

Williams v. Smith 431 

Williams v. Stott 740 

Wniiams v. SuflFolk Ins. Co. 702, 703. 705 



cxu 



TABLE OF CASES. 



PAGE. 

Williams v. Tie Bk. of Michigan. . . 117 

Williams v. Townsend 237 

Williams v. Vanderbilt 323 

Williams v. West 471 

Williauis V. Wiggand 86 

Willaims v. Williams 211 

Williamson v. Berry 527 

Williamson v. Morairty 441 

Williamson v. Sammons 561 

Williamson v. Williamson 103, 827 

Williamson v. Wilson 361 

William and Mary Coll. v. Powell. . . 196 

Willing V. Brown. . . o 99 

Willis V. Corlies 374 

Willis V. Freeman 120 

Willis V. Ives 187 

Willis V, Long Island R. R. Co 322 

Willis V. Matthews 802 

Willis V. Sproule 38 

Willis V. Twambly 61 

Willis V. Willis 567 

Willmering V. McGaughey 541 

Willmott V. Smith 584 

Willoughby v. Moulton 633 

Wills V. Barrister 456 

Wills V. Simmonds 108, 109. 115, 150 

Wilmarth v. Mountford 583 

Wilmer v. Farris 826 

Wllmer v. The Smilas 687 

Wilmington, etc., R R. Co. v. Robi- 

son 275 

Wilmshurst v. Bowker 611 

Wilson V. Almy 676 

Wilson V. Anderson 272 

Wilson V. Bank of Orleans 237 

Wilson V. Barnett 734, 748, 759 

Wilson V Berkstresser 252 

Wilson V. Burr 23 

Wilson V. Campbell 769 

Wilson V. Chesapeake, etc., R. R. Co 332 

Wilson V. Cunningham 327 

Wilson V. Davis 356, 633 

Wilson V. Foot 227 

Wilson V. Forder 141 

Wilson V. Garrard . 53 

Wilson V. Getty 526, 772 

Wilson V. Green 227, 648 

Wilson V. Greenwood 301, 376, 390 

Wilson V. Grover 228, 236 

Wilson V. Partly 505 

Wilson V. Hunter 134 

Wilson V. King 449, 453 

Wilson V. Lancashire, etc., R. R. Co.. 622 

Wilson V Langford 242 

Wilson V Little 108, 170 

Wil.son V. Mayor of N. Y 31, 35 

Wilson V. Metcalfe 434 

Wilson V. Nations 759 

Wilson V. Noonan 760 

Wilson V. Oliphant 739 

Wilson V. Poe 377 

Wilson V. Purcell 538 

Wil.son V Roberts . . 241 

Wilson V. Royston 455, 471 



PAGE 

Wilson V. Runyon 731 

Wilson V, Rybolt. 478 

Wilson V. Soper 148 

Wilson V. Sproul 663, 666 

Wilson V. Stripe 460 

Wilson V. Tatum 732 

Wilson V. Tebbetts 235, 236 

Wilson V. Wagar 571, 610 

Wilson V. Wallace 145, 146 

Wilson V. Wilson 864, 540, 777, 826 

Wilson V. Wright. 48 

Wilton V. Middlesex R. R. Co 342 

Wimberly v. Adams 226 

Winans v. Mason 25 

Winch v. Birkenhead, etc., Ry. Co.. . 332 

Winch V. Winchester 814 

Winchester v. Beardin 245 

Windsor v. Boyce 481 

Windsor v. Oliver 730 

Winebrinuer v. Weisiger 634 

Winfield v. Bacon , 37 

Wingv. Clark 573 

Wingate v. Smith. 46ft, 478 

Winne v. Reynolds 807 

Winnipisseogee, etc.. Co. v. Perley., 447 
Winona, etc., R. R. Co. v. Denman. .. 298 
Winona, etc., R. R Co. v. Waldron. 298 

Winpennv v. French 634 

Winship V. United States Bk....l06, 108 
111, 112, 114, 128 

Winslow V . Norton 616 

Winsor v. Maddock 682 

Winsor v. McLellau 678 

Winston V. Rives 233 

Winston v. Taylor 145 

Winstone v. Linn » » 63 

Winter v. Kretchman 641 

Winterbottom v. Wright. . . 334 

Wiutermute v. Snyder , 513 

Winterport Granite, etc., Co. v. The 

Jasper 726 

Wintle V. Cowther 114, 129 

Wintou V. Sherman 805 

Wisev. Shepherd 201 

Wise V. Wilson 63 

Wisaley v. Findlay 99 

Wiseman v. Lynn , 14 

Wisner v. Teed 98 

Wistar's Appeal 771 

Wiswall V. Hall 795 

Wiswall V. McQowan 825 

Wiswall V. Sampson 354 

Witcher v. Brewer 107 

Witherby v. Sleeper 457 

Withers v. Reynolds 549 

Withers v. Withers 123 

Witlierspoon v. Dunlap 89 

Wittkowsky v. Wasson 533 

Wodell V. Coggeshall 51 

Wolcott V. Heath 509 

Wolcott V. Mount 557, 626 

Wolf V. Dietzsch 509 

Wolf V. Fink 233 

Wolfe V. Gilmer 118 



TABLE OF CASES. 



CXIU 



PAGE. 

Wolf V Pounsford 643 

Wolf V. Wolf 169. 532 

Wolgamot V. Bruuer 494 

Wommack v. Wliitmore 93 

Wonsoa v. Sayward 741 

Wood V. Barker 519 

Wood V. Barstow 200 

Wood V. Bell 674 

Wood V. Benson 598 

Wood V. Braddick 132 

Wood V. Clute 9G 

Wood V. Ellis 105 

Wood V. Fisk 190 

Wood V. Fitzgerald 10 

Wood V. Fleet 84 

Wood V. Griffin 84 

Wood V. Griffith 775, 791 

W'ood V. Harrison 645 

Wood V. Hickings 384 

Wood V. Johnson 165 

Wood V. Little 101 

Wood V. Machu 811 

Wood V. Manley 570, 578 

Wood V. Midgley 821 

Wood V, Morehouse 645 

Wood V. Orser 474, 486 

Wood V. Feunell 113 

Wood V. RowclifEe 773 

Wood V. Scarth 825 

Wood V. Scott 745 

Wood V. Shepherd 773 

Wood V. ^outhwick 739 

Wood V. Steele 233 

Wood V. Stockwell 680 

Wood V. The Nimrod 723 

Wood V. Thornly 801 

Wood V. Wliite 443, 797 

Wood V. W^ood 387 

Woodbeck v. Wilders 83 

Woodburn v. Carter 240 

Woodburn v. Cogdal 501, 602 

Woodbury v. Luddy 780 

Woodbury v. Robins 560 

Woodbury v. Thompson 734 

Woodfolk V. Nashville, etc., Ry 298 

Woodhouse v. Meredith 775 

Woodman v. Freeman 764 

WoodrufiF V. Halsey 173 

Woodruff V. Logan 63 

Woodruff V. Noyes 617 

Woodruff, etc.. Iron Works v. Stet- 
son 682 

Woods V. Dille 799 

Woods V. Farmare 826 

Woods V. Russell 544, 546, 635, 674 

Woods V. Sherman 235 

Woods V. Wilder 135 

Woodson V. Scott 805 

Woodward v. Anderson 663, 663 

Woodward v. Grand Trunk R. R. Co. 

469, 487 

Woodward v. Harris 776 

Woodward v. Lander 755 

Woodward v. Phillips . 433 

Vol. Y.— 



PAGE 

Woodward v Schatzell 154 

Wood worth v Knowlton. 483 

Woolfolk V. Ingram 504 

Woolford V. Dow 242, 243 

Woolnoth V. Meadows 749 

Woolen V. Buchanan 235 

Wooten V. Dunlap 97 

Worcester v. Eaton 73 

Worcester v . Kelley 534 

Word V. Cavin 560 

Word V. Morgan 180 

Works V. Junction R. R 282, 349 

Wormers' Case 508 

Worrall v. ISIunn 830 

Worrill v. Coker 362 

Worcester v. Forty-Second St. R. R. 

Co 343 

Worth V. Butler 744 

Worth V. Newton 18 

Worth V. Peck 158 

Worthington v. Jeffries 253, 254, 256 

Worthy v. Cole 550 

Worthy v. Johnson 561 

Wray v. Davidson 173 

Wray v. Milestone 152 

Wren v. Kirton 386 

Wren v. Weild 763 

Wright v. Allen 258 

Wright v. Austin 200 

Wright V. Barnes 671 

Wright V. Bartlett 240 

Wright V. Bennett 490 

Wright V. Clements 744 

Wright V. Crookes 540 

Wright V. Cumpsty 151, 152 

Wright V. Davenport 636, 639 

Wright V. Delafield 441 

Wright V. Hunter 311 

Wright V. Jacobs 150 

Wright V. Knepper 226 

Wright V. Marsh 98 

Wright V. Marshall 685 

Wright V. Matthews 498 

Wright V. Maxwell 573 

Wright V. Miller 80 

Wright V. Nutt 200 

Wright V. O'Brien 544 

Wright V. Paige 728, 734 

Wright V. Rose 419 

Wright V. Russell 189 

Wright V. Simpson 195, 196, 200 

Wright V. State 410 

Wright V. Steele 67, 68 

Wright V. Stevenson. . . , 166 

Wright V. Stockton 235 

Wright V Storrs 193, 246 

Wright V. Strong 374 

Wright V. Vanderplank 75 

Wright V. Vaughn 550 

Wright V. Wilcox 720 

Wright V. Williams 497 

Wright V. Woodgate 747 

Wright V. Wright 4d 116 789, 827 

Wright V. Young ?79, 807 



CXIV 



TABLE OF CASES. 



PAGE. 

Wrightup V. Chamberlain 637 

Wulffe V Jay 238 

Wusnig V . State 58 

Wyatt V. Buell 754, 757 

Wyatt V. Citizens' Ry. Co 346 

Wycbe V . Green 448 

Wycoffv Purnell 153 

Wyke V. Eogers 241 

Wyman v. Gould 489 

Wynkoop v. Wynkoop 470 

Wyun V. Brook 206 

Wynn v. Cox 540 

Wynne v. Lord Newborough 376 



Y. 



Tandle v. Kingsbury 499 

Yates V. Bond 561 

Yates V. Brown 734 

Yates V. Cole 443 

Yates V. Donaldson 243 

Yates V. Lansing 36 

Yates V. Van De Bogart 286, 388 

Yeager v. Wallace 126, 379 

Yeates v. Reed 744, 746 

Yeatman v. Sav. Inst 173 

Yoder v. Briggs 223 

Yoemans v. Williams 424 

Yonge V. Pacific Mail Co 323 

Yonkey v. State 265 

York V. Clemens 105, 120 

York Co. Bank's Appeal 148 

York Ins. Co. v. Brooks 191 

York, etc., Ry. Co. v. Reg 273 

York, etc., Ry. v. Winans 283 

Yorke v. Ver Planck 623 

Yost V. Devault 783 

Youghioghem Iron Co. v. Smitli .... 639 



PAGE. 

Young V. Astele 113 

Young V Bennett 760 

Young V. Clark 224 

Young V. Daniels 808 

Young V. Frost , 100 

Young V Graham. ..,,... 375 

Young V Herdic 466 

Young V. Keighly 108, 144 

Young V, Kimball 459 

Young V. Lego 498 

Young V. Lyons 224 

Young V. Matthews 545 

Young V. Miller 728, 741 

Young V. N. Y. C. Ry 809 

Young V. Paul 793 

Young V. Shaw 397 

Young V. Slemons 760 

Young V. Stevens 511 

Young V. Wright 823 

Younger v. Welch 807 

Yulee V. Canova 764 



Zachrisson v. Ahman 457 

Zane v. Zane 827 

Zanesville, etc., Co. v. Granger 645 

Zeigler v. Grim 92 

Zerg V. Ort 744 

Zimmer v. State 283 

Zimmerman v. Judah 232 

Zirkle v. McCue 90 

Zollar V. Jamrin 143 

Zouch V. Parsons 66, 75, 530, 784 

Zuel V. Bowen 106, 128 

Zylstra v. Corporation of Charles- 
town 250 



CHAPTER cm. 

OFFICE AND OFFICER. 
AETICLE I. 

OF OFFICERS IN GENERAL. 

Section 1. Definition and natnre. Office has been defined to 
mean "public employment;" and its legal meaning to be, an employ- 
ment on behalf of government in any station of public trust, not merely 
transient, occasional, or incidental, usually for a certain compensation. 
Smith V. Mayor, etc., of W, T., 37 N. Y. (10 Tiff.) 518 ; People v. 
Mchols, 52 id. (7 Sick.) 478 ; S. C, 11 Am. Rep. 734. And see State 
V. Wilson, 29 Ohio St. 347. In common language, the term " office" has 
a more general signification. Thus, we say the office of executor, or 
guardian. Platt, J., 20 Johns. 493 ; 20 Ala. 371. A comprehensive 
definition would seem to be, that office is a place of trust, by virtue of 
which a person becomes charged with the performance of certain duties, 
public or private. Burr. L. Diet. 

In England, offices are incorporeal hereditaments granted by the 
crown, and the subjects of vested" or private interests. In this country, 
they are not held by grant or contract ; nor has any individual a pri- 
vate property or vested interest in them, beyond the constitutional ten- 
ure and compensation. State v. Dews, R. M. Charlt. 397 ; U. S. v. 
Addison, 6 Wall. 291. They are mere agencies of a political nature, 
created for the discharge of pubhc duties. State v. Stanley, 69 JST. C. 
59 ; S. C, 8 Am. Rep. 488. The incumbent cannot sell his office, 
or purchase it, or incumber it. It will not j)ass by an assignment 
of all his property ; nor will such an assignment affect his right to 
prospective fees. The right to fees or compensation does not grow 
out of any contract between the government and the officer, but arises 
from the rendition of the services. There is no agreement that the 
incumbent shall receive a particular compensation so long as he may 
hold the office, nor that the office shall last for a specified tune. The 
power creating the office may terminate it, without regard to the rights, 



2 OFFICE AND OFFICER. 

the interest, or the expectation of the incumbent. If there be no con- 
stitutional prohibition, the legislature may diminish or abolish the fees 
at pleasure, or may render it a salaried office. So, it may increase the 
duties without enhancing the compensation, or diminish the compensa- 
tion without lessening the duties. Conner' v. Mayo?', 5 1^. Y. (1 Seld.) 
285; State v. Davis, 44 Mo. 129; Ilijde v. State, 52 Miss. 665. 
The officer does not bind himself to render the services for any definite 
period and he is, therefore, under no obligation to do so. Swann v. 
Buck, 40 Miss. 268. 

§ 2. Office, how created. All public offices were originally created 
by the sovereign as the fountain of the government. 2 Cruise's Dig. 
38. In the United States, they are created by constitutional provis- 
ion, or by legislative enactment. When an office is created by the 
Constitution all the duties connected therewith, not protected by 
that instrument, may be established, altered, or abolished, at the 
will of the legislature. The incumbent can only invoke the pro- 
tection of the Constitution as to those things expressly contained, or 
necessarily implied in it. Hyde v. State, 52 Miss. 665. The right to 
fill an office made vacant by the death or disability of the incumbent 
includes the right of appointment in case of resignation. State v. City 
of Newarlx:, 3 Dutch. 185. The tenure by M^hich an office is held 
does not depend upon the commission, which is only e^ddence of the 
appointment, but upon the provisions of the act creating the office, or 
upon the Constitution. Jeter ads. State, 1 McCord, 233. A prima 
facie title to an office, and the right after being duly qualified to 
discharge its duties, and to have the custody of its property, is con- 
ferred by a commission to the appointee, issued on a certificate of elec- 
tion, or on a certificate of a vacancy in the office, made by one author- 
ized to certify it, whether the certificate be true or false. The prima 
facie right of the appointee to such office remains until the title is 
determined on quo warranto. When, however, a certificate of vacancy 
discloses facts showing that the office is not vacant, the certificate has 
no force for any purpose. Plowman v. Thornton, 52 Ala. 559. As 
soon as the appointee is authorized by his own action to legally assume 
the duties of his office, liis term is to be regarded as begun, unless some 
other period is clearly fixed by the proper authority. When no time 
is mentioned in the law from wliicli the term shall commence, it must 
begin to run from the day of election or appointment. Haiglit v. Love., 
39 ^'". J. 14, 476 ; 23 Am. Eep. 234. 

§ 3. Officers, liow appointed or elected. The mode ot appoint- 
ment or elccti(jii tu public office is directed and regulated in the sev- 
eral States, by constitutional provision and legislative enactment. When 



OFFICE AND OFFICER. 8 

the governor appoints to office, his commission is the only legal evi- 
dence of the title of the appointee. State v. Allen, 21 Ind. 516. 
But if he appoint a person to an office, erroneously supposing that the 
office is vacant, the commission confers no authority on the ap- 
pointee. State V. McNeely, 24: La. Ann. 19. Where a statute pro- 
vides that the appointment by the governor of a person to succeed 
another in an office, must he confirmed by the senate, such person 
is not entitled to enter upon the duties of the office until his ap- 
pointment has been confirmed. People v. Bissell, 49 Cal. 408. 
Where a statute creating an office provides that it shall be filled 
by the legislature, and that the incumbent shall hold his office until his 
successor is elected and qualified, the failm-e of the legislatm'e to elect at 
the expiration of the term does not authorize the governor to appoint a 
person to the office. The old incumbent is entitled to perform the du- 
ties of the office until a qualified successor is duly elected. People v. 
Tilto7i, 37 Cal. 614. An appointment to an office for the Kfe of the 
appointee is not invalid upon the sole ground that the person making 
the appointment only holds his own office for life. Posslyn v. Aytoun, 
11 C. & F, 742. An appointment to an office, to go into effect at a 
future time, when the statute creating the office is to begin to operate, 
is valid. State v. I?'win, 5 Nev. 111. Where the selectmen of a town, 
authorized to appoint a person to office for a special occasion, aj^point 
him to act generally, the appointment is good for that occasion. Harts- 
horn V. Schoff, 51 N. H. 316. It is contrary to pubhc policy for an 
officer to exercise his appointing power to put himself in office. State 
V. Hoyt, 2 Oregon, 246. If two persons only are to be elected to an 
office, ballots which contain the names of three persons cannot be 
coimted. State v. Tierney, 23 Wis. 430. One who has acted as a 
public officer without objection from the public, or the appointing 
power, will be presumed to have been duly authorized, until the con- 
traiy appears. Callison v. Hedrich, 15 Oratt. 244. 

§ 4. Who are officers. One who is in possession of an office and 
has been invested with the legal indicia of title, is a lawful officer until 
ousted. Wayne County v. Benoit, 20 Mich. 176 ; 4 Am. Rep. 3S2. 
If an officer be eligible, and has taken the oath of office, he will be 
deemed an officer dejure as well as d-e facto, until his office is declared 
vacant by legal authority. But it is otherwise where the incumbent is 
ineligible. Morgan v. Vance, 4 Busli, 323 ; People v. Clute, 12 Abb. 
Pr. (K S.) 399 ; S. C. affirmed, 50 K Y. (5 Sick.) 451 ; S. C, 10 Am. 
Rep. 508. Under a State Constitution permitting a person to hold but 
one office of trust at the same time, a statute providing that the clerks 
of one class of courts shall be ex-ojficio clerks of another grade, is im- 



4 OFFICE AND OFFICEK. 

constitntional ; the term ''^ ex-officio^^ not making a clerkship less an 
office of trust. Boucmchaud v. D'' Herbert, 21 La. Ann. 138. See 
Peo2>le V. Mchols, 52 N. Y. (7 Sick.) 478, 484 ; S. C, 11 Am. Eep. 
734. 

Persons acting at the instance of an individual who assumes the 
duties of a ministerial office are bound to know whether he is in fact 
such officer. Scham v. Dietricks, 1 Wilson (Ind.), 153. "Where 
timber is stolen from the State lands, and an action therefor brought 
by a person deriving title by purchase from an agent appointed by the 
commissioner of the State land office, neither the trespasser nor his 
vendee will be permitted to question the validity of the appointment. 
Ballou V. O'Brien, 20 Mich. 304. The fact that a party did a partic- 
ular act in an official capacity may be proved not only by showing 
that he exercised the office before the period in question, but also within 
a short time afterward. Hopley v. Young, 8 Q. B. 63. 

§ 5. Public officers. A person who, having been appointed or 
elected and a title given by law, performs duties imposed upon him by 
law, is a ])ublic officer. Bradford v. Justices, 33 Ga. 332. Authority 
to appoint another to office constitutes the appointee a public officer, 
although he be not required to take an oath, and is not allowed a sal- 
ary. StaU V. Stanleij, QQ N. C. 59 ; 8 Am. Eep. 488. Proof that a 
person is commonly reputed to be a public officer, is jprhna facie evi- 
dence that he is such, without producing his appointment. Colton v. 
Bec(/rdsley, 38 Barb. 29. So, proof that a person acted as a public offi 
cer before the occasion in question is evidence that he is such officer. 
Refj. v. Murj)hy, 8 C. & P. 297. Where each of two persons holds a 
commission as sheriff, in the absence of proof that the person first 
appointed was removed from office, or that the office became vacant 
previous to tlie date of the second commission, it will be presmned 
that the latter was erroneous. State v. Banlcston, 23 La. Ann. 375. 
See State v. Jacks(ni^ 27 id. 541. 

§ 6. Who may liold odice. As a general rule, every male citizen, 
twenty-one years of age, is legally qualified to hold office. There are, 
however, certain constitutional rcquireincnts, the want of which forms 
an exception. A person, to be cligil)lo to the office of President of the 
United States, must be a natural born citizen, be thirty-five years of 
ago, and have been fourteen years a resident within the United States. 
Const., art. 2, § 1. So, a person to be a senator of the United States 
must have attained the age of thirty years, been nine years a citizen of 
the United States, and, when elected, be an inhabitant of the State for 
which he shall have been chosen. Id., art. 1, § 3. A member of the 
house of representatives must have attained the age of twenty-five 



OFFICE AND OFFICEE. 5 

years, have been seven years a citizen of the United States, and when 
elected, be an inhabitant of the State in which he shall be chosen. Id., 
§ 2. A person may be disqualified, by already holding an office, or by 
the want of certain property qualifications, when required by law. 
Offices, where judgment, discretion and experience are essentially 
necessar}" to the proper discharge of the duties they impose, cannot be 
executed by an infant. Thus, it has always been held that an infant 
cannot execute the office of a judge. Scamhles v. Waters, Cro. Eliz. 
636 ; Moore v. Graves, 3 N. H. 408 ; Golding's Petition, 57 id. 146. 
But infants may hold offices which are merely ministerial, and which 
require nothing more than skill and dihgence. Id. 

§7. Official oath. One appointed or elected to a public office, 
before entering on the duties of such office, is required to take an oath 
or affirmation, the form and mode of administration of which, as well as 
the person by whom it shall be administered, is usually prescribed hj 
law. Under a statute requiring i-oad viewers to swear to perform their 
duties " impartially and according to the best of their judgment," an 
oath taken by them " faithfully to discharge their duties " is insuf- 
ficient. Camhria Street, 75 Penn. St. 357. It is a sufficient exemp- 
tion by law from taking the oath of office, that it appears from the 
statute that the legislature intended that the officer should not be 
required to take such oath.. School Directors v. People, 79 111. 511. 

§ 8. Official bond. An office will not be forfeited by the mere fail- 
ure to file an official bond within the time fixed by law. State v. Ely, 
43 Ala. 568; State v. Coxmty Court, 44 Mo. 230. See People v. 
McKinney, 52 N. Y. (7 Sick.) 347 ; Foot v.. Stiles, o^l id. (12 Sick.) 
399. An extension by the legislature of the time within which the 
bond shall be filed will operate as a waiver of the right of the State 
to claim a forfeiture of the office. State v. Falconer, 44 Ala. 696. 

An official bond is not void because given for a larger amount than 
the statute requires. State v. Rhoades, 6 Nev. 352 ; Matthews v. Lee, 
25 Miss. 417 ; Branch v. Elliot, 3 Dev. (N. C.) 86 ; People v. Vilas, 
36 N. y. (9 Tiff.) 459. A bond given voluntarily by a State treas- 
urer for the faithful discharge of his duties is valid. Sooy v. State, 
38 N. J. 324. When there is no law to the contrary, a j)erson, who 
holds two distinct offices, must give two separate official bonds. Peo- 
pie V. Ross, 38 Cal. 76. A bond executed by an officer de facto, con- 
ditioned for the faithful discharge of his duties, will be upheld as a 
valid security, and the sureties cannot aver that he was not an officer. 
State V. Cooper, 53 Miss. 615 ; State v. Rhoades, 6 Nev. 352. The 
bond of a State treasurer that he will " fiiithfully perform," etc., 
" render a true account," etc., and that " during his continuance in 



6 OFFICE AXD OFFICER. 

office, he "vrill not engage in any business of trade," etc., is a contract 
in a penal sum for the performance of covenants or agreements. 
State V. Peck, 58 Me. 123. 

Where a public enemy forcibly seizes or destroys property belong- 
ing to the government, in the custody of an officer, against his will 
and without his fault, it constitutes a discharge of the official bond 
and releases the officer from his obligation to keep the property safely. 
U. S. V. Thomas, 15 Wall. 337. When an individual signs his name 
in blank as surety to an official bond and hands it to his principal to 
have it filled up and signed by others and delivered to the proper au- 
thority, the bond is binding upon him without regard to any secret 
instruction as to the conditions on which it should be completed and 
filed. McCormicJc v. Bay City, 23 Mich. 457, If the term of office 
be for several years, and an official bond be required each year, the 
bonds are cumulative. The sureties are liable to contribution among 
themselves in a ratio to be determined by the aggregate of the penal- 
ties of the several bonds. Moore v. Boiidinot, 64 IST. C. 190. The 
sureties of a deputy assessor united in a bond for his faithful perform- 
ance of '' the duties of said office of deputy assessor during his contin- 
uance therein." The county being redistricted, the deputy assessor 
was re-appointed and afterward became a defaulter. Held, that the 
sm-eties were liable. Kruttschnitt v. Ilauck, 6 Nev. 163. But where 
an officer serves two terms, the sureties on his bond for the second 
term are not liable for money which he should have had as treasurer 
at the commencement of that term, but whicli he converted during 
liis first term. Vivian v. Otis, 24 Wis. 518 ; 1 Am. Rep. 199. The 
obligation of a surety on an official bond will not be extended by 
implication. St. Louis v. Sickles, 52 Mo. 122. The liability of a 
surety is not changed by a subsequent statute enlarging the powers and 
duties of the principal, especially when the acts for which it is sought 
to make the surety lial)le, were not done pursuant to such new au- 
thority. Mayor, etc., of N. Y. v. Sihherns, 3 N. Y. Ct. App. Decis. 
2C6 ; Peo2jle v. Vilas, 36 N. Y. (9 Tiff.) 459. 

If the appnjval of the official bond be only required for the protec- 
tion of the ])ublic, the bond may be prosecuted although it was not 
approved. Peojjle v. Johr, 22 Mich. 461. When an officer upon 
being removed from office delivers the books to his successor, but fails 
to hand over the public moneys in his possession, it constitutes a 
breach of his bond without demand. ScJiool District v. Lyfard, 27 
Wis, 506. In an action on an official lx)nd, the declarations of the 
obligor at the time of executing the bond, in the absence of the obligee 



OFFICE AND OFFICER. 7 

or his agent, are not admissible in evidence. North Mo. R. R. Co. v. 
W heathy, 49 Mo. 136. 

§ 9. Officers de facto. All that is required where there is an office 
to constitute a person an officer de facto is, that he claims the office and 
is in possession of it performing its duties under color of an election or 
appointment, although such election or appointment be not valid. 
The official acts of such persons are recognized as lawful on grounds 
of public policy and for the protection of those having official business 
with public functionaries. Bucknam v. Ruggles, 15 Mass. 180. 
There cannot be an officer de facto -where no officer de jure is provided 
for. "Wlien the law has made provision for the filling of an office, the 
acts of an incumbent may be valid, although not lawfully appointed, 
because the public being bound to know the law, know that somebody 
may or should fill the place and perform the duties, and possession as 
to them will be evidence of title. But it is otherwise where the law 
itself negatives the idea that there can be a legal incumbent. Carle- 
ton V. People, 10 Mich. 250; Strang, Ex parte, 21 Ohio St. 610. To 
constitute a person an officer de facto, he must have actual possession 
and control of the office. McCahon v. Commnissioners, 8 Kans. 437. 
It may be in one of the following ways : 1. Without a known ap- 
pointment or election, but under such circumstances of reputation or 
acquiescence as were calculated to induce people without inquiiy to 
submit to or invoke his action, supposing him to be the officer he as- 
sumes to be. 2. Under color of a known and valid appointment or 
election, but where the officer had failed to conform to some precedent 
requirement or condition as to take an oath, give a bond, or the like. 
3. Under color of a known election or appointment, void because the 
officer was not eligible, or because there was a want of power in the 
electing or appointing body, or by reason of some defect or irregularity 
in its exercise, such ineligibility, want of power or defect being un- 
known to the public. 4, Under color of an election or appointment 
by, or pursuant to a public unconstitutional law before the same is ad- 
judged to be such. State v. Can^oll, 38 Conn. 449 ; 9 Am. Rep. 409, 
per BuTLEK, C. J. ; Peter silea v. Stone, 119 Mass. 465 ; 20 Am. 
Rep. 335. A mere usurper is one who acts without color of title and 
whose acts are utterly void. Hooper v. Goodwin, 48 Me. 79. 

Although a person may be an officer de facto without appointment 
or election by the proper authority {McLean v. State, 8 Heisk. 22) ; 
yet, in such case, there must have been an acquiescence by the public 
for such a period, as affords a strong presumption of colorable title. 
Kimball v. Alcorn, 45 Miss. 151. So, the rule that the acts of an 
officer de facto who neglects to qualify are valid as to third persons, is 



5 OFFICE AND OFFICEK. 

only applicable to one who holds office by general repute, or is in the 
exercise of official acts, or in possession of a place which has the char- 
acter of a piibhc office. Yaccari v. Maxwell, 3 Blatchf. 368. A clerk 
of the court who, after being re-elected, continues to have charge of 
the records without giving a bond or being sworn in, is at least a clerk 
de facto. Douglas v. J^eil, 7 Heisk. 438. Although the appoint- 
ment by the Governor of a person to fill the office of chancellor was in- 
valid for the reason that the nomination was not sent to the senate for 
its concurrence, yet it was held that the appointee became a chancellor 
de facto, and that his judicial acts were binding. Brady v. Howe, 50 
Miss. 607. 

A person who holds an office under the apparent authority of a 
statute is an officer de facto, and his title to the office cannot be as- 
sailed collaterally even though the statute be unconstitutional. Com, 
V. McComhs, 56 Penn. St. 436. One may become an officer de facto 
by color of appointment or election, though ineligible, or where there 
is no vacancy. Gregg v. Jamison, 55 Penn. St. 468. Where a court 
of record on the last day of the term, made an order appointing a 
person " to act as solicitor ^/"t) tern, of this court, until further orders," 
and such persons accepts 1 the appointment it was held that he thereby 
became county solicitor de facto so long as he acted under tlie appoint- 
ment, and liable to indictment for malfeasance in office, although 
there was no vacancy in the office when the order was made. Diggs 
V. State, 49 Ala. 311. The president and cashier of a bank executed 
a deed of assignment after their term of office had expired, under au- 
thority from the stockholders granted before an election for a board 
of directors not having been held on the regular day, and the charter 
providing that if the election did not take place the corporation should 
not l)e deemed dissolved. Held, that the deed of assignment was 
properly executed, the president and cashier being officers de facto if 
not de jure. MUliken v. Steiner, 56 Ga. 251. If a person having 
no authority appoint another to office, but the appointee is commis- 
sioned by a person liaving authority, lie is an officer de facto. Mallett 
V. Uncle Sa/ra, etc., Co., 1 Nev. 188. When in a proceeding to try the 
title of officers de facto, the court of final appeal in a State has ren- 
dered judgment that they have no right to the office, the color of au- 
thority has ceased, at least to all who have notice of the judgment, 
notwitlistanding such officers remain in possession of the office, and 
j)r(jfe8s to discharge its duties. Rochester, etc.. It. H. v. Cla/rke Nat. 
Bank, 60 Barb. 234. 

The acts of an officer de facto are valid so far as they affect the 
public or iiKli\-ir]iials li'i\-i!ii!- ;iii interest in them, or concern a person 



OFFICE AND OFFICER. 9 

who had a previous right thereto, or had paid a valuable consideration 
for them {Savage v. Ball, '2^ Green [IST. J.], 142; McCormick v. 
Fitch, 14 Minn. 252 ; Belfast v. Morrill, 65 Me. 580 ; People v. 
Staton, 73 N. C. 546; 21 Am. Eep. 479) ; notwithstanding the officer 
may be personally liable to a party injm'ed thereby. Rice v. Com., 3 
Bush, 14. But such acts are not valid when they are for the benefit 
of the officer ; a person not being permitted to take advantage of his 
own wrong. Patterson v. Miller, 2 Mete. (Ky.) 493 ; Venable v. Curd, 
2 Head, 582 ; Gou7'ley v. Hankins, 2 Clarke (Iowa), 75 ; Kimball v. 
Alcorn, 42 Miss. 151. The doctrine as to an officer de facto is only 
operative to protect persons who have trusted to his apparent right to 
perform the duties of the office and not against the people, in an action 
brought in their name to try the title to the office. Peo])le v. Albany, 
etc., E. R. Co., 55 Barb. 344. 

Disbursing officers charged with the duty of paying official salaries 
have, in the discharge of that duty, a right to rely upon the apparent 
title of an officer de facto, and to treat him as an officer de jure with- 
out inquiring o'liether another has the better right. Dolan v. Mayor, 
68 K Y. (23 Sick.) 274 ; S. C, 23 Am. Rep. 168. 

§ 10. Title to office, how tried. The right of a public officer to dis- 
charge the duties of his office cannot be inquired into collaterally, but 
only in a direct proceeding instituted for that j)nrpose. Jhons v. 
People, 25 Mich. 499 ; Eaton v. Harris, 42 Ala. 491 ; Gumherts v. 
Adams Express Co., 28 Ind. 181; State v. Lewis, 22 La. Ann. 33 ; Cooper 
y. Moore, 44 Miss. 386 ; Kaufman v. Stone, 25 Ark. 336. The title 
to an office cannot, therefore, be determined in a suit for the fees 
{Hunter v. Chandler, 45 Mo. 452 ; contra : Glascock v. Lyons, 20 Ind. 
1) ; nor on a mandamus to compel payment of the incumbent's salary. 
Turner v. Melony, 13 Cal. 621. When the official character of a per- 
son arises collaterally, parol evidence is admissible to show that he is 
an officer de facto. Druse v. Wheeler, 22 Mich. 439. 

The determination of the title to office concerns a civil right, which 
is to be made on the facts and issues in a court of original jurisdic- 
tion, and does not call for the exercise of the extraordinary remedial 
powers of the supreme court. Vail v. Dinning, 44 Mo. 210. Where 
a person is duly commissioned and qualified to fill a vacancy in an 
office, and his right to the office is denied by the previous incumbent, an 
action to try the title to the office must be brought by the latter, and 
not by the fonner. Beebe v. Robinson, 52 Ala. ^^. The title to an 
office cannot be called in question in an action to which the incumbent 
is not a party. Cooper v. Moore, 44 Miss. 386. Where a contestant 
of the title of another to a public office recovers judgment, and the in- 
Yoi. v.— 2 



10 OFFICE AND OFFICEK. 

ciiinbent appeals, the former is entitled to the possession of the office 
pending the appeal. Allen v. JioMnso7i, IT Minn. 113. 

A mandamus will not lie to compel the admission of a claimant into 
;i disputed office. The title of the incmnbent must first be tried on 
quo 'warranto. Duane v. McDonald^ -il Conn. 517 ; Wood v. Fitz- 
gerald^ 3 Oregon, 568. "Where, therefore, there are two contestants 
for the office, one of whom is in possession thereof, and he temporarily 
leaves the place where the business is usually transacted, but without 
intending to abandon the office, or to give it up to the other, and such 
other person, knowing the facts, steps in and proceeds to perform the 
duties of the office, as between the two, the one previously in posses- 
sion must be deemed the officer de facto. Braidy v. Tlieritt^ IT Kans. 
468. An information in the nature of a quo warranto, to determine 
which of two persons is entitled to an office, must show that the rela- 
tor possesses the requisite qualifications for the office, and that his title 
will be good if the defendant's title is defeated. State v. Boat, 46 Mo. 
528. If on quo warranto to test the right of a person to an office, 
judgment of ouster is rendered against him, all of his official acts, sub- 
sequent to the judgment, are void. Fulgliam v. Johnson, 40 Ga. 164. 
When the statute empowers the court to induct the person elected into 
office, and there are several contestants to the office, the court has juris- 
diction to settle the question as to who is elected. Blackburn v. Vick^ 
2 Heisk. 3TT. 

§ 11. Expiration of term. Wlien a statute creating an office speci- 
fies the time for holding the first election, and provides that the per- 
son elected shall continue in office two years, and until his successor is 
elected and qualified, in the absence of any thing to the contrary, it will 
be presumed that the legislature intended that the election should be 
biennial, and that the term of office should be two years. State v. 
Pearcy, 44 Mo. 159. Where the law provides that an officer, when 
appointed, shall serve for two years, and until his successor is appointed 
and qualified, in the event of a failure to appoint a successor, the 
incumbent continues to hold as an officer de jure, until his suc- 
cessor is duly appointed and qualified. State v. Howe, 25 Ohio St. 
588; 18 Am. Rep. 321. If a statute under which a person is elected 
to office is silent as to his term of office, but provides that an election 
shall be held every two years, he h<jlds until his successor qualifies. 
Cordiell v. Frizell, 1 Nev. 130. Where the statute does not specify 
the day on which a public office shall commence, but provides that 
the governor shall issue a commission to the person selected, without 
stating when it shall be done, it will be presumed that tlie commission 
was issued witliin a reasonable time, and that the term commenced 



OFFICE AND OFFICER. 11 

then. Brodie v. Carnphell, 17 Cal, 11. If a person is appointed to 
office by the governor, dimng a recess of the senate, and subsequently 
confirmed by the latter, his term commences at the date of appointment, 
and not from the time of his confirmation, although a new commission 
is then issued. Shepherd v. Ha/ralson, 16 La. Ann. 131. Where the 
Constitution of a State provides that certain officers shall be elected by 
the people, and gives the legislature power to fix the term of office 
and time and mode of election, after the legislature has taken action in 
the matter, and the office has been filled, a statute extending the term 
of the incumbent is unconstitutional. People v. Bull, 16 IST. T. 57 ; 
7 Am. Rep. 302. If an officer be com-missioned to hold office during 
a given term from a specified date, the word " from," excludes the day 
of date. Batesville Institute v. Kauffman, 18 Wall. 151. A pro\4sion 
of the Constitution which changes the manner of filling a pre-existing 
office, terminates the office and the salary belonging to it. Reynolds 
V. McAfee, 41 Ala. 237. An office is not in the nature of a contract 
or vested right, preventing new legislation upon the powers or duties 
incident to the office. When the office is created by statute, it may 
be abolished in like manner, or the term be shortened, after the 
election of the officer, unless the Constitution forbids it. State v. 
Douglas, 26 Wis. 128 ; 7 Am. Rep. 87. When a municipal coi'pora- 
tion creates a public office, it may, in its discretion, abolish the office. 
Augusta v. Sweeney, 11 Ga. 163; 9 Am. Rep. 172. 

§ 12. Holding over. At common law, a public officer chosen for a 
definite term cannot continue to hold the office upon failure to elect a 
successor. People v. Tieman, 30 Barb. 193. A statute which prohib- 
its any person from taking " upon himself to exercise any office with- 
out being legally authorized," means a willful taking, and not a hold- 
ing over, reasonably supposing it is his duty to do so until his successor 
is qualified. Kreidler v. State, 21 Ohio St. 22. 

§ 13. Resigning ottice. After election to an office, the person 
elected cannot resign until he has qualified and taken possession of the 
office. Miller v. Board of Supermsors, 25 Cal. 93. When a written 
resignation is tendered to the proper authority, and filed by liim with- 
out objection, the office becomes vacant, and the former incumbent 
cannot resume it, without a new appointment or election. Gates v. 
Delaware, 12 Iowa, 105 ; State v. Ilauss, 13 Ind. 105 ; 13 Am. Rep. 
381. If no mode of resigning the office be provided by law, and the 
appointment is not by deed, the resignation may be by parol. Van 
Orsdall v. Hazard, 3 Ilill, 213. The resignation of an officer, received 
by the court, and filed by the clerk, is an acceptance of the resignation, 
without an entry of an order. Pace v. People, 50 111. 132. A resig- 



12 OFFICE AND OFFICER. 

nation is not in general complete, until it has been accepted by the 
authority capable of receiving it, with the knowledge and consent of 
the person resigning. State v. Boecher, 56 Mo. IT. But a resigna- 
tion is sometimes deemed effectual, without acceptance. People v. 
Porter, 6 Cal. 26. Where a county solicitor resigned his office, and 
sent his resignation to the proper authority, it was held that the 
resionation was effectual withou.t acceptance, and that it could not be 
revoked. State v. Fitts, 49 Ala. 402. See Bunting v. Willis, 27 
Gratt. (Ya.) 144. A statute providing that "whenever an officer shall 
be discharged from the service," etc., means an involuntary discharge, 
and not a discharge effected by resignation. Prices Case, 4 Ct. of 
CI. 164. 

§ 14. Removal from office. It has been held that the authority 
which creates an office can abolish or change it and extend or abridge 
the terms of its incumbents. Re Bulger, 45 Cal. 553. But see 
People V. Bull, 46 N. Y. (1 Sick.) 57 ; S. C, 7 Am. Rep. 302 ; PeopU 
V. Flanagam,, 66 N. Y. (21 Sick.) 237. The power to remove from office 
belongs to the power of appointment only when the tenure is not fixed 
by law, but the office is held at the pleasure of the authority making 
the appointment. Collins v. Tracy, 36 Texas, 546. Such power 
cannot therefore be exercised by the Governor of a State whose power 
to remove is subject to statutory regulation. Diibuc v. Voss, 19 La. 
Ann. 210. In the absence, however, of any constitutional prohibition 
or statutory regulation, the power of removal is incident to the power 
of appointment. J^ewsom v. Coche, 44 Miss. 352 ; 7 Am. Rep. 686. 

Where the duration of the office is fixed by the law creating it, and 
there is a provision for removal during the term, the incumbent can 
only be removed in the manner prescribed by the law. Com. v. 
Sutherland, 3 Serg. & R. 145 ; Brown v. Grover, 6 Bush, 1. Where 
two commissions for the same office have been successively issued by 
the governor to different persons and the second commission recites 
that the party holding the first one has been removed, it will be pre- 
sumed that he was removed for causes assigned by statute. Dubuc v. 
Voss, 19 La. Ann. 210. A grant of power to the governor to remove 
an officer for a specified cause implies authority to decide as to the 
existence of the cause. State v. Doherty, 25 La. Ann. 119 ; 13 Am. 
Rej*. 131. An appointment to an office operates as a removal of the 
tlion incumbent. Keenan v. Perry, 24 Texas, 253. Where a corpo- 
rate officer did not formally resign or surrender his office, but another 
person without opposition hj tlie incuni])ent was appointed in his place, 
it was lield that he was removed. Atty.-Gen. v. Poole, 8 Beav. 75. 
If an officer be re-appointed with knowledge of his ])revious miseon- 



OFFICE AND OFFICER. 13 

duct in office, in matters not involving moral delinquency, it is a con- 
donation so far as the right to remove him therefor is concerned. 
State v. Common Council, 9 Wis. 254. Jurisdiction will not be 
assumed to oust a person from an office under color of title until his 
right to such office has been determined in the mode prescribed by law. 
Palmer v. Foley, 36 N. Y. Sup. Ct. (4 Jones & Sp.) 14 ; 45 How. 110. 
A person legally elected to and accepting an office cannot be removed 
from it without notice. JReg. v. Sadlers Co., 10 H. L. Cas. 404. 
When a judgment of removal from office is reversed, the defendant 
is restored thereto without need of any further order. Phares v. State, 
3 W. Ya. 567. 

§ 15. Yacancy in office. An office, when once filled, cannot be deemed 
vacant until the term of service expires, or until the death, removal, 
resignation or abandonment of the incumbent. Johviston v. Wilson^ 
2 K. H. 202. A vacancy in office may be created by a parol resigna- 
tion. State Y.Allen, 21 Ind. 516. If an office has become subject to 
a judicial declaration that it is vacant, the proper authority may pro- 
ceed to fill it without waiting for it to be judicially declared vacant. 
But if the rightful incumbent in attempting to take possession of the 
office is resisted by the previous incumbent, he will be compelled to 
try the right. State v. Jones, 19 Ind. 356. Where the appointment 
of the governor to fill an office requires the consent of the senate, if 
the incumbent holds over after the expiration of his term and con- 
tinues to discharge the duties of the office, there is no such vacancy as 
will render an appointment by the governor of a successor, without 
the consent of the senate, valid. People v. Bissell, 49 Cal. 408. In 
order to render two offices incompatible, so that the acceptance of the 
one by a person holding the other vacates the latter, the functions of 
the two offices must be inconsistent, as where one is subordinate to the 
other, or where an attempt to exercise both would result in a conflict 
of duty. Peoj)le v. Green, 58 IST. Y. 296. A public officer cannot 
vacate his office by accepting an incompatible office, unless the first 
office is one which he might have surrendered to the party appointing 
to the second office, or from which he might have been removed by or 
with the concurrence of such party. Rex v. Patteson, 4 B. & Ad. 
9 ; Worth v. Newton, 10 Exch. 247. Where a public officer neglects 
to give an additional bond according to law, the office becomes vacant 
and another person may be appointed to fill it, or proceedings be taken 
to divest the right of the former incumbent. Beebe v. Robinson, 52 
Ala. 66. Although the statute declares that if the oath be not taken 
and bond executed within a time named, the office shall be vacant, 
yet if the person elected or appointed has entered upon the office, 



14 OFFICE AND OFFICER 

and the proper authorities have taken no steps to remove him, the 
statute does not work that effect. State v. Coo'per, 53 Miss. 615. "Where 
no time is fixed within which a town officer shaU take the oath of office, 
his mere neglect to take it does not create a vacancy in the office. 
Glidden v. Tovde, 11 Fost. 147. A grant of power in the nature 
of a public office to several does not terminate upon the death or 
disabihty of one or more. Kingslcmd v. Palmer, 52 N. Y. 83. 



AETICLE II. 

OF THE POWERS AND DUTIES OF OFFICEE8 IN GENERAL. 

Section 1. In general. Officers having a discretionary power to 
act are not liable for errors of judgment. Sohoettgen v. Wilson, 48 
Mo. 253. When a statute provides that an officer shall do a certain 
act within a specified time, the provision is directory if substantial 
rights be not prejudiced by delay. Hart v. Plum, 14 Cal. 148. The 
forms prescribed by statute to be used by a ministerial officer must 
be substantially complied with. Wiseman v. Lynn, 39 Ind. 250. As 
a general rule, he may serve process regular on its face, whether the 
court have jurisdiction or not, or he may, if he choose, refuse to exe- 
cute such a wi-it. Davis v. Wilson, 65 111. 525 ; McLean v. Cook, 23 
Wis. 364 ; Underwood v. Robinson, 106 Mass. 296. The taking of a 
bond of indemnity by an officer is not unlawful because not expressly 
authorized ; nor necessarily a violation of a statute which prohibits 
him from taking any bond or other security by color of his office in 
any other case or manner than as provided by law, and declaring every 
bond or security thus taken void, the term " color of office " meaning 
an illegal claim of right to take the security. Griffiths v. LLardenbergh, 
41 N. Y. (2 Hand) 464. A statute conferring powers on a board of 
officers must be strictly pursued. Green v. Beeson, 31 Ind. 7. When 
one of the board was not legally elected or qualified, but is an officer 
de facto, he may lawfully join in the action of the board with those 
who are officers de jure. Belfast v. Morrill, 65 Me. 580 ; Scadding 
v. Lovfjmt, 5 Eng. L. k. Eq. 16, 30. The duties of a judicial office must 
be performed in person and cannot be delegated. But it is otherwise 
as to a ministerial office which may be exercised by a deputy. Where 
j)0wer is conferred upon municipal officers in the exercise of which 
they are to use judgment and discretion, it cannot be delegated to 
othore without legislative authority. State v. City of Paterson, 34 
N. J. 163; Sheehan v. Gleeson, 46 Mo. 100. A public officer cannot 
authorize another person to sign the officer's name to an official docu- 



OFFICE AND OFFICER. 15 

meut when the statute provides that it shall be signed by the officer 
himself. Chapman \. Limerick^ 56 Me. 390. Where a city charter 
provides that a precept shall be signed by the mayor, a precept cannot 
lawfully be signed by an alderman acting temporarily as president of 
the common council. Jeffemonmlle v, Patterson^ 32 Ind. 140. 

§ 2. Of particular officers. It is the duty of a judge to be person- 
ally present in court, and to find judicially the facts upon which his 
conclusions are based. "Where, therefore, a judge, being at a distance 
from the court, telegraphed to the clerk to discharge the jury, which 
the clerk did, it was held error. State v. Jefferson^ ^^ N. C. 309. 
When the incapacity of a judge to act as such is set up, the burden 
of showing that fact is on the party alleging it. Simon v. Haifleigh, 
21 La. Ann. 607. A judicial officer may be required by law to dis- 
charge other than judicial duties. He may, by authority of law, per- 
form ministerial acts ; but when performed, they do not become judicial 
acts. People v. Bush, 40 Cal. 344. When a clerk, or other officer of 
a court, invests money under orders of the court, he will be held to a 
stricter accountability than a guardian or trustee would be under similar 
circumstances ; and if he change the investment without the sanction 
of the court, or of the parties, he will be liable for any loss that may 
thereby accrue. Roundtree v. Barnett, 69 N. C. 76. 

Managing officers of a corporation have power to employ counsel, 
without a formal resolution to that effect. Southgate v. Atlantic <& 
Pac. P. P. Co., 61 Mo. 89. The officers of a corporation, the capital 
of which is contributed in shares, being in one sense trustees for the 
stockholders and creditors, cannot lawfully enter into a combination to 
obtain the property of the company for themselves at a sacrifice. But 
it is their duty when it becomes necessary to sell the property of the 
company, to obtain for it the highest possible price. Jackson v. Lude- 
ling, 21 Wall. 616. When a railroad company is incorporated, and 
subscriptions made to the stock, the money is subscribed upon the 
understanding that the officers intrusted with the construction of the 
road will so locate its line, and establish its depots, as to biing the 
highest pecuniary profit to the stockholders, compatible with a proper 
regard for the public convenience. And a court of equity will not en- 
force a contract resting upon, or even tending to produce, official delin- 
quency in that respect. Bestor v. Wathen, 60 111. 138. As a general 
rule, in the absence of the president of a corporation, or when a vacancy 
occurs in the office, the ^'ice-president may act in his stead, and per- 
form the duties which devolve upon the president, notwithstanding 
the act under which the corporation was organized does not mention a 
vice-president, but after providing that there shall be a president and 



16 OFFICE AND OFFICER. 

other officers named, authorizes the company to create other officers, 
and the company, by its by-laws, declared that there should be a vice- 
president, and imposed the duty upon him of assisting the president in 
the performance of such duties as he might require. Smith v. Smith, 
62 111. 493. 

Where, under a city charter giving to the common council power to 
" estabhsh, organize and maintain a city watch, and prescribe the duties 
thereof," and " to regulate the general pohce of the city," a policeman 
is duly appointed by the proper authority, it will be presumed, until 
the contrary is shown, that such policeman possesses the ordinary pow- 
ers of peace officers at common law. Doering v. State, 49 Ind. 56 ; 19 
Am. Rep. 669. 

§ 3. Mode of exercising powers. Where the legislature points out 
how an act shall be done, the directions must be strictly followed 
although the act be performed by a discretionary officer. Hudson v. 
Jefferson County Court, 28 Ark. 359. Officers of a territory upon its 
admission as a state become ad interim State officers. They cannot 
lawfully do any act prohibited by the Constitution to the officers of the 
State, but need not follow the mode of procedure prescribed for them. 
State V. Ilitchcock, 1 Kans. 1Y8. 

§ 4. Review or control over officer's action. A mandamus may be 
issued to compel an officer to perform a duty not requiring the exercise of 
discretion, although he pleads in excuse the authority of an unconstitu- 
tional law. Boarxl of Liquidation v. MoComb, 92 U. S. (2 Otto) 531. 
But a judgment in mandamus, ordering a government officer, who be- 
fore the rendering of the judgment has gone out of office, to perform 
an official act, is void, and cannot be enforced against his successor. 
Secretary v. McGarrahan, 9 Wall. 298. When the clerk of a court 
refuses to issue an execution to which a party is entitled, the latter may 
obtain a rule on the clerk to compel him to perform his duty, or he 
may sue him on his official bond. Gooch v. Gregory, 65 N. C. 142. 
For fraud or corruption, a judge can only be questioned by impeach- 
ment. Taglor v. Doremiis, 1 Harr. (IST. J.) 473. Although an officer 
be not competent to act, yet a person who, for his own benefit, has 
procured him to do so, cannot afterward repudiate such aet, on the 
ground of the discpialification of the officer. Bank of Middlebury v. 
Rutland ik Washington R. R. Co., 30 Yt. 159 

§ 5. General duties of officers. A duty imposed by law upon an 
officer is specific when there is such a state of things as renders it 
proper for its discharge. It may be imposed directly, as* when the 
officer is directed by statute to execute a particular conveyance to a 
person by name, or it may arise out of a general duty imposed by law. 



OFFICE AND OFFICEE. 17 

In either case, the duty becomes specific, the moment a proper occasion 
arises for its exercise. A duty is certain, when by law it must be ab- 
solutely performed, and the occasion, mode, and term of its exercise, 
are fixed, so that nothing remains subject to the discretion of the offi- 
cer. A duty is ministerial, when an individual has such a legal inter- 
est in its performance, that the neglect of performance becomes a 
wrong to such individual. Morton v. Comjp.-Genl.^ 4 S. C. 430. Pub- 
lic officers hold their offices subject to an increase of their duties. 
Mcundell v. New Orleans^ 21 La. Ann. 9 ; People v. White, 54 Barb. 
622. An officer will be protected in the discharge of his duties, unless 
it is clearly shown that he acted wantonly, and unnecessarily, to gratify 
a spirit of personal malice. The presmnption will be that the officer 
acted from right motives, unless the contrary be shown by other evi- 
dence than mere unfriendliness. Gregory v. Brooks, 37 Conn. 365. 

§ 6. General powers of officers. At common law, where a public 
duty is confided to several persons, or officers, it may be performed by a 
majority of them; but all must meet and confer, unless otherwise specially 
provided. Parrott v. Knickerhocker, etc., Co., 8 Abb. Pr. (N. S.) 234 ; 
38 How. 508 ; Plymouth v. Plymouth County, 16 Gray, 341. The 
action of two out of three commissioners, to all of whom was confided 
a power to be exercised, cannot be upheld when the third took no part 
in the transaction, and was ignorant of what was done, gave no implied 
consent to the action of the others, and was neither consulted by them 
nor had any opportunity to exert his legitimate influence in the deter- 
mination of the course to be pursued. Schenck v. Peay, 1 Woolw. 175. 
Where a statute gives authority to thrcQ commissioners, and provides 
for the filling of vacancies, less than three commissioners have no power 
to act. A majority may perform the duty after all have met and de- 
liberated ; but two cannot do this, when the office of the third is vacant. 
People V. Nostrand, 46 N.T. (1 Sick.) 375. "Where two persons were ap- 
pointed under a statute, to execute jointly the office of clerk to a county 
com-t, and one of them died, and the smwivor continued to hold office, 
it was held that he could not act until a successor to the deceased per- 
son had been appointed. Queen v. Wake, 8 Ell. & Bl. 384. When a 
statute, appointing commis^ners to assess lands, directs that they shaU 
jointly view and assess each acre, all of the commissioners must be 
present, both in viewing and assessing the land ; and if they are not, 
the assessment will be void. People v. Coghill, 47 Cal. 361. See 
North Carolina R. R. Co. v. Swepson, 71 N. C. 350. An assessment 
required to be made by one of the assessors of a city is good, although 
made and reported by two assessors, the greater including the less. 
Matter of Gardner, 41 How. Pr. 255. 
YoL. Y.— 3 



18 OFFICE AND OFFICER. 

§ 7. Assigning or transfer of oiflce. It has been seen, ante, p. 1, 
art. 1, § 1, that in the United States offices are incapable of being sold 
or assigned. But in England, it is otherwise, officers there being the 
subjects of vested or private interests. The office of warden of a 
forest was granted by James I to Lord Oxford, his heirs and 
assigns, and was subsequently assigned by the holder upon various oc- 
casions, and lastly to A, without any objection on the part of the 
crown. Held, that the office passed under the assignment to A, and 
that he was entitled to claim compensation upon the forest being dis- 
afforested. Wellesley v. Mornington, 23 L. J. Ch. 49. But the office 
of f orrester of the crown is an office of trust, incapable of assignment, 
without a license from the crown founded on the return to a writ of ad 
quod damnum. Atty.-Gen. v. Mathias, 4 K. & J. 5Y9 ; 4 Jur. (N. 
S.) 628. 

§ S. Deputies or assistants. The power of a deputy differs from 
that of an agent in one important respect. While an agent can only 
bind his principal when he does an act in the name of the latter a 
deputy, having, by law, all the power of his principal, may bind the 
latter in his own name. Craig v. Bradford, 3 "Wheat. 694. A clerk 
of a court of record whose term of office had expired, but whose suc- 
cessor had not qualified, got a person to discharge the duties of the office 
for Mm in his absence. The amount of a judgment of the court hav- 
ing been paid to this person, it was held that he was a deputy defactOy 
and that the payment was a satisfaction of the judgment. Kelley v. 
Story, 6 Heisk. 202. The prothonotary of a court whose duty it was 
to enrol processes, pleadings and judgments and to keep the rolls and 
records, with power to execute the office by himself or his sufficient 
deputy or deputies, having appointed a deputy, revoked by deed the 
appointment and appointed another deputy by deed. The judge of 
the court, deeming this person insufficiently qualified, rejected him and 
ajjpointed the ]>arty previously dismissed, who had not ceased to act 
and receive the fees payable to the prothonotary. He had received 
these fees while in office under the prothonotary's appointment and 
the practice had been that he retained ]3art and j)aid over the rest in 
stated portions. Held, that the offices of prothonotary and deputy 
prothonotary were not distinct, and that in the absence of a special 
contract, the deputy acted and received fees in behalf of the protho- 
notary ; that the retention of fees by the deputy on his account must 
be ascribed, not to any independent riglit, but to agreement between 
him and the prothonotary ; that the prothonotary's revocation of the 
ai)j>ointment determined the agreement and the deputy's right to 
retain any part of the fees, though if he unavoidably continued to per- 



OFFICE AND OFFICEE. 19 

form duties on behalf of the prothonotaiy, he mi^ht have a cross-claim to 
remuneration ; that the judge of the court might refuse an insufficient 
deputy nominated by the prothonotary, but could not, of his own au- 
thority, appoint another dej)uty. Qampbell v. Heiolitt, 16 Q. B. 258. 
An action will not lie by a deputy against his principal for an increase 
of salary without an express agreement, where the latter has been ap- 
pointed to a new office. Bell v. DrumTrwnd, Peake, 45. 



AETICLE III. 

RIGHTS AWD COMPENSATION. 

Section 1. In general. "When an office is created by the legislar 
tm*e, the latter has power to abolish the office or change its duties or com- 
pensation. Wilcox V. jRodmmi, 46 Mo. 322. See ante, j). 12, art. 1, 
§ 14. But where the Constitution prescribes the duties and compensa- 
tion of an office, they cannot be changed by the legislature without his 
consent, ^ing v. Hunter, 65 IST. C. 603 ; 6 Am. Rep. 754. If a per- 
son has been appointed sheriff by the governor and has duly qualified, 
he is entitled to have his accounts audited and the State auditor cannot 
lawfully refuse to do so on the ground that he is not sheriff de jure, 
when he is holding the office and performing its duties. Reynolds v. 
Mc Williams, 49 Ala. 552. 

§ 2. Right to office, books and papers. A 'prima facie right to 
an office entitles the person to the possession of the insignia, furniture, 
books and documents of the office. State v. Atherton, 15 Minn. 221 ; 
2 Am. Rep. 116. Papers or documents in the custody of a public 
officer are not subjects of replevin. The proper mode of compelling then- 
production is by mandamus. Lagrange v. State Treasurer, 24 Mich. 
468 ; McDiarmid v. Fitch, 27 Ark. 106 ; Warner v. Myers, 4 Ore- 
gon, 72. 

§ 3. Fees or salaiy. A public officer is not entitled to his salary 
until he has been sworn. Wiley v. Worth, Phill. (N. C.) 171. In 
the absence of proof to the contrary, the immemorial existence of fees 
may be presumed from uninterrupted usage. Shephard v. Payne, 16 
C. B. (N. S.) 132. "Where, however, provision is made by law for the 
compensation of a public officer, he is not entitled to remuneration for 
official services, except as so provided. Brophy v. Ma/rhle, 118 Mass. 
548. "When the salary of a public officer is fixed at a specified rate 
per month, it becomes due and payable monthly, unless some other 
time of payment is prescribed. Carroll v. Slelenthaler, 37 Cal. 193. 
"Where an act of congress gives to military officers a commission of " one 



20 OFFICE AND OFFICER 

per cent upon such amounts of money as are collected and disbursed by 
them or paid into the treasuiy," an officer is entitled to the commis- 
sion on moneys collected upon drafts sent to him by another. Randall 
\. U. S., 8 Ct. CI. 539. The salary of the governor of a State being 
only an incident of the office, cannot be recovered until the salary of 
the office has been determined. The court, therefore, before rendering 
judgment for the salary, must pass upon the title to the office. Baxter 
V. Brooks^ 29 Ark. 173. Where a statute, in the event of a vacancy 
in a public office, confers upon the deputy all the powers and imposes 
upon him all the duties attached by law to the office, upon the occur- 
rence of a vacancy he becomes entitled to the salary of the office. 
PeopU V. Eophins, 55 N. Y. (10 Sick.) 74. The salary of a United 
States minister resident abroad must be paid in the money of the United 
States or its market equivalent. Clay v. U. S., 8 Ct. CI. 210. 

A person holding a public office has a prima facie right to the 
salary thereof, although he be physically disabled from performing his 
duties. If there be no law or regulation authorizing the discontinu- 
ance of the compensation during the disability, the only remedy is his 
removal. Sleigh v. U. S., 9 Ct. CI. 369. But he is only entitled to 
compensation during the time he is the actual incumbent. Wayne 
County V. Benoit, 20 Mich. 176 ; 4 Am. Eep. 382. When officers 
are paid by commission, if there be no agreement, they have a right 
to share equally, although the labor be not equally shared. White v. 
Bullocky 4 N. Y. App. Dec. 578 ; 15 How. 102. The performance 
of the duties of an office by an intruder does not impair the right of 
the true incumbent to his salary. Carroll v. Siehenthaler, 37 Cal. 193. 
The salary appertains to the office itself, irrespective of the amount 
of work done by the incumbent. Where, therefore, a person duly 
elected has obtained judgment of ouster against one who has kept 
him out of the office under color of a certificate of election, he is 
entitled to his salary from the commencement of the term, although 
he did not qualify until after the judgment was obtained. People v. 
Miller^ 24 Mich. 458 ; 9 Am. Rep. 131. In an action by the incum- 
bent against the usurper of a public office for the fees collected 
by the defendant, the latter is not entitled to a deduction for clerk 
hire. Douglass v. State, 31 Ind. 429. As an officer de facto exists 
merely by suiierance and can assert no affirmative claim of any sort, 
he cannot maintain an action for compensation. Christain v. Gihhs, 
53 Miss. 314. 

"Where a statute creates a public office, appoints a person to fill it, 
and makes an appropriation for liis salary, a repeal of the statute ter- 
minates the office, and the right of the appointee to any salary not 



OFFICE AND OFFICER. 21 

earned before such repeal. The repeal of such an act is not a viola- 
tion of art. 1, § 10, sub. 1, of the United States Constitution. Hall v. 
State, 39 Wis. 79. In order to render a contract for the permanence 
of the salary of a public officer valid, there must be an express consti- 
tutional provision to that effect. Koontz v. Franklin, 76 Penn. St. ISl. 
If there l)e no constitutional prohibition, the authority which creates 
the compensation of a public officer may increase or diminish it ; but 
a diminution of his salary during his term of office is prospective only. 
Farwell \. Rockland, 62 Me. 296. So, where the legislature charges 
a public officer with the performance of certain duties, and gives him 
a salary therefor, it may deprive him of the right to perform the duties, 
and take the salaiy away from him and confer it upon another. Denver 
V, Hohart, 10 Nev. 28. But when the payment of the compensation of a 
United States officer is fixed by act of congress, such compensation can- 
not be enlarged or diminished by an order or regulation of a department, 
or of the president, unless power to do so is conferred by law. Golds- 
horough v. JJ. S., Taney, 80. An officer removed by the president 
during a quarter is not entitled to compensation for the whole quar- 
ter ; but his right to salary ceases when his successor assumes office. 
U. S. V. Smith, 1 Bond, GS. A person who holds two clerkships at 
the same time, one in the United States treasury and the other in the 
attorney -general's office, is not entitled to the salary of both. Talbot 
V. U. S., 10 Ct. of CI. 426. Where the State legislature adjourns for 
three or four weeks, and the business of the session is consequently 
suspended, the members and officers of the two houses are not entitled 
to their ^er clie7n compensation for the period of such adjournment. 
Moren v. Blue, 47 Ala. 709. 

An agreement between A and B, who are applicants for the same 
office, that in consideration of the withdrawal by B of his application, 
A will pay him one equal half of the emoluments of the office as long 
as A shall hold it, is contrary to public policy and void, for the reason 
that it stipulates with B for a dangerous influence over an office which 
was not intrusted to him, and for the performance of the duties of which 
he was under no obligation. Gray v. Hook, 4 N. Y. (4 Comst.) 449. 
Where the deputy of a pubhc officer is entitled by law to a percentage 
upon the fees or emoluments of the office, and on receiving his appoint- 
ment agrees to perform the duties of the office at a fixed salary, the 
agreement is void as being in violation of the statute • against buying 
and selling offices, notwithstanding the stipulated salary might possibly 
be less than the percentage allowed by law. Tappan v. Brown, 9 
Wend. 175. If an officer has an annual salary or other profits, amount- 
ing to a certain sum yearly, a deputation of such office, reserving to the 



22 OFFICE AND OFFICER. 

principal out of it not exceeding the certain profits, is not a sale of the 
office or of the deputation contrary to the statute. So, if a deputy be 
appointed to an office consisting of uncertain profits, paying any sum 
whatever out of such profits, the deputation and contract for the pay- 
ment are good, because the deputy is to pay out of the profits only, and 
cannot be charged for more than he receives. But if an office consist- 
ing of uncertain fees be granted to a deputy, together with all its fees, 
reserving a certain sum to be paid at all events, it is a sale of the office, 
and not a grant or deputation reserving a portion of the profits. Oo- 
dolphi/rh V. Tudor, 2 Salk. 469. Again, where a deputy is by law en- 
titled to certain fees or perquisites in virtue of his character of deputy 
merely, an agreement by the deputy, to give to the officer appointing 
him any portion of the share of the fees or perquisites which belong to 
the deputy as such, is a purchase of the deputation against the statute 
against buying and selHng offices. Becker v. Ten Eych, 6 Paige's Ch. 68. 

It is held that the salary or wages of an officer or servant of a county 
cannot be subjected, in the hands of the county, to garnishment or 
proceedings supplementary to execution. Wallace v. Lawyer, 54 Ind. 
501 ; S. C, 23 Am. Rep. 661. And see McLellan v. Totmg, 54 Ga. 
399 ; S. S., 21 Am. Rep. 276 ; Hightower v. Slaton, 54 Ga. 108 ; 21 
Am. Rep. 273. 

§ 4. Pay of judicial oiiicers. The compensation of judicial offi- 
cers in the several States is the subject of constitutional and statutory 
regulation, and consequently differs in each as to the mode of payment 
and amount ; the judges of the higher courts having salaries assigned 
them, while the presiding officers of inferior courts, not of record, are 
generally paid by fees. "Where the Constitution of a State provides 
that the judges of certain courts shall receive fixed and adequate sala- 
ries, which shall not be diminished during their continuance in office, 
it is within the province of the legislature, in case a new special service 
is required of a judge, to determine whether the compensation therefor 
sliall be an increase of the salary attached to the judicial office, or a 
specific allowance during the continuance of the additional service, 
when from the temporary or occasional nature of such service or other 
circumstances, it would be impolitic to increase the permanent salary. 
Sha/rpe v. Robertson, 5 Gratt. 518. 

§ 5. Fees of attorneys. An attomey is not entitled to pay for pro- 
fessional services without proving a retainer. Proof that the services 
were performed is not sufficient where there is no evidence either of a 
knowledge, or a recognition of the services, by the party sought to be 
charged. Burghart v. Gardner, 3 Barb. 64. It is not, therefore, 
enough to raise an assumpsit against a third person, that the attorney's 



OFFICE AND OFFICER. 23 

services in trying a cause were as beneficial to such third person as to 
the attorney's client. Chicago, etc., R. R. Co. v. Larned, 26 111. 218. 
So, if counsel he employed by the principal to defend an action against 
himself and two sureties, upon a note signed by them, such employ- 
ment does not, of itself, make the sureties liable for the payment of 
the counsel for his services, unless the sureties consent that such counsel 
shall be employed. Smith v. Lyford, 24 Me. 147. But where counsel, 
having in his hands the papers for the defense of a suit, enters upon 
the defense in the presence of the defendant for whom he appears, and 
keeps the papers \vithout objection, it is evidence of a retainer and 
promise of payment for his services. Goodall v. Bedel, 20 N. H. 205. 
In an action for work, labor, etc., " as counsel of and for the de- 
fendant, and upon his retainer in and about the prosecution and defense 
of divers causes," etc., for the defendant, the plaintiff may recover his 
fees as counsel in defending a third person upon the retainer of the 
defendant. Wilson v. Burr, 25 "Wend. 386. 

The attorney may recover for his services what they are reasonably 
worth in the absence of an agreement as to the price. Webh v. Brown- 
ing, 14 Mo. 353 ; Adams v. Stevens, 26 Wend. 451. Where an attor- 
ney demands from his client a certain sum in payment for services 
rendered, it is merely an offer to receive that amount ; and if payment 
be refused, he may recover whatever his services are shown to have 
been worth, although they exceed what he offered to take. Miller v. 
Beal, 26 Ind. 234. An attorney who is employed to prosecute a suit to 
final judgment for an agreed fee, and subsequently dismissed by his 
client without fault on his part, is entitled to payment for services 
already rendered. Myers v. Crockett, 14 Texas, 257. Although an 
attorney agrees with his chent to prosecute or defend a suit for a speci- 
fied sum, he may recover a larger amount as taxable costs from the adverse 
party. Phenix v. Romer, 1 Edm. Sel. Cas. 353. But an attorney 
is not entitled to recover from his client more than he agi-eed to receive 
by showing that his services were worth more. Cooj/wood v. Wallace, 
12 Ala. 790. Counsel are entitled to but one fee, although a hearing 
before referees is several times adjourned. Jordans v. Vayi Hoesen, 
18 Wend, 648. So, an attorney is not entitled to be paid a second 
time for a brief, though the cause was tried twice before referees, 
their first report having been set aside with directions that the costs 
abide the event. Potter v. Ellis, 5 Hill, 511. Where several were 
tried under a joint indictment for a riot and a joint judgment ren- 
dered against them, it was held that the attorney-general was entitled 
to but one fee. Carrowa/y v. State, 5 Hiunph. 523. But where, upon a 
joint trial for the same offense, the defendants were convicted and 



24 OFFICE AND OFFICEE. 

separately lined by the jury, and judgment rendered in accordance 
therewith, it was held that the prosecuting attorney was entitled to a 
docket fee against each of the defendants. State v. Cripe^ 5 Blackf. 6. 
The ride, that money paid under a mistake of law cannot be recovered 
back, is not applicable as between attorney and client or attorney and 
the opposite party, where money is paid for professional services the 
compensation for which is regulated by law. Moulton v. Bennett^ 
18 Wend. 586. 

An attorney is said to have a lien on the money of his client in his hands 
for his fees. Bremner^ JEx parte, IP. & D. 254 ; Read v. Bostich, 6 
Humph. 321. It is, however, rather a right to defalcate, than a lien. 
Dubois A^ppeal, 38 Penn. St. 231. If the attorney have no agree- 
ment with his client as to payment for his services, he may take from 
the money of his client in his hands, the price usually paid attorneys 
for similar services. Christy v. Douglas, Wright, 485. The lien of 
an attorney is lost by his assigning his claim. Chappel v. Dann, 21 
Barb. 17. But the acceptance by an attorney, of an order directing 
him to pay to the plaintiifs appointee the proceeds of a judgment 
when collected, is not a waiver by the attorney of his right to retain 
his commissions for collecting. Kinsey v. Stewart, 14 Texas, 45T. 
An attorney has a lien upon a judgment recovered in favor of his client. 
McGregor v. Oomstock, 28 N. Y. 237; Currier v. Boston <& Me. R. 
R., 37 N. H. 223 ; contra : Mansfield v. Borland, 2 Cal. 507 ; Hill v. 
Brinkley, 10 Ind. 102. There is a difference between the attorney's 
lien upon the suit and cause of action, which is contingent and imper- 
fect until judgment recovered, and that upon his client's papers. The 
latter does not effect the opposite party, and may be enforced by 
retaming the papers, however the suit may have terminated. Lani- 
hert V. Buckmaster, 2 B, & C. 616. Although an attorney has a lien 
for his costs and disbursements upon a judgment in favor of his client, 
and upon his client's papers, yet such lien will not be protected against 
the pre-existing rights of third persons. Walker v. Sargeant, 14 Vt. 
247. An attorney's fees cannot be inchided in a confessed judgment. 
Martin v. Trustees, 13 Ohio, 250. Although a suit may be settled 
by the parties, without notifying their attorneys when it is done by 
them in good faith, and the attorneys in such case must look to their 
clients for their fees, yet a collusive agreement between the parties to 
practice a fraud upon their attorneys M'ill not be enforced. Ileister v. 
Den, 2 Ilurr. (N. J.) 438. The doctrine, that an attorney who has per- 
formed services pursiuuit to an agreement with liis client for a specific f ee^ 
cannot be deprived thereof l)y liis client's compromising the suit without 
his consent, includes a contingent fee dependent upon a successful ter- 



OFFICE AXD OFFICER. 25 

mination of the suit. But the attorney will not be allowed to prevent 
a compromise when continued litigation would injure the client's 
interests. Hill v. Cunningham, 25 Texas, 25. See Pulver v. Harris, 
52 ]Sr. Y. (7 Sick.) 73. Although the attorney is sometimes permitted 
to prosecute the suit for the sole purpose of perfecting and enforcing 
his lien when it is made to appear that a compromise bj his client has 
been collusive, with intent to defeat the lien ; yet this exception to 
the general power of a i^arty to settle his pending suit, has not been 
extended beyond the case of a suit for the collection of a debt and 
usually an undisputed debt. Courts have refused to extend it to con- 
tested actions sounding in tort, especially when the damages clauned 
were unHquidated. Hutchinson v. Pettes, 18 Vt. 614 ; Swain v. Senate, 
5 P. & P. 99 ; N'elson v. Wilson, 6 Bing. 568. Where an attorney 
waited seven years after a settlement and satisfaction of record by 
the parties, and then moved, after the decease of the opposite party, 
to open the satisfaction and have the costs paid him, the motion was 
denied. Winans v. Mason, 33 Barb. 522. 

An attorney is not entitled to payment for ser\'ices which, in conse- 
quence of his neglect, were of no value to his client. Nixon v. 
Phelps, 29 Yt. 198. Where a contract between an attorney and his 
client for ser\dces will enable the attorney to take an unconscionable 
advantage, and be injurious to the interests of the client if enforced, 
it will be set aside and the claim of the attorney left to a quantum 
meruit. Planters'' Bank v. Hornberger, 4 Cold. 531. But the court 
refused to disturb an agreement between an attorney and his client by 
which the attorney received a certain portion of a tract of land in liti- 
gation, as his fee for conducting the suit after it had been acted upon 
by the parties for nearly twenty years, although by reason of the 
enhanced value of the land, it appeared unreasonable. Smith v, 
Thompson, 7 B. Monr. 305. The fact that an attorney has been guilty 
of fraud in one matter intrusted to him will not affect his right to 
compensation for other independent services which were duly per- 
formed. Currie v. Cowles, 6 Bosw. 452. An attorney cannot recover 
for advice which enables his client to elude legal process, nor for advice 
which is calculated to induce the officer serving the process to violate 
his duty. Arrington v. Sneed, IS Texas, 135, So, an attorney who 
instigates another to commit, with others, a riot, and promises to 
defend him in case he is prosecuted, cannot recover for services and 
disbursements in defending him. Treat v. Jones, 28 Conn. 334. 

§ 6. Fees of clerks of courts. The clerk need not deliver process 
until he is paid his legal fees. People v. Harlow, 29 111. 43. In some 
of the States, the clerk of a court is not obliged to make out a trans- 
YoL. Y.— 4 



26 OFFICE AKD OFFICER. 

cript of the record, or file a certificate of dismissal of appeal, or enter 
any order in the case, until his fees are j^aid. Dickerson v. Shelby, 2 
Greene (Iowa), 460 ; BolanderY. Gentry, 36 Cal. 127. On the other 
hand, it has been held that the clerk of the lower court cannot law- 
fully withhold the record, until he receives his fees. JRutherford 
V. Jones, 12 Ga. 618. The clerk's fees for making out the transcript 
upon a writ of error are not taxed as a part of the costs accruing 
upon the judgment in the lower court. McCord v. Boyd, 12 Ala. 
760. A clerk of the United States circuit court is not entitled, under 
the act of congress of Feb. 26th, 1853, in relation to clerk's fees, to 
commissions "for receiving, keeping, and paying out money," unless 
the fund has been paid into court, or passed through the clerk's hands, 
or it has been agreed to be so considered. Plitt, Ex jparte, 2 Wall. 
Jr. 453. See Board of Commissioners v. Sivey, 16 Ind. 425. Where 
the clerk of a court is entitled, under a statute, to be allowed for sta- 
tionery, blank writs, subpoenas, witness certificates, etc., procured by 
him for, and actually used in his office, fall within that denomination. 
Commissioners Court v. Goldthwaite, 35 Ala. 704. The clerk of the 
court may maintain an action against the plaintiff for his fees, when 
they cannot be collected from the defendant. Ewing v. Lush, 4 Yerg. 
459. The payment to a register, of an illegal fee for the examination 
of public records, which the register refuses to permit without the fee, 
is not a voluntary payment, and may be recovered. Townshend v. 
Dyckman, 2 E. D. Smith, 224. 

§ 7. Fees of officers of courts. Courts have no power to deter- 
mine tlie compensation of their officers, or costs or fees, in advance ; 
but only to tax costs in cases not previously provided for. Rijpley v. 
Gifford, 11 Iowa, 367. A sheriff who serves a subpoena in his own 
cause is not entitled to fees for such service. Chicago <& Aurora S. 
R. Co. V. Dunning, 18 111. 494. "Where a judgment debtor, against 
whose property an execution is issued, pays the amount to the plain- 
tiff, the sheriff, who did not levy the execution before the return day, 
is not entitled to recover commissions from the defendant without an 
express agreement by him to pay them. Kincaid v. Smyth, 13 Ired. 
496. But if the commissions be allowed by the court, and no excep- 
tions be taken, the judgment will be affirmed. Irwin v. Milhurn, 10 
Mo. 456. If, however, a sheriff levies upon property under an execu- 
tion, and the judgment is afterward satisfied by agreement between 
the parties, the sheriff is entitled to his poundage, though there were 
prior levies upon the property beyond its value. Parsons v. Bowdoin, 
17 Wend. 14. Where a sheriff, liaving in his hands several executions 
against a party, makes a single levy upon the latter's property, and 



OFFICE AND OFFICER. 27 

enters the same on each execution, he can only charge for one levy, 
and not for a levy on each execution. Thrower v. Yaughan, 1 Rich. 
18. A sheriff is not entitled to fees for serving an execution contrary 
to the directions of the plaintiff. Oswitchee Co. v, Ilope, 5 Ala. 629. 
The fees of an officer for travel are to be computed by the distance 
usually traveled in going to the place, whether he, in fact, travels a 
more or less distant way to suit his own convenience. Pierce v. 
Delesdernier, IT Me. 431. In an action against an officer to recover 
the penalty for taking an illegal fee, the declaration should state the 
particular service for which the officer took the fee. AechternaGht v. 
Watmough^ 8 Watts <fe Serg. 162. 

§ 8. Extra pay. The allowance of extra pay to an officer of the 
court, not to exceed a certain sum, in the discretion of the judge, is a 
judicial and not a clerical act which requires the entry of an order. 
Baltimore v. Baltimore, 19 Md. 554. If extra services be performed 
by direction of the proper authority, having no connection with the 
duties of the office, the officer may be allowed compensation therefor. 
United States v. Austin, 2 Cliff. 325 ; United States v. Chassell, 6 
Blatchf. 421. Where public funds are stolen from an officer without 
his fault, a judicious outlay of money by him, for their recovery, should 
be borne by the government. Glenn's Case, 4 Ct. of CI. 501. Where 
the legislature authorizes its standing committee " to employ some 
competent clerk to assist them in the discharge of " a certain duty, the 
person engaged is only entitled to compensation as a clerk, and not to 
pay as a lawyer. Tenney v. State, 27 Wis. 387. Where the presi- 
dent of a corporation undertakes voluntarily, and without any agree- 
ment with the corporation for compensation, to perform for the cor- 
poration a service not strictly within the sphere of his duties as presi- 
dent, he is not entitled to remuneration for such service. Levisee v. 
Shrevepoi't City R. R. Co., 27 La. Ann. 641. As a general mile, a 
public officer is not entitled to pay for extra ser^'ices imposed upon 
him, without a statute fixing a compensation. His remedy is by ap- 
plication to the legislatiu-e. Jay County v. Tempter, 34 Ind. 322. 
When the compensation of a pubhc officer is fixed by law, he is not 
entitled to extra pay except for services which the law requires him to 
perform ha^dng no connection with the duties of his office, and for 
which the law allows compensation. Converse v. United States, 21 
How. 463 ; Stockton v. Shasta, 11 Cal. 113. Therefore, under an act 
of congress providing that when the office of governor of a territory 
becomes vacant, the secretary shall perform the duties of governor, a 
person who holds the office of secretary during a vacancy, and also 
discharges the duties of governor, can only receive salary as secretary. 



28 OFFICE AiS^D OFFICEE. 

United States v. Smith, 1 Bond, 68. So, when the statute is silent as 
to extra compensation, the clerk of the court of appeals is not entitled 
to pay for ser\rices as clerk of tlie special court of appeals. Allen v. 
Commonwealth, 6 Gratt. 529. Although a State legislature have no 
power to compel the attorney-general to discharge other duties, yet if 
such duties are imposed upon him, and he voluntarily performs them, 
it may, by an act passed during his term of office, give him a salary 
therefor, in addition to that which he receives as attorney-general. Love 
V. Baehr, 47 Cal. 364. The re-enactment of a previous statute fixing 
the salary of an officer is not a repeal of an intermediate statute giving 
him a commission for extra services. Chatfield v. Washington County, 
3 Oregon, 318. 

§ 9. Assigning fees or pay. The assignment by a public officer 
of his prospective salary is void and contrary to public policy. 
Bliss V. Lawrence, 58 N. Y. (13 Sick.) 442 ; 17 Am. Eep. 273. A 
deed of assignment conveyed the assignor's property to trustees 
for the benefit of creditors, in the following words : " All and 
sundry superiorities, lands and heritages, debts heritable and mov- 
able, and whole goods, gear, sums of money, and effects; and in 
general my whole means and estate, heritable and movable, of what- 
ever nature or denomination, or wherever situate, presently belong- 
ing to me." Held, that the profits of a public office filled by 
the assignor did not pass. Llill v. Paul, 8 C. & F. 295. Under 
a statute regulating the salaries and pensions of judges, and pro- 
viding that, upon the death of a judge, there should be paid over to 
his legal representatives, in addition to the salary then due him, a sum 
equal to the amount of six months' salary, it was held upon the death 
of a judge who had assigned as security for money advanced, the 
sum of twenty-five hundred pounds, which would be payable to his 
personal representatives, that the assignment was valid, and not against 
public policy ; it being unlike salary in tliis respect, that the judge 
could by no possibility receive it in his life- time, and the assignment 
could not, therefore, diminish his income. Arhuthnot v. Norton, 5 
Moore's P. C. C. 219. An agreement between an attorney and his 
client that the attorney shall be paid one hundred dollars for his 
services, out of the verdict, in an action for uuHquidated damages 
arising from a tort, operates as an equitable assignment to that extent 
of the amount recovered, and is valid against an attaching creditor 
of the client. Patten v. Wilson, 34 Penn. St. 299. 



OFFICE AXD OFFICEPv. 29 

AETICLE lY. 

LIABILrriES OF OFFICEKS. 

Section 1. In general. Public officers and agents are held to a 
stricter accountability than private general agents. Par set v. Barnes^ 
25 Ark. 261. The relation of principal and agent does not exist 
between public officers as to acts which are unlawful. First National 
Bank v. Watkins, 21 Mich. 483. In order to charge an officer with 
breach of duty, there must have been a valid "wi'it. Putnam v. Trae- 
ger^ QQ 111. 89. To make an officer who acts within the scope of his 
authority, liable, there must be shown malice and an intent to injure. 
Burton v. Fulton, 49 Penn. St. 151. Commissioners appointed by 
the State legislature to take measures to protect property from a 
threatened inundation, with power to turn or straighten the channel of 
a river, are not liable for damage resulting from errors of judgment 
honestly exercised, if they keep within the scope of their powers. 
Green v. Sioift, 47 Cal. 536. Where the treasurer of a township gives 
a bond " faithfully to discharge the duties of said office as required by 
law," he is liable for the moneys which come into his hands, though 
some of them have been stolen from him, without his fault or negli- 
gence. Taylor v. Morton, 37 Iowa, 550. Where an individual is 
called upon by an officer, to go with him armed, to aid in the execu- 
tion of a search warrant, he is not liable for carrying a deadly weapon 
while thus engaged, although he and the officer went in a direction 
different from the one they were required to go in executing the pro- 
cess. 0^ Connor v. State, 40 Tex. 27. When the acts of a public of- 
ficer are lawful, his motives cannot be inquired into. Moran v. Mc- 
Clearns, 41 How. Pr. 289; 4 Lans. 288; 60 Barb. 388; 63 id. 
185 ; 44 How. 30. A mandamus cannot be maintained to compel the 
State treasurer to pay a claim due from the State, unless there has 
been an appropriation therefor, and there are funds in the treasury 
appKcable thereto. Hayne v. Hood, 1 S. C. 16. 

§ 2. For ofticial acts. A ministerial officer is protected in the exe- 
cution of process regular on its face and appearing to have been issued 
by a court of competent jurisdiction {Orr v. Box, 22 Minn. 485), al- 
though he have knowledge of facts which render the process void. 
People V. Warren, 5 Hill, 440 ; G^ Shauglinessy v. Baxter, 121 Mass. 
515 ; contra: Grace v. Mitchell, 31 Wis. 545 ; Leachman v. Dough- 
erty, 81 111. 324; Sumner v. Beeler, 50 Ind. 341; 19 Am. Rep. 718. 
A warrant of arrest, wliich does not contain the christian name of the 
defendant, will not protect the officer who serves it. Prell v. Mo- 



30 OFFICE AND OFFICEE. 

Donald^ 7 Kan. 426 ; 12 Am. Kep. 423. An officer will not be pro- 
tected where the arrest is made after the defendant named in the 
warrant, subsequent to its issuance, enters into a recognizance to aj> 
peal, though he make default. State v. Quee7i, GQ N. C. 615. "Where 
a ministerial officer acting in good faith does an injury, he is not liable 
to exemplary damages therefor, but only for the actual loss. Plummer 
T. Harhut, 5 Clarke (Iowa), 308. Official acts are presumed to be 
valid unless a violation of law is apparent on their face. Davany v. 
Koon, 45 Miss. 71. Where an officer of the State, whose duty it is 
to disburse public money, refuses to apply a particular fund to the 
pui'pose for which it has been appropriated by an act of the legislature, 
it does not constitute a misappropriation of such fund. Ryerson v. 
Utley, 16 Mich. 269. Charging the jury that the motives of a public 
officer in the discharge of a duty may be inquired into by them, and 
if they find that his motives were malicious and sinister, then the act 
was unlawful, is erroneous. Moran v. Mc Gleams, 4 Lans. 288 ; 41 
How. 289 ; 60 Barb. 388 ; 63 id. 185 ; 44 How. 30. 

§ 3. Liability for judicial acts. The authorities are uniform that 
judicial officers are exempt from liability in a civil action, for judicial 
acts done within their jurisdiction, and that the judges of courts of 
superior or general authority are exempt from such liability, even 
where their judicial acts are in excess of their jurisdiction unless the 
acts in excess of their jurisdiction are done maliciously or corruptly. 
Randall v. Brigham, 7 Wall; 523 ; Lange v. Benedict, 18 Alb. L. J. 
11. But there is a limit to this judicial immunity. When duties 
which are purely ministerial are cast upon officers whose chief functions 
are judicial, and the ministerial duty is violated, the officer, although for 
most purposes a judge, is still civilly responsible for such misconduct. 
lb. And the rule is the same where judicial functions are cast upon 
a ministerial officer. But to render a judge acting in a ministerial 
capacity, or a ministerial officer acting in a capacity in its nature 
judicial, liable, it must be shown that his decisions were not onl}'^ 
erroneous, but that he acted from a spirit of willfulness, corruption and 
malice. Pike v. Megoun, 44 Mo. 491 ; Walker v. Hallock, 32 Ind, 
239 ; Fausler v. Pa/rsons, 6 W. Ya. 486 ; 20 Am. Kep. 431. Although 
an action cannot be maintained against a judicial officer for a mistake 
committed in the discharge of his duties, yet his jurisdiction, if not of 
record, must affirmatively appear ou the face of the proceedings. Wall 
v. Trumhul.l, 16 Midi. 228. 

§ 4. Liability upon contracts. Where a public officer whose 
jjower is defined by statute, in the lionest discharge of his duty, makes 
a contract, he will not, as a rule, be personally liable. All who con- 



OFFICE AKD OFFICEE. 31 

tract with him will be presumed to know the extent of his power, and 
cannot set up then* ignorance as a ground for charging him with ex- 
ceeding his authority, unless he knowingly misled them. Newman v. 
Sylvester, 42 Ind, 106. A public agent is not in general personally 
liable upon his contracts made for the government. Perrin v. Lyman, 
32 Ind. 16. A public officer charged with a quasi public trust, in the 
discharge of which an individual has an interest under a statute creat- 
ing the obligations of a contract, is not liable for the misconduct of his 
predecessor. Vose v. Reed, 54: IST. Y. (9 Sick.) 657. Where a board 
of prison directors annul a contract for the employment of convict 
labor, they act judicially and not ministerially, and in the absence of 
fraud or malice, they are not personally liable. Porter v. Haight, 
45 Cal. 631. 

§ 5. Liability for neglect. When a person elected to office does 
not give his bond and take the oath, within the time prescribed by 
law, it does not work a forfeiture of his right to the office unless the 
failure was his fault. Poss v. Williamso7i, 41 Ga. 501. But see State 
V. Matlieny, 7 Kans. 327. A ministerial officer who, by neglecting to 
perform a duty imposed upon him by law, injures a person who has a 
right to the discharge of the duty, is liable in damages to such person 
{Kendall v. Stokes, 3 How. [U. S.] 87; Connors v. Adams, 13 Hun 
[N. Y.], 427 ; DeGrauw v. Qneens County, id. 3S1 ; Adsit v. Brady, 
4 Hill, 630), and it will be no excuse that he intrusted the duty to some 
one else, who neglected it. PicTcard v. Smith, 10 C. B. (N. S.) 470. 
Although the chief functions of an officer are judicial, yet if he is charged 
with ministerial duties which he neglects to perform, he will be liable. 
Smith V. Trawl, 1 Root, 165 ; Wilson v. Mayor of New York, 1 
Denio, 595 ; Stone v. Augusta, 46 Me. 127. But where an officer has 
discretionary power to do or omit to do a certain act, he cannot be 
made liable for not doing it, however erroneously he may have judged. 
Weightman v. Washington, 1 Black, 39. Although a public officer or 
other person charged with a public employment is liable for his own 
negligence or default, or that of his agent or servant, but not in gen- 
eral for the negligence of his subordinates, yet an exception to this 
rule arises where the duties of the officer are of a private nature de- 
pending upon special employment, such for instance, as those of sheriff, 
who is Hable for the negligence or omissions of his deputy. Sawyer 
V. Corse, 17 G-ratt. 230 ; Ahrams v. Ervin, 9 Iowa, 87. 

Where a statute imposes a duty upon a ministerial officer in the per- 
formance of which an individual is specially interested, the officer is 
liable to an action for a refusal to perform the duty although he hon- 
estly beheved that the statute was unconstitutional. Clark v. MiUer^ 



32 OFFICE AND OFFICEK. 

54 N. Y. (9 Sick.) 52S. The neglect of officers to perform duties with 
which they are charged may, under pecular circumstances, amount to 
a refusal to do so. People v. Supervisors of New YorTi^ 3 N. T Ct. 
App. Decis. 566 ; 2 Keyes, 288. A public officer may be guilty of a 
misdemeanor, by neglecting to comply with the provisions of a statute, 
although such provisions as respect the public are merely directory. 
Case V. Bean, 16 Mich. 12. A statute which provides that an " omis- 
sion to perform any duty imposed by law upon a public officer," shall 
be a misdemeanor, does not apply to a condition upon which the in- 
cumbent's right to hold an office depends, but to the non-performance 
of duties pertaining to the office. Harrold, Ex parte, 47 Oal. 129. A 
ministerial officer is bound to obey the law without questioning it. He 
has no right to decide upon its validity, in order to relieve himself 
from responsibility for disobeying a peremptory mandamus. People v. 
Salomon, 54 111. 39. 

§ 6. Liability for losses. An officer is responsible to a party in- 
jured, for the failure to perform, or the insufficient or negligent per- 
formance of a duty imposed upon him by law. Thus a sheriff is lia- 
ble for loss to a creditor through the carelessness or unreasonable delay 
in the execution of process. Dorrance v. Com., 13 Penn. St. 160; 
Peircev. Partridge, 3 Mete. 44; Tucker v. Bradley, 15 Conn. 46. 
The clerk of a court is liable to a party for a loss occurring through his 
failure to take security for costs or by accepting an insufficient bond 
when he thereby violates an official duty {McNutt v. Livingston, 7 
Sm. & Marsh. 641), or by not issuing a citation, when demanded by 
the plaintiff, in consequence of which the action is barred {Anderson 
V. Johett, 14 La. Ann. 614), or by not entering a cause on the docket 
which prevented the plaintiff from obtaining judgment until another 
term, the defendant in the interval having become insolvent {BrownY. 
Lester, 13 Sm. & Marsh. 392), or by failure to record a deed ( Welles v. 
Hutchinson, 2 Root, 85), or by incorrectly certifying to the validity of 
a bond, which caused the lien of a judgment to be lost. Williams v. 
Ha/rt, 17 Ala. (N. S.) 102. A postmaster is liable for money con- 
tained in a letter lodged in the post-office, which is lost or purloined 
after he receives the letter. But if such letter is delivered to his deputy, 
the latter is liable for his own neglect, and not the principal. The 
payment of a premium is not necessary to make either of them liable ; 
the general undertaking to deliver safely, being a sufficient cause of 
action. Bolan v. Williamson, 2 Bay, 551 ; Schroyer v. Jjynch, 8 
Watts, 453. To make a postmaster liable for negligence, it must ap- 
pear that the loss or injury was the consequence of the negligence. 
Dunlop v. Munroe, 7 Cranch, 242. 



OFFICE AND OFFICER. 33 

§ 7. Liability for torts. An officer is required to keep strictly 
within the line of his duty, and if he commit acts not sanctioned or 
justified by law, a person injured thereby may maintain an action 
against him for damages. If he seize imder execution, or attach prop- 
erty which is legally exempt from sei2:ure and sale, he will be a tres- 
passer. Foss V. Stewart, 14 Me. 312 ; Kiff v. Old Colony, etc., Railwcuy^ 
117 Mass. 591 ; S. C, 19 iVm. Rep. 429. And the same is true of an 
officer who, after attaching goods, remains in possession of the defend- 
ant's house or keeps the goods there an unreasonable length of time 
{Reed v. Harrison, 2 W. Blk. 1219); or who seizes goods belonging 
to A and in A's possession upon a writ against B. Com. v. Kennard, 8 
Pick. 133. Where an officer sells the entire property in goods owned 
by two persons jointly under an execution against one of them, he is 
liable as a trespasser. Smyth v. Tanker sley, 20 Ala. 212. If an 
officer gives to a prisoner liberty not authorized by law, it constitutes 
an escape and the officer is liable therefor. Clapp v. Ha/yward, 15 
Mass. 276 ; Steere v. Field, 2 Mason, 486 ; Vilas v. Barker, 20 Yt. 
603 ; Eiley v. Whittiker, 49 N. H. 145 ; 6 Am. Rep. 474. Collectors 
of taxes who seize person or property to enforce the payment of an 
illegal tax are trespassers. Thmnpson v. Currier, 24 N. H. 237 ; 
Wetmare v. Camphell, 2 Sandf. 341 ; ShoAO v. Peckett, 25 Yt. 423. 
An officer does not commit a misdemeanor, by receiving pay for ser- 
\nces which his official duty does not require him to perform. Dut- 
ton V. City, 9 Phil. 597. The officers of a corporation in their character 
of trustees may be held liable in a court of equity for a fraudulent 
breach of trust. Colquitt v. Howard, 11 Ga. 556. That one acted in 
aid of an officer is no defense, if the officer himself was a trespasser. 
113 Mass. 29. And see Smith v. Colby, 67 Me. 169. 



ARTICLE Y. 

REMEDIES BY AND AGAINST. 

Section 1. In general. The remedies by and against officers 
grow out of their official rights, duties and responsibilities. When 
goods, which have been attached by a public officer, are taken from his 
possession, he is entitled to all the usual remedies, such as trover, tres- 
pass and replevin, against the wrong-doer. Barker v. 2£iller, 6 Johns. 
195 ; Perley v. Foster, 9 Mass. 112. If the goods have been baOed, 
and the bailee wrongfully keeps possession of them, the officer may 
maintain a suit against him for the goods, and for damages. Bridge v. 
Wyman, 14 Mass. 190. Where an officer, upon the representation of 
YoL. Y.— 5 



34 OFFICE AND OFFICEK. 

the creditor, seizes personal property as belonging to the debtor, and 
the owner of the property recovers damages against the officer, the lat- 
ter has his remedy over against the creditor, although there was no in- 
tentional misrepresentation. Humphreys v. Pratt, 5 Bligh K. E.. 
154. But where an officer attaches property which is not in the pos- 
session of the debtor, an indemnity to the officer will not be implied, 
unless he was specially requested by the creditor or his attorney to 
make the attachment. Weld v. Ohadhourne, 37 Me. 221. If goods 
which have been attached by an officer be taken from his possession by 
another officer under another writ of attachment against the same 
debtor, a suit may be maintained in the name of the first officer against 
the second officer, for the taking. Goodrich v. Church, 20 Yt. 187. 
"When an officer, having attached goods, places them in the custody of 
a third person, and the latter delivers them to the debtor, the officer 
may at any time during the continuance of the attachment retake the 
goods from the possession of the debtor. Bond v. Paddleford, 13 
Mass. 394. As the creditor has no property in goods attached, if they 
are taken or injured while in possession of the officer, his only remedy 
is against the officer. Blake v. ShoAo, 7 Mass. 505. Where cattle 
have been attached, the officer may retain the expense of their keeping 
out of the proceeds of the sale on the execution, or, in case no recovery 
is had, he is entitled to look to the creditor for re-imbursement. Tyler 
V. TJlmer, 12 Mass. 163 ; Phelps v. Campbell, 1 Pick. 59. If prop- 
erty in the custody of an officer is stolen or embezzled, he is not liable 
unless the loss arose from the culpable neglect or fraud of himself or 
his agent or servant. The Hoop, 4 Robt. Adm. 145 ; Burke v. Tre- 
vitt, 1 Mason, 96. Money in the hands of a public officer, which he 
obtained from a third person illegally, but under color of office, may 
be recovered back, although it was paid under a misconception of the 
law on the part of both or either of the parties. Barnes v. Foley, 5 
Burr. 2711 ; Tracy v. Swartwout, 10 Pet. 80. 

§ 2. Action l)y officer. An officer may maintain an action when- 
ever it becomes necessary for him to do so in order to perform his offi- 
cial duty and protect himself from liability. Where goods levied on 
by a sheriff are taken from him under a replevin in which he obtains 
judgment, it is his duty to prosecute the sureties, otherwise he will be 
liable to tlie creditor for the amount of the debt. Swezey v. Lott, 21 
N. Y. (7 Smith) 481. Persons who have a right to an office, although 
not in possession of the same, may maintain an action against intruders 
for money had and received as fees. State v. Tate, 70 N. C. 161. Where 
one who intrudes into an office receives the salary, it may be recovered 
by the person legally entitled to the office. Dorsey v. Smyth, 28 Cal. 



OFFICE AND OFFICEE. 36 

21. When it is the duty of an officer to pay over to his successor, 
money which was received by him officially, the incumbent may main- 
tain an action therefor. "Where a person, without right, discharges 
the duties of an office, an action for money had and received will lie 
at the suit of the lawful incumbent to recover the fees and emoluments 
received by the intruder, less the reasonable expenses of the latter, 
when he acted under an apparent right and in good faith. Mayfield 
V. Moore, 53 111. 428 ; 5 Am. Eep. 52. 

§ 3. Actions against. Where a ministerial duty or authority is an- 
nexed to a judicial office, if the officer executes the ministerial duty 
wrongfully, whether by mistake or fraud, he is answerable to the in- 
jured party in a suit at law. Taylor v. Doremus, 1 Harr. (N. J. ) 
473. If an officer falsely certifies to the acknowledgment of a con- 
veyance, an action therefor can only be maintained by the person 
taking directly under the conveyance, and not by a subsequent grantee. 

Wa7'e V. Broiim, 2 Bond, 267. Where, in an action of trespass, the 
defendant justifies as an officer, his right to the office and the legality 
of the election may be contested. Shejyherd v. Staten, 5 Heisk. 79. 
In an action for breach of official duty, the plaintiff must aver specific 
facts. A general averment in an action -against a town treasurer, on 
his bond, that he has not accounted for or paid over all the money he 
has received as required by law, is insufficient. Franklin v. Kirhy, 
25 Wis. 498. 

The civil remedy for misconduct in office depends upon the nature 
of the duty which has been violated. Where the duty is absolute, 
certain and imperative (which is the case with every merely ministerial 
duty), the delinquent officer is bound to make full redress to every 
person who has suffered by such delinquency. See School District 
V. Tehhetts^ 67 Me. 239. But an action will not lie in any case of 
misconduct or delinquency, however gross, in the performance of 
judicial duties ; and although the officer may not, in strictness, be a 
judge, if his powers are discretionary, they are in the nature of 
judicial acts and he is exempt from all responsibility by action 
for the motives which infiuenced him and the manner in which such 
duties were performed. From the earliest ages of the common law, 
no judge has been made answerable in a civil action for any judgment 
rendered by him as a judge, unless he exceeded his jurisdiction. 

Wilson V. Mayor, etc., of N. Y., 1 Denio, 595 ; Buriiham, v. Stevens, 
33 N. H. 247 ; Morris v. Carey, 3 Dutch. 377 ; Londegan v. Hammer, 
30 Iowa, 508. So, courts of limited jurisdiction and magistrates are 
not lial)le to a civil action for judicial acts within the scope of their 
authority. But if they exceed their powers, the whole proceeding is 
cora/m nan judice, and all concerned in such void proceedings are tres- 



36 OFFICE AND OFFICER 

passers. Groen/velt v. Burwell, 1 Ld. Raym. 454; Yates v. Lansing, 
5 Johns, 2S2 ; Phelps v. Sill, 1 Day, 315 ; Willces v. Dinsmom,, 7 How. 
(U. S.) 89; Raymond v. Bolles, 11 Cusli. 315. Town officers will be 
protected in tlie discharge of official duties calling for the exercise of 
discretion and judgment so long as they act in good faith and within 
the scope of their authority. Benjamin v. Wheeler, 15 Cray, 486 ; 
Waldron y. Berry, 51 N. H. 136. It has, however, been held, that 
an action will lie against the selectmen of a town, or the clerk of a 
parish presiding at an election, for \vrongfully rejecting the vote of a 
qualified voter, although without maHce on their part. Lincoln v. 
Hapgood, 11 Mass. 350; Oakes v. Rill, 10 Pick. 333; contra: 
Wheeler v. Patterson, 1 N. H. 88. 

The United States is not responsible for the laches or the wrongful 
acts of its officers {Jones v. United States, 18 Wall. 662) ; and where 
the government takes an official bond, the obligors are conclusively 
presumed to execute it with a full knowledge of that principle of law 
and to consent to be dealt with accordingly. HaH v. United States, 
95 U. S. (5 Otto) 316. 

It is not necessary that proceedings against attorneys for malpractice, 
or any unprofessional conduct, should be founded upon formal allega- 
tions against them. Such proceedings are often instituted upon in- 
formation developed in the progress of a cause ; or from what the court 
learns of the conduct of the attorney, from its own observation. Some- 
times they are moved by third parties upon affidavit ; and sometimes 
they are taken by the court upon its own motion All that is re- 
quisite to their validity is, that when not taken for matters occur- 
ring in open court, in the presence of the judges, notice be given to 
the attorney, of the charges made, and an opportunity afforded him 
for explanation and defense. The manner in which the proceeding 
shall be conducted, so tliat it be without oppression or unfairness, is 
a matter of judicial regulation. Randall v. Brigham, 7 Wall. 523. 

§ 4. Injunction as a remedy. An injunction will lie to restrain 
an officer from doing an unlawful act to the injury of the rights of 
another, or from committing a public wrong. Coop>er v. Alden, Har- 
ring's Ch. 72; Collins v. Rip)ley, 8 Clarke, 129 ; Att'y-Gen. v. Forhes, 
2 My. & Cr. 123. A court of equity has an undoubted jurisdiction 
to interfere by injunction, where public officers are proceeding ille- 
gally and improperly, under a claim of right, to injure real property, 
or where the exercise of such a jurisdiction is necessary to prevent 
a multiplicity of suits at law. Mohawk da Hudson R. R. Co. v. 
Artcher, 6 Paige, 83. But a court of equity will control the action 
of public officers, only to prevent a breach of trust affecting public 



OFFICE AND OFFICER. 37 

franchises, or some illegal act under color or claim of right, affect- 
ing injuriously the property rights of individuals. The plaintiff, to 
obtain an injunction, must not only show a clear legal and equitable 
right to the relief demanded, or to some part of it, but, also, that 
some act is being done by the defendant, or is threatened and im- 
minent, which will be destructive of such right, or cause material 
injury to liun. People v. Canal Boa/rd^ 55 N. Y. 390. See People 
V. Alhany, 55 Barb. 344. 

An injunction will not be granted to restrain the officers of a muni- 
cipal corporation from exercising police powers given them by law 
{City of Chicago v. Wright, 69 111. 318) ; nor to restrain an officer 
from exercising any of the functions of the office during the pen- 
dency of a suit to determine his right to the office, the public in- 
terest requiring the duties of an office to be performed by the in- 
cumbent, whether in it rightfully or not. Tappan v. Gray, 9 Paige, 
507 ; S. C, 7 Hill, 259 ; People v. Draper, 24 Barb. 265 ; Beebe v. 
Robinson, 52 Ala, 'o^. So, an injunction will not be granted in be- 
half of the claimant to an office to restrain the payment of the sal- 
ary to the incumbent ^^ending the trial of the right to the office, 
unless it is shown that an action at law for such salary would be 
of no avail. Cotton v. Price, 50 Ala. 424. But in an action by a 
deputy county clerk against his principal, for the plaintiff's share of 
fees, an injunction may be granted pending the cause, restraining 
the defendant from collecting or transferring such fees, and the sher- 
iff from paying over to the clerk those he has collected. Cheek v. 
Tilley, 31 Ind. 121. 

An officer of the court, who has obtained authority from it to sue, 
is not only authorized, but bound to proceed with his action, and he 
cannot be restrained by an injunction out of another court, or by 
making him a party to a new action and obtaining an injunction 
against him. The proper method of restraining such an officer, 
when engaged in the discharge of his official trusts, is by applica- 
tion to the court whose officer he is, for instructions. Winjield v. 
Bacon, 24 Barb. 154. It constitutes a violation of an injunction re- 
straining the parties from collecting a judgment, for them to issue an 
execution and place it in the hands of an officer, although no sale 
be made. Sugg v. Thrasher, 30 Miss. 135. "Where an order has 
been made for an injunction restraining the parties from proceeding 
to enforce their executions at law, notice to the sheriff is sufficient, 
without making him a party to the record. Ilext v. Walker, 5 Rich. 
Eq. 5. If the sheriff, after notice of an injunction, proceeds with 
an execution, it is a contempt. Edney v. King, 4 Ired. Eq. 463. 



38 OFFICE AND OFFICER 

The court will look into dealings between an attorney and his client, 
with a view to protect the latter irom. imposition, where a judgment 
was entered by an attorney, on a bond and warrant against his client, 
and part of the sum for which the judgment was rendered, included 
costs, the court directed the clerk to examine the consideration of the 
bond, and require the attorney to produce proof of the consideration, 
or answer to interrogatories on oath, and that the costs included in the 
bond should be taxed, and a report made thereon to the court, and 
that in the meantime all proceedings on the judgment should be 
stayed. JStarr v. Yanderheyde7i, 9 Johns. 253. An attorney may be 
restrained by injunction, from issuing, circulating, or misapplying, 
bills or notes to the injury of his client ; and if the retainer of the at- 
torney has been withdrawn, he may be enjoined from divulging secrets 
imparted to him in his official intercourse with his client, ^'arl of 
Oholmondeley v. Clinton, 19 Ves. 261. 



ARTICLE YI. 

DEFENSES. 

Section 1. In general. Where the defendant sets up in justifica- 
tion that he did the act charged, as an officer, he may introduce testi- 
mony to show, that, at the time of committing the act, he was an offi- 
cer de facto, such proof heing prmia facie evidence that he was an of- 
ficer de jure. Willis v. Sproule, 13 Kans. 257. But an officer will 
not be allowed to set up in defense his right to hold the office until 
his successor is appointed and qualified, if he unlawfully detains the 
certificate and commission of his successor and in this way prevents 
him from qualifying. State v. Steers, M Mo. 223. 

The rule that an officer is not liable for the execution of process, 
issued by a court of competent jurisdiction, if the process be regular 
on its face, and do not disclose a want of jurisdiction, is a rule of pro- 
tection merely. If the court issuing the process had not in fact juris- 
diction, the officer, when sued for neglect of duty, may show in de- 
fense the want of such jurisdiction. Iloush v. People, 75 111. 487. 
Where an action is brought against an officer for forcibly entering a 
house, committing an assault, and carrying away furniture, he may 
show, in mitigation of damages, that he entered to attach property, al- 
though the attachment was illegal, for the reason that the writ was not 
returned into court, if it appear that the parties to the writ had a 
settlement, in which it was stipulated that the property should be 
restored, and the writ not returned. Paine v. Fa/rr, 118 Mass. 74. 



OFFICE AND OFFICER 39 

But under a statute authorizing officers to arrest for certain offenses 
without warrant, on their own view, or the speedy information of 
others, an officer who makes an arrest under a void warrant, but which 
he supposes to be valid, without other information than that contained 
in the warrant, cannot set up the statute, in justification. Perry v. 
Johnson^ 37 Conn. 32. 

In an action against a collector, for the non-payment of money col- 
lected by him, it is not a defense that the money was stolen from him 
without his fault. New Providence v. McEachron, 33 N. J. 339. A 
receiver of public moneys of the United States, who gives a bond for 
the faithful discharge of his duties, is an insurer against all losses. It 
is not, therefore, a defense, to an action brought against him by the 
government for the amount, that he was robbed of the moneys against 
his utmost resistance. Boy den v. United States^ 13 Wall. 17. 



40 PARENT AND CHILD. 



CHAPTER CIV. 

PARENT AND CHILD. 

TITLE I. 

OF THE RELATION OF PARENT AND CHILD. 

ARTICLE I. 

OF LEGITIMATE CHILDREN". 

Section 1. Who are legitimate children. It is the true policy of 
aU good governments to encourage legitimacy of children ; and they 
usually do so by imposing disabilities upon those who are illegitimate, 
especially in respect to their claims upon their parents while living, 
and their right to inherit from them when deceased. This question 
is, therefore, one of great practical importance. Law writers usually 
define a legitimate child to be one born in lawful wedlock, or within 
a competent time after the termination of that relation. As a general 
definition this is perhaps sufficiently clear, though it is somewhat lax, 
and not entirely accurate. The fact of birth in lawful wedlock, or 
within the usual period of gestation afterward, raises a presumption of 
legitimacy ; which, however, may be rebutted by evidence, such as 
would be admissible in other cases, showing that the husband could 
not, in due course of nature, have been, or was not in fact the father 
of the child. Illinois L. & L. Co. v. Bonner, 75 111. 315. 

In Kentucky, the children of the customary marriages of negroes, 
bom before the act of 1866, are considered legitimate. Whitesides v. 
Allen, 11 Bush, 23. 

A child begotten before, but born after his parents have intermar- 
ried, is generally, though not always, treated as being legitimate. By 
the English law, the intermarriage of the parents subsequent to the 
birth of a child who was born out of wedlock, would have no effect to 
remove the stain of bastardy ; but by the civil law on the subject, 
which has been adopted generally throughout continental Europe and 
also by many of the American States, such an intermarriage renders 
the child legitimate and capable of inheriting from either parent. In 



PARENT AND CHILD. 41 

some of those States the intermarriage alone will uot have that effect, 
but the child must also be recognized by the husband as his own. 
This legitimation by the laws of the State or country where the child 
was bom is not recognized in England nor in some portions of this 
country where the common law still prevails, at least, it is held that 
the child is not thereby rendered capable of inheriting real estate else- 
where. BirtwUstU V. Yardill, 2 Clark & Fin. 571-600 ; 7 id. 895 ; 
Smith V. Derr's Adm'rs, 34 Penn. 126. See Gregg v. Tesson^ 1 
Black (U. S.), 150. 



TITLE 11. 

OF THE RIGHTS OF PARENTS. 

Section 1. Custody of children. As a general rule the law con- 
fides the custody of an infant child to one of its parents if either of 
them be living and after their death it is given to the testamentary 
guardian, if there be one, or to a general guardian properly appointed. 
The next of kin have no special right to such custody. Hughes' Case, 
1 Tuck. (N. Y. Surr.) 38. In this country the right of custody of the 
persons of infants is not usually affected by the appointment of a 
guardian of their estates in the life-time of the parent. 

The parents' right of custody ordinarily continues until the children 
arrive at the age of twenty-ene, unless a guardian is previously ap- 
pointed, but in some of the American States it ceases as to female 
infants when they reach the age of eighteen. It cannot be infringed 
even by the State without good cause, such as the gross unfitness of 
the parent for the charge or the commission of crime by the child. 
Thus, want of proper parental care, or mere idleness, will not justify 
the consignment of a child to a reform school. People v. Turner^ 55 
111. 280 ; 8 Am. Rep. 645. See Judge Redfield's note on this case, 
10 Am. Law Reg. (N. S.) 372. The supreme court of Wisconsin 
sustain the right of the State to send a child whose parents wholly fail 
to perform their duties toward it to an industrial school for support and 
education, not wholly cutting off" the right of the parents to reclaim it. 
Mihoaukee Industrial School v. Sup'rs of Milwaukee Co., 40 "Wis. 
328 ; 22 Am. Rep. 702. Nor will any thing short of the interests of 
the infant or the unfitness of the parent, by reason of gross miscon- 
duct, perverted morals, or severity and cruelty, authorize a court of 
justice to interfere and give the custody of an infant below the age 
of discretion to a third party. PulbrooTc, In re, 11 Jur. 185 ; Hyde 
V. Hyde, 29 L. J., P. M. & A. 150. 
Vol. Y.— 6 



42 PAKENT AND CHILD. 

The American coui'ts recognize the superior right of the father 
while the parents live together, but if they become separated by 
divorce or otherwise, the custody of the children will be awarded as 
between father and mother so as to promote the best interests of the 
children. Garner v. Gordon^ 41 Ind. 92 ; State v. Baird, 21 N. J. 
Eq. 384 ; Bush v. Bush, 37 Ind. 164. When a child is of the age of 
discretion, which is fixed at fourteen years, the court will usually per- 
mit him to elect between them, but if he is under that age or not 
competent to choose the court will choose for him. Matter of Wdi- 
dron, 13 Jolms. 418 ; Foster v. AIsto7i, 6 How. (Miss.) 406; Cominon- 
wealth V. Addichs, 5 Binn. (Penn.) 520 ; U. S. v. Green, 3 Mason, 
482 ; Rex v. GreenhiU, 4 Ad. & E. 624 ; 6 Nev. & M. 244. 

If a child is improperly detained by any one, the parent may regain 
possession of him by habeas corpus ; and yet the court at the hearing 
wiU not always give the custody to the petitioner against the will of 
the child, if he is suificiently mature to choose for himself. Rex v. 
Delofoal, 3 Burr. 1434. The parent has also a remedy in an action for 
damages against any one who entices away his child, or harbors him, 
knowing that he has not his parent's consent. Sargent v. Matthewson, 
38 i^. H. 54; Sherwood v. Hall, 3 Sumn. (C. C.) 127; Plummer v. 
Webb, 4 Mason, 382; Bowling v. Todd, 26 Mo. (5 Jones) 267. 

§ 2. Custody of the father. As between father and mother the 
right of the former to the custody of his legitimate children is gener- 
ally recognized by law as superior to that of the latter, whatever may 
be the age of the child. Rex v. Greenhill, 6 N'ev. & M. 244 ; 4 Ad. & 
El. 624 ; Johnson v. Terry, 34 Conn. 259. He may, however, forfeit 
that right and be deprived of the custody for misconduct, grossly im- 
moral character, or impurity of life ; and in some cases it has been 
awarded to the mother on account of the tender age of the infant and 
its need of her care. Henson v. Walts, 40 Ind. 170 ; State v. Baird, 
3 Green (N. J.), 194 ; People v. Humphreys, 24 Barb. 521 : Cominon- 
wealth V. Briggs, 16 Pick. 203. 

If a decree of divorce is rendered against the mother, for desertion 
on her part, the custody of a child, though a female of very tender 
years, will be given to the father. Oarr v. Carr, 22 Gratt. (Ya.) 168. 

In this country, generally, the father is entitled to act as guardian for 
all of his children until they arrive at majority ; and he may, by deed 
or will, dispose of their custody and tuition after his death. The ex- 
ercise of this power of a])pointing a testamentary guardian is, in some 
of the States, conditioned on the consent of the mother. 

The father also has power to relinquish the custody of his child to 
the mother or a third party, during its minority ; and where he does 



PARENT AJST> CHILD. 43 

so, or gives away the child, upon the death of the mother or other 
event, in consideration that the other party shall adopt it and care for 
it as his own, the better opinion now is that he cannot claim the inter- 
ference of a court to restore the custody to himself, against the will of 
the other party. Comjnonioealth v. Gilkeson, Wall. (Phil.) 194 ; Hurd 
on Hab. Corp. 537-545. 

§ 3. Custody of the mother. Xext to the father in right to the 
custody of a child stands its mother. AVhile the father is li^'ing, she 
ordinaiily has no disposing power over it, and the mere permission of 
the mother, unless her authority is shown, will not relieve a person 
from liability for an injury inflicted upon the child by reason of the 
running away of his horse while he is taking it to ride. Pierce v. Mil- 
lay, 62 111. 133. 

Upon the death of the father, the right to the services aixd custody 
of a minor child falls to the mother, and continues so long as she 
remains a widow ; but if she marries again, a guardian should be ap- 
pointed. In re Goodenough, 19 Wis. 274. 

In the exercise of a sound discretion, courts sometimes award the 
custody of a child to its mother, when she is living separate from her 
husband, or upon decreeing a divorce in her favor ; especially where 
the child so elects, or where the character and education of the mother 
are shown to be good, while those of the father are bad. People v. 
Mercien, 8 Paige, 47 ; State v. Cheesemun, 2 South, 445 ; Cammon- 
wealth V. Hammond, 10 Pick. 274 ; Goodrich v, Goodrich, 44 Ala. 
670. The mother of an illegitimate child is its natural guardian, and 
is entitled to its custody. 

ARTICLE II. 

PARENTAL CONTROL. 

Section 1. Control in person. In England, the legal power over 
infant children is given exclusively to the father during his life-time, 
and after his death to the mother. The right of parents to govern 
their children results from their duty to maintain and educate them. 
In support of their authority, they may exercise such chsciplincas may 
be necessary, provided, always, that it be moderate and reasonable. 
They are bound to so correct a child as to prevent him from forming 
vicious habits, and thereby becoming a nuisance to the community ; 
but the law will protect children against brutality, and will punish pa- 
rents for unreasonable or unnecessary cruelty to them. Fletcher v. 
People, 52 lU. 395. The limit of this right of chastisement can hardly 
be defined in precise terms, inasmuch as the parent acts in a qua^si ju- 



44 PARENT Al^B CHILD. 

dicial capacity when he corrects, and is not to be held responsible for 
errors of judgment. Whether it has been passed in any particular 
case can best be determined from the circumstances of that case. 

There is also a limitation of the power in other respects. It must 
be so exercised as not to endanger the child's morals, or to interfere 
with his rights of conscience. A parent cannot compel a child to join 
a particular religious denomination, yet he may restrain him from leav- 
ing one which he has joined and joining another. Commonwealth v. 
Armstrong, 1 Penn. L. J. 146 ; Commonwealth v. Sigman, 2 id, 36. 

A stepfather, who supports and maintains the children of his wife by 
a former husl)and, stands in the place of a parent, and has the same 
right of reasonable chastisement to enforce his authority, while they 
remain with him. Gorman v. State, 42 Tex. 221 . 

§ 2. Control by teachers. Parents may delegate the control of 
their children to a tutor or instructor, the better to accomplish the pur- 
pose of education. This is impliedly done whenever they send them 
to a school, public or private. The teacher then stands in loco paren- 
tis, and may exercise the same authority and enforce it in the same 
way as the parent, while the child is in his charge ; and he will be 
responsible only for an undue or unreasonable exercise of that author- 
ity. State V. Pendergrass, 2 Dev. & Bat. 365 ; Commonwealth v. 
Seed, 5 Penn. L. J. 78. He may even punish the child for acts done 
out of school, if they are prejudicial to the order and proper discipline 
of the school. Lander v. Seaver, 32 Yt. 114. To render him civilly 
liable for inflicting chastisement, there must be strong reason to believe 
that he was actuated by bad and malevolent motives ; and to render 
him criminally liable, it must be such as tends to cause permanent in- 
jury. State V. Alford, 68 K. C. 322. 



ARTICLE III. 

EIGHT TO child's SERVICES, ETC. 

Section 1. Rights of father. A father is entitled to the services 
of his infant childi-cn, at least so long as they are supported by him ; 
and if they work for others, he is entitled to their earnings or wages. 
Shute V. Dorr, 5 Wend. 204 ; Letts v. Brooks, Hill & Den. 36 ; Hol- 
lingsworth v. Swedenhorg, 40 Ind. 378 ; 1 9 Am. Rep. 687. This rule 
has been applied to the case of an infant enlisting as a seaman, cither 
witli or witliout his parents' consent, and it has been held that his 
fatlior may recover liis wages, subject in admiralty to such deductions 
as would be enforceable against the infant himself. Gifford v. Kolloclc, 



PARENT AND CHILD. 45 

3 Ware, 45 ; 9 L. R. (N. S.) 21 ; Luscom v. Osgood^ 1 Sprague, 82 ; 
7 L. R. 132. Even where the son deserted after arriving at majority, 
it was held that the father might recover what he earned during his 
minority. Coffin v. Shaw, 3 Ware, 82; 11 L. R. (N. S.) 463. But, 
on the other hand, it has been held in several cases that a parent's 
consent to the enlistment of his son into military service amounted to a 
relinquishment of all claim to the son's services during the term thereof, 
and of all control over his compensation for the military service rendered. 
Baker v. Baker, 41 Yt. 55 ; Ayer v. Ayer, id. 303. Bounties offered 
for such enhstments are considered as gifts and not wages, and the 
rule that a parent has no claim upon gifts made to his minor child has 
frequently been applied to them. Banks v. Conant, 14 Allen, 497 ; 
Magee v. Magee, 65 lU. 255 ; Mears v. Bickford, 55 Me. 528. Per 
contra, see Ginn v. Ginn, 38 Ind. 526. But if the parent's consent 
is given upon the express condition that the bounty shall belong to the 
parent, and the certificates are delivered to and collected by him, by 
the du-ection of the son, he acquires a good equitable title, and the son 
cannot afterward recover the amount. Bi'oion v. Town of Canton, 49 
N. T. (4 Sick.) 663. 

So far does the law recognize the right of the father to the services 
of his child, in return for his parental care and support, that if the 
child remains with and works for his father after majority, without 
any agreement for compensation, the law will not imply any promise 
to pay for his services. Dye v. Kerr, 15 Barb. 444 ; Cropsey v. Swee- 
n£y, 27 id. 310. An express agreement by a father to pay his child 
for ser^-ices, even for those rendered during minority, is binding on the 
father, and the child may recover upon it. Titrnan v. Titman, 64 
Penn. St. 480. 

§ 2. Rights of motlier. During the life-time of the father of legit- 
imate children, the mother has no legal claim to their services ; but 
after his death she takes his place and is entitled to the services and 
wages of her minor children, especially where she supports them, and 
she can in like manner maintain an action to recover for services ren- 
dered by them to a third party. Matthewson v. Perry, 37 Conn. 435 ; 
9 Am. Rep. 339 ; Hammond v. Corlett, 50 N. H. 501 ; 9 Am. Rep. 
288 ; Furmam. v. Yam, Sise, 56 N. Y. 435 ; 15 Am. Rep. 441. And 
the fact that such minors contributed to her support would not deprive 
her of that right. 



46 PAEENT AND CHILD. 

ARTICLE IV. 

KECOVEKY FOK INJURIES TO CHILD. 

Section 1. Recovery by father. If a personal injury to an infant 
renders liim unable to labor, or involves expense in his care and cure, 
the pecuniary loss falls upon his father, who is entitled to his services 
and is responsible for his maintenance, and for such loss the law gives 
hun a remedy by action against the wrong-doer. Mercer v. Jaclcson, 
54 111. 397 ; Stephenson v. Hall, 14 Barb. 222. It is upon the ground 
of loss of service that the right of a father to recover for the seduction 
of his infant daughter is based ; and he can maintain an action there- 
for if he was at the time entitled to her services, although she was liv- 
ing away from home. Mtilveliall v. Millward, 11 N.Y. (1 Kern.) 343 ; 
Martin v. Payne^ 9 Johns. 387 ; Clarh v. Fitch^ 2 Wend. 459 ; Green- 
wood V. Greenwood^ 28 Md. 369. But if he has bound out his child 
as an apprentice, or for any other reason the relation of master and 
servant does not exist between them, he cannot recover in such an ac- 
tion {Fostlethwaite v. Parhes, 3 Burr, 1878 ; Nioldeson v. StryTcer, 
10 Johns. 115 ; Dain v. Wycoff, 7N. Y. 191) ; unless the seducer pro- 
cured the daughter to be indentured to him with the intent and for the 
purpose of seducing her. Pain v. Wyckoff, 18 N. Y. (4 Smith) 45. 

A stepfather can also maintain an action for the seduction of his 
stepdaughter, if she has been adopted and is supported by him, and 
lives in his family, but if she actually lives elsewhere and is at the time 
of the seduction in the service of another, he cannot do so. Bracy v. 
Kihhe, 31 Barb. 273 ; Bartley v. Richtmyer, 4 N". Y. 38. 

Ordinarily, in such cases, the father is allowed to recover exemplary 
damages, based upon the disgrace to the family, but in New York, for 
an assault and battery upon the daughter, he can recover only the 
actual damages sustained in addition to necessary expenses incurred by 
him, because the infant herself can maintain an action to recover exem- 
plary damages, and her rights in that respect cannot be released or 
compromised by the father. Whitney v. Ilitchcoch, 4 Deuio, 461 ; 
Loomis V. Cline, 4 Barb. 453. 

For an injury to a child caused by the negligence of the defendant 
the parent can recover for all loss of service during the minority of 
tlie child, arising therefrom, as well as for medical and other necessary 
expenses, and the child may recover for all subsequent disability, if 
any. Traver v. Eighth Ave. R. R. Co., 4 Abb. App. Dec. 422 ; 3 
Keyes, 497 ; Oakland R. R. Co. v. Fielding, 48 Penn. St. 320. But 
the father cannot recover for such an injury if caused by his own neg 



PAREXT AXD CHILD. 47 

ligence. Hartjleld v. Boper, 21 "Wend. 615 ; Gilliga/n v. iZT. Y. db 
Harlem E. 7?. Co., 1 E D. Smith, 453. 

In Missouri it has been held that for a willful battery of a minor 
child the father can recover both compensatory and vindictive damages 
{Klingman v. Holmes, 54 Mo. 304), but ordinarily he can recover only 
for his j^ecuniary loss, and nothing will be given him on account of 
the physical suffering of the child. Sawyer v. Sauer, 10 Kans. 519. 

A father who has been put to expense in the care and restoration to 
health of a minor child injured b}" another may maintain an action 
for indemnity, although the child is too young to render service {Den- 
nis V. Clark, 2 Cush. 347 ; Sykes v. Zavdor, 49 Cal. 237), but the re- 
covery for indemnity cannot be extended beyond such expenses as were 
necessary to the cure, so as to cover the extra expense of an attempt to 
prevent or remove scars, ^arr v. Parks, 44 Cal. 46. 

In England and in some of the American States an action is also 
given by statutes for the loss of service, where a child has been killed 
by negligence. See vol. 2, 471-480, tit. Heath. 

§ 2. Recovery by mother. When by the death of its father the 
mother of an infant child becomes entitled to its services, she also be- 
comes entitled to a remedy for any injury to it which causes her loss 
or expense. She can therefore sue for the seduction of her daughterj 
although the latter may not then be living at home. Cray v. Hu7'- 
land, 50 Barb. 100 ; 51 N. Y. (6 Sick.) 424. See Furman v. Van 
Sise, 56 X. Y. (11 Sick.) 435 ; 15 Am. Eep. 441. And if there is 
no testamentary guardian, she may also sue for the destruction of the 
clothing of her infant daughter who is living with and supported by 
her. BurJce v. Louisville, etc., R. R. Co., 7 Heisk. (Tenn.) 451 ; 19 
Am. Rep. 618. 



ARTICLE Y. 

CONTROL OF CHILd's PROPERTY. 

Section 1. In geueraL A father has not, in that capacity, any 
control over the property, real or personal, of his minor children. He 
is their guardian by nature, and as such has practically the charge of 
such estate as they may have during their minority, or until another 
guardian is appointed, and he is hable to account to them when they 
come of age as to his deahngs therewith, but legally he has no control 
over such estate, and can neither sell nor lease it, nor has he any right 
to receive the rents and profits, or to receive a legacy due to a child. 
Combs V. Jackson, 2 Wend. 153 ; Fonda v. Yan Home, 15 id. 631 ; 



48 PAKENT AND CHILD. 

Kline v. Beebe, 6 Conn. 494 ; Miles v. Eaigler^ 10 Terg. 10 ; Jlf^y v. 
Calder, 2 Mass. 55; Jf^Y^s v. Boyden, 3 Pick. 213; Boss v. C'fjJJ, 9 
Yero-. 463 ; Anderson v. Darby, 1 Nott Jo McC. 369 ; Isaacs v. ^oyc?, 
5 Port. 388 ; Wilson v. Wright, Dudley (Ga.), 102. 

The motlier succeeds the father as guardian by nature, upon his 
death, but subject to the same limitations. The control of infant's 
property is therefore usually intrusted to a guardian appointed by the 
proper court ; and the father, or if he is dead, the mother is usually en- 
titled to that appointment. 

AKTICLE VI. 

OF ILLEGITIMATE CHILDKEN. 

Section 1. Who are illegitimate. An illegitimate or bastard 
child is one who is born as well as begotten out of lawful wedlock, or 
without lawful parentage. The presumption in favor of the legitimacy 
of a child born during the coverture of the mother has already been 
noticed. This presumption, Hke others, can be overcome by evidence, 
and any evidence tending to show that the husband of the mother 
could not have been the father of the child, such as his impotency, his 
long and continued absence, or want of access to the wife for a longer 
time than the period of gestation, is proper for that purpose, and is 
now held sufficient if it clearly establishes either of those facts. 
StaU V. Shmnpert, 1 S. C. 85 ; Morris v. Davies, 3 Carr. & P. 214; 
5 C. & F. 163 ; Beg. v. Mansfield, 1 Q. B. 444 ; Stegall v. Stegall, 
2 Brock (U. S.), 256; Bowles v. Bingham, 2 Munf. 442; 3 id. 
589. One born so long after the death of the husband as to de- 
stroy all presumption of its being his, or begotten and born after a 
divorce a mensa et thoi^o, and in some of the American States, one 
who is born during the wife's open cohabitation with another man 
than her husband, is deemed illegitimate. Commonwealth v. St/ricker, 
1 Browne (Penn.), 47 ; Commonwealth v. Wentz, 1 Ashm. (Penn.) 
269 ; State v. PettoAnay, 3 Hawks (N. C), 623. The issue of a mar- 
riage which is null ah initio are also illegitimate. 

The question of legitimacy often depends upon express statutes, 
which should be consulted. Of the legitimation of offspring by the in- 
termarriage of their parents sufficient has already been said. 

§ 2. Of their custody. The general rule is, that the mother is 
entitled to the custody of her illegitimate child, and as against her the 
putative father has no claim to its custody or guardianship, though 
perhaps he might have as against a stranger. Ilullam^d v. Malken, 2 
Wils. 126 ; Bohalina v. Armst/rong, 15 Barb. 24Y ; Ca/rjpenter v. Whit- 



PAEENT AND CHILD. 49 

mem, 15 Johns. 208; Wright y. Wright, 2 Mass. 109; Commonwealth 
V. Fee, 6 Serg. & R. 255 ; CommonweaUh v. Anderson, 1 Ashm. 
(Penn.) 55 ; People v. Mitchell, 44 Barb. 245. And if the putative 
father gets possession of the child by fraud, the courts will restore it 
to the mother. Rex v. Soper, 5 Term, 278 ; Rex v. Moseley, 5 East, 
224, n. 

§ 3. Of their support. The mother of a bastard child is, by law, 
chargeable with its support and maintenance. But statutes have been 
enacted in England and very generally in this country, under which 
the putative father may be compelled to support the child and indem- 
nify the public ; and in some of the States a remedy is given to the 
mother herself to compel the father to assist her in such support. If 
the father voluntarily adopts the child as his own, which he may do 
with the consent of the mother, he then becomes liable for its neces- 
sary maintenance, Ilesketh v. Gowing, 5 Esp. N. P. 131. In other 
cases he is not liable except on an express promise or an order of filia- 
tion. Cameron v. Baker, 1 C. & P. 268; Furillio v. Crowther, 7 D. 
<fe R. 612 ; Moncrief v. Fly, 19 Wend. 405 ; Wiggins v. Reiser, 6 
Ind. 252. If he makes the mother an express promise to pay a cer- 
tain sum toward the maintenance of the child, in consideration of 
her keeping secret their connection, or of not obtaining an order of 
filiation, he is bound thereby. Jennings v. Brown, 9 M. & W. 496 ; 
12 L. J. Exch. 86 ; Linnegar v. Rood, 5 C. B. 437 ; 17 L. J. C. P. 
106. 

§ 4. Of their rights of property. A bastard has no name, but 
he may assume one or acquii-e one by use, and under such name he 
may acquire and hold property and exercise all the rights in respect to 
it which other owners enjoy. Being considered the child of no one 
he has no inheritable blood. At common law he was incapable of in- 
heriting as heir either of his mother or of his putative father, and he 
could have no heirs except those of his own body. But this rule has 
been generally modified in this country, so as to allow him to inherit 
from his mother, and to transmit property to her and her heirs. 

An illegitimate child can be grantee or devisee of property by his 
acquired name. But a devise to persons who are designated merely as 
" children," or to the " child " or " son " of a woman named, prima 
facie means "legitimate child or children," and will not pass the 
property to those who are illegitimate. In order to establish a differ- 
ent application of the terms, there must be something in the wiU 
clearly showing that intention. Hill v. Crook, L. E-., 6 H. L. C. 265 ; 
7 Eng. R. 1 ; Dorin v. Dorin, L. R., 7 H. L. C. 568 ; 13 Eng. R. 90. 
YoL. Y.— 7 



50 PAEENT AND CHILD. 

TITLE III. 

DUTIES AND LIABILITIES OF PARENTS. 

ARTICLE I. 

WHAT ARE THEIK DUTIES AND LIABILITIES. 

Section 1. To support children. The duty of parents to sup- 
port, protect and educate their offspring is founded upon the nature 
of the connection between them. It is not only a moral obligation, 
but it is one which is recognized and enforced by law. The duty of 
support or maintenance consists in providing for children those things 
which are necessary. This is incmnbent upon all parents who possess 
a sufficiency of estate. When children become of the age fixed by law 
as that of majority, they are presumed to be able to support themselves, 
and the duty of parents, in that respect, then ceases in all ordinary 
cases, and yet, if by reason of mental or physical incapacity they be- 
come unable to provide for themselves, the burden is usually cast by 
statute upon the parents, provided they are of sufficient abihty. That 
liability, however, is generally limited to a person's own children or 
those whom he has adopted. A husband is not bound to support his 
stepchildren not adopted by him. Gay v. BaUou, 4 Wend. 403 ; 
Tuhh V. Harrison, 4 Term, 118 ; Cooper v. Ma/rtin, 4 East, 76 ; Stone 
v. Ca/rr, 2 Esp. 1. 

The legal obligation of parents in respect to support extends only 
to those things which are necessary, and if a parent refuses or neglects 
to provide such things for his child, and they are supplied by a 
stranger, the law will imply a promise on the part of the parent to pay 
for them. In Matter of Ryder, 11 Paige, 185. What things are 
necessaries depends somewhat upon the means of the parent, and the 
health and ability of the child to contribute to its own support. While 
the child lives with his father, or under his control, the latter will not 
be liable for articles furnished the child, unless they are such as are 
requisite to relieve him from actual want. Fm Valkenhurgh v. Wat- 
son, 13 Johns. 480 ; Pooch v. Miller, 1 Hilt. 108. 

In order to hold the parent liable in any case for goods furnished, 
either actual authority for the jjurchase must be shown, or circum- 
stances from which such authority may be implied. The effect of his 
neglect or refusal to supply necessaries as giving an implied authority 
has been noticed. Generally, if a parent allows his child a reasonable 



PAEENT AXD CHILD. 51 

sum for his support, that fact will rebut any presumption of implied 
authority in the child to bind the father for necessaries. Crantz \. 
Gill, 2 Esj). 471. So, also, if he allows a minor daughter, living away 
from home, to receive her own wages, or agrees with the employer of 
his son to relinquish all claim to the son's service, and gives notice 
that he will not be responsible for his son's debts. Goits v. Clark, 78 
HI. 229 ; Yarney v. Young, 11 Yt. 258. A general notice published 
in a newspaper, signed by a father, and stating that he has given his 
son his time and that he will make no future claim on his services or 
for his wages, and will pay no debts of his contracting, would prevent 
a recovery for goods furnished by a person to whom knowledge thereof 
was brought home, unless indeed they were strict necessaries ; but it 
would not affect the claim of a stranger who supplied the son with 
suitable necessaries, when at a distance from home, in ignorance of 
such arrangement. 1 Pars, on Cont. 310. 

If necessaries are furnished with the knowledge or consent of the 
parent, he will be liable although he has not refused to supply them. 
Rogers v. Turner, 59 Mo. 116. And if the parent allows his child 
to purchase goods on his credit, that creates an implied authority to 
purchase other goods of like character and amount. Wilkes v. Mc- 
Clung, 32 Ga. 507. An authority to a child to bind his parent for 
necessaries may also be implied from other circumstances, such as his 
failing to dissent, or to take the child away when boarding with or 
being clothed by another party, or his paying his debts for necessaries 
without notice not to trust him again. Hunt v. Tliornpson, 3 Scam. 
180; McGoon v. Irmn, 1 Pin. (Wis.) 526. So, also, if he suffers his 
children to remain abroad with their mother. Ra/wlyns v. YanDyke, 
3 Esp. 250 ; WocMl v. Coggeshall, 2 Mete. 89. 

The doctrine that, if a father turns his child away from home, 
neglects to provide for him, or so cruelly treats him that he cannot re- 
main there, held in many cases to be sufficient ground for charging 
him with necessaries fm-nished the child, has been somewhat shaken 
by other decisions. Stanton v. Willson, 3 Day, 37 ; Owen v. White, 5 
Port. (Ala.) 435 ; Urmston v. Ifewcomen, 4 A. & E. 899 ; 6 X. & M. 
454 ; Baker v. Keene, 2 Stark. 501 ; Blackhurn v. Mackey, 1 C. & P. 
1 ; 1 Eng. C. L. 295 ; Gordon v. Potter, 17 Yt. 350 ; Kelley v. Davis, 
49 N. H. 187; 6 Am. Rep. 499. But the question seems to resolve 
itself into one as to the weight of circumstances necessary to establish 
an implied authority. It has even been held in England that, where 
an infant is turned by his parent upon the world, his only resource, in 
the absence of any thing to show a contract on the father's part, is to 
apply to the parish, and the parish authorities will then take the proper 



52 PAKENT AND CHILD. 

steps to enforce the parent's liability ; and a similar doctrine has been 
held by some courts in this country, but it does not generally prevail. 
If an infant has voluntarily left his father's house, against the will 
of his father, or with his unwilling consent, the latter is not liable for 
necessaries furnished him. Shelton v. Springett, 2 J. Scott, 452 ; 11 

C. B. 462 ; Raymond v. Loyl^ 10 Barb. 483 ; Johnson v. Gibson, 4 E. 

D. Smith, 231. So, also, if the parent being willing to support the 
child, another party without his request takes and supports it. Chil- 
cott V. TrimUe, 13 Barb. 502. 

A parent is also bound to protect his infant child, and therefore he 
may aid and maintain him in a law suit, and take sides with him in a 
fight, and may do all that the child himself may lawfully do in his 
defense. 

§ 2. Duty of the father. The obligation of supporting infant 
children falls primarily upon the father, and if of sufficient ability, he 
is liable to support them, even though they may have an estate of their 
own. Burritt v. Burritt, 29 Barb. 124. If the father is not able to 
support and educate his children in a manner suitable to their fortune 
or expectations, an allowance will usually be made, by courts having 
cognizance of such matters, out of the infant's estate for those pur- 
poses, Tompkins v, Tompkins, 3 C. E. Green (N. J.), 303 ; McKnight 
V. Walsh, 23 N. J. Eq. 136 ; Buckley v. Howard, 35 Tex. 565 ; Buck- 
w(/rih V. Buckworth, 1 Cox, 80 ; Andrews v. Partington, 3 Bro. Ch. 
60 ; 2 Cox, 223 ; Mundy v. Ea/rl Howe, 4 Bro. Ch. 224. Such an al- 
lowance will also be made where the parent's estate is limited, while 
that of the children is abundant, or is larger than that of the parent. 
Matter of Kane, 2 Barb. Ch. 375 ; Jervoise v. Silk, Coop. Eq. 52 ; 
Neioport v. Cook, 2 Ashm. 332. 

Formerly it was held, that one who married a wife having children 
by a former husband was bound to maintain such children, in case she 
was able to do so when he married her, otherwise not ; but the law, as 
now understood, holds him liable only when he takes such children 
into his own fairiily and keeps them as a part thereof. Stone v. Carr, 
3 Esp. 1 ; Cooper v. Ma/rtin, 4 East, 82 ; Shar'p v. Cropsey, 11 Barb. 
224 ; Williams v. Hutchinson, 3 N. Y. 312. And see Ilill v. Han- 
ford,, 11 Ilun (N. Y.), 536. 

§ 3. Duty of the motlier. TTpou the death of the father, the duty 
of supporting minor children falls u})Oti the mother, if she is of suffi- 
cient ability ; but, if they have sufficient property of their own, she is 
under no legal obligation to support them, and an allowance will be 
made out of their estate, without regard to her circumstances. Elliott 



PARENT AKD CHILD 53 

V. Gihhons, 30 Barb. 498 ; Haley v. Bannister^ 4 Mad. Ch. 275 ; 
Ex parte Lord Petre, 7 Yes. 403. 

If the custody of infant children is awarded to the mother by the 
decree in a divorce suit, that is presumed to carry with it the obligation 
to support them, and relieves the father in that respect. Finch v. 
Finch, 22 Conn. 411. 

§ 4. To educate childreu. To provide a suitable education is one 
of the highest moral duties which a parent owes to his children ; it 
being of the greatest importance both to them personally, and to the 
State of which they constitute a part, that they be instructed in such 
branches of knowledge as will be useful and necessary to them as cit- 
izens, according to their station and calling in life. Indeed, such an 
education has sometimes been classed among necessaries, and a parent 
who has neglected or refused to provide it for his children has been 
held hable to one who did furnish it. 

This obligation too rests primarily upon the father, and although it 
is the duty of a widowed mother to provide for the education of her 
children, yet, if she marries a second time, she cannot be compelled to 
furnish means for that purpose, especially where such education is not 
absolutely necessary to enable the children to support themselves. 
Matter of Ryder, 11 Paige, 185. 

So great is the importance placed upon the intelligence of citizens by 
all enlightened governments, that they have used effectual means to 
encourage it, and a majority of them have provided for all children at 
least a common- school education at the expense of the public, while 
by some the right to compel the schooling of children is asserted and 
enforced. See note by Judge Redfield to People v. Ttirner, 10 Am. 
Law Reg. (]Sr. S.) 372, questioning this right. 

§ 5. Liabilities for cliild's torts. A parent is not liable for 
wrongful or willful acts committed by his infant child, without his 
knowledge or consent, and not in his presence, nor in the course of his 
employment, but the remedy of the injured party is against the child 
alone. Tifft v. Tifft, 4 Denio, 175 ; ivilson v. Garrard, 59 111. 51 ; 
Paulin V. Howser, 63 id. 312 ; Chandler v. Beaten, 37 Tex. 406 ; 
Baiter v. Haldeman, 24 Mo. 219 ; Paul v. Hummel, 43 id. 119 ; 
Edwards v. Grume, 13 Kans. 348. 

But, if an injury is caused by a son through ueghgence or unskill- 
fulness, wliile acting for his father, as, while driving his father's team, 
the latter will be liable therefor, just as he would had it been the fault 
of some other servant. Strohl v. Zevan, 39 Penn. St. 177. 



54 PAKENT AND CHILD. 

TITLE IV. 

EIGHTS AND DUTIES OF CHILDEEN. 

ARTICLE I. 

WHAT AEE SUCH EIGHTS AND DTJTIES. 

Section 1. Obedience and service. The rights and duties of 
parents and children as respects each other are reciprocal. The obliga- 
tion of the former to maintain and educate their infant children in- 
volves a corresj^onding obligation on the part of the latter to obey and 
assist their parents during minority, and to show them gratitude and 
reverence during their entire lives. These filial duties are not merely 
moral, but they are within the scope of human law, and in ancient 
times they were enforced by laws of great severity. Modern laws on 
this subject, though less strict or severe, yet authorize the parent to 
enforce obedience by such reasonable discipline as may be necessary. 
They also secure to the parents the services and wages of their chil- 
dren, as already shown, and when they become unable to support them- 
selves through age or infirmity, it compels the children, if of sufficient 
ability, to support them. 

In addition to these direct modes of enforcing the performance of 
duties by children, the right generally given to the parent by law in 
this country to dispose of his property by will at his pleasure, even to 
the extent of disinheriting his children, is well calculated to exert a 
salutary and restraining influence upon them. 

§ 2. Emancipation. An infant may be relieved from the obliga- 
tion of service to his parent by the consent of the latter, and such con- 
sent may be either expressly declared, or it may be implied from cir- 
cimistances. Dierher v. Iless^ 54 Mo. 246. An agreement between 
the two will be sufiicient for that juirpose. Monaghan v. School Dist, 
etc., 38 Wis. 100. Such an agreement, whereby the father gives his 
son liis time and future earnings, if made in good faith, is valid al- 
thougli tlie parent be at the time insolvent. Atwood v. Jlolconib, 39 
Conn. 270 ; 12 Am. Rep. 386. 

Emancipation may bo implied from a father's permitting his child to 
contract for limiself and hold his own wages, and if a father, knowing 
that his son lias made a contract to serve another for wages to be paid 
to himself, makes no objection to the arrangement, his assent may be 



PARENT AND CHILD. 55 

implied. Armstrong v. McDonald, 10 Barb. 300. It is sometimes 
provided by statute that in such cases the parent must notify the em- 
ployer of his child that he shall claim the wages, otherwise payment to 
the child will be valid. A j)resumption of emancipation also arises 
when a father leaves his child to manage and contract for himself for 
several years {Stiles v. Granville, 6 Cnsh. 45 S ; Denny smile v. Tres- 
cott, 30 Me. 470 ; Cloud v. Hamilton, 11 Humph. 104), especially if 
the father is absent and contributes nothing to the child's support or 
education. Canovar v. Cooper, 3 Barb. 115. The same presumption 
arises when a father, who is able to support his child, forces him to 
work abroad for a livelihood. Farrell v. Farrell, 3 Houst. (Del.) 633, 

A father's consent to his son's enhstment into military service is by 
implication a relinquishment of all claim to his services during the 
term of enlistment, and of all control over his compensation. Baker 
V. Balcer, 41 Yt. 55 ; Ayer v. Ayer, id. 303. 

§ 3. Of stepfathers. There being no natural ties between a step- 
father and the children of his wife by a former husband, there is no 
corresponding moral or legal obligation on his part to maintain them, 
nor is he entitled to their custody or services. And yet, if he receives 
them and treats them as members of his family, in such a manner as 
to raise a presmnption of his intention to create the relation of parent 
and child, he thereby assumes a liability for their support, and acquires 
the same right to their custody and services as had their real parent. 
Mowbry v. Moicbry, 64 111. 383 ; St. Ferdinand, etc., Academy v. 
Bohl), 52 Mo. 357. An infant so supported and educated by a step- 
father owes to him the same duties which he before owed to his own 
father, and cannot recover from him for services rendered, although 
they may exceed in value the expense of his education and support. 
Williams v. Hutchinson, 3 N. Y. (3 Comst.) 312. 

§ 4. Agreements between father and chikl. While a child lives 
with its parent, the law will not imply any promise on the part of the 
parent to pay for ordinary services performed by him ; nor will one be 
implied from the mere fact that such child remains at home and per- 
forms such services after coming of age. Barrett v. Barrett, 5 Oreg. 
411 ; Pellage v. Pellage, 32 Wis. 136. Nor ^vill such a promise be 
implied when an infant is received into a family not of kin to him, if 
received as a child of that family. But an express promise by a parent 
to pay for such services during minority will be valid, and may be en- 
forced. TitmoAi V. Titman, 64 Penn. St. 480 ; Tyler v. Burrington, 
39 Wis. 376. In an action for such services, the plaintiff must show 
either an express promise, or circumstances from which one may be 
implied. Carey v. Barrett, 4 Oreg. 171 ; McMillen v. Lee, 78 111. 



56 PARENT AND CHILD. 

443 ; Freeman v. Eohhison, 38 N. J. 383 ; 20 Am. Rep. 399 ; Lunay 
V. Vantyne, 40 Yt. 501. 

§ 5. Support of parents. The legal liability of cliildren to sup- 
port tlieir parents, when they are unable, through age or infirmity, to 
support themselves, i.j altogether the creature of statutes, and it can be 
enforced only as prescribed thereby. No such liability existed at com- 
mon law. Stone v. Stone, 32 Conn. 142. To charge a child, there- 
fore, the case must be brought within the terms of the statute, or else 
an express promise must be proved. Lebanon v. Griffm, 45 N. H. 558. 
And even an express promise to pay for necessaries previously fur- 
nished to a parent, without the request of the child, is invalid for want 
of consideration. Edvmrds v. Davis, 16 Johns. 281 ; Cook v. Brad- 
ley, 1 Conn. 57 ; Loomis v. Newhall, 15 Pick. 159. For a full under- 
standing of this subject the statutes should be consulted. 



TITLE V. 
RIGHTS, DUTIES AND LIABILITIES OF INFANTS. 

ARTICLE I. 

OF AN infant's EIGHTS IN GENERAL. 

Section 1 . His legal status generally. The law has such a sacred 
regard f(jr the rights of infants, that it extends its protection over them 
even before ])irth. An infant en ventre sa mere is deemed to be in esse 
for the pur])ose of taking a remainder, or any other estate or interest in 
property, which is for his benefit, whether by descent, by devise, or 
uiidi^r the statute of distributions. But as it respects the rights of third 
persons claiming through such an infant, if it be born dead, or at such 
an early stage of tlio pregnancy as to be incapable of living, it is to be 
considered as if never Ijorn or conceived. One born "wdthin the first 
six months after conception is presumptively incapable of living. Ho/T- 
per V. Archer, 4 Sni. & Marsh. 99 ; Marsellis v. Thalhimer, 2 Paige, 
35 ; Jtmkins v. Freyer, 4 id. 47 ; Sioift v. Dujjield, 5 Serg. & R. 38. 
Tlio rights of post-testamentary children are generally declared, and 
provisions fr;r their protection made by statute. 

At common law, infancy, as to both sexes, continues until the twen- 
ty-first year, and terminates at the opening of the last day of that year. 
In some of the American States the age of majority of females is fixed 



PARENT AND CHILD. 57 

at eighteeu yearis. During their minority, the Law deems children, on 
account of their tender age and want of experience, incompetent to 
perform many acts or to assume many responsibilities of which adults 
are deemed capable ; and some of their acts are deemed voidable, while 
others are absolutely void. 

The common law fixes the age at which an infant may make a valid 
will at fourteen in the case of males, and twelve in the case of females, 
but this is a matter which is usually regulated by statute. An infant 
father, capable of making a valid will, is generally permitted to appoint 
a testamentary guardian for his children ; and children having no tes- 
tamentary guardian are usually permitted to choose their own guardians 
at the age of fourteen, and if suitable persons are chosen, the courts 
will appoint them. 

An infant is entitled to the benefit of laws relieving from impris- 
onment for debt, and may make a vaKd assignment of his property 
for the purpose of obtaining a discharge from such imprisonment. 
People V. Mullin, 25 Wend. 698. 

An infant may act as the attorney or agent of another. At com- 
mon law he could act as executor or administrator, but this rule 
has been changed by statute in some States. It has been held that 
he may exercise a mere power, and his execution thereof will be 
valid. Hearle v. Greenbanh^ 3 Atk. 709 ; Sheldon v. Newtoii^ 3 Ohio 
St. 494; Thompson v. Lyon, 20 Mo. 155. Generally he is not 
now permitted to hold any public office, though he could at com- 
mon law exercise a mere ministerial office, and that right is still 
given in some of the States. Barrett v. Seward, 22 Yt. 176 ; Har- 
vey v. Hall, id. 211. 

Various law writers have attempted to define what acts of an in- 
fant are whoUy void and without binding force, but it is difficult 
to give a definition which is perfectly satisfactory. Perhaps the best 
yet given is " those acts which clearly operate to the prejudice of the 
infant." Other acts are for the most part voidable, and may be 
avoided by the infant either before or after majority. 

"Whatever a statute requires specified parties to do applies to and 
includes infants, and their acts in compHance with those statutes can- 
not be avoided. But in statutes containing general words there is an 
implied exception in favor of persons under disability. 1 Pars, on Cont. 
334. And statutes of limitation usually make express exceptions in 
favor of infants, giving them time after majority to redeem from sales 
of property in which they have an interest, or to sue for the recoveiy 
of any property, or the enforcement of any rights which would other- 
wise be lost. 
YoL. v.— 8 



58 PARENT AND CHILD. 

As a o-eneral rule, laches or neglects are not imputable to infants, 
but their rights will be protected by the courts. 

Until the age of discretion, which is usually fixed at from seven to 
fourteen years, an infant is not deemed capable of committing crimes. 
Between those ages guilty knowledge must be affirmatively shown. 
Rex V. Owen, 4 C. & P. 236; Marsh v. Loader, 14 C. B. (N. S.) 
535 ; State v. Learnarcl, 41 Yt. 585 ; Wusnig v. State, 33 Tex. 651 ; 
Commonwealth v. McKeagy, 1 Ashm. (Penn.) 248 ; State v. Doherty, 
2 Overt. (Tenn.) 80. If the charge be rape, puberty must also be 
shown. People v. Randolph, 2 Park. Or. 174. 

An infant is not generally held liable criminally for a misdemeanor 
consisting of a mere non-feasance, but he is liable for one of a posi- 
tive character. 

§ 2. Emancipation and riglit to wages. Of the nature of eman- 
cipation and how it may be conferred we have already spoken. The 
effect of it is to give an infant the right to his own services and to all 
his subsequent earnings, free from any right or claim of his parents. 
McCoy v. Huffman, 8 Cow, 84 ; Shute v. Dorr, 5 Wend. 204 ; Bur- 
lingame v. Burlingame, 7 Cow. 92. And a father, who has consented 
to £is son's contracting for himself and receiving his own wages, can- 
not withdraw that consent after the wages have been earned, Torrens 
V. Campbell, 74 Penn. St. 470, This right to earnings of course in- 
volves the right to sue for and recover them, and the right to dispose 
of them at the pleasure of the infant, but it adds nothing of binding 
force to his contracts generally, 

§ 3. Rights in real property. An infant may acquire and hold 
property, real and personal, and his rights therein will be protected 
the same as those of adults. McCloskey v. Cyphert, 27 Penn. St. 220, 
He can take real estate by devise or descent, but will receive only such 
title as his devisor or ancestor possessed, and it will be subject to the 
same burdens. If the estate granted to an ancestor or to the infant 
liimself is subject to conditions subsequent, his failure to perform 
those conditions will bar his rights as effectually as if he was an adult, 
IIoA^ens V, Patterson, 43 N. Y, (4 Hand) 218, He can also take by 
Y)urchase, but his purchases, like his other contracts, are voidable by 
him. An infant may also take a lease of lands and so long as he retains 
possession imder it, he will be liable for the rents, but he may, at any 
time, disclaim and thus exonerate liimself. Bottiller v. Newport, 21 
II. '■>, 3] \\. Wliero an infant rents a house and exercises his calling 
of a hrokei- therein, it may be left to a jury whether such use docs not 
amount to necessaries, Lowe v, Griffiths, 1 Hodges, 30 ; 1 Scott, 458. 

The care and contnjl of the real estate of infants durinjj their 



PAEENT AND CHILD. 69 

minority is usually intrusted to guardians, whose authority is, however, 
limited to leasing and collecting rents. 

"Whether infants can bind their estates by marriage settlements, and 
at what age, has been the subject of much discussion and seems not 
yet precisely settled, but their powers in that respect are generally 
regulated by statute. 

Conveyances of real estate by infants have been held not void, but 
voidable merely. Johnson v. Rockwell^ 12 Ind. 76 ; Jenhins v. 
Jenkins, 12 Iowa, 195 ; Dixon v. Merritt; 21 Minn. 196 ; Bool v. Mix, 
17 Wend. 119 ; Gillett v. Stanley, 1 Hill, 121. But the power to order 
an effectual sale and conveyance of infant's estates is usually conferred 
upon probate or other courts by statutes which prescribe the causes 
for which sales may be made and the mode of procedure. The neces- 
sity of providing funds for the support or education of the infant ; the 
unproductive character of the property and its exposure to waste and 
dilapidation, so that it will be for his interest to sell, or its being held 
in common with others, are among the most usual grounds for the 
exercise of the discretion of the courts in ordering sales, and the sales 
are effected by either general or special guardians under the direction 
of the court. 

§ 4. Rights in personal property. Infancy does not affect the 
right to acquire personal property in any of the wa3's in which it may 
be acquired by adults, except by his services, those belonging to his 
parent. He is also entitled to the same i^emedies in respect to such 
property. The privilege given by law to infants to avoid their pur- 
chases and exchanges does not render the property acquired by a con- 
tract not absolutely void any the less theirs, so long as the contract 
remains unrescinded. 

If he pm'chases property of a permanent nature, such as shares in a 
railway company, he acquires a vested interest and is liable for calls so 
long as he holds the shares and does not disaffirm the purchase. 
Birkenhead, etc.. By. Co. v. Pilcher, 5 Exch. 121 ; Northwestern 
By. Co. V. McMichael, id. 126. 

The title to articles of dress or ornament provided by a parent for 
his child remains in the parent although the property is in possession 
of the child {Prentice v. Decker, 49 Barb. 21); but if the parent gives 
such property to his child, he cannot afterward reclaim it without the 
child's consent {Smith v. Smith, 32 Eng. C. L. 677 ; 7 C. <fe P. 401) ; 
and an unqualified delivery by a father to his child is presumptive 
evidence of a gift. Whitfield v. Whitfield, 40 Miss. 352. 

An infant who has been emancipated or has been suffered by his 



60 PARENT AND CHILD. 

parent to go and make contracts for liimself without formal emancipa- 
tion, may ac(pire property by his labor or services as well as by other 
lawful means, and may bring actions in relation to it. Boohier v. 
BooMer, 39 Me. 406. The crops and stock raised by him on a leased 
farm, as well as his wages earned in work for others, will, in such a 
case, be his own and cannot be taken for his father's debts. McClos- 
hey V. Cyphert, 27 Penn. St. 220 ; Bray v. Wheeler, 29 Yt. 514. 

§ 5. Right to redress for torts. An infant is no less entitled to 
redress for tortious injuries to his person or property than is an adult. 
The right of action of a parent for an injury to his child, as has 
already Ijeen noticed, is founded upon his loss of service or the extra 
expense to which he is subjected in the care and support of the chUd, 
and ordinarily his recovery is limited to his own actual loss. But that 
does not affect the right of the infant to redress in his own name for 
the damages sustained by himself. The case of the seduction of a 
female infant is usually held to be an exception to this rule, she being 
in pari delicto and therefore unable to maintain an action in her own 
behalf, unless by some special statute. Hamilton v. Lomax, 26 Barb. 
615 ; 6 Abb. 142 ; Smith v Richards, 29 Conn. 232. 

For a refusal to admit a child to a public school or for his wrongful 
expulsion therefrom, the right of action is in the child alone and no 
action can be sustained by the parent. Donohoe v, Richards^ 38 Me. 
376 ; Spear v. Cwnmings, 23 Pick. 224 ; Boyd v. Blaisdell, 15 Ind. 
73. 

For an injury, caused by negligence, to an infant not having the dis- 
cretion necessary to avoid the danger to which he exposed himself, 
such infant is entitled to redress, notwithstanding tlie parent may have 
l)een guilty of negligence in permitting him to go where he received 
the injury. Stout v. Sioux City, etc., E. R. Co., 2 Dill. 294. 



ARTICLE n. 

DUTIES AND LIABILITIES OF INFANTS. 

Section 1. Of their contracts generally. The validity and 
binding force of contracts as a general rule depends upon, and is gov- 
cnu^d by the lex loci contractus. One indispensal)lc requisite to their 
validity is comjjctency of parties, and both the common and the civil law 
substantially agree in requiring that they have a sufficient maturity of 
age to bo able to act understand ingly before tlicy can bind themselves. 
Tli(;ro are, h(jwever, sorae few contracts by which an infant may bind 
himself as effectually as if he was of full age. Among these are con- 



PAKENT AND CHILD. 61 

tracts whicK the law requires to be made, such as an agreement or 
bond, by one against whom an order of filiation has been made to pay 
for necessaries for the support of his illegitimate child ; a criminal 
recognizance for appearance at court and the like. People v. Moores, 
4 Denio, 518; McCallY. FarJcer, 13 Mete. 372; State v. Weatherwax, 
12 Kans. 463. Their contracts for necessaries are, with some qualifi- 
cations to be noticed hereafter, so far binding upon them as to require 
them to pay therefor at prices which are fair and just, but an infant 
cannot bind himself either by parol or deed to pay a sum certain, even 
for necessaries. Beeler v. Young ^ 1 Bibb (Ky.), 519. 

Other contracts are either absolutely void or are voidable at the op- 
tion of the infant party. Of the contracts of persons under seven 
years of age, the law takes no cognizance. Those of minors above that 
age are but very few of them deemed absolutely void, and they are 
limited to such as are manifestly and necessarily prejudicial to the in- 
fant. Among these have been classed contracts of suretyship or of 
gift, sealed instruments, appointments of agents and attorneys, con- 
fessions of judgments and the like, and even these have in some cases 
been held to be merely voidable. Saunderson v. Marr, 1 H. Blk. 75; 
Fisher v. Mowbray, 8 East, 330 ; Wheaton v. East, 5 Yerg. 41, 61 ; 
Allen V. Ifinor, 2 Call, 70 ; Doe d. Thomas v. Roberts, 16 M. & W. 
778. Indeed, the current of recent authorities is in favor of holding 
aU, or very nearly all of the contracts of infants to be not void, but 
merely voidable, and capable of being ratified by him after he arrives 
at majority. 1 Pars, on Cont. 295 ; Fetrow v. Wiseman, 40 Ind. 148. 
Especially is it so held in respect to contracts which may possibly be 
beneficial to the infant. Stolces v. Brown, 4 Chand. (Wis.) 39 ; 3 Pin. 
311 ; Robinson v. Weeks, 56 Me. 102 ; Vaughan v. Parr, 20 Ark. 600. 
In this class are placed agreements as to bounty mone}' {Holt v. Holt, 
59 Me. 465) ; agreements for the partition of land {Overbach v. Heer- 
tnance, Hopk. 337 ; Rainsford v. Rainsford, Spear's Eq. 385) ; agree- 
ments to repay money advanced {Stucker v. Yoder, 33 Iowa, 177 ; Cha/pin 
V. Shafer, 49 N. Y. 607) ; the assignment of a non-negotiable note 
( Willis V. Twamhly, 13 Mass. 204) ; the compromise of a claim {Tijpton 
v. Tipton, 3 Jones' Law, 552); a settlement of damages {Baker v. 
Lovett, 6 Mass. 78) ; an account stated ( Williams v. Moor, 11 M. & 
W. 266) ; a partnership agreement {Dtmton v. Brown, 31 Mich. 182 ; 
Yinsen v, Lockard, 7 Bush [Ky.], 458) ; a purchase of goods to sell 
again {Turberville v. Whitehouse, 1 C. & P. 94) ; and all executed con- 
tracts, where the other party can be placed substantially in statu quo. 
Robinson v. Weeks, 56 Me. 102. A submission to arbitration by an 
infant is voidable, even after an award has been made. Jones v. Ph(B- 



62 PAKENT AND CHILD. 

nix Bh., 8 IST. Y. 228 ; Barnaby v. Barnahy, 1 Pick. 221 ; Britton v. 
Williams, 6 Miinf. 453. A promise of inarriaf^e is also voidable at the 
election of the infant promisor {Hunt v. Peake, 5 Cow. 475 ; Hamil- 
ton V. Lojnax, 26 Barb. 615) ; but a contract of marriage between par- 
ties above the age of consent which is nsuall v fixed at the age of four- 
teen years, is binding after it has been consummated, and marriage 
under that age is generally held good, if the parties agi^ee to continue 
it after they arrive at that age. If a statute, which requires consent of 
parents or guardians to marriages as between j)arties of certain ages, 
or their celebration in a particular manner, contains no provision de- 
claring that non-compliance with the law shall render them absolutely 
void, marriages regularly made according to the common law are held 
valid, though in violation of the statute. Milforcl v. Worcester, 7 
Mass. 48 ; Bondonderry v. Chester, 2 IS^. H. 268 • Barton v. Hervey, 
1 Gray, 119. 

A voidable contract may be avoided by the infant party either dur- 
ing his minority or within a reasonable time after he becomes of age. 
It may also be avoided by his legal representatives or his privies in 
blood after his death, but by no one else. It is always binding upon 
the adult party until disaflirmed by the infant. 2 Kent, 23Y ; Hunt v. 
Peahe, 5 Cow. 475 ; Bozeman v. Browning, 31 Ark. 364 ; Cannon 
V. Alsbury, 1 A. K. Marsh. 76 ; Warioick v. Cooper, 5 Sneed, 659 ; 
Slocum V. Hooker, 12 Barb. 564 ; Beeson v. Carlton, 13 Ind. 354 ; 
DaA)ies v. Txirton, 13 Wis. 185 ; Parsons v. Hill, 8 Mo. 135 ; Jefford 
V. Ringold, 6 Ala. 544; Austin v. Charlestown, 8 Mete. 196. A joint 
promise by an infant and an adult is also voidable by the former, but 
binds the latter. Mason v. Denison, 15 Wend. ^^. 

Tills right of an infant to avoid a contract is not affected by the fact 
that the other party supposed him to be of full age, or that he fraudu- 
lently represented that he was so, or made other fraudulent represen- 
tations to induce a credit, or that he was doing business in his own 
name and in tlie haljit of contracting for himself. Conroe v. Bird- 
sail, 1 Johns. Cas. 127 ; Burley v. Russell, 10 I^. li. 184 ; Curtim. 
V. Patton, 11 Serg. & R. 309 ; Houston v. Coojper, 2 Penn. (N. J.) 
866 ; Studwell v. Shatter, 54 N. Y. (9 Sick.) 249. 

§ 2. Contracts for service. A contract by an infant for the per- 
formance of laljor or services for anotlier is, with few exceptions, void- 
able; by him, either before or after majority. lie may, therefore, quit 
the service before the agreed time, which is in effect a disaffirmance 
of the contract, and may then sue for and recover the value of the 
services performed. Pay v. Haines, 52 111. 485 ; Gaffney v. Hayden, 
110 Mass. 137; 14 Am. Rep. 580. If he repudiates such a contract 



PARENT AND CHILD. 63 

after he has attained his majority, he maj, in a suit therefor, recover the 
value of his services, but the defendant can set off the value of neces- 
saries, such as food, clothing, schooling, etc., furnished bj him during 
the time of the service. Meredith v. Crawford^ 34 Ind. 399. 

Contracts for public service, which by law infants are authorized to 
make, such as enlistments in the army and navy, are held binding upon 
them. U. S. V. JSainhridge, 1 Mason, 71 ; Commonwealth v. Harri- 
son, 11 Mass. 65 ; Co7nmon wealth v. Murray, 4 Binn. 487. But if 
the person enlisting is not within the terms of the law, or if the con- 
sent of the parent or guardian is required by the law and is not obtained, 
the contract of enlistment is void, and the infant may be discharged 
on habeas corjnis. In re Ta/rble, 25 "Wis. 390 ; 3 Am. Rep. 85 ; State 
V. Diinick, 12 N. H. 194; Commonwealth v. Callan, 6 Binn. 255. 

A contract by an infant to serve another until his majority, in con- 
sideration of subsistence, clothing and education, is binding on him 
if reasonable and beneficial. Stone v. Dennison, 13 Pick. 1. Of 
this character is the contract of apprenticeship. The mode of 
entering into this contract, and the rights and responsibilities of the 
parties to it, are usually regulated by statute, and a strict compK- 
ance with the statutory provisions is essential to its validity. An 
infant who has engaged to serve as an apprentice, with the consent 
of parent or guardian, if required by statute, is bound by such en- 
gagement. 'Woodruff V. Logan, 1 Eng. (Ark.) 276. And he cannot 
abandon his master's service and avoid his indentures, unless his 
master deserts him. If he does, he will be liable to be proceeded 
against as provided by the statute on the subject; and his master 
will be under no obligation to receive him back, but, yet, wiU be 
entitled to his wages or gains while away. Hughes v. HuTnphreys, 
6 B. & C. 680. The master, on the other hand, is bound to fm'- 
nish his apprentice with all necessaries, or such as may have been 
stipulated for, including proper medicines and attendance in case of 
his sickness, and is not discharged by reason of the inability of the 
api^rentice to learn, nor can he turn him away for misbehavior. 
Winstone v. Linn, 1 B. & C. 460 ; Wise v. Wilson, 1 Carr. A: K. 662. 
The object of the contract being the benefit to be derived by the 
infant from the instruction and supervision of the master, it is con- 
sidered personal to him, and cannot be assigned, but it wiU termi- 
nate at his death. See ante, vol. 4, 390, tit. Master a/nd Servant. 

§ 3. Coutracts for necessaries. It is frequently stated as a rule, 
that an infant is bound absolutely by his contract for necessaries, and 
may be sued thereon, either before or after majority. But this rule 
needs the qualification that the articles be necessary under the circum- 



64 PAKENT AND CHILD. 

stances in wliich the infant is placed. So long as he lives with and is 
supported, protected and cared for by his pai-ent, master or guardian, 
he is in no actual need, and he cannot bind himself by a contract even 
for articles which would ordinarily be deemed necessaries. Angel v. 
McLellan, 16 Mass. 28; ElrodY. Myers, 2 Head (Tenn.), 83; Con^ 
noHij V. Hull, 3 McCord, 6. So, also, if he is placed at school, or is 
boarded away from home by his parent, or has already supplied him- 
self with all that he needs. But, if he is living separate from and 
not under the care of his parents or guardian, and is not supported 
by them, he is liable for necessaries supplied to him, and can bind 
himself by a contract for a purchase on credit, even though he has 
plenty of ready money. Angel v. McLellan, 16 Mass. 28. And if he is 
cai'rying on business for himself, with the consent of parent or guardian, 
he can bind himself for articles necessary for that business. An infant 
who abjures the authority of his parents without any necessity created 
by them, is likewise responsible for articles furnished for his own sup- 
port. Smith V. Young, 2 Dev. & B. (IS". C.) 26 ; Guthrie v. Murphy, 
4 Watts (Penn.), 80 ; Story v. Perry, 19 Eng. C. L. 508 ; 4 C. & P. 
526 ; Mortara v. Hall, 6 Sim. 465. 

Although an infant may bind himself to pay for necessaries, yet he 
cannot by any form of contract fix the price he is to pay so as to pre- 
clude an inquiry into its fairness and justice. He will be liable in any 
event only for the fair value of what he receives. 1 Pars, on Cont. 
313 ; Earle v. Beed, 10 Mete. 387; Parsons v. Keys, 43 Tex. 557. 

Wliat articles are necessaries it is not always easy to determine. The 
word is not used in its strictest sense in speaking of the liability of 
infants, because in each case such things are to be deemed necessaries 
as the rank, social position, fortune and age of the infant himself, or of 
his parents, render it proper and reasonable for him to have. Whether 
things of a specified kind are such necessaries is generally a question of 
law ; but whether those furnished in a particular case, or the quantity 
furnished were so, is one of fact for the determination of a jury. Har- 
rison v. Fa/ne, 1 M. & G. 550 ; Peters v. Fleming, 6 M. & W. 42 ; 
Burghart v. An/jerstein, 6 C. & P. 690 ; Bent v. Manning, 10 Vt. 
225; Stanton v. Willson, 3 Day, 37; Damis v. Caldwell, 12 Cush. 512. 

Among those things which have, in various cases, been adjudged 
necessaries, ai'e suitable board, clothing, lodgings, house rent, education, 
at least to the extent furnished by common schools, medicine, the fill- 
ing of decayed and painful teeth, things needed for the support of wife 
or cliild, or for their burial, and, in special cases, horses, oxen, regi- 
mentals, watches, jewelry, a law suit, or an attorney's services therein. 
1 Pars, on Cout. 296, 297; Swras v. Stockton, 14 B. Monr. 187 j 



PAEENT AND CHILD. 65 

Middlebury Coll. v. CJiandler, 16 Vt. 683 ; Strong v. Foote, 42 Conn. 
203 ; ChappU v. Cooper, 13 M. & W. 252 ; Kirton v. Elliott, 2 Bulst. 
69 ; Hart v. Prater, 1 Jur. 623 ; Thrall v. TFr^V^^;, 38 Vt. 494 ; Bar 
ker V. H'ibbard, 54 N. H. 539 ; 20 Am. Rep. 160 ; Mohney v. Evans, 
51 Penn. St. 80. 

And among those adjudged not necessaries, in ordinary cases, are 
articles of mere luxury for the infant himself, or for presentation to, 
or the entertainment of his friends, horses, and grain, or harness for 
them, rent of buildings for carrpng on trade, goods to trade with, loans 
of money, liquors, weapons, powder, whips, fiddles, coach hire, chro- 
nometers, balls and serenades, expensive clothing, or a superfluous quan- 
tity of it, insurance on property, articles furnished for the repair 
thereof, and the like. Brooker v. Scott, 11 M. & W. 67 ; Wharton v. 
McKenzie, 5 Q. B. 606 ; Ryder v. Womhwell, 3 L. R. Exch. 90 ; 37 L. J. 
Exch. 47; 16 W. R. 515; Merriam v. C^mningham, 11 Gush. 40; 
Mason V. Wright, 13 Mete. 306 ; Low v. Griffith, 1 Scott, 458 ; Mak- 
arell v. Bachelor, Cro. Eliz, 583 ; Glover v. Ott, 1 McCord, 572 ; 
Grace v. Hale, 2 Humph. 27 ; Clowes v. Brooke, 2 Stra. 1101 ; Hedg- 
ley V. Holt, 4 C. & P. 104 ; Berolles v. Ramsay, Holt, 77 ; Darby v. 
Boucher, 1 Salk. 279 ; West v. Greggs, 1 Grant (Penn.), 53 ; Tapper 
V. Cadwell, 12 Mete. 559. 

In order to render an infant liable, even for necessaries, they must 
have been bona fide purchased for use and not for mere ornament, and 
the credit must have been originally given to the infant himself. 
Simms v. Norris, 5 Ala. 42 ; Maddox v. Miller, 1 M. & S. 738. And 
it is for the party furnishing the articles to show that they were neces- 
saries, and, indeed, he should inquire beforehand into the circumstanceB 
of the infant, to ascertain whether he is in a situation to bind himself 
for necessaries. Such inquiry is not, however, essential to his recovery 
if the articles were in fact necessaries for which the infant could, under 
the circumstances, bind himself. Kline v. E Amoreaux, 2 Paige, 419 ; 
Perrin v. Wilson, 10 Mo. 451 ; Dalton v. Gihb, 5 Bing. N. C. 198; 7 
Scott, 117. The rule frequently announced that " a tradesman is bound 
to inquire into an infant's circumstances," simply means that he runs 
his own risk of proving the infant's liability. Steedman v. Rose, 1 
Carr. & M. 422 ; Brayshaw v. Eaton, 5 Bing. N. C. 231 ; 7 Scott, 
183. 

§ 4. Contracts under seal. A large class of instruments imder seal 
were formerly held to be absolutely void when executed by an infant. 
Among these were warrants of attorney for the conveyance of land 
{Lawrence v. McArter, 10 Ohio, 37 ; Pyle v. Crawens, 4 Lift. 17) ; 
warrants for confession of judgment {Knox v. Elack, 22 Penn. St. 337) ; 
Vol. v.— 9 



66 PARENT AND CHILD. 

a release by an infant to her guardian {Fridge v. the State, 3 G. & J. 
J04) ; a release of a legacy or of a distributive share in an estate {Lcmg- 
forcl V. Frey, 8 Hmuph. 443) ; and all bonds with penalty or for pay- 
ment of interest. Baylis v. Dineley, 3 M. & S. 477 ; Hunter v. Agnew, 
1 Fox & S. 16 ; Colcock v. Ferguson, 3 Desaus. 482, But, at the 
present day, courts are strongly inclined to hold such instruments, like 
their other contracts, to be merely voidable. Thus, penal bonds, and 
bonds Tvdth warrant of attorney have been held to be capable of ratifi- 
cation. Conroe v. Birdsall, 1 Johns. Cas. 127 ; Waj^les v. Hastings, 3 
Harr. (Del.) 403 ; Slocum v. Hooker, 13 Barb. 538. A conveyance of 
laud by an infant is held voidable only. Jenhs v. Jenkins, 12 Iowa, 195 ; 
Johnson V. Rockwell, 12 Ind. 76 ; Dixon v. Merritt, 21 Minn. 196 ; 
Bool V. Mix, 17 Wend. 119 ; Gillett v. Stanley, 1 HiU, 121. Even 
where a minor husband joins with his adult wife to convey her real 
estate, the deed is only voidable at his election. Barker v. Wilson, 4 
Heisk. (Tenn.) 268. A mortgage of lands by an infant is also held 
voidable only, and it may be enforced, unless disaffirmed when he comes 
of age. Boston Bank v. Chamberlain, 15 Mass. 220 ; Hubhard v. 
Cummings, 1 Greenl. 11 ; Roberts v. Wiggin, 1 N. H. 73. But a mort- 
gage in which an infant wife joins with her husband, in mortgaging 
her real estate for his benefit, or for the benefit of a firm of which he 
is a member, has in some cases been held absolutely void, and in others 
merely voidable by her. Schneider v. Staihr, 20 Mo. 269 ; Cronise v. 
Clark, 4 Md. Oh. 403 ; Chandler v. McKinney, 6 Mich. 217. 

An assignment of dower by an infant heir to the widow is not con- 
clusive on him, but he may have the dower admeasured anew when 
he comes of age. A lease of land by an infant, and a surrender of 
such lease, are also voidable. Zouch v. Pa/rsons, 3 Burr. 1794. 

But, if an infant conveys land as a court of equity would compel 
him to do, he cannot avoid the deed after he comes of age. Elliott v. 
Uf/rn, 10 Ala. 348 ; Matter of Ellison, 5 Johns. Ch. 261. And gen- 
erally, whatever an infant is bound by law to do, binds him although 
he does it voluntarily. 

As to conveyances of land, either in fee, for life, or for years, an 
infant cannot exercise this right of avoidance until he comes of age ; 
and yet it has been held that he may in the meantime enter the prem- 
ises and take the profits, or have a receiver of them appointed. Bool 
\.Mix, 17 Wend. 119. 

§ 5. Nej^otiable instruments. A negotiable promissory note by an 
infant is voidable, and so is an infant's indorsement of such a note. 
Eoerson v. Carpenter, 17 Wend. 419; Nightingale Y.Withington, 15 
Mase. 274 ; Fraeiar v. Mamay, 14 Ind. 382 ; La/wdon v. Lovejoyy 8 



PARENT AND CHILD. 67 

Green, 405 ; Reed v. Batchelder^ 1 Mete. 559 ; Wright v. Steele, 2 
N. H. 51 ; Bobo x. Eansell, 2 Bailey, 114; Orvis v. Kimhall, 3 N. H. 
314 ; Bouchell v. Clary, 3 Brev. 194 ; Best v. Givens, 3 B. Monr. 72. 
Although an infant is liable in damages for a tort, yet he will not be 
bound by a note given for such damages. Even a note given for nec- 
essaries is not -binding as such, but the infant is liable for their value ; 
and, if the note has not been negotiated, the holder may recover that 
value in a suit upon the note. McCrilUs x. Howe, 3 X. H. 348 ; Swaseij 
V. Yanderheyden, 10 Johns. 33 ; Fenton x. White, 1 South (N. J.), 100 ; 
Beeler v. Young, 1 Bibb, 519. This rule will not be affected by the 
fact that the infant is living apart from his father, or that he is carry- 
ing on a trade for himself, and the payee supposed liim to be of age. 
Yan Winkle v. Ketcharii, 3 Caines, 323. 

A joint note, executed by an infant and an advdt, and a mortgage 
on personal property given for the purchase-money, are good imtil 
avoided by the infant, and if he rescinds, he must restore the property 
acquired by the sale. Cogley v. Ciishman, 16 Minn. 397. 

§ 6. Confirm ation and ratification. It is a universal rule that an 
infant cannot in any way affirm his avoidable acts or contracts during 
his minority, neither has his guardian j)ower to confirm them. Reeves* 
Dom. Rel. 249 ; Corey v. Burton, 32 Mich. 30 ; Dunton v. Brown, 
31 Mich. 182. But, after an infant has aiTived at full age, he may, if 
he chooses, ratify any such acts or contracts. The mode in which they 
may be ratified is sometimes prescribed by statute, but, in the absence 
of any statutory provision, any one of three modes M'ill usually be 
sufficient, viz. : an express ratification, acts which reasonably imply an 
affirmance, or the omission to disaffirm within a reasonable time. 
Kline V. Beebe, 6 Conn. 494. 

In order to ratify an executory contract, it is generally held that 
there must be not only an acknowledgment of the contract, but an ex- 
press promise to perform it, made voluntarily and understandingly, 
and before suit brought. WhiPney v. Dutch, 14 Mass. 460 ; Baker 
V. Kennett, 54 Mo. 82 ; Conklin v. Oghorn, 7 Ind. 553. A promise 
for the future payment of money can be ratified only by a new promise 
or by acts equivalent to a new contract. The original contract fur- 
nishes a good consideration for such a promise. Mayer v. McLure, 
36 Miss. 389; Boody x. McKenney, 23 Me. 517; TJiom^pson v. Lay, 
4 Pick. 48 ; Harmer v. Killing, 5 Esp. 102 ; Smith x. Mayo, 9 Mass. 
62 ; Kennedy v. Doyle, 10 Allen, 161 ; Boho v. Ilansell, 2 Bailey (S. 
C), 114; Orvis v. Kimball, 3 N. H. 314; Stokes v. Brown, 4 Chandl. 
(Wis.) 39 ; 3 Pinney, 311 ; Thing v. Lihbey, 16 Me. 55 ; Goodsell v. 
Myers, 3 Wend. 48-2 ; Hartley v. Wharton, 11 Ad. & El. 934 ; 3 P. 



68 PARENT AND CHILD. 

& D. 529. The new promise should be to the creditor, obligee or 
party in interest, but may be made either to him personally or to his 
agent. To be binding, such promise must be made with the deliber- 
ate purpose of assuming a liability from which the promisor knows 
he is discharged by law. Petty v. Roberts^ 7 Bush (Ky.), 410. Even 
a conditional promise has been held sufficient in some cases. A 
promissory note may be ratified by such a subsequent promise. 
Wamsley v. Linderhergei^ 2 Rand. (Va.) 478 ; Lawson v. Lovejoy, 8 
Greenl. 405 ; lieed v. Batchelder, 1 Mete. 559 ; Wright v. Steele, 2 
N. H. 51. 

To affirm an infant's contract of suretyship on a note, a direct 
promise to pay it is necessary, made after majority with knowledge 
that he has a defense. Owen v. Long, 112 Mass. 403. 

Although no acts of an infant, while he remains so, will estop him from 
denying that he has affirmed his voidable contracts, yet he may estop 
himself by acts after majority. Merriam v. Cunningham, 11 Gush. 
40; Burley v. Russell, 10 N. H. 184; Bostwick v. Atkins, 3 N. Y. (3 
Comst.) 53. In order to operate as a legal ratification the act must be 
one which would be valid only by reference to the preceding act or 
contract, intended to be validated so as to be supported by that as a 
consideration. It must be an act showing an intention to ratify. 
TiUets V. Gerrish, 5 Fost. 41 ; Edgerly v. Shaw, id. 514 ; N. H. F. 
Ins. Co. V. I^oyes, 32 N. H. 345 ; Taft v. Sergeant, 18 Barb. 320 ; 
Little V. Duncan, 9 Rich. Law, 55. 

What particular acts will amount to a ratification depends much 
upon the nature of the contract to be ratified. One which is 
executed and is beneficial to an infant may be ratified by very slight 
acts, as by an act or declaration which recognizes its existence as a 
binding contract, by continuing in possession and exercising acts of 
ownership after majority, or by neglect to give notice of an intention 
to disaffirm. Delano v. Blake, 11 Wend. 85 ; Jones v. Phoenix Bank, 
8 N. Y. (4 Sold.) 228 ; Phillirps v. Green, 5 Monr. 344 ; Aldrich v. 
Grimes, 10 N. II. 194 ; Boy den v. Boy den, 9 Mete. 519 ; Cheshire 
v. Ba/rrett, 4 McCord (S. C), 241 ; Lawson v. Lovejoy, 8 Greenl. 405. 
Indeed, a ratification may bo inferred from any act totally inconsist- 
ent with an intention to di&affirm, such as receiving rent on a lease 
previously made without regard to lapse of time and the like, but it 
cannot be inferred from mere silence or inaction, unless for a time 
beyond the statute of limitations. Iluth v. Carondelet, etc., R. R. 
Co., 50 Mo. 202 ; ThonMsv. Pallis, id. 211. An infant's executor or 
administrator uiay in the same way affirm Lis voidable contracts. 
Shropshire v. Burns, 46 Ala. 108. 



PAEENT AND CHILD. 69 

Purchases of real estate by an infant may be ratified by like acts and 
words as those which will ratify his purchases of chattels under similar 
circumstances. Thus continuing in possession for an unreasonble length 
of time after majority, exercising acts of ownership,or then receiving rent 
or selling to a third party ,will operate as a ratification. Robbins v. Eaton, 
10 N". H. 561 ; Bigelow v. Kinney, 3 Yt. 353 ; Henry v. Boot, 33 X. 
Y. (6 Tiff.) 526. But it has been held, that the retention by an adult 
of the proceeds of lands purchased and sold again by him when a 
minor is not an afiirmance of a covenant in his deed to pay a mortgage 
to which the land was subject when he bought, and wliich he assumed 
to pay as part of the consideration, such a covenant being within the 
rule requiring an express ratification. Walsh v. Poioers, 43 N. Y. (4 
Hand) 23 ; 3 Am. Rep. 654. 

It is not so easy to ratify a conveyance of land by an infant as it is a 
purchase or exchange. Many cases hold that no bare recognition, or 
silent acquiescence, no slight or vague declarations by the grantor after 
he comes of age, will suffice ; but there must be some positive act or 
words from which his assent may be inferred. Wheaton v. East, 5 
Yerg. 41. Generally, an act to have that effect mnst be of such a sol- 
emn, unequivocal nature as to establish a clear intention to confirm the 
deed after full knowledge that it is voidable. Tucker v. Moreland, 10 
Pet. 75 ; Jaclcson v. Carpenter, 11 Johns. 542 ; Urhan v. Grimes, 2 
Grant (Penn.), 96 ; Eagle Fire Co. v. Lent, 1 Edw. Ch. 301 ; 6 Paige, 
635 ; Curtin v. Patton, 11 Serg. & K. 311. Mere neglect to disafiirm 
does not operate as affirmance, unless there are circumstances of equitable 
estoppel provided it does not continue until the statute of hmitations takes 
effect. Prout v, Wiley, 28 Mich. 164. But there are strong decis- 
ions against the right of disaffirmance, where the grantor has, for 
years after becoming of age, reinained silent, permitting the grantee to 
remain in undisturbed possession and make improvements. Kline v. 
Beebe, 6 Conn. 494 ; Richardson v. Boright, 9 Yt. 368 ; Wallace v. 
Lewis, 4 Harr. (Del.) 75 ; Scott v. Buchanan, 11 Humph. 468. 

The receipt of the purchase- money of land sold in partition or other- 
wise, after the vendor has become of age, has been held to operate as 
a confirmation. Hoyle v. Stowe, 2 Dev. & Bat. 320 ; Price v. Winter, 
15 Fla. m ; Walker v. Muhean, 76 111. 18 ; Corwin v. Shouj?, id. 246. 
A recital of a former deed in a subsequent one will have the effect 
to confirm the former deed, if that was the express intention. Phillips 
V. Green, 5 Monr. 344. And a sale of land received in exchange for 
other land will confirm the conveyance in exchange ( Williams v. 
Mahee, 3 Halst. Ch. 500) ; and a redelivery of the same deed after ma- 



70 PAEEXT AND CHILD. 

jority would probably now be held a ratification. Palmer v. Miller^ 
25 Barb. 399. 

A lease executed during infancy may be ratified by a reference to it 
in a mortgage executed by the lessor, after majority, to the lessee. 
Stoi^ V. Johnson^ 2 You. & Coll. 586. 

A purchase-money mortgage, executed by an infant, has been held 
confirmed by a mere direction in the will of the mortgagor, that all 
his just debts be paid {Merchant^ F. Ins. Co. v. Grant, 2 Edw. Ch. 
54-i) ; or by his taking possession immediately after the purchase and 
continuing in possession after age and then selling. Lynde v. Budd, 
2 Paige, 191. A mortgage Avill also be confirmed by conveying after 
majority subject to the mortgage. Boston Bank y. Chamberlin, 15 
Mass. 220. 

As to the third mode of confirming above mentioned, it has been 
held that a mere silent acquiescence or neglect to disaffirm, even for 
years, will not operate as a confirmation, where it occasions no injury 
to other persons, and secures no benefits or new rights to the party 
having a right to disaffirm ; but where he will receive a benefit from 
such silent acquiescence, he must elect to affirm or disaffirm within a 
reasonable time after he comes of age. Boody v. llcKenTiey, 23 Me. 
517 ; 1 Pars, on Cont. 324. "What is a reasonable time must be 
determined in \aew of the particular circumstances presented in the 
given case. Thompson v. StricJdand, 52 Miss. 574. As we have seen, 
an infant's conveyances of land cannot be so affirmed. 

§ 7. What is not a confirmation. As appears above, a mere ac- 
knowledgment by an adult of the making of a contract by him when 
a minor, or of its existence unperformed, does not amount to a confir- 
mation. Wilcox V. Boath, 12 Conn. 550 ; Martin v. Byrom, Dudl. 
(Cra.) 203 ; Martin v. Mayo, 10 Mass. 137. Even where a person ac- 
knowledged that he owed another, stating that he was then unable to 
pay the debt, but promising that he would try and get his brother to 
become his surety, or saying that the other would get his pay, but 
refusing to give a note, it has been held that he did not thereby ratify 
a contract made in infancy. Ford v. Phillips, 1 Pick. 202 ; Hale v. 
Gerrish, 8 IST, II. 374. Nor will a mere conditional promise to pay be 
li(!ld sufficient to constitute a ratification without proof that the condi- 
tion has lieen satisfied. Fverson v. Carpenter, 17 Wend. 419; Cole v. 
Soichy, ?> Esp. 159. 

A promise made to one who is neither a party in interest, nor the 
agent or attorney of such a party at the time, will not suffice as a ratifi- 
cal-ion. Bifjelo'w v. Grannis^ 2 Ilill, 120. A partial payment is not a 
ratification of that which remains unpaid. Thrujpp v. Fielder, 2 Esp. 



PARENT AND CHILD. Tl 

628 ; Robhins v. Eaton, 10 N. H. 561 ; Hinely v. MargaritZy 3 Penn. 
St. 428. 

§ 8. Disaffirmance. A large majority of the contracts of an infant 
may be disaffirmed by him at his election. But, having once exercised 
that election, he cannot retract. Thus, if he surrenders property re- 
ceived under a contract of purchase, evidently intending thereby to 
give up all his interest in it, he cannot afterward recall such surrender 
and retake the property. Edgerton v. Wolf, 6 Gray, 453. 

This right of disaffirmance is not affected by the fact that the infant 
made false representations at the time of entering into the contract. 
Carpenter v. Carpenter, 45 Ind. 142. It can be exercised only by the 
infant himself, his personal representatives, or his privies in blood. 
Oliver v. Houdlet, 13 Mass. 239. As for the time of its exercise, 
contracts respecting personal property may be disaffirmed at any time 
during the minority of the maker, or within a reasonable time after he 
attains his majority. Dunton v. Brovm, 31 Mich. 182 ; Robinson v. 
WeeTcs, 56 Me. 102 ; DraJce v. Ramsay, 5 Ohio, 251 ; Oresinger v, 
Welch, 15 id. 156 ; Stucker v. Yoder, 33 Iowa, 177 ; Chapin v. Shafer, 
49 N. T. 407. But a conveyance of real estate cannot be disaffirmed 
during minority. Emmons v. Murray, 16 N. H. 385. Judicial pro- 
ceedings or other matters of record may be disaffirmed during mi- 
nority but some act of record is necessary for that purpose. Tucker 
V. Moreland, 10 Pet. 71 ; Trapnall v. State Bank, 18 Ark. 53. 
Of course the disaffirmance must in all cases be within the time fixed 
by statutes of limitation applicable to infants. 

The modes of disaffirmance are various, according to the nature of 
the act or contract to be disaffirmed, and the circumstances of the par- 
ticular case. The general rule applicable to all is, that there must be 
some positive and decided act of dissent, adverse to the orginal act, and 
of like solemnity with it. Jackson v. Carpenter, 11 Johns. 539. A 
written notice of disaffirmance, given three and a half years after ma- 
jority, has been held sufficient and within a reasonable time. Sci^anton 
V. Steioa7't, 52 Ind. 69. A contract of service may be disaffirmed by 
simply leaving the employer, and engaging in the service of another 
or by an action for the value of the labor performed. Whitmarsh V. 
ffall, 3 Denio, 375 ; Van Pelt v. Corwine, 6 Ind. 363. A purchase 
of goods to sell again, and mortgage back for the purchase- money, may 
be disaffirmed by any act clearly showing that intent. The effect of 
such a disaffirmance is to restore the remaining property to the vendor. 
Skinner v. Maxwell, 66 N. C. 45. 

A sale or assignment of property may be disaffirmed by a re-sale of 
the same to another, or by an action to recover back the property eon- 



72 PARENT AND CHILD. 

veyed or assigned. Roof \. Stafford^ 7 Cow. 179. An executory con 
tract can be disaffirmed by pleading infancy to a suit thereon. A deed 
of land can be avoided only by some act equally solemn. Irvine v. 
Irvine, 9 Wall. 617. A conveyance of the same land, after majority 
to another grantee by a deed inconsistent with the first, has been held 
sufficient for that purpose. Pitcher v. Lay cock, 7 Ind. 398 ; Peterson 
V. Lailc, 24 Mo. 541. But to render such second deed a disaffirmance 
of the first, it must be founded on a good consideration, and be so 
inconsistent with the first that they cannot stand together. Eagle Fire 
Go. V. Lent, 6 Paige, 635. The execution of a warranty deed to a 
person other than one to whom the grantor gave a mortgage during 
minority has been held a disaffirmance of such mortgage. Dixon v. 
Merritt, 21 Minn. 196. But it is held in New York and Massachu- 
setts, that in order to make the second conveyance effectual as a dis- 
affirmance of a former one, there must first be an entry on the land by 
the grantor. Dominich v. Michael, 4 Sandf. 421 ; Voorhies v. Vom'- 
hies, 24 Barb. 150 ; Worcester v. Eaton, 13 Mass. 371. 

There is some conflict of authorities as to whether an infant can dis- 
affirm a contract of purchase and recover back the consideration paid, 
without returning the property and making good any deterioration, 
but the better opinion seems to be that he cannot except under special 
circumstances. Bartholomew v. Finneinore, 17 Barb. 428 ; Gray v. 
Les&ington, 2 Bosw. 257; Kitchen v. Lee, 11 Paige, 107; Badger v. 
Phinney, 15 Mass. 359 ; Taft v. Pike, 14 Vt. 405 ; Price v. Fur- 
man, 27 id. 268 ; Smith v. Evans, 5 Humph. 70 ; Bryant v. Pottin- 
ger, 6 Bush (Ky.), 473 ; Kerr v. Bell, 44 Mo. 120. Per contra, see 
White V. Branch, 51 Ind. 210. 

If the infant has consumed or has wasted or disposed of the considera- 
tion received, he can still disaffirm and that without restoring such 
consideration, and the other party has no remedy. Were the rule 
otherwise, his infancy would be no protection to him. Green v. 
Green, 7 Hun, 492 ; Fitts v. Hall, 9 N. II. 441. And if the property 
is injured, the adult party has no remedy unless in tort. 

Disaffirmance of a deed or contract to sell land must be accompanied 
by a return of the consideration received, otherwise it will be inopera- 
tive. Stout V. Merrill, 35 Iowa, 47 ; Boseman v. Brownifig, 31 Ark. 
364. And in an action to set aside an infant's conveyance of real 
estate, the j)laintiff nnist offer to restoi-e the i)urcha8e-money. Ilill- 
yer v. Bennett, 3 Edw. Ch. 222. An infant mortgagor cannot repudi- 
ate Ins purchase-money mortgage and still keep the property. Heath 
v. WeH, 8 Fost. (N. II.) 101 ; Oilman v. Moak, 3 Sandf. Ch. 431 ; 
Curtiss V. McDongal, 26 Ohio St. ^^. 



PAiiENT AND CHILD. 73 

The effect of the disaffirmance of a contract which is wholly execu- 
tory is to release the adult as well as the infant and place them both 
in statu quo. If it is executory only on the part of the adult, the in- 
fant may recover bad: whatever he has advanced or the value of serv- 
ices rendered by him under it, unless he has received benefit from it 
before disaffirmance, in which case he cannot so recover. Corpe v. Oijer- 
ton, 25 Eng. C. L. 252 ; 10 Bing. 252 ; Millard v. Hewlett, 19 Wend. 
301 ; Hoxie v. Lincoln, 25 Yt. 206 ; Barney v. Owen, 4 Blackf. 33Y ; 
Breed v. Judd, 1 Gray, 455. 

§ 9. Liability for torts aud frauds. Infants are generally held 
responsible, the same as adults, for torts committed by them, and where 
they are liable at all, the remedies and rules of evidence are the same 
against them as against adults. Haile v. Lillie, 3 Hill, 149 ; Elvjell v. 
Martin, 32 Yt. 21T ; Bow v. Clark, 1 C. & M. 860 ; Befries v. 
Bams, 1 Bing. N". C. 692 ; 1 Scott, 494. If a tort is committed by 
an infant with force, he is liable therefor, whatever may be his age or 
the condition of his mental faculties. Baxter v. Bush, 2iJ Yt. 465 ; 
Scott V. Watson, 46 Me. 362. Thus, he is liable the same as an adult 
for assaults and personal injuries [Bulloch v. Babcock, 3 Wend. 391 ; 
Sikes V. Johnson, 16 Mass. 389 ; Hartfieldw Roper, 21 Wend. 615) ; 
for injuries caused by his unlawful acts, such as exploding fire crackers 
{Conklin V. Thompson, 29 Barb. 218) ; and for trespasses on land. 
Huchting v. Engel, IT Wis. 230. 

He is liable, as for conversion, if he wrongfully uses a hired horse by 
driving; him to a place different from that agreed on {Homer v. Thwing, 
3 Pick. 492 ; Fish v. Ferris, 5 Duer, 49) ; and as for a trespass, for 
positive willful acts causing injury to the horse {Eaton v. Hill, 50 N. 
H. 235 ; 9 Am. E,ep, 189) ; but if the injury complained of happened 
through his want of skill, of knowledge, of discretion or of judgment, 
his infancy is a bar to the action. Camphell v. Stakes, 2 Wend. 137 ; 
Mo(yre v. Eastman, 1 Hun, 578 ; 4 N. Y. S. C. (T. & C.) 37. He is 
also liable if he consumes or wastes property intrusted to him for 
transportation, though not liable on the contract for transporting it 
{Furnis v. Smith, 1 Roll. Abr. 530) ; or if he willfully wastes property 
placed in his charge as supercargo, or disobeys the owner's instructions 
in respect to it, to his injury ( Vasse v. Smith, 6 Cranch, 226) ; or if 
he eml^ezzles moneys received by him {Bristoio v. Eastman, 1 Esp. 
172 ; Shaw v. Coffin, 58 Me. 254 ; 4 Am. Rep. 290) ; or if he con- 
verts property intrusted to him that he may put labor upon it. Mills 
V. Oraham, 4 B. & P. 140. 

An infant is not liable for a malicious prosecution, brought in his name 
by his next friend, without his previous authority, although he assented 
YoL. v.— 10 



74 PAKENT AND CPIILD. 

to it when informed of it. Burnham v. Seaveriis, 101 Mass. 360. 
But he is hable if he continues it after he arrives at majority. Sterling 
V. Adams, 3 Day, 411. At the age of fourteen he is considered doli 
capax, and becomes liable for slanders uttered by him, the same as an 
adult. He is also liable in ejectment for a disseizin. McCoon v. 
Smith, 3 Hill, 147. And an action will lie against him, in favor of a 
person injured by his negligence or misconduct in any office which he 
may lawfully fill, or in one which he is occupying as an officer de facto, 
though not allowed by law to hold it. Loop v. Loop, 1 Yt. 177 ; 
Green v, Burke, 23 "Wend. 490. An infant is not liable for the negli- 
gence of his agent or servant, but he is liable for tortious acts commit- 
ted by his servant in his immediate view, or by his direction or au- 
thority. 

In order to charge an infant for a tort, his act must be wholly tor- 
tious. A matter arising ex contractu cannot be changed into a tort, for 
the purpose of an action, even though it be tainted with fraud. Jen- 
nings V. Rundall, 8 Term, 335 ; Brown v. Dunham, 1 Root, 273. 
Thus, a person delivering goods on a contract to one whom he knows 
to be an infant cannot charge him in trover therefor, except when there 
has been willful misconduct and breach of trust, or fraud on the part 
of the infant, or when he is in a fiduciary position. Bristow v. East- 
man, 1 Esp. 172 ; Carpenter v. Pridgen, 40 Tex. 32. If an infant 
purchases goods to be paid for on delivery, and pays for them by a 
check on a bank where he has no funds, without any reasonable expec- 
tation that it will be paid, or obtains property by some other fraud, 
and defeats an action for the price by a plea of infancy, and then re- 
fuses to return the property, he will be liable in case or trover for 
such fraud. Matthews v. Cowan, 59 111. 341 ; Walker v. Davis, 1 
Gray, 506. 

"Whether an infant is liable in tort for obtaining property on a false 
representation that he is of age has been much discussed, and many 
cases hold the negative of that question (see Price v. LLewett, 18 Eng. 
L. & E. 522; 17\lur. 4; Brown v. McCune, 5 Sandf. 224) ; but the 
weight of authority seems to be that he is so liable. Eckstein v. 
Franks, 1 Daly, 334 ; Badger v. Phinney, 15 Mass. 359 ; Eilgore v. 
Jordan, 17 Tex. 349. But a mere omission by an infant to state his 
age cannot be considered such a fraud as will invalidate his contract; 
though, it seems, a fraudulent concealment of it will render him liable 
in equity. 

§ 10. Gifts by infants. The rule in respect to gifts by infants 
was formerly very sti-ict and precise, and it was held that all such gifts 
as did not take effect by delivery of his hand were void, while those, 



PARENT AND CHILD. 75 

which were made by deed or writing taking effect on delivery, were 
merely voidable. Zoiich v. Parsoiis, 3 Burr. 1804. But the rule is 
relaxed in modern times, and no gifts are held absolutely void, except 
such as are clearly prejudicial, all others being simply voidable. Thus 
a deed made by an infant wholly without consideration is invalid, and 
a promise to ratify it made after majority will not be enforced. Oxley 
V. Tryon, 25 Iowa, 9.5. And a gift by a child to his parent before the 
termination of parental authority will be presumed made under the 
parent's influence, and, therefore, void, but that presumption may be 
rebutted by the parent. Wright v. Vanderplanlc, 2 Kay & J. 1 ; 2 
Jur. (N. S.) 599 ; 25 L. J. Ch. 753 ; 8 De G. M. & G. 133. A gift or 
release by a ward to his guardian is also looked upon with disfavor, 
even though not made until he arrives at majority. Reeve's Dom. Rel. 
472. But a deed of gift made by an infant to a trustee for the benefit 
of his own children is merely voidable. Slaughter v. Cunningham^ 
24 Ala. 260. An absolute gift of personal property by an infant can 
always be avoided by him or by his legal representatives. Person v. 
Chase, 37 Yt. 647. 

ARTICLE III. 

SUITS BY AIJD AGAIXST ESTFANTS. 

Section 1. Suits by infants. The law takes the rights of infants 
under its special protection, and secures to them the same remedies 
which it gives to adults. An infant may sue on any contract made 
with him personally by an adult. He can maintain an action for ser- 
vices rendered by him under a contract, especially if he has been 
emancipated, or is not living with and supported by his parents. This 
is so, even though the action is for services under an invalid contract of 
apprenticeship, or a contract void by tlie statute of frauds. King v. 
Brmon, 2 Hill, 485 ; Davies v. Turton, 13 Wis. 185. In such a suit 
he may recover the value of his services as if there was no express 
contract. Whitmaj'sh v. Hall, 3 Denio, 377. 

An infant can also maintain an action for the breach of a promise of 
marriage {Cannon v. Alshury, 1 A. K. Marsh. 76) ; or one to recover 
personal property in the hands of executors or trustees, to the posses- 
sion of which he h entitled {Bradley v. Amidon, 10 Paige, 235); or 
one to recover back personal property sold or exchanged by him under 
a contract which he has disaffirmed. White v. Branch, 51 Ind. 210. 
He may also bring ejectment for his lands against a disseizor, and may 
sue for the use and occupation of his lands, although he has a general 
guardian. Porter v. Bleiler, 17 Barb. 149. 



76 PAKEIS^T AND CHILD. 

In all cases of injury to his person or character an infant has the 
same remedies as have adults ; and though the father of an infant may 
sue for personal injuries to the latter, which cause him the loss of serv- 
ices or the incurring of expenses, yet that will not affect the infant's 
right of action for the damages sustained by himself. Hall v. Hol- 
lander, 10 Eng. C. L. 436 ; 4 B. & C. 660. He may even sue his par- 
ent for an unreasonably severe chastisement, amounting to a battery. 
Eeeve's Dom. Eel. 288. An action will lie in the name of an infant 
for an indecent assault ( Whitney v. Hitchcock, 4 Denio, 461 ; Loomis 
V. Cline, 4 Barb. 453) ; or for a wrongful expulsion from school. Stephen- 
S071 V. Hall, 14 Barb. 222. And an infant husband can maintain an action 
against one who debauches liis wife. Morgan v. Thome, 7 M. & W. 
400. 

In some cases, the g eneral guardian of an infant is permitted to sue 
in his own name in respect to the property of his infant ward, where 
he is entitled to the possession, or the contract in respect to it was 
made in his own name, as for the products of the ward's lands, or for 
rents on a lease made by himself. Beecher v. Grouse, 19 Wend. 306 ; 
Pond V. Curtiss, 7 id. 45 ; Byrne v. Van Hoesen, 5 Johns. QQ ; Holmes 
V. Seely, 17 Wend. 75. But, generally, a suit in behalf of an infant 
must be in his own name and it must be prosecuted by his guardian 
ad litem or his next friend. At common law, an infant could sue by 
his next friend, even when he had a guardian and particularly in 
cases of necessity, as where the latter refused to sue, and also when the 
guardian consented thereto, and this rule still prevails to a consider- 
able extent. Thomas v. Dike, 11 Vt. 273 ; Bouche v. By an, 3 
Blackf . 472 ; Hardy v. Scanlin, 1 Miles (Penn.), 87. He can also sue 
in that way after his father's death, though he has a mother living, 
and liis mother may act as his next friend. Trask v. Stone, 7 Mass. 
241 ; Boynton v. Clay, 58 Me. 236. 

(Tenerally, this guardian or next friend must be specially appointed 
or recognized ]jy the court. In New York and some other States, 
suits by infants are required by law to be prosecuted by guardians a^d 
litem, and not by next friends, and any court having jurisdiction of 
the case can make the appointment. Hoftailing v. Teal, 11 How. Pr. 
188. In ])racticc, either next friend or guardian ad litem is appointed 
by the court upon an a])i)lication by the infant, or, if he is under the 
age of fourteen, on aj)i)licati(jn of his testamentary guardian or of 
some relative or friend with notice to such guardian. The fact that 
RUfli ajtpointment was regularly made, or the guardian or next friend 
regularly admitted by leave of court, must also appear on the record 
by recital or otherwise. Miles v. Boyden, 3 Pick. 213 ; Judson v. 



PARENT AND CHILD. T7 

Blanchard^ 3 Conn. 579 ; Beft v. McGill, 3 Penn. St. 256 ; Keeran 
V. Clotvser, 5 Blackf. 004. 

The person to be appointed is usually required to be a responsible 
person since he becomes primarily liable for costs. Cook v. Rawdon, 
6 How. Pr. 233; Dalryrrvple v. Zamh, 3 Wend. 424. This liability 
for costs extends to attorney's costs on both sides, but if the suit is 
brought in good faith and properly conducted, the infant is bound to 
re-imburse him for costs paid by him. Toner v. Ivie, 2 Ves. Sr. 466 ; 
Pea/rce v. Pearce, 9 Ves. 547. 

Even when an infant sues as sole executor, he should do so by a 
guardian ad litem or next friend {Cotton v. Westcot, Cro. Jac. 441) ; 
but when he and an adult sue jointly as co-executors, they may appear 
by attorney. Foxwist v. Tremaine, 2 Saund, 212 ; Cahell v. Vaugha/n, 
1 Wms. Saund. 219, A.The guardian ad litem or next friend may, of 
course, have the assistance of an attorney the same as if prosecuting a 
suit for himself. 

If an infant brings an action without the appointment of a guardian 
or next friend, the irregularity can be taken advantage of only by 
plea in abatement. Schermerhorn v. Jenkins^ 7 Johns. 373 ; Smith v. 
Van Houten, 4 Halst. (N. J.) 381 ; Fellows v. JVvver, 18 Wend. 563 ; 
Prago v. Moso, 1 Spear (S. C), 212. 

In actions by infants, the same defenses may be interposed as if the 
plaintiffs were adults. Honegsberger v. Second Ave. P. P. Co.^ 33 
How. Pr. 193 ; Hartfield v. Poper, 21 Wend. 615 ; Sinclair v. Siii- 
clair, 13 M. & W. 640 ; Brown v. Hull, 16 Yt. 673 ; Duckitt v. 
Stachwell, 12 M. & W. 779. 

Courts are watchful of the interests of an infant plaintiff and will 
stop actions which are not for his benefit, or if the guardian is not 
conducting a suit properly will remove him, and where there are 
several suits in the name of an infant, will direct as to which shall be 
prosecuted and in what manner. Watson v. Fraser, 8 M. & W. 660 ; 
Fulton V. Posevelt, 1 Paige, 178 ; Hardy v. ScamZin, 1 Miles (Penn.), 
87. They will also see that no undue advantage is taken of mistakes 
of infants or of those who act for them. 

Statutes of limitation usually make exceptions in favor of infants, 
giving them further tune after majority in which to bring suits for 
causes which accrued during their minority. In such cases the fact of 
infancy and of the bringing of the action within the proper time after 
the disability has ceased, should be specially pleaded and proved. 
Hyde v. Stone, 7 Wend. 354. 

§ 2. Suits against iufants. Infants are liable to be sued, the same 
as adults, for breaches of any contracts which are legally binding on 



TS PAEEXT AND CHILD. 

them, such as contracts for necessaries or for rent of land which they 
continue to occupy and for defaults on criminal recognizances, or on 
any bonds or obligations required by law. United States v. Baiii- 
hindge, 1 Mason, Yl ; Newry, etc., Ihj. v. Comhe, 3 Exch. 569 ; N. W. 
Ry. V. McMkhael, 5 id. 126 ; Evelyn v, Chichester, 3 Burr. 1719. 

Although an infant cannot bind hunself by a promissory note, yet if 
it is given for necessaries and is not negotiable, or has not been nego- 
tiated, so that the consideration may be inquired into, it has been lield 
in some of the States that a suit may be brought directly on the note, 
and the plaintiff may recover the just value of the necessaries furnished. 
Earlew Reed, 10 Mete. 387; Duhose v. Wheddoii, 4 McCord, 221 ; 
Ilaine v. Tarrant, 2 Hill (S. C), 400. And the same has been held as 
to bonds and other instruments. Bradley v. Pratt, 23 Yt. 378. 

In a suit against an infant for necessaries, no express promise need 
be proved, a promise to pay for them being implied. The burden of 
proof in such a suit is upon the plaintiff to show the infant's actual 
or least apparent want, necessity or destitution at the time the articles 
were furnished, or that the articles were in their nature, quality and 
quantity necessary and suitable to every one in that situation and con- 
dition. Burghart v. Hall, 4 M. & W. 731 ; Story v. Fery, 19 Eng. C. 
L. 508 ; 4 C. & P. 526. And see Mchol v. Steger, 2 Tenn. 328, 

A suit may also be sustained for articles not necessaries, upon a new 
promise made after majority, but where reliance is placed upon such a 
• new promise, the plaintiff must prove an express promise, and where the 
plaintiff" pleads and shows a new promise, he need not in the first in- 
stance prove that the defendant was of age when he made it. Bigelow 
V. Gra/nnis, 4 Hill, 206 ; Bay v. Gunn, 1 Denio, 108. 

At connnon law an infant is not liable in an action for the breach of 
covenants in his indentures of apprenticeship. Gylbert v. Fletcher, 
Oro. Eliz. 179 ; McKnight v. Hogg, 3 Brev. 44 ; Blu7it v. Melclier, 2 
Mass. 22.8. 

The b'abilityof infants for torts and frauds may be enforced against 
tliem by the Cijiniiion forms of action ex delicto. Fitts v. Hall, 9 N. 
II. 441 ; Haifiphrey v. Douglass, 10 Yt. 71 ; Homer v. Thwing, 3 
Pick. 492 ; I^eigne v. Sutcliffe, 4 McCord, 387 ; Wallace v. Morss, 5 
Hill, 391. 

Actions against infants may be commenced in the same manner as if 
they were of age, unless some other mode is prescribed by statute, and 
their infancy need not be noticed either in the process or in the com- 
plaint, unless it is a material fact in the case. But an infant must ap- 
pear un the record by a guardian, and not by an attorney or in person, 
AUUrman v. Ti/rrdl, 8 Johns. 418 ; Bustard v. Gates, 4 Pana (Ky.)- 



PARENT AND CHILD. 79 

429 ; Bedell v. Lewis, 4 J. J. Marsli. (Kj.) 562 ; Jeffrie v. Hohideaux^ 
3 Mo. 33. Jurisdiction has been sustained in a case where there was 
no personal service, but the general guardian appeared and defended. 
Smith V. McDonald, 42 Cal. 484. But as a general rule, a guar- 
dian ad litem must be appointed to act for the infant in the particular 
action after a legal service on the infant, and he must appear hj such 
\ guardian. This does not deprive him of the aid of an attorney. 

IIow such guardian is to be appointed is generally regulated by 
statute. He is usually appointed by the court in Mdiich the action is 
pending, on the application of the infant himself or of his general 
guardian, or in case they neglect to apply, on application of some other 
pai'ty to the action. An express appointment of a guardian ad litem 
should be followed by his appearance or acceptance of the appointment 
in order to bind the infant. Sliaefer v. Gates, 2 B. Monr. 453 ; Fox v. 
Cosby, 2 Call (Va.), 1. In some cases, howevei-, it has been held suffi- 
cient that a person acting as guardian ad litem has interposed an actual 
defense. Brown v. McRea^s Exr., 4 Munf. 439 ; Priest v. Hamilton, 
2 Tyler (Yt.), 44. 
/ Having appeared, a guardian ad litem, can be compelled to answer. 

/ Henly v. Gore, 4 Dana (Ky.), 136. He can bind the infant only by 
the ordinary proceedings in the suit. He cannot do so by his admis- 
sions or declarations, nor can he release a person interested for the pur- 
pose of qualifying him as a witness. Cowling v. Fly, 2 Stark, 366. 

So important is the appointment of such a guardian considered for 
the protection of the rights of an infant defendant, that it is deemed 
error to render a decree without it, or on an aj^pearance by attorney 
merely, and a decree so rendered may be set aside on proceedings taken 

\ for that purpose. McDonald v. McDonald, 3 W. Ya. 676 ; Quigley 

\ V. Roberts, 44 111. 503 ; Barber v. Graves, IS Yt. 290 ; Porter v. 
Eobinson, 3 A. K. Marsh. 253 ; WhiU v. Alhertson, 3 Dev. (N. C.) 241 ; 
Taylor v. Rowland, 26 Tex. 293 ; Gibson v. Chouteau, 39 Mo. 536 ; 
Abdil v. Abdil, 26 Ind. 2S7 ; Bloom v. BurdicJc, 1 Hill, 130 ; Austin 
V. CharUstown F. Sem., S Mete. 196; Patchin v. Cromach, 13 Yt. 
330. 
/ An infant cannot appear m person or by attorney, even for the pm-- 
/ pose of setting aside former proceedings on the ground of error. 

i Hindmarsh v. Chandler, 7 Taunt. 488 ; 1 Moore, 250. And, yet, 
■ if the plaintifl' becomes nonsuit he cannot take advantage of such an 
appearance by the defendant to avoid the judgment. Bird v. Pegg, 
7 Eng. C. L. 153; 5 B. & A. 418. 

An infant and his legal representatives are bound by a judgment or 
decree regularly entered against him, and cannot open the proceedings 

* " 



80 PAKENT AND CHILD. 

or dispute their validity, except on new matter, or for gross laches, 
fraud or collusion. Balston v. Lahee^ 8 Clark (Iowa), 17 ; Bickel v. 
Erskiyie^ 43 Iowa, 213. If, however, a decree be taken against an 
infant by default, or on an answer of confession by guardian, except a 
decree for the sale of real estate, he is entitled to his day in court 
after he comes of age, for the purpose of showing error. Mills v. 
Dennis, 3 Johns. Ch. 367; Pope v. Lem,aster, 5 Litt. (Ky.) 77; 
WUkinson v. Oliver, 4 H. & Munf. (Ya.) 450 ; Beeler v. Bidlitt, 4 
Bibb (Ivy.), 11 ; Chalfant v. Monroe, 3 Dana, 35 ; Harris v. Youman, 
1 Holf. Ch. 178. ISTeither the guardian ad litem nor any one else has 
power to waive proof of the facts necessary to entitle a plaintiff to 
judgment against an infant, or to consent to such a judgment, but the 
facts must be established by legal proof. Litchfield v. Bxirwell, 5 
HoM'. Pr. 341 ; Tuttle v. Garrett, 16 111. 354 ; James v. James, 4 
Paige's Ch. 115; Stephenson y, Stephenson, 6 id. 353 ; Wright v. Miller, 
8 K Y. 9. 

A sale of land in partition is bmding on an infant if the judgment 
ordering it was regular. But when it appears that the property of in- 
fants has been sacrificed through the negligence or misapprehension of 
their guardians, a re-sale may be procured, full indemnity being made 
to the purchasers, and the court may grant an order for such re-sale on 
its own motion. Lefevre v. Laraway, 22 Barb. 167. 

An infant defendant is generally liable for costs the same as an 
adult. 

§ 3. Infancy as a personal defense. As already stated, infancy is 
a personal privilege wliich can be pleaded in avoidance of a voidable 
contract or in defense of a suit, only by the infant himself, or his per- 
sonal representatives, or his privies in blood. Oliver v. Uoudlet, 13 
Mass. 237 ; Tloyle v. Stowe, 2 Dev. & Bat. 323. As a general rule, 
this defense must be pleaded specially, and evidence of it cannot be 
given under a plea of the general issue. It is held to be available in a 
suit for deceit or for a false warranty. Morrill v. Aden, 19 Yt. 505 ; 
Prescott v. Norris, 32 N. II. 101 ; Bartlett v. Wells, 101 Eng. C. L. 
836 ; 1 B. & S. 836; DeRoo v. Foster, 104 id. 272 ; 12 C. B. (N. S.) 
272 ; Merriaifh v. Cunningham, 11 Cush. 40. 

The infancy of the payee of a bill of exchange is no defense to the 
drawer in an action by the indorser. Grey v. Cooper, 26 Eng. C. L. 
36 ; 3 Dougl. 65. 

The question of infancy is, in this country, one of fact, to be tried 
by a jury. Ryerson v. Grover, Cox (N. J.), 458 ; Sliver v. Shelback, 
1 Dall. (Pcnn.) 165. The burden of proof of it lies upon the party 
who sots it up. Campbell v. Wilson, 23 Tex. 252. But where the 



PAEENT AND CHILD. 81 

plaintiff puts in a replication of " necessaries " to plea of infancy, 
that relieves the defendant of the necessity of such proof. And if the 
defendant, in answer to a claim for necessaries, shows that he was 
previously supplied and the plaintiff proves a new promise, that changes 
the burden again to the defendant to show that he was still an infant 
at the time of such new promise. Bigelow v. Grannis, 4 Hill, 206 ; 
Bay V. Gunn, 1 Denio, 108. 
YoL. v.— 11 



82 ' PARTITIOK 



CHAPTER CV. 

PAETITION. 
ARTICLE I. 

OF PARTITION IN GENERAL. 

Section 1. Definition and nature. Where two or more persons 
own property, either real or personal, jointly or in common, the allot- 
ment to each, of his share in severalty, is called partition. The term 
is, however, most usually applied to the division of real estate. 2 
Bouv. Inst. 410, 411. See Cruise's Dig., tit. 32, ch. 6; Weiser 
V. Weiser, 5 "Watts, 279. The division may be voluntary or compul- 
sory, the former being made by the parties themselves by conveying 
or releasing to each other their respective shares. The common-law 
writ of j)artition is very ancient, and so, also, is the jurisdiction of 
courts of equity in cases of partition, a bill having been brought for 
that purjjose, as early as the reign of Queen Elizabeth. Story's Eq. 
Jur., §§ 646, 647. In England, the writ of partition is abolished by 
statute 3 and 4 Wm. TV, ch. 27 ; and the mode of enforcing parti- 
tion there is now by bill in equity. In some of the States the writ of j)arti- 
tion, modified and regulated by statute, is used either solely or concur- 
rently with other modes of partition. In other States, the proceeding 
is Ijy petition to the proper court, or by application to commissioners 
specially authorized ; and where no remedy is provided by statute or 
the remedy at law is insufficient or imperfect, relief may be had by 
Ijill in equity. Equity will entertain jurisdiction over partition of in- 
coq)oreal as well as corporeal hereditaments. A court of law is less 
able to administer complete justice in partition of the former than of 
the latter, and consequently the partition of incorporeal hereditaments 
is peculiarly a suljject of equitable jurisdiction. Baxter v. Knowles, 
1 Ves. Sr. 494; Bailey v. Sisson, 1 R. L 233. Proceedings for 
])artition are local. Bonner, Petitioner, 4 Mass. 122 ; Brown v. 
McMullen, 1 Nott & McCord, 252 ; Peabody v. Minot, 24 Pick. 
333. 

§ 2. Oeneral rules and principles. A written agi-eement for a 
partition will bo regarded in ec^uity as an actual partition. Masterson 



PARTITION. 83 

V. Fmnigan, 2 R. I. 316. Such an agreement will 6e liberally con- 
strued {Moore v. Eagles, 1 Murphy, 302) ; and it will be enforced by 
the court, and an allowance made, where there is a difference in value. 
Norwood V. Norwood, -i Har. & J. 112 ; Coates street, 2 Asian. 12. 
A fair partition of land, followed by a judicial sale of the share of one 
of the parties, and a proper application of the proceeds, will sever the 
possession, notwithstanding the owners of one moiety are minors 
( Williard v. Williard, 56 Penn. St. 119) ; and an agreement for partition 
entered into by parties who are all sui juris will be valid and ])inding 
without the sanction of the court, Bompart v, Roderman, 21 Mo. 
385. So, where proceedings for partition are discontinued, a voluntary 
partition, made by the parties while the proceedings were pending, is 
binding. Folger v. Mitchell, 3 Pick. 396. But an unfair partition by 
agreement is not binding on an infant, though he exercise acts of own- 
ership after he becomes of age. Heimnich v. High, 2 Watts, 159. 

An unexecuted parol agreement 1)etween tenants in common for a 
partition of land is not binding. Woodheck v. WUders, 18 Cal. 131 ; 
S7iively V. Luce, 1 Watts, 69 ; Slice v. Derrick, 2 Rich. 627. There 
should be a deed. Porter v. Hill, 9 Mass. 34 ; Doio v. Jewell, 18 N. 
H. 354. At common law, as partition of an estate held in coparcenary 
might be compelled, the division was capable of being made by parol ; 
but it could only be effected by joint tenants and tenants in common, 
by deed. 2 Blk. Com. 323. When persons owning lands in common 
execute mutual deeds of bargain and sale and release, in consideration 
of one dollar, and an agreement to divide, the conveyances operate as 
deeds of partition. Dawson v. Lawrence, 13 Ohio, 543. If each of 
two tenants in common execute to the other conveyances — one of the 
north half of the land held in common, and the other of the south 
half — the partition is binding upon them. Eaton v. Tallmadge, 24 
Wis. 217. Where joint tenants di^ade land by deed, follo^ving an old 
survey, the accuracy of which neither knows any thing about, the par- 
tition is valid, notwithstanding the division may have been unequal, 
there being no fraud or misrepresentation. Jones v. Carter, 4 Hen. & 
Munf. 184. A deed of partition merely fixes the boundaries. It does 
not affect the title of the parties. Goundie v. Northamjyton Water Co., 
7 Penn. St. 233. 

Where tenants in common of land, in order to ascertain the separate 
interests of each, agree by parol to a di\asion, and each takes possession 
of the share allotted to him, such partition is binding on the parties 
{Pomeroy v. Taylor, Brayt. 174 ; Coles v. Wooding, 2 Patt. & H. 
[Ya.] 189 ; Jackson v. Llarder, 4 Johns. 202 ; Mount v. Morton, 20 
Barb. 123 ; Ebert v. Woods, 1 Binn. 216 ; Rider v. Maul, 46 Penn. St. 



84 PAKTITION. 

376 ; Stuart v. Baker, IT Tex. 417 ; Wood v. Fleet, 36 N. Y. 499, 
and cases cited ; Buzzell v. Gallagher, 28 Wis. 678 ; Grimes v. Butts, 
65 ni. 347 ; Moore v. Kerr, 46 Ind. 468; Long's Appeal, 77 Penn. St. 
151 ; Shepard v. Binhs, 78 111. 188 ; Dement v. Williams, 44 Tex. 
158) ; notwithstanding they are femes covert, or minors, if the parti- 
tion is naiade with the acquiescence of their husbands, or guardians. 
Calhoun v. Hays, 8 Watts & S. 127 ; Darlington^ Appropriation, 
13 Penn. St. 430 ; McConnell v. Carey, 48 id. 345. A conveyance 
was made to several of six hundred acres of land, " to be surveyed, or 
taken off," from a tract, to be divided into parcels of one hundred acres 
each, and an election thereof to be made by the grantees, which was 
accordingly done. Held, that such election, followed by possession, 
operated as a parol partition. Jackson v. Livingston, 7 Wend. 136. 
Where land is divided between tenants in common, each accepts his 
part, takes possession, and makes improvements, it is a good partition, 
altliough there be no judgment of a court. Welchel v. Thompson, 39 
Ga. 559. But a hona jide purchaser without notice of an undivided 
interest in land is not bound by a parol agreement for partition made 
by the tenants in common. Gates v. Salmon, 46 Cal. 361. 

A parol partition has been held void within the statute of frauds, 
not^vithstanding a several possession in fact. Porter v. Hill, 9 Mass. 
34; Perkins Y. Pitts, 11 id. 125; MedlinY. Steele, 75 K C. 154; 
Gratz V. Gratz, 4 Kawle, 411 ; Wood v. Griffin, 46 N. H. 230 ; Ballou 
V. Hale, 47 id. 347 ; Den v. Longstreet, 18 N. J. 405. But when a 
tenant in common has been in adverse possession of a part of the land 
for a number of years, partition will be presumed. Lloyd v. Gordon, 
2 Har. & McHen. 254; Gregg v. ^^ac^w^re, 10 Watts, 192. An 
agreement for a division, entered into between the owners of adjoining 
tracts of land, and acquiesced in for a number of years, will not be 
disturbed on account of trifling inequalities. Fleming v. Kerr, 10 
Watts, 444. A parol partition may be valid at common law, not- 
withstanding tlio statute of frauds, if the line of partition be clearly 
ascertained, and there be a separate possession for a considerable period. 
HaughaboAigh v. Honald, 3 Brev. 97. And see Piper v. Buckner, 
51 Miss. 848. Where a division of land by parol has been acquiesced 
in several years, and valuable improvements have been made by one 
of the parties on his portion, a court of equity may safely adopt their 
division. Prim^gle v. Sturgeon, 6 Litt. 112. A partition by parol and 
possession under it nearly twenty years was held binding. Goodhue 
V. Ba/rnwell, Rice, 198. And the same was held of a partition between 
tenants in common, acquiesced in more tlian fifteen years ; and it was 
said that, if it were not binding at law, a court of equity would decree 



PARTITION. 85 

its validity. Townsend v. Downer, 32 Yt. 183. A parol partition 
of land, made by the grantee of a tenant by the curtesy, with posses- 
sion under it for thirty years, may be enforced in an action against a 
stranger to the title, the partition being valid during the continuance 
of the life estate. Ryei'ss v. Wheele?", 25 Wend. 434. Where two 
tenants in common of land make a parol partition, followed by long 
possession, one cannot have partition of the part occupied by the other ; 
but there must be partition of the whole. Duncan v. Sylvester, 16 
Me. 388. A parol partition of land will not avail against a married 
woman, unless followed by possession for such a period of time as to 
raise the presumption that the partition was fair and proper. Jones 
V. Reeves, 6 Rich. 132. 

While the legal title might not perhaps be considered as passing by 
a parol partition of land between tenants in common, unless after a 
possession sufficiently long to justify the presumption of a deed, yet 
the parol partition, followed by a several possession, would leave each 
co-tenant seized of the legal title of one-half of his allotment, and the 
equitable title to the other half; and by a bill in equity he could compel 
from his co-tenant a conveyance of the legal title according to the terms 
of the partition. Tomlin v. Ililyard, 43 111. 300 ; Razen v. ISarnett, 
50 Mo. 506. A parol partition of land among several, without war- 
ranty, gives to each of the parties the rights and interest in the land 
set off in severalty, which he and his co-tenants then have, and also an 
interest in the land set off to the others which one of them subse- 
quently acquires as heir at law of his children who had a remainder in 
fee in the premises, not being either a vested or contingent interest in 
him at the date of the partition. Carpenter v. Schermerhorn, 2 Barb. 
Ch. 314. 

A common possession, without which there cannot be partition, will 
be presumed from a common title. Thomas v. Garvan, 4 Dev. 223. 
Partition l^etween tenants in common of real estate is matter of right 
at common law, when either of them will not consent to hold and use 
the property in common. Smith v. Smith, 10 Paige's Ch. 470. If the 
nature of the property is such that it cannot be enjoyed in severalty, 
the court may order it to be sold and the proceeds divided. Higgin- 
lottom V. Short, 25 Miss. 160. Where a third person holds an irrevoc- 
able power of attorney to sell the land for the benefit of all of the 
owners, there cannot be a partition without the consent of all of them. 
Selden v. Vermilya, 2 Sandf. 568. At common law a suit cannot be 
sustained between husband and wife for the partition of land, where 
the deed conveying the land to them and their heirs and assigns does 
not show that they have a severable interest. Miller v. Miller, 9 Abb. 



86 PAKTITION. 

Pr. (N. S.) 444. A bill in equity by a partner for the partition of the 
real estate of the firm, which does not pi-ay for an account, cannot be 
maintained until all of the partnership accounts have been taken. 
Baird v. Baird, 1 Dev. & Batt. Eq. 524. There cannot be a partition 
of different tracts of land in one proceeding, unless the tracts are all 
owned by the same persons. Kitchen v. Sheets, 1 Ind. 138 ; Unnne- 
well V. Taylor, 3 Gray, 111 ; Brownell v. Bradley, 16 Yt. 105. 

Although the special province of a bill for partition is not to try 
legal titles, but to sever the joint possession, so that each may enjoy 
liis share in severalty, yet the title of the parties conies in question in- 
cidentally in all cases of partition by bill. Where one of the parties 
plaintiff to a suit for partition has parted with his title, it is fatal. 
Lockhart v. Power, 2 Watts, 371. A court of equity will not inter- 
fere to make partition of land, while the legal title is in dispute, nor 
unless the plaintiff shows a clear title to a share in the land sought to 
be divided. Hardy v. Mills, 35 Wis. 141 ; Williams v. Wiggand, 53 
111. 233 ; Leverton v. Waters, 7 Cold. 20 ; Gourley v. Woodbury, 43 Yt. 
89. The court will not, therefore, set aside a previous partition made 
in behalf of a person who has a clear title, upon the application of one 
claiming a doubtful and controverted title. Hassam v. Day, 39 Miss. 
392. If the complainant have no actual or constructive possession, 
and the lands are held adversely, and the title is doubtful or suspicious, 
the bill should either be dismissed, or the proceedings stayed until the 
complainant establishes his title at law. If the title be an equitable 
one, or partly ecpiitable and partly legal, the court of equity may try 
the title ; and it may do so when the title is of a legal character, where 
a fair and perfect trial at law cannot be had. Hoffman v. Beard, 22 
Mich. 59 ; Wilkin v. Wilkin, 1 Johns. Ch. Ill ; Phel/ps v. Green, 3 id. 
302 ; Coxe v. Smith, 4 id. 271 ; Campbell v. Lowe, 9 Md. 500 ; Olapp 
v. Broraaghara, 9 Cowen, 530 ; Adams v. Ames Iron Co., 24 Conn. 
230; La/rabert v. Blumenthal, 2G Mo. 471 ; Jenkins v. Van Schaack, 3 
Paige's Ch. 242 ; Obert v. Obert, 12 N. J. Eq. 423 ; Shearer v. Winston, 
33 Miss. 149. Where there is an outstanding adverse title to part of 
the land, one of the tenants cannot be permitted to buy it in for his 
own exclusive benclit, if his co-tenants are willing to contribute toward 
re-imbursing him for the expense of acquiring such title. Brittin v. 
Handy, 20 Ark. 381. And the same rule applies to the purchase by 
one of the tenants in common of the property when sold for taxes. 
Page v. Webster, 8 Mich. 263. 

The fact that an action has been brought against one of the tenants 
in common of land for improvements does not prevent its partition, 
but such ttlaim is to be taken into account in making the partition. 



FAKTITION. 87 

Jones V. Crocker, 4 La. Ann. 8. If there be a judgment against one 
of the tenants in common, the judgment remains a lien on the part 
allotted to the judgment debtor. Bavington Y.ClarTce, 2 Pen. & "W. 115. 
So, if during proceedings for partition, one of the tenants in common 
mortgages his undivided interest, when partition is made, the mortgage 
attaches to the portion assigned to the mortgagor. Westervelt v. Haff, 
2 Sandf . Ch. 98. Previous to a partition between four tenants in com- 
mon of land, one of them had mortgaged his undivided fourth. Held, 
that the other tenants were entitled to enforce payment of the mortgage 
out of the proceeds of a sale of tlie mortgagor's portion, which had 
been brought into court, though a number of judgments had previously 
been recovered against him, and he had made an assignment for the 
benefit of creditors. Matter of Howe, 1 Paige, 125. Where land is 
sold and conveyed to A, B furnishing part of the purchase-money, and 
a partition is subsequently made of the premises, followed by possession, 
and B then agrees with a person to build a house for him on the portion 
set off to him in severalty, A's part is not subject to a mechanic's lien 
for constructing the house ; nor is A liable personally therefor. Otis v. 
Cusach, 43 Barb. 546. 

In the case of a partition of real estate held in joint tenancy, or ten- 
ancy in common, there is an implied warranty between the parties 
thereto, by which they have the mutual right in case of eviction by 
paramount title, to have compensation against each other for the loss 
sustained ; and the right exists against an alienee of one of the owners, 
but not in his favor. The remedy is in a court of equity, either by set- 
ting aside the partition when improperly made, if it can be done \vithout 
injustice to others, or by contribution. Sawyers v. Cator, 8 Humph. 
256 ; Morris v. Harris, 9 Gill. 19. 

§ 3. Partition of real estate. A partition by quit-claim deed, be- 
tween the grantee of a tenant in common and his co-tenants, is valid. 
Staples V. Bradley, 23 Conn. 167. Where a partition of land is made 
between several by deed without covenants, and there is an incumbrance 
on the portion assigned to one, for the discharge of which he is com- 
pelled to pay money, he may call on the others for contribution. Duga/n 
V. Hollins, 4 Md. Ch, 139. If several heirs, one of whom is indebted 
to the ancestor, make partition by deed, assigning to the debtor less 
than an equal part, by the amount of the debt, and a creditor of the 
debtor, without notice of the partition, attaches all his undivided 
share, the partition will not affect the lien created by the attachment. 
M'Mechan v. Griffing, 9 Pick. 537. Where the owner of an undi- 
vided half of land, who has a lease of the other half, forfeits the lease 
by the non-performance of a condition subsequent, his landlord, in 



88 PARTITION. 

order to maintain a suit for partition, must enter for the forfeiture, or 
othervrise obtain possession of the undivided half. Lansing v. Pine^ 4 
Paige's Ch. 639. 

Land left by wiU to two persons in fee, upon condition that it shall 
be Lmproved by them, is subject to partition, the division of the fee 
not affecting the right to have it improved in common. Richardson v, 
MerriU, 21 Me. 4T. When one of several tenants in common of land 
sows grain on the land, and partition is afterward made, the grain 
growing on the portion of each becomes the property of each in sev- 
eralty. Calhoun v. Curtis, 4 Mete. 413. There may be a partition 
of standing timber. Steedman v. Weeks, 2 Strobh. Eq. 145. But 
buildings held in common, standing on land to which the owners of 
the buildings claim no title, are not the subject of partition. JRice v. 
Freeland, 12 Cush. 170. It is not an objection to a partition of real 
estate, that it is partnership property, unless a suit in equity is necessary 
to settle the business of the firm. Hughesw. Devlin, 23 Cal. 501. A 
partition and sale may be made of the estate of a lunatic. Snowden v. 
Dunlavey, 11 Penn. St. 522. 

"Where partition of land including a mill privilege, owned by two 
tenants in common, is made by mutual deeds of release, reserving to 
each " one-half the mill privilege on said land, with the right of using 
the same," the land is divided, but the pai*ties remain tenants in com- 
mon of the mill privilege. Bailey v. Rust, 15 Me. 440. If land 
divided by a river is partitioned between two tenants in common, by 
assigning the part on one side of the river to one, and that on the other 
side to the other, the boundary of each is the central line of the stream. 
King V. King, 7 Mass. 496. Where tenants in common, in making a 
partition of land through which a town road ran, executed mutual 
deeds of release, describing the portion released as " beginning at, and 
running by and on the side of the road," it was held that the road was 
not included in the partition. Sibley v. Holden, 10 Pick. 249. Parti- 
tion was made of land held in common and bounded on passage ways, 
by deed assigning separate parcels to each owner in severalty, with the 
appurtenances, " the said passage ways to continue open and common 
for the free use and jiassageof the abutters thereon, in as full and ample 
a manner as they now are and heretofore have been used and enjoyed," 
it was lield that these words did not prevent the abutter from having a 
full right of way for all pnr])Oses, not only in the manner before used, 
but in any other manner of using the same right, and that he might 
make improvements in the passage, so as to cause it to be more benefi- 
cial to himself, without injury to the owner of the land, or others hav- 



PARTITION. 89 

ing an equal right of way ; but not to use it for another and distinct 
purpose. Ajypleton v. FuUerton, 1 Grraj, 186. 

§ 4. Partition of personal property. A bill in equity may be 
maintained for the partition of personal property, proceedings for that 
purpose being unknown at common law. Marshall v. Crow, 29 Ala. 
278 ; Irwin v. King, 6 Ired. 219 ; Steedman v. Weeks, 2 Strobh. Eq. 
145 ; Savage v. Williams, 15 La. Ann. 250. A tenant in common of 
personal property cannot maintain a bill for partition while another is 
in the adverse possession of it. Drevj v. Clemmons, 2 Jones' Eq. 312. 
When, however, in a suit for the partition of personal property, the 
defendant denies that the plaintiff is a tenant in common, and sets 
up a title to the property in himself, in severalty, the plaintiff is not 
obliged to establish his title by action at law, but the title may be tried 
in the partition suit. Edwards v. Bennett, 10 Ired. 361 ; S?nith v. 
Dunn, 27 Ala. 315. "When the estate of a deceased person is free 
from debt, and the distributees do not invoke the action of the probate 
court to separate their several interests, but apply to a court of equity 
to give them their respective shares without the expense and delay of 
an administration, the relief will be granted. Or the distributees, if 
of full age, may agree on a division ; and, if no unfairness intervene, 
equity will uphold it. Bethea v. McColl, 5 Ala. 308 ; Miller v, Eat- 
man, 11 id. 609; Vanderveer v. Alston, 16 id. 494. 

§ 5. Who may claim partition. Tenants in common have an 
absolute right to a division of tlie land held in common, notwithstand- 
ing inconveniences may thereby result to the other tenants ; or, if par- 
tition cannot be made, to a sale and division of the proceeds. Wither- 
spoon V. Dunlap, Harper, 390 ; Potter v. Wheeler, 13 Mass. 504 ; 
Scovil v. Kennedy, 14 Conn. 349 ; Bradshaw v. CaUaghan, 8 Johns. 
558; Smith v. Smith, 10 Paige's Ch. 470; Holmes v. Holmes, 2 
Jones' Eq. 334 ; Ledbetter v. Gash, 8 Ired. 462 ; Donnell v. Mateer, 
7 Ired. Eq. 94 ; Campbell v. Lowe, 9 Md. 500 ; Hi^ginhottom v. Short, 
25 Miss. 160 ; contra : Danvers v. Dorrity, 14 Abb. Pr. 206. When 
it is practicable to divide a portion of the land only, or when the shares 
of some only of the tenants in common can be set off to them, and a 
partition cannot be made of the residue, a sale of the latter should be 
ordered. Lucas v. Peters, 45 Ind. 313. The owner of an undivided 
interest is not entitled to a partition of part of the land held in com- 
mon, but the whole must be di^-ided if any. Diincan v. Sylvester, 16 
Me. 388 ; BigeUno v. Littlefield, 52 id. 24. One or more of the ten- 
ants in common may, however, have their shares set off, leaving the 
residue undivided. Ladd v. Perley, 18 N. II. 396 ; Abbott v. Berry, 
46 id. 369. A person who has no interest in land sought to be divided 
YoL. Y.— 12 



90 PAETITION. 

cannot maintain a suit for partition, although he describe himself as 
sruardian of an infant owner. Boioles v. McAllen. 16 111. 30. So, 
where two persons severally, each for himself, own distinct parts and 
portions of real estate, and no part of it belongs jointly to both, it does 
not present a case for partition. McConnel v. Kibhe, 43 111. 12. But 
one who has only an equitable title may apply to the court for partition. 
Welch V. Andersm, 28 Mo. 293 ; Willing v. Broion, 7 Serg. & R. 467. 
A person may maintain a suit for partition although he did not pre- 
viously ask or demand it, and he might have had an amicable partition 
{Lake V. Jarrett, 12 Ind. 395) ; and such right is not affected by the 
statute of limitations. Jenkins v. Daltmi, 27 Ind. 78. 

Proceedings for partition can only be maintained by one who has a 
seisin in fact of the premises. Bonner v. .Kennebeclc Purchase, 7 Mass. 
475 ; Richard v. Biclcard, 13 Pick. 251 ; Adam v. Ames Iron Co., 24 
Conn. 230 ; Brownell v. Brownell, 19 Wend. 367 ; 0' Dougherty v. 
Aldrich, 5 Denio, 385 ; Burhans v. Burhans, 2 Barb. Ch. 398 ; Whit- 
ten V. Whitten, 36 IS". H. 326 ; Stevens v. Enders, 13 N. J. 271. But 
a tenant in common of land, though not in actual possession, may have 
partition if he have a right of entry. Miller v. Dennett, 6 !N. H. 109 ; 
Barnard v. Pope, 14 Mass. 434 ; Tahler v. Wiseman, 2 Ohio St. 207 ; 
Eozier v. Griffith, 31 Mo. 171 ; Denton v. Woods, 19 La. Ann. 356. 
If the legal title to land is in a third person as trustee, the suit cannot 
be maintained. Strijker v. Lynch, 11 IST. Y. Leg. Obs. 116. A tenant 
in common, who is a trustee for a co-tenant, may, however, file a bill 
for partition. Cheeseman v. Thome, 1 Edw. Ch. 629. And a trustee 
of land under a valid trust to receive the rents and profits of the land 
and apply them to the use and support of an infant, until such infant 
arrives at the age of twenty-one years, with an absolute power to sell 
such land and invest the proceeds for the benefit of the infant, may 
maintain a suit in equity for the partition of the land when held in 
common with other persons of adult age. Galleo v. Eagle, 1 Thomp. 
ife Cook, 124 ; 65 Barb. 583. 

When the wife of a person seeking partition of land has an inchoate 
right of dower therein, she must be joined with him as plaintiff. Pi^- 
yle V. Gilborn, 8 How. Pr. 456. A tenant by the curtesy initiate 
may maintain a bill for partition. Piker v. Darke, 4 Edw. Ch. 668. 
So, likewise, may the guardian of a minor, who is a tenant in common 
with adults. Zirlde v. McCae, 26 Gratt. 517. SeeJohiison v. JVohle, 
24 Mo. 252 ; Thornton v. Thornton, 27 id. 302 ; Postley v. Pain, 4 
Sandf. Ch. 508. When a suit for partition is brought by the committee 
of a lunatic, or of a habitual drunkard, the lunatic, or drunkard, should 
be joined as plaintiff. Gorham, v. Gorham, 3 Barb. Ch. 24. 



PARTITION. 91 

A person who has a written contract with a tenant in common of 
real estate, for the purchase of his nndivided share, and has paid a por- 
tion of the purchase-money, has an equitable estate which entitles him 
to an action for partition against his co-tenant. Longwell v. Bentley, 
23 Penn. St. 99. A purchaser of the interest of a devisee of real estate 
is entitled to partition, the same as his vendor. Steioart^s Appeal, 56 
Penn. St. 241 ; De Castro v. Barry, 18 Cal. 96. The grantee of the 
widow's right of dower in the land may maintain a bill for partition. 
Morgan v. Staley, 11 Ohio, 389. But the grantee of a tenant in com- 
mon of land of a right to dig ore therein cannot enforce partition as 
against the other owners. Boston, etc., Co. v. Condit, 19 X. J. Eq. 
394. And where a tenant in common conveys to another his nndi\d- 
ded interest, retaining the use of the premises during his life, the 
grantee is not entitled to partition. Nichols v. Nichols, 28 Yt. 228. 
Where a grant was made of a township by the legislature, to an indi- 
vidual, he giving security that he would assign a certain portion in fee 
to the first settled minister, and a like portion for the use of the minis- 
try forever, it was held that a minister subsequently settled was not en- 
titled to a partition of the portion so to be assigned as a tenant in com- 
mon with the other proprietors of the township. Bice v. Osgood, 9 
Mass. 38. A partner may have a partition of partnership land, 
though the objects of the partnership have not been fulfilled. Collhis 
V. Dickinson, 1 Hayw. 240. When the interest of a partner, in part- 
nership real estate, is sold after his decease, for the payment of his 
debts, under an order of court, the purchaser is entitled to partition. 
Greene v. Graham, 5 Ohio, 264. A judgment creditor who has taken 
out execution against land, owned by his debtor in common with 
othei*s, cannot have partition until after the expiration of the time 
within which the debtor is entitled to redeem. Phelps v. Palmer, 
15 Gray, 499. 

The heirs of a deceased person, or, in case they have parted with 
their interest, their grantees are the proper parties to a suit for the 
partition of the real estate of the deceased. Yan Derwerker v. Van 
Derwerker, 7 Barb. 221. A parol partition of land by heirs, and pos- 
session by them in severalty, will not defeat a petition for partition by 
one of the heirs. Chenery v. Dole, 39 Me. 162. Where land has been 
assigned by parol, among the heirs, one of them, who, after selling 
his share, has re-acquired the title, may have partition. Id. If & tes- 
tator leaves one-half of his estate to liis widow, and the other half 
to his children, the widow and some of the children may unite in 
a proceeding for partition against the others. Chouteau v. Paid, 3 
Mo. 260. Wliere a will directs an appraisement of the land, and a 



92 PARTITION. 

partition among the heirs according to such appraisement, without 
takino- any legal proceedings, the heirs will be entitled to a partition 
npon failure of the executor to cause a jjartition to be made pursu- 
ant to the will. Chouteau v. Paul, id. The executors and devisees 
of a deceased tenant in common, not seeking partition among them- 
selves, may unite in a bill in equity to have their share of the land 
set off from that of the co-tenant. Page v. Webster, 8 Mich. 263. 
If a son be devisee of an undivided half of his lather's land, the 
widow, who is devisee of a life estate in the son's portion, is enti- 
tled to partition. Ackley v. Dygert, 33 Barb. 176. Where there is 
a devise of land subject to a condition, and the devisee, having en- 
tered, fails to perform the condition, a person who has a right to an 
undivided interest in the laud as tenant in common with the devisee, 
by reason of the breach of the condition, cannot have partition with- 
out first establishing his title by action. O' Dougherty v. Aldrich, 5 
Denio, 385. "When an estate is insolvent, the administrator cannot 
obtain partition of land in which the intestate held an undivided inter- 
est. Nason v. Willard, 2 Mass. 478. Where children take as tenants 
in common under a deed, whether immediately or in remainder, the 
children and heirs of a deceased tenant may join with the survivoi*s 
in a bill for partition and an account of the rents and profits. Tindal 
V. Drake, 51 Ala. 574. 

A partition cannot be had of land to which the parties have only a 
title in remainder after the termination of a particular estate. Culver 
V. Culver, 2 Eoot, 278 ; Zeigler v. Grim, 6 Watts, 106 ; Prmon v. 
Brown, 8 N. H. 93. So the owner in fee of an undivided part of cer- 
tain land, and for life in the residue, is not entitled to partition as be- 
tween him and persons who have a contingent remainder in such resi- 
due. Uodghkinson, Petitioner, 12 Pick. 374. But some of several 
devisees in remainder may, after the termination of the particular 
estate, apply to tlie court for partition, notwithstanding the others claim 
the whole property. Rail v. Dotson, 14 Smed. & Marsh. 176. When 
one person lias an interest in reversion or remainder and another a life 
estate or a lease for years, the former cannot have partition without the 
concurrence of the latter. Fleet v. Dorland, 11 How. Pr. 489 ; Jlun- 
neviell v. Taylor, 6 Cnsh. 472 ; contra: Blakely v. Colder, 13 How. 
Pr. 476 ; BradshoAJ) v. Callaghan, 8 Johns. 558. But a tenant for 
years is entitled to partition as against a party who holds the other part 
of the premises in fee. Mussey v. Sanljorn, 15 Mass. 155 ; Mitdiell 
V. Starhuch, 10 id. 5. Wliere a life estate in the testator's land was de- 
vised ])y him to his wife with directions that his executors should rent 
the residue until liis children attained full age, and the life estate ex- 



PARTITION. 93 

pired dnring the minority of some of the cliildren, it was held that 
those who were of age were entitled to partition of the whole land. 
Hoyle V. Iluson, 1 Dev. 348. If a tenant for life in the share of 
one of the tenants in common assigns his property for the benefit of 
creditors, his assignees may have have partition of the land. Vam.ars- 
dale V. Drake, 2 Barb. 599. 

If a party be disseised , his mere right of entry is not snfiicient to 
entitle him to partition. Brock v. Eastman^ 28 Yt. 658. Where one 
of two tenants in common ousts the other, acquiringthe sole possession 
and afterward buys in an outstanding title the co-tenant cannot have 
partition or maintain an action for the benefit of the purchaser, until 
he has regained the poseession. Rozier v. Johnson, 35 Mo. 326. But 
a tenant in common out of possession may maintain an action for 
partition against ^a co-tenant holding adverse possession of the land 
unless the disseisin constitutes an actual ouster. Wommack v. WKit- 
more, 58 Mo. 448. So a tenant in common, who has not been actually 
disseised, may maintain proceedings for partition, notwithstanding he 
has brought a writ of entr}'^ against his co-tenant counting on an 
actual disseisin by him. Fisher v. Dewerson, 3 Mete. 544. "Where 
one of two tenants in common of land is disseised, and a partition after- 
ward made, the disseisee may either recover possession of an undivided 
moiety or waive his right to object to the partition and recover the 
part assigned to the disseisor. Brown v. Wood, 17 Mass. 68. "Wlien 
one of the parties to a partition is evicted by a prior title, he is entitled 
to another partition. Feather v. Strohoecker, 3 Penr. & "W. 505. 

"Where a mortgage upon land held in common is assigned to one of 
the tenants in common, his co-tenants, who are heirs at law of the 
mortgagor, are not entitled to partition although the mortgage and as- 
signment are not recorded. Blodgett v. Ilildreth, 8 Allen, 186, But 
if an heir mortgages his undivided interest in property, it does not 
affect the right of the other heirs to a partition. GihnoreY. Menard^ 
9 La, Ann. 212 ; Finley v. Babin, 12 id. 236. A person to whom a 
mortgage of the undivided half of land has been assigned, " for the 
purpose of protecting any one to whom such assignee has made con- 
veyance of any lands conveyed by said mortgage from all claims of 
dower," may have partition of the land after the foreclosure of the 
mortgage. Fhelps v. Townsley, 10 Allen, 554. One of several mort- 
gagees of undivided interests in real estate may maintain proceedings 
for partition against the others, and the mortgagor or his assignee have 
no right to interpose an objection. Munroe v. Walhridffe, 2 Aik. 410. 
If a mortgagor of land retain possession, he may maintain a suit for parti- 
tion. Upham V. Br(tdUy, 17 Me. 423. "Where an undivided interest 



04 PARTITIOJS\ 

in land is mortgaged, the mortgagor keeping possession, the mortgagee 
may have partition. Bich v. Lord, IS Pick. 322. When, however, 
the residue of the land is owned by the mortgagee in fee, the mort- 
gagor cannot have partition as against the mortgagee. Bradley v. 
Fuller, 23 Pick. 1. But when each of two tenants in common has 
mortgaged his undivided share to the same individual, one of them may 
have partition as against the other before entry by the mortgagee. Id. 
Tenants in common may waive the right of partition by agreement. 
Coleman v, Coleman, 19 Penn. St. 100. 

§ 6. Who to be made defendants. All persons not plaintiffs, who 
ha\-e an interest in the real estate sought to be divided, should be made 
defendants. Burhans v. Burhans, 2 Barb. Ch. 398 ; Kesterx. Stark, 
19 111. 32S ; Bogardus v. Parker, Y HoM^ Pr. 305 ; Barney v. Balti- 
more, 6 Wall. 280 ; Candy v. Stradley, 1 Del. Ch. 113. When one 
of the owners of an undivided interest in land is not a party to pro- 
ceedings in partition he is not affected thereby. Harlan v. Stout, 22 
Ind. 488 ; contra : Foxcroft v. Barnes, 29 Me. 128. The parties to a 
suit for partition must be tenants in common of all the land sought 
to be di^'ided. If, therefore, some of them have an interest in a part 
only of the land, a partition will not be valid. Jackson v. Myers, 14 
Johns. 354 ; Marmaduke v. Tennant, 4 B. Monr. 210, Where part 
only of the land is included in the partition, and all of the owners are 
not joined in the suit, the judgment will not be a bar to a second suit to 
which all of the co-tenants are made parties. Colton v. Smith, 11 Pick. 
311 ; Bamsdell v. Creasey, 10 Mass. 170. Persons claiming to own 
the entire interest in part of the land sought to be divided have a right 
to come in and defend, and if they establish their title, the suit for par- 
tition cannot be maintained. Ilarman v. Kelley, 14 Ohio, 502 ; 
Wickersham, v. Young, 1 Miles (Penn.), 395. Where a tenant in com- 
mon has separately conveyed to several persons his interest in various 
l)arf;els of the land held in common, the co-tenant cannot maintain a joint 
suit against such purchasers for partition, but must bring a separate suit 
against eacli. Matter of Prentiss, 1 Ohio, Pt. 2, 129 

Persons who hold incumbrances upon the separate undivided shares 
need not be made parties. Sebring v. Mesereau, Ilopk. Ch. 501 ; S. 
C, 9 Cow. 344 ; Low v. Jlolmes, VI N. J. Eq. 148 ; Long's Apjpeal, 
T7 Penn. St. 151. But see Loomis v. Riley, 24 111. 307 ; Lewis v. 
Atkinson, 15 Iowa, 361. As a general rule, a mortgagee or judgment 
creditor is not a proper party to a proceeding for the sale of land for 
partition. If partition be made, the lien of the incumbrance fixed on 
an undivided ])art of it will, after division and allotment, be confined 
to the particular share or part allotted to the party creating the incum- 



PARTITION. 95 

brance, and if the estate is sold, the purchaser will take it subject to 
the lien of the incumbrance upon the undivided share of the party 
against whom the mortgage or judgment was held before sale. Har- 
wood V. Kirby, 1 Paige's Ch. 469. But where the laud is to be sold 
in order to effect a division among those entitled and there are incum- 
brances on it, if there is any question as to the extent of the liens, the 
court, either before decree or before sale, should direct that the amount 
of the incumbrance be ascertained. Thurston v. Mijike, 32 Md. 571. 
Where the creditor of a deceased person has not a judgment lien on 
the land of the deceased, he cannot be a party to a suit for partition 
brought for the purpose of di\ading the real estate among the heirs 
and devisees ( Waring v. Waring, 3 Abb. Pr. 246) ; unless there is a 
deficiency of personal property to satisfy his claim. Latimer v. Han- 
son^ 1 Bland, 51. But see Speer v. Speer, 14 X. J. Eq. 240. A rail- 
way company whose road extends across the land of tenants in common 
is not a proper party to proceedings for partition, Westoii v. Foster, 
7 Mete. 297. 

The heirs as well as the executor must be made parties to a bill for 
partition. Chalon v. Walker, 7 La, Ann. 477. But persons in pos- 
session under some of the heirs need not be joined, Pleak v. Chamhers, 
7 B. Monr, 565. "Where a testator de\'ises his undivided interest in 
part of certain real estate to one, and in another part to another, both 
of the devisees should be made parties. An administrator need not 
in general be made a party, Foster v. NevHon, 46 Miss. 661. But 
the administrator of a deceased tenant in common, to whom rents were 
due from his co-tenant at the time of liis death, is a proper party to an 
action for partition, Scott v. Guernsey, 48 N, Y. 106, Persons hav- 
ing an interest in remainder and who, at the commencement of the 
suit, are not in actual possession or entitled thereto in severalty after 
partition, are not proper parties, Stevens v, Enders, 13 X, J, 271. 
And where a suit is brought for partition between tenants in common 
of an interest in land which has been carved out of the fee, the owner 
of the fee, under whom the parties claim, need not be made a party. 
Vanjield v. Ford, 28 Barb. 336. 

When an undivided interest in land is held by a trustee upon a trust 
not authorized by statute, the cestui que trust must be made a party to 
the suit. Braker v, Devei'eux, 8 Paige's Ch, 513, But this is not 
necessary when the trustee has an absolute title upon a valid trust. Id, 
If one tenant in common has demised his undivided share in the land 
for a long term, the lessee must be made a party in order that he may 
be required to join the lessor in the deed of severance. But if a sale is 
to be made of the laud, no such necessity exists. Thurston v. Minke, 32 



96 PAKTITION. 

Md. 571. Persons who hold possession bj disseisin (unless they have 
acquired title by adverse possession) are not proper parties to a suit for 
partition and their equitable rights are not affected thereby. Tilton 
V. Pahner, 31 Me. 486. 

The wife of a tenant in common may be made a defendant in an action 
by him for partition. Bosekrans v. Wliite^ 7 Laus. -186. In proceed- 
ings by the wife for the partition of her separate estate, the husband 
should be made a defendant. Brownson v. Gifford, 8 How. Pr. 389. 
Before dower is assigned, the widow need not be made a party to an 
action for the partition of real estate in which she claims dower. 
Bradshato v. Callaghan, 5 Johns. 80 ; 8 id. 558 ; Matthews v. Mat- 
thews, 1 Edw. Ch. 564 ; Wood v. Clute, 1 Sandf . Ch. 199 ; Tanner 
V. Niles, 1 Barb. 560 ; Gordon v. Sterling, 13 How. Pr. 405. It has 
even been held erroneous to do so, and that the error will not be cured 
by entering a nolle prosequi as to her. Power v. Power, 7 Watts, 
205. So, a widow entitled to " her living " upon the land of her de- 
ceased husband, need not be made a party to a suit for partition be- 
tween the heirs. McClintio v. Manns, 4 Munf. 328. But a widow 
entitled to dower in an undivided share of land, the partition of which 
is sought, must be made a party to the suit, although her dower has 
not been assigned. Green v. Putmani, 1 Barb. 500. Where a com- 
mittee of the person and estate of a habitual drunkard has been 
appointed, and a bill in equity filed by the committee, for the partition 
of land owned by him and others as tenants in common, he must be 
made a party to the suit. Gorham v. Gorham, 3 Barb. Ch. 24. A 
creditor by an entire lien on the whole premises is not a necessary 
party in partition ; but, if made a defendant, the court may determine 
the validity and amount of the lien. Townshend v. Toionshend, 1 Abb. 
N. C. (N. Y.) 81. At common law, the non-joinder of a defendant in 
an action for partition is matter of abatement only. Hox&ie v. Ellis, 
4 R. I. 123. 

§ 7. What is a defense. Where the plaintiffs, in a bill in equity 
for partition, were formerly in possession of the premises as tenants in 
common, but the defendant sets up in his answer an exclusive title, the 
bill will be dismissed. Mathewson v. Johnson, 1 Hoffm. Ch. 560 ; 
contra, Purvis v. Wilson, 5 Jones, 22. The defendant may set up in 
liis answer an equitable title to the premises, a cross-bill not being 
necessary for that purpose when he seeks merely a dismissal of the bill. 
Cf/xe V. Smith, 4 Johns. Ch. 271 ; German v. Maohin, 6 Paige, 288. 
If the plaintiff avers that he and the defendant are owners of certain 
land and in possession of the same as tenants in common, an answer 
which denies that they are owners and in possession as tenants in com- 



PAKTITION. 97 

mon or otherwise, is not a sufficient denial of the common occupancy 
of the land by them. Crosier v. McLaughlin^ 1 I^ev. 348. And 
where the defendant did not controvert any of the allegations of the 
complaint, but merely set up a partnership between the owners, the 
answer was held bad on demurrer. Hughes v. Devlin, 23 Cal. 501. 
The fact that some of the defendants are described as " heirs " is not 
a groimd of objection if all were served and appear ( Wooten v. Dunlap, 
20 Tex. 183) ; nor that other persons not in esse may be entitled, if 
all from whom such after-comers can spring are before the court as 
parties. Cheeseman v. Thome, 1 Edw. Ch. 629. 

The affirmative is on the plaintiff to prove that he has an interest in 
the land of which he asks partition {Oilman v. Stetson, 16 Me. 124) ; 
unless the averments of the answer are put in issue by a replication, 
in which case the burden of proof is on the defendant. Nagleis 
Estate, 52 Penn. St. 154. 

Under the plea of 7ion tenent insimul, it may be shown that some 
of the defendants have not a freehold, but are tenants at will. Bethel 
V. Lloyd, 1 Dall. 2. For a paramount outstanding title to constitute a 
defense, the defendant must Lave acquired it, or make the holder a 
party, or claim under it. Burleson v. Burleson, 28 Tex. 383. Proof 
of adverse possession for twenty years previous to the trial, is sufficient 
evidence of title. Saco Water Power Co. v. Goldthioaite, 35 Me. 
456 ; Clajpjp v. Bromagham,, 9 Cow. 530. The following principles 
have been held to be well settled : 1. No possession of one tenant in 
common can bar a writ of partition of the other, unless it be an adverse 
possession continued such a length of time, as would take away the 
right of entry of the other, to wit : by an adverse possession of twenty 
years; or where there has been an actual dispossession, and a subse- 
quent possession by the disseisor, and his dying so possessed and a de- 
scent to his heir. 2. Although one tenant in common may have been 
in the sole possession of the land and perception of the profits, for 
more than twenty years this does not take away the other's right of 
entry, unless he was actually put out or his title to hold in common 
uniformly denied. 3. So long as one tenant is possessed of any part of 
the land, he will be considered in possession of the whole, unless there 
was a separation of j)art by actiial inclosures by the other, who also 
uniformly denied the title of the other to hold in common. 4. From 
no length of possession will a partition be presumed, unless the pos- 
session was exclusive and adverse, and the title of the other to hold in 
common uniformly denied. Lloyd v. Gordon, 2 Har. <fe M. (Md.) 254. 
But see Law v. Patterson, 1 "Watts & Serg. 184; Longwell v. Bentle^ 
3 Grant's Penn. Cas. 177. 
YoL. Y.— 13 



98 PARTITION. 

The fact that a tenant in common of land has verbally agreed to sell 
and convey the same to his co-tenant is not a bar to a snit by the for- 
mer for partition, Polhemus v. Hodson, 19 N. J. Eq. 63. It is, 
however, a good defense to a suit for partition that the ancestor of the 
plaintiff executed to the defendant a contract of sale of the land, and 
that the latter obtained a decree for specific performance, although the 
vendor having died, the purchase-money was received as assets by the 
administrator. Baggy v. Ash^ 23 Ind. 338. The undivided third of 
the real estate of a person deceased was left by will to his widow, and 
the rest in equal shares to his children. The interest of a son was sold 
under a judgment recovered against him previous to his father's 
death, and the vendee brought an action for partition. Held, that it 
was not a defense that the son had given his notes to his father to an 
amount exceeding the value of the interest devised, and that the testa- 
tor bequeathed them, it not appearing that the sum for which such 
notes were given was bequeathed by way of advancement. Wisner v. 
Teed^ 9 How. Pr. 143. A deficiency of personal property to pay the 
debts of the ancestor does not form an objection to a bill for partition 
between the heirs at law of the real estate, but the land cannot be sold 
for the purpose of partition. Matthews v. Matthews^ 1 Edw. Ch. 565. 
It is not a defense to a suit for partition that the guardian of the gran- 
tor of the plaintiff had previously presented a petition for leave to sell 
the grantor's interest in the land, describing it as less than the interest 
now claimed by the plaintiff"; such evidence being offered in order to 
show that "parties in adverse interest to the plaintiff were in posses- 
sion at that time without any adverse claim on the part of those 
holding the estate now claimed." Dodge v. Nichols, 5 Allen, 548. 

§ 8. Jurisdiction of court. Courts of law and equity have con- 
current jurisdiction over proceedings or partition. Hartshorne v. 
Ilartshorne, 2 N. J. Eq. 349 ; Wright v. Marsh, 2 Greene (Iowa), 94 ; 
Donnell v. Mateer, 7 Ired. Eq. 94 ; Ilowey v. Gonigs, 13 111. 95 ; Castle- 
7nam,Y. Veitch, 3 Rand. 598 ; Hopper v. Fisher, 2 Head, 253 ; Kennedy 
V. Kennedy, 43 Penn. St. 413. But a writ of partition cannot be main- 
tained at law, for the division of an equitable estate. Coale v. Barney, 1 
Gill <k Johns. 324. The title may he. tried in an action for partition. 
Morenhout v. Iliguera, 32 Cal. 289 ; Bollo v. Navarro, 33 id. 459 ; Or- 
mondw Martin, Z1 K\'\. 598; Griffin-^. Griffin, 33 Ga. 107; Godfreys. 
Godfrey, 17 Ind. 6. Although the court will not, in general, determine 
equitable titles, yet it will d(j so when the parties agree that the ec^uitable 
questions presented in the case shall be considered. Millers. Chitten- 
den, 2 Iowa, 315. Partition of personal property must be made by a 
court of equity. Orapster v. Griffith, 2 Bland, 5 ; IlewitCs Case, 3 id. 



PARTITION. 99 

184 ; Tvfiney v. Stebhins, 28 Barb, 290. The equitable titles of the 
parties should appear from the pleadings. Thayer v. Lane, Walker 
(Mich.), 200. A bill in equity cannot be maintained where the ques- 
tions involved are purely legal. Maxwell v. Maxwell, 8 Ired, Eq, 25, 
A court of equity may, however, decree partition between devisees of 
land though tlie titles are legal. Haggin v, Ilaggiri, 2 B, Monr. 317 ; 
Wiseley v. Findlay, 3 Rand. 361. The court cannot make partition of 
land l}'ing in another State. Johnson v, Kimhro, 3 Head, 557. 

Proceedings in partition are in rem, and the jurisdiction of the 
court is restricted to the subject-matter of the jDartition. Corwithe v, 
Griffing, 21 Barb. 9. "Where an action is brought for a partition, the 
court must have jurisdiction, not only of tlie subject-matter, but also of 
the party to be affected by the judgment. If it have not the latter, the 
judgment is to this extent a nullity, and the title under it defective. 
Rogers v. McLean, 31 Barb, 304, The jurisdiction of equity in par- 
tition when some of the defendants are non-residents, is regulated by 
statute, which must be strictly construed and be strictly complied with, 
and the facts necessary to give jurisdiction must apj^ear of record, 
Piatt V, Stewart, 10 Mich, 260, 

To obtain partition in equity it is necessary for the legal title to be 
clear and undisputed. Bmiton v. Rutland, 3 Humph, 435 ; Shearer 
V, Winston, 33 Miss, 149 ; Alhergottie v, Chajylin, 10 Rich, Eq, 428 ; 
Trayner v. BrooJcs,4:IL9ijv}-. (Tenn.) 295 ; Whillockv. JIale, 10 Humph. 
64 ; Groves v. Groves, 3 Sneed, 187 ; Stuart v. Coalter, 4 Rand. 74 ; 
Straughan v. Wright, id. 493. Although a bill in equity cannot be 
maintained for partition until the legal title is determined, yet if the 
title be equitable, or there are equities to settle, application may be 
made to a court of equity for that purpose, and equity having once 
taken jurisdiction, it will decree a partition if a proj)er case therefor be 
made out. Carter v. Taylor, 3 Head, 30 ; Cam2)bell v, Lowe, 9 Md. 
500 ; Lucas v. King, 10 N, J. Eq, 277 ; Llosford v, Merwin, 5 Barb. 
51, "When a question is raised as to title during proceedings in equity 
for partition, the court will order a stay of pi'oceedings until the title 
can be determined in an action at law, McCall v. Car_penter, 18 How. 
(U, S.) 297 ; Horton v. Sledge, 29 Ala, 478 ; Walker v. Laflhi, 26 111, 
472 ; FoK^t v, Moorman, 2 Ind, 17 ; Manners v. Manners, 2 N, J, Eq. 
384; Dewitt v, AcTcerman, 17 id, 215; Hay v. Estell, 18 id. 251; 
Ohert V, Olert, 10 id, 98 ; Wilkin v, Wilkin, 1 Johns, Ch, 111 ; 
Bomie V. Boone, 3 Md, Ch. 497 ; Garrett v. White, 3 Ired. Eq. 131, 
The court will not, of its own motion, retain the bill to give the com- 
plainant an opportunity to establish his title at law, but he must apply 
for leave, Uassam v. Day, 39 Miss. 392. 



100 PARTITION. 

§ 9. What judgment or decree proper. The judgment awarding 
partition lunst set forth the estate and interest of each party {Greenup 
V. Sewell, IS 111. 53 ; Kilgour v. Crawford, 51 id. 249), and direct the 
manner in which the partition shall be made {Harrell v. Harrell^ 12 
La. Ann. 549), but it need not direct the parties to execute mutual 
deeds. Young v. Frost, 1 Md. 377. Where, however, the plaintiff 
has only an equitable title, the decree should direct the defendants to 
convey his share to him by deed, and not that they shall stand seised 
to his use. Christian v. Christian, 6 Munf. 534. A decree which, 
without setting out the respective interests and titles of the parties, 
directs an ecpial division among the defendants, but does not find that 
they have equal interests in the premises, is erroneous. Tihhs v. Al- 
len, 27 111. 119. 

When the real estate consists of distinct kinds of property, a part of 
each kind should be assigned in severalty, if it can be done without 
injury to the value of the estate ; but the not doing so will not necessa- 
rily be a ground for setting aside the partition. JJay v. Estell, 19 K. 
J. Eq. 133. It is proper for the court to order that " there be set off 
to the several parties such portions of the premises as will include their 
respective improvements, provided always, that the rights or interests 
of neither of the other parties be prejudiced thereby." Seale v. Soto, 35 
Cal. 102. It is no objection to an allowance for improvements that 
the improvements were made by tenants in common in reversion, dm'- 
ing the continuance of a previous life estate. Hall v. Piddock, 21 I^. 
J. Eq. 311. When it is practicable, the share of a tenant in common 
applying for partition may be set off, and the residue left undivided. 
Shrdly. Kennon, 12 Ind. 34; Gordon v. Pearson, 1 Mass. 323 ; Ab- 
hott V. Berry, 46 N. II. 369. A decree for partion should set off the 
share of the wife to the husband and wife in right of the wife, or to her 
alone, and not to the husband and wife jointly and in fee. Cost v. Rose, 
17 111. 276. 

When the real estate cannot be divided it may be decreed to the 
petitioner at a valuation. Pevxir v. Sjyence, 2 Whart. 211. If a sale 
of the land is necessary, the court has power to adjust and secure the 
rights of the parties in the proceeds of the sale, whether such rights be 
legal or equitable. M'dlijjan v. Poole, 35 Ind. 64 ; Gregory v. Greg- 
ory, 69 N. C. 522. If the bill pray for general relief, the decree may 
direct an account of the rents and profits. Humphrey v. Foster, 13 
riratt. 653. Where a tenant in common agrees vorl)ally ^^•ith his 
co-tenant to sell his interest in the land, l)ut after part payment refuses 
to fulfill the contract, a court of equity in awarding partition may de- 
cree the purchase-money so paid to be a lien on the premises. Gamp- 



PAKTITION. 101 

hell V. Campbell, 11 N. J. Eq. 268. When an infant is a party to the 
proceedings the court may decree his conveyance to be binding on him, 
unless he shows cause against it after arriving of age. Jackson v. Ed- 
wards, 7 Paige, 388. Where land, acquired by a testator after the 
making of his will, is conveyed by him to a child by way of advance- 
ment, in making partition, it is to be estimated according to its value 
at the time of the conveyance, and the residue of the real estate at its 
worth at the time of the testator's death. Toorner v. Toomer, 1 Mur- 
phy, 93. 

When the o^vner of lands sells and conveys an undivided interest, 
and then conveys to other persons particular portions by metes and 
bounds, and the grantee of the undivided interest afterward takes pro- 
ceedings for partition, his share of the premises should be assigned in 
euch a way, if practicable, as not to include any part of the land con- 
veyed by metes and bounds. Wehher v. Mallett, 16 Me. 88. Where 
a suit is brought for partition of a mill, pond and dam, the land and 
dam may be divided by metes and bounds, and a division be made as 
to the water in any mode that might be adopted by the parties them- 
selves by a partition deed. Smith v. Smith, 10 Paige's Ch. 470. It is 
no objection to the partition of a cotton factory that its division will 
destroy it as a factory, if, when divided, it can be used for other pur- 
poses. Wood V. Little, 35 Me. 107. 

Partition of the real estate of a testator cannot be made in contra- 
vention of his will. Cuhhage v. FranMin, 62 Mo. 36-i. When the 
premises are held adversely by other parties, a decree cannot be had 
imtil the legal title is established. Mattair v. Payne, 15 Fla. 682. 
Where some of several heirs are aliens, a decree of partition between 
them does not estop those who are citizens from claiming the whole 
in ejectment. Contee v. Godfrey, 1 Cranch (C. C), 479. A decree 
of partition of the land of a deceased person which is subject to the 
widow's right of dower is erroneous. The widow's dower should be 
first assigned, and a division be then made of the residue ; and if she 
has married again, she and her husband should be made parties. 
Curtis V. Snead, 12 Graft. 260. Where the court assigned the rever- 
sion of the widow's dower to one of several heirs, it was held that the 
decree was void, and tliat the other heirs were entitled to partition, 
even after the expiration of forty years from the date of the decree. 
Sumner v. Parker, 7 Mass. 79. If one of the tenants in common of 
land sell and convey his share before the commencement of the suit, 
and the plaintiff proceeds as if no sale had been made, giving notice 
to the gtantor, and not to his grantee, a judgment awarding partition 
mil be void. Jackson v. Brown, 3 Johns. 459. 



102 PAKTITION. 

§ 10. Execution of judgment or decree. A decree of partition is 
equivalent to an ordinary conversance {Atiderson v. Hughes, 5 Strobli, 
74) ; and is notice to purchasers of the land embraced in the shares. 
Marshall v. McLean, 3 Greene (Iowa), 363. Proof of a decree con- 
firming a sale in partition, and directing a conveyance, is sufficient 
evidence of the regularity of the proceedings prior to the judgment. 
StoJces V. Middleton, 28 N. J. 32 ; Foxcroft v. Barnes, 29 Me. 128. 

When the decree is bad in part, it is bad as to the whole. CorwUhe 
V. Grifflng, 21 Barb. 9. But a bill in equity will not lie to set aside a 
decree for partition of real estate, though it be alleged that the facts 
on which the decree is founded have no actual existence. Stewart v. 
Mizell, 8 Ired. Eq. 244. The judgment cannot be collaterally im- 
peached. Brace v. Reid, 3 Iowa, 422 ; Merklein v. Trapnell, 34 
Penn. St. 42. "Where, however, a decree of partition affecting the 
interest of minors under the control of the plaintiff is rendered with- 
out the appointment of a guardian, and the judgment is not supported 
by evidence, and it does not order appearance upon attaining majority 
to show cause against the decree, it may be impeached, although deeds 
of release were executed by the minors on arriving at full age, but in 
ignorance of the facts. Long v, Midford, 17 Ohio St. 484. A father, 
who is guardian ad litem for his children in a suit for partition in 
which they are defendants, is not concluded by a judgment in favor 
of the children, but may controvert their title. Terrill v. Boulware, 
24 Mo. 254. 

A judgment of partition is conclusive as to the title to the land 
divided, and that the parties and their privies were tenants in common 
of the part awarded to the plaintiff, Edson v. Munsell, 12 Allen, 600 ; 
Burghardt v. Van Deusen, 4 id. 374. A party to the record cannot, 
therefore, maintain an action of ejectment to recover the possession of 
the land on the ground that he held an adverse title at the date of the 
partition. Forder v. Da/uis, 38 Mo. 107 ; contra, Grice v. Randall^ 
23 Yt. 239. But the decree is conclusive only of the right to the land 
allotted, and not as to advancements and distribution of the valua- 
tion money among those entitled. Dutches Aj^peal, 57 Penn. St. 461. 
Judgment of partition does not affect the right of property, but only de- 
termines the right of possession without vesting in either of the parties 
any new or additional title in the share set off to each. Pierce v. 
Oliver, 13 Mass. 211 ; Wade v. Deraij, 50 Cal. 376. One who pur- 
chases the interest of a tenant in common during the pendency of a 
suit for partition has a privity of estate with his grantor, and will be 
bound by the judgment. He cannot, therefore, maintain a bill in equity 
for partition of the same land against a purchaser of the interest of the 



PARTITION. 103 

other tenant in common snbsequent to the judgment, although the con- 
veyance to the latter describes the premises conveyed as the undivided 
half of the entire land. Coble v. Clajyp, 1 Jones' Eq. 173. The effect 
of a decree of partition of the land of an intestate is to convey a con- 
tingent interest defeasible in behalf of the intestate's creditors. 
DresJier v. Allejitown, etc., Co., 52Penn. St. 225. The share of a widow 
in the land of her deceased husband was assigned in partition subse- 
sequent to a judgment against her second husband whose interest was 
sole under the judgment. Held, that the jDroceedings in partition de- 
fined the interest of the vendee, but did not otherwise affect him. 
Bachman v. Chrismmi, 23 Penn. St. 162. 

§ 11. Costs. Where the defendant makes a disclaimer, and it ap- 
pears that he is not in possession, or doing any act inconsistent with his 
disclaimer, the action will be dismissed with costs. Urban v. Hopkins, 
17 Iowa, 105. "When it appears that the parties are tenants in com- 
mon of part only of the land, and partition is made of such part, the 
defendant is entitled to costs. Paine v. Ward, 4 Pick. 246 ; Loud v. 
Penniinan, 19 id. 539. If unnecessary parties be brought into the 
suit without the request or consent of the defendants, the costs incurred 
thereby will be charged to the plaintiff, and not against the fund. 
Hamersley v. Haraersley, 7 N. Y. Leg. Obs. 127. See Williamswi v. 
Williamson, 1 Mete. (Ky.) 303. It is not a ground for charging a 
party with the entire costs, that he unreasonably refused to make par- 
tition by deed. McGowan v. Morrow, 3 Code R. 9. If in proceed- 
ings for partition among the children and heirs of a deceased person 
some of the defendants do not appear, and no part of the land is allotted 
to them on account of advancements, they are not liable to costs. 
Tanner v. Niles, 1 Barb. 560. Where a bill in equity to set aside a 
deed of partition, on the ground of fraud, prayed to have a new parti- 
tion, not only of the land previously divided, but also of other land, 
and the plaintiff did not establish the charge of fraud, it was held that 
the bill would be retained for a partition of the land not embraced in 
the deed, and that the plaintiff was liable for all of the costs of the 
defendant up to the time of the decree sending the case to the master. 
Masterson v. Finnigam,, 2 R. I. 316. 

If the defendants have no interest in the land, the plaintiff is enti- 
tled to costs, though he recovers less than he claimed. Tlwrnton v. 
Yorlc Bamlc, 45 Me. 158. When the defendants contest the plaintiff's 
right to partition, down to the time of the interlocutory judgment 
which is in the plaintiff's favor, and no longer, they will be liable to 
costs to the time of withdrawing their opposition. Fi^k v. Keene, 46 
Me. 225. Costs may be allowed upon the determination of an issue of 



104 PARTITION. 

law only. 8wett \. Bussey^ 7 Mass. 503 ; Symonds v. Kimhall, 3 id. 
299. It need not be shown, in a judgment for costs, that the petitioner 
first paid the costs. Sjyrott v. Reid, 3 Iowa, 489. 

Where a division is made of part of the land, but the residue, not 
being susceptible of division, is sold, the costs of the proceedings, in- 
cluding the sale, must be borne equally by all of the parties. Cooper 
V. Garesche, 21 Mo. 151. See Gibson Y.Brown, 1 McCord, 162; 
Phelps V. Stewart, 17 Md. 231. If a widow entitled to dower is a 
necessary party, she is Kable to a portion of the costs. Tanner v. Niles, 
1 Barb. 560. "When partition is decreed, the costs of the complainant 
and of the defendants who have appeared in the suit are to be taxed 
as between party and party, and the aggregate amount of the several 
bills of costs, as taxed, is to be apportioned between the complainant 
and the other parties, according to their respective rights and interests 
in the premises, as ascertained and settled by the decree ; and the de- 
cree should direct that the several parties entitled to such costs have 
execution therefor, according to the course and practice of the court in 
such cases. TihUts v. TihUts, Y Paige's Ch. 204. 



PAKTNERSHIP. 105 



CHAPTER CVI. 

PAETNERSHIPS. 
AKTICLE I. 

OF PAETNERSHIP IN GENERAL. 

Section 1. Definition and nature. As defined by Chancellor Kent, 
" partnership is a contract of two or more competent persons, to place 
their money, effects, labor, and skill, or some or all of them, in lawful 
commerce or business, and to divide the profit and bear the loss, in 
certain proportions." 3 Kent's Com. 23. See, also, Howell v. Har- 
vey, 5 Ark. 270, 278. A community of interest does not of itself 
constitute a partnership. There must be some joint adventure, and an 
agreement to share in the profit of the undertaking. Porter v. Mc- 
Clure, 15 Wend. 187; BoeUenx. Hardenbcrgh, 60 N. Y. (15 Sick.) 8. 
This community of profit is the test to determine whether the contract 
be one of partnership. And to constitute it, a partner must not only 
share in the profits, but he must share in them as a jprincijyal • for it 
is a well-settled rule, that a party who stipulates to receive a sum of 
money in proportion to a given quantum of the profits, as a reward for 
his labor, is not chargeable as a partner. Looinia v. Marshall, 12 Conn. 
70 ; Leggett v. Hyde, 58 N. Y. (13 Sick.) 272 ; S. C, 47 How. 524 ; 
17 Am. Kep. 244. See post, 108, § 3. 

§ 2. General principles. A partnership in fact can only be created 
by the voluntary contract of the parties composing it, and no partner- 
ship can be constituted, or changed in its membership, %vithout the 
consent of all its members. Hence, no person can become a member 
of an existing firm by any act of one of its members, or by operation 
of law, as by purchase under execution or bankruptcy sale, without 
the assent of all the rest of the partners. Marquand v. New York 
Man. Co., 17 Johns. 525 ; Kingman v. Spiwr, 7 Pick. 235 ; Channel 
V. Fassitt, 16 Ohio, 166 ; Freeman v. Bloomfield, 43 Mo. 891 ; Hedge's 
Appeal, 63 Penn. St. 273 ; Bishop v. Georgeson, 60 111. 484. But the 
contract of copartnership need not be in writing. A partnership may 
be created or dissolved by oral agreement. York v. Clemens, 41 Iowa, 
95 ; Holmes v. McCray, 51 Ind. 358 ; 19 Am. Rep. 735 ; Somerby v. 
Vol. v.- 14 



106 PAKTNERSHIP. 

Buntin, 118 Mass. 279 ; 19 Am. Rep. 459 ; Cliester v. Dickerson^ 54 
N. Y. (9 Sick.) 1 ; 13 Am. Rep. 550 ; Be Great West. Tel. Co., 5 Biss. 
(C. C.) 363 ; Burnett Line v. Blachmar^ 53 Ga. 98 ; Buffum v. 
Buffum, 49 Me. 108 ; Buckner v. Ries, 34 Mo. 357. 

And it may be inferred from acts and circumstances, even as be- 
tween the parties themselves. Manning v. Gashaire, 27 Ind. 399 ; 
Dalton v. Dal. Manuf. Co. , 33 Ga. 243 ; Duryea v, WhitcoTnb, 31- 
Yt. 395 ; Kelleher v. Tisdale, 23 111. 405. Thus, if two or more per- 
sons should contribute money, merchandise, credit, skill, care or labor, 
or one or more of these for carrying on business for the common bene- 
fit, the law would undoubtedly regard this as a partnership by presum- 
ing a contract to that effect. Duryea v. Burt, 28 Cal. 509 ; Perry v. 
Butt, 14 Ga. 699 ; Marks v. Stein, 11 La. Ann. 509 ; National Bank 
V. LoMdon, 45 IST. Y. (6 Hand) 410 ; Crawshay v. Collins, 15 Yes, 
218 ; Smith v. Jeyes, 4 Beav. 503 ; Bobbins v. Laswell, '2i'I 111. 365 ; 
Burrett v. Swan, 17 Me. 180. 

The objects of a partnership may embrace all kinds of legitimate 
and lawful pursuits. Chester v. Dickerson, 54 N. Y. (9 Sick.) 1 ; S. 
C, 45 How. 326 ; 13 Am. Rep. 550. And it need not be confined to 
dealings in personal property, but may embrace operations in real 
estate. Ludlow v. Cooper, 4 Ohio St. 1 ; Buffum v. Buffum, 49 
Me. 108 ; Cowles v. Garrett, 30 Ala. 341 ; Chester v. Dickerson, 54 
N. Y. 1. But the business must be a lawful one, and not contemplate 
a fraud or a violation of law or a moral duty. Bartle v. Coleman, 4 
Pet. 184 ; Gardon v. Sloxoden, 12 C. & F. 237. 

Another general principle relating to partnerships is that each partner 
is the lawful agent of the partnership in all matters within the scope 
of the business. Edwards v. Tracy, 62 Penn. St. 374 ; Decker v. 
Howell, 42 Cal. 636 ; First National Bank v. Carpenter, 41 Iowa, 
518; Kenney v. Altvater, 77 Penn. St. 34; Winship v. United States 
Bank, 5 Pet. 529 ; Z/uel v. Bowen, 78 111. 234 ; Pahhnan v. Taylor, 
75 id. 629 ; Cox v. UickmoM, 8 II. L. Cas. 268 ; 9 C. B. (N. S.) 47. And 
he differs from an ordinary agent only in having an interest in the sub- 
ject-matter of the agency. Baring v. Lyman, 1 Story (C. C), 396. 
As between the partners tliis general authority may be controlled by 
agreement ; and a partner might thereby, in respect to his copartners, 
be limited or entirely restrained from exercising this ordhiary power. 
But as to third parties liaving no knowledge of such limitation or re- 
straint, the partnership would be bound by the exercise of such gen- 
eral authority on the part of a member. Cappel v. Ilall, 12 Bankr. 
Reg. 1 ; Ilalstead v. SJiepa/rd, 23 Ala. 558 ; Cox v. Hickman, 8 H. L. 
Cas. 268. And see the cases cited above. So the partnership is generally 



PARTNERSHIP. 107 

liable for the torts of the partners committed, or done in the pursuit 
of the business of the firm ( United States v. Thomasson, -i Biss. [C. 
C] 99 ; Eoherts v. Johnson, 58 Is". Y. [13 Sick.] 613 ; Witche?- v. 
Brewer, 49 Ala. 119 ; Loomis v. Barker, 69 111. 360 ; Ashworth v. 
Stanwix, 7 Jur. [X. S. ] 467 ; S. C, 3 El. & El. 701 ; Chester v. 
Dickerson, 54 N. T. [0 Sick.] 1; 13 Am. Rep. 550), where partners 
were held liable for the fraud of a copartner. Another general princi- 
ple is that each partner is personally responsible for the obligations and 
liabilities of the firm, whether they arise out of torts or on contracts. 
Id. ; Bryants. Hawkins, 47 Mo. 410. 

In respect to agency and personal liability for obligations, there is a 
marked difference between the members of a partnership and those of 
a corporation. The members of a corporation are not the fictitious 
persons which they are supposed to constitute. And the rights and 
liabilities of the corporation are not directly enforceable by or against 
them, either jointly or severally. Baker v. Backus, 32 111. 79 ; Shaw 
V. Boylan, 16 Ind. 384. 

Nor is there any general authority for tlie members of a corporation 
to act as agents for the corporate body. Buhy v. Po^rtland, 15 Me. 
306. But the members of a partnership do not form a body distinct 
from the members composing it. The rights and liabilities of the firm 
are the rights and the liabilities of the partners, who are, as we have 
seen, personally responsible for the obligations of the partnership. As 
between the partners, this liability might be controlled l»y contract, the 
same as the general right of agency. But this could not affect the 
general rights of third persons. See authorities cited above. 

Again, the relation of partners with each other requires on the part 
of each good faith in the management of the partnership business, and 
at least the exercise of ordinary care and prudence ; and if a loss occurs 
through the want of these, the party in fault must bear the loss. Car- 
lin V. Donegan, 15 Kan. 495. And if one partner uses the partner- 
ship funds or property clandestinely, in private speculations, he will be 
required to account to the other partners, not only for the funds and 
property, but for the profits made. Love v. Carpenter, 30 Ind. 284. 
And if one partner uses the partnership funds in the purchase of prop- 
erty in his own name, he will be treated as holding the same in trust 
for the benefit of the partnership. Evans v. Gibson, 29 Mo. 223 ; 
Smith V. Ramsey, 6 111. 373 ; Coder v. Huling 27 Penn. St. 84 ; 
Wheatley v. Calhoun, 12 Leigh (Va.), 264 ; Fairchild v. Fairchild, 5 
Hun (N. Y.), 407. See, also, Mitchell v. Reed, 61 N. Y. (16 Sick.) 
123; 19 Am. Rep. 252; Coursin's Appeal, 79 Penn. St. 220; Craw- 
shay V. Collins, 15 Yes. 227. 



108 PARTKERSraP. 

Each partner has a specific lien on the partnership property for the 
debts of the firm, and for his own share tliereof, after the payment of 
such debts, and also for money advanced for the use of the firm. 
Donelson v. Posey ^ 13 Ala. Y52; Duryea v. Burt^ 28 Cal. 569 ; Black 
V. Bush, 7 B. Monr. (Ky.) 210 ; Crookerv. Crocker, 4S Me. 250 ; Free- 
tnaii V. Stewart, 41 Miss. 138 ; Parker v. Parker, 65 Barb. 206 ; Al- 
den V. Wales, 22 Pick. 215 ; Young v. Keighly, 15 Yes. 55Y. 

§ 3. Partners as between themselves. Persons engaged in a 
business or adventure for their mutual benefit may not always be part- 
ners as between themselves, even although they may have a communion 
of interest in the profits ; but they may frequently be treated as partners 
by third persons, when there is in fact no partnership, as we shall 
hereafter see. A partnership in fact can only exist when there is a 
voluntary agreement made for that purpose. And there can be no 
such ^partnership against the intention of the parties to the contract. 
A partnership can only exist wdien such is the actual intention. E ven 
a participation, or a communion of interest in the profits, will not con- 
stitute persons partners against the stipulations of the contract. Pol- 
lard V. Stanton, 7 Ala. 761 ; Winshij? v. Bank of TJ. S., 5 Pet. (U. 
S.) 529 ; Pillsbury v. Pilsbury, 20 N. H. 90 ; Rice v. Austin, \7 Mass. 
197 ; Newman v. Bean, 21 N. II. 93 ; Randle v. State, 49 Ala. 
14; Hazard \. Hazard, 1 Story (C. C), 371 ; Lamh v. Grover, 47 
Barb. 317; Niehoff w Dudley, 40 111. 406; Morgan \. Stearns, 41 Yt. 
398 ; Lintner v. Millikin, 47 111. 178 ; Salter v. Ham, 31 I^. Y. 321 ; 
Stevens v. Faucet, 24 111. 483. The intention of the parties must 
determine the question of an actual partnership. This may be de- 
rived from the language of the contract itself, if there be an express 
contract, or from the acts and declarations of the parties, who must be 
supposed to intend what their words or acts indicate, ^¥^ll8 v. Shn- 
monds, 51 How. (N. Y.) Pr. 48 ; Loomis v. Marshall, 12 Conn. 69 ; 
Denny v. Cahot, 6 Mete. 82 ; Hickman v. Cox, 3 C. B. (N. S.) 523. 

The following cases illustrate the doctrine above set forth, and the 
construction of partnership contracts. Where there was an agreement 
between two partners, on the dissolution of their firm, that one should 
take the goods and other property of the firm and pay all its debts, and 
pay the other one-third of the profits arising from the sale of the prop- 
erty, and the other agreed to sustain one-third of the losses on such 
sale, and assist as clerk in making the sales, this was held to con- 
stitute a new partnership as Ijutweeu them. Scott v. Camjjhell, 30 
Ala. 728. 

So, where thei-e was an agreemoit between two persons, whereby one 
was to furnish land and stock and the other labor, and they were to share 



PARTi^ERSHIP. 109 

the expense and crop equally, this was held to constitute a partnership 
between them, Uolifield v. White^ 52 Ga. 567. See also, Allen y. 
JDavis, 13 Ark. 28 ; Brown v. Higginbotham, 5 Leigh (Ya.), 583. 
And, as a general rule, a partnership in fact is held to exist, where there 
is a joint interest in the net profits of an adventure or business, or in 
the profi.ts as affected by the losses. Chapman v. Devereaux^ 32 Yt. 
616 ; Leggett v. Hyde, 58 E'.T. (13 Sick.) 272; S. C, IT Am. Eep. 244. 
But this, after all, depends upon the intention of the parties, which 
may be otherwise clearly expressed in the contract, or be inferred 
therefrom or from the acts of the parties. A community of in- 
terest in the profits is held to be an essential element in a part- 
nership, but this is not a decisive proof of a partnership. Duryea 
Y.Burt, 28 Cal. 569; Pratt v. Langdon, 12 Allen, 544; Bullen 
V. Sharp, L. K, 9 C. B. (N. S.) 47 ; 1 C. P. 86 ; Cox v. Hickraam., 
8 H. L. Cas. 268; 99 E. C. L. 47. Where a contract provided 
that the party of the first part should in his own name, but on 
the joint account of himself and the parties of the second part, 
secure a lease of a railroad, and manage the same at a designated sal- 
ary, for their mutual benefit, the parties of the second part to furnish 
the necessary money to carry on the enterprise, but to be re-imbm-sed 
with interest out of the annual profits, and after the payment of such 
sum, the losses to be borne and the profits to be divided equally between 
them, it was held to constitute a partnership between the parties. 
Beauregard v. Case, 91 U. S. (1 Otto) 134. See, also. Wills v. Simf- 
monds, 51 How. (N. Y.) Pr. 48 ; Bills v. Bailey, 27 Yt. 548. And 
where one party agreed to contribute his inchoate interest in an inven- 
tion, and another party to furnish the money necessary to make it 
available in the form of a patent, and both were to contribute their 
services to make it remunerative, this was held to constitute a partner- 
ship. Somerhy v. Buntin, 118 Mass. 279 ; 19 Am. Eep. 459. See, 
also, Parhhurst v. Kinsman, 1 Blatchf. 488 ; Hermunos v. Duvig- 
neaud, 10 La. Ann. 114. 

So it has been held that where parties joined to carry on an adventure, 
one contributing a vessel, the other skill and labor, and agreeing upon 
a division of profits on a fixed ratio, that this was a partnership. Ward v. 
Thompson, 22 How. (U. S.) 330. See, also, Mumford v. Nicoll, 20 Johns. 
611 ; Gilhanh v. Stephenson, 31 Wis. 592. But it has also been held 
that where there was a right to a share of the proceeds of a whaling voy- 
age, as compensation merely for services rendered in the adventure, 
it did not constitute a partnership in the profits of the voyage. Coffin 
V. Jenkins, 3 Story (C. C), 108. And where there was a contract by 
which one person agreed to work for another for one year, as overseer, 



110 PARTNERSHIP. 

and to furnish a certain number of hands and horses to be worked on 
the latter' s plantation with his horses, and the former was to receive as 
compensation one-fourth part of the crop, it was held that this did not 
constitute a partnership between the parties. Moore v. Smith, 19 Ala. 
774. See, also, Handle v. State, 49 id. 14 ; Stoallings v. Baker, 15 Mo. 
4S1. So, where the agreement provided that one should furnish a 
farm and certain teams and labor, and that the other should manage 
the farm and give certain labor, and the crops were to be divided 
between them, it was held not to constitute a partnership. Blue v. 
Leathers, 15 111. 31. See, also, Holloway v. Brinkley, 42 Ga. 226. 
So, where a railroad corporation entered into a contract with a person 
by which they leased him a house to be kept as a hotel, he agreeing to 
pay them a certain sum annually, and half the net proceeds arising 
from the keeping of the hotel, and to keep an account open to their 
inspection, and give his own time to the business, and they further 
agreeing to give free passage over their road for himself and all persons 
in his employment, and free carriage of all articles required in carrying 
on the hotel, it was held that this did not constitute a partnership. 
Holmes v. The, Old Colony R., 5 Gray, 58. So, a pool arrangement 
between the owners of different vessels, whereby the excess of the net 
earnings of one boat over the other is to be divided between them, 
does not constitute a partnership. Fay v. Davidson, 13 Minn. 523. 
So, an agreement between two persons to share commissions on goods 
sent by one to the other, does not constitute them partners. Pomeroy 
V. Sicjerson, 22 Mo. 177. See, also, Rice v. Austin, 17 Mass. 197. 
And an agreement whereby one party furnishes a boat and the other 
sails it, and the gross earnings are to be divided, does not make them 
partners. Bovyman v. Bailey, 10 Yt. 170. Nor does the joint pur- 
chase and ownerslii}) of property, as a vessel or a threshing-machine, 
though used by the owners in common, constitute a partnership. Hop- 
kins V. Forsyth, 14 Penn. St. 34; Iliff v. BraziU, 27 Iowa, 131; 
Chisholm V. Cowles, 42 Ala. 179. And where two wool firms agreed 
each to furnish a certain proportion of a quantity of wool, contracted 
to a certain vendee, and sliare profit and loss in the transaction, it was 
held that this was not sufficient to constitute them partners. Snell v. 
DeLand, 43 111. 323. So, where two persons undertook to furnish 
certain material and perform certain labor for another, and one was to 
perform one part and the other another part, and each was to receive 
a proportional ^amount of the whole sum to be paid, it was held that 
these facts did not constitute them partners. Smith v. Moynihan, 
44 Cal. 53. See, also, IlavMns v. Mclntyre, 45 Yt. 496. 

It does not necessarily follow, as we have noticed, that or.e wlio is 



PARTNERSHIP. Ill 

interested in, and is to receive a portion of the profits of a partnersliip, 
is a partner, either as between the partners or third persons. Thns, if 
a person is to receive a certain portion of the profits of a business or 
adventure, as compensation for services rendered in and about the 
business, this does not make him a partner in fact, nor of itself render 
him liable as a partner to third persons. Loomis v. Marshall^ 12 
Conn. 69 ; Dwinel v. Stone, 30 Me. 384 ; Lewis v. Greider, 51 N. Y. 
(6 Sick.) 231; Wiggins v. Graham, 51 Mo, 17; CaQnpbell v. Dent, 
54 Mo. 325 ; Bendel v. Hettrick, 3 Jones & Sp. (IST. Y.) 405. See 
ante, 105, § 1. The general rule is that compensation for services, in the 
form of commissions or percentage of the profits, or a share of the pro- 
duct of a business, does not constitute the party entitled thereto a 
partner. BrocJcway v. Burnaj), 16 Barb. 309 ; Goode v. McCartney, 
10 Tex. 193 ; Amller v. Bradley, 6 Yt, 119 ; Miller v. Bartlet, 15 
S. <fe R. 137 ; Dillard v. Scruggs, 36 Ala. 670 ; Christian v. CrocTcer, 
25 Ark. 327 ; Edwards v. Tracy, 62 Penn. St. 374 ; Le7igle v. Smith, 
48 Mo. 276; Lewis v. Greider, 51 N. Y. (6 Sick.) 231; Johnson v. 
Miller, 16 Ohio, 431 ; Lintner v. Millikin, 47 111. 178. And where 
a person advances money or furnishes property to carry on a business 
imder an agreement to receive as compensation for the same or for the 
use of it, a share of the profits of the business, this does not ordinarily 
constitute him a member of the firm, or a partnership between him 
and the other members. Ruddick v. Otis, 33 Iowa, 402 ; Emmons v. 
Westfidd Bank, 97 Mass. 230 ; Linter v. Millikin, 47 111. 179. See 
Perrine v. Hankinson, 6 Halst. 181. But they are sometimes held as 
partners in such cases as to third parties and creditors of the firm. 
Leggett v. Hyde, 58 K Y. (13 Sick.) 272; S. C, 17 Am. Rep. 244; 
Chase V. Barrett, 4 Paige, 148 ; Broionlee v. Allen, 21 Mo. 123 ; 
Parker v. Canfield, 37 Conn. 250; S. C, 9 Am. Rep. 317; Rowland, 
V. Long, 45 Md. 439 ; Williams v. Gillies, 53 How. (N. Y.) Pr. 420. 
§ 4. Partners as to third persons. As to third persons, parties 
may be liable as partners in two ways : First, by being partners in 
fact as between themselves, in which case they may always be treated 
as partners by third persons, and as such, as we have already noticed, 
are severally and collectively liable for ail just claims against the firm, 
whether arising on contract or from tort. See, also, Winshij) v. Bank 
of JJ. S., 5 Pet. 561 ; Richardson v. Farmer, 36 Mo. 35 ; Armstrong 
V. Ilussey, 12 S. & R. 315 ; Prattx. Langdon, 12 Allen, 544. Secondly, 
by holding themselves out to third parties as such, the law will not 
allow them to deny the relation even though no partnership in fact 
exists, where such third parties would be otherwise prejudiced. This 
doctrine may rest upon the ground of estoppel. 



112 PAETNEESHIP. 

One of the strongest circmnstances as e^^dence of a partnership in 
such cases is the fact of a general agency exercised by partners in con- 
ducting a business. This general right, as we have noticed, is incident 
to all partnerships. And the general exercise of it would as to third 
persons, claiming to hold them as such, be very strong if not con- 
clusive evidence of a partnership. 

The fact of agency has been held to be the best test of partnership 
as to third persons. In other words where one who is not an osten- 
sible partner, is sought to be held as a partner by a third person, the 
question is whether the trade and business has been carried on for his 
benefit and on his behalf, that is whether or not he stood in the rela- 
tion of principal toward the persons acting ostensibly as partners. If 
such a relation is shown to exist, it is more conclusive of a partnership 
than the fact of participation in profits which may be a cogent but not 
conclusive evidence of liability. Kilshaw v. dukes, 3 B. & S. 847 ; 32 
L. J. Q. B. 217 ; Bullen v. Sharj), 1 H. & R. 117 ; L. E., 1 C. P. 86 ; 
Cox V. Hickman, 18 C. B. 617; 8 H. L. Gas. 268; Harvey v. 
Childs, 28 Ohio St. 319 ; S. C, 22 Am. Rep. 387. The distinction 
between profits received as profits by a principal and profits received 
by an agent as compensation for services, is nice and sometimes ditfi- 
cult of application, but is fully established. Parker v. Canfield, 37 
Conn. 250 ; S. C, 9 Am. Rep. 317. Sharing profits in any other 
sense than sharing them as a principal is not an absolute test of liability. 
Harvey v. Childs, 28 Ohio St. 319 ; S. C, 22 Am. Rep. 387. The 
ground of liability should be either that the defendant is a principal 
in fact and bound by a contract made by himself or his agent acting by 
his authority, or that he is esto]:>ped to deny that he is a principal, 
under the general doctrine of estoppel. Eastman v. Clark, 53 N. H. 
276 ; S. C, 16 Am. Rep. 192. See, also. Ex jparte Langdale, 2 Rose, 
444 ; 18 Yes. 300 ; Martyn v. Gray, 14 C. B. (N. S.) 824 ; Dtutton v. 
Woodman, 9 Gush. 255 ; Camjjhell v. Dent, 54 Mo. 325 ; Beudel v. 
Hettrick, 3 Jones & Sp. (N. Y.) 405 ; Central City Savings Bank v. 
WalMr, e)?> N. Y. (21 Sick.) 424. But it has frequently been held 
suflicient, as to third persons, to show a communion of interest in the 
profits, although it is not essential as to them, that there be also a com- 
munion of interest in the property, or capital used in the business. 
SheridoM v. Medara, 10 IST. J. Eq. 469 ; Bromley v. Elliot, 38 IS". 
n. 287 ; Winship v. Bank, 5 Pet. 529 ; Leggett v. Hyde, 58 N. Y. 
(13 Sick.) 272 ; S. G., 17 Am. Rep. 244; Lengle v. Smith, 48 Mo. 276; 
Chayapion v. Bostwick, 18 Wend. 184 ; Heimstreet v. Howland, 5 
Denio, 68 ; Fitch v. Ha/rrington, 13 Gray, 468. Nor is it essential as 
to them that there is no agreement to share the losses also. Manhattan 



PAKTNERSHIP. 113 

Brass mid Manuf. Co. v. Sears^ 45 N. Y. (6 Hand) 79Y ; S. C, 6 
Am. Rep. 177. 

The general ground of liability of a person as partner, who is not 
so in fact, is that he has held himself out to the world as such, or per- 
mitted others to do so, and that by reason thereof he is estopped from 
denying that he is one, as against persons who have in good faith dealt 
with the lirin, or with the person so held out as a member of it. Reber 
V. Col. Mach. Man. Co., 12 Ohio St. 175; Drennan v. House., 41 Penn. 
St. 30 ; Sherrod v. Langdon, 21 Iowa, 518 ; Dickinson v. Valpy, 10 

B. & C. 140 ; Bowie v. Maddox, 29 Ga. 285 ; Gumhel v. Ahrams, 20 
La. Ann. 568. Bat it must appear that the person dealing with the 
firm believed, and had a reasonable right to believe, that the person 
whom he seeks to hold as a partner was a member of the firm, and that 
the credit was to some extent induced by this belief. Wood v. Pennell, 
51 Me. 52; 8_pencer v. Billing, 3 Camp. 310; Bowen v. Rutherford, 
60 m. 41 ; S. C, 14 Am. Rep. 25. And it must also appear that there 
was such publicity in the acts of the party charged as to afford the 
reasonable presumption that the creditor or other person seeking to 
establish the relation had knowledge of them and acted upon such 
knowledge. The law, however, presumes that the party who holds 
himself out as a partner does so voluntarily, and that the creditor 
under the belief of a partnership gave the credit. Bowen v. Ruther- 
ford, 60 111. 41 ; S. C, 14 Am. Rep. 25 ; Waugh v. Carver, 2 H. 
Black. 235 ; Fox v. Clifton, 6 Bing. 776 ; Dickinson v. Yalpy, 10 
Barn. & Cress. 128. Admissions of the parties sought to be charged 
as partners, as well as their acts, are competent evidence to show a 
holding out to the world, or to the parties dealing with them, that they 
are partners. Goode v. Harrison, 5 B. & Aid. 147 ; Palmer v. Pinh- 
ham, 33 Me. 32 ; Dutton v. Woodman, 9 Cush. 255 ; Field v. Tenney, 
47 N. H. 513 ; Drennen v. House, 41 Penn. St. 30. 

In order to hold a person as partner on the ground of a holding out 
to the world or to the third party as such, it must appear that the hold- 
ing out was by the party sought to be charged, or by his authority, or that 
he had notice of being so held out, or that there are circumstances from 
which notice can be presumed. Re Jewett, 15 Bankr. Reg. 126. This, 
where it is not the direct act of the party, may be inferred from cir- 
cumstances such as from advertisements {Ex parte Mathews, 3 Yes. & 
Bea. 125) ; signs ( Williams v. Keats, 2 Stark. 290) ; shop-biDs or 
cards {Gill v. Kuhn, 6 S. & R. 333 ; Benedict v. Davis, 2 McLean's 

C. C. 348 ; Yovmg v. Axtell, 2 H. Black. 242) ; and from various other 
acts, from which, under all the circumstances, it is reasonable to infer 
that the holding out was with the knowledge and authority of the party 

YoL. Y.— 15 



114 PAETNERSHIP. 

sought to be held as a partner. See Ex parte Lomgdale^ 18 Yes. 300; 
Stearfis v. Haven, 14 Yt. 540 ; Barnett v. Smith, 17 111. 565 ; Chid- 
sey V. Porter, 21 Penn. St. 390. 

But it must, in some manner, be made to appear that, if not his direct 
act, it was done with his assent ; and this, as we have seen, may be 
shown by circmnstances. Jennings v. Estes, 16 Me. 323 ; Tuttle v. 
Cooper, 5 Pick. 414 ; Taylor v. Henderson, 17 S. & E.. 453 ; Mathews 
V. Eelch, 25 Yt. 536 ; McBride v. Protection Ins. Co., 22 Conn. 248 ; 
McPherson v. Rathhone, 7 "Wend. 216 ; Prentiss v. Kelley, 41 Me. 
436. The admissions of one partner of an alleged partnership would 
not be evidence against another. Id. ; Porter v. Wilson, 13 Penn. St. 
641 ; Bishop v. Georgeson, 60 111. 484 ; Puhe v. Burnell, 121 Mass. 
450 ; Cross v. Langley, 50 Ala. 8 ; Converse v. Shamhaugh, 4 Neb. 
376. Nor could a partnership be proved by general reputation. CarZ- 
ton V. Ludlow Woollen Mills, 27 Yt. 496 ; Grafton Bk. v. Moore, 13 
N. H. 99 ; Scott v. Blood, 16 Me. 192; Halliday v. McDotigall, 20 
Wend. 81 ; Sinclair v. Wood, 3 Cal. 98 ; Lochridge v. Wilson, 7 Mo. 
560; Brown v. Crandall, 11 Conn. 92; Bowen v. Rutherford, 60 111. 
41 ; S. C, 14 Am. Rep. 25 ; Campbell v. Hastings, 29 Ark. 512. At 
Ipast, as against one ignorant of the reputation. Id. 

§ 5. Dormant i)artners. A dormant partner is one whose name 
is not known iu the business, and whose interest therein is con- 
cealed from the world. They are in all cases liable to third parties 
dealing with the firm, when discovered, the same as the ostensible 
partners. Winshij) v. Banh of United States, 5 Pet. 561 ; Armstrong 
V. Hussey, 12 S. & E. 315 ; Hill v. Yoorhies, 22 Penn. St. 68 ; Vere 
V. Ashhy, 10 B. & C. 288 ; Wintle v. Cowther, 1 C. & J. 316. In an 
action by a creditor against a partnership or the members of it, it is not 
essential to make a dormant partner a party defendant. Only the 
ostensible partners need be sued. Sylvester v. Smith, 9 Mass. 119 ; 
Bird V. McCoy, 22 Iowa, 549. Although a notice may be required 
on the retirement of ostensible parties from the firm, in order to ter- 
minate their liability for future obligations, no such notice is required 
pn the retirement of a dormant partner. As no one is supposed to 
give credit to a partnership on account of a dormant partner, no future 
creditor is prejudiced for the want of notice of his retirement. Arm- 
strrongy. Hussey, 12 S. & E. 315 ; Kennedy v. Bohannon, 11 B. Monr. 
120 ; Benton v. Chamlerlin, 23 Yt. 711 ; Warren v. Ball, 37 111. 76 ; 
Ellis V, Bronson, 40 id. 455. 

§ 5. Construction of contract between. Contracts of copartner- 
ship arc construed by the same rules as other contracts. Jackson v. 
Crajjp, 32 Ind. 422. If the parties to an undertaking expressly de- 



PARTNERSHIP. 115 

clare that they do not mean to become partners, the courts will neither 
construe the express contract, nor their acts, as creating a partnership 
in fact, though otherwise clearly estabHshing one. Gill v. Kuhn, 6 S. & 
K. 337 ; Kerr v. PotUr, 6 Gill (Md.), 404 ; Gilpin v. Enderhey, 5 B. <fc 
Aid. 954. See, also, art. 1, § 3. The intention of the parties, as gath- 
ered from the express contract, or their acts and conduct, must be 
regarded in construing the contract. Niehoff v. Dudley^ 40 111. 406 ; 
Wills V. Simmonds, 51 How. (N. Y.) Pr. 48 ; Parkei' v. Canjield, 
37 Conn. 250 ; 9 Am. Rep. 317 ; Rice v. Austin, 17 Mass. 197. 

But it must be miderstood that the rule as above stated applies to 
the construction of contracts as between the parties, and has no refer- 
ence to the liability of the parties to thhd persons. In determining 
the question as to whether parties to a contract are liable to third per- 
sons as partners or not, it is of no importance that the parties did not 
intend to be partners, and were not partners inter esse. They may be 
liable as partners to third persons, though they have taken pains to 
stipulate among themselves that they will not in any event hold the 
relation of partners. Leggett v. Hyde, 58 N. Y. (13 Sick.) 272 ; S. C, 
17 Am. Rep. 244 ; Manhattan Brass amd Manufacturing Co. v. 
Sea/rs, 45 N. Y. (6 Hand) 797 ; S. C, 6 Am. Rep. 177 ; Ontario Banlc 
v. Hennessey, 48 oST. Y. (3 Sick.) 545. 

§ 6. Limited partnership. Limited partnerships are those organ- 
ized under the provisions of general statutes, which provide for a 
limitation of the liability of one or more of the partners to a certain 
and fixed amount. General statutes in most of the States provide 
for the organization of such partnerships, and point out in detail the 
mode. In such partnerships there are one or more partners, with the 
rights and powers, and subject to the liabihties of partners in general ; 
and those, who would limit their liability as general partners, must see 
that the provisions of the statute in respect to the limitation of liability 
are strictly complied with, otherwise they will be subject to the gen- 
eral liability. Pierce v. Bryant, 5 Allen, 91 ; Bowen v. Argall, 24 
Wend. 496 ; Smith v. Argall, 6 Hill, 479 ; 3 Denio, 435 ; Richard- 
son V. Hogg, 38 Penn. St. 153. But this would not be the case where 
the defects are merely formal, and such as cannot injure any party. Id. 
See, also, Lachaise v. Marks, 4 E. D. Smith, 610 ; Buckley v. Bram- 
hall, 24 How. Pr. 455. 

Where in organizing such a partnership under the statutes of Kew 
York, it was stated in the certificate of formation that the special part- 
ner had contributed a certain sum, when in fact a portion of it was 
contributed by another party, with the design of securing the benefits 
of a special partner without becoming one, it was held that all the part- 



116 PAKTNERSHIP. 

ners were liable as general partners. Bulkley v. Marks, 15 Abb. (N. 
Y.) Pr. 454: ; S. C, 24 How. 455. See, also, Haviland v. Chace, 39 
Barb. 283 ; Ward v. Newell, 42 id. 482 ; Re Merrill, 12 Blatchf. C. 
C. 221 ; 13 Bankr. Eeg. 91 ; Van Ingen v. WJiitman, 62 N. Y. (17 
Sick.) 513. The riglits and powers of such a special partner may 
depend upon the provisions of the statutes under which the partnership 
is organized. These vary in the different States, although the provis- 
ions of the statutes are usually very similar. 

In New York, it has been held that a limited or special partner is a 
partner as much as a general one, and may take an active part in the 
business of the partnership ; but that such acts would render him liable 
as a general partner. Hogg v. Ellis, 8 How. (N. Y.) Pr. 473. This 
is placed upon the ground that there is nothing in the statutes that pre- 
vents a special partner from acting in the business of the firm, and that 
the statute cannot be extended by construction, to divest a partner of 
his general rights. Lachaise v. Marks, 4 E. D. Smith (N. Y.), 610. 
In order to Hmit the liability of a special partner under these statutes, 
if the partnership continues after the limitation of the time fixed by 
the original certificate, there must be a new certificate and a proceeding, 
in the same manner as in the original organization. And if this is not 
done, the partnership becomes a general one. Lachaise v. Marks, id. 
610. So if there is a dissolution for any cause, but the business is still 
carried on by the former partners, or a portion of them, with the assent 
or permission of the special partner, he becomes liable as a general part- 
ner. Beers v. Reynolds, 12 Barb. 288 ; 11 N. Y. (1 Kern.) 97. See, 
also, Jacquin v. Buisson, 11 How. (N. Y.) 386. In respect to notice 
of dissolution, required of general partners to be given, in order to 
exempt them from hability after a dissolution, the same notice is 
required of a special or Hmited partner, except where the dissolution 
occurs from the expiration of the time fixed in the original certificate 
of oi-ganization. In that case, the fact being a matter of record, all 
parties would be bound to take notice of it. JIaggerty v. Taylor, 10 
Paige, 261. If after the expiration of the time limited for the contin- 
uance of a partnership, or after a dissolution by the consent of the 
members, and notice given by the special partner, the business is con- 
tinued by other members in the name of the original firm, the special 
partner would not be liable to the subsequent creditors, or for the acts 
of such new firm. Id. And all persons dealing with a limited part- 
nership are chargeable with notice of the scope of the partnership busi- 
ness as contained in the articles of copartnership. Taylor v. Rasch, 11 
Bankr. Reg. 91. But if a special or limited partner secures credit to 
the firm under the representation that he is a general partner, he will 



PAETNEESHIP. 117 

be held liable as such, Barroujs v. Downs^ 9 R. I. 446 ; 11 Am, Rep. 
283. 

§ 7. Joint-stock companies. Joint-stock companies are a kind of 
partnerships that resemble, in manj respects, corporations for pecuniary 
gain. They usually have a particular name, and officers and by-laws, 
like corporations, and the capital stock is divided into shares, repre- 
sented by certificates or scrip, and, usually, the transfer of these from 
one to another is required to be registered on the books of the com- 
pany, and constitutes the holder a member. But these companies, 
however created, are mere partnerships, at least as to third parties. 
Hess V. Werts^ 4 S. & R. 356 ; Skinner v. Dayton, 19 Johns. 513 ; 
Pennsylvania Ins. Co. v. Murphy, 5 Minn. 36 ; Henry v. Jackson, 
37 Yt. 431 ; HaUett v. Dowdall, 18 Q, B, (A, & E.) 2 ; 9 Eng. Law 

6 Eq. 347, See ante, tit. Joint-Stock Companies. 

In England, previous to 1862, the organization of such companies 
was quite common under statutes providing therefor. This was owing 
to the expense and difficulty of securing charters of incorporation. 
But since that time every facility has been afforded by various acts of 
Parhament for incorporation for all the various purposes of pecuniary 
gain, and these have largely taken the place of mere joint-stock com- 
panies, as they afford advantages not secured by mere partnerstiips. 
In this coimtry the facilities for incorporation, under general laws in 
most of the States, have been much greater, and there was little 
necessity for the organization of joint-stock companies possessing less 
advantages. Hence, we find here comparatively few such partnerships. 
The general right of persons to constitute such companies has been 
universally conceded. For parties may make such stipulations and 
agreements, as to a business or adventure in which they wish to 
embark, as they please. They may provide for a partnersliip or not ; 
they may call it a partnership or not ; they may provide for a capital 
stock, for a division of it into shares, to be represented by trans- 
ferable certificates or scrip ; they may provide for its transfer, and 
that the holder shall be a member of the company, and that only 
those holding stock shall constitute members ; and, as between them- 
selves, these stipulations will be obligatory. But, as to third per- 
sons, the parties may be treated as partners, and held to the general 
liability of a common partner. Williams v. The Bank of Michigan, 

7 Wend. 542 ; Viyers v. Sainet, 13 La. 300 ; BoIUjis v. Butler, 24 
111. 387 ; Tennyx. The N. E. Prot. Tin., 37 Vt. 64 ; Pipe v. Bateman, 
1 Clarke (Iowa), 369 ; Tappan v. Bailey, 4 Mete. 535 ; Tyrrell v. 

Washhurn, 6 Allen, 4:m ; ButUrJield v. Beardsley, 28 Mich. 412; 



118 PAETNEKSHIP. 

National Bank v. Lasher, 1 N. Y. Sup. Ct. (T. & C.) 315 ; Pettis 
V. Atlcins, 60 111. 454 ; Ex jparte Orisenwood, 4 DeG. & J. 544. 

The rights and privileges of a stockliolder in such a company would 
depend upon the provisions of the original articles of agreement, the 
by-laws, and such changes or modifications of them as might be made. 
If by these an assignee of shares would become a member, he would, 
at least as to third parties, be a partner, and ordinarily subject to the 
same liabilities and entitled to the same rights as the assignor. Stimson 
V. Lewis, 36 Yt. 91 ; Henry v. Jackson, 37 Yt. 431 ; Alvord v. Smithy 
5 Pick. 232. In such a case there would be no delectus personce, and 
such partnership would not be dissolved by a change of membership 
or the death of a stockholder. In this respect it would differ from an 
ordinary commercial partnership. Id. See, also. Fox v. Clifton, 9 
Bing. 115. But if a particular mode is prescribed for the transfer of 
shares, that mode must be strictly observed, to entitle the holder to the 
rights of a partner. Ness v. Angas, 3 Ex. Ch. 805 ; Kingman v. 
Spurr, 7 Pick. 235 ; Cochran v. Perry, 8 W. & S. 262. See, also, 
Bargate v. Shortridge, 5 H. L. Cas. 297. But these requirements may 
be waived. Ex parte Wood, DeGrex, Mac. & G. 272 ; 17 E. L. & Eq. 
236. And the general principles of the law as to common commercial 
partnership, in respect to the delectus pyersonm, have been held not to 
be applicable to mining partnerships in California. Taylor v. Castle, 
42 Cal. 367. 



AETICLE II. 

RIGHTS, POWEKS, DUTIES, AJ^D LIABILITIES TO EACH OTHER. 

Section 1. In general. The interest of each partner in the part- 
nership property, and profits, in the absence of any thing showing the 
contrary, is presumed to be equal. Farr v. Johnson, 25 111. 522 ; Moore 
V. Ba/re, 11 Iowa, 198 ; Stein v. Robertson, 30 Ala. 286 ; Poach v. 
Perry, 16 111. 37 ; Wolfe v. Gilmer, 7 La. Ann. 583 ; Griggs v. Clark, 
23 Cal. 427. 

And this consists of the residuum, after all the debts and liabilities of 
the firm are paid. Douglas v. Winslow, 20 Me. 89 ; Perry v. Ilolloway, 
6 La. Ann. 265 ; Schalck v. Harmon, 6 Minn. 265. And where a 
member of a firm allows his private property to be mingled with that 
of the firm, and sold with it, the purchaser would acquire a title to it, 
and only be liable to pay the price agreed to be paid to the firm. White 
Mount. Bh. V. West, 46 Me. '15. But it is competent for the partners 
to stipulate in reference to the rights of each in the stock in trade, or 



PAKTNEKSHIP. 119 

partnership property, as well as the profits, and whatever their agree- 
ment may be in this respect, it will be enforced as between the partners. 
But if there is no express agreement, the presumption would arise 
that they were equally interested in the property as well as the profits, 
unless the contrary should appear from the acts and conduct of the 
parties, Farr v. Johnson, 25 111. 522 ; Gould v. Gould, 6 Wend. 263 ; 
Stein V. Robertson, 30 Ala. 286. 

So one of the partners cannot use the partnership property or funds 
to operate for his own private benefit, or purchase with them property 
in his own name, but he would be required to account to the firm not 
only for the funds and property, but also for the profits. Evans v. 
Gihs(m, 29 Mo. 223 ; Smith v. Ramsey, 6 111. 373 ; Coder v. Huling, 
27 Penn. St. 84. See, also, Lowry v. Cohh, 9 La. Ann. 592 ; Anderson 
V. Lemon, 4 Sandf. 552 ; Wheatley v. Calhoun, 12 Leigh (Ya.), 264. 
See Fairchild v. Fairchild, 64 N. Y. (19 Sick.) 471 ; Rammelsberg v. 
Mitchell, 29 Ohio St. 22 ; Trajyhagen v. Burt, 67 N. Y. (22 Sick.) 30. 

§ 2. Interest in the stock in trade. Partners are considered as 
joint-tenants of the stock in trade, without the right of survivorship, 
which at common law gave the whole interest to the survivor. 3 Kent's 
Com. 36. But no partner has any exclusive right to the partnership 
property until all the partnership debts are paid, and the amount of 
his interest is ascertained. Van Scoter v. Lefferts, 11 Barb. 140 ; Pierce 
V. Jackson, 6 Mass. 243 ; Pierce v. Tiernan, 10 Gill & J. 253 ; Mur- 
ray V. Murray, 5 Johns. Ch. 70 ; Conwell v. Sandidge, 8 Dana, 278. 
And no partner has exclusive right to any part of the partnership stock 
in trade so as to enable him to separate it from the common stock and 
sell it on his own account and as his own property. Rogers v. Batch- 
elor, 12 Pet. 221. But he may transfer his interest in the firm, the 
transferee, of course, taking the same subject to the rights of creditors 
and the liens of the copartners. Kingman v. Spurr, 7 Pick. 235 ; 
Marquand v. N. Y. Mcmitf. Co., 17 Johns. 525 ; Horton's Appeal, 
13 Penn. St. 67 ; Armstrong v. Fahnestock, 19 Md. 59 ; Menagh v. 
Whitwell, 52 N. Y. (7 Sick.) 146 ; 11 Am. Eep. 683 ; Morss v. Gleason, 
64 N. Y. (19 Sick.) 204. 

And it may be affirmed, in the absence of any evidence on the sub- 
ject, that the interest of each partner in the stock in trade is pre- 
sumed to be equal. Moore v. Bare, 11 Iowa, 198. But the propor- 
tions of interest in this may in fact vary, and the partners would have 
a right, on general principles, to agree upon these proportions. 

§ 3. Stock in hand or real estate. Eeal estate, if purchased with 
partnership funds, for partnership use, is partnership property, and is 
treated in most respects as personal property. Houghton v. Houghton, 



120 PARTNERSHIP. 

11 Sim. 491 ; Broom v. Broom, 3 Mjl. & K. 413 ; Morris v. Barrett, 3 
You. & J. 384 ; Smith v. Smith, 5 Yes. 189 ; Patterson v. Blake, 12 Ind. 
436 ; Langs v. Waring, 25 Ala. 625 ; Davis v. Christia7i, 15 Gratt. 11 ; 
Fall River Whaling Co. v. Borden, 10 Ciisli. 458 ; Savage v. Carter, 
9 Dana, 408 ; BucMey v. Buckley, 11 Barb. 45 ; Kendall v. Rider, 35 
id. 100 ; TF^7^^■s v. Freeman, 35 Yt. 44 ; Fowler v. Bailley, 14 Wis. 
125; North Penn.' Coal Co.^s Ajypeal, 45 Penn. St. 181 ; Dupuy v. 
Leavenworth, 17 Cal. 262 ; Buffum v. Bufum, 49 Me. 108 ; J!fom?i 
V. Palmer, 13 Mich. 367 ; ^/«c^ v. ^Zac^, 15 Ga. 445 ; Little v. 
Snedecor, 52 Ala. 167. 

If real estate is in fact partnership property, it matters not that the 
legal title is in one or all of the partners, or in a third person ; equity 
will regard it as held in trust for the partnership, and the trust can be 
enforced by the interested parties, whether partners or creditors. Ow- 
ens V, Collins, 23 Ala. 837 ; Dyer v. Clark, 5 Mete. 562 ; Thompson 
V. Bowman, 6 Wall. 316 ; Fair child v. Fairchild, 64 N. Y. (19 Sick.) 
471. And the fact that it is personal property may be established by 
parol proof. York v. Clemens, 41 Iowa, 95 ; She7'wood v. St. P. 
R. Co., 21 Minn. 127. But it does not necessarily follow that real 
estate purchased with partnership funds, and in the name of either or 
of all the partners, or a third person, is partnership property. This 
would depend, as between them at least, upon their intention to be de- 
rived from their agreement or acts. Hoxie v. Carr, 1 Sum. (C. C.) 
183 ; Hunt v. Benson, 2 Humph. 459 ; Fall River Whaling Co. v. 
Borden, 10 Gush. 462 ; Smith v. Smith, 5 Yes. 189 ; Oioens v. Collins, 
23 Ala. 837 ; Brownlee v. Alleii, 21 Mo. 123 ; Evans v. Gibson, 29 id. 
223 ; Ridgway''s Appeal, 15 Penn. St. 177 ; McDermot v. Laurence, 
7 S. & R. 438. The English doctrine goes even further than the 
American in holding that real estate, purchased with partnership funds 
and for partnership purposes, is partnership capital ; that such real 
estate has for every purpose the quality of personal estate ; and that the 
surplus, after a settlement of the partnership affairs, goes to the personal 
representative of a deceased partner, instead of his heirs. Essex v. Es- 
sex, 20 Beav. 442 ; Darby v. Darby, 3 Drew. 495 ; Bell v. Phyn, 7 
Yes. 453. 

The tendency of American decisions seems to be in this direction. 
Some of the cases go as far as the English, in treating it as personal 
property {Pierce v. Tr^igg, 10 Leigh [Ya.], 406 ; Ludlow v. Cooper, 4 
Ohio St. 1 ; Fairchild v. Fairchild, 64 N. Y. [19 Sick.] 471 ; Gal- 
hraithv. Gedge, 16 B. Monr. [Ky.] 631; Dewey y. Dewey, 35 Yt. 
555 ; White v. Fitzgerald, 19 Wis. 480 ; Thorn v. Thorn, 11 Iowa, 
146) ; where it was held that the statute of frauds did not apply to 



PARTNERSHIP. 121 

lands held in partnership. See, also, Solomon v. Fitzgerald, 7 Heisk. 
(Tenn.) 552, where it was held that a surviving partner might convey 
the real estate of the firm whether this was necessary to pay the debts of 
the firm or not. See Chester v. Dickerson, 54 N. Y. (9 Sick.) 1 ; 13 Am. 
Rep. 550. Still, the preponderance of American authority is to the effect 
that such property will only be regarded as personal so far as the partner- 
ship is concerned ; that if in the adjustment of the partnership business, 
it becomes necessary to use the real estate held by it, it will, for this 
purpose, be regarded as personal ; that if one partner dies, his heirs can 
claim such surplus of the real estate as may remain after an adjust- 
ment of all the partnership affairs, or, in other words, they would re- 
ceive the surplus the same as the deceased partner would have received 
it had he survived and a dissolution had occurred. But they hold that 
this sm'plus portion of the real estate which, in fact, is personal prop- 
erty, has the qualities and incidents of real estate and would belong to 
the heirs subject to the right of dower. Shearer v. Shearer, 98 Mass. 
107 ; nice v. Barnard, 20 Yt. 479 ; Buckley v. Buckley, 11 Barb. 
43; Holland v. Fuller, 13 Ind. 195 ; Lang v. Waring, 25 Ala. 625 ; 
Collins V. Warren, 29 Mo. 236 ; Scruggs v. Blair, 44 Miss. 406. See 
Fairchild v. Fairchild, 64 N. T. (19 Sick.) 471 ; Collumh v. Bead, 

24 N. Y. (10 Smith) 505 ; Little v. Snedecor, 52 Ala. 167; Hewitt v. 
Rankin, 41 Iowa, 35 ; Drewry v. Montgomery, 28 Ark. 256. 

Under this doctrine some practical difficulties frequently arise in 
reference to rights of dower in the funds thus regarded as real estate. 

In England the claim of dower could not be sustained, but in this 
country it is subject to dower. Id. And it has been held that the widow 
and heirs should be made parties to any suit for a sale of the property to 
pay the debts of the firm, or it would still be subject to then- rights in 
the hands of the purchaser. Collins v. Warren, 29 Mo. 236 ; Lang v. 
Waring, 25 Ala. 625. See, also. Murphy v. Ahrams, 50 id. 293 ; 
McCauley v. Fulton, 44 Cal. 355. Some of the American cases go so 
far as to hold that the interest of a partner in the real estate of the 
partnership vests, on his decease, in his heirs, subject only to the 
right of dower, and to a trust in favor of the partnership for the 
adjustment of the partnership affairs after the other property of 
the partnership has been exhausted. Dudley v. LitlUJleld, 21 Me. 
418; Dilworth v. Mayfield, 36 Miss. 40; Darhy v. Darhy, 3 
Drewry, 495 ; Coster v. Clarke, 3 Ed. Ch. 405 ; Andrews v. Brown, 
21 Ala. 437 ; Davis v. Christian, 15 Gratt. 11 ; Laiig v. Waring, 

25 Ala. 625 ; Dyer v. Clark, 5 Mete. 562. See, also, Bopp "^'• 
Fox, 63 111. 540 ; Russell v. Miller, 26 Mich. 1. It has also been 
held that although one partner can convey the real estate of the part- 

VoL. v.— 15 



122 PAETNEKSHIP. 

nership if the legal title is vested in him, the purchaser would take it 
subject to the equitable rights of the other partners if he had knowl- 
edge or reasonable means of knowledge of the trust. Buchan v. 
Sumner, 2 Barb. Ch. 175 ; Forde v. Herron, 4 Munf. (Ya.) 316 ; 
McDermot v. Laurence, 7 S. & K. 438 ; Dyer v. Clark, 5 Mete. 562 ; 
Kramer v. Arthurs, 1 Penn. St. 165 ; Bidgway^s Appeal, 15 id. 177. 
But see Moderwell v. Mullison, 21 id. 257. A conveyance by one 
partner having legal title to an undivided half of real estate, the whole 
of which in equity is partnership property, to a creditor of the firm in 
payment of a partnership debt, vests good title to such undivided half 
in his grantee, notwithstanding it is executed without the knowledge 
or consent of the other partner and that the firm is insolvent, and its 
effect is to give a preference to the grantee. Yan Brunt v. Applegate, 
44 N. Y. (5 Hand) 544. 

But one partner cannot convey the whole title to real estate unless 
the whole title is vested in him ; he may, however, enter into an execu- 
tory contract to convey, which a court of equity will enforce. Chester 
V. Dickerson, 54 IST. Y. (9 Sick.) 1 ; 13 Am. Eep. 550. So, although 
he may sell his own interest in real estate, it would still be subject to 
the equitable rights of the creditors, Treadwell v. Williams, 9 Bosw. 
649. And a sale by order of court, of the interest of a deceased part- 
ner, to pay his debts, would convey only his interest subject to the 
rights of the surviving partners and the creditors of the firm, even 
though the legal title stood in the name of the deceased partner. 
McCormickh Appeal, 57 Penn. St. 54. 

§ 4. Ship owners. Part owners of ships are not by reason thereof 
partners, but tenants in common, although they frequently become 
partners in the voyage or adventure, in which the ship is used, and in 
its earnings. Merritt v. Walsh, 32 N. Y. (5 Tiff.) 685 ; Taggard v. 
Loring, 16 Mass. 339 ; Hinton v. Lam, 10 Mo. 701. But ships may 
also be owned by partners, as a part of their capital and stock in trade. 
Mumford v. Nicoll^ 20 Johns. 611 ; Gai'dner v. Cleveland, 9 Pick. 
334 ; Patterson v. Chalmers, 7 B. Monr. 595 ; Ilelme v. Smith, 7 
Bing. 709 ; Green v. Briggs, 6 Hare, 395. Whether a ship is held as 
partnership property or not, must depend upon the circumstances of 
the case, or the intention of the parties. If it is held as partnership 
property, there could be no claim by one partner against another for 
money advanced for repairs which could be enforced by a suit, although 
the former would be entitled to a credit for the same in the partnership 
accounts. But if a part owner makes repairs of a ship or incurs ex- 
penses in the sailing of her, witli the consent, express or iihpliied, of 
his co-tenants they become immediately obligated to contribute their 



PARTNERSHIP. 123 

share of these expenses, and a suit could be maintained therefor. Sawyer 
V. Freeman, 35 Me. 542 ; Gowan v. Forster, 3 B. & Ad. 507; Brodie v. 
Howard, 17 C. B. 109 ; 33 Eng. L. k Eq. 146 ; King v. Lowry, 20 Barb. 
532. 

Another important distinction may be noticed between the rights 
and powers of a part owner and a partner. A part owner can only 
dispose of his share or interest in the ship, whereas a partner may sell 
the whole Larrib v. Durant, 12 Mass. 54 ; Weld v. Oliver, 21 Pick. 
559; White Y. Osborn, 21 Wend. 72; Patch v. Wheatland, 8 Allen, 
102. But the powers of partners in this respect might be affected by 
the registry of ownership. Slater v. Willis, 1 Beav. 361 ; Curtis v. 
Perry, 6 Ves. 739. 

Again, a part owner can only insure his part or interest in the 
ship. Peoria M. (& F. Ins. Co. v. Hall, 12 Mich. 202 ; Eouth v. Tliomp- 
son, 13 East, 274 ; Hooper v. Lusby, 4 Camp. ^^. But a partner would 
evidently have authority to insure the whole ship in the name of the 
firm, and to manage and dispose of the same as other partnership 
property, subject to the laws of the country regulating the transfer of 
such property and the general qualification that his acts shall come within 
the scope of the partnership business, and be free from fraud. 

If there be a partnership in fact of a ship, or if it be partnership 
stock in trade, then it is evident that the partners would possess all 
the ordinar}' powers in reference to the ship as to other partnership 
chattels, and the partnership would be subject to all those obligations 
growing out of the use of the vessel, such as repaii's, liens, etc., that 
would exist if the vessel was owned by one person or by several as 
tenants in common. King v. Lowry, 20 Barb. 532. 

§ 5. Construction of contracts between. In construing any con- 
tract the object should be to get at the intention of the parties. Con- 
tracts of copartnership are no exception to this rule, and the general 
rules of construction of contracts are as applicable to them as to other 
contracts. Jackson v. Crapp, 32 Ind. 422 ; Bird v. Hamilton, Walk. 
Ch. (Mich.) 361. 

Where there was a provision in the contract, among other things, 
that each partner should pay his own individual expenses, tins was 
construed to mean such expenses as were incurred while at home, and 
not such as were incurred abroad on the business of the partnership, 
and that as to such expenses an allowance would be proper. Withers 
V. Withers, 8 Pet. 355. So, where there was an agreement to share 
losses equally, but the amounts advanced by the partners were unequal, 
and there was an entire loss of the capital, it was held that the loss 
mnst be borne equally. Taylor v. Coffing, IS 111. 422. 



124 PAKTNERSHIP. 

So, where by articles of agreement, it was the duty of the president 
and directors to appoint a general agent to transact the business of the 
firm, under their direction, it was held that they might transact the 
business of the firm without the appointment of the agent. Skinner v. 
Dayton, 19 Johns. 513. And where the articles provided that the 
capital and profits should remain in the firm, and that each party could 
draw out only so much as was necessary for his private expenses, it 
was held that plate, furnitm*e, and carriages did not come within the 
provision for which drafts were authorized to be made, but that the 
expenses of living for the family and education of children did. 
Stoughton v. Lynch, 1 Johns. Cli. 467. And where the language of 
the agreement of copartnership is uncertain or doubtful, it has been 
held admissible to show the subsequent conduct of the parties under it 
as evidence of the intention of the parties. Beacham v. EcJcford, 2 
Sandf. (N. Y.) Ch. 116. See, also. Fuller v. MilUr, 105 Mass. 105. 
Where it was stipulated in copartnership articles, that after each part- 
ner had furnished the sum agreed upon, any further sum required in 
the business should be raised by joint efforts, and on the partners' joint 
credit, and that, on the failure of either party to fulfill his agreement, 
the other party had his option to forfeit his interest in the concern on 
the payment of the sum advanced by him, it was held that the fact 
that the joint responsibility of the members of the firm was insufficient 
to raise the requisite funds gave one partner no right to declare the 
share and interest of the other forfeited. Patterson v. Silliman, 28 
Penn. St. 304. And where a partnership is continued after the ex- 
piration of the time provided for in the articles of agreement, it will be 
considered as continuing laider the terms and provisions of the original 
agreement. Bradley v. Chamherlin, 16 Yt. 613; Mifflin Y.Smith, 17 
S. & E.. 165. And if the agreement makes no provision in reference 
to the profits and losses, the presumption is that they are to share them 
equally. Griggs v. Clarlc, 23 Cal. 427 ; Farr v. Johnson, 25 111. 522 ; 
Moore v. Bare, 11 Iowa, 198 ; 8tein v. Robertson, 30 Ala. 286. 

The provisions in the original articles of agreement may be modified 
or waived by the parties. It may be inferred from the acts of the 
partners and their mode of doing business, that certain provisions of 
the partnership agreement have been waived or modified and even 
abandoned, and practically expunged by the unanimous consent of the 
partners. C(ynst v. Harris, Turner & R. 528 ; Jackson v. Sedgwick, 
1 Swanst. 460 ; McGraw v. Pulling, Freeni. (Miss.) Ch. 357 ; Fnglam,d 
V. Curling, 8 Bcav. 129 ; Boyd v. Mynatt, 4 Ala. 79. 

§ 6. Dealing on separate account. We liave already observed, in 
considering general principles relating to partnerships, that one partner 



PAKTNEKSHIP. 125 

cannot without the consent of the others embark in a business that 
would manifestly conflict with the interests of the firm. And he can- 
not clandestinely use the partnership property or funds, in speculations 
for his own private advantage without being required to account to his 
copartners for the property and funds thus used, and for the profits 
made. Coursin's Appeal^ 79 Penn. St. 220. See art. 1, § 2. "We may 
further observe that a court of equity would enjoin a partner from car- 
rying on a business for his sole benefit, of the same character and at 
the same place, of one carried on by a firm of which he is a member, 
even though there be no express stipulation in the articles of copart- 
nership restraining him from so doing. Marshall v. Johnson, 33 Ga, 
500. The general rule is that each partner shall devote his time, labor 
and skill for the benefit of the firm, and not for his own private benefit, 
and he cannot purchase for his own use and for the purposes of private 
speculation and profit articles in which the firm deals, and if he does 
so, the profits arising therefrom may be claimed by the firm as belong- 
ing to them. American BanTc Note Co. v. Edson, 56 Barb. S'J: ; 1 
Lans. (N. y.) 388. See, also. Love v. Carpenter, 30 Ind. 284 ; Laffan 
V. Naglee^ 9 Cal. 662 ; Hillman v. Reis, 1 Cinn. (0.) 30 ; BenUey v. 
Craven, 18 Beav. 75 ; Law v. Cross, 1 Black (U. S.), 533 ; Caldwell 
V. Leiber, 7 Paige, 483 ; Soules v. Burton, 36 Yt. 652. If property 
is purchased by a partner with partnership funds, he will be regarded 
as a trustee of the firm in regard to such property. Evans v. Gibson, 
29 Mo. 223 ; Smith v. Ramsay, 6 111. 373 ; Coder v. Ruling, '2,7 Penn. 
St. 84 ; Anderson v. Lemon, 4 Sandf . (N. Y.) 552 ; Moreau v. Saf- 
farans, 3 Sneed (Tenn.), 595; WJieatley v. Calhoun, 12 Leigh (Ya.), 
264 ; Basfs Appeal, 70 Penn. St. 301 ; Fairchild v. Fairchild, 64 
N. y. (19 Sick.) 471 ; Whitney v. Cotton, 53 Miss. 689 ; LittleY. Sned- 
ecor, 52 Ala. 167 ; Hewitt v. Ramlcin, 41 Iowa, 35 ; Drewry v. Mont- 
gomery, 28 Ark. 256. Where during the continuance of an unlimited 
partnership some of the partners obtained a lease of the premises occu- 
pied by the firm, in their own name, without the knowledge of one of 
the partners, it was held that the lease became the partnership property, 
and that upon the dissolution of the firm the latter became entitled to 
his proportion of its value. Struthers v. Pearce, 51 N. Y. (6 Sick.) 
357. See, also, Mitchell v. Reed, 61 N. Y. (16 Sick.) 123 ; S. C, 19 
Am. Rep. 252 ; FeatJierstonhaugh v. Fenwich^ 17 Yes. 310. 



126 PAETNEKSHIP. 

AETICLE III. 



WHAT ACTS BESTD THE FIRM. 



Section 1. In general. It may be afl&rmed as a general principle 
that each partner may bind the firm by any act, or contract, that comes 
within the general scope of the business of the firm. He is the general 
agent of the partnership in all matters pertaining to the business, and 
as agent he may bind the other partners as fully as though he held a 
power of attorney from them for that purpose. Kenney v. Altvater, 
77 Penn. St. 34 ; Blodgett v. Weed, 119 Mass. 215 ; Pahlman v. Tay- 
l/yr, 75 111. 629 ; Decker v. Howell, 42 Cal. 636 ; First Nat. Bank v. 
Carpenter, 41 Iowa, 518 ; Oox v. Hickmam^, 8 H. L. Cas. 268 ; Gamp- 
lell V. Dent, 54 Mo. 325 ; Eastman v. Clark, 53 N. H. 276 ; S. C, 16 
Am. Eep. 192; Daniis v. Richardson, 45 Miss. 499 ; 7 Am. Kep. 732. 

This genpral authority, as we have seen, may be limited by the arti- 
cles of agreement. But as to third parties, who have no notice of such 
hmitation, the law would presume such authority, and the partnership 
would be estopped from denying it. Sterling v. Jandon, 48 Barb. 459 ; 
Mechanics' Bank v. Foster, 44 id. 87 ; Hayward v. French, 12 Grray, 
453 ; Davis v. Richardson, 45 Miss. 499 ; 7 Am. Rep. 732. But a part- 
ner has no authority to bind his firm by an instrument undpr seal, even 
where the seal is not essential to the validity of the instrument. Schmerts 
V. Shreeve, 62 Penn. St. 457 ; S. C, 1 Am. Rep. 439. 

§ 2. Simple contracts. The general principles relating to the 
agency of partners would of course give any partner a general author- 
ity to execute, in the name of the firm, any simple contract relating to 
its busiuess. This authority is a legal presumption from the relation, 
in favor of third persons who deal wilth the firm, withoi^t knowledge of 
limitations in this respect, imposed upon the partner, acting in his behalf, 
by the provisions of an agreement between the partners. Campbell v. 
Bowen, 49 Cla. 417 ; Leffler v. ^ic^, 44 Ind. 103 ; Dupre v. Boyd, 
23 La. Ann. 495 ; Bodwell v. Eastman, 106 Mass. 525. And the 
firm would be bound by the act of pup of its members, withip the 
scope of such general authority, even though such ^pt was in yiolatiqn 
of the private agreement of the partners, and fraudulent as to them. 
CapelU v. Hall, 12 Bi^nkr. Reg. Spe, alsp, Davis v. I^ichqr(^spn, 4:6 
Miss. 499 ; 7 Am. Rep. 732. But if the party dealing with a partner has 
knowledge of any restrictions of the general powers of the partner, as 
between him and his copartners, he would be bound by them, and he could 
not insist upon his acts under the general powers of a partner, in violation 
of such restrictions. Yeager v. Wallace, 57 Penn. St. 365 ; Batty v. 



PARTNERSHIP. 127 

McCundie^ 3 C. & P. 202 ; Boardman v. Gore, 15 Mass. 339 ; Ca/r- 
gill V. Corhy, 15 Mo. 425 ; Johnston v. Dutton, 27 Ala. 245 ; Dow v. 
Saywa/'d, 12 Is". H. 271 ; Langa/r, v. Hewett, 13 S. & M. 122 ; Leavitt 
V. Pech, 3 Conn. 125 ; Dickinson v. 7a?j?y, 10 B. & C. 128. See 
Alexander v. State, 56 Ga. 478. 

If the transaction is of such a character that the party dealing with a 
partner must know that the matter is not within the scope of the busi- 
ness of the firm, the partnership would not ordinarily be hable. Holmes 
V. Burton, 9 Yt. 252 ; Livingston v. Roosevelt, 4 Johns. 278 ; Dow v. 
Layward, 12 ]^. II. 275 ; Maliby v. N. W. & R. Co., 16 Md. 422; 
Merchant v. Belding, 49 How. (I^. T.) Pr. 344. 

In order to bind the firm, it is ordinarily necessary to use the firm 
name, and if a partner in his contracts with others uses his own name, 
and the contract purports to bind him only, the firm would not be 
liable thereon. Clark v. Houghton, 12 Gray, 38. 

§ 3. By chattel mortgage. The general authority of a partner to 
sell and dispose of the property of the firm, or to give it or any por- 
tion of it in satisfaction of the claims of its creditors, would carry with 
it the authority to pledge or mortgage the same for the purpose of 
raising money for partnership purposes, or to secure the claims of cred- 
itors. Tajyley v. Butterjield, 1 Mete. (Mass.) 515 ; Willett v. Stringer, 
17 Abb. (N. Y.) Pr. 152; Patch v. Wheatland, 8 Allen, 102. See, 
also, McClelland v. Remsen, 3 Abb. (N. Y.) App. Dec. 74; Morrison 
V. Mendenhall, 18 Minn. 232. And a mortgage for this purpose may 
be executed in the firm name under seal. Id. And a bond executed 
by a partner in the firm name may become obligatory on the other 
partners, upon the principle of estoppel or ratification, notwithstand- 
ing that an objection might have been taken upon the ground that one 
partner cannot bind his firm by a sealed iusfrument. Mann v. jEtna 
Ins. Co., 40 Wis. 549. 

But one partner cannot sell or mortgage his individual interest in a 
specific part of the property belonging to the partnership. Lovejoy v. 
Bowers, 11 X. H. 404. And if a partner mortgages real estate held by 
the partners as partnership property, to secure his individual debt, the 
mortgagee only acquires a lien upon it for the interest of the mortgagor, 
after a settlement of the partnership accounts and the payment of aU 
the partnership debts. Conant v. Frary, 49 Ind. 530. 

§ 4. By purchase of goods. It is within the scope of the business 
of a trading or commercial partnership to purchase goods, especially 
such as may be the object of their speculations, or within the purposes of 
their operations. Of course any contract made by one partner therefor 
in the name of the partnership would be obhgatory upon the other mem- 



128 PAKTNERSHIR 

bers. And they -vrould be liable for goods furnished for the use of the 
firm, even though the vendor was ignorant of its existence, and sup- 
posed at the time of the sale that he was dealing with, and giving credit 
solely to one of the partners. Reynolds v. Cleveland, 4 Cow. 282 ; 
Griffith V. Buffum, 22 Yt. 181 ; Roth v. Moore, 19 La. Ann. 86 ; TucTcer 
V. Peaslee, 36 N. H. 167 ; Braches v. Anderson, 14 Mo. 441 ; Poole \. 
Lewis, 75 N. C. 417. And where, after the dissolution of a firm en- 
gaged in buying and selling merchandise, one of the former partners 
purchased goods of a person with which the firm had been in the habit 
of dealing, and who had no knowledge of the dissolution, it was held 
that a note executed by such partner in the name of the firm was bind- 
ing upon the former members. Dickinson v. Dickinson, 25 Gratt. 
(Ya.) 321. 

And although a partner, in violation of the articles of copartnership, 
makes a purchase of goods, if they are subsequently used by the part- 
nership, the firm will be liable. Johnson v. Bernheim, 76 N. C. 139. 

And if a person without authority purchase goods for persons about 
to enter into copartnership in their name and on their credit as part- 
ners, and they receive the goods and dispose of them for their own 
purposes, with full knowledge of the facts, they will be liable to the 
vendor as partners, whether they are partners in fact or otherwise. 
Pike V. Douglass, 28 Ark. 59. 

§ 5. By making bills or notes. A bill or note, executed by a 
partner on behalf of the firm in relation to, or growing out of its busi- 
ness, or the acceptance of a bill under like circumstances for the benefit of 
the firm,would be within the scope of the ordinary powers of a partner. 
Winship V. Bank of TJ. S., 5 Pet. 529 ; Walden v. Sherhurne, 15 
Johns. 409 ; Whitaker v. Brovm, 16 Wend. 505 ; Foster v. Andrews, 
2 Penr. & "W. 160 ; LeRoy v. Johnson, 2 Pet. ] 86 ; Livingston v. 
Roosevelt, 4 Johns. 251. 

lie would have no general authority to sign the name of the firm 
to notes or bills growing out of matters not relating to, or within the 
scope of the partnersliip business. Zuel v. Bowen, 78 111. 234 ; Blod- 
gett V. Weed, 119 Mass. 215 ; National Un. Bk. v. Landon, (jQ Barb. 
189 ; Gra/oes v. Kellenherger, 51 Ind. 66. But a draft drawn, accepted 
or iiidorsed by a partner in the name of the firm even in relation to 
matters not connected with its business, and without the authority or 
subsequent assent of tlie other partners, would, in the hands of a hona 
fide holder for value, be binding on the firm, and this even if executed 
for the own private debt of the partner. Munroe v. Cooper, 5 Pick. 
412; Mechanics' Bk. v. Foster, 19 Abb. (N. Y.) Pr. 47; 29 How. Pr. 
408 ; Haldeman v. Bfmk, 28 Penn. St. 440 ; Collier v. Croas^ 20 Ga. 



PARTNEESHIP. 129 

1 ; Wintle v. Crcnother, 1 C. & J. 316 ; 1 Tyrw. 210 ; Vere v. Ashhy, 
10 B. & C. 288 ; Boa/rdmcm v. Gcrre^ 15 Mass. 331 ; Richv. Davis, 
4 Cal. 22 ; Emerson v. Harmon, 14 Me. 271 ; Bahcock v. Stone, 3 
McLean, 172 ; Freeman v. i^o*.-?, 15 Ga. 252 ; State Bk. v. Thompson, 
42 N. H. 369 ; St. Allans v. Gilliland, 2P. Wend. 311. See Wagner 
V. Freschl, 56 N. H. 495. Nor would subsequent knowledge affect 
the rights of the honafide holder for value. Swam. v. Steele, 7 East, 
210 ; Arde7i v. Sharpe, 2 Esp. 524 ; Pdch v. Davis, 4 Cal. 22 ; Emer- 
Hon T. Harmon, 14 Me. 271 ; Freemam, v. ^055, 15 Ga. 252. 

But a partner may be restrained by injunction from using the paper 
of the firm for his own private purposes. Stockdale v. TJllery, 37 
Penn. St. 486. 

The presumption of law is that all commercial paper which bears 
the signature of the firm, executed by one of the partners, is the paper 
of the partnership, and that the transfer of such paper was lawful. 
Man. & Mech. Bk. v. Winship, 5 Pick. 11 ; Powell v. Messer, 18 Tex. 
401 ; Hickman v. Eunkle, 27 Mo. 401 ; Enapp v. McBride, 7 Ala. 
19 ; Millers. Hines, 15 Ga, 197 ; Ihmseiw. Negley, 25 Penn. St. 297 ; 
Pierce v. Jackson, 21 Cal. 636 ; JIhler v. Browning, 4 Dutch. (X. J.) 
79 ; Hurd v. Haggerty, 24 Bl. 171 ; Littell v. Fitch, 11 Mich. 525. 
The burden of proof would be on the firm to show the want of au- 
thority of the partner, and it would then devolve on the plaintiff to 
show that he was a honafide holder for value. Carrier v. Cameron, 
31 Mich. 373; 18 Am. Eep. 192; FaUr v. Jordon, 44 Miss. 283 ; Syl- 
ver stein v. Atkinson, 45 id. 81. But an indorsee who receives a bill 
or note in the usual course of business is considered a holder for value. 
Bank of N. Y. v. Vanderhorst, 32 iST. Y. 553. See, also, Morehead 
V. Gilmore, 77 Penn. St. 118 ; 18 Am. Kep. 435. 

Where one partner, with the assent of the other partners, kept the 
bank account of the firm in his own name, all partnership debts being 
paid by his checks, it was held that the firm was liable upon a check 
thus di'awn relating to the business of the firm. Crocker v. ColweU, 
46 K T. (1 Sick.) 212. 

§ 6. By indorsenieut. The same general principles would be ap- 
plicable to the indorsement of commercial paper, as to the original 
execution of the same. If done in the execution of the legitimate 
business of the fiiin, or by the express authority of its members, it 
would be binding upon all of them ; and any private restriction on 
the general powers of a partner in this respect would not affect a 
holder without any knowledge thereof at the time he received it. 
Morehead v. Gilmore, 77 Penn. St. 118 ; 18 Am. Eep. 435. But, if 
one partner should indorse paper not belonging to the fii-m, but for 
YoL. v.— 17 



130 PARTNERSHIP. 

the purpose of giving its credit for tlie accommodation of another, this 
would ordinarily be no legitimate part of the business of a firm, and 
would not be obligatory upon it in the hands of any party who 
receives it T^ath notice of the facts. Stall v. Catskill Bh., 18 Wend. 
QQ ; Nevj York Ins. Co. v. Bennett., 5 Conn. 574 ; Lang v. Waring 
17 Ala. 145 ; Bank v. Safarrans, 3 Himiph. (Tenn.) 597. 

The fact, however, that the paper is indorsed for the accommodation 
of a third party, is not conclusive evidence of the want of author- 
ity of the partner indorsing it, for it may appear that the act was ex- 
pressly authorized by the other partners, or by usage, from which 
such authority may be implied, and one manifestly for the benefit of 
the firm. Gano v. Samuel, 14 Ohio, 592 ; Gcmsevoort v. Williams, 
14 Wend. 133 ; Darling v. March, 22 Me. 184. 

§ 7. By guaranty. The same general principles would be applica- 
ble in case of guaranty, indemnity or warranty. Rollin. v. Stevens, 31 
Me. 454 ; Foot v, Sdhin, 19 Johns. 154 ; Butler v. Stocking, 4 Seld. (N. 
Y.) 408 ; Sweetser v. French, 2 Cush. 309. But see Moran v. Prather, 
23 Wall. 492. Each partner has authority to bind the firm by a con- 
tract of guaranty, if such contract is within the scope of the partner- 
ship business, and no private understanding between the partners can 
affect the right of the guarantee to recover on the same. Fii^st Nat. 
Bk. V. Carpenter, 41 Iowa, 518. And a subsequent ratification of a 
partner's act, pui-porting to bind the firm as surety, but without au- 
thority, may be shown by circumstances. First Nat. Bk. v. Breese, 
39 id. 640. 

§ 8. By transfer of paper. It is within the scope of the ordinary 
powers of a partner to transfer by assignment or indorsement the 
paper held by the firm, and such assignment or indorsement in the 
name of the firm would carry with it all the rights of the firm therein. 
Sprague v. Zunts, 18 Ala. 382 ; Qui^ier v. MarUehead Ins. Co., 10 
Mass. 47G ; Fromme v. Jo7ies, 13 Iowa, 474 ; Clark v. Rives, 33 Mo. 
579 ; Boswell v. Green, 25 N. J. L. 390 ; McClelland v. Renisen, 36 
Barb. 622; S. C, 14 Abb. (N. Y.) Pr. 331 ; S. C, 23 How. 175. 

But wliere a note belonging to the firm is transferred by one of two 
partners in satisfaction of his private debt, it was held incumbent on 
the party receiving it to show the assent of the other partner thereto, 
ill order to bind him by the transfer. Kemeys v. Richards, 11 Barb. 
312; Mecutchen v. Kennady, 27 N. .7. L. 230. And notes executed 
by tlie vendee of partnership property, for the purchase-money to the 
wife of one of the partners, of an insolvent firm, were held void in 
her liands, as against the creditors of the firm. Van Doren y . Stickle, 
24 N. J. Eq. 331. 



PAKTNERSHIP. 131 

§ 9. By disposing of goods or assets. Althougli a partner may sell 
the whole or any part of the partnership property or assets in the 
regular course of business {Lamh v. Durant, 12 Mass. 51 ; Anderson 
V. Torapkins, 1 Brock. 456 ; Harrison v. Sterry^ 5 Cranch, 289 ; 
Halstead v. Shepard^ 23 Ala. 558 ; Cayton x. Hardy, 27 Mo. 536 ; 
Arnold v. Brown, 24 Pick. 89), still, a partner cannot use the part- 
nership property to pay his own debts without the assent express or 
implied of his copartners. Rogers v. Batchelor, 12 Pet. 221 ; JS'all 
V. McJjityre, 31 Ala. 532 ; Jackson v. HoUoioay, 14 B. Monr. (Ky.) 
108 ; Buck v. Mosley, 24 Miss. 170 ; McKinny v. Brights, 16 Penn. 
St. 399 ; Sauntry v. Dunlap, 12 Wis. 364 ; Stegall v. Coney, 49 Miss. 
761 ; AckUy v. Staehlin, 56 Mo. 558. 

But he may, in the absence of fraud, and against the protest of his 
partner, transfer all the property of the partnership, even in consider- 
ation of the promise of the purchaser to pay all the debts of the firm, 
though not yet done. Graser y . Stelhoagen, 25 N. Y. (11 Smith) 315. 
See, also, Willia^ns t. Barnett, 10 Kan. 455. But such a sale has 
been held suspicious. Williams v. Roberts, 6 Coldw. (Tenn.) 493. 

If a partner should appropriate the property of the firm to the satis- 
faction of his individual debts, this would be a violation of his duty of 
which the vendee would be bound to take notice, and would not be 
binding upon his copartners without their authority or assent. Nor 
would the vendee under such circumstances acquire any right to such 
property as against the other partners. Stegall v. Coney, 49 Miss. 761. 
See, also, Williams v. Barnett, 10 Kan. 455 ; Ackley v. Staehlin, 

56 Mo. 558 ; Caldwell v. Scott, 54 N. H. 414 ; Todd v. Lorah, 75 
Penn. St. 155. But see as to vendee's rights in such a case against an 
attaching creditor of the firm. Stokes v. Stevens, 40 Cal. 391. Nor 
can he sell such property to himself. In such a case, the legal title 
would remain as before the attempted transfer. Comstock v. B uchanan, 

57 Barb. 127. But if he should exchange partnership property for 
other property and sell the latter, a hona fide purchaser without notice 
would acquire a good title. Chipley v. Keaton, 65 N. C. 534. 

§ 10. By admitting debts or liabilities. The general authority of 
each partner to act as agent in all matters relating to the business of 
the partnership would authorize him to admit the fu-m's obligation to 
pay debts and liabilities, and to bind the firm by promising on its be- 
half to pay the same. French v. Rowe, 15 Iowa, 563 ; Lang v. Fiske, 
11 Me. 385 ; Stockwell v. Dillingham, 50 id. 442 ; Griswold v. Haven, 
25 K Y. (11 Smith) 595. 

Questions of this character most frequently arise in reference to 
claims barred bv the statute of limitations. It is now well settled in 



132 PAETNEKSHIP. 

such cases that the admissions of a partner, and his promise on behalf 
of the firm and dm-ing the continuance of it to pay such claims, are 
bindino- upon the firm. But, as a general rule, the power of a partner 
to bind the firm by his admission ceases with its dissolution, Dowzelot 
V. Bawlings, 58 Mo. 75. He cannot, after dissolution, make a contract 
for the firm, nor by his admissions revive a debt barred by the statute 
of limitations, so as to make his copartners responsible therefor, for 
that would be to make a new contract. Dinsmore v. Dinsmore, 21 
Me. 436; Cody v. SJiephercl, 11 Pick. 400; Wkeelock v. Doolittle, 18 
Vt. 440 ; Exeter Bmik v. Sullivan, 6 ^N". H. 124 ; Bell v. Morrison, 1 
Pet. 351 ; Whitney v. Reese, 11 Minn. 138 ; Lemj\. Cadet, 17 S. &K. 
12G ; YanKeuren v. Parmelee, 2 Comst. 523. ISTor can he by his 
admissions against, or promises in behalf of the firm, make his co- 
partners responsible on any new contract or obligation. Crumlees v. 
Stu7'fjess, 6 Heisk. (Tenn.) 190 ; SJioemaker v. Benedict, 11 N. Y. 
(1 Kern.) 176 ; Beppert v. Colvin, 48 Penn. St. 248. 

In an early English case, it was held that an admission contained 
in a letter written by one member of a firm after its dissolution re- 
moved the bar of the statute of limitations. Wood v. Braddich, 1 
Tannt. 104. This case has often been cited, and seems never to have 
been questioned by the English courts, and has been relied upon as an 
authority in a number of English and American cases. Pritchard v. 
Draper, 1 Euss. & M. 191 ; Cady v. Shepherd, 11 Pick. 400 ; Yinal 
V. Burrill, 16 id. 401 ; Sigourney v. Drury, 14 id. 387. The same 
rule has been recognized in Connecticut, Maine, Vermont and Kew 
Jersey. Bound v. Lathrop, 4 Conn. 336 ; Shepley v. Waterhouse, 22 
Me. 497 ; Wheeloch v. Doolittle, 18 Vt. 440. And in North Carohna 
and Georgia it was explicitly held that the acknowledgment of 
the debt by one partner, though after the dissolution of the part- 
nership, wiU prevent the operation of the statute. Mclntire v. Oliver, 
2 Hawks, 209; Breimter v. Hardman, Dudley, 138. Until quite 
recently tliis was also the settled law of New York. S?nithv. Ludlow, 

6 Johns. 267; Johnson yr . Bear dslee, 15 Johns. 3 ; Pattersons. Choate, 

7 AYcnd. 441. In a late case in New Jersey, it was held that the pay- 
ment of interest on a note drawn by a firm, by one of its members 
after the dissolution of the firm, but within six years after the maturity 
of the note, will renew it as against the statute of limitations. Merritt 
V. Day, 9 Vroom, 32 ; S. C, 20 Am. Rep. 362. 

The same rule has also been recently reiterated in Connecticut. 
Beardsley v. Hall, 36 Conn. 270; S. C, 4 Am. Rep. 74. 

% 11. By making assignment. We have noticed the general 
right of a partner to assign the whole or any portion of the partner- 



PAPtTNERSHIP. 133 

ship property, to pay or secure a partnership creditor. But it seemfc 
well established that he cannot make a general assignment in trust for 
the payment of the creditors of the firm, without the express author- 
ity or assent of the other members. There is no implied authority 
for this purpose. Wetter v. Schliejyer, 4 E. D. Smith (N. Y.), 707 ; 
Haggerty x. Granger, 15 How. (N. Y.) Pr. 243 ; Paton v. Wright, 
id. 481 ; Welles v. March, 30 N. Y. (3 Tiff.) 344 ; Coope v. Bowles, 
42 Barb. 87 ; Book v. Stone, 34 Mo. 329 ; Sloan v. Moore, 37 Penn. 
&t. 217 ; Dunklin v. Kimball, 50 Ala. 251 ; Brooks v. Sullivan, 32 
Wis. 444. But all the partners may co-operate in a general assign- 
ment for the benefit of all the creditors, or they may authorize or 
assent to an agreement by one of the partners. And it may be made 
by one in case of insolvency under circimistances which would justify 
the presumption of t-lie assent of others. Stein v. LaDow, 13 Minn. 
412 ; Forhes v. Scannell, 13 Cal. 242 ; Rohinson v. Gregory, 29 Barb. 
560 ; Palmer v. Myers, 43 id. 509 ; Kemp v. Carnley, 3 Duer (N. Y.), 
1 ; Baldwin v. Tynes, 19 Abb. (N. Y.) Pr. 32. But it is also held 
that a general assignment by one is not void jyer se, but only void- 
able at the option of the other partners. Sheldon v. Smith, 28 Barb. 
593. 

An assignment of the entire effects of a copartnership for the bene- 
fit of creditors made by one copartner while the others are present 
and capable of acting, is not valid originally, but may become so by 
ratification, and the assignment will then relate back to the time of its 
execution except as against rights in the mean time acquired by third 
persons. Holland v. Drake, 29 Ohio St. 441. 

§ 12. By submission to arbitration. It has generally been held 
that a j^artner cannot bind his copartners, by an agreement to submit 
matters in dispute between the firm and third parties to arbitration. 
The ground on which these decisions rest is that such contracts are not 
within the scope of the partnership business, and that the assent of the 
copartners thereto could not be implied. Karthaus v. Ferrer, 1 Pet. 222 ; 
Martin v. Thrasher, 40 Vt. 460 ; Buchanan v. Curry, 19 Johns. 137 ; 
Brink v. New Amsterdam, etc., Ins. Co., 5 Bobt. (N. Y.) 104. But 
see dissenting opinion of Dwight, C, in Beckers. Boon, 61 X. Y. (16 
Sick.) 317, 323. 

§ 13. By executing deeds, mortgages, etc. As a general rule one 
partner cannot execute a deed, mortgage, or other sealed instrument, in 
the partnership name, so as to bind his copartners. But he can bind 
them by such deed if executed in their presence and by the express 
assent of such partners. Gerard v. Basse, 1 Dall. 119; Pierson v. 
Hooker, 3 Johns. 68 ; McDonald v. Eggleston, 26 Yt. 154; United 



134 PARTNEKSHIP. 

States V. AstUij, 3 Wash. 508 ; Mackay v. Bloodgood, 9 Johns. 285 ; 
Price V. Alexander, 2 Gr. (Iowa) 427 ; Pettis v. Bloomer, 21 How. 
(K Y.) Pr. 317; Massey Y.Pike, 20 Ark. 92; Ruffner v. McConnel, 
17 111. 212. So it has been held that the execution of a sealed instru- 
ment by one partner in the name of the firm, under a prior verbal 
authority, or such an act subsequently ratified by the other partners, is 
binding upon the firm. Grady v. Robinson, 28 Ala. 289 ; Drumwright 
V. Phil^ot, 16 Ga. 424 ; Eaynes v. Seachrest, 13 Iowa, 455 ; Pilce v. 
Bacon, 21 Me. 280; Gadyy. Shepherd, 11 Pick. 400; Fox v. Norton^ 
9 Mich. 207 ; Smith v. Kerr, 3 K. Y . (3 Comst.) 144 ; Johns v. Battin, 
30 Penn. St. 84 ; Lowery v. Brew, 18 Tex. 786 ; Wilson v. Hunter, 
14 Wis. 683 ; Shirley v. Fearne, 33 Miss. 653 ; Baldwin v. Richard- 
son, 33 Tex. 16. 

§ 14. By executing bonds and other sealed instruments. The 
same general principles applicable to a deed is applicable in case of 
bonds and other sealed instruments. Thus, a lease executed under seal 
by one partner, in the name of the partnership, though for a term 
requiring no seal, was held not to pass the interest of the other part- 
ners, without evidence of previous authority to make it, or a subsequent 
ratification by them. Billon v. Brown, 11 Gray, 179. And where 
one partner signed the name of the firm to a bond, in a case in which 
the firm was defendant, the bond was held to be void as to the partners 
not signing it. Boe v. Tiipper, 12 Miss. 261 ; Turheville v. Ryan, 1 
Humph. (Tenn.) 113. See, also, Butterfield v. Hemsley, 12 Gray, 226 ; 
Henry County v. Gates, 26 Mo. 315, where it was held that the 
authority to execute a bond must be by an instrument under seal. 
Snyder v. 2Iay, 19 Penn. St. 235. But where one partner executed, 
on behalf of a firm and under seal, a contract for the lease of premises 
by the firm, and the firm subsequently occupied the premises and paid 
the rent in accordance with the provisions of the lease, it was held that 
it would be enforced against the surviving partners after the decease 
of the partner who executed it. Kyle v. Roberts, 6 Leigh (Ya.), 495. 
See, also, Mann v. yEtna Ins. Co., 40 Wis. 549. The general rule in 
such cases is that authority to execute the instrument must be shown 
in some manner, or a subsequent ratification of the act by the other 
yjartners sought to be held. But this authority or ratification may gen- 
erally be sliown by facts and circumstances. Hobson v. Porter, 2 Col. 
T. 28. See, also, as to a chattel mortgage under seal, but where the 
seal was not required, Gibson v. Warden, 14 Wall. 244; Walton v. 
TiiMten, 49 Miss. 569. But see contra, in Pennsylvania, as to a sealed 
note, Schraertz v. Shreeve, 62 Penn. St. 457 ; S. C, 1 Am. Rep. 439. 
So a partner may execute in the name of the firm a chattel mortgage 



PARTNEKSHIP. 135 

under seal, transferring to a creditor, as security, partnership property. 
McClelland v. Remsen, 3 Abb. (N. Y.) App. Dec. Y4; 3 Keyes, 454; 
5 Abb. (N. S.) 250 ; Morrison v. Mendenhall, 18 Minn. 232. 

§ 15. By receiTing payments, etc. As a general rule each part- 
ner is authorized to receive payments of money due the firm, and to 
compromise and discharge claims of the partnership against third 
parties. Noyes v. New Haven R. Co., 30 Conn. 1 ; Doremus v. 
McCormick, 7 Gill (Md.), 49 ; White v. Jones, 14 La. Ann. 681 ; Van 
Derhurgh v. Bassett, 4 Minn. 242. As between the partners, they 
may stipulate that one only shall have authority to receive payments 
and settle, compromise, and discharge debts ; and a debtor of the 
firm with notice of such agreement would be bound by it. Sims v. 
Smith, 12 Rich. (S. C.) 685. See, also. Gram v. Cadwell, 5 Cow. 
489 ; Lunt v. Stevens, 24 Me. 534. But a release by one partner 
after he has sold out his whole interest in the partnership property, 
cannot be used to the prejudice of the other partner. Brayley v. Goff, 
40 Iowa, 76. 

ARTICLE lY. 

DISSOLUTION. 

Section 1. In general. There may be said to be two ways in 
which partnerships are dissolved. They are ipso facto dissolved at 
any time by the unanimous consent of all the parties ; by the will of 
either party where he is not restrained by contract ; by the death of 
either partner ; by the technical bankruptcy or insolvency of the part- 
nership that takes its property from its control ; and by the insanity 
of either partner after an in quisition found to that effect. They may 
also be dissolved for various other causes by the decree of a court of 
equity, as we shall hereafter notice. 

In addition to the causes for dissolution which we have mentioned, 
it is further held that if a partnership for commercial purposes exists 
between citizens of two different countries, it is suspended or dissolved, 
by a declaration of war between those countries. Griswold v. Wad- 
dvngton, 15 Johns. 57 ; 16 id. 438 ; Seaman v. Waddington, 16 id. 
510 ; Mc Adams v. Hawes, 9 Bush (Ky.), 15 ; The Rapid, 8 Cranch, 
155 ; Scholefield v. Elchelberger, 7 Pet. 586 ; Woods v. Wilder, 43 K 
Y. (4 Hand) 164 ; S. C, 3 Am. Rep. 684. 

§ 2. Yoluntary act or by limitation. A dissolution of a partner- 
ship may be effected at any time by the voluntary act of either part- 
ner, unless he is restrained therefrom by contract with his copartners. 
Shvrmer v. Tinker, 34 Barb. 333 ; Pine v. Ormsbee, 2 Abb. (N. Y.) 



136 PARTNEESHIP. 

Pr. (X. S.) 375 ; Peacock v. Peacock^ 16 Yes. 49 ; Carlton r. Cum- 
mins, 51 Ind. 478. And partnerships formed by parol agreement 
may evidently be dissolved by an oral declaration, and this may be 
shown by parol evidence. Cregler v. Durhann, 9 Ind. 375 ; Gardener 
V. Bataille, 5 La. Ann. 597. See, also, Waithman v. Miles, 1 
Stark. 181. 

So a partnership may be dissolved at any time by the assent of all 
the members, even though the time has not expired for which it was 
originally formed. This would arise from the general right of part- 
ners to modify, alter, or revoke, any of the pro%nsions of the copart- 
nership agreement. Master v. Kirton, 3 Yes. 74 ; 3 Kent's Com. 53. 

Some controversy has arisen in relation to the right of one party to 
dissolve a partnership without a sufficient cause, before the time fixed 
in the articles of agreement. Opinion of Pratt, J. , in Skinner v. 
Dayton, 19 Johns. 538. But it seems well settled that where the 
duration of the partnership is fixed by agreement between the partners, 
it cannot be dissolved at the mere will, or by any voluntary acts of 
one of them, unless such acts are such that the partnership would 
thereby become extinct, and then they might authorize a decree of 
dissolution on the application of the other partners. Ferrero v. 
Biihlmeyer, 34 How. (N. Y.) Pr. 33 ; Pearpoint v. Graham., 4 Wash. 
C. C. 234 ; 8eigJiorim,er v. Weissenhorn, 20 N. J. Eq. 172. If such 
dissensions exist as to prevent any beneficial effects from a continuance 
of the partnership, a court of equity would decree a dissolution. 
Bishop V. Breckles, HofF. Ch. 534 ; Goodmam, v. Whitcomh, 1 Jac. & 
W. 569 ; See, also, Jackson v. Deese, 35 Ga. 84. See, also, Brien v. 
Ilarrimam,, 1 Tenn. Ch. 467. And an assignment or sale by one 
partner of all his interest in the partnership, or the partnership prop- 
erty, would of itself be a dissolution of the partnership ; and it would 
be tlie same if the assignment or sale was made to a partner. Ma?'- 
quand v. New York Man. Co., 17 Johns. 525 ; Miller v. Bi'igham, 
50 Cal. 615 ; Edens v. Williafns, 36 111. 252 ; Barton's Appeal, 13 
Pcnn. St. 67 ; Powers v. Nichols, 20 Tex. 719. So a dissolution is 
effected by a sale of the ])artnership property under an execution 
against one of the partners. Penton v. Chaplain, 9 N. J. Eq. 62. 

But an assignment of partnershij) property, which is void for want 
of conformity to the re(piirements of the statute, would not work a 
dissolution. Simmons v. Curtis, 41 Me. 373. And although the absent- 
ing or absconding of a partner may afford grounds for a dissolution by 
a court of o(pnty, still it is not, of itself, a dissolution of the partner- 
shij). Arnold v. Brown, 24 Pick. 89. Nor does simple insolvency, 
not technical, of itself, dissolve the partnership, or divest the partners 



PARTNERSHIP. 137 

of their rights as such, over the partnership property. Id. ; Siegel v. 
Chidsey, 28 Penii. St. 279. 

If a partnership is subject to dissolution at the wiU of either part- 
ner, and is so dissolved, the consequences of such a dissolution is, gener- 
ally, to place the winding up of its afEah's in a court of equity. Stevens 
V. Teatman, 19 Md. 480. 

But where a partnership was dissolved by the agreement of the two 
partners, and each received a specific part of the assets and assumed 
and agreed to pay a specific part of its liabilities, it was held that the 
assets set off to one were not subject to any trust for the firm debt 
assumed by the other which the latter could enforce in equity against 
the former. Giddings v. Palmer, 107 Mass. 269. 

A partnership) M'ould, ordinarily, be dissolved by the expiration of the 
time limited for its continuance; but this would depend upon circum- 
stances. The parties might still continue the partnership business, 
and, in this respect, the will of the parties would control. If con- 
tinued, they would be suj)posed to continue under the original agree- 
ment, or such agreement modified or changed by express arrangement 
between the parties ; or such agreement as may be implied from the 
mode of doing business, which we have already considered. The 
retirement of one partner from the firm for any cause would, of course, 
be a dissolution of it, as between the partners, even though the business 
should be continued by the other partners under the same name. 
Spaunhorst v. Ltnli, 46 Mo. 197. 

§ 3. By death. Unless there is some stipulation to the contrary, 
the death of one of the partners dissolves the partnership. Davis v. 
Christian, 15 Gratt. (Ya.) 11 ; Scholefield v. Eichelherger, 7 Pet. 586 ; 
Gratz V. Bayard, 11 S. & R. 41 ; Knapj) v. McBride, 7 Ala. 19 ; 
Goodhurti V. Stevens, 5 Gill (Md.), 1 ; Washburn v. Goodmam,, 17 Pick. 
519 ; Grisioold v. Waddington, 15 Johns. 82 ; Marlett v Jackman, 3 
Allen, 290; Bank of N. Y. v. Vanderhorst, 32 N. Y. (5 Tiff.) 553 ; 
SaA)age v. Putnam, 32 Barb. 425 ; Mudd v. Bast, 34 Mo. 465 ; Bur- 
chard V. Boyce, 21 Ga. 6. If the articles of copartnership provide 
that the partnership shall not be dissolved by the death of one of the 
partners, but in that event be continued by the executor, or administra- 
tor, or other person, such agreements are sustained, and such partner- 
ships may be continued, according to the provisions of the stipulations 
as though no death had occurred. Gratz v. Bayard, 11 S. & R. 41 ; 
Laughlin v. Lorenz, 48 Penn. St. 275 ; Burwell v. Mandeville, 2 
How. 576 ; Pitkin v. Pitkin, 7 Conn. 307; Powell v. Eoj>son, 13 La. 
Ann. 626. 

In joint-stock companies, or renewing partnerships, there is usually 
YoL. A^— 18 



138 PARTNEKSHIP. 

no delectus jpersoruB, and as a consequence such partnerships are neither 
dissolved by a change of members, nor by the death of members. 
Taylor v. Castle, 42 Cal. 367 ; Jones v. ClarTc, id. 180. See, also, 
Tyrrell v. WasMnirn, 6 Allen, 4:QQ ; ante, 117, art. 1, § 7. And where 
there was an agreement for a partnership to take effect in the future, 
and one of the parties died before the time fixed for commencing busi- 
ness, it was held that no estate intended to be contributed by either 
partner vested in the contemplated partnership. Cline v. Wilson, 26 
Ark. 154. 

§ 4. By insanity. The insanity of a partner, although good ground 
for the dissolution of a partnership, is not of itself a dissolution. Jones 
V. Noy, 2 Mylne & K. 125 ; Kirhy v. Carr, 3 Younge & C. 184 ; Leaf 
V. Coles, 12 E. L. & Eq. 117. It is, however, if of a permanent charac- 
ter, sufficient cause for a dissolution. Sayer v. Bennet, 1 Cox, 107 ; 
Griswold v. Waddington, 15 Johns. 57 ; Rowlans v. Evans, 30 Beav. 
302 ; Story on Part., § 297. And the finding of an inquisition of 
lunacy against a partner has been held ipso facto to dissolve the part- 
nership. Isler V. Baiter, 6 Humph. (Tenn.) 85 ; Milne v. Bartlet, 3 
Jur. 385. 

§ 5. By ll)ankruptcy. The legal or technical bankruptcy or insolv- 
ency of the firm operates as a dissolution of the partnership. Mar- 
quand v. New Yorh Man. Co., 17 Johns. 525 ; Ex parte Buffin, 6 
Yes. 126. And it is held that the dissolution takes place as soon as the 
property of the bankrupt is vested in the assignee or other party au- 
thorized to receive it. Arnold v. Brown, 24 Pick. 93 ; Siegel v. Chid- 
sey, 28 Penn. St. 287. See, also. Ex parte Hodgson, 19 Yes. 206. 

So the appointment of a receiver amounts to a dissolution, as soon as 
he takes the property into his possession. Egberts v. Wood, 3 Paige, 
517 ; Succession of Andrews, 16 La. Ann. 197 ; Bank v. Horn, 17 How. 
157 ; Murray v. Murray, 5 Johns. Ch. 78 ; Ex parte Williams, 11 
Yes. 5. See, also, Noonan v. McNab, 30 Wis. 277. But in case of 
the bankruptcy of one of the partners, the assignee has no right to take 
possession of the partnership property as against the solvent partners. 
Tie only becomes a tenant in common with them. Murray v. Murray, 
5 Johns. Ch. 60; Mar(piand v. JSfew York Bis. Co., 17 Johns. 525 ; 
Halsey v. Norton, 45 Miss. 703 ; S. C, 7 Am. Kep. 745 ; WilJcins v. 
Davis, 15 Bankr. Peg. 60. The assignee has only the same rights and 
interests as the representatives of a deceased partner. Crawshay v, 
Collins, 15 Yes. 218 ; Ereeland v. Stansfield, 13 Eng. L. & Eq. 336. 

§ ^'- liy JiKliciul (locrec. Courts of equity frequently exercise their 
powers in (Jcerceing dissolutions of partnerships, wliere a sufficient 
cause exists, even tliough the time fixed by the contract has not elapsed. 



PARTKEESHIP. 139 

Dumont V. Ruepprecht, 38 Ala. 175 ; Meaher v. Cox, 37 id. 201 ; 
Jaekson v. Deese, 35 Ga. 84 ; Waterhury v. Merchcmts' Un. Ex. Co., 
50 Barb. 157; Seighortner v. Weissenhorn, 20 X. J. Eq. 172. And 
they may, for sufficient cause, declare that the partnership never ex- 
isted ; as, where there was fraud in its inception, or it was formed for 
an illegal puqDose. Tattersall v. Groote, 2 B. & P. 135 ; Oldaker v. 
Lavemler, 6 Sim. 239 ; Howell \. Harvey, 5 Ark. 278 ; Fogg v. John- 
ston, 27 Ala. 432. But the equitable powers of com-ts are more fre- 
quently invoked to declare a dissolution for causes occurring after the 
formation of the partnership. The grounds for dissolution in such 
cases are numerous. For although a dissolution will not be decreed 
for slight causes, it is frequently done, in the exercise of the sound 
discretion of the court, on the ground of habitual drunkenness, great 
extravagance, gross negligence in conducting the business, bad temper, 
indolence, or disgraceful conduct, which tends to the injmy of the 
business, or to unpair the credit of the firm. But a dissolution will 
not be decreed, as a matter of course, for any or all of these things. 
"Whether a decree of dissolution will be made or not on these grounds, 
will depend upon the extent and degree of these various wrongful 
acts and the circumstances under which they occur. If the misconduct 
is so extreme and persistent as to defeat the objects of the partner- 
nership and to endanger its interests, a decree for a dissolution 
should be made. Howell v. Harvey^ 5 Ark. 278 ; Gratz v. Bayard, 
11 S. & R. 41 ; Norway v. Rome, 19 Yes. 148 ; Baring v. Dix, 1 
Cox, 213 ; Lafond v. Deems, 52 How. (N. Y.) Pr. 41 ; S. C, 1 Abb. 
K C. 318. 

So, a court of equity will decree a dissolution if it appears that the 
objects of the partnership are entirely impracticable {^Beaumont v. 
Meredith, 3 Yes. & B. 180; Cloughy. Eatdiffe, 1 DeGex & S. 164; 
Nockels V. Crosby, 3 B. & C. 814 ; Blake v. Dorgam,, 1 Gr. [Iowa] 537 ; 
Lafond v. Deems, 52 How. [X. Y.] Pr. 41); or where the circum- 
stances have so changed as to make it impossible to carry on the busi- 
ness without loss to all the partners {Harrison v. Tennant, 21 Beav. 
482 ; Brien v. Harriman, 1 Tenn. Ch. 467) ; or where the object of 
the partnersliip is destroyed, as a steamboat {Claiborne w Creditors, 18 
La. 501) ; or where a partner is unjustly excluded from the manage- 
ment of the business {Hartman v. Woehr, 18 N. J. Eq. 383) ; or where 
the business is so conducted by one or more of the partners as to violate 
the stipulations of the partnersliip agreement in material respects 
{Goodman v. WTiitcomb, 1 Jac. & W. 569 ; Hale v. ZTa^^, 4Beav. 369 ; 
England v. Cowling, 8 id. 129 ; Gorman v. Russell, 14 Cal. 531 ; 
Werner \. Leisen^ 31 Wis. 169; Meaher y. Cba?, 37 Ala. 201); or 



140 PAKTNERSHIP. 

where there is a peciiniaiy inability to fulfill material undertakings 
with the other members of the firm {Turni])8eed v. Goodwin^ 9 Ala. 
372) ; or by the marriage of a female partner. Nerot v. Burnand, 4 
Kuss. 247;*^ Brown v. Jewett, 18 N". H. 230. 

§ 7. Inability to act. We have already noticed that permanent in- 
sanity, which would incapacitate a person from making a contract or 
acting as a partner, was a good ground for a decree of dissolution. But 
there are other causes which would incapacitate a partner, or render 
his inability to act as such a ground for a dissolution of the partnership. 
Thus, the long absence of one partner in the public service, or his ab- 
sconding, or absence abroad for his own personal gratification, or his 
change of domicile from the country where the business is carried on, 
or his engagement in business of the same character in the vicinity of 
that of the firm and incompatible with its interests, would ordinarily 
constitute good grounds for the dissolution. Story on Part., §§ 274^ 
291, 292, 298, and notes ; Whitman v. Leonard, 3 Pick. 177 ; Arnold 
V. Broton, 24 id. 89. 

And where by the tenns of the partnership agreement, or from the 
nature and character of the business, the personal services and atten- 
tion of a partner is required and he absconds or is convicted of a crime 
and imprisoned, this would constitute good grounds for a dissolution of 
the partnership on the part of the other partners. Hart v. Clarke, 6 
DeGex, M. & G. 232 ; 27 Eng. L. & Eq. 561 ; Artiold v. Brown, 24 
Pick. 89. 

The general rule in such cases is that the dissolution takes place at 
the time of the decree of dissolution. Abrams v. Myers, 40 Md. 499. 

But the court may determine at what time the partnership shall be 
considered as terminated. Bumont v. Ruepprecht, 38 Ala. 175. And 
a dissolution will not generally be decreed in such cases, where under 
the circumstances great loss would result. Richards v. Baurman, 65 
N. C. 162. 

§ 8. Effect of dissolution. The effect of a dissolution is to put 
an end to all powers of the partners as agents except so far as neces- 
sary to close up the business. But each partner in the absence of 
special stipulations to the contrary retains his power to adjust its 
affairs by collecting its debts, disposing of its proj)erty and dividing 
its proceeds among the parties entitled to it, the same as if no disso- 
hitiou hud taken place. Rohblns v. Fuller, 24 N. Y. (10 Smith) 570; 
Butchart V, Dresser, 4 De Gex, M. ^ G. 542 ; Payne v. Hornby, 25 
Beav, 280 ; Granger v. McGllvra, 24 111. 152 ; Gannett v. Cunnvng- 
ham, 34 Me. 56; Bass v. Taylor, 34 Miss. 342. 

But the general rule is that on the dissolution of a partnership, 



PAETNEKSHIP. 141 

neither partner can make any new contract for the firm. Da/rl'mg v. 
Maixh^ 22 Me. 184 ; Gannett v. Cunningham, 34 id. 56. 

In respect to their creditors, partners after dissolution are joint debt- 
ors and what joint makers of a promissory note cannot do to enlarge, pro- 
long, or continue existing liabilities, or to create a new one in regard 
to the debt, copartners cannot do after a dissolution, in reference to a 
partnership obligation. Payne v. Slate, 39 Barb. 634. 

There is a great diversity of decisions in the different States in relation 
to the powers of the partners after a dissolution, and in construing the 
rule we have referred to. In some it is held that a partner may borrow 
money to pay partnersliip debts {Estate of Davis, etc., 5 Whart. 
[Penn,] 530) ; that he may renew notes ol the firm [Brown v. ClarJc, 
14 Penn. St. 469) ; or give firm notes for balances due on account 
from the ^rm{M^ Pherson v. Rathhone, 11 Wend. 96 ; Ward v. Tyler, 
52 Penn. St. 393) ; that he may carry out a contract previously made 
and partly performed {Holmes v. Shands, 27 Miss. 40) ; and by ac- 
knowledging a partnership debt, take it out of the statute of limita- 
tions. Smith V. Ludlow, 6 Johns. 267 ; Ward v. Howell, 5 Har. & 
J. (Md.) 60 ; Greenleaf v. Quincy, 12 Me. 11. See am^te, 131. On 
the other hand, in some of the States the rule has been more strictly 
construed, and the authority to make a note or accept a bill or to re- 
new bills or notes, even for a pre-existing debt or an admission or 
agreement to pay a debt, to take it out of the operation of the 
statute of limitations, has been denied. Perrin v. Keene, 19 Me. 
355 ; Lush v. Smith, 8 Barb. 570 ; TomhecMee BTc. v. Humell, 5 Mason's 
C. C. 56 ; Long v. Story, 10 Mo. 636 ; Stone v. Chamberlain, 20 Ga. 
259 ; Carolina v. Humjphreys, 1 McCord (S. C), 388 ; Van Yalken- 
Imrg v. Bradley, 14 Iowa, 108 ; Richardson v. Moies, 31 Mo. 430 ; 
Fellows V. Wyman, 33 N. H. 351 ; Levy v. Cadet, 17 S. & R. 126 ; 
Burr V. Williains, 20 Ark. 171 ; Chamberlain v. Bancroft, 24 Ga. 
310 ; Lange v. Kennedy, 20 Wis. 279 ; Conery v. Hayes, 19 La. Ann. 
325 ; Lumberman's Bh. v. Pratt, 51 Me. 563 ; White v. Tiid(yr, 24 
Tex. 639 ; Haddoclt v. Crocheron, 32 Tex. 276 ; S. C, 5 Am. Eep. 
244 ; Palmer v. Hodge, 4 Ohio St. 21 ; Wilson v. Forder, 20 Ohio 
St. 89 ; S. C, 5 Am. Rep. 627. So it has been held that after a disso- 
lution a partner under the implied powers possessed by him has no au- 
thority to appear for a copartner in a suit brought against them, though 
upon a firm indebtedness. Hall v. Lam^ning, 91 U. S. (1 Otto) 601, 
See, also, Faver v. Briggs, 18 Ala. 478 

§ 9. Acts after dissolution. After a dissolution of the partner- 
ship, the acts of one partner are usually binding upon the others in 
respect to all acts requisite and necessary to the settlement of the part- 



142 PARTNERSHIP. 

nersliip affairs. Ruffner v. Hewitt^ 7 W. Ya. 585 ; Heartt v. Walsh^ 
75 111. 2(»0. 

And the acts of a partner in the name of the firm after a dissolu- 
tion, if within the scope of the business of the firm, would, as to third 
parties, with whom the firm had been in the habit of transacting busi- 
ness, and who had no knowledge of the dissolution, be obligatory on 
the members, even though in excess of his general powers as a partner 
after dissolution, or of his powers under a special arrangement for a 
dissolution or a settlement by partners. Ketcham v. Clark^ 6 Johns. 
144 ; Merritt v. Pollys, 16 B. Monr. (Ky.) 355 ; Page v. Brant, 18 
111. 37; Williams v. Powers, 15 Cal. 321; Ennis y. Williams, 30 
Ga. 691 ; Zollar v. Jam^vrin, 47 N". H. 324 ; Little v. Clarke, 36 Penn. 
St. 114 ; Tudor v. White, 27 Tex. 584 ; Pavis v. Xeys, 38 N. Y. 
94 ; Simonds v. Strong, 24 Yt. 642 ; MaHin v. Searles, 28 Conn. 
43. But according to the preponderance of authority, as we have 
seen, the general right of one partner to bind the firm by a new con- 
tract ceases on dissolution. See ante, 140, § 8. Montague v. Peakert, 
6 Bnsh (Ky.), 393 ; Gale v. Miller, 1 Lans. (N". Y.) 451 ; S. C. affirmed, 
54 X. Y. (9 Sick.) 536. 

§ 10. Powers of liquidating partners. It is sometimes a matter 
of stipulation in the copartnership contract, and at others of subse- 
quent agreement that one partner shall, after a dissolution, have sole 
authority to close up the affairs of the partnership. In the absence of 
express provisions in reference to his powers, he would evidently 
possess those ordinary powers of a partner, to pay and receive pay- 
ments {Parker v. Pliillii^s, 2 Cush. 175 ; Washhurn v. Goodman, 
17 Pick. 519 ; Butchart v. Presser, 4 DeG. M. & G. 542) ; com- 
promise, compound and release debts {Pass v. Taylor, 34 Miss 342 ; 
Huntington v. Potter, 32 Barb. 300) ; sell goods, draw bills upon debtors 
{King V. SrnitK 4 C. & P. 108) ; release debts due to the firm {Napier v. 
McLeod, 9 "VVend. 120) ; and do those acts which are reasonable and 
proper to wind up the concern with reasonable promptness and with 
due regard to the interests of all. Px parte Williams, 11 Yes. 3 ; 
Lees V. Laforest, 14 Beav. 250 ; Clements v. Hall, 2 DeG. & J. 173 ; 
Bennett's Case, 18 Beav. 339 ; The Port Tenant Co., 24 id. 495. So, 
he niay give a firm note to release the partnership property from an 
attachment for a just debt. Kemp v. Coffin, 3 Gr. (Iowa) 190. And it 
has been held that he might indorse a firm note " without recourse", 
arid that such indorsement would convey the legal title to the note. 
Waite V. Foster, 33 Mc. 424. 

But the general doctrine is that one partner has no authority to 
bind liis copartners, after a dissolution, by any new contract, even by 



PARTNERSHIP. 143 

giving a note of the firm for any balance due from the firm. Lush \. 
Smith, 8 Barb. 570 ; Van Valhenhurg v. Bradley, 14 Iowa, 108 ; 
Long V. Story, 10 Mo. 630 ; Conklin v. Oglorn, 7 Ind. 553. The 
decisions in the various States are, as vt^e have seen, not uniform. And 
the authority of a partner, after dissolution, to make a note in the 
name of the firm, for money borrowed, to pay its debts or to renew a 
note in the name of the firm, has been recognized in some of the States. 
Robinson v. Taylor, 4 Penn. St. 242 ; McCowin v. Oichhison, 72 id. 
358. But the preponderance of authority is against the right in such 
cases to even renew a note. Myatts v. Bell, 41 Ala. 222 ; Parker v. 
Cousins, 2 Gratt. (Ya.) 372. See, also, § 8, p. 141. 

§ 11. Powers of survivor. The powers of a surviving partner 
are peculiar to the law of partnership. By the death of a partner, the 
survivors are invested with the exclusive right to the possession, con- 
trol, and management of the partnership property and business, for the 
purpose only of closing it up, with reasonable promptness. Loeschigk 
V. Addison, 19 Abb. (N. Y.) Pr. 1G9 ; Peters v. PaA)is, 7 Mass. 256; 
Evans V. Evans, 9 Paige, 178 ; Gleason v. White, 34 Cal. 258 ; Miller 
V. Jones, 39 111. 54 ; Crawshay v. Collins, 15 Ves. 226 ; Andrews v. 
Brown, 21 Ala. 437 ; Gannett v. Cunningham, 34 Me. 56. The arti- 
cles of copartnership sometimes make provision in reference to closing 
up of the partnership affairs in case of the death of one of the part- 
ners. In such cases the agreement will be enforced, and the rights and 
duties of the survivor or survivors will be regulated according to it. 
Suydam v. Owen, 14 Gray, 195. 

He has the power to apply the partnership funds to release the real 
estate from incumbrance, and to fulfill the contracts of the partnership 
relating to the purchase of real estate {Shearer v. Shearer, 98 Mass. 
107) ; and to control real estate held as partnership property until its 
affairs are settled {Cobble \. Tomlinson, 50 Md. 550) ; and it is gen- 
erally competent for partners, after a dissolution, to carry out contracts 
previously made and in part performed. Holmes v. Shands, 27 Miss. 
40. 

And if one partner compromises and settles a valid judgment against 
the firm after its dissolution, he may compel the others to contribute to 
the amount paid, though they did not assent to it, if the settlement- 
was made in good faith, and the other partners do not show that it 
might have been settled on better terms. Bass v. Taylor, 34 Miss. 
342. See, also, ITanna v. Wray, 77 Penn. St.. 27. 

The law imposes on the survivor the duty of a trustee for the creditors 
of the firm and the representatives of the deceased. As trustee he takes 
charge of all the property of the firm, and in the discharge of this duty 



144 PAETXEKSHIP. 

he is held with all the strictness of an ordinaiy trustee. On this sub- 
ject the authorities, both American and Englisli, seem uniform. Mar- 
lett V. Jackman, 3 Allen, 287 ; Murray v. Mv.rray, 5 Johns. Ch. 60 ; 
Case V. Abeel, 1 Paige, 393 ; Ogden v. Astor, 4 Sandf. (N. Y.) 311 ; 
Ex parte Ruffin, 6 Ves. 126 ; Toimg v. Keighly, 15 id. 557. Out of 
the assets of the firm the creditors are first to be paid in full, if there is 
suflicient for this purpose, if not, then equally. Washburn v. Good- 
man, 17 Pick. 519 ; Ogden v. Aster, 4 Sandf. (N. Y.) 311 ; Craw- 
shay V. Collins, 15 Yes. 218 ; Society v. Gihh, 21 Cal. 595. And if 
by continuing the business for the purpose of winding it up, profits 
are made, he must account for them. Waring v. Cram, 1 Pars. Sel. 
Eq. Gas. 522 ; Washhurn v. Goodman, 17 Pick. 519. He cannot pur- 
chase the property of the partnership, and such purchases would be 
void. Nelson v. Hayner, 'o^ 111. 487. See, also, Benfrow v. Pearce, 
68 id. 125. 

In the absence of stipulations between the partners on the subject of 
compensation, it has been the subject of some controversy whether a 
surviving partner, under any circumstances, is entitled to any compen- 
sation for his services. The general rule is that a partner is entitled to 
none. And the same rule has generally been applied to survivors, 
whose implied, if not express duty it is to settle up the business, as inci- 
dent to the relation, and for which no compensation will be implied. 
Ames V. Downing, 1 Bradf. (IS". Y. ) 321 ; Beatty v. Wray, 19 Penn. 
St. 516 ; Broion v. McFarlamd, 41 id. 129 ; Coursen v. Hamlin, 2 
Duer (N. Y.), 513. 

But in some instances where there were extraordinary services or 
expenses, the courts have made an allowance for them. Newell v. 
Humjyhrey, 37 Vt. 265 ; SchenU v. Ikma, 118 Mass. 236. 

§ 12. Retiring partners. The authority of a retiring partner to 
bind a firm by a new contract or obligation ceases with the dissolution 
of the firm. He may possess enlarged authority to act by virtue of 
express provisions of the partnership agreement, but otherwise he would 
at least be limited to the ordinary powers of a partner in settling and 
closing up the business, which we have already considered. See ante, 
140, Art. 4, § 8. But a retiring partner is not exonerated from liability 
from subsequent engagements made in the name of the firm, with per- 
sons in the habit of dealing with it, unless they have notice of the 
withdrawal. Denman v. Dosson, 19 La. Ann. 9 ; Po2)e v. Risley, 23 
Mo. 185 ; Buffalo City Bank v. Howard, 35 N. Y. (8 Tiff.) 500 ; Pecker 
V. Hall, 14 Allen, 532 ; Southerns. Grim, 67 111. 106 ; Sjyeer v. Bishop, 
24 C)liio St. 598. And where goods had been consigned to a firm to 
Bell on coniinission and the retiring partner gave notice of his with- 



PARTNERSHIP. 145 

drawal to the consignor, it was held that he was still liable for the goods. 
Holden v. McFaul, 21 Mo. 215 ; Briggs v. Briggs, 15 N. Y. (1 Smith) 
471. See, also, iu case of the death of a partner, Offutt v. Scotl^ 47 Ala. 
104. But this rule would not apply where the party dealing with the 
firm was a new customer, and had had no previous dealings with the 
firm. As to such it has been held that a note, executed in the name of 
the firm after the retirement of a partner, would not bind the latter, 
although no actual notice had been given. Farmers', etc., Bank v. 
Gh'een, 30 N. J. Law, 316. See, also, Dickinson v. Dickinson, 25 
Gratt. (Va.) 321. And where a firm held the property of another as 
bailee for no definite time, and the bailor could have removed it at his 
pleasure, and the retiring partner gave the bailor notice of his with- 
drawal, and required liim to remove the property, it was held that he 
thereby absolved himself from any liabihty as partner for any loss of 
the property occurring thereafter. Winston v. Taylor, 28 Mo. 82. 

The acceptance of the individual note of a liquidating partner, by a 
firm creditor, has frequently been held not to discharge the obligation 
of the other partners to him, or the estate of a deceased partner. Titus 
V. Todd, 25 N. J. Eq. 458. This is frequently, if not generally placed 
upon the ground that there is no consideration for such new contract. 
But there may be circumstances showing a good consideration and that 
the acceptance of such a note was intended as a discharge of the other 
partners and a substitution of the obligation of the liquidating partner 
for the claim against the firm. Thus where one of several part- 
ners, on the dissolution of the firm, agreed ^vith the others to assiune 
and pay the debts of the firm, a creditor of the firm who knowing the 
facts, and taking the negotiable note of the partner who should pay the 
claims of the firm, in satisfaction of his claim, and thereby extending 
the time of payment, was held to have discharged the other partners, 
Millerd v. Thorn, 56 N. Y. (11 Sick.) 402 ; Bernard v. Torrance, 5 
Gill & J. (Md.) 383. See, also. Maxwell v. Day, 45 Ind. 509. 

ARTICLE V. 

ACTIONS AT LAW OE IN EQUITY. 

Section 1. In general. Partners may conduct business under any 
name they may choose to assume. But when they sue for any claim, 
whether it be for tort, or on contract, they must at least sue in the 
names of the various ostensible partners. Wilson v. Wallace, 8 S. & 
R. 53 ; Pursley v. Ramsay, 31 Ga. 403 ; Tilford v. Ramsey, 37 Mo. 
563. They may assume the name of one member, or any other name, 
and it may sometimes be difficult to determine whether an obligation 
Vol. Y.— 19 



U6 PARTNEESHIP. 

is an individual or a partnership one. It is a question of fact in such 
cases to be detennined by a jury under all the circumstances of the 
case. Trueman v. Loder, 11 Ad. & El. 593 ; United States Bank v. 
Binneij, 5 Mas. C. C. 176 ; 5 Pet. 529 ; Man. cfe Mech. Bank v. 
Winship, 5 Pick. 11 ; Mercantile Bank v. Cox, 38 Me. 500 ; Olijyhomt 
V. Mathews, 16 Barb. 608 ; Miffiin v. Smith, 11 S. & E. 165. 

§ 2. Actions l)y partners against tliird persons. That actions 
may be maintained by partners against third persons, for torts or on 
contracts, is a proposition which is so evidently just as not to require 
authorities. But the proposition is subject to this qualification, that a 
partnership cannot maintain an action against one of its members, or 
against another partnership, where one partner is a partner in both, on 
the ground that the same party cannot be both plaintiff and defendant 
in the same suit. Holmes v. Higgins, 1 B. & C. 76 ; Sm,ith v. Allen, 
18 Johns. 245 ; Gomersall v. Gomersall, 14 Allen, 60 ; Crottes v. 
Frigerio, 18 La. Ann. 283 ; Estes v. Whi2)])le, 12 Yt. 373 ; Green v. 
Chapman, 27 id. 236 ; Englis v. Furniss, 4 E. D. Smith (N. Y.), 587 ; 
EaA)en v. WhiU, 39 111. 509 ; Denny v. Metcalf, 28 Me. 389. This 
rule is entirely technical and arbitrary, and there would seem to be 
no sound principle on which it rests so far as partnerships are con- 
cerned. It is a common practice for a corporation to sue and be sued 
by a member. This is allowed upon the theorj^ that the coi'poration, 
though composed of natural persons like a partnership, is a fictitious 
legal person. But a partnership in manj'^ respects resembles a corpo- 
ration. It has, for instance, a proper name by which it is known, and 
is composed of natural persons like a corporation. And, for the pur- 
poses of securing indemnity for injuries, whether growing out of torts 
or breaches of contract, justice would generally be promoted by con- 
sidering a partnership as an individual, separate from the individual 
members composing it. This is the Scotch law. 2 Bell's Com., Bk. 7, Y, 
510. And by statute in various States it is provided that suits may be 
brought by or against partnerships in their partnership name. Prac- 
tical difiiculties and inconveniences arise, owing to this technical rule, 
growing out of negotiable paper, and resort is frequently had by firms 
that caimot bring suit on such paper to an assignment of it to a third 
party, for the purpose of avoiding the technical objection, and enabling 
the assignee to maintain the action, practically for the benefit of the firm 
that could n(jt maintain it. Davis v. Briggs, 39 Me. 304; JJeyvjood 
v. Wingate, 14 N. II. 73; Thayer v. Buffum, 11 Mete. 398; Pitclier 
V. Barrwm, 17 Pick. 361. Actions by the firm, as we have seen, 
should be in the name of all the ostensible members. Baring y. Crafts, 
9 Mete. 392 ; Wilson v. Wallace, 8 S. <fe R. 53 ; Ki7'k v. Blurton, 9 



PARTNERSHIP. 147 

M. & W. 284; Madae v. Sutherland, 3 El. & Bl. 34; 35 E. L. &Eq. 
92 ; Forbes v. Marshall, 11 Ex. Ch. 176. The right of action for a 
tort is as necessary to partnerships as natural persons and corporations. 
Wrongs may be committed against them as well as others, but as the 
injuiy in such cases would be joint, or to the partnership as such, the 
damages would be limited to the joint injury. Glover v. Atistin, 6 
Pick. 209 ; PatUn v. Gurney, 17 Mass. 186 ; Medbury v. Watson, 6 
Mete. 246; Taylor x. Church, 8 N. T. (4 Seld.) 452. 

§ 3. Actions by surviyor. The surviving partner or partners can 
maintain an action in all cases where the action could have been main- 
tained if the deceased partner had survived. In case of the decease of 
a partner the action at common law should be in the name of the sur- 
viving partner or partners as plaintiffs, and the executors or adminis- 
trators of the deceased partner cannot be joined, " and the executors or 
administrators of the last sur\'ivor should sue alone without joining 
the representatives of the first or of any later deceased." Pars, on Part. 
447 ; Barney v. Smith, 4 Har. & J. (Md.) 485 ; Murray v. Mum- 
ford, 6 Cow. 441 ; Clarke v. Howe, 23 Me. 560 ; Peters v. Davis, 7 
Mass. 257 ; Belton v. Fisher, 44 lU. 33 ; Joyslin v. Taylor, 24 N. 
H. 268. 

But in a bill for an account by a survi^dng partner and to enforce 
equities against land owned by the firm, it is proper to join both the 
heir and the administrator as defendant. Dilworth v. May field, 36 
Miss. 40. 

The representatives of a deceased partner before the partnership 
business has been settled and the debts paid, and before they have 
been let into joint possession by the survi^•ing partner, have but an 
equitable interest in the partnership property, and are not tenants in 
common ; and the right of action for any trespass upon or injury to 
the partnership property during this interval is vested solely in the 
sur\'iving partner. Pfeffer v. St^iner, 27 Mich. 537. 

§ 4. Suits by third persons against partners. The remedy of 
third persons against partners is as amj^le and complete as against 
others. We have, however, noticed in treating of the remed}" at law 
of partnerships against third persons, that no suit can be maintained 
by a partner against the firm, or by one partnership against another 
having a common member. See ante, 146, § 2. And the remedy is 
subject to the further qualification that a creditor of one of the part- 
ners can only recover on execution the interest of the debtor in the 
partnership, that is, the surplus he would be entitled to after an adjust- 
ment of the partnership matters and the payment of the partnership 
debts. Fx parte Smith, 16 Johns. 102; Washhur7i v. Bank, 21 Yt. 



148 PARTNERSHIP. 

278 ; Andrews v. Xeith, 34 Ala. 722 ; Morrison v. Blodgett, 8 N. H. 
244 ; Filley v. Fhelps, 18 Conn. 294 ; Bice v. Austin, 17 Mass. 206 
Douglas v, Winslow, 20 Me. 89 ; Sutcliffe v. Dolirman, 18 Ohio, 181 
Lucas V. Laws, 27 Penn. St. 211 ; Hubbard v. Curtis, 8 Iowa, 1 
Ridgway v. Clare, 19 Beav. Ill ; Bank v. Carrollton Railroad, 11 
Wall. (U. S.) 624. 

There is also generally recognized another qualification of the rights 
and the remedy of the creditors of the individual partners ; and that is, 
that the creditors of the partnership are preferred to the creditors of 
the partners, at least where the partnership is insolvent. In such a 
case the creditors of the firm must be first satisfied out of the partner 
ship property. Ex parte Williams, 11 Yes. 6 ; Ex parte Kendall, 17 
id. 526 ; York Co. Ban'Ws Appeal, 32 Penn. St. 446 ; Wilson v. Soper, 
13 B. Monr. (Ky.) 411 ; Stout v. Fortner, 7 Iowa, 183 ; Allen y. Center 
Val. Co., 21 Conn. 130 ; Egberts v. Wood, 3 Paige, 517 ; Reese v. 
Bradford, 13 Ala. 837 ; Hoskins v. Johnson, 24 Ga. 625 ; Mayer v. 
Clark, 40 Ala. 259 ; Switzer v. Smith, 35 Iowa, 269. And they should 
be paid out of the funds arising from the sale of the real estate in the 
order of the seniority of their judgment liens thereon. Gordon v. 
Kennedy, 36 Iowa, 167. This preference of the partnership creditors, 
it has been claimed, rests upon a lien of the partners upon the partner- 
ship property for the payment of the partnership debts and the sui'plus 
due them after an adjustment of the partnership matters. But the 
claims of the partnership creditors cannot be preferred to those of the 
individual partners, unless there is bankruptcy or insolvency of the 
firm. Washburn v. Bank, 19 Yt. 278 ; Stout v. Fortner, 7 Iowa, 183 ; 
Griffith V. Buck, 13 Md. 102. And it has been held that a bona fide 
assignment of the rights and interests of a partner in the partnership 
and partnership property, previous to the bankruptcy or insolvency of 
tlie firm, would defeat this lien or preference of its creditors. See au- 
thui-ities above cited : Ex parte Fell, 10 Yes. 347 ; Rogers v, Nichols^ 
20 Tex. 719 ; Holmes v. Hawes, 8 Ired. Eq. (N. C.) 21 ; Reesey. Brad- 
ford, 13 Ala. 846 ; City of Maquoketa v. Willey, 35 Iowa, 323. The 
lien and preference of the firm creditors on the partnership property, 
ov(!r the individual creditors of tlie partners, has given rise to various 
other questions relating to the respective rights of these two classes of 
creditors. As the partnership creditor enjoys this preference, should 
he, as against a creditor of a partner, be compelled to exliaust the part- 
nership property before resorting to the private property of the partner 
for tlie satisfaction of his claim? Or should the claims of the creditors 
of an insolvent partner be preferred and have priority over the claims 
of the partnership creditors, for satisfaction out of the individual prop- 



PARTNERSHIP. 149 

erty of the partner ? The rule in bankruptcy and insolvency cases 
seems to be that each should in the first instance be limited in this re- 
spect to the separate funds and property of the particular debtor of 
each, and that he can only claim for any balance his equal proportion 
of any surplus that may remain of the other fund, after a satisfaction 
of the claims of the creditors who are entitled to a preference out of 
that particular fund. This, also, seems to be the general doctrine in 
equity, though there has been much fluctuation in the decisions. Ex 
parte Clay, 6 Yes. 813 ; Ex ijarte Kensington, 14 id. 448 ; Ex parte 
Kendall, 17 id. 514 ; Ridgway v. Clare, 19 Beas. 611 ; Allen v. Wells, 
22 Pick. 453 ; Bardwell v. Perry, 19 Yt. 292 ; Murray v. Murray, 
5 Johns. Ch. 60 ; Payne v. Matthews, 6 Paige, 19 ; Crockett v. Grain, 
33 N. H. 542; Huhhard v. Curtis, 8 Iowa, 1 ; Bridge v. McCullougK, 
27 Ala. 661 ; Rodgers v. Meranda, 7 Ohio St. 179 ; Daniel v. Towns- 
end, 21 Ga. 155 ; Meech v. Allen, 17 N. Y. (3 Smith) 300 ; Camp v. 
Grant, 21 Conn. 41 ; Bis Creditors, 20 Mart. (La. Ann.) 599. So, a 
creditor of one of the partners can acquire, by \artue of an attachment 
or execution, only the interest of the partner in the concern. If 
partnership property is sold on such process, the purchaser would take 
it subject to a partnership account, and to the preference of the firm 
creditors and the other partners. Johnson v. Evans, 7 Man. & G. 
240 ; May hew v. Berick, 7 C. B. 229 ; Phillips v. Cook, 24 Wend. 
398 ; Lucas v. Laios, 27 Penn. St. 211 ; Douglas v. Winsloio, 20 Me. 
89 ; Pierce v. Jackson, 6 Mass. 242 ; Allen v. Wells, 22 Pick. 450 ; 
Bardwell v. Perry, 19 Yt. 292 ; Dow v. 8ayward, 12 N. H. 276. 

§ 5. Suits between partners. It is a principle universally recog- 
nized that one partner cannot maintain an action at law against another 
for any thing received on partnership account, or for any thing relating 
to the partnership transactions while the partnership matters remain 
unadjusted, on the ground that it would be impossible to determine 
whether there is any thing due the plaintiff, until an account of the 
partnership matters is taken. Holmes v. Higgins, 1 B. & C. 76 ; Smith 
V. Allen, 18 Johns. 245 ; Gomersgll\. Gomersall, 14 Allen, 60 ; Crot- 
tes V. Frigerio, 18 La. Ann. 283 ; Francisco v. Fitch, 25 Barb. 130 
Marin v. Martin, 25 Mo. 360 ; Hammond v. Hammond, 20 Ga. 556 
Wiggin v. Cumings, 8 Allen, 353 ; Smith v. Smith, 33 Mo. 557 
Burjis V. Nottingham, 60 111. 531. But in relation to all matters not 
connected with the partnership or in relation to transactions arising 
before the institution of the partnership, although they were entered 
into in contemplation of it, one partner may sue another. Thus if one 
partner should borrow money of another for his own private purposes, 
and on his own account, this would be his individual and not a partner- 



150 PARTNERSHIP. 

ship matter, and the lender might recover the same by suit. Roberts 
V. Fitler^ 13 Penn. St. 26-5 ; Moloney v. Bmis, 48 id. 512 ; Ives v. 
MilUt', 19 Barb. 196 ; Crater v. Bininger, 45 N. Y. (6 Hand) 545. 
So if one borrows money of another for the purpose of furnishing his 
share of the capital of a partnership of which he is to be a member, 
this would not be a partnership transaction but a private and individual 
matter, and whether the money thus borrowed went into the capital of 
the partnership subsequently formed or not, the borrower could not 
defeat an action at law therefor on the ground of being a partner. 
Scott V. Carrvphell, 30 Ala. T28 ; Biernan v. Braches, 14 Mo. 24 ; Cur- 
rier V. Rowe, 46 JST. H. T2 ; Duncan v. Lyon, 3 Johns. Ch. 362 ; 
Collainer v. Foster, 26 Yt. 754 ; Williams v. Henshaw, 11 Pick. 84. 
See, also, Wills v. Simmonds, 51 How. (K. Y.) Pr. 48. 

If one partner should purchase goods or any kind of property of 
another for his own personal use or that of his family or others, this 
would not be a partnership transaction nor property belonging to the part- 
nership accounts unless there was an agreement to that effect. Elder 
V. Hood, 38 111. 538. And where a person is only a nominal partner, 
but has been held as a partner on account of being held out as such, 
and has been compelled to pay a firm debt in consequence thereof, he 
may recover this of the actual partners by showing his relations to the 
firm. Latham v. Kenniston, 13 IST. H. 213. And the fact that the 
partner sought to be charged with a separate and independent liability 
has entered the matter in the partnership account will not affect the 
right of the plaintiff to recover. Thus when one partner receives 
a sum of money belonging to another, and places the same to the part- 
nership account, this would not prevent the partner, entitled to the same, 
from maintaining an action therefor against the partner so receiving it. 
Smith V. Ba/rrow, 2 T. R. 476 ; Seaman v. Johnson, 46 Mo. 111. 

And in general it may be said, that for breaches of contracts between 
partners, an action may be maintained, unless the matter involved 
relates to the partnership business, and requires an adjustment of the 
partnership accounts, and the damages can only be determined by first 
settling them. Eidgway v. Gratit, 17 111. 117 ; Paine v. Thacher^ 
25 Wend. 450 ; Estes v. Whipple, 12 Yt. 373 ; Capen v. Barrows, 1 
Gray, 376. See, also, Wright\. Jacobs, 61 Mo. 19; Wells v. Carpen- 
ter, 65 111. 447 ; Wiggin v. Goodwin, 63 Me. 389 ; Eussell v. Grimes, 
46 Mo. 410. 

Where, after a dissolution, there has been an accounting between 
partners, and a Ijalance struck and agreed upon, and there is found due 
to one from another, or from others, a certain sum, and an express 
promise to pay the same, there is no conflict in the authorities as to the 



PAKTNEESHIP. 151 

right of the partners in whose favor the balance is found to recover of 
the others the balance thus found. Moravia v. Levy, 2 T. R. 483, n. 
a; Brierly v. Grijpps^ 7 C. & P. 709 ; Henley v. Soper, 8 B. & C. 16 ; 
Murray v. Bogert, 14 Johns. 318 ; Clarh v. DihUe, 16 Wend. 601 ; 
Calvert v. Marlow, 6 Ala. 342. And an action may be maintained by- 
one partner against another, on an agreement to pay a certain sum for 
the interest of the fomier in the firm and the firm property. Wells v. 
Wells, Yentr. 40 ; Lane v. Tyler, 49 Me. 252 ; ILolyoke v. Mayo, 50 
id. 385 ; Nims v. Bigelow, 44 1^. H. 376 ; Wright v. Cumpsty, 41 
Penn. St. 102. See, also. Hunt v. Morris, 44 Miss. 314 ; Adams v. 
Funk, 53 111. 219 ; Wells v. Carpenter, 65 id. 447 • Wiggin v. Goodwin, 
63 Me. 389. 

A distinction has been made in some of the States between the efi'ect 
in such cases of a " balance struck " and " final balance." In some 
cases it has been held, that to entitle a party to recover for a balance, 
this should be for a balance found due after a dissolution, and of such 
a character as to admit of no new balances in reference to the partner- 
ship transactions, and other suits thereon ; in other words it should be 
fiual. WillioAns v. Hertshaw, 11 Pick. 81. See, also, Sikes v. Work, 
6 Gray, 433; Wilby v. Phinney, 15 Mass. 116; Haskell \. Adams, 7 
Pick. 59; Dickinson v. Grmiger, 18 id. 317; Spear v. ]Vewell,'lS Vt. 
288 ; Warren v. Wheelock, 21 id. 323 ; Chadsey v. Harrison, 11 El. 
151 ; Graham v. Holt, 3 Ired. (N. C.) 300 ; Pope v. Randoljjh, 13 
Ala. 214 ; Killam v. Preston, 4 W. & S. 14 ; Chase v. Garvin, 19 Me. 
211. Balances struck only preparatory to a settlement are not suffi- 
cient. Until final settlement is had, the remedy is in equity. Burns 
V. Nottingham, 60 111. 531. On the other hand, there are numerous 
authorities sustaining the doctrine that the balance for which suit may 
be brought need not be a final or. general balance of all the partner- 
ship accounts, after a dissolution, but that it is sufficient if it embraces 
a settlement of particular matters, or a balance of specific things, 
which the partners agree to arrange, and that so far as the specific 
matters embraced are concerned, it is conclusive between the parties. 
Jackson v. Stopherd, 2 Cromp. & M. 361 ; Coffee v. Brian, 3 Bing. 
54 ; Brown v. Tapscott, 6 M. & W. 119 ; Brierly v. Cripps, 7 C. & 
P. 709 ; Carr v. Smith, 5 Q. B. 128 ; Gibson v. Moore, 6 N. H. 547 ; 
Clark V. DiWle, 16 Wend. 603 ; Byrd v. Fox, 8 Mo. 574. 

Again, the courts are divided on the cpiestion whether there must be 
an express promise to pay the balance. The old English doctrine 
seemed to be that an express promise was necessary in order to entitle 
the partner to recover. Fromont v. Coupland, 2 Bing. 170. In this 
country this seems to be followed in many States. Hoisted v. Schmel- 



152 PAETNERSHIP. 

zeh 17 Johns. 80; Townsend y. Goewey, 19 "Wend. 424; Chadsey v. 
Harrison, 11 111. 151 ; Wycoffy. Purnell, 10 Iowa, 332; Buell v. Cole, 

54 Barb. 353. But a contrary doctrine is now maintained in England 
and in many of the States. And it is held that the agreement between 
partners as to the amount due from one to the other on a final settlement 
or a balance struck, raises an implied promise to pay it, and that an 
action is maintainable thereon {Rackstraw v. Imher, Holt's N. P. 368 
Eenley v. Soper, 8 B. & C. 16 ; Wray v. Milestone, 5 M. & W. 21 

Williams v. Henshaw, 11 Pick. 79 ; Dickinson v. Granger, 18 id. 317 
Pope V. Randolph, 13 Ala. 214 ; Spear v. Newell, 13 Vt. 288 ; Ross v. 
Cornell, 45 Cal. 133 ; Buell v. Cole, 54 Barb. 353), where it was held 
that the action could not be maintained, except there was a final balance 
struck, or an express promise to pay. 

Where the plaintiff did work for a joint-stock company for a stipu- 
lated sum, and afterward took stock in the company, it was held that 
this did not affect his right to sue the company for the work done. 
Zucas V. Beach, 1 Scott N. R. 350 ; 1 Man. & G. 417 ; Gheeny v. Clark, 
3 Yt. 431 ; Currier v. Welster, 45 N. H. 226. And if the claim made 
against a partner arise after a dissolution of the partnership, an action 
at law may be maintained therefor. Thus, where one partner, after a 
dissolution of the firm, but before notice thereof was publicly given, 
contracted debts in the name of the firm, which were paid by the other 
partner, it was held that he might recover for the sum thus paid, of the 
other partner. Wright v. Cumpsty, 41 Penn. St. 102 ; Hutton v. 
Eyre, 6 Taunt. 289. See, also, Mam^ahan v. Gibbons, 19 Johns. 109 ; 
Butcher v. Forman, 6 Hill, 583; Price v. Cavins, 50 Ind. 122. 

And where, by the common consent, the exclusive management of 
the business was vested in certain partners, and it was also agreed that 
such managers should pay over to each of the partners the share of the 
dividends out of the profits to which each was entitled, it was held that 
each member miglit sue at law for unpaid dividends. Wadley v. Jones, 

55 Ga. 329. So it has been held that where two partners have stipu- 
lated to put into the partnership a specific amount of property, and 
there is a breach by one, the other may maintain an action at law 
thereon. Capen v. Barrows, 1 Gray, 376 ; Bedford v. Brutton, 1 Bing. 
N. C. 407; EsUs \. Whipple, 12 Yt. 373; Ridgway v. GroMt, 17 111. 
117. And where there are no assets remaining after the payment of 
the partnership debts, the liability of one partner to another for moneys 
advanced to liim, after dissolution, beyond his share, is a simple money 
demand, for which an action may be maintained at law. Wheeler v. 
Arnold, 30 Mich. 304. So it is held that one partner may purchase 



PARTNERSHIP. 153 

witli his own private funds a judgment against his firm, and enforce 
its collection and satisfaction out of the partnership assets. McKenzie 
V. Dickinson^ 43 Cal. 119. 

Although at law a partner cannot maintain a suit against his copart- 
ners for any claim or cause relating to the partnership transactions, no 
such rule prevails in courts of equity, and his remedy there is as ample 
and complete against his partners, as it would be against other parties. 
Thus, a court of equity will entertain a bill by one partner against an- 
other for a specific performance of the partnership agreement, where 
under the circumstances the decree can be made practicable, or would 
afford an adequate remedy, and there is no adequate remedy at law. 
And it has been held that a court of equity will enforce an agreement 
made on the dissolution of a partnership, that a particular partnership 
book should become the exclusive property of one of the partners. 
Lingen v. Simpsoyi, 1 Sim. & S. 600. 

But the cases are rare where this remedy would be practicable. The 
remedy by injunction, mandamus, or through a dissolution and the ap- 
pointment of a receiver, or for a breach of the contract being usually 
more efficacious. Kemhle v. Kean, 6 Sim. 333 ; Lumley v. Wagner^ 5 
De G. & S. 485 ; 13 Eng. L. & Eq. 252. 

The powers of a court are more frequently invoked by one partner 
against another or others, for a dissolution of the partnersliip and an 
account. And it was formerly held in such cases that an account would 
not be decreed unless there was a prayer for a dissolution. Baird v. 
Baird, 1 Dev. & B. (N. C.) 524 ; Forman v. Ilomfray, 2 Yes. & B. 
329. But this does not seem to be the modern doctrine ; and if from 
the circumstan ces of the case an account should be taken, and no suffi- 
cient cause for a dissolution exists in consequence thereof, then an 
accoimt will be decreed without a dissolution. Wallworth v. Holt^ 4 
Mylne & C. 619 ; Knowles v. Haughton, 11 Yes. 168. And an as- 
signee of all the interest of one of the partners would be entitled to 
an account, the same as his assignor, in case of a dissolution. Fountaine 
V. Urguliart^ 33 Ga. Supp. 184. 

In accounting between partners, the rule is to ascertain the value of 
the assets between the partners, including the property, credits and re- 
ceipts of the partnership, and to deduct from the aggregate the debts 
and expenditures. The balance should be divided according to the 
provisions of the partnership contract. Lusk v. Graham, 21 La. Ann. 
159 ; Chainhers v. Crook, 42 Ala. 171. One who stands in the place 
of a partner, either by purchase of him, or under an execution, or as 
his representative, has only an interest in the partnership, which can 
YoL. Y.— 20 



154 PAETNEKSHIP. 

only be available by an account with the partnership. Bank v. Ca/t- 
ronton liailroad, 11 Wall. 624. 

The right of a partner to an injunction against his copartners, for 
any cause which would warrant the exercise of this jurisdiction of 
courts of equity in other cases, has been universally recognized. In fact 
this negative remedy is among the most potent for securing justice to 
partners. Thus, an injunction may be granted to restrain a partner from 
carrying on a business prohibited by the partnership articles, or by his im- 
plied obligations to his copartners, adverse or injurious to the interests of 
the firm. Long v. Majentre^ 1 Johns. Ch. 305 ; Glassington v. Thwaites, 
1 Sim. & S. 124. So, where one partner is using the name or paper of the 
firm in a wrongful way, as for his own purposes or for purposes foreign 
to the objects of the partnership, he will be restrained by injunction. 
Master v. Eirton, 3 Ves. 74 ; Stockdale v. Ullery, 37 Penn. St. 486. 
So, a surviving partner may be restrained by injunction from a misap- 
plication of the partnership funds or property, as where he is appropri- 
ating it to his own use and is insolvent. Ha/rtz v. Schrader^ 8 Yes. 
317 ; Woodward v. Schatzell, 3 Johns. Ch. 412 ; Walker v. Trott^ 4z 
Ed. Ch. 38 ; Alder v. Fouracre, 3 Swanst. 489 ; Phillips v. Trezevant, 
67 N. C. 370. So, if a partner becomes grossly intemperate, and wastes 
the resources of the partnership, and misapplies its funds or property, 
or grossly misconducts himself , although an injunction would be inef- 
fective to prevent the intemperance, a court would restrain him from 
doing particular wrongful acts, and especially from using the partner- 
ship name in a manner not warranted, or from receiving any payments 
on account of the partnersliip. Gratz v. Bayard, 11 S. & R. 41 ; 
Lawson v. Morgan, 1 Price 303 ; Henn v. Walsh, 2 Ed. Ch. 129 ; 
Miles V, Thomas, 9 Sim, 609 ; Greatrex v. Greatrex, 1 DeG. & 
S. 692. 

So, after a dissolution, a partner may be restrained from improperly 
using the name of his former partners, or from carrying on the busi- 
ness in a manner to make his former copartners responsible therefor. 
DeTastet v. Bordenave, Jacobs, 516 ; Ryan v. Mackmath, 3 Bro. C. 
C. 15 ; Pei/rsoll v. Mliott, 6 Pet. 95 ; PeUit v. Shepherd, 5 Paige, 493 ; 
Sessions v. Jones, 6 How. (Miss.) 123 ; Leigh v. Everheart, 4 T. B. 
Monr. (Ky.) 379. 

Another common case for the exercise of the powers of a court of 
equity is on the application of a partner against copartners for the 
!i})[)ointment of a receiver. The appointment of a receiver and the tak- 
ing possession of the partnership property by him actually ousts the part- 
ners of all rights to possession and control of the property, and such 
an appointment will not usually, if ever, be made unless the plaintiff is 



PAKTiSrERSHIP. 155 

entitled to a dissolution. Hall v. Ilall^ 3 Mac. & G. 79 ; 3 Eng. L. & Eq. 
191 ; Blakeney v. Dufaur, 15 Beav. 40 ; 15 Eng. L. & Eq. 76 ; Sloan 
V. Moore, 37 Penn. St. 217. But a receiver will usually be appointed 
when there is a disagreement between the partners and a dissolution 
either by consent or a decree of the court. Richards v. Baurma/n, 
65 N. C. 162. So, a receiver will be appointed where a partner, willfully 
and persistently, violates the provisions of the copartnership agreement, 
or any plain duty imposed by law, especially if the firm is insolvent. 
Eenn v. Walsh, 2 Ed. Ch. 129 ; Harding v. Glaoer, 18 Yes. 281 ; Jac- 
quen V. Buisson, 11 How. (N. Y.) Pr. 385 ; Phillips v. Trezevant, 67 
K. C. 370. But a receiver will not be appointed for slight causes, or 
misconduct. Hamill v. Hamill, 27 Md. 679 ; Speights v. Peters, 
9 Gill (Md.), 472. Nor will one be appointed merely on the ground 
of ill-feeling between the parties, especially if it is not shown to have 
resulted from the fault of the defendant. Loomis v. MoKenzie, 31 
Iowa, 425. 

Another ground for the appointment of a receiver is the assuming of 
exclusive control of partnership affairs by one partner, and the refusal to 
admit another to exercise his rights in this respect, or a refusal to allow 
him any other substantial rights to which he may be entitled as a partner. 
See authorities cited above ; also, Norway v. Rowe, 19 Yes. 144 ; 
Hall V. Hall, 12 Beav. 414 ; Boyce v. Burchard, 21 Ga. 74 ; Rutter 
V. Tallis, 5 Sandf . 610 ; Wetter v. Schlieper, 4 E. D. Smith (N. Y.), 
707; Butchart v. Dresser, 4 DeG. M. & G. 542; 31 Eng. L. & Eq. 
121. 

The application for the appointment of a receiver is a matter that is 
addressed to the sound discretion of the court, and a receiver will 
usually be appointed where it is apparent from the dissensions of the 
partners, or the gross misconduct of one or more of them, that great 
loss or injury to a partner will result unless one is appointed {Dunham 
v. Jarvis, 8 Barb. 88 ; Terrell v. Ooddard, 18 Ga. 664 ; Cox v. Peters, 
13 N. J. Eq. 39 ; Evoms v. Evans, 9 Paige, 178) ; so a partner is gen- 
erally entitled to all those remedies in equity against his copartners 
which others would be entitled to under the same cu'cumstances. Thus 
he may compel a copartner holding the title to real estate purchased with 
the funds of the firm to convey to each of the others the proportionate 
share to which he may be entitled. Faulds v. Yates, 57 111. 416 ; 11 
Am. Rep. 24. And if any mistake has been made in the settlement 
of the partnership matters, a court of equity will afford the injured 
party an ample remedy. Hanks v. Baler, 53 ID. 292. 



156 PENALTIES. 



CHAPTER CVII. 

PENALTIES. 
AKTICLE I. 

OF PENALTIES IN GENEKAL. 

Section 1. Definition and nature. In the present chapter it is pro- 
posed to treat of the action for a penalty hnposed by statute for doing 
an act which the statute prohibits, or for omitting to do an act which 
the statute commands to be done. The instances in which penalties 
may be recovered by action are of frequent occurrence, and numerous 
illustrations may be found in cases of penalties given for the violation 
of the excise laws, the highway laws, and the laws relative to roads, 
bridges, ferries, plank roads, turnpikes, etc. 

Where a statute imposes a penalty, for the doing or not doing of an 
act, and gives that penalty in part to any person who wiU sue therefor, 
and the other part to the people, or to some charitable, literary, or 
other institution, and makes it recoverable by action, such actions are 
called cjui tarn actions, because the plaintiff alleges in his complaint that 
he sues as well for the people, or for such charitable institution, as for 
himself. 3 Bl. Com. 160 ; Bac. Abr., Actions qui tarn. And see CW- 
jleld v. Mitchell^ 43 Conn. 169. An action for a statutory penalty or 
forfeiture, given to any such person or persons as will sue therefor, 
or an action to any of the people in general, is called a popular action. 
Id. ; Seward v. Beach, 29 Barb. 239 ; 1 Wait's Law & Pr. 757. 

A penalty cannot be raised by implication, but must be expressly 
imposed. Jmies v. Estis, 2 Johns. 379 ; Allai7'e v. Howell Works 
Co., 14 N. J. L. 21. And. where a statute gives a penalty, such stat- 
ute must be strictly pursued. Broadwell v. Conger, 2 N. J. L. 210 ; 
Adaras v. Scull, id. 741. Tlie penalty cannot be raised or altered, neither 
made less nor increased by the court. Id. See Ex parte Swift, 3 Dowl. 
P. C. 636 ; GiVjert v. Bone, 79 111. 343. This rule of construction 
must not, however, be so strictly applied as to defeat the obvious 
intention of the legislature. 

The words of the statute are not to be narrowed to the exclusion of 
cases which the words in their ordinary signification, or in that sense in 



PENALTIES. 157 

which the legislature obviously used them, would comprehend. United 
States V. Wiltherger, 5 Wheat. 76 ; Gotlieal v. Brouwer, 5 N. Y. (1 
Seld.) 562 ; See Leona/rd v. Bosworth, 4 Conn. 421 ; Yerona Central 
Cheese Co. v. 2furtaugh, 50 N. Y. (5 Sick.) 314. If a statute gives 
a penalty for an injury for which an action lies at common law, the 
latter remedy is not thereby taken away, unless by express words or by 
unavoidable implication, Wheaton v. Hibhard, 20 Johns. 290 ; Por- 
ter V. Mount, 41 Barb. 561. But if a party has no other right than 
what is derived from the statute, his remedy must be under the statute. 
Almy V. Harris, 5 Johns. 175. And one penalty only is recoverable 
for one offense or entire transaction, and not a separate penalty for 
each particular act into which the offense may be divisible. Mayor^ 
etc., of New York v. Ordrenan, 12 id. 122. But it is held that sev- 
eral penalties may be included in the declaration, and recovered in one 
suit at common law ; as, for instance, several penalties for breach of 
municipal ordinances may be recovered in one suit. BrooTdyn v. 
Cleves, Hill & Denio's Supp. (N. Y.) 231. And see Longworthy v. 
Knapjp, 4 Abb. (N. Y.) Pr. 115 ; Johnson v. Hudson River R. R. 
Co., 2 Sweeny (N. Y.), 298 ; BartoleU v. Achey, 38 Penn. St. 273. 

Where the offense is one and entire in its nature, the penalty is also 
one and entire. And it is held that a person can commit but one 
offense on the same day, by " exercising his ordinary calling on Sun- 
day," contrary to the statute, and he is therefore hable but for one pen- 
alty for the same day. Brooks v. Glenoross, 2 Mood & Rob. 62. 
And under an ordinance of a municipal corporation forbidding both the 
sale of a thing and its exposm'e to sale, a single act of selling cannot 
be separated so as to impose two penalties, for in the case of an actual 
sale, the exposure is necessarily included in the sale itself. City of 
Brooklyn v. Toynhee, 31 Barb. 282. 

If a statute in the nature of a police regulation gives a remedy for 
private injuries resulting from the violations thereof, and also imposes 
fines and penalties at the suit of the public for such violations, the 
former will not be regarded in the natm-e of a penalty unless so de- 
clared. Pittsburgh, etc.. Railway Co. v. Methven, 21 Oliio St. 586. 

Penalties may be prescribed for future dehnquencies in the payment 
of taxes, as part of the machinery by which government is enabled to 
collect them. The power to impose the forfeiture attaclies as a neces- 
sary incident to the right to levy and coUect taxes, and on no other 
ground can it be supported. The penalty thus pro%-ided is not taxation 
but is merely a method of enforcing the payment of a tax. The im- 
position of penalties for past omissions would be confiscation, not 
taxation. State v. Mayor, etc., of Jersey City, 37 N". J. Law, 39. 



158 PENALTIES. 

A penalty implies a prohibition, though there are no prohibitory 
words in the statute. Best v. Bauder, 29 How. (N. T. ) 489. 

§ 2. When an action will lie for. It is a weU-settled doctrine of 
the common law, that where a statute gives a penalty and no particular 
remedy is prescribed for enforcing it, an action of debt may be brought 
for its recoveiy ( United States v. Lyman^ 1 Mas. [C. C] 481 ; 
United States v. Bougher, 6 McLean [C. C], 277 ; Matter of Bosey, 
6 Benedict, 507), and the debt arises when the penalty is incurred. Id. 
Debt may be brought for a penalty given by a statute although it is 
micertain. Corj). of Washington v. Fowler^ 4 Cranch (C. C), 458. 

Where the third section of a statute gave an action of debt to re- 
cover the penalties imposed by the preceding section, and only one 
penalty was imposed by the second section, but others were imposed 
by the first, it was held that the word " section " should be construed 
" sections," and applied to both preceding sections. Ellis v. Whit- 
lock^ 10 Mo. 781. Where the penalty affixed to an act is limited to 
" not less than one, nor more than three hundred dollars," one hundred 
dollars is the minitnum. Worth v. Peck, 7 Peun. St. 268. 

Under the provisions of the act of March 3, 1863, to prevent frauds 
on the revenue (see 12 Stat, at L. 737), an action of debt lies in be- 
half of the United States to recover the value of goods imported in 
violation of the act, against the person, be he owner, consignee, or 
agent, who knowingly makes or attempts to make an entry of goods 
by any of the false or fraudulent means specified in that act. United 
States V. Willetts, 5 Benedict, 220. In such an action, the burden is 
cast upon the government to make out its case beyond a reasonable 
doubt. Chafee v. United States, 18 WaU. (U S.) 516. 

At common law, when a penalty was incurred for a violation of a 
by-law of a corporation, it might be recovered by an action of debt or 
assui/ipsit in any court of general jurisdiction {City of London v. 
Goree, 1 Vent. 298 ; Barber Surgeons' Co. v. Pelson, 2 Lev. 252 ; 
Isreal v. Jacksonville, 1 Scam. [111.] 290) ; and such a penalty could 
not be recovered in any criminal proceeding. Id. So it has been held 
in Illinois that a 2-»enalty incurred for the violation of a town ordinance 
is recoverable by action of debt or assumpsit and cannot be recovered 
in any criminal proceeding. Jacksonville v. Block, 36 111. 507. 
Under the New Jersey timber act, the action must be debt, and the 
the name of the prosecutor and the title of the statute must be indorsed 
<^n the process. Cato v. Gill, 1 N. J. Law, 11 ; Miller v. Stoy, 5 
id. 476. 

§ 3. When no action will lie. Where a penalty is incurred under 
a statute, it must Ijc recovered while the statute is in force. And when 



PENALTIES. 159 

tlie statute is repealed, penalties incurred under it, though before the 
repeal, cannot be recovered. Allen v. Farrow, 2 Bailey (S. C), 58-i ; 
State V. Tomheckhee Bank, 1 Stew. (Ala.) 347 ; Cummings v. Chand- 
ler, 26 Me. 453 ; SuniTier v. Cummings, 23 Yt. 427. 

The entire offense of receiving usurious interest at different times 
(prior to the commencement of legal proceedings), upon the same con- 
tract, constitutes but one cause of action. It cannot be split into sep- 
arate suits, nor into separate counts of the same suit. Kemptmi v. Sul- 
livan Sav. Inst., 53 N. H. 581. 

A penalty imposed by statute for issuing a license to marry, to a 
minor, should not be deemed to be incurred imless a marriage takes 
place according to the statute. Campbell v. Beck, 50 111. 171. And a 
statute inflicting a penalty on a sale extends only to executed sales, by 
which the property passes from the vendor to the vendee, and not to mere 
executory contracts, especially if they are declared void by another stat- 
ute of the same State. Sortvjell v. Hughes, 1 Curt. (C. C.) 244. 

Where a penalty is given by statute to an informer, if he sue for it 
within a certain time, his right of action is gone if he fail to sue within 
the specified time. Fagan v. Armistead, 11 Ired. (IS". C.) L. 433. 

A statute which imposes a penalty of t\7enty-five dollars upon every 
person who shall "forcibly or fraudulently " pass any gate on any turn- 
pike or plank-road without having paid the legal toll, is penal, im- 
posing a penalty or forfeiture for the benefit or protection of a private 
corporation, and in derogation of common right, and it is not, there- 
fore, to be extended by construction to cases within the mischief in- 
tended to be remedied, but which are not within the words of the stat- 
ute. Bridgevmter etc.. Plank Road Co. v. Rohhins, 22 Barb. 662. 
And see Yerona Central Cheese Co. v. Murtaugh, 50 N. Y. (5 Sick.) 
314. But see Canastota, etc., Plank Road Co. v. Parkill, 50 Barb. 
601. 

Where a statute imposed a penalty on the sale of cordwood, at a cer- 
tain penalty per cord, it was held that a sale of any amount less than 
a cord was not within the prohibition of the statute. Pray v. Bur- 
hamjk, 12 N. H. 267. In Yermont, an action to recover the penalty for 
being a party to a fraudulent conveyance cannot be maintained in the 
com'ts of the State when the conveyance was made in another State. 
Slack V. G'lbhs, 14 Yt. 357. 

§ 4. Who may sue. See oMe, 156, § 1. If a penal statute author- 
izes a penalty to be sued for by the party injured, any one of several 
parties jointly injured by the offense may sue for and recover the 
penalty. Phillips v. Bevans, 23 IST. J. Law, 373. But where a 
statute imposes a penalty upon any one violating its provisions, but 



160 PENALTIES. 

enacts that no proceeding for the recovery of such penalty shall be 
taken by any other person than "a party aggrieved," without the 
consent in ^rriting of the attorney-general, or other specified per- 
son, a plaintiff suing without such consent -svlll be required to show 
that his private interests have been affected by the act complained of, 
and that he has been " aggrieved " thereby specially, and not merely as 
one of the public. Boyce v. Higgins^ 14 C. B. 1. 

The party who first commences a qui tarn action to recover a penalty 
given by statute acquires an interest in the penalty, which cannot be 
divested by a subsequent suit brought by any other common informer, 
though the latter be first prosecuted to judgment. Beadleston v. 
Sprague^ 6 Johns. 101. But where a part of the penalty is given to 
the public, and a part to a common informer, the State may prosecute 
for the whole, unless an informer has first commenced a suit gui tain 
for the penalty. Commonwealth v. Howard^ 13 Mass. 222 ; State v. 
Bishop^ 7 Conn. 181 ; Bex v. ir//7nen, 7 Term E,. 536. 

An action against the overseer of roads for neglect of duty, and an 
action to recover a penalty for trading with slaves, it was held, must be 
qui tawy. Gaston^ s Case, 1 N. J. Law, 53 ; Ha/rris v. Moore, id. 44. 
In a qui tain action for the recovery of a penalty from a railroad com- 
pany for a failure to ring a bell or sound a whistle at a road crossing, a 
common informer may sue in his own name as well as in behalf of the 
people. Chicago, etc., R. R. Co. v. Howard, 38 111. 414. And see 
Nye V. Lamphere, 2 Gray, 295 ; Megargell v. Hazleton Coal Co., 8 
Watts & Serg. 342. 

Where a penalty is given for the benefit of the persons upon whom 
a fraud is committed, an action therefor must be brought in their 
names. Thompson v. Howe, 46 Barb. 287. An action for the penalty 
given by statute for the neglect of an officer making distress for rent, 
to file the warrant of distress and the accompanying affidavit within 
the time limited by the statute, can be maintained only by the tenant 
against whom the warrant issued. A third person cannot maintain the 
action, although his property, happening to be upon the demised prem- 
ises, is levied upon and sold. Patridge v. McMartin, 25 Wend. 
655. 

But when a penalty is given to a party for the commission of an 
act whicli is an injury to him, and the penalty was given by way of 
satisfaction to him for such injury, his right of action for such penalty 
is not impaired by a repeal of the statute after his right of action had 
accrued. Conley v. Palmer, 2 N. Y. (2 Comst.) 182. 

As a general rule, a common informer cannot maintain an action for 
a penalty, unless power is given to him for that pm'pose by the statute. 



PENALTIES. 161 

Fleming v. Bailey^ 5 East, 313; Colhurnx. Swett, 1 Mete, 232; 
Seward v. Beach, 29 Barb. 239 ; Smith v. Look, lOS Mass. 139. ISTor 
can a penal action be maintained by several persons jointly as common 
informers, unless the statute imposing the penalty expressly authorizes 
such a proceeding. Commonwealth v. Winchester, 3 Penn. Law Jour. 
Kep. 34. 

AVlien a penal statute provides that the penalty may be recovered 
by indictment or civil action, one moiety to go to the State and the 
other to the prosecutor, it must appear of record who the prosecutor is 
in order to entitle him to his share of the penalty, otherwise the whole 
penalty goes to the State. State v. STnith, 49 K. H. 155 ; S. C, 6 
Am. Kep. 480. 

Where the law gives a municipal corporation a charter which author- 
izes it to enact ordinances, and to declare penalties for a breach of 
them, and the corporation, under the authority' of such charter, enacted 
ordinances prescribing penalties to be recovered by such corporation, 
and a subsequent act of the legislature declared that every violation of 
such ordinances should be a criminal misdemeanor, this does not repeal 
the right to the action for penalties under the charter. Mayor, etc., 
of New York v. HyaU, 3 E. D. Smith (N. Y.), 156. If the State law 
and the ordinance can stand together, the former does not repeal the 
latter, for there will not be a repeal of the right by implication. Id. 

Where a statute does not, in tenns, declare in whose name a suit 
shall be conducted for the recovery of a penalty for its \'iolation, but 
declares that the offender may be indicted or sued before a justice of 
the peace, the suit must be in the name of the people. People v. 
Young, 72 111. 411. 

§ 5. Who may be sued. Where two or more persons are jointly con- 
cerned in doing an act, for which a penalty is imposed by statute, a 
joint action may be maintained against them, but only one penalty is 
recoverable. Warren v. Doolittle, 5 Cow. 678. Lender this rule, a 
single action for the penalty given by statute for selling liquors with- 
out license may be maintained against several persons who join in sell- 
ing liquors without license. Ingersoll v. Skinner, 1 Denio, 540. And 
the same rule was applied where two persons were sued for the forfeit- 
ure imposed upon every person who should knowingly assist a tenant 
in removing his goods from demised premises, leaving rent unpaid. 
Palmer v. Conley, 4 Denio, 374 ; S. C, 2 N. Y. (2 Comst.) 182. 

Where a statute contemplates one offense, in the commission of 
which two classes of offenders may be engaged, an offense by both is 
held to be one and entire and the penalty for one offense is single, and 
YoL. v.— 21 



162 PENALTIES. 

a complaint against both for a penalty states but one cause of action. 
People V. Kolb, 3 Abb. Ct. App. (X. Y.) 529 ; S. C, 3 Keyes, 236. 

But if the offense is in its nature several, each offender is separately 
liable to the penalty. Rex v. Clarice, Cowp. 610. And where several 
persons were concerned in drawing a seine in a river, contrary to the 
provisions of a penal statute, it was held to be a several offense in each, 
and that each was liable to the statute penalty. Curtis v. Hurlhurt, 
2 Conn. 309. 

The authority of an agent, however general it may be, if it is capa- 
ble of being executed in a lawful matter, is never to be extended by 
construction to acts prohibited by law, so as to render his innocent 
principal liable in a criminal prosecution or to an action for penalties. 
Clark V. Metropolitan Bank, 3 Duer, 241, 249. And see People v. 
Utter, 44 Barb. 170. An exception to this rule is, however, made, in 
the case of husband and wife ; and if the husband leaves his wife in 
charge of his business, he will be liable for penalties incurred by the 
wife during his absence. Thus, where the wife, in the absence of her 
husband and without his consent, sold liquors by retail without a 
license, the husband was held answerable in a qui tain suit for the 
penalty given by the statute. Hasbrouck v. Weamer, 10 Johns. 247. 
See, also, Commissioners of Excise v. Keller, 20 How. (N. Y.) 280 ; 
Board of Commissioners v. Dougherty, 55 Barb. 332. So, where the 
wife acted as the agent of her husband, who was a toll-gatherer on a 
plank-road, and she took unlawful toll from a traveler, the husband 
was held liable for the penalty imposed by the statute. Marselis v. 
Seaman, 21 Barb. 319. And see Atty-Gen. v. Riddle, 2 Cr. & Jerv. 
493. 

A section of a statute containing seven subdivisions exempted seven 
different classes of persons from paying tolls on plank-roads, and a 
subsequent section gave a penalty for falsely claiming any of the 
exemptions, and an amendatory act added an eighth subdivision, creat- 
ing a new class of exemptions, and after this amendment took effect 
it was held that a false claim of exemption under the eighth subdi. 
vision rendered tlic false claimant liable to the penalty. Dexter, etc., 
Plank Road Co. v. Alleti, 16 Barb. 15. 

One who advises the removal of goods liable to distress, but does not 
aid in so doing, is not liable to the penalty given by the statute. /Strong 
V. Stebhins, 5 Cow. 210. 

§ 6. Defenses. To an action of debt qui tarn for the recovery of a 

penalty, ail debet is the proper general issue (see Jones v. Williams, 4 

M. & W. 375) ; but not guilty is an allowable plea. Id. ; Burnham v. 

Webster, 5 Mass. 270. But it is held that, if the suit be grounded on 



PENALTIES. 163 

the breach of a statute appearing by matter of record nil debet is not 
a good plea. Bac. Abr., Actions qui tarn (D). 

If several incur a penalty by a joint act, a recovery and satisfaction 
against one of them is a good bar to an action against the others. 
Boutelle V. Nourse, 4 Mass. 431. And see Frost v. Rowse, 2 Me. 130. 

In penal actions it is not necessary to plead a statute of limitations ; 
it may be relied on upon the trial of the general issue. Estill v. Fox, 
7 T. B. Monr. (Ky.) 553. 

Ignorance of the law is no defense to an action on a penal statute. 
Hyde v. Melvin, 11 Johns. 521. And in an action for a penalty, if 
the facts show a violation of the law, the defendant cannot excuse him- 
self on the ground of inadvertence and misapprehension of the law. 
Sherman v. Spencer, 1 N. Y. Leg. Obs. 172. See Sturges v. Maitland, 
Anth. N. P. 208, and note. 

In an action in the names of the board of the commissioners of 
excise for penalties under the license law, an answer that the plaintiffs 
had no right to bring the action, and that they had never authorized it 
to be brought, contains no defense. The commissioners alone have a 
right to object that the action is brought without their authority. 
Pomroy v. Sperry, 16 How. (N. Y.) 211. 

There is held to be no difference in respect to the application of the 
doctrine of contributory negligence between cases where the cause of 
action is based upon a statute, and those founded upon the principles 
of the common law, except where the statute imposing the liability by 
way of penalty merely, or otherwise, clearly restricts the application of 
the doctrine. See Ernst v. Hudson River R. R. Co., 35 N. Y. (8 
Tiff.) 9 ; Pittsburgh, etc., R. R. Go. v. Methven, 21 Ohio St. 586. 

In a suit to recover under different counts for receiving usurious 
interest at different times, a plea which states that all the interest al- 
leged to have been received was received on the same contract must be 
in abatement ; such a defense cannot be set up by a plea in bar. Kemp- 
ton V. Sullivan Sav. Inst., 53 N. H. 581. 

§ T. Recovery and judgment. If, in an action of debt for a penalty, 
the defendant plead nil debet, and the issue be found against him, the 
jury, and not the court, are to fix the amount of the penalty ; but 
when not guilty is pleaded, the court must assess the penalty. United 
States V. Allen, 4 Day (Conn.), 474; Commonwealth v. Stevens, 16 
Mass. 195. See Alhright v. Tapscott, 8 Jones' (N. C.) L. 473. 

In a qui tarn action, the judgment should be in favor of the informer 
for the uses expressed in the statute, and judgment in favor of the 
State will be reversed. Doss v. State, 6 Tex. 433. "Wliere the penalty 
inflicted by a by-law of a town is to be paid, one-half to the informer, 



164: PENALTIES. 

and the other half into the treasury of the town, a qui tarn action, in 
the name of the informer, is maintainable ; and the judgment should 
be, that he recover the penalty, one-half to his own use, the other half 
to be paid into the treasmy of the town. Bradley v. Baldwin, 5 
Conn. 288. 

When a statute gives double the value of goods, by way of penalty, 
to be recovered in an action, the jury may find the value of the goods 
by their verdict, and the court may then double the amount in entering 
the judgment. Dygert v. Schench, 23 Wend. 446. And a general 
verdict will be deemed for single damages, unless the contrary appear. 
Id.; Cross v. UniUd States, 1 Gall. (C. C.) 26. But a verdict for the 
double or treble damages will be good, if expressly so found. Id. 
Double or treble damages may be waived, and an action brought for the 
recovery of single damages. Dygert v. Schenck, 23 Wend. 446 ; Starh- 
weather v. Quigley, 7 Hun (N. Y.), 26. 

We have seen {ante, 161, § 5), that, where an offense, created or made 
penal by statute, is in its nature single, one single penalty only can be 
recovered, though several join in committing it. If, however, the of- 
fense is in its nature several, each offender is separately liable to the 
penalty. Id.; Bex v. Clarke, Cowip. 610. And see Garrett r. Mes- 
senger, L. R., 2 C. P. 583 ; S. C, 10 Cox's C. C. 498 ; Zees v. Newton, 
L. R., 1 C. P. 658 ; S. C, 1 H. & R. 734. A statute giving a penalty 
against any person employing another to act as pilot not holding a 
license, authorizes the recovery of but one penalty against a party who 
has employed an unlicensed pilot, although such employment was re- 
peated for numerous ships. Sturgis v. Spofford, 45 N. Y. (6 Hand) 
446. So, under the provisions of an act to prevent extortion by rail- 
road companies, it was held that one penalty only could be recovered 
by the same person against a railroad company for all acts of extortion 
committed prior to the commencement of the action. Fisher v. New 
York Central, etc., B. B. Co., 46 N. Y. (1 Sick.) 644. But it is held 
that, under a statute which imposes a penalty of ten dollars upon everv 
kee])er of a toll-gate ordered by the inspectors to be thrown open, who 
shall not immediately obey such order, the party aggrieved is not 
limited to one penalty, but may recover the same for each and every 
offense. Suydam v. Smith, 52 N. Y. (7 Sick.) 383. It is to be ob- 
served, however, that in the case last cited the statute contained the 
words " for each offense," while in neither of the cases immediately 
preceding did those words occur in the act sued upon. 

The penalty recoverable from a national bank under the act of con- 
gress (see Revised Statutes [U. S.], § 5198), where a greater rate of in- 
terest than is allowed by law has been actually paid to, and received by 



PENALTIES. 165 

it, is twice the amount of the interest paid in excess of the legal rate, 
and not twice the amount of the entire interest. Brown v. Second 
National BoAik of Erie, 72 Penn. St. 209 ; Farmer i , etc., Nat. Bank 
V. Bearing, 1 Otto (U. S.), 29 ; Hintermister v. First Nat. Batik, 64 
N. Y. (19 Sick.) 212. The forfeiture of the entire interest, where more 
than lawful interest is received or reserved, attaches, and is enforceable 
only in actions brought to enforce the usurious contract. Id. 

§ 8. Costs. An informer on a popular statute is not entitled to his 
costs, imless they are expressly given to him by the statute, since the 
common law gives costs in no cases. Sedgwick v. Bichardson, 1 Lutw. 
200 ; S. C, 3 Lev, 37i. And see Bespuhlica v. Prior, 1 Yeates (Penn.), 
206. But where a statute gives a certain penalty to the " party ag- 
grieved," he is entitled to his costs by the statute of Gloucester. Bac. 
Abr., Actions qui tarn (T.) ; Jackson v. Calesworth, 1 Term R. 71 ; Tyt^ 
V. Glode, 7 id. 267. 

By statute 18 Eliz. c. 5, § 3, it is provided that, if any informer 
or plaintiff shall willingly delay or discontinue his suit, or be nonsuit, 
or shall have the trial or matter pass against liun therein by verdict or 
judgment of law, the defendant shall have his costs, charges and dam- 
ages. 

And on a hona fide, but not on a collusive compensation, the plaintiff 
may be also allowed a reasonable sum for his costs. Wood v. Johnson, 
2 W. Bl. 1157. 

§ 9. Compounding penalties. It has been held that a party may 
compound an action on a penal statute, which gives the whole penalty 
to the party aggrieved, -without leave of court. Anonymous, Lofft. 
155. But by the early English statute of 18 Eliz. c. 5, § 3, it is de- 
clared that no informer, or plaintiff, in any action popular, shall com- 
pound, or agree with the offender, without the order or consent of the 
court, in which the suit shall be depending. And the construction 
which has always been given to this statute has been, that it is in the 
discretion of the court to give leave to compound upon such terms as 
they shall think proper, under the circumstances of the case. Howell 
V. Morris, 1 Wils. 79; Bex v. Clifton, 5 Term Pt. 257; Burley v. 
Burley, 6 N. H. 200. And as a general rule, the court wiU require, 
as one of the terms of leave to compound, that the people's moiety of 
the penalty be paid ( Wood v. Ellis, 2 W. Bl. \\h^\ Brown v. Bailey, 
4 Burr. 1929) ; but, under special circumstances, leave to discontinue 
will be granted on payment of costs only. Bradway v. Le Worthy, 9 
Johns. 251. See, also, Wood v. Johnson, 2 W. Bl. 1157. 

It is only under very favorable circumstances, that leave to compomid 
after verdict will be given. 2Laughan v. Walker, 5 Term B. 98. 



166 PENALTIES. 

The defendant must show circumstances which might entitle him to 
such indulgence, Crowder v. Wagstaff, 1 B. & P. 18. 

Although the plaintiff in a qui tarn action may discharge the defend- 
ant, by receiving the amount of the penalty, after judgment {Caswell v, 
Allen, 10 Johns. 118), yet, he has no power to discharge the judgment, 
as to the people's moiety, without actual payment. Id. ; Minton v. 
Woodworth, 11 id. 47-1. 

Where, on a penal action, a part of the penalty was given to the poor, 
the court would not give the parties leave to compound, the overseers 
at a vestry having agreed to compound without receiving any part of 
the penalty. Hemson v. Spenze, 2 Smith (Eng.), 195. 

The plaintiff in compromising a penal action by consent, having by 
mistake abandoned a good cause of action, the court refused to inter- 
fere to rescind the order made thereon. Wright v. Stevenson, 5 
Taunt. 850. 

The parties to a qui tarn action may lawfully agree, the plaintiff to 
discontinue the suit, and the defendant to pay the costs ; for discontin- 
iiing is not compounding or compromising a popular action, nor is pay- 
ment of costs by the defendant a composition. Haskins v. Newconiby 
2 Johns. 405. 

In compounding an action on a penal statute which gave no costs, 
the crown was held to be entitled to a moiety of the sum agreed to be 
paid to the plaintiff for his costs ; for whatever the defendant may pay 
under the name of costs is considered, in fact, as an addition to the 
penalty. Lee v. Cass, 2 Taunt. 213. 



PLEDGE. 167 



CHAPTER CVIII. 

PLEDGE. 
AKTICLE I. 

OF PLEDGES IN GENERAL. 

Section 1. Definition and natnre. In the common law, a pledge, 
or pawn, may be defined to be a bailment of personal property, as a 
security for some debt, or engagement. Story on Bailm., § 286. In 
other definitions, the term "pledge" is limited to cases where a thing is 
given as a mere secm-ity for a debt. See Coggs v. Bernard, 2 Ld. 
Raym. 909, 913 ; 2 Kent's Com. 578. But it is clear that a pledge, or 
pawn, may well be given as security for any other engagement. Isaac 
V. ClarTc, 2 Bulst. 306 ; Story on Bailm., § 286. 

A mortgage of personal property in law differs from a pledge. The 
former is a conditional transfer, or conveyance of the property itself, 
and if the condition is not duly performed, the whole title vests abso- 
lutely at law in the mortgagee, exactly as it does in a mortgage of 
lands. See a/ate, Yol. 2, tit. Chattel Mortgage. But the latter, a pledge, 
only passes the possession, or at most is a special property in the thing 
with the right of retainer, until the debt is paid, or the engagement is dis- 
charged. Sims V. Canjield, 2 Ala. 555 ; Cortelyou v. Lansing, 2 Gaines' 
Gas. 200 ; Eastman v. Avery, 23 Me. 218 ; Belden v. Perhins, 78 lU. 
119, 151 ; Doak v. Bank of the State, 6 Ired. (N. G.) L. 309. A mort- 
gage is a pledge and more, for it is an absolute pledge to become an abso- 
lute interest, if not redeemed in a certain time. A pledge is a deposit 
of personal effects, not to be taken back, but on payment of a certain 
sum, by express stipulation, to be a lien upon it. Id ; Lucketts v. 
Townsend, 3 Tex. 119 ; Joius v. Smith, 2 Yes. Jr. 378. Another dis- 
tinction is, that, in the case of a mortgage of personal property, accord- 
ing to the current of the authorities, possession is not essential to create 
or support the title. Ante, Yol. 2, 165. But delivery, or a transfer oi 
custody, is absolutely essential to constitute a pledge, or pawn, of per- 
sonal property. Walcott v. Keith, 22 N. H. 196 ; First National Bank 
v. Nelson, 38 Ga. 391 ; Foltier v. Schreiher, 19 La. Ann. 17 ; Haskins 



16S PLEDGE. 

V. Patterson, 1 Edm. (X. Y.) Sel. Cas. 201. And, generally, when tliat 
custody is relinquished, the right of the pledgee is lost, or waived. 
Kimhall V. Hildreth, 8 Allen, 168 ; Daij v. Swift, 48 Me. 368. What 
constitutes a sufficient possession by the pledgee is sometimes a matter 
of much nicety. See Martin v. Reid, 11 C. B. {E. S.) Y30. But, in 
order to complete the pledge, it is not necessary that there should be 
an actual delivery of the chattel to the pledgee. It is sufficient if 
there be a constructive delivery. Tihhetts v. Flanders, 18 N. H. 284 ; 
Whitney v. Tihhits, IT Wis. 359. The property in the goods may pass, 
even though they remain in the possession of the pledgor, provided 
they do so by virtue of a contract between the parties, which makes 
the custody of the pledgor the custody of the pledgee. Meyerstein v. 
Barher, L. K., 2 C. P. 38 ; S. C, L. E., 4 H. L. 317, 336. And see Brm/jn 
V. Warren, 43 N. H. 430. Thus, where the master of a vessel pledged 
his chronometer with his owner, under a contract by which he was 
allowed to retain possession of it for the purpose of the voyage he was 
about to undertake, and the master subsequently disposed of the chro- 
nometer to another person, the pledgee was held to be entitled to 
recover it from the purchaser. Beeves v. Capper, 5 Bing. N. C. 1 36. 
So, in many cases, a symbolical delivery is held to be sufficient, a sym- 
bolical delivery being equivalent to such a constructive delivery as will 
complete a pledge. Thus, goods stored in a warehouse may be trans- 
ferred by a symbolical delivery of the key of the warehouse. Atkin- 
son V. Moling, 2 Term E.. 462. And see Whitaher v. Sumner, 20 
Pick. 405. 

As a general rule, in the case of a pledge of chattels, the mere de- 
livery of the cliattel is enough to vest in the pledgee the special prop- 
erty requisite to sustain the pledge. But incorporeal property, being 
incapable of manual delivery, cannot be pledged without a written 
transfer of the title. Debts, negotiable instruments, stocks in incor- 
porated companies, and choses in actions, generally, are pledged in that 
m(;de. WiUoJi v. Little, 2 N. Y. (2 Comst.) 443. The transfer of 
the title t(; these, like the delivery of the possession of chattels, constitutes 
the evidence of the pledgee's right of property in the thing pledged. 
Thus, the transfer in writing of shares of stock not only does not 
prove that the transaction is not a pledge, but the stock, unless it is ex- 
pressly made assignable by the delivery of the certificates, cannot be 
pledged in any other manner. Brewster v. Hartley, 37 Cal. 15. 

The delivery of certificates of stock to a creditor, as collateral secu- 
rity for a pre-existing debt, is held to be a pledge and not a mortgage, 
and the legal title passes to the pledgee. Hashroack v. Yandervoort^ 
4 Sandf. (N. Y.) 74. And the handing over of a bill of lading for an 



PLEDGE. 169 

advance under ordinary circumstances is said to vest the property 
in the goods in the pledgee, as completely as if the goods had been put 
into his own warehouse. Meycrstein v. Barher, L. E.., 2 C. P. 38. 
Such delivery of the bill of lading is considered as a constructive or 
symbolical delivery of the property. Petitt v. First National Bank^ 
4 Bush (Ky.), 334. 

The relation of broker and customer, under the ordinary contract, 
for a speculative purchase of stock, is that of pledgee and pledgor 
{Marhham v. Jaudon, 41 N. T. (2 Hand) 235 ; Baker v. Drake QQ 
N. Y. [21 Sick.] 518 ; 23 A.m. Rep. 80) ; and a sale of the stock by 
the broker under such contract, without notice to the customer of the 
time and place of sale, is a conversion. Id. 

One who has a contract for a pledge, ineffectual for want of deHvery 
of the goods, may obtain a subsequent delivery and thus validate the 
pledge, even as against an intermediate creditor. And nothing but 
the intervention of fraud, or the acquisition by a creditor of a specific 
right to a lien upon the thing pledged, will prevent the perfecting of 
the pledgee's right. Parshall v. Eggert, 54 N. Y. (9 Sick.) 18. A 
contract of this kind is not a chattel mortgage, and is not affected by 
tlie statute declaring unfiled chattel mortgages absolutely void as against 
creditors. Id. 

It is essential to the contract of pledge that the thing should be 
delivered as a security for some debt or engagement ; but it is imma- 
terial whether such debt or engagement is that of the pledgor, or of 
some other person. Story on Bailm., § 300. And a pledge, as 
well as a mortgage, may be made to secure an obligation not yet 
risen into existence. 2>' Wolf v. Harris, 4 Mas. (C. C.) 515 ; Wolf 
V. Wolf 12 La. Ann. 529 ; Hollrook v. Baker, 5 Me. 309. So, a 
thing may be pledged for a debt which the pledgee could not re- 
cover at law. King v. Green, 6 Allen, 139. 

Where a thing is pledged, it is immaterial whether the pledgee 
holds the property, or a third person holds it for him. If property of 
A is held by B and C jointly, A may assign the same in pledge to 
B or C severally, and the pledge will be good if both B and C have 
knowledge of the same, and assent to hold the property for the 
pledgee. Brown v. Warren, 43 X. H. 430. So, where property of 
A is already in the possession of B, for other purposes, it may be 
pledged by A to B to secure a particular debt or Hability, and in 
such case, no change of possession is necessary. Id. ; Parsons v. Over- 
mire, 22 111. 58. And if, after possession is taken, the property is 
left upon the premises of a third person, that is a sufficient continu 
Vol. v.— 22 



170 PLEDGE. 

ance of the possession as against a wrong-doer. Tibbetts v. Flanders^ 
ISX. II. 2Si. 

Taking a bill of sale of personal property, absolute in terms, but in- 
tended as collateral security, amounts only to a pledge, which is lost 
by giving possession of the property to the general owner, even though 
under restrictions as to the use of it. Walker v. Staples, 5 Allen, 
34. And see Kimball v. Hildreth, 8 id. 167. And where property 
is delivered by the owner to a creditor, in security for a debt, and an 
instrument is executed by the debtor by which he agrees that, if he does 
not return by a certain time to pay the debt, the creditor may dispose 
of the property to pay the demand, this is a pledge of the property 
and not a mortgage. The creditor, in such case, has only a special 
property in the goods. Brownell v. SawTcvns, 4 Barb. 491. 

§ 2. What may be pledged. Any valuable thing of a personal 
nature may by the common law be delivered in pledge. Thus jewels 
and plate {Kemp v. Wesibrook, 1 Yes. Sr. 278) ; money, debts, patent 
rights and manuscripts (Story on Bailm., § 290) ; negotiable instru- 
ments ( IVhite V. Phelps, 14 Minn. 27 ; Louisana State Bank v. 
Gaiennie, 21 La. Ann. 555) ; shares of stock ( Wilson v. Little, 2 N. Y. 
[2 Comst.] 443 ; Pinkerton v. Manchester, etc., R. B. Co., 42 X. H. 
424) ; and goods and chattels generally may be the subject of pledge. 
Coupon bonds payable to bearer being negotiable securities may be the 
subject of pledge. Morris Canal, etc., Co. v. Fisher, 9 N. J. Eq. 667 ; 
And so may a bond and mortgage. Campbell v. Parker, 9 Bosw. 
(N. Y.) 322. 

It is not indispensable that the pledgor should be the owner of the 
thing pledged. If pledged with the consent of the owner it is deemed 
sufficient, and • ••en without such consent, the thing may, as between the 
parties, be completely deemed a pledge, so that the pledgor himself 
cannot reclaim it, except on discharging the obligation. Story on 
Bailm., § 291 ; JarvisY. Rogers, 13 Mass. 105 ; S. C, 15 id. 389. 

Where a thing is pledged, the contract embraces not only the thing 
itself, but also, as accessory thereto, any natural increase of the thing. 
Thus if a flock of sheep are pledged the young which may afterward 
be born are also pledged. Story on Bailm., § 292. 

§ 3. What may not be pledged. At the common law there cannot 
be a technical pledge of proi)erty not then in existence or to be acquired 
Ijy the pledgor infaturo. Smithiirst v. Edmunds, 1 McCart. (N. J.) 
408, There may, however, be a contract for a hypothecation, so that 
as Hoon as the chattel sliall be ])rodnced the right of the pledgee will im- 
mediately attach to it. Thus, where it was stipulated by a brickmaker 
that the lessees of a brick yard should retain the bricks to be made as 



PLEDGE. 171 

security for tlieii* advances to the brickmaker, it was held that the 
bricks became pledged as fast as they were manufactured. Macomher 
V. Parker, 14 Pick. 497. See Goodenow v. Dunn^ 21 Me. 86. That 
the future product of a farm may be pledged as security for the rent, 
see Smith v. Atkins, 18 Vt. 461. 

Upon grounds of public policy the law prohibits the pay and emolu- 
ments of officers and soldiers from being put in pawn. Barwick v. 
Reads, 1 H. Bl. 627 ; 21eCarthij v. Goold, 1 Ball & B. 389 ; Lid- 
derdale v. Montrose, 4 Term R. 248. And no title to a pension cer- 
tificate can be passed by a pledge of it as security for indebtedness, as 
by act of congress such a pledge is wholly void. Moffatt v. Yam, 
Doren, 4 Bosw. (N. Y.) 609. But with these exceptions a debtor may 
pledge any of his property whether it consists of necessaries or other 
things. And where certain property is exempted from attachment or 
a sale on execution, such exemption does not divest the owner of the 
right to pledge it as security for the payment of his debts. In such 
a case the benefit of the exemption is waived by the owner as against 
the pledgee. Frost v. Shaw, 3 Ohio St. 270. 

§ 4. Who may pledge. In general all persons who possess the re- 
quisite capacity to contract may make a valid pledge. And, although 
the pledgor has but a limited title to the thing as for life, or for years, 
yet he may pledge it to the extent of his title, bnt when the title ex- 
pires, the pledgee must surrender it to the person succeeding to the 
ownership. Hoare v. Parker, 2 Term R. 376. As it regards nego- 
tiable instruments for money, the party who has a lawful possession 
of them, although he is not the owner, has generally the power of 
pledging them. Jarvis v. Rogers, 13 Mass. 105 ; 15 id. 389. But it 
would seem to be otherwise in respect to negotiable securities for goods, 
such, for instance, as bills of lading. See Story on Bailm., § 296. 

§ 5. Who cannot pledge. Persons under disabilities, as married 
women, idiots, lunatics, etc., are disqualified in this as in other cases of 
contract, and are, therefore, wholly unable to make a valid pledge. 
But a contract of pledge made by a minor is not void, but voidable 
only at the election of the minor. See Tucker v. Moreland, 10 Pet. 
(U. S.) 58. 

One holding stock as a trustee has, prima facie, no right to 
pledge it to secure his own debt growing out of a transaction independ- 
ent of the trust. Shaw v. Spencer, 100 Mass. 382; S. C, 1 Am. 
Rep. 115. 

§ 6. Who may he pledgee. Any person having a general capacity 
to contract may receive a pledge. But one who lacks the capacity to 



172 PLEDGE. 

make a valid pledge is also incapable of receiving one. See aiite^ v>. 171, 
§§ 4 and 5. 

§ 7. Rights of pledgor. In cases of mere pledge, if a time is fixed 
for the payment of the debt, and the debt is not paid at the time, 
the absolute property does not pass to the pledgee. See amte^ 167, § 1. 
The pledgee, failing to exercise his right to sell, still holds the property 
as a pledge, and, upon a tender of the debt, he may at any time be 
compelled to restore it, since the statute of limitations does not operate 
as a bar in such case. Story on Bailm., § 346 ; Jones v. Thurmond^ 5 
Tex. 318 ; Kemp v. Westhrook^ 1 Yes. Sr. 278. If no specified time 
of payment or redemption is fixed by the contract, but the pledge is 
merely to remain in the pledgee's hands to be returned upon payment 
of the debt, the pledgor has his whole life-time to redeem, provided 
the pledgee does not, in the mean time, call upon him to redeem. 
Cortelyou v. Lansing, 2 Caines' Cas. 200. See, also, Garlick v. James, 
12 Johns. 146. Nor does the right to redeem in such case expire with 
the pawnor's life ; but the right survives to his personal representatives. 
Vanderzee v. Willis, 3 Bro. Ch. 21 ; Perry v. Craig, 3 Mo. 516 ; Cortel- 
you V. Lansing, 2 Caines' Cas. 200. And if the pawnee dies before 
redemption, the pawnor may still redeem against his representatives. 
Com. Dig., Mortgage, B; Story on Bailm., § 458. 

If, at the time application is made by the pledgor to redeem, the 
pledge has been sold by the pledgee without notice to the former, an 
action may be maintained therefor without paying or tendering the 
debt {Stearns v. Marsh, 4 Denio, 227; Lewis v. Graham, 4 Abb. 
Pr. [N. Y.] 106) ; and the rule is the same, where the pledgee dispen- 
ses with a tender, as by refusing under any circumstances to restore the 
pledge. Cortelyou v. Lansing, 2 Caines' Cas. 200 ; Elliot v. Arm- 
strong, 2 Blackf. (Ind.) 198. But in such an action the pledgee may 
recoup the amount of the debt. Jarvis v. Rogers, 15 Mass. 389 ; 
Stearns v. Marsh, 4 Denio, 227. See post, 178, § 10. 

The owner has a right to sell or assign his property in the thing 
pledged (su])ject, however, to the rights of the pledgee), and upon a 
sale, the vendee will be substituted for the pledgor, and will be enti- 
tled to all the pledgor's remedies against the pledgee. Franklin , v. 
Neate, 13 M. & W. 481 ; Whitaker v. Sumner, 20 Pick. 399 ; 
Ratcliffe V. Vance, 2 Hop. Const. Ct. (S. C.) 239 ; Magee v. Toland, 
8 Port. (Ala.) 36 ; Erwim. v. Arthur, 61 Mo. 386. Thus, an action 
may be inaintained by tlie vendee against the pledgee, if the latter re- 
fuse to deliver the article on tender of the amount due, or if he be 
otherwise guilty of a conversion. Id. 

In general, if the pledge has been damaged by the default of the 



PLEDGE. 173 

pledgee, the owner is entitled to be recompensed to the extent of the 
damage sustained. But he is not entitled to compensation for an 
injury arising from accident, or from the natural decay of the pledge. 
Bee post, 178, § 10. 

§ 8. Bights of pledgee. It is a well-settled rule of law, that while 
the general property in the pawn remains in the pledgor, a special 
property therein passes to the pledgee. Jones v. Baldwin, 12 Pick. 
316; Belden v. Perkins, 78 111. 449. There is, however, no rule of 
law which limits or defines absolutely the special property of a pledgee, 
and his riglits and liabilities are rather to be determined from the 
terms, express or implied, of the contract between the parties. Still, 
it has been said that whatever special interest or estate in the pawn is 
necessary to enable the pledgee to exercise the rights guaranteed to 
him, or to discharge the obligations imposed on him by the contract, 
will vest in him. White v. PTieljps, 14 Minn. 2T. He is entitled to 
the exclusive possession of the pawn, during the time and for the ob- 
jects for which it is pledged ; and he may maintain this possession by 
an action against any one wrongfully interfering therewith. Wood- 
ruff \. Halsey,% Pick. 333; Gibson Y.Boyd, 1 Kerr (K B.), 150; 
Walcott V. Keith, 22 K. H. 196. He is entitled to the possession of 
the pawn notwithstanding a subsequent adjudication of bankruptcy 
against the pawnor, and his refusal to surrender it to the latter's as- 
signees is not a conversion of it. Yeatman v. Savings Institution, 95 
U. S. (5 Otto) 764. Even the delivery of the pawn back to the owner 
for a temporary purpose, as agent or special bailee for the pledgee, 
does not impair the title or possession of the latter as between the par- 
ties. Roherts v. Wyatt, 2 Taunt. 268 ; Macomher v. Parker, 14 
Pick. 497. Thus, where the pledgee of a bond delivers it to the 
pledgor for a particular purpose, as to be exchanged for stock, and to 
return the latter, and the pledgor converts the bond to his own use, 
the pledgee may maintain an action for the bond against the pledgor. 
Hays V. Riddle, 1 Sandf. (IST. Y.) 248. And see Thayer v. Pwighty 
104 Mass. 254 ; Cooper v. Ray, 47 111. 53. But if the pledgee vol- 
untarily places the pledge beyond his own power to restore it, as by 
agreeing that it may be attached at the suit of a third person, this will 
amount to a waiver of his pledge. Arendale v. Morgan, 5 Sneed 
(Tenu.), 704 ; Whitaker v. Sumner, 20 Pick. 399. xind see Barrett 
V. Cole, 4 Jones (N. C), 40 ; Way v. Davidson, 12 Gray, 466. 

A pledgor, by the act of pledging, impliedly engages that he is the 
owner of the property pledged ; and where the ownership of any part 
of it is not in him, he is liable to the pledgee in damages, if by reason 
of defective title it is taken from him. Mairs v. Taylor ^ 40 Penn. St. 



174 PLEDGE. 

446. So, if a party pledges to another goods which he does not own, 
and at the same tune makes deHvery of them, he is estopped from set- 
ting up a title to the goods subsequently acquired during the existence 
of tlie pledge, and the pledgee in such case may recover possession of 
them as against him or any party ]30ssessed without right. Goldstein 
V. Rort, 30 Cal. 372. 

The pledgee is entitled to be re-imbursed for the expenses incurred by 
him about the pledge, where they are necessary and proper for its pro- 
tection and preservation. See Story on Bailm., § 306a ; Pickersgill 
V. Brown, 7 La. Ann. 298. But a person, who has a lien upon a chat- 
tel for a debt, cannot, if he keeps it to enforce j)ayment, add to the 
amount for which the lien exists, a charge for keeping the chattel till 
the debt is paid. Somes v. Directors, etc., 8 H. L. Cas. 337. 

Ordinarily, and in the absence of any agreement or assent by the 
pledgor, the pledgee would have no right to use the thing pledged, and 
a use of it would be illegal. But, under special circumstances, depend- 
ing somewhat upon the nature of the pledge, and in all cases with the 
assent of the pledgor, express or implied, the property pledged may be 
used by the pledgee in any way consistent with the general ownership? 
and the ultimate rights of the pledgor. Lawrence y. Maxwell, 53 N. 
Y. (8 Sick.) 19. The pledgee may use the pawn, provided it be not 
the worse for it, if the keeping of it be a charge to him ; in recom- 
pense of which he may, for instance, milk a cow or ride a horse. 
T/wmjJson V. Patrick, 4 Watts (Pa.), 414. But he is answerable for 
damages caused by using it. Id. 

At the common law, the pledgee may deliver the pawn into the 
hands of a third person for safe-keeping without consideration. Inger- 
soU V. Van Bohkelin, 7 Cow. 670. Or he may sell or assign his special 
l)roperty in the pawn without impairing the original lien thereon, or 
gi ving the owner a right to reclaim it on any other or better terms 
than he could have done before such transfer. Thompson v. Patrick^ 
4 Watts (Pa.), 414; Bailey v. Colly, 34 K IL 29 ; WComliev. 
Davies, 7 East, 6, 7 ; Belden v. Perkins, 78 111. 449. Pie cannot, how- 
ever, alienate the property absolutely, nor beyond the title actually 
possessed by him, unless in special cases. Pickering v. Busk, 15 East, 
38 ; Bailey v. Colhy, 34 N. II. 29 ; Lucketts v. Toionsend, 3 Tex. 119. 
And this rule aj)plies to all property other than negotiable securities. 
But a party, by pledging negotiable securities, transferable by delivery, 
loses all right to the securities, when transferred l)y the pledgee, in 
good faith, to a third party, and the pledgee in such a case should be 
treated in the transaction as the agent of the owner, and the owner 
should be bound by liis acts in the premises. Coit v. Ih'mbert, 5 CaL 



PLEDGE. 175 

260 ; Jarvis v. Rogers, 13 Mass. 105 ; S. C, 15 id. 389. And it is 
held generally that where the pledgee parts with the pledge to a hona 
fide purchaser without notice of any right or claim of the pledgor, the 
latter cannot recover against such purchaser ^vithout first tendering him 
the amount due on the pledge. Talty v. Freedmari ."^ Sav. and Tnist 
Co., 93 U. S. (3 Otto) 321 ; Donald v. Suclding, L. E., 1 Q. B. 585. 
See Shaw v. Spencer, 100 Mass. 382 ; S. C, 1 Am. Eep. 115 ; McNeil 
V. Tenth National Banh, 4G X. Y. (1 Sick.) 325 ; S. C, 7 Am Eep. 
34:1 ; Sigourney v. Lloyd, S Barn. & C. 622 ; S. C, 5 Bing. 525. A 
sale of stock pledged as collateral security for a loan, by the pledgee to 
himself through a broker at the brokers' board, is, however, invalid ; 
and the bailment continues where the pledgor does not elect to treat 
such sale as a conversion. Bryson v. Rayner, 25 Md. 421: ; Baltimore, 
etc., I?is. Co. V. Dah-ymple, id. 269. 

The pledgee of collateral securities may exchange them without the 
consent of the pledgors, unless restricted by the express terms of the 
pledge ; but if loss result from the want of proper care and diligence, 
he is responsible to the pledgor for the extent of the injury. Girard, 
etc., Ins. Co. v. Marr, -16 Penn. St. 504. 

A pledge of commercial paper imphes an authority to the pledgee to 
collect the same at maturity. Nelson v. Wellington, 5 Bosw. (jST. Y.) 
178. And he may hold the money when collected in place of the note 
or evidence of debt, even though the debt on which the collateral secu- 
rity was given is not yet due. Jones v. Hawkins, 17 Ind. 550. So, 
if one pledges as collateral a demand on which interest is accruing at 
stated periods, some of which occur before his debt so secured becomes 
due, such debt necessarily implies an authority to the pledgee to collect 
and receive the interest as it becomes payable, and to hold it on the 
same terms as the demand itself for the principal. Especially is this 
the case where the debtor pledges as collateral a bond, with interest 
coupons attached, which he might detach before pledging the bond, but 
does not do it. Androscoggin R. R. Co. v. Aithurn Bank, 48 Me. 
335. 

One who discounts a draft, and receives therewith a bill of ladmg of 
goods deliveral)le to his order, acquires a special property in the goods, 
and may hold them as security for the acceptance and payment of the 
draft. Dows v. Nat. Exchange Bank, 91 U. S. (1 Otto) 618. 

If a pledgee repledges to another, the original pledgor cannot main- 
tain an action for the recovery of the pledge against the sub-pledgee 
without having paid, or being ready and willing to pay, the original 
debt, to secure which the pledge was given. Donald v. Suckling, L. 



176 PLEDGE. 

R., 1 Q. B. 585. See Halliday v. Eolgate, L. R., 3 Excli. 299 ; Jarvis 
V. Bogei's, 15 Mass. 389. 

The pledgee lias a right, at common law, to sell the pawn upon de- 
fault by the pledgor to comply with his engagement {Mauge v. Her- 
inghi, 26 Cal. 5TT ; Cortelyou v. Lansing, 2 Gaines' Gas, 204:; Ogden 
V. Lathrojp, 1 Sweeny [X. Y.], 643. See Marthi v. Beid, 11 G. B. [N. 
S.] 730) ; but a sale before such default would be a conversion. John- 
son V. Stear, 15 id. 330. And unless there is an express waiver in the 
contract between pledgor and pledgee, the latter must give to the 
former notice of the time and place of the proposed sale, and also de- 
mand payment of the debt. Genet v. Rowland, 30 How. (K. Y.) 360 ; 
S. G., 45 Barb. h^'^'^Mowry v. Wood, 12 Wis. 413 ; Parlcer v. Brancker, 

22 Pick. 40 ; Conyngham^s Appeal, 57 Penn. St. 474 ; Stevens v. 
Eurlbut Bank, 31 Gonn. 146 ; Baker v. Drake, ^<o N. Y. (21 Sick.) 518 ; 

23 Am.Rep. 80. If the pledgee sells the pledge fairly and pubHcly, he is 
not answerable for the loss from its sellmg for less than its estimated 
value. Ainsworth v. Bowen, 9 Wis. 348. See, also, Robinson v. Hur- 
ley, 11 Iowa, 410. And if he sells the pledge by the direction or ex- 
press consent of the pledgor, or if the latter knowingly accepts the pro- 
ceeds of the sale, he cannot object that the sale was not made in accord- 
ance with the law regulating the sales of pledged property. Hamilton 
V. State Bank, 22 Iowa, 306. But an improper sale by the pledgee, 
whereby the pledge brings less than it should, is a conversion, for which 
the pledgor may have damages, Ainsworth v. Bowen, 9 Wis. 348. 
The pledgee cannot himself become the purchaser, although the pawn 
be sold publicly, and he will still hold it merely as collateral. Mid- 
dlesex Bank v. Minot, 4 Mete. 325 ; Bryan v. Baldwin, 7 Lans. (N. 
Y.) 175; S. G. affirmed, 52 N. Y. (7 Sick.) 232. But in New York a 
special partner of a firm, with whom property is pledged, is not inca- 
pacitated from purchasing the pledge at a sale made by the firm, Lewis 
v. Graham, 4 Abb. Pr, (N. Y.) 106. 

In ordinary cases, no special agreement is necessary to confer on the 
pledgee power to sell tlie property pledged. The power is, ordinarily, 
incident to the j)ledge, Alexandria, etc., R. R. Co. v, Burke, 22 
Gratt. (Ya.) 254. But as an exception to this rule, it is held that the 
pledge of commercial paper as security for a loan of money does not, 
in the absence of a special power for that purpose, authorize the 
pledgee, upon the non-]xiyment of the debt, and upon notice to the 
pledgor, to sell the securities pledged either at public or private sale, 
but he is Ijound to hold and collect the same as the}' become due and 
apply the money to the payment of the loan. Wheeler v. Newhould^ 
16 N. Y. (2 Smith) 392. See, also, Lamlerton v. Windom, 12 Minn. 



PLEDGE. 177 

232 ; Fletcher v. Dickinson^ 7 Allen, 23. It Las, however, been held 
that the pledgee of a note which is not to mature until long after the 
principal debt, has implied authority, on default, to sell the note, and 
that he need not wait to collect it. Richards v. Davis, 5 Penn. Law 
Jour. Rep. 471. And see .Brightman v. Beeves, 21 Tex. 70. The subse- 
quent bankruptcy of the pledgor of a negotiable instrument does not 
deprive the pledgee of his right to dispose of it upon the pledgor's 
default. Jerome v. McCarter, 94 U. S. (4 Otto) 734. 

Where the contract between the parties does not require the pledgee 
to sell the pledge, he is not bound to sell, and, on failing to do so, he 
is not liable for the loss sustained by depreciation in the value of the 
pledge which may occur after the default. Rozet v. McClellan, 48 111. 
345. And see Robinson v. Hurley, 11 Iowa, 410; Badlam v. Tucker, 
1 Pick. 389; Richardson v. Insurance Co., 27 Gratt. (Va.) 749. 
So, it is held that formal notice of the time and place of sale is 
not necessary if the pledgor has actual knowledge. Alexandria, 
etc., R. R. Co. V. Bu7'ke, 22 Gratt. (Ya.) 254. And defects in the 
sale of a pledge may be ciu-ed by after ratification. Child v. Ilugg, 
41 Cal. 519. The right of the pledgee is strictly confined to a sale of 
the pledge. He cannot appropriate the property to himself upon the 
default of the pledgor, nor can he so appropriate it by any agreement 
with the pledgor, that upon such default the pledge shall be irredeean^ 
able. 2 Story's Eq. Jur., § 1008 ; Garlich v. James, 12 Johns. 146. 
Nor has he any right to retain the pledge after payment of the debt as 
a security for other demands. Jarvis v. Rogers, 15 Mass. 389 ; Bough- 
ton V. United States, 12 Ct. of 01. 331. 

The renewal of a note by the same parties is a mere change of evi- 
dence of indebtedness and in no way affects a pledge made to secure 
it. Ba7ik of America v. McNeil, 10 Bush (Ky.), 54. 

§ 9. Rights of third persons. The rights of third persons as 
affected by the contract of pledge has, to some extent, been noticed in 
the preceding section. Although, as a general rule, the pledgor can 
convey no greater right or title than he has, yet it is an established 
principle, that where the owner of property confers upon another an 
apparent title to, or power of disposition over it, he is estopped from 
asserting his title as against an innocent third party who has dealt with 
the apparent owner in reference thereto, witliout knowledge of the 
claims of the true owner. Gregg v. Wells, 10 Ad. & El. 90 ; McNeil 
V. Tenth National Bank, 46 N. Y. (1 Sick.) 325 ; S. 0., 7 Am. Rep. 
341. Thus, where the owner of bank shares delivers to his brokers 
to secure a balance of account, the certificate of the shares, indorsed 
with blank assignment, and irrevocable power of transfer signed and 
YoL. Y. — 23 



178 PLEDGE. 

sealed by himself, and the brokers, without his knowledge, pledge 
the shares with other securities for advances, one, who pays the ad- 
vances at the brokers' request, and, in good faith, receives from them 
the certificate of the shares and the other securities, is entitled to hold 
the shares as against the owner for the full amount of the advances 
remaining unpaid after the other secm'ities are exhausted. Id. See, 
also, LiUUx. Barlcer, 1 Hoffni. Ch. (N. Y.) 487. 

A person holding a pledge for the security of one debt due to him- 
self and another to a third person, and agreeing to dispose thereof to 
the best advantage and apply the proceeds to the payment of both 
debts, will be entitled, if the proceeds are insufficient to satisfy both 
deljts, to satisfy his own demand first and to apply the surplus to the 
other debt. Marshall v. Bryant^ 12 Mass. 321. But see Barrett v. 
Lewis, 2 Pick. 123. 

One who had fraudulently acquired certain stock, assigned it to a 
bank as collateral security for a pre-existing debt not contracted on the 
faith of such security, and it was held that the title of the bank to the 
stock was no better than that of the assignor and must yield to the 
title of the party from whom the stock was fraudulently obtained. 
Cleveland \. State Bank, 16 Ohio St. 236. 

State bonds deposited as security for money advanced are held as a 
pledge for the payment of the money. The transfer of such bonds 
by tke pledgee to a third party passes the debt which the bonds were 
given to secure, and a purchaser of the pledgee's claim after the trans- 
fer of the bonds is not entitled to recover the bonds or to collect the 
debt. Whitney v. Peay, 24 Ark. 22. 

§ 10. Action l)y pledgor against pledgee. A pledge is a bailment, 
which is reciprocally beneficial to both parties, and, therefore, the law re- 
quires of the pledgee the exercise of ordinary diligence in the custody and 
care of the goods pledged, and he is responsible for ordinary negligence. 
Commercial Bank v. Martin, 1 La. Ann. 344 ; St. Losky v. Davidson, 
f) Cal. 643; Goodall v. Richardson, 14 N. H. 567. If a pledge is 
stolen, the pledgee is not absolutely liable nor al)solutely excusable. If 
the theft is occasioned by his negligence, he is responsible ; if without 
any negligence, he is discharged, being bound for ordinary care, and 
answerable for ordinary neglect. Petty v. Overall, 42 Ala. 145. If 
the pledgee so confounds the property pledged with his own, that it 
cannot be distinguished, he must bear all the inconvenience of the con- 
fusion ; if he cannot distinguish and separate his own, he will lose it ; 
and if damages are given to the pledgor for the loss of his property, 
the utmost value will be taken. Hart v. Ten Eyck, 2 Johns. Ch. 62 ; 



PLEDGE. 179 

Ringgold v. Bvnggold^ 1 Har, & G. (Md.) 11. See Berlin v. Eddy, 
33 Mo. 426. 

It has been held that a, pledgee of ehoses in action pledged as col- 
lateral security, who has entered into an obligation to collect them, is 
not chargeable with a want of diligence. But he will be held account- 
able for all sums collected hy him through any agency employed 
therefor. Rice v. Benedict, 19 Mich. 132. 

A sale by a pledgee without authority, or for non-compliance with a 
demand which the pledgee has no right to make, or after a tender of 
the debt for which the pledge is held, is a conversion. Ilojye v. Law- 
rence, 1 Hun (N. Y.), 317. And see -4i>^o/l^?;^(?w5, 2 Salk. 522 ; Coggs 
V. Bernard, 2 Ld. Raym. 909, 916. And where a pledgee has sold 
the pledge without right to do so, no tender of the debt is necessary 
before suit brought by the pledgor for the conversion. The pledgee 
ha^ang voluntarily put it out of his ]30wer to restore the pledge, a ten- 
der would be fruitless, Dykers v. Allen, 7 Hill, 197; Read v. Lam- 
hert, 10 Abb. K S. (N. Y.) 428. But in order to lay the foundation 
for an action against a pledgee for the conversion of a thing pledged 
as security for a note payable on a fixed day, the debtor's offer and 
demand must be made on the day of maturity, though it is otherwise 
of an action to redeem. Butts v. Burnett, 6 id. 302. See McCalla 
V. Clark, 55 Ga. 53. 

A pledgor can maintain trover or case against his pledgee who sells 
pledged stock at private sale. Balthnore, etc., Ins. Co. v. Dalrymple, 
25 Md. 269. If a mechanic pawns a chattel that is put into his pos- 
session to be repaired, the owner may maintain trover against the 
pawnee, without tendering the sum for which it was ]3awned. Gallag- 
her V. Cohen, 1 Browne (Penn.), 43. And so, in the case of a carrier. 
Kitchell V. Yanadar, 1 Blackf. (Ind.) 356. And when property is 
pledged to save the pledgee from loss, as security for the pledgor, with 
an agreement that it shall become the property of the former, if he 
shall be obliged to pay the debt secured, he may be compelled to ac- 
count to the pledgor. Kingshuryv. Phelps, Wright (Ohio), 370. And 
a pledgee must account for the rents and profits, if any, of the thing 
pledged. Houton v. Ilolliday, 2 Murph. (N. C.) Ill ; Geroti v. 
Geron, 15 Ala. 558 ; Hunsaker v. Sturgis, 29 Cal. 142 ; Gihsoii v. 
Martin, 49 Yt. 474. But in rendering an account of the profits, the 
pledgee is at liberty to charge all the necessary costs and expenses to 
which he has been put, and to deduct them from the income or 
profits. Story on Bailm., § 343 ; 2 Kent's Com. 583. 

When the pledgee of a note hands it to the maker to be delivered 
to the payee, the pledgor, he thereby constitutes him his agent, and 



ISO PLEDGE. 

after an offer by such agent to deliver it to the payee, and a refusal 
to accept it, the latter cannot maintain an action against the pledgee 
for its conversion. Norman v. Rogers^ 29 Ark. 365. 

So, if the pawnor was a person other than the owner of the goods 
pawned, it is a good defense for the pawnee to show that he has de- 
livered the goods over to the real owner, unless the pawnor has a spe- 
cial property in the goods, which, in the particular case, he is entitled 
to assert against the owner. See Clieesmmi v. Excell, 4 Eng. Law & 
Eq. 440 ; Roberts v. Yarhoro, 41 Tex. 449 ; Smiley v. Allen, 13 Allen, 
465 ; Duell v. Cudlipp, 1 Hilt. (N. Y.) 166 ; Pitt v. Albritton, 12 
Ired. (N. C.) 77; Story on Bailm., § 340. 

Li case there is a total default to restore the thing pledged, on 
demand, the burden of accounting for the default lies upon the pledgee ; 
and failing therein, he will be deemed to have converted the pledge to 
his own use, and trover will lie. AnonyT/ious, 2 Salk. 655 ; Doorman 
V. Jenkins, 2 Ad. & El. 256 ; Tompkins v. Saltmarsh, 14 Serg. & E.. 
275. But when he has shown a loss by casualty, or by superior force, 
the law will not intend negligence, and the burden of proof is then 
shifted upon the plaintiff. Harris v. Packwood, 3 Taunt. 264; 
Marsh V. Home, 5 Barn. & C. 322 ; Foote v. Storrs, 2 Barb. 326 ; 
Piatt V. Hhbhard, 7 Cow. 500, note a. 

§ 11. Action Iby pledgee against pledgor. A creditor who has a 
pledge from his debtor is not confined exclusively to that security, but 
may, unless there is some agreement to the contrary, have his action. 
WJdtweU V. Brlgham, 19 Pick. 117. See, also, A7ion., 12 Mod. 564; 
Elder v. Rouse, 15 Wend. 218 ; Word v. Morgan, 5 Sneed (Tenn.), 79. 
And he may attach the identical property pledged to secure the debt. 
Arcndale v. Morgan, 5 id. 704. 

The pledgor, by the act of pledging, enters into an implied engage- 
ment that he is the owner of the property pledged ; and if he violates 
this engagement, either by a tortious or by an innocent bailment of 
property, not his own, or by exceeding his interest therein, he is liable 
in an action to the pledgee for damages. Mail's v. Taylor, 40 Penn. 
St. 446. So, the pledgor is in all cases bound to the exercise of good 
faith as it respects tlio nature or quality of the thing pledged, and if 
any fraud is practiced Ijy him, an action for damages will lie against him 
therefor. See Story on Bailm., §§ 355, 356. 

The pledgee may loan the pnjperty pledged, temporarily, to the 
pledgor, for a special purpose, and recover in trover if the property be 
not returned to him. Hation\. ^/vte^^, 51 III. 198. See, also, 6(9^er 
v. Jlay, 47 id. 53. And where the pledgee of a chattel is deprived of 
the possession thereof by the pledgor, equity will compel a re-delivery 



PLEDGE. 181 

of the chattel to the pledgee. Coleman v. Shelto7i, 2 McCord's (S. C.) 
Ch. 126. 

A pledgee with power to sell the goods and apply the proceeds on 
the debt does not forfeit his lien by employing the pledgor as agent to 
make the sale, allowing him to contract for it in his own name, and 
delivering the goods on his order to the purchaser. Thaijer v. Dwight^ 
104 Mass. 254. 

§ 12. Action by pledgor against third person. See ante, 172, § 7. 
By virtue of the general property in the thing j^awned, which remains 
in the pawnor, he may maintain an action against a third person for any 
injury done to the pawn, or for any conversion of it. See Pickering 
V. Busk, 15 East, 38 ; Smith v, James, 7 Cow. 328. Thus, if a third 
person comes into possession of the pawn under a wrongful title from 
the pawnee, the owner is entitled to recover it against such third person, 
and may hold him liable for damages. Id.; Ifewsom v. Thorton, 6 
East, 17; Dillenback v. Jerome, 7 Cow. 294. And one to whom a 
pledgee wrongfully delivers the pledge cannot avail himself of the fact 
that the owner is indebted to the pledgee, as a defense against the own- 
er s action. Felt v. Heye, 23 How. (N". Y.) 359. 

§ 13. Action by pledgee against third person. As the pledgee 
has a special property in the goods, he may, as well as the pledgor, 
maintain an action for their conversion. Dillenback v. Jerome, 7 Cow, 
294 ; Reese v. Harris, 27 Ala. 301. And he is entitled, against a mere 
stranger, to recover in such action the entire value of the goods. Brierly 
V. Kendall, 17 Ad. & El. (K S.) 937; Adams v. O'Connor, 100 Mass. 
515 ; S. C, 1 Am. Kep. 137 ; Ingersoll v. Van Bokkelin, 7 Cow. 670 ; 
Swire.Y. Leach, 18 C. B. (N. S.) 479. After satisfying his own lien he 
is a trustee of the general owner for the surplus. It follows that, if 
the pledgee sues first and recovers, a recovery by him is a bar to an 
action by the general owner. Bush v. Lyon, 9 Cow. 52 ; Nicolls v. 
Bastard, 2 Cr. M. &R.659; Marsden v. Cornell, 62 N. Y. (17 Sick.) 
215,222. 

If the pledge has been wrongfully taken possession of, and retained 
by the owner, or by some one acting under his authority, or with his 
assent, the pledgee is entitled to recover damages only to the amount 
of his lien. Lyle v. Barker, 5 Binn. (Penn.) 457 ; Nelsonx. Welling- 
ton, o^o&^. (N. Y.) 178; Benjamin Y. Streniple, 13 111.468. And 
in an action by a pledgee against a sheriiF for a conversion of goods 
pledged, the sheriff, who has seized them under a lawful writ in his 
hands, will be treated as in privity with the owner, the pledgor, provided 
he has pursued the law in making such seizure, and will be held only 
for the plaintiffs special interest in the goods ; but in any other event, 



1S2 PLEDGE. 

lie will be treated as a stranger, and held for their full value. Tread- 
'loell V. Dmls, 34 Cal. 601. 

Goods pawned are privileged from distress {Swii^e v. Leach, 18 C. 
B. [IN". S.] 479) ; and they cannot be taken from the possession of the 
pawnee in an action against the pawnor. Truslow v. Putnam, 4 Abb. 
Ct. App. 425 ; S. C, 1 Keyes, 568. But see Stief v. Hart, 1 N. Y. 
(1 Comst.) 20. And by statute in Massachusetts pledges may be at- 
tached and taken from the possession of the pledgee at the suit of a 
creditor of the pledgor. Fomeroy v. Smith, 17 Pick. 85. And see 
Briggs v. Walker, 21 N. II. 72. 

A bailee with whom a yoke of oxen are left " as a pawn or indem- 
nity " for the return of a hired horse may maintain detinue for them 
against any person who does not show a better title. Notes v. Mara- 
Ue, 50 Ala. 366. 

Where the pledgee authorizes the pledgor to sell the pledge and pay 
over the price to him, and the pledgor accordingly sells to a third per- 
son, who agrees to make payment to the pledgee, such purchaser is 
liable in an action by the pledgee for the whole price, and cannot set 
off a debt due him from the pledgor. Nottehohm v. Maas, 3 Hobt. 
(]^. Y.) 249. 

If the pledgor sells the property to a third person while it is in the 
pledgee's hands, and the pledgee refuses to give it up to the vendee on 
being tendered the amount of the debt for which it was pledged, the 
vendee may maintain trover against him. Ratcliffe v. Yance, 2 
Treadw. (S. C.) Const. 239. See, also, Btish v. Zyon, 9 Cow. 52. 

§ 14. Remedy in equity. We have seen {ante, 178, § 10), that the 
pledgor is entitled to his action at law after an improper sale by the 
pledgee, or after tendering the debt and demanding the pledge. See, 
also. Flowers v. Sproule, 2 Marsh. (Ky.) 56. But the existence of a 
legal remedy is not necessarily decisive against equitable jurisdiction, 
and numerous authorities may be cited for sustaining a bill in equity 
to redeem where an account is wanted, or where there lias been an as- 
signment of the pledge. See Kemp v. Westhroolc, 1 Yes. Sr. 278 ; 
Yam,der2ee v. TF/ZZ/.s-, 3 Bro. Ch. 21 ; Chapman v. Turner, 1 Call. 
(Ya.) 280 ; Hart v. TeiiEyeh, 2 Johns. Ch. 62 ; White Mountains B- 
11. Co. V. Bay State Iron Co., 50 IST. II. 57. And it has been held, 
that a court of equity may compel a specific delivery to the pledgor 
of a note or mortgage held by the pledgee after the payment of the 
debt to secure which such note or mortgage was pledged, on the ground 
tliat the retention of them by the pledgee was in violation of a trust. 
Brown v. Jtunals, 14 Wis. 693. And see Colemam, v. Shelton, 2 Mc- 
Cord's (S. C. Ch. 12G. 



PLEDGE. 183 

In general, tlie remecfy at law is, however, ample, by tender of the 
amount due and a possessory action to recover the articles pledged, or 
damages for their detention. And it is fully settled that the account 
on which equity bases its jurisdiction must be really one, that is, there 
must be a series of transactions on both sides. Padwich v. Hurst, 16 
Beav. 575 ; Porter v. Spencer, 2 Johns. Ch. 171. And see Yol. I, tit. 
Accounting. And an equitable action will not lie by the owner of se- 
curities pledged against the pledgee to redeem the same upon the set- 
tlement of the accounts between the parties and for an injunction 
against a sale of the securities by the defendant, unless the account on 
which the plaintiff relies for the equitable jurisdiction of the court 
is something more than one item on one side and a number of set-offs 
on the other. Durant v. Einstein, 35 How. (X. Y. ) 223, 240 ; S. 
C, 5 Eobt. 423 

§ 15. Redemption. See as to the right of the pledgor to redeem, ante, 
172, § 7. A default by the pledgor to pay the debt at maturity does not 
vest the property in the pledge in the pledgee. The pledgee's possession 
is not regarded as adverse to the pledgor, and does not bar his right to 
redeem unless it has continued for so long a time as to raise a presump- 
tion that the pledgor has relinquished his title in satisfaction of the debt. 
If the pledgee does not choose to exercise in a proper manner his ac- 
knowledged right to sell, he still retains the property as a pledge, and the 
pledgor's right to redeem continues. See id. ; Walter v. Smith, 5 B. 
<fe Aid. 139 ; Whelan v. Kinsley, 26 Ohio St. 131. And it has been 
held that the pledgor of bonds secured by mortgages may redeem the 
bonds after the lapse of fifteen years, notwithstanding the pledgee 
has foreclosed the mortgages. White Mountains Railroad v. Bay 
State Iron Co., 50 x^. H. 57. The pledgee may, however, acquire 
absolute property in the pledge by requirmg the pledgor to redeem 
and by his refusal. Qortelyou v. Lansing, 2 Gaines' Cas. 200 ; Jones 
V. Thurmond, 5 Tex. 318 ; ante, Yl% § 7. But notice to redeem a 
pledge is defective unless it allows a reasonable time for redemption. 
Genet v. HowloMd, 30 How. (J^. Y.) 360 ; S. C, 45 Barb. 560. 

Goods may be pledged to a creditor to be redeemed on pajTnent of 
the debt, and with liberty to the pawnee on failure of redemption, to 
sell them, pay himself, and account to the pawnor for the sm-plus. 
When the pawnee exercises this liberty, he becomes a trustee of the 
pawnor ; and the latter may at all times waive his right to redeem, if 
he is to have the surplus. Stevens v. Bell, 6 Mass. 339, 343. 

Where goods are pawned as seciu-ity for a running account it is not 
essential that the pawnor should tender the amount of account before 
filing a bill to redeem. Beatty v. Sylvester, 3 Nev. 228. If the pawnor 



184 PLEDGE. 

proffers to account with the pawnee, and pay whatever is found due on 
such accounting, and that proffer is refused, he may bring his complaint 
for accounting and redemption at the same time ; and if the pawnee 
has sold the goods he may have a decree for the balance due him from 
the proceeds of the sale. Id. 

"When a pawnbroker loans money upon property pledged, and the 
pawnor contracts to pay him more than the lawful rate of interest 
he may recover possession of the property by tendering the principal 
and lawful interest thereon, although the statute establishing the rate 
of interest in such cases only provides a penalty for, and does not pro- 
hibit the charging of more than lawful interest. Jackson v. Shcuwl, 
29 Cal. 267. 



PRINCIPAL AND SURETY. 185 



CHAPTER CIX. 

PRINCIPAL AND SURETY. 
ARTICLE I. 

OF PRINCIPAL AND SURETY IN GENERAL. 

Section 1. Definition and nature. The contract of suretyship is one 
in which the promisor becomes responsible for the debt or act of another, 
and is a collateral engagement for another as distinguished from an 
original and direct agreement for the parties' own act. Chitty on Cont. 
499. It is of the essence of the contract that tliere shall be a principal 
debtor. It is not, however, essential that he shall be absolutely bound, 
or that an action against him shall be maintainable. Thus, the surety 
is bound where the contract is voidable as that of a married woman 
{Maggs v. Ames, 4 Bing. 470 ; Connerat v. Goldsmith, 6 Ga. 14 ; St. 
Albans Bank v. Dillon, 30 Yt. 122 ; Davis v. Statts, 43 Ind. 103 ; 
13 Am. Rep. 382 ; Allen v. Berryhill, 27 Iowa, 534; 1 Am. Rep. 309 ; 
or of an infant {Conn v. Cohurn, 7 N. H. 368) ; or sometimes where the 
principal is not bound at all, as a contract executed without authority 
for a school district ( Weave v. Sawyer, 44 N. H. 198 ; State v. Wiley, 
15 Iowa, 155) ; or for a partnership. Stewart v. Bekm, 2 Watts (Penn.), 
356. So the defense of usury may be open to the principal and not to 
the surety. J/br/b?'^ v. Z)«m5, 28N. Y. 481. In such cases the promise 
is viewed rather as direct than as collateral. Harris v. Hunthach, 1 Burr. 
373 ; Buckmyr v. Darnall, 2 Ld. Raym. 1085. The surety would not 
be heard to deny the liability of his principal, and thus repudiate his 
own contract. But a surety is not bound if the contract is absolutely 
void, though he believed it to be valid. Evans v, Huey, 1 Bay (S. C), 
13. The relation of principal and surety may arise either by a direct 
contract to that effect, as where a surety by that name signs a bond or 
it may arise incidentally by operation of law from some other relation 
existing between the parties. Thus in the case of an accommodation 
acceptance or indorsement, there is an implied engagement on the part 
of the person requesting the accommodation that he will indemnify the 
acceptor or indorser against the bill. Dawson v. Morgan, 9 B. & C. 
618. No special form of words is necessary to create the contract. If 
Vol. v. — 24. 



186 PKINCIPAL AJ^D SURETY. 

the parties clearly manifest the intention, it is enough. Bell v. Bruen, 
1 How. (U. S.) 186. This agreement is not in its nature confined to 
any particular kind of contract, but may be by bond, covenant, or simple 
contract. Dane's Ab., ch. 169, 1. " The contract of suretyship imports 
entire good faith and confidence between the parties in regard to the 
whole transaction. Any concealment of material facts or any express 
or implied misrepresentation of such facts, or any undue advantage 
taken of the surety by the creditor either by surprise or by withholding 
proper information, will undoubtedly furnish a suflicient ground to in- 
validate the contract." Story's Eq., § 324. The relation of principal 
and surety continues after a judgment against them on the contract and 
is not merged. Curan v. Colbert, 3 Ga. 239 ; contra: FindlayN. Bank 
of U. S.,2 McL. (U. S.) U. The hability of the sm-ety on a bond is 
not terminated by his death, but continues against his representatives. 
Gi'een v. Young, 8 Me. 14. One cannot make himself a surety for 
another upon a written contract as between themselves without the 
latter's request or knowledge {Lathrojp v. Wilson, 30 Yt. 604 ; Warner 
V. Price, 3 Wend. [N. Y.] 397) ; as between the principal and surety, 
it is immaterial whether the creditor knew of, or was bound by their 
relations to each other. Irick v. Black, 17 JST. J. Eq. 189. "Where the 
contract has been entered into it cannot be changed by statute, jp'iel- 
den V. Lahens, 6 Blatchf. (U. S.) 524. An indorsee without notice can 
hold as principals all who appear as such in the contract. Murray v. 
Graham, 29 Iowa, 520. 

§ 2. Who are considered sureties. It follows from the definition 
given in the preceding section that every party to a contract, who can 
only be called upon to perform in event the person originally liable 
does not, is a surety. The question is not necessarily detei*mined by 
the words of the written contract. Thus, parol evidence may be 
ofiered that a signer of a note is a surety. Weston v. Charnherlin, 7 
Gush. (Mass.) 404; Holt v. Bodey, 18 Penn. St. 207; Zime Bock 
Bank v. Mallett, 34 Me. 547 ; Core v. Wilso7i, 40 Ind. 204 ; Hidjlard 
V. Gurney, 54 N. Y. 457 ; Paul v. Berry, 78 111. 158 ; BecUervaise v. 
Lewis, L. R., 7 C. P. 372 ; Darling v. McKean, 20 U. C. Q. B. 872 ; 
cmi/ra : McMillan v. Parkell, 64 Mo. 286 ; Walker v. Bank, 12 Serg. 
& R. (Penn.) 382. But he must also prove that the holder had notice. 
Murray v. Graha/rn, 29 Iowa, 520 ; Carpenter v . King, 9 Mete. (Mass.) 
511; lloge v. Lansing, 35 N. Y. 136. In some cases this notice is 
held effectual, even if given after the contract is made. Branch 
Bank v. Jamhes, 9 Ala. 949 ; Nichols v. Parsons, 6 N. H. 30 ; Main- 
gay V. Lewis, Ir, R., 3 C. L. 495 ; S. C, 5 G. L. 229 ; contra : Hoge 
V. Lansing, 35 N. Y. 136. But in Swire v. Redman, L. R., 1 Q. 



PKmCIPAL Ai^D SUKETY. 187 

B. D. 536 ; 17 Eng. R. 175, it is denied that the parties bound by the 
contract can change their relations to the creditor without his consent, 
as where one joint debtor attempts to assume the debt and leave his 
co-debtor as a surety only. Fensler \.Prather, 43 Ind. 119. A subse- 
quent agreement by a surety with the principal to share profits and 
losses does not make him a principal. Leiois v. Wright^ 3 Bush 
(Ky.), 311. 

In some cases knowledge of the relation is presumed, as where a hus- 
band and wife mortgaged the wife's lands to secure his debt, the cred- 
itor is presumed to know that the title was in her. Bank of Albion 
V. JBur7i^, 2 Lans. (JST. Y.) 52 ; S. C, 46 X. Y. 170. The position of 
the person's name on the note may be sufficient notice. It is more 
common in formal and carefully drawn contracts for the liability of 
each signer to be fixed by the instrument itself. Where one thus de- 
clares himself a principal he cannot prove that he is only a surety. 
Spring V. Bimk, 10 Pet. (U. S.) 257 ; Willis v. Ives, 1 Sm. <fe M. 
(Miss.) 307; Lcf/y- v. Hampton, 1 McC. (S. C.) 145. Presumptively 
the parties stand in the relation indicated by their position on the 
note. Whitehouse v. Hanson, 42 IN^. H. 9 ; Lathrop v. Wilson, 30 
Yt. 604. A surety who has agreed with the debtor to be the principal 
may re-establish himself as surety without the creditor's assent. Rem- 
sen V. Beekinan, 25 iST. Y. 552. A person who gives a mortgage to 
secure the note of another has the rights of a sm*ety. Cfiristntr v. 
Brown, 16 Iowa, 130. But where the note is liis own, he does not 
gain the rights of a surety, because a subsequent grantee of the land 
has agreed to assume the debt. Perkins \. Squier, 1 Sup. Ct. T. & 

C. (N. Y.) 620. Sm-eties on a collector's bond cannot deny that the 
principal was collector. Fake v. Whipple, 39 Barb. 339 ; S. C, 39 Is. 
Y. 394. 

§ 3. Of the contract of the surety. The contract of the surety is 
a collateral one so far as it concerns his habihty to the person with 
whom the original contract is made, but at the same time it is an orig- 
inal contract as between the principal and surety. Dawson v. Mor- 
gan, 9 B. & C. 618. There are three parties each with distinct rights 
and duties. The rights of the surety are essentially changed as soon 
as he has himself performed his contract with the creditor. There then 
remain only two parties, the principal and surety. The surety may 
then rely on his election on the implied promise of indemnity 
which the law raises or on an express promise given by the debtor 
jointly with another. Gibhs v. Bryant, 1 Pick. 118. The con- 
tract of the surety is governed by the same rules as other con- 
tracts. The minds of the parties must meet, the contract, if written, 



188 PKINCIPAL AND SUEETY. 

must be delivered, and tliere must be a sufficient consideration, A 
promise to pay a debt already incurred by another must have a new 
consideration, like forbearance to the maker {Elliott v. Geise, 7 Har. & 
J, [Md.] 457 ; Bailey v. Ereernan, 4: Johns. 280 ; Clark v. Small, G Y erg. 
[Tenn.] 418; Flagg v. Ui)ham, 10 Pick. 147; Ware v. Adams, 24 
Me. 177 ; Pulliam v. Withers, 8 Dana [Ky.], 98), unless the contract 
was made on the faith of his signature. Paul v. Stackhouse, 38 Penn. 
St. 302 ; NcNaugU v. McClaughry, 42 N. Y. 22 ; 1 Am. Eep. 487. 
It is not necessary that the consideration should move from the cred- 
itor to the surety. Morley v. Bootliby, 3 Bing. 113. It is enough if 
the principal receives a benefit, or the creditor suffers inconvenience or 
parts with something of value on the faith of the contract, and as an 
inducement to the surety to become bound for the principal. If the 
contract is made at the same time with the principal contract, one con- 
sideration supports both. Bailey v. Freeman, 11 Johns. (N.Y.) 221 ; 
DewolfN. Rabaud, 1 Pet. (U. S.) 500; Nelson v. Boynton, 3 Mete. 
(Mass.) 400 ; Bainhridge v. Wade, 16 Q. B. 89. So, where the con- 
tract is made with the party who receives a note at the time of its 
transfer, the consideration of the transfer will support the contract. 
Gillighan v. Boardman, 29 Me. 79 ; How v. Kemball, 2 McL. (U. 
S.) 103. The surety cannot set up a want of consideration as a de- 
fense where the principal could not. Dillingham v. Jenhins, 7 Sm. 
& M. (Miss.) 479. 

There must be a delivery of the contract if written, but if the surety 
executes the contract and gives it to the principal, the latter has au- 
thority to deliver it to the creditor, and no agreement between the 
surety and the debtor, of which the creditor has no knowledge, can 
limit this authority. See § 5. A surety may sometimes make himself 
liable as principal. Where one who has become surety for the price of 
goods, himself })urchases them of the principal, agreeing to pay for 
them, he becomes liable as principal. Williams v. Shelly, 37 N. Y. 
375. See article 3, § 13. It is not necessary that the surety's name 
should appear in the body of the contract, if he signs it. Potter v. 
State, 23 Ind. 550. Where the contract is for an indefinite period, a 
surety for the good conduct of another cannot terminate his liability 
by notice after one default. Coe v. Vogdes, 71 Penn. St. 383. A 
surety on a bond after payment is only a simple contract creditor of 
the principal. Copisv. Middleion, 1 Turn. <Sc R. 224 ; Jones v. Davids, 
4 Puss. 277 ; contra : Bohinson v. Wilson, 2 Mad. 434 ; Thompson v. 
Palmer, 3 Pich. (S. C.) Eq. 139. A judgment against the parties does 
not change their relations. Anthony v. Chapel, 53 Miss. 360 ; Ilughes 
V. Ilardisty, 4 L. & E. E.. (Ky.) 667. A principal and surety may be 



PKINCIPAL AND SURETY. 189 

both priueipals as to another surety. Smith v. Anderson, 18 Md. 520. 
Equity will interfere to reform the contract for the surety as well as the 
principal. Olmsted v, Olmsted, 38 Conn. 309. 

§ 4. Construction of the contract. The principles on which the 
contract is interpreted are identical with those applied to other con 
tracts. New Haven Bank v. Mitchell, 15 Conn. 206. The two leading 
rules are that the intention of the parties must govern, and that the 
parties must have been presumed to have intended to make a binding 
contract. Thus, as we have seen, a surety on a note, given by an infant 
or a married woman, is held. Lee Bank v. Satterlee, 17 Abb. Pr. (!N. Y.) 
6 ; Stevens v. Jackson, 4 Camp. 16-1. It is said that in such case if 
the person undertaking as siuety knows that the contract of the princi- 
pal debtor is void on account of his incapacity, he must be considered 
as incurring a principal, and not merely a collateral obligation. He 
undertakes to secure payment to the creditor, notwithstanding the mi- 
nority or coverture of the defendant might protect him from payment. 
Burge on Sureties 6. But if he has any i-emedy against the principal, 
which he may have, although the creditor has not {Conn v. Coburn, 7 
X. H. 368), he is a surety, for the creditor, by a release even of a note 
which he could not enforce, might discharge the surety. Sureties are 
never held responsible beyond the clear and absolute terms and mean- 
ing of theu* undertakings, and presumptions and equities are never 
allowed to enlarge, or in any degree to change their legal obligations. 
Leggett v. Humphreys, 21 How. (U. S.) QQ ; Field v. Rawlings, 6 111. 
(1 Gilm.) 581 ; Manufacturers' Bank v. Cole, 39 Me. 188 : Blair v. 
Perpetual Ins. Co., 10 Mo. oh^',Walsh v. Bailie, 10 Johns. (K. Y.) 
180; Stall V. Hance, 62 111. 52. But if the creditor has acted to his 
own detriment, with the consent of the sm'ety, as by advancing money 
on the faith of one interpretation, that will prevail. Bell v. Bruen, 
1 How. (U. S.) 186 ; Tatum v. Bonner, 27 Miss. 760. The contract 
is construed, if not strictly, at least acciu-ately. Bigelow v. Benton, 
14 Barb. (N. Y.) 123 ; Ryan v. TrusUes, 14 111. 20 ; Fisher v. Cutter, 
20 Mo. 206 ; New Orleans Canal Co. v. Hagan, 1 La. Ann. 62. Thus 
a guaranty of notes or debts of a certain person not only does not ex- 
tend to his notes given jointly with another {Russell v. Perkins, 1 
Mason (U. S.), 368), but if he changes his business so as to change the 
liability from that which it was intended to guard against, it would 
seem that the contract ceases. Wright v. Russell, 3 AVils. 530 ; Pry v. 
Davy, 10 A. & E. 30. It is still more evident that a note paid by the 
principal cannot be again revived and put in circulation by any agree- 
ment to which the sm-ety is not a party. Chapman v. Collins, 12 
Cush. 163. Where a new note is given in payment of the old, the 



190 PKmCIFAL AND SUEETY. 

creditor cannot hold the old note as collateral to the new, in order 
to preserve a remedy against a surety on the old note. Barnett 
V. Beed, 51 Penn. St. 190. "Where the hability assumed is joint 
only, the liability terminates at the surety's death. New Haven 
Co. V. Hayden, 119 Mass. 361 ; Wood v. Fish, 63 N. Y. 245 ; 2 
Am. Kep. 528 ; Pickersgill v. Laliens, 15 Wall. (U. S.) 140. But 
where the surety on a bond bound himself and his executors, they 
were held liable after his death. Boyal Ins. Co. v. Davies, 40 Iowa, 
469 ; 20 Am. Hep. 581. Where one is surety to a bank for ad- 
vances made to a partnership, the liability ceases if one partner dies, 
although the contract read for the firm or the survivors of it. Pember- 
ton V. Oahes, 4 Russ. 154. It covers only bills then discounted. Hol- 
land V. Teed, 7 Hare, 50. A note lodged as security for drafts to be 
drawn was held not to be a continuing security, but to cover only drafts 
to its amount. Agawam Bank v. Strever, 16 Barb. 82. A surety 
for a bond for advances generally is liable only to the amount of its 
penalty. Ex ^yarte Bushforth,\^NQ%. M)'d. Where the signer adds 
"surety 90 days from date," he warrants the solvency of the payor for 
that time only. Ulmei' v. Reed, 11 Me. 293. A surety on a lease is 
not liable for rent which accrues where the tenant holds beyond the 
term. Kennebec Banh y. J'«^r;ie/', 2 Green (Me.), 42. A bond given 
by an officer whose term is one year runs till his successor is qualified. 
Omro v. Kaime, 39 Wis. 468. Where one becomes surety for the re- 
payment of a loan made by a loan society, a rule of the society that 
notice shall be given if the borrower is behind in his payments forms 
no part of the contract. Price v. Kirhham, 3 H. & C. 43Y. 

§ 5. Yalidity of the contract. Any fraud upon the surety to 
which the creditor is a party will make the contract voidable by him. 
Story's Eq.,§§ 324, 325 ; Garner v. McGowen, 27 Tex. 487. All facts 
material for the surety to know must be disclosed. It is not neces- 
sary tliat the concealment should be willful. Bailton v. Mathews, 10 
C. & r. 934 ; Hamilton v. Watson, 12 id 109. The creditor nmst 
make a full, fair and honest communication to the surety of all 
circumstances calculated to influence the discretion of the surety. If 
he has reason to supjDose that the surety was induced to sign by fraud, 
he must inquire. Owefi v. Homun, 3 Mac. & G. 378 ; S. C, 4 H. 
L. Cas. 997. 

It is the duty of the party taking a guaranty to put the surety in 
possession of all the facts likely to affect the degree of his responsibil- 
ity. Pidcock V. Bishoj), 3 B. & C. 605 ; S. C, 5 Dow. & Ry. 505. 
Thus, where a guaranty was given for the price of a large amount oi 
iron, and the buyer had agreed to pay more than a fair price, the ex- 



PRINCIPAL AND SURETY. 191 

cess to go on an old debt, the surety can escape. Jackson v. Duchaire, 
3 T. R. 551. Where the fraud charged was misrepresentation, it must be 
of matters of fact, not of opinion, or of law. Heed v. Sidener, 32 
Ind. 373 ; Evans v. Keeland^ 9 Ala. 42. A mere expectation that a 
third person would also sign, or that securit}'^ would be given to such 
third person, is not enough. He must stipulate that the paper shall 
not take effect till these things are done. Martin v. Siribling, 1 Speer 
(S. C), 23 ; Cooler v. Evans, L. R., 4 Eq.45 ; York Ins. Co. v. Brooks, 
51 Me. 506 ; Blackwell v. State, 26 Ind. 204 ; Smith v. Moberly, 10 
B. Monr. (Ky.) 266. "Where the surety signs Avith an express agree- 
ment that certain other persons shall also sign, and it is delivered with- 
out their signatures, it is not the contract into which he intended to 
enter. Evans v. Bremridge, 2 Kay & J. 174 ; Traill v. Gihhons, 2 
F. & F. 358; Goffv. Bankston, 35 Miss. 518; Perry v. Patterson, 
5 Humph. (Tenn.) 133. But the sm*ety may not be at liberty to make 
this defense. Thus, where he has intrusted the principal with the 
contract he cannot deny or restrict his authority to deliver it to the 
creditor, who had no notice of any restriction. York Ins. Co. v. Brooks, 
51 Me. 506 ; Dixon v. Dixon, 31 Yt. 450; Beesley v. Ilarailton, 50 
111. 88 ; Deardorff v. Foresman, 24 Ind. 481 ; Merriam v. Rockwood, 
47 N. H. 81 ; Terrell v. Hunter, 21 Mo. 436 ; Simpson v. Bovard, 74 
Penn. St. 351. An intentional misapplication of the proceeds of the 
note or other fraudulent dealing with the contract may prevent it from 
taking effect as a binding contract. Thus, a surety, who binds himself 
for the repayment of a sum of money to be advanced in cash, is not 
holden, if part only is in cash and the rest the payment of an old debt. 
Mc Williams v. Mason, 31 N. Y. 294 ; Ham v. Greve, 34 Ind. 18 ; 
Jackson v. Duchaire, 3 T. R. 551. Where the note was given for 
goods purchased and it was agreed that the proceeds of their sale 
should go upon the note, the proceeds are held for that purpose and 
cannot be diverted to other debts due from the principal to the creditor. 
MelUndy v. Austin, 69 111. 15. But the creditor may use the note in 
a different way from what the surety expected, if there was no restric- 
tion upon his right, or by pledging it or applying it to an old debt. 
Bank v. Joyner, 33 Yt. 481 ; Bi^owning v. Fountain, 1 Duv. (Ky.) 
13. 

Where the bond was left with the principal to be delivered on a cer- 
tain day on the payment of a sum of money, he may waive payment 
on that day and deliver it afterward. luke v. Leland, 6 Cush. (Mass.) 
259. A surety cannot set up want of consideration as a defense -where 
the principal could not. Dillingham v. Jenkins, 7 Sm. & M. (Miss.) 
479. Where the contract was illegal the surety was allowed to plead 



192 PKmCIPAL AXD SURETY. 

it, altliougli the principal debtor could not. Dennison v. Gibson, 24 
Mich. IS 7. 

He has been allowed to defend on the ground that the note was 
illegal as given to one creditor for an excessive percentage on a compo- 
sition {Clarlie v. Ritchie, 11 Grant's (U.C.) Ch. 499; McKewmi v. San- 
derson, L. E., 20 Eq. 65 ; 13 Eng. R. 611), or was void as given for 
liquor illegally sold even though the surety was amply secured. Nourse 
V. Pope, 13 Allen, 87. But where a surety who is indemnified intends to 
avoid the contract on the ground of fraud, he must give up his security 
and act promptly. Btedman v. Boone, 49 Ind. 469. Sureties on an 
appeal bond may deny the legality of the appeal. Wai'd v. Syrae, 8 
N. y. Leg. Obs. 95. A surety on a note given for goods sold by an 
administrator at a simulated and fraudulent sale may avoid his con- 
tract. Ti'ainmell v. Swan, 25 Tex. 473. An agreement to pay and 
the payment of illegal interest is no defense. Davis v. Converse, 35 
Yt. 503. The surety, by signing, warrants that there is a valid con- 
tract ; all defects in the note as well as the solvency of the owner are 
covered. Purdy v. Peters, 35 Barb. 239 ; Smith v. Marsack, 6 M. G. 
& S. 486 ; Cabot Bank v. Morton, 4 Gray, 156. He cannot even deny 
the genuineness of other signatures. Codwise v. Oleason, 3 Day (Conn.), 
12 ; State v. Pepper, 31 Ind. 76. A surety on a bond for the honesty 
and fidelity of an officer or servant has a right to be informed whether 
the principal obligor has ever failed in these respects before. Phillips 
v. Foxall, L. R., 7 Q. B. ^m ; 3 Eng. R. 259. But the obligee must 
first know of such default and it is not enough that he is ignorant by his 
own gross negligence. Tapley v. Martin, 116 Mass. 275 ; Atlas Bank 
V. Brownell, 9 R. I. 168 ; 11 Am. Rep. 231 ; Black v. Ottoman 
Bank, 15 Moore's P. C. 472 ; Farmington v. Stanley, 60 Me. 472. 
Where the statute forbids the directors of a bank to sign the cashier's 
bond, his obligation to indemnify others against loss is void. Jose v. 
Iletoett, 50 Me. 248. If the bond is not signed by the person who is 
named in it as principal, it does not take effect and is void. Bean v. 
Parker, 17 Mass. 591; contra: Williams v. Marshall, 42 Barb. 
524. This would apparently depend upon the question whether it 
was delivered in its imperfect state by the authority of the surety. If 
it was delivered by him, he could not deny its validity. If it was not, it 
would be an imperfect contract and would carry on its face notice of 
the imperfection and could not be enforced by any holder. 



PKINCIPAL AND SURETY. 193 



ARTICLE II. 

OF THE EIGHTS AND LIABILITIES OF THE PRINCIPAL. 

Section 1. In regard to the surety. The principal has the right 
to do any thing which, on a fair construction of the contract, was con- 
templated by the parties. We must look to the contract which is 
implied between him and the surety. This is in substance that he 
will perform his contract with the creditor. The surety cannot com- 
plain unless some act is done which injures him. In all other respects 
the principal and the creditor may deal together as they please. Thus, an 
extension of the time of payment made for the benefit of the surety or 
with his knowledge and consent, does not discharge him. Wright v. 
Storra, 6 Bosw. 600 ; S. C, 32 N. Y. 691 ; First Nat Bank v. Whit- 
man^ ^^ 111. 331. It is no defense for a surety on a note that the 
principal got it discounted by a different person from the one to whom 
he had agreed to sell it, Briggs v. Boyd, 37 Yt. 534 ; contra : Perhins 
V. Ainent, 2 Head (Tenn.), 110. Although a conveyance made by a 
principal fraudulently and with the view of injuring his surety will be set 
aside, yet the debtor has a right fairly to convey his property to satisfy 
a debt -roithout the sm'ety's consent. Findlay v. Bank of U. S., 2 Mc- 
L. (U. S.) 44. The debtor cannot inquire into the validity of the note 
given by the surety to the creditor in payment of the debt. Hardin 
V. Bra/nner, 25 Iowa, 364. He cannot pay a debt which is baiTcd by 
the statute of limitations without the consent of his co-principal 
and then claim contribution from him. ElUcott v. Nichols, 7 Gill (Md.), 
85. He may adjust the price of chattels which he delivers to the 
creditor in payment and the price will bind the surety. Bryant v. 
Croshy, 36 Me. 562. 

He cannot purchase and hold property of the surety sold on execu- 
tion issued on a judgment recovered for the debt. Berry v. Yai-'hrough, 
3 Jones' (N. C.) Eq. QQ. He cannot claim that an execution against 
them both shall be levied on the chattels of the sm-ety rather than on 
his own improved land. Kendrick v. Rice, 16 Tex. 254. He may 
waive his right to object to a defect in the title of land purchased by 
him, and his surety for the purchase-money cannot complain. Ross v. 
Woodville, 4 Mimf . (Ya.) 324 ; Commissimier v. Robinson, 1 Bail. 
S. C.) 151, But the surety may always inquire into the good faith of 
any arrangement between his principal and the creditor. United States 
v. Boyd, 5 How. (U. S.) 29. The debtor has no interest in an equita- 
ble set-off which the surety has against the creditor. Moore v. Moore, 
17 Ala. 631. If a surety pays part of the debt, he cannot, at law, 
YoL. Y.— 25 



19i PRINCIPAL AND SURETY. 

control it as against his principal. Bridges v. Nicholson^ 20 Ga, 90. 
The surety may claim sums of usurious interest paid by his principal 
as credits. Head v. McDonald, 7 T. B. Monr. (Ky.) 203. Where a 
mortgage is given to secure a debt and also to secure a liability as 
surety, it must be applied pro rata. Moore v. Moherly, 7 B. Monr. 
(Ky.) 299. Where the principal puts notes in the surety's hands to 
collect and apply the proceeds to the debt, the arrangement is binding 
and he cannot revoke it. 3fandigo v. Mandigo, 26 Mich. 349. 

§ 2. lu reference to the creditor. The principal is, of course, the 
person who should ]3erform the contract. He has no right to require 
any act of the creditor which will affect the surety. The addition of a 
surety does not affect in any way the contract between him and the 
creditor, unless it be to restrain him from acts which might work a 
fraud on the surety or the creditor. Thus, it has been held that a 
transfer of his property by the principal to the surety to secure him, 
inured to the benefit of the creditor. It is a conveyance on good con- 
sideration and might otherwise make the contract of suretyship the 
means of depriving the creditor of his remedy against the debtor. 
Owens V. Miller^ 29 Md. 144 ; Van Orden v, Durham, 35 Cal. 136. 
It is no objection to a bill in chancery against the principal that there is a 
remedy at law against the surety. Middletoion Bank v. Ritss, 3 Conn. 
135. The principal cannot recover back from the creditor usury 
which has been paid by the surety, although after payment he has 
re-imbursed the surety in specific property. Whitehead v. Peck, 1 Ga. 
140. A release of the surety by the creditor does not affect the prin- 
cipal, even after a judgment against both. Mortland v. Jlimes, 8 
Penn. St. 265. 

§ 3. Ill reference to third persons. The rights of the principal to 
deal with third persons are unimpaired, unless his dealings with them 
destroy the identity of the contract. Thus, if the guaranty is of the 
responsibility of a person, it does not cover his dealings as a member of 
a firm of which he afterward becomes a partner. Bellairs y. Ebs- 
worth, 3 Camp. N. P. 52 ; Russell v. Perkins, 1 Mas. (C. C.) 368. 
So, if there are several principals whose solvency is guaranteed, and 
one dies, the engagement ceases, unless it is clearly provided to the 
contrary. Simson v. Cooke, 1 Bing. 452 ; 8 Moore, 588 ; Kipling v. 
Turner, 5 B. & Aid. 261; Creynery. liigginson, 1 Mas. (C. C.) 323. 
The fact that others sign the note or contract as sureties, or that a stranger 
guarantees it, is immaterial. Williams v. Covilland, 10 Cal. 419. But 
adding a new principal alters the contract and discharges the principal. 
Henry v. Coats, 17 Ind. 161. One who signs as surety without the 
assent of the debtor, cannot i-ecovcr from him the costs of an action 



PUmCIPAL AND SUEETY; 195 

against liimself by the creditor, but between him and the creditor all 
rules as to sureties apply. Talmage v. Burlingame^ 9 Penn. St. 21. 

One to whom a note is pledged by the holder cannot sue on it after 
the debt is paid without the holder's consent. Neponset Bank v. Le- 
land, 3 Mete. (Mass.) 259. "Where new parties give a bond to pay the 
note and save the payor harmless, they become principals and he a 
a surety. Bishoj) v. Day, 13 Yt. 81. 



ARTICLE III. 

OF THE RIGHTS AND LIABILITIES OF THE SURETY. 

Section 1. lu general. As the surety has no part in the principal 
contract and gains no advantage from the contract, he has a right to 
demand that liis rights and interests shall be scrupulously respected and 
that he shall not be called upon for payment unless the creditors ex- 
haust the securities he holds from his debtor and his remedies against 
him, or transfers those remedies to the surety. In most cases the law 
itself effects this transfer by the principle of subrogation, of which we 
shall treat hereafter. If there are no securities, or if the surety does 
not choose to avail himself of them, he may call upon the principal to 
repay to him all money which he has reasonably paid out in consequence 
of his position as surety, including the principal debt, interest, costs and 
expenses. The result should be that the surety at the end should stand 
in the same position as when he entered into the contract, without loss 
or injury. The surety has a right to demand the utmost good faith in 
all the dealings of the creditor and principal. Story's Eq., § 321, says 
that if the creditor does any act injurious to the surety, or inconsistent 
with his rights, or if he omits to do any act when required by the surety 
which his duty enjoins him to do, and the omission proves injurious to 
the surety, in all such cases the latter will be discharged and he may 
set up such conduct as a defense to any suit brought against him, 
if not at law, at all events in equity. King v. Baldwin, 2 Johns. Ch. 
554 ; Boulthee v, Stubhs, 18 Yes. 23. Sureties are also entitled to 
come into a courc of equity after the debt has become due, to compel 
the debtor to exonerate them from liability by paying the debt. JVis- 
het V. S7nith, 2 Pro. Ch. 579 ; Ti/so?i v. Cox, 1 Turn, ct R. 395. And it 
has been said that a surety, when the debt has become due, may, in 
equity, compel the creditor to sue for and collect the debt of the prin- 
cipal, at least if he will indemnify the creditor against the risk, delay 
and expense of a suit. Hayes v. Ward, 4 Johns. Ch. (N. Y.) 123 ; 
WHght V. Simjyson, 6 Yes. 731 ; Bishop v. Day, 13 Yt. 81 ; Dane 



196 PRINCIPAL AND SURETY. 

V. Cordnan, 24 Cal. 157. He may compel the creditor to prove 
nis debt in bankruptcy. £x parte Rushforth^ 10 Yes. 409 ; Wright 
V. Sinvpson, 6 id. 734. 

The creditor is always boimd in conscience, although he is seldom 
bound by express contract, as far as he is able to put the party paying 
the debt upon the same footing with those who are equally bound. 
Stirling v. Forrester^ 3 Bligh, 490; Story's Eq., § 493. The creditor 
cannot recover from the surety the costs of a fruitless suit against the 
debtor, unless it was in some way authorized by the surety. Best, C. 
J., in Baker v. Oarratt, 3 Bing. 56. The surety may always inquire 
into the good faith of any settlement between his principal and the 
creditor. United States v. Boyd, 5 How. (TJ. S.) 29. A person, who 
by arrangement with the principal assumes the principal liability, may 
resume his original liability without the consent of the creditor. Retn- 
sen V. BeeJcman, 25 N. Y. 552. A court of equity will not enforce a 
liability upon a surety who has been discharged at law without 
fraud. Leffingwell v. Freyer, 21 Wis. 392, "Where land has been 
conveyed to the surety as indemnity, the creditor does not bind himself 
to regard him as surety by dealing with him as the owner of the land, 
nor thereby assent to any change in the relative situation of the par- 
ties. Willia^n and Mary College v. Powell, 12 Gratt. (Ya.) 372. 

§ 2. Liability to third persons. The surety may become indirectly 
liable to persons who are not parties to the contract. Thus, one who 
became bail, taking indemnity for stay of an execution on a judgment, 
which had been entered jointly against two, one of whom is named on 
the record as surety, and does this solely at the request of the principal, 
and at the expiration of the stay the surety is compelled to pay the 
judgment, he is entitled to be subrogated to it as against the bail to 
obtain re-imbursement. SchnitzeVs Appeal^^Si Penn. St. 23. Where 
the surety had fraudulently conveyed his property and the creditor had 
the sale set aside and seized the pro])erty and applied it on his debt, the 
grantee cannot claim securities which the principal or surety hold to re- 
imburse him for the loss of the land. State Banh v. Davis, 4 Ind. 653. 
The surety on a negotiable note cannot be considered as intending to 
limit its use to tlie payee and be his debtor alone. Smith v. Moherly, 
10 B. Monr. (Ky.) 206. If a stranger pay the amount due on a bond to 
the obligee at the request of the principal obligor, there will be no im- 
plied assumpsit by the surety in favor of the person paying the bond. 
Elmendorph v. Tappen, 5 Johns. (N. Y.) 176. If a person engages to 
be responsible to A for goods delivered by him to the principal, he is 
not responsible to a third person who delivers them at A's request. 
Walsh V. Bailie^ 10 Johns. (N. Y.) 180. Where special bail of the 



'PRINCIPAL AND SURETY. 197 

principal debtor pay the debt, tliey cannot recover the amount paid of 
the surety. Smith v. Bing, 3 Ohio, 33. The surety cannot claim that 
a sum paid generally on an execution for part only of which he is liable, 
shall be apportioned between the parts of the debt. James v. Malone^ 
1 Bailey (S. C), 33J:. There is no privity between the sm-eties on a 
constable's bond and the creditor. Rutland v. Paige, 24 Yt. 181. 
"Where a mortgagor sells his equity of redemption and the purchaser 
covenants to pay the mortgage note as part of the consideration, this 
does not in any manner change the relation between the holder 
and signer of the note. Perkins^.Squier, 1 Sup. Ct., T. &C. (N. Y.) 
620. A compromise between the creditor and principal was enforced 
in favor of another debtor who was not a party to it. Mathews v. Pite- 
nour, 31 Ind. 31. 

ARTICLE lY. 

or THE RIGHTS AND LIABILITIES OF THE 6UEETY. 

Section 1. In general. The rights of the surety which the law 
gives him, are such as are necessary for his protection. He cannot 
claim to have his contract changed, nor can he control the mode of its 
execution, proWded the parties keep within its terms. But he has a 
right to claim that it shall be promptly performed where he may be 
injured by delay. The mode in which he can assert this right differs 
in different States, being largely modified by statute. At common law 
the surety must either perform the contract himself, or bring a biU in 
equity to compel the creditor and debtor to perform it. But in many 
States he now has a right to require the creditor to proceed, and if he 
neglects to do so for a time fixed by law, the surety is discharged. Upon 
any default in tlie performance, the surety becomes equally liable with 
the principal. The creditor can then at once require performance of 
him, and pass by the principal, but the surety is still a surety, and even 
after a judgment against himself, can claim the rights of a surety. 
Com. Bank v. Western Reserve Bank, 11 Ohio, 114. Tlie creditor 
must respect these rights in all his dealings with the principal. Any 
change in the contract by wliich its terms are altered, the time of per- 
formance extended, or collateral security held l)y virtue of it is released, 
may destroy its identity and discharge the surety, whether the change 
is to his injury or not. These principles are more fully illustrated in 
the following sections. Where the creditor is obliged to sue the prin- 
cipal and recovers only partial satisfaction, he may apply it first to the 
costs of that suit. Mosher v. Hotchkiss, 3 Abb. (N. Y.) App. Dec. 
326 ; 3 Keyes, 116 ; 2 id. 589. Where a note is given for the price 



198 PRINCIPAL AND SURETY. 

of o-oods, and it is agi-eed that any sum for which they may sell shall 
be paid upon the note, such sum becomes a fund for its payment, and 
cannot be diverted. Mellendy v. Austin, 69 111. 15. Where the 
surety is holden for the good conduct of an officer or servant, he cannot 
claim any special diligence from the employer in guarding against 
defaults. Black v. Otteman Bank,, 10 W. R. 871. Where the creditor 
holds security both from the principal and tlie surety, he must apply 
that from the principal first, and so relieve the surety. Merchant^ 
Bam,k v. Maud, 18 W. R. 312. A surety who has mortgaged his 
estate may bring a bill to have it disincumbered. 

§ 2. Liabilities and rights as to tliird persons. A third person 
cannot make himself a party to the surety's contract without his con- 
sent. Thus, if a stranger pay the amount due on a bond, at the request 
of the principal, no promise will be implied on the part of the surety 
to indemnify him. Ehnendorph v Taj)pen, 5 Johns. 176. If a 
person engages to be responsible for goods delivered by a trader his 
liability does not cover goods delivered by a third person. Walsh v. 
Bmlie, 10 Johns. 180. There is no privity between the surety 
and parties who may have also become liable for the debt in a different 
form at a different time, as special bail {Smith v. Bing 3 Ohio, 33) ; 
or between a surety on a note and a guarantor {Longley v. Griggs, 10 
Pick. 121) ; or between a surety and a subsequent signer of the 
note, if done without his authority express or implied. See art. 4 
below. The surety may, also, claim redress against any one who inter- 
feres to his injury with any collateral security to which he is entitled 
to look, whether held by the creditor, a co-surety, or himself. So far 
as such securities are in the hands of a holder with notice, they would 
be chargeable with a trust for Imn in equity. A surety for the pay- 
ment of the price of goods purchased has no remedy in equity where 
they have passed by a subsequent marriage to the husband of the pur- 
chaser. Cureton v. Moore, 2 Jones' (N. C.) Eq. 204. Where there 
are two debts between the same parties, one with security and the other 
with a surety, the surety is entitled to any surplus of the security after 
the payment of the secured debt. Praed v. Gardiner, 2 Cox, 86. 
The surety is not bound to take advantage of a statute making the 
note void, but may pay and look to his mortgage indemnity even as 
against a purchaser of the land. Parker v. Rochester, 4 Johns. (N. 
Y.) Ch. 329. 

§ 3. Of the creditor's right of substitution. A creditor is enti- 
tled to the benefit of all pledges or securities given to, or in the hands of 
a surety of the debtor for liis indemnity whether the surety is damnified or 
not as it is a trust created for the better security of the debt and attaches 



FEmCIPAL AND SUEETY. 199 

to it. Roberts v. Colvin, 3 Gratt. (Va.) 358 ; Branch Bank v. Rob- 
ertson^ 19 Ala. 798 ; Owens v. Miller, 29 Md. 144 ; Van Orden v. 
Durham, 35 Cal. 136 ; Bibh v. Martin, 22 Miss. 87 ; Haven v. 
i^o%, 18 Mo. 136 ; Rice's A^ypeal, 79 Penn. St. 168 ; (rr^e/i v. Dodge, 
6 Ohio, 80 ; Kramer's Appeal, 37 Penn. St. 71 ; Osborn v. iV^o5Z«, 
46 Miss. 449. The creditor has a right to be substituted to the place 
of the surety, but this substitution or subrogation gives him no higher 
right ; the right of the surety must be tried by the instrument which 
creates it. Bush v. Stamjys, 26 Miss. 463. Such trust will follow 
notes which represent the security given into the hands of third per- 
sons who do not hold them for value or who received them in payment 
of existing debts of the sm*ety, though without notice. Clarli v. Ely, 2 
Sandf. (N. Y.) Ch. 166. The trust accompanies the note secured in 
the hands of any holder. Haven v. Foley, 19 Mo. 632; Kunkel v. 
Fitzhiujh, 22 Md. 567. Even where the surety is discharged by in- 
dulgence property mortgaged by the debtor to him is held for the creditor. 
Hehn v. Young, 9 B. Monr. (Ky.) 394. Where the surety obtains a 
mortgage to secure him against his liability and also to secure his pri- 
vate debt, the creditor has the preference and must be first paid from 
the proceeds. Ten Eyck v. Holmes, 3 Sandf. (K. Y. ) Ch. 428. The 
security will pass to a third person who has paid the debt at the 
surety's request on the faith of an agreement that it should be assigned 
to him. Brien v. Smith, 9 "W. & S. (Penn.) 78. A mortgage of in- 
demnity to the surety creates a trust and gives the creditor an equitable 
lien on the land. Paris v. Hulett, 26 Vt. 308. Equity will not take 
jurisdiction to subject property given by a principal debtor to his in- 
dorser as indemnity until a judgment has been had at law against the 
indorser. Nashville Banlt v. Grundy, Meigs (Tenn.), 256. A surety 
who has received payment in money of the amount of the debt from 
his principal is clearly the principal after he so receives it, and if he 
has received half the money then he becomes a co-principal. Smith 
V. Steele, 25 Yt. 427. A judgment confessed by the principal re- 
mains for the creditor's benefit after the surety's death. Crosby v. 
Crafts, 5 Hun (iST. Y.), 327. The creditors of a surety, whose lien on 
his land has been defeated by a sale to pay the debt, may reach a fund 
held as indemnity by his co-surety. Moore v. Bray, 10 Penn. St. 519. 
§ 4. Perfecting right of action. In order that the creditor may main- 
tain his action against the surety, there must be a breach of the con- 
tract. Wlien one receives notes with a guaranty that they shall be 
collectible when due, he is bound before he can maintain an action 
against the guarantor to pursue with reasonable diligence all legal means 
of collecting the note out of all prior parties to it, whether makers 



200 PKINCIPAL AND SURETY. 

or indorsers, unless they are entirely insolvent. Benton v. Fletcher^ 31 
Yt. 418. In such cases the breach of the contract of the guarantor is 
not necessarily connected with a breach by the principal. Notice to 
the principal before a suit against the surety is unnecessary. White 
V. Swift^ 1 Cranch's C. C. 442. Nor is a demand on the surety 
necessary. Wood v. Barstow, 10 Pick. 368. In some cases a 
demand on the principal may be necessary to constitute a breach of 
the contract. Paine v. Moffitt, 11 Pick. 496. The creditor who has 
a claim against an officer for some neglect m proceedings against 
the principal which have turned out futile is not obliged to prose- 
cute such claim before suit against the surety. Leonard v. Gid- 
dings, 9 Johns. 355. An action against the sureties on a guar- 
dian's bond may be maintained without having the amount due 
liquidated by an action against the guardian. State v. Humphreys^ Y 
Ohio, 223. Equity will not take jurisdiction to subject property given 
by a principal debtor to his indorser as indemnity until a judgment at 
law has been taken against the indorser. Nashville Bank v. Grundy , 
Meigs (Tenn.), 256. 

§ 5. Exhausting remedy against the principal. The creditor is 
not obliged to proceed first against the principal unless that duty is 
expressly imposed on him in the contract. A cause of action arises 
at once upon his failure to pay the debt. Broimi v. Brow?i, 17 Ind. 
475 ; Ahercromhie v, Knox, 3 Ala. 728. But in some cases a court of 
equity will restrain the creditor from enforcing his remedy against the 
surety until he has exhausted any indemnity which he may hold, or 
until he has done what is necessary to realize on the securities which he 
holds, if he alone can do this {CottinY. Blane, 2 Anst. 544; Wright 
V. Nutt, 3 Bro. Ch. 326 ; Wright v. Simpson, 6 Ves. 734 ; Wright v. 
Austin, 56 Barb. 13) ; or will compel him to proceed against the 
principal in the first instance, where there is no risk, delay, or ex- 
pense to the creditor, or he is indemnified by the surety against the 
consequences of risk, delay and expense, for the creditor ought to do 
all he can for the benefit of the surety. Wright v. Simpson, 6 Yes. 
734 ; Hayes v. Ward, 4 Johns. Ch. 123 ; Be Bahcock, 3 Story (C. C), 
393 ; Huey v. Pinney, 5 Minn. 310. AVhcre one covenants to indem- 
nify a surety, the surety may sue him upon payment without first 
suing the principal or the other sureties. Pope v. Davidson, 5 J. J. 
Marsh. (Ky.) 400. So, where a sheriff took a delivery bond with 
sureties for the property of the principal, a levy on the property of a 
judgment surety is proper witliuut resorting to the surety on the deliv- 
ery bond. Brown v. Brown. 17 Ind. 475. A surety cannot require 
the creditor to proceed first against the principal unless the suretyship 



PRINCIPAL AND SURETY. 201 

appears on tlie face of the papers, and so makes part of the contract 
with the prmcipal, or unless the surety offers indemnity. Re Bahcock^ 
3 Story (C. C), 393 ; Pintard v. Davis, 20 N. J. (Spenc.) Law, 205 ; 
Eason v. Petway, 1 Dev. <fe B. (N. C.) L. 44 ; Reynolds v. Rogers, 5 
Ohio, 169 ; Geddis v. Hawk, 1 Watts (Penn.), 280 ; Carr v. Card, 34 
Mo. 513. Where execution has issued against the principal and surety, a 
surety cannot require that it shall be first levied on property of the princi- 
pal {Keaton v. Cox, 26 Ga. 162 ; Battle v. Stephens, 32 Ga. 25 ; Fuller v. 
Loving, 42 Me. 481) ; or even that it shall be levied on chattels of the 
principal rather than on real estate of the surety. Kendrick v. Price, 
16 Tex. 254. But in equity the rule is different, and the creditor 
must make his debt from the principal if he can before resorting to the 
property of the surety. Wise v. Shepherd, 13 111. 41 ; Huey v. Pin- 
ney, 5 Minn. 310 ; Kirig v. Baldwin, 2 Johns. Ch. 554. The cred- 
itor cannot be requii*ed to pursue collateral remedies, or realize on 
collateral security before calling on the surety. Jones v. Tincher, 15 
Ind. 308 ; Brovm v. Brown, 17 Ind. 475. If the surety has pledged 
his property with property of the principal for the debt, he can require 
that the property of the principal shall be first sold and applied to the 
debt. Vartie v. Underwood, 18 Barb. 561. The courts of equity 
will often interfere to protect or relieve the surety by marshaling 
the assets, or controlling the action of the creditor when courts of 
law are unable to render any aid. Story's Eq., §§ 638, 639. The cred- 
itor is under no obHgation to call on all the sureties, but may collect 
the whole debt of one, and leave him to get his contribution of the 
others. Lowndes v. Pinckney, 2 Strobh. (S. C.) Eq. 44. 

§ 6. Parties in suits against sureties. Where the principal and 
surety gave their joint note for a usurious loan and were sued jointly, 
the surety was held to be a proper party to a suit by the principal 
for relief against the usury. Perrine v. Striker, 7 Paige, 598. 
The sureties on a bond given to obtain an injunction are necessary 
parties to a bill by the principal to restrain a suit at law upon the 
bond. Patterson v. Baiigs, 9 Paige, 627. To a bill for rehef 
against the surety, the principal is. an indispensable party. Hart 
V. Coffee, 4 Jones' (N. C.) Eq. 321, Where a mortgage has been fore- 
closed, a separate suit may be brought against the surety on the mort- 
gage note for any balance remaining due. County of Duhuque v. 
Koch, 17 Iowa, 229. In a bill by creditors to recover a debt from the 
sureties of a deceased principal, his representatives should be parties if 
he left any estate. Roane v. Pickett, 7 Ark. (2 Eng.) 510. In equity, 
if the remedy sought is against the sureties, the principal and all the 
sureties or their representatives must be joined. Tohin ^- Wilson^ 3 



202 PKmCIPAL AND SUEETY. 

J. J. Marsh. (Kj.) 63 ; Mitchell v. Miller, 6 Dana (Ky.)? ^^^ ; Olagett 
V. Worthiiigtoii, 3 Gill (Md.), 83. But if the only remedy asked is 
against the principal or his property, or security given by him, the 
surety need not be made a party. Dias v. Bouchaud, 10 Paige (N. 
T.), '445. 

§ 1. Defense to suit against surety. The surety may defend 
either for some imperfection of the contract, some fraud upon him 
committed at its inception or other matter, which would prove that he 
never was liable, or he may show that he has been discharged by some 
act of the creditor since, in contravention of his rights. See art. 5. 
Thus a fraudulent concealment or misrepresentation of the facts made 
by the creditor will discharge him. Evans v. Keeland, 9 Ala. 42. A 
surety on a note may show that he became such in consequence of the 
representations of the creditor that he had money in his hands belong- 
ing to the principal which should be credited on the note. Mathe- 
son V. Jones, 30 Ga. 306. So, it has been held that if the surety sign 
a blank note with the express agreement that it shall be used to borrow 
money from a person named, but the principal fills up the blank with 
the name of another person who has notice, the surety is not holden. 
Goi^e V. Ross, 2 B. Monr. (Ky.) 299 ; Herring v. Winans, S. & M. 
(Miss.) Ch. 466. The surety may make his defense whenever he is called 
into com't, and is not bound by any proceeding in his absence. Thus, 
if in an action on a bond the principal is defaulted, the surety is not 
precluded from taking the benefit of any defense which they may 
have. Foxcroft v. Nevens, 4 Me. 72. So, a surety on an executor's 
bond is not precluded from proving a deficiency of assets by a pre- 
vious judgment against the principal in favor of a legatee. Hayes v. 
Seamer, 7 Me. 237. Nor are sureties on an administrator's bond 
bound by a judgment against their principal, on a claim barred 
by the statute whicli he has neglected to defend. Dawes v. Shed, 15 
Mass. 6. The question, whether matters of defense are open to the 
surety, as such, must often depend on whether he is made such in the 
contract, or appears there as a principal. Taylor v. Bank of Ky., 2 
J. J. Marsh. (Ky.) 564. The sureties, though sued alone, may make 
any defense open to the principal, as that the contract was voidable 
by him for fraud, and that he has avoided it {Scroggin v. Holland, 
16 Mo. 419 ; Carpenter v. King, 9 Mete. 511 ; Clark v. Ritchie, 11 
Grant's [U. C] Ch. 499 ; McKewan v. Sanderson, L. K., 20 Eq. 65 ; 
13 Eng. Rep. 611) ; or duress of his principal. Osborn v. Rohhins, 
36 N. Y. 372 ; Fisher v. Shattuch, 17 Pick. 253. But he is bound by 
a determination of the amount due in a way expressly provided for in 
the contract. Binsse v. Wood, 37 N. Y. 526. But the maker of a 



PRINCIPAL AND SURETY. 203 

note cannot set up a defense for the surety. Marshall v. Sloan^ 26 
Ark. 513. Sureties on a collector's bond cannot deny that he was a col- 
lector. Fake v. Whij?j)le, 39 Barb. 339 ; S. C, 39 N. Y. (12 Tiff.) 394. 
Relief will be given to a surety against a creditor who has by an illegal 
contract got all the principal's property, and then presses the 
surety. Breese v. Schuyler, 48 111. 329. 

§ 8. What is uot a defense. A discharge of the principal debtor 
under a banknipt or insolvent law does not discharge the sureties 
{United States v. Sturges, 1 Paine [U. S.], 525; Hunt\. U.S.,1 
Gall. [C. C] 32) ; even under a composition resolution which the 
creditor signs. Guild v. Butler, 122 Mass. 498 ; 23 Am. Rep. 378 ; 
Exjparte Jacobs, L. R., 10 Ch. 211 ; 12 Eng. R. 707. But sureties on 
a bond to dissolve an attachment are discharged by a discharge of the 
defendant pleaded in the suit, for there can be no breach till after a judg- 
ment against the defendant. Braley v. Boomer, 116 Mass. 527. It is 
no defense to the surety that the debtor and creditor have applied pay- 
ments to other accounts between them rather than to the debt on which 
he is liable. Martin v. Pope, 6 Ala. 533 ; Brewer v. Knapjp, 1 Pick. 
332. The giving of collateral security by the principal is no bar to an 
action against the surety. Lincoln v. Bassett, 23 Pick. 1 54. The surety 
cannot take advantage of fraud on the contract in which the note is 
given, if the principal has not rescinded it. Walker v. Gilbert, 15 Miss. 
(7 S. & M.) 456. If the surety leaves the note signed in blank with the 
principal, he cannot complain of the sum which may be inserted in lU 
without proving that the creditor had notice of something wrong. 
Selse7' V. Brock, 3 Ohio St. 302 ; Ogle v. Graham, 2 Penr. efe W. 132. 
A secured surety cannot complain that the principal has been given 
time. Smith v. Steele, 25 Yt. 427. It is no defense that the note 
was discounted by a different person from the one he agreed to 
{Briggs v. Boyd, 37 Yt. 534) ; or put to a different use to which he 
would not have assented if he had known it. Farmers'' Bank v. 
Buchard, 33 Yt. 346. He is not discharged by the neglect of the 
officer in levying the execution against the principal [Bank of Ala. v. 
Godden, 15 Ala. 616) ; or where the creditor let the judgment lie till 
the lien was lost. M^indorff v. Singer, 5 "Watts (Penn.), 172. A plea 
to a declaration on a cashier's bond that the directors knew of and con- 
nived at his defalcation, is not good, miless fraud is charged and the 
sureties are prejudiced {Taylor v. Bank of Ky., 2 J. J. Marsh. [Ky.] 
564) ; nor is a declaration on a deputies' bond to a sheriff that the 
sureties gave notice of his unfitness and requested his removal. Crane 
v. Newell, 2 Pick. (Mass.) 612. It is no defense that the obligee knew of 
the default of the principal and long delayed to notify the surety or to 



204 PRINCIPAL AND SURETY. 

sue. Morris Canal Co. v. Yan Vorst, 21 N. J. (1 Zabr.) Law, 100. 
Where the principal is sued separately, a judgment for him will not 
estop the creditor in a separate suit against the principal. /State Bank 
V. Iiohinso7i, 13 Ark. 214. But it is evidence against them. Atkins v. 
Baily, 9 Yerg. (Tenn.) 111. A judgment for the maker in a suit in 
the State where the note was made, holding it barred by the statute of 
limitations, does not avail the surety in another State unless he proves 
that it also extinguished the debt. Bacon v. Bahlgreen, 7 La. Ann. 
601. A surety for a tax collector cannot inquire into the regularity of 
the proceedings at his election or in voting the tax. I^ord v. Clougk, 
8 Me. 334; Fake v. Y^Up])U, 39 Barb. 339; S. C, 39 N. Y. 394. 
So, a surety for a person indicted cannot object that the grand jury 
was illegally organized. State v, Borromn, 25 Miss. 203. A surety 
cannot allege duress of his principal {Thompson v. Buckliannon^ 2 J. J. 
Marsh. [Ky.] 416 ; contra : Osborn v. Rollins, 36 N. Y. 372 ; Fislier v. 
Shattuck, 17 Pick. 253) ; nor that he voluntarily became such with- 
out the request or consent of the principal. Hughes v. Litilejield, 
18 Me. 400. A surety cannot give in evidence as a defense his own 
delay to take steps which would have discharged him. Shaeffer v. 
McKinstrey, 8 Watts (Penn.), 258. A surety cannot have relief in 
equity for newly-discovered evidence of a fact well known to his prin- 
cipal with whom he was joined in a suit and which it was gross negli- 
gence in the surety not to have known. Graham v. Rolerts, 1 Head 
(Tenn.), 56. A surety cannot set up a set-off between the principal 
debtor and creditor. Lasher v. Williamson, 55 N. Y. (10 Sick.) 619. 
§ 9. Surety's right of re-imburseiiieut from priucipaL A prom- 
ise will be implied when the plaintiff has been compelled to do that 
to which tlie defendant was legally compellable. On this principle 
depends the right of a surety who has been damnified to recover in- 
demnity of his principal. Toussaint v. Martinnant, '^ T. R. 100; 
Appleton V. Basconi,?> Mete. 169; Gilson v. Love, 4 Fla. 217; 
Kimlle V. Cti7nmins, 3 Mete. (Ky.) 327 ; Holmes v. Weed, 19 Barb. 
128; Bimce v. ^-WTice, Kirby (Conn.), 137. His equitable assignee 
may sue in his own name in equity. Ilite v. Camplell, 10 B. 
Monr. (Ky.) 80. Where the administrator of the surety pays the 
debt, he may sue in his own name. Mowry v. Adams, 14 Mass. 327. 
Where the debt has been paid from a fund belonging to the sureties 
jointly, they may sue jointly for rc-im]>ursement. Stewart v. YaugJian, 
1 Rice (S. C), 33 ; Jioss v. Allen, 67 111. 317. Where there are sev- 
eral obligors, they are lial)le jointly. Balcock v. Ilullard, 2 Conn. 
536. The surety on a note with two joint principals may recover the 
whole amount of one after the death of the other. Riddle v. Bow- 



PRINCIPAL AND SURETY. 205 

mjO/n^ 27 N. H. 236. The surety has no right of re-imbursemeiit till 
he has paid the debt in full. Elwood v. Diefendorf^ 5 Barb. 
398 ; Gcmnett v. Blodgett, 39 N. H. 150 ; Bridges v. Nicholson^ 20 
Ga. 90. But such payment may be made by a promissory note if it 
is accepted as payment. Id. ; Downer v. Baxter^ 30 Yt. 467 ; White 
V. Miller, 47 Ind. 385. He may sue before he pays such note. Boul- 
ware v. Robinson, 8 Tex. 327 ; Pearson v. Parker, 3 N. H. 366. He 
may pay by a conveyance of land. Bonney v. Seely, 2 Wend. (N. Y.) 
481 ; Ainslie v. Wilson, 7 Cow. (N. Y.) 662 ; Randall v. Rich, 11 Mass. 
498. But the payment must have been one which he was under obli- 
gation to make. Where he had been absolutely released from liability, 
as where the surety on a replevin bond has been discharged by neglect 
to take out execution, the relation has ceased and he cannot claim re-im- 
bursement, for the payment is voluntary. Kimble v. Cummins, 3 
Mete. (Ky.) 327. 

But where the contract was only voidable as for usury, the surety 
may rightfully pay (Shaw v. Loud, 12 Mass. 447; Thurston v. 
Prentiss, "Walk. [Mich.] Ch. 529) ; or where the bond is without con- 
sideration {Frith V. Sprague, 14 Mass. 455) ; or where the principal 
defending has judgment, but the surety in a separate suit was de- 
faulted. Stinson V. Brennan, Cheves (S. C), 15. Where the surety 
has extended his liability by a partial payment, the principal is still 
liable to him, though his liability to the creditor may be barred. 
Odell V. Dana, 33 Me. 182. Where the surety pays after the debt 
is barred as against the estate of his decased principal, he can still re- 
cover of the estate. Miller v. Woodward, 8 Mo. 1 69 ; contra : Hatchett 
V. Peg ram. 21 La. Ann. 722. He must prove that the contract took 
eifect and that he has paid the money and possession of the note is not 
prima facie evidence of such payment. Landrum v. Brookshire, 1 
Stew. (Ala.) 252. The surety has sufficient interest to avoid a volim- 
tary conveyance of land by the principal even before payment. Cho- 
teau V, Jones, 11 111. 300 ; Partlovj v. Lane, 3 B. Monr. (Ky.) 424. 
But in other cases a previous payment has been held necessary. Meux 
V. Anthony, 11 Ark. 411 ; Booe v. Wilson, 1 Jones' (N. C.) L. 182. 
Where one partner induced a surety to sign a note of the other partner, 
the proceeds of which went to the firm, the surety cannot claim re-im- 
bursement of the first. Asbury v. Flesher, 11 Mo. 610. He may 
pay the nute before maturity, but he cannot sue for re-imbursement 
until it is due. White v. Miller, 47 Ind. 385. 

§ 10. Amount of recovery. The surety is entitled to recover such 
sum as the laws of the State of the contract compel him to pay. 
Thomas v. Beckman^ 1 B. Monr. (Ky.) 29. He may also recover legal 



206 PRINCIPAL AND SURETY. 

costs incuiTed in litigation instituted by the principal and in which such 
surety was joined when he has paid them, but he is not liable for costs 
and expenses incurred in litigation by the surety unless undertaken 
with due notice to the principal or with reasonable grounds of success 
and to protect his interest, or unless it has resulted beneficially to his 
estate. WJiitworth v. Tihnan^ 40 Miss. 76. He ought to notify his 
principal before incurring expense. The purpose of notice is not in 
order to give a ground ot action, but if a demand be made which the 
party indemnifying is bound to pay, and notice be given to him and he 
refuses to defend the action, and in consequence the surety is obliged to 
pay the demand, the principal is estopped from saying that the surety 
was not bound to pay the money. Duffield v. Scott, 3 T. R. 374. The 
surety must have been compelled, that is, must have been under a 
reasonable obligation and necessity to pay what he seeks to recover 
from his principal. Boach v. Thomj^son, 1 M. & M. 487 ; Short v. 
Kalloway, 11 Ad. & E. 28. He will be protected in a reasonable and 
prudent compromise. Smith v. Compton, 3 B. & Ad. 407. He may 
incur expense in investigating the claim, if it is unliquidated and needs 
investigation. Blyth v. Smith, 5 Man. & Gr. 405. Whether his con- 
duct in any of these matters is reasonable is a question for the jury. 
Tindall v. Bell, 11 M. & W. 228. If the surety has neglected to 
notify the principal, he must prove that the defense which he has made 
to the suit was undertaken with reasonable grounds for expecting suc- 
cees and with a view to protect the interest of the principal or that it 
actually resulted beneficially for the estate. Whetworth v. Tilman, 40 
Miss. 76 ; French v. Parish, 14 N. H. 496 ; Hayden v. Cabot, 17 
Mass. 169. In such case it is no defense for the principal that he had 
a defense to the claim if the surety was ignorant of it, as that 
the contract was usurious or without consideration. Ford v. Keith, 1 
Mass. 139 ; Frith v. Sprague, 14 Mass. 455 ; Hardin v. Branner, 25 
Iowa, 364. The sureties on a bail bond were allowed to recover counsel 
fees for defending, although the judgment was against the principal. 
Bancroft v. Pearce, 27 Vt. 668. He can recover interest where he 
has paid l)y note until the note is paid. White v. Miller, 47 Ind. 385. 
§ 11. Limits of recovery. The surety cannot recover of his prin- 
cipal, ex})enses incurred in the unsuccessful defense of a suit against 
the wishes of the principal, and with notice from him that there is no 
defense. Beckley v. Munson, 22 Conn. 299 ; Holmes v. Weed, 24 
Barb. 546. He cannot recover extraordinary expenses wliich might 
have been avoided by payment, nor indemnity for remote and un- 
expected consequences. Ilayden v. Cahot, 17 Mass. 169 ; Wynn v. 
BrooTc, 5 Rawle (Penn.), 106. If the surety in a usurious contract 



PRINCIPAL AND SURETY. 207 

knowingly pays, he cannot recover the amount of the usury. Har- 
graves v. Lewis, 3 Ga. 162 ; Thurston v. Prentiss, 1 Mich. 193. A 
surety, who j^ays money vohmtarily on a judgment absolutely baiTed, 
loses his remedy against his principal. Bachellor v. Priest, 12 Pick. 
(Mass.) 399. But if the judgment can in any way be enforced, the 
payment is not voluntar3\ Randolph v. Pandolph, 3 Rand. (Ya.) 
490. If he pays the debt in depreciated paj^er, he can only recover the 
value which he parts with. Crozier v. Grayson, 4 J. J, Marsh. (Ky.) 
517 ; Jordan v. Adams, 7 Ark. 348 ; Jlall v. Creswell, 12 Gill & J. 
(Md.) 36 ; Martindale v. BrocTc, 41 Md. 571 ; Butler v. Butler, 8 W. 
Ya. 674. So, if the whole debt is discharged on the papnent of part. 
Bonney v. Seely, 2 Wend. 481. Where it was arranged between 
the creditor, debtor and surety, that the principal should be released 
on paying part of the debt and the surety should pay the rest, there 
is no right of re-imbursement. Moore v. Isley, 2 Dev. & B. (N. C.) 
Eq. 372. On the other hand, the siu-ety cannot increase the liability 
of the principal by paying more than is due, and where he transfers to 
the creditor property exceeding in value the amount of the debt, he 
cannot recover the excess. Hickman v. Mc Curdy, 7 J. J. Marsh. (Ky.) 
558 ; Simonds v. Wheeler, 1 Dane Ab. 197. So, where there has been 
judgment and a levy, and he afterward pays the full amount, he takes 
the burden of proving that nothing was realized under the le\y. 
Broion v. Kidd, 34 Miss. 291. A surety has no right of action against 
his principal, merely because the debt is not paid as soon as it is due, 
nor until he has either paid it or procured the discharge of the princi- 
pal by assuming the payment himself. Ingalls v. Dennett, 6 Me. (6 
Green) 79. The debtor must be in default, either in the contract with 
the creditor, or in that with the surety. Campbell v. Macomb, 4 Johns. 
(N. T.) Ch. 534. And payment must be made by the surety before 
action. Bonham v. GallovKiy, 13 111. ^'^y ; Shepard v. Ogden, 3 id. 
257 ; WalJcer v. McKay, 2 Mete. (Ky.) 294 ; Po7ider v. Carter, 12 
Ired. (N. C.) L. 242. Co-sureties cannot join in the action unless the 
money is paid from a common fund. Parker v. Leek, 1 Stew. (Ala.) 
523; Boggs v. Curtin, 10 Serg. & R. (Penn.) 211; Gould v. Gould, 
8 Cow. 168. He can maintain his action against that person alone 
whose legal liability is discharged, although the obligation was given 
for the benefit of others, for the law implies no promise from them. 
Tom V. Goodrich, 2 Johns. 213 ; Krafts v. Creighton, 3 Rich. (S. C.) 
273. He cannot recover costs with which he is charged in a suit which 
he has improperly and imsuccessfully defended. Roach v. Thompson^ 
1 M. & M. 487; Short v. Kallmoay, 11 Ad. & E. 28. It is a ques- 



208 PRINCIPAL AND SURETY. 

tion for the jury whether the expenses and costs, which he has in- 
curred, were reasonably incurred. Tindall v. Bell, 11 M, & W. 228. 

§ 12. Right to retain funds of the principal. As the relation of 
principal and surety is an equitable one, and the surety has the strong- 
est claim in justice against his principal, the courts favor all just modes 
of relief. If the surety has in his hands money or goods of the prin- 
cipal, or is indebted to him, it would be useless as well as unjust, to 
compel him to account for them, while he was liable to be called upon 
for immediate payment of the debt. Constant v. Matteson, 22 111. 
546. If the surety after payment is appointed administrator of the 
principal's estate, he may apply sums he receives in that capacity to 
his claim, the estate being solvent. Bates v. Vary, 40 Ala. 421. If his 
principal becomes insolvent, he is a creditor and znay claim to set ofi any 
funds of the principal which he has in his hands. Battle v. Hart, 2 
Dev. (N. C.) Eq. 31 ; Abhey v. Van Campen, 1 Freem. (Miss.) Ch. 273 ; 
McKnight v. Bradley, 10 Rich. (S. C.) Eq. 557. But in Ohio he was 
only allowed to retain enough to make him equal with the other cred- 
itors. Creager v. Minard, Wright (Ohio)^ 519 ; Sharp v. Oaldwell, 
7 Humph. (Tenn.) 415. He may pay the debt as soon as it becomes 
due, and look to the funds in his hands. Constant v. Matteson, 22 
111. 546. One who carries on a store for another, and has exclusive 
possession, has a lien on the remaining goods for repayment of any 
sums which he has laid out to replenish the stock and against any lia- 
bility which he has incurred for that purpose. Gray v. Wilson, 9 
Watts (Pa.), 512. Until payment, he has no demand which amounts 
either to a set-off or equitable discount. Walker v. McKay, 2 Mete. 
(Ky.) 294. 

Wliere one was surety for a person deceased, insolvent, to whom the 
surety was indebted, if the debt for which the surety is liable was due 
whether before or after the principal's death, he may retain enough of 
what he owes to indemnify him until he is released. Beaver v* Beaver, 
23 Penn. St. 1G7. 

§ 13. Surety taking security. The fact that the surety has re- 
ceived indemnity from the principal does not deprive him of his 
rights against the principal, unless it is agreed that he shall look to 
the indemnity alone. Cornwall v. Gould, 4 Pick. 444 ; West v. 
BanJc, 19 Vt. 403. Where security is taken from a stranger, it is 
presumed to be cumulative, and the implied obligation of the princi- 
pal is not affected. Wesley Church v. Moore, 10 Penn. St. 273. If 
the principal deposit funds for the indemnity of the surety, there is a 
sufficient consideration for the contract and the receiver becomes bailee 
for the surety. Keller v. Rhoads, 39 Penn. St. 513. But if the 



PRINCIPAL AXD SUHETY. 209 

debtor procures a third person subsequently to sign a contract of in- 
demnity to the surety, there is no consideration, even if the surety prom- 
ise to continue such for an indefinite time. Itix v. Adams, 9 Vt. 233. 
He is authorized to realize upon any securities pledged, whenever he is in 
danger of being forced to pay the debt, and before payment. Bij'd v. 
Benton, 2 Dev. (INT. C.) L. 179. If the security is a mortgage 
note or other contract which is due, the surety can and perhaps 
ought to collect it and turn it into money, for it is his duty as toward 
his principal to reahze the most possible from it, and to take all due 
care of it. Hunter v. Levan, 11 Cal. 11. Money so realized goes to ex- 
tinguish the claims of the surety for payments made by him for the 
principal in the order in which they are made. Whijpjyle v. Briggs, 
80 Yt, 111. When the surety is sued, he ought to convert his security 
into money, and, if possible, save his property from levy, and if he 
without necessity allows it to be sold on levy, he cannot claim against 
the principal any loss caused by its selling below its value. Vance v. 
Lancaster, 3 Hayw. (Tenn.) 130. If a bond for the conveyance of 
land is delivered to him as indemnity, he acquires no lien on the land, 
but after payment may go into equity for re-imbm-sement. Porter v. 
Howard, 1 A. K. Marsh. (Ky.) 358. If the security is a note or bond 
from the principal, he can only recover the sum he has paid although 
the nominal value may be more. Child v. EureTca Works, 44 N. H, 
354 ; Monell v. Smith, 5 Cow. (N. Y.) 441. If the suretyship has 
ceased, the surety can no longer hold the security given him, and after 
ten years it will be presumed to have ceased in the absence of evidence 
to the contraiy. Waller v. Todd, 3 Dana (Ky.), 503. If the pay- 
ment is a voluntary one, the surety cannot look to his indemnity 
for re-imbursement. Bachellor v. Priest, 12 Pick. 399. If the 
surety absolutely assumes the debt and becomes principal, he cannot 
look to a deed of indemnity given him by the principal. U. S. Bank 
V. Stewart, 4 Dana (Ky.), 27. A surety who has been discharged by 
acts of the creditors may still enforce a mortgage given him for the 
benefit of the creditor {Newsam v. Finch, 25 Barb. 175), and he 
will continue to hold any collateral security given him by the debtor 
for the benefit of the creditor, and, therefore, his relation to the other 
parties will not cease in many cases where he would otherwise have 
been discharged. Section 3, ante 

§ 14. Insolvency of principal. The insolvency of the principal 
has been made a reason for granting more full and prompt relief to the 
surety. There is no longer any reason to delay proceedings in order 
to allow the principal to ac It is now made certain that the sureties 
will be called upon and their relation to the contract has become prac- 
YoL. Y.— 27 



210 PRINCIPAL AlsJ) SURETY. 

ticallj less conditional. Battle v. Hart, 2 Dev. (j^. U.) Eq. 31 ; Ahhey 
V. Yan Cainpen, Freem. (Miss.) Ch. 273. Thus the surety, who may 
not be able to pay at once, can proceed at once before payment against 
the principal for indemnity. Polk v. Gallant, 2 Dev. & B. (N. C.) 
Eq. 395. Where a judgment has been rendered against the principal 
and surety, and the principal is insolvent, the surety may sue in equity 
to reach credits of the princij^al and apply them in payment though 
he has paid nothing. MGConnell v. Scott, 15 Ohio, 401. "Where land 
is sold under an order of court, and the legal title is retained till the pur- 
chase-money is paid and the principal becomes insolvent, the sureties 
may at once subject the land to a lien. Egerton v. Alley, 6 Ired. (IST. 
C.) Eq. 188. But if the property has passed into the hands of a pur- 
chaser without notice, they have no claim on it. Miller v. Miller, 
Phil. (I^. C.) Eq. 85. The surety for one who has died insolvent, and 
who is a debtor of the estate is entitled to retain so much of his debt as 
will indemnify him until he is released, and this whether the debt of 
the deceased became due before his death or not. Beaver v. Beaver, 
23 Penn. St. 167. But in Ohio he was held entitled to retain only so 
much as would be his share with the other creditors. Cr eager v. Mi- 
nard, "Wright (Ohio), 519. Equity will authorize a surety having in his 
hands funds of his principal who is insolvent to apply them on the 
debt. McKnight v. Bradley, 10 Rich. (S. C.) Eq. 557. 

§ 15. Sureties' right to priority. In cases where the law distinguishes 
between the different classes of creditors giving some a right to be paid 
before others, the courts have differed on the question whether the 
surety who pays the debt is entitled to take the creditor's place. The pre- 
ferred debts are usually of one of two classes, debts to the United 
States or debt on specialties or judgments. In the former case it was 
held in United States v. Preston, 4 "Wash. (C. C.) 446, that the surety 
on a custom-house bond was a preferred creditor. Reed v. Emory, 1 
Serg. & R. (Penn.) 339. But in Gallagher v. Davis, 2 Yeat. (Penn.) 
548, he was not allowed a preference unless the principal has made an 
assignment, or an attachment has issued against him, or he has 
been declared a bankrupt. In case of a surety on a bond who 
has paid it, he has been treated as a creditor on simple contract 
only. Buchner v. Morris, 2 J. J. Marsh. (Ky.) 121 ; CiinningJia/tn 
V. Smith, 1 Harp. (S. C.) Ch. 90 ; Copis v. Middleton, 1 Turn. 
& R. 224 ; contra : Shultz v. Ca/rter, Spears' (S. C.) Ch. 533 ; Rdb- 
i/nson v. Wilson, 2 Madd. 434. A surety on a judgment debt who 
pays it is treated as a judgment creditor in equity. Lenoir v. Winn, 
4 Des. (S. C.) 65 ; contra : Sanders v. Watson, 14 Ala. 198. The 
surety may also gain a priority against some particular property by 



FRINCIPAL AXD SURETY. 211 

contract. Thus sureties on bonds given for the purchase of real estate 
have been allowed a lien to protect them. Egerton v. Alley, 6 Ired. 
(N. C.) Eq. 188. An unrecorded agreement that the surety shall 
have a lien on the land will avail against an attachins: creditor with 
notice. Bailey v. Welch., 4 B. Monr. (Kj.) 244. Where the title is 
retained with the bond so that the legal estate does not pass, the surety 
has the first equity to be indemnified and the question of notice is im- 
material. Shqffner v. Fogleman, 1 "Wins. (jST. C.) Eq. 12. 

§ 16. Part payment by surety. A surety who has made a partial 
payment is given the benefit of it and protected so far as it goes. He 
is not, however, entitled to an assignment on the possession of securi- 
ties held l)y the creditor, unless the rest of the debt has been paid by 
the principal {Hess Estate, 69 Penn. St. 272 ; Field v. Hamilton, 45 
Yt. 35 ; Magee v. Leggett, 48 Miss. 139) ; or unless the surety is only 
bound for part. For the obligation of the principal is not divisible. 
See further, ^?o.§i;, 213, 214, and Gannett v. Blodgett, 39 N. H. 
150. If the surety pays part of a judgment recovered against the 
principal and himself, it gives him an equitable interest in the judg- 
ment to that extent which he may release or transfer, but it does not 
operate as a partial assignment so as to enable him to exercise any 
control over the judgment or execution. Grove v. Brien, 1 Md. 
438. Partial payments on a cashier's bond during suit are deducted 
from the penalty, and interest is allowed on the remainder of the penalty 
from the date of suit. McGill v. C S. Bank, 12 Wheat. (U. S.) 512. 
"Where the sureties have each paid a share of the bond, they may sue 
separately for re-imbursement. Peahody v. Chajjman, 20 N. H. 418 ; 
Gould V. Gould, 8 Cow. (jST. Y.) 168. The implied contract of in- 
demnity between the principal and sureties is not joint but several. 
Brand v. Boulcott, 3 B. & P 235 ; Wright v. Hunter, 5 Yes. 792. 

§ 17. Demand or notice. Tlie liability of the principal to the surety 
becomes absolute when the surety pays the debt. The law does not 
require that any notice should be given to the principal or any demand 
made upon him, for he must be presumed to know that he has not 
performed his contract with the creditor, and a breach of duty toward 
the creditor is one toward the surety also. It is also a right of the 
surety, in the event of the impending insolvency of the debtor, or for 
any other reason, to pay the debt and at once secure himself by suit ; 
and to require notice or demand might delay his proceedings to his in- 
jury. It is, therefore, held that he may, after payment, sue without 
demand or notice. Collins v. Boyd, 14 Ala. 505 ; Odlin v. Greenleaf, 
3 N. H. 270 ; Williams v. Williams, 5 Ohio, 444 ; Slices v. Quick, 7 
Jones' (N. C.) L. 10. But if the demand is doubtful or he is involved 



212 PKINCIPAL AND SUKETY. 

in litigation to compel its payment, he should notify the principal that 
he may have the opportunity to defend, for, as we have seen, the 
surety ui some cases cannot deprive the principal of the defenses which 
were open to him against the creditor and may, by a payment without 
notice, transfer those defenses to himself. The principal will not be 
boimd by a judgment against the surety without notice to himself. 
Gates V. Henfroe, 7 La. Ann. 569 ; Randoljph v. Eandolph, 3 Rand. 
(Ya.) 490 ; Whiteworth v. Tillman, 40 Miss, 76. So if the surety intends 
to claim expenses of litigation beyond the debt, if they are incurred 
without notice to the principal, the burden will be on the surety to 
justify them. Beckley v. Munson, 22 Conn. 299 ; Holmes v. ^Yeed, 
24 Barb. 546. He ought to notify the principal before incurring 
expenses. The pui-pose of giving notice is not in order to give a 
ground of action, but if a demand be made which the party indemnify- 
ing is bound to pay, and notice be given to him, and he refuse to 
defend the action in consequence of which the person indemnified is 
obliged to pay the demand, the principal is estopped from saying 
that the surety was not bound to pay the money. Duffield v. Scott, 
3 T. R. 374. 

§ 18. Defense to sureties' action. The principal may defend 
against the suit of the surety by proving that he has performed his 
contract with the creditor or with the surety, that the surety has re- 
leased him, or that the relation between them either was never that of 
principal and surety, or has ceased to be such. He may prove that the 
transaction was one in which the surety and himself stood in the rela- 
tion of partners. Pollard v. Stamion, 5 Ala. 451. He may prove 
that he has deposited money in the sureties' hands to indemnify him, 
or that money has been realized from securities so deposited. Whipple 
V. Briggs, 30 Vt. 111. He may prove that the payment was a volun- 
tary one on the part of the surety, his liability having ceased {Bachellor 
v. Priest, 12 Pick. 399 ; Eandolj>h v. Eandoljjh, 3 Rand. [Va.] 490 ; 
Morrison v. Cassell, 26 111. 368 ; Kimhle v. CuTnmins, 3 Mete. [Ky.] 
327) ; or that tlie relation never existed, as where the surety signed 
the contract without his request or consent. 

V/here a creditor with the consent of the surety released the princi- 
pal debtor in coDsideration of the payment of part of the debt upon 
a jjromisc by the surety to pay the remainder, he cannot claim repay- 
ment from the principal. Moore v. Isley, 2 Dev. & B. (N. C.) Eq, 
372. Where the complaint of the surety is that his goods have been 
sold on an execution for the debt, the principal may prove that a ven- 
dee of tlic goods from the surety has recovered the goods from the 
execution purchaser. Ilead v. McDonald, 7 T. B. Hour. (Ky.) 205. 



PRINCIPAL AND SURETY. 213 

"Where a surety was indemnified and judgment being obtained for the 
debt, becomes again surety on an appeal bond on which he has to pay, 
he loses his indemnity. Davidson x. Pope^ 3 Dana (Ky.), 335. The 
principal cannot object that the suit on the contract was not well de- 
fended, or that technical objections were not taken, especially if he was 
a party to the action. Rice v. Rice^ 14 B. Monr. (Ky.) 4:17 ; Reynolds 
V. ITarral, 2 Strobh. (S. C.) 87 ; Wade v. Green, 3 Humph. (Tenn.) 
647. He cannot defend a suit by his surety on a replevin bond on 
the ground that the surety knew that the replevin suit was groundless 
and malicious. Smith v. Rines, 32 Me. 177. Nor can he set up that 
at the time of payment by the surety it was agreed that he should 
convey to the surety a tract of land, and that the agreement has not 
been performed. Fraser v. Goode, 3 Rich. (S. C.) 199. It is no de- 
fense that the debtor had a set-off against the holder of the note of 
which the surety had notice, and yet paid the note without his consent. 
Rawson v. Rawson, 105 Mass. 214. If the principal has a good de- 
fense, the surety cannot disregard it. Minis v. McDowell, 4 Ga, 182. 

§ 19. Subrogation of surety to the rights of creditor. Where 
the debtor has placed in the hands of the creditor, or even in the hands 
of one of the sureties, any securities, the law considers it the intention 
of the parties that these securities, rather than the sureties, shall pay 
the debt. Therefore, when the surety has been obliged to pay the 
debt, he can claim of the creditor all that he holds from the debtor, 
and to be subrogated in his place. Levns v. Palmer, 28 N. Y. 271 ; 
ErVs Apjyeal, 2 Penr. & W. 296 ; Wade v. Green, 3 Humph. 
(Tenn.) 547; Colmn v, Owens, 22 Ala. 782; Barnes \. Morris, ^ 
Ired. (N. C.) Eq. 22; Smith v. Sioain, 7 Rich. (S. C.) Eq. 112; Hill 
V. Manser, 11 Gratt. (Ya.) 522; Pearl v. Deacon, 24 Beav. 186; 
City Bank v. Dudgeon, 65 111. 11. 

A creditor, who is la^vfully called upon to pay and pays the claim of 
another creditor, which is preferable to his, takes his place. Spiller v. 
Creditors, 16 La. Ann. 292. This right of subrogation does not depend 
on any contract or on any request of the debtor, but rests on principles 
of justice and equity. Matheios v. Aiken, 1 Comst. (N. Y.) 595. The 
surety need not know of this right, nor stipulate for it, or know of 
the existence of the security. Dempsey v. Bush, 18 Ohio St. 376 ; 
Pearl v. Deacon, 24 Beav, 186. The subrogation has relation back to 
the date of the contract of suretyship. Mc Arthur v. Martin, 2 Law 
& Eq. Rep. (Mhm.) 709. A part payment gives the surety no rights 
{Ex parte Rushforth, 10 Yes. 409 ; Gannett v. Blodgett, 39 N. H. 150) ; 
unless the rest of the debt is paid by the principal {Hess Estate, 69 
Penn. St. 272 ; Field v. Hamilton, 45 Yt. 35 ; Magee v. Leggett, 48 



214 PRINCIPAL AND SURETY. 

Miss. 139) ; or unless the surety is bound only for part of the debt. That 
part of the payment is by a set-ofE between the surety and creditor 
makes no difference. Keokuk v. Love^ 31 Iowa, 119. Any person 
who takes any such securities from the creditor with notice is bound in 
equity to hold them for the indemnity of the surety, and they are sub- 
ject to all equities which the surety could originally enforce. Atwood 
V. Vincent, 17 Conn. 675 ; Fawcetts v. Kimmey, 33 Ala. 261 ; Jones v. 
Tinclier, 15 Ind. 308 ; Dozier v. Lewis, 27 Miss. 679 ; Arnot v. Wood- 
hum, 35 Mo. 99 ; Sears v. Laforce, 17 Iowa, 473 ; Ottman v. Moak, 
3 Sandf. (N. Y.) Ch. 431 ; I)en7iy v. Lyon, 38 Penn. St. 98. A surety 
who had paid a judgment against himself and his principal was given 
control of it for the purpose of enforcing it against his principal. 
Davenport v. Hardma/n, 5 Ga. 580 ; Smith v. Lluvisey, 33 Mich. 183. 
Where a sheriff has wrongfully levied on property and delivered it to 
the creditor, and his sureties are held for the tort, they may recover it 
of the creditor. Skiff v. Cross, 21 Iowa, 459. A surety who pays the 
debt, and takes a conveyance of all the creditor's interest in the land 
mortgaged to secure it, becomes in effect the mortgagee, and the debt 
and mortgage will pass by a residuary clause in his will. Dearhom v. 
Taylor, 18 N. H. 153. Where a person, by particijDating with a guar- 
dian in wasting the property of his ward, became liable, the sureties of 
the guardian upon payment were subrogated to the rights of the ward 
against him. Fox v. Alexander, 1 Ired. (N. C.) Eq. 340; Rhame v. 
Leiois, 13 Rich. (S. C.) Eq. 269 ; Edmunds v. Yenalle, 1 Patt. & H. 
(Ya.) 121. Where the real estate of the surety is levied upon to satisfy 
a judgment against him and his principal, subsequent judgment cred- 
itors who have a lien are subrogated to the benefit of the judgment as 
against the principal. Neff's Appeal, 9 W. & S. (Penn.) 36. The 
indorser of a note given by a creditor to prevent a sale of the debtor's 
chattels, upon a prior judgment, who has paid the note, gains the ben- 
efit of the judgment. CottrelVs Appeal, 23 Penn. St. 294. Where 
after a judgment against a principal and surety as such, a third person 
intervenes and becomes bail for a stay of execution, being indemnified, 
but the surety is oljliged to pay, he can call upon the bail. Sohnitz- 
zeVa Appeal, 49 Penn. St. 23. A surety upon a second bond, given 
as collateral security for the original bond, has a right upon payment 
of his own bond to be substituted to the original creditor as to the first 
bond, and to have an assignment thereof as an independent existing 
obligation for the debt. Tlodyson v. Shaw, 3 Myl. & K. 183; Cheese- 
hroufjh v. Millard, 1 Johns. Cli. (N. Y.) 413 ; MoCormick v. Irwin, 35 
Penn. St. 111. A guardian who by his neglect to sue a former guard- 
ian is charged with the sum due the ward has, on payment, an action 



PUmCIPAL AND SUEETY; 215 

against the former guardian, or bis sureties. Smith v. Alexander, 4 
Sneed (Tenn.), 482. Where the mortgage of indemnity given the sure- 
ties was invalid, they were subrogated to the place of a judgment cred- 
itor who had levied. Hooe v. Barber, 4 Hen. & M. (Ya.) 439. The 
surety on an injunction bond for a judgment debtor has the benefit of 
the lien {Rodger s v. McCluer, 4 Graft. [Ya.] 81) ; or the benefit of a 
trust deed by which the debt is secured. Billings v. Sjyrague, 49 111. 
509. He is entitled to dividends in bankruptcy declared to the creditor 
after payment. Ex parte Brook, 2 Rose, 334. Where a mortgagee 
has two funds to one of which a junior mortgagee had a claim, if he 
appropriates that, the junior has his rights on the other. Hunt v. 
Townsend, 4 Sandf. (N. Y.) Ch. 510. Where there are two debts 
between the same parties, one with security and the other wath a surety, 
the surety is entitled to any sm-plus of the secm-ity. Praed v. Gar- 
diner, 2 Cox, 86. Where the creditor holds security both from the 
debtor and the surety, he must hold all the first for the sureties' benefit. 
Merchant^ Bank v. Maud, 18 W. E,. 312. A surety for the payment 
of the price of land conveyed, or to be conveyed to his principal, is 
entitled to be subrogated to the vendor's lien, or to his principal's right 
to a deed when he has paid the price. Kleiser v. So^ott, 6 Dana (Ky.), 
137 ; Davidson v. Carroll, 20 La. Ann. 199 ; Arnold v. Hicks, 3 
Ired. (IT. C.) Eq. 17 ; Gilliam v. Esselman, 5 Sneed (Tenn.), 86. Per- 
haps before payment {Hatcher v. Hatcher, 1 Band. [Ya.] 53) ; even after 
the land has passed to a purchaser, if with notice. Freeman v. Mebane, 
2 Jones' (N. C.) Eq. 44. The sureties of a stockholder in a bank whose 
stock was holden for liis debt are subrogated to this lien. Klopp v. 
Lebanon Bank, 46 Penn. St. 88. 

§ 20. When uot subrogated. In many cases, the courts, while not 
denying the right of the sm-ety to claim subrogation to any security, 
have refused to allow his claim in the form in which he has pre- 
sented it. Thus, where execution has issued against the principal and 
surety which the surety has satisfied, he cannot take the execution and 
use it against his principal or the co-sureties. Carr v. Glasscock, 3 
Gratt. ( Ya.) 343 ; Smith v. Harrison, 33 Ala. 706 ; McEee v. Amo- 
nett, 6 La. Ann. 207 ; Armstrong's Appeal, 5 Watts & S. (Penn.) 
352. It must appear that the creditor has obtained, or is to obtain, fuU 
satisfaction of his claim, and can derive no farther benefit from the 
securities for the debt, and that it would be against equity and good 
conscience for him to detain them farther. Union, Bank v. Edwards, 
1 Gill & J. (Md.) 346; Lee v. Griffin, 31 Miss. 632 ; Coates' Appeal, 
7 Watts & S. (Penn.) 99 ; Glass v. PulUn, 6 Bush (Ky.), 346 ; D&- 
Icmey v. Tipton, 3 Hayw. (Tenn.) 14. The surety must also fully in- 



216 PKIITCIPAL AND SUEETT. 

demnifv tlie creditor against all costs and expenses. Beardsley v. 
Wa7'7ie/\ 6 Wend. 610. It follows that he cannot claim the secu- 
rities so long as they may be of any benefit to the creditor, and a 
surety who has made a partial payment cannot claim the benefit pro 
tanto, for the creditor has a right to hold all his remedies against the part 
remaining unpaid. Stamford Bank v. Benedict, 15 Conn. 43Y ; Gan- 
nett V. Bhdgett, 39 N. H. 150 ; Ex parte Rushforth, 10 Yes. 409. 
He cannot by substitution gain any better position than his principal 
held at the time he gave the security. Bank of Ilopkinsville v. Rudy, 
2 Bush (Ky.), 326, He will not be subrogated as against a co-surety to 
the prejudice of other creditors, not parties to the arrangement, except 
in a clear case. Lloyd v. Galhraith, 32 Penn. St. 103. He may be 
required first to show that the principal is not responsible, and that the 
subrogation is necessary for his protection. Rittenhouse v. Levering, 
6 Watts & S. (Penn.) 190. Where he has sued the principal and been 
defeated, he cannot then claim to be substituted. Fink v. Mahaffy, 
8 Watts (Penn.), 384. A surety on a note given by a captain for sup- 
plies was not subrogated to the lien given by statute against the vessel. 
Hays V. The Coluinhus, 23 Mo. 232. A surety for part of a debt is 
not entitled to the benefit of security given by the debtor at another 
time for another part. Wade v. Coope, 2 Sim. 155. Other parties 
may have a better equitable claim to the secm*ity than he, by some in- 
terest lawfully acquired afterward. Thus, a surety, who does not ap- 
pear as such in the judgment, cannot have a levy made on the princi- 
pal's lands, which are in the hands of an innocent purchaser rather 
than on his own. Dougherty v. Richardson, 20 Ind. 412. Where one 
had ]iurchased land on credit subject to forfeiture, and had given bond 
for it with sureties, and afterward contracts to sell it to others, the 
equity of such purchasers is superior to that of the sureties. Rush v. 
State, 20 Ind. 432. The surety of a surety cannot be subrogated as 
against the principal if the debtor has paid his immediate surety. Bank 
V. FletcJter, 5 Wend. 85. A person who, as bail, pays the debt, 
has no right to be subrogated to the creditor's right against a surety 
on the original del)t {Smith v. Bing, 3 Ohio, 33), nor can the surety 
recover against tlie bail. Armitage v. Baldwin, 5 Beav. 278. A 
stranger who pays tlie debt is not subrogated. Elmendorph v. Tap- 
pen, 5 Johns. 176. 

§ 21. Ettcct of subrogation. Subrogation is an equitable right 
given for the protection of the surety. He cannot make it a means of 
C8ca])ing from his contract or of injuring others. Thus a surety for 
the purchase-money of land can claim the benefit of a mortgage given 
to secure its payment, but he cannot claim to be excused for any 



PRINCIPAL xlND SURETY. 217 

defect of title, or because the vendor does not discharge some previous 
incumbrance. Lyon v. Leamtt, 3 Ala. iSO. A surety does not by 
his contract acquire any lien on, or control over the property of his 
principal, and when he has paid, though he succeeds to the lien of the 
creditor, yet he cannot supersede the just claims or liens of interme- 
diate creditors. Johnson \.2£orrison, 5 B. Mom-. (Ky.) 106; Himes 
V. Keller^ 3 "Watts & S. (Penn.) 401. But where the right to demand 
a conveyance of the land for the payment of the purchase-money for 
which he has become responsible is sold by the sheriff, the purchaser 
takes it subject to the sureties' right of subrogation. Smith v. Schnei- 
der, 23 Mo. 447. Where a co-surety has taken a mortgage of indemnity, 
and foreclosed it, and litigation to open the foreclosure is in progress, 
the surety need not assert his right tUl the question is determined. 
Grant v. Ludlow, 8 Ohio St. 1. A surety who paid a judgment was 
allowed to issue execution thereon to recover the amount. Connely 
V. Bourg, 16 La. Ann. lOS. Where a creditor, after he is paid by the 
surety, receives a di^ndend from the estate of the principal, he is hable 
for it to the surety, for he cannot be paid twice. Self ridge v. Grill, 4 
Mass. 95. After subrogation the surety was allowed to maintain a bUl 
to set aside a voluntary conveyance by the principal. Tatum v. Ta- 
tum, 1 Ired. (X. C.) Eq. 113. 

§ 22. Assigning creditor's securities. In America the doctrine is 
that the surety may have an assignment of the rights to which he is 
subrogated where such assignment will be of any benefit. Springer 
V. Springer, 43 Penn. St. 518 ; Atwood v. Yince7it, 17 Conn. 576 ; 
Connely v. Bourg, 16 La. Ann. 108 ; Powell v. White, 11 Leigh (Va.), 
309 ; Mathevjs v. AiJcin, 1 Comst. (S. T.) 595. In other cases he 
is refused on the assignment of the original contract as that is dis- 
charged. Dennis y. Bider, 2 McL. (C. C.) 451 ; Foster v. Trustees, 
3 Ala. 302. But the debt will be upheld as an existing liability so far 
as it is necessary to support the securities to which the surety has gained 
a right by payment. Brewer v. FranTdin Mills, 42 K. H. 292. 

And tliis is especially true, if the surety on pa}anent takes from the 
creditor an assignment of the contract and the collaterals. In such 
case there is no extinguisliment of the security, but the surety succeeds 
to the creditor against the principal. Norton v. Soule, 2 Green 
(Me.), 341 ; Powell v. Smit?i, 8 Jolms. (N. T.) 249 ; Pigoux. French, 
1 Wash. (U. S.) 278 ; Edgerlyx. Emerson, 23 X. IL 555 ; Cochran v. 
Shields, 2 Grant's (Pa.) Cas. 437. Thus where the surety pays a 
judgment recovered against himself and the debtor jointly, he is en- 
titled to an assignment of it, and may enforce it as a subsisting judg- 
ment against his principal. Clason v. Morris, 10 Johns. 524 ; 
Vol. v.— 28 



21S PRmCIPAL AXD SURETY. 

McDougaldx. Dougherty^ 14 Ga. 674; Alexander v. Leiois, 1 Mete. 
(Kv.) 4:07 ; Creager v. Brengle, 5 Harr. & J. (Md.) 234 ; Goodyear v. 
Watson, 14 Barb. 481. But in other cases it has been held that 
where the surety has paid the execution, it cannot be kept open for his 
benefit, but the payment is a satisfaction of it. Morrison v. Marvin^ 
6 Ak. 797 ; McKee y . Amonett, Q La. Ann. 207; Armstrong's Ap- 
peal, 5 Watts & S. (Pa.) 352 ; Carr v. Glasscock, 3 Gratt. (Ya.) 343. 
In Uanner v. Douglass, 4 Jones' (K. C.) Eq. 2G2, it was held that 
in equity he could require an assignment of the judgment to a trustee 
and then enforce it for his re-imbursement and pursue the bail of his 
principal for that purpose. If after judgment against the principal and 
surety a thu-d person interposes and gets a stay by giving his note, and 
the surety afterward pays, he is entitled to an assignmeut of the judg- 
ment on the note. Pott v. Nathans, 1 Watts & S. (Pa.) 155. 
So one, who has lent his note to a purchaser of land to use m payment, 
can call upon the seller for an assignment of a mortgage given to se- 
cure the purchase-money. Chouler v. Smith, 3 Desau. (S. C.) 12. The 
sureties of an execution debtor who have paid it, may take an assignment 
to a tlui'd person for their benefit, where the sheriff has been in default but 
has no right of subrogation, as where he is liable for money received, but 
not paid over ; but where he is liable for mere default in collecting, he 
has a right to the execution on being compelled to pay and the sureties 
have not. Bellows v. Allen, 23 Yt. 169. A person who has given 
an accommodation note partly for liis own benefit, and on which the first 
indorser has secured the second, who is afterward discharged, has no 
right in such security even though assigned to him, and it reverts to 
the pledgor. Higgins v. Wright, 43 Barb. 461. There is no sub- 
rogation unless the entire debt is paid, and no pro tamo assignment 
is allowed. Neptune Ins. Co. v. Dorsey,2, Md. Ch. 334; Swanx. 
Patterson, 7 Md. 164 ; Gannett v. Blodgett, 39 N. II. 150. Where 
a surety has taken an assignment of a judgment he cannot enforce it to 
give himself any unjust advantage over other parties to the contract. 
Mc Daniel v. Lee, 37 Mo. 204. 



ARTICLE Y. 

OF THE KIGIITS OF CO-SURETIES. 

Section 1. In goncral. The law will, so far as possible, put all the 
sureties on a foot ing ofctpiality, and for this purpose it will compel them 
to share among themselves alike, any payments which they are compelled 
to make, and any securities tlicy may have received. Thus, where a 



PRINCIPAL AND SURETY. 219 

surety, before he is damnilied, takes security frcm the principal 
to indemnify himself against loss, a co-surety is entitled to share the 
protection thus afforded. Brown v. Haij, 18 N. PL 102 ; Steele v. 
Mealing, 24 Ala. 285 ; Smith v. Conrad, 15 La. Ann. 579 ; Lane v. 
Stacy, 8 Allen (Mass.), 41 ; Schmidt v. Coulter, 6 Minn. 492 ; Paulin 
V. Kaighn, 27 N. J. (3 Dutch.) L. 503 ; Gregory v. Murrell, 2 Ired. 
(N. C.) Eq. 233 ; Agnew v. Bell, 4 Watts (Pa.), 31 ; Boll lit v. 
Flowers, 1 Swan (Tenn.), 511 ; Aldrich v. lIai)good, 39 Yt. 617 ; 
Sielert v. Thompson, 8 Kans. 65. The right of the co-sureties to 
participation in the benefit of the security attaches when it is taken, 
and the surety indemnified cannot divest it by any subsequent dealings 
with the principal or purchase of claims against him not contemj^lated 
at the time. Brown v. Ray, 18 K. H. 104. So, where a trust deed 
was made by the principal to three out of four of the sureties on a 
court bond, and the condition of the deed was the payment of the 
judgment, all the sureties have the benefit, and the three named 
cannot apply the trust property to their liabilities to the exclusion of 
the other. Bell v. Lamkin, 1 Stew. & P. (Ala.) 460 ; McMahon v. 
Fawcett, 2 Rand. (Ya.) 514. In their deaHngs with each other the 
sureties must use reasonable diligence and good faith. Rolinson v. 
Brooks, 32 Ala. 222 ; Teeter v. Pierce, 11 B. Monr. (Ky.) 399. One 
cannot discharge security taken for the benefit of both against the in- 
terest of the other. Hayes v. Davis, 18 N. H. 600. Where the 
sureties are responsible for the return of property, and one co-surety 
who has it delivers it to the obligor and it is lost, he is responsible to 
his co-sureties. Kent v. Long, 8 Ala. 44. He is not liable to his co- 
surety for a neglect to record the mortgage of indemnity. White v. 
Carlton, 52 Ind. 371. Where tlie last indorser is secured, the first 
indorser cannot have the collection of the biU enjoined against himself 
on the ground that the former refuses to sell the trust property and 
apply it to the debt. His remedy is to pay himself and claim subro- 
gation. Dunlap V. Clements, 7 Ala. 539. A suret}^ is not obliged to 
proceed against the principal before calling on his co-surety. Caldwell 
V. Rolerts, 1 Dana (Ky.), 355. He must be damnified in liis relation 
as surety before he can sue his co-surety. People v. Duncan, 1 Johns. 
(N. Y.) 311. Wliere the matter has been adjusted and each surety has 
paid his share, and one of them receives indemnity, the other has no 
claim on it. LLall v. Cushmaii, 16 N. H. 462. Where one surety be- 
came such at the request of the other, the latter cannot claim contribu^ 
tion. Apgar v. Ililer, 24 N. J. (4 Zabr.) Law, 812. So, if one surety 
is a party to a binding agreement to give time to the principal, he can 
make no claim on the other surety who has not assented to it. Bough- 



220 PRIKCIPAL AND SURETY. 

ton V. Bank of Orleans, 2 Barb. (N. Y.) Ch. 458. One wHo comes 
into the proceedings at a later period, under an agreement with the 
creditor that he shall have the benefit of the judgment for his protec- 
tion, is not obliged to share this advantage with previous creditors. 
LaGrange v. Merrill, 3 Barb. (N. Y.) Ch. 025. But in McGormick 
V. Irwin, 35 Penn. St. Ill, it was held that a surety was entitled to 
be subrogated to the rights of the creditor as against subsequent sure 
ties. A surety has no claim on security given by a co-surety to the 
creditor. Bowditch v. Green, 3 Mete. (Mass.) 360. No act of one 
sm-ety will release his co-surety from the debt. Whitehill v. Wilson, 
3 Penr. & W. 405. A release of one surety does not release the other. 
Ex parte Gifford, G Yes. 805. 

§ 2. Rights to contribution. "Where the liability of the sureties 
is joint, they are bound to contribute equally to the debt which they 
have undertaken to pay. Paul v. Berry, Y8 111. 158. The right to 
demand contribution is the result of a general equity resting on the 
ground of equality of burden and benefit. McDonalds. McGruder, 

3 Pet. (U. S.) 4T0 ; Tyus v.DeJarnette, 26 Ala. 280 ; Smith v. Hicks, 5 
Wend. (N. Y.) 48 ; Norto^i v. Coons, 6 N. Y. (2 Seld.) 33 ; Patterson v. 
Patterson, 23 Penn. St. 464; Paulin v. Kaighn, 29 IST. J. Law (5 Dutch.) 
480 ; Neilson v. Fry, 16 Ohio St. 552. Any thing which the creditor 
accepts as satisfaction, as the note of the surety will be a payment 
{Plnkston v. Taliaferro, 9 Ala. 547 ; Robertson v. Maxcey, 6 Dana 
[Ky.], 101) ; even before payment. White v. Carlton, 52 Ind. 371. 
If the surety paying has been paid in part from any source, he can claim 
contribution for the remainder. If he has had security, he is charge- 
able with reasonable care of it, and a faithful application of the pro- 
ceeds. John V. Jones, 16 Ala. 454 ; Carpenter v. Kelly, 9 Ohio, 106. 
If the two sureties have paid equally, and one of them afterward re- 
ceives repayment, he must share. Smith v. Hicks, 5 Wend. 48. It 
is not necessary that the sureties should be bound upon one instru- 
ment if their liability is equal in time unless the contracts are sep- 
arate and distinct. Coope v. Twynam, T. & R. 426 ; Mayheio v. Crickett, 
2 Swanst. 185 ; Bodey v. Taylor, 5 Dana, 157; Craig v. Ankeney, 

4 Gill (Md.), 225 ; JIarris y.Furguson, 2 Bailey (S. C:), 397. Where 
several persons sign without communication with each other, all are 
c<jiially liouiid to contril^ite. Norton v. Coons, 6 N. Y. (2 Seld.) 33; 
Chajfee v. Jmes, 19 Pick. 260 ; Stout v. Vause, 1 Rob. (Ya.) 169. 
The ])resumption is that they are co-sureties and liable to con- 
tribute to the payment. Richards v. Simms, 1 Dev. & B. (N. C.) 
L. 48. Accommodatitni indorsers are held to be co-sureties. Douglas 
V. Waddle^ 1 Ohio, 413. Where part of the sureties are insolvent in 



PEINCIPAL AND SURETY. 221 

equity, those who are solvent must pay equally. Cobb v. HayneSy 8 B. 
Monr. (Ky.) 137 ; Doddv. Winn, 27 Mo. 504 ; Stothoff v. Dvmham, 19 
N. J. Law (4 Har.), 181. But at law each surety is liable only for his 
aliquot part without regard to the question whether the other can pay. 
Samuel v. Zachery, 4 Ired. (N C.) L. 377. The principle applies be- 
tween other persons jointly hable. Sue' of Whitehead, 3 La. Ann. 396 ; 
RoMSom V. Keyes, 9 Cow. (N. Y.) 128. It is not necessary that the 
payment should be compulsory. Stallworth v, Preslar, 34 Ala. 505 ; 
Linn v. McGlellamd, 4 Dev. & B. (N, C.) L. 458. An action lies with- 
out previous notice and special demand. Chaffee v. Jones, 19 Pick. 
(Mass.) 260 ; Ca^e v. Foster, 5 Yerg. (Tenn.) 261 ; Foster v. Johnson, 
5 Yt. 64 ; Parham, v. Green, 64 N. C. 436. He may use the judgment 
and execution got by the creditor against his co-surety. Morris v. 
Evans, 2 B. Monr. (Ky.) 84; Cuyler v. Ensworth, 6 Paige (N. Y.), 32. 
In some States it is held that no recovery can be had of a co-surety 
unless it appears that the principal is insolvent. Daniel v. Bal- 
lard, 2 Dana (Ky.), 296 ; Stone v. Buckner, 12 Sm. & M. (Miss.) 73 ; 
Allen V. Wood, 3 Ired. (N. C.) Eq. 386. The creditors of a surety, 
whose lien on his land has been defeated by a sale to pay the debt, may 
reach a fund held as indemnity by liis co-surety. Moare v. Bray, 
10 Penn. St. 519. Contribution against sureties on a replevin bond 
was allowed to sureties on a subsequent injunction bond. Brandenhurg 
V. tlynn, 12 B. Monr. (Ky.) 397. Where the owner of goods with 
another became sureties on a custom-house bond in which the consignee 
was principal, the owner is entitled to contribution against the other 
surety. Taylor v. Savage, 12 Mass. 98. Where the sureties are for 
different sums their duty of contribution is limited accordingly. 
Craythorne v. Simnhurne, 14 Yes. 160. 

§ 3. Amount recoverable. The principle upon which the right of 
contribution rests is, that those who have assumed the burden ought 
to bear it equally. It follows that they must share the principal of 
any payment and all incidents legally following from it, such as in- 
terest and costs. McKenna v. Gem^ge, 2 Rich. (S. C.) Eq. 15 ; 
Fletcher v. Jackson, 23 Yt. 581 ; Miles v. Bacon, 4 J. J. Marsh. 
(Ky.) 463 ; Davis v. Emerson, 17 Me. 64. If the surety held indem- 
nity which was first to be applied on the debt, he will be allowed from 
the sum realised his expenses and a commission. Livingston v. Van 
Renssekier, 6 Wend. 63. If the surety is able to satisfy the debt in 
depreciated currency or in property above its value, the advantage 
so gained will inure to the benefit of his co-sureties, and he cannot 
recover of them only according to the real value parted with. Comegys 
V. Siate Ba/nk^ 6 Ind. 357; Crozier v. Grayson, 4 J. J. Marsh. (Ky.) 



222 PRINCIPAL AND SURETY. 

517; Klein v. Mather, 2 Gilm. (111.) 317. If, on the other hand, he 
transfers property in payment of greater value than the debt, he can- 
not claim the excess of his co-sureties. Jones v. Bradford, 25 Ind. 
305 ; Hickman v. McCurdy, 7 J. J. Marsh. (Ky.) 558. In equity, 
anv payment which he has received must first be credited and he can 
recover only for the remainder {McMullin v. Bank of Penn Town- 
ship, 2 Penn. St. 343) ; though, perhaps not at law. Goidd v. Fidler, 
IS Me. 364. If he is indemnified, he must apply the indemnity to the 
debt and recover for the balance. Bachelder v. Fiske, 17 Mass. 464 ; 
Fagam, v. Jacocks, 4 Dev. (N. C.) L. 263 ; Hinsdill v. Mxirray, 6 Yt. 
136; contra: Taylor v. Savage, 12 Mass. 98. If part of the sureties 
are insolvent, they are disregarded in calculating the amount. Dodd 
V. Winn, 27 Mo. 501 ; Stothoff v. Dunham, 19 N. J. (4 Ear.) L. 
181; CohhY. Haynes, 8 B. Monr. (Ky.) 137; Currier v. Baker, 51 
N. H. 613. But at law the rule may be different. Samuel v. Zachery, 
4 Ired. (N. C.) L. 377. If he has an assignment of the creditor's judg- 
ment, he will only be allowed to use it to collect the just proportion of 
his co-surety. Kelly v. Page, 7 Grray, 213. If the sureties are bound 
on different obligations, the contribution between them is in propor- 
tion to the penalties of the respective bonds. Armitage v. Pulver, 
37 N. Y. 494. A claim of the debtor against the surety plaintiff 
cannot be set off. O'Blenis v. Ka/ring, 57 N. Y. (12 Sick.) 649. 

§ 4. When not recoverable. Contribution can be claimed only 
between co-sureties, that is, between those whose liability is joint, but 
not between those whose liabilities are successive {Hoskins v. Parsons, 
1 Mete. [Ky.] 251), as, for example, successive indorsers {Spence v. 
Barclay, 8 Ala. 581 ; Stiles v. Eastman, 1 Ga. 205 ; Smith v. Smith, 
1 Dev. [N. C] Eq. 173) ; or between surety and guarantor {Longley 
V. Griggs, 10 Pick. [Mass.] 121) ; or as against the surety of a surety 
{Knox V. Vallandingham, 13 S. & M. [Miss.] 526 ; Price v. Ed- 
wards, 11 Mo. 524 ; Shackleford v. Stockton, 6 B. Monr. [Ky.] 390) ; 
or as against a surety who has become such at the request of the surety 
who has paid. Byers v. McClam,ahan, 6 Gill & J. (Md.) 250. A 
mere request Ijy one to the other to sign was held not enough to bar 
contribution. Bagott v. Mullen, 32 Ind. 332 ; S. C, 2 Am. Rep. 351. 
WJierc one surety becomes such at the request of anotlier, who indem- 
nifies him, they are not co-sureties, and the former cannot retain the 
expenses of his defense from tlie indemnity. Solomon v. Reese, 34 
Cal. 28. And on the other hand, the surety who signs at the request of 
the other can recover the whole sum he pays. Baxter v. Moore, 5 
Leigh (Va.), 219. A principal and surety may both be principals to 
another surety. Srmth Y.Anderson, 18 Md. 520 ; Cra/ythorne v. Swm- 



PRINCIPAL AND SURETY. 223 

Imrne, 14 Yes. 160. The co-surety is not liable where it was expressly 
agreed that there should be no contribution {Keitlt v. Goodwin^ 31 Yt. 
268 ; Paul v. Berry ^ 78 111. 158) ; even where this arrangement was made 
with the principals, and was not known to one who had before signed, ex- 
pecting that the other would l^e co-surety with him {Adams v. Flana- 
gan^ 36 Yt. 400 ; Harrison v. Lane, 5 Leigh [Ya.], 414) ; or where the 
liability was on successive bonds in legal proceedings. Dunlap v. Foster, 
7 Ala. 734 ; Yoder v. Briggs, 3 Bibb (Ky.), 228 ; Old v. ChamUiss, 3 
La. Ann. 205 ; Smith v. Bing, 3 Ohio, 33 ; Langford v. Perrin, 5 
Leigh (Ya.), 552. "Where there is a joint liability, the surety may lose 
his right to contribution by some neglect or misconduct of his own, for 
the sureties stand in a relation of trust to each other, and are held to 
diligence and good faith. Thus, if he has security and afterward, with- 
out the consent of his co-surety, surrenders it, or abandons it, he will be 
charged mth its value. Taylor v. Morrison, 26 Ala. 728 ; Kerns v. 
Chambers, 3 Ired. (N. C.) Eq. 576 ; Chilton v. Chapman, 13 Mo. 
470. So, if he allows the mortgagor to squander the property. Tee- 
ter V. Pierce, 11 B. Monr. (Ky.) 399. Of the same nature is an ab- 
solute release of the principal from all liability arising out of the con- 
tract. He can no longer compel the co-sureties to pay, for by so doing 
he would be indirectly making the principal Kable. Fletcher v. Jack- 
son, 23 Yt. 581. A surety cannot call on a co-surety who has been 
released with his consent. Bouchaud v. Bias, 3 Den. (N. T.) 238. 
A sm-ety who is f uUy indemnified must look to his indemnity and not 
to his co-surety. Morrison v. Taylor, 21 Ala. 779; Goodloe v. 
Clay, 6 B. Monr. (Ky.) 236; Ramsey v. Lewis, 30 Barb. 403. 
Where a surety, for a consideration, obtains indemnity, Ms co-surety 
cannot get the benefit of it except by sharing the costs. White v. 
Banks, 21 Ala. 705. If the payment by the surety is voluntary after 
he has ceased to be liable, or where the note is void, he cannot claim con- 
tribution. Skillin V. Merrill, 16 Mass. 40 ; Russell v. Failor, 1 
Ohio St. 327. He cannot recover contribution of a co-surety, as to 
whom the debt was barred at the date of payment. SJielton v. Farmer, 
9 Bush (Ky.), 314. The right does not arise till one has overpaid his 
share. Camp v. Bostwick, 20 Ohio St. 337 ; S. C, 5 Am. Rep. 669. 
He cannot recover costs incurred in a defense unless it was reasonable. 
McKenna v. George, 2 Rich. (S. C.) Eq. 15 ; Fletcher v. Jacksor, 23 
Yt. 581. 

After adjustmen between the sureties one may take and keep pay- 
ment of his share from the principal. Messer v. Swan, 4 N. H. 481 ; 
Moore v. Lsle, 2 Dev. & B. (N. C.) Eq. 372. One surety may stip- 
ulate for separate indemnity. Thompson v. Adams, Freem. (Miss.) 



004 PRINCIPAL AND SURETY. 

Ch. 225 ; Com. Bank v. Western Bank, 11 Ohio, 444. Where he 
has paid one-half of the execution, he cannot order th e sheriff to levy 
the other half on the property of the co-surety. Schooleij v. Fletcher, 45 
Ind. '$>'o. Where judgment has gone in favor of one surety and 
against the other, there is no contribution. Ledoux v. Durrme, 10 La. 
Ann. 7. 

§ 5. How obtained. The form of remedy is determined by the 
statutes in each State, and to some degree by the form of the contract. 
Under the old practice the most appropriate remedy was by proceed- 
ings in equity, which gave relief where the law did not, in cases where 
one surety was insolvent. Browne v. Lee, 6 B. & C. 697 ; Peter v. 
Rich, 1 Ch. Rep. 34 ; Dodd v. Winn, 27 Mo. 501 ; Oarrington v. 
Carson, Cam. & N. ("N". C.) 216. But an action is maintainable at law 
where there is only an ascertained sum to be recovered, and no equities 
or conflicting rights to be adjusted. Sherrod v. Woodard, 4 Dev. (N. 
C.) L. 363. In many States a summary remedy is given, whereby the 
surety on motion may have a judgment against his co-sureties. 
Young v. Cla/rk, 2 Ala. 264. This must be in the court, where is the 
original suit. Bade v. Mandeville, 1 Cranch (C. C), 92. If the de- 
fendant appears and pleads, it proceeds like any other suit. Ruther- 
ford V. Smith, 27 Ala. 417. In some States it is only allowed where 
the principal is insolvent, and this must appear in the record. Batson 
V. Lasselle, 1 Blackf. (Ind.) 119. In Kentucky the motion and notice 
may be joint by several sureties, although the recovery must be several. 
Larnpton v. Bruner, 2 Litt. (Ky.) 141. 

§ 6. Parties to action. At law, only the party who is Kable to 
contribution is to be made a party. Where there are more than two 
sureties, they must be sued separately and not jointly. Powell v. 
Matthis, 4 Ircd. (j^. C.) L. 83. Where the surety has a right to do so 
by agreement with the creditor, he may enforce contribution in his 
name. McCourtney v. Sloan, 15 Mo. 95. In equity all parties whose 
rights are affected should be joined. The principal debtor must be a 
party, unless insolvent. Ralney v. Yarhorough, 2 Ired. (N. C.) Eq. 
249 ; Johnson v. Vaughn, 65 111. 425 ; Trescot v. Smyth, 1 McCord's 
(S. C.) Ch. 301 ; contra : Couch v. Terry, 12 Ala. 225. Co-sureties, 
who arc insolvent, need not be joined. Burroughs v. Lott, 19 Cal. 
125 ; Young v. Lyons, 8 Gill (Md.), 162 ; Couch v. Terry, 12 Ala. 
225. Sureties in other connected proceedings are not parties ; thus 
sureties on the judgment are not parties to a bill against sureties on 
an injunction bond. Llilton v. Crist, 5 Dana (Ky.), 384. Sureties 
out of the jurisdiction may be disregarded. Jones v. Blanton, o Ired. 



PKINCIPAL AND SURETY. 225 

(N. C.) Eq. 115; Currier v. Baker, 51 N. II. 613. See Yol. 2, tit. 
Contribution. 

§ 7. Defenses to action. We have already considered some of the 
matters which will defeat a claim to contribution. Ante, 222, § 4. Since 
the right of contribution rests not upon contract, but arises from princi- 
ples of equity (1 Story on Eq., § 493), any matter in equity will be a 
defense which neutralizes the equity of the plaintiff. Dennis v. 
Gillespie, 24 Miss. 581. A promise by the surety suing to hold 
his co-surety harmless is a defense. Blake v. Cole, 22 Pick. 97. 
The co-surety is not bound by the judgment unless recovered with 
notice to him. Briggs v Boyd^ 37 Yt. 534. He cannot show either 
a total, or partial failure of consideration as between the original par- 
ties. CaA)e V. Burns, 6 Ala. 780 ; Briggs v. Boyd, 37 Yt. 534. It is 
a defense that the party paying owed the debtor more than he paid. 
Bezzell V. White, 13 Ala. 422. A release or abandonment of security 
is a defense jpr^ tanto. Roberts v. Say re, 6 T. B. Monr. (Ky.) 188 ; Tay- 
lor V. Morrison, 26 Ala. 728 ; Kerns v. Chambers, 3 Ired. (IST. C.) Eq. 
576 ; Chilton v. Chapman, 13 Mo. 470. It is no defense that their 
liabilities arise on separate instruments {Bell v. Jasper, 2 Ired. [IST. C] 
Eq. 597 ; Armitage v. Pulmr, 37 JST. Y. 494) ; nor that the surety has 
been discharged from his principal obligation. Clapp v. Bice, 15 
Gray, 557. It would seem that an agreement to give time to one 
co-surety would discharge the rest. Prescott v. Newell, 39 Yt. 82. A 
set-off may be pleaded in the action. Long v. Barnett, 3 Ired. (jSF. C.) 
Eq. 631. The real relations of the parties may be proved for the pur- 
pose of establishing a defense. Paulin v. Kaighn, 27 J^. J. Law 
(3 Dutch.), 503 ; Clapp v. Rice, 13 Gray, 403 ; Crosby v. Wyatt, 
23 Me. 156. It is no defense that the creditor has abandoned his 
attachment upon the property of a co-surety. Chipman v. Todd, 60 
Me. 282. A surety may have delay in a levy on his own property until 
any security from the principal is realized upon. Wooten v. Buchanam,, 
49 Miss. 386. An action cannot be delayed until the assets of the prin- 
cipal are distributed in bankruptcy. Gregg v. Wilson, 1 Law & Eq. 
Rep. (Md.) 211. Sureties are concluded by the same rules as to the 
application of payments which apply to their principals. Allen v. 
Culver, 3 Den. (N. Y.) 284 ; Brewer v. Knapp, 1 Pick. 332 ; Wooten 
V. Bicchanam,, 49 Miss. 386; Woods v. Sherman, 71 Penn. St. 100 ; Orn&- 
ville V. Pearson, 61 Me. 552 ; Com. Bank v. Muirhead, 4 U. C. C. 
P. 434. Part payment by a surety even from the proceeds of property 
pledged to him by the principal to indemnify him, takes the case out 
oi the statute of limitations. Holmes v. Durell, 51 Me. 201. Where 
tha surety guarantees the collection of a claun, the creditor must with- 
ToL. Y.— 20 



226 PRmCIPAL AND SURETY. 

out notice proceed within a reasonable time. Craig v. Parkis, 40 N. 
Y. (1 Hand) ISl. A release of one co-surety only discharges the other 
pro rata. Morgan v. Smith, 7 Hun (N. Y.), 244, See 5 id. 220. 



ARTICLE YI. 

OF THE DISCHAEGE OF SURETIES. 

Section 1. In general; what is. The contract of the surety is a 
conditional one. He has a right to ask that the party who asks 
performance of him shall himself have performed his duties. It is 
also evident that here, as elsewhere, he is only held to the contract 
which he has made. If it is altered without his consent, it becomes a 
new contract to which he is no longer a j)arty. MoKay v. McDonald, 
5 Ala. 388 ; Granite Bank v. Ellis, 43 Me. 367 ; Reed v. Garvin, 12 
S. & R. (Penn.) 100 ; Ludlow v. Simond, 2 Caines' (X. Y.) Cas. 38. 
He may be discharged by the substitution of a new surety in his 
place. Reid v. Nunnelly, 24 Ark. 356 ; Mclntyre v. Borst, 26 
How. (ISr. Y.) 411. So, the creditor may discharge him by a parol 
declaration that he will not look to him. Harris v. Brooks, 21 
Pick. 195 ; Foster v. Walker, 34 Miss. 365 ; IIoj)e v. Eddington, 
Hill & D. Sup. (N. Y.) 43. Any fraud or improper conduct of the 
creditor will discharge the surety. Franklin Bank v. Cooper, 36 Me. 
1T9; Ham v. Greve, 34 Ind. 19; 8hively v. U. S., 5 Watts (Penn.), 
332 ; Peacock v. Chapman, 8 La. Ann. 87. If the creditor, by his 
own act, prevents performance, he releases the surety. Trustees v. 
Miller, 3 Ohio, 261 ; Blest v. Brown, 4 DeG. F. & J. 367. Where 
the surety withdraws an appeal from a judgment against the principal 
and himself on the creditor's promise that he will look to the principal 
only, the surety is discharged. Wimherly v. Adams, 51 Ga. 423. 
Whei'c the Ijond was for the good conduct of an officer and provided 
that the surety might release himself on giving notice, provided the 
accounts are all settled, tliis limitation does not prevent his absolute 
release from all subsequent liability. Gass v. Sti7ison, 2 Sumn. (C. 
C.) 453. He may be released by a merger of the contract, as where 
he is surety on a judgment which is a lien on land, and the judgment 
and land are held by the same person. Wright v. Knepper, 1 Penn. 
St. 361. If he is surety on a lease for a year, he is not liable for a 
tenancy continued beyond tlie year. Brewer v. Knapp, 1 Pick. 
332. The question of discharge was held to depend on the laws 
of the State wliere the action was brought, not on those of the place 
of contract. Toomer v. Dickeraon, 37 Ga. 428. The question may 



PRINCIPAL AND SUEETY. 227 

depend on the form of the proceedings, but where there is an oppor- 
tunity to present it, the same defense will discharge a surety at law 
as in equity. People v. Jansen, 1 Johns. 332 ; Wayne v. Kirhy, 
2 Bail. (S. C.) 551. For this purpose, at least in equity, a judgment 
does not affect the relation. Smith v. Hice^ 27 Mo. 505; Trotter v. 
Strong, 63 111. 272. He is discharged when the creditor so changes his 
relations that he cannot secm'e himself by a payment and suit. 
Boschert v. Broicn, 72 Penn. St. 372. The fact that he is a surety 
must be known at the time of the acts rehed on as a discharge. Wilson 
V. Foot, 11 Mete. 285. 

If the creditor deprives the surety of any right which he would have 
had against the original debtor the surety is discharged. Polack v. 
Fverett, L. E., 1 Q. P. D. 669 ; S. C, 18 Eng. Eep. 104 If the cred- 
itor even by mistake tells the surety that the debt is paid and the surety 
acts upon his statement to his injury, he is released. Carpenter v. 
King, 9 Mete. (Mass.) 511 ; Thornburgh v. Madren, 33 Iowa, 380 • 
Merchants' Bank v. Rudolf 5 Neb. 527 ; Waters v. Creagh, 4 Stew. 
& P. (Ala.) 410 ; Drishell v. Mateer 31 Mo. 325 ; Wilson v. Green, 
25 Vt. 45<). Where the debtor offers to pay and the creditor refuses to 
take the money it releases the surety. Sailly v. Elmore, 2 Paige's 
(N. Y.) Ch. 497 ; Whitalcer v. Kirhy, 54 Ga. 277 ; Sears v. Van 
Diisen, 25 Mich. 351 ; Heed v. Boardman, 20 Pick. 441 ; Joslyn 
V. Eastman, 46 Yt. 258 ; contra : Clarh v. Sickler, 64 N. Y. 231 ; 
S. C, 21 Am. Eep. B06. But it is not so where the creditor induces 
the debtor to pay on another debt money he had intended to pay on 
this. Second Bank v. Boucher, 56 N. Y. 348. The creditor's deal- 
ing with any secondary security has the same effect as if with the 
debtor. Schroeppell v. Shaio, 3 Comst. (N. Y.) 446. "Where the 
creditor having a judgment lien on the property, purchased it, and 
applied the price on another debt, he cannot call on the surety. 
McMullen V. HinJcle, 39 Miss. 142. If the contract is joint only the 
estate of a surety deceased is not liable. Getty v. Binsse, 49 N. 
Y. (4 Sick.) 385 ; S. C, 10 Am. Eep. 379. 

§ 2. What is not a discharge. Neither omission of an act not 
specially enjoined by law, nor the commission of an act expressly 
authorized by law, is a discharge. Lmnsden v. Leonard, 55 Ga. 374. 
The creditor or obligee in the bond is allowed freedom of action in all 
matters which are either not prejudicial to the surety, or are contem- 
plated or implied in the contract. Where the bond is for the fidehty 
of an agent, his commissions may be increased. Smith v. Addison, 
5 Cranch's C. C. 623 ; People v. Vilas, 36 N. Y. 459. Where 
two join in an order for goods, one is not discharged because the other 



228 PKIKCIPAL AND SURETY. 

received and used them. Edwards v. Beriham, 2 Stew, & P. (Ala.) 
148. He cannot set up irregularities in the contract wliich was with a 
public officer. State v. Wileij, 15 Iowa, 155. A failure of the cred- 
itor to present the note against the estate of the principal will not dis- 
charge limi. CoJiea v. Comniissioners, 7 Sm. & M. (Miss.) 4r3Y. A 
failure to inform him of the non-payment of the note or even an agree- 
ment not to inform him is no defense. Grover v. Hoppock, 26 N. J. 
(2 Dutch.) Law, 191. A delivery of a deed without requiring payment 
does not discharge sm-eties on notes for the purchase-money. Coombs 
V. Parker, 17 Ohio, 289. A voluntary payment of interest before it 
is due will not discharge the surety. Ilarnsharger v. Kinney, 13 
Gratt. (Ya.) 511. The negligence of a third party, as of a sheriff, in 
levying on property of the principal is no defense. Moss v. Craft, 
10 Mo. T20. An amendment in the declaration, which does not intro- 
duce a new cause of action, does not discharge sureties in matters col- 
lateral to the 9uit. Merrick v. Greely, 10 Mo. 106. An incomplete, 
or conditional arrangement to discharge the surety, or to cancel the debt, 
is no release. Lyle v. Morse, 24 111. 95 ; McCehee v. Scott, 15 Ga. 74 ; 
WtlUr V. Hanson, 34 Mo. 362 ; Wilson v. Glover, 3 Penn. St. 404. So 
a discharge of the contract by mistake, or fraud, especially where 
induced by the surety, will not release him, unless he has changed his 
situation to his injury in consequence. Offutt v. Bank of Ky., 1 Bush 
(Ky.), 166; Blodgett v. Bickford, 30 Yt. 731. The omission to sue a 
co-surety, who has a good defense till the claim against him is barred, 
will not release the others. Mc Vean v. Scott, 46 Barb. 379. A 
tender of the debt without costs does not discharge the surety. Hamp- 
shire BamJc V. Billings, 17 Pick. 87. A discharge of one surety 
does not release the others, if the creditor reserves his remedy against 
them. Potter v. Green, 6 Allen, 442 ; Thompson v. Adams, 
Freem. (Miss.) Ch. 225; Klingensmith y. Klingensmith, 31 Penn. 
St. 460 ; Tombeckhee Bank v. Stratton, 7 Wend. 429 ; Hewett v. 
Ada/tns, 1 Patt. & H. (Va.) 34 ; contra : Jemison v. Governor, 4tl 
Ala. 390. An agreement by the principal to pay usury is no defense 
to the surety {Mount v. Tappey, 7 Bush [Ky.], 617) ; nor that the 
creditor does not inform him of the insolvency of the principal. Ham 
V. Oreve, 34 Ind. 18. The discharge of the principal in bankruptcy is 
no release. Phillips v. Solomon, 42 Ga. 192 ; Pay y. Brenner, ^'ii 
Kaus. 105. Mere neglect by the officers of a bank to examine the 
accounts of tlieir cashier does not discharge the sureties on the cash- 
ier's bond. Atlas Bank v. Bronmell, 9 E. I. 168; S. C, 11 Am 
Hep. 231. That the debt is barred, as against the principal, is imma- 
tei-ial. Peeves v. Pulliam, 4 Law & Eq. Rep. (Tenu.) 331. 



PEINCIPAL AND SUKETY. 229 

§ 3. Payment of creditor's demaud. Any collateral contract 
ceases when the principal contract terminates. If, however, the 
principal contract still subsists, it will supj)ort the collateral agree- 
ment, although the creditor may have lost his remedy. Thus, no 
action lies against the sureties on a note after it has been paid (CA«/> 
mo/n V. Collins, 12 Cush. [Mass.] 163) ; and where the judgment debtor 
pays the judgment, whether with his own money or that of others, 
sureties in the proceedings in court are discharged, and it is of no avail 
to enter up the judgment for the use of the lenders of the money. 
Burnet v. Courts, 5 Har. & J, (Md.) 78. This, however, may depend 
upon the question whether it was a purchase of the judgment by the 
person advancing the money or a loan only. An unexecuted agree- 
ment by the debtor to apply certain funds to the debt cannot operate 
as a payment or discharge. Hoyt v. French, 24 N. H. 198. So, of 
an appropriation of funds by order of court which is appealed from. 
Carlisle Bank v. Barnett, 3 Watts & S. (Penn.) 248. "Where the 
claim against a deceased principal is barred because not seasonably pre- 
sented, the sureties are still liable. McBroom v. The Governor, 6 
Port. (Ala.) 32. Where the surety has once been discharged by a per- 
fected arrangement amounting to payment, he cannot be again ren- 
dered liable without his consent by any waiver of such contract. Gih- 
son V. Bix, 32 Yt. 824. But where such payment had been revoked 
by the assignee of the debtor as a preference, it was held not to be a 
payment if the transaction was innocent. Petty v. Cooke, L. R., 6 Q. 
B. Y90 ; Watson v. Poague, 42 Iowa, 582. Otherwise, if guilty. 
Bartholow v. Bean, 18 Wall. (U. S.) 635. Where the note was given 
for land sold the payor, and the payee had promised to allow the 
amount of a lien on the land, the promise is valid, and extinguishes 
the note as to the surety pro tanto. Cole v. Jtistice, 8 Ala. T93. 
Where one was surety for a partnership his relation is terminated by 
the death of one partner, though the business continues without change 
and he has the benefits of payments made in the subsequent course of 
the business. Peraherton v. Oahes, 4 Puss. 154. Where a new note 
is taken and the proceeds from discounting it are indorsed on the old 
note, but the new note is not paid, and the creditor is obliged to return 
them, it is not a payment. G-reenawalt v. McDowell, 65 Penn. St. 
464 ; Paine v. VoorJiees, 26 Wis. 522. Where the debtor offered to 
pay the notes, but by an oral agreement retained the money on a new 
loan without receiving the notes, they were held paid. Musgrave v. 
Glasgow, 3 Ind. 31. If the note is paid by a new note, it cannot be 
kept alive as collateral to the new note. Barnett v. Peed, 51 Penn. 



230 PEmCIPAL A]^D SURETY. 

St. 190 ; Andrews v. Jfan^ett, 5 5 Me. 539. One who has agreed to 
iademuif J a siii*ety is discharged if the note is paid, though by money- 
raised on a new note of the same parties. Whitaker v. Smith, 4 
Pick. (Mass.) S3. "Where a collector of taxes carries the money to the 
treasurer, wlio agrees that he may keep and use it for a time, the 
collector's sureties are discharged. Johnson v. Mills, 10 Gush, 
503. The refusal to take a legal tender is a discharge. Johnson v. 
Ivey, 4 Cold. (Tenn.) 60S. Where the surety gives the debtor money 
to pay on the debt, its destination cannot be altered to another debt 
by the debtor and creditor. Reed v, Boardman, 20 Pick. Ml. 
The sm"ety cannot claim any allowance for usury paid on another debt. 
Cantey v. Blair, 2 Rich. (S. C.) Eq. 46. "Where a bank holds an 
overdue note, they are not obliged to apply a general deposit of the 
maker to its paj^ment. ]}^at Bank v. Smith, QQ N. Y. 271 ; S. C, 23 
Am. Rep. 48. 

§ 4. Discharge of the principal. Upon the same principle which 
we have just considered, a voluntary release or discharge of the debt 
by the creditor releases the sureties. Blachhurn v. Beall, 21 Md. 208 ; 
Dodd V. Winn, 27 Mo. 501 ; Bridges v. Fhillips, 17 Tex. 128 ; Pad- 
dleford v. Thacher, 48 Yt. 574. But such release may be a limited or 
conditional one in which the creditor reserves his claim on the sureties. 
They would then also retain their right to look to the principal for 
re-imbursement, so that he would get but a partial advantage from the 
release. Wagman v. Hoag, 14 Barb. 232 ; Hagey v. Hill, 75 Penn. St. 
108 ; S. C, 15 Am. Rep. 583 ; Potter v. Oreen, 6 Allen, 442 ; Lateson v. 
Gosling, 25 L. T. (N. S.) 570 ; Muir v. Crawford, L. R., 2 Sc. App. 
456. If, however, the discharge is in proceedings in bankruptcy, the 
sureties are not released. Jones v. ILcgler, 6 Jones' (N". C. ) L. 542 ; 
Gregg v. Wilson, 1 Law & Eq. Rep. (Ind.) 211. Even if the pro- 
ceedings are under the composition act and the creditor takes part in 
tliem, and assents to the resolution of discharge. Guildv. Butler, 122 
Maes. 498 ; S. C, 23 Am. Rep. 378 ; Mlis v. Wilmot, L. R., 10 Ex. 
10; S. C, 11 Eng. R. 338; Px parte Jacobs, L. R., 10 Ch. 211; S. 
C, 12 Eng. R. 707. A composition deed for the benefit of creditors 
" in like manner as if the debtor had been adjudged a bankrupt," dis- 
ci largcs the sureties. In bankruptcy, whatever the preliminary steps, 
the discharge is by operation of law ; here it is by a voluntary 
contract. Cragoe v. Jones, L. R., 8 Exch. 81 ; S. C, 4 Eng. R. 458. 
So, the release of a principal, who was imprisoned, from prison, was 
held no discharge of the sureties. United States v. Stanshury, 1 Pet. 
(U. S.) 573. Where, in a suit on the contract, judgment has been 



PRINCIPAL AND SURETY. 231 

rendered in favor of the principal, its effect on the liability of the 
surety seems to depend on its grounds. If it is founded on matters 
which go to prove that the contract never was in force, or has been 
annulled, the surety has the benefit of it. Dickason v. Bell^ 13 La. 
Ann. 219. But if it rests on some personal defense of the principal, 
the surety Avill not have any advantage from the judgment. Dilling- 
ham V. kudd, 1 Bush (Ky.), 102. 

§ 5. Changing the contract or obligation. A surety has a right 
to stand upon the very terms of his contract, and any act or omission 
which alters such terms without his consent will extinguish liis liability, 
even though such alteration be for his benefit. Poldk v. Everett^ L. 
R., 1 Q. B. D. 669 ; S. C, 18 Eng. R. 101. It destroys the identity 
of the contract, and it ceases to be the contract to which he became 
a party. United States v. Hillegas, 3 Wash. (C. C.) 70 ; Miller v. 
Stewart, 9 Wheat. (U. S.) 680 ; Taylor v. Johnson, 17 Ga. 521 ; Berks 
County V. Boss, 3 Binn. (Penn.) 520 ; Mayhew v. Boyd, 5 Md. 102 ; 
Brigham v. Wentworth, 11 Cush. 123 ; St. Albans Banh v. Dillon, 30 
Vt. 122 ; Grant v. Smith, 16 jST. T. 93. Thus, sureties that an award 
shall be performed cannot be held if new matter is put before the 
arbitrators. Hulibell v. Bissell, 2 Allen, 196. So if the arbitrators are 
changed. McKay v. McDonald, 5 Ala. 388. An adjustment between 
the debtor and creditor, and an arrangement that the sum agreed shall 
be paid in installments, has the same effect. Steele v. Boyd, 6 Leigh 
(Ya.), 517. If it does not appear in the contract that the party is a 
surety, and the creditor has no notice of his relation, the other parties 
have been allowed to vary the contract. Agnew v. Merritt, 10 Minn. 
308; Gahn \. Niemeswicz, 11 Wend. 312. Where the surety was 
to a lease under seal, a parol alteration of the premises leased does 
not discharge him. Shiifeldt v. Gustin, 2 E. D. Smith (IST. T.), 57. 
An alteration, diminution or addition to the duties of a public ofiicer, 
does not discharge the sureties on his official bond, so long as the duties 
required are the appropriate functions of the particular office. People 
V. Vilas, 36 X. Y. 159. The alteration must be one which is valid 
and effectual. Claiborne v. Birge, 12 Tex. 98. Substituting a new 
co-surety for the old one is an alteration. State v. Van Pelt, 1 Ind. 
304. Where the contract is for the conduct of the principal in two 
distinct employments, an alteration in one does not discharge the surety 
as to the other. Skillett v. Fletcher, L. R., 1 C. P. 217; S. C, 2 C. 
P. 169 ; Croydon Co. v. Dickinson, L. R., 1 C. P. D. 707; S. C, 18 
Eng. R. 261. A change in the rate of interest or the manner of its 
payment is an alteration. Waffy. Horner, 63 Penn. St. 327 ; S. C, 
3 Am. Rep. 555; Marsh v. Griffin, 1 Law & Eq. Rep. (Iowa) 448; 



232 PRINCIPAL AND SURETY. 

Harsh v. Klepper, 28 Ohio St. 200. Even adding the words " to bear 
leo-al interest," and a subsequent erasure does not restore the cred- 
itor's ri'dits. Locknane v. Emmerson, 11 Bush (Ky.), 69. So of an 
alteration in the date. Britton v. Dierker, 46 Mo. 591 ; S. C, 2 Am. 
Rep. 553. A memorandum adding that the note is payable in gold 
is an alteration. Hanson v. Crawley^ 41 Ga. 303. Where the note 
was o-iven as security for the performance of a contract to erect a build- 
inc;, adding a story to the plan, changes the contract. Zimmerman v. 
Judah, 13 Ind. 286. Altering a stipulation that the goods should be 
furnished with all possible dispatch to a fixed rate of production, or a 
change in the rate of payment, discharges a surety. Bowati v. Sharp's 
Man. Co., 33 Conn. 1. A contract to pay a builder seventy per cent 
of the value of the work done each month, monthly, and the rest when 
the work is done, does not permit larger payments. Bragg v. Shaiii, 
49 Cal. 131. A change in the rate of compensation paid an agent 
does not discharge his sureties. Amicable Ins. Co. v. Sedgwick., 110 
Mass. 163 ; Frank v. Edwards, 8 Exch. 214. But a change in the 
compensation from a fixed salary to a commission is a discharge. 
Northwestern R. R. v. Whinray, 10 Exch. 77. 

A change in the time required for notice of dismissal is not a change 
which will release a surety for a servant. Sanderson v. Aston, L. R., 
8 Exch. 73. Where the surety is bound to make good any deficiency, 
if goods sell for less than the sum advanced on them, he is released if 
the market to which they are consigned is changed. Ludlow v. Simonds, 
2 Cai. (X. y.) Cas. 38. An alteration by the principal debtor avoids 
it as to the surety. Bank v. Sears, 4 Gray, 95 ; Wood v. Steele, 6 
Wall. (U. S.) 80. An agreement that neither signer should be called 
on till certain property put in the payee's hands should be sold, does 
not release the surety. Wheeler v. Washburn, 24 Vt. 293. Nor 
an agreement to take a less sum than that stipulated for. Ellis v. Mc- 
Carmick, 1 Hilt. (N. Y.) 313. Where the debt of the principal to one 
of his sureties, who was his father, was extinguished by the latter's 
will, his administrator cannot claim contribution of a co-surety. 
Hohart V. Stone, 10 Pick. 215, A subsequent agreement, which 
docs not place the surety in a different position from that which he 
held before, is no defense for him. Roach v. Summers, 20 Wall. (U. 
S.) 105; B<u>gx v. Strong, 7 Hill (N. Y.), 250. 

§ 6. Taking a now security. The addition either of a new surety 
to the contract or of some other collateral security is not such a change 
as will dificharge the surety. Thomas v. Cleveland, 33 Mo. 126 ; 
Wade V. Staunton, 6 Miss. (5 How.) 631 ; Ladd v. Wiggin, 35 N. II. 
421 ; Ehj)ood v. Deifendorf, 5 Barb. 398 ; Thurston v. JameSy 



PEINCIPAL AND SUEETr. 233 

6 E. I. 103; Oxley v. Storer, 54 111. 159; Hayes v. Wells, 34 Md. 
512 ; Green v. Warrington, 1 Des. (S. C.) 430. But if the new secu- 
rity is intended to be a substitute for the old, and actually is put in its 
place, the old is discharged. Seamans v. White, 8 Ala. 656 ; New- 
man v. Hazelriyg, 1 Bush (Ky.), 412; Howe v. Buffalo Railroad, 37 
N. T. 297 ; Wolf v. Fhik, 1 Penn. St. 435. It makes no difference 
that the new security afterward proves worthless. NewTnan v. Hazel- 
rigg, 1 Bush (Ky.), 412. If, for instance, an appeal bond is given, and 
after decision a farther appeal with a new bond is taken, the first is 
discharged. Winsto7i v. Rives, 4 Stew. & P. (Ala.) 269. So, a sec- 
ond replevin bond discharges the first. Brooks v. Shepherd, 4 Bibb 
(Ky.), 572. If, however, the liability is of a continuing nature, as are 
bonds for the good conduct or responsibility of officers, a new bond 
does not release the sureties from liability for previous breaches of the 
bond. Postmaster-General v. Reeder, 4 Wash. (C. C.) 678 ; Wilr 
lorne v. Commonwealth, 5 J. J. Marsh. (Ky.) 617. If it makes a part 
of the new contract, or is necessarily implied from it that the principal 
shall have further time for payment, the surety is discharged in ac- 
co;-Jance with a principle which is discussed below. § 13. Sparks v. 
Ball, 4 J. J. Marsh. (Ky.) 35 ; Bell v. Martin, 18 N". J. Law (3 Har.), 
167; Cummings v. Bank, 15 Grant's (U. C.)Ch. 686; Newcomh\. 
Blakely, 1 Mo. App. 289. But taking security, even though by its 
terms it is for the future, does not necessarily imply such a contract 
for time. Ellwood v. Deifendorf, 5 Barb. 398 ; Scanland v. Little, 
Meigs (Tenn.), 169; Cruger v. Burke, 11 Tex. 694; Overendy. Ori- 
ental Co., 2 E. T., 7 H. L. Cas. 348 ; L. E., 7 Ch. App. 142 ; 1 Eng. 
E. 478. Thus a bond for twelve months to pay the judgment against 
principal and surety was held no discharge {Hardesty v. Sturges, 12 
La. Ann. 231) ; or taking a bill of exchange with an agreement to 
apply it to the debt when collected. {Wade v. Staunton, 6 Miss. 
[5 How.] 681), or a mortgage conditioned to be void if the debt was 
paid within six months. Headl'ee v. Jones, 43 Mo. 235. See § 13, 
below. 

§ 7. Impairing tlie sureties' remedy. When a creditor has in 
his possession money or property of the debtor, which he may right- 
fully retain and appropriate to the satisfaction of his debt, it is his 
duty to do so, and if, on the other hand, instead of retaining it, he 
8UJ0Eer8 it to pass into the hands of the principal, he is himself charged 
with its value and can only collect any sum remaining. Springer v. 
Toothaker, 43 Me. 381 ; Hurd v. Spencer, 40 Yt. 581 ; N. E. Bank 
V. Colcord, 15 N. H. 119 ; Baker v. Briggs, 8 Pick. 122 ; Smith v. 
McLeod, 3 Ired. (N. C.) Eq. 390 ; Richards v. Commonwealth, 40 
Vol. v.— 30 



234 nUXClPAL AND SUEETY. 

Penn. St. 146 ; Griswold v. Jackson, 2 Edw. (N". Y.) Cli. 461 ; Taylor 
V. Jtter, 23 Mo. 244 ; Fhares v. Barhour, 49 111. 370. For tliis pur- 
pose it is immaterial that judgment has been taken against both prin- 
cipal and surety {Brown v. Rlggins, 3 Ga, 405 ; Sailly v. Elmore, 2 
Paige, 407; Smith v. Bay, 23 Vt. 656) ; or that the security was taken 
after the contract was made. Freanery. Tingling, ^1 M.^. 4Q\. Thus, 
where property of the principal has been seized on the execution, but is 
released by order of the creditor, the surety is so far discharged. State 
Bank V. Edwards, 20 Ala. 512; Sherraden v. Parker, 24 Iowa, 28; 
Furguson v. Turner, 7 Mo. 497; Holt v. Bodey, 18 Penn. St. 207; 
Ashhy V. Smith, 9 Leigh (Ya.), 164. But where the value of the re- 
leased property was paid by a purchaser and appHed on the debt, the 
surety cannot complain. Neffs'' Appeal, 9 "Watts & S. (Penn.) 36, The 
mere discontinuance of a suit against the principal is no discharge. 
Somerville v. Marlury, 7 Gill & J. (Md.) 275. If the land did not 
really belong to the debtor, but was incorrectly suj)posed to be clouded 
by the judgment, it may be released. Blydenburgh v. Bingham, 38 N. 
Y. 371. So, if the supposed security was a fictitious or forged bond. 
Boomis V. Eay,24:Y t. 24:0. But the creditor may have taken his secu- 
rity under such contracts and arrangements that it is his duty and right to 
discharge it. Society v. Bnlay, 23 Conn. 10. As we shall see,j)ost, 238, 
§ 12, mere neglect of the creditor to take offered security {Eolk v. Cruk- 
shanks, 4 Eich. [S. C] 243 ; Marion County v. Moffett, 15 Mo. 604) ; 
or to perfect that which he already has, as by recording a mortgage 
{Philhrook v. MoEwen, 29 Ind. 347 ; Pickens v. Finney, 12 Sm. & 
M. [Miss.] 468), is no discharge where a city treasurer illegally drew 
money from the bank. A settlement with the bank by the city re- 
leases the sureties. Foss v. Chicago, 34 111. 489. Where the surety 
is deprived of the right to pay the debt and sue the principal, he is 
discharged. Boschert v. Brown, 72 Penn. St. 372, The surety is 
only released to the extent which he is injured. Saline Co v. TF'me, 3 
Law & Eq. Eep. (Mo.) 718. 

§ 8. Refusal of creditor to sue priucipal on notice or demand. 
At common law the remedy of the surety who desired that the debt 
should be collected of the principal was to pay the debt himself and 
then himself sue the principal. But in many States the surety has 
been by statute given the right to request the creditor to sue, and if 
the creditor neglects to do so, and the debtor becomes insolvent, the 
surety is discharged. Goodman v. Griffin, 3 Stew. (Ala.) 160 ; John- 
bUjn V. TJio/npson, 4 Watts (Penn.), 446 ; Ilemjpstead y . Watkins, 6 Ark. 
317; Borman v. Bigelow, 1 Fla. 281; Bailey v. New, 29 Ga. 214 ; Payne 
V Wchster, 19 111. 103 ; Beld v. Cox, 5 Blackf. (Ind.) 312 ; Bank v. Smith, 



PKIXCIPAL AXD SURETY. 235 

25 Iowa, 210 ; Nichols v. McDowell, li B. Monr. (Ky.) 6 ; CocTcrill v. 
Z>2/<?, 33 Mo. 365 ; Martin v. Skehan, 2 Col. T. 614 ; Starling y. Buttles, 
2 Ohio, 303. The notice must be clear and unambiguous and not one 
which the creditor would be liable to misapprehend. A hint to sue is not 
enough. Greenawalt v. Kreider, 3 Penn. St. 264. A notice to 
collect it as he would not stand bail any longer is sufficiently precise. 
St/rickler v. Burkholder, 47 Penn. St. 4Y6. The notice need not follow 
the words of the statute. Christy v. Ilorne, 24 Mo. 242. If its object 
could not have been mistaken by the creditor, it is good although it 
does not contain a description of the note. Ronton v. Lacy, 17 Mo. 
399. The notice must under the statutes of most States be mven in 
writing. Colerlck v. McCleas, 9 Ind. 245; Stevens v. Carnphell, 6 Iowa, 
538 ; Jenkins v. Clarkson, 7 Ohio, 72 ; Bridges v. Winters, 42 Miss. 135 ; 

20 Am. Pep. 598. In other States a verbal notice is enough. Strader 
V. Houghton, 9 Port. (Ala.) 334 ; Bolton v. Lundy, 6 Mo. 46. The 
creditor njay waive a written notice to sue. Harnhlin v. McCallister, 
4 Bush (Ky.), 418 ; Taylor v. Davis, 38 Miss. 493. It may be given 
by an agent. A general agent has power without special instructions. 

Wetzel V. SponsUr, 18 Penn. St. 460. Where the time within which 
the suit must be brought is limited, the disturbed condition of the 
country is no excuse for delay if the courts are open. Cockrill \. Dye, 
33 Mo. 365. Where no time was fixed the creditor was required to 
bring his suit in the court having jmisdiction, the term of which will 
next commence. Craft v. Dodd, 15 Ind. 380. He may plead his release 
at law or have rehef in equity. Hemjjstead v. Watkins, 6 Ark. 317. 
The notice must require suit against all parties and not against the prin- 
cipal alone. Harriman v. Eghert, 36 Iowa, 270. The surety alone who 
gives the notice is discharged. Wilson v. Tehhetts, 29 Ark. 579 ; S. C, 

21 Am. Rep. 165 ; Barney v. Purvis, 38 Miss. 499 ; contra : Wright 
V. Stockton, 5 Leigh (Va.), 153. A notice to sue at maturity given 
before maturity of the note is bad. Hellen v. Crawford, 44 Penn. 
St. 105. The creditor is bound only to use ordinary legal means. 
Remsen v. Beekman, 25 X. Y. 552. Neither an indorser nor a sm-ety 
with indemnity can take the benefit of this provision. Boss v. Jones, 

22 Wall. (U. S.) 576 ; Wilson v. Tehbetts, 29 Ark. 579 ; S. C, 21 
Am. Rep. 165. It must appear that the debtor was solvent and within 
the jurisdiction, that the creditor without reasonable excuse neglected 
to proceed on request, and that the principal is insolvent. Warner v. 
Beardsley, 8 Wend. 194; Eestner v. Spath, 53 Ind. 288. Where 
the surety guarantees the collection of a claim, the creditor must with- 
out notice proceed within a reasonable time. Craig v. Barkis, 40 N. 
Y. (1 Hand) 181. 



236 PRI]S"CIPAL AND SURETY. 

§ 9. When a refusal to sue is uo discharge. As we have said, at 
common law a refusal to sue is no discharge to the surety. Halstead 
V. Broum, 17 Ind. 202; Dennis v. Rider, 2 McL. (C. C.) 451 ; Taylor 
V. j?t'6'/l', 13 m. 376; Belloios v. Lovell, 5 Pick. 307; Inhuster v. 
Bank, 30 Mich. 143 ; Mahuim v. Pearson, 8 N. H. 539. A let- 
ter in which the surety wrote, that he hoped that the note would be put 
in train for collection, is not enough {Bates v. State Bank, 7 Ark. 
394 ; Savage v. Carleton, 33 Ala. 443) ; nor a telegram to send the note 
to a lawyer for collection. Kaufman v. Wilson, 29 Ind. 504. Where 
the surety may require the creditor to elect either to sue himself, or 
permit the surety to do so, a notice requiring him to sue is not suffic- 
ient. Hill V. Sherman, 15 Iowa, 365. A notice by the surety that 
he will not be further liable, is not sufficient requisition to sue. Loch- 
ridge V. Upton, 24 Mo. 184. In other cases it is held that he must 
not only require the creditor to sue, but declare that he will not be fur- 
ther bound. Erie Bank v. Gibson, 1 Watts (Penn.), 143. A notice to 
" push the debtor, or give him clear," and that he, the surety, would 
pay nothing, is not enough ( Wilson v. Orover, 3 Penn. St. 404) ; 
nor a notice on a note not due, to sue as soon as it is due, or get other 
security. Hellen v. Crawford, 44 Penn. St. 105. " I wish you to col- 
lect the debt of " the principal, is not a good notice to sue {Parrish 
V. Gray, 1 Humph. [Tenn.] 88) ; notice to a clerk {Adains v. Roane, 
7 Ark. 360), or to an attorney {(Jaininins v. Garretson, 15 Ark. 132), 
is not enough. Sappington v. Jeffries, 15 Mo. 628. The statute was 
held not to apply to a case where the principal and surety joined in a 
joint and several sealed bond {Ellis v. Jones, 1 How. [U. S.] 197 ; 
Scott V. Bradford, 5 Port. [Ala.] 443) ; nor to one where a joint maker 
of a promissory note is surety to the other maker. Dane v. Gordua/n, 
24 Cal. 157. It does not apply to a case where the principal is dead, 
and the surety cannot require a presentment against his estate. Hickam 
V. Ilollingsvwrth, 17 Mo. 475 ; Cope v. Smith, 8 S. & R. (Penn.) 
110. A failure to sue in 30 days is no discharge, if the principal is 
not a resident of the State. Phillips v. Riley, 27 Mo. 386 ; Rowe v. 
Buchtel, 13 Ind. 381. The surety may waive his notice, and so con- 
tinue his lial)ility. Simpson v. BVant, 42 Mo. 542. N"either an 
indorser, wov a surety who is indemnified, can discharge themselves by 
notice to sue under the Arkansas statute. Wilson v. Tebbetts, 29 Ark. 
579 ; S. C, 21 Am. Rep. 165 ; Ross v. Jones, 22 Wall. (U. S.) 576. 

§ lo. Indulgence to principal. Forbearance. The creditor may 
deal as he pleases with his debtor, provided he does not violate the 
terms of the contract with the surety, express or implied, and provided 
bis right has not been limited by some statute. Therefore, mere indul- 



PRINCIPAL AND SURETY. 237 

gence does not discharge the surety. Summerhill v. Tapp, 52 Ala. 227 ; 
Lumsden v. Leonard^ 55 Ga. 374 ; Clopton v. Spratt, 52 Miss. 251 ; 
Thompson v. McDonald, 11 U. C. Q. B. 304; Villars y. Palmer, 
67 111. 204 ; Thompson v. Eall, 45 Barb. 214. Thus, a neglect to 
present the claim against the estate of the principal, deceased, does 
not release the surety, or affect his right to recover it himself from the 
estate, if he is obliged to pay {Hooks v. Bank, 8 Ala. 580 ; Nashville 
Bank V. Campbell, 7 Yerg. [Tenn.] 353 ; SiUey v. McAllaster, 8 N. 
H. 389 ; Villars v. Palmer, 67 111. 204) ; nor does a discharge of the 
principal from arrest on payment ol part of the debt ; nor an abandon- 
ment of the suit in which he has been arrested. Lawson v. Snyder, 1 
Md. 71. But the delay may be so great as to raise a presumption of 
discharge. Damess v. y^omack, 8 B. Monr. (Ky.) 383 ; Weaver v. 
Shryock, 6 Serg. & R. (Penn.) 262. In some States, also, the creditor 
is held to a certain degree of diligence against the debtor, if he would 
still hold the surety. But a provision that execution must be issued 
within one year, or the surety would be discharged, was held not to 
apply to judicial bonds. Barhee v. Pitman, 3 Bush (Ky,), 259. If it 
appears that the siu-ety has not been harmed by the delay, because the 
debt could not have been collected of the principal, he is not released. 
Weiler v. Hoch, 25 Penn. St. 525. Where the creditor takes a check 
in payment on a bank where the debtor has no money, but upon a 
promise that funds should be deposited to meet it, the sureties are not 
released. Bordelon v. Weymoidh, 14 La. Ann. 93, A surety who is 
indemnified cannot complain. Moore v. Paine, 12 Wend. 123. 
Agreeing to take payment in installments, and suspend an execution 
against the debtor, is not a discharge. Wilson v. Bank of Orleans, 
9 Ala. 847. 

§ 11. Mere delay no discharge. Mere delay without fraud or 
agreement with the principal, and either where no statute gives the 
surety the right to demand action, or where the surety has not exer- 
cised the right, does not discharge the surety {Hunt v. U. S., 1 
Gall. [U. S.] 32 ; Kirhy v. Studehaker, 15 Ind. 45 ; Hunt v. Bridg- 
ham, 2 Pick, 581 ; Humphreys v. Crane, 5 Cal. 173 ; People v. 
White, 11 111, 341 ; Summerhill v. Tapp, 52 Ala. 227 ; Freaiier v. 
Yingling, 37 Md, 491 ; Leavitt v. Savage, 16 Me. 72 ; Williams v. 
Townsend, 1 Bosw. [X. Y.] 411 ; Cai'ter v. Jones, 5 Ired, [N, C] Eq. 
196 ; Johnston v, Searcy, 4 Yerg, [Tenn.] 182), even though the 
principal has in the meantime become insolvent. Lyle v. Morse, 24 
111. 95 ; People v. Russell, 4 Wend. 570. The creditor is bound 
to active diligence against the principal. Johnson v. Planters' Bank, 
4 S. & M. (Miss.) 165. In order to discharge the surety, it must 



238 PRINCIPAL AND SURETY. 

clearly appear that the creditor has, after a request by the surety, re- 
fused to prosecute his claim against the principal, by which refusal the 
remedy against him has been wholly lost. Valentine v. Farrington^ 
2 Edw. (N. Y.) 53 ; Rutledge v. Greenwood, 2 Des. (S. C.) 389 ; 
Washhurn v. Holmes, Wright (Ohio), 67. In some States a time is 
hmited witliin which execution must be taken on a judgment against 
the principal. 

And if the creditor fails to take execution against the jirincipal 
within that time he cannot proceed against the surety. Bray v. How- 
ard, Y P. Monr. (Ky.) 467. Put ordinarily, it is no defense to the 
surety that the debt is barred against the principal debtor. Delay in 
taking out execution is no discharge {Buckalew v. Smith, 44 Ala. 638) ; 
so of delay in enforcing security. Black River Bank v. Page, 44 N. 
Y. 453. 

§ 12. Negligence of creditor. As the relation of the parties is 
one of trust, and binds the creditor to observe an honest regard for the 
rights of the surety, his laches, in securing the demand, may be so gross 
as to become inconsistent with good faith, and evidence of fraud upon 
the surety, which will discharge him. Put as the surety is called upon 
to watch his own interest, it will, ordinarily, be necessary for him to 
prove that he has requested the creditor to act, and that he has 
been injured by the delay. People v. Jansen, 7 Johns. 339 ; Her- 
iert V. Hohhs, 3 Stew. (Ala.) 9. Mere omission to enforce his right 
against the debtor is not enough, if he does no act to impair it, or to 
prevent him from subrogating the surety to his rights at any moment. 
Parker v. Alexander, 2 La. Ann. 188; Freaner v. Yingling, 37 Md. 
491 ; McKecknie v. ^Vard, 58 N. Y. 541 ; S. C, 17 Am. Rep. 281. 
If he does an act injurious to the surety, or omits to do an act, when 
required, which he is bound in equity and good faith to do, and injury 
results to the surety from such omission, the surety is discharged. 
Lang v. Brevard, 3 Strobh. (S. C.) Eq. 59. The neglect of duty, 
available as a discharge, must be of some duty owing to the surety, 
and \\<A to others ; of some positive duty undertaken in behalf of, 
and for the benefit of the sm-ety. Supervisors v. Otis, 62 N. Y. 88. 
An omission to record a mortgage of indemnity is not such a neglect 
as will discharge a surety. Lang v. Brevard, 3 Strobh. (S. C.) Eq. 59 ; 
PKUlyrook v. McEwen, 29 Ind. 347; contra: Tooiner v. Dickerson, 
37 Ga. 428 ; ^Yulff v. Jay, L. R., 7 Q. P. 756 ; S. C, 3 Eng. Rep. 298 ; 
Bank v. Douglass, 51 Ga. 205 ; S. C, 21 Am. Rep. 234 ; Burr v. Boyer^ 
2 Neb. 265. So, of neglect to have a bond enrolled (Pickens v. Fin- 
ney, 12 S. <fe M. [Miss.] 46s) ; or to exact a mortgage wliicli liad been 
promised. Folk v. Cruikshanks, 4 Rich. (S. C.) 243. Neglect to sue 



PRINCIPAL AND SURETY. 239 

for one breach does not discharge the sureties from their liabihty for 
another. Sacramento v. Kirk, 7 Cal. 419. If the creditor neglects 
to perform any of the conditions or terms which form the considera- 
tion of the surety's contract, the surety is discharged. Jones v. ICeer, 
30 Ga. 93. Neglect to present the claim against the estate of the 
principal does not discharge the surety. Hooks v. Bank, 8 Ala. 580 ; 
Nashville Bank v. Campljell, 7 Yerg. (Tenn.) 353 ; Sihley v. McAllas- 
ter, 8 N. H. 389 ; Villars v. Palmer, 67 111. 204; Clojyton v. Sjyratt, 
52 Miss. 281. Where the creditor permits property, which is delivered 
to him to pay the debt, to go into the possession of the debtor, the 
sureties are discharged. Ruble v. Norman, 7 Bush (Ky.), 582. 
Where the sureties become responsible for the fidelity and good con- 
duct of a servant, as of the cashier of a bank, or the treasurer of a 
corporation, they cannot hold the officers to any high degree of dili- 
gence in examining his accounts or watching his conduct. The officers 
are not obliged to use all means to guard against default. Black v. 
Ottoman Bank, 10 W. R. 871. Mere negligence in examining the 
accounts of a cashier is no release of his sureties {Atlas Bank v. 
Brownell, 9 R. I. 168 ; S. C, 11 Am. Rep. 231 ; United States v. Kirk- 
fatrick, 9 Wheat. [U. S.] 720) ; there must be actual knowledge of 
prexnous frauds, and neglect in failing to examine, however gross, is 
notice enough {Taj^ley v. Martin, 116 Mass. 275; contra: Graves y. 
Lebanon Bank, 10 Bush [Ky.], 23; S. C, 19 Am. Rep. 50); there 
must be an act of connivance or gross fraud, amounting to willful shut- 
ting of the eyes to fraud, or something approximating to it. Dawson 
V. Lawes, Kay. 280. If, however, fraud is known, the officer must be 
discharged {Phillips v. Foxall, L. R., 7 Q. B. QQQ ; S. C, 3 Eng. R. 
259 ; Burgess v. Eve, L. R., 13 Eq. 450 ; 2 Eng. R. 379) ; but a 
default in keeping money which is not fraudulent does not require a 
discharge. Atlantic Tel. Co. v. Barjies, 7 Jones & Sp. (N. Y.) 40. 
Neglect to present the claim against one surety till it is barred by 
the statute of limitations as against the other, was held a discharge 
in Dorsey v. Wayman, 6 Gill (Md.), 59. Where, by the creditor's 
neglect, collateral seciu-ity which he holds is lost, the sm-eties are 
released 2>^o tanto. Clojyton v. Spratt, 52 Miss. 251; Soule v. Union 
Bank, 45 Barb. Ill ; Ilanna v. Bolton, 78 Penn. St. 334 ; 21 Am. 
Rep. 20 ; Raines v. Pearce, 41 Md. 221. The neglect of a third 
party, as of a sheriff, will not discharge the surety unless the creditor 
assents to it. Keeble v. Jon^s, 1 Law & Eq. R. (Tenn.) 306, 610. 

§ 13. Giving time to the principal, wben a discharge. Where, 
by agi'cement between the creditor and the principal debtor, founded 
on a valuable consideration, the day of performance of the contract is 



240 PRmCIPAL AND SUEETY. 

postponed, this is such an alteration of the contract as discharges the 
surety, without regard to the tune of the extension, or whether it has 
operated to the prejudice of the surety, or not. Lime Rock Bank v. 
Mallett, U Me. 547 ; Gifford v. Allen, 3 Mete. (Mass.) 255 ; Wright 
V. Bartlett, 43 ]^. H. 548 ; People's Bank v. Pearsons, 30 Yt. 711 ; 
HuffmoMN. Eurllert, 13 Wend. (N. Y.) 875; Oakeleyv. Pasheller, 
4 CI. & F. 207 ; Stewart v. Parker, 55 Ga. 656 ; White v. Whitney, 
51 Ind. 124 ; Myers v. First Nat. Bank, 78 IlL 257 ; Lauman v. 
Nichols, 15 Iowa, 161. This agreement must be one binding upon the 
parties. Hayes v. Wells, 34 Md. 512 ; Oriental Co. v. Overend, L. R., 
7 H. L. 348 ; 19 "W. R. 869. It must be express and positive. Heath 
V. Key, 1 Y. & J. 434. It must be a bar to a previous suit. Hunt 
V. Postlethwait, 28 Iowa, 427. If the creditor reserves the right to sue 
it is no bar. Pucker v. Roljinson, 38 Iowa, 156; GaTbraith v. Fuller- 
ton, 53 111. 126. A mere unaccepted proposition is not enough. 
Branch Bank v. Robinson, 5 Ala. 623. If the contract was to be 
signed by the sureties, it has no effect until they sign it. Barber v. 
Burrows, 51 Cal. 404, It is ineffectual if made by an agent without 
authority. Lawrence v. Johnson, 64 111. 351. It must be for a fixed 
definite period. Clarke County v. Covington, 26 Miss. 470 ; Ashton 
v. Sproule, 35 Penn. St, 492 ; Jarvis v. Hyatt, 43 Ind. 163 ; Parnell 
V. Price, 3 Rich. (S. C.) Eq, 121 ; Wadlington v. Gary, 7 S, & 
M. (Miss.) 522; Waters v, Simpson, 2 Gilm, (111,) 570; Burke 
v. Cruger, 8 Tex. Q^ ; Pilgrim v. Dykes, 24 id. 383 ; Da/uid v. 
Malone, 48 Ala. 429. It must be upon good consideration. Kel- 
logg V. Olmsted, 28 Barb. 96; S. C, 25 N. Y. 189. Part pay- 
ment of the debt is not enough. King v. State Bank, 9 Ark. 
(4 Eng.) 185 ; Halliday v. Hart, 30 N. Y. 474. An agreement for 
a larger rate of interest is a consideration {Huff v. Cole, 45 Ind. 
300) ; even a usurious rate. Brown v. Prophet, 53 Miss. 649 ; White 
v. Whitney, 51 Ind. 124 ; Myers v. Nat. Bank, 78 111. 257 ; Scott v. 
Harris, 76 IST. C. 205; Billi/ngton v. Wagoner, 33 N. Y. 31. So of 
the payment of interest in advance, and this is, q\qo, prima facie e.\i- 
dence of a contract for delay. Scott v. Saffold, 37 Ga. 384; Robinson 
v. Miller, 2 Bush (Ky.), 179 ; Woodburn v. Carter, 50 Ind. 376. Where 
the note was payal^le in certain bank bills, which afterward depreciate, 
a new general promise to pay is a consideration. Washington v. Tait, 
3 Humph. (Tcnn,) 543. So is the purchase by the debtor of the cred- 
itor, at his request, of property, and the giving of a note and mortgage. 
Dwnha/rn v. Downer, 31 Vt. 249. Only a surety, known to be such at 
the time of the extension, can claim to be released by an extension. 
Kaighn v. Fuller, 14 N. J. Eq. 419 ; Overend v. Oriental Financial. 



PKINCIPAL AND SUEETY. 241 

Co., L. E., 7 H. L. 348. The debtors cannot change their relations 
from joint principals to principal and surety and so gain the advantage 
of this rule. Swire v. Redman., L. E., 1 Q. B. D. 536; 17 Eng. 
E. 175; contra: Mavngay v. Leims, 2 Bish. C. L. 229. Where 
the debt is payable in installments, an extension as to one does 
not release the sureties from liability for the others. Croydon Gas 
Go. V. Dickinson, L. E., 1 C. P. D. 707 ; 18 Eng. E. 261 ; Ducker 
V. Rajpjp, 67 N. Y. 464. It is immaterial whether the agreement 
is made before or after the maturity of the note. Stowell v. Goode. 
now, 31 Me. 538. Where the holder takes security payable after 
the maturity of the note, it may be evidence of an agreement for an 
extension. Dm^ion v. Christie, 39 Barb. (N. Y.) 610 ; Appleton v. 
Parker, 15 Gray (Mass.), 173 ; Huff v. Cole, 45 Ind. 300 ; Andrews 
V. Marrett, 58 Me. 539 ; Rhodes v. Bart, 51 Ga. 320 ; Chickasaw Co. 
V. Pitcher, 36 Iowa, 594. But if the new obligation is only collateral, 
and there is no understanding for delay, it is no release. Wyke v. 
Rogers, 1 DeG., M. & G. 408 ; Artisans^ Rank v. Backus, 36 N. Y. 
100 ; U. S. V. Hodge, 6 How. (U. S.) 279 ; Shaw v. First Church, 39 
Penn. St. 226 ; Hayes v. Wells, 34 Md. 512; Fox v. Parker, 44 Barb. 
541. Where the deed was conditioned that the debtor should pay 
the debt within eighteen months {Smarr v. Schnitter, 38 Mo. 478) ; 
or there was an authority in the deed to sell after six months {Lea v. Doz- 
ier, 10 Humph. [Tenn.] 447), or an accompanying agreement not to 
trouble the debtor till after maturity of the additional security [Smith 
V. Crease, 2 Cranch's [U. S.] C. C. 481), the sureties are released. If 
the creditor is induced to accept such new security by fraud, he may 
rescind, and be restored to his rights. Meads v. Merchants' Bank, 25 
N. Y. 143. The agreement for extension need not be in writing ; nor 
in any precise form of words ; nor even in express language ; but 
may be found by the jury from circumstantial evidence of intention. 
Brooks V. Wight, 13 Allen (Mass.), 72. The relation of principal and 
surety continues for this purpose after judgment against them. Car- 
penter V. Devon, 6 Ala. 718 ; Blazer v. Bundy, 15 Ohio St. 57. The 
principle applies equally to all contracts with sureties, such as contracts 
for labor, and others. Wilson v. Roberts, 5 Bosw. (N. Y.) 100 ; Kugler 
V. Wiseman, 20 Ohio, 361. Where the maker of the note paid part and 
gave his notes on time for the rest, and an agreement was put on the 
note that when these notes were paid, it should be in full of the original 
note, the sureties were discharged. Norton v. Roberts, 4 T. B. Mfonr. 
(Ky.) 491. A creditor of a partnership who takes a time note releases 
a partnership surety. Lee v< Sewall, 2 La. Ann. 940. So, if the cred- 
itor takes a three months' note with grace, for a debt due in three 
YoL. Y.— 31 



242 PKINCIPAL AND SURETY. 

months {Appleton v. Parker, 15 Grray, 1Y3) ; or a note, or draft 
maturing after tlie debt. Albany Ins. Co. v. Deve7idorf, 43 Barb. 
444. So, if the time of disclosm-e on a debtor's relief bond is ex- 
tended. Phillips V. Bounds, 33 Me. 357. Wliere an award extends 
the time, the surety is discharged. Coleman v. Wade, 6 ]^. Y. (2 
Seld.) 44 ; BurTce v. Glover, 21 U. C. Q. B. 294. A confession of judg- 
ment, wdth a stay of execution, but to a day earlier than it could have 
been obtained in the regular course, is no release. Hulme v. Coles, 2 
Sim. 12. So, where the surety is only liable after a certain time after 
demand, of an extension within that time. Prendergast v. Devey, 6 
Madd. 124. Where a surety guaranteed the performance of a contract, 
which provided for the payment at a certain time, unless farther time 
was given in writing, such farther time must be given before the pay- 
ment is due. Croydon Gas Co. v. Dickinson, L. R., 1 C. P. D. 707 ; 
18 Eng. E.. 261. "Where the parties agree that the debt shall be paid 
by a conveyance of land, and give time for the conveyance, they release 
the sureties. Wagman v. Hoag, 14 Barb. 232. Merely discontinuing an 
advertisement of sale under a trust deed given as security is no exten- 
sion. Butler V. Gambs, 1 Mo. App. 466. A sm'ety who is indemnified 
cannot make this defense. Kleinhaus v. Generous, 25 Ohio St. 667. 
Where the time within which a public officer must settle his accounts 
and pay is extended by law, the surety is not discharged. Smith v. 
Commonwealth, 25 Gratt. (Ya.) 780. 

§ 14. When not a discharge. It follows as the converse of the 
principles stated in the last section that a mere extension of time, with- 
out a valid binding agreement to extend, founded on a sufficient con- 
sideration, does not discharge the surety. Bailey v. Adams, 10 N. 
H. 162 ; Joslyn v. Smith, 13 Yt. 353 ; Vilas v. Jones, 10 Paige (N. 
Y.), 76 ; Brubaker v. Okeson, 36 Penn. St. 519 ; Lea/vitt v. Savage, 
16 Me. 72 ; Farmers^ Bank v. Baynolds, 13 Ohio, 84 ; Roye v. 
Penn, 1 Bland (Md.), 28 ; Goodwyn v. Ilightoioer, 30 Ga. 249 ; Shook 
V. State, 6 Ind. 113 ; Williams v. Covillaud, 10 Gal. 419 ; Ford v. 
Beard, 31 Mo. 459. The contract must be valid. A usurious con- 
tract by the debtor to pay his creditor for delay will not be a discharge 
unless the money is paid, for it is void. Kyle v. Bostick, 10 Ala, 589 ; 
Offutt v. Glass, 4 Bush (Ky.), 486 ; Wilson v. Langford, 5 Humph. 
(Tcnn.) 320. So, an agreement to extend the time of a matured note, 
if the debtor will make payments on the principal, is not valid. Wool- 
ford V. Dov), 34 111. 424. So, if tlie agreement is made by an agent f, 
who therein exceeds his authority. Laiorence v. Johnson, 64 111. 351 ; 
Farv)ell v. Meyer, 35 id. 40. So, if indulgence is given on a promise 
to pay the debt out of a particular fund. Wadlington v. Ga7'y, 15 



PKINCIPAL AXD SURETY. 243 

Miss. (7 S. & M.) 522. A conditional agreement is not a discharge 
unless the condition has been complied with. Harnsherger v. Oeiger, 
3 Gratt. (Ya.) 144. "Where the creditor voluntarily abstains from 
pressing his debtor, but receives no consideration for such indulgence 
and puts no limitation on his right to proceed at once, it is no dis- 
charge. Creath v. Sims, 5 How. (U. S.) 192; Manioe v. Duncan, 12 
La. Ann. 715 ; Blandford v. Barger, 9 Dana (Ky.), 22 ; Drajyer v. 
JRotneyn, 18 Barb. 165. The performance of his contract by the 
debtor as by a payment of part of the debt is not a consideration 
for a promise by him. Woolford v. Dow, 34 111. 424 ; Maihewson v. 
Strafford Banl, 45 IT. H. 104 ; Halliday v. Rart, 30 N. Y. 474 ; 
Jenkins v. Clarkson, 1 Ohio, 72. The creditor must have notice that 
the surety signed as such. Howell v. Lawrenceville Co. , 31 Ga. 663 ; 
Neel V. Harding, 2 Mete. (Ky.) 247; McGee v. Metcalf, 12 S. & M. 
(Miss.) 535 ; Nichols v. Parsons, 6 iN". H. 30 ; Deherry v. Adams, 9 
Yerg. (Tenn.) 52. So, the sureties may have bound themselves abso- 
lutely so that they cannot set up any rights as sureties. Sprigg v. 
Bank, 1 McL. (C"^, C.) 384; Tate v. W^Jmond, 7 Blackf. (Ind.) 240, 
Yates V. Donaldson, 5 Md. 389 ; Reddish v. Watson, 6 Ohio, 510. 
The surety may waive the discharge and so continue his liability. 
Hinds V. Ingham, 31 111. 400 ; i\^. H. Bank v. Gill, 16 N. H. 578. 
The creditor may extend the time of payment if he reserves his right 
to sue at the request of the surety. Prout v. Branch Bank, 6 Ala. 
309; Salmon v. Clagett, 3 Bland. (Md.) 125; Bailey v. Gould, 
Walk. (Mich.) 478 ; Yiele v. Hoag, 24 Vt. 46. A surety who is fully 
indemnified cannot claim the benefit of the discharge. Chilton v. 
Robbins, 4 Ala. 223; Kleinhaus v. Generous, 25 Ohio St. 667. 
Where there have been repeated extensions and the surety has waived 
any advantage from them, it is evidence of his consent to a like mode 
of dealing in the future. N. H. Bank v. Gill, 16 N". H. 578. Ac- 
cepting a mortgage or other collateral security, payable at a futm'e day, 
is not an extension. United States v. Hodge, 6 How. (U. S.) 279 ; 
Austin V. Curtis, 31 Yt. 64. Delay in dealing with collaterals or 
granting time to the persons who gave them is not a discharge to 
sureties on the principal obligation. iV. H. Bank v. Downing, 16 N. 
H. 187. Nor is a time note taken for interest due. Ghan v. Niem- 
cewicz, 11 Wend. 312. Giving time to one surety does not dis- 
charge the other, though the latter name is on the back of the 
note. Draper v. Weld, 13 Gray, 580; Carr v. Lewis, 20 N. Y. 138 ; 
Ide V. Churchill, 14 Ohio St. 372 ; Sharp) v. Emhry, 1 Swan (Tenn.), 
254. A promise by the surety to pay the debt made in ignorance of 
the extension which discharges him is not binding. Montgomery v. 



2U PRmCIPAL AND SURETY. 

Hamilton, 43 Ind. 451. Where it was understood by all parties that 
extensions were to be granted, the sureties cannot complain. Jones v. 
Brow7i, 11 Ohio St. 601. 

It is a general principle that when the question of injury to the 
surety is to be decided as a question of law by the court, it will be 
considered, but if it is a question of fact, it cannot be tried and the 
surety is discharged without proof of actual injury. 

§ 15. When a forbearance to sue is a discharge. In order that 
a forbearance to sue may be a discharge to a surety, it must be in vio- 
lation of some duty which the creditor owes to the surety either by 
contract or statute. Only a valid agreement by a creditor with his 
debtor without the consent of the surety not to sue for a definite time 
after the debt is due, releases the surety. Ho/rhert v. Dumont, 3 Ind. 
346. Where usurious interest can be recovered back, its payment is 
no consideration for such agreement. Shaw v. Binhard, 10 Ind. 227. 
But where money was actually advanced at the time of the new con- 
tract, it is binding on the obligee, though usurious. Kenningham v. 
Bedford, 1 B. Monr. (Ky.) 325 ; Armistead v. Ward, 2 Patt. & H. 
(Ya.) 504. If such contract disables the creditor from enforcing his 
demand or enabling the surety to do so on payment, the surety need 
prove no other injury. Pijpkin v. Pond, 5 Ired. (N. C.) Eq. 91 ; 
McComb v. Kittridge, 14 Ohio, 348. The wrong is the same in its 
nature and is governed by the same principles as that treated in § 13. 

§ 16. When forbearance is no discharge. If the forbearance to 
sue results from mere passiveness, or from a void promise which the 
creditor or the surety in his place may at any time disregard, no right 
of the sm*ety is touched, and he cannot complain or refuse to perform 
his promise. Nichols v. McDowell, 14 B. Monr. (Ky.) 6 ; Hunt v. 
Knox, 34 Miss. 655 ; Jordan v. Trumho, 6 Gill & J. (Md.) 103 ; Craw- 
ford V. Gaulden, 33 Ga. 173. If the promise is not to bring suit 
against the estate of the deceased debtor, for a period which does not 
extend beyond that, within which suits are forbidden by law, it cannot 
harm the surety, and does not discharge him. Gardner v. Van Norst- 
rand, 13 Wis. 543. A promise by a sherijBf to a debtor who has given 
bcjiid for the liberties of the prison, that if he escapes, he will first look 
to the sureties on his bond, does not discharge them. Rice v. Pollards 
1 Tyl. (Yt.) 230. Where the creditor has got separate judgments 
against the principal and surety, they are treated as if both were princi- 
])al debtors, and a covenant not to sue one will not discharge the other. 
Iluhlell V. Carpenter, 2 Bai-b. (N. Y.) 484. 

^ 17. Staying proceedings against the debtor. Unless the surety 
has some legal right to require the creditor to proceed, he cannot com- 



PKINCIPAL AND SURETY. 245 

plain that he abandons proceedings. This may depend upon the ques- 
tion whether there has any definite actual lien been secured in the suit. 
It may also be affected by the question whether the release has been 
purchased by the debtor. Thus, it has been held that a direction to 
stay proceedings on execution, made without consideration, does not 
discharge the sureties. lioystmi v. Howie, 15 Ala. 309 ; Stringfellow 
V. Williams, 6 Dana (Ky.), 236 ; Miller v. Porter, 5 Humph. (Tenn.) 
294; Alcock v.- Rill, 4 Leigh (Ya.), 622 ; Shriver v. Lomejoy, 32 Cal. 
574. Nor is the surety released because the first execution issued on 
the judgment is not levied. Ducker v. Rapp, 67 IST. Y. 464 ; Finn 
V. Stratton, 5 J. J. Marsh. (Ky.) 364; contra: Jenkins v. McNeese, 
34 Tex. 189. Nor by mere delay. Eyre v. Everett, 2 Russ. 381. 
A creditor may discontinue a suit begun by him against the principal 
without prejudice to his rights against the sureties, whether he has at- 
tached property or not. Barney v. Clark, 46 N. H. 514 ; Bank v. 
Dixon, 4 Yt. 587. But in other cases, where the creditor had gained 
a definite lien, or advantage against his debtor as by a levy of execution 
of property of the debtor, it has been held that he cannot forego it 
{C-uran v. Colhert, 3 Ga. 239 ; Alexander v. Bank, 7 J. J. Marsh. 
[Ky.] 580 ; State v, Hammond, 6 Gill & J. [Md.] 157 ; Broughton 
V. BoAik, 2 Barb. [N. Y.] Ch. 458 ; Bayik v. Matson, 24 Mo. 333 ; 
Springer v. Toothaker, 43 Me. 381 ; Maqnoketa v. Willey, 35 Iowa, 
323 ; Shannon v. McMullin, 25 Gratt. [Ya.] 211) ; or by an attach- 
ment of suflBcient property. Looney v. Hughes, 26 N. Y. 514; Rees 
V. Berrington, 2 Yes., Jr, 541 ; contra : Baker v. Marshall, 16 Yt. 
522 ; Bellows v. Lovell, 4 Pick. 153 ; Page v. Webster, 15 Me. 
249. An abandonment of a good levj or attachment oh the 
property of one surety releases the others. Martin v. Taylor, 8 Bush 
(Ky.), 384 ; contra : Chipmam, v. Todd, 60 Me. 282. It is a release, 
even if it is by the sheriff. Lumsden v. Leonard, 55 Ga. 374. A 
valid agreement to stay execution, or other proceedings to collect a 
judgment, discharges the sureties {Rees v. Berrington, 2 Yes., Jr., 
541 ; Storms v. Thorn, 3 Barb. 314) ; if they are known to be such. 
Patterson v. Brock, 14 Mo. 473. But the surety may waive the dis- 
charge. J/«yAeiov. CWc^^^, 2 Swanst. 185. Where the creditor gets 
the property on which is his lien, by a fraudulent assignment from the 
debtor, the sureties are not holden. Roheson v. Roberts, 20 Ind. 155. 
But where a levy was stopped, this did not release a surety on an ap- 
peal bond on appeal from the judgment. Sassier v. Young, 6 Gill 
& J. (Md.) 243. AVhere the execution is stayed, the stayer is liable 
to indemnify the sureties. Winchester v. Beardin, 10 Humph. (Tenn.) 
247. Where the debtor is in custody on execution, and the plaintiff 



246 PEIXCIPAL AND SUKETY. 

cUscharo-es liim from prison without the surety's consent, the debt is 
satisfied and the surety is not liable. Paleihor^e v. Lesher, 2 Rawle 
(Penn.), 272. So the surety on a prison-bound bond is discharged by 
an order to stay proceedings. Walton v. Oswald, -i McCord (S. C), 
501. Where a levy on the principal's property is released on his giv- 
ing a new note, the surety is discharged. Morley v. Diokinson, 12 
Cal. 561. Allowing a constable, who had collected money, to retain it 
for a short time for a temporary purpose, does not discharge his sureties. 
Boice V. Main, 4 Den. (K. Y.) 55. Where the creditor has taken 
judgment against the principal by confession with a stay of execution, 
the surety, in order to be discharged, must prove that the creditor could 
have collected the money sooner by the ordinary proceedings at law. 
Ba/rker v. McClure, 2 Blackf. (Ind.) 14; Suydam v. Vance, 2 McL. 
(TJ. S.) 99 ; Fletcher v. Gamble, 3 Ala. 335. Where the principal in 
a bond for a writ of error agrees to an affirmance, to give indorsed bills 
for the amount, and that execution shall not issue except in case of 
default, the sureties are not holden. Comegys v. Cox, 1 Stew. (Ala.) 
262. 

§ 18. Sureties' assent to giving time. The surety of course can- 
not complain of any contract to which he is a party and, therefore, he 
is discharged by time given to the debtor only when he is not notified and 
does not assent. Suydam v. Yance, 2 McL. (C. C.) 99 ; Solomon v. Greg- 
ory, 19 IST. J. (4 liar.) Law, 11'2,', Gray v. Brown, 22 Ala. 262 ; Adams 
V. Way, 32 Conn. 160 ; CrutcherY. Trabue, 5 Dana (Ky.), 80 ; Treat v. 
Smith, 54 Me. 112 ; Wright v. Storrs, 6 Bosw. (N". Y.) 600. This as- 
sent may be inferred from a custom of the bank to which the notes 
were payable to allow notes to remain overdue on the payment of 
further interest in advance which custom was known to the surety. 
Strafford Bank v. Crosby, 8 Green (Me.), 191 ; Crosby v. Wyatt, 10 N. 
N. n. 318 ; Swire v. Redman, L. P., 1 Q. B. D. 536 ; 17 Eng. Pep. 175 ; 
Still more if the delay is at the request of the sureties. Baldwin v. 
Western Reserve Bank, 5 Ohio, 273. It is not essential that the knowl- 
edge and assent of the surety be at the time of the contract. It is equally 
v;ilid if given afterward and there need be no new consideration. Bank 
v. Johnson, 9 Ala. 622; Porter v. Ilodenpuyl, 9 Mich. 11 ; Fowler v. 
Brooks, 13 N. II. 240. But it must appear that the surety was aware 
of the facts, or tlie new promise will not bind him in analogy to the 
case of an indorser on a note on which demand has not been made nor 
notice given. Merrimack Bcmk v. Brown, 12 N. II. 320 ; Kerr v. 
Cameron, 1 9 U. C. Q. B. 366. That a surety was a subscribing witness 
to the contract for extension does not alone prove his consent to it. 
Efhoards v. CoUma/n, 6 T. B. M(jnr. (Ky.) 573. 



PRINCIPAL AND SURETY. 247 

§ 19. Discharge, liow set up. Whether a surety can set up 
his defense at law depends partly upon the time when the defense 
accrued, and partly upon the form of the contract. Thus, where 
time was given to the obligor on a bond prior to the breach, the 
defense was available at law, but if after the breach, only in equity. 
United States v. Howell, 4 Wash. (U. S.) 620. In Kentucky the whole 
matter of discharge by indulgence to the debtor belongs to equity. 
McHaney v. Crahtree, 6 T. B. Monr. (Ky.) 104. In a joint action 
against all the makers of a joint and several note, one cannot at law set 
up that he is a surety and time has been given. Farrington v. Gallaway, 
10 Ohio, 543. But in Mariner' Banh v. Abbott, 28 Me. 280, a part of 
the signers were allowed to prove by parol that they were sureties only 
and that time had been given, and in Jones v. Fleming, 15 La. Ann. 
522, it was held that the form of the contract does not affect the 
surety's right to make this defense. The plea must set out all material 
matters such as that the consideration of the extension being usurious, 
interest was paid in advance {Patton v. ShanMin, 14 B. Monr. 13) ; 
what the consideration was {Marshall v. Cuken, 25 Yt. 328) ; that 
the extension was without the consent of the sureties. Stone v. State 
BanTi, 8 Ark. 141. But it need not allege that the surety gave notice 
of his dissent. Biggins v. Brown, 12 Ga. 271. A plea of a promise 
to release the debtor on receiving security must allege that the se- 
curity was given. Lyle v. Morse, 24 111. 95. Where the surety at- 
tempted to defend at law, and was defeated, he cannot avail himself of 
the same defense in equity. Maxwell v. Connor, 1 Hill's (S. C"! Eq. 14. 



248 PKOHIBITION. 



CHAPTER ex. 

PKOHIBITIOlSr. 
AETICLE I. 

OF PROHIBITION EST GENEEAI.. 

Section 1. In general. The writ of prohibition is an original reme- 
dial writ of great antiquity. The office of this writ is to, restrain subor- 
dinate courts and inferior judicial tribunals of every kind from exceeding 
their jurisdiction. 8 Bacon's Abr., title Prohibition^ 206 ; Quimbo 
A^po V. The People, 20 N. Y. 531, 540 ; Seldon, J. ; 3 Black. Com. 
Ill, 112; 7 Comyn's Dig., title Prohibition, 135, et seq. It is the 
common law remedy against the encroachments of judicial power. In 
England it is the king's prerogative writ ; for, since all lawful jurisdic- 
tion is there derived from and traced to the royal authority, any exer- 
cise of jurisdiction not so authorized is a usurpation of the preroga- 
tive and a resort to force unwarranted by law. Mayor, etc. v. Cox, 
L. R., 2 H. L. 239, 254, Willes, J. In this country, although the 
authority which confers jurisdiction upon courts is regarded as emanat- 
ing from a different source, the unauthorized assumption of judicial 
power is none the less a usurpation of the supreme power. The writ 
is granted not only on the ground of the infringemont of the preroga- 
tive, Ijut also upon the ground of the protection of the individual 
Id. For it is the wisdom and policy of the law to suppose both best 
preserved, when every thing runs in its right channel according. to the 
original jurisdiction of every court. 8 Bacon's Abr., title Prohibition, 
207. " It is," says Seldon, J., in Quimbo Appo v. The People, 20 
N. Y. 531, 540, " an ancient and valuable writ and one the use of which 
in all proper cases should be upheld and encouraged, as it is important 
to the due and regular administration of justice that each tribunal 
should confine itself to the exercise of those powers with which under 
thy Constitution and laws of the State it has been intrusted." 

As between ])rohibition and injunction there is this very obvious and 
striking difference ; one operates upon the court, and the judge and 
officers who disregard it may be punished ; the other operates upon 
the party alone to restrain liim, but does not interfere with the court 
itself. Mayo v. Javtes, 12 Gratt. (Va.) 17. 



PROHIBITION. 249 

In most, if not all of the United States, this writ has been preserved 
by constitutional enactments, and methods of procedure have in some 
instances been provided by statute. The cases in which the power to issue 
the writ exists, and the mode in which the power will be exercised, 
are, however, in general to be determined only by reference to that 
great repository of rules and precedents, the common law. Shaw, C. 
J., in WashMirn v. Fhilli^ys, 2 Mete. (Mass.) 296, 298. 

§ 2. What court may grant. Writs of prohibition in England 
issue properly out of tlie court of king's bench, being, as we have seen, 
the king' s prerogative writ ; but for the furtherance of justice, they 
issue also in some cases out of the court of chancery, the common pleas 
and exchequer. 3 Black. Com. Ill, 112. It appears that the writ 
will issue out of chancery only in vacation. In re Bateman, L. R., 9 
Eq. 660. See In re Foster, 3 Jur. (N. S.) 12, 38. 

In this country the supreme court of the United States has power to 
issue writs of prohibition to the district courts, only when proceeding 
as courts of admiralty and maritime jurisdiction. R. S., U. S., § 688, 
p. 127 ; Ex i)arte Christy, 3 How. 292 ; United States v. Peters, 3 
Dal. 121 ; United States v. Hoffman, 4 Wall. 158. 

It can issue such writs to the circuit courts only when there is an 
appellate power given by law. Ex jMrte Gordon, 1 Black. 503; Ex 
parte Warmouth, 17 Wall. 64. 

In the several State courts the power to issue the writ resides with 
those courts which have general original jurisdiction over the subject- 
matter in contest. lieese v. Lawless, 4 Bibb (Ky.), 394; State v. 
Gary, 33 Wis. 93, 97 ; Thomas v. Mead, 36 Mo. 232 ; Day v. Al- 
dermen of Springfield, 102 Mass. 310 ; Tyler v. Houghton, 25 
Cal. 26. 

In New York by statute (Laws of 1873, chap. 70) the supreme court 
at a general term is authorized to issue a writ of prohibition directed to 
any special term of said court, or any justice thereof holding such 
term or sitting at chambers, and may adjudge and determine the same, 
and force such determination in the same manner, and with the same 
effect in all respects as in the like proceedings when the \vrit is directed 
to inferior courts and judges thereof. Under the Rev. Stat, the writ 
can be issued only out of the supreme court ; but by a subsequent stat- 
ute (Laws of 1873, chap. 239) the court of common pleas for the city 
and county of New York, the superior courts of New York and Buf- 
falo, and the city court of Brooklyn have concurrent jurisdiction to 
issue the writ in a proper case Matter of Worton v. Dowlvng, 46 
How. 7. 

Vol. v.— 32 



250 PROHIBITION. 

§ 3. When granted. "Whenever an inferior court is attempting to 
exercise jurisdiction which it does not possess, or having jurisdiction, is 
exercising an unauthorized power, the writ of prohibition is the proper 
remedy. State v. Judge ^ 11 La. Ann. 187 ; State v. Mitchell, 2 Bailey 
(S. C), 225 ; Zylstra v. Corporation of Charleston, 1 Bay (S. C), 382 ; 
Thomson v. Tracy, 60 N. Y. 31; 8 Bacon's Abr., title Prohibition, 
207 ; Qulmlw Ajypo v. The People, 20 N. Y. 531 ; Sweet v. Hulbert, 
51 Barb. 312. 

And prohibition will lie to prevent the exercise of unauthorized 
power by an inferior tribunal in cases where it has jurisdiction, as 
well as where it has not. Quimbo Appo v. The People, 20 N. Y. 531, 
542 ; Sweet v. HvXbert, 51 Barb. 312. It is a preventive, rather than 
a remedial process, and cannot take the place of a writ of error, or 
other proceeding, for the review of judicial action, or of a suit in 
equity to prevent or redress fraud. People v. Seward, 7 Wend. 518 ; 
Thomson v. Tracy, 60 K. Y. 31, 37. 

It has been granted to restrain the court of oyer and terminer from 
granting a new trial {Quimbo Appo v. The People, 20 X. Y. 529); 
to restrain a court from proceeding under an unconstitutional statute. 
State v. Simons, 2 Spears (S. C), 761 ; Ex parte Roundtree, 51 Ala. 42 ; 
Sweet V. Hulbert, 51 Barb. 312. So, where a magistrate is proceed- 
ing to exercise jurisdiction on a misconstruction of a statute, a 
prohibition issues {Reese v. Lawless, 4 Bibb [Ky.], 394 ; Gould 
V. Gapper, 5 East, 345 ; Baldwin v. Cooley, 1 S. C. 256) ; or 
when a court is attempting to proceed in a case which has been 
properly removed by appeal to another court. State v. Judge, 21 
La. Ann. 113 ; People v. Tompkins Co. Gen. Sessions, 19 Wend. 154. 
And where the chancellor directed the register to appoint a receiver, 
thereby attempting to delegate his judicial powers, he was restrained 
by prohibition. Ex parte Smith, 23 Ala. 94. 

It is no answer to an application for a prohibition, that if the infe- 
rior court is without jurisdiction of the subject-matter, no court would 
be entitled to cognizance of it. Arnold v. Shields, 5 Dana (Ky.)j 18j 
21. Thus, in England, it has been decided that a prohibition would 
lie to a suit there before the Pope's collector ^w lessione jidei, because 
although no otlier tril)niial had jurisdiction, still the Pope's legate had 
no authority in England. C(jmyn's Dig., tit. Prohibition, F. 11. 

In some cases it has been held that where tlie jurisdiction of the in- 
ferior court is limited by the amount in controversy, a voluntary deduc- 
tion simply to give the court jurisdiction is a fraud upon the court, and 
the inferior court will be restrained in such a case from exercising juris- 
diction. 8 Bacon's Abr., tit. Prohibition, K. 231 ; RamsoA/ v. The Court 



PEOHIBITION. 251 

of Wa/rdens, 2 Bay (S. C), ISO. But this is not now regarded as the 
rule. See People v. Marine Court, 36 Barb. 341, 347. 

In the case of West v. Ferguson, 16 Gratt. (Va.) 270, it was held, 
that where a court awarded costs in a proceeding in which it had no 
authority to make such an award, prohibition would issue to restrain 
the enforcement of the judgment. 

§ 4. When refused. The office of the writ is to prevent courts from 
going beyond their jurisdiction in the exercise of judicial not minis- 
terial powers. Ex jparte Braudlacht, 2 Hill (N. Y.), 367; Home Ins. 
Co. V. Flint, 13 Minn. 244; Dayton v. /^at'we, id. 494 ; Hochaday 
V. Newsom, 48 Mo. 196 ; State v. Gary, 33 Wis. 93 ; Board of Com- 
missioners V. Sjjitler, 13 Ind. 235. Hence, it does not issue to restrain