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

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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

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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

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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 0

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.— 0

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
the issuing of an execution {Ex parte Braudlacht, 2 Hill [K. Y.], 367) ;
or the levying of a tax to repair county buildings [Clayton v. Heidel-
herg, 9 Sm. & M. [Miss.] 623) ; or to restrain the county court from
locating a county seat {Ex pa/rte Blackburn, 5 Ark. 21 ; Vitt v. Owens,
42 Mo. 512; State v. Clarlc, 41 id. 44) ; or against ministerial officers
as to the mayor of a city to restrain him from investigating charges
against a city official {Burch v. Hardwicke, 23 Gratt. [Ya.] 51) ; or the
governor of the State to prevent his issuing a commission to an elec-
ted officer {Crier v. Taijlor, 4 McCord [S. C], 206); but in the
case of Hausman v. County Commissioners, 51 Me. 83, a prohibition
was issued to restrain county commissioners from proceeding to open
a highway ; and in Day v. The Board of Aldermen, 102 Mass. 310, a
prohibition was issued to a board of aldermen to restrain them from
taking the petitioner's land for the purpose of opening a street.

When the subject-matter is clearly within the jurisdiction of the in-
ferior court, the writ will not lie to coiTect mere errors of judgment
or mistakes of law ; the remedy in such cases is by certiorari or appeal.
Leonardos Case, 3 Eich. (S. C.) L. Ill ; People v. Seioard, 7 Wend.
518; Morris v. Lenox, 8 Mo. 252^ BusTcirh v. Judge, 7 W. Ya. 95 ;
Clayton v. Heidelberg, 19 Miss. (9 S. & M.) 623 ; Low v. Crown
Point Mining Company, 2 Nev. 75. Thus, prohibition will not lie to
restrain a court of chancery from issuing an injunction in a case claimed
to be unauthorized {Ex parte Reid, 50 Ala. 439) ; and although a bill
in chancery may be fatally defective in necessar)^ averments, may abound
in imperfections, and may be filed in a district in which the defendants
are not liable to be sued, yet these are mere matters of defense which
cannot be reached by prohibition. Ex parte Greene, 29 Ala. 52.

So, a defendant under attachment for contempt in violating an
injunction cannot obtain a prohibition restraining the proceedings
against him on the ground that the court had no jurisdiction of the

252 PROHIBITION.

subject-matter of the bill when it does not appear that the petitioner
has ever answered the bill or moved to dismiss for want of equity.
Ex ;f arte Hamilton, 51 Ala. 62.

So, a court having jurisdiction cannot be prohibited from adjudging
on the question presented, although it may be perfectly clear that the
defendant has a good defense {The People v. Bussell, 49 Barb. [N.
Y.] 351) ; nor will the writ be issued on the ground that the court
below has committed an error in refusing to receive legal evidence
{Ex parte Bradley, 9 Rich. [S. C] L. 95) ; mere irregularities, insuffi-
ciency of proof and mistaken judgment do not warrant prohibition.
State V. WaJcely, 2 N. & McC. (S. C.) 410, 412 ; Grant v. Sir Charles
Gould, 2 H. Bl. 100 ; State v. Columbia, etc., R. B. Co., 1 S. C. 46 ;
Cooper V. Stocker, 9 Rich. (S. C). L. 292. No man is entitled to a
prohibition unless he is in danger of being injured by some suit actu-
ally depending, and it will not be granted merely from a fear that
suit will be commenced from which damage may possibly accrue
{Mealing v. City Council, Dud. [Ga.] 221) ; and where the subject of
the suit in an inferior court is within the jurisdiction of that court,
though in the proceedings a matter be stated which is out of its juris-
diction, yet, unless it is going on to try such matter, a prohibition will
not lie. Dutens v. Robson, 1 H. Bl. 100. Thus, where a motion
was noticed for argument before an officer who had no authority to
entertain it, it was held that a prohibition would not lie without proof
that the officer has indicated an intention to pursue such a course,
for the court will presume that the officer will do his duty. Prignitz
V. Fischer, 4 Minn. 366.

In some instances, when the law provided no other remedy and to
prevent gross outrages upon law, errors in relation to matters within
the jurisdiction of the inferior court have been corrected by prohibition.
State V. Nathan, 4 Rich. (S. C.) L. 513 ; Ex parte Brown, 2 Bailey
(S. C), 323 ; State v. Ridgell, id. 560. See Ex parte Bradley, 9
Rich. (S. C.) L. 95 ; 3 Black. Com. 112 ; Lord Cainden v. Home,
4 T. R. 382. But these decisions are not now considered authoritative.

In general, prohibition will not issue where there are other remedies
adequate in some other form {State v. The Judge of County Court^
11 Wis. 50; PeopU v. Clute, 42 How. Pr. [N. Y.] 15Y; PeopU v.
Circuit Court, 11 Mich. 393 ; Peoples. Marine Court, 36 Barb. 341 ;
Smith's Case, 23 Ala. 94 ; 25 Ala. 81 ; Green <& Graham's Case, 29
id. 52; Wilson v. Berkstresser, 45 Mo. 283; People v. Russet, 19
Abb. Pr. (N. Y.) 136 ; 8 Bac. Abr. 209, 210) ; and it is never to be
resorted to, except in cases of usuqjation or abuse of power. Id. ;
Ex -parte Hamilton, 51 Ala. 62.

PROHIBITION. 253

But the mere fact that an appeal or writ of error will lie, in a ease
where the inferior court is clearly without jurisdiction, will not be a
reason why the writ should be denied, for the reason that it is better
to prevent the exercise of an unauthorized power than to be driven to
the necessity of correcting the error after it is committed {Quimho
Appo V. The People, 20 N. Y. 531, 542) ; and a defendant ought not
to be required to await an expensive and vexatious litigation in order
to obtain relief by appeal. Michaud v. Judge, 20 La. Ann. 209.

The writ will not operate to restrain the parties named generally or
from doing any act save only proceeding in the suit or matter pending
before the inferior court. Thus, in a contested will case where a will
was admitted to probate by the surrogate, and after appeal from his
decree, letters were issued to the executors, and upon appeal the decree
of the surrogate was reversed, and a writ of prohibition was thereafter
issued, directed to the surrogate and the executors which, by its terms,
prohibited the executors from acting in any way as such, it was held
that such writ was not effectual to prevent the executors from prose-
cuting an appeal from a judgment against them in their representa-
tive capacity, or to restrain their action in regard to such appeal.
Thomson v. Tracy, 60 N. Y. 36.

§ 5. When a matter of right and when discretionary. It has
been frequently stated in the opinions of the American judges that the
writ of prohibition is not one of right and is not granted as a matter
of course, but that the granting of the writ rests in the sound discre-
tion of the court {Ex parte Braudlacht, 2 Hill, 367 ; Sweet v. Hul-
hert, 51 Barb. 312; Ex parte Hamilton, 51 Ala. 62; Ex parte SticTc-
ney, 40 id. 160; Ex parte Reid, 50 id. 439; Ex p>arte Greene, 29
id. 52 ; Gray v. Court of Magistrates, 3 McCord (S. C), 175 ; States.
Judge, 19 La. Ann. 183) ; and such seems to have been the ruling in the
earlier English cases (8 Bac. Abr., title Prohibition, B., pp. 209, 210) ;
but in the late case of Mayor, etc. v. Cox, in the house of lords, L. P., 2
H. of L. 239, 278, it was held that the writ of prohibition at the suit
of a party is not in the discretion of the court, but issues ex debito jus-
Utice. " The only discretion," says Brett, J., in Worthi?igton v. Jef-
fries, L. P., 10 C. P. 377, 384 ; 12 Eng. Pep. 440, which the supreme
court has to refuse a prohibition is, if it doubt, in fact or law, whether
the inferior court is exceeding its jurisdiction ; but if the superior court
is clear in fact and in law, that the inferior court is acting in excess of
its jurisdiction, or without jurisdiction, it cannot rightly refuse to
enforce public order in the adminstration of the law by refusing either
to issue a writ of prohibition or to put the plaintiff in prohibition to
declare in prohibition.

254 PROHIBITION.

The English cases seem to take the distinction that when the writ is
applied for by a party, then it is a matter of right, but otherwise when
applied for by a stranger, for the reason stated by Jessel, M. E,., in
Chambers v. Green^ L. R., 20 Eq. 552, 555, "that when both par-
ties to the action wish the inferior com't to decide it, a stranger should
not as matter of course prevent it" (See Forster v. Forster, 4 B. & S.
1S7, 198 ; Chamhers v. Green, L. R., 10 Eq. 552 ; Queen v. Twiss, L.
R., 4 Q. B. 407) ; but in the common pleas it is held that the issuing of
the writ is a matter of right, whether the application be in behalf of a
party or a stranger. Fllis v. Fleming, L. R., 1 Com. PI. Div, 237 ;
Worthinr/toTi v. Jefries, L. R., 10 C. P. 379 ; 12 Eng. Rep. 440.

§ 6. At what time granted. The writ of prohibition can only be
used to prevent the doing of some act which is about to be done, and
can never be used as a remedy for acts already completed ( U. S. v.
Hoffman, 4 Wall. 158) ; as when the court was asked to prohibit an
inferior court from proceeding in an action which had been discontin-
ued. Id.

Generally, a prohibition may be awarded as well after as before judg-
ment or sentence in a case where the want of jurisdiction appears on
the face of the proceeding (8 Bacon's Abr., tit. Prohibition, H., p.
224 ; Gray v. Magistrates Court, 3 McCord [S. C], 175) ; but where
the want of jurisdiction does not appear, but is matter of defense to be
pleaded, then the defendant, having failed to plead to the jurisdiction,
but having submitted to it, cannot after judgment obtain the writ.
Roberts v. Ilumby, 3 M. & W. 119 ; Ex parte McMeechen, 12 Ark.
70; Fx parte Blackburn, 5 Ark. 22; 8 Bacon's Abr., tit. Prohi-
bition, II., p. 224. And after appeal a prohibition will not be allowed
if the matter be not apparent. Ricardo v. Board of Health, 2 H. &
K 257.

§ 7. To what courts awarded. The king's superior courts of
Westminster have a suporintendency over all inferior courts of what
nature soever, and are by law intrusted with the exposition of such
laws and acts of parliament as prescribe the extent and boundaries of
their jurisdiction ; so that, if such courts assume a greater or other
power tiian is allowed to them by law, or if they refuse to allow
acts of j>arliainent, or expound them otherwise than according to^he
true and proper exposition of them, the superior court will prohibit
and control them. Bac. Abr., tit. Prohibition, I., p. 226. Prohibi-
tions are Tjot exclusively directed to courts properly so called. They may
be addressed to tliose persons who are attempting to exercise judicial
functions. State v. Commissioners of Roads, 1 Mill (S. C), 55. So,

PEOHIBITION. 255

a prohibition was issued to the court of honor although it was doubted
whether there was, or could be, any such court. 8 Bacon's Abr., tit.
Prohibition, /., 228. So, in E.c parte Roundtree, 51 Ala. 42, prohibi-
tion was issued to restrain a judge from holding a court when the act
creatine: the court was declared unconstitutional. It is there said that,
in the absence of any other adequate remedy, prohibition lies to prevent
unauthorized individuals from usurping judicial power.

In Queen v. Herford, 3 El. & El. 115, a prohibition was granted to a
coroner to restrain him from holding an inquest to inquire into the
origin of a iire. In England the writ lies out of the queen's bench
{Smith V. Broion, L. R., 6 Q. B. Y29) ; and out of the exchequer
{James v. Lond. & South West. E. R. Co., L. R., 7 Exch. 187) ; and
out of the common pleas {Emrard v. Kendall, L. R., 5 C. P. 428),
to the admiralty. In this country the supreme court of the United
States is authorized to issue the writ to the district courts only when
they are proceeding as courts of admiralty and maritime jurisdiction.
R. S., U. S., § 588, p. 127. See anU, § 2.

The writ is directed to the judges of an inferior court, or the parties
to a suit therein, or both conjointly. Norton v. Doxoling, 46 How.
(N. Y.) 7 ; Broom's Com. 232. By statute, in New York, the writ
issues to the court and party. 2 R. S. 587. It may be issued by the
general term of the supreme court, directed to any special term of that
court, or any justice thereof holding such term, or sitting at chambers
(N. Y. Laws of 1873, ch. 70) ; but a writ of prohibition from the
supreme court cannot affect the court of appeals, or its suitors. If for
any reason a cause, or matter, brought before that court is not within
its jurisdiction, or an appeal is brought by parties not entitled, or con-
trary to law, that court will make such order as the case, and a proper
indication of the law, its own jurisdiction, and the rights of the parties
require. Thomson v. Tracy, 60 N. Y. 31, 37.

Prohibitions are granted to naval and military court-martials. Grant
V. Gould, 2 H. Blk. 69 ; Washhurn v. Phillips, 2 Mete. (Mass.) 296.
The convention, or board of police justices in the city of New York,
in collecting and preserving statistics, in passing resolutions for the
good order of the city, and in appointing and remo\dng clerks, does
not act as a court to be restrained by prohibition. Norton v. Dowling,
46 How. 7.

§ 8. Bar by delay. Where the writ issues ex debito justitice, it can-
not be barred by lapse of time. But where it issues in the discretion of
the court, the party must move promptly. & parte Denton, 1 H. &
C. 654. In any event if he wait until after payment and execution,

256 PEOHIBITION.

especially where the money is paid over, he is too late, for there is
nothiiu' for the prohibition to operate upon. Id. But in Ingersoll v.
Buchannan, 1 W. Ya. 181, prohibition was issued after judgment,
and after execution had been issued, but not returned.

§ 9. Who may join in. It seems that a prohibition may issue at
the instance of a mere stranger (8 Bacon's Abr., tit. Prohibition^ C, 7 ;
Corayn's Dig., Prohihition, K; 2 Coke's Inst. 602 ; Worthington v. Jef-
fries, L. R., 10 C. P. 379 ; 12 Eng. Hep. 440) ; although it generally
issues at the instance of the party aggrieved. Mayo v. James, 12
Gratt. (Ya.) 17, 23. It has already been observed that where the writ
issues at the instance of a stranger, it is always a matter of discretion.
See ante, 254, § 6.

§ 10. Enforcing prohibition. The disobeying of a prohibition is
a contempt to the superior court that awards it, and is punishable by at-
tachment, which issues against the judge and party for proceeding after
such prohibition, and for which they are subject to fine and imprisonment
according to the discretion of the superior court. 8 Bacon's Abr., tit.
Prohibition, M., p. 244 ; Howard v. Pierce, 38 Mo. 296. The court has
no power to order a restitution on prohibition. Id. The service of a
rule to show cause why a prohibition should not issue operates as a stay
of the jDroceedings complained of until further order discharging the
rule, and it seems that the party or the judge of the inferior court
would be subject to an attachment for going on with the proceedings
after sucli service and upon such further order. Mayo v. James, 12
Gratt. 17, 24. And not only will attachment lie for proceeding in
the same cause pending a prohibition, but also for instituting a new suit
for the same thing. Bacon's Abr., tit. Prohibition, M., p. 244.

§ 11. Costs. In England it is provided by Stat. 1 Wm. 4, ch. 21, that
in proceedings in prohibition the party in whose favor judgment shall be
given, whether on nonsuit, verdict, demurrer or otherwise, shall be en-
titled to the costs attending the application, and subsequent proceed-
ings, and have judgment to recover the same ; and in case a verdict
shall Ijc given for the party plaintijff in such declaration, it shall be lawful
for the jury to assess damages. See Rex v. Kaalmg, 1 D. P. C. 440 ;
Tessimond v. Ya/rdley, 5 B. & Ad. 458 ; Pewtress v. Harvey, 1 id.
154. But where the rule is made absolute without pleading no
costs are allowed. Hx parte Overseers, etc., L. E,., 6 C. P. 245. And
where damages arc allowed, they do not include the costs of defending
the original suit. White v. Steele, 13 C. B. (N. S.) 231.

In New York, costs of such proceedings are in the discretion
of the court (5 Wait's Prac. 611) ; but when allowed they are to

PKOHIBITIO^. ^257

be at the rate allowed for similar services in civil actions (act of
1854, ch. 270, § 3) ; and whether it be in a civil or criminal matter,
damages and costs may be awarded against the defendant in prohibition
{Mayo V. Jcnnes, 12 Gratt. 17, 25) ; and in an attachment upon a pro-
hibition the plaintiff may recover damages and costs against the party
for proceeding after the writ of prohibition is awarded. Bacon's Abr.,
title Prohibition, m. p. 244.
Vol. v.— 33

258 QUO WAKKANTO.

CHAPTER CXI.

QUO WAKEANTO.
AETICLE I.

QUO WARRANTO IN GENERAL.

Section 1. Defluitiou aud nature. Quo warranto was the name
of a writ by which the government formerly commenced an action
to recover an office or franchise from the person or corporation in
possession of it. The writ commanded the sheriff to smnmon the de-
fendant to appear before the court to which it was returnable, to show
{quo warranto) hy what authority he claimed the office or franchise.
2 Bouv. Law Diet. 405. It was a writ of right, a civil remedy to try
the mere right of the franchise or office, where the person in possession
never had a right to it or had forfeited it by neglect or abuse. 3
Black. Comm. 262. The writ of quo warranto has given place to an
i/nformation in the nature of quo warranto^ which is applied to mere
purposes of trying a civil right, and ousting a wrongful possessor of an
office. Hesjjuhlica v. Wray^ 3 Dall. 490 ; Newsom v. Cocke, 44
Miss. 352 ; S. C, 7 Am. Rep. 686 ; Hyde v. State, 52 Miss. 665.

A writ of quo warranto is a writ of right and issues of course on
demand of the proper officer. State v. Stone, 25 Mo. 555. But
see CommAynwealth v. Cluley, 56 Penn. St. 270. The writ at com-
mon law was a criminal proceeding. Atty. -General v. Utica Ins.
Co., 2 Johne. Ch. 371. So, also, is an information in the nature of a
quo warranto. Donnelly v. The People, 11 111. 552 ; Atty. -General
V. Utica Ins. Co., 2 Johns. Ch. 371. And neither of them can be
maintained except at the instance of the government in the name or
by the authority of the people. Wallacex. Anderson, 5 Wheat. 291 ;
DormeUy v. The Peojjle, 11 111. 552 ; Wright v. Allen, 2 Texas, 158;
Rolyinsoii V. JoiViH, 14 Fla. 256. But the proceeding hy quo warranto
ifi not a criminal proceeding in the sense of the Illinois act of 1861,
giving the com't discretionary power to grant a change of venue. Ens-
minger v. Peojjle, 47 111. 384.

In New York the writ of quo warranto and the information in the
nature of a qiio warranto are abolished and the remidies obtainable

QUO WAERANTO. 259

under them may be obtained by a civil action. People v. Cook, 8 N.
Y. (4 Seld.) 67. So in other States, the information in the nature of a
quo warranto is essentially a civil proceeding, and subject to the rules
governing corresponding proceedings in strictly civil causes. State v.
Kupferle^ 4i Mo. 154 ; State v. Messmore, 14 Wis, 115.

The action under the New York code, although differing in some of
the formulae of procedure from proceedings by information, or by writ
of qiio warranto, is nevertheless in substance the same and is governed
by all the rules which regulated the proceedings under the former
practice. People v. Pease, 30 Barb. 588 ; S. C. affirmed, 27 N. Y.
(13 Smith) 45. But it is essentially a civil action. PeopleY. Clute, 52
N. Y. (7 Sick.) 576. And it is one of legal, not equitable cognizance,
and the issues therein are strictly legal ones. People v. Albany etc.,
R. R. Co., 57 K Y. (12 Sick.) 161

Wliere a person is in office by color of right and exercising the duties
thereof, a quo warranto is the proper* remedy for another person claiming
the same office. People v. Forquer, Breese, 104 ; St. Louis County
Court V. Sparks, 10 Mo. 117; Sudbury v. Stearns, 21 Pick. 148.

The writ of quo warranto is unknown in the practice of Tennessee.
Hyde v. Trewhitt, 7 Coldw. (Tenn.) 59.

§ 2. In what cases it lies. It lies to remove the illegal incum-
bent of any office. Strong, Petitioner, 20 Pick. 484. But it lies against
those only who claim to exercise some public office or authority. Com-
monwealth V. Dearborn, 15 Mass. 125. It lies as well against officers
appointed by the supreme executive authority of the Commonwealth as
against those holding corporate offices or franchises. Commonwealth
V. Fowler, 10 Mass. 290. It lies to remove a person appointed to
a public office by the governor of the Commonwealth, when such an
office did not exist, but who claims it by virtue of such appointment
after it is created. Commonwealth v. Fowler, 10 Mass. 290. It lies
to inquire into the election or admission of an officer or mem-
ber of a corporation, for any person interested in such election
or admission if it was unduly made. Commonwealth v. Union
Ins. Co., Newburyport, 5 Mass. 230 ; The State v. Lehre, 7
Bich. (S. C.) 234. It is the proper mode of testing the validity or de-
termining the result of a popular election. State v. Clerk of Passaic,
1 Dutch. (X. J.) 354. It hes to test the right of a member of the
common council of a city to a seat in that body {Commonwealth v.
Meeser, 44 Penn. St. 341) ; to investigate the right to a mihtary
office {Commonioealth v. Small, 26 Penn. St. 31) ; to inquire into
the right to exercise the office of a San Francisco pilot. Palmer
V. Woodbury, 14 Cal. 43. It will be issued on reasonable grounds

260 QUO WAEKAJSTTO.

against one holding office, who has not given the proper bond in sea-
son. Resjpublica v, Wray^ 2 Yeates, 429. It is also the proper
remedy in case of the usurpation of a franchise, as when the recorder
claims the right to vote with the aldermen, Reynolds v. Baldwin,
1 La. Ann. 162. It lies for the appointment of inspectors of the
Philadelphia prison in a clandestine manner. One who has authority
to appoint to office cannot appoint himself. Commonwealth v. Doug-
lass, 1 Binn. 77. It lies against an incorporated company for carry-
ing on banking operations without authority from the legislature.
People V. JJtica Ins. Co., 15 Johns. 358.

It lies against an individual intruding into th e office of sheriff, in
consequence of an unlawful decision of a county board of canvassers
in his favor {People v. Van SlycTc, 4 Cow. 297), against persons who
have usurped or intruded into the office of directors of an insurance
company or of any other corporation {People v. Tibbits, 4 Cow. 358) ;
as where individuals usurp the office of trustees of an incorporated
church. Commonwealth v. Graham, 64 Penn. St. 339. It lies for
the office of recorder. Rex v. Colchester, 2 T. P. 259.

An action in the nature of proceedings of quo warranto lies in New
York, when any association or number of persons shall act as a cor-
poration within the State without being duly incorporated. Parish
of Bellport v. Toolcer, 29 Barb,, 256 ; S. C. affirmed. 21 N. Y. (7
Smith) 267.

Under the Constitution of Pennsylvania (Art. 8, § 9) a writ of quo
warranto may issue against a public officer, for bribery, fraud, or the
willful violation of any election law, without a preliminary conviction
for the offense in the quarter sessions ; and the question, whether the
offense was committed, may be tried in the proceedings under the quo
warranto. Cormnonwealth v. Walter, 83 Penn. St. 105.

§ 3. When it does not lie. Quo warranto will not issue merely
for the determination of a private right wherein the whole commun-
ity are not interested. Ramsey v. Carhart, 27 Ark. 12 ; People v.
Ridrjley, 21 111. 65. Nor will it be entertained for the purpose of
annulling a city ordinance passed in the irregular and improper exer-
cise of a power conferred by law. State v, Lyons, 31 Iowa, 432. It
does not lie against an officer elected for one year only, because it
would be impossible to decide the question until the expiration of the
term, when the mischief complained of would be gone. Common-
wealth V. Atlvearn, 3 Mass. 285; State v. Fisher, 28 Yt. 714.
Otherwise, if public interests or private rights seriously required a qico
vmrroMto. State v. Fisher, 28 Vt. 714. It does not lie against
tlie managers of a lottery appointed by a corporation having the grant

QUO WARRANTO. 261

of such lottery. ComTrwuwealth v. Dearhorn, 15 Mass. 125. It will
not be granted against a minister of a congregation unless the plaintiff
and the defendant claim under the same charter. Comrnonwealth v. Mur-
ray^ 11 S. & R. 73. It will not lie against a party claiming office in a
supposed corporation, where no corporation, in fact, exists. The State
V. Lehre, 7 Rich. (S. C.) 23-i. It will not lie to oust the captain of a
boat company of his commission, on the ground that his election was
invalid, and his commission illegally granted. The State v. Wadki^is,
1 Rich. 42.

The court ^vill not grant a qtio warranto information against a
burgess for being illegally upon the burgess roll, unless it be shown
that he has de facto exercised the office. Regina v. Armstrong, 34
Eng. L. & Eq. 288. Nor will it be granted to question the title of a
citizen to an office where the people, through theii* constitutional
agents, ratify and recognize it {People v. Flanagan, %^ N. Y. [21
Sick.] 238) ; nor to inquire into the election of an assistant overseer.
Reg. V. Simpson, 19 W. R. 73. An information in the nature of a
quo warranto will not lie against a number of persons incorporated as
a railroad company, on the grounds that they do not intend to construct
the whole of their road according to its description in the articles of asso-
ciation, and that they intend to make use of their organization for the
purpose of condemning and appropriating private property over which
to construct their railroads. State v. Kingan, 51 Ind, 142. And the
question as to the constitutionality of an act of the legislature which
proposes to extend the territorial limits of a city so as to include lands
used exclusively for farming purposes, contrary to the wishes of the
owners of such lands, cannot be raised by a wi-it of quo warram,to,
questioning the authority of the city officers to exercise their functions
as such within the extended boundary. People v. Whitcomb, 55 111.
172. When, upon an application for a quo warranto against a party for
claiming to be a member of a local board of health, the affidavits used
in support of the rule showed 7jWm'^yaci<2 that the applicant had ob-
tained a majority of votes, the court upon the argument of the rule
refused to consider the question whether he had, in fact, obtained such
majority or not. Reg.\. Collins, 1Z W. R. 325; Beg. v. Ward, L.
R., 8 Q. B. 210 ; 42 L. J. Q. B. 12G.

§ 4. Wheu (liscretiouary. Formerly, the granting of an informa-
tion in the nature oi & quo wa/rra/nto was always discretionary with the
court. Conivfionioealth v. Peigart, 14 S. & R. 216 ; People v. Sweet-
ing, 2 Johns. 184 ; The State v. Lehre, 7 Rich. (S. C.) 234 ; People v.
Waite, 70 111. 25. Now it is only necessary to apply for leave to file
such an information when the relator is a private person. In such

262 QUO WAKEANTO.

case, it depends upon the sound discretion of the court, under the cir-
cumstances of the case presented. State v. Stewart, 82 Miss. 379 ; The
Commo7iwealth v. Jones, 12 Penn. St. 365 ; State v. Brown, 5 R, I. 1.
Especially is this so, where the relator makes no claim to the office,
even though a good objection to the incumbent's title is shown. State
V. Tokm, 33 L. J. Law, 165.

Where a person intrudes himself into an office, in consequence of the
unlawful decision of a board of canvassers in Michigan, the remedy
by motion to the supreme court for leave to file an information in
the nature of a quo warranto, to try the right to such office, is proper,
but the court have a discretion as to granting such motions. People
V. Tisdale, 1 Doug. (Mich.) 59. The court will not grant an information
in the nature of a quo warranto, against a turnpike company for not
making compensation pursuant to statute to the owner of land through
which they have made their road, but will leave the complainant to his
action of trespass. People v. Hillsdale, etc., Chatham Turnpike Co.,
2 Johns. 190. And where the law designates the power which is to
appoint and remove an officer, fixes no form of proceeding and pro-
vides for no trial, but only that the authorities may remove upon credi-
ble information of neglect, no court can review a decision removing
the officer. People v. Bearfield, 35 Barb. 25tl:.

§ 5. Trying title to office. Quo warranto is the direct proceeding
to try title to an office. People v. Scannell, 7 Cal. 432 ; People v.
Va7i Slyck, 4 Cow. 297 ; Akin v. Matteson, 17 111. 167 ; Grant v.
Cha/mhers, 34 Tex. 573. In the case of plenarty, it is the only mode
of proceeding. Rex v. Winchester, 7 Ad. & El. 215 ; Matter of Hebra
Ilased Ya Emet, 7 Hun (N. Y.), 333. But the writ will not be granted
to test the right to a state office. It is exclusively applicable to the
investigation of claims to office under a corporation. Terry v. Stauffer,
17 La. Ann. 306.

An action in the nature of quo warranto proceedings, to test the
right of a person to a pubhc office, must be brought in the name of the
people of the State, and the attorney-general has the complete control.
Pattersfm v. Ilubhs, 65 N. C. 119 ; People v. Pratt, 15 Mich. 184 ;
Tfve State v. Schnierle, 5 Rich. 299. But no positive duty is imposed
upon the attorney-general to bring such an action upon request of a
l)arty claiming office from which he is expelled, but it is a matter
within his discretion, and the courts cannot sit in judgment upon his
exercise thereof, or coerce his action. People v. Falrchild, 67 N. Y.
(22 Sick.) 334 ; affirming S. C, 8 Hun, 334. If the proceedings be
brought in one of the territories, to test the right of a person to ex-
orcise the functions of a judge of the supreme court of that territory,

QUO WARRA^'TO. 263

they must be brought in the name of the United States, and not in
the name of the territory. Territory v. Lockwood, 3 Wall. (U. S.) 236.
In qito wa/rrcmto to try title to an elective office the State being joined
as plaintiff, the complaint need not show that the relator is entitled to
the office, nor need it state the names of alleged illegal voters. State
V. Palmer, 24 Wis. 63.

An information in the nature of a qioo warranto to oust a person
from an office which he holds, only lies against a person who was in-
competent to hold the office from the first. It is not the proper remedy
against a person legally elected probate judge, ehgible to be such judge
when elected, and duly inducted into his office as such, within the tune
and after the manner prescribed by law. State v. Gardner, 43 Ala.
234. And an action in the nature of a quo warranto will not lie
against an officer of a private corporation, who is the mere servant or
agent of the company and holds at the will and pleasure of the direct-
ors. The reason is, that a judgment against the defendant would be
merely nugatory, for the directors might immediately re-instate him.
People V. Bill, 1 Lans. (N. T.) 202 ; State v. Curtis, 35 Conn. 374.
See, too, Bradley v. Sylvester, 25 L. T. (N. S.) 459. Where in quo
warra/nto, the relator sets out the foundation of his title to the office
in question, an amendment may properly be allowed averring his right
to perform the duties and receive the fees, etc., of an office therewith
united by statute, as here that of clerk of a district court and protho-
notary. CoimnonwealtK v. Swank, 79 Penn. St. 154.

§ 6. Usurping franchise. The writ of quo warramio is the ap-
propriate remedy by which a person legally elected and qualified to
hold an office, may gain possession of it and oust a party who has
iisurped and continues illegally to hold the office. Lindsey v. AU.-
Gen., 33 Miss. 508 ; People v. Kij?, 4 Cow. 382, note. The writ
lies against a public officer as a usurper only at the suggestion of the
attorney-general. Commonwealth v. Burrell, 7 Barr, 34 ; Common-
wealth v. Lexington and Harrodsburg Turnpike, 6 B. Monr. 397 j
Commonwealth v. Fowler, 10 Mass. 295.

In quo wa/rranto against a usurper by a claimant, the court may
oust the usurper without determining the right of the claimant. Gano
v. State, 10 Ohio (N. S.), 237. And the information need show no
title in the people to the franchise, but it lies with the defendant to
show his warrant for exercising it. People v. Utica Ins. Co., 15
Johns. 358. And it need not set forth the rights and privileges al-
leged to be usurped, except in general terms. People v. River Raisin,
etc., R. R. Co., 12 Mich. 389. But a statutory proceeding in the
nature of a quo warranto, especially when the relator himself claims

264 QUO WARRANTO.

the office which, as he alleges, the defendant has usurped, is a civil, not
a criminal suit, and the relation or complaint should set out, with
reasonable certainty, the facts constituting the relator's title and specify,
as far as practicable, the objections to the defendant's claim of title.
State V. Price, 50 Ala. 568.

A proceeding in quo warranto to dissolve a corporation or declare a
forfeiture of its charter, or to oust it from the exercise of franchises
which it usurps, must be against the corporation itself and not merely
against the individual members. State v. Taylor, 25 Ohio St. 280 ;
State V. Coffee, 59 Mo. 59. But when the purpose is to suppress a
usur^Dation of corporate franchises by individuals, the information
should name and proceed against the defendants as individuals. State
V. Cincinnati Gas Light Co., 18 Ohio St. 262. The right to preside
over the meetings of a city council is a "franchise" given by law, and
if invaded, the law affords a remedy, and this remedy is by quo war-
ranto or infonnationin that nature. Cochram, v. McLeary, 22 Iowa, 75
§ 7. Forfeiting franchise. Quo warranto or some other judicial
process must be brought against a corporation supposed to have for-
feited its charter by misuser or non-user and judgment of ouster ob-
tained. People V. Manhattan Co., 9 "Wend. 351 ; The State v. Real
Estate Bank, 5 Pike, 595. The information in the nature of a writ
of quo warranto against a corporation to have its privileges declared
forfeited, because of neglect and abuse in the exercise of them, must
be filed in the name of the attorney-general of the State, and cannot
be instituted in the name of a solicitor of a judicial circuit. Houston
V. Neuse River, etc., Co., 8 Jones' L. (JST. C.) 476. And the informa-
tion should inform the court under what statute the corporation was
organized so that the court might be acquainted with its character and
know its powers and duties. Danville, etc., Co. v. State, 16 Ind. 456.
A mere trespass by a corporation does not work a forfeiture of its
franchise. State v. Kill Cuch Tump. Co., 38 Ind. 71.

§ 8. Upon whose application. Quo warraMo must be brought in
the name of the State by the public law officer, though it may be upon
the relation of, and for the benefit of an individual. Scott v. Clark,
1 Clarke (Iowa), 70 ; Commonwealth v. Fowler, 10 Mass. 295 ; The
State V. Hardie, 1 Ired. 42 ; Eaton v. State, 7 Blackf. 65 ; The State
V. Patterson & JIamlmrg Turnpike Co., 21 N. J. 9 ; Parker v. Smith,
3 Minn. 240. When the attorney-general, ex officio, files an informa-
tion in the nature of a writ of quo warranto, no leave of the court is
requisite. Atty.-Gen. v. Delamanfc & B. B. R. R. Co., 38 N. J. Law,
282; Stale v. Oleason, 12 Fla. 190. A petition for leave to file such
information is addressed to the judicial discretion of the court. It may

QUO WARKANTO. 265

be allowed or disallowed ia consideration of the rights and consequences,
the conditions of the property and its owners, and its relation to the
public. State v. Smith, 48 Yt. 266.

Private individuals, who have no interest other than as citizens,
residents and tax payers of a municipal corporation, cannot maintain
an action of quo warranto against such corporation. But if the in-
jury is one that particularly affects a person, he has a right to the
action. If it affects the whole community alike, their remedy is by
proceedings by the State, through its appointed agencies. Miller v.
Town of Palermo.) 12 Kans. 14 ; Commonwealth v. Farmers^ BamJc,
2 Grant's Cas. (Penn.) 392 ; State v. Smith, 32 Ind. 213.

A statutory provision that information in the nature of a quo war-
ranto may Ije exhibited at the relation of any person desiring to present
the same, applies to any person who has an interest in the subject of
the prosecution. State v. Boal, 46 Mo. 528. So one who claims that
a county office has become vacant, and that he has been appointed
thereto, shows a sufficient interest to become a relator under such a pro-
\'ision. Yonkey v. State, 27 Ind. 236. So, too, every citizen who
pays taxes may have an information, in the nature of a quo warramio,
filed at his suggestion to inquire by what authority the collector exer-
cises his office. CoTnmonwealth v. Commissioners of Philadelphia, 1
S. & R. 382.

In South Carolina, an information in :the nature of a qvx) warranto
will lie against a corporation, as a body, at the relation of a private per-
son, in the name of the attorney -general. State v. City Council, 1 Rep.
Con. Ct. 36. In New York a person claiming title to an office is prop-
erly made plaintiff in an action of such nature, if the complaint shows
him to have an interest in the question. People v. Ryder, 12 N. Y.
(2 Kern.) 433. In Alabama an information in the nature of a q%to
warranto could not be filed on the relartion of a private citizen to va-
cate the charter of a municipal coq^oration, on account of the passage
of an unauthorized ordinance fixing the price of a license for retailing
spirituous liquors at $1,000. State v. Cahaba, 30 Ala. QQ. A person
is disquaUtied from being relator, of 2i quo warranto against one who
has been elected to an office on the ground that the voting papers being
blank, the election was void, if said person has himself voted with a
blank voting paper at the election in question, and, also, at previous
elections, and has been himself previously so elected. The Queen v.
Lofthouse, L. R., 1 Q. B. 433. Proceedings against a person by quo war-
ranto, for illegally exercising the office of judge, must be instituted by
the prosecuting attorney, and not by a private individual. State v.
Moffit, 5 Ham. (Ohio) 358. And an information in the nature of a
Vol. Y.— 34

266 QUO WAEKA1n[T0.

qiio warranto in the name of tlie circuit attorney, at the relation of a
private individual, seeking the determination of a matter of private
rio-ht between two private persons can be filed in the supreme court
only on leave specially granted for that purpose ; and otherwise than
upon an agreed case upon the facts, leave will not be granted except in
a very extraordinary case. State v. Lawrence^ 38 Mo. 535.

A judgment of the circuit court overruling a motion that the mov-
ant " be recognized and permitted to act as solicitor of said county,"
will be no bar to his proceeding by quo warranto, in the name of the
State, against the person in possession. Lee v. State, 49 Ala. 43.

§ 9. Wliat court has jurisdiction. The supreme court has original
jurisdiction of informations in the natm'e of a quo warranto. State v.
Steioart, 32 Mo. 379 ; The State v. Boston, etc., B. B. Co., 25 Yt.
433 ; Commonwealth v. Delaware, etc., Co., 43 Penn. St. 295 ; Attor-
ney-General V. Blossom, 1 Wis. 317. The writ may issue from the
court of common pleas against one claiming to hold a county office.
Field V. Commonwealth, 32 Penn. St. 478. But a judge at chambers
cannot issue it. State v. Conklin, 33 Wis. 687. And the circuit
court can acquire jurisdiction to render judgment on an information
in the nature of a quo warranto, only by service of a writ imder seal
of the court, and running in the name of the people, or by voluntary
appearance of the defendant ; not after a mere notice to the defendant
by the attorneys of the relator. Hamhleton v. People, 44 111. 458.

Where a common council is authorized to determine the qualifications
of its own members and the becoming surety for a treasurer was made
a misdemeanor, to be followed by forfeit are of membership, a conviction
thereof is unnecessary to give a court of law jurisdiction of a pro-
ceeding thereon by quo warranto. Commonwealth v. Allen, 70 Penn.
St. 465. And on filing a relation upon quo warranto to test one's
right to the ofiice of county solicitor, and upon his appearing and claim-
ing to exercise the duties thereof, he cannot be heard to plead that
the court has no jurisdiction over his person because he resides outside
the limits of its local jurisdiction. Lee v. State, 49 Ala. 43.

§ 10. Within what time. The title to an ofiice will not be tried in
a proceeding of quo warra/nto when at the time of the trial the term
of office is expired and no judgment of ouster can be pronounced.
State V. Jacohs, 17 Ohio, 143 ; Morris v. Underwood, 19 Ga. 559 ;
I*eople V. Sweeting, 2 Johns. 184. But if the writ be brought within
the terms of an office it may be tried after the term has expired.
C(/mmonwealth v. Smith, 45 Penn. St. 59 ; Hunter v. Chandler, 45 Mo.
452 ; Peojjle v. Uartwell, 12 Mich. 508. But an information in the
nature of a ywo warrant^) may be filed against public officers after the

QUO WARRANTO. 267

expiration of their office where their conviction is necessary to invalidate
their acts, if said acts are of public concern and intended to confer rights
on others. Burton v. Patton, 2 Jones' Law (N. C.j, 124, An action in
the nature of quo waofrcmto, to determine the title to a public office,
will not lie before the commencement of the term of office. The
court can only give judgment of ouster, and this can only be done when
an existing usurpation is shown. People y. McCulloiigh, 11 Abb. (N.
Y.) Pr. (N. S.)129. Bnt it is not necessary that a default be judicially
ascertained and fixed before a liability for public moneys unaccounted
for accrues so that quo vjarranto proceedings may be sustained on ac-
count thereof. Brady v. Hovue, 50 Miss. 607.

In the absence of a statutory provision, lapse of time is no bar to an.
information in the natm-e of a quo warranto, when filed by the at-
torney-general. State V. Pawtuxet Turnj). Co., 8 R. I. 521. Such in-
formation may be filed in New York at any time after the cause of
action arises. The People v. Tail, 20 Wend. 12. But under the
statute of Ohio of 1838, a writ of quo wa/rranto, to oust an officer from
office, does not lie after a lapse of three years from the time when the
cause of ouster accrued. State v. Beecher, 16 Ohio, 358. In England
under the statutes by wliich all applications for a quo warranto to ques-
tion the elections of corporate officers are to be made before the end of
twelve calendar months " after the election, or the time when the per-
son against whom application is made shall have become disqualified,"
where a party has entered into a continuing contract with the council,
the disqualification continues dm-ing the existence of the contract and
a quo warranto may be applied for notwithstanding more than twelve
months have elaj^sed from the time of the election, or from the time
when the disqualification first attached. Pegina v. Francis, 12 Eng.
L. & Eq. 419.

§ 11. Defenses. The proper praciice, in informations m the nature
of quo warranto, is for the defendant to plead, instead of answering.
People V. Percells, 3 Gilm. 59. If he do not disclaim holding the
office he must justify, and his plea of justification must show all the
facts necessary to establish the lawful right of the respondent to the
office in question, and must conclude with a verification ; and the bur-
den of maintaining it is on the respondent. Larke v. Crawford, 28
Mich. 88 ; Attorney- General v. Foote, 11 Wis. 14 ; State v. Gleason,
12 Fla. 190 ; Tfoe State v. Ashley, 1 Pike, 513 ; aark v. The People,
15 111. 213. To state that the relator has no title to the office is not
sufficient. The defendant must allow that he himself is rightfully in
office, aark v. The PeopU, 15 111. 213 ; Flynn v. AhhoU, 16 Cal.
358. The defendant may set up as many defenses as he has. People

268 QUO WARRANTO.

V. Stratton, 28 CaL 382 ; State v. Brown, 34 Miss. 688. If charged
with usurping au office, lie may set up several titles thereto. The
People V. Jones, 18 Wend. 601, 604 ; State v. McDaniel, 22 Ohio
St. 354. But where the averment in the information is a continued
usurpation of office, the answer must set out expressly the continuance
of every qualification necessary to the enjoyment of the office. It is
not sufficient to state the qualifications necessary to the appointment,
and rely on the presumption of their continuance. State v. Beecher,
15 Ohio, 723 ; People v. Mayworm, 5 Mich, 146 ; State v. Brown,
33 Miss. 508. To an information, in the nature of a quo war-
ranto, charging individuals with claiming, using and exercising the
franchise of being a body politic and corporate, it is sufficient to deny
the user of the franchise, without denying the claim. People v.
Thompson, 16 Wend. 655. The plea of title to an office need only state
the authority for holding the election, and that the defendant received
the greatest number of votes for the office. The People v. Van Cleve,
1 Mann. (Mich.) 362. And a plea that the company has exercised the
franchise for twenty years is, in Ohio, a good bar to an information in
the nature of a quo warranto, against such company, for carrying on
the business of banking. The State v. Miami Exporting Co., 11
Ohio, 126.

The appearance of the defendant to an information of quo warranto,
for any other purpose than to challenge the jurisdiction of the court,
is a waiver of all defects in the summons. Kane v. People, 4 Neb.
509. In New York, although the forms of procedure have been
changed, the position of the defendant, and the rules of evidence, and
the presumptions of law and fact are the same as in the proceeding
by writ or information, for which the remedy by action was substituted.
Peojjle ex rel. Judson v. Thacher, 55 N. Y. (10 Sick.) 529 ; S. C, 14
Am. Rep. 312.

§ 12. What title in issue. Relators, on application for quo war-
ranto against intruders into office, or franchise claimed by the relators,
must show a title in themselves. ' Miller v. English, 21 N. J. 317 ;
People v. Scam,nell, 7 Cal. 432. But the title of the relator to the office
cannot be examined into, except so far as it incidentally affects the right
of the defendant. State v. Vail, 53 Mo. 97. The question on quo
warranto as to an elective office is, whether the defendant received a
majority of all the votes which the canvassers had a right to count.
Suite v. Tierney, 23 Wis. 430.

In quo v-'xirranto against an individual for exercising the franchise
of a corporation, the issue is whether he, as an individual, had usurped
the franchise, and, therefore, it is proper for hun to show that he acted

QUO WARRANTO. 269

as officer of the corperation and was interested only as a large stock-
holder. State v. Brown^ 34 Miss. 688. In an action in the nature
of quo warranto, to determine the defendant's right to act as super-
visor of a town, the question of the legal creation of the town, and
consequent legal existence of the office, may properly be raised and
decided. People v. Carpenter, 24 N. Y. (10 Smith) 80.

In an action by the people on the relation of three persons claiming
to constitute a board of excise, against three others who they allege
have usurped the said office, it is not necessary to allege or prove that
any one of the relators is entitled to the office occupied or claimed by
any one of the defendants ; the object of such action is to determine
which set of persons lawfully compose or is entitled to compose the
board of excise. The People v. Murray, 8 Him (N. Y.), 577.

§ 13. Hearin or trial. The right of a trial by jury did not at
common law extend to a civil proceeding, such as quo warranto,
against a public officer. State v. Johnson, 26 Ark. 281. But where
an issue in quo warranto is sent down to the circuit court to be tried,
the parties cannot be denied a jury. People v. Poeshurg, 16 Mich.
133. And where the statutes are silent regarding the place of trial of
such issues, the court cannot grant a motion to change the venue, un-
less on such showing as would authorize it. People v. Oicott, 15
Mich. 326. And the court will not dismiss an information in the na-
ture of quo warranto, on motion of the relator, whose name was used
without his authority, but will amend the information by striking out
the relator's name. People v. Knight, 13 Mich. 230.

The issues of fact, in proceedings by information in the nature of
qiio warranto, under the New York code, are in the first instance
triable by the court, which may, however, order the whole issue or any
specific question of fact involved therein, to be tried by jury. People
V. Albany, etc., R. R. Co., 1 Lans. 308 ; S. C, 55 Barb. 344 ; 7 Abb.
(N. Y.) Pr. (N. S.) 265 ; 38 How. (N. Y.) Pr. 228.

In an action to try the title to an elective office, the evidence of
voters as to how they voted is proper, and a voter may be required to
disclose for whom he voted. People v. Thacher, 55 N. Y. (10 Sick.)
525 ; S. C, 14 Am. Rep. 312. And parol proof is admissible to show
that declarations of aliens to become citizens were signed in blank by
the clerk, and the oaths administered by a justice of the peace; and
such fictitious jurats are sufficient grounds for rejection of the votes
of such aliens. State v. Stumpf, 23 Wis. 630.

§ 14. Judgment. In a proceeding by information in the nature of
2t, quo warranto, the court is authorized to render judgment upon the
relator's rights, or to omit to do so as justice may require. 7%e People

270 QUO WAKRANTO.

V. PhilU_ps, 1 Denio, 388. As the people are the complainants, the
judgment therein binds all the parties interested. Hartt v. Harvey,
32 Barb. 55. To form a sufficient foundation for a judgment of ouster
ao-ainst a corporation for the forfeiture of a franchise not originally
usurped, but legally vested, because of a breach of a condition subse-
quent, the verdict must show the fact, not merely of the breach of the
letter of the subsequent condition, but of its intent and meaning, and
must find such facts as the court may adjudge to amount to a sub-
stantial breach of the condition. People v. The Pres. & Directors of
the Williamsburgh Tump., etc., Co., 47 :N'. Y. (2 Sick.) 586. On the
default of the defendant, the court will give judgment of ouster against
him, but cannot determine the right of the relator to the office. Peo-
ple V. Connor, 13 Mich. 238. But in such case in Wisconsin, it has
been held that the court may install the relator, having called upon
him for evidence in support of his claim. Att^y-General v. Barstow,
4 Wis. 567. But on a judgment of ouster in q;ao warranto against an
incumbent of an office, the court will not proceed to adjudge in favor
of another claimant, whose election is then in process of regular con-
test. State V. Taylor, 15 Ohio St. 137. Judgment of ouster will not
be entered where the usurper of an office has ceased to exercise his
functions. State v. Taylor, 12 Ohio (N. S.), 130. But a quo war-
ranto will be granted though the defendant has resigned the office, if
the object of the relator is not only to cause the defendant to vacate
the office, but to substitute therein another candidate at once ; the
relator in such case is entitled to have judgment of ouster or a dis-
claimer entered on the record. The Queen v. Blizard, L. R., 2 Q.
B. 55.

Upon quo warranto against a mere officer or servant of a company,
there can be no judgment of seizure for an abuse of the charter. The
writ may be served upon an officer of the company, but the action and
judgment are against the corporation. Smith v. State, 21 Ark. 294.

§ 15. Costs. Where, before the determination of a proceeding in
the nature of a quo VMrranto, the term of the office has passed, so that
there can be no judgment of ouster, and the relator cannot be put into
office, still, if he satisfactorily shows his right, he is entitled to judg-
ment and to liis costs. People v. Seaman, 5 Denio, 409. And where
the complaint in such action alleges that the defendant has usurped the
office in question, and that the relator is entitled to it, and issue is
taken uj)on both allegations, in case judgment is given against the de-
fendant ousting him from the office, the people and relator, plaintiffs,
are the prevailing party, and as such are entitled to costs, although the
judgment also determines that the relator is not entitled to the office.

QUO WARKANTO. 271

People V. Clute, 52 IST. Y. (7 Sick.) 576. Though the defendant is
willing to disclaim and consents to a rule for a quo warranto being
made absolute, the court will not order that the relator should bear
the expense of the information and disclaimer. Regina v. Hartley, 25
Eng. L, & Eq. 175. But costs will be refused to a successful relator,
if it apjDear that the notice to the defendant did not distinctly point
out the disqualification for the office which the relator relied on. The
Queen v. Blizard, L. R., 2 Q. B. 55. In Wisconsin, in case of a
criminal information by the attorney-general, on the relation of a
private person, but in the right of the State, against one who has
usurped a pubHc office, no attome/s fees should be taxed. State y.
Kromer, 38 Wis. 547.

Where an infonnation is filed on the relation of a private citizen, he
must give security for costs. State v. Cahaha, 30 Ala. QQ.

272 KAILKOABS.

CHAPTER CXII.

EAILROADS.
ARTICLE I.

CREATION OF COEPOEATION.

Section 1. In general. See„as to the creation of corporations in

general, ante^ Yol. 2, p. 304, et seq. Railways constructed by the
owners of coal mines and stone quarries for conveying coal, stone, and
other like substances short distances in order to reach navigable rivers,
and sometimes near the cities where large quantities of stone were
requisite for building purposes, existed in England long before the
application of steam power to railway transportation. And a few
questions as to the use of these railways at common law have been
settled in the English courts. See Hemingway v. Fernandes, 13 Sim,
228; K&ppell v. Bailey, 2 My. & K. 517; Wilson y. Anderson, 1
Car. & K. 544 ; Dand v. Kingscote, 6 Mees. & W. 174 ; 1 Redf . on
Railw. 2, and note.

The right to build, own, manage and run a railroad and to take the
tolls thereon is not of necessity of a corporate character or dependent
upon corporate rights. It may belong to, and be enjoyed by natural
persons, and there is nothing in its nature inconsistent with its being
assignable. Bank of Middlehury v. Edgerton, 30 Yt. 182. But in
their modem form, railways are usually owned and operated by a cor-
poration, and all railway corporations in this country exist, or are pre-
sumed to have originally existed by virtue of an express grant from
the legislative power of the State or sovereignty. See G^ Connor v.
Pittsburgh, 18 Penn. St. 187; Denver, etc., Railway Co. v. Denver
City Ra/ihjoay Co., 2 Col. T. G73 ; FranUi/n Bridge Co. v. Wood, 14
Ga. 80 ; Ualstead v. Mayor, etc., of New YorTc, 3 N. Y. (3 Comst.)
430. And sec vol. 2, tit. Corjporations. And where the grant to a
railway is not exclusive in terms, the legislature may grant other
charters to similar corporations, essentially interfering with the utility
and profit of the former. See State v. Noyes, 47 Me. 180 ; Itaritan,
etc., R. R. Co. y. Delaware, etc.. Canal Co., 18 N. J. Eq. 546; Lafay-
ette PlcmkrRoad Co. v. New Albany, etc., R. R. Co., 13 Ind. 90 ;

KAILROADS. 273

Turnpike Co. v. State, 3 Wall. 210. So, the legislature has power to
pass an act authorizing parties to whom the right to construct a rail-
road is given, to run upon, intersect or use any portion of other rail-
road tracks, upon making due compensation therefor {Matter of Kerr ,
42 Barb. 119) ; and the legislature may, by general laws, impose upon
railroads new and additional burdens not contained in their charter,
and which are conducive to the general security, quiet and good order.
Nelson v. Vermont, etc., R. R. Co., 26 Yt. 717. See, also, Fitchhurg
R. R. Co. V. Gra/nd Junction, etc., R. R. Co., 4 Allen, 198 ; State v.
New Haroen, etc., R. R. Co., 43 Conn. 351. But it cannot, under
color of such laws, destroy or impair the franchise or any right or
power essential to its beneficial exercise. Sloan v. Pacific R. R. Co.,
61 Mo. 24 ; S. C, 21 Am. Rep. 397.

A railroad is a public work and there is no difference in this respect
between a road built by private capital and owned by individuals,
and one owned by the public itself. Gihson v. Mason, 5 ISTev. 283.
And see DonnaJier v. State, 8 S. & M. (Miss.) 649, 661. In the grant
of a franchise of building and using a public railway, there is an im-
plied condition that it is held as a quasi public trust for tbe benefit of
the public, and the company possessed of the grant mu-st exercise a
perfect impartiality toward all who seek the benefit of the trust.
Messenger v. Penn. R. R. Co., 37 IST. J. Law, 531 ; S. C, 17 Am.
Rep. 754.

§ 2. Organization of company. As to the mode of procedure to
obtain parliamentary powers for railways in England, see statutes 26
and 27 Yict. c. 92 ; 27 and 28 Yict. c. 120 and 121. See, also,
Norris v. Cooper, 3 H. L, Cas. 161. It is held that railway acts are
to be construed strictly against the parties obtaining them, but liberally
in favor of the public. Parker v. Great Western Raihoay Co., 7 M.
& G. 253 ; S. C, 7 Scott N. R. 835. And that acts authorizing com-
panies to make railways are regarded as but enabling statutes which
give powers, but do not render compulsory or obligatory the exercise
of those powers. Scottish North Eastern Railway Co. v. Stexoari, 3
Macq. H. L. Cas. 382. See, also, York, etc.^ Raihoay Co. v. Reg., 1
El. & Bl. 858.

By the laws of some of the States of the Union a given number of
persons associating in a prescribed form for any lawful purpose are
declared to be a corporation, and in such cases, application to the legis-
lature is not required. See Ang. & Ames on Corp., §§ ^(S, 94 So, the
legislature may create corporations by general acts of incorporation (See
Yol. 4, tit. Municipal Corporations)', and this is common in many of the
States as to railway corporations. See Burt v. Farrar, 24 Barb. 518 :
YoL. Y.— 35*

274 RxilLEOADS.

Illhiois, etc., R. B. Co. v. CooTc^ 29 111. 237 ; Heaston v. Cincinnati,
etc., R. R. Co., 16 Iiid. 275. But, as a general rule, railways in this
eoiintrj have obtained special acts of incorporation.

The rule of strict construction ought to be applied to railroad chart-
ers ; but this rule is held to be applicable only in cases of ambiguity,
or where a power is claimed by inference or implication, and is not ex-
pressly given by the charter. "Where a power is expressly given, a
strict construction maintain it. Newhall v. Galena, etc., R. R. Co.,
14 ni. 273.

Where a railroad corporation is formed, or attempted to be formed,
under general statutes, the proceedings instituted for the purpose do
not constitute a legal body until all the requirements of the statute
have been complied with, and the articles filed in the office of the
secretary of State. Burt v. Farrar, 24 Barb. 518. Such filing of the
articles of incorporation, in the office of the secretary of State, is notice
to the State at the time of the manner of the organization. State v.
Bailey, 19 Ind. 452. If the proceedings for the organization of the
corporation are regular upon their face, and the company, while in the
actual exercise of all its corporate functions, is recognized by the legis-
lature as a corporation, it becomes, by such recognition, ijjso facto, a
legal corporation. And any defect, or irregularity, in the proceedings
required by law to be taken for its organization, should be deemed to
be waived by such recognition. Black River, etc., R. R. Co. v. Bar-
nard, 31 Barb. 258 ; White v. Ross, 15 Abb. Pr. (N. Y.) 66' S. C. 4
Abb. Ct. App. 589.

S(j, after having organized and acted as a corporation and entered
into a contract as such corporation, the company and the members
thereof, when sued upon such contract, are estopped to deny their cor-
porate existence. Callender v. Hudson etc. R. R. Co. 11 Ohio St.
516

§ 3. Subscriptions to stock. Membership in a railway corporation
is originally constituted by subscription to the shares in the capital
stock ; and it is subsequently continued by the transfer of such shares,
in conformity with the charter and by-laws of the company, and no
election by, or assent on the part of the corporation is requisite, unless
made so by the charter or by-hxws. 1 Redf. on Railw., § 19, sub. 12,
And it is lield that the signature to a subscription for stock in an al-
leged railroad corporation, which recites that a company has been
formed under the general railroad act, and that the articles of associa-
tion, with the necessary affidavits, have been duly filed, is conclusive
evHdonce of an incorporation against the subscriber. Blach River, etc.,
R. R. Co. V. Clarice, 25 N. Y. (11 Smith) 208. And see Montpelier,

RAILROADS. 275

etc.^ R. R. Co. V, Lcmgdon, 46 Yt. 284 ; Jfonroe v. Fort Wayne, etc.,
R. R. Co., 28 Mich. 272. But see De Witt v. Hastings, 8 Jones &
Sp. (N. Y.) 463.

It is, however, laid down as a rule of law, well settled in this country,
that when the capital stock and the number of shares are fixed by the
act of mcorporation, or by any rate, or by-law passed conformably to
the act of incorporation, no assessment can be lawfully made on the
share of any subscriber, until the whole number of shares has been
taken, ]^ew Hampshire, etc., R. R. Co. v. Johnson, 30 N. H. 390 ;
Penobscot, etc., R. R. Co. v. Dunn, 39 Me. 595 ; Old Tovjn, etc., R.
R. Co. V. Yeazie, 39 id. 571 ; Stoneham Branch R. R. Co. v. Gould,
2 Gray, 277. In other words, all the stock must be subscribed before
the company can go into operation. Shurtz v. Schoolcraft, etc., R. R.
Co., 9 Mich. 269. See, also, Galveston Hotel Co. r. Bolton, 46 Tex.
633. And not only so, but the capital stock must be paid in mon^y,
and it is not enough to do something equivalent to the payment of
money, by contributing property of equal value with the amount of
money required, unless the charter or general laws of the State so pro-
vide. See People v. Troy House Co., 44 Barb. 625 ; King v. Elliott,
5 Sm. & M. (Miss.) 428. But see Ridgefield, etc., R. R. Co. v. Brush,
43 Conn. 86. Under the English statutes a corporation may organize,
and make calls to some extent, before all the capital is subscribed. Or-
namental, etc., Co. V. Broion, 2 Hurlst. & C. 63. So, it seems that
upon general principles it is not indisjDensable in England that all the
stock be subscribed, either to enable the corporation to go into opera-
tion, or to borrow money on mortgage. McDougall v. Jersey Imperial
Hotel Co., 10 Jur. (N. S.) 1043 ; S. C, 2 H. & M. 528. And in this
country, a railroad corporation, authorized by its charter to begin the
construction of its road whenever a given number of shares has been sub-
scribed for, can assess the shares when the subscriptions have reached
that number, although the whole number of shares has not been deter-
mined. Boston, etc., R. R. Co. v. Wellingto7i, 113 Mass. 79.

In Indiana it is held that the law providing for the organization of
railroad companies, and for receiving subscriptions to the stock thereof
enters into, forms part, and determines the effect of subscriptions, as
fully as if it were written out and formed in terms a part of the contract
of subscription. Hoagland v. Cincinnati, etc., R. R. Co., 18 Ind.
452.

Conditional subscriptions of railroad stock may be valid, and on ac-
ceptance by the company, by entry on their records of conditional sub-
scriptions, they become binding and the subscriber a stockholder. J^ew
Albany R. R. Co. v. McCor?nick, 10 Ind. 499. And see Wilmington,

276 EAILKOADS.

etc., R. R. Go. V. Robeson, 5 Ired. (N. C.) L. 391 ; Taggart v. West-
ern, etc., R. R. Co., 21 Md. 563. Where tlie subscription embodies a
stipulation for a particular enterprise, as the building of a road to a
particular place, or for its location on a specified route, such stipulation
forms a condition precedent, and unless strictly complied with by the
corporation, the party subscribing will be absolved from his obligation
to pay. Martin Y. Pensacola, etc., R. R. Co., 8 Fla. 370. See, also,
Jewett V. Lawrenceburgh R. R. Co., 10 Ind. 539 ; Noesen v. Town of
Port Washington, 37 Wis. 168; Dill v. Wahash, etc., R. R. Co., 21
LI. 91. "Where a subscription is made upon condition that the final
location shall be along a certain route, the condition is held to be suffi-
ciently complied with by the company's fixing upon such route, and it
is not broken until a different route is afterward adopted. Smith v.
Allison, 23 Ind. 366. So, if a person subscribes upon condition that
the road should " pass " over a certain designated route, it is not a con-
dition precedent to the subscription that the company should actually
construct and complete the road along the line designated ; it is suffi-
cient if the road be thus permanently located. Ashtabula, etc., R. R.
Co. V. Smith, 15 Ohio St. 328 ; Miller v. Pittsburgh, etc., R. R. Co.,
40 Penn. St. 237 ; McMillan v. Maijsville, etc., R. R. Co., 15 B. Monr.
(Ky.) 218. A condition in a subscription that a railroad "shall be
built through the town on a line as run by the engineer, with a suitable
depot for the convenience of the public," is held to be a condition
subsequent, and not to defeat an action for the amount subscribed,
although not performed when the action was commenced. Belfast,
etc., R. R. Co. V. Broohs, 60 Me. 568.

A municipal subscription to the capital stock of a railroad company
authorized by a vote passed at an election, held not strictly according
to the enabling statute, is invalid. People v. Laenna, 67111. 65. And
subscriptions to the stock of a railroad company, obtained by fraudulent
representations to which payees were a party, will not be enforced,
Davis v. Dumont, 37 Iowa, 47. But a corporate subscription in aid
of a railroad was held not to be invalidated by an amendment to the
charter changing the name of the road. Reading v. Wedder, QQ 111.
80. See, also, Buffalo, etc., R. R. Co. v. Dudley, 14 N. Y. (4 Kern.)
336. So a coi'poration vested with power to build and operate a rail-
road is not excluded from the l)cnefit of a statute authorizing counties
to subscribe to the capital stock of railroad companies, because its
charter authorizes it also to carry on another business such as coal
mining. Randolph County v. Post, 93 U. S. (3 Otto) 502. And it
is no defense to a suit by a railroad company to recover subscription to
its stock, that the road has been seized by the governor. Mullins v.

EAILROADS. 277

Ncyrth (& South li. R. Co., 5i Ga. 580. So, a subscriber to railroad
stock will be liable to the payment of his subscription, although the
legislature may have authorized, and the directors of the company may
have adopted a change of route from that first fixed by law, provided
the change does not make an improvement of a different character, and
his interest is not materially affected by the alteration. Ba/net v.
Alton, etc., R. R. Co., 13 111. 504. And see Hawkins v. Mississippi,
etc., R. R. Co.., 35 Miss. 688 ; Delaware R. R. Co. v. Tharp, 1 Houst.
(Del.) 149; Fry^. Lexington, etc., R. R. Co., 2 Mete. (Ky.) 314;
Greenville, etc., R. R. Co. v. Coleman, 5 Rich. ('S. C.) 118 ; Stockton,
etc., R. R. Co. V. Stockton, 51 Cal. 328. But a material deviation
from the route prescribed by the charter will invalidate the obligations
of non-assenting subscribers to stock. Champion v. Memphis R.
R. Co., 35 Miss. 692 ; Galey v. Phila., etc., R. R. Co., 80 Penn. St.
363; Noesen v. Town of Fort Washington, 37 Wis. 168 ; North Ca/rolina
R. R. Co. V. Leach, 4 Jones' (N. C. ) L. 340. But see Whitehall, etc., R.
R. Co. V. Myers, 16 Abb. Pr. (E. S. N. Y.) 34. A mere formal irregularity
in the re-location of a railroad, a?, for instance, an omission to designate
a point in a certain town as the end of one of the road sections as in
the original location, will not discharge a stockholder from liability to
pay his assessments. Boston, etc., R. R. Co. v. Wellington, 113 Mass.
79. And the fact that a railroad is not completed within a certain
time constitutes no valid defense to a subscription for its stock, where
it does not appear that time was of the essence of the contract, and it
is admitted that the road has been built, and that the benefits sought to
be derived from it, and which were the inducements that led to the sub-
scription, have accrued. Kansas City, etc., R. R. Co. v. Alderma/n,
47 Mo. 349. And see Ogden v. Xirhy, 79 111. 555. But the fact that
parties purchasing a railroad and obtaining a upw charter had not com-
plied with the first charter in regard to the termini, was held to be a
good defense to an action to recover stock subscriptions to the new
company. Chartiers Railway Co. v. Ilodgens, 77 Penn. St. 187.

A subscription for stock in a railroad corporation is a contract be-
tween a subscriber and the corporation, and such contract cannot be
consummated without the assent of both. People's Ferry Co. v.
Batch, 8 Gray, 303, 311 ; Day v. Stetson, 8 Me. 365 ; Melvin v. R&itt,
52 N. H. 61. Subscriptions are only binding upon the subscribei*s
when they are so made as to bind the company. Parker v. Northern
Central, etc., R. R. Co., 33 Mich. 23. But voluntary subscriptions in
aid of a proposed railroad, when accepted and the road is completed
in accordance with the conditions of the promise, become valid and
binding contracts. Michigan, etc.^ R. R. Co. v. Bacon, 33 id. 466.

278 RAILKOADS.

Although, as we have seen above, a conditional subscription to stock
may be admitted, jet, where a subscription is absolute on its face, so that
the entire consideration for the subscriber s promise is so many shares
of the stock, any representations of agents at the time of his subscrib-
ing as to the location of the road, etc., are mere expressions of opinion,
forming no part of the contract, and constitute no defense to a suit for
the amount subscribed. Carlisle v. livansville, etc., JR. R. Co., 13
Ind. 47Y; J^ew Albany, etc., B. M. Co. v. Fields, 10 id. 187.

And where a railway company, by its charter, has power to lease its
road, subscriptions to its capital stock will be regarded as having been
made "wdth reference to such power, and the exercise of it will not ex-
onerate subscribers to the stock of the company from the payment of
their subscriptions. Ottawa, etc., R. R. Co. v. Black, 79 111. 262.

§ 4. Powers as to property. The title of a railroad corporation to
its road-bed is limited to its use for the purposes of railroad enterprise,
and is necessarily subject to the exercise of all those powers reserved
to the legislature, to which the franchises of the road are subject.
Albany, etc., R. R. Co. v. Broionell, 21: N. Y. (10 Smith) 345 ; Blaine
V. Chesapeake <& Ohio R. R., 9 W. Va. 252. But the corporation
must from necessity have the right to make such rules and regulations
concerning the management and control of its property, as may be
necessary to protect its servants and the public in the safe and conven-
ient use of the road. Thus, it has authority to make and carry into
execution reasonable regulations for the conduct of all persons using
the railroad or resorting to its depots, without prescribing such regula-
tions by by-laws ; and the superintendent of a railroad depot, ap-
pointed by the corporation, has the same authority by delegation.
Commonwealth v. Power, 7 Mete. 596. And this authority extends
far enougli to justify railway companies in excluding persons from
their grounds who have no legitimate business there, growing out of
the operation of the road, or with the officers or employees of the com-
pany. Id. ; Rail v. Power, 12 id. 482 ; Barker v. Midland Railwa/y
Co., 18 C. B. 46 ; S. C, 36 Eng. L. & Eq. 253 ; Landrigan v. StaU,
31 Ark. 50. See Caf^rham Railway Co. v. London, etc., Railway Co.,
1 C. B. (N. S.) 410 ; S. C, 40 Eng. L. & Eq. 259.

It is likewise held to be the duty of every person who desires to re-
main in a railroad depot, for the purpose of taking passage on a train
therefrom, to make known such intention to tlie officers of the com-
pany on being requested to do so ; and, if such is the regulation of the
company, he may be refpiired to purchase a ticket before he can be
pennittod to remain in the depot. Harris v. Stevens, 31 Yt. 79.
And one who desires to take passage upon the cars cannot exercise hia

RAILROADS. 279

right to enter and remain in the depot for the purpose, until a reason-
able time next prior to the departure of tlie train on which he intends
to go, and what is such a reasonable time depends upon the circum-
stances of eacli case. Id.

An officer acting under a warrant for the search of intoxicating
liquors is held to be justified in forcibly breaking and opening the
depot or warehouse of a i-ailway company in which the liquors are
stored, even after the usual time for recei\ang and dehvering goods,
provided such forcible entry be necessary to the execution of the war-
rant {Aiulroscoggin B. R. Co. v. Bichanls, 41 Me. 233) ; nor is it
necessary in such case, that the officer should first ask permission, of the
person having charge of the depot, to enter and search it. Id.

A railway company has no right to use a highway as a part of its
freight yard; but it has a right to pass and repass over a highway in
making up its trains and shifting its cars, provided this is done only to
a reasonable extent and in a reasonable manner, without encroaching
upon the rights of others who have an equal right to use it. Gaha-
gan v. Boston, etc., B. R. Co., 1 Allen, 187.

Iron rails, when fastened to the road-bed, so that engines and cars
can pass over them, are a part of the realty, unless by agreement be-
tween the parties to a transfer they remain personal property. Haven
V. Emery, 33 IST. H. ^<6 ; Bichardson v. Copelaiid, 6 Gray, 536 ; Strick-
land V. Parker, 54 Me. 263. But, as between the vendor and those
who remain entitled to possession as security for prior claims, such rails
continue to be personalty only so far as such prior mortgagees, or land
owners, have consented to such agreement. Hunt v. Bo.y State Iron
Co., 97 Mass. 279. The erection of buildings by the permission of a
railroad company within the line of its roadway by other parties, for
convenience in delivering and receiving freight, was held not to be
inconsistent with the purposes for which the charter was granted. And
a license by the company to such other parties is admissible to show its
consent to the occupation of its premises. Grand Trunk Bailway Co.
V. Bicliardson, 91 U. S. (1 Otto) 454.

§ 5. Power to make contracts. A grant to a railroad company of
power to locate and construct a railroad, open books of subscription,
etc. , confers, by implication, the power to make all contracts which the
execution and management of the work, and the convenience and in-
terests of the company in the construction of the road may require,
so far as the same are not forbidden by any restrictive clause. Vi'estern
Bank v. Talhnan, 17 Wis. 530. Thus, a railroad company, with the
usual powers of such a company, may contract to carry passengers and
freight beyond the limits of its own road {Perkins v. Portland, etc.^

280 KAILROADS.

R. R. Co., 47 Me. 573 ; Noyes v. Rutland, etc., R. R. Co., 27 Vt.
110) ; even when the transportation is partly by water. Id. ; Wheeler
V. San Francisco, etc., R. R. Co., 31 Cal. 46. See vol. 2, tit. Carriers.
And a contract by a railroad company to convey passengers by stage to
and from one of its stations and an adjacent village, in connection with,
and as a part of its business of transporting passengers upon its road,
is lawful, and the company is estopped from denying its validity.
B^iffit V. Troy, etc., R. R. Co., 36 Barb. 420 ; S. C. affirmed, 40 I^.
T. (1 Hand) 168. Prima facie, a railroad company has power to
make a promissory note {Hamilton v. New Castle, etc., R. R. Co., 9
Ind. 359) ; and it has necessarily the right to take a promissory note
and negotiate it in the ordinary course of business. Frye v. Thicker, 24
HI. 180. See Batema/n v. Mid Wales Railway Co., L. R., 1 C. P. 499.
So, a railroad company has a right to issue bonds to cany out the ends
of its creation, and such bonds are binding on the company. Philadel-
phia, etc., R. R. Co. V. Lewis, 33 Penn. St. 33. And in the absence
of any restriction, it is held that the company, under the power con-
ferred by implication, might take a bond for the payment of stock sub-
scriptions in installments falling due at specified periods, and a mort-
gage of real estate to secure the same. Western Bank v. Tallman,
17 Wis. 530. And a contract to pay a railroad company a certain sum
if they will locate their line at a particular place is binding, and may
be enforced by action. Cumberland, etc., R. R. Co. v. Baab, 9 "Watts,
458. A statutory provision — that no contract shall be binding upon
a railroad company, unless made in writing — must be lunited to con-
tracts wholly executory. It does not prevent a company from being
held liable, as on an implied promise, where benefits or services have
been given or rendered to it, on oral requests of its officers, and the
company has accepted and had the benefit of them. Foulke v. San
Bierjo, etc., R. R. Co., 51 Cal. 365.

But a contract ultra vires, entered into by a railway corporation, is
void, and cannot be enforced by any one. Taylor v. Chichester, etc.,
RailvMy Co., L. E,., 2 Exch. 356. And see Coleman v. Eastern Coun-
ties Railway, 10 Beav. 1 ; South Wales Railway Co. v. Redmond, 10
C. B. (N. S.) 674, 685. Thus, a contract, as, for instance, a lease made
by a railroad company for the purpose of extending its road beyond
the terminus fixed by its charter, was held to be ult/ra vires, and void
as against public policy. President of Union Bridge Co. v. Troy, etc.,
R. R. Co. , 7 Lans. (N. Y.) 241. See, also, lioagland v. Ilanihal, etc.,
R. R. Co., 39 Mo. 451. And a contract between two railway compa-
nies, by which one of the contracting parties will gain considerable
advantages, at the expense of the other, while the other will receive no

KAILROADS. 281

corresponding benefit, is illegal, and ultra vires. Shrewsbury, etc..
Railway Co. v. Northwestern Railway Co., 6 H. L. Cas. 113. And
contracts ultra vires, entered into by the directors, and which are not
binding upon the company, cannot be specifically enforced against the
directoi*s, nor can the directors be decreed by the court to make good
their representations. Ellis v. Colnian, 25 Beav. 662 ; E-edf . on Railw.,
§ 148, subd. 6. But if a part only of a contract is ultra vires of the
company, a court of equity will restrain that portion only. Mounsell
V. Midland, etc.. Railway Co., 1 H. & M. 130. See Hattersley v.
Shelhurne, 31 L. J. Chanc. 873

It is held that a railroad company cannot, without special legislation,
contract to pay interest on stock before the road is completed or any
income received, and a contract to do so cannot be enforced against the
capital of the company. Painesville, etc., R. R. Co. v. King, 17
Ohio St. 534. Nor has a railroad company power to buy and hold
land situated at a distance from its road which it does not want and
cannot possibly use in constructing or operating its road. Waldo v.
Chicago, etc., R. R. Co., 14 Wis. 575. And it cannot transfer its
franchise, granted to benefit the public, to enable a private party to
construct and maintain a private road for his own private use and
benefit. Stewart^ s Appeal, 56 Penn. St. 413. But a railroad com.
pany having, by its charter, power to make any contracts conducive to
the interest of the company, may assign its stock subscriptions, unless
expressly restricted therefrom. Doionie v. Hoover, 12 Wis. 174. And
see Supervisors of Portage v. Wisconsin Central R. R. Co., 121 Mass.
460.

§ 6. May sue or be sued. As to the capacity of corporations in
general, to sue and be sued, see ante, vol. 2, 321, 335. As a general
rule, if the charter fixes no locality, the residence of a railway com-
pany, for the purpose of bringing actions in its favor, is the county or
town upon the line of its road where its principal office and the center
of its business operations is situated. Connecticut, etc., R. R. Co. v.
Cooper, 30 Yt. 476. So, it is held that suits against a railroad com-
pany, except where the jurisdiction of courts has been enlarged by
legislation, should be brought in the county where the company has its
principal office. SoxLthwestern R. R. Co. v. Panlk, 24 Ga. 356;
Bristol v. Chicago, etc., R. R. Co., 15 111. 436 ; Androscoggin, etc.,
R. R. Co. V. Stevens, 28 Me. 434. It has, however, been held, that
a railroad corporation, in legal contemplation, resides in the counties
through which its road passes and in which it transacts its business, and
may be sued in any county through which the road passes or in which
its corporate powers are exercised. Sherwood v. Saratoga, etc., R. R.
YoL. Y.— 36

282 RAILED ADS.

Co., 15 Barb. 650 ; Baldwin v. Mississippi, etc., R. R. Co., 5 Iowa,
518 ; Toledo, etc., E. E. Co. v. Milliycm, 52 Ind. 505. And see Buf-
alo, etc., E. E. Co. v. Supervisors of Erie, 48 N. Y. (3 Sick.) 93.

As it regards the jurisdiction of the United States courts, it is now-
settled that a corporation is to be regarded as a " citizen " of the State
where it exists, and as such may be sued in that circuit by a citizen of
any other State. Marshall v. Baltimore, etc., R. R. Co., 16 How. (U.
S.) 314. See, also, Worli,s v. Jxmction Railroad, 5 McLean (C. C), 425.
But a circuit court of tlie United States has no jurisdiction of a con-
troversy in one district or State, where the subject-matter of the con-
troversy lies beyond the limits of the district, and where the process
of the court cannot reach the locality of the controversy. NortTiem
Indiana R. R. v. Michigan, etc., R. R. Co., 15 How. (U. S.) 233. And
see Ohio, etc., R. R. Co. v. Wheeler, 1 Black (U. S.), 286 ; Baltimore,
etc., R. R. Co. V. Clen7i, 28 Md. 287.

An action of trespass, for assault and battery, will lie against a rail-
road company. St. Louis, etc., R. R. Co. v. Dalby, 19 111. 353. See
post, 308, Art. 4.

And it is held that the debts of two railroad corporations may be
enforced against a new corporation into which the two have become
consolidated. Indianapolis, etc., R. R. Co. v. Jones, 29 Ind. 465 ;
Columbus, etc., R. R. Co. v. Skidmore, 69 111. 566.

An action of contract for the use of a railroad cannot be maintained
by the owner against persons who did not recognize his title, but used
the railroad adversely to him under a hotia fide claim of right by virtue
of a lease from another person. Kittredge v. Peaslee, 3 Allen, 235.

The road aijd franchises of a railroad corporation are its property,
and as siicli, are liable to be sold for its debts under a judgment and
execution properly framed. Atlanta v. Grant, 57 Ga. 340.

§ 7. Dissolution or forfeiture. A railway corporation may be dis-
solved in tlie same manner as other private moneyed corporations. See,
as to the modes of dissolution, ante, Yol. 2, 347 et seq. The charter
of a railway company is the law of the contract between the corpora-
tion and its subscriber to its capital stock, and it is held that any ma-
terial departure from the points designated in the charter for the loca-
tion of the road is a violation of the charter, and an invasion of the
contract, and that for such abuse of the charter the franchise of the
coi-poration may be seized upon (juo warramto, unless the legislature
has waived the right of the State to seize the franchise by acts legalizing
the violation of the charter. Mississippi, etc., E. E. Co. v. Cross, 20
Ark. 443. And see People \. President, etc., of Manhattan Co., 9 Wend.
351. So, a railroad corporation, chartered to operate a road between A

RAILROADS. 283

and Bjcannot legally operate only between A and C (C being a way station
between A and B), and abandon tlie part of the route lying between
C and B, and if it does so, its cliarter may be vacated or its coi-porate
existence annulled by proper proceedings. People v. Alhcmy, etc., M.
R. Co., 24 N. T. (10 Smith) 261. See Commonwealth v. FiUhhurg
M. a. Co., 12 Gray, 180. And in general tlie corporate franchises of
a railway company will be forfeited by any positive act in violation of
the charter, and in derogation of public right willfully done, or
caused to be done by those appointed to manage the general concerns
of the corporation. See Eastern Archipelago Co. v. Regina, 2 El.
&B1. 857 ; S. C, 22 Eng. L. & Eq. 328. And after a forfeiture judi-
cially determined, the company can do no act unless its power and ca-
pacity for that purpose are continued by statute. Saltmarsh v. Plant-
ers', etc., Banh, 17 Ala. 761. And see Atty.-Gen. v. Petersburg, etc.,
R. R. Co., 6 Ired. (N. C.) 456. But it is held that the consolidation of
two railroad companies does not impair the existence of either for
the purposes of the prosecution of suits previously commenced. Shach-
leford V. Mississijypi, etc., R. R. Co., 52 Miss. 159.

The sale of the rolling stock and personal property of a railroad will
not work a disorganization of the corporation. Bruffett v. Creat
Western R. R. Co., 25 111. 353. And although a railroad company
without legislative authority by sale and transfer pass their entire road
out of their hands, yet the corporation is not thereby ipso facto dis-
solved. Troy, etc., R. R. Co. v. Kerr, 17 Barb. 581. See Yorh <& Mary-
land Line Railway v. Wina/ns, 17 How. (U. S.) 30. And it is only
the real estate which remains in a railroad corporation at the moment of
its dissolution which reverts to the original proprietors. That which
has been divested out of the corporation by its own act or the act of
law does not so revert. The corporation is not dissolved merely by the
sale of its land. State v. Rives, 5 Ired. (X. C.) L. 297.

And it is held that the consolidation of two dompanies does not nec-
essarily wort a dissolution of both, and the creation of a new corpora-
tion. "Whether such is its effect depends upon the legislative intent
manifested in the statute under which the consolidation takes place.
Central Railroad, etc., v. Georgia, 92 U. S. (2 Otto) 665. In Z'lmmer
V. State, 30 Ark. 677, it is held that the new or consolidated company,
unless restricted by the law under which the consolidation takes place,
succeeds to all the rights, privileges, immunities and franchises of the
several companies forming it. See, generally, as to the effect of the
dissolution of a corporation, ante, Vol. 2, 350 et seq.

284 KAILRC/ADS.

AKTICLE II.

ACQTJIKING LANDS FOR ROAD, ETC.

Section 1. In general- Under the English statute (8 & 9 Yict. c.

18, § 6) railway companies are enabled to purchase by contract with
the owners, " all estates or interests (in any lands) of what kind soever"
if the lands or right of way over them be requisite for railway pur-
poses. See Hutton v. London, etc., Railway Co., 7 Hare. 264 ; In re
Horner's Estate, 5 DeG. & S. 483 ; S. C, 13 Eng. L. & Eq. 531. But it
is said that aside from the provisions of act of parliament the owner of
one rod of land may insist upon his own terms to the utter overthrow
of the most important public work. The price of his consent must
be determined by himself. Barnard v. Wallis, 2 Railway C. 177.
And the authority given by statute to railway companies to take the
lands of individuals by compulsion must be exercised strictly in con-
formity to the terms of their charters, and the general laws defining
their powers. ToA^lor v. CUnison, 2 Ad. & El. (N. S.) 978, 1031.

In this country, railway charters usually contain a power to the
company to acquire lands, by agreement with the owner (see Whitcoinh
V. Vermont Central Railwag, 25 Yt. 49, 69) ; and under the right of
eminent domain, the legislature may authorize a railroad company to
take the necessary land in invitum. Johnson v. Joliet etc. R. R. Co.,
23 111. 202 ; Brown v. Beatty, 34 Miss. 227.

§ 2. By consent or grant. Where a railway company acquires
lands by consent or grant of the owner, the rights of the company are
held to be the same as where the lands are acquired under the right of
eminent domain (see Whitcornb v. Vermont Central Railway, 25 Yt.
49; Hortsman v. Lexington, etc., R. R. Co., 18 B. Monr. [Ky.] 218;
Bahcock V. Western R. R. Co., 9 Mete. 553) ; and the company is
bound to the same care in the construction of its road. Id.

Where the charter of a railroad company gives the power to take
lands for the purpose of the road, with the consent of the owner, a
verbal consent is sufiicient {Central R. R. Co. v. Hetfield, 5 Dutch.
[N. J.] 206; S. C, id. 571); and such verbal permission to take and
use the land for a railway is a bar to the recovery of damages for such
use, until the permission is revoked. Miller v. Auburn, etc., R. R.
Co., 6 Hill, 61.

But ])ro(if of a written agreement to sell land to a railroad company
for a specifi" juice, within a certain time, and of a tender of the amount
witliin the time, and a refusal to accej^t it, will not authorize the
company to enter n])Ou the land afterward, and locate their road there-

EAILEOADS. 285

on, nor defeat proceedings under the statute to recover damages for
such location. Whitman v. Boston^ etc., R. R. Co., 3 Allen, 133.
And it is held in Iowa, that the fact, that the owner of land permits a
railway company to enter upon the land and construct its road, does
not give the company title to the right of way, or estop the owner from
maintaining an action of ejectment against the company. Conger v.
B-urlington, etc.. Railway Co., 41 Iowa, 419.

A railway company may compel specific performance of a contract
to convey a right of way, after complying with the conditions thereof,
and may enjoin an assessment of damages under ad quod damnum
proceedings. Chicago, etc., R. R. Co. v. Swinney, 38 Iowa, 182.
But it is held that where a contract is vague, and so uncertain that
no compensation could be awarded, a decree for specific performance
will not be made {T'dlett v. "Charing Cross Co., 26 Beav, 419) ; nor
will the court interfere after considerable lapse of time, and when the
company is not possessed of funds for completing the purchase {Pi'yse
V. Cambrian Railway, L. R., 2 Ch. App. 444); and it is a ground for re-
fusing to decree specific performance, that such specific performance
may interfere with the safety or convenience of the public. Raphael
V. Thames Valley Railway Co., id. 37.

Where a land-owner relinquishes to a railway company the right of
way over his land the depot under the relinquishment to be located at
a certain designated point on it, he cannot, after rehnquishment and
entry by the company, maintain trespass or ejectment against the
company for failing so to locate the depot. His remedy is by an action
for damages for the breach of the contract, or by a suit in equity for
specific performance. Huhhard v. Kansas, etc., R. R. Co., 03 Mo. 68.

In general, a corporation can purchase and hold lands only for such
purposes as are authorized in its charter. The grant of corporate fran-
chises, being restrictions of individual rights, will not be extended be-
yond the letter and spirit of the charter, yet it is not to be so strictly
construed as to defeat the object of the grant; and besides, the powers
expressly granted, such as are strictly incidental and necessary to
the object of the grant, are implied. Thus, depots, car and engine
houses, tanks, repairing shops, houses for bridge and switch tenders,
coal and wood yards, are necessary appendages to the operations of a
railroad and transportation company, and its power to hold land for
these purposes will be implied without an express grant in the charter ;
but lands for dwellings for employees, for car or locomotive factories,
coal mines and matters of that kind, are things of convenience, and
not of necessity. State v. Commissianers of Mansfield, 3 Zabr. (N".
J.) 510. See Waldo v. Chicago, etc., R. R. Co., 14 Wis. 575. It will

286 RAILKOADS.

be presumed that lands deeded to a railroad company are acquired for
the construction of its road. Yates v. Ycm De Bogert^ 56 K. Y. (11
Sick.) 52G.

§ 3. Right of eminent domain. It is a well-settled doctrine in
this country that, by virtue of the right of emirhent domain, acts of the
legislature authorizing railroad companies to enter upon, take posses-
sion of, and use the lands and real estate of individuals for the con-
struction and maintenance of their roads, so far as the same are indis
pensably necessary for that purpose, are valid and constitutional acts,
provided that in and by the same acts prov^ision is made for the assess-
ment and payment of the damages of the owner of the lands and real
estate thus taken and appropriated. Bloodgood v, Mohawk, etc., R. R.
Co., 18 Wend. 9. See, also, Johnson y. Joliet, etc. ,R. R. Co., 23 IlL
202 ; Moore v. Superior., etc., R. R. Co., 34 Wis. 1Y3 ; State v. Ri/ves,
5 Ired. (N. C.) 297 ; Brown v. Beatty, 34 Miss. 227 ; Tinsman v.
Belvidere, etc., R. R. Co., 26 N. J. Law, 148 ; Bradley y. New York,
etc., R. R. Co., 21 Conn. 294. Even a dwelling-house is no more
exempt than any other species of real estate from this right of eminent
domain. Wells v. Sonnerset, etc., R. R. Co., 47 Me. 345 ; Brocket v.
Ohio, etc., R. R. Co., 14 Penn. St. 241. But corporate existence,
and right to exercise the power of erninent domain, can only be derived
from legislative enactment ; and before a company can demand a judg-
ment of condemnation, it must show that both have been conferred
upon it by a valid law, and that it has substantially complied with the
conditions which the law has annexed to the exercise of the power.
Atkinson v. Marietta, etc, R. R. Co., 15 Ohio St. 21. See, also, Hal-
stead y. Mayor, etc., of New York, 3 N. Y. (3 Comst.) 430 ; Lyon v.
Jerome, 26 Wend. 485 ; Qillinwater v. Mississippi, etc., R. R. Co., 13
111. 1 ; Reitenhaugh v. Chester Valley Railway, 21 Penn. St. 100 ; Phil-
lips V. Dunkirk, etc., R. R. Co., 78 id. 177. Thus, if the charter pro-
vide that the title of land condemned for the use of the company shall
vest in the company, upon the payment of the amount of the valuation,
no title vests until such payment. Baltimore^ etc., Raihoay Co. v. Nes-
hit, 10 How. (U. S.) 395. The right of the land-o\^Tier to the damages
awarded is a correlative right to that of the company to the land.
Stacey v. Vermont Central Railway, 27 Yt. 39. And a railroad com-
l)any, after the time prescribed in its charter for the completion of its
road, has no right to take lands without the consent of the owner.
Peavey v. Calais R. R. Co., 30 Me. 498.

A statute power to divest an owner of his title to land without hia
consent, being in derogation of common right, is to be construed strictly.
Gray v. Li/ver2?ool, etc.. Railway Co., 9 Beav. 391 ; Adams v. Sars-

RAILROADS. 287

toga, etc., R. R., Co., 10 K. Y. (6 Seld.) 32S; Unangsfs Appeal, 55
Penn. St. 128. Hence, under a general grant of power to take laud
for tlie track of a railway, with sidings and branches to the towns along
the line, it is held that the company have no power to take land for a
temporary track during the period of constructing the main line.
Currier v. Marietta, etc., RailvMy Co., 11 Ohio (N. S.), 228. And the
manufacture of railroad cars is not so necessarily connected with the man-
agement of a railroad, that the company would be authorized by its charter
to take lands compulsorily, for the purpose of erecting such a manufac-
tory thereon {Edridge v. Smith, 34 "V t. 484) ; and so, in respect to the
erection of dwelling-houses to rent to the employees of the company. Id.
But it is otherwise, as to land taken for piling the wood and lumber used
on the road and brought to it for transportation thereon. Id. See, also,
InreNeio York Central, etc., R. R. Co. v. Metropolitan Gas Light Co.,
63 N. Y. (18 Sick.) 326. And land may be taken for the erection of shops
for the repair of cars and locomotives, such shops being deemed neces-
sary for the convenient use of the road. Hannibal, etc., R. R. Co. v.
Muder, 49 Mo. 165 ; Chicago, etc., R. R. Co. v. Wilson, 17 111. 123.
And it is held tliat the power to acquire land for necessary appendages
is not exhausted by an apj^arent completion of the I'oad, if an increase
of business shall demand other appendages, or more room for tracks.
Id. ; Toledo, etc., R. R. Co. v. Daniels, 16 Ohio St. 390. But the ac-
quisition of lands for the purpose of speculation or sale, or to prevent
interference by competing lines or methods of transportation, or in aid
of collateral enterprises remotely connected with the running or oper-
ating of the road, are not such purposes as authorize the condemnation
of private property. Rensselaer, etc., R. R. Co. v. Davis, 43 N. Y.
(4 Hand) 137.

The acquirement of land by a railroad company, outside of its way,
for the purpose of enabling it to obtain gravel therefrom for the con-
struction of the road, is held not to be allowable under the statutes
relating to eminent domain in New York {Matter of Neio YorTc, etc.,
R. R. Co. V. Gunnison, 1 Hun, 496 ; S. C, 3 N. Y. Sup. Ct. [T. &
C] 632) ; nor does the power to take property extend to that which is
already held and dedicated by authority of law to a different public
use. Matter of Boston and Alhayiy R. R. Co., 53 X. Y. (S Sick.)
574. One railway company has no right to appropriate, without com-
pensation, the franchises or property of another, for the construction of
its road. Grand Rapids, etc., R. R. Go. v. Grand Rap>ids, etc., R.
R. Co., 35 Mich. 265. See, also, Commonwealth v. Old Colony, etc.,
R. R. Co., 14 Gray, 93 ; State v. Montclair Railway Co., 35 X. J".
Law, 328.

288 RAILROADS.

§ 4, Title or interest acquired. The right of passage which a rail-
road corporation acquires across land is an interest in the land, and must
be acquired by private purchase, or under the right of eminent domain
vested in the corporation by the State. East Pennsylvania R. R. Co. v.
Schollenberger, 54 Peim. St. 144. In regard to the precise title acquired
by a railway company in lands purchased by them, where the convey-
ance is a fee simple, the cases are not entirely harmonious. According
to some of the cases, it would seem that a railway, by a deed in fee
simple, acquires only a right of way. See United States v. Harris, 1
Sumn. (C. C.) 21 ; Dean v. Sullivan Railway, 22 K. H. 316. But in
a recent case, it is held that railway companies may acquire the absolute
fee in land by purchase and deed in fee simple, and that the title will
remain in the company after it has ceased to use the land for corporate
purposes. Page v. Ileineherg, 40 Yt. 81. And see Nicoll v. New
Ycyrk, etc., Railway Co., 12 N. Y. (2 Kern.) 121 ; Yates v. Van De
Bogert, 56 N. Y. (11 Sick.) 526 ; De Varaigne v. Mx, 2 Blatchf.
(C. C.) 95.

As it regards the title acquired by the public, by the exercise of the
right of eminent domain, the common-law rule is, that no more of the
title is divested from the former owner than what is necessary for the
public use. Rust v. Dow, 6 Mass. 90 ; Jackson v. Rutland, etc.. Rail-
way Co., 25 Yt. 151. And in respect to railways particularly, the
cases are almost unanimous in holding that they take merely an ease-
ment in land condemned for their use. Heard v. Brooklyn, 60 1^. Y.
(15 Sick.) 242 ; Railroad v. Davis, 2 Dev. & Bat. (]^. C.) 457 ; Henry
v. Duhuque, etc., R. R. Co., 2 Iowa, 288; Kellogg v. Malin, 50 Mo.
496 ; S. C, 11 Am. Rep. 426 ; Hasson v. Oil Creek R. R. Co., 8 Phil.
(Penn.) 556. Only such interest as will answer the public wants can be
taken, and it can be held only so long as it is used by the public, and can-
not be diverted to any other purpose. Giesy v. Cincinnati, etc.. Rail-
way, 4 Ohio (N. S.), 308. The exclusive right of property in the land,
in the trees and herbage upon its surface, and in the minerals below it,
remains unchanged, subject always to the right of the corporation to con-
struct and operate its railroad as authorized by law. Blake v. Rick, 34
N. II. 282 ; Zyon v. Gormley, 53 Penn. St. 261. The condemnation
of land for the construction of a railway justifies the entry and necessary
excavation of the soil l)y the company and its servants. Green v.
Boody, 21 Ind. 10. And tlic company has a right to cut the trees
growing on the strip of land which has been taken for its road, whether
such trees are for shade, ornament, or fruit, and whether such cutting
be at the time of laying out its track or afterward. Brainard v.
Cla^p, 10 Gush. 6 ; Taylor v. New York, etc., R. R. Co., 38 N. J.

BAILEOADS. 289

Law, 28. See Preston v. Dubuque^ etc.^ R. R. Co., 11 Iowa, 15. So,
earth and minerals above the grade of the road may be used by the
company, but those below belong to the owner of the land. Evans v.
Haefner, 29 Mo. 141. And it is held that stone excavated in the con-
struction of the road, and which is not used upon any portion of the
line belongs to the owner of the land. Chajnn v. Sullivan Railwa/y
Co., 39 K H. 564 ; Aldrich v. Drury, 8 E. I. 554 ; S. C, 5 Am. Rep.
624. And a clause in the charter authorizing a railway company to
take and hold land necessary for the construction of its road, and to
remove thence earth, timber, and other material required for such con-
struction, does not authorize the servants of the company to enter upon
land not so taken for the construction of the road, and to remove mate-
rials therefrom against the will of the owners of the land. Parsons v.
Howe, 41 Me. 218. But where a hedge planted by the owner on his
own land is suffered to grow and extend over the right of way of a
railway company so as to obstruct it, the company will have the clear
right, and it is their duty to trim such hedge, doing no unnecessary
damage. ToUdo, etc.. Railway Co. v. Green, 67 111. 199.

The use by a railway company of land taken by them for the use of
their road is practically an exclusive one, and permanent in its nature.
Hence, where a company acquire the fee of lands for their track, the
circumstance that the track is constructed through a tunnel or archway,
does not give the original owner or the public authorities any right to
build above the railway. The company have the exclusive right to an
unobstructed possession above then* road. Junction R. R. Co. v.
Boyd, 8 Phil. (Penn.) 224.

In Minnesota, where railroad corporations are clothed with power to
renew their incorporation indefinitely, the easement imposed on lands
taken for their roads is held to be practically equivalent to the fee.
Rollins V. St. Paul, etc., R. R. Co., 22 Minn. 286.

§ 5. Taking for public use. In the eye of the law railways are
modern public highways. Pa/oidson v. County Commissioners, 18
Minn. 482 ; Rogers v. Burlington, 3 Wall, 654. And it may now be
regarded as established by the uniform current of decisions, that the
property of individuals, taken by railroad companies under their char-
ters, is, from the public benefits i*esulting therefrom, to be deemed to
be taken for " public use," within the constitutional provision upon
that subject. State v. Rimes, 5 Ired. (N. C.) 297 ; Concord R. R. Co.
V. Greely, 17 N. H. 47. And see ante, 286, § 3. And a railway for the
transportation of freight is as much a public use as if it included pass-
enger transportation. Lancets Appeal, 55 Penn. St. 16. But see
Memphis Freight Co. v. Memphis, 4 Coldw. (Tenn.) 419. So, the
Vol. Y.— 37

290 KAILKOADS.

marginal railways in cities nsed for connecting different lines of traffic,
are as much entitled to exercise the right of eminent domain^ as any
other railway. Lancets Appeal, 55 Penn. St. 16. But no railway
company can take land for other than public uses, as for the deposit of
dirt, etc., not connected with the efficient use of its right of way. Id. ;
Matter of New YorTc, etc., R. R. Co. v. Gunnison, 1 Hun, 496 ; S.
C, 3 K Y. Sup. Ct. (T. & C.) 632.

The " taking" land by a railroad company consists of a series of acts
commencing with the entry for the purpose of location, and terminat-
ing in the act of payment ; and the land is not considered " taken " so
as to divest the owner of the title, until this last act is performed. Fox
V. Western Pacific B. E. Co., 31 Cal. 538.

§ 6. Takiug liigliways. The introduction of railroads presented
the question, whether a railroad corporation could use a public highway
for the purpose of constructing and running its road ; and the doctrine
was advanced in some of the earlier cases that the application of a
highway to steam railway purposes was only a new mode of enjoying
the easement previously acquired by the public, and that the owner of
the fee in the highway was entitled to no additional compensation by
reason of such railway being laid upon the highway, either across or
along its route. See Plant v. Long Island Railway Co., 10 Barb. 26 ;
Williams v. Central R. R. Co., 18 id. 222 ; Ohio, etc., R. R. Co. v.
Applegate, 8 Dana (Ky.), 289 ; Philadelphia, etc., R. R. Co., 6 Whart.
(Penn.) 25. But this doctrine is no longer regarded as tenable ; and it
is very generally held in this country, that the location of a railroad
upon a public highway is the imposition of a new servitude upon the
land, in addition to, and distinct from that to which it was originally
6ul>jected when taken for a highway, and the owner of the fee is enti-
tled to compensation for the damages caused thereby. Williams v.
J^ew TorK etc., R. R..Co., 16 K Y. (2 Smith) 97; Imlay v. Union
Branch R. R. Co., 26 Conn. 249 ; Williams v. Natural Bridge
Plank Road Co., 21 Mo. 580 ; Spi^ingfield v. Conn. Riv. R. R. Co..,
4 Cush. 63 ; Ford v. Chicago, etc., R. R. Co., 14 Wis. 609 ; Veazie
V. Penohscot Railway, 49 Me. 119. See Brainard v. 31issisquoi R.
R. Co., 48 Yt. lOT. The legislature has no power to make such
imposition within the meaning of the constitutional provision, which
forbids the taking of property of the owner of the fee without com-
pensation, and the railway company can derive no title by any act of
the legislature, or of any municipal authority, without the consent of
the owner of the fee, or without the appraisal and payment of damages
in the mode prescribed by law. Fletcher v. Auburn, etc. , R. R. Co.,
25 Wend. 462 ; Bloomfield, etc., Gas Light Co. v. Calkins, 62 N. Y.

RAILEOADS. 291

(17 Sick.) 386. See post, 337, Art, 7, § 2. And in England, it is held
that the owner's residuum of estate iu land used for a highway is
a proper subject of pecuniary damages when the same land is tun-
neled for a railroad. Rarasden v. Momchester Junction R. R. Co., 1
Exch. 723.

In general, nothing but express legislative authority or necessary
implication can interfere with the public enjoyment of a highway.
Morris, etc., R. R. Co. v. Newark, 10 N. J. Eq. 352 ; Kaiser v. St.
Paul, etc., R. R. Co., 22 Minn. 149. And a railroad, laid out over
and along a highway in such a manner as to obstruct it without ex-
press statute authority or necessary implication, is liable to indictment
as a nuisance. Commonwealth v. Old Colony, etc., R. R. Co., 14
Gray, 93. See ante, Yol. 4, tit. Nuisam^ce. But authority by the legis-
lature to a railroad company to tunnel the streets of a city, may be
granted by implication. Baltimore, etc., R. R. Co. v. Reaney, 42
Md. 117.

In Iowa, a railway company has the right, subject to proper equit-
able control and pohce regulations, to lay its track in the street of a
city, without the consent of the city authorities, and such right is not
conditioned upon the previous payment of damages. Hine v. KeoTcuh,
etc., R. R. Co., 42 Iowa, 636.

As to the right of street railway companies to locate their trades
across or along the streets of cities and towns, see post, 337, Art. 7.

§ 7. Bridging streams. As it respects navigable streams, the
owner of land adjoining the stream has no property in the bed thereof,
hence, an unrestricted grant of authority to construct a railroad from one
designated point to another, carries with it the authority to cross a
navigable stream, if the railroad cannot reasonably be constructed with-
out doing so. Fcdl River Iron Works v. Old Colony, etc.. Railway,
5 Allen, 221. And it is competent for the legislature to authorize the
construction of a causeway or bridge across tide waters or navigable
streams, although the navigation may thereby be impaired. Rogers v.
Kennebec, etc., R. R. Co., 35 Me. 319 ; Abraham v. Great Northern
Railway, 5 Eng. L. & Eq. 258 ; S. C, 16 Q. B. 586. A charter, au-
thorizing the construction of a railroad "to the place of shipping
lumber " on a tide water river, gives the right of extending the road
across the flats and over the tide-water to a point at which lumber may
be conveniently shipped. PeaAjey v. Calais R. R. Co., 30 Me.
498. And it is held that the legislature may authorize a railway com-
pany to construct their road across the basins of a water company, to
their injury, upon making compensation. Boston Water Power Co.

292 KAILROADS.

V. Boston, etc., B. R. Co., 23 Pick. 360 ; S. C, 1 Am. Railw. Cas.
298.

§ S. Obstructing streams. Under a charter, conferring on a rail-
way company the power to acquire, by condemnation, land for the con-
struction of its road, the company have the right to divert, if they see
proper to do so, a stream of water flowing across the line of their road.
Baltimore, etc., E. E. Co. v. Magruder, 34 Md. 79 ; S. C, 6 Am.
Rep. 310. But not without compensation. Gardner v. Newhnrgh,
2 Johns. Ch. 162; Stodghill v. C. B. (& Q. E. Co., 43 Iowa,
26 ; S. C, 22 Am. Rep. 211. And a railway company is liable for
diverting a stream of water from its natural course to the injury of a
neighboring proprietor. Hatch v. Vermont Central Eailway, 25 Yt.
49. Thus, a railway company, building and maintaining, as part of its
road, a bridge across a stream in such manner as to obstruct the passage
of the water, is hable to the owner of the land thereby flowed, unless
it is shown that the company has taken reasonable precautions to pre-
vent unnecessary damage to the land. Mellen v. Westerii E. E. Co.,
4 Gray, 301. And see Brown v. Cayuga, etc., E. E. Co., 12 N. Y.
(2 Kern.) 386 ; Lawrence v. Great Northern Eailway, 16 Q. B. 643 ;
S. C, 4 Eng. L. & Eq. 265 ; Mississij)j)i, etc., E. E. Co. v. Mason,
51 Miss. 234 ; Mississippi, etc., E. E. Co. v. Caruth, id. 77.

The owner of lands adjoining a navigable stream is not entitled to
compensation from a railway company, which constructs, in pursuance
of a grant from the legislature, a railroad along the shore between
high and low-water mark, so as to cut off all communication between
sucli land and the river, otherwise than across such road. Gould v.
Eitdson Eiver E. E. Co., 6 N. Y. (2 Seld.) 522.

In Georgia, the State has the right, for railroad purposes, to legis-
late wide powers to such corporations, in every way facilitating their
construction and maintenance, and it is held that if water is indispens-
able, and cannot be otherwise obtained, the sequestration of springs
contiguous to the road, not at the time in use, may be within the scope
and comprehension of the grant as appurtenant thereto. Strohecher v.
Alabama, etc., R. R. Co., 42 Ga. 509.

§ 9. Obstructing private ways. A private way within the con-
struction of the railway acts is a way or right of way, wliich one man
has in the land of another. Bliss v. Passumjysic River Railway,
Sup. Ct. of Yt., cited in 1 Redf . on Railw., § 80, subd. 2 ; Clark v.
Boston, etc., E. R., 24 N. H. 114. And the owner of a private
way, for the pui-pose of recovering penalties for its obstruction, is the
person wlio, for the time being, owns such road in possession. Mann
V. Great Southern, etc.. Railway, 9 Ir. Com. L. R. 105.

PwAILEOADS. 293

Where a statute gave a right of action to the party aggrieved against
the company, if the road should be so constructed as to cross and ob-
struct the safe and convenient use of a private way, it was held that in
order to maintain this action it was not necessary that the railroad
should be constructed or managed in an improper and illegal manner.
Chreenwood v, Wilton Hailroad, 23 IsT. H. 261. But if it appear that
the railway was constructed and maintained in a proper manner and
that a passage was provided for the private way over the track of the
railway, the court cannot decide, as matter of law, whether the safe
and convenient use of the private way is obstructed or not. This is
held to be a question of fact, to be settled by a jury. Id.

A farm road, made by the owner of land for his private use, to pass
from one part of his farm to another, is not a private way, within the
meaning of a railway act. Clark v, Boston^ etc., Mailway Co., 24 N.
H. 114.

§ 10. Locating road. In all cases of the construction of railroads,
there must be a survey made of the route. And railroad companies
may make experimental surveys at pleasure, before jSinally locating their
route. Neal v. Pittsburgh, etc., R. R. Co., 2 Grant's (Penn.) Cas. 137.
The object of the survey is to carry out the main idea of the legisla-
ture, consulting, at the same time, the interests of the corporation and
the pubUc. Under a charter which fixes one terminus of the road at
or near a certain point, a large discretion is conferred upon the com-
pany in locating their route, the exercise of which will not be reviewed,
unless they have clearly exceeded its just limits, or acted in bad faith.
Fall River, etc., Co. v. Old Colony, etc., R. R. Co., 5 Allen, 221. If
there is a mountain in the direct road, they may go round it, if tun-
neling it would be impracticable, by reason of expense, time, or any
of the many circumstances that would influence an engineer in making
up his judgment. If a river intervenes, the best point for a bridge
may be sought, always, of course, observing substantially the true
course. And it is thought that all railroad charters, that do not directly
express the contrary, must be taken to allow the exercise of such
a discretion in the location of the route, as is incident to an ordinary
practical survey thereof, made with reference to the nature of the
country to be passed over, and the obstacles to be encountered or avoided.
Southern Minn. R. R. Co. v. Stoddard, 6 Minn. 150. And see
Cleveland, etc., R. R. Co. v. Stackhouse, 10 Ohio St. 567; Parke's
Appeal, 64 Penn. St. 137. But the power of taking any man's land
by a railroad company is exhausted by a location. It cannot be in-
dulged with another choice. Neat v. Pittsburgh, etc., R. R. Co., 2

294 RAILKOADS.

Grant's (Penn. Cas. 137. See, also, Little Miami Railway v. Nayler^
2 Ohio St. 235.

"WTiere a railway company is empowered by its charter to enter a
city, this power, of necessity, gives the right to locate the road some-
where ; and if need be, upon a street or alley. Tennessee^ etc.^ B. R.
Co. V. Adams, 3 Head (Tenn.), 596. But a grant of authority to con-
struct a railroad along a river does not authorize the construction of the
road in, or upon such river. Stevens v. Erie R. R. Co.^ 21 N. J. Eq.
259.

The location of a railroad across a public highway, in pursuance of
the power conferred by the charter of the company, does not, while
the road is in process of construction at that point, operate a discon-
tinuance of the highway, but only a temporary suspension of the use
{Willard v. Newbury, 22 Yt. 458); and during the temporary ob-
struction of the highway by the construction of the railroad, the town
must provide a suitable by-way for the public, and use all proper and
reasonable precautions to prevent travelers from passing upon the high-
way, while it remains unsafe. Id.

If a railway company is authorized so to locate its route as to take
land already appropriated, under a previous and equal authority, by
another company, no unnecessary damage should be done to the first
road or to the public. New York, etc., R. R. Co. v. Boston, etc., R.
R. Co., 36 Conn. 196.

It is held not to be necessary, in order to constitute a location of the
route of a railway, for the purpose of fixing the liability of subscribers
to the stock, that the route should have been staked and marked on the
ground, in such a manner that its precise line could be found and iden-
tified. Location may be completed by resolutions, the publication of
maps, or by other acts of the directors, manifesting a corporate deter-
mination to construct the road over a particular route. Parker v.
Thomas, 28 Ind. 277.

No one can object to the location of a railroad on account of damage
to his property, who had no interest in the j^i'operty at the time the
road was located. Ilentz v. Long Island R. R. Co., 13 Barb. Q'^Q.

§ 11. Changing location. It has generally been held that a rail-
way company, authorized by its charter to take land within certain
litnits, and lay out a road or roads thereon, is not thereby authorized,
after the road has been actually laid out and put in operation, to make
a new location thereof, or to lay an additional branch road not included
in the original plan. Morris, etc., R. R. Co. v. Central R. R. Co., 31
N. J. Law, 205. And see Loriisville, etc., Turnpike Co. v, NashviUo^
etc., Turnpike Co., 2 Swan (Tenn.), 282 ; Blakemore v. Glamorgan-

EAILROADS. 295

sliire Canal Co., 1 Myl. & K. 154 ; Turnpike Co. v. Rosiner, 12 Conn.
364; ante, 293, § 10. The route cannot be changed without the authority
of a legislative act. Hudson, etc., Canal Co. v. j}few York, etc., It. B. Co.,
9 Paige, 323. And authority to change the location of the route, during
the work, does not imply a power to change it after the road is complete.
Moorhead v. Little Miamii Railway, 17 Ohio, 340 ; Atkinson v.
Marietta, etc., R. R. Co., 15 Ohio St. 21. But in a recent case ia
Mississippi, it is held that railway companies have the power to re-
locate the line of their road after the completion of it under the first
location, and to condemn for the purposes of such re-location private
property, if there he a manifest necessity for the change, and no detri-
ment thereby accrues to the public. Mississippi, etc., R. R. Co. v.
Devaney, 42 Miss. 555 ; S. C, 2 Am. Rep. 608. See, also, South
Carolina Railway v. Blake, 9 Rich. (S. C.) 229. So, contracting for
the construction of the road upon a certain route, which has not been,
actually designated in the manner directed by the act of incorporation,
will not deprive the company of the power to change the route. Hud-
son, etc.. Canal Co. v. New York, etc., R. R. Co., 9 Paige, 323.

Although an inquest of damages for the location of a railroad pre-
cludes the owner of the land from claiming additional damages for the
same original location upon the occasion of a change in the route, yet,
the owner can recover damages for the alteration, notwithstanding it
was made by authority of the legislature, if he has sustained any injury
thereby, to the extent of such additional injury. Baltimore, etc., R.
R. Co. V. Cmnpton, 2 Gill (Md.), 20.

And where a railway company has received from individuals dona-
tions of lands, payments of money, etc., and in consideration thereof
has engaged to lay out its road in a specified place, and allow to them
certain advantages in connection therewith, the company will not be
allowed to change the route, or do by indirection what is equivalent
thereto, without compensating such individuals. Chapman v. Mad
Riwer, etc., R. R. Co., 6 Ohio St. 119.

§ 12. Conipeusatiou. A railway company, authorized to acquire
lands for railway purposes, must make compensation to the owners of
the land before constructing their road over such land ; and where a
railway company enter into possession of the lands of an individual for
the use of their road, without his consent, and without first having
assessed the damages and tendered compensation therefor, he may
maintain an action against the company to recover possession of the
land. Graham v. Columbus, etc., R. R. Co., 27 Ind. 260 ; Loop v.
Chamberlain, 20 "Wis. 135 ; Seneca Road v. Auburn R. R. Co., 5
Hill, 170 ; Missouri, etc.. Railway Co. v. Ward, 10 Kan. 352 ; Buf

296 KAILKOADS.

falo, etc., R. R. Co. v. Ferris, 26 Tex. 588 ; Memphis, etc., R. R. Co.
V. Payne, 37 Miss. TOO. But it is held that only the then owner of
the land taken, and not a subsequent purchaser, can maintain the
action. Central R. R. Co. v. Retfield, 29 N. J. Law, 206. And see
Rooney v. Sacramento, etc., R. R. Co., 6 Cal. 638. So^ the owner
may waive his constitutional right to insist on ousting the trespasser,
and proceed for compensation. MGClinton v. Pittsburgh, etc., R. R.
Co., 66 Pemi. St. 404. And if the owner gives the railway company
verbal leave to use his land, he can recover no damages for such use as
long as the permission remains unrevoked. Miller v. Auburn R. R.
Co., 6 Hill, 61. So, it is held that a condemnation of land for railroad
purposes, which does not provide for compensation for the land taken,
is not rendered invalid thereby {Shute v. Chicago, etc., R. R. Co., 26
111. 436) ; but the taking of the land will be enjoined until payment is
made. Id. ; Damis v. La Crosse, etc., R. R. Co., 12 "Wis. 16 ; People
V. Loajo, 34 Barb. 494. If a railroad is located on land other than that
granted, but with the knowledge of the owner, who makes no objec-
tion, but declares his intention to claim damages, the company cannot
be held as a trespasser or wrong-doer. Hosher v. Kansas City, etc.,
R. R. Co., 60 Mo. 329. See ante, 284, § 2. And in an action for damages
for the unlawful construction of a railroad upon his land, the plaintiff
cannot recover for the depreciation of his property which would result
from the lawful and ^ermawe/iHocation of the road thereon. Hartz
V. St. Paul, etc., R. R. Co., 21 Minn. 358.

As the title of one owning land bounded upon a stream not navi-
gable at common law extends to the center of the stream, the legisla-
ture cannot grant a charter to a railway company to take or damage
such owner's property so situated without compensation. Therefore,
if the company under its charter erects a bridge across such a stream,
and the property of another boimded by the stream is either taken or
damaged thereby, a right of action exists in his favor. Chicago, etc.,
R. R. Co. V. Stein, 75 111. 41. And see ante, 291, § 7. So it is held
that the use of a street, for a railroad on which locomotives and trains
of cars are used, is a new burden, beyond the public easement, which
cannot be imposed by legislative authority without compensation to the
owner of the fee. Ford v. Chicago, etc., R. R. Co., 14 Wis. 609 ;
Cox V. Louis^nlle, etc., R. R. Co., 48 Ind. 178 ; Wager v. Troy, etc.^
R. R. Co., 25 N. Y. (11 Smith) 526 ; Stetson v. Chicago, etc., R. R.
Co., 75 111. 74. But the owner of an abutting lot, who has no interest
in the foe of a street, cannot prevent the use of the latter for a railway
when such use is permitted by the city, and is authorized by an act of

EAILEOADS. 297

the legislature. Id. ; Carson v. Central R. R. Co., 35 Cal. 325. See
ante, 290, § 6, and^05^, 337, Art. 7.

Wliere the value of a wharf was impaired by the construction of a
railroad across the flats below it, the owner was held to be entitled to
recover of the proprietors of the railroad the damages thus sustained
by him. Ashhy v. Eastern R. R. Co., 5 Mete. 368. And see WTiite
V. South Shore R. R., 6 Gush. 412. So, a railroad corporation is en-
titled to damages for the construction of another railroad across its
track, although such track is laid upon piles over tide- water. Grand
Junction R. R., etc., Co. v. County Commissioners, 14 Gray, 553.
And it is held in Pennsylvania that a water-power situated on one of
the smaller streams of the State is such a property as a railway com-
pany is liable to make compensation for, if damaged 1jy the construc-
tion of their road, although the stream may have been declared a public
highway by act of assembly. Barclay R. R., etc., Co. v. Ingham, 36
Penn. St. 194.

But the law makes no provision for compensation for an injury oc-
casioned by the construction of a railroad to any person from whom
no land, estate, or materials are taken. Rogers v. Kennehec, etc., R.
R. Co., 35 Me. 319. And where the State takes land after making
ample provision for compensation, and builds a railroad upon it, which
it subsequently conveys to a corporation, a person cannot claim dam-
ages against the corporation for any land originaUy taken. People v.
Michigan, etc., R. R., 3 Mich. 496.

So, where a land- owner foregoes his right to have his damages ascer-
tained and paid before the making of a railroad across his land is com-
menced, and, under some arrangement as to the subsequent ascertain-
ment and payment of liis damages, consents that the work may
proceed before the damages are to be ascertained and paid, he cannot
thereafter interpose and prevent the work in progress, or prevent the
use of the road, nor, imless there is some special and binding contract
to that effect, can he assert a lien on the land taken, and occupied for
the road, in the nature of a vendor's lien. Knapp v. McAuley, 39
Yt. 275.

In estimating the compensation to be made to the o^vner, for land
taken for railway purposes, the proper inquiry is, what is the fair mar-
ketable value of the whole land taken, without the railway, and then
what will be the fair marketable value of the land not taken, and it is
held that the difference will be the true amount of compensation to
be awarded. BlacJc River, etc., R. R. Co. v. Barnard, 9 Ilun (N.
Y.), 104. And see SomervUle Railway v. Doughty, 2 Zabr. (N. J.)
495 ; Tide Water Canal Co. v. Archer, 9 Gill & J. (Md.) 480 ; San
YoL. Y.— 38

298 EAILKOADS.

Francisco, etc., R. R. Co. v. Caldwell, 31 Cal. 367 ; East Brandy-
wine, etc., R. R. Co. V. Ra/ncTc, 78 Penn. St. 454 ; Tucker v. Mass.
Cent. R. R. Co., 118 Mass. 546 ; Baltimore, etc., R. R. Co. v. Lan-
sing, 52 Ind. 229 ; Louisville, etc., Railway v. Thompson, 18 B. Monr.
(Ky.) 735. The inquiry as to the value of tlie hind should relate
to the time of the appropriation. Logansport, etc., R. R. Co. v. Bu-
chanan, 52 Ind. 163. See Metier v. Easton, etc., R. R. Co., 37 N".
J. Law, 222. In awarding compensation, there must be a limit which
will exclude remote, indefinite, or possible damages. The damages
must be direct, and not such as are general or common to others or to
the whole community. Bangor, etc., R. R. Co. v. McComb, 60 Me.
290. Special benefits, accruing to the remaining portion of the land,
are to be taken into the account in assessing compensation. Winona,
etc., R. R. Co. V. Waldron, 11 Minn. 515 ; Railroad Co. v. Tyree, 7
W. Ya. 693 ; Greenville, etc.. Railway v. Partlow, 5 Rich. (S. C.)
428 ; Raleigh, etc., R. R. Co. v. Wicker, 74 N. C. 220 ; Adden v. White
Mts. R. R. Co., 55 N. H. 413 ; 20 Am. Eep. 220 ; Henderson &
Nashmlle Railway v. Diclcerson, 17 B. Monr. (Ky.) 173. But no
account is to be taken of the general benefits to the land-owner, result-
ing from the building of the railroad. Cleveland, etc., R. R. Co. v.
Ball, 5 Ohio St. 568 ; Little Miami Railway v. Collett, 6 id. 182 ;
StaU V. Miller, 3 Zabr. (N. J.) 383; Woodfolk v. Nashville, etc..
Railway, 2 Swan (Tenn.), 422 ; ILornstein v. Atlantic, etc., R. R. Co.,
51 Penn. St. 87 ; Meacham v. Fitchhurg R. R. Co., 4 Cush. 291 ;
Minnesota, etc., R. R. Co. v. McNainara, 13 Minn. 508 ; Freedle v.
North Car. R. R. Co., 4 Jones' (N. C.) L. 89. But see California, etc.,
R. R. Co. V. Armstrong, 46 Cal, 85.

If by the construction of a railway, a laud-holder is obliged to build
additional fences, that is to be considered in estimating the land dam-
ages. Louisville, etc., R. R. Co. v. Glasehrook, 1 Bush (Ky.), 325 ;
Winona, etc., R. R. Co. v. Denman, 10 Minn. 267 ; Evansville, etc.,
R. R. Co. V. Fitzpatrick, 10 Ind. 120 ; Raleigh, etc., R. Li. Co. v.
Wicker, 74 IST. C. 220. So, the exposure of the remaining land and
buildings to fire from the company's engines is a proper element to be
considered in making the estimate. Adden v. White Mts. R. R. Co.,
55 N. II. 413 ; S. C, 20 Am. Eep. 220. But see Lehigh Valley R.
R. Co. V. Lazarus, 28 Penn. St. 203. And all inconveniences caused
by embankments, excavations, and obstructions to the free use of build-
ings, and inconveniences from the sounding of whistles, ringing of
bells, rattling of trains, jarring of the ground, and from smoke, so far
as they severally arose from the use of the strip taken and upon it,
excluding all common and indirect damages, may be considered. Somr

EAILKOADS. 299

erville, etc.^ Railway v. Doughty, 2 Zabr. (]^. J.) 495 ; Bangor, etc.,
R. R. Co. \.McCo7iib, 60 Me. 290 ; St. Louis, etc., R. R. Co. v. Mollet,
59 111. 235 ; Peoria, etc., R. R. v. Sawyer, 71 id. 361 ; Watson r. Pitts
hurgh, etc., R. R. Co., 37 Penn. St. 469. Damages to mill j)roperty in
lessening the advantages of the water power, present and prospective,
should be taken into the account. Dorian v. East Brandywine, etc.,
Railway Co., 46 id. 520. And in assessing damages for a building
taken, the value of the building as such, and not merely that of its
materials, should be considered. Lafayette, etc., R. R. Co. v. Winslow,
66 111. 219. But contingent future disadvantages and unopened mines
should not be taken into consideration as an element of damages.
Searle v. Lackawanna R. R. Co., 33 Penn. St. 57. And it is held
that the owner of land, through which a railroad passes, is not entitled
to damages for the increased rate of insurance which he mav have
to pay because of the danger to his property from locomotives. Patten
V. Northern R. R. Co., id. 426. And in general, unless the act of in-
corporation provides for it, consequential damages from constructing
or maintaining their works are not recoverable from a railroad or other
improvement company. New YorTc^ etc., R. R. Co. v. Young, id.
175 ; Rdbbins v. Milwaukee, etc., R. R. Co., 6 Wis. 636 ; LLatch v.
Vermont, etc., R. R. Co. , 25 Yt. 49. See ILannibal Bridge Co. v.
Schaubacher, 57 Mo. 582. And it is held that the obstruction of the
public highway should not be considered in the estimation of the
damages to which the owner of adjacent land is entitled, for the appro-
priation of the right of way by a railway company. Gear v. C. C.
(& D. R. Co., 43 Iowa, 83. But if the company lays its track upon the
highway, it becomes bound to the public, that the highway shall be put
in as good repair as it was before^ and for a failure to do this, it may
be indicted. Id.

Damages for land taken by a railroad may be awarded to a tenant
for life, as well as to a trustee of the fee in remainder. And the for-
mer is entitled thereto without the intervention of the latter. Pass-
more V. Philadelphia, etc., R. R. Co., 9 Phil. (Penn.) 579. And see
Reading R. R. v. Boyer, 13 Penn. St. 497. But it is held that a
tenant in common cannot proceed in his own name to have the dam-
ages done by a railroad assessed, though behave authority from his co-
tenant so to do. Railroad v. Bucher, 7 Watts (Penn.), 33. See, also,
Gramd Rapids, etc., R. R. Co. v. Alley, 34 Mich. 16 ; Ruppert v. C.
O. c& St. J. R. Co., 43 Iowa, 490.

Under the constitution of the State of Kansas, full compensation
must be first made " in money, or secured by a deposit of money," be-
fore any right of way can be appropriated to the use of a corpora-

300 KAILROADS.

tion. St. Joseph., etc., R. R. Co. v. Callender, 13 Kans. 496. And
see Sfeuart v. Mayor, etc., of Baltimore, 7 Md. 500 ; Jacob v. City
of Louismlle, 9 Dana (Ky.), 114.

Evidence that the construction of a railroad had the effect to destroy
the business of a mill, by making it unsafe to drive horses near it, and
dangerous for persons going to and from it, was held to be admissible
on the question of damages. Western Penn. R. R. Co. v. Hill, 56
Penn. St. 460.

If the mode of determining the compensation to be given to owners
of land taken by a railroad company is specially laid down in the char-
ter, no other mode can be pursued. Pettibone v. La Crosse, etc., R.
R. Co., 14 Wis. 443.

§ 13. Interest acquired in land. See ante, 278, § 4. In granting
to railway companies the right to construct their roads across, along
or upon any water -course, highway, plankroad, canal, etc., the statute
grants only the right which the public had in them, and does not at-
tempt to grant any right to violate private property without the con-
sent of the owners. Ellicottville Plankroad Co. v. Buffalo R. R.
Co., 20 Barb. 644.

If a railway company fails to commence work or complete its road in
the time limited by its charter, the State alone can take advantage of the
failure. And if the State waives its right to do so, or extends the time,
the delay cannot excuse one who has agreed to convey land to the
company for the road, from fulfilling his contract. Ross v. Chicago,
etc.,R'.R. Co., 77 111. 127.

The charter of a railway company giving power to take land gives
the power to take a right of way over the land, under the maxim,
omne majus continet in se Tninus. Philadelphia, etc., R. R. Co. v.
Williams, 54 Penn. St. 103.

A railway company, which has appropriated lands subject to a mort-
gage, has a right to redeem its lands from the lien of the mortgage by
paying a ratable proportion of the mortgage debt, and this it may do
to the full value of the property, if need be, irrespective of the im-
provements put thereon by the company. Dows v. Congdon, 16 How.
(N. Y.) 571. And see Kennedy v. Milwaukee, etc., R. R. Co., 22
Wis. 581.

ARTICLE III.

CONSTRUCTION OF THE ROAD.

Section 1. On what line. See ante, 293-295, Art. 2, §§ 10, 11. A
railway company will not be restrained in equity as to the location of its

EAILROADS. 301

road, unless it is shown that the company capriciously or wantonly
disregards the rights of others. Anspach v. Railroad Co.^ 5 Phil.
(Penn.) 491. In an action against a railway company for breaking
and entering the plaintiff's close, it is wholly immaterial whether the
company has elsewhere deviated from the limits prescribed by its
charter. The whole location is not invalidated by the variation of a
part of it form the prescribed route. Newton v. Agricultural Branch,
etc., B. R. Co., 15 Gray, 27.

§ 2. Mode of construction. We have seen from the preceding
article, that a legislative grant to construct a railroad can give no au-
thority to invade any private rights without just compensation. Such
grant confers a franchise merely, and the title and rights of a private
corporation, but no exemption for wrongs to pi'ivate property. Roh-
inson v. New YorTc, etc., R. R. Co., 27 Barb. 512. But the grant to
take land implies the power to take buildings. Brocket v. Ohio, etc.,
R. R. Co., 14 Penn. St. 241. And railway companies have implied
power, under their charters, to make such side tracks, depots and ex-
tensions of their roads as are necessary and reasonable for the accom-
modation of the company and the public in the transaction of business,
and for such purposes, may take private property, making adequate
compensation therefor. Protzman v. Indianapolis, etc., R. R. Co., 9
Ind. 467 ; Nashville, etc.. Railway v. Cowardin, 11 Humph. (Tenn.)
348 ; New York, etc.,R. R. Co. v. Kip>, 46 N. Y. (1 Sick.) 546 ; S. C, 7
Am. Rep. 385. So, it is held that a railway company may erect a
building for the purposes of its business within the limits of its loca-
tion, although a private way over the land on which the building
stands is obstructed thereby. Boston Gas Light Co. v. Old Colony,
etc., R. R. Co., 14 Allen, 444. But it is not justified in so locating
its freight depot, as to obstruct a public highway, where such location
is not necessary, but only convenient. State v. Morris, etc., R. R. Co.,
25 N. J. Law, 437. And see State v. Vermont, etc., R. R. Co., 27 Yt.
103. And if a railway company, in the construction of its road,
diverts a stream from its natural channel, it is bound to restore it to
the proprietors as little impaired as may be, and to continue to preserve
it so, as long as the water is so diverted from its channel. Gott v.
Lewiston R. R. Co., 36 IST. Y. (9 Tiff.) 214. And an assessment of
damages for land taken for a railroad does not cover damages occas-
ioned to the owner by the diversion of a natural stream of water, al-
though such diversion is necessary to the proper construction of the
road-bed. Stodghill v. Chicago, etc., R. R. Co., 43 Iowa, 26 ; S. C,
22 Am. Rep. 211. See Proprietors, etc., v. Nashua, etc., R. R. Co.^
10 Cush. 385. But where the right of way is granted to a railroad

302 RAILROADS.

company, and the company is obliged to make a deep cut m oraer to
enjoy the right, it is not bound to build walls to prevent the falling
in of the banks. Hortsman v. Covington, etc. U. B. Co. 18 B. Monr.
(Ky.) 218.

§ 3. Liable for defects and injuries. The liability oj. railway com-
panies, for defects and injuries in constructing their works, has been
treated of at considerable length under the titles Negligence and E'ui-
sance, which see. It is held, generally, that a railway company is not
liable for consequential damages sustained by a neighboring land-owner
from the manner in which its road has been constructed, if the com-
pany has built it in a skillful and proper manner, and within the exer-
cise of the power granted to the company. Mason v. Kennebec^ etc.,
B. E. Co., 31 Me. 215 ; Bodge v. Essex, 3 Mete. 380 ; Mazetti v. Wew
T(yi% etc., R. R. Co., 3 E. D. Smith (N. Y.), 98 ; Norris v. Vermont,
etc., R. R. Co., 28 Yt. 99 ; Aldrich v. Cheshire R. R. Co., 21 N. H.
359. The rightful and honafide exercise of a lawful power or author-
ity cannot afford a basis for an action. If the power or right is exer-
cised carelessly, negligently, wrongfully, improperly, and may be
maliciously, the party so exercising it may be liable to respond in dam-
ages for an injury direct or consequential, resulting to another from
thus exercising the right or power ; but such liability can only arise
upon and for the manner of doing the act, and not for the act itself.
Id. ; Slatten v. Des Moines Valley R. R. Co., 29 Iowa 154 ; S. C, 4
Am. Rep. 205. But see, on this pomt, Evansville, etc., R. R. Go. v.
Dick, 9 Ind. 433 ; Brown v. Cayuga, etc., R. R. Co., 12 N. Y. (2
Kern.) 486 ; Baltimore, etc., R. R. Co. v. Reaney, 42 Md. 117 ; La/u)-
rence v. Great N oi'thern RailwoAj Co., 16 Ad. & El. (N. S.) 643. In
a recent case it is held that a riparian proprietor, whose land has been
gradually washed away by a change in the course of the current of the
stream occasioned l)y necessary erections made above him in the stream,
by a railway company, has no claim for damages against the company,
whetlier such erections have been made in a careless and unskillful man-
ner or not. Henry v, Vermont, etc., R. R. Co., 30 Yt. 638. But it is
otherwise, as it regards one who has been injured l)y the setting back
of tlic water, occasioned by such erection below him. Id. See Rohin-
Hon v. Nev) York, etc., R. R. Co., 27 Barb. 512. And where a rail-
way cfjuij^any built a railroad through a street, making embankments
wliicli made the approach to the plaintiff's house less convenient, and
I)rev(;nted the surface-water from draining off, it was held that the
plaintiff could recover damages for the injury, although the work was
approved by the city engineer. Parrot v. Cincinnati, etc., R. R. Co.,
10 Ohio St. 624. See, also, Indiam^apolis, etc., R. R. Co. v. Smith, 52

KAILEOADS. 303

Ind. 428. So, a rauway company was held liable in damages for so
building a bridge-pier as to turn the cuiTent in time of freshets upon
one's grass land, causing gullies and silt deposits, where it appeared
that at an additional expense the bridge could have been erected with-
out doing such injury. Spencer v. Hartford^ etc. R. R. Co.., 10 R. I.
l-i. And a railway company has no right, by an embankment, or other
artificial means, to obstruct the natural flow of the surface water, and
thereby force it, in an increased quantity, upon the lands of another ;
and if it does so, it is liable for any injury that the owner of the land
may sustain by reason thereof. Raleigh., etc. , R. R. Co. v. Wicker, 74
N. C. 220 ; 7hledo, etc., Raihoay Co. v. Jlorrison, 71 111. 616.

But the difficulty of crossing a railroad track in a public street, the
detention by trains, the frightening of horses, the danger to persons
crossing the track, and the like, are inconveniences which property
owners on the street have to suifer, and for which they cannot recover
in a suit for damages. Stone v. Fairhury, etc., R. R. Co., 68 111. 394 ;
S. C, 18 Am. Rej). 556. So, the depreciation of the value of property by
reason of the construction and operation of a railroad through an adja.
cent street, or annoyance from noise necessarily attending the same, is no
ground for an action by the lot owner, nor is an annoyance from smoke
and fire, unless he is damaged by their actual contact with his premises.
Cosby V. Owenboro, etc., R. R. Co., 10 Bush (Ky.), 288. And a recov-
ery of prospective damages from a railway company for unnecessarily
constructing their road, so as to cause the plaintiff's land to be washed
away, is held to bar an action for subsequent damages therefrom,
although caused by an unusual freshet. Fovile v. New Hamen, etc.,
R. R. Co., 112 Mass. 334 ; S. C, 17 Am. Rep. 106.

A railway company is not liable in any case for injuries occasioned
by its buildings or structures being blown down by storms where
it has used that care and skill in their structure and maintenance
which men of ordinary prudence and skill usually employ. Nor is the
company liable for an injury to a person resulting from its failure to
exercise such care and skill, where at the time of the injury such per-
son was at the station-house of the company, by mere permission and
sufferance, and not for the purpose of transacting any business with the
company, or its agents, or on any business connected with the opera-
tion of the road. Pittsburgh, etc.. Railway Co. v. Bingliarn, 29 Oliio
St. 364 ; S. C, 23 Am. Rep. 751.

§ 4. Contracts for construction. A railway company will not be
restrained from progressing with the constructionof their road, and the
erection of the necessary buildings in such manner as they may deem
proper, because of the violation of some contract which they may have

304 RAILKOADS.

previously made in relation to it. Gallagher v. FoA/ette, etc., B. R.
Co., 38 Penn. St. 40.

A contract by a railway company to locate passenger and freight
depots at a particular point, and at no other point in a town, is held to
be against pubhc pohcy, and performance thereof will not be enforced.
Marsh V. Fairhury, etc., R. R. Co., 64 111. 414 ; S. C, 16 Am. Rep.
564. See, also, St. Louis, etc., R. R. Co. v. Mathers, 71 111. 592 ; S.
C, 22 Am. Rep. 122 ; St. Joseph, etc., R. R. v. Ryan, 11 Kan. 602 ;
S. C, 15 Am. Rep. 357. In deciding whether specific performance
should be enforced against a railway company, the court must have re-
gard to the interests of the public. Raphael v. Thames Yalley Rail-
way Co., L. R., 2 Eq. 37.

Merely acquiring the right of way, or letting contracts for the con-
struction of a railroad, is held not to constitute " commencing work
upon a railroad." State v. Wheadon, 39 Ind. 521. And the term
" open for use," as applied to railroads, does not necessarily mean pub-
lic use. RocJcford, etc., R. R. Co. v. Heflm, 65 111. 366.

If a contract with a railway company requires the company to fur-
nish the ground from which the earth necessary to make an embank-
ment is to be taken, they are bound to furnish it within reasonably con
venient distance, and they liave no right to require the other party to
go miles away, or any other unreasonable distance for the earth, and if
they insist upon his doing so, he has the right to insist upon additional
compensation, notwithstanding a written agreement that he should not
charge for extra labor. Chicago, etc., R. R. Co. v. Voshurgh, 45
111. 311. And see Orange, etc., R. R. Co. v. Flacide, 35 Md. 315.
So, one who has contracted to grade a section of a railroad according
to the directions of the engineer of the company, and according to the
specifications annexed to the contract, may recover of the company, in
an action on the contract for grading done by the direction of the en-
gineer, of a different width and grade from that stated in the specifica-
tion. Fhiladelphia, etc., R. R. Co. v. Howard, 13 How. (U. S.) 307.
But a sub-contractor to build part of a railroad has no claim against the
company for extra work performed under his contract with the first
contractor. Vam,derwerker v. Vermont, etc., R. R. Co., 27 Vt. 125.

A contract that the work shall Ijc done to the satisfaction of the
engineer on the road is an appropriate engagement, and will be en-
forced and carried into execution by the court. Finegan v. F Engle,
^ B'la. 413. See, also, JVorth Leba/non R. R. Co. v. McGran7i,»SS
Venn. St. 530; Baltimore, etc., R. R. Co. v. McCullough, 12 Graft.
5!>5 ; Condon v. Sotdh Side R. R. Co., 14 id. 302. So, a provision in a
contract for excavations and other work in constructing a railway, that

EAILEOADS. 305

a measurement should be made by the engineer of the road whose de-
cision should be final, is vahd and binding upon the parties {McMahon,
V. New York, etc., R. R. Co., 20 X. Y. [6 Smith] 463) ; but the con-
tractor is not concluded by measurements made ex parte. Id.

In an action against a railway company to recover the value of ser-
vices performed before the incorporation of the company in procuring
the charter, making surveys, etc., it was held that the plaintiff could
not recover in the absence of proof that a majority of the corporators,
or promoters of the corporation, authorized the service. BelVs Ga/p
R. R. Co. V. Christy, 79 Penn. St. 54 ; S. C, 21 Am. Eep. 39. But
where, after the charter, and before the organization of the company,
sei'vices are rendered which are necessary to complete the organization,
and after it has been perfected, the company elects to take the benefit
of such services, knowing that they were rendered with the under-
standing that compensation was to be made, it will be held liable to
pay for the service upon the ground that it must take the bm'den with
the benefit. Low v. Conn., etc., R. R., 45 N. H. 370. And see Pres-
ton v. Liverpool, etc.. Railway Co., 7 Eng. L. & Eq. 124. Still, no
promise to pay would be implied from the fact that such services were
rendered at the request of any number of the corporators less than a
majority. Low v. Conn., etc., R. R., 45 IST. H. 370.

The influence of the president and secretary of a railway in procur-
ing a contract to build the road, they forming part of the committee to
award it, is held not to be a valid consideration for an assignment to
them of an interest in the contract. Flint, etc., R. R. Co. v, Dewey,
14 Mich. 477.

A railway company entered into a construction contract, under which
the road was to be finished by a fixed day, and from time to time de-
livered to the contractors the bonds of the company, some of the cou-
pons of which had become over due. These the contractors negotiated
to third parties, who took without notice of any complaint on the part
of the company, — and it was held that the company was estopped from
setting up against the holders a claim formed on a delay in the work.
McElrath v. Pittsburgh & Steuhenville R. R. Co., 55 Penn. St. 189.

In a recent case a railway company was held liable to a contractor
on the construction of its road, for the value of animals lost through
the act of his own servant, done in obedience to the express directions
of the company's superintendent, in driving the team into a place of
danger ; it being alleged and proved that the teamster, though hired
by the contractor, was subject to the ordoi's of the superintendent.
Cook V. Hannibal, etc., R. R. Co., 63 Mo. 397.

§ 5. Fencing line of road. See vol. 3, p. 331. See, also, ante,
YoL. Y.— 89

306 KAILKOADS.

tit. Negligence, art. 2, § 17. At common law a railway company is
not required to fence the line of its road unless in fulfillment of some
special agreement, either sealed or unsealed. Vcmdergrift v, Dela-
ware R. R. Co., 2 Houst. (Del.) 287.

"Where the land-owner has agreed with the railroad company to
maintain the fence, a defect therein, although not attributable to want
of care on the part of the land-owner, is a defense to an action for kill-
ing his cattle if they stray upon the track through a breach in the fence.
Pittsburgh, etc., R. R. Co. v. Smith, 26 Ohio St. 12J:. See Gill v.
Atlajitic, etc., R. R. Co., 27 id. 2J:0; Cincinnati, etc., R. R. Co. v.
Ridge, 5-i Ind. 39.

§ 6. Cattle guards. See ante, tit. Negligence, art. 2, § 17. In
the absence of a statute requirement specially obliging railway com-
panies to make cattle guards at private crossings, a company is not lia-
ble for neglecting to do so. Bartlett v. Duhuque, etc., R. R. Co., 20
Iowa, 188. A law requiring a railway company to fence against
" cattle, horses, sheep, and hogs," is a remedial statute, and will be
liberally construed. The term " cattle " includes asses ( Ohio, etc., R. R.
Co. V. Brubaker, 47 111. 462) ; and such a statute also extends to mules.
Toledo, etc., R. R. Co. v. Cole, 50 id. 184.

The principle that excuses a railroad company from fencing its track
at a station, likewise excuses it from constructing cattle-guards there.
Robertson v. Atlantic, etc., R. R. Co., 64 Mo. 412.

§ 7. Koad crossings. A railway company, constructing its road
across a highway without lawful authority, is held liable to indictment
for a nuisance. Commonwealth v. Vermont, etc., R. R., 4 Gray, 22.
See am.te, 290, art. 2, § 6. But a railway company, which has duly located
its road across a public highway, and acquired a right to construct it
there at a certain grade, without any restriction as to the number of
tracks, or the place where they should be laid, is authorized to lay and
maintain as many tracks as are essential to the convenient transaction
of its business ; and for tliat purpose may make any necessary altera-
tion in the surface of the highway. Commonwealth v. Hartford, etc.,
R. R. Co., 14 Gray, 379.

It is the duty of a railway company not to obstruct pu1)lic roads and
streets, wlicre they intersect the railway track either by stopping a train
or otherwise ; and the company must take the consequences of all un-
necessary oljstructions. Janesville v. Milwaukie, etc., R. R. Co., 7
Wis. 484 ; Murray v. South Carolina R.R. Co., 10 Rich. (S. C.) 227.
So, the company is bound to keep in a safe condition a " crossing "
where a public highway extends across the railway track. Pittsburg,
etc., R. Ji. Co. V. Dimn, 50 Penn. St. 280. And a railway company

EAILEOADS. 307

is liable to a city for the amount of damages which the city has been
compelled to pay l^y reason of a defect in a street, caused by a railroad
crossing not properly constructed or maintained. Portland v. Atlcmtic,
etc., R. R. Co., 66 Me. 485. And it is the duty of those in charge of
a train when approaching a public crossing to give notice, by blowing
the whistle, ringing the bell, or in such other way as will be sufficient
to warn travelers of their approach ; and also to look along the track
and to check the train, if necessary, to prevent a collision, and if they
fail in these duties and injury result, the company is responsible.
Pittsburgh, etc., R. R. Co. v. Dunn, 56 Penn, St. 280 ; Murray v.
South Car. R. R. Co., 10 Eich. (S. C.) 227. But neither the com-
pany nor the public have the exclusive right to a clear passage, where
highways cross the track of a railroad. Eeasonable care and prudence
must, therefore, be exercised by each, in the use of the crossing, so as
not to interfere unnecessarily with the other. Pittsburgh, etc., R. R.
Co. w.Maurer, 21 Ohio St. 421. And see ante, Yol. 4, tit. Negligence.
In Ogle v. PhiladeliMa, etc., R. R. Co., 3 Houst. (Del.) 267, 302,
the public use of a highway crossing, built by a railroad company over
its track, was held to be subordinate to the right of the company to use
their road.

A clause in the charter of a railway company made it the duty of
the company to provide a suitable wagon way, over or under the road,
" where the said road shall intersect any farms or lands of any indi-
vidual," etc. The true meaning of the clause was held to be that the
company was boimd to provide a wagon way in cases where the road
intersects the lands am,d not at the point where the road intersects the
lines. Ellsworth v. Central R. R. Co., 34 N. J. Law, 93.

The right to raise or lower highways, in the construction of a rail-
road, gives the company no authority to change the course of the high-
way, even with the consent of the town council, and for so doing the
company was held liable to persons who had sustained special damage
thereby. Hughes v. Providence, etc., R. R. Co., 2 E. I. 493.

Wliere permission is granted, by the commissioners of highways, to
a railroad company " to construct and maintain a bridge over a cross-
ing," the acceptance thereof by the company, and the construction of
the bridge, imposes upon it the duty of maintaining the bridge in re-
pair. And inasmuch as the approaches to the bridge are necessary to
connect it with the highway, they are a part thereof ; and the same
duty is imposed upon the company as to repairing them, as exists in
regard to the bridge itself. Hayes v. Nexc York, etc., R. R. Co., 9
Hun (N. y.), 63.

The English f=^atutes relating to railways provide, "that if the line

SOS EAILKOADS.

of the railroad pass any turnpike road or public highway, then (except
when otherwise provided by the special act), either such road shall be
carried over the railway, or the raihvay shall be carried over such road
bv means of a bridge." See Southeastern Bailway v. The Qiieen, 17
Ad. & El. (N. S.) 485. It is also provided that whenever the railway
does pass any such road upon a level the company shall maintain
gates, at every such crossing, either across the highway or the railway
in the discretion of the railway commissioners, and employ suitable
persons to tend the same, who are required to keep them constantly
closed except when some one is actually passing the highway or rail-
way as the case may be. Railw. Clauses Consol. Act, § 47. And see
Reg. V. East <& West, etc., Railway Co., 2 El. & Bl. 466 ; Northam,
etc., Co. V. London, etc.. Railway, 6 Mees. & W. 428. And where a rail-
way company construct their line across a highway on a level under the
sanction of an act of parliament, it is their duty to keep the crossing in
a proper state for the passage of carriages across the rails, and if a carriage
is damaged in consequence of the rails being too high above the surface
of the railway, the company is liable. Oliver v. Northeastern Railway
Co., L. R., 9 Q. B. 409 ; S. C, 9 Eng. R. 350. And see Reg. v. Ely,
15 Q. B. 827. And where a railway passes a highway near a station,
on a level, the trains are required to slacken their speed, so as not to pass
the station at any greater speed than four miles an hour. Railw.
Clauses Consol. Act, § 48.

ARTICLE lY.

LIABILITIES IN EEGAED TO OFFICERS, AGENTS AND SERVANTS.

Section 1. In general. The courts have generally been disposed
to give the servants and agents of railway companies a large and liberal
discretion, and to hold their companies liable for all their acts within the
most extensive range of their charter powers. The principle of respon-
deat superior is held to be applicable. See Sherman v. Rochester, -etG.,
Railvnay Co., 15 Barb. 574, 577; Noyes v. Rutland, etc., Railway
Co., 27 Vt. 110 ; Derby v. Phila., etc., R. R. Co., 14 ilow. (U.
S.) 468. And see ante, tit. Master and Servant. The party em-
ploying has the selection of the party employed, and it is reasonable
that lie wlio has made clioice of an unskillful or careless person to
execute his orders should l)c responsible for any injury resulting from
the want of skill or want of care of the person employed. Tlohhlt v.
London, etc.. Railway, 4 Exch. 255. But neither the principle of the
nalc nor the rule itself can apply to a case where the party sought to be

RAILROADS. 309

charged does not stand in the character of emplojer.to the party by whose
negligent act the injury has been occasioned. Id. And it is now to
be regarded as a well-settled rule that the original employer cannot be
held responsible for acts of negligence committed by a sub-contractor,
or his servants over whom he has no control {Hilliard v. Richardson,

3 Gray, 349 ; Milligan v. Wedge, 12 Ad. & EL 737; Overton\. Free-
man, 11 C. B. 867 ; S. C, 8 Eng. L. & Eq. 479 ; BUckwell v. Wis-
wall, 24 Barb. 355 ; S. C, 14 How. 257) ; unless the work to be done
would necessarily produce the injuries complained of, or unless he au-
thorized or permitted a nuisance upon his premises. King v. Liver-
mare, 9 Hun (N. Y.), 298 ; Bush v. Steinmcm, 1 B. & P. 404 ; Emv-
dleson v. Murray, 8 Ad. & El. 109 ; Ellis v. Sheffield Gas Consumers^
Co., 2 El. & Bl. 767 ; S. C, 22 Eng. L. & Eq. 198. See Fish v. Dodge,

4 Denio, 311. Thus, a railway company, which has let by contract the
entire work of constructing its road, and has no control over those em-
ployed in the work, is not liable for injuries to a third person, occasioned
by negligent acts in doing the work of those thus employed, such as
blasting in a manner to throw rocks upon the lands of another. Mc-
Cafferty v. Spuyten Buyvil, etc., R. R. Co., 61 N. Y. (16 Sick.) 178 ;
S. C, 48 How. 44 ; 19 Am. Rep. 267. See, also. Steel v. Southeastern
Railway, 16 C. B. 550 ; S. C, 32 Eng. L. & Eq. 366 ; Ca/rman v.
Steuhenville, etc.. Railway, 4 Ohio St. 399 ; Kansas Central Rail-
way Co. V. Fitzsimmons, 18 Kan. 34 ; Thompson v. New Orlea/ns,
etc., Railvjay, 10 La. Ann. 403. But where the servant of a con-
tractor, while engaged on the work, receives an injury from a passing
train of the company through the fault of their servants, and without
his own fault, he may sustain an action against the company. Yov/ng
v. New York Central Railway, 30 Barb. 229. See, also, C'mcinnati
V. Stone, 5 Ohio St. 38. And where a railway company was authorized
by an act of parliament to erect a bridge across a navigal:)le river, but
not in such a manner as to detain vessels longer than while persons and
teams ready to cross the bridge were passing over, and during the con-
struction of the work by a contractor, by some defect of construction,
the bridge could not be raised, and the plaintiff's vessel was detained,
the company was held responsible for the detention. Hole v. Sitting-
hourne, etc., Railvmy Co., 6 H. & N. 488.

§ 2. Officers. The president of a railway company may perform acts
of an ordinary nature, which, by usage or necessity, are incident to his
office, without special authority. Chicago, etc. , R. R. Co. v. Coleman,
18 lU. 297. But he cannot, by virtue of the power inherent in his
office, dispose of the personal property of the corporation, without
special authority from the board of directors. Walworth, etc., Bank

310 EAILROADS.

V. Farmers, etc., Co.,- 14 Wis. 325. And see Pittsburg, etc., R. H. Co.
V. BarTcer, 29 Penn. St. 160. Where a tariff of fares of freight and
passengers upon a railway are established and posted up by the presi-
dent of a company, and are acted upon in transacting the business of
the company without objection, the consent of the corporation will be
presumed. Hilliard v. Goold, 34 IST. H. 230.

Where the president of a railway company undertakes to perform
for the company a service not strictly within the sphere of his duties
as president thereof, he should require a stipulation for remunei-ation
for such service, if he expects to recover it from the company. Thus,
in the absence of an agreement promising extra compensation there-
for, he cannot recover for his services in directing and superintending
the construction of buildings or works for the company ; but his serv-
ices will be deemed rendered in performance of his duties as president.
Levisee v. Shrevej)ort City B. B. Co., 27 La. Ann. 641.

The board of directors of a railway company may ordinarily do any
act, in the general range of its business, which the company can do,
unless restrained by the charter and by-laws. Whitwell v. Warner,
20 Yt. 425 ; 1 Eedf. on Railw., § 135, subd. 1. In all matters pertaining
to the construction of its road and the acquisition of the roadway, the
director is bound to act as the representative and for the benefit of the
company. He cannot, therefore, acquire for himself property which it
is his duty to acquire for the company, and which is necessary for its
purposes. In respect to such dealings, he stands iq^on the same foot-
ing as an ordinary trustee. Blake v. Buffalo Greek B. B. Co., 56 N.
Y. (11 Sick.) 485 ; Oilmon, etc., B. B. Go. v. Kelly, 77 111. 426. Nor
can the director become the purchaser of the property of the company
upon a sale under an execution against it, except subject to its right to
disaffirm and to demand a resale. Hoyle v. Plattshurg, etc., B. B.
(7o.,54N.Y. (9 Sick.) 314; S. C, 13 Am. Rep. 595. Where, however,
the director is also an execution creditor, he has the right to sell under
his execution. Id.

§ 3. Agents. See ante, tit. Master and Servant ; also tit. Com-
raon Carriers, vol. 2. A railway company acts through the instrument-
ality of its officers and agents, and if not prohibited by its charter, the
company may delegate its authority to its officers and agents, so far as
may be necessary to effect the purposes of its creation. Washburn v.
Nashmlle, etc., B. B. Co., 3 Head (Tenn.), 638 ; Alabama, etc., B. B.
Co. v. Kidd, 29 Ala. 221.

Statifjii iigonts are to be presumed to have power to make contracts
for their railroads for the transportation of freight. Pruitt v. Ilanni-
hal, etc., B. 11. Co., 02 Mo. 527. And a railway company was held to

KAILKOADS. 311

be bound by a promise of their station agent to a shipper to forward
his freight without delay, although the agent testified that he only had
charge of the receiving and forwarding, and had no authority to make
contracts of affreightment, and no control of the locomotive power of
the road. Deming v. Grand Truiik R. R. Co., 48 ]^. 11. 455 ; S. C,
2 Am. Rep. 267. So, the company is bound by tlie contract of one of
its freight agents to give a shipper of goods notice of their arrival at
the place of destination. Tanner v. Oil Creek R. R. Co., 53 Penn.
St. 411. And the company has likewise been held hable for the dam-
age occasioned by the fraud or negligence of its agent, who from im-
proper motives or against the usage of the company deprives a person
of his rightful facilities for transportation. Galena, etc., R. R. Co. v.
Ra^, 18 111. 488. And it has long been settled law, that a railway com-
pany is liable for the torts of its agents, committed in the discharge of
the business of their employment, and within the proper range of such
employment. Queen v. Rirminghatn, etc., Raihoay, 3 Ad. & El. (^.
S.) 223; Fhila. R. R. Co. v. Wilt, 4 Whart. (Penn.) 143; Hays v.
Houston, eto., R. R. Co., 46 Tex. 272 ; Nevj Orleans, etc., R. R. Co. v.
Burhe, 53 Miss. 201 . But it has been claimed that the company is not
liable for the vnllful wrong of its agent or servant. Id. ; DeQamp v.
Mississippi, etc., R. R. Co., 12 Iowa, 348. But see Whiteman v.
Wilmington, etc., R. R. Co., 2 Harr. (Del.) 514 ; Terre Haute, etc., R.
R. Co. v.Crraham, 46 Ind. 239 ; Rounds v. Del. Lack., etc., R. R. Co.,
64 N. T. (19 Sick.) 129 ; S. C, 21 Am. Rep. 597. In the case last cited
it is held that, where a master claims exemption from liability for the tor-
tious act of his servant while apparently engaged in executing his orders
upon the ground that the servant was in fact pursuing his own purpose
without regard to his master's business, and was acting willfully and
maliciously, it is ordinarily a question to be determined by the jury.
See ante, tit. Master and Servant.

§ 4. Conductor. A railway company is not liable for damages
resulting from a willful and malicious trespass committed upon a
stranger to the company by its conductor, outside of and beyond the
scope of his authority or line of duty. Porter v. Chicago, etc., R. R,
Co., 41 Iowa, 358 ; New Orleans, etc., R. R. Co. v. Harrison, 48
Miss. 112 ; S. C, 12 Am. Rep. 356. An action may, however, be
maintained against the company for the acts of its conductor in
wrongfully ejecting from the train a passenger who refuses to
pay the fare demanded. Such acts are within the scope of the
conductor's agency. Terre Haute, etc., R. R. Co. v. Fitzgerald, 47
Ind. 79. And see Baltimore, etc., R. R. Co. v. Blocker, 27 Md.
277. But where a railroad conductor, acting in what he believes to be

812 RAILROADS.

the performance of his duty to the company, removes a passenger who
refuses to produce a ticket or to pay fare, although the removal be un-
lawful, the company is liable only to compensatory damages. Town-
send^. New York Central, etc., R. R. Co., 56 N. Y. (11 Sick.) 295;
S. C, 15 Am. Rep. 419. See Yol. 2, p. 88, et seq. A conductor agree-
ing to put a passenger off at a place not a regidar station, is bound to
stop the train at that place, so that the passenger can get off in safety,
even though his ticket is only to the last station passed before reach-
ing it, additional fare being receivable if demanded. Westsrn R. R.
Co. V. Young, 51 Ga. 489. If a passenger pays his fare to a certain station
and the ticket agent inadvertently gives him a ticket to an intermediate
station, the demand of fare a second time by the conductor will be a
breach of the implied contract on the part of the company to carry
Mm to the proper station. By paying on such demand, his right of
action against the company will be as complete as if he resists the de-
mand and suffers himself to be ejected. Chicago, etc., R. R. Co. v.
Griffijn, 68 111. 499. Where one purchased a ticket indorsed " good
for this day only," upon the ticket agent's representations that the
conductor would give him a stop-over check thereon, it was held that
the conductor, when informed by him of such promise and of the de-
sire to stop over, was not authorized to expel him from the train with-
out first offering to return the excess of fare paid or to deduct it from
the fare demanded, although the rules of the company prohibited
passengers from stopping over upon such tickets. Burnham v. Grand
Trimk R. R. Co., 63 Me. 298 ; S. C, 18 Am. Rep. 220. But see
McClure v. PJdla., etc., R. R. Co., 34 Md. 532 ; S. C, 6 Am. Rep.
$45; Dietrich v. Penn. R. R. Co., 71 Penn. St. 432; S. C, 10 Am.
Ilep. 711; Elmore \. Sands, 54 K Y. (9 Sick.) 512; S. C, 13 Am.
Rep. 617 ; Shedd v. Troy, etc., R. R. Co., 40 Yt. 88.

The negligence of the conductor of a train in putting or assisting a
person off the cars is the negligence of the corporation owning or
operating the road, and an allegation of such negligence of a conductor
is a sufficient charge of negligence against the company. Coluinhus,
ete., It. R. Co. V. Powell, 40 "ind. 37^

Railway companies have the right to make a complete separation
between their freight and passenger business, and where this is done,
the coiuhictor ofafreiglit train has such general authority only as is
incidental to the ]>usineBS of moving freight, and no power whatever as
to the transjxtrtation uf ])assengers. And notice of tliis limited au-
thority will be implied from the nature and apparent division of the
business. Eaton v. Delaware, etc., R. II. Co., 57 N. Y. (12 Sick.)
382; S. n., !.-> A,n. Re]). 513.

EAILEOADS. 313

The position of station agent or of conductor affords no presumption
of authority to employ a physician at the expense of the company to
attend to one of its servants injm-ed by its cars Atlantic^ etc., R. M.
Co. V, Reisner, 18 Kans. 458; Tucker v. St. Louis, etc., Railway Co.,
64 Mo. 177 ; Cox v. Midland Counties Railway, 3 Exch. 268. And
an action of trespass does not lie against a railway company for injury
to animals run over by its cars or engines, unless the act was done by
the company's direction or assent, and it is held that for such assent
the conductor, engineer or other subordinate agent who has charge of
the train at the time is not the representative of the company. Selma,
etc., R. R. Co. Y. Well, 49 Ala. 240.

Assumpsit by a railway company will lie against a former conductor
of its road, to recover the amount of extra fares omitted to be collected
by him, although such neglect has occurred with the consent of the
superintendent, but without the knowledge of the directoi's. Concord,
Railroad v. Clougli, 49 N. H. 257. Assumpsit will likewise He to
recover of an agent profits made by him in buying and selling, with
like consent of the superintendent, but without the knowledge of the
directors, joint tickets issued by other roads under a contract with the
road employing him, entitling the holder to a passage over such
road. Id.

§ 5. Superintendent. If the superintendent of a railway company
is clothed with the power and authority of the board of directors,
so far as regards the control and management of the trains, and all
the arrangements connected therewith, he is the immediate represent-
ative of the company, and the company is liable for an injury re-
sulting from the negligence or improper order of the superintendent,
just as much as if such order had emanated directly from an act of
the company in its corporate capacity. Washburn v. Nashville, etc.,
R. R. Co., 3 Head (Tenn.), 638.

And it is held that a promise to pay for medical attendance, and
nursing rendered to a servant of a railway company, injured in the
discharge of his duty upon the road, is presumed to be within the
general powers of the superintendent, and will bind the company.
Toledo, etc., R. R. Co. v. Rodrigues, 47 111. 188. See, also, Toledo,
etc., R. R. Co. V. Prince, 50 id. 26 ; Atlantic, etc., R. R. Co. v.
Reisner, 18 Kan. 458 ; Walker v. Great Western Railway Co., L. B.,
2 Exch. 228. But see, on this point, Marquette, etc., R. R. Co. v.
Taft, 28 Mich. 289. And it has been held that the superintendent of
a railroad had no authority to bind the company by the employment
of a physician or surgeon to attend upon a child which had been run
over by a car, and severely injured. Ste_phenson v. New York <&
YoL. Y.— 40

314 KAILROADS.

Harlem B. R. Co., 2 Duer (N. Y.), 341. And see Shriver v. Stevens,
12 Penn. St. 258.

If the superintendent, at the request of the company, before work
is commenced in the field, performs services not technically within the
line of a superintendent's duty, it will be presumed that in rendering
them he acted in his capacity as superintendent. Bee v. SdLn Fran-
cisco, etc., B. B. Co., 46 Cal. 248.

§ 6. Employees and laborers. Where a railway company permits
its engineers to allow their firemen to handle the locomotives, and
damage is caused by the incompetency of a fireman temporarily in
charge of a locomotive, the company is liable therefor. Harper v.
Indianapolis, etc., B. B. Co., 47 Mo. 567 ; S. C, 4 Am. Rep. 353.
See ante, tit. Master and Servant ; also, tit. Negligence. And
it is held generally that where the servants of a railway company,
while in the discharge of their duties, pervert the appliances of the
company to wanton and malicious purposes to the injury of others, the
company is liable for such injuries. Chicago, etc., B. B. Co. v. Hick-
son, 63 111. 151 ; S. C, 14 Am. Rep. 114; Peck v. Neio York, etc.,
B. B. Co., 8 Hun (N. Y.), 286. And where the employees of a rail-
way company, in removing a passenger from its train for his refusal to
pay more than the maximum prescribed by statute, commit a wanton
and aggravated assault upon him, which is either authorized or
approved by the company, a proper case is presented for exemplary
damages. Hinckley v. Chicago, etc., B. B. Co., 38 Wis. 194. See
ornate, 311, § 4.

But the company is not responsible for the acts of its employees
in creating a nuisance by using a culvert under the railroad near
the residence of the plaintiff, for the purposes of a privy. Hop-
kins V. Western Pacif. B. B. Co., 50 'Cal. 190. And it is held that
the declarations or admissions of an agent or employee concerning the
infliction of a personal injury upon a passenger on a railway train
made the same night, but after the injury, is not admissible against
the company. Neither can the acts of an agent, done after tlie event
to which they relate has transpired, not within the scope of his services,
be admitted to bind his principal. Pittsburg, etc., B. B. Co. v.
Theohald, 51 Ind. 246.

A special receiver or assignee of the property of a railway com-
pany, appointed in })ankruptcy proceedings, involuntary on its part,
is not an agent or servant of the company, and the company is not
liable for damages occasioned by his negligence while operating the
road, Metz v. Buffalo, etc., B. B. Co., 58 N. Y. (13 Sick.) 61 ; S. C,
17 Am. Rep. 201. It has, however, been liold tliat an assignee or re-

EAILEOADS 316

ceiver in bankruptcy of a railroad corporation, who operates the road
under the order of the court, is not personally liable for an injury
caused by the negligence of a servant employed by him, in the absence
of evidence that he was negligent in the selection of servants or that
he held himself out as operating the road otherwise than as receiver.
Cardot v. Barney, 63 N. Y. (18 Sick.) 281 ; S. C, 20 Am. Rep. 533.
And see Camp v. Barney, 6 N. Y. Sup. Ct. (T. & C.) 622 ; S. C, 4
Hun, 373 ; Kain v. Smith, 11 id. 552 ; Henderson v. Walker, 55 Ga.
481. But it was held in Meara v. Holhrook, 20 Ohio St. 137 ; S. C,
5 Am. Rep. 633, that the receiver operating the road is answerable
in his official capacity for an injury to a servant employed on the road,
by reason of the negligence of the receiver, or the negligence of his
agents in a position superior to that of the servant. And see ante,,
Yol. 2. p. 10.

ARTICLE Y.

EIGHTS, DUTIES, AND LIABILITIES IN MANAGEMENT OF ROAD.

Section 1. In general. Much that relates to the rights, duties and
liabilities of railway companies in the management of their roads, that
might, with propriety, be placed under the present head, has already
been .disposed of under other titles, and need not be repeated in this
connection. References to the appropriate titles will be given in the
following sections.

§ 2. Carrying goods, etc. See ante, Yol. 2, p. 11 et seq. ; id. 23,
59. See, also, ante, tit. Negligence. In a recent case in New
York, where the agent of a railway company, having authority to is-
sue bills of lading, upon delivery to him by M. of a forged warehouse
receipt, gave M. bills of lading for the goods mentioned in the receipt,
knowing that he intended to raise money on the bills, and the plaintiff
advanced money to M. upon the surety of the bills, it was held that the
company was bound by the acts of its agent, and was estopped from deny-
ing the receipt of the goods. Armmcr v. Michigan Central B. B. Co., 65
K Y. (20 Sick.) Ill ; S. C, 22 Am. Rep. 603. But in a recent Mary-
land case, where the station agent of a railway company, having
authority to sign biUs of lading, fraudulently signed and issued a bill
of lading for goods never received for transportation, and the consignee
therein made advances on the faith of such bill, it was held that the
company was not liable therefor. Baltimore, etc., B. B. Co. v. WilJcens,
44 Md. 11 ; S. C, 22 Am. Rep. 26. And see Schooner Freemayi v.
Bxickingham, 18 How. (IT. S.) 182 ; Brown v. Powell Coal Co., L.
R, 10 C. P. 562; S. C, 14 Eng. R. 420.

316 RAILKOADS.

§ 3. Right to tolls. The right to take tolls, freight, and fares, can
only be exercised by corporations under an express grant in their char-
ters, and can never be raised by implication. And in questions arising
under railway charters, as to the right to take freight or tolls, or the
quantity thereof, courts have uniformly construed the charter most in
favor of the public and most against the company. Camden^ etc., R.
R. Co. V. Briggs, 22 ]!!^. J. Law, 623 ; Barrett v. Darlington, etc.,
Railway Co., 2 M. & G. 134 ; S. C, 7 id. 870. The charter fre-
quently fixes the maximum of freight and fare which it shall be law-
ful for the company to receive ; and a provision limiting the charges
of a railway company impliedly excludes objection to charges which
are withm the limit, on any allegation that they are unreasonable.
Chamblas v. Phila., etc., R. R. Co., 4 Brewst. (Penn.) 563. But an
agreement by the company to carry goods for one person at a cheaper
rate than for another under the same conditions, is held to be void as
creating an illegal preference. Id.. Messenger v. Penn. R. R. Co., 36
N. J. Law, 407 ; S. C, 13 Am. Eep. 457 ; S. C. affirmed, 37 K. J. Law ;
531; 18 Am. Eep. 754. But see Fitchburg, etc., R. R. Co. v. Ga^e, 12
Gray, 393. The State has power to limit the amount of charges by
railway companies for fares and freights, unless restrained by some
contract in the charter, even though their income may have been
pledged as security for the payment of obligations incurred upon the
faith of the charter. Peik v. Chicago, etc., R. R. Co., 94 U. S. (4 Otto)
176 ; Munn v. Rlinois, id. 113.

"Where the charter provided " that the toll on any species of property
shall not exceed an average of four cents per ton per mile, nor upon
each passenger an average of two cents per mile," it was held that
the ctjmpany might charge for transportation in addition to the toll.
Boyle V. Philadelphia, etc., R. R. Co., 54 Penn. St. 310. And see
Ilersh V. Northern Central R. R. Co., 74 id. 181 ; Cumherland Valley
R. R. Co's Ajpjjeal, 62 id. 218. Where the charter authorized the
company " to charge for the transportation of passengers at a rate
not exceeding 7^ cents per mile, and for the transportation of goods
by weight not exceeding 50 cents per 100 pounds per 100 miles," it
was held that for heavy articles the company could only charge for the
actual distance of transportation, the rateahowed by the charter. Knox
v. South Carolina R. R. Co., 5 S. C. 22.

Freights upon a railway miy be established by the directors or by
their agents, and tlieir assent will be presumed, if nothing appear to
the contrary. And where the directors are required to establish
freights, and tliey do establish a ])rinted tariff, that is to be regarded as
th<; original ; and wliore copies of siicli tariff arc requireil to be posted at

KAILEOADS. 317

the depots or stations of the company, that affords sufficient excuse for
the absence of such copies to justify the admission of secondary evi-
dence. Manchester, etc., R. R. Co. v. Fish, 33 IS". H. 297.

The right of a railway company to estabhsh two rates of fare, dis-
criminating between the cases where the ticket is purchased of a con-
ductor upon a train, and where it is purchased at a ticket office, has
been repeatedly recognized. See Chicago, etc., Railway v. Parks, 18
HI. 460 ; HilUard v. Goold, 34 JST. H. 230 ; Oroclcer v. New London,
etc., Railway, 24 Conn. 249 ; Indianapolis, etc., R. R. Co. v. Rinard,
46 Ind. 293. And the passenger is held to be bound by a by-law
making such discrimination, whether he knew of it or not. State v.
Goold, 53 Me. 279. Nor is the company bound to keep its ticket
offices open at or for any particular time, and the fact that a passenger
is unable to procure a ticket in consequence of the office being closed,
will not entitle him to be carried to his place of destination upon pay-
ment of the amount for which he could have procured a ticket at the
office, had it been open. Bordeaux v. Erie Railway Co., 8 Hun (N»
Y.), 579. But see, on this point, St. Louis, etc., R. R. Co. v. South,
43 ni. 176, where it was held that the right of a railway company to
discriminate between fares paid in the cars and at the stations was de-
pendent upon the fact that a reasonable opportunity had been afforded
for procuring tickets at the lower rate. See, also, St. Louis Railway
Co. V. Myrtle, 51 Ind. 566. And where a railway company fixed a
ticket-rate and a car-rate of passenger fare, the former below and the
latter above the rate authorized by law, it was held not to be neces-
sary, in order to entitle a passenger to remain on the train, to tender
more than the ticket fare. Smith y. Pittsburg, etc., R. R. Co., 23
Ohio St. 10.

A mere threat by a conductor to eject a passenger from a train
unless the passenger should pay a small amount in addition to the
regular fare because unprovided with a ticket, even though he had
tried to procure the ticket and found the ticket office closed, does not
entitle him to punitive damages. In the absence of malice or wanton-
ness on the part of the conductor in such case, the passenger would be
entitled to recover only the amount paid in excess of the regular fare
with interest. Pains v. C R. I. (& P. Railway Co., 45 Iowa, 569.

Under the New York statute, which imposes a penalty on railwaj'
companies for extorting excessive fares, a recovery can be had by a party
who has paid the excessive fare when riding in expectation of being
overcharged, and simply for the purpose of obtaining the penalty.
Fisher v. New YorTc, ^etc, R. R. Co., 46 N. Y. (1 Sick.) 644. Under
the statute of Iowa, a party may recover in a single action both the

318 RAILROADS.

penalty for overcharging and the amount wrongfully collected. Fuller
Y. Chicago, etc., R. R. Co., 31 Iowa, 187.

In an action to recover tolls due a railway, it is not necessary to de-
clare for tolls as such. Any description, in suitable terms, which
serves to identify the nature of the service for which compensation is
demanded, is sufficient. Mcmchester. etc., R. R. v. Fisk, 33 N". H.
297.

A charter provision that a railway company shall pay a certain tonn-
age to the State upon all freight transported by it, is only a mode of
taxation and does not conflict with any provision of the Constitution of
the United States securing to congress the exclusive power of regulat-
ing commerce with foreign nations and among the States, and prohibit-
ing the States, without the consent of congress, from levying duties on
imports and exports. The company, by accepting the charter contain-
ing such a provision, virtually made an express contract to perform it
and have no just cause of complaint treating the provision either as a
law or contract. Pennsylvcmia Railway Co. v. Commonwealih 3
Grant's (Penn.) Cas. 128.

§ 4r. Delivery of goods. Railroad corporations, engaged in the
transportation of property, are subject to the absolute responsibility,
which, by the common law, rests upon common carriers, and are,
therefore, except as against loss or injury occasioned by the act of God
or of a public enemy, insurers of the safe transportation and delivery
of the ])roperty intrusted to them for carriage. FitcKburg, etc., R. R.
Co. V. Hanna, 6 Gray, 539 ; Ileinernan v. Grand Trunk Railway
Co., 31 How. (K Y.) 430; Chicago, etc., R. R. Co. v. Ames, 40 111.
249 ; Pruitt v. Ilanndbal, etc., R. R. Co., 62 Mo. 527 ; Rogers Loco-
motive, etc.. Works v. Erie Railway Co., 20 IST. J. Eq. 379. As a general
nile, the delivery of the goods must be made to the owner or consignee
personally at the place where the transportation ends, and from this
duty the company can only be discharged by a special contract or proof
of an opposite usage. Schroeder v. Hudson River R. R. Co., 5 Duer
(X. y.), 55 ; Leavenworth, etc., R. R. Co. v. Maris, 16 Kans. 333.
The lialjility does not terminate upon the arrival of the car containing
the goods at the place of destination, and the placing of such car inside
tlic carrier's freight dc[>ot, and if the goods are desti'oyed by fire
while so placed in such depot, the carrier is liable. Chicago, etc., R.
R. Co. V. Bensley, 69 111. 630. See, also. Central R. R. Go. v. Smith,
54 Ga. 499. But if goods are permitted by the consignee to remain
eiglit days in the depot of the carrier at the place of delivery, that is
lnl'l to 1)1! more than a reasonable time, aiid if the goods are tlieii lost
<'r <l(;Htroyed without any negligence on the part of the carrier, the

EAILROADS. 319

earner is not responsible. Lea/oenworth^ etc., R. R. Co. v. Maris, 16
Kans, 333. And see Lemke v. Chicago, etc., R. R. Co., 39 "Wis. 449 ;
Rice V. Ra/rt, 118 Mass. 201 ; S. C, 19 Am. Rep. 433 ; Cahn v. Mich-
igan, etc., R. R. Co., Tl 111. 96.

See, generally, as to the duty of common carriers witli respect to the
delivery of goods, Yol. 2, pp. 49 et seq.

§ 5. Delay in transportation or delivery. See Yol. 2, pp. 16
et seq. A railway company is bound to use diligence in forwarding
freight to its destination, and in case of unreasonable delay, they must
prove, in order to exonerate themselves, that the delay arose from some
cause other than their own negligence. Galena, etc., R. R. Co. v.
Rae, 18 111. 488. If the goods are delayed at the request of the con-
signor, the liability of the company during such delay is that of ware-
housemen only, St. Louis, etc., R. R. Co. v. Montgomery, 39 id.
335.

If a railway company make no special contract to deliver in any par-
ticular time, and a delay happens in the transportation in consequence
of an unusual press in business, the company having a reasonable
equipment for all ordinary purposes, and the goods being carried with
as much expedition as is practicable under the circumstances, they are
not liable for damages. Wibert v. New Yorh, et^., R. R. Co., 19
Barb. 36 ; Jones v. New York, etc., R. R. Co., 29 id. 633 ; East Ten-
nessee, etc., R. R. Co. V. Nelson, 1 Coldw. (Tenn.) 272. But for any
injury to the goods during the delay the company will be held liable.
Id. See Faulkner v. South Pac. R. R. Co., 51 Mo. 311.

The sudden and wrongful refusal of its employees to work will not ex-
cuse a railway company for failure to transport freight in the usual time.
Read v. St. Louis, etc., R. R. Co., 60 Mo. 199. And a railway company
was held liable for delay in forwarding grain accepted for shipment,
although the road was under military control, the probability of delay
on account of blockades on the side tracks and other hindrances being
known to the officers of the company at the time of accepting the
grain. Rlinois Central R. R. Co. v. Cohh, 64 111. 12S. See Yol.
2, p. 34.

§ 6. Loss of goods. See Yol. 2, pp. 23 et seq. Railway companies are
in general lia])le as common carriers for losses which occur in the trans-
portation of goods, but they are liable only as warehousemen if the goods
are destroyed after their safe delivery in the proper warehouse of the
company. Jackson v. Sacramento, etc., R. R. Co., 23 Cal. 268 ; N(yr-
xoaij Plains Co. v. Boston, etc., R. R Co., 1 Gray, 263 ; Francis v.
Dubuque, etc., R. R. Co., 25 Iowa, 60 ; Michigan, etc., R. R. Co. v.
Shurtz, 7 Mich. 515 ; New Jersey R. R. Co. v. Pennsylvania R. R.

320 RAILROADS.

Co. 27 N. J. Law, 100. The instructions of the owner or freightel",
as to the delivery of goods, must be obeyed, in which case no responsi-
bility for loss is incurred. Michigan, etc., R. R. Go. v. Bay, 20 111.
375. And where the plaintiff sent by a passenger train a quantity of
merchandise, expecting to go himself in the same train, but did not,
and the goods were iost without gross negligence in the carrier, or any
conversion by him, it was held that the carrier was not liable for the
loss. Collins V. Boston, etc., R. R. Co., 10 Cush. 506. Nor is a rail-
way company liable as a common carrier for the loss or destruction of
o-oods dei^osited on the roadside at a place where there was no regular
station, and no agent. Roadside deposits, made to save the trouble of
hauling to a regular depot, are at the risk of the owners until they are
put on a freight car. Wells v. Wilmvngton, etc., R. R. Co., 6 Jones
(K C), 47. See Yol. 2, p. 19.

An exception in a bill of lading, of losses by fire, does not exempt
the railway company from a loss from fire, which is directly attributa-
ble to the negligence of the company's agents, as where they kept the
property in an unsafe place, and it was thereby burned. Erie Rail-
way/ Co. V. Lockwood, 28 Ohio St. 358.

§ 7. Injury to goods. See vol. 2, pp. 29 et seq. If a railway com-
pany charters some of its cars to an individual, who loads them himself
and in his own way, the company is not liable, as a common carrier,
for any injury to the property in such cars arising from imperfect load-
ing. East Ten7iessee, etc., R. R. Co. v. Whittle, 27 Ga. 535.

Nor is a railway company liable for injuries inflicted by one horse
upon another while being carried in a car, if caused by the peculiar
propensities of the horses to fright, or bad temper, or by the fault of
their owner in attaching their halters or not removing their shoes.
Evans v. Fitchhurg R. R. Co., Ill Mass. 142 ; S. C, 15 Am. Rep. 19 ;
See Yol. 2, p. 32. But where a railway company undertakes to transport
live-stock, it is its duty to furnish good and sufficient cars for the pur-
pose, and, if it does not, and animals escape from defects in the cars,
beyond the terminus of its road, it will be liable for the loss, even
though there be a special contract limiting its liability to the end of
the road. India/ao/polis, etc.. Railway Co. v. Strain, 81 111. 504.

§ 3. Dangerous goods. It is the duty of the owner of dangerous
goods to inform the carrier of the character of such goods, when that
is essential to be known, cither on account of carrying the particular
goods safely, or of carrying them in such a manner that other goods
may not be damaged l)y coming in contact with them ; and for any de-
fault in this respect, the owner is liable, not only to the extent of any
damage accruing to the goods, but even beyond that. Hutchi/rison v.

RAILEOADS. 321

Quim, 5 C. B. (IS". S.) 149 ; 2 Redf. on Eailw., § 186, subd. 2 ; Far-
ra/at v. Barnes^ 11 C. B. (N. S.) 553. Thus, where a person caused
a carboy, containing nitric acid, to be delivered to a servant of a carrier,
in order that it might be carried by such carrier for him, and he did
not take reasonable care to make the servant aware that the acid was
dangerous, but only informed him that it was an acid, and the servant
was seriously injured by the bursting of the carboy while carrying it on
his back, the owner was held liable to the servant in an action for dam-
ages for such injury. Id. See, also, Hearne v. Gartoji, 2 El. & El. QQ.
See ante^ tit. Negligence.

§ 9. Stoppage in transit. See Yol. 2, p. 57 ; and see post, tit. Sale.
The interest which the carrier has in the vendor's right to stop goods
in transit arises only when he is required by the vendor, while the
goods are still in his possession, to redeliver them to him or some one
on his account. If the vendor's right to reclaim the goods still exists,
and the carrier refuses to redeliver them, or delivers them to the vendee,
he, and all persons claiming to retain them against the claim of the
vendor, become liable in trover for their value. Litt v. Cowley, 7
Taunt. 169 ; Syeds v. Hay, 4 Term E. 260. And see Harris v. Hart,
6 Duer (N. T.), 606 ; S. C. affirmed, 17 N. T. (3 Smith) 249 ; Schots-
mam. v. Lancashire, etc., Railway Co., L. E., 1 Eq. 349 ; Pontifex v
Midland Railway Co., 35 L. T. (N". S) 706 ; S. C, 25 W. E. 215.

§ 10. Lien for freight. See Yol. 2, p. 60 et seq. It appears to be
a well-settled doctrine that no right of lien for freight can grow out of
a wrongful bailment of the goods to a carrier. Rolnnson v. Raker, 5
Cush. 137. And see ante, tit Lien.

As against a consignee, knowing the regulation and usage of a rail-
way company to require certain kinds of goods to be unloaded within
twenty-four hours after notice to him of their arrival, the company as
warehousemen have a lien on the goods for storage after the twenty-
four hours have expired. Miller v. Mansfield, 112 Mass. 260.

§ 11, Carrier's insurable interest. Common carriers, being liable
for the goods which they have undertaken to carry, have a beneficial
and an insurable interest therein. And that interest will continue so
long as the liability of the carrier continues, even where they employ
other carriers. Chase v. Wash. Mut. Ins. Co., 12 Barb. 595. And
goods in the possession of carriers may be insured as " goods in trust
as carriers," and such an insurance will cover the whole value of the
goods. London, etc., Railway Co. v. Glyn, 1 El. & El. 652. See,
also, Propeller Commerce, 1 Black (U. S.), 574, 5S2.

In cases of insurance for the benefit of carriers, it is a sufficient alle-
gation of interest in the subject-matter, that the insurance was for the
Yol. Y.— 41

322 RAILKOADS.

benefit of the plaintifi as carrier, without alleging that he had paid the
owner of the goods their value, or for his interest therein. Van I^ai,ta
V. Security Ins. Co., 2 Sandf. (N. Y.) 490.

§ 12. Injuries to passengers. See Vol. 2, x^p. 63 to 78 ; also, o/nte,
tit. Negligence. As to injuries producing death, see Yol. 2, tit.
Death.

In general, the carrier of passengers is bound to exercise all possible
skill, foresight and care. But it is not more the duty of a railway-
company to transport its passengers safely, than it is of the passengers
to behave in a quiet and orderly manner. Pittsburgh, etc., R. R. Co.
V. Hinds, 53 Penn. St. 512. The passenger is boimd to conduct him-
self with due and ordinary prudence, such as a careful man would use
under the circumstances. He must not expose himself to a danger
which may be looked for in the ordinary conduct of the train, but he
is not required to place himself in what would be the safest place in
case of an accident. In other words, he is not bound to anticipate an
accident. Willis v. Long Island R. R. Co., 32 Barb. 398 ; S. C.
affirmed, 34 N. Y. (7 Tiff.) 670.

When a j)erson buys a ticket expressly for a particular train of cars,
and at the time of the purchase is informed by the agent of the com-
pany that the train will stop at the station for which the ticket is pur-
chased, he has a right to take passage on such train, and it is the duty
of the company to allow him to leave the train at that station. Pitts-
hurgh, etc., Railway Co. v. Nuzuin, 50 Ind. 141 ; S. C, 19 Am. Rep.
703. And the company has not discharged its duty or relieved itself
from liability to a passenger until it has stopped at the end of its jour-
ney a reasonable time for the passenger to get off the train in safety.
Jeffersonville, etc., R. R. Co. v. Parmalee, 51 id. 42. And it is the
duty of the company to observe the same care toward a drunken as
a sober passenger. Milliman v. New York, etc., R. R. Co., QQ N.
Y. (21 Sick.) 643. And in the absence of an express exemption, pro-
vided by contract, a railway company is liable for the consequences of
its own or its servants' negligence to persons traveling upon its trains
as messengers or agents of an express company, to the same extent as
to other passengers, although no charge is made for their fare. Blair
V. Erie Railway Co., ^)Q N. Y. (21 Sick.) 313 ; S. C, 23 Am. Eep.
55. And a mail agent, who is transported by the company under a
contract with the government to carry its mail agents free of charge,
may maintain an action against the company to recover damages for
injuries arising from negligence. Hammond v. Nortlieckstern R. R.
Co., 6 So. Car. 130.

EAILKOADS. 323

§ 13. Delay of trains. It is said that actions have repeatedly been
maintained in England against railways for not delivering passengers
within the stipulated time. See 2 Redf. on E-ailw., § 197, subd. 1.
And where a railway company advertised to run trains in a given
mode, and one who took an excursion ticket was injured by not find-
ing a return train on the day it was advertised, the company was held
liable for the injury thereby sustained. Ilaiocroft v. Great Northern
Railway, 8 Eng. L. & Eq. 362. And see Denton v. Great Northern
Railway, 34 id. 15-1 ; S. C, 5 El. & Bl. 860.

An action against a common carrier for a failure to stop at a particu-
lar place and take on board the plaintiff as a passenger according to
previous notice advertised to the public, is said to be founded in tort,
and not on a special contract. Ileirn v. McCaughan, 32 Miss. 17 ;
New Orleam,s, etc., R. R. Co. v. Rurst, 36 id. 660. x\nd the courts
from the general facts alleged in the declaration will put such a con-
struction upon the plaintiff's claim as is consistent with the facts and
the legal duty resulting from established legal principles. Id.

In awarding damages against a carrier for neglect to transport a pas-
senger according to contract the jury may allow a reasonable compen-
sation for the time lost by the plaintiff, although no specific evidence
of its value has been adduced. Ward v. Vanderhilt, 4 Abb. Ct. App.
(N. Y.) 521 ; S. C, 34 How. 144 ; 1 Keyes, 70. See Williams v. Voai-
derbilt, 28 N. Y. (1 Tiff.) 217 ; Benson v. N. J. Railway, etc., Co., 9
Bosw. (N. Y.) 412; Yonye v. Pacific Mail Co., 1 Cal. 353 ; Ramlin v.
Great Northern Railway, 1 H. & N. 408 ; S. C, 38 Eng. L. &
Eq. 335.

§ 14. Refusal to carry passengers. See Yol. 2, pp. 65 et seq. In
general, if the passenger is ready and willing and offers to pay the legal
fare when demanded by the conductor of the train, the railway com-
pany is bound to carry him, provided there is room in the cars and
the passenger is a fit person to be admitted. Tarhell v. Central Pacif.
R. R. Co., 34 Cal. 616 ; Bennett v. Button, 10 N. H. 486 ; Lidian-
apolis, etc., R. R. Co. v. Rinard, 46 Ind. 293 ; Tattan v. Great
Western Railway, 2 El. & El. 844. So, when the company makes con-
tracts beyond the limits of its own road, and holds itself out as ready
to do so with all, it becomes a common earner beyond its own limits,
and is bound to receive passengers when the proper fare is paid.
Wheeler v. San Francisco, etc., R. R. Co., 31 Cal. 46.

It is held that the mere purchase of a ticket for a railway journey does
not amount to a contract on the part of the company or impose upon
the company a duty to have a train ready to start at the time the pas-
senger is led to expect one. Hurst r. GreatWestem Railway, 19 C. B.

324 RAILROADS.

(N. S.) 310. But a passenger on a railway train, who exhibits his ticket
and demands a seat, has a right to have that demand complied with
before he can be required to surrender his ticket. Davis v. Kansas
City, etc., R, R. Co., 53 Mo. 317 ; S. C, 14 Am. Rep. 457. And it
has been held in New York that a railway company which exacts pay-
ment of the legal rate of fare in gold coin or the value thereof in paper
currency, is guilty of extortion, and is liable to a passenger for the
penalty provided for asking and receiving a greater rate of fare than
that allowed by law. Lewis v. N'ew York, etc., R. R. Co., 49 Barb.
330.

Where a person purchases a ticket, and takes his passage upon a rail-
way train, and after the train starts upon the road, he gives up his ticket
to the conductor, he cannot, at an intermediate station, by virtue of
his subsisting contract, leave such train while in the reasonable per-
formance of the contract, and claim a seat upon another train. Cleve-
land, etc., R. R. Co. V. Rartram, 11 Ohio St. 457. And his ticket or
check, even if retained, is no evidence of payment of fare in another
train. State v. Overton, 24 N. J. Law, 435 ; Denny v. JV. Y. Cent,
etc., R. R. Co., 5 Daly (N. Y.), 50. See Van Kirh v. Penn. R. R.
Co., 76 Penn. St. QQ ; S. C, 18 Am. Rep. 404.

§ 15, Ejection of passengers. See Vol. 2, pp. 88 et seq.; also ante,
318, art. 4, § 5. A passenger in the cars, who refuses to comply with
the reasonable regulations of the railway company, may be lawfully
ejected from the train, using no more force or violence than is neces-
sary, notwithstanding he has paid his fare. Havens v. Hartford, etc.,
R. R. Co., 28 Conn. 69. And see State v. Ross, 26 1S[. J. Law, 224 ;
Hanson v. European, etc., R. R. Co., 62 Me. 84 ; S. C, 16 Am, Rep.
404 ; Chicago, etc., R. R. Co. v. Flagg, 43 111. 364 ; Wew Orlemis, etc.,
R. R. Co. V. BurTce, 53 Miss, 201. And a passenger having been
ejected from a train for refusing to comply with the rules of the com-
pany, cannot demand, as matter of right, to be taken back again upon
complying with the rule violated, unless he be at a regular station, and
then and there obtain a ticket, or tender his fare. Nelson v. Long
Island R. It. Co., 7 Hun (N. Y,), 140 ; People v, Gilson, 3 Park. (N.
Y.) 224 ; O'Brien v. Boston, etc., R. R. Co., 15 Gray, 20,

A railway company has the right to require passengers to pay fare,
and a rule directing its conductors to remove from the cars those who
refuse to comply with tlic requirement is reasonable, SJielton v. Lake
Shore, etc., Railway Co., 29 Ohio St. 214. It is, however, the duty of
the agents of the company to ascertain whether a passenger has pur-
chased a ticket before ejecting him from the cars. Their negligence, in
this respect, cannot be pleaded or urged as a defense, nor considered in

RAILROADS. 325

mitigation of damages. If it afterward turns out that the passenger
had a ticket, then, no matter how much the agent was mistaken, or
how honestly he may have beheved that the passenger had not paid for
his ticket, or how little force was used in ejecting the passenger, the
act was nevertheless unlawful and wrong ; and for any injury, which the
passenger received on account of such expulsion, he is entitled to full
compensation in damages. Quigley v. Central^ etc., R. R. Co., 11
Nev. 350 ; S. C, 21 Am. Rep. Y57. See, also, English v. Delawa/t'e,
etc., Canal Co., QQ K Y. (21 Sick.) 454 ; S. C, 23 Am. Rep. 69.

The instruction of a railway company to its conductors not to allow
any person to ride in any freight car attached to their train renders the
company liable if a conductor ejects a person from a car improperly,
while the train is in motion. Holmes v. Wakefield, 12 Allen, 580.

§ 16. Using tracks of another road. See Vol. 2, p. Q%.

§ 17. Baggage. See Vol. 2, pp. 78 et seq., where the liability of
common carriers for the loss of baggage is fully discussed.

The delivery of a baggage check by a railway company to a passen-
ger \& prima facie evidence that the carrier has received the baggage
it represents. Chicago, etc., R. R. Co. v. Clayton, 78 111. 616. And
it is immaterial when baggage comes to the possession of the carrier,
whether at the time the check is issued or at a subsequent time. In
either case, its liability as an insurer becomes fixed in cases of a loss.
Id.

Baggage, for the loss of which a railway company is liable, includes
such articles only as may become necessary, convenient or ornamental
during the course of the passenger's journey, with such a reasonable
amount of money as will be required to meet his actual and contingent
expenses. Weeks v. New York, etc., R. R. Co., 9 Hun (N. Y.), 669.
But where a railway company receives a passenger's trunk, after being
advised that it contains articles of merchandise in addition to ordin-
ary baggage, and charges and receives for its transportation, because
of extra weight, a sum in addition to the ordinary fare, it is liable, in
case of failure to deliver, for the merchandise as well as baggage.
Per-ley v. New York, etc., R. R. Co., 65 N. Y. (20 Sick.) 37-4. The
liabihty, as carrier, for the baggage of a passenger, terminates on the
expiration of a reasonable time after the arrival of the train at the
place of destination, for the passenger to come or send for the baggage.
After that time, the company may store the baggage in their ware-
house and will hold it as warehousemen only. Chicago, etc., R. R.
Co. V. JBoyce, 73 111. 510.

The proprietors of sleeping cars, who only fm'nish sleeping accom-
modations for travelers who have paid for their transportation to the

326 EAILEOADS.

railvray company over whose road the sleeping car rnns, no part of
which pay for transportation is received by the owners of the sleeping
cars, are not carriers and cannot be held liable as such for property lost
by, or stolen from lodgers whilst on their cars. Pullman Palace Ca/r
Go. V. Smith, 73 111. 360.

§ 18. Regulations, notice, etc. See Vol. 2, pp. 85 et seq. One
who purchases a ticket, bearing on its face the words " good for this
day and train only," and dated of the day issued, can select any train
on that day he desires, to ride from, and to the places stated, but has
no right to ride part of the way on one train and the residue on an-
other train, and if he attempts so to do, an action will not He against
the company for the act of the conductor in putting him off the
second train. Gale v. Delaware, etc., R. R. Co., 7 Hun (N^. Y.), 670.
And see Shedd v. Troy, etc., R. R. Co., 40 Yt. 88. See, also, Hill v.
Syracuse, etc., Railioay Co., 63 K. Y. (18 Sick.) 101. But the words
"good for this trip only" on a railway ticket must be construed to
refer to the journey only, and not the time of making it, and if the
ticket has not been used, it entitles the holder to a passage between the
places designated on a day subsequent to the date of the ticket. Pier
V. Finch, 24 Barb. 514. But see Cheney v. Boston, etc., R. R. Co.y
11 Mete. 121.

A mileage ticket stipulated that it should be good only for a certain
period, and that, if presented after the expiration of that time, the
conductor should take up the ticket and collect fare, and it was held
that the use of the ticket a number of times, in violatian of the condi-
tion, would not estop the company to take it up and eject the passenger
from its train upon refusal to pay fare. Sherman v. Chicago, etc., R.
R. Co., 40 Iowa, 45. And see Powell v. Pittsburg, etc., R. R. Co.y
25 Ohio St. 70 ; Cramford v. Cincinnati, etc., R. R. Co., 26 id. 580.
So, a lay-over ticket gave the holder the rights of a passenger " if used
within five days from date," and it was held that the limitation was
valid and was not waived by the checking of the holder's baggage and
punching of the ticket by a baggage man of the company. Wents
V. Erie Railway Co., 3 Him (N. Y.), 241 ; S. C, 5 Sup. Ct. K Y.
(T. & C.) 556.

If a passenger, who has purchased a ticket which is silent on the
subject of his stopping over, stops over before he reaches the point to
which the ticket entitled him to ride, he cannot resume his journey on
that ticket. Drew v. Central Pacific R. R. Co., 51 Cal. 425.

§ 19. Negligence. See Vol. 2, pp. 63 et seq., also, ante, tit.
Negligence. In general, a railway company is bound in the conduct
of its trains to use such care and caution to prevent injury to persons

RAILKOADS. 327

or property as prudent and discreet persons would use and exercise
under the circumstances, and tlie absence of such care and caution con-
stitutes negligence. Northern Central li. R. Co. v. State., 29 Md.
420 ; Macon., etc, R. R. Co. v. Davis., 18 Ga. 679 ; Nashville, etc.,
R. R. Co. V. Messino, 1 Sneed (Term.), 220; Bass v. Chicago, etc.,
R. R. Co., 28 111. 9. A railway company owning its track is likewise
bound to diligence and watchfulness in the care of that as well as in
the care of their rolling stock. Virginia, etc., R. R. Co. v. Sanger.,
15 Gratt. (Va.) 230. In operating its road through the public streets
of a city, the company is held to the exercise of a very high degree of
care and must not omit any reasonable duty that may tend to the
safety of the public ( Wilson v. Gii/nningham, 3 Cal. 241 ; Chicago,
etc., R. R. Go. V. Stumps, 69 111. 409; Riclcs v. Pacific R. R. Co.,
64 Mo. 430) ; and in its capacity as a carrier of passengers, it is the
duty of the company to exercise the highest degree of care in the con-
struction and maintenance of its roadway and the appurtenances. See
Yol. 2, p. 63. And this rule applies irrespective of any distinction be-
tween different kinds of trains, whether passenger or freight trains.
Indianapolis, etc., R. R. Co. v. Horst, 93 U. S. (3 Otto) 291. But it is
not liable for injuries resulting from an accident against which the
highest degree of skill, foresight and diligence would have been una-
vaihng {Kansas Pacific R. R. Co. v. Miller, 2 Col. T. 442) ; nor for
injuries sustained by passengers in spite of extraordinary diligence ex-
ercised in their behalf by the agents of the company. Brunswick,
etc., R. R. Co. V. Gale, 56 Ga. 322. But as a common carrier of
goods, the railway company must show, in order to relieve itself of
liabihty, that the loss was occasioned by the act of God or the public
enemy. Jackson v. Sacramento, etc., R. R. Co., 23 Cal. 268. And
see Vol. 2, p. 24.

If a person stealthily, and without the knowledge of any of the
employees of a railway company, gets upon a train and secretes himself
for the purpose of passing from one place to another, no recovery can
be had from the company for any personal injury he may sustain.
Toledo, etc.. Railway Co. v. Brooks, 81 111. 245. Nor can a recovery
be had against the company for a personal injury to a passenger on its
train, or for his death, caused by mere negligence, when the passenger
knowingly and fraudulently induces the conductor to disregard his
duty and defraud the company out of the amount of his fare for his
own profit. Id. And it is held that a railway company is not liable
for damages sustained by a newsboy who is allowed free access to their
cars, merely because the injury might have been prevented by the at-

328 RAILROADS.

tention of their servants. Fleming v. Brooklyn City R. R. Co., 1
Abb. K C. (N. Y.) 433.

A passenger, injured in a collision caused by the negligence of the
employees of a railway company, is not, as a general rule, entitled in
an action against the company to recover damages beyond the hmit of
compensation for the injury actually sustained. Exemplary damages
should not be awarded for such injury, unless it is the result of the
willful misconduct of the employees of the company, or of that reckless
indifference to the rights of others which is equivalent to an intentional
violation of them. Milwaukee, etc., Railway Co. v. Ar7ns, 91 U. S.
(1 Otto) 489.

§ 20. Injuries to adjoining property. See ante, tit. Negli-
gence, All. 2, §§ 14 and 17. It is the duty of a railway company to
take all reasonable precautions to prevent the spread of fire from its
locomotives {St. Louis, etc., R. R. Co. v. Gilham, 39 111. 455 ; Toledo,
etc., R. R. Go. v. Corn, 71 id. 493 ; Troxler v. Richmond, etc., R. R-
Co., 74 N. C. 377 ; Fen7i. R. R. Co. v. Bope, 80 Penn. St. 373 ; S.
S., 21 Am. Rep. 100); and while property owners adjoining take the
risk of injuries unavoidably produced by fire used for generating
steam, yet, for any neghgence in the use of it, the company will be
liable. Burlington, etc., R. R. Co. v. Westover, 4 Neb. 268. And it
is held in recent cases that proof of the destruction of property, by
fire escaping from a locomotive, raises 2i. prima facie case of negligence,
which the defendant must rebut by showing the absence of negligence.
Id. ; Coale v. Hannibal, etc., R. R. Co., 60 Mo. 227 ; Spaulding v.
Chicago, etc., Railway Co., 30 Wis. 110; S. C, 11 Am. Rep. 550;
>6'^. Louis, etc., R. R. Co. v. Montgomery, 39 111. 335. See ante,
tit. Negligence, and see ante. Art. 3, § 3.

§ 21. Injuries to employees. See ante, tit. Negligence. It is
the duty of a railway company to keep its road and all portions of the
track in such repair, and so watched and tended as to insure the safety
of all who may lawfully be upon them, whether passengers or servants ;
and for its failure to do this, if its employees do not know of the de-
fects, and do not contract with express reference to them, the company
will be liable for such injuries as its employees may suffer thereby.
Chicago, etc., R. R. Co. v. Swett, 46 111. 197 ; Mad River, etc., R. R.
Co. V. Barber, 5 Ohio St. 541 ; Porter v. Hannibal, etc., R. R. Co.,
60 Mo. 160 ; Keegan v. Western R. R. Co., 8 N. Y. (4 Seld.) 175.
A railway company is likewise under an obligation toward its em-
ployees to exercise a high degree of care in furnishing suitaljle and safe
locomotives, machinery, etc., and an employee injured in consequence of
defects in these, without fault on his part, can recover damages from

RAILROADS. 329

the company. 'Wedgwood v. Chicago^ etc.^ R. R. Co.f 41 Wis. 478 ;
Toledo, etc., R. R. Co. v. Fredericks, 71 111. 294 ; Georgia, etc., R. R.
Co. Y. Goldwire, 56 Ga. 196. But it is not the duty of the company
to place one employee on the lookout to warn others of approaching
danger. It is their duty, without warning, to observe due care, and
this is a part of their undertaking, and any omission is at their peril.
Chicago, etc., Railway Co. v. Donahue, 75 111. 106 ; Johnson v. Wes-
tern, etc., R. R. Co., 55 Ga. 133 ; Way \. Rlinois Central R. R. Co.,
40 Iowa, 341.

So, a railway company is bound to provide proper servants ; and if,
acting through appropriate officers, it knowingly or neghgently employs
incompetent servants, it is liable for an injury occasioned to a fellow
servant after his incompetency is made knoAvn to its officers, or becomes
so manifest that its officers, using due care, woidd have known it. Gil-
Tnan v. Eastern R. R. Co., 13 Allen, 433 ; Chicago, etc., R. R. Co. v.
Doyle, 18 Kans. 59 ; Huntingdon, etc., R. R. Co. v. Decker, 84 Penn.
St. 419. But the company is exempt from liabihty to an employee for
injuries sustained by reason of the carelessness of other employees, if
the wantonness or carelessness of the plaintiff contributed in any de-
gree to the accident causing the injury {Hohen v. Burlington, etc., R.
R. Co., 20 Iowa, 562 ; Evansville, etc., R. R. Co. v. Dexter, 24 Ind.
411 ; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415) ; even though
he was acting under the orders of a superior. Western, etc., R. R. Go.
V. Adams, 55 Ga. 279.

§ 22. Injuries in crossing track. See ante, 316, Art. 3, § 7 ; also,
tit. Negligence, Art. 2, § 17. A railroad track is the exclusive property
of the company, and no person has a right to cross the track at any
other place than the usual crossing. Phil., etc., R. R. Co. v. Hum-
mell, 44 Penn. St. 375 ; Galena, etc., R. R. Co. v. Jacobs, 20 111. 478 ;
lUimxns, etc., R. R. Co. v. Godfrey, 71 id. 500 ; S. C, 22 Am. Rep.
112. But although persons on a railroad track at any other place than
a crossing are trespassers, regard must be had to the habits, character,
condition, and circumstances of a people H\'ing in a city and immediately
on the line of the road. Pennsylvania R. R. Co. v. I^ewis, 79 Penn.
St. 33. At a railroad crossing, neither the travelers upon the liighway,
nor the railway company, have an exclusive right of passage, but their
rights are concurrent. North Penn. R. R. Co. v. Heileman, 49 Penn.
St. 60 ; Rlinois, etc., R. R. Co. v. Benton, 69 111. 174. And both the
railway company and travelers on the highway are bound to use ordinary
care, that is, such care as each should be expected to use in such a dan-
gerous locahty. Cleveland, etc., R. R. Co. v. Terry, 8 Ohio St. 570.
And before a traveler, injured by a coUision, can recover damages of
YoL.Y.— 12

330 EATLEOADS.

the company, he must prove a greater degree of negligence on the part
of the company than on his own. Runyon v. Central R. R. Co.^ 25 N.
J. Law, 556; Chicago, etc., R. R. Co. v. Canffman, 38 111. 424;
Roclcford, etc., R. R. Co. v. Jlillmer, 72 id. 235 ; Steves v. Oswego,
etc., R. R. Co., 18 N.T. (4 Smith) 422. See Fletcher v. Atlantic, etc., R.
R. Co., 64 Mo. 484; Rockford, etc., R. R. Co. v. Bijam, 80 111. 528 ;
Cleveland, etc.. Railway Co. v. Elliott, 28 Ohio St. 340 ; Benton v.
Central R. R. Co., 42 Iowa, 192; New Orleans, etc., R. R. Co. v.
Mitchell, 52 Miss. 808 ; Brown v. Milwaukee, etc.. Railway Co., 22
Minn. 165 ; Hinckley v. Ca;pe Cod R. R. Co., 120 Mass. 257. Ante,
tit. Negligence.

A railway company neglecting to give, by bell, whistle, flag, bar, or
otherwise, a proper warning that a train is approaching a place where
its road crosses a highway at grade, is held liable in Massachusetts, to
one injured thereby, although the injury results not from a collision,
but from the fright, not guarded against for want of such warning, of
the horse he is driving. Norton v. Eastern R. R. Co., 113 Mass. 366.
See, also, Wakefield y. Conn., etc., R. R. Co., 37 Yt. 330; Jlill v.
Portland, etc., R. R. Co., 55 Me. 438 ; Culjp v. Atchison, etc., R. R.
Co., 17 Kan. 475 ; Hahn v. Southern Pacific R. R. Co., 51 Cal. 605.

The statute of Illinois only imposes a liability upon a railway com-
pany for neglecting to ring a beU or sound a whistle as its train ap-
proaches a crossing, for injury resulting from that neglect of duty.
Where it appears that the non-compliance with the statute did not re-
sult in injury, no cause of action will arise. Illinois Central R. R.
Co. V. Benton, 69 lU. 174. And it is held that the servants of a
railway company in charge of a moving train are not bound to stop
the train because a person in advance is walking near the track, and in a
line nearly parallel with it, or because a vehicle is seen slowly approaching
the track, or standing a few yards from it ; for they will have good reason
to suppose that the person so walking or in charge of the vehicle will not
attempt to cross until the train has passed. And should such person
suddenly get upon the track and get injured or killed in so doing, the
fault will not be with that of the company or its agents, unless their con-
duct be 80 grossly careless as that the exercise of proper and reasonable
caution by the l^arty injured or killed could not have protected him.
Chicago, etc., R. R. Co. v. Austin, 69 id. 426. See Isabel v. Uannibal,
etc., R. R. Co., 60 Mo. 475.

In New York a railway company is only required to give notice to
persons traveling on a highway which crosses its track, of the approach
of its train to the crossing by ringing the bell. It is not required to
keep a flagman at the crossing, and is only bound to operate its train

EAILROADS. 331

with the care called for by the peculiar circumstances. Culhane x.
New YorTc Central, etc., R. R. Co., 60 N. T. (15 Sick.) 133.

§ 23. Injuries to stray animals. See Yol. 4, tit. Negligence^ Art.
2, § 17. It has been held that where cattle are at large without tlie
fault of the owner, and stray upon the track of a railway, and are there
killed through the negligence of the company in the management of
its train, the owner is not precluded from the right to recover damages
by the fact that the cattle were trespassers on the road. Isbell v. New
York, etc., R. R. Co., 2Y Conn. 393. To produce that result, the owner
must have been guilty of actual negligence and not of a mere technical
wrong. Id. ; Baltimore, etc., R. R. Co. v. Mulligan, 45 Md. 486,
The proper inquiry in such cases is, whether the agents of the company
exercised reasonable and proper care, in running their engine to avoid
injury to the cattle of the plaintiff; and the facts and circumstances
bearing upon this question are for the exclusive consideration of the
jury. Central Ohio R. R. Co. v. Lawrence, 13 Ohio St. QQ. And see
Mobile, etc., R. R. Co. v. Hudson, 50 Miss. 572; Pacific R. R.
Co. V. Brown, 14 Kan. 469 ; RocTcford, etc., R. R. Co. v. Rafferty,
73 111. 58.

It has, however, been held in Massachusetts, that an estray animal,
going from a highway upon a railway track, where there is no cattle-
guard, although the corporation is bound to maintain one there, is a
trespasser ; and, if killed by a train, the corporation is not liable there-
for, unless there was reckless and wanton misconduct in the manage-
ment of the train. Darling v. Boston, etc., R. R. Co., 121 Mass. 118.

In those States where the rule of the common law, that every man
is bound to keep his beasts within his own close, is not in force, and
cattle may lawfully run at large, no person or corporation is held an-
swerable for the natural consequences of their intrusion into danger-
ous places ; and if they stray on the track of a railway company, and
are injured, the company is liable only if the reasonable exertions of
its agents could have prevented the injury. Richnond v. Sacrainento,
etc., R. R. Co., 18 Cal. 351 ; Zatos v. North Carolina R. R. Co., 7
Jones' (N. C.) L. 468 ; Blaine v. C. <& O. R. R., 9 W. Ya. 252.

Where a horse feeding near the track of a railroad became fright-
ened at the noise of an approaching train, and jumping upon the track,
ran along ahead of the train until he fell into an open culvert over
which the road passed, and was killed, and all proper means were used
by the engineer to prevent a collision, it was held that the company
was not liable. Brothers v. South Carolina R. R. Co., 5 So. Car. 55.

The failure on the part of a railway company to equip their cars
with suitable brakes renders them chargeable with negligence in running

332 KAILEOADS.

over animals which the use of such brakes might Have prevented.
Forhes v. Atlantic, etc., E. R. Co., 76 No. Car. 454

AKTICLE yi.

CONNECTED OK ASSOCIATED KAILKOADS.

Section 1. In general. It has been decided by the English courts,
that one railway corporation cannot lease its road, or give up the man-
agement of its line to another, nor delegate the powers conferred by stat-
ute, without the authority of the legislature . Winch v. Birkenhead^
etc., Railway Co., 13 Eng. L. & Eq. 506 ; Johnson v. Shrewsbury, etc.,
Railway, 3 DeG. M. & G. 914 ; S. C, 19 Eng. L. & Eq. 584 ; Shrews-
bury, etc., Railway v. London, etc., Railway, 6 H. L. 113 ; not even with
the assent of all the shareholders. Fast Anglian Railway v. Eastern
Counties Railway, 11 C. B. 775. But this may be done with the con-
sent of parliament. London, etc., Railway v. South Easterly Rail-
way, 8 Exch. 584. And where such contracts have been made, by
permission of the legislature, it has been held, in this country, that the
company leasing itself does not thereby escape all responsibility to the
public ; but that the public generally may still look to the original
company, as to all its obligations and duties, which grow out of its rela-
tions to the public, and are created by charter and the general laws of
the State, and are independent of contract, or privity between the party
injured and the railway. Nelson v. Vermont, etc., R. R. Co., 26 Vt. 717 ;
1 Eedf. on Kailw., § 142, subd. 3. And see Ingersoll v. Stockhridge,
etc., R. R. Co., 8 Allen, 438 ; Satoyer v. Rutland, etc., R. R. Co., 27
Yt. 370 ; Bower v. B., etc., Railway Co., 42 Iowa, 546 ; Davis v.
Providence, etc., R. R. Co., 121 Mass. 134.

§ 2. Contracts, how construed. A railway company, operating the
road of another company under a contract, is an agent of the latter
company within the meaning of the Michigan general railroad act ;
and the neglect by such agent of the duty to erect or maintain fences
along the line of the road, enjoined by the statute, will render the
company owning the road liable for all consequent damage. Bay City,
etc., R. R Co. V. Austin, 21 Mich. 390. So, where the proprietor of
a stage line contracted with a railway company to convey its passen-
gers from one terminus of the road to various points, upon through
tickets issued by the company at the other terminus of the road, it was
held that the proprietor of the stage line was the agent of the railway
company, and that the latter was liable for baggage lost on the stage
line. iVilsoT). v. Chesapeake, etc., R. I?. Co., 21 Gratt, (Va.) 651.

KAILROADS. 333

Where a railway company leases its road and all its lands, upon or
across which the road or any part thereof, or its machine shops, ware-
houses, freight or passenger depots, or buildings are constructed, such
lease includes all lands acquired for use in operating the road, and
without which the use of the road, or any part thereof, will be less conven-
ient and valuable. It was accordingly held that where the company had,
prior to the execution of such a lease, acquired title to a piece of land
for the purpose of use as a street in connection with its road, which
use would be highly beneficial to, and convenient for its business, that
the land was included in the lease, although such use had not been
actually ol)tained^ at the time of the execution of the lease, and that
where the land was condemned and taken under the statute by another
railroad, the lessee was entitled to the use of the money awarded as
damages for such taking during the continuance of the lease. Matter
of New YorTc Central R. R. Co., 49 N. Y. (4 Sick.) 414; reversing S.
C, 49 Barb. 501.

A mortgage of a railroad and its franchises made by permission of
the legislature does not confer on the mortgagee any greater rights
than the mortgagor had, nor affect the power of the legislature to alter
the franchises. Attorney- General v. Chicago, etc., R. R. Co., 35
Wis. 425.

A grant of power to a railway company to locate and construct
branch roads confers no authority to purchase and operate the road
of another company constructed under a different charter. Carnihell v.
Marietta, etc., R. R. Co., 23 Ohio St. 168. In the absence of any pro-
vision of law to the contrary, the road passes to the purchasing company
subject to the same restrictions as to rates chargeable for transportation
as attached to it in the hands of the vendor. Id.

A statute authorizing the appointment by the court of commissioners
to determine judicially what are the mutual rights and obligations of
any two railway companies authorized by their charters to connect
their roads, is held to be constitutional. Portland, etc., R. R. Co. v.
Chand Trunk Railway Co., 46 Me. 69.

Under the general railway law of New Hampshire, the track or other
property of one company may be taken by another, if it appear that
the public good requires such taking. Northern R. R. Co. v. Concord,
etc., R. R. Co., 27 N. H. 183.

Where the charter of a railway company provided that the company
might " make any lawful contract with any other railroad corporation
in relation to the business of said road," it was held that the object
of this permission was to enable such road to contract for the com-
mon use of so much of another road already constructed as lay within

334 KAILKOADS.

the limits of the road so chartered. Naugatuck R. R. Co. v. Water-
lury Button Co., 24 Conn. 468.

When two raikoads are nnited under a lease specifying the duties
and liabilities of each, neither is restricted in any particular not in-
cluded in then- contract with each other. Each may obtain new legisla-
tive grants, and avail itself of additional powers in any way they may
find advantageous to themselves, provided these new operations are
kept so distinct as not to interfere with the due operation of their
agreement with each other. March v. Eastern R. R. Co., 43 l!J.
H. 515.

§ 3. Duty to keep the road safe. It has been held that a railway
company, by giving permission to another company to use a part of
their track, do not bind themselves to make their track safe, nor to
put it in repair, nor to make any change in its existing state. And
that such a company, by contracting to let to another company the
use of their track, are under no duty to the passengers of the other
railroad. The claim of such passenger, if injured, is held to be on the
company with whom he contracts. Murch v. Concord R. R. Co., 29
^N". il. 9. And see WinterhottomY. Wright, 10 Mees. & W. 109;
Hanover R. R. Co. v. Coyle, 55 Penn. St. 396 ; Illinois Central R.
R. Co. V. Kayiouse, 39 111. 272 ; Rail v. Brown, 54 N. H. 495.

But it is the generally-accepted doctrine in this country, that a
railroad corporation cannot escape the performance of any duty or
obligation imposed by its charter, or the general laws of the State,
by a voluntary surrender of its road into the hands of lessees. The
operation of the road by the lessees does not change the relations of
the original company to the public. See ante, 332, § 2 ; McMillan
v. Michigan, etc., R. R. Co., 16 Mich. Y9 ; Smith v. N'ew York, etc.,
B. R. Co., 19 N. Y. (5 Smith) 127 ; Railroad Co. v. Barrow, 5
Wall. (U. S.) 90 ; Ottawa, etc., R. R. Co. v. Black, 79 111. 262.
Thus, it is held that the liability of a corporation owning a railroad,
to a passenger for injuries received on a train, is not affected by the
fact that the corporation have leased the road, and it is operated, at the
time of the accident, l>y the lessees {Macon, etc., R. R. Co. v. Mayes,
49 Ga. 355 ; S. C, 15 Am. Hep. 678 ; Railroad Company v. Brown,
17 Wall. [U. S.] 445) ; nor even by the fact that it is in charge of,
and run by a receiver (id.), unless, perhaps, when his possession and
control is exclusive. Id. But a railway company when using the
track and easement of anotlior company, for the purpose of running
their own engines and cars, with their own employees, must bo held
to observe such precautions for the safety of the publio, as shall be
fully equivalent to those required from the corporation whose road

RAILKOADS. 335

thej" are using. Wehb v. Portland, etc., R. R. Co., 57 Me. 117. See,
also, Fletcher v. Boston, etc., R. R. Co., 1 Allen, 9. And in Ma-
honey V. Atlantic, etc., R. R. Co., 63 Me. 68, the lessee company, in
case of a railroad leased bj legislative authority, was held to become
owners of the leased railroad, ^w hac vice, and to be liable for an
injury sustained thereon by a passenger, caused by the wrongful acts
of their own servants. See, also. Pierce \. Concord, etc., R. R. Co.,
51 N. H. 593. So, it is held in Nashville, etc., R. R. Co. v. Carroll,
6 Heisk. (Tenn.) 347, that if a train of cars of one railway company,
running on the road of another company, be under the exclusive con-
trol of the servants of the latter, the latter is liable for all damages
occurring through negligence. But if the servants of both companies
jointly control the train, both companies are liable. See, also, Barrett
V. Third Avenue R. R. Co., 8 Abb. N. S. (X. Y.) 205 ; S. C, 1
Sweeney, 668 ; S. C. affirmed, 45 N. Y. (6 Hand) 628 ; Vary v. B.
C. R., etc., R. R. Co., 42 Iowa, 246.

A railway company running its trains over the track of another
road, and selling to passengers tickets over both roads, is not liable to
such passengers for injuries happening to them while on such other
road, through neghgence of the managers of such road or their ser-
vants, and without any neglect on the part of itself or its agents.
Spi^ague v. Smith, 29 Yt. 421.

Where an employee of a railroad company agrees to assume all risk
incident to his employment, the fact that he was running over another
road at the time of the injury does not release him from such agree-
ment. If, while running over su ch other road, he is in the employ of
the former company so as to make it liable for the injury, his agree-
ment remains binding. Galloway v. Western, etc., R. R. Co., 57
Ga. 512.

§ 4. Carriage of goods. A railway company clothed with ordinary
powers is presumaljly liable only for its own line for goods received to
be transported over that and connecting lines {Sherman v. Hudson
River R. R. Co., 64 ^N". Y. [19 Sick.] 254) ; yet it may, by a special
contract, become subject to liability for them over the whole course of
transit. Railroad Company v. Pratt, 22 Wall. 123 ; Nashua Lock
Co. V. Worcester, etc., R. R. Co., 48 X. H. 339 ; S. C, 2 Am. Rep.
262; KesslerY. New York, etc., R. R. Co., 7 Lans. 63; S. C. affirmed,
61 N. Y. (16 Sick.) 538. And the principle is well settled in Vermont,
and, perhaps, in most of the States, that when railway companies make
contracts to transport property beyond the limits of their own roads,
they are bound to deliver the property at its place of destination, accord-
ing to their contract, and are liable for all injury to such property prior

336 EAILEOADS.

to its delivery, although the injury happens after the property has
passed over their road on its way, and while in the charge of other car-
riers over whom they have no control. And this contract may be
either express or implied. Morse v. Brainard, 41 Yt. 550. And see
Toledo, etc., Railway Co. v, LocTchart, 71 111. 627. In the absence of any
express agreement to the contrary, it has been held that a railway com-
pany receiving goods marked to a point beyond its own line undertakes
to deliver them to the consignee. Louisville, etc., R. R. Co. v. Camp-
hell, 7 Heisk. (Tenn.) 253. And such is the English rule. See Morse
V. Brainard, 41 Yt. 550.

So, it is held that where a through line for transportation of passen-
gers and freight is estabhshed by owners of different railways, the first
carrier who receives fare for the whole route, and gives a through
check for baggage, becomes liable for any loss or injury, not only on
its own line, but on any other road in the connecting line throughout
the entire distance. Mills y. Orange, etc., R. R. Co.,1 MacArthur,
285.

It is held in Massachusetts that a railway company incorporated by
law in that State is not exempted from liability for the loss of goods
delivered to it to be carried over part of its road to the State line, by
having previously leased that part of its road to a corporation estab-
lished by law in an adjoining State, whose road connects with it at the
State line. Langley v. Boston, etc., R. R., 10 Gray, 103.

Where a railroad, which is the last of a connecting line, receives,
for the purpose of completing the transportation, cars loaded with hogs
which were so crowded that some of them were suffocated when they
reached the point of destination, such road becomes responsible to the
owner of the hogs for their delivery and the burden is on it to show
whether the suffocation occurred before or after its reception of such
cars. Paramore v. Western R. R. Co., 53 Ga. 383.

We have seen in the cases cited above, that a railway company may
become liable as a common carrier, by contract, for transportation of
goods over other railroads forming with its own a continuous line.
And where it does so contract, any stipulation in the contract or notice
to the other party, to the effect that the company will not be liable for
losses or damage occasioned by negligence or fault while the goods are
not upon its own road, is held to be against public policy and void,
equally as in case of transportation exclusively upon its own road.
Cincmnatd, etc., R. R. Co. v. Pontius, 19 Ohio St. 221 ; S. C, 2 Am.
Rep. 391.

Under a stipulation in a receipt given by a railway company for
property received by it to be transported to a point beyond its terminus,

RAILEOADS. 33T

that the company, in sending forward sucli property beyond its termi-
nus, shall act " as the agent of the consignor or consignee, and not as
carrier," it is the duty of the company, as such agent, to give correct
information and instructions to the succeeding carrier, as to the destina-
tion and delivery of the property transferred to the latter. And such
railway company will be held liable in damages to the consignor for
all loss and injury to the property occasioned by false information or
instructions in regard to it. Dcma v. New York Central^ etc,^ JR. M.
Co., 50 How. (K. Y.) 428.

ARTICLE Yn.

OF nOESE AJSTD STREET EAILK0AD8.

Section 1 . In general. Horse railroads are now common through-
out the countiy, especially in the larger towns and cities, and it is,
therefore, important that the rights and duties of all persons in the com-
munity having any relations with them should be distinctly known
and understood. These rights and duties will be considered in the
following sections.

§ 2. Using streets. It has been held by the courts of some of the
States that the authority to lay and use a horse railroad track iu a
public street is not a new servitude imposed upon the land, for which
the owners of the fee are entitled to compensation, but is a part of the
public use to which the land was originally subjected when taken for a
highway. Elliott y. Fair Hamn^ etc., R. R. Co., 32 Conn. 579;
New Albany Raihoay Co. v. 0^ Daily, 12 Ind. 551 ; Hinchvian v.
Pater son Hm^se R. R. Co., 17 jST. J. Eq. 75. In other States, how-
ever, the courts make no distinction between the use of streets by
steam and street railways, and compensation is required alike in both
cases. Craig v. Rochester City, etc., R. R. Co., 39 K. Y. (12 Tiff.) 404.
And 83e c^te, PtO, art. 2, § 6. It is held in Wisconsin that the con-
struction and operation of a horse railway in the public streets of a
city, by authority from the city government, is not a new burden im-
posed upon the owners of the fee of the land and that they are not
entitled to a compensation therefor, except where some private right
of such an owner, as his free access to his own land or buildiugs, has
been materially impaired thereby. Hohart v. Milwaukee City R. R.
Co., 27 Wis. 194 ; S. C, 9 Am. Eep. 461. To same effect, see Craw-
ford V. Delaware, 7 Ohio St. 459 ; Cincinnati, etc.. Railway Co. v.
Cuminim,gsville, 14 id. 523.

The interest which a horse railroad company has in the street through
Vol. Y.— 43

338 KAILEOADS.

which its tracks run is a right of way ; their franchise consists in their
rio-ht to lay and use exchisively a raih-oad, subject to the duty of run-
ning pubhc cars thereon. They have no control or interest whatever
in that part of the street not occupied by their own road, except that
common to the rest of the community ; that is, that it shall be kept
free and clear for public use. New Torh, etc., R. JR. Co. v. Forty -
second Street R. R. Co., 50 Barb. 285, 309; S. C, 32 How. 481.
Their franchise does not give them the control of the street or high-
way ; that control remains in the municipal authorities of the places in
which any part of the street railway is laid. Those municipal officers
have the power and it is their duty to regulate the manner in which
the franchise of the railway corporation is to be exercised ; and to pro-
tect the rights and promote the convenience of the whole public ; to
make such needful repairs or improvements of highways, etc., as may
from time to time become necessary, even though a serious interruption
to the use of the railway may be thereby rendered unavoidable. On
such occasions the owners of street railways, like all other parties desir-
ous of using the highway, must submit to a temporary inconvenience
for the sake of a permanent advantage. Middlesex R. R. Co. v. Wake-
field, 103 Mass. 262. So, an individual walking on the track of a street
railway is not a trespasser, and the company must run its cars with ref-
erence to him and all others who may be rightfully upon the street.
Kansas, etc., Railivay Co. v. Pointer, 9 Kans. 620. See, also, Kellinr
ger v. Forty-second street R. R. Co., 50 N. Y. (5 Sick.) 206. He is
not required to abandon the track in order to avoid possible injuries
which may result from the carelessness of the company, and if he
is injured by such carelessness while walking on the track, the fact
that he might have walked by the side of the track is not contributory
negligence on his part. Shea v. Potrero cfc Bay View R. R. Co., 44
Cal. 414.

A street railway company is not, however, subject in the running of
its cars to the ordinary law of the road. It has exclusive right of way
to that portion of the highway occupied by tlie tracks, and a truck or
cart passing along the highway must turn out of the way for its cars,
and the drivers of them cannot call upon the driver of the company's
car to stop, or to do any other act to avoid a collision, if the same result
can be attained by their turning out. Barker v. Hudson River R. R.
Co., 4 Daly (N. Y.), 274 ; Jersey City, etc., R. R. Co. v. Jersey City,
etc., R. R. Co., 20 K. J. Eq. 61 ; Commonwealth v. Temjyle, 14 Gray,
60 ; Whitaker v. Eighth Av. R. R. Co., 51 N. Y. (6 Sick.) 295.

The exclusive right to construct and operate a horse railway in a city
18 not infringed by constructing a road in the ame city, to be operated

KAILKOADS. 339

bj steam. Denmer^ etc., Railwwy Co. v. Denver City Railway Co.., 2
Col. T. 673. But a street railway company cannot use the tracks of an-
other similar corporation in running cars and transporting passengers
over the same without legislative authority, or the agreement of such
other company. Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Al-
len, 262 ; Jersey City, etc., R. R. Co. v. Jersey City, etc., R. R. Co., 20
^. J. Eq. 61. But the company cannot complain that another rail-
way track is allowed to cross theirs ; the passage of its cars is not
thereby impeded. BrooTdyn, etc., R. R. Co. v. BrooTdyn R. R. Co.,
33 Barb. 420 ; Market Street Railway Co. v. Central Railway Co., 51
Cal. 583.

A contract whereby a horse railroad company transfers the entire
control of its road, with all its franchises, receiving in return only a
fixed rent, payable in the form of a dividend to its stockholders, is held
to be ultra vires and invalid. Middlesex R. R. Co. v. Boston, etc., R.
R. Co., 115 Mass. 347.

If a franchise is granted by the legislature to construct a street railway
within a certain time, with a condition that if the provisions of the act
are not complied with the franchise shall be forfeited, a failure to lay
the track within the time limited works a forfeiture of the right, with-
out a judgment at the suit of the State declaring the forfeiture, and
the legislature may confer the franchise upon any other company or
person. OaTdand R. R. Co. v. Oakland, etc., R. R. Co., 4:5 Cal. 365;
S. C, 13 Am. Kep. 181.

But where the charter of a street railway company authorized the
company to build a single or double track railway over any streets in a
city, as had been, or should be authorized by the common council, and
full permission was given by ordinance to lay a track, in which a time
was fixed for its completion, and a forfeiture was provided for in case
of non-completion, and before the expiration of the time the ordinance
was amended and the time extended for the period of ten years, it
was held that tlie operation of this latter ordinance was to extend the
time for ten years after the expiration of the time fixed by the previ-
ous ordinance. McNeil v. Chicago City Railway Co., 61 111. 150.
See Brooklyn, etc., R. R. Co. v. Brooklyn, etc., R. R. Co., 32 Barb.
358.

It is held in Xew York, that after the legislature has given the city
of New York power to grant the right to horse railroads to use the
streets, the city may grant it on such terms and conditions as to the
use of the track and streets as it may think proper. New York, etc.,
R. R. Co. V. Nevj York, 1 Hilt. (X. Y.) 562. But a municipal cor-
poration authorized to make ordinances for the purpose of regulating

340 RAILROADS.

city railroad cars, prohibiting nuisances, and preventing and removing
obstructions on the streets, is not thereby authorized to interfere at a
specific point, with the tracks or business of a railroad which is estab-
lished and conducted under a legislative grant. Brooklyn City R. R.
Co. v. Furey, 4 Abb. Pr. (N. S.) N. Y. 364.

And a city ordinance, compelling railway companies, in laying new
railways to pave between the tracks with particular kinds of pavement,
is held to be unreasonable and incapable of being enforced. Philadel-
phia V. Empire, etc., Railway Co., 3 Brewst. (Penn.) 570.

§ 8. Rules and regulations. The rule of a street railway company
that passengers shall not get on or off any car by the front platform is
a reasonable rule. And it is held that if a party be injured in conse-
quence of a known violation of such rule, imless compelled thereto by
some existing necessity beyond his control, the company is not liable.
Baltimore, etc., Railway Go. v. Wilkinson, 30 Md. 224. But see
Hadencamjp v. Second Av. R. R. Co., 1 Sweeney (N. Y.), 490.

A statute giving a city corporation power to regulate the running of
railroad cars witliin the corporate limits confers authority upon the
corporation to prohibit the propelling of the cars by steam through any
part of the city. Bufalo R. R. Co. v. Buffalo, 5 Hill, 209.

§ 4. Collecting fares. A regulation of a street railway company
issuing tickets signed by its officers with numerous coupons annexed,
that such coupons are not good unless torn off by the conductor, is a
reasonable regulation, and a coupon detached by the holder, not in the
presence of the conductor, is not good for a passage. Walker v. Dry
Dock, etc., R. R. Co., 33 How. (N. Y.) 32Y.

AVliere a railway company was, by its charter, entitled to receive as
fare five cents in coin from each passenger, it was held, on the issue of
pa]jer currency by the government, that it was justified in charging six
cents fare for each passenger when paid in that currency. Money penny
V. Sixth Av. R. R. Co., 7 Robt. (N. Y.) 328; S. C., 4 Abb. (N. S.)
357 ; 35 How. 452.

A person receiving a commutation check entitling him under a
statute to a passage on the same day upon another street railway " be-
tween any two points therein," without paying more than a smn named
" for both of the passages aforesaid," is not entitled, after surrendering
the check in the second car at the request of the conductor, to a pass-
age in a third car proceeding farther u])uu the same line, although he
is told ])y the conductor of the second car that lie may ride on the third
car without further payment of fare. Wakejield v. South Boston R.
R. Co., 117 Mass. 544'.

§ 5. Injuries to passengers. As toward their passengers a street

KAILROADS. 341

railway company is bound to exercise great care and caution in caiTy-
ing them through the streets of a city. Clark v. EhjhtJi Avemie R.
R. Co., 32 Barb. 657 ; S. C. affirmed, 36 N. T. (9 Tiff.) 135. And the
"Utmost care and diligence must be exercised by the company in order
to avoid collisions. Liddy v. St. Louis R. R. Co.y ¥) Mo. 506. If
the death of a passenger results from the carelessness of the servants
of the company in the management of its car, or from a defective
track, or from an overloaded car, or from all combined, the company
will be liable. Chicago City Railway Co. v. Young, 62 111. 23S. But
the diity imposed upon the company does not require it to use eveiy
absolutely necessary precaution to avoid injury to individuals, or to
liave employed any particular means which it may appear, after an acci-
dent has occurred, would have avoided it. If every reasonable precau-
tion has been used, such as would have been adopted by a ygtj prudent
person, prior to the accident, it is sufficient. Chicago, etc., R. R. Co.
V. Stumps, 55 id. 367.

It is the duty of a railway company to cause its cars to come to a
full stop for passengers to get off. Cr'issey v. Hestonville, etc.. Rail-
way Co., 75 Penn. St. 83. And to start tlie car before the passenger
has stepped down, or has a reasonable time for that purjjose, is negli-
gence. Poxdin V. Broadway, etc., R. R. Co.,Ql N". Y. (16 Sick.) 621.
And a sick or aged person, a delicate woman, or a child, is entitled to
more care and attention from a railway company than one in good
health and under no disability. They are, therefore, entitled to more time
in which to get on or off the cars, and to more consideration in crossing a
street. Sheridan v. BrooUyn, etc., R. R. Co., 36 N". Y. (9 Tiff.) 39 ;
Drew v. Sixth Ave. R. R. Co., 1 Abb. Ct. App. 556; S. C, 3
Keyes, 429. Ordinary capacity and ordinary care and attention on the
part of passengers in railroad cars is all that the law requires This
each is, however, bound to give, Avhatever his age or condition.
SJieridan v. BrooUyn, etc., R. R. Co., 36 iN". Y. (9 Tiff.) 39.

A corporation, by placing a person in the position of conductor of a
street railway, invests him with implied authority of determining who
may be admitted and who excluded from the car, and the company is
liable for the wrongful exercise of this authority. And it is held that
the good motive of the servant does not operate to discharge the master
from liability for an injury to a third party committed by the servant
in the course of his employment. Passenger R. R. Co. v. Young, 21
Ohio St. 518 ; S. C, 8 Am. Kep. 78. And see Isaacs v. Third Ave.
R. R. Co., 47 X. Y. (2 Sick.) 122 ; S. C, 7 Am. Kep. 418 ; Uiggins
V. Watervliet Tum;p. Co., 46 N. Y. (1 Sick.) 23 ; S. C, 7 Am. Rep.
293. The company is not, however, liable for the malicious excess of

S42 KAILROADS.

force and wanton injury by one of its conductors while ejecting a pas-
senger who has refused to pay his fare. Vanderbilt v. Richmond
Tump. Co., 2 K. Y. (2 Comst.) 479 ; Crocker v. New London R. R.
Co.., 24 Conn. 249 ; Sanford v. Eighth Am. R. R. Co., 7 Bosw. (N.
Y.) 122 ; Fittshurg, etc., R. R. Co. v. Donahue, 70 Penn. St. 119.
But see on this point Roxinds v. Del., Lack. & West. R. R. Co., 64
K T. (19 Sick.) 129 ; S. C, 21 Am. Eep. 597.

If the same person is employed by a sti-eet railway company to drive
the car and to collect fares, and is authorized by the company to eject
passengers who will not pay fare, the company may be liable to a per-
son put off for injuries which he sustains either through the use of
excessive violence by the company's agent in putting him off, or through
negligence of the agent in his duties as driver, as if he does not stop
the car at the time. His negligence as driver may warrant a recovery,
irrespective of whether he was authorized to demand fare. Llealey \
City Passenger R. R. Co., 28 Ohio St. 23.

It is clear that a street railroad conductor may stop his car and eject
the unruly. Westchester, etc., R. R. Co. v. Miles, 55 Penn. St. 209.
Thus, he may eject a passenger so intoxicated as to be offensive to the
other passengers ; and whether it is due care to attempt such removal
while the car is in motion is a question of fact for the jury. 3furphy
V. Union Railway Co., 118 Mass. 228. Nor is the conductor bound to
wait until some overt act of violence, profanity, or other misconduct
has been committed, but may exercise his authority to exclude or expel
the offender when his conduct or condition is such as to render it reason-
ably certain that he will occasion discomfort or annoyance to other pas-
sengers. Vinton v. Middlesex R. R. Co., 11 Allen, 304. But where
the conductor ejected a passenger who refused to comply with an ille-
gal exaction of fare, it was held that the passenger was entitled to re-
cover exemplary damages against the company. Baltimore, etc.. Turn-
pike Road Co. V. Boone, 45 Md. 344.

Where a person, riding with due care on the platform of a horse
ear, not as a passenger for hire, but by invitation of the driver, and
without collusion with him to defraud the company, was injured
tlirough the negligence of the driver, the com^mny was held liable.
Wilkm V. Middlesex R. R. Co., 107 Mass. 108 ; S. C, 9 Am. Eep. 11.
And a street railway c()m])any was held liable for an injury to a child
five years old caused by the neglect of the driver to compel her to go
inside the car. And the fact that an older companion, who was not in
charge of her, put her off -.vliile the car was in motion and against the
driver's remonstrance, was held to be immaterial. Pittshurg,etc., Rail-

KAILROADS. 343

way Co. V. Caldwell, 74 Penn. St. 421. And see Zovett v. Salem,
etc., li. B. Co., 9 Allen, 557.

§ 6. Injuries to other persons. While a street railway company
has a right to run its cars on a public street, yet the public also have a
right to travel thereon, and the company must exercise such care and
precaution for the purpose of avoiding accidents and endangering prop-
erty or persons, as a reasonable prudence would suggest. Thus, a
street railway company, having undertaken to lay down its track along
a street which is a public road, is bound to lay it down properly, and to
keep it in a proper condition ; and if any injury occurs the company is
liable. If the defect be visible, notice to the company of such defect is
not necessary. Rockwell v. Third Avenue R. R. Co., 64 Barb. 438 ;
S. C. affirmed, 53 N. T. (8 Sick.) 625. And where, by the sinking of
a pavement, a spike in the rail was left exposed, with which the plain-
tifiPs carriage coming in contact, the plaintiif was thrown out and in-
jured, it was held that the company was guilty of negligence, and the
plaintiff might recover. Fasli v. Third Ave. R. R. Co., 1 "Daly (K.
T.), 148. See, also, Worster v. Fortij-second Street, etc., R. R. Co., 50
N. Y. (5 Sick.) 203. It is equally incumbent upon the company to
keep those parts of its road proximately connected with its track in
good order and repair, and it is negligence to omit having such repairs
made, not only to its track, but to contiguous portions of its road, as
will keep it in good condition, and make it safe for those who have a
right to drive across it. Conroy v. Twenty-third Street R. R. Co., 52
How. (X. T.) 49. It is likewise held to be the duty of the company,
as to third persons, to keep in repair that portion of a switch which,
being a part of its own track, yet forms a connection with the track of
another railway corporation, although, as between tlie corporations, the
duty of repairing may rest upon the latter. McKenna v. Metropolitan
R. R. Co., 112 Mass. 55. And where a street railway company con-
tracts with a city, to keep that portion of the streets over which its
tracks pass in repair, as the express condition of, and sole consideration
for, a grant to use the streets, the company thereby voluntarily assumes
the obligations which the city owed to the public as respects that por-
tion of the streets between the tracks, and is liable for injuries by rea-
son of defects. McMahon v. Second Avenue R. R. Co., 11 Hun (!N".
Y.), 347.

And the fact that the company have complied with aU the require-
ments of a city ordinance, prescribing the manner in which the road
shall be constructed, and that the construction of the road has been ex-
amined and approved and accepted by an agent of the city, charged
with the duty of such examination, is. no defense to an action by an in-

344 RAILEOADS.

dividual crossing the track for injuries received from defects in its
construction. Delzell v. Indianapolis^ etc., R. R. Co., 32 Ind. 45 ;
Alton, etc., Railway Co. v. Deits, 50 111. 210. Railway companies
take their charters and exercise their franchises upon the implied con-
dition that they are liable to persons injured by the construction of
their roads. And if special requirements are imposed, it is for th'e
company to elect whether they will build the road under those require-
ments, subject to the general liability for injuries caused by their acts.
Id. The fact that municipal authorities were also negligent in improp-
erly paving the street, and that their negligence may have contributed
to the injury, does not relieve the railway company from liability. Car-
penter V. Centml Park, etc., R. R. Co., 4 Daly (E. Y.), 450 ; S. C, 11
Abb. (N. S.) 416.

Under a statute providing that street railway companies shall pay a
tax in lieu of repairing streets " outside of their tracks," the companies
having double tracks on a street are not liable for the expense of
repairing the street between the double track. St. Zoids v. St. Lmiis
R. R. Co., 50 Mo. 94.

The drivers of street cars through a densely populated city ought
always to have their teams under their immediate and absolute control ;
and they are bound to drive in such a manner, if possible, as to injure
no one. BarTcsdull v. lifew Orleans, etc., R. R. Co., 23 La. Ann. 180 ;
Schierhold v. North Beach, etc., R. R. Co., 40 Cal. 447. But the
same degree of care is not required of the carriers of passengers upon
street ears drawn by horses, as of railway companies, whose cars are
drawn by steam. No greater degree of care as to pedestrians in a street
is required of them than is required of the driver or owner of any other
vehicle. Unger v. Forty-second Street R. R. Co., 51 N. Y. (6 Sick.)
497. And in the attachment of horses to their cars they are not bound
to use tlie best method human skill and ingenuity have devised to pre-
vent accidents. If they use the method in general use, and which has
been found usually adequate and safe, their duty in this respect is dis-
charged. Id.

As a general rule, the i^ubliccan use the cars of a street railway only
for the purpose of being carried as passengers, on the payment of fare.
Any otlier attempted use, and any stepping on tlie car, would be a tres-
pass, and the company's servants" have the riglit to prevent it, or to
remove from the platforms any person stepping thereon for any pur-
pose, except to ride as a passenger. See Iliggins v. WatervUet Tnrn-
jnke Co., 40 N. Y. (1 Sick.) 23 ; S. C, 7 Am. Rep. 293. But when
a street car is stopped so as to obstruct the passage of a traveler on
foot desiring to cross the street, it is not a trespass or a wrongful act

RAILROADS. 345

on his part to step upon and pass over the platform of the car, in order
to avoid the obstruction. He has the right so to do ; and where, in
such a case, the person crossing the platform was seized and thrown
off by the driver, whereby he was injured, the company was held
responsible. Shea v. Sixth Avenue R. R. Co., 5 Daly (N. Y.), 221 ;
S. C. affinned, 62 X. Y. (17 Sick.) ISO ; 20 Am. Rep. 480.

§ 7. Contributory uegligeuce. When it appears that a passenger
is riding on a car in a place of danger, his negligence is prima facie
proved, and it is incumbent upon him to rebut the presumption. Cla/rk
V. Eighth Avenue R. R. Co., 36 N. Y. (9 Tifi.) 135 ; Solomon v-
Central Park, etc., R. R. Co., 1 Sweeny (N. Y.), 298; Ward v.
Central Park, etc., R. R. Co., 42 How. (E". Y.) 289 ; S. C, 1 Jones &
Sp. 392 ; 11 Abb. (N. S.) 411. But where a passenger upon a street
car is unable to obtain a seat inside the car, and remains standing upon
the platform thereof, he is not guilty of such contributory negligence
as prevents him from recovering damages for injuries sustained by him,
in being thrown from the car in consequence of the negligence of the
driver. Ginna v. Second Avenue R. R. Co., 8 Hun (X. Y.), 494;
S. C. affirmed, 67 N. Y. (22 Sick.) 596. See, also, Meesel v. Lynn,
etc.,R. R. Co., 8 Allen, 234; Augusta, etc., R. R. Co. v. Rem, 55
Ga. 126. And it is held, that standing on the platform of a horse-car
even when there is room inside, is not of itself conclusive evidence that
a person injured by the driver's negligence was not in the exercise of
due care. Maguire v. Middlesex Railway Co., 115 Mass. 239. See,
ante, 340, § 3.

A person travehng upon a city street has a right to drive his wagon
upon or across the track of a street railroad, and this right is not con-
fined to occasions where the other portions of the street are crowded or
obstructed. The only limitation of the right is, that he must not un-
necessarily interfere with the passage of the cars, as they have the prefr
erence in the use of the track. Adolph v. Central Park, etc., R. R.
Co., 65 N. Y. (20 Sick.) 554. And if a person on foot, or on horse-
back, or with a carriage under his control, moving on the track of a
street railway, neglect to move off the track soon enough to
allow the cars to pass without impediment, and an injury occurs through
his negligence in this respect, he must bear the loss. Jatho v. Rail-
way Co., 4 Phil. (Penn.) 24. And see Suydam v. Grand Street, etc.,
Railway Co., 41 Barb. 375; S. C, 17 Abb. 304.

If the conductor or driver of a horse-car refuse to comply with the
request of a child six and a half years old to stop the car, this will not
of itself justify the child in getting off by the front platform when the
Vol. v.— 44

346 EAILEOADS.

car is in full motion. Cram v. Metropolitan RailwoAj Co., 112
Mass. 3S.

Where the driver of such a car, standing on the front platform
thereof, keeps a close watch forward, and is vigilant and careful to see
and avoid any obstruction on or dangerously near the track in front of
him, he is guilty of no negligence in omitting also to keep a constant
watch of each side of the car to the rear of the front platform, to see
that no one is injured by coming laterally into collision with the side
of the car. Bulger v. Albany Railway, 42 IST. Y. (3 Hand) 459.
Injuries to a child which gets under the hind wheels of the car, after
the fore wheels have passed safely, are not, therefore, attributable to
the negligence of the driver or of the conductor. Id.

An instruction to the jury, that the act of a youth of seventeen,
years and of sound mind, in .jumping from a street railway car in rapid
motion, constituted per se, negligence in law on his part, was held to
be erroneous in Wyatt v. Citizens' Railway Co., 55 Mo. 485. The
question of negligence in such case should be left to the iury. Id. And
see Norton v. Ittner, 56 id. 351.

AETICLE YIII.

REMEDIES.

Section 1. In general. In treating of the liabilities of railway
companies, ante, articles 4 and 5, we have seen that, in many cases,
the only appropriate remedy against tlie company is by an action at law.
In other cases, however, relief must be sought in a court of equity, and
if sufficient ground exists therefor, that court will interfere by injunc-
tion. See ante, Yol. 4, titles Negligence and Nuisance ,' Yol. 3, title Inr-
junction. In some instances, courts of equity will also decree specific
performance.

§ 2. Actions at law. See ante, 281, art. 1, § 6. It may now be
regarded as a well-settled doctrine, notwithstanding some exceptional
cases, that where a railway company proceeds, under the appropriate
process, to exercise the right of eminent domain, the remedies of that
process are exclusive of all others, and not merely cumulative ; and the
owner of land taken under it cannot resort to a cc)mmon-law action to
ascertain his damages. Mason y. Kennebec, etc., Railway Co., 31 Me.
215; East dc West India, etc.. Railway Co. v. Gattke, 3 Mac. & G.
155 ; S. C, 3 Eng. L. & Eq. 59 ; SJicrman v. Milwaukee, etc., R. R.
Co., 40 Wis. 645, But when the railway company takes possession of
land for which it is liable to make compensation, without the consent of

ItAILROADS. 347

the own- r, and without having ascertained and paid the compensation
under the process given by statute, it is liable to an action of trespass
or ejectment. Id.; Kansas Pacific Raihvay Co. v. Hopkins, 18 Kans.
494 ; ante^ 295, art. 2, § 12. So, if the right to the use of the land has
been acquired by the company, but some duty imposed by the statute
has been omitted, or if the company have been guilty of negligence, or
want of skill, in the exercise of their legal rights, they render them-
selves liable to an action upon the case at common law. Id.; Dean v.
Sullivan Railway Co., 22]^. II. 316; FurnissY. Hudson Biver Rail-
wa/y Co., 5 Sandf. (N. Y.) 551 ; Mayor of Lichfield v. Simjjson^ 8
Ad. & El. (N. S.) 65 ; Perley v. B. C. c& M, R. R. Co., 57 IS". II.
212.

In Carr r. Georgia Railway, etc., Co., 1 Kelly (Ga.), 524, it was held
that the statute remedy given to land-owners for injuries sustained by
taking land for railways was not exclusive, but cumtdative merely.
And see Crittenden v. Wilson, 5 Cow. 165 ; Kennett Navigation Co. v.
Witherington, 18 Q. B. 531 ; S. C, 11 Eng. L. & Eq. 472. But the
general rule is believed to be as above stated. See, also, Tennessee, etc.,
R. R. Co. V. Adams, 3 Head (Tenn.), 596, And it is further held,
that the land-owner is barred of the common-law remedy, although he
may have refused to join in the proceedings under the statute, or to
receive the amount awarded to him, and deposited for his use. Hueston
V. Eaton, etc., R. R. Co., 4 Ohio St. 685. And see Western Maryland
R. R. Co. V. Oioings, 15 Md. 199. And while the assessment of rail-
road damages remains in force, no action will lie as at common law, for
an increase of damages, on the ground that the commissioners Avent on
a mistaken basis in making up their judgment. Biitman v. Yermont,
etc., R. R. Co., 27 Yt. 500 ; Perley v. B. C. cfi M. R. R. Co., 57 K H.
212.

So, it has been held, that, in a case where the private property of in-
fants is taken by a railway company, if the company has come into
possession of the property without unnecessary damage or encroach-
ment, though not in the manner contemplated by their charter, the
owners are still confined to their statutory remedy. Indiana., etc., R.
R. Co. V. Dalies, 20 Ind. 9. Nor does the infancy of the owners ex-
cuse them from the necessity of pursuing the statutory remedy. Id.

An action at law, and not a resort to the statute, is held to be the
proper remedy in Massachusetts, to recover damages of a railway com-
pany for filhng up the bed of a natural water-course with their embank-
ment, and thereby flowing the land of a ripariaii proprietor above,
which is not adjoining the railroad ; it not appearing that such filling
up was necessary for the construction of the road, or that a suflicient

348 EAILROADS.

new canal could not be made. Estabroaks v. Peterborough^ etc.^ R. R.
Co., 12 Gush. 224.

So, it is held that the omission, by a party whose land has been taken
by a railroad, to apply to the county commissioners for an estimate of
damages, will not waive his right to bring an action of trespass against
the company, if it appear that the land has been taken without authority.
Hall V. Pickering, 40 Me. 548.

One who contracts to build a railroad, and who enters upon land for
that purpose without the owner's consent, is liable to the owner in an
action of trespass, if the company for which he builds has never ac-
quired a right to use the land for its road, and the plaintiff is not obliged
to resort to an action against the company to obtain compensation for
the land taken for its use. Loop v. Chamberlain, IT Wis. 504. Nor
is it necessary, in order to maintain his action, that the owner of the
land should have forbidden the contractor to construct such road upon
it. Id.

It is laid down as a well-settled rule of law, that an action lies as
well for damage to adjoining property by stopping or impeding the
travel on, to, or from a street or highway, as any other damage that can
be done to property, although the property injured may not be touched
by the obstruction. Little Miami B. 11. Co. v. Naylor, 2 Ohio
St. 235. And see Estdbrooks v. Peterborough, etc., R. R. Co., 12
Gush. 224.

But generally, if a railway company keep within their charter, they
cannot be sued at common law, as wrong-doers, unless it is for injuries
inflicted either wantonly, or from neglecting to use reasonable dihgence
and care. Tennessee, etc., R. R. Co. v. Adams, 3 Head (Tenn.), 596.

§ 3. Injunction. As to the remedy by injunction, see Vol. 3, pp.
723-725. In general, where it is clearly shown that a railway company
is exceeding its powers, the court cannot refuse its e(piitablu interfer-
ence by injunction. River Dun Na/o. Co. v. North, etc.. Railway, 1
Kailw. G. 135 ; Stone v. Commercial Railway, 9 Sim. 021.

And if a railway company neglect to pay the owner of land, over
which its road passes, the damages awarded for the right of way, an
injunction may be obtained to restrain the company from using the land
until the damages are paid. People v. Lam, 34 Barb. 494 ; S. G., 22
IIow. 109 ; Richards v. Pes Moines, etc., R. R. Co., 18 Iowa, 259 ;
Stev)art v. Raymond R. R. Co., 15 Miss. 568 ; AVestern, etc., R. R. Co.
V. Owings, 15 Md. ll)'.> ; fioss v. Elizabeth, etc., Lt. R. Co., 2 N. J. Eq.
i22. See 8tt//rtejvant v. Milwaukee, etc., R. R. Co., 11 Wis. 63.

And wlien a railway company is authorized by law to lay a track
iRrithin the limits of a city with the assent of the city government, and

KAILROADS. 349

the assent is obtained upon condition that certain regulations are
obeyed by the company, the city does not lose its right to apply for an
injunction to restraia the company from completing the track on account
of a breach of such regulations, because there is some delay in making
the application. Northern^ etc., R. R. Co. v. Baltiirwre, 21 Md, 93.

Railways constructed over the streets of towns and cities with the
consent of the municipal authorities, under the authority of the acts of
the legislature, are not public nuisances, and an injunction to restrain
their construction will not be granted. New Albany, etc., R. R. Co.
V. C Daily, 12 Ind. 551 ; Milhurn v. Cedar Rapids, 12 Iowa, 246.
And the possibility that a railway through one of the streets of a city
may be abused to the public inconvenience forms no ground for inter-
cepting the progress of its construction, and preventing the laying of
the track. The right to an injunction in such a case accrues only after
the completion of the road, and where it is found from actual ex]3eri-
ence that the running of trains amounts to a nuisance. Sargent v.
Ohio, etc., R. R. Co., 1 Handy (Ohio), 52. Nor will an injunction be
granted in any case, previous to the determination of the rights of the
parties, to restrain a mere trespass, where the injury is not irreparable
and destructive to the plaintiffs estate. Thus, it is held that the erec-
tion of a trestlework for a railway upon the plaintiff's land is not such
an injury as to justify the granting of a preliminary injunction. Whit-
mcm Y. St. Raul, etc., R. R. Co., SMinn. 116. See, also, Hodgkinsmi
V. Long Island R. R. Co., 4 Edw. Ch. 411 ; Baucus v. Albany
Northern R. R. Co., 8 How. (N. Y.) 70. And the crossing of a rail-
road track by another railroad is not such an infraction of private prop-
erty as to call for a preliminary injunction. Neiv YorTc, etc., R. R.
Co. V. Forty-second Street Railw. Co., 50 Barb. 309 ; S. C, 32 How.
481. Nor can one city railway company enjoin another from running
its cars through the same street, on the ground that their doing so vio-
lates the public franchise in the highway. Market Street Railway Co.
V. Central Railway Co., 51 Cal. 583.

A citizen of New York, owning property in Ohio, has a right to
come into the circuit court of the United States and enjoin a railway
company, incorporated under the laws of the latter State, from doing
acts which would produce an irreparable injury to his property situated
there. Works v. Junction R. R. Co., 5 McLean (C. C), 425.

But it is held that proceedings instituted by a railway company to
acquire the title to land necessary for the purpose of its incorporation,
will not be restrained on the ground that the statute authorizing them
is unconstitutional ; that question can be presented and passed upon in

350 EAILROADS.

the proceedings themselves. Kip v. New York, etc., B. Ji. Co., 6
Hun {'N. Y.), 2i ; S. C. affirmed, 67 N. Y. (22 Sick.) 227.

An injunction lies at the suit of an abutting house-owner, to enjoin
a street railway company from leaving snow which it removes from its
tracks, heaped up between them and the plaintiffs premises for a
longer period than is reasonably requisite for taking it away. Prime
V. Twenty-third St. Bailw. Co., 1 Abb. New Cas. (N. Y.) 63.

But where it appears, in a suit to enjoin a railway company from run-
ning its cars over a portion of a highway in front of the plaintiff's land,
the fee of which, subject to the public use, is in the plaintiff, who has
never received compensation for the use thereof, that the company was
hiduced to construct its road upon such highway by the express consent
and license of the plaintiff, the injunction should be refused. Mur-
dockx. Prospect Park, etc., R. R. Co., 10 Hun (N. Y.), 598.

§ 4. Specific performance. The specific performance of contracts
between different railways, or between natural persons and railway
companies, w^ill be decreed by courts of equity in proper cases. But if
any doubt exists as to the legality of a contract, or if it be not of a
class where specific performance is usually decreed, the court will not
interfere. Thus, in the case of an agreement between railway com-
panies, the terms of which were uncertain in themselves and of doubt-
ful legality, the court gave the parties seeking to enforce the agreement
an opportunity of trying these questions at law, and refused to
restrain in the meantime an alleged violation, an injunction not being
required for the protection of the plaintiffs against irreparable mischief.
Shrewsbury, etc., Railway v. London, etc., Raihoay, 3 Mac. & G.
70; S. C, 1 Eng. L. & Eq. 122. And if, in any case, it w^ould be
competent for the court to decree the specific performance of a con-
tract to operate a railroad, requiring, as it would, personal acts, involv-
ing tlie continuous exercise of skill and judgment under varying
circumstances and emergencies, it could only be in a case where the
demand for the exercise of such a power was stringent and the circum-
stances such as to authorize the court in making an order to limit its
duration as to time, and to define, to some proper and reasonable
extent, the mode and manner in which it should be obeyed. Port
Clinton R. R. Co. v. Cleveland, etc., R. R. Co., 13 Ohio St. 544.
And see Johnson v. Shrewslmry, etc.. Railway, 19 Eng. L. & Eq.
584; S. C, 3 DeG., M. & G. 914.

If railroads make a connection under a contract, its continuance, in
certain cases, will be enforced in equity. Great Nortliern Railway v.
MoMcJoester, etc., Railway, 10 Eng. L. & Eq. 11 ; S. C, 5 DeG. & S.
138. But where such contract has been terminated by the parties,

RAILROADS. 351

equity will not interfere. Androscoggin^ etc.. R. H. Co. v. Andros-
coggin R. R. Co., 52 Me. 417.

A subscriber to the stock of a railway company, chartered, but
waiting for subscriptions in order to organize under its charter, can
have no relief in equity on the ground that when intending merely to
renew an old subscription to the stock which had fallen through, he,
by some unaccountable mistake, subscribed for double the amount,
such subscriber, although knowing his mistake at once, gave the com-
pany no notice and suffered them to organize and act upon the faith of
his subscription during several months. Diman v. Providence, etc.,
R. R. Co., 5 R. I. 130.

§ 5. Receivers, ^eepost, 353, tit. Receivers, ^s to the liability of
a receiver in operating a railroad, see ante, 314, Art. 4, § 6. In Ohio,
etc., R. R. Co. V. Davis, 23 Ind. 553, it is held that the possession of
a receiver appointed by the court cannot be regarded as the possession
of the railway company, and that the company cannot be held liable
for the act of any servant of a receiver appointed by the court. See,
also, Bell v. Indianapolis R. R. Co., 53 id. 57 ; Meara v. Hol-
hrook, 20 Ohio St. 137 ; S. C, 5 Am. Rep. 633 ; Kain v. Smith, 11
Hun (N". Y.), 552.

In the operation and management of railroads by receivers in
chancery, they sustain to persons dealing with them the character of
common carriers. And although they may at all times invoke the
aid of the court in any matter affecting their duty or liability under
their receivership, yet, waiving this, they are answerable in the com-
mon-law courts to actions for negligence as carriers. Newell v. Smith,
49 Yt. 255.

In Tennessee, the receiver of a delinquent railroad, appointed by the
governor of the State, is a public agent, and, as such, is not liable for
the wrongs or negligence of his employees, but only for his own
wrongful acts or delinquencies. Hojykins v. Cotmel, 2 Tenn. Ch. 323.

A receiver has no authority, without the previous direction of the
court, to incur any expenses on account of property in his hands, be-
yond what is absolutely essential to its preservation and use, as con-
templated by his appointment. Accordingly, the expenditures of a
receiver to defeat a proposed subsidy from a city, to aid in the con-
struction of a railroad parallel with the one in his hands, were held to
be properly disallowed in the settlement of liis final account, although
such road, if constructed, might have diminished the future earnings of
the road in his charge. Cowdrey v. Galveston, etc., R. R. Co., 93 U.
S. (3 Otto) 352.

So, an application by receivers of an insolvent railway to issue certi-

352 KAILROADS.

ficates of indebtedness to cover certain expenses, and an order of the
court thereon accordingly, does not bind the receivers or the trust fund
to pay particular items of such expenses, the propriety of whose pay-
ment was not before the court. Coe v. Neio Jersey^ etc., B. B. Co. ,
27 N. J. Eq. 37. And see Meyer v. Johnston, 53 Ala. 237.

It is held to be the duty of a receiver of a railway company who
was appointed to receive rents, issues, and profits of the railway, to re-
ceive the gross receipts of the company for the carriage of passengers,
freights, mails, and the like, and to pay the bills for running expenses
thereout, and not to receive merely the surplus after paying the ex-
penses. Simpson v. Ottawa, etc., Railway Co., 10 Up. Can. L. J. 108.

A receiver appointed m equity to foreclose a mortgage of a railroad
cannot maintain a suit to recover earnings of the road accruing before
his appointment. Noyea v. Mich, 52 Me. 115.

RECEIYERS. 353

CHAPTER CXIII.

RECEIYEES.
AETICLE I.

OF KECEIVEK8 IN GENEEAX.

Section 1* Nature of the office. A receiver may be defined to be
an indifferent person between the parties, appointed by the court to take
possession of property which is the subject of litigation, and to hold
the same and apply the profits, or to dispose of the property itself un-
der the direction of the court, when it does not seem reasonable to the
court that either party should do it, or where a party is incompetent, as
in the case of an infant. Bur. L. Diet. ; Danl. Oh. Pr. 1552. The
object of a receiver is usually to get in and secm-e funds which the
court will have the means of distributing among those entitled {Evans
V. Coventry, 3 Drew. 80) ; though he is sometimes appointed to take
charge of property in which one who is not a party to the suit may
have an interest. Yincent v. Parker, 7 Paige, 65. Where the court
ordered money raised by attachment, to be deposited with a banker
upon condition of his paying seven per cent thereon while it was in his
hands, it was held that he was not a receiver, and that his assignees in
insolvency would not be subject to a rule for the payment of the money
to a receiver subsequently appointed. Goleman v. Salisbury, 52
Ga. 470.

The appointment of a receiver is an important head of the preven-
tive jurisdiction of courts of equity, and it is one of the oldest of the
remedies afforded by the court of chancery, the jurisdiction of equity
being founded on the inadequacy of the remedy at law. Hopldns v.
Camul Prop'TS, L. R., 6 Eq. 447 ; Stitwell v. WilUams, 6 Madd. 49 ;
Folsom V. Evans, 5 Minn. 418 ; Banh of 3lhs. v. Dutican, 52 Miss.
740. Notwithstanding this remedy is now the subject of express stat-
utory provisions in many, if not in most, of the States of the Union,
the general principles of equity in relation to it must still constantly be
resorted to for guidance.

A court of equity, by means of a receiver, takes possession of the
property which is the subject of the suit, preserves it from waste or
Vol. Y.— 45

354 EECEIYEES.

destruction, secures and collects the proceeds or profits, and ultimately
disposes of them according to the rights and priorities of those entitled.
Beverly v. Brooke^ 4 Gratt. 1S7 ; Green v. Bostwich, 1 Sandf. Ch.
185. The receiver is the officer of the court, subject to its orders, ac-
countable in such manner, and to such persons as the court may direct,
and having, in his character of receiver, no personal interest but that
arising out of his responsibility for the correct and faithful dis-
charge of his duties. The order of appointment is not in the nature
of an attachment, but of a sequestration. In itself, it gives no advan-
tage to the party applying for it over other claimants, and operates
prospecti\'ely upon rents and profits which may come to the hands of
the receiver as a lien in favor of those interested, according to their
rights and priorities in or to the principal subject out of which the
rents and profits issue. In the exei'cise of this summary jurisdiction,
a court of equity reverses in a great measure its ordinary course of ad-
ministering justice; levying upon the property a kind of equitable
execution, by which it makes a general instead of a special appropriation
of the issues and profits, and afterward determining who is entitled
thereto, but being often compelled to act before the merits of the cause
have been fully developed, and not unfrequently when the proper par-
ties in interest are not all before the court, it proceeds with great
caution in order not to disturb unnecessarily or injuriously legal rights
and equitable priorities. Beverly v. Brooke, 14 Gratt. 187. As the
appointment is provisional only for the more speedy getting in of the
party's estate, and securing it for the benefit of such person as shall
appear to have a right to it, it w^ill not prevent the running of the stat-
ute of limitations against the rightful owner out of possession who is not
a party to the suit, or affect the title of the property in any respect.
Groom, v. Blake, 8 Irish C. L. 432. When the party entitled has
been ascertained, the receiver will be regarded as his receiver.

Since, after the court has appointed a receiver, his possession is the
possession of the court for the benefit of the parties to the suit, such
possession may not be disturbed without leave of the court. Any per-
son doing so is guilty of contempt of court, and may be imprisoned
for such contempt. Angel v. Smith, 9 Yes. 335 ; Ames v. Birken-
head Docks, 29 Beav. 333 ; Watkiiis v. Pinkney, 3 Edw. Ch. 533 ;
Devisser v. Blackstone, 6 Blatchf . 235 ; Wiswall v. Sampson, 14 How.
(U. S.) 52 ; Mattel' of Cohen, 5 Cal. 494 ; Robinson v. Atlantio dt
Great Western R. R. Co., 66 Penn St. 160 ; Fripp v. Bridgewater
cfe C. R. R. Co., 3 W. R. 356. "When a person claims a right para-
mount to the riglit of a receiver, he must, before presuming to take
any steps of his own motion, apply to the com-t for leave to assert his

RECEIYERS. 355

riglit against the receiver. The court will not permit any one, without
its sanction or authority, to interrupt or prevent payment of any
money which the receiver has been appointed to receive, though the
propei-ty may not actually be in the receiver's hands. And it is com-
petent for the court to restrain, by injunction, j)arties within its juris-
diction from doing those acts in another State which would subject
them to that process, if done in the State where the court is held.
Vf. & Canada R. R. Co. v. Yt. Centr . R. R. Co., 46 Yt. 792. If
the property in controversy" is in the possession of a third person who
claims the right of possession, the plaintiff may make him a party to
the suit, and thus render him subject to an order of the court in re-
gard to delivering such property to the receiver. Parlcer v. Brown-
ing, 8 Paige, 388 ; Battle v. Davis, (S^ N. C. 252.

ARTICLE II.

IN WHAT OASES AND OVER WHAT PKOPERTY A RECEIVER WILL BE AP-
POINTED.

Section 1. In general. Although a motion for the appointment
of a receiver will not be denied on grounds which are merely technical
{PatUn V, Accessory Transit Co., 4 Abb. Pr. 235 ; Evans v. Coventry
31 Eng. L. & Eq. 436 ; 5 DeG., M. & G. 910), yet, as receiverships
are analogous to injunctions, they should be granted, as a general rule,
only under peculiar and urgent circumstances, where the right to be
protected is clear, and when there is no other safe or expedient remedy.
Oil Co. V. Petroleum Co., 6 Phil. (Penn.) 521 ; Speights v. Peters, 9
Gill, 472 ; Blondheim v. Moore, 11 Md. 365. It should, however, be
obsei'ved that a receiver may be appointed, although the property will
be in no danger if the appointment is not made, it being sufficient that
there is a good equitable title, and the remedy at law inadequate. White
v. Smale, 22 Beav. 73 ; White v. Janies, 26 id. 191. The appointment
is usually made for one of the following purposes ; to prevent fraud,
protect the property from injury, or preserve it from destruction.
Baker v. Backus, 32 111. 79. When it becomes necessary at the com-
mencement of a suit, or at any time during its progress, or after its tenni-
nation by judgment or decree, that property involved in the controversy
should be protected, the court, in the exercise of its discretion, will ap-
point a receiver to take charge of it, to be delivered by him, when
directed by the court, together with its rents and profits, to the rightful
owner. Henshaw v. Wells, 9 Humph. 568; Parkhurstx. Kinsman, 2
Blatchf. 78 ; Crane v. McCoy, 1 Bond, 422. Parties who have acqui-

356 RECEIVEES.

esced in the enjoyment of property against their alleged rights cannot
come to the court for a receiver. Norway v. Rowe^ ] 9 Yes. 144 ;
Skinners Soc. v. Irish Soc, 1 M. & C. 162.

Although the appointment or discharge of a receiver is said to be in
the discretion of the court, yet it is not an arbitrary discretion, but the
determination of the court, if not in conformity with well-established
rules, may be reversed on error. Milwaukee H. R. Co. v. Soutter, 2
Wall. 521 ; contra : Wilson v. Davis, 1 Mont. 98. The bill praying
for the appointment is not, however, subject to demurrer. Chicago^
etc., Co. V. TJ. 8. Co., 57 Penn. St. 83.

The object of appointing a receiver pending a suit is to secure prop-
erty to the one who may show that he is entitled to it, to prevent w^aste,
and to cause the least possible injury to the parties. Where the con-
troversy is only respecting the title to property, one party having a
clear legal right to its possession, the court will be reluctant to inter-
fere. Lenox V. Notrebe, Hempst. 225. As a rule, a receiver will not
be appointed during the progress of a cause, unless there is the strongest
reason to believe that the plaintiff is entitled to the relief demanded
by him in his complaint, and there is danger that the property will be
materially injured before the case can be determined. Hamilton v.
Accessory Transit Co., 3 Abb. Pr. (IST. Y.) 255. When the action is
one of a class in which the statute provides that a receiver may be
appointed, the pleadings need not show that a receiver is necessary, but
the special reasons for his appointment may be shown by affidavits on
a motion. Hottenstein v. Conrad, 9 Kans. 435.

To give a person a claim to the appointment of a receiver, he must
have a strong presumptive title to the property in himself, or in com-
mon with others, or have some lien upon it, or it must constitute a
special fund to which he may resort for satisfaction. Jones v. Pugh,
8 Yes. 70 ; Mays v. Rose, Freem. (Miss.) Ch. 718 ; Watkins v. Worth-
ington, 2 P>land. Ch. 509 ; Vause v. Woods, 46 Miss. 120. When the
plaintiff has an equitable title to part of the property, and a legal and
equitable title to another part, and the defendant shows no title, a re-
ceiver will be appointed if the preservation of the property requires it
to be done. Cole v. O'Neill, 3 Md. Ch. 174. A receiver will be ap-
pointed against the legal title, only when it is clearly proved that fraud
or imminent danger would result if possession were not taken by the
court. Ki]>p V. Ilanna, 2 Inland. Ch. 20 ; Thompson v. Diffenderfer,
1 Md. Ch. 489; West v. Chasten, V2 Fla. 315. When two parties
have an equally good claim to property which is not sufficient to satisfy
both, a receiver will be appointed. Ilamberlain v. Marble, 24 Miss.
586.

RECEIYEES. 357

A receiver may be appointed of the rents and profits of real estate,
of such personal property as may he taken on execution, and of what-
ever is regarded in equity as assets. Chaplin v. Young^ 6 L. T. (N. S.)
97; 33 Beav. 330; Blanchard v. Cawt?torne, 4 Sim. 572; Sloom v.
Moore, 37 Penn. St. 217. Among the subjects of the jurisdiction may
be mentioned, tolls of bridge, turnpike, canal, railway, dock and mar-
ket companies. Drewry v. Barnes, 3 Russ. 105 ; De Winton v. Jfayor
of Brecon, 26 Beav. 533 ; Ccmington Draw Bridge Co. v. Shepherd,
21 How. (IT. S.) 125 ; State v. Northern Centr. B. R. Co., IS Md. 193.
The machinery of a steam vessel {^Brenan v. Preston, 2 D. M. & G.
831) ; the profits of the business of a solicitor {Candler v. Candler, Jac.
225) ; the })rofits of an office, or pensions, that may lawfully be assigned.
Palmer v. Yaughan, 3 Swanst. 173 ; Heald v. Ilay, 3 Giff. 467. But
where an application was made for the appointment of a receiver to
discharge the duties of an office, and receive its fees and emoluments,
pending a suit to try the right to it, and it appeared that the incmn-
bent was in the actual discharge of the duties of the office, it was held
that the court had no jurisrliction to appoint a receiver in such a case.
Tappan v. Gray, 9 Paige, 507.

A receiver may be appointed in an action for the recovery of real
estate and damages for witliholding it. Ireland v. Nichols, 37 How.
Pr. 222. In such action title in the plaintiff will not alone be sufficient
to authorize the appointment. Some equitable grounds must be shown
entitling liim to the rents and profits as such, or their sequestration must
be necessary for his protection. People v. Mayor of N. Y., 10 Abb.
Pr. 111. A court of equity may appoint a receiver to take possession
of property in controversy which is in possession of the defendant's
agent, and it may order such agent to deliver the property to the re-
ceiver although he is not a party to the record. Matter of Cohen, 5
Cal. 494. A receiver will be appointed upon the application of the
consignor of goods, on the ground of the fraud and insolvency of the con-
signee, even in case of consignment to sell on a del credere commission.
MicMethwaite v. Rhodes, 4 Sandf . Ch. 434. Although wliere there is a
litigation as to which of two parties is entitled to a debt due from a thii'd
person the debtor is not obliged to pay it to either party, yet if it is
necessary to enforce payment before the final hearing, a receiver must
be appointed. Mills v. Pittman, 1 Paige, 490. A receiver may in a
proper case be appointed to carry on a business. Smith v. N. Y. Con
solidated Stage Co., IS Abb. Pr. 419 ; S. C, 28 How. 208.

A receiver cannot be appointed without suit unless in some excep-
tional cases such as infancy or lunacy. Hardy v. McClellan, 53 Miss.
507; Baker v. Backtis, 32 111. 79. An injunction, a receiver and a

358 KECEIYEES.

writ of ne exeat may be allowed in the same suit when necessary to
enable the court to do justice between the parties. Kirby v. Kirbij, 1
Paige, 261 ; Carey v. Carey, 2 Daly (IsT. Y.), 424. The appointment
may be made before trial notwithstanding another receiver of the same
funds may have previously been appointed by another court in a sep-
arate action. The second receiver in effect enters upon the discharge
of his duties when those of the first receiver terminate, and takes from
the latter the fund or such portion of it as may remain. Bailey v.
Belmont, 10 Abb. Pr. (^. S.) 270 ; S. C, 1 Jones & Sp. 239. As a
rule the opposite party is entitled to notice of the application. Ifus-
laum V. Stein, 12 Md. 315 ; Mays v. Rose, 1 Freem. (Miss.) Ch. 703 ;
TiUbals v. Sargea/tit, 14 IST. J. Eq. 449 ; Turgeau v. Brady, 24 La. Ann.
348 ; Whitehead v. Wooteti, 43 Miss. 523. To authorize the appoint-
ment without notice to the defendant he must have withdrawn himself
from the jurisdiction, or the property be in danger of loss or some
other special circumstances exist, rendering an immediate appointment
necessary. Sandford v. Sinclair, 8 Paige, 373 ; Oil Bun Pertroleum
Co. Y. Gale, 6 West Ya. 525 ; Meld v. Bipley, 20 How. Pr. 26. Where
certain stockholders of a bank made application for the appointment
of a receiver without notice to the opposite party, to take into his pos-
session the books, papers and assets of the bank, and the petition al-
leged that the plaintiffs verily believed that if notice of the application
were given, " the books, records and papers of said bank would be so
falsified or spirited away that they could not ascertain the said frauds,'*
it was held that the allegation did not confoi'm to the rule that where
a receiver is appointed without notice the j^articular facts and circum-
stances should be set forth in the bill or petition. French v. Gifford,
30 Iowa, 148. In every such case tlie defendant may applj for relief
against the order upon showing sufiicient cause. Vaii Bensselaer v.
Morris, 1 Paige, 1 . Unless the case is very urgent a receiver will not
be appointed until the defendant is heard in reply to the application.
Treihert v. Burgess, 1 1 Md. 452. The appointment may be made
before answer. Bloodgood v. Clark, 4 Paige, 574 ; Johns v. Johns,
23 Ga. 31. But not as a rule unless there exist special reasons there-
for, which must be shown to the court as proof by aflSdavits of fraud, or
of immediate danger to tlic property if not at once taken in charge by
the court. Clark v. Ridgley, 1 Md. Ch. 70 ; Wliitchead v. Wooten^
43 Miss. 523. Although when the facts are verified by affidavit, a receiver
will sometimes be appointed upon an ex parte application {Williams
V. Jenkins, 11 Ga. 595), yet it will not be done before answer unless
fraud is clearly proved by affidavit or it is shown that imminent danger
to the property will otherwise (.iisuc. Baker v. Backns, 32 111. 79.

RECEIVEKS. 359

An order appointing a receiver takes effect from the time of the de-
cision directing the entry of the order so as to give the court control
of the subject-matter from that time. Van Alstyne v, Cooh, 25 N.
Y. 489.

§ 2. Corporations and associations. A receiver ma}- be appointed
to wind uj) the affairs of an insolvent coi-poration, if there is no other
person provided by law to do it, whenever it is necessary in order to
preserve the interests of all concerned. Starh v. Burke, 5 La. Ann.
740. The appointment of a receiver does not necessarily follow, upon
a decree declaring a corporation insolvent, yet, it will generally be
made, unless it is shown to be for the interest of the creditors and stock-
holders to leave the creditors in the management of the affairs of the
company. Where it appeared that the directors of a corporation had
known that it was insolvent for a long time, and that, with such knowl-
edge, sales of property had been made to them to pay antecedent debts
owing them, a receiver was appointed to investigate the legaHty of
those sales. Mchols v. Perry <& Co., 11 X. J. Eq. 126. If the
majority of the stockholders of a corporation neglect to elect officers,
and there is consequently no one to conduct the affairs of the corporation,
a receiver may be appointed on the apphcation of a stockholder. Law-
rence V. Greenwich Fire Ins. Co., 1 Paige, 5S7. Where it appeared
that unless a receiver were appointed, no further work would be done
upon the extension lines of a railroad, that a land grant which was the
only security of any considerable value, the bondholders had, for large
advances made by them, would lapse, and be wholly lost, and that to
save this land grant, the road must be completed within a short time, it
was held that the exigencies of the case were such as to warrant the
court, upon the application of the bondholders, to appoint a receiver
with power to borrow money to finish the road. Kennedy v. St. Po/aL
(& Pacific B. R. Co., 2 Dillon, 448. A bill in equity having been
filed against a railroad company by the holder of stock, which it was
alleged was illegally issued, praying that the facts might be inquired
into, and if the stock should be found to be illegal, the plaintiff might
be re-imbursed the amount paid by him for his stock, and that pending
the suit, the company might be restrained from disposing of so much of
its property as was required for that purpose, and that a receiver might
be appointed, it was held that as the money received by the company
for the stock was not kept separate from its general funds, and could
not be identified, the relief prayed for could not be granted. WheJpley
V. The Erie R. R. Co., 6 Blatc-hf. 271.

The management of the business of a corporation cannot be assumed
by a court of equity or vested in a receiver ; neither can it be taken

800 RECEIYERS.

from the board of directors except under proceedings to win i up the
corporation in accordance with the statute. The appointment ex parte
of a receiver to manage the corporate business, and the granting of an
injunction in like manner, on an interlocutory ex parte application,
whereby the control of the business is taken from the directors, are
void, and such an abuse as may be corrected by mandamus. Port Hu-
ron (& Chicago R. B. Co. v. Judge of St. Clair Circuity 31 Mich. 456.
But although a receiver will not be appointed to supersede permanently
the managers of a railway, and to take charge of the entire affairs of
the road ; yet, where two railroad companies are tenants in common of
an easement, the court will protect the one against an invasion of its
rights by the other. Dela/ware, Lackawanna <& Western i?. B. Co. v.
£^rie R. R. Co., 21 N. J. Eq. 298. The appointment of a receiver of
a national banking association organized under the act of congress of
June 3, 1S64 (13 Stats, at L. 39), supersedes the power of the directors
to exercise the incidental control necessary to carry on the business of
banking ; the receiver being required to take possession of the books,
records, and assets of every description of the association, and the asso-
ciation being from that moment forbidden to pay out any of its notes
or bills, or otherwise prosecute the business of banking. But the cor-
porate franchise of the association is not dissolved, and the association
continues to exist as a legal entity. Bank of Bethel v. Pahquioqus
Bank, 14 Wall. 383. The receiver of a corporation is not an assignee
for a valuable consideration in the ordinary sense of the term, but is
regarded as the voluntary assignee and personal representative of
the corporation. Receivers v. The Paterson Gas Light Co., 3 Zabr.
283.

§ 3. Partnership. The court will always entertain an application.
for a receiver, where the object of the suit is to wind up the partnership
affairs, and the appointment is sought for that pui-pose. Sheppard v.
Oxenford, 1 K. & J. 491. But the fact that the bill prays for a disso-
lution is not a sufficient ground for the appointment of a receiver, un^
less it contains such allegations as will, if proved at the hearing, entitle
the plaintiff to a decree for dissolution {Goodman v. Whitcoinh, 1 J. &
W. 569) ; and if the appointment of a receiver to wind up the business
will destroy its value, without benefiting either party, the application
will be refused. Sle7nm/ir''s Appeal, 58 l*enn. St. 168.

In an action for the dissolution of a })artner8hip, a receiver may be
appointed upon the application of eithei- party. Marten v. Voai Schaick,
4 Paige, 479. In Connecticut, under tlie statute of 1867 (§§ 1, 2, ch.
79), providing that upon the dissolution of any copartnership, if the
parties cannot agree upon the distribution of the partnership effects,

EECEIVERS. 861

and a settlement of tlie partnership affairs, either of the parties may
apply to any judge of the superior court for the appointment of a re-
ceiver to receive, hold, and dispose of all the estate of such copartner-
ship, real and personal, and apply the same in such manner and
form as the court may direct, and that the judge so applied to shall
have power to appoint a receiver forthwith, in case he shall deem it
just and reasonable to do so, and may make all necessary orders to
carry into effect the provisions of the law, it was held that there must
be notice to the adverse party, before the appointment of a receiver,
and a direct finding by the judge, that such appointment was reason-
able. Bostvjick v. Ishell, 41 Conn. 305.

As a general rule, before the plaintiff in an action between partners
can obtain an order for the appointment of a receiver, he must show
that he is entitled to a dissolution of the partnership, or that the part-
nership has been dissolved, and that there is no provision in the articles
of coj)artnership for the winding up of the concern, or that the firm is
indolvent, and that his copartners are misapplying or wasting the as-
sets. WUliams(y)i v. Wilson, 1 Bland's Ch. 418 ; Henn v. Walsh, 2
Edw. Ch. 129. There must, in short, be proof of such a breach of
partnership duty as to warrant the apprehension that the other party
may make way with the property and defeat the object of the suit.
Anonymous, 2 Daly, 533 ; Seighort7i€r v. Welssenhorn, 20 N. J. Eq. 172 ;
Baxter v. West, 28 L. J. Ch. 169. Where a partnership is insolvent,
and the other members of the firm are excluding a co2:)artner from the
possession of all the goods, effects, books, papers and vouchers of the
concern, and are collecting the debts and misapplying the property of
the finn, a receiver will be appointed upon the application of the ag-
grieved partner. Williamson v. Wilson, 1 Bland. Cli. 418. So, where
a partner carries on the trade with the effects of the concern, on his sepa-
rate account, or in any other way deprives his copartner of the share to
which he is entitled in winding up the concern, it is a proper case for the
appointment of a receiver. Wilson v. Greenwood, 1 Swanst. 471 ; Har-
ding V. Glover, 18 Yes. 281 ; Speiglds v. Peters, 9 Gill, 472. When
a limited partnership is insolvent, and the insolvent partners neglect to
put the eft'ects of the concern in the hands of a suitable trustee, to be
distributed among all of the creditors of tlie. firm ratably in proportion
to the amount of their several claims, a creditor may have a receiver
appointed to protect the trust fund and distribute it among the credit-
ors. Yam, Alstyne v. Cook, 25 N. Y. 489. The death or bankruptcy
of one of the members of a firm is not of itself a groimd for the ap-
pointment of a receiver as against the surviving or solvent partners.
Before the court will interfere in such a case, there must be shown
Yol. Y._46

362 EECEIYEKS.

some breach t neglect of duty on the part of the latter. Philips v.
Atklnsofi, 2 Bro. C. C. 272; Collins Y.Young, 1 Macq. 385; Tilling-
hast V. Charaplin, 4 R. I. 173 ; Miller v. Jones, 39 111. 54. It is, how-
ever, a matter of course, to appoint a receiver when all the partners are
dead, and a suit is pending between their representatives ; or when
such appointment is sought by a partner against the representatives, or
assignees in bankruptcy of his late copartners. Philips v. Athinson,
siipra I Freeland v. Stansjield, 16 Jur. 792 ; Fraser v. Kershaw, 2K.
& J. 496 ; Helme v. Littlejohn, 12 La. Ann. 298.

It does not necessarily follow that because a partner in possession is
solvent, no receiver will be appointed. The question of solvency may
or may not become material. Where the testimony leaves the exist-
ence of a partnership in doubt, and there is no proof of the insolvency
of a party in possession, a court of equity will not interfere to take the
property out of his hands, and give it to a receiver. But where a part-
nership is established, and the defendant in possession excludes the
plaintiif from any control, a receiver should be appointed without any
regard to the solvency of the defendant. Hottenstem v. Conrad, 9
Kans. 435. Where the question is in relation to the receipt of money
only, which, if received by the parties, will not be applied to its proper
purposes, a receiver may be appointed, although the dissolution of the
partnership be not sought. Hall v. Hall, 3 Mac. & G. 90. So, a
receiver may be appointed in a suit in which a decree can be made for
carrying on the concern according to the terms of a specific instrument
by which the parties agreed that the profits should be exclusively ap-
propriated to particular purposes. Const v. Harris, T. & R. 517.
Although where partners agree that the partnership shall continue for a
definite period, neither of them can dissolve the partnership, until the
time fixed, yet the court will appoint a receiver before the expiration
of the term, when it appears that a member of the firm is committing
acts which are inconsistent with his duty as a partner, and destructive
of the mutual confidence which ought to subsist between the parties.
Baxter v. West, 28 L. J. Ch. 169 ; Smith v. Jeys, 4 Beav. 505.

§ 4. Mortgages. In case of a mortgage, a receiver ought not to be
appointed, when the mortgaged property is of such value as to render
it clear that on a foreclosure and sale the debt can all be made. Pullan
v. Cincinnati d; Chicago P. P. Co., 4 Biss. 35. And see Williams
V. Nolam^d, 2 Tenn. Ch. 151 ; Worrill v. Colcer, 56 Ga. (S^^. AVliere,
in an action for the foreclosure of a mortgage, a receiver is asked for, if
the vahdity of tlie mortgage is inqjeached on probable grounds, the
application will be refused. Leahy v. Arthur, 1 Ilogan (Ir.), 92.
Wlien, in such an action, the mortgagor, or his assignee who is in posses-

RECEIYEKS. 363

sion, is insolvent, and the security inadequate, the court may appoint a
receiver of the rents and profits. Astor v. Turner^ 2 Barb. 444. And
see Phillips v. Eiland, 52 Miss. 721. And the same is true where
a mortgagee in possession is insolvent, and the rents and profits in dan-
ger of being lost, or where the mortgagee is committing waste upon the
mortgaged premises. Bolles v. Duff, 35 How, Pr. 481 ; Sea Ins. Co.
V. Stehbins, 8 Paige, 565 ; Cheever v. Jutland, etc., R. R. Co., 39 Yt.
653 ; Wcdl Streei Fire Ins. Co. v. loud, 20 How. Pr. 95 ; Ogde)isburg
V. Arnold, 5 Paige, 40. But unless the mortgagee has contracted that
he shall have the rents and income after default made, he is not entitled
to them or to a receiver to get them in, except when there is an insuf-
ficiency of the property to meet the debt ( Whitehead v. Wooten, 43
Miss. 523 ; Shotwell v. Smith, 3 Edw. Ch. 588) ; nor, if the defendant
gives security to account for the rents and profits as the court may
direct, in case there shall be a deficiency upon a sale of the premises
under a decree of foreclosure. Sea Ins. Co. v. Stehhins, 8 Paige, 565.
Where the mortgage was past due, with large arrears of interest and
taxes, and an effort had been made by the party in possession to defeat
the mortgage by conveyances under tax titles, it was held a propei* case
for the appointment of a receiver. Finch v. Houghton, 19 Wis, 149.

Where the legal title to the mortgaged premises is in the mortgagee,
as he may bring ejectment for the recovery of the possession, he is not
entitled to a receiver, Berney v. Seioell, 1 J. & W. 628 ; Ackland v.
Gravernor, 31 Beav. 481 ; Cortleyeu v. Hathaway, 3 Stockton, 39 ; Wil-
Hams V. Rohinson, 16 Conn. 524 ; Beverley v. BrooTce, 4 Gratt. 209.
A receiver as a rule Avill not be appointed on the application of a second
mortgagee or equitable incumbrancer, against a prior legal mortgagee
•in possession, if there is any thing due to him on the mortgage, unless
he refuses to accept payment {Quinn v. Brittain, 3 Edw, Ch. 314 ;
Callajnan v. Shaw, 19 Iowa, 183) ; although he acquired the mortgage
by assignment. Berney v. Sewell, sujyra / Bates v. Brothers, 2 Sm.
& G, 509, If, however, a prior legal mortgagee in possession has
grossly mismanaged the estate, a receiver may be appointed. Rowe v.
Wood, 2 J. ife W. 553. But a third mortgagee in possession, who has
loaned money with notice of the second mortgage, and has then pur-
chased the first mortgage, cannot retain possession as against the second
mortgagee after the first mortgage has been paid. Hiles v, Moore, 5
Beav, 181. In a suit for the foreclosure of a mortgage, a receiver may
be appointed at the instance of an equitable mortgagee against the
mortgagor in possession. Reid v. Middleton, T. et R. 455.

The appointment of a receiver of chattel property held by a mortgagee
in possession, unless in a case of necessity, to secure the rights of third

364 EECEIVEKS.

persons, is unconstitutional, as impairing the obligations of a contract.
Patten v. Accessory Transit Co., 4 Abb. 235. Where the United
States marshal had taken possession of a vessel at the suit of attaching
creditors and libelants in admiralty, and there were several mortgagees
of the vessel, and judgment and execution creditors, it was held that
the State court, upon the application of one of the mortgagees, would
appoint a receiver to represent the claimants other than the libelants,
and to obtain for distribution in the State court, should the district
comt see fit, any surplus remaining in the latter court, out of the pro-
ceeds of the vessel, after the claims of the libelants had been paid.
TJwmpson V. Vanvechten, 5 Duer, 618.

§ 5. Executors and trustees. The case must be a strong one for
the court to dispossess an executor or trustee, by appointing a receiver.
Smith V. Smith, 2 Y. & C. 361 ; Harrup v. Winslet, 37 Ga. 655 ; Led-
deVs Exr. v. Starr, 19 N. J. Eq. 163 ; Haines v. Carpenter, 1 Woods,
262 ; Powell v. Quinn, 49 Ga. 523. If the property is in no danger,
and there is no evidence which shows the necessity of interference, a
receiver will be refused. Whitworth v. Whyddon, 2 Mac. & G. 52.
But if it be established that there has been misconduct, waste, improper
disposition of the assets, or that the estate is in danger of being lost, there
is a case for a receiver. Middleton v. Dodswell, 13 Ves. 266 ; E'oans
V. Coventry, 5 D. M. & G. 918 ; Jenkins v. Jenkins, 1 Paige, 243. The
same is true where a party in a fiduciary position has been guilty of a
breach of duty, as, that an executor has neglected to raise a certain
amount which he was required to do by the will, for the maintenance
and education of infant legatees ; or that he has not done what he
might to get in the personal property of the testator, that he has left a
considerable portion of it outstanding on iuq^roper securities, and that'
he has not realized a given sum, which, according to the will, he should
have done, in order that the parties could know what they might look
to {Richards v. Perkins, 3 Y. & C. 307 ; Hart v. Tulk, 6 Hare, 611) ;
or that by reason of disputes among the trustees the payment of rents
have been permitted to fall in arrear. Wilson v. Wilso7i, 2 Keen, 249.
AVhere property bought with tlie trust money of an estate has been
conveyed by the executor to a friend, and through him to the executor's
wife, with the fraudulent intention of preventing a levy upon it by a
devisee for the amount of a decree in his favor, it is proper for the
court to appoint a receiver to take the property and sell it, and collect
and invest the proceeds for the Ijcneficiary. Qnnn v. Blair, 9 Wis.
352.

In many cases a receiver will l)e a})pointed of property in the hands
of an administrator, when it would not be done if the property were

RECEIYERS. 365

held by an executor. MiddXeton v. Dodswell, 13 Yes. 266 A court of
equity has authority to protect property of an intestate or testator,
by appointing a receiver pending a litigation for administration or pro-
bate ; and it will not refrain from exercising its jurisdiction, because
the court of probate may provide for the collection of the effects of the
deceased by granting letters pendente lite. But the actual grant of
such letter would have the effect to oust the authority of the court to
appoint a receiver, by removing the necessity for such appointment.
Matter of Colvin 3 Md. Ch. 278. "When the administratrix, by fraud
and collusion, is misapplying the assets of the estate, and a judgment
creditor of the estate shows that he has good reason to fear some prob-
able future injury to his interest, the court will appoint a receiver to
take charge of such assets. Dougherty v. McDougald, 10 Ga. 121.
So, a receiver may be appointed when the conduct of the adminis-
trator is such as to hinder and embarrass the collection of the debts of
the estate. Du Vol v. Marshall, 30 Ark. 230. See, also, Gray v.
Gaither, 74 No. Car. 237.

Where an action is brought for the removal of a trustee on account
of liis unfitness, the court may, in its discretion, appoint a receiver
pending the suit. Janeway v. Green, 16 Abb. Pr. 215, note. But a
strong case must be established to induce the court to do so. Foythress
V. Poythress, 16 Ga. 406. A receiver of trust funds will not be
appointed on the bare allegation that the trustee is a poor man, or an old
man, in the absence of proof of his unfitness or incapacity ; nor that the
trustee has mingled the funds of the trust estate with his own, without
proof that he keeps no book accounts, or showing some other circum-
stance indicating risk ; the only ground upon which the court interferes
in respect to trustees being that the trust fund is in danger. Howard
V. Paper a, 1 Madd. 142 ; Ilosack v. Rogers, 6 Paige, 415 ; Orphan
Asylrnn, v. McCartee, Hopk. 429. In order to induce the court to take
an estate from the possession of a competent trustee, it is not enough
that the estate has depreciated in value, and that incumbrances thereon
have been increased. He must have suffered the property to be placed
in a state of insecurity which due care would have prevented. Barh-
ley V. Lord Reay, 2 Ilare, 308. Xor is it a good cause for the appoint-
ment of a receiver, that a trustee for sale put the vendee in possession
before the payment of the purchase-money. Browell v. Reed, 1 Hare,
434. If, however, it be shown that the trustee is insolvent, or is divert-
ing the trust estate from the purposes of its creation, or violating its
conditions, or allowing others to waste or appropriate the fund, or any
part of it, a receiver will be appointed. State of Illinois v. Delafield,
8 Paige, 527; Ora/nston. v. Plwmh, 57 Barb. 59. Where a ti-ustee who

36(i KECEIYEHS.

is responsible, and has not been guilty of any breach of duty involving
moral turpitude, holds a contract for the beneht of several persons, a
receiver will not be appointed on the application of one of them w^ho
has only a small interest in the profits, where the appointment would
deprive the contractors of money sufficient to perforin the contract.
Devlin v. Hope, 16 Abb. Pr. 314, As a general rule, a receiver of a
trust fund will be appointed for the purpose of protecting the fund,
when the complainant has an equitable interest in the subject, and the
trustee is wasting the fund, or removing it out of the jurisdiction of
the court. But where the legislature has appointed the executive
officers of the State trustees of a fund, and some of the objects of the
trust are of an important public character, the court will require a very
strong case to be made out, such as fraud and imminent danger, before
it will take the fund out of the hands of the trustees, and place it in
the keeping of a receiver. If the trustees are guilty of a breach of
duty, they can be enjoined, and be made personally responsible ; and
the fund can be followed in the hands of persons getting hold of it in
a fraudulent manner. Vo8e v. Reed, 1 Woods, 647. A bill in equity
was filed by A, as the guardian of B, an infant, against C, charging that
C had wrongfully and fraudulently jDossessed himself of the property
of B, which D, an intestate, had in his possession, as the guardian of B,
at the time of his death. The property was placed by order of the
court in the hands of a receiver, and afterward E took out letters of
administration on the estate of D. E then filed a bill praying that the
property might be taken from the receiver and placed in her hands as
administratrix of D. Held, that the prayer of the complainant could
not be granted, but that she might be made a party to the cause already
pending, and assert the right of her intestate to the property, and thus
save a multiplicity of suits. Johnson v. Stewart, 41 Ga. 549.

The bankruptcy of a sole executor is good cause for the appoint-
ment of a receiver. Steele v. Cohham, L. R., 1 Ch. App. 325. But
not if the testator made him executor with full knowledge of his
insolvency {Glcuhlon v. Stoneman, 1 Madd. 143, n. ; Stainton v.
Carron Co., 18 Beav. 146, 161) ; though this rule has been relaxed in
favor of creditors claiming to have the property secured for their benefit,
when it is not more than sufficient to pay them. OMfield v. Cohhett,
4 L. J. Ch. (N. S.) 272.

Although it is not good cause for the appointment of a receiver that
a trustee or executor is in indigent circumstances {Anon., 12 Ves, 4),
yet it is otherwise when an executor or administrator is proved to be
of bad character, drunken habits, and great poverty, Everett v, Pry-
t}vergchj 12 Sim, 36S ; Fairbairn v. Fisher^ 4 Jones' Eq. 390. See, also,

KECEIVERS. 367

Bowling x. Scales, 2 Tenn. Ch. 63. And where the executrix and
guardian of infant childi-en married a man in needy circumstances, a
receiver was appointed. Dillon v. Lord Mount Cashell, 4 Bro. P. C.
306. So, although it is not sufficient ground for the appointment of a
receiver, that one of several trustees has gone abroad {Browell v. Reed,

1 Hare, 434), yet the case is different, when a sole executor resides
abroad. DicUns v. Harris, 14 L. T. (]^. S.) 98.

§ 6. Infants. A receiver will be appointed in an action commenced
in behalf of an infant, upon its being shown to the court that the
infant's estate is in danger even as against his father {Marnsden v.
Fairthorpe, 1 N. R. 389 ; Butler v. Freeman, Amb. 303 ; Kiffin v.
Kiffin, cited 1 P. Wms. 794; Mountfort, Ex ])arte, 15 Ves. 449) ; and
the receiver will not be discharged until the infant has had a reasona-
ble time to examine the receiver's accounts. Matter of Vanhorne, 1
Paige, 46. Where the mother of infants, who were entitled to real
estate in her right, was dead, and their father was a dissipated man and
had married his servant, a receiver was appointed. In re Cormicks,

2 Irish Eq. 264. When no testamentary guardian has been appointed
by the will, or the testamentary guardian named therein declines to
act, a receiver will be appointed upon a proper case being established.
Hicks V. Hicks, 3 Atk. 273 ; Bridges v. Hales, Mose. 111. So, if it
be shown that an infant's estate is likely to suffer from the conduct of
his guardian, a receiver will be appointed, upon the same principle it
is done in the case of executors and trustees. Duke of Beaufort v.
Berttj, 1 P. Wms. 704 ; Dillon v. MountcasJieU, 4 Bro. P. C. 306.

§ 7. Lunatics. A receiver of the estate of a lunatic will be ap-
pointed when a suitable person will not act as committee or cannot
give the required security, or where no person can be found to dis-
charge the duties of such committee without being paid, or where the
committee is infirm, or the management of the estate is onerous, or
where the committee lives far from the estate. BilUnghurst, Ex jyarte,
1 Amb. 104; barren, Ex parte, 10 Yes. 622; Radcliffe, Ex 2yarte, 1
J. & W. 619. Where proceedings have been instituted for the ap-
pointment of a committee of a lunatic, the court may appoint a
receiver of his estate, pending the determination of the question of
lunacy, upon its being shown that the estate is suffering and that there
is no proper person to take care of it. Matter of Heli, 3 Atk. 634 ;
Matter of Kenton, 5 Biun. 613.

§ 8. Yendors and purchasers. A receiver wiU sometimes be ap-
pointed as between a vendor and purchaser. Wlien the legal estate is
conveyed to a person which is subject to equitable interests, unless he
satisfy those interests, a receiver will be appointed upon the applica-

368 RECEIYERS.

tion of the party aggrieved. Pritchard v. Fleetwood, 1 Mer. 53 ;
Owing s Case, 1 Bland s Ch. 370. In an action to obtain possession of
land on the ground that legal proceedings by which the land was trans-
ferred from the plaintiff's ancestor to the defendant's ancestor, are void
for fraud, mistake and want of jurisdiction, that the defendants are
collecting rents, are insolvent, and that the premises are going to
waste through neglect, the court has power to appoint a receiver and
grant an injunction pending the suit. Rogers v. Mcvrshall, 6 Abb.
Pr. (N. S.) 457; S. C, 38 How. 43. And see Gunhj v. Thompson,
56 Ga. 316 ; Tufts v. Little, id. 139. So, where, on a bill in equity
seeking to set aside a sale of land on the ground of fraud, inadequacy
of consideration and undue influence, the court were of opinion that
the transaction would not be sustained at the hearing, a receiver was
appointed as against the devisees of the party charged with the fraud.
Stillwell V. Wilhins, Jac. 282. And the same course was taken by
the court where it was shown that the defendants had obtained a con-
veyance of the legal estate from the plaintiff under strongly suspicious
circumstances of abused confidence. Huguenin v. Baseley, 13 Yes. 107.
Where, however, a suit was brought by a cestui que truest, to set aside
a purchase by a trustee from him, an application for the apj)ointment
of a receiver was refused on the ground that the court could not inter-
fere luitil the conveyance was actually set aside, it not appearing that
the property was in any danger from the neglect or misconduct of the
defendant. George v. Evans, 4 Y. cz C. 211. A purchaser of land
having deeu discharged on account of failure of title and there being
no fund in court, a receiver was appointed over the land with direc-
tions to apply the rents in discharge of the hiterest and costs. Hill v.
Kirwan, Hogan, 175.

A purchaser, under a deed from a receiver, is not bound to examine
all the proceedings in the case in which the receiver is appointed. It
is sufficient for him to see that there is a suit in equity, or was one in
which the court appointed a receiver of property, that such receiver
was authorized by the court to sell the property ; that a sale was made
under such authority ; tliat the sale was confirmed by the court, and
that the deed accurately recites the property or interest thus sold. If
the title of the property was vested in the receiver by order of the
court, it will pass to the pm-chaser. He is not bound to inquire whether
any errors were committed by the receiver in the sale. Koontz v.
NortheT'u Bamlc, 16 Wall. 196. A receiver having sold at auction
certain real estate, the vendees paid a portion of the purchase-money,
but refused to pay the balance on the ground that there was a defect
of title. The court ordered that they should perfect the purchase, and an

RECEIVERS. 369

appeal being about to be taken from this order, the receiver gave notice
of a withdrawal of the order and consented that it should be regarded
as void. Held, that the vendees were entitled to a return of the pur-
chase-money paid with interest and the legal expenses and counsel
fees in searching the title and in opposing the proceedings to have the
purchase perfected. Drake v. Goodridge, 6 Blatchf. 531.

The failure of the party in possession of land in litigation to pay
the taxes accruing thereon is sufficient ground for the appointment of
a receiver. Johnson v. Tucker, 2 Tenn. Ch. 398.

§ 9. Tenants in common. A tenant in common may have a
receiver appointed of the property held in common upon showing to
the court that his co-tenants are insolvent, that they are in possession,
and are excluding him from the receipt of any portion of the rents and
profits ( Williams v. Jenkins, 11 Ga. 595) ; or the court may order the
tenant in common in possession to give security for payment of the
due proportion of the rents to his co-tenant. Street v. Anderton, 4
Bro. (C. C.) -114. A receiver will not, however, be appointed against
a tenant in common in possession at the suit of his co-tenant, except in
case of waste or exclusion. Billinghurst, Ex parte, Amb. 104 ; JRad-
cliffe, Ex parte, 1 J. & "W. 619. It constitutes an exclusion when the
tenant in common receives the whole rents and profits and refuses to
pay over to the other the share due to him, Sandford v. Ballard, 33
Beav. 401. Where a tenant in common advertised the estate for sale
and gave notice to the tenants to pay their rents to him alone, an ap-
plication for a receiver was refused on the ground that the conduct
complained of did not amount to an exclusion. Tyson v. Fairclough,
2 Sim. <fe Stu. 142. The rule in regard to exclusion is equally appli-
cable to a tenancy in common in equitable estates, and if there be no
exclusion a receiver may be appointed of the applicant's share. Sand-
ford V. Ballard, 33 Beav. 401.

In case some of several tenants in common are infants, a receiver
may be appointed, with directions to pay such as are of age their share
of the rents. Smith v. Lyster, 4 Beav. 227; Ramsden v. Fairthorpe, 1
N. R. 389. And if one of the infants becomes of age after the appoint-
ment of the receiver, he may apply for the payment of his share to
himseK. Smith v. Lyster, 4 Beav. 227.

§ 10. Partition. In a suit for partition the court has power to ap-
point a receiver to preserve the property from serious loss. Where
the plaintiS in such a suit proved that he had good reason to believe
that a portion of the property could not be rented in consequence of
the refusal of his co-tenant, the defendant, to unite with him, and that
the rents of other portions could not be collected on account of tlie de-
YoL. Y.— 47

370 EECEIYEKS.

fendant's interference, it was lield a proper case for the appointment
of a receiver. Plgnolet v. Bushe, 28 How. (N. Y.) 9.

§ 11. Coustructiou of will. A court of equity will entertain a bill
for the preservation of the property of a person deceased, and appoint
a receiver pending a litigation to determine the right to probate or ad-
ministration. King y. King^ 6 Yes. 172 ; Mendall v. Hendall, 1 Hare,
154. In New York it is provided by statute, that, where by action, or
proceedings for the construction of a last will and testament, an estate
has been brought within the possession, direction or control of the
supreme court, which shall have acquired jurisdiction over the same,
such court may, upon the death of the surviving executor of said last
will and testament, and during the pendency of such action or pro-
ceedings, and until they are finally carried into effect, appoint a re-
ceiver of said estate. Laws of J^ew York of 1863.

§ 12. Debtor and creditor. Where a railroad company has power
to mortgage all its property, real and personal, and the mortgage em-
braces every thing of a real and personal nature belonging to the com-
pany, all of the property of the company passes into the custody and
management of a receiver appointed by the court to administer
the affairs of the company for the benefit of the creditors. If a cred-
itor believes that the property was not legally mortgaged, or that for any
good reason it ought not to pass into the hands of a receiver, he should
apply to the court which appointed the receiver for the discharge of
the property out of custody, in order that he may proceed against it.
Robinson v. Atlantic & Great Western R. R. Co., QQ Penn. St. 160.

When a person who is insolvent,by representing that he is the executor
of the estate of a deceased person, obtains possession of funds belonging
to the estate, it is a proper case for the appointment of a receiver upon
the application of the creditors of the estate. Walker, Ex parte, 25
Ala. 81. If it be shown that an executor or devisee is wasting the
real or personal estate, a receiver will be appointed upon the applica-
tion of a simple contract creditor. Keene v, Riley, 3 Mer. 436. But
a receiver of the property of the debtor will not be granted at the in-
stance of general creditors, unless a clear case is established ; the court
being reluctant to deprive a person of property to which the applicant
has no specific claim, in order that if he establishes his claim as a cred-
itor, thei-e may l>e assets to satisfy it. Owen v. Iloman, 4 II. L. 1036.
See Todd V. Lee, 15 Wis. 305.

The court will appoint a receiver for an equitable creditor, or a per-
Bon having an e(|uital)le estate, without prejudice to persons who have
prior legal estates. Bnjan v. Connich, 1 Cux, 422. But to entitle an
equitable creditor to a receiver, it must be shown to the court that the.

KECEIYEKS. 371

property is in danger, or tliat the application is founded on some
other eqiiit}'. The court will take care not to disturb prior equities,
and will direct an inquiry to determine priorities among equitable in-
cumbrancers, permitting legal creditors to act against the estates at law.
Davis V. Duke of Marlborough, 2 Swanst. 137. Where a subsequent
incumbrancer is in possession of the estate, and a prior legal incum-
brancer cannot recover at law by ejectment, by reason of some out-
standing legal estate, a receiver may be appointed. Micklethwait v.
MicJdetJmait, 1 D. & J. 504.

Where a judgment creditor, having taken out execution at law, finds
that he is precluded from collecting the amount of the judgment by a
prior title extending to the whole interest of the debtor in the property,
he may apply to the court for the appointment of a receiver of the
proceeds of the estate of the debtor. Curling v. Marquis of Town-
shend, 19 Yes. 632 ; Flaskett v. Lord Dillon, 2 Bligh K. S. 239 ;
Hadden v. Spader, 20 Johns. 554 ; Brown v. Nichols, 42 N. Y. 26.
When there are prior mortgages, and the mortgagees not in possession,
a receiver of the mortgaged premises will be appointed at the suit of
judgment creditors, without prejudice. to the right of the mortgagees
to take possession if they choose to do so. Rhodes v. Mostyn, 17 Jur.
1007 ; Bryan v. Cormick, 1 Cox, 442. When the personal property of
the debtor is in danger, a receiver of it will be appointed at the suit of
the judgment creditor, as soon as the execution is in the hands of the
sheriff. Sinith v^ Burst, 1 Coll. 705 ; Boss v. Bevan, 10 Md. 466.

§ 13. Specific performance. If one of the parties to a contract for
the sale of property refuses to complete the contract after performance
by the other party, and a suit is brought by the latter for specific per-
formance, a receiver will be appointed when it appears that the party
in default can be compelled to execute his contract, and the circum-
stances of the case are such as to render the appointment necessary.
Boehm v. Wood, 2 Jac. & Walk. 236 ; Metcalfe v. Pulvertoft, 1 Yes.
& Bea. 180 ; Ball v. Jenkinson, 2 id. 125; Shakel v, Marlborough, 4
Madd. 463. Where, in a suit for specific performance, brought by the
vendor of land against the vendee, it was showm that the vendee, who
was in possession, was allowing the property to go to waste, and that
it had in consequence become an insufiicient security for the balance of
purchase-money remaining unpaid, and that the plaintiff had made
reasonable propositions for a rescission of the contract, and an arbitra-
tion of differences, it was held proper to appoint a receiver of the prop-
erty. Beade v. Bamlin, Phill. (N. C.) Eq. 128. And see Tufts v.
Little, 56 Ga. 139.

Where, in a suit for the specific performance of a contract, the plain-

372 RECEIYEES.

tiifs make out ?i prima facie case, the court, upon motion, may appoint
a receiver. This was done where the bill alleged that the defendant
had taken possession, was insolvent, and had attempted to sell the
estate. Roll v. Jenhinson, 2 Y. & B. 125. The defendant agreed to
sell land to A, the purchase-money to be paid in five years, or before,
with half-yearly interest, and that the contract might be avoided, if the
interest, after becoming due, remained unpaid twenty-one days. Sub-
sequently the defendant agreed with the plaintiff, who had advanced
money to enable him to pay arrears of interest, to extend the time for
payment of the half-yearly interest, but in violation of his agreement
re-entered as for a forfeiture. Upon a bill for specific performance, a
receiver was appointed. Dawson v. Yates, 1 Beav. 301. And in a
suit for the specific performance of a contract for the sale of real estate,
consisting of buildings and offices upon which it would be necessary to
effect insurances, and of ornamental grounds requiring a considerable
expenditure of money and attention, a receiver was appointed upon the
application of the vendor, pending a reference as to the title. Boehm v.
Wood, 2 Jac. & Walk. 236. A receiver will be appointed pending a
suit for specific performance, against a party holding under a legal title,
whenever the court is satisfied that the decree will be in favor of the
plaintiff, and that it is expedient or equitable that a receiver should be
appointed. Id.

§ 14. Divorce. Wlien an action is brought for a divorce on the
ground of adultery, a receiver may be appointed over the property of
the husband, in order that the court may apply so much of the prop-
erty as may be required, to the support of the family of the defendant
pending the litigation and subsequently. 2 Wait's Pr. 210.

§ 15. Ejectment. To entitle the plaintiff in ejectment to a receiver,
he must show a good title to the premises in question, and that the ap-
pointment is necessary to protect the property, or its rents or profits,
during the litigation ; and some equitable grounds must be made to
appear, giving to the plaintiff the right to the rents and profits as such,
or showing that their sequestration is essential to his protection. Peo-
ple V. Mayor, etc., of New York, 10 Abb. Pr. 144. A sequestration
will be shown to be essential when it appears that the defendant is
insolvent, that he is collecting rents which it will be out of his power
to refund, and which in all probability will be lost unless he is restrained,
and that the property, in consequence of his incapacity or neglect, is
going to waste, and will continue to do so, if it remains in his posses-
sion. Rogers v. Marshall, 0 Abb. Pr. (N. S.) 45Y ; S. C, 38 How. 43.
If, when a receiver is a]>pointe(l, a party claiming a right in the same
Bubject-matter is out of possession, he must apply to the court before he

EECEIVEKS 373

commences any legal proceedings affecting the possession which the
receiver has acquired. Evelyn v. Lewis, 3 Hare, 472. It has been
held that one who, without leave of the court, has brought an action at
law to recover lands in the possession of a receiver, cannot come to the
court for permission to continue his proceedings. Lees v. Waring, 1
Hogan, 21(j. But it will sometimes be permitted in a special case.
Gower v. Bennett, 9 L. T. 310. Where an action of ejectment was
instituted against a receiver without the previous leave of the court,
the court directed inquiry whether it would be for the benefit of the
parties interested, who were adults, that the receiver should defend the
ejectment, and charge the expenses in his accounts. Anonymous, 6
Yes. 287.

§ 16. Supplementary proceedings. A receiver appointed by the
court in proceedings supplemental to execution is equally an officer of
the court, and subject to its control, as if appointed during the pen-
dency of the suit. Myrich v. Selden, 36 Barb. 15. In New York,
whenever the plaintiff has jDcrfected judgment, and has issued execution
thereon, which has been returned unsatisfied in whole or in part, the
appointment of a receiver is a matter of course. But the appointment
cannot be made until after such return. Lent v. McQueen, 15 How.
Pr. 313; Heroy v. Gibson, 10 Bosw. 591; Darrow v. Lee, 16 Abb.
Pr. 215. The receiver may be appointed at any time during the pend-
ency of the proceedings after the return of the order for the examina-
tion of the defendant before the judge. People v. Mead, 29 How. Pr.
360. Until, however, such appointment is made, no lien is created on
the personal property of the debtor. Brown v. Nichols, 42 N, Y. 26-
A receiver appointed under proceedings supplementary to execution
cannot maintain a suit to set aside a conveyance of land made by the
debtor previous to the appointment of the receiver, on the ground that
it was done to hinder and delay creditors. Hayner v. Fowler, 16
Barb. 300.

ARTICLE III.

WHEN A RECEIVER WILL NOT BE APPOINTED.

Section 1. In general. A receiver will not in general be appointed
unless a suit is pending ; the only exceptions to the rule being in the
case of lunatics. Whitfield, Ex parte, 2 Atk. 315 ; Mountfort, Ex
parte, 15 Yes. 445 ; Crowder v. Moone, 52 Ala. 220. Nor to take
charge of property which is not in the possession of a party to the suit.
Searles v. Jacksonville P. cfc M. R. R. Co., 2 Woods, 621. Nor of
property in which the applicant has no interest. Smith v. Wells, 20

374 KECEIYERS.

How. (N. T.) 158. Nor of property in another State owned by a person
who has not been brought within the jurisdiction of the court. Field
V. Ri-pley, id. 26. The court will not appoint a receiver on the appli-
cation of the plaintiff before judgment, unless there is the strongest
reason to believe that he will ultimately be found entitled to the relief
demanded by him, and that the property embraced in the controversy
is in danger of being lost or materially injured, before the determina-
tion of the case. Ilainilton v. Accessory Transit Co., 3 Abb. Pr. 255.
The affidavit of the defendant, that no execution upon a judgment on
which an application is made asking for the appointment of a receiver
has ever been returned, is, in general, a sufficient answer to the motion.
Wright v. Strong , 3 How. (^. Y. ) 112. An order for the appointment of
a receiver will not be made in an improper case, even with the consent
of both parties, especially where the rights of third persons may be
concerned. WJielpley v. The Erie R. R. Co., 6 Blatchf. 271.

The application for the appointment of a receiver must be supported
by evidence showing that the appointment is necessary. Where the
charges were not directly made, but were stated on the information and
belief of the complainants that an executor was unfit and incompetent
to manage and successfully control the estate ; that he had only culti-
\ated a part of the land susceptible of cultivation, when in the opinion
of the complainants all of it should have been cultivated ; that he was
endeavoring to defeat a bequest to a certain church, by depreciating the
value of the estate, in order to sweep away the assets, they were held
insufficient. Haines v. Carpenter, 1 "Woods, 262. Although the fact
be established that trust property is in danger, that of itself will not be
sufficient to justify the appointment of a receiver. It must be further
shown that the party in possession is not responsible. Willis v. Corlies,
2 Edw. Ch. 281 ; Clark v. Ridgely, 1 Md. Ch. TO ; Blondheim v.
Moore, 11 Md. 365 ; Burt v. Burt, 41 N. Y. 46 ; Hai/nes v. Carpenter,
1 Woods, 262. A court of equity will not, at the instance of a minority
of the stockholders of a corporation, appoint a receiver to carry on the
business of the company, unless a majority of the stockholders are pur-
suing a course so illegal and ruinous as to require the affairs of the com-
pany to be stopped. Mere general charges of fraud, illegality, or mis-
management will not be sufficient. Hand v. Dexter, 41 Ga. 454. Where
the plaintiffs in an action at law brought to recover possession of real
estate, whose claim to it was doubtful, applied for a receiver on the
ground that they believed that the party in possession of the property
was insolvent, and that it could not be left in his possession without
injury to them, the application was refused. Cofer v. Echerson, 6 Iowa,
502.

KECEIYEES. 375

A receiver will not be appointed on the mere ground that a partner-
ship has been dissolved, where this is the only fact alleged {Harding v.
Glover^ 18 Ves. 281) ; nor solely because the partners quarrel {Henn v.

Walsh, 2 Edw. Ch. 129) ; nor where the existence of a partnership is
positively denied {Popjper v. Scheider, 38 How. Fr. 34) ; nor where the
partner making the application has the property in his own possession.
Smith V. Loioe, 1 Edw. Ch. 33. So, where upon the dissolution of a
partnership the partners agree that certain members of the firm shall
take possession of the property and wind up the concern, a receiver
\\'\\\ not be appointed on the application of the others, unless they show
a clear breach of contract or duty, or misconduct amounting to fraud.

WalTcer v. Trott, -1 Edw. Ch. 38. Where there were numerous credit-
ors of an insolvent finu, and an action was brought by a single firm, not
only against the general paitners of the insolvent firm, but also against
a special partner who denied his indebtedness, an application for an in-
junction and the appointment of a receiver was refused. La Chaise v.
Lord, 1 Abb. Pr. 213. "Where a suit was brought by one of several
persons engaged in a common business enterprise, against the others,
who claimed that the company was a corporation, while the complain-
ant insisted that it was a copartnership, asked the court so to declare, to
dissolve the partnership, and appoint a receiver to take charge of its
effects and settle up its affairs, it was held erroneous to grant the appli-
cation without making the corporation, as such, a party to the suit.
BaTcer v. Backus, 32 111. 79.

In an action to recover the possession of real estate, and damages for
its wrongful detention, it is not proper to appoint a receiver of the rents
and profits. Tho^mpson v. Sherrard, 35 Barb. 593. See, also, Brir-
dell V. Burdell, 54 How. (N.T.) 91 ; Guernsey v. Povjers 9 Hun (N. T.),
T8. In proceedings in the nature of quo vjarranto, to determine the
right of adverse claimants to a public office, a court of equity has no
power to appoint a receiver to discharge the duties of the office, or to
receive its fees or emoluments. Tappan v. Gray, 9 Paige, 507 ; affirmed,
7 Hill, 259. And in such proceedings for the dissolution of a cor-
poration, a receiver cannot be appointed before judgment, except in
cases of insolvency. People v. Northern R. R. Co., 42 N. Y. 217.

A motion for the appointment of a receiver will be denied, where the
party making the application has been guilty of laches. Young v.
Graham, 1 Hogan, 173 ; Jones v. Jones, 3 Mer. 173. The failure of
the court to appoint a receiver cannot be assigned as error by the de-
fendant, when he did not ask for such appointment, but opposed it.
Emmons v. teller, 39 Ind. 1 78.

Creditors who have neither lien nor title, and have not recovered

376 KECEIYERS.

judgment, are not entitled to an injunction and receiver in a suit to
set aside an assignment or pretended sale, by the debtor, of bis assets ;
and the fact that they cannot yet recover judgment, because their
demands have not matured, makes no difference. Johnson v. Fanrnum,
56 Ga. lii.

ARTICLE IV.

WHO APPOINTED EECEIVEK.

Section 1. Who appointed. A receiver should, of course, be a
person of integrity, and have the knowledge and ability requisite to
manage the estate without aid ; and he ought, as a rule, to be impartial
and disinterested, and be able, consistently with his other pm-suits, to
devote sufficient time to the duties of the office. Wynne v. Lord New-
horough, 15 Yes. 284 ; Fripp v. Chard R. R. Co., 11 Hare, 241 ; Lupton
V. Stephenson, 11 Irish Eq. 484. If, however, the court believes that
it will be beneficial to the estate to appoint as receiver a person who is
interested in the suit, it has power to make such appointment. The
following persons have been made receivers : a tenant for life {Powys
V. Blagrame, 18 Jur. 463) ; one of the members of a firm in a suit to
dissolve a partnership ( Wilson v. Greenwood, 1 Swanst. 471 ; Blake-
ney v. Dufaur, 15 Beav. 40 ; Todd v. Miller, Tenn. Ch. 107) ; a retired
partner who had advanced all of the capital, and was liable for the
partnership debts. Hoffman v. Duncan, 18 Jur. 69. When the dis-
solution of a firm is caused wholly by the insolvency of one of the
partners, the solvent partner ought to be appointed receiver, if there
is no question as to his capacity and integrity. Hubbard v. Guild, 1
Duer, 662. And where, in a suit by a friendly creditor to have a bank
declared insolvent, the bank waives all informalities, one of the officers
of the bank may be appointed receiver, the proceedings being in the
nature of a voluntary assignment by the bank. Matter of the Bowery
Bank, 16 How. Pr. 56.

If a receiver of the estate of a debtor has already been appointed, the
same person will Ijc appointed receiver upon the application of other
parties in a subsequent suit for a similar appointment. Rogers v. De-
Fm-est, 7 Paige, 272. Where two receivers of the estate of an insolvent
are appointed on the same day, the court will inquire into the fractions
of the day, to settle the question of legal right in -respect to priority of
ayjpointmcnt. People v. Central City Bank, 53 Barb. 412.

§ 2. Who not appointed. Altliongh the person who shall act as
receiver is ordinarily a matter in which the court is at liberty to exer-

RECEIVEES. 377

cise its discretion, yet this discretion is not unlimited. The solicitor
of the complainant could not be receiver {Stone v. WisTiart^ 2 Madd.
64; Garland v. Garland^ 2 Yes. Jr. 137; Wilson v. Poe^ 1 Hogan,
322 ; Baker v. Backus, 32 111. 79) ; nor a party to a suit, unless by
consent of both parties {Benneson v. Bill, 62 111. 408) ; nor the next
friend of an infant while acting in that capacity in the action {Stone v.
Wisharf, fiuj^ra) ; nor the son of such next friend {Taylor v. Oldham, 1
Jac. 527, 529) ; nor an officer or stockholder of an insolvent corporation
{Attorney- General v. Bank of Columbia, 1 Paige, 511 ; S. (1 affirmed,
3 Wend. 588. There is, however, no objection to the appointment
of a solicitor as receiver, if he be not retained as solicitor of the estate.
Bagot V. Bagot, 2 Jur. 1063. A trustee, whether sole or acting jointly
with others, cannot in general be appointed a receiver ; the characters of
trustee and receiver being incompatible, and the cestui que trust having a
right to the care of the trustee to see that the receiver does his duty.
Sykes v. Hastings, 11 Yes. 363 ; Sutton v. Jones, 15 id. 584. An excep-
tion to the rule is, however, permitted when the trustee has a peculiar
knowledge of the property, or there is no one else who will act with
the same benefit to the estate. A7nes v. Berkenhead Docks, 20 Beav.
232. A mortgagee cannot be a receiver of the rents and profits of
the mortgaged premises and receive compensation therefor. Cham,
hers V. Goldwin, 9 Yes. 254 ; Langstaffe v. Fenwick, 10 id. 405 ;
Scott V. Brest, 2 Term Rep. 238. In an action to set aside an assign-
ment for fraud, a party to the assignment ought not in general to
be appointed receiver of the property. Smith v. iV. T. Consolidated
Stage Co., 18 Abb. Pr. 419.

Secured creditors cannot dictate who shall be appointed a receiver.
He is the hand of the court ; and the interest of creditors of every
grade will be considered, in making the appointment. Bicha/rds v.
Chesapeake, etc., B. R. Co., 1 Hughes, 28.

ARTICLE Y.

EIGHTS, POWERS, AND DUTIES.

Section 1. In general. A receiver has no other rights or powers
than such as are conferred upon him by the order of appointment
and the course and practice of the court. Chautauqua Bank v.
White, 6 Barb. 589 ; Grant v. DoAjenport, 18 Iowa, 179. It is usual
and proper to embody in the order instructions for the guidance of
the receiver, and to which he may look to ascertain the nature and
extent of his duties and authority. Ordinarily, his appointment con-
YoL. Y.— 48

878 EECEIYEES. •

tinnes during the pendency of the suit until a decree is rendered.
When it is designed that the term of his office shall be limited, that
intention should be expressed in the order. Weems v. Zathrop, 42
Texas, 207. The powers need not be expressly given, but may be in-
ferred fi'om the general scope of the statute. Runyon v. Farmers' ^
etc.^ Bajik, 4 iST. J. Eq. 480. Thus, though the power to administer
oaths be not expressly given to receivers, yet, if they are to hear and
decide upon claims presented to them, the power to administer oaths to
witnesses examined on the hearing is thereby implied. Id. 114. The
receiver of an insolvent corporation has all the powers and is subject to
all the duties and liabilities of trustees of insolvent debtors. In re
Van Allen, 37 Barb. 225.

The general duty of the receiver is to take possession of the property
in controversy, and, with the sanction of the court, when it is required,
to exercise all such necessary acts of ownership as will tend to make the
property as productive for the parties ultimately declared entitled thereto
as the owner himself could do if he were in possession. Delay of the
receiver, however, in taking possession, without fraud or collusion, will
not defeat his title. Fessenden v. Woods, 3 Bosw. 550. Where a re-
ceiver of a railroad company has been appointed under a statute provid-
ing that when the company shall fail or neglect to run daily trains on
their road for the space of ten days, the chancellor of the State shall
appoint a receiver to take possession of all of the real and personal
property of the company and operate the road, the proceedings of the
receiver will not be stayed for the purpose of investigating the causes
of the failure of the company to Operate their road. Matter of the
Long Brcmch <& Sea Shore R. R. Co., 24 N. J. Eq. 398. When the
defendant refuses to surrender the property to the receiver, pursuant to
an order of the court directing him to do so, the receiver is not obliged
to attempt to take the property out of the possession of the defendant,
or of a third party, by force, without an express order of the court to
that effect. If the property is held by a third person under a claim of
right, the receiver must either proceed by action to try such right, or
the plaintiff may make such third person a party to the suit, and
apply to the court to liavc tlie receivership extended to the property so
held. Parker v. Rnyionlng, 8 Paige, 388. Wliere different courts on
the same day appointed two persons receivers of an insolvent bank,
it was held that the question which of them was entitled to the
assets of the bank depended upon the priority of judicial action upon
the applications for the appointment of a receiver, without reference
to the time of the verification of the papers, or the time of taking
possession of the assets. People v. Central City Banh, 53 Barb. 412.

KECEIYERS. 379

As a rule, a receiver cannot sne without express authority from the
court, his general authority to collect and keep the assets not being
sufficient to justify him in bringing an action {Screven v. Clarlc^ 48
Ga. -il) ; and he ought not to defend actions brought against him with-
out leave. Doe v. Read., 12 East, 57, 61. lie cannot bring an action,
when the party himself could not do so. An action cannot be main-
tained by a receiver against an assignee, under an assignment for the
benefit of creditors, to recover damages sustained by a judgment
creditor, in consequence of the failure of the assignee properly to dis-
charge his duties. Such action can only be brought by the person who
has been damnified, or his assignees. La Follett v. Akin., 36 Ind. 1.
"Where a receiver is not authorized, either by statute, or by the order of
the court from which he derives his appomtment, to sue in his own
name, he cannot do so, but must bring the action in the name of the
corporation or party in whom the right of action was, before the ap-
pointment of the receiver, Manlove v. Burger., 38 Ind. 211 ; Yeager
V. Wallace, M Penn. St. 291 ; King v. Cutts, 24 Wis. 627 ; N'ewell v.
FisTier, 24 Miss. 392 ; Booth v. Clarl, 17 How. (U. S.) 331 ; Graydon
V. Church, 7 Mich. 36 ; contra : Tillinghast v. Charnplm, 4 R. I. 177.
The legal owner will be compelled to allow the use of his name, upon
being properly indemnified. Battle v. I)aA)is, QQ N. C. 252. A re-
ceiver having, by virtue of his trust, taken possession of real estate on
which certain persons claimed liens, filed a bill in equity against such
j)ersons, to have their rights in respect to such liens determined by the
court, and to have the liens, if decided in favor of such persons, paid
out of the proceeds of the sale of such i-eal estate. It was ordered
that the defendants should release their liens, and that a sufficient sum
to discharge the same should be paid into com-t by the receiver, with
the costs of suit, and ten per cent to be held for the payment of the
liens if the court should determine that they were prior in right to the
claim of the plaintiff. Be Visser v. Blackstone, 6 Blatchf. 235.

In New York, the common-law powers of receivers have been
greatly enlarged by statute, and they may bring an action in their own
name, for the recovery of property which they have been directed by
an order of court to reduce to possession. Porter v. Williaras, 5 Seld.
142. In Ohio, among the powers conferred upon a receiver, is that of
bringing and defending suits in his o-\vn name as receiver. Code, 256.
His status in this respect is like that of an administrator, and is analo-
gous to that of a class of quasi corporations which are authorized to
conduct legal proceedings in the name of their officers. He neither
acquires thereby an incidental benefit, nor is subject to personal lia-
bility. "Whatever he acquires by suit belongs to him officially, and

380 EECEIVERS.

satisfaction of judgment against him can be obtained only from the
fund in his hands as receiver, as directed by the court appointing him.
Meara v. Eolhrook, 20 Ohio St. 137 ; S. C, 5 Am. Eep. 633. A
receiver who has been ordered by the court to collect the notes due
to a mercantile firm, which the parties are enjoined from collecting,
may maintain an action on such notes in his own name. Leonard
V. Storrs, 31 Ala. 488. Suits may be brought by the receiver of
a national banking association, both at law and in equity ; and he
may sue in his own name or in the name of the association for his
use. Claims presented by creditors may be proved before the
receiver, or they may be put in suit in any court of competent juris-
diction as a means of establishing their validity and to determine
the amount owed by the association. But the judgment when
recovered will not give the creditor any lien on the property of the
dehnquent association, nor secure to the judgment creditor any pref-
erence over other creditors whose claims are proved before the re-
ceiver. Bank of Bethel v. Pahquioque Bank, 11 Wall. 383. It is no
defense to an action on a note brought by the receiver of a national
bank, that the receiver was not regularly appointed. It is enough for
the maker of the note to know that the receiver was appointed, and as
such holds the note on which the maker is sued, and that he will be
discharged by paying it. Case v. Marchand, 23 La. Ann. 60. Under
the act of congress (Stats, at Large, 1864, 50) which provides that when
the comptroller of the currency shall be satisfied that any association has
refused to pay its circulating notes, and is in default, he may appoint a
receiver, who, under the direction of the comptroller, shall take possession
of the books, records, and assets of every description of such associa-
tion, and collect all debts, dues, and claims belonging to the association,
the power of the receiver to collect debts embraces the right to use all
necessary means to attain that object. Case v. Be no in, 22 La Ann.
321. Where a receiver was appointed in New York under a creditor's
bill, and the debtor made a general assignment to the receiver of all of his
property in due form for the transfer of an interest in lands upon the
statutes of Michigan, it was held that the receiver might bring a suit
in equity in the latter State, to foreclose a mortgage interest, or to en-
force a right of redemption held by the debtor at the time of the as-
signment in lands there, the receiver, in such case, not acting strictly
in his official character as receiver, but as an assignee holding the legal
interest in the property by virtue of the assignment. Graydon v.
Church, 7 Mich. 36. The receiver of an insolvent corporation who
has authority, by statute, to sue for, and recover, " all the estate, debts,
and tilings in action," belonging to the corporation, may maintain an

RECEIVERS. 38^

action of trover for the conversion of the personal property of the cor-
poration committed previous to his appointment as receiver. Gillet v.
Fairchild, 4 Denio, 80 ; Gardiner v. Smith, 29 Barb. 68. But a re-
ceiver who is appointed to foreclose the mortgage of a railroad cannot
maintain an action to recover earnings of the road which accrued pre-
vious to his appointment. Noyes v. Rich, 52 Me. 115. See, also,
McGrath v. Snure, 22 Minn. 391. A liquidator of an insolvent cor-
poration cannot set up, against a judgment which is claimed to be enti-
tled to priority, matters of defense which might have been pleaded by
the corporation to the demand on which the judgment was rendered.
State V. Clinton (& Port Hudson R. R. Co., 21 La. Ann. 156.

When a receiver is appointed by a court of equity to bring suits in
his own name for the recovery of assets belonging to suitors in equity,
he is subrogated to all the rights of the real parties in interest. Hard-
wick V. Hook, 8 Ga. 354. An action may be maintained by the receiver
of an insolvent corporation, against the stockholders and creditors, to
recover from the former a dividend declared on its capital stock which
they received, where it is alleged in the complaint that such dividend
impaired the capital, that some of the creditors are suing stockholders
to obtain from them such dividends, and that the funds thus misappro-
priated are needed to pay the debts of the corporation. Osgood v.
Laytin, -iS Barb. 463. A receiver appointed by the court in supple-
mentary proceedings against a judgment debtor cannot disregard a sale
and transfer of property by the debtor on the ground that it is void as
against creditors, but can only impeach it by action. Brown v. Gil-
more, 16 How. Pr. 527. When, in such a case, the receiver brings a
suit to recover the property of the judgment debtor, on thegroand that
it has been assigned to delay, liinder and defraud creditors, he cannot
obtain an injunction without furnishing to the court some evidence that
he is entitled to the relief demanded in his complaint, or has an appar-
ent right to the property. Rostwick v. Elton, 25 How. (N. Y.) 362.

The rule which forbids a receiver from employing the counsel of
either of the parties to the suit in which he is appointed receiver is
intended to protect the rights of the parties. If they have no objec-
tion, he may employ the solicitor of either party to aid him in the dis-
charge of his trust. Warren v. Sprague, 11 Paige, 200. See Smith
v. N. T. Consolidated Stage Co., 18 Abb. Pr. 419. The court which
appoints a receiver will enjoin him from prosecuting an unjust and
vexatious action at law, although the person applying for the injunc-
tion was not a party to the suit in which the receiver was appointed.
Matter of Merritt, 5 Paige, 125,

As the receiver is appointed for the benefit of all the parties to the

382 RECEIVEKS.

suit, it is his duty to protect the property iu his hands to the best of his
abihty for all, with a view to the equitable rights of all. Iddlngs v.
Bruen, 4 Sandf. Ch. -ilT. If other suits have been brought in rela-
tion to the same property, his receivership may be made to embrace
those suits, and he will then represent not only the parties to the first
proceeding, but all the parties to the subsequent proceedings. Banks
V. Potter^ 21 How. (N. Y.) 469. After the appointment of the receiver,
the defendant is not at liberty to exercise any right of ownership over
the estate, without the authority of the court. Fairfield v. Weston^ 2
Sim. & Stu. 96. Where the principal case was pending in the United
States supreme court, the circuit court denied a motion made by the
receiver of a railroad, to alter the location of the road, and make other
radical changes in the condition of the property. Gowdrey v. The B.
B. Co., 1 Woods, 331. When personal property is placed in the hands
of a receiver, upon a decree in behalf of the plaintiff, the receiver holds
as trustee for the plaintiff, and the goods can be levied on in his hands
for the plaintiff's debts. Very v. Watkins, 23 How. (U. S.) 475.

Although the receiver may, in a proper case, apply to the court for
advice and direction, yet, where the court has ordered him to sell the
property, he must act, as to the details of the sale, upon his own respon-
sibility under the law. It is his duty to see that the sale is conducted
in a legal manner, and when purchasers fail to comply with the terms
of sale, he must employ such remedies as the law points out. If the
purchaser of any particular articles fail to pay therefor, he can refuse
to deliver them and resell them. If he make delivery without prior
payment he must take the responsibility. Gwin v. Gwin, 1 Penn.
Leg. Gaz. R, 48. For directions of the court as to the sale of the prop-
erty of a railroad company, see Middleton v. N. J. West Line B. B.
Co., 25 X. J. Eq. 306.

As a general rule the court should not permit the receiver of a part-
nership property to use the property of the firm m carrying on the
business until a sale can be effected. But it may do so when the prop-
erty is of such a nature (the horses of a livery-stab that it must be
kept at great expense, and be injured if not used. Jackson v. Defor-
est, 14 How. (N. Y.) 81. So, the receiver of a partnership formed for
the publication of a newspaper may be authorized to continue to pub-
hsh the paper, until it can be advantageously sold. Dayton v. Wilkes,
17 id. 510. When a receiver is directed to sell, and to carry on the
business mitil he can do so, it is his duty to sell-at the earliest practicable
moment. Jackson v. Deforest, supra ; Hooper v. Winston, 24 111. 353.

No discretion Ijeing in general allowed a receiver as to the application
or disposition of funds in his possession, he cannot offset his own indi-

EECEIYEKS. 38S

vidual claims against them, Johnson v. Gunter, 6 Bush, 534. As a
rule, a receiver should pay out nothing without an order of the court.
But his neglect to obtain such an order will not always deprive him of
the right to re-irabursement when the expenditures made by him are
found by a referee to whom the matter has been referred, to have been
"beneficial to the estate. Tempest v. Ord, 2 Mer. 55 ; Atty.-Genl. v.
Vigor, 11 Yes. 563 ; Adams v. Wood, 15 Cal. 206. Outlays made by
a receiver intrusted with the management and operation of a railroad
made in good faith in the ordinar}^ course with a view to advance and
promote the business of the road, and to render it profitable and suc-
cessful, are in his discretion. To such outlays may properly be referred
not only the keeping of the road, buildings and rolling stock in repair,
but also the providing of such additional accommodations, and instru-
mentalities, as the necessities of the business may require, always re-
ferring to the court, or to the master appointed in that behalf, for advice
and authority in any matter of importance which may involve a con-
siderable outlay. Except in extraordinary cases, the submission by the
receiver of his accounts to the master at frequent intervals, whereby the
latter may ascertain from time to time the character of the expenditures
made, and disallow whatever may not meet his approval, will be re-
garded as a sufiicient reference to the court for its ratification of the
receiver's proceedings. In extraordinary proceedings involving a large
outlay of money, the receiver should always apply to the court in ad-
vance, and obtain its permission for the purchase or improvement pro-
posed. Cowdrey v. The M. H. Co., 1 "Woods, 331, per Bradley,
C. J. See Coe v. New Jersey, etc., E. B. Co., 27 N. J. Eq. 37.
When money is paid to a receiver by mistake he has no right to
refund it without an order of the court. Getty v. Carnphell, 2 E.obt.
664. Notwithstanding the parties stipulate for the appointment of a
receiver, and define his powers and duties, he is amenable to the court
for the proper exercise and performance of the same, and he is not re-
lieved from the duty of rendering an account when either party calls
for it. Hooper v. Winston, 24 111. 353.

The power of a receiver to lease property is limited to such parol
leases as are authorized by the second section of the statute of frauds.
Beyond this he can only receive proposals and make arrangements as
to the leasing of the property. When necessary, recourse must be had
to the various statutes conferring jurisdiction on the court to sanction
leases. Kerr on Receivers, 195, 196. Where the receiver is clothed
by the court with a general authority to lease lands from year to year,
he may determine such tenancies by a notice to quit. But it is doubt-
ful whether he has power to determine a subsisting lease without leave

384 KECEIYEES.

of the court. Doe v. Head, 12 East, 57. When a receiver neglects
to let property before the old lease expires he will be liable for ny
loss that may thereby ensue. Wilkins v. Lynch, 2 Moll. 499. He has
no right to become a tenant of any part of the property over which he
is appointed. Meagher v. O'Shangnessy, cited Bl. & K. 207, 224;
Alven V. Bond, 3 Irish Eq. 224. He is entitled to all of the rents in
arrear at the date of his appointment, and to all such as subsequently
accrue during the continuance of his receivership. Codrington v.
Johnstone, 1 Beav. 524; McDonnell v. White, 1 H. L. 570. When a per-
son admits that a sum of money is due from him to the estate he will
not be permitted to dispute the right of the receiver to collect it.
Wood V. RicYings, 2 Beav. 294.

A receiver authorized to execute, upon payment, formal satisfaction
and discharge of mortgages in his hands as such officer, has authority
to receive payment of the amount secured by, and to satisfy, a mort-
gage, although the same be not due at the time. Heermans v. Cla/rh-
sm, 64 IT. T. (19 Sick.) 171.

AETICLE YI.

LIABILITIES.

Section 1. In general . When the court directs a receiver to take
possession of property it will not permit him or the plaintiff to be sued
at law by a third person who claims the property. In the year I860,
complainants filed their bill in equity attaching certain slaves and giv-
ing bond for the attachment. A day or two afterward, the slaves were
placed by order of the court in the hands of a receiver pending the
litigation, and while in his possession they were emancipated by the
Federal authorities. And it was held, that as the slaves were in the cus-
tody of the law in the hands of the receiver, the parties to the bond were
not liable for their loss. Wall v. Fulliam, 5 Heisk. 365. But the decree
of a court of equity appointing a receiver entitles him to its protection
only in the possession of property which he is authorized or directed
by the decree to take possession of. When he assumes to take or hold
possession of property not embraced in the decree appointing him, and
to which the debtor never had any title, he is not acting as the officer or
representative of the court l)ut is a mere trespasser, and the rightful owner
of the property may sue him for damages or to recover possession of
property illegally taken or detained. Parker v. Browning, 8 Paige,
388 ; J nils v. Parker, 111 Mass. 508 ; S. C, 15 Am. Rep. 63. To bind
the receiver there must be some occupation and use of or some dealing.

KECEIVERS. 385

and intermeddling with the estate, or some act, admission, or agreement,
which in terms or by necessary imphcation indicates an election. The
receiver of an insolvent coi-poration i^ not responsible for rent due from
the corporation, merely by accepting the trust, and receiving the assets of
the corporation. To make him responsible, he must have elected to take
possession and assume the liability to pay the rent according to the
covenants of the lease, and he is not liable until such election or the
doing of some act which would in law be deemed equivalent to an
election. As receiver he cannot be held merely on the covenants of
the lease, but becomes liable solely by reason of his own acts. Com.
V. Fra/nUin, 115 Mass. 278.

The official character of a receiver when sued by leave of the court
will not protect liim from liability for injuries arising out of the pros-
ecution of his business. Blurnenthal v. Bramerd^ 38 Yt. 402. It
was held that receivers running a railroad under the appointment of a
court of equity in another State might be sued as common carriers in
Massachusetts. Paige, v. Smith, 99 Mass. 395. And see Newell v.
Smith, 49 Yt. 255 ; Cowdrey v. Galveston, etc., R. R. Co., 93 U. S. (3
Otto) 352. A receiver operating a railroad is liable in his official
capacity for an injury to his servant, sustained while in his employ
ment, by reason of the negligence of the receiver, or the negligence of
his agents, in a position superior to that of the servant. The liabihty
of the receiver in this regard is to be determined by the same rules
and principles that are applicable to the company while it exercises the
same powers in operating the road. Meara v. HoThrook, 20 Ohio St.
137 ; S. C, 5 Am. Rep. 633. See Sj)rague v. Smith, 29 Yt. 421.

A receiver is subject to all the equities that existed against the
owner of the property. Bell v. Shibley, 33 Barb. 610. There is the
same right to set-off against a note in the hands of the receiver of an
insolvent corporation, that would have existed against it, if held by
the coi-poration although the note was not payable when the receiver
was appointed. Berry v. Brett, 6 Bosw. 627. The purchaser from
a receiver of the assets of an insolvent mercantile firm claimed an
abatement of twenty-five hundred dollars from the purchase-money,
on the ground that the receiver, prior to and at the time of the pur-
chase, represented to him that certain debts, to the estimated value of
twenty-five hundred dollars, constituted part of the assets which were
to be sold, and that the purchase was made upon the faith of this
representation, and imder the belief that it was true. It appeared
that the representation, though false, was made by the receiver in
good faith, and that he, as well as the purchaser, thought that these
debts constituted part of the property which he was directed by order
Vol. Y.— 49

886 EECEIVEES. "

of court to sell. Held, that the inquiry in such cases was not whether
the party making the statement knew that it was false, but whether
the statement made as true was believed to be true, and therefore if false,
deceived the party to whom it was made, and that the purchaser was
entitled to the relief prayed. Penniynan v. Cole, 41 Md. 609. A
receiver of the rents and profits of real estate will not be ordered
to j)ay over or account for them to a party whose claim is not charged
upon the land. Mayor of Baltimore v. Chase, 2 Gill & J. 376. When
a receiver takes possession of personal property which was levied on
by the sheriff before the receiver's appointment, the latter will be
obliged to account to the sheriff therefor. Rich v. Loutrel, 9 Abb.
Pr. 356.

As a general rule, so long as the receiver keeps himself strictly
within the line of his duty, and exercises reasonable care and dili-
gence, he will not be liable for any loss or depreciation of the fund
intrusted to him. But if he depart from the line of his duty, and
loss ensue, he will be liable to make the loss good, although it was
wholly unexpected and unlikely to have happened, and his conduct
was free from any improper motive. Matter of Stafford, 11 Barb.
353. When the receiver uses the proj)erty for his private benefit, he
will be cliargeable for the rent or hire of it. Battaile v. Fisher, 36
Miss. 321. If he loan out any portion of the trust funds, or mingle
them with his own funds, or uses them in his business, he will be
liable to interest thereon, even though he may have derived no profit.
When the actual amount of profit beyond simple interest cannot be
ascertained, he will be charged compound interest ( Utica Ins. Co. v.
Lynch, 11 Paige, 520) ; and if the funds are lost, he will be respon-
sible to the full amount. Matter of Stafford, 11 Barb. 353. But
whether the receiver is liable for interest on the amount reported by
him to the court as collected and in his hands, although no order has
been made for the payment by him of the money into court, has been
questioned. Weems v. Lathrop, 4:^ Tex. 207.

Although a receiver is liable for loss caused by his willful impru-
dence, such as placing money received by him in what he knows to be
improper hands, yet he is not required to take better care of the prop-
erty intrusted to him than a careful man would of his own. Knight
v. Lord rUmorith, 3 Atk. 480; A darns v. Haskell, 6 Cal. 475. If,
however, he deposits money, which he collects as receiver, in a bank
to his private account, he will be liable for its loss in case the bank
fails. Wren v. Kirton, 11 Yes. 381. So, if he puts the funds* of the
estate beyond his own control, he is responsible for the solvency of
whoever he may have intrusted with them, and is liable for any loss

KECEIVERS. 38?

which may result in consequence. Saltjoay v. Sdlway, 2 R. & M. 219 ;
White V. Baugh, 9 Bligli, 181. Accordingly, where a receiver handed
money collected by him to the plaintiff's solicitor, with directions to
pay it into court, which the solicitor did not do, the receiver was held
liable for its loss, there being no proof that the receiver was author-
ized by the plaintiff to hand the money to the solicitor. Delfosse v.
Crawshay, 4 L. J. Ch. (N. S.) 32. Where a receiver neglects to pass
his accounts, and pay the balance within the proper time, or where
he derives a benefit by accepting interest on balances in the hands of
a banker, he will be liable for any loss caused by the failm*e of the
banker, although the moneys are deposited to a separate account.
Drever v. Maudsley, 8 Jur. 547.

"Wlien a person improperly assumes the character of receiver, and
parties interested regard him as receiver, he will be liable for any
loss to the estate caused by his neglect. Wood v. Wood, 4 Russ. 558.
If rents be paid to a solicitor in the cause in his assumed character of
receiver, he will be ordered to pay them over to the proper receiver,
and will have no lien upon them, either by virtue of an agreement
with a party to the cause or for costs. Wichens v. Townshend, 1 R. &
M. 361. If complaint be made against a receiver for injury sustained
by reason of negligence in the exercise of his official duties, the court
may either itself take cognizance of the complaint, and administer jus-
tice between the parties, or may allow the party aggrieved to bring his
action for the alleged injury. Meara v. Holbrook, 20 Ohio St. 137;
S. C, 5 Am. Rep. 633.

The question whether creditors claiming a paramount right by mort-
gage or other^vise in the property of the debtor, shall be permitted to
enforce their rights by action at law against the receiver, is within the
control of the court, which may treat the bringing of such an action
without its leave as a contempt of its authority. But leave to bring
such an action, when applied for, is granted by the court as of course,
unless it is clear that there is no foundation for the claim ; and when
the action is brought withont applying for such leave, the possession
of the receiver is not necessarily a valid defense at law, and the court,
if applied to for an injunction, may, in its discretion, allow the action
to proceed to judgment and to be defended by the receiver. Hills v.
Parker, 111 Mass. 508 ; S. C, 15 Am. Rep. 63. Wlien property held
by a receiver is claimed by a third person, the claimant should apply
to the court which appointed the receiver for an order requiring him
to pay or deliver it over to the person to whom it rightly belongs.
Riggs v. Whitney, 15 Abb. Pr. 388.

388 KECEIYEKb.

ARTICLE YTL

WHAT TITLE HE TAKES.

Section 1. In general. Although a receiver becomes an officer of

the court from the date of his appointment, yet he is not competent to
enter upon the discharge of his duties until he has given security {An-
gel V. Smith, 9 Ves. 335 ; Wickens v. Townsend, 1 R. & M. 361 ;
Lafayette Bank v. Buchingham, 12 Ohio St. 425) ; and the legal title
to the personal property then becomes vested in him. Bostwick v.
Menck, 40 N. Y. 383. Real estate is vested in the receiver only by a
conveyance to him, which the court may compel the debtor to execute.
Chautauqua Bank v. Risley, 19 N. Y. 369 ; Scott v. Elmore, 10
Hun (N. Y.), 68. His title to personal property, which is incapable of
being taken on execution, vests by relation from the date of the order
of appointment, Clark v. Brockway, 3 Keyes, 13 ; S. C, 1 Abb.
Ct. App. 351. If his appointment be subsequent to a valid levy by the
sheriff at the instance of another creditor of the debtor, he takes sub-
ject to the right acquired by such levy. Davenport v. Kelly, 42 N.
Y. 193. Those who purchased at sales of real property made by Con-
federate States receivers obtained no title to the property, nor did
those claiming under them with notice. The possession of parties
claiming under such title is wrongful and tortious, and they are liable
for rents and profits, and for damages done to the property while in
their possession. McClure v. McLane, 39 Tex. 81. The title of a
receiver in supplementary proceedings embraces money earned
and due when the order for the examination of the judgment debtor
is made, but not money afterward earned. Gerregani v. Wheelright,
3 Abb. Pr. (N. S.) 264. As a general rule, any right of action that
will pass to the personal representatives of a judgment debtor will
pass to a receiver of his property \n supplementary proceedings. Ten
Broeck v. Sloo, 2 Abb. Pr. 234. A right of action for an injury to
personal property vests in the receiver under an order to that effect
{Drought v. Curtiss, 8 How. Pr. 56) ; but not the claim of a judgment
debtor for a personal tort which is not reduced to judgment. Hudson
V. Diets, 11 Paige, 180.

The appointment of a receiver has the effect to remove the parties to
the suit from the possession of the property, unless they are in posses-
sion under a title paramount to that under which he is appointed.
Am^ V. liirkfinhecul Docks, 20 Beav. 350 ; Reeves v. Cox, 13 Irish
Eq. 247; Evelyn v. Lewis, 3 Hare, 472. He has charge of the rents
and protits of the estate as respects parties to the suit from the date of

RECEIVEES. 3S9

tlie order appointing him. Lloyd v. Mason^ 2 M. & C. 487. He is
entitled to rents received by a solicitor in the cause without the author-
ity of the court, although he was not actually clothed with the char-
acter of receiver when the rents were received. Wiekens v. Town-
send, 1 "R. & M. 361. Where it is claimed that the ord'er 'of appoint-
ment is improper or erroneous, the receiver cannot be compelled to
interplead in a court of law, but he may appear for the purpose of
asserting his right and denying the right of any other court to inter-
fere with his possession. Russell v. East Anglian R. R. Co., 3 Mac.
&, G. 115. The orders do not affect third parties until it is perfected
{Davenport v. Kelly, 42 JST. Y. 193) ; nor unless it states distinctly
over what projjerty the receiver is appointed. Grow v. Wood, 13 Beav.
271. If, when a receiver is appointed, a person claiming a right in the
same subject-matter is in possession of the right, the appointment does
not interfere with the exercise of such right. Johnes v. Claughton, Jac,
573. But if the claimant is out of possession, he must obtain leave of
the court before commencing any legal proceedings affecting the pos-
session, even though the receiver was appointed without prejudice to
the rights of persons having prior charges. Evelyn v, Leiois, 3 Hare,
472 ; Brya/n v. Cormick, 1 Cox, 422. And see De Oraffenried v.
Brunswick, etc., R. R. Co., 57 Ga. 22. But see Allen v. Central R.
R. Co., 42 Iowa, 683.

ARTICLE VIII.

SALARY AND ALLOWANCES.

Section 1. In general. Unless the receiver consents to act with-
out pay, he will be accorded a suitable salary or allowance. When his
compensation is not prescribed by statute, it is, in general, governed
by the same rule that is applied to other persons who hold a fiduciary
position. Danl. Ch. Pr. 1581; Day v. Croft, 2 Beav. 491 ; Neave
V. Douglas, 26 L. J. Ch. 756 ; Gardiner v. Tyler, 3 Keyes, 505 ;
S. C, 2 Abb. Ct. App. 247 ; Grant v. Bryant, 101 Mass. 569. It is
to be determined by the duties and responsibilities of the office and
not by what the work would have been done for by another com-
petent person. Jones v. Keen, 115 Mass. 170. A common mode of
compensation is by a commission on the receipts and disbursements.
Five per cent on the receipts and two and a half per cent on the
disbursements would be proper as a general rule. Magee v. Cowperth"
waite, 10 Ala. 966. When a receiver pays over to the parties to the
suit assets of a corporation instead of money, he is entitled to com-
missions on the value of such assets. Bennett v. Chapin, 3 Sandf.
673 ; Van Buren v. Chenango Mut. Lis. Co., 12 Barb. 671.

390 RECEIYERS.

The compensation of the receiver for his services should be allowed
by the court out of the property in his hands or taxed as costs in the case
and not by entering judgment in favor of the receiver against the
parties to the action. Hutchinson v. Manvpton, 1 Mont. 39. He is
entitled to be paid out of the funds for reasonable expenses incurred
by him in the discharge of his duties without applying to the court
{Malcolm v. 0'' Callaghan, 3 M. (fe C. 52 ; Fitzgerald v. Fitzgerald,
5 Irish Eq. 525) ; and he may be allowed for extraordinary trouble or
expense to which he may have been subjected in bringing or defend-
ing actions {Matter of Montgomery, 1 Moll. 419 ; Matter of the
BanTc of Wiagara, 6 Paige, 213) ; but not as a rule, unless incurred
with the approbation of the court, or unless the estate has been bene-
fited thereby. Bristowe v. Needham, 2 Phil. 190 ; Swaby v. Dickon,
5 Sim. 629. Where his duties have been discharged with success,
error of judgment is not a ground for withholding his compensation
or reducing its amount. Counsel and witnesses' fees in opjjosing a
motion for his removal, which . motion was denied, were allowed as <a
charge against the trust fund. Cowdrey v. The R. R. Co., 1 Woods,
331. The receivers of an insolvent corporation were allowed their
costs in ineffectually opposing, in good faith, a claim of set-off made by
a debtor of the corporation. HoTbrooh v. Receivers of Am. Fire Ins.
Co., 6 Paige, 220. Although a receiver must not involve the estate in
expense, even for repairs, without the sanction of the court, yet he
may be allowed therefor when the expenditure is found to be reason-
able and beneficial to the property. Blunt v. Clitherow, 6 Yes. 799 ;
Atty.-Gen. v. Vigor, 11 id 563. But he will not be allowed out of a fund
in his hands for counsel fees paid by him in unsuccessfully defending
a suit brought against liim by the owner of the fund, nor for the ex-
penses of an unsuccessful appeal by liim from the decree in such suit.
Utica Ins. Co. v. Lynch, 2 Barb. Ch. 573. And he is not entitled to
charge counsel fees for ser'S'ices which he performs himself. Matter
of BanTc of Niagara, sujpra ; Collier v. Munn, 41 IST. Y. 143. A
party to the suit will only be appointed receiver on condition that he
act without salary. Wilson v. Greenwood, 1 Swanst. 471 ; Blakeney
V. Dufaur 15 Beav. 40 ; Iloffman v. Duncom,, 18 Jur. 69 ; Powys v.
Blagrave, id. 463. Excepting under very special circumstances, when
a trustee is appointed receiver, he must engage to act without emolu-
ment. Sykes v. Hastings, 11 Yes. 363. Where, liowever, a testator
had appointed a person trustee who, for a number of years, had been
the paid receiver and manager of his estate, and the tenant for life
was an infant, sucli person was continued receiver with a salary.
Bv/ry V. Newjjort, 23 Beav. 30.

KECEIYERS. 391

§ 2. Accounts. A receiver in passing his accounts is subject to the
same rules as other accounting parties. Danl. Ch. Pr. 1586. He
will not be compelled to render an account to a party pending the suit
{Musgrove v. Nash, 3 Edw. Ch. 172) ; nor to account before a court
other than the one which appointed him. See Mahry v. Harrison,
44 Tex. 286. "Where, therefore, a State court, on a petition to dissolve
a corporation, has decreed a dissolution thereof, appointed a receiver
and taken control of the assets, a United States court has not juris-
diction to compel the receiver to render an account and collect the
assets. Conkling v. Butler, 4 Biss. 22.

Where the order appointing the receiver does not provide for the de-
posit of his balances in a bank, he cannot avail himself of the omission
to retain a balance in his hands withovit interest. Potts v. Leighton,
15 Ves. 2T3. He may be ordered to pass his accounts and pay over
the balance, notwithstanding the bill has been dismissed, or the pro-
ceedings stayed, or he has been dismissed. Pitt v. Bonner, 5 Sim.
577; Ha/rrison v. Boy dell, 6 id. 211 ; Paynter v. Carew, Kay. App.
36. When funds are improperly retained by him in his hands, he may
be charged interest thereon, and be required to make good any loss oc-
casioned thereby, although he has passed his accounts, and the parties
have expressed themselves satisfied. Fletcher v. Dodd, 1 Ves. Jr. 85 ;
V. Jolland, 8 Yes. 72.

Where the accounts of a receiver are referred to a master, unless ex-
ceptions are taken thereto before the master, they cannot afterward be
taken before the court. But this rule would not deter the court from
directing an account to be reformed which contained manifest errors,
or improper charges. Such errors or improper charges ought, however,
to be clearly shown to exist. A receiver states his own accounts and
submits them to a master for inspection under the order of the court,
the master acting in place of the court in a judicial, rather than a
ministerial capacity. Strictly speaking, exceptions to his report in such
cases do not properly he as they do to an account stated in the case of
executors, administrators, trustees, or partners. If, however, the master
adopt an erroneous principle in allowing a receiver's accounts, the court,
on petition of the proper parties, will refer the matter back to him for
correction. The duty of the court consists in reviewing the principles
and rules adopted and followed by the master in allowing the receiver's
accounts, rather than in examining the items of the account in detail,
or the evidence on which the items are severally based, the latter duty
belonging more especially to the province of the master, acting in his
judicial capacity, analogous to the province and duty of a jury' on ques-
tions of fact. Cowdrey v. The R. R. Co., 1 Woods, 331.

392 RECEIVERS.

After the receiver has been proceeded against for contempt in neg-
lecting to bring in his accounts, suit may be brought against his sure-
ties. Smith's Ch. Pr. 1037. Upon the death of the receiver, the
parties interested may proceed against his personal representatives, or
against his sureties. Lvdgater v. Channell, 3 Mac. & G. 175.

ARTICLE IX.

DISCHARGE OF BECEIVEK.

Section 1. In general. The receiver will be discharged by a de-
cree in the cause in which he is appointed, imless he is expressly con-
tinued. Danl. Ch. Pr. 1601. A decree having been made authorizing
and directing one of the parties to take certain personal property from
the receiver, which he declined to do, it was held that the late receiver
was no longer a receiver, but a trustee of the party, although there
had not been a formal order of discharge. Very v. Watkins, 23 How.
(U. S.) 475. An order appointing a receiver will be discharged by an in-
jujiction to put a purchaser in possession {Ponsorthy v. Pmisonby^ 1
Hogan, 321) ; or by the expiration of the estate over which the re-
ceiver was appointed {Britton v. McDonnell^ 5 Irish Eq. 275) ; or by
the payment to the plaintifE of his demand {Dams v. DvJce of Marl-
horo%ugh^ 2 Swanst. 167) ; but not by tlie abatement of the suit subse-
quent to his appointment {McCosker v. Brady, 1 Barb. Ch. 329); nor
when he has not received from the parties interested, the balance found
due him in passing liis accounts. Bertrand v. Davies, 31 Beav. 436.
See Mikoauhee, etc., li. R. Co. v. Soutter, 2 Wall. 510.

When, during the progress of the suit, a receiver is no longer neces-
sary, he will be discharged. Where a trustee was appointed by reason
of the incapacity and misconduct of trustees, his discharge was ordered
upon the appointment of new trustees. Bainbrigge v. Blair, 3 Beav.
421. So, where a receiver, who had been appointed in consequence of
the refusal of executors to act, left his place of residence near the es-
tate, tlie court, the parties consenting, and the executors expressing
their willingness to act, ordered that the receiver should pass his ac-
counts. DoAxy v. Gro7iov}, 14 L. J. Ch. 13. When a suit in equity
for an account and settlement of the concerns of a partnership is dis-
continued, it does not discharge a receiver appointed therein. He may,
however, apply for his discharge, unless it is necessary for him to re-
main in the receivership in order to protect the rights of the defend-
ants, in which case the party so protected should be required to file a
bill to settle his rights. Whiteside v. Prendergast, 2 Barb. Ch. 471.

RECEIYERS. 393

After the receiver's duties are completed, he should render his ac-
count and apply for his discharge, which will be granted if the interests
of the parties do not require that he should remain in the receivership
to protect their rights. Ireland v. Nichols, 9 Abb. Pr, (IST. S.) Tl.
S. C, 40 How, 85. The receiver of the estate of an infant will not be
discharged until such infant has had sufScient time, since coming of age,
to examine the accounts of the receivership. Matter of VanHoi^e, 7
Paige, 46. The receiver cannot be discharged at the instance of the party
who applied for his appointment, while there are other parties interested.
BanTcs v. Potter, 21 How. (N. Y.) 469. "Where some of several tenants
in common are infants, any application for the discharge of the receiver
will not be granted until all of them attain full age. Smith v. Lys-
tel, 4 Beav. 227.

§ 2. Removal and substitution. The court may, at any time before
the appointment of a receiver has been consummated, revoke such ap-
pointment, and appoint another receiver. Smith v. iY Y. Consolidated
Stage Co., 18 Abb. Pr. 435 ; S. C, 28 How. 208. An appointment pro-
cured by fraud will be i-evoked. Lottimer v. Lord, 4 E. D. Smith, 183.
The court will sometimes discharge a receiver on his own application, and
appoint another receiver in his stead. Whiteside v. Prendergmt, 2 Barb.
Ch. 471. It will only be done, however, when strong and reasonable
grounds are shown therefor ; unless upon the condition of liis paying
the expense of appointing another receiver. Infirmity, or ill health,
would be a sufficient reason for granting his application to be discharged
{^Richardson v. Ward, 6 Madd. 266) ; but not his mere wish to be
released, together with the fact that the accounts are complicated, and
that he will lose a great deal of time from his business. Beers v. Chel-
sea Bank, 4 Edw. Ch. 277.

A receiver will not be removed on the sole ground that he is illiterate
without proof of mismanagement or incompetence {Clayton v. Mc-
Lean, 11 L. T. 2) ; nor that the plaintiffs counsel sometimes acted as
counsel for the receiver [Bank of Monroe v. Schermerhorn, 1 Clarke,
366) ; nor that the receiver employed the judgment debtor to collect a
portion of the assigned demands {Boss v. Bridge, 15 Abb. Pr. 150 ;
S. C, 24 How. 163 ) ; nor that the receiver is related to one of the par-
ties. Wetter v, Schlieper, 7 Abb, 92, A mortgagee in possession hav-
ing been appointed receiver, it was held that another judge could not
remove him for any cause which existed previous to his appointment,
but might control his administration of the trust, BoUes v. Duff,
35 How. (K Y.) 481; S. C, 54 Barb. 215. Where a receiver,
appointed in an action brought while another action between the same
parties in relation to the same matter was pending in another court,
YoL. Y.— 50

394 RECEIVERS.

had made disbursements, it was held that a motion to stay the proceed-
ings, and vacate the order for his appointment, would be guaranteed on
condition that his expenses and compensation were paid by the moving
party. McCarthy v. PeaTce, 9 Abb. Pr. 164; S. C, 18 How. 138.

If a receiver abuses his trust, or squanders the funds, he may be re-
moved or restrained by the court. Devendm'f v. Dickinson^ 21 Ho'.v.
(N. T.) 275. And he will be removed when his private interests are in
conflict with his duties, though most of his acts have proved beneficial
to the estate, and though a majority of the incumbrancers prefer that
he shall be retained. Fripp v. Chard R. R., 11 Hare, 241. When
he becomes bankrupt he will be discharged. Danl. Ch. Pr. 1601.
And he incurs the same liability, by irregularity in submitting his ac-
counts, or by so passing them that the balance in his hands cannot be
ascertained. Bertie v. Lord Ahingdon^ 8 Beav. 59. Before making a
motion for the dismissal of a receiver written notice of the proposed mo-
tion must be served upon him, specifying the grounds upon which his
removal will be asked. Dougherty v. Jones^ 37 G-a. 348. I^ot with-
standing the receiver has appealed from the order discharging him and
filed security the court may enforce its order for his removal by attach-
ment. Matter of CoUin, 3 Md. Ch. 278,

EECOGNIZANCE. 395

CHAPTER CXIV.

KECOGmZANCE.
ARTICLE I

OF RECOGNIZANCE IN GENERAL,

Section 1. In general. A recognizance is an obligation of record,
entered into before a court or officer duly authorized for that pur-
pose, with a condition to do some act required by law wliich is
therein specified. 2 Bouv. Law Diet. 423 ; 2 Black. Comm. 341 ;
Schultze V. State^ 43 Md. 295. At common law it is an obligation of
record, founded upon an acknowledgment of an existing indebtedness
by the person to be bound, and is sometliing more than a contract.
State V. Weatherwax, 12 Kans. 463. Strictly it is a bond, and where
adapted to the nature of the case it will answer the requirement of a
bond in a statute. Neio Haven v. Rogers^ 32 Conn. 221 ; State v.
Houston^ 74 No. Car. 549. A recognizance, in general, binds to three
things : To appear to answer to a specified charge, or such matter as
may be objected ; to stand to and abide the judgment of the court ;
and not to depart without leave of court ; and each of these particu-
lars is distinct and independent. The party is not to depart until
discharged, although no indictment should be found, or although he
should be tried and found not guilty by a jury. State y. Stout, 6
Halst. 124.

In a recognizance the material parts of the allegation, and the con-
dition, should be set forth in the body of it, so as to admit of extension
consistently with the terms of it. Dillingham v. United States, 2
Wash. (C. C.) 422. And a recognizance for the appearance of the party
in a criminal prosecution should state in substance all the proceedings
which show the authority of the magistrate or court to take it. Stat^
V. Smith, 2 Me. 62. It is essential to a recognizance that it recite
the cause of its caption. Co^nmonwealth v. Dowyiey, 9 Mass. 520.
Thus a se. fa. on a recognizance, the only condition whereof was that
the conusor should personally appear before the supreme court at a cer-
tain term thereof, then and there to answer to such matters as were
objected against him on behalf of the Commonwealth, and should do

396 KECOGNIZANCE.

and receive, etc., and should not depart without license, was held bad
on demurrer. Commonwealth v. Dciggett, 16 Mass. M7. In the taking
of a recognizance by a court of inferior jurisdiction, so much of the
cause of its caption must be recited in the condition as to show that the
court has jurisdiction of the subject-matter ; otherwise the recognizance
will be void. Bridge v. Ford,'-^ Mass. 641 ; S. C, 7 Mass. 209. A
justice, taking a recognizance for appearance, must return it to the court
where the cognizor is to appear ; and if the court has not jurisdiction
to award execution on a sc. fa.^ it ought to certify the recognizance to
some court where such execution can be awarded. Johnson v. Itan-
dall, 7 Mass. 3-10. Taken in a case and made returnable to a court,
not having jurisdiction of it, the recognizance is void. State Treasurer
V. Danforth, Brayt. 140 ; Commonwealth v. Bolton, 1 S. & R. 828.
It is not a perfect instrument until returned to the court to which it is
to be transmitted ; and a suit on it previous to the sitting of such court
is prematurely brought. Barling v. Huhhell, 9 Conn. 350. The recog-
nizance should be returned by the justice who takes it on the first day
of the term of the court to which it is returnable, and if without good
cause he neglect so to return it, he is liable to a fine. Ex jparte Neal^
14 Mass. 205. If a capital indictment has been continued one term,
and the government be not ready for trial, the court may take the pris-
oner's single recognizance for his appearance at the next term. Com-
monwealth V. Phillips, 16 Mass. 423.

A recognizance is no lien upon the recognizor's land. McKee v.
Brown, 43 111. 130 ; State v. Morgan, 2 Bailey, 601. And without
statutory authority, a parol recognizance has no validity whatever.
BlooTmngton v. Ileiland, 67 111. 278. Sureties in a recognizance con-
tribute in proportion to the amounts for which they were respectively
originally boun d. Jn re MacDouglas, 10 Ir. E. Eq. 269, Ch. App.

If an agreed statement of facts in an action on a recognizance shows
that the recognizance was not properly taken, the record ceases to be
conclusive evidence of its validity. Commonwealth v. Greene, 13 Allen
(Mass.), 251. A bond to answer to a criminal charge is not valid, un-
less authorized by statute. Williams v. Shelby, 2 Oreg. 144. But a
recognizance not exactly according to the statute may be good as at
common law. Phyclps v. Parks, 4 Vt. 488. And although one en-
tered into by a surety, without the assent of the principal, is void, yet,
if the principal lias entered into a recognizance, and he failing to ap-
pear, his surety enters into a new one to save the first, it is valid.
Comhs V. People, 39 111. 183. And where a person accused of a crime
is an infant, or a married woman, or is sick, or in jail, and therefore
absent, a recognizance to appear and answer the charge may be taken

RECOGNIZANCE. 39T

from a surety alone, without joining the accused. Schultze v. State^
43 Md. 295. Statutory provisions respecting the approval of bail
bonds are simply directory, and a bail bond is not void by reason of the
non-compliance with them of an officer or person taking the bond.
Doughty V. State, 33 Texas, 1.

The power to take recognizances is within the common-law authority
of a court. Thus, where a statute, in a particular case, directs one party
to recognize to the other, yet, if a third person recognize, he is bound.
Young v. Shaw, 1 Chip. 224. A party may recognize by his attorney
of record, to prosecute an appeal from the common pleas. Adams v.
Rohinson, 1 Pick. 460. The omission of the clerk's name in the recog-
nizance is amendable nunc jpro tunc. Sanders v. Buck, 2 J. J.
Marsh. 4T6.

The ban is not liable for interest on the judgment recovered against
the principal, nor for any sum exceeding the penalty of the recogni-
zance. Gray v. Cooh, 3 Houst. (Del.) 49.

One, who, after the execution of a recognizance by all the obligors
named in it, signs and acknowledges the instrument without his name
being written in as an obligor, does not become a party to it in such
sense that he can be joined in a suit upon it, with the other obligors,
against his demurrer. United States v. Pickett, 1 Bond, 123.

An informer is not entitled to a share of a sum paid by sureties of
an accused, in settlement of their liability on a forfeited recognizance,
although he would be entitled to share in a fine imposed, if the accused
has appeared and suffered judgment. United States v. Fa/njui, 1 Low.
117. A recognizance to answer to an indictment for perjury will not
warrant a judgment against the sureties for the failure of their princi-
pal to appear and answer to an indictment for burglary. Sureties, in
such a case, have a right to stand upon the terms of their contract.
Gray v. State, 43 Ala. 41. A person of the age of sixteen is compe-
tent to enter into a recognizance conditioned to prosecute on a criminal
charge. Ex jpai'te Williams, 13 Price, 673.

§ 2. When required or given. Bail, in criminal cases, is based
solely on the doubt of the guilt of the prisoner. "Where that is past
dispute he ought not to be bailed. People v. Lohman, 2 Barb. 450.
A justice can only take the recognizance of bail after the examining
court has decided that the prisoner is bailable and has fixed the amount
of bail. Harrdett v. Commonwealth, 3 Gratt. 82. And such recogni-
zance must show on its face that the examining court had entered of
record that the prisoner was bailable. Saunders v. CommonweaUh, 3
Gratt. 214. States' attorneys, under the statutes of Yennont, have au-
thority, by information, to bring persons accused of crime before justi-

398 EECOGNIZANCE.

ces of the peace and cause them to be bound up for trial by the county
court, and a recognizance, conditioned for the appearance, in the county
court, of a person bound over by a justice of the peace upon the infor-
mation of the State's attorney, is valid. Treasurer of Yermont v.
Broohs, 23 Yt. 698.

In Yermont, a private prosecutor may prefer a complaint against one
for a high crime or misdemeanor, and, on such complaint, a justice of
the peace may apprehend and bind over, or commit for trial. But, un-
less the private prosecutor has a pecuniary interest in the trial and con-
viction of the offender, the bond must be taken to the State alone, and
the offender must be prosecuted by the State's attorney. State Treas-
urer V. Eice, 11 Yt. 339. A recognizance in an orphan's court in
Pennsylvania, to secure the widow's share, under the act of March 23,
1764, is lawful. Good v. Good, 7 Watts, 195.

It is good cause for admitting to bail a prisoner confined in close
jail upon an indictment for murder, that he is laboring under a pres-
ent painful, severe and dangerous disease, caused by his imprison-
ment, and likely to be so aggravated by a continuance thereof as
probably to terminate fatally. Semmes^ Case, 11 Leigh, 665; The
People V. Yan Home, 8 Barb. 168, note a.

Upon executing a capias in a bailable criminal case in Arkansas, the
sheriff can take a recognizance of the person arrested, if the sum
in which bail is to be taken is indorsed upon the writ. Otherwise
he can take only a bond. Gray v. The State, 5 Pike, 265.

Generally in criminal cases the defendant inay claim to be set at lib-
erty, except when charged with the commission of a capital offense.
Share v. The State, 6 Mo. 6J:0 ; The State v. Weaver, 18 A^a. 293 ;
Ready v. Commonwealth, 9 Dana (Ky.), 38. And even in capital
cases a defendant may be bailed in the discretion of the court, in the
absence of constitutional or statutory provisions to the contrary. The
People V. Yan llorne, 8 Barb. 158 ; Semmes' Case, 11 Leigh, 665 ;
State v. Summions, 19 Ohio, 139 ; Commonwealth v. Phillips, 16 Mass.
423 ; TJllery v. Commmiwealth, 8 B. Monr. (Ky.) 3.

§ 3. Who authorized to take. In civil cases recognizances are
generally taken by the court {Treasurer of Yt. v. Rolfe, 15 Yt. 9 ,
Th/i State V. Montgomery, 1 Blackf. [Ind.] 221) ; or by some ]udge of
the court in chambers, though other magistrates may be authorized
therefor by statute, and are in many of the States. Frost v. Roatch, 6
Whart. fPenn.)359; The State, v. Austin, 4 Humph. (Tenn.) 213;
77te Staf^ V. Mills, 2 Dcv. (N. C.) 555 ; Ilamlett v. Commonwealth,
3 Gratt. (Ya.) 82. In criininal cases the judges of the various courts of
criminal jurisdiction and ju.-^tices of tlie peace may take recognizances

EECOGNIZANCE. 399

{Powell V. The State, 15 Ohio, 579 ; Commonwealth v. McNeill, 19
Pick. 127; Goodwin y. Dodge, 14 Conn. 20G; Antonez v. The State,
26 Ala. 81 ; The Peoiyle v. R%itan, 3 Mich. 42) ; tlie sheriff in some
cases. Gray v. 7%^ State, 5 Ark. 265 ; Shreeve v. 7%<3 /S'^afe, 11 Ala.
676. But in case of capital crimes the power is restricted usually to
the court of supreme jurisdiction. The People v. Yan Home, 8 Barb.
158 ; King v. Jones, 1 B. <fe Aid. 209 ; Fitzpatrick' s Case, 1 Salkeld,
103.

A recognizance taken where the court has no authority to act is void.
Commonwealth v. Loveridge, 11 Mass. 337 ; Cooper v. State, 23 Ark.
278. But a recognizance taken by two justices of the peace, in a case
where one may lawfully act, will not impair its force or validity.
Chase v. PeopU, 2 Col. T. 528 ; McFarlan v. The People, 13 111. 9.

A bail bond taken by a clerk who has no statutory authority to take
it is void {Dugan v. Cornmionwealth, 6 Bush [Ky.], 305 ; Herron v.
State, 27 Texas, 337), even though he be deputized by the court to
take such recognizance. The court has no power to deputize the clerk
to perform such a duty. Morrow v. State, 5 Kan. 563. A bail bond,
taken by a justice who has judicial power to admit a prisoner to bail, is
valid even though he may have erred in exercising the power, CreeJc-
more v. Commonwealth, 5 Bush (Ky.), 312. But if taken in a case in
wliich he is prohibited from admitting the accused to bail, it is void ;
and the sureties thereon incur no liability. State v. Whitaker, 19 La.
Ann. 142 ; Darling v. Hiibhell, 9 Conn. 350. A recognizance taken by
a justice, on a complaint of a grand juror, is void, unless it have a
minute, by the magistrate, of the time when the complaint was pre-
sented. State Treas. v. CooTc, 6 Yt. 282. A recognizance, taken by a
circuit judge in term tune, but in his chambers, is void. Common-
wealth V. Littell, 1 A. K. Marsh. 566. In Indiana it would be good.
Crandall v. State, 6 Blackf. 284.

A recognizance to keep the peace is in the nature of a criminal pro-
ceeding, and, if taken to the governor, is void. Adams v. Ashby, 2
Bibb, 96.

Where a justice has committed a person charged with crime, the court
of common pleas then in session may recognize the accused for his ap-
pearance from day to day, without a habeas corpus, and without inquir-
ing into the cii'cumstances. Stats v. Dawson, 6 Ham. 251. An order
of the court, in a prosecution for felony, which merely determines that
the offense is bailable, and fixes the sum, cannot, under a statute au-
thorizing the sheriff to take bail in vacation, give him authority in term
time to admit the party to bail and take a recognizance. Gray v. State,
43 Ala. 41. And a recognizance taken by the police judge before whom

400 KECOGNIZANCE.

the examination was had, after the officer, in pursuance of a mittimus
duly issued upon the default of the accused to recognize, had taken the
prisoner into his custody and departed from the police court, and before
a fidl commitment thereon, is void. State v. Young, 56 Me. 219.

§ 4. Of the form and requisites. In form, a recognizance is a short
memorandmu on the record, made by the court, judge or magistrate
ha\'ing authority, which need not be signed by the party to be bound.
Commonwealth v. Emery^ 2 Binn. (Penn.) 431 ; Commonwealth v.
Downey, 9 Mass. 520 ; Grigsby v. State, 6 Yerg. (Tenn.) 354 ; Grme-
staff V. State, 53 Ind. 238. A recognizance given by a person charged
with an offense, to appear at a term of court, must set out the kind of
offense for which he is to answer. Goodwin v. The Governor, 1 Stew.
& Port. 465 ; Simpson v. Commonwealth, 1 Dana, 523 ; Horton v. State,
30 Tex. 191. But the same certainty is not required in a recognizance
that is required in an indictment ; it is sufficient if it sets out an act pun-
ishable by the statute, without any of the particulars. United States v.
DermAs, 1 Bond, 103 ; Adams v. State, 48 Ind. 212 ; Goldthwaite v.
State, 32 Tex. 599. The description of the offense need not exactly
correspond with the offense named in the indictment. Barrera v. State,
32 Tex. 644; People v. Blankman, 17 Wend. 252; Fowler v. The
Corrmwnwealth, 4 Monr. 128; Hampton v. Browii, 32 Ga. 251. So,
where a person is indicted for an assault " with intent to kill and mur-
der," and he was arrested and gave bond which described the offense
as " assault with intent to kill," a motion to quash the bond because
the defendant was not charged with any offense against the law could
not be sustained. State y. Hotohkiss, SO Tex. 162. And the degree of
murder with which the defendant is charged need not be stated. Thomp-
son v. State, 31 Tex. 166. But a recognizance which does not disclose
the offense with which the accused stands charged, and does not state
facts from which he appears to have been guilty of any offense, is fatally
defective. Tiemey v. State, 31 Tex. 40 ; Vanwey v. State, 44 id.
112. One for an appearance, to answer a charge of "gaming,''
simply, will not support a judgment, on a scire facias for a failure to
appear. Com/monwealth v. West, 1 Dana, 165. And where a defendant
is indicted for an aggravated assault, but the offbuse named in the bail
bond is assault and battery, the bail bond is insufficient. Foster v. State,
27 Tex. 236. But a bail bond which recites that the principal has been
" held to answer \\\nm a charge of seduction " sufficiently describes the
offense. State v. Marshall, 21 Iowa, 143. Inaccuracy in the descrip-
tion of the offense, given in a recognizance, is not available as a defense
to the sureties. State v. Loel), 21 La. Ann. 599.

TIjo condition of a recognizance returned, filed, and enrolled as of

EECOGOTZA^^CE. 401

record, cannot be varied by a rule of court. Rex v. Bingham^ 3 Y. &
J. 101.

If, in a criminal case, the recognizance be taken for the appearance
of the defendant to answer the charge, upon a day when the court does
not sit, the recognizance is void, and no judgment can be had thereon
against the bail. The State v. SulUvant, 3 Yerg. (Tenn.) 281. And
one which fails to designate any time when the defeudant shall appear
is fatally defective. State v. Casey, 27 Tex. 111. But it is not void
for a mistake in it, in relation to the time of the holding of the term
of the court to which it is returnable. Curry v. Stat^, 39 Miss. 511.
So, an error in a recognizance entered into in December, 1873, in de-
scribing the next term of the court of general sessions as one to be held
on the first Monday of January, 1873, instead of 1874, is a mistake
which could mislead no one, and especially not the surety. People v.
Welch, 47 How. (^. Y.) Pr. 420 ; Kellogg v. State, 43 Miss. 57. A
recognizance is not defective in form because it binds the party to appear
" from day to day," as well as from term to term. The phrase " from
day to day " may be treated as surplusage, or it may be regarded as
proper, for the reason that the term of a court is but one day, in legal
contemplation. State v. Glaeveche, 33 Tex. 53.

A recognizance is not invalid because it appears in an action thereon
that it was executed before the clerk of the district court of one county
for the appearance of the defendant before the court of another comity,
wherein the indictment is pending, and where the bond is filed ; nor
because of the failure of the clerk to indorse the approval of the bond ;
nor because of the absence of an averment that the bond was acknowl-
edged ; nor because it fails to appear that the sureties were called and
their default entered. State v. Wells, 36 Iowa, 238. Where recognizance
of bail in error is defectively taken in the court below, the prothono-
tary of the supreme court may correct it by taking a new one. Hosie
V. Gray, 73 Penn. St. 502.

A slight variance between the name of one as it appeared in the in-
dictment and as it appeared in the recognizance is not a material matter,
no injury being shown to have resulted from the mistake. Steen v. State,
27 Tex. 86 ; People v. Eaton, 41 Cal. 657. The court, on being satis-
fied that the right man is before it, should hold him to his obhgation,
without regard to his appellation. State v. Phodhis, 37 Tex. 165. A
recognizance to appear and answer a charge of willfully and " want-
ingly " killing a dog, is sustainable. Smith v. State, 36 Tex. 317. One
for the appearance of the accused before a commissioner at the expira-
tion of a period longer than the time allowed for the adjournment of
similar proceedings before the State magistrates is void. U. S. v. Hor-
YoL. Y.— 51

402 RECOGNIZANCE.

toil 2 Dill. 94. Although the statute require that the principal and
sureties in a recognizance shall be sepai^ately bound, the parties may be
held under a joint recognizance. Rainholt v. State, 34 Tex. 286. So,
if the statute require that the bail should be residents of the State, yet
if a non-resident be accepted as bail, the recognizance is binding on both
the principal and bail. Commonwealth v. Ramsay, 2 Duv. (Ky.) 385.
A defendant who recognizes to appear to answer a charge, and who vol-
untarily appears in court on the return of the indictment, is in the legal
custody of the court without a formal arrest, and a recognizance then
entered into is valid. Baird v. Commonwealth, 2 Duv. (Ky.) TS.

A recognizance to answer a criminal charge need not show that the
complaint had been made under oath. McCarty v. State, 1 Blackf .
(Ind.) 338. And in general, a recognizance is not invalidated by an
omission to state the day, year, and term at which the indictment was
found ; nor by a mistake as to the date of the first day of the next
term of the court ; nor by a discrepancy between the date and the
approval ; nor by a recital merely that the indictment was for larceny,
when in fact it was for larceny and burglary. Mooney v. People, 81
111. 134.

§ 5. Mode of executing. The signatm-e of a party is not a part of
the recognizance ; if acknowledged, it need not be signed. Madison v.
Cormnonwealth, 2 A. K. Marsh. 131. And it need not be signed by
the sm-ety. Commonwealth v. Mason, 3 A. K. Marsh. 456. Nor is a
seal essential to its vahdity. State v. Boot, 2 Rep. Con. Ct. 123. But
a bail bond signed in blank, with the understanding that it should be
filled up in blank by the magistrate, which was, in fact, filled up by the
county attorney, is in no legal sense a recognizance. Commonwealth v.
Ball, 6 Bush (Ky.), 291.

A bail bond, executed on Sunday, for the appearance of a person ac-
cused of a felony, is as much binding on the sureties as if it had been
executed on any other day. Watts v. Commonwealth, 5 Bush (Ky.),
309.

A recognizance is sufiicient where it is drawn in the form of a bond
witli a pi-oper penalty and condition, and acknowledged before a judge
who certifies the acknowledgment in this form : " Signed, sealed and
delivered in the presence of J. W.," the judge. Van Antwerp v.
JSewman, 4 Cow. 82. And if a penal bond taken by the sheriff for
the defendant's appearance to an indictment show on its face that it
was signed and sealed in the presence of the sheriff, and approved of
by him, it is good as a recognizance. Kearns v. State, 3 Blackf. 334.

An instrument in pmijorting upon its face to be a criminal recogni-
zance and executed as such is not void as to those executing it, although

EECOGNIZA.NCE. 403

it be in form a penal bond, be signed and executed by the sureties only
and not by the principal, and contains the initials only of the Christian
name of the principal. Ingram v. State, 10 Kans. 630 ; Minor v. State,
1 Blackf. 236. And where a recognizance has been taken before a jus-
tice of the peace, has been signed and sealed by the principal and his
surety, its validity is not affected by the failure to insert the name of
the latter in a blank left for that purpose in the body of it. Badger
V. The State, 5 Ala. 21. The date of the recognizance for the defend-
ant's appearance in court may be the day on which he is recognized to
appear. State v. Bradley, 1 Blackf. (Ind.) 83.

In Vermont the appellant himself not being a cognizor does not avoid
the bond. Chittenden v. Catlin, 2 Chip. 25. Where appeals are taken
the affidavits and recognizances may be made and acknowledged by
agents. Oher v. Pratte, 1 Mo. 8. A bond to the people in the
usual form, signed by the parties and approved by two justices of the
peace, is a sufficient recognizance of bail. People v. Mellor, 2 Col.
T. 705 ; Shattuck v. Ths People, 4 Scam. (111.) 47T.

§ 6. Of the construction and eflfect. AU of the proceedings by
which the justice acquired jurisdiction in the case need not appear in
a recognizance of bail. The offense and the official character of the
magistrate are enough. Chase v. People, 2 Col. T. 528 ; Redmond v.
State, 12 Kans. 172. But the offense stated in the bond must be ex-
pressed in clear terms and must be such an offense as is known to the
laws of the State. So, where the law of the State defines no such
crime as larceny, a bail bond or recognizance conditioned to answer a
charge of " larceny of a fi.Uy " is void. Montgomery v. State, 33 Tex.
179. So, if it were for " unlawful gaming " {Stroud v. State, 83 id.
650) ; or " shooting with intent to kill or murder." Moore v. State,
34 id. 138. A bond conditioned for the appearance of a party
charged " with having committed the crime of shooting at with the
intent to kill," without further terms of description, or words to render
the sense more definite, is void and without effect. State v. Gibson,
23 La. Ann. 698. But a recognizance providing for the appearance
of the accused to answer " a prosecution uj)on indictment found at this
term at the district comt for the crime of murder," is sufficient. Statt
V. Brown, 34 Tex. 146. So, where the recognizance recites that the
principal cognizor is held to appear " for the offense of being a com-
mon gambler," the nature and character of the offense is sufficiently
described. Chase v. People, 2 Col. T. 528. Where several indict-
ments are found for forgery on the same day, it is not necessary that
the recognizance in any one of them should specify to which one it
refers. Devlin v. Court of Oyer db Terminer, 7 Hun (N. Y.), 114.

404 KECOGNIZANCE.

A recognizance taken by a justice was held not to be obligatory,
notwithstanding it did not allege, in terms, that the accused was bound
over because such punishment as the justice could inflict would be
inadequate; and notwithstanding alterations which were alleged, but
not proved to have been made before execution. Harris v. State, 54
Ind. 2.

A recognizance with condition that the principal cognizor " shall per-
sonally be and appear at the district court within and for the county
of A, at a term thereof to be held at D in the said county, on the first
Monday of October next," binds the party to appear on the first and
every other day of the term specified. Chase v. People, 2 Col. T.
528. He is bound to appear not only to the term mentioned in the
recognizance, but to each succeeding term thereafter, until acquitted or
discharged by leave of the court, or convicted and sentenced. Moore v.
State, 28 Ark. 480. Wliere a recognizance to appear and answer to
an indictment states the day, week and month when the term of the
court, at which it was intended that the defendant should appear,
began, but omits to state the year, the omission does not vitiate the
recognizance, and the sureties will be liable if the defendant do not
appear at the term next succeeding the taking of the recognizance,
that being the term intended as the time for him to appear. Kellogg
V. State, 43 Miss. 57. The word " forthwith " in a notice to a party
charged criminally and out on bail to appear on pain of forfeiting his
recognizance, means within a reasonable time from the service and not
from the date of the notice. Beg. v. Price, 8 Moore's P. C. C. 203.

A recognizance is defective where it cannot be ascertained from it
whether the bail undertook that the defendant should appear before a
magistrate for the examination of the charge or before the court for
trial thereon. Henry v. CoTrrnionwealth, 4 Bush (Ky.), 427. A bond
required by the New York statute conditioned for the support of the
principal cognizor's wife is not a bond of indemnity to the town or
county to repay such sums as either may have advanced for the support
of the family, but the amount named in it is a penalty imposed for the
neglect to su]j])()rt the wife. People v. Pettit, 3 Hun (N. Y.), 416.

§ 7. Of forfeiture. A recognizance to appear on the first day of
the next court binds the party to appear at the first court actually
hold ; a failure to hold the court at the regular time will not exonerate
him. Com/raontoealth v. Cayton, 2 Dana, 138. His failure to attend
on the first day of the term is a forfeiture. If, however, no indict-
ment be found against him and he appear during the term, the recog-
nizors may 1)0 disci lurgcd, but if he do not appear they will continue
liable. Adair v. State, 1 Blackf. 200 ; Wheeler v. People, 39 111. 430.

EECOGNIZA^CE. 405

But a recognizance to appear at a term of court, without designating
any day, cannot be forfeited by a failure to appear on any particular
day. Griffin v. Commonwealth^ Litt. Sel. Cas. (Ky.) 31. So, if a
recognizance specifies the time and place for the defendant to appear,
it cannot be declared forfeited for his failure to appear at any other
time or place. State v. Houston^ 74 ISTo. Car. 174. And where a
recognizance recites that the principal cognizor is to appear before the
justice on a day specified, " and from time to time as directed by the
said justice," the recognizance is not forfeited if the principal do not
appear on the adjourned days, unless it is clearly shown that the jus-
tice, by proper order, directed the defendant so to appear. People \.
Scott, 67 N. Y. (22 Sick.) 585. A recognizance to keep the peace is
not forfeited by a breach committed out of the State. Key v. Com-
m.onwealth, 3 Bibb, 495. The failure of the defendant, held to an-
swer for a criminal offense, to appear and challenge the grand jury
does not authorize a forfeiture of his bond. Ringgold Co. v. Hoss, 40
Iowa, 176. And the principal cognizor in a recognizance of bail
should be relieved from a judgment of forfeiture declared against him,
upon showing to the court, at the same term, that, on the day the for-
feiture was taken, he was sick and unable to attend upon the court ;
but such relief will not be granted without costs. Chase v. People, 2
Col. T. 481. In a proceeding to set aside the forfeiture of a recogni-
zance for the appearance of a defendant to answer to an indictment, a
complaint is not necessary ; a written motion is sufficient. State v.
Shideler, 51 Ind. 64. A suit on a forfeited recognizance need not be
brought at the relation of any body, and if so brought, the name of
the relator may be stricken out on motion. Hawkins v. State, 24 Ind.
288. And in a proceeding to set aside a forfeiture of a recognizance,
the prosecuting attorney is the proper person to represent the State, and
upon his appearance in the proceedings, the court has jurisdiction of
the State. State v. Shideler, 51 Ind. 64. The forfeiture of a recog-
nizance may be taken at a term of court subsequent to that at which
the prisoner is recognized to appear. Stohes v. People, 63 111. 489.

A defendant having been committed to prison on a forfeited recogni-
zance, his wife and family becoming burdensome to the parish, is not
a sufficient ground to discharge him. Rex v. Stancher, 3 Price, 261.

As the coiut has power to permit any part of the record or files to
be supplied in case of loss or destruction, a recognizance may be sup-
plied on proof of the loss of the original, and, when so supplied, "a for-
feiture may be taken of the same. McElwee v. State, 77 111. 493.

A judgment debtor forfeits his recognizance "to abide the final
order of the magistrate " on his examination, if he departs after ex-

406 EECOGNIZANCE.

amination and announcement that its result is a refusal, and while
the certificate of refusal of the poor debtor's oath is being made out.
Knight v. Sampson, 99 Mass. 36.

It is essential to a breach of the condition of a recognizance, that
the party who is to appear should be solemnly called before his de-
fault is entered ; and, in an action on the recognizance, it should be
clearly proved that the party was called and warned, and neglected to
appear, Dillingham v. United States, 2 Wash. (C. C.) 422. But
where the recognizance is joint, the failure of the principal to appear
is a forfeiture of the whole, and the bail need not be called in court';
it is sufficient if the principal be called. Mishler v. Gom/monwealth,
62 Penn. St. 55 ; S. C, 1 Am. Eep. 377.

A forfeited recognizance of bail, for failure of the principal to ap-
pear to a criminal charge, is a debt to the State, to which the State
alone has title. Commonwealth v. Shick, 61 Penn. St. 495.

An indictment for murder of a certain person will sustain a judg-
ment of forfeiture on a bail bond requiring the accused to answer a
charge of manslaughter of the same person. Gresham v. State, 48
Ala. 625.

A conviction of drunkenness and disorderly conduct is not neces-
sarily a conviction of *' an offense involving a breach of the peace " so
as to authorize forfeiture of a bond " to keep the peace and be of
good behavior," without a direct proceeding to forfeit the bond.
Rankin v. Commonwealth, 9 Bush (Ky.), 553. If the recognizance
be forfeited, the court has no authority to relieve the cognizor against
the penalty of the recognizance, as in the case of a bond on the hear-
ing in equity. Johnson v. Randall, 7 Mass. 340.

"Where a recognizance has been forfeited and suit brought thereon,
resulting in a judgment in favor of the bail, which, on appeal, is reversed
and the cause remanded, and the bail then pays a part of the recogniz-
ance in discharge of the forfeiture, the liability of the bail is thus fixed,
and he may enforce the note and mortgage that had been assigned to
him for indemnity, for the full amount paid, and necessary expenses,
not to exceed, however, the amount of the note and mortgage. Stevens
V. Hay, 61 111. 399.

§ 8. Discharge of the sureties. A surrender of the defendant at
any time anterior to a fixed period, after the sheriffs return of non est
to a ca. sa., or taking the defendant on a ca. sa., discharges the bail.
Bryan v. Simonton, 1 Hawks (N. C), 51 ; Smith v. Rosencrantz, 6
Julms. 97.

Bail arc entitled to an exoneretur, where their principal has been con-
victed of a felony, and sentenced to imprisonment in the State's prison

RECOGNIZANCE. 407

of another State for a term of years. Loflin v. Fowler, 18 Johns.
335. But sureties on a recognizance given to the United States in
a criminal case which has been forfeited cannot successfully plead, in
defense to an action thereon, that at the time of forfeiture their principal
was confined in the penitentiary of another State, beyond the jurisdic-
tion of the district, whither he had gone before the time fixed for his
appearance in the United States court. United States v. Vcm Fossen,
1 Dill. 406, Special bail are entitled to have an exoneretur entered
on the bail piece, where the principal has obtained his discharge as an
insolvent debtor, since the rendition of the judgment against him.
Tmmhxdl v. Healy, 21 Wend. 670.

Where suit has been commenced on a forfeited recognizance, and the
principal has been again arrested by the sherifi, and again bailed by the
same person, the bail, by his surrender of the principal in open court and
payment of all costs, before final judgment on the forfeited recognizance,
is entitled to be discharged from further liability thereunder. State v.
Rollins, 52 Ind. 168.

Sureties on recognizance are not liable for the escape of the principal
after he had been re-arrested upon a bench warrant issued over the
judge's own signature. Smith v. Kitchens, 51 Ga. 158 ; S. C, 1 Am.
Eep. 232. But they would be held liable for the escape of the princi-
pal, although, after the recognizance was given, the bail was raised, and
a new order of arrest issued, without notice to the sureties, and that
the officers were so negligent in their proceedings that the accused heard
that his bail had been raised and absconded before he could be re-arrested.
People V. Eaton, 41 Cal. 657. The death of the principal in a recog-
nizance, occurring after the forfeiture of the recognizance, but before
judgment thereon, exonerates the sureties; State v. Cone, 32 Ga. 663.
The supreme court of New Hampshire refuse to discharge the sureties
upon a recognizance, if the surrender of the principal was prevented
by any fault of the sureties, in connection with the act of God, or of
the government, or the sentence of the law. State v. McAllister, 54
N. H. 156. The only surety in a criminal recognizance is bound,
although the statute requires two sureties. The State, as well as a
citizen, may waive an enactment made in its own favor. State v.
Benton, 48 N. H. 551.

Where a defendant appears as provided in a recognizance, and the
cause is continued, the sureties are liable for his non-appearance at a
subsequent term. State v. Smith, 66 No. Car. 620. But a prisoner's at-
tendance during the term named, and its adjournment without any
measures taken to commit him, or otherwise secure his appearance, op-
erate a discharge of his recognizance, although no record of the discharge

408 KECOGNIZANCE.

^ras made. State v. Maclcey, 55 Mo. 51. If the principal fail to ap-
pear at court as required by a criminal recognizance, the failure to call
the sureties, or to enter the default of the principal on the records, will
not defeat an action brought on the recognizance. Ingrain \. State, 10
Kan. 630. Sureties on the recognizance, and not those on a former
bail bond, are responsible for the appearance of the accused in the district
court, after a reversal of the judgment from which the appeal was taken,
in which appeal the recognizance was given. WeoA^er v. State, 43 Tex.
386.

In New York a recognizance is forfeited if the defendant fail to
proceed to trial according to the terms of the recognizance, without
waiting for a rule to try. No rule or notice is necessary, but both parties
should go to trial according to the terms of the recognizance, of course.
Peojple V. Winchell, 7 Cow. 160. An agreement by a solicitor for the
State to discharge a defendant, if he would become a State's witness
against a co-defendant, which he did, so far as to go before the grand
jury and be examined, and then left the court, will not relieve such de-
fendant from a forfeited recognizance. A recognizance is a matter of
record, and can only be discharged by a record, or something of equal
solemnity. State v. Moody, 69 No. Car. 529. In a circuit court of the
United States the condition of a recognizance of bail in a criminal ac-
tion provided for the personal appearance of the person bailed, at the
next regular term of the court, and also at any subsequent term to be
thereafter held, etc. Subsequently a stipulation was entered upon the
minutes of the court, without the knowledge of the sureties, for the
postponement of the trial until the determination of cases pending in
another court ; and it was held that by this action the sureties were
released from their liability. Reese v. United States, 9 "Wall. 13.

Where a party is arrested for murder before indictment found, but
subsequently is bailed, and at the next term of court he is indicted for
jnurder and a capias is immediately issued and he is arrested, the sureties
/)n his bail bond are not released or exonerated from their liability on
the bond ; the only way in which they can relieve themselves from
their obligation is to surrender the accused in term time to the sheriff.
Chappell v. State, 30 Tex. 613.

A State attorney, who is by law entitled to a certain percentage on
judgments obtained on forfeited recognizances, has no vested interest in
a recognizance until after judgment. Stone v. Riddell, 5 Bush (Ky.),
349.

§ 9. Of the right of action. Debt, as well as scire facias, will lie
on a recognizance to a party ; but this recognizance must be matter of
record ; and in debt upon it the defendant may plead nul tiel record.

KECOGNIZA]!iCE. 409

IMhy V. Main, 11 Me. 344 ; Bridge v. Ford, 4 Mass. 641. See
State V. Walker, 56 N. H. 176. So debt, as well as sdre facias, lies
on a recognizance to the Commonwealth. Commonwealth v. Green,
12 Mass. 1. Debt lies, also, on the recognizance in an OAidita querela,
although it has not been returned into court. Anonymous, Brayt.
214.

A recognizance is not a perfect instrument until returned to the court
to which it is to be transmitted ; and a suit on it, previous to the sitting
of such court, is prematurely brought. Darling v. HuUbell, 9 Conn-
350. An action cannot be commenced against the bail on a forfeited
recognizance until after adjournment of the term of court at which the
forfeiture occurred ; and this rule applies to criminal comts that hold
but two terms in each year. Gl%ss v. State, 39 Ind. 205. Upon breach
of the condition of a recognizance to keep the peace, an action may be
brought against the cognizors prior to the term of court at which such
recognizance is returnable. Crump v. People, 2 Col. T. 316.

A bond for an appearance in a criminal case, which does not appear
to have been taken in the manner prescribed by statute for taking recog-
nizances, cannot be declared on as such. Lloyd v. State, Minor, 34.
But an action upon a recognizance cannot be defeated on the mere
ground that it contains conditions additional to those authorized by the
statute. State v. Crowley, 60 Me. 103.

The manner of collecting fines and recognizances is left to the
discretion of the district attorneys. If the parties, or their property,
be within the county, it is the duty of the attorneys to proceed by
execution for the collection, without suit ; otherwise they may pro-
ceed by action in the supreme court. People v. Yan JSps, 4 Wend.
387.

§ 10. Proceedings by scire facias. A scire facias is the proper
remedy to recover the penalty on a forfeited recognizance. Lloyd v.
State, Minor, 34 ; Commonwealth v. McNeill, 19 Pick. (Mass.) 127 ;
Lang v. The State, 3 Blackf. (Ind.) 344. It is a civil suit and not a
criminal proceeding. Hatch v. State, 40 Ala. 718. And where a record
showed that at the proper term cognizors were duly called and made
default, " whereupon it was ordered by the court that judgment of for-
feiture be taken of then* said recognizance, and that a scire facias issue,"
it was held that there was a sufficient judgment of forfeiture to author-
ize the scire facias. Cable v. People, 46 111. 467. If a person recog-
nized to appear in the circuit court of Indiana to answer a criminal
charge make default, and the recognizance be declared forfeited, a scire
facias may issue against the cognizors, without the entry of a judgment.
Andress v. State, 3 Blackf. 108. In order to justify a judgment against

410 RECOGNIZANCE.

a cognizor, the scire facias must be directed to the county in which
the prosecution is pending, or in which the party resides, and there
must be a return of two nihils by the same officer. West v. Common-
wealth, 3 J. J. Marsh. 641. And wlien it is not taken in a court of
record it should show by whom it was taken and iiled, and that the per-
son who took and filed it was authorized so to do. Andress v. State^
3 Blackf. (Ind.) 108; Lang v. State, id. 344.

In a scire facias on a recognizance in an appeal, the suit may be
brought against the surety alone. The recognizance is a record of the
circuit court. Barton v. Yanzant, 1 Mo. 190,

In Massachusetts the court of common pleas has original jurisdiction
to receive and enroll an estreated recognizance from the municipal court,
and issue scire facias upon it. The Commonwealth v. McNeill, 19
Pick. 127. In Indiana where a recognizance is in a sum beyond the
justice's jurisdiction, and is forfeited, it should be certified to the circuit
court, and a scire facias on it may, in such a case, issue from that
court. Ross V. The State, 6 Blackf. 315.

The remedy by scire facias, upon a recognizance estreated, is given
by statute, and is only maintainable upon the supposition that the liabil-
ity which it seeks to redress is authorized by a legislative act. The
hypothesis failing, the defendant cannot be charged. Whitted v. The
Governor, 6 Port. 335. On scire facias on a joint and several recog-
nizance where service is had on one or more of the cognizors, and a
return of nihil as to the rest, execution may be awarded against those
served with process. Wheeler v. People, 39 111. 430.

A scire facias upon a forfeited bail bond, charging that it was
taken, approved and returned into court by the sheriff, is sufficient
to put the obligors upon their defense, and if true as stated, it au-
thorizes a judgment, though the bond upon which the judgment
nisi was taken was not formally approved by the sheriff nor other-
wise certified than as shown in his return upon the capias. Evans
v. State, 25 Texas, 80. If the statute requiring a scire facias on a
forfeited recognizance to be issued returnable at the next term be
not complied with, it is error to render a judgment against the surety
at a succeeding term, without amendment of the judgment of forfeit-
ure. Wright v. State, 51 Ga. 524. In Kansas, section 154 of the
Criminal Code has made radical and sweeping changes in the rules
of decision in actions on forfeited recognizances, and under it the old
decisions arc of little value as authority. Jennings v. State, 13
Kan. 80.

An action on a forfeited recognizance may be maintained against a
person who executed tlie same to procure his own personal liberty,

RECOGNIZANCE. 411

although he was a minor at the time, having a guardian for his prop-
erty, and although he executed the recognizance without the consent
of his ffuardian, Weatherwax v. State. 17 Kans. 427.

§ 11. Declaration or complaint. Tlie recital of a recognizance and
its forfeiture should show in what case the recognizance was taken,
or it is error. Overaker v. The State, 4 Smedes & Marsh. 738. The
complaint should show that a charge was made against the principal
before the recognizance was taken, and it must state before whom it
was entered into, or it is bad on demurrer. The subsequent finding of
an indictment will not aid a recognizance not good at the time it was
taken. Griffin v. State, 48 Ind. 258. If the recognizance were taken
before a justice of the peace, it must be alleged in the complaint that
the justice had jurisdiction to take the recognizance and that there
has been a forfeiture, Hannum v. State, 38 Ind. 32. The complaint
should show that the principal in the recognizance was called and de-
faulted. TJrton V. State, 37 Ind. 339. And on an undertaking in the
nature of bail for the defendant's appearance in a criminal case, the com-
plaint should show that the prisoner was charged with a crime, and
it is not sufficient to state that he was charged with " shooting and
killing " another. Hannah v. Wells, 4 Oreg. 249. A complaint upon
a forfeited recognizance sufficiently shows the authority of tlie officer
to take the obhgation, when it alleges that the principal obligor was
under arrest, in the custody of the sheriff, by virtue of a warrant
directed to him by the clerk of a certain circuit court, issued by said
clerk upon an information previously filed by the district attorney,
charging that in the county, etc., the said obhgor unlawfully sold in-
toxicating liquor, and that the defendants entered into a recognizance,
which was approved by the sherijff. State v. Hiney, 24 Ind. 381. In
a proceeding upon a recognizance by declaration instead of scire
facias, it is not necessary, where the officer taking it has jurisdic-
tion over cases of the general description named in the recognizance, to
aver the existence of the particular facts, which establish that the officer
had authority to take it. United States v. George, 3 Dill. 431 ; The
People V. Kane, 4 Denio, 530 ; Fowler v. The Cominomoealth, 4 Monr.
(Ky.) 130 ; WJiishard v. Wilder, 1 Burr. 330 ; Rex v. Dutchess of
Kingston, Cowp. 283.

The proper form of declaring in debt on the record of a recognizance
in a criminal case is to set out the matters of fact which constitute the
foundation of the defendant's obligation, and which must appear in the
record. These should be stated with a prout patet per recordum, and
should be followed by proper averments to show a breach of the con-
dition of the recognizance. The People v. Kane, 4 Denio, 540. In a

il2 RECOGNIZANCE.

petition on a forfeited recognizance, it is not necessary to insert a copy
of the order of forfeiture, nor to allege that it was "duly made,"
RTievnhart v. State^ 14 Kan. 318. In New York it is not necessary to
aver in the declaration the order of the court directing the prosecution.
The People v. Blaiikman^ 17 Wend. 252.

Where an execution has been quashed upon the defendant's giving
recognizance, as provided by the statute, a declaration for breach of the
recognizance must aver the issuance of an alias execution, and a demand
of the property. Harris v. Flenniken, 25 Ark. 80.

A recognizance must be filed, or made a record of a court to sustain
a suit, and must be so averred in the declaration. It should also be
averred that the default, in not complying with the condition of the
recognizance, was entered of record. People v. Van Ppps, 4 Wend.
387 ; Bridge v. Ford, 7 Mass. 209 ; Zihiy v. Main, 11 Me. 344. A
declaration on a recognizance, in a case where there is an appellate
jurisdiction only, is not bad for want of an allegation of the case
being an appeal. Treasurer of Vermont v. French, Brayt. 140,

Scire facias on a recognizance of special bail must state that the
principal has not paid the judgment, or surrendered his body in exe-
cution. Holland V. Bouldin, 4 Monr, 147 ; Nichols v. Woodruff, 6
Blackf. (Ind.) 180. If it aver that the execution yet remains to be
made of the judgment, it is sufficient. Bowen v. Pyne, Wright, 602.

A sc.fa. on a forfeited recognizance in a criminal case need not con-
tain an averment that an indictment has been found against the prin-
cipal in the recognizance. Snowden v. The State, 8 Mo. 483. If the
plaintiff undertake to give the recognizance in hcBC verba, he is bound
to set out an exact copy. Burton v. State, 6 Blackf. 339. A declara-
tion stating an obligation to pay and a refusal, is sufficient after
verdict, where no objection was taken before that the recognizance
was on condition. Kirkner v. Com7nonwealth, 6 W, & S. 557. A
declaration in an action of debt on a recognizance for prosecution
which sets forth the condition, which was, that the plaintiff in the
original suit should prosecute his action to effect, and ])ay all dam-
ages in case he should not make his jjlea good, and alleges a breach,
by negativing the words of the condition, is sufficient without show-
ing that the costs in such original suit could not be had out of the
estate of the principal. Mix v. Page, 14 Conn. 329.

§ 12. Plea or defense. In debt on a recognizance it is no defense
that the justice, on default of the appearance of the bail, only made an
entry thereof on the record, and did not at the same time render judg-
ment that the recognizance was forfeited. Potter v. Kingshury, 4
Day, 98, A recognizance previously entered into cannot be pleaded

KECOGNIZAKCE. 413

in bar of another recognizance to appear in another court. Leeper v.
Commonwealth, Litt. Sel. Cas. 102.

In an action on a recognizance of bail, under a plea of payment, evi-
dence of payment of a less sum than the amount of the judgment is
inadmissible. Mechanics' Banh v. Hazard, 13 Johns. 353. And in
a so. fa. upon a recognizance the defendant cannot object to the valid-
ity of the recognizance under a plea of payment, the writ reciting a
sufficient recognizance. Ahhott v. Lyon, 4 Watts & Serg. 38. An
objection that the writ issued before the money secured was pay-
able must be pleaded specially. Cooper v. Gray, 10 Watts, 440. So,
matters amounting to a discharge or legal payment of a recognizance
cannot be given in evidence under the plea of payment, but should be
specially pleaded. Heirs v. The State, 1 Harring. (Del.) 190. Inability of
the principal in a recognizance to appear, resulting from severe personal
injuries incurred from an accident, is available as a defense in an action
brought against his sureties. People v. Tuhls, 37 N. T. (10 Tiff.) 586.
So, is impossibility, by act of God, a good defense. Leitrim {JEa/rV) v.
Stewart, 5 Ir. R. C L. 27, Q. B. But an answer of the surety which
alleges that the principal was necessarily prevented from appearing on
the day mentioned in the recognizance, " because he was then on that
day in the custody " of the State and confined in jail on legal process is
not sufficient, in that it does not allege that the principal would have ap-
peared if he had not been imprisoned, and that the imprisonment was
before the day specified. Kirhy v. Commonwealth, 1 Bush (Ky.), 113.
So, a plea to a sc. fa. on a recognizance to appear at a court, " that on
the day designated for the appearance the defendant was arrested for
felony," is not good as performance, or as an excuse for non-performance.
Alguire v. Commonwealth, 3 B. Monr. 349. So, a plea that the
principal is an infant under the control of his mother, who removed
him out of the State, whereby the surety was prevented from surren-
dering him, is insufiicient. Starr v. Commonwealth, 7 Dana, 243.

In a suit upon a recognizance conditioned for the appearance of the
accused to answer a criminal charge upon the first day of the next suc-
ceeding term of the court wherein the breach alleged was a failure to
appear on the day named, an answer by the surety that the grand jury
impaneled at the term of the court to which said recognizance was re-
turnable, investigated the charges and found no bill of indictment
against the accused, is bad. Fleece v. State, 25 Ind. 384. But an an-
swer by the sureties on a forfeited bail bond, alleging that they had de-
livered the defendant to the sheriff, and that the defendant had been
tried and convicted and a new trial granted, after which, without the
knowledge or consent of the sureties, the sheriff had permitted him to

414 KECOGNIZANCE.

go at large for the pui'pose of getting a new bond, and he thereby was
permitted to escape, is sufficient. State v. Mosseau, 39 Tex. 614,

In an action against the surety on a recognizance, entered into by
one arrested by mesne process, examined by a magistrate and afterward
defaulted, the surety may show that, by reason of an erasure or other-
wise, the writ did not authorize such arrest, that if so, the recognizance
is void, and that the writ cannot be amended under a statute providing
for the correction of clerical errors. Learnard v. Bailey^ 111 Mass.
160.

The record of the taking of a recognizance imports verity which no
plea or parol evidence will be admitted to contradict. Welhorn v.
PeopU, 76 111. 516. The record should show that the bond was filed
in court, that it was taken by an officer authorized to take and approve
bail bonds, and that the defendant was discharged upon execution of
the bond, but these facts will be presumed on demurrer, and can only
be put in issue by answer. State v. Richardson^ 28 Ark. 346. But
no further proof of the execution of the bail bond is required where
it is in proper form, than the bond itself, properly signed by the justice
who took and approved it. GresJiam v. State, 48 Ala. 625, The death
of the principal after forfeiture of a recognizance cannot be pleaded to
a so. fa. The State v. McNeal, 3 Harr. (N. J.) 333. In debt on a recog-
nizance, conditioned that the prisoner should personally appear at the
next court of oyer and terminer to answer to an indictment, etc., it is
a good answer to the action that intermediate the date of the recogni-
zance and the term of the court therein mentioned, the prisoner enlis-
ted as a soldier in the service of the United States, and was in active
service in the army of the United States during the entire session of
said court, under the control and authority of the commander-in-chief
of said army, and was prevented from attending said court by said
commander-in-chief until after the day of appearance. The People v.
Cushney, 44 Barb. 118 ; People v. Cook, 30 How. (N. Y.) Pr, 110,

The fact that an action on a condition in a recognicance, that the
accused will appear and answer to an indictment, is untenable by rea-
son of defects in the indictment, does not prevent an action for a
breach of another condition, that he will not depart the court without
leave. State v. Poston, 63 Mo. 521.

§ 13. Evidence. Under a sci/re facias averring the recognizance
to be joint and several, a several recognizance cannot be admitted in
evidence, notwithstanding a statute declaring joint obligations to be
both joint and several. Farris v. People, 58 111. 26, So, a material
variance between the warrant and the recognizance set forth in the

KECOGNIZANCE. 415

declaration, and that given in evidence, is fatal. Dillingham v. United
StaUs, 2 Wash. C. C. 422.

The minutes taken by a magistrate on a recognizance and returned
into court may be given in evidence in an action on the recognizance,
provided they show the amount and condition, and that the party was
bound to the Commonwealth. Commonwealth v. Emery, 2 Binn. 431.
And on the rendition of judgment final against obligors on a forfeited
bail bond, taken and approved by a justice of the peace for the appear-
ance of the principal at the circuit court, sc. fa. having duly issued to
them to appear and show cause why judgment final should not be ren-
dered, no further proof of the execution of the bail bond is required
where it is in proper form, than the bond itself, properly signed by the
justice who took and approved it. Gresham v. State, 48 Ala. 625.

In an action on a recognizance, evidence aliunde is admissible to iden-
tify a party thereto whose name in the condition differs from any name
recited in the obligatory part. Gay v. State, 7 Kan. 394. So, a recog-
nizance executed by " Joseph Lytle " was admitted in evidence under
a scire facias against him, though he was named in the body thereof as
"Joseph Little." Zytle v. People, 47 111. 422. But in an action on
a recognizance of bail, under a plea of payment, evidence of payment
of a less sum than the amount of the judgment is inadmissible. Me-
chanics^ Bank v. Hazard, 13 Johns. 353.

Upon a motion to enter up judgment against the sureties on a bond
conditioned for the appearance of the principal to answer to an indict-
ment which had been estreated, and on which a sc.fa. had issued, it is
good ground for a continuance that the principal was too sick to ap-
pear and the sureties should be permitted to prove that fact. Russell
v. StaU, 45 Ga. 9.

The affidavit charging the crime, the recognizance, and the justice's
transcript showing the forfeiture of the recognizance may be properly
admitted in evidence in an action in the circuit court on the forfeited
recognizance, though the affidavit be such that it would have been bad
on motion to quash. Adams v. State, 48 Ind. 212.

§ 14. Matter of practice. A recognizance is matter of record and
cannot be aided by any parol averments. If returnable at a time
when no term of court is holden and there is nothing in the record
from which the court can infer that such time was intended to describe
the next session of the court, the recognizance is void. Treasurer v.
Merrill, 14 Yt. 64. The record of a recognizance is, at least, conclu-
sive between the parties, and whether, in a suit between a recognizor
and a stranger, certain parol evidence, if admissible, is sufficient to re-
but the presumption that the recognizance was entered up by the con«

416 RECOGNIZANCE.

sent of the recognizor, is a question of fact and cannot be made the
ground of error. Walker v. Briggs, 11 Yt. 84.

If the accused has appeared on the day fixed in the recognizance and
thus complied with its condition, the justice has no right to enter a
default for his non-appearance on an adjourned day. Ogden v. People,
62 111. 64.

When default is made on a recognizance to appear, the proper prac-
tice under the Arkansas Code is to enter a forfeiture, take an interloc-
utory judgment and then issue a scire facias to show cause why the
judgment should not be made final. Marr v. State, 26 Ark. 410,

A judgment rendered on a recognizance for failing to appear is no
bar to another prosecution for the same offense. Coinrrionwealth v.
Thompson, 3 Litt. 284. So, too, where one, who is under a recogni-
zance to keep the peace, commits a breach of the peace and is indicted
and fined therefor, nevertheless he is liable to an action for the penalty
of the recognizance. ConiTrhonwealtk v. Bro/ynard, 6 Pick. 113. In
a suit against the surety of a recognizance, given for a stay of execu-
tion, the defendant in the original suit is not a witness for the surety.
Milliken v. Brown, 10 S. & R. 188. And a cognizor cannot object
that there is but one sm'ety where there should be two. CoTrvmon-
wealth V. Porter, 1 A. K. Marsh. 44.

A joint scire facias may be maintained on a several recognizance,
but judgment should be rendered to have execution according to the
effect of the recognizance. Madison v. Commonwealth, 2 A. K.
Marsh. 131. If a recognizance entered into by two persons be for-
feited, one scire facias may issue against both and a separate execution
be awarded against each for the amount of his obligation. Minor v.
State, 1 Blackf. (Ind.) 236.

In a proceeding to set aside the forfeiture of a recognizance for the
appearance of a defendant to answer to an indictment, a complaint is
not necessary, a written motion being sufficient. State v. Shideler, 51
Ind. 64. The prosecuting attorney is the proper person to represent
the State in such proceeding, and upon his appearance to such motion,
the court has jurisdiction of the State. Id.

In a proceeding on a forfeiture there is no discontinuance if the
court chooses to make the judgment final against the sureties served
with notice of tlic judgment nisi, without waiting for two returns of
" not found " against the principal. Keipp v. State, 49 Ala. 337.

A suit on a forfeited recognizance need not be brought at the relation
of anyliody, and if so brought, tlic name of the relator may be stricken
out on motion. Hawkins v. State, 24 Ind. 288.

§ 15 Of* the judgment. Against a plurality of cognizors there

EECOGNIZANCE. 417

may be one writ of scire facias, one judgment and one execution.
State V. Stout, 6 Halst. 124. Judgment may be taken, on a several
recognizance, against the sureties, wliile the principal has not been simi-
moned. Madison v. Commonwealth, 2 A. K. Marsh. 131. And a judg-
ment nisi upon the forfeiture of a recognizance, being only a declaration
of record of the forfeiture, can be taken without calling the sureties
or their legal representatives. Taylor v. State, 21 Tex. 499. If such
judgment is set aside as to the principal, on his plea of pardon, it can-
not be enforced against the surety. Hatch v. State, 40 Ala. 718.

A judgment against a surety, entered on a forfeited recognizance,
will not be vacated on the ground that it was forfeited in violation of a
verbal stipulation made by the district attorney, or one of his assistants,
with the counsel for the prisoner to postpone the trial, or to give him
notice of it. Such stipulations will be enforced only when in writing,
entered as orders or subscribed by the district attorney, or his assistant.
People V. Haggerty, 5 Daly (N. Y.), 532. Kor would it be discharged
on proof that the prisoner was subsequently surrendered by his bail, or
that he was acquitted on the trial, and a nolle prosequi entered, unless
it also appears that the prosecution has not been deprived of proofs by
the delay. People v. Carey, 5 Daly (N. Y.), 533.

To sustain judgment upon a scire facias, on a recognizance, there
must be a judgment of forfeiture. The fact that a valid judgment of
forfeiture is set out in the scire facias is not enough. Evidence of it
must be given. Evhank v People, 50 111. 496.

In debt on a recognizance of bail, judgment nil dicit may be entered
for the penalty of the recognizance without impanehng a jury to com-
pute the amount. There is nothing for the jury to determine. Crum^p
V. The People, 2 Col. T. 316.

In the city and county of New York judgment against the surety on
a recognizance to appear for trial under a criminal indictment may be
entered by filing with the county clerk the recognizance, and a copy of
the order of the court forfeiting it. Such a judgment is one entered
on " due process of law," and is not an infringement on the constitu-
tional right of trial by jury, under the constitution of the United States
or of New York State. People v. Hiclcey, 5 Daly (N. Y.), 365 ; S.
C. aflarmed, 59 N. Y. (14 Sick.) 83. A judgment may be rendered for
the penalty of a recognizance, although it exceed the forfeiture which
the law imposes upon the conviction of the principal recognizor of the
offense charged. Badger v. The State, 5 Ala. 21. But a judgment
cannot be rendered for a sum greater than the penalty. TJw State v.
ninson, 4 Ala. 671. See Clark v. Petty, 29 Ohio St. 452. So if the
judgment describe the recognizance so that the particular sum for which
Vol. y.-53

418 KECOGNIZANCE.

each recognizor is bound, and the nature of his undertaking is shown, and
the judgment charges each to the extent of his liabihty and no further,
there is no error. Smith v. The State, 7 Port. 492. But where the
principal recognizes in a certain sum, and the surety in a like sum, a
joint judgment against both cannot be rendered for double that sum.
Dean v. The State, 2 S. & M. 200. And in a scire facias on a recog-
nizance by several, bound each for several distinct sums, the cause may
be continued as to part, and judgment rendered against the others.
Otherwise, in debt. Fowler v. The Commonwealth, 4 Monr, 128.

In the absence of any order of court discharging a recognizance, it is
sufficient to authorize an entry of judgment of forfeiture, that the record
should show, that the principal in the recognizance was called, and made
default. Alley v. The People, 1 Gilm, 109, But it should show that
the party charged with an offense was required to answer the charge
specified in the recognizance. Farr v. The State, 6 Ala. 794. If the
charge which the accused is called to answer varies from that described
in the condition of the recognizance, no sufficient breach is shown, and
the judgment nisi is erroneous. Howie v. The State, 1 Ala. 113.

REDEMPTION OF REAL ESTATE. 419

CHAPTER CXY.

REDEMPTION OF REAL ESTATE.
ARTICLE I.

ACTIONS TO KEDEEil MORTGAGED LANDS.

Section 1. In generaL An equity of redemption is a right which
the mortgagor of an estate has of redeeming it, after it has been for-
feited at law by the non-payment at the time appointed of the money
secured by the mortgage to be paid by papng the amount of the debt,
interest and costs. 1 Bouv. Law Diet. 536. The phrase equity of re-
demption is indiscriminately, though often incorrectly, applied to the
right of the mortgagor to regain his estate, both hefare and after breach
of condition. In North Carolina, by statute, the former is called a
legal right of redemption, and the latter the equity of redemption,
thereby keeping a just distinction between these estates. 1 N. C. Rev.
Stat. 266. See TJie State v. Laval, 4 McCord (S. C), 340. The
interest is recognized at law, for many purposes, as a subsisting estate,
although the mortgagor, in order to enforce his right, is obliged to re-
sort to an equitable proceeding, administered generally in courts of
equity, but in some States by courts of law {Griderv. McClay, 11 Serg.
& Rawle [Penn.], 223) ; or in some States he may pay the debt and have
an action at law. Jackson v. Bowers, 18 Johns. 110 ; Robhins v. Abra-
hams, 1 Halst. (N . J.) Ch. 466 ; Morgan^ s Lessee v. Davis, 2 Harr.
& McH. (Md.) 9 ; 1 Bouv. Law Diet. 536. The interest of a pur-
chaser of land, when the purchase-money is not paid, and the title is
retained as a surety for its payment, is treated as an equity of redemp-
tion. Shoffner v. Foglema/n, 1 Wms. (N. C.) No. 2 (Eq.) 12.

The equity of redemption is an estate which the mortgagor may de-
vise or grant (1 Washb. Real Prop. 544 ; Endsioorth v. Grijfiths, 15
Vin. Abr. 468) ; and it is governed by the same rules of devolution or
descent as any other estate in lands. CJiamlerlain v. Thompson, 10
Conn. 243 ; Wright v. Bose, 2 Sim. & S. Ch. 323 ; Bounie v. Bourne,
2 Hare's Ch. 35. He may mortgage it. Bigelow v. Wilhon, 1 Pick.
485. But he cannot release or surrender it exce]it by writing, it being
a right in real estate. Clark v. Condit, 3 C. E. Green (N. J.), 358.

420 REDEMPTION OF REAL ESTATE.

It is liable for liis debts. White v. Whitney, 3 Mete. (Mass.) 81 ; J^bo)
V. Sarding, 21 Me. 104; Freehy v. Tupper, 15 Ohio, 467. But it
cannot be sold on an execution, upon a judgment recovered for the
mortgage debt. Palm&r v. Foots, 7 Paige, 437 ; Shoffner v. Fogleina/n,
1 Wins. (N. C.) No. 2 (Eq.) 12.

The right of redemption is favored in law, and where it is admitted
in the pleadings, courts will not scan very closely the transaction out
of which it is claimed to arise, for the purpose of defeating that right.
JBriggs v. Seymour, 17 Wis. 255. Equity is ready to receive the ex-
cuses of the mortgagor, not only to allow him time to procure the
money before foreclosure, but also to open the foreclosure, where there
was any good reason why it was not resisted. Golden v. Fowler, 26
Ga. 451. No decree can take away the statute right of redemption.
Z>' Wolf V. Haydn, 24 111. 525. And the mortgagee cannot, by pur-
chasing a mortgage on other premises of the mortgagor, compel him to
redeem both, if either. Cleveland v. ClarTc, Brayt. 166.

If a mortgagee, having entered for condition broken, refuse to relin-
quish the possession of the estate mortgaged, after payment, or tender
of payment, of the money due on the mortgage, the only remedy for
the mortgagor, or for him who has the right of redeeming, in order to
regain the estate, is by a bill in equity. Parsons v. Welles, 17 Mass.
419 ; Pratt v. Sholjield, 45 Me. 386. As is also the case where one
for any reason is entitled to redemption. Pearce v. Sa/oage, 45 Me.
90. If the mortgagee have entered and dispossessed the mortgagor
before condition broken, and continue in possession afterward, the
mortgagor may elect to consider him in for condition broken, and upon
performance, or tender of performance, maintain a bill in equity to re-
deem. Pomeroy v. Winship, 12 Mass. 514. And so where, after con-
dition broken, the mortgagee recovers judgment for possession in an
action not brought for the purpose of foreclosure. Green v. Kerrvp, 13
Mass. 515. If the mortgagor will not voluntarily redeem the land
mortgaged, and there be no bond, covenant, or other contract for pay-
ment of the mortgage debt, he cannot be compelled to pay otherwise
than by the land pledged. Reading of Judge Tkowbridge, 8 Mass.
551. But, if there be such contract, the mortgagee, after entry for
condition broken, may recover the difference between the value of the
land and the amount of principal and interest due on the contract.
A7nAjry v. Fairbanks, 3 Mass. 562. In sucli case the mortgagor will be
allowed, in addition to the value of the lands when the mortgagee took
possession, all the profits received by him after possession. Newall v.
Wright, 3 Mass. 138, 154. If, in an action for possession, it appear
that the tenants have the right of redeeming but a part of the premi-

REDEMPTION OF REAL ESTATE. 421

ses demanded, absolute judgment will be entered for the whole ; and, for
the part which they have a right to redeem, their remedy must be
by a bill in equity. Partridge v. Gordon^ 15 Mass. 486. The bill
to redeem may properly be framed with a double aspect, so that the
complainant may avail himself of a tender, if his proof thereof shall
be sufficient, or, failing in that, pray an account and be permitted to
pay the amount found due. Regularly, however, the prayer should be
in the alternative. Gooding v. Riley ^ 50 N. H. 400.

A mortgage conditioned to pay a sum of money, or support the mort-
gagees during their lives, may be redeemed after breach, although the
mortgagor has elected to support them, and has assigned his equity, if
the mortgagees assented to the assignment, but not otherwise. Bryant
V. Ersklne, 55 Me. 153. A mortgagor's whole interest is gone, if he
does not, within a limited time from the sale, generally fixed by statute,
redeem the equity of redemption sold on execution. He has no right
afterward to redeem the land mortgaged, although the purchaser of the
equity should not redeem. Ingersoll v. Sawyer, 2 Pick. 276. After
the right of the owner of the equity of redemption to redeem has been
barred by the running of the statute of limitations, it cannot be revived
by a tender of the amount of the mortgage and demand of possession
by him. Miner v. Beehnan, 11 Abb. (E". Y.) Pr. (N. S.) 147; S. C,
42 How. 33. But, under certain circumstances, the neglect of a
mortgagor to redeem his property within the time specified will not
work a forfeiture of his rights. McNees v. Swaney, 50 Mo. 388. As
where a contract is made, extending the time of redemption of land
sold beyond the time limited by statute, the contract will be enforced,
and a redemption allowed within the time designated in it. Davis v.
Dreshack, 81 111. 393. Generally an action to redeem from a mortgage
is barred in the same time an action to foreclose would be, and cannot,
in certain States, be maintained after ten years from the date when the
right of action accrued. Crawford v. Taylor, 42 Iowa, 260 ; compare
Mvmn V. Burgess, 70 111. 604. Even without a tender or demand of
account a biU to redeem a mortgage can be maintained ; the special pro-
visions of a statute allowing a remedy by petition do not supersede the
general remedy in equity. Hall v. Hall, 46 N. H. 240.

A first mortgagee, on pm-chasing at his foreclosure sale, may require
a second mortgagee, who by oversight was not made a party to the suit,
to redeem within a reasonable tune or to be foreclosed ; and this, not
only for the amoimt of principal and interest due, but also for the pur-
chase-money paid by him over and above such amount, in liquidation
of claims prior to the second mortgage, to the rights of the holders of
which claims the purchaser had been thereby subrogated. Parker v.

422 REDEMPTION OF EEAL ESTATE.

Child 25 N. J. Eq. 41. Part payments made after foreclosure by ad-
vertisement, and received vtdtli the clear understanding that the redemp-
tion is to be completed by paying the whole sum necessary for that
purpose, within the year allowed by the statute, are in affirmance and
not in avoidance of the sale, and their acceptance does not operate as a
waiver of the foreclosure. Cameron v. Adams, 31 Mich. 426. But
where a mortgage has been foreclosed by advertisement and the prem-
ises bid in by the mortgagee, but, before the redemption ran out, an
arrangement has been made between him and the mortgagor to extend
the time, and payments have been made and accepted on the strength
of it, the foreclosure sale and deed are thereby superseded and rendered
abortive. Dodge v. Brewer, 31 Mich. 227. The mere assumption of
a mortgagee, evidenced by his giving a deed, that he has title in fee,
cannot bar the equity of redemption ; nor can an occasional occupation
under such deed, or any occupation short of a continuous and notorious
one, adverse to the right to redeem, give it that effect. Humjphrey v.
Hurd, 29 Mich. 44. A purchaser of mortgaged premises from a mort-
gagee, pending a suit to redeem, will hold subject to the equities of the
parties seeking the redemption. Roberts v. Fleming, 53 111. 196. The
New Jersey statute authorizing courts of law to enforce equities of
redemption, in certain cases, by compelling the mortgagee to reconvey
the mortgaged premises, upon payment into court of the money secured
by the mortgage, is not applicable to any case in which the mortgagor
is himself the actor. Shields v. Lozear, 34 N. J. Law, 496 ; S. C, 3
Am. Rep. 256.

Where a redemption of land, sold under a decree of foreclosure, was
made after the death of the debtor by a judgment creditor, whose exe-
cution was A'oid, and who had no right to levy and sell under the same,
and the redemption-money was accepted and acted upon as valid by
the prior creditor, it was held that the acceptance operated to extinguish
the prior sale, the same as if the redemption had been properly made,
and re-invested the heir at law of the deceased debtor with the title to
the land, and tliat they were not precluded from contesting the title
claimed by such redeeming creditor by sale under his execution. Cling-
rnan v. Ilojjkie, 78 111. 152.

§ 2. Of the right to redeem. The right to redeem and the right
to foreclose a mortgage are reciprocal and commensurable. King v.
Meighen, 20 Minn. 264 ; Cimningham v. Hawkins, 24 Cal. 403. But
see Scwretzer v. Mayhew, 31 Beav. 37. A mortgagor has the right,
at any time after condition broken and before foreclosure, in accordance
with the effect of the condition, to redeem by refunding the money
due to the mortgagee. Ileirnberger v. Boyd, 18 Ind. 420. And if a

EEDEMPTION OF EEAL ESTATE. 423

mortgagee purchases the equity of redemption for a grossly inadequate
price, under circumstances which show that the mortgagor was induced
to make the sale by tlireats from the mortgagee, a court of equity will
allow a redemption. Brown v. Gaffney, 28 111. 149. The owner of
an equity of redemption, who is out of possession, may bring a bill in
equity to redeem against the mortgagee and the tenant in possession,
notwithstanding the pendency of a suit at law between the mortgagee
and the tenant for the possession. Hall v. Hall, 46 K. H. 240. Where
a right in equity of redeeming mortgaged real estate is sold on execution
to a creditor of tlie mortgagor, the mortgagor is entitled to redeem such
right in equity, upon the repajmient of the purchase-money and interest,
without paying other demands of the purchaser against him. Loring
V. Cooke, 3 Pick. 48. A junior mortgagee coming to redeem from a
foreclosure sale, under a decree on a prior mortgage, must pay the costs
of the foreclosure suit, although he was made a party thereto. Gage v.
Brewster, 30 Barb. 387. And a judgment creditor, having a lien
upon mortgaged premises, is entitled to redeem without the issuing
of an execution, and the sale of the land, or either of them. Brainojrd
V. Cooper, 10 IST. T. (6 Seld.) 356. A wife who, solely to rehnquish
her right to dower and homestead, joined with her husband in a deed
of lands conveyed to them by entireties and not by moieties, is not
estopped from redeeming from a previous mortgage thereon, notwith-
standing her agreements and admissions made under her misapprehen-
sion as to her right of property, and without intent to deceive. Pierce
V. Chace, 108 Mass. 254. A vendor's lien for the purchase-money of
real estate is paramount to the title of a wife by vii-tue of her marriage ;
and where, upon a mortgage of the property to secure the purchase-
money executed by the husband and wife together, a decree of fore-
closure is entered, the reservation to the wife of a right to redeem is
proper. Patton v. Stewart, 19 Ind. 233. A party who furnishes
material for the building of a house, but does not follow the directions
of the mechanics' lien law, has no lien on the premises entitling him
to redeem a mortgage made thereon, nor does he acquire any interest
in the premises by reason of his recovery of judgment against the mort-
gagor after foreclosure and sale. Eaton v. Bender, 1 Xeb. 426. The mere
levy of an execution upon land to which the judgment debtor never had
any title, and in which he never held any leviable interest, does not con-
stitute any lien or charge thereupon, or invest the execution creditor with
any right or title on which to foimd an action for the redemption of a
mortgage upon the same. Harwood v. Underwood, 28 Mich. 427.

An equitable interest is subject to redemption, as well as a legal inter-
est ; but the purchaser of land at a chancery sale acquires the equitable

424 REDEMPTION OF REAL ESTATE.

title upon the implied condition that the purchase-money shall be paid
at the time stipulated, the payment of the consideration being essential
to complete the equity ; and if the land be sold, under the decree of
the court, to enforce the payment of the purchase-money, the land is
not subject to redemption. Beason v. Porterfield, 3 Head (Tenn.),
3(53. The purchaser of personalty sold under a mortgage obtains a
perfect and indefeasible title ; and there is no right of redemption
from such purchaser. That right only exists for a reasonable time after
breach, as against the mortgagee, who has not sold the property. And
the fact that the purchaser knows that his vendor is only a mortgagee
makes no difference as to the character of the title acquired by the pur-
chase. Bryant v. Ca/rson River Lumbervng Co.^ 3 Nev. 313.

An agreement by a mortgagee, made three years after his entry to
foreclose, to quit-claim the "mortgaged real estate" to a third party if
he would pay before a certain day an amomit which was equal to what
was due on the mortgage on that day, less the amount of rents received
by the mortgagee between the date of such agreement and such pay-
ment is no extension of the right to redeem, though procured by the
mortgagor. Clark v. Crosby, 101 Mass. 184. But when a mortgagee,
on hearing that his son-in-law, the mortgagor, was about to sell the
mortgaged property (p. house occupied by the mortgagor), to pay the
debt, wrote that he might continue to live there without paying any
rent, the mortgagor may redeem, on payment of the principal, with
interest from the last day on which interest fell due, before the mort-
gagee's death. Yeomans v.. Williams, L. R., 1 Eq. 184.

A second mortgagee is not barred of his right to redeem a prior
mortgage by a foreclosure proceeding to which he was not a party.
Johnson v. Ilartnon, 19 Iowa, 56. But the acceptance by one entitled
to redeem, of a deed for part of the land tendered in satisfaction, bars
further redemption ; as in a case where the grantor had become the
purchaser at the foreclosure sale by deterring others from bidding, and
thereby made himself trustee of the title for all parties interested. ^^6^
/"or^Z V. Jlfoore, 54 Mo. 448.

To give validity to a sale by the mortgagor to the mortgagee of the
equity of redemption, the conduct of the mortgagee must be, in all
tlu'ngs, fair and frank, and he must pay fair value. Any indirection or
obH(piity of conduct is fatal to his title. Every doubt will be resolved
against liim. Villa v. Rodriguez, 12 "Wall. 323. And although the
original transaction ])etwcen a mortgagor and mortgagee was not in form
a mortgage, ])iit an absolute deed, with a bond to reconvey on the pay-
ment of the money at a specified time, still, it is not essential to the
projier extinguishment of the right of redemption, by an arrangement

REDEMPTION OF REAL ESTATE. 425

between the parties themselves, that it should be done by an instru-
ment which will operate as a technical conveyance of the mortgagor's
estate in the land If such transaction have occurred between the par-
ties as render it inequitable that the grantor should be permitted to
redeem, that, of itself, without a technical release, will operate as a
cancellation of the instrument of defeasance, and give to the deed the
effect of an original, absolute conveyance as between the parties.
West V. Jieed, 55 111. 242.

Wliere a foreclosure of a mortgage is had and the decree completely
executed, and the purchase-money is paid, and then an incumbrancer,
who was not made a party to the bill to foreclose, brings his action, the
right of such incumbrancer to a decree to redeem the premises and
receive a conveyance of the land mortgaged is not absolute. In the
absence of fraud the owner of the land under the foreclosure and sale
should be protected in his title, subject only to the payment of the
creditor's just claim. Miller v. Fiim, 1 Neb. 25-i.

The right to redeem an estate under mortgage cannot be enforced in
a suit at law, it can only be done in equity. Randall v. Bradley, 65
Me. 43. So, a bill by a mortgagor to open a decree of foreclosure and
charge the mortgagee with rents and profits, and offering to pay any
deficiency necessary to redeem, will be dismissed for want of equity, in
seeking to treat the debt as still subsisting. Ware v. Cratty, 66 lU.
197. The law does not require a mortgagor to make a tender before
he can compel a redemption. So, an allegation of tender in a bill to
redeem unproved will not defeat any previously existing right to
redeem. Dwen v. Blake, 44 111. 135. A tenant for life of land, on
which there is a mortgage over-due, cannot hold possession of the land
against the mortgagee by paying interest as it accrues, nor can he, by
paying the amount of the mortgage, compel the mortgagee to assign it
to him, but a bill brought for these purposes may be maintained as a bill
to redeem, if the plaintiff alleges his \^allingness to pay the amount
due on the mortgage " in such way or upon such other terms as the
court may direct," and the answer alleges the defendant's readiness to
account as ordered by the court. Lamson v. Drake, 105 Mass. 564.
Where the same person holds as assignee two mortgages of real estate,
the purchaser of the equity of redemption may maintain a bill to re-
deem from only one of them, nor will the expiration of the statutory
term of foreclosure upon the other mortgage prevent a decree in his
favor as to the mortgage he seeks to redeem. MilUhen v. Bailey^
61 Me. 316.

A subsequent party in interest, whether by way of mortgage, lease
or judgment, cannot, on a motion, obtain a right to redeem and have

. YoL. Y.— 54

426 KEDEMPTION OF EEAL ESTATE.

the property conveyed to him by purchase. The only remedy in such
a case is by an action seeking to enforce such right to redeem, and in
such an action the rights of all other parties can be protected. Doug-
lass V. Woodworth, 51 Barb. 79.

Several mortgages of different estates by the same mortgagor had
become united in the plaintiff. The mortgagor had conveyed the
equity of redemption in some of the estates to purchasers by deeds of
various dates. In a suit for foreclosure it was held that no purchaser
could redeem his estate without redeeming all the mortgages, whether
he had purchased before or after the union of the mortgages in the
plaintiff, and whether he had or had not had notice of such mortgages,
and that the first purchaser of part, in point of date, had the first right
of redeeming all the mortgages, and, in default, the subsequent pur-
chasers had successive rights of redemption. Beevor v. Luck^ L. R.,
4 Eq. 537. The right to redeem a mortgage does not carry with it
the right, upon such redemption, to an assignment of the mortgage,
and of the bond or other instrument evidencing the mortgage debt, or
of either, unless the redeeming party has the position of surety, or can
be regarded as surety for the mortgage debt. Ellsworth v. Lockwood^
42 N. Y. (3 Hand) 89 ; Bigelow v. Cassedy, 26 K. J. Eq. 557.

§ 3. Of conditional sales. A conveyance between parties who do
not stand in the relation of debtor and creditor, made upon a stipula-
tion that the grantor may repurchase, is a conditional sale and not a
mortgage. Sluts v. Desenherg, 28 Ohio St. 371. And if the parties
do stand in the relation of debtor and creditor, and the debtor makes
an absolute conveyance of land to his creditor in payment of the
debt, and contemporaneously with the execution of the deed the cred-
itor delivered to the debtor a written instrument, by which he agreed
to reconvey the land upon receiving payment of a certain sum within
a specified time, the transaction docs not create a mortgage, but is a
conditional sale, and the creditor obtains the fee of the premises, sub-
ject only to the right of the debtor to demand a reconveyance on com-
plying with the terms of the agreement. Morrison v. Brand, 5 Daly
(N. Y.), 40 S. C. affirmed, 56 N. Y. (11 Sick.) 657. It is an established
rule, that where the transaction is a conditional sale in fact as well as
in form, the vendor cannot redeem after the appointed time. Holmes
v. Grant, 8 Paige, 243 ; Ranson v. Frayer, 10 Leigh, 592 ; Flagg
v. Mann, 14 Pick. 467 ; Uackmam. v. Cantrell, 9 Yerg. 172. But the
authorities are iiot less explicit that a court of equity will not allow the
riglit of redcinption to be defeated by putting that wliich is really a
mortgage in the form of a conditional sale, and will, on the contrary,
when the real nature of the transaction is doubtful, incline to the former

REDEMPTION OF EEAL ESTATE. 42T

interpretation as better calculated to attain the ends of justice. Rus-
sell V. Southard, 12 How. (U. S.) 139 ; Poindexter v. McCannon, 1
Dev. Eq. 373 ; Miller v. Thomas, 14 111. 428. Further, as to condi-
tional sales, see tit. Mortgages.

§ 4. Who may redeem. Every one interested in the mortgaged es-
tate, or coming in as privy in estate with the mortgagor, may redeem ;
and redemption will be decreed according to the priority of the claim-
ants. Moore v. Beasom, 44 N. H. 215 ; Smith v. Austin, 9 Mich. 465 ;
4 Kent's Com. 162 ; Pearce v. Morris, L. E., 5 Ch. App. 229. But he
must have an interest derived mediately or immediately from, through,
or in the right of the mortgagor, so as to constitute him the owner of
part of the mortgagor's original equity ; otherwise it cannot be affected
by the mortgage and needs no redemption. Smith v. Austin, 9 Mich.
465 ; Grant v. Duane, 9 Johns. 591. The legal owner of lands cov-
ered by a mortgage may maintain an action to compel the discharge of
the mortgage, if it be fully paid, or to redeem the land from its lien, if it
be not paid ; and it is wholly immaterial, in this respect, in what man-
ner or for what consideration, or with what object, he acquired the title.
Beach v. Coole, 28 N. Y. (1 Tiff.) 508. If the one seeking to redeem
mortgaged premises be other than the original mortgagor, he must set
forth in his bill for redemption the nature and extent of the title or in-
terest under which he claims, and how he came by it, unless he dis-
tinctly sets up and relies upon special matters of estoppel. Smith v.
Austin, 9 Mich. 465.

The right of redemption exists, not only in the mortgagor himself,
but in his heirs and personal representatives and assignee, and in every
other person who has an interest in, or a legal or er;uitable lien upon
the lands. 4 Kent's Com. 162 ; Lewis v. Wangle, 2 Yes. Sr. 431 ; Pym
V. Bowreman, 3 Swanst. 241. A dowress may redeem a mortgage
which is an incumbrance on her right. Opdyhe v. Bartles, 3 Stockt.
(K J.) 133 ; 4 Kent's Com. 162 ; McCdbe v. Bellows, 1 Allen, 269 ;
Wilkins v. French, 2 App. Cas. Ill ; Palmer v. Danpy, Free. Ch.
137. But she cannot redeem where the mortgage does not inciun-
ber her right and cannot be set up to defeat it ; as where she does
not unite with her husband in a mortgage executed during cover-
ture. Opdylce v. Bartles, 3 Stockt. (N. J.) 133. A tenant by the
courtesy has the right. Jones v. Meredith, 1 Bimb. 347. A tenant for
years has a right to redeem from a prior mortgage. Averill v. Taylor,
8 N. Y. (4 Seld.) 44. He has not, perhaps, strictly the right to de-
mand a written assignment of the bond and mortgage, but he stands by
redemption in the place of the mortgagee, and -vvill be subrogated to his
rights against the mortgagor and the reversioner. He has the right to

428 REDEMPTION OF REAL ESTATE.

have the mortgage delivered to him uncanceled, which, in such case, is
in equity a complete assignment. Hamilton v. Dobbs, 4 C. E. Green (N.
J.), 227. The mortgagee of a reversionary interest in land may main-
tain a bill in equity to redeem a prior mortgage. Smith v. Provi/rij
4 Allen, 516. A mortgagee of a leasehold will be permitted to
redeem the premises from forfeiture, and the sum he pays in such
case will be a preferable charge, in redemption account, against the
lessee and all claiming under him. Canvphell v. MoElevey^ 2 Dis-
ney (Ohio), 574. The grantee of a mortgage has a right to redeem,
though not mentioned in the decree of foreclosure. Fa/rrell v. Par-
liei\ 50 111. 274. An attaching creditor has a right in equity to redeem
from a prior mortgage, and if he is not made a party to a suit to fore-
close, his right is not affected by the decree. Chandler v. Dyer, 37
Vt. 345 ; Peabody v. Patten, 2 Pick. 517, 520. If several persons are
interested in an equity of redemption of a mortgaged estate, either as
owners in common thereof, or each as owner of a distinct parcel of the
mortgaged premises, any one of them may redeem by paying the whole
amount due on the mortgage ; and the party removing the incumbrance
is entitled to remuneration. Gibson v. Crehore, 5 Pick. 146. And the
party so discharging the mortgage, although he cannot compel the
others to contribute, will be considered as assignee of the mortgage, and
entitled to hold the whole estate mortgaged until he has been re-im-
bursed what he has been paid beyond his due proportion. Allen v.
ClarTi, ] 7 Pick. 47. But a case of contribution does not arise unless
all the parties stand in equali jure. Parhmam. v. Welch, 19 Pick. 231.
Where a deed is made absolute in form, and the grantee executes a
covenant bearing even date to reconvey, upon the payment of a certain
sum within a specified period, and it appeared that the deed was in-
tended as a mortgage to secure certain loans, the grantor is entitled to
redeem. Vanderhaise v. Ilugues, 2 Beasl. (N. J.) 410.

"Where one's equity of redemption has been sold by his assignee in
bankruptcy, the mortgagor and his wife having a homestead, and she
an inchoate right of dower in the mortgaged premises, they may main-
tain a bill to redeem, although not entitled to an assignment of the
mortgage. Lamb v. Montague, 112 Mass. 352. And where husband
and wife mortgage her estate, and the mortgagees assign the mortgage,
and the equity of rcdenq)tion is afterward sold on an execution, issuing
upon a judgment recovered against the husl)and by his creditors, and
purcliascd l)y tlie assignee of the mortgage, after the death of the hus-
band, the wife is entitled to the land upon paying the mortgage only.
Peafjody v. Patten, 2 Pick. 517. And where, while the right of re-
demption from a mortgage still exists, a junior mortgagee executed an

KEDEMPTIOX OF EEAL ESTATE. 429

agreement by which he agreed to sell and convey all his interest in the
mortgaged premises for a certain sum, but payment was not to be made
unless the right of the party purchasing, or his assignee, to redeem from
the senior mortgage, should be established ; and this agreement was
assigned to the wife of the mortgagor, and then the mortgagor and his
wife executed a quit-claim deed for the premises, and the grantee therein
released to the wife of the mortgagor, the wife thereby became invested
with the right to redeem from the senior mortgage. Roberts v. Flem-
ing, 53 111. 196.

Where an uncle of the mortgagor, a man of ample means, had
promised the mortgagor that he would provide him with the money
necessary to pay the mortgage, which was about to be foreclosed, and
the mortgagor relied upon such promise, but the uncle failed to furnish
the money, it was held that the mortgagor was prevented from paying
the mortgage by an unforeseen event, and that he was entitled to relief
in a court of equity to have the foreclosure opened, and be allowed to
redeem. Bostwick v. Stiles, 35 Conn. 195.

A mortgagor of real estate, who has conveyed the mortgaged prem-
ices by warranty deed, cannot maintain a bill to redeem. Phillips v.
Leavitt, 54 Me. 405. And a mortgagor, who is tenant in common with
the mortgagee of the mortgaged premises, cannot redeem without pay-
ing the whole amount due upon the mortgage. Merritt v. Hosnier,
11 Gray, 2T6. The mortgagor's right to redeem from a sale on
foreclosure is governed by the laws in force at the time of making the
mortgage, and not by the laws in force at the time of foreclosure.
Carroll v. Rossiter, 10 Minn. 174.

A junior mortgagee may, either by payment or tender of the amount
due, redeem premises from the lien of a senior mortgage. Dings v.
Parshall, 7 Hun (N. Y.), 522; Strang v. Allen, 44 111. 428. This
right is an equitable right founded on common-law principles, and
is entirely independent of the statutory right of redemption given
to judgment creditors, and it applies equally to deeds of trust to
secure the payment of debts and to mortgages proper. Wiley v. Ewing,
47 Ala. 418 ; Beach v. Shaw, 57 111. 17. And it cannot be taken away
or barred by a foreclosure proceeding to which the junior mortgagee is
not a party. Johnson v. Ilarmon, 19 Iowa, 56 ; Wiley v. Eicing, 47
Ala. 418. Under the statute law of certain States, making the interest
of the mortgagee not an estate in land, but simply a specific lien thereon
to secure the debt, which is the principal thing, the right of a jimior
mortgagee, who was not made a party to a foreclosure of a prior mort-
gage to redeem therefrom, is absolutely barred in ten years. Gower v.
Winchester, 33 Iowa, 303. See, too, Rogden v. Guttery, 58 111. 431.

430 KEDEMPTIOK OF REAL ESTATE.

The mere fact that a person occupies the position of a second mort-
gao-ee, or subsequent judgment creditor, does not entitle him to redeem
the prior mortgage, unless some special equity exists in the subsequent
incumbrancer ; the prior mortgagee has the right to retain his security,
and may refuse to surrender it so long as the mortgagor does not wish
to discharge it. If the second incumbrancer is in danger of losing the
benefit of his security, unless he is permitted to redeem, and the cir-
cumstances are such that equity would subrogate him upon making
these facts known to the first mortgagee, and making him an uncon-
ditional tender of his money, he is put upon his inquiry, and, after
taking a reasonable time to be ad^dsed, his refusal to accept the tender
and deliver up his mortgage is at his peril. Bigelow v. Cassedy, 26
!N. J. Eq. 557. So, a junior mortgagee, after his debt has been fully
satisfied, has no right to redeem from a prior sale under foreclosm*e of
a senior mortgage to which he was not a party. Mc Henry v. Cooper,
27 Iowa, 137. A part purchaser of mortgaged property, or junior
mortgagee, cannot redeem without paying the whole mortgage debt.
Knowles V. Rdblin, 20 Iowa, 101. The right of the successive holders
of a series of notes, maturing at different times, and secured by the
same mortgage, to redeem from a foreclosure and sale in favor of the
holder of the note first maturing, is the same as that of separate junior
incumbrancers to redeem from a foreclosure of a prior mortgage.
Preston v. Hodgen, 50 111. 56. A mortgagee seeking to foreclose
ia first mortgage is not bound to tender redemption of a second mort-
gage. Ila/rshey v. Blackmarr, 20 Iowa, 161. A statute, providing
for the redemption of real property sold on execution or order of sale,
etc., does not cut off or affect any right of redemption existing by the
general principles of law, and held by one who was not a party to the
" judgment, decree, or other judicial proceeding," on which the sale
was made. Holmes v. Byhee, 34 Ind. 262.

When a bill to redeem is brought by several complainants, claiming
to redeem two several mortgages, a demand by one of the co-complain-
ants made long l)efore the title of the others accrued will not inure to
their benefit. Wallace v. Stevens, 64 Me. 225. When a lien-holding-
creditor, seeking to redeem from a foreclosure sale, produ(!es to the
sheriff the original instrument, evidencing his lien with the certificate
of record indorsed thereon, this is a sufficient compliance with the
statute which requires the production of a certified copy of such in-
stmmcnt. A computation made by the sheriff and the lien-holding
creditors of the amount due on the latter's lien is not a compliance with
the statute requiring such creditor desiring to redeem to produce to the
sheriff an affidavit of himself or his agent, showing the amount then

KEDEMPTION OF REAL ESTATE. 431

actually due on his lien. Without the production of such affidavit the
attempted redemption is invalid. Tinkcom v. Lewis, 21 Minn. 132.
When a bill to redeem is brought by a second mortgagee against the
assignee of a prior mortgage, the latter cannot interpose the objection
that the second mortgage is fi-audulent as to creditors of the mortgagor.
CrooTcer v. Holmes, 65 Me. 195 ; S. C, 20 Am. Rep. 687.

The right of a second mortgagee to redeem a prior mortgage cannot
be cut off or prejudiced by arrangements between the holder of the first
mortgage and the mortgagor, for an extension of time to pay it. Sager
V. Tupper, 35 Mich. 134. Nor can his right be affected by a foreclos-
m-e decree and sale under the prior mortgage, where, at the time of
such decree and sale, no party to the foreclosure suit in any way repre-
sented, or had any right or interest in such subsequent mortgage.
Avery v. Myerson, 34 Mich. 362.

§ 5. Who defendant. A mortgagor seeking to redeem may join all
parties who might call for redemption, but he ma}^ also bring his bill
against the last mortgagee alone, if he chooses to run the risk of a fore-
closure by a prior mortgagee ; and the defendant in this case cannot
require the redemption of the prior mortgages unless he has paid them
and holds the amount as a charge upon the estate. Stone v. Ba/rtlett, 46
Me. 438. A mortgagor, who has transferred all his interest in the
premises, need not be made a party. Hilton v. Lothrop, 46 Me. 29 T.
And the mortgagee or the assignee of a mortgage, who has parted
■with all his interest, and has never made himself liable for rents and
profits, should not be made a party, unless he is charged with fraud or
collusion, or a discovery is sought from him. Beals v. Cobb, 51 Me.
348 ; Williams v. Smith, 49 Me. 564. A husband need not be made a
party to a bill by the wife brought to redeem premises owned by her.
Hilton V. Lothrop, 46 Me. 297. But the heirs and devisees, and the
personal representative of the mortgagee should be made parties. Id.
In Missouri, in such a case, the administrator of the deceased mortgagee
is the only necessary defendant. Copeland v. Yoakum)s Adm'r, 38
Mo. 349.

§ 6. Action, when to be brought. An action to redeem from a
mortgage is barred in the same time an action to foreclose would be,
and cannot be maintained in some States after ten years from the date
when the right of action accrued. Crawford v. Taylor, 42 Iowa, 260 ;
Munn V. B urges, 70 111. 604 ; HuUell v. Sihley, 50 N. Y. (5 Sick.)
468 ; Knowlton v. Walker, 13 Wis. 264. In California the same rule
is recognized, but by statute four years is the limit. Cunningham v.
Hawkins, 24 Cal. 403. An midisputed possession of mortgaged prem-
ises by the mortgagee for twenty years, without any recognition of the

432 redemptio:n" of real estate.

mortgage, bars the equity of redemption. A fortiori where a stranger
to the mortgage is in possession. McNair v. Lot^ 34 Miss. 285 ; Roh-
erU V. Littlefield, 48 Me. 61 ; Bates v. Conrmjo^ 3 Stoekt. (N. J.) 137;
Coolc V. Finkler, 9 Mich. 131. But the court may, for equitable reasons
shown, allow a further time for redemption. Bridgeport Savings Bank
V. Eldredge, 28 Conn. 556 ; Cilley v. Huse, 40 N. H. 358.

§ 7. Assignee of mortgage. An assignment of a mortgage in com-
mon foiTn passes only one's interest as mortgagee, and no other interest
which he may have in the mortgaged premises. Durgin v. Busfield,
114 Mass. 492. And where an assignment of a mortgage is made by
the mortgagee without the concurrence of the mortgagor, the assignee
stands in no different position from that of his assignor. Cumberlmid
Coal and Iron Co. v. Parrish, 42 Md. 598.

The riglit to redeem a mortgage does not carry with it the right to
an assignment of the mortgage, unless the redeeming party occupies
the position of surety for the mortgage debt. Bigelow v. Cassedy, 26
K J. Eq. 557 ; Ellsworth v. Lockwood, 42 N. Y. (3 Hand) 89.

A chancery foreclosure, to which an assi gn^e, in bankruptcy of a sub-
sequent mortgagee has been made a party, had proceeded to decree and
sale, after the death of such assignee, without bringing in his successor,
or any one else who represented such subsequent mortgage ; and it was
held, in a suit brought by the successor of such assignee, to redeem, that
his equities were superior to those of the purchaser at the foreclosure
sale, and a decree for redemption was granted. Avery v. Ryerson^ 34
Mich. 362. Where the mortgage is transferred, and the transfei'ee
fails to give notice of the transfer to the mortgagor, payments subse-
quently made by him to the original mortgagee are valid as against the
transferee. Matthews v. Wallwyn, 4 Yes. 126 ; Bardwell v. Catch-
pole, 3 Swanst. 79 n ; Stocks v. Dolson, 4 DeG. M. & G. 11.

§ 8. Mortgagee in possession. A mortgagee who has foreclosed
and taken possession of the premises may be required to account for
the rents and profits received by him since snch foreclosure, on re-
demption by a junior mortgagee who was not a party to the proceed-
ing to foreclose. Ten Eych v. Cased, 15 Iowa, 524; Haskins v.
Hawkes, 108 Mass. 379; Trulock v. Rdbey, 15 Sim. 265; Smart
V. TFunt, cited in 1 Yern. 418. He is accountable for the rents and
profits which he might have received by the exercise of reasonable
care and diligence. Stnrcmg v. Blanchard, 4 Allen, 538 ; Sanders
v. Wilson, 34 Yt. 318; Harper v. Ely, 70 111. 581. Pie should
be allowed for his expenses in keeping the mortgaged premises
in repair, but not for any improvements upon them. Russell v.
Blake, 2 Pick. 505; Woodward v. Phillips, 14 Gray, 132. He

REDEMPTION OF B.EAL ESTATE. 433

should be credited on account with such reasonable counsel fees as he
was obhged to pay in collecting the rents and profits, and he is not
liable for damages done to the land by the tenant without his knowl-
edge if the tenant is a proper person to lease to, nor for wood in rea-
sonable quantities, cut and used by such tenant for fuel and repairs.
Huhhard v. Shaw, 12 Allen, 120, He cannot charge among his
disbursements, on account of the estate, the premium paid for insur-
ance on the premises. Saunders v. Frost, 5 Pick. 259. Nor moneys
expended for improvements merely ornamental, unnecessary for up-
holding the estate and not contributing to its permanent value. Reed
V. Reed, 10 id. 398. He should be allowed for taxes paid by him
upon the land. Goodrich v. Freidersdorff, 27 Ind. 308. In a suit by
the purchaser of the equity for the redemption of a mortgage, if the
mortgagee, after taking possession, has been compelled to pay the
amount due upon a note secured by a prior mortgage upon a portion
of the land, to protect his title, he is entitled to be allowed for the
sum so paid, although such prior mortgage was thereupon discharged
of record before the plaintiff's title accrued, if it also appears that the
whole amount claimed by the defendant upon his mortgage is less than
that which appears to be due upon it by the record. Dams v. Winn,
2 Allen, 111. A mortgagee of land in possession after condition
broken may defend against an action at law by the owner of the
equity of redemption, if the mortgage has not been discharged, al-
though the mortgage debt has been satisfied. The only remedy
against him is in equity. New England, etc., Co. v. Merriam, 2
Allen, 390.

On a biU to redeem, brought by the mortgagor's widow in order to
be let into her dower, the mortgagee is liable to account to her for the
rents and profits received from the date of his entry into possession
under the mortgage and not merely from the date of her demand.
Dela v. Stanwood, 62 Me. 574. But where a mortgagee entered upon
land to foreclose a mortgage in which the mortgagor's wife had not
joined, but did not take possession of the house, nor receive rent there-
for, she having continued in possession of it, claiming it as a home-
stead, on a bill in equity to redeem, brought by an assignee of the
equity of redemption, the mortgagee is not accountable for the rent of
the house. Taft v. Stetson, 117 Mass. 471.

§ 9. Terms of redemption. If a mortgagor goes into equity to re-
deem, he will not be permitted to do so but upon payment, not only
of the mortgage debt, but of all other debts due from him to the mort-
gagee ; and so where he seeks a recovery of the rents and proceeds of
the sale of the mortgaged premises. But where the mortgagee seeks a
You Y— 55

434 KEDEMPTION OF EEAL ESTATE.

foreclosure in chancery, the mortgagor is permitted to redeem upon
payment of the mortgage debt alone. Anthony v. Anthony, 23 Ark.
479 ; Childs v. Childs, 10 Ohio (N. S.), 339 ; Brown v. Gaffney, 32
111. 251. To redeem jjroperty Avhich has been sold under a mortgage for
less than the mortgage debt, it is not sufficient to tender the amount
of the sale. The whole mortgage debt must be tendered or paid
into court. The party offering to redeem proceeds upon the hypoth-
esis that, as to him, the mortgage has never been foreclosed and is still
in existence. Therefore, he can only lift by paying it. The money
will be subject to distribution between the mortgagee and the pur-
chaser, in equitable proportions, so as to re-imburse the latter his
purchase-money and pay the former the balance of his debt. Collins
V. Biggs, 14 Wall. 491 ; White v. Hamj^ton, 13 Iowa, 259. l^o de-
duction from the incumbrance can be made for usurious interest
already paid by the former owner. Perrine v. Poulson, 53 Mo. 309.
But the mortgagor, upon redeeming, will not be obliged to pay com-
pound interest, though the note secured by the mortgage may, in
terms, require it. ParTdmrst v. Cummings, 56 Me. 155.

When a mortgagee redeems from a prior mortgagee who has been
in possession, the annual rents and profits are to be applied first to the
payment of interest, and the surplus, if any, to the redemption of the
mortgage debt. Gladding Y.Warner, 36Yt. 54; Gibson y. Orehore,
6 Pick. 146 ; Moore v. Cable, 1 Johns. Ch. 385. Where the annual
rents and profits exceed the interest on the mortgage debt, it is proper
to make annual rests in the computation of interest, because the
rents afford a sufficient fund to pay the interest annually. Beed v.
Meed, 10 Pick. 398 ; Green v. Wesoott, 13 Wis. 606 ; Wilson v. Met-
calfe, 1 Russ. 530 ; Morris v. Islip, 20 Beav. 654. A mortgagee, who,
after his foreclosure sale, has redeemed the mortgaged premises from
a tax sale, is not authorized to tack the sum paid for such redemption
to the sum for which the premises were sold at such foreclosure sale
and to require a second mortgage, seeking to redeem, to pay the
amount of the two sums as a prerequisite to his redemption. Nojpson
V. Horton, 20 Minn. 268. On a bill to redeem from a prior mortgagee,
who, living in another State, had entered a foreclosure and appointed
an agent to manage the property, in the absence of negligence in ap-
pointing such agent, the prior mortgagee should not be charged with
a higher rent than he actually received, although such higher rent
might, by due diligence, have been obtained. Gerrish v. Black, 104
Mass. 400.

A bill in equity to redeem is not good unless it contains a formal
offer to pay whatever sum may he, found due upon taking the account.

REDEMPTION OF REAL ESTATE. 435

Kemp V. Mitchell^ 36 Iiid. 249. But a bill which goes upon the
ground that the defendant fraudulently prevented the plaintiff from
reasonably redeeming, and neglected to render, when ]*equested, a state-
ment of the smn due, should not be dismissed because there has not
been a tender of the amount due. Payment of that can be provided
for by the decree. Waikins v. Waikins^ 57 N. H. 462.

"Where a plaintiff has permitted his right to satisfy a mortgage to remain
dormant for nearly thirty years, during which time others have paid
the assessments and taxes, and made improvements, in the behef that
they had title under a foreclosure of the mortgage, he cannot complain
that, as a condition of regaining possession, he is compelled to account
for and pay such taxes, assessments and for such improvements, accord-
ing to the just and enlightened principles of a com't of equity. Miner
V. Beehman, 50 JS". Y. (5 Sick.) 337.

§ 10. Jiidgmeut. In ordinary cases, the judgment will be that the
plaintiff pay the amount which shall, on the accounting, or if there be
no such accounting ordered, on the facts as they shall be proved to the
court, appear to be due, and within a specified time, together with the
costs, and that upon his doing so, the mortgagee, or other person pro-
ceeded against, shall convey to him and deliver up the mortgaged
premises ; and upon default of such payment, that the complaint be
dismissed with costs. 5 Wait's (N. Y.) Pr. 288. Where a mortgagor
files a bill to cancel a mortgage past due, and which his adversary is
seeking to foreclose, and the court finds the mortgage to be valid, the
proper decree is a decree for redemption. Every such bill is regarded
as in the alternative a bill to redeem, upon the principle that a com-
plainant seeking equity must be prepared to do equity. Goodenow v.
Curtis, 33 Mich. 505.

The dismissal of a bill for redemption, with costs, or any judgment
or decree of the court upon its merits, operates as a foreclosm'e of the
mortgage ; and the adjudication by a referee, that the mortgage shall
be forever foreclosed, upon neglect of the mortgagor to redeem at the
time specified in his award, is unobjectionable, as it only declares what
would be the legal effect of his award, if it were silent upon the ques-
tion of foreclosure. Pitman v. Thornton, 66 Me. 469.

§ 11. Costs. Where a party brings his action to redeem, the general
rule is, that he must pay costs to the defendant, in addition to the amount
due upon the mortgage, although he should be successful in the action.
Slee V. Manhattan Co., 1 Paige, 48. There are, however, exceptions
to this rule ; as where the defendant sets up an unconscientions
defense, or resists the plaintiff's claim on a point of law which wholly
fails; and in such case the defendant is not only refused costs,

436 KEDEMPTION OF KEAL ESTATE.

but may be compelled to pay them to the adverse party, in the discrev
tion of the come. Davis v. Duffie, 18 Abb. (N. Y.) Pr. 360.

Where a senior mortgage has been foreclosed without making a junior
mortgagee a party to such foreclosure, the junior mortgagee may re^
deem by paying the mortgage debt, principal and interest, without being
required to pay the costs of the previous foreclosure. Gage v. Brewster^
31 N. Y. (4 Tiff.) 218 ; reversing S. C, 30 Barb. 287 ; Moore v. Cord,
14 Wis. 213. Where tender of the amount due on the mortgage is
made after its maturity, and acceptance is refused by the mortgagee in,
possession, on a bill in equity to redeem, the complainant is entitled to|
a decree with costs. Shields v. Lozear, 22 N. J. Eq. 447.

It is held that a mortgagor, in an action to redeem, will be required
to pay the costs of persons, defendants, claiming under the mortgagee ;
upon the principle that, at law, the mortgage being forfeited, the mort-
gagee is at hberty to deal with it as his own property. Wetherell v.
Collins, 3 Mad. 255 ; 5 Wait's (N. Y.) Pr. 291.

An allegation that the complainant now offers to pay said defendant
the amount of his said note with interest thereon, and brings the same
into court and offers to pay all costs with which he may be chargeable,
is sufficient in a biU to redeem. Crews v. Threadgill, 35 Ala. 334,

KEFOKMATION OF mSTRUMENTS. 437

CHAPTER CXVI.

BEFORMATION OF mSTRUMENTS.

V

ARTICLE I.

OF EEFOEMATION IN GENEKAL.

Section 1. Definition and nature. To reform an instrument in
equity is to make a decree that a deed or other agreement shall be made
or construed as it was originally intended by the parties, when an error
or mistake as to a tact has been committed. 2 Bouv. Law Diet. 430 ;
Adams v. Stevens, 49 Me. 362 ; Nev) Torh Ice Co. v. North-Ajoestern,
etc., Ins. Co., 31 Barb. 72. Equity will always protect a party
against a plain mistake in a written agreement. Firmstone v. DeCamp,
2 C. E. Green (N. J.), 309 ; S. C, id. 317 ; Pitcher v. Hennessey, 48
N. T. (3 Sick.) 415. The relief which it furnishes is not so properly a re-
formation of the defective instrument, as the compelling the specific
performance of the contract. Dickinson v. Glenn£y, 27 Conn. 104.
It is in the discretion of the court to correct the mistake in a written
contract, or to leave the parties to the operation of the common-law
rule which forbids the introduction of parol evidence to vary a written
contract. Hunter v. Bilyeu, 30 111. 228. And it interferes to correct
such mistake, only for the furtherance of justice ; and the party asking
relief must stand upon some equity superior to that of the party against
whom he asks it. Henderson v. Dickey, 35 Mo. 120. But it will re-
form a written contract onlj'- when the mistake is mutual. Both parties
must understand it alike. Lanier \.Wyman, 5 Rob. (N. Y.) 147;
Sutherland v. Sutherlaiid, 69 111. 481 ; Evarts v. Steger, 5 Oreg. 147.
The mistake of one of the parties is not enough. Mills v. Lewis, 55
Barb. 179 ; S. C, 37 How. (N. Y.) Pr. 418 ; Emery v. Mohler, 69 lU.
221 ; Harvey v. United States, 12 Ct. of CI. 141. To justify a court
of equity in changing the language of a written instrument sought to
be reformed in the absence of fraud, it must be established that both
parties agreed to something different from what is expressed in the
writing, and the proof should be so clear and convincing as to leave no
room for doubt. Mead v. Westchester Fire Ins. Co., 64 N. Y. (19
Sick.) 453 ; Harvey v. UniUd States, 12 Ct. of CI. 141 ; Edmcmdi

438 EEFOEMATION OF INSTRUMENTS.

Appeal, 59 Penn. St. 220. A complaint to reform a deed must show
that words have been inserted in or omitted from the instrument, con-
trary to the intention of the parties, through fraud or some mistake of
fact. "Words inserted intentionally cannot be changed on the ground
that one party misunderstood their meaning or effect, or that they con-
flict with a contemporaneous agreement. Barnes v. Bartlett, 47 Ind.
98. It should show distinctly what was the original agreement and
understanding of the parties, and should point out with clearness and
precision wherein there was a mistake, and should also show that the
mistake did not arise from the gross negligence of the plaintiff. Lewis
V. Leiois, 5 Oreg. 169. A deed cannot be reformed where it appears to
have been made according to the intention and understanding of the
parties at the time of its execution. Bradford v. Bradford, 54 N. H.
463. But a court of equity will reform a lease so as to make it corre-
spond with a verbal agreement, and evidence is admissible of such ver-
bal understanding. Murray v. Dake, 46 Cal. 644. But it will not,
except upon the clearest evidence of mistake, permit a written con-
tract to be amended by the substitution of a parol contract, totally dif-
ferent in its conditions, and so affecting the interests of one of the par-
ties, that, instead of receiving a large sum of money, he will recover only
a mere trifle. Arnold v. Fowler, 44 Ala. 167.

The power of a court of equity to reform a contract extends to those
cases where, in consequence of fraud, or a mistake in fact, the meaning
and intention of the parties are not expressed by the words. It is not
limited merely to cases where the language used is not the very words
intended. Smith v. Jorda/n, 13 Minn. 264. And although, as a gen-
eral rule, it will only correct a simple mistake when it is mutual, yet
when the actual grantor in a deed is merely a nominal party who has
parted with his interest to other third persons, and the contract is in
fact between them, and the mistake is mutual between the parties at
interest, equity will correct a mistake, mutual as to the several parties,
though the nominal actor has made no mistake, but merely did as he
was directed. Murraij v. Sells, 53 Ga. 257. And the doctrine that a
court of equity will not furnish relief in a case of the defective execu-
tion of a statutory power has no application to a case where a county
commissioner, in the sale of land, complies with all the provisions of
tlie statute under which he acts, and the only error in his deed consists
in a misdescription of the land. And that rule will not prevent an
action in equity to reform the conveyance. Houx v. County of Bates,
01 Mo. 391. An action may be maintained to reform a deed, not only
where there is a mistake in the deed, in the omission or insertion of
words contrary to the intention of the parties, but also where they, un-

KEFOKMATION OF INSTKUMENTS. 439

derstanding the language used in tlie description, believe it to correspond
with the actual boundaries of the land intended to be conveyed, but are
mistaken. Bush v. Hicks, 60 N. T. (15 Sick.) 298 ; McTucher v.
Taggart, 29 Iowa, 4T8.

Where a bill to correct a mistaken description in a testator's deed was
brought by the party to whom the heir of the devisee had, without con-
sideration, quit-claimed the land claimed to have been mistakenly con-
veyed, and who had notice that the heir asserted no claim thereto, and
it was alleged simply, that the testator devised all his real estate to the
devisee, and it appeared that neither the testator, the devisee, nor the heir
ever asserted or claimed any right as against the legal title and estate
conveyed by the testator, it was held that, upon the allegation as to the
will, the will conveyed only the legal estate of the testator, and that the
inheritance would not extend beyond that, at least not until the devisee
or heir had asserted and established a right as against the legal title and
estate conveyed by the testator. St. Johnsbury v. Bagley, 48 Yt. 75.

AKTICLE IL

IN WHAT CASES DECREED.

Section 1. In general. In all cases where, by accident, mistake,
or fraud, or otherwise, a party has an unfair advantage in a proceeding
in a court of law, which must necessarily make that court an instrument
of injustice, and it is, therefore, against conscience that he should use
that advantage, a court of equity will interfere, and restrain him from
using that advantage. Webster v. SMpwith, 26 Miss. 341 ; Hen-
derson V. Diclcey, 35 Mo. 120 ; McElderay v. Shij^ley, 2 Md. 25.
The party suffering from mistake must, however, take prompt steps to
get relief, and if he is guilty of neglect, he cannot complain if he suffers
by reason thereof. Beard v. Hubble, 9 Gill, 420. But where a mistake
is made in a deed in the description of the property conveyed, equity
wiE correct the mistake, when it is clearly proved, and when the rights
of innocent third parties have not intervened, even though more than
twenty years have elapsed since the deed was executed. Lindsay v.
Da/oenport, 18 111. 375. Equity will always grant relief, where both
parties enter into a contract under a mutual mistake in a material fact,
and without which mistake the contract would not have been made.
NabouTs V. Cocke, 24 Miss. 44 ; Durant v. Bacot, 2 Beasl. (N. J.) 201 ;
Shafer v. Davis, 13 111. 395 ; Warburton v. Laniiuvn, 2 Greene (Iowa),
420. It will correct errors of fact standing in the way of justice, but
wiU not carry this so far as to make contracts for the parties. Ca,s(id/y

440 EEFOKMATION OF INSTRUMENTS.

V. Woodhury, 13 Iowa, 113. But a mistake of the law is not
ordinarily a ground of reKef in equity. Mellish v. Robertson^
25 Vt. 603 ; Lyon v. Sanders, 23 Miss. 530 ; Shafer v. Dmis,
13 ni. 395 ; Kenyan v. Welty, 20 Cal. 637. As where one bids at
an execution sale, under the supposition that a void judgment was a
valid one {MeMurray v. St. Louis, etc., Co., 33 Mo. 377) ; or where
there is a pure mistake of the legal effect of language used in a deed,
or other contract, when there is no allegation of fraud, oppression, or
mistake of fact. Gordere v. Downing, 18 111. 492 ; Kent v. Mcmches-
ter, 29 Barb. (N. T.) 595. But equity will relieve against a mistake of
fact, superinduced by mistake of law {Gross v. Leber, 47 Penn. St.
520 ; The State v. Frup, 8 Eng. [13 Ark.] 129) ; or where the mistake
of law is gross and palpable, and such as would warrant the belief that
an undue advantage was taken of the complainant, owing either to his
imbecility of mind, or to the exercise of some improper influence over
him either by the party with whom he dealt, or by some other person
with the knowledge, consent, or procurement of that party. Dill v.
Shahan, 25 Ala. 694.

To sustain a bill to reform a contract it must be shown that the true
intent of the parties differed from the contract as reduced to writing,
and that by some mistake or fraud it was not truly represented in such
writing, and the fact that witnesses present misunderstood the legal
effect of the writing, or that each of the parties gave a peculiar interpre-
tation to it, does not afford a presumption of fraud or mistake, and is
not sufficient to sustain such a bill, particularly where the contract was
deliberately read over by the parties before executing it. Coffing v.
Taylor, 16 111. 457 ; Leavitt v. Palmer, 3 N. Y. (3 Comst.) 19. So,
where a deed is drawn strictly in accordance with the intention of the
parties, and by a mistake in judgment it will not effect the desired object,
the court will not interfere. Durant v. Bacot, 2 Beasl. (N". J.) 201 ;
Arthur V. Arthur, 10 Barb. 9. But where, in a written application
for a policy of insurance, the applicant committed a mistake in describ-
ing the incumbrance upon his property, in consequence of the rep-
resentations of the agent of the company who drew up the application,
and the property insured was afterward destroyed by tire, a court of
equity will relieve. Harris v. Columbiana Co. Mut. Ins. Co., 18 Ohio,
116. A court of ccpiity will not enforce a verbal agreement or under-
standing inconsistent with the terms of a written contract, without
proof of a mistake in the latter. Wfdte v. Port Huron, etc., li. R.
Co., 13 Mich. 356. So, a grantor of land cannot maintain the bill in
equity to reform his deed, by inserting therein a reservation which was
included in tlic oral agreement between the parties, if the omission to

KEFORMATION OF INSTRUMENTS. 441

fnsert it does not appear to have occurred through fraud, accident, or
mistake, but in consequence of his relying upon the promise of the
grantee to carry out the oral agreement. Nor, in such case, can rehef
be granted to the plaintiff, on the ground that the defendant's refusal
to perform his promise is fraudulent. Andrew v. Sjjurr, 8 Allen,
412. But if a deed of land, when the intention is to convey a fee, fail
to do so for want of words of inheritance, the deed may be reformed by a
court of equity, or the parties may of themselves do the same thing.
Wright v. Delafield, 23 Barb. 498. So, where a father, after the death
of his son leaving a widow and minor children, conveyed by deed to
his administrator land which the son had occupied several years under
a parol gift, intending to subject it to the claims of his creditors and his
wife's dower, in the same manner as if the conveyance had been made
before his death, equity will reform the deed, allot the dower, and ap-
portion to the family the statutory provision of $500 worth of the laud.
Johnson V. Grutcher^ 48 Ala. 368. But the power of reforming in-
struments will be exercised by a court of equity with caution, and
only where a proper case is made by the pleadings. Strieker v. Tink-
ham, 35 Ga. 176. And a mere misunderstanding of the facts is not
sufficient ground for asking a reformation of a contract ; fraud, or mis-
take, is indispensable. Story v. Conger, 36 N. Y. (9 Tiff.) 673. A
mistake in the intention of one party to a contract, the other party be-
ing guilty of no fraud, is no ground for reforming an instrument.
Muffner v. McOonnel, 17 111. 212. An action will lie in equity for
the rescission of a contract upon the ground of mistake as to a material
fact by one of the parties.

But to authorize a reformation the mistake must have been mutual.
If the minds of the parties did not meet, and one understood. the mat-
ter as expressed in the agreement, and the other differently, there can
be no reformation in the nature of things, because nothing was agreed
upon in the minds of the parties. Smith v. Mackin, 4 Lans. (N. Y.)
41 ; Willia/mson v. Moria/rty, 19 W. R. 818. "Where rights have
been lost by unavoidable accident, equity will interfere to restore
such rights. Brown v. Elliott, 2 C. E. Green (N. J.), 353. But one party
to a contract cannot be reheved against a mistake in the terms thereof,
which was not caused by the agency of the other party, without
placing the latter in the same situation that he was in before such
contract was made. Kesler v. Zimmerschitte, 1 Texas, 50; De La
Touche, in re, L. J. Ch. 85 ; Coleman v. Coleman, Phill. (N. C.) Eq.
43. The statute of frauds and perjuries does not stand in the way of
the reformation of a written instrument by parol, on the ground of
fraud or mistake, although the effect would be to pass an estate by
Vol. v.— 56

442 REFOEMATION OF INSTRUMENTS.

parol, for the statute must be so construed as to prevent frauds and
not to promote them. Schettiger v. Hopple, 3 Grant (Pa.), 54 ; Ri-
der V. Powell, 4 Abb. (N. T.) App. Dec. 63. A court of equity has
power to sustain a defective mortgage, given to secure an antecedent
debt, so as to make it a prior Hen to subsequent judgments. National
Bank of Norwalk v. Lanier, 7 Hun (N. Y.), 623. So it has power to
and will decree the reformation of a deed, where the grantor, after bar-
o-aining one piece of land, conveyed another to the grantee by a mis-
take of both parties. Burr v. Hutchinson, 61 Me. 514. In regard to
mistakes in wills, the doctrine is that courts of equity have jurisdiction
to correct them only when they are apparent upon the face of the will.
Jackson V. Payne, 2 Mete. (Ky.) 567; Goode v. Goode, 22 Mo.
518. It cannot fill up a blank in a will, or restore a bequest, which,
it is alleged, was originally in the will, but was fi-audulently oblit-
erated by the executor or some other person, before the probate. It
must take the will as it is certified from tlie court of probate. Trexler
V. Miller, 6 Ired. Eq. 248. It cannot correct a will on the ground of
mistake, by striking out the name of a legatee, and inserting that of
another person inadvertently omitted by the drawer or copyist. Yates
V. Cole, 1 Jones' Eq. (E. C.) 110. But it can correct an error in a will,
as to its effect where the testator has mistaken the christian name of a
legatee. Wood v. White, 32 Me. 340

To entitle a party to the decree of a court of equity, reforming a
written instrument, it is incumbent on him to establish the alleged
mistake by proofs so satisfactory in their nature as to preclude all ques-
tion. Shimely v. Welch, 2 Oreg. 288 ; National, etc., Ins. Co. v. Crane,
16 Md. 260 ; Lim,n v. Barhey, 7 Ind. 69 ; Davidson v. Greer, 3 Sneed
(Tenn.), 384. When the proofs are of that character, no reason exists
why the court should not act upon them. Mosby v. Wall, 23 Miss.
81. The evidence offered need not be positive, in the strictest sense
of that term ; but it must be clear, strong and satisfactory. Gre^r
V. Caldnjoell, 14 Ga. 207. Equity will not reform a written instrument,
where the testimony to the alleged mistake is contradictory and con-
fused. Lockhart v. Cameron, 29 Ala. 355. And preponderance of
evidence is not enough ; there must be clear, convincing proof of the
mistake. Potter v. Potter, 27 Ohio St. 84. Where clear proof is
made of fraud or mistake, paro! testimony is competent to reform a
written instrument, however inadmissible in general to chango or con-
trol it. Barnes v. Gregory, 1 Head (Tcnn.), 230 ; Bing v. Ashworth,
3 Clarke (Iowa), 452 ; Fa/rley v. BryaM, 32 Me. 472. But where
a deed is executed in conformity with a previous agreement, and
accepted by the grantee, it sliould require strong and satisfactory evi-

EEFORMATION OF INSTRUMENTS. 443

denee to authorize any reformation or change in its terms. Kuchenhei-
ser V. Bechert, 41 111. 1Y3.

§ 2. For error or mistake. To entitle a party to a contract to relief
on the ground of mistake, the proof must be clear that there was a
mistake by both parties. Nevius v. Ditnlap, 33 N. Y. (6 Tiff.) 676 ;
Cleary v. Bahcook, 41 111. 271. It should be free from suspicion and
entirely satisfactory. Adams v. Rfibertson^ 37 111. 45. The proof must
be full and clear that it does not conform to the oral contract as under-
stood by either party. SciAJjyer v. Hovey, 3 Allen, 331. A mistake
apparent on the face of the deed may be corrected without aid of ex-
trinsic evidence. As in a deed of marriage settlement, the word " here-
inafter " will be construed to mean " hereinbefore." Creighton v.
Pringle, 3 S. C. 77. A mutual mistake of law attributable to the agent
of the party now seeking to take advantage of it is ground for equita-
ble relief. Green v. Morris, etc., M. B. Co., 1 Beasl. (N. J.) 165. So,
too, where the o^vner of land gives a power of attorney to his agent to
sell certain land, and the agent sells the land and conveys it by his own
deed, without any reference to the power of attorney. Subsequently,
however, he writes across the deed a statement that he had intended to
convey the land under the power of attorney, and execute it by virtue
of such authority, etc. The conveyance will be held to be defective,
and the case one in which a court of equity will afford relief. Geddes
V. Moody, 41 Cal. 335. But equity will not reform a lease by insert-
ing the declaration of a use, unless the evidence that such declaration
was omitted is clear and satisfactory. McDonald v. Starkey, 42 111. 442.

Where through mistake the whole of premises are conveyed upon
trusts, when the intention was to convey only one portion on trusts and
the remainder in fee-simple, the deed should be reformed in order to
give effect to the intentions of the parties. Kirk v. Zell, 1 MacArthur,
116. But a court of equity will not reform an instnmaent if there be
an adequate remedy at law. So it will not assume jurisdiction to reform
an attachment bond for a mistake where the party complaining can
have it corrected in the court where the attachment is pending. Craft
V. Diclcsns, 78 111. 131. So, where a suit in ejectment is pending in
which the recovery depends upon the construction of a deed which pre-
sents a case of latent ambigidty in the description susceptible of being
cleared up by extrinsic proof, a resort to equity is unnecessary, for the
explanation can be as readily made in the ejectment suit as in chancery.
Da/rt V. Ba/rhmir, 32 Mich. 267.

Where there is clear proof that a mistake has been made in the de-
scription of land intended to be included in a deed, equity will reform
the deed when it can do so without injury to innocent purchasers with-

444 KEFOKMATION OF INSTRUMENTS.

out notice of the mistake. Mills v. Lockwood, 42 111. 111. This it
will do, if the grantor has received the consideration, though the
deed is but a quit-claim and contains no covenants. Deford v. Mercer^
24 Iowa, 118. But where the grantor applies for the reformation of a
deed as to the amount of j^roperty conveyed it will be refused if it ap-
pear that the plaintiff himself furnished the description of the land inser-
ted in the deed, and there is no clear and conclusive evidence to show that
the agreement and intention were as now claimed by him. Wells v.
Ogden, 30 Wis. 637. A mortgagee may come into equity to have his
mortgage reformed by the correction of a mistake in the description of
the lands conveyed, and to have it foreclosed after the law-day has passed ;
and, when jurisdiction has attached for that purpose, the court will pro-
ceed and settle all questions in litigation between the parties, growing
out of those matters. Alexander v. Rea, 50 Ala. 450. So, where a
mistake has occurred in the description of the premises in a deed
given in consideration of love and affection only, and the grantee, on
the face of such deed, has gone into possession and made improve-
ments, and thereafter mortgaged the premises for a valuable considera-
tion, the mortgagee may maintain a bill for the correction of such mis-
take against the grantor or his heirs, or purchasers from them without
consideration. And the fact that the mistake miofht have been dis-
covered by a careful inspection of the record is immaterial. Curmnings
V. Freer, 26 Mich. 128.

Equity will relieve against the mistake and reform the deed, where
the description of the premises, given in a deed, in consequence of a
mutual mistake of the grantor and grantees as to the location of a
point in a boundary line, embraced more land than was intended to be
conveyed. Bush v. Hichs, 2 N. Y. S. C. (T. & C.) 356; S. C.
affirmed, 60 N. Y. (15 Sick.) 298. But although equity will give
relief, and, upon proper proof, correct a misdescription of land in
a deed, even after it has been perpetuated through resales of subdi-
visions of the land where possession has been given and the pur-
chase-money paid, yet, where a judicial sale intervenes and the error is
carried through all the proceedings into the sheriff's deed, a correction
of the description of a subdivision cannot be ordered at the suit of the
purchaser at the sheriff's sale, or those claiming under him. If the
mistake was in the deed only, perhaps it might be corrected in this
way, but where it has existed in the judgment, the advertisement,
the ap])rai8ement and the sale, an attempt to correct the deed would
give to the purchaser land whi(;h was not ordered by the court to be
sold, nor advertised by the sheriff, nor sold by him, nor purchased by
the pliiintiff. Rogers v. Ahhott, 37 Ind. 138; Rice v. Poynter,lb

EEFOEMATIOIS' OF INSTRUMENTS. 445

Kans. 263. And where a clause is inserted in a deed by mistake or
accident, and the deed has been executed, the parties neglecting to have
the correction made, they are estopped to show that the written instru-
ment is not such as they presented. August v. SeesMnd, 6 Coldw.
(Tenn.) 166. But where a father, intending to convey land to his mar-
ried daughter and her bodily heirs, through mistake conveyed it to her
husband and his heirs, such mistake being clearly established, equity
will reform the deed, after the death of both the grantor and grantee.
Mattingly v. Speak, 4 Bush (Ky.), 316. A pleading which seeks the
construction or reformation of a contract must state the contract in
full, with all its material exhibits. Plmoman v. Shidler, 36 Ind. 484.
But where the object of a suit is to reform a contract, and to set aside
and cancel a sheriffs deed taken by the defendant in violation of the
terms of the agreement, but which conveys whatever interest the plaintiff
had in the property, it is not necessary for the plaintiff to show a title
to the land conveyed to have been in him, to entitle him to the relief
he demands. Monroe v. Skelton, 36 Ind. 302. A court of equity
will reform an instrument which, by reason of a mistake, fails to exe-
cute the intention of the parties, as well upon an equitable defense set
up in an answer, as in a suit brought directly for that purpose. Soak
V. Craighead, 32 Mo. 405.

§ 3. For fraud. When fraud, accident or mistake is made clearly
to appear in a written instrument, it may, by parol evidence, be made
to conform to the ascertained intent of the parties to it. Bartle v.
Yosburg, 3 Grant (Penn.), 277; Hunter v. Bilyeu, 30 111. 228;
ElUnger v. Crowl, 17 Md. 361. If a party innocently misrepresents
a material fact by mistake, upon which another party is induced to
act, it is as conclusive ground for relief in equity as a willful and false
assertion, for, in either case, it operates as a surprise and imposition
on the other party. In such case, the party must be held to his rep-
resentations. Phillifps V. Ilollister, 2 Coldw. (Tenn.) 269 ; May v.
Sivyder, 22 Iowa, 25. Where the property to be conveyed is pur-
posely misdescribed by fraud, the deed is certainly entitled to be
reformed. Dame v. Berber, 28 Wis. 216. This a court of equity
may do on parol evidence of fraud, although the contract be one which
the statute of frauds requires to be in writing. Rider v. Powell, 4
Abb. (N. Y.) App. Dec. 63. But a court of equity will not correct a
misdescription of land in a sheriff's deed, executed by virtue of a sale
on execution, on the ground that the execution defendant knew of
such misdescription in the levying certificate of purchase and did not
inform the complainant, but promised verbally to redeem, the promise

M6 REFOEMATION OF INSTRUMENTS.

being invaKd uuder the statute of frauds. Butcher v. Bttchcmany
IT Iowa, SI.

If, upon a proposal and agreement for a life insurance, a policy be
drawn up by the insurance office, in a form which differs from the
terms of the agreement and varies the rights of the parties assured,
equity will interfere and deal with the case on the footing of the agree-
ment and not on that of the policy. Collett v. Morrison^ 12 Eng. L.
& Eq. 171. Where a mortgagor, by false and fraudulent representa-
tions, induced the mortgagee to believe, when the latter loaned money
and accepted the mortgage as security, that it covered more and other
land and buildings than it did, a court of equity wiU, as against the
mortgagor and voluntary assignees, reform the mortgage and apply it
to and enforce it on the land and buildings fraudulently omitted.
DePeyster v. HasbroucJc, 11 N. Y. (1 Kern.) 582. So, a court of
equity will reform a deed where a vendor of land agreed to insert in a
deed thereof, a covenant that a portion of it contained seven acres,
and if it fell short of that quantity, he would pay for the deficiency at
a certain rate per acre and a deed was drawn containing such a covenant,
though not specifying the rate per acre at which any deficiency was to
be made good, and the vendor subsequently erased such covenant
fraudulently and without the vendee's knowledge, and represented to
the latter that it was executed as originally drawn and thereby in-
duced him to accept under that belief. Metcalf v. Putnam, 9 Allen,
97. In a case in Maine, the defendant, having no legal interest in an
estate, represented to the plaintiffs, who were the only heirs of the
decedent, that some persons had informed him that certain others were
joint heirs with them, while other persons had informed him that they,
the plaintiffs, were the only heirs, that the others claiming to be heirs
had conveyed to him their several interests therein, to enable him to
contest a will by which a portion of the property had been devised to
strangers, he giving them back an agreement to pay them their several
shares of one-twelfth each of the proceeds tliereof, and the plaintiffs
thereupon, being ignorant of the law regulating the descent and dis-
tribution of estates, and consequently being mistaken as to who were
the heirs of said decedent, conveyed their interest in the estate, with-
out any consideration, receiving an agreement to pay them one-twelfth
each of the proceeds thereof. Upon these facts, it was held that, if the
defendant knew that the plaintiffs were the only heirs, and that they
wore ignorant of that fact, he obtained the property from them fraudu-
lently ; if neither of the parties knew who were the legal heirs, no con-
sideration having been paid for the property, the defendant ought nojt,

REFORMATIOjS" of instruments. 447

in good conscience, to retain it, and the plaintiffs were entitled to a
decree for a conveyance. Freeman v. Curtis^ 51 Me, 140.

A woman and her intended husband on the eve of marriage were
induced by her brothers to sign a marriage contract by which her prop-
erty was to be conveyed to trustees in such manner as to deprive her
of the right to dispose of the rents and profits of the property and the
property itself, both during the coverture and afterward, if she sur-
vived, and the remainder was given to her heirs, she, at the time,
being of an age, which rendered her having children very improbable.
It was held that such a contract, unless proved by the clearest testi-
mony to have been fully understood and freely assented to by the
woman, would be reformed by a court of equity so as to give her the
use of the property during coverture and the right to dispose of it by
will, and, if she should survive the husband, to determine the trust.
SanderUn v. liohinson, 6 Jones' Eq. (N. C.) 155.

§ 4. For error of scrivener. If an instrument, by mistake of the
author or draughtsman, does not speak the author's mind, it may be
reformed. Ward v. Camj), 28 Ga. 74 ; Scales v. Ashhrook, 1 Mete.
(Ky.) 358; Bushy v. ZittleJieM, 11 Foster (N. H.), 193; Lavender v.
Zee, 14 Ala. 688. Especially where a deed is drawn by an ignorant
person it may be reformed, as by inserting the name of a trustee, so as
to make it carry out the intent of the maker manifest on the face of it.
Brewton v. Smith, 28 Ga. 442. But the mistake must be a mutual
one. Brainerd v. Arnold, 27 Conn. 617. And where the meaning
of a written instrument, apart from its effect according to the ordinary
rules of construction, is conjectui'al, the court cannot take upon itself
to declare that there is a mistake arising from the ignorance of the
draughtsman. Williams v. Houston, 4 Jones' Eq. (N". C.) 277. A
deed of gift, drawn by the grantor, which, by reason of his ignorance
of the law, does not express his intention, may be reformed in equity.
La/rMns v. Biddle, 21 Ala. 252. And the rule that mere clerical
errors may be corrected by extrinsic documentary evidence will be ap-
plied to irreconcilable dates in an administrator's deed. Moore v. Whi-
gate, 53 Mo. 398. Equity will relieve the parties to a deed from the
consequences of a mistake in an engineer's survey, on wliich the deed
was based, and will so reform the deed as to prevent wrong and suffer-
ing. Winnipisseogee, etc., Co. v. Perley, 46 N. H. 83. So it will,
on full and satisfactory proof, reform a grant of a sea-weed privilege in
a deed of a farm, granting, through the ignorance of the scrivener of
the principles of conveyancing, a greater privilege than the parties to
the original contract designed, against a purchaser of the privilege and
farm from one of them who bought under a like contract, but where

448 EEFORMATION OF INSTRUMENTS.

the purchase was induced, by the fraudulent misrepresentations of the
complainant as to the productiveness and value of the sea-weed privi-
lege really bargained for, and especially if it appear that the mistake
in the grant merely makes the privilege granted equal in productive-
ness and value to the privilege contracted for as it was represented,
the court will not interfere with such a providential adjustment of the
equities, but will dismiss the complainant's bill with costs. Allen
V. Br(non, 6 R. I. 386.

Where two persons have together purchased a triangular lot, receiv-
ing separate deeds, one of which conveyed the north half and the other
the south half of the lot, described by its number on the plat and have
respectively occupied the north and the south portions without any es-
tabhshed division line between them, though one paid two-thirds and the
other only one-third of the price of the whole lot, the one who paid the
largest amount is not entitled, upon a showing of that fact and of a
prior verbal understanding with the other as to the portion each was
to get on the pm*chase, to have his deed corrected in the description
according to such verbal understanding, upon the ground of a mistake
of the scrivener, as against the vendees of the other who have bought
in good faith and without notice, assuming their grantor to be law-
fully entitled to convey the very quantity denoted by the description
in his deed. Dart v. Barbour^ 32 Mich. 267.

A party to a deed or other instrument, who alleges a mistake in
drawing it, must become an actor in seeking to reform it. Until re-
formed, it is the highest evidence of the contract and cannot be con-
tradicted or varied by parol proof. Hogan v. Smith, 16 Ala. 600.

§ 5. Sealed instruments. Courts of equity seem not to make a dis-
tinction between sealed and unsealed instruments in regard to reforming
them for mistake or fraud. The same clear and satisfactory proof of
mutual mistake is required in the one case as in the other, and upon
such proof, though it be by otherwise inadmissible parol evidence, a
sealed instniment will as readily be reformed as one unsealed.

No court of equity should undertake to reform a written instrument
conveying title to property in an essential matter without having be-
fore it all the parties to 1je affected by the proposed reformation.
Wyche V. Chreen, 32 Ga. 341. And after long delay and death of
jxirties interested, the complainant, in a bill to rectify a deed, may be
required to establisli liis case beyond a reasonable doubt. Campbell v.
Foster, 2 Tenn. Ch. 402. An instrument concluding with the words
" I have hereunto set my hand and seal " and signed without a seal, fur-
nishes, on its face, sufficient testimony that the seal was omitted by
mere accident, and such an instrument will be rectified and sustained

KEFORMATION OF INSTRUMENTS. 449

in equity against the heirs of^he signer. Colchester v. CuVoer^ 29 Y t.
11.

A court 01 equity will restrict the operation of a deed to the actual
intent of the parties, by ordering the deed to be reformed, or by
enjoining the party, etc., where the mistake depends, not upon the
legal meaning of the words used, but upon the adjustment of the de-
scription in the deed to the land, involving a mere question of fact.
Wilcox V, Lucas, 121 Mass. 21 ; Broadway v. Buxton, 43 Conn. 282.
And where land conveyed by a deed with covenants of seizin and war-
ranty is described in the deed as bounded on one side by land of an
adjoining owner, and the grantor shows to the grantee, during the
negotiation and before the deed is given, what he states to be the divis-
ional line, wliich proves to be beyond the true line and within the land of
an adjoining proprietor, making the land conveyed less in extent than
represented, the remedy of the grantee is wholly by a proceeding in
equity to correct the deed and not by an action on the covenant in the
deed. The liability of a covenantor must depend upon a fair con-
struction of the deed itself and cannot be enlarged or varied by evidence
aliunde. Broadway v. Buxton, 43 Conn. 282. So, an error in a deed
gi\-en by a former administrator is to be corrected, not by procuring the
appointment of an administrator de bonis non to execute a new deed,
but by a suit in equity and a decree of reformation. Grayson v. Weddle,
63 Mo. 523. Where the deed is of fifteen feet off the east side of a lot,
and it appears that a portion of the grantor's warehouse stood upon the
east fifteen feet of the lot, and also clearly appears that it was the
intention of the vendor to sell and convey, and of the purchaser to
buy, only so much of said lot as lay east of said warehouse, but that
both parties believed that there were fifteen feet between the ware-
house and the east line of the lot, the deed should be reformed. Fuchs
v. Treat, 41 "Wis. 404.

A mortgage conveying only an estate for the life of the mortgagee
will not be reformed to convey a fee, as against the rights of a hona
fide purchaser of the mortgaged premises for valuable consideration,
without evidence of actual notice on the part of the purchaser, more
extensive than the record of the mortgage itself. Wilson v. King, 27
N. J. Eq. 374. The reformation of a deed, absolute on its face, into a
mortgage or simple security, stands on the same footing with that of
the reformation of any other instrument. Chaires v. Brady, 10 Fla.
133.

§ 6. Unsealed instruments. A court of equity has jurifidietion to
reform a policy of insurance or other written contract upon parol evi-
YoL. Y.— 57

450 KEFORMATION OF INSTRUMENTS.

deuce, when the agreement really made by both parties has not been
correctly incorporated into the instrument, through accident or mistake
in the framing of it ; but both the agreement and the mistake must be
made out by the clearest evidence, according to the understanding of
both parties as to what the contract was intended to be ; and it must
appear that the mistake consisted in not drawing up the instrument ac-
cording to the agreement that was made. Tesson v. Atlantic Mut. Ins.
Co., 40 Mo. 33. So, where an application was made to an authorized
agent of an insurance company, for a policy upon a mechanic's lien in-
terest in real estate, and a policy was issued in which the intent of the
assured was described as that of a mortgagee, both parties understand-
ing the description to embrace a mechanic's lien interest, the contract
was reformed so as to make it express the real interest of the parties
after a loss had actually occurred. Longhurst v. Star Ins. Co., 19
Iowa, 364. And where a policy of insurance is issued to a mortgagee
for the amount of the mortgage, and the mortgagee subsequently taking
an additional mortgage, applies for a new policy of insurance covering
both amounts, whereupon a new policy is issued to her as mortgagee
covering both amounts and containing a provision not inserted in the
old policy, providing that the company should only be liable for any
deficiency that might remain after the mortgagee had exhausted the
primary security, which policy, being received by the mortgagee with-
out examination, was renewed several times, until loss by fire occurred,
when the additional clause first was discovered ; it was held that the
insertion of this clause by the insurer without notice to the assured was,
in legal contemplation, a fraud, and that the same should be stricken
therefrom. Hay v. The Star Fire Ins. Co., 13 Hun (N. Y.), 496.
"Where the plaintiff desires a reformation of his policy of insurance by
inserting therein certain property which he claims it was mutually in-
tended specifically to insure, if previous thereto he had brought an
action on the policy to recover the amount of his loss and had failed in
it, the reformation will be denied. The plaintiff's act in bringing the
former action upon the policy as written, and averring that it expressed
the true contract between the parties, constituted an election on his
part, and he cannot afterward allege that it did not express the true
intention of the parties thereto. Steinhach v. Relief Fire Ins. Co.,
VI Ilun (N. Y.), 640. A bill of sale of personal property will be
reformed when by mistake of the draughtsman it included articles
which did not actually belong to the vendor, and which were not in
fact included in the negotiation and agreement of sale between the
parties. Menomonee, etc., Co. v. Langworthy, 18 Wis. 444. And a
statute which requires that a contract for a greater rate of interest than

KEFORMATION OF INSTRUMENTS. 451

ten per cent shall be in writing, does not prevent a court of equity
from correcting mistakes as to the rate of interest in contracts for the
payment of money, although by such correction the rate of interest be
made to exceed ten per cent. Hathaway v. Braxly^ 23 Cal. 121.
Where the aid of a court of equity is invoked to set aside a note and
refund money on account of a mutual mistake of fact, and it appears
that the party complaining had the means of correct information in
his power, but negligently omitted to avail himself of them, he is not
entitled to the relief sought. Oapehart v. Mhoon, 5 Jones' Eq. (N.
C.) 178.

§ 7. Who may demand relief. Although a court of equity may
reform a written contract upon parol evidence of a mistake, yet this
can be done only in an action between the parties to the contract or
their pri^des. Cady v. Potter, 55 Barb. 463 ; Adams v. St&vens
49 Me. 362. Equity will reform written instruments at the in-
stance of either plaintiffs or defendants, on the ground of fraud or
mistake, upon parol evidence, when no statutory provision intervenes.
Schettiger v. Hojyple, 3 Grant (Pa.), 54. A mortgagee who has
sold the note and mortgage, and afterward bought them back again,
has the same rights in a court of equity to have a mistake in the
deed corrected, as he had before he made the transfer, if he in-
dorsed the note at the time of the sale. Kennard v. George, 44 N.
H. 440. A party who signs a contract under a misapprehension as
to its contents is entitled to have it reformed. Schwear v. Haupt, 49
Mo. 225. Where a husband, importuned by his wife, conveyed to her
a lot, etc., but pm-posely omitted the name of the town and she devised
it to her son, a grantee of her son is entitled to have it corrected.
Stewart v. Brand, 23 Iowa, 477. But a court of equity will not re-
form the description in a mortgage deed of the mortgaged premises at
the suit of the purchaser at a sale by the mortgagee. Haley v. Bag-
ley, 37 Mo. 363. And where a party prays relief against the very face
of a written contract, on the ground that such writing does not
truly speak the meaning and intention and the true agreement
designed to be entered into, he must clearly bring himself within the
exception to the general rule which gives the preference to written
over parol evidence. Brantley v. West, 27 Ala. 542. Where a single
word in a contract has been accidentally omitted, but the intention
of the parties is sufficiently apparent to be recognized in any court
there is no sufficient reason for bringing a bill in equity to have the
contract reformed. Atlanta cfc West Point li. R. Co. v. Speer, 32
Ga. 550.

§ 8. Agaiust whom decreed. It is a settled principle that a court

452 KEFOKMATION OF INSTKUMEI^TS.

of equity will not rectify a mistake in a written instrument, by the aid of
parol evidence, except as between the original parties. As against hona
fide purchasers without notice, the instrument must stand as written.
K'llpatrick v. Kilpatrick, 23 Miss. 124. But one purchasing witli
knowledge of the mistake and of the true intent and design of
the instrument stands in no better condition than if he had been an
original party. Adams v. Stevens, 49 Me. 362 ; Preston v. Williams,
SI 111. 176 ; Strang v. Beach, 11 Ohio (N. S.), 283 ; Ruhling v. Jlicl'-
ett, 1 Nev. 360. A mistake in a deed of trust made by inserting the
word west instead of east in the beginning of the description of the
premises conveyed, contrary to the intention of both parties, will be
corrected on a bill in equity filed for that purpose by the grantees, not
only as against the grantors but against the parties to a prior deed of trust
upon the same premises, of which said grantees had no knowledge or
notice, and which was not recorded for over a year subsequent to the
record of their conveyance ; and the latter, as corrected, may be decreed
to be the first incumbrance upon the premises. Fenwick v. Bruff, 1
MacArthur, 107.

§ 9. In what cases denied. A deed cannot be reformed in equity,
where it appears to have been made according to the intention and un-
derstanding of the parties at the time of its execution. Bradford v.
Bradford, 54 N. H. 463 ; Btcrt v. Wilson, 28 Cal. 632 ; Anderson v.
Tijdings, 8 Md. 427 ; Robertson v. Smith, 11 Tex. 211) ; nor where it
appears that there was a mere understanding of one of the parties that
he was dealing in view of a custom {Cassidy v. Begoden, 6 Jones &
Sp. [N. Y.] 180) ; or where the plaintiff could have known the contents
of the instrument when he signed it, and it had not been changed.
Moran v. McLarty, 11 Hun (N. T.), 66. A deed will not be reformed
as to the amount of the property conveyed on the application of the
grantor when it appears that he himself furnished the description of the
land inserted in the deed, and there is no clear and conclusive evidence
to show that the agreement and intention were as now claimed by him.
WdU v. Ogd£7i, 30 Wis. 637 ; Tracey v. Becker, 51 IIow. (N. Y.)
Pr. 69. Equity will not interfere to compel the affixing of a seal to a
voluntary instrument which was invalid for want of a seal {Eaton v.
Eaton, 15 Wis. 250) ; nor will it interfere to correct a mistake made by
tlie clerk in the entry of judgment of a court of law {Cooper v. But-
terfield, 4 Ind. 423) ; or to reform a deed when it appears that the
grantor, when he made it, had no title to the property conveyed.
Benson v, McLeroy, 31 Ga. 536. Equity will not relieve against mis-
takes, as to the numl^er of acres in land conveyed by metes and bounds,
in the absence of fraud. Dalton v. Rust, 22 Tex. 133. It will not

KEFOKMATION OF mSTKUMENTS. 453

refoiin a deed of mortgage, given by husband and wife, of land of the
wife. MouUon v. Hurd, 20 111. 137. After a lapse of a quarter of a
century, it will not interfere to reform a deed, or declare a trust, except
upon the most positive and satisfactory evidence of the intention of the
parties at the time the deed was executed or the trust created. Nicoll
v. Mason, 49 111. 358 ; Dv/rcmt v. Bacot, 2 McCarter (N. J.), 411.
But a grantor's right to relief by reforming a deed describing the land
as of more than the actual width is not barred l)y lapse of time, if he
has remained in possession of the portion included by mistake. Hut-
son V. l<uinas, 31 Iowa, 154.

The equity rule, that a deed will not be reformed at the instance of
mere volunteers, does not apply to a dispute between two volunteers,
claiming under the same deed, when the grantor has no interest in the
controversy. Adair ■ v. McDonald, 42 Ga. 506.

Wliere the defendant had made a contract with a firm generally, to
pay all its debts, and the plaintiffs as creditors of the firm had brought
an action on notes made by the firm, and on the contract, to compel pay-
ment of the notes without making the members of the firm parties,
and the defendant by answer alleged a mistake in the contract, and
sought reformation thereof, reformation was denied, the firm not being
parties to the action. Durham v. Bischof, 47 Ind. 211.

§ 10. Decree rendered. To reform a deed in equity is to make a
decree that it shall be read and construed as it was originally intended
by the parties when an error in fact has been committed. Adams v.
Stevens, 49 Me. 362 ; I^eio York Ice Co. v. North Western, etc., Ins.
Co., 31 Barb. 72 ; S. C, 20 How. 424. A mortgage conveying only an
estate for the life of the mortgagee will not be reformed to convey a fee,
as against the rights of a hona fide purchaser of the mortgaged premises
for valuable consideration, without evidence of actual notice on the part
of the purchaser, more extensive than the record of the mortgage itself.
Wilson v. Kiiuj, 27 JS". J. Eq. 374. A conveyed land in trust to
secure a debt to B, and by mistake a tract intended to be conveyed was
omitted, and the land was subsequently sold, under a decree in fore-
closure of the deed of trust, and purchased by B ; the mistake was car-
ried into the decree and the commissioner's deed, and B took possession
of the entire tract, including the part omitted, and it was held that B
was entitled to have the decree and deeds reformed so as to embrace
the omitted tract, as against a judgment creditor, who had had it sold,
and bought it under an execution on his judgment. Alien v. Mc-
Gomghey, 31 Ark. 252.

454 EEPLEYIN.

CHAPTER CXVII.

EEPLEYIN.
AETICLE I.

OF REPLEVIN IN GENERAL.

Section 1. In general. The action of replevin, at common law, is
an action to try the lawfulness of a seizure or taking of goods by a per-
son, of which the plaintiff in the writ claims to be the lawful owner, or
to which he claims to be entitled to the immediate possession, as
against the person seizing or taking them. In re Wilso7i, 1 Sch. & Lef .
320 n. It differs from detinue and trover, in that it only lies for a
wrongful taking or seizure of the goods, and not for the wrongful with-
holding of them by a person who, in the first instance, came into the
lawful possession thereof. Mennie v. Blake^ 6 El. & Bl. 351 ; Dick-
son V. Mathers^ Hemp. (C. C.) 65 ; Meany v. Head, 1 Mas. (C. C.)
319 ; Galloway v. Bird, 4 Bing. 299.

The taking need not be unlawful ; it is enough that it is taken against
the right of the plaintiff. Mtirphy v. Tindall, Hemp. (C. C.) 10..
But there must be a taking ; if the property comes into the custody or
possession of the defendant under a contract, the remedy is by detinue
or trover. Meany v. Head, 1 Mas. (C. C.) 319 ; Diekson v. Mathers,
Hemp. 65. " The authorities," says Best, C. J., in Galloway v. Bird,
4 Bing. 301, " all lay it down that replevin can only be maintained
where goods are taken, not where they are delivered upon a contract ;
and this is clear, also, from the form of pleading, which always is, that
the defendant ' took and detained ' the goods ; the plea to which allega-
tion is non cepit. No instance can be found in the digests or abridg-
ments, of a replevin having been brought for a delivery under a contract."
See, also, Co. Litt. 145 b; Bacon's Abr., tit. Replevin and Avowry.
The real test by which to determine whether replevin will lie or not is,
whether an action of trespass would lie for the same cause, for the action
will never lie unless trespass could also be maintaino<l therefor. Rog-
ers V. Arnold, 12 Wend. 30 ; Panghorn v. Patridge, 7 Johns. 140.
By this it must not be understood that replevin will lie whenever tres-
pass may be brought, because they are by no means concurrent rcme-

KEPLEYIJS". 455

dies, but that in all cases, in order to uphold the action, the taking of
the goods must be under such circumstances that trespass would lie
therefor {Roberts v. Rcuidel^ 3 Sandf. [X. Y.] 707) ; and, as to the further
qualification that the defendant must, at the time when the action is
brought, be in the actual or constructive possession of the property.
1 Wait's L. & Pr. 875 ; 1 Wait's Pr. 720 ; ClarTc v. Shinner, 20 Johns.
465. The plamtiff must, also, have an immediate right to the posses- /
sion of the property. It is not essential that his title thereto should |
be absolute, but he must have such an interest or right therein, either
by operation of law or under a contract with the actual owner, that he
is entitled to have the possession of the same. Sharp v. Whitten-
hall, 3 Hill, 576 ; Baker v. Eoag, 7 N. Y. (3 Seld.) 555 ; Redman v.
Eendriclcs, 1 Sandf. 32; Wilson v. Royston., 2 Ark. 315; Walpole v.
Smith, 4 Blackf . (Ind.) 304. A lessee of personal property for an unex-
pired term may maintain replevin therefor against the owner from
whom he leased it, if he takes it out of his possession without right,
before the lease expires. Moore v, Moore, 4 Mo. 421. So a person
having a lien upon property for services, or otherwise, may maintain
the action against the owner who takes it out of his possession without
first satisfying the lien, unless the lienor consents thereto {Mohn v,
Stoner, 14 Iowa, 115) ; and generally, in all cases, the action lies in favor
of a person who has a general or special property therein and is enti-
tled to the immediate possession thereof, however his right may accrue
(see § 6, post, 475), but a mere possessory right is not enough. Broad-
water V. Darine, 10 Mo. 277.

Originally the remedy was confined to distresses for rent an-ears, but
it has gradually been extended to all cases where one has taken the
property of another forcibly and against his right {Clark v. Adair,
3 Harr. [Del.] 113 ; Galloway v. Bird, 4 Bing. 299), unless the remedy
has been superseded by statute {Stone v. Wilson, Wright [Ohio], 159 ;
Cummings v. Vorce, 3 Hill, 282) ; provided the defendant has the au-
thority or control of the property when the action is brought {Rob-
erts v. Randel, 3 Sandf. [K. Y.] 707 ; Myers v. Credle, 63 I^. C. 504)
and that it is not taken and held by an officer under a valid legal pro-
cess. Morgan v. Craig, Hard. (Ky.) 108 ; Sanborn v. Leawitt, 43 N.
H. 473 ; Morris v. De Witt, 5 Wend. 71 ; Goodrich v. Fritz, 4 Ark.
525 ; Raiford v. Hyde, 36 Ga. 93; Griffith v. Smith, 22 Wis. 646;
Lathrop v. Cook, 14 Me. 414 ; Gardner v. Campbell, 15 Johns. 401 ;
Melcher v. Lamprey, 20 N. H. 403 ; Gist v. Cole, 2 Nott & M. (S. C.)
456. In many of the States in this country the remedy is largely regu-
lated by statute, and its scope and office has been essentially enlarged
so as to extend to property wrongfully detained, and to property wrong-

456 REPLEVIN.

fully attached or levied upon under legal process, whether the same is,
at the time when the action is brought, in the custody of the officer or
not. But in all cases where the remedy is given by statute, the statutory
provisions must be strictly complied with. Hirsh v. Whitehead^ 65
N'o. Car. 516. The fact, however, that provision is made by statute
for the enlargement of the remedy does not cut off the common-law
remedy in instances not provided loi by the statute, unless the latter
remedy is expressly or impliedly cut off by the statute. Chadwick v.
Miller, 6 Iowa, S-i. The common-law remedy is called replevin in
the cepit, and where the statute enlarges the remedy so as to make it
apply to property wrongfully detained, it is called replevin in the de-
tmet, and, in applying the principles hereinafter stated, it is impor-
tant to keep this distinction in mind, as in all cases when the remedy is
in the detinet, it arises under and is predicated upon a statute. At the
common law the taking must be tortious. If the property came into
the possession of the defendant lawfully, the fact that he unlawfully
detains it creates no ground of action, as replevin in the detinet only
exists by statute {Rector v. Chevalier, 1 Mo. 345 ; Yaiden v. BelZ,

3 Rand. [Ya.] 448 ; Ely v. Ehle, 3 N". Y. [3 Comst.] 506 ; TrapnaU v.
Battier, 6 Ark. 18 ; Bame v. Dame, 43 N. H. 37) ; but the mere fact
that the plaintiff delivered the property to the defendant does not neces-
sarily defeat the remedy, as, if the delivery was induced by fraud, no
title passes, and the taking is treated as tortious. Eggleston v. Mundyi

4 Mich. 295 ; Drummond v. Ho])])er, 4 Harr. (Del. 327 ; Hall v. GU-
TYwre, 40 Me. 578. If property goes into the possession of a person
under a contract, express or implied, or if he comes into its possession
rightfully, replevin in the cej>it does not lie against him therefor, al-
though he wrongfidly detains it. The remedy must be by trover or
assumpsit {Ilich v. Baker, 3 Denio, 79 ; Phelan v. Bonham, 9 Ark.
389) ; but, where by statute replevin in the detinet can be maintained,
the right of recovery depends entirely upon the question whether the
detention is wrongful, irrespective of the question how possession was
obtained. Wills v. Barrister, 36 Yt. 220 ; Clark v. Griffith, 24 N.
Y. (10 Smith) 595. In such cases the action will lie wherever trover
can be maintained {Sawtelle v. Rollins, 23 Me. 196 ; Marshall v.
Bavis, 1 Wend. 109 ; Crocker v. Mcmn, 3 Mo. 472 ; Eveleth v. Blos-
som, 54 Me. 449) ; and not otherwise. Thus, in an action of replevin
for certain sawing and moulding machines, the plaintiffs only proved
that the defendant took the machines on trial, and said that if they
answered his purpose he would keep and pay for them ; that he never
paid for them, and that the plaintiff' demanded payment for them sev-
eral times, but never demanded the machines; it was held that the

REPLEVIN. 457

action would not lie because the detention was not unlawful until the
plaintiff elected to take back the machines and had demanded them.
Witherhy v. Sleeper, 101 Mass. 138. Nor will it lie when the defend-
ant is in the possession of property to which he does not claun any title
or right to retain. Thus, where the defendant was in the possession
of property, which was claimed by the plamtiff, and the plaintiff went
to his house to demand it, and the defendant denied any ownership in,
or control over the property, but told the plaintiff who owned it, and
advised such person not to give it up to the plaintiff, it was held that
replevin would not lie therefor. Johnson v. Garlicky 25 Wis. 705.
Merely refusing to deliver property on demand does not necessarily lay
the foundation for replevin in the detinet, particularly if the defendant
came into the possession lawfully. Hymcmn v. Cook, How. App. Cas.
(IsT. T.) 419. Where replevin m the cepit and in the detinet are per-
mitted, the action must be in the detinet when the original taking was
lawful {Randall v. Cook, 17 Wend. 53) ; but even though the taking
was forcible and unlawful, the force may be waived, and replevin in the
detinet be brought /or the wrongful detention. Indeed, replevin in the
detinet will lie in aU cases where replevin in the cepit lies, and when
permitted, is the safest remedy, and virtually supersedes the remedy in
the cepit. Cummings v. Vorce, 3 Hill, 282 ; Zachrisson v. Ahman, 2
Sandf. 68.

Regulated by statute, as well as the requirements to be observed, in
order to resort to it, and in aU cases, the practitioner will find it neces-
sary to consult and follow the statutory provisions, although, unless
repealed by statute, expressly or by implication, the common-law remedy
remains in force. Generally, these statutes merely extend the opera-
tion of the writ, and make specific provisions as to the practice in pro-
curing and enforcing the remedy. In many of the States, it has been
extended to cases where property is wrongfully detained from a person
who is entitled to its possession, and to property in the custody of a
sheriff or other ofiicer upon an attachment or levy ; lea\dng, however,
the rules of the common law, so far as they extend, in full force. In
New York, the remedy is by claim and delivery for a conversion ; the
statute having extended the remedy to cover goods wrongfully de-
tained from another, and the same enlargement of the remedy will be
found to have been made by statute in most, if not all, the States. It
must be imderstood, therefore, that this chapter treats only of the remedy
as it exists at common law. At the common law, property in the cus-
tody of the law, that is, in the possession of an ofiicer, under a vahd
legal process, cannot be replevied ; but in most of the States, by statute,
the remedy i .given in cases where property is levied upun or attached as
YoL. v.— 5S

458 REPLEVIN.

the property of one person that is owned or claimed by another ; so
that, in this country, the common law and statutory remedies are so
intermingled as to be scarcely distinguishable. The statutes of a given
State should always be consulted in order to ascertain the scope and
extent of the remedy as well as the mode and methods of procedure.

§ 2. Jurisdiction. At common law, the original writ in an action
of replevin issued out of the court of chancery and could be sued out
only at Westminster. To remove this inconvenience of procuring
the writ when required in a distant part of the kingdom, the statute of
Marlbridge was passed, which provided that, if the beasts of any man
were taken and unlawfully holden, the sheriff might, after complaint
made to him therefor, deliver them to him " without let or gainsay-
ing " of him who took the beasts. The original writ was thus dis-
pensed with, and a proceeding upon a complaint made to the sheriff
under the statute was called a "proceeding \>j plaint.''^ In New York,
the practice is quite similar to that under the statute of Marlbridge. In
this country, provision is generally made by statute how, and before
what tribunal the action shall be brought, and the statutory provisions
must be strictly observed. Baker' v. Dubois^ 32 Mich. 92 ; Anderson
V. Eapler, 34 111. 436 ; Darling v. ConUin, 42 Wis. 478.

§ 3. When the action lies. The action lies, at common law, for
personal property when the defendant has wrongfully taken the same
from the plaintiff 's possession and the plaintiff has such a title to or in-
terest therein, that he could maintain an action of trespass against the
defendant therefor. Roherts v. Randal, 3 Sandf . (N. T.) 707 ; Currh-
mings v. Vorce, 3 Hill, 282 ; Panghurn v. Patridge, 7 Johns. 140 ;
Rogers v. Arnold, 12 Wend. 30 ; Sawtelle v. Rollins, 23 Me. 196 ;
Marshall v. Dawis, 1 Wend. 109 ; Allen v. Crary, 10 id. 109 ; Stewart
V. Wills, 6 Barb. 79. It is not confined to cases of illegal distress, but
may be maintained wherever tlie taking is unlawful {Panghorn v.
Patridge, 7 Johns. 149) ; and the defendant is in the possession of the
property. Roherts v. Randel, 3 Sandf. (N. Y.) 707. Thus, it lies
for property taken from the possession of a person upon which he has
a lien for services or otherwise. Baker v. Hoag, 7 N. Y. (3 Seld.)
555. Thus, the defendant agreed that the plaintiff should cut staves
upon his land at a certain price per thousand. The defendant removed
the staves cut by the plaintiff which had been counted and not paid
for, without the knowledge or consent of the plaintiff, and it was held
that replevin wr)uld lie therefor. Molin v. Stoner, 14 Iowa, 115. But
if the lienor voluntarily suffers the property to go into the possession
of the owner, his lien is lost, and, consequently, his right of recovering
it by this form of nftion. But if the property is taken ovt of his pos-

REPLEVIN. 459

session bj a legal process and the purchaser subsequently permits it to
go back into bis possession, he may hold it until his hen thereon is
discharged. Thus, where a purchaser of horses at a sale on execution,
which were subsequent to a lien for keeping, suffered them to go
back into the possession of the lienor and afterward took them away
against the will of the lienor, it was held that the lienor might
maintain replevin against him therefor. Young v. Kirnhall, 23 Penn.
St. 193.

So, too, the action lies against one who has obtained the possession
of the goods of another by fraud, by false and fraudulent pretenses or
representations, because in such cases, by reason of the fraud, no title
to the goods passes, and the original taking is treated as forcible. Thus,
when the possession of a horse was obtained by a fraudulent trick, it
was held that replevin in the cepit would lie therefor. Peak v. Cog-
horn, 50 Ga. 562. See, also, Ayres v. Hewett, 19 Me. 281. So, it has
been held that replevin will lie for a taking under color of a contract
of purchase from a bailee, when he was drunk, whether the plaintiff
induced his intoxication or not, the mere fact of such intoxication be-
ing sufficient to invalidate the contract, so that no title would pass
under the sale, making the contracture/* se fraudulent in law. Drum-
mond V. Hopper, 4 Harr. (Del.) 327. See, also, to the same effect,
Farley v. Lincoln, 51 N". H. 5Y7; S. C, 12 Am. Rep. 182. So, too,
the action lies in favor of the vendor of property which was sold con-
ditionally, after condition broken ; and under such circumstances,
although a note is given for a part of the purchase-money, an exten-
sion of the time of payment, predicated upon a good and valid con-
sideration, does not affect the vendor's right to take and retain the
chattel until paid for ; and it was held in a case where the property
was a mare, that the right extended to her progeny, and that the
vendee could not maintain replevin against the vendor for either, with-
out showing a full compliance with the conditions under which the
purchase was made. Bunker v. JifKenney, 63 Me. 529. Replevin
in the detinet lies for property purchased of the real owner, but
which, being in the possession of a third person having no right
to retain it, he refuses to deliver. Perry v. Stowe, 111 Mass. 60.
So, it lies to recover an undivided share of property — as grain —
susceptible of ready separation, although each particle thereof either
party may claim is not susceptible of identification. Kaufmann v.
Schilling, 58 Mo. 218. But not, if the defendant and the plaintiffs
have a joint interest in the mass, or are tenants in common thereof.
Lacy V. Weaver, 49 Ind. 375 ; Usry v. Rainwater, 40 Ga. 328. So,
it lies for timber wrongfully cut upon a person's premises, without

460 REPLEVY.

auj color of title thereto, although the trespasser has intermingled them
with logs cut from other premises, and the plaintiff is entitled to have
delivered to him such a quantity of logs from the common mass as was
taken from his lands. Steanis v. Rayinond^ 26 Wis. 74 ; Richardson
Y. York^ 14 Me. 216. Thus, it has been held that it is not necessary,
in order to enable a person to maintain an action under such circum-
stances, that he should be able to trace and identify each log taken from
his lands, but that, even where they have been intermingled with other
logs and marked in the same way, so that they cannot be distinguished,
he is entitled to replevy such a number in kind as were taken from his
lands, and particularly is this so, if the defendant refuses to recognize
the rights of the plaintiff. Schulenburg v. Harritnan^ 2 Dill. (C. C.)
398. It has been held that the action may be maintained, even after
the logs have been manufactured into boards, and intermingled with
other boards of the defendant ; but in such cases, the plaintiff must de-
scribe the property as hoards, and not as logs. Wingate v. Stnith, 20
Me. 287. By the civil law, however, replevin does not he under such
circumstances, but the owner of the property must seek his remedy for
a conversion of the goods, and this rule has been adopted in North
Carolina. Potter v. Mardre, 74 N. C. 36. The action may be brought
to try the legality of a distress for rent, provided there is no sum due
for rent ; but if there is any sum due, however small, and the distress
is for a greater sum, or is excessive in regard to the quantity of goods
taken, or is othermse irregular, the remedy must be by an action on the
case. Hare v. Stegall, 60 111. 380. A sheriff or other officer who has
attached property upon inesne process and delivered it to a person who
receipted for it, may, in those States where replevin in the detinet is
allowed, upon the neglect of the receiptor to return the property upon
demand, proceed in replevin or trover therefor. Dezell v. Odell, 3
Hill, 215. When, by statute, replevin lies against an officer for goods
attached or levied upon, the fact that they are receipted for, or are in
the hands of a bailee, does not defeat the action, as they are treated as
being constructively in the possession of the officer {Small v. Ilutchins,
19 Me. 255) ; l>ut the rule is otherwise if the attachment is dissolved
because the officer neglects to take them in execution within the time
prescribed by law, or for any cause. Small v. Ilutchins^ 19 Me. 255 ;
Hall V. Tuttle, 2 Wend. 475 ; lUsley v. Stubhs, 5 Mass. 280 ; Bouldin
V. Alexam,der, 7 T. B. Monr. (Ky.) 424 ; Judd v. Fox, 9 Cow. 259 ;
Thfjmqmm v. Button, 14 Johns. 84. So, it lies against him for property
exem))t from attachment, even though the plaintiff has never moved to
dissolve the attachment, or for a release of the property. Wilson v.
Stripe, 4 Greene (Iowa), 551. So, for property attached by an officer

KEPLEYrN". 461

under a statute that fixes a lien in liis favor thereon under a process, by
leaving a copy in the town clerk's office, as, under such circumstances,
he has the legal custody of the property, and is constructively, if not
actually, possessed thereof. Angell v. Keith, 24 Yt. 371. The action
i/ri the detinet lies to recover a note or other obligation that has been
paid or satisfied by the plaintiff, and which the defendant ought to
deliver up, but refuses to. Savery v. Hays, 20 Iowa, 25. The defend-
ant must, at the time when the action is brought, be in possession of
the property, but the fact that he sold it, or parted with its possession
after the action was brought, does not defeat the remedy. Marston v.
Baldwin, lY Mass. 606 ; Sayward v. Warren, 27 Me. 453. In Cali-
fornia, under the statute, it is held that the action will lie for a quantity
of money described as being in a leather bag, which was delivered to a
person and wrongfully detained by him, even though the money itself
is not, and cannot be particularly described {Skidmore v. Taylor, 29
Cal. 619) ; but in all cases the description must be such that the sheriff
therefrom can seize it. Wliere a person AvrongfuUy obtains the property
of another and sells it, the purchaser acquires no title thereto, and it
may be replevied by the real owner. Thus, when A, by a writ of re-
plevin against B, obtained possession of B's property and sold it to C,
and before the replevin suit was tried, A died, whereby the suit abated,
it was held that A could maintain replevin against C for the property,
as he acquired no title thereto by his purchase. Lockwood v. Perry, 9
Mete. (Mass.) 440 ; Watkins v. White, 4 111. 549 ; Welker v. Wolver-
knehler, 49 Me. 35. The rule is, that a person having the possession of
property belonging to another, which he obtained without color of right,
is treated as having unlawfully taken the same, and is amenable to an
action of replevin in the cepit, therefor. Murjjhy v. Tindall, Humph.
(U. S.) 10. There need not be an actual forcible dispossession. Any
unlawful interference therewith, or exercise of dominion over the prop-
erty by which the owner is damnified, is sufficient to uphold the action.
Haythom v. Rushforth, 19 N. J. Law, 160 ; N'eff v. Thom/pson, 8
Barb. 213.

So, where a person has possession of the property of another under
lease for a time that has not expired, he may maintain replevin there-
for against the owner, if he takes it out of his possession before the
time has expii'ed, without justifiable cause. So, a purchaser at sheriff's
sale, of property to which the judgment debtor had no title, is liable
in replevin therefor although he is not chargeable in trespass. Ward
V. Taylor, 1 Peun. St. 238. Where an agent of a firm sold their
goods and took certain notes and liens payable to them therefor which
he had no authority to transfer, and afterward alleged that he had lost

462 EEPLEVIK

them, and gave Lis own notes to his principals therefor, under a stipu-
lation tliat when they were found they should be credited to him on
the note, and afterward they were found in the possession of a person,
it was held that the principals might recover them in this form of action.
Wilcox V. Turner^ 46 Ga. 218. So, a person who has merely a condi-
tional or contingent interest in property can give no valid title thereto,
and if he sells the same the owner may bring replevin against the pur-
chaser therefor. Thus, where S. furnished the land and the necessary
means to raise a crop to a freedman, under a contract that the crop
was to be the property of S. until his advances were returned, for which
purpose he was to sell the crop, and return any surplus to the freedman,
and the cotton raised was carried to the gin house of S., and ginned,
packed and left for several days, when it was carried away secretly by
the freedman and sold, it was held, that S. could replevy the same
out of the hands of the person who purchased it. Allen v. Smithy 45
Ga. 84. And see Quinn v. Davis, 78 Penn. St. 15. Goods bought
at sheriff's sale may be replevied out of the hands of the purchaser,
as after an officer has parted with his possession of the goods they
cease to be in custodia legis, and the inhibition as to this remedy
ceases to apply. Shearich v. Jluher, 6 Binn. (Penn.) 2 ; Huber v.
Shack, 2 Browne (Penn.), 160 ; Ward v. Taylor, 1 Penn. St. 238. So,
wh ere by statute the action lies against an officer for goods attached or
levied upon by him, it is held that a wife, who purchases personal prop-
erty from her husband hmia fide, and for a valid consideration, is in
equity the owner of such property, and may replevy it out of the hands
of an ofiicer who attaches or levies upon it, upon a debt against her
husband. Going v. Orns, 8 Kan. 85. The action lies to recover cattle
taken damage feasant, when the person impounding them fails to com-
ply with the requirements of the statute {Kimball v. Adams, 3 N.
H. 182 ; Brown v. Smith, 1 id. 36) ; and, generally, where property
has been wrongfully taken from the possession of the owner, replevin
in the cepit lies therefor, and in those States where the wrongful de-
tention of property is made a ground for replevin, replevin in the
detinei lies, whenever property is wrongfully withheld or detained from
the plaintiff, against the person having possession of the same. Sud-
bury V. Sterns, 21 Pick. 148 ; Moore v. Moore, 4 Mo. 421. Replevin
lies against a warehouseman for property in his possession, which he
refuses to deliver, in favor of the warehouse receipt. Burton v. Curyea,
40 111. 320. So, where a person borrows property, as in this case, a
gun, and refuses to return it on demand, replevin in the detimet lies
against him tlierefor, and he will not be permitted to set up title to the
property in himself. Simpson v. Wrenn, 50 111. 222.

EEPLEVI]S\ 463

§ 4. l^Tien it does not lie. An action of replevin, at common law,
will not lie for property that is in the custody of the law, that is, for
property in the hands of an officer upon an execution under a levy
against a third person {^Goodrich v. JFritz, 4 Ark. 525; Lathrop v.
CooJc, 14 Me. 414 ; Sharjy v. Whitenhall, 3 Hill, 576 ; Hall v. Tuttle
2 Wend. 475j ; but the real owner may replevy it out of the hands of
a person who purchases it at a sale under execution {Coomhs v. Garden,
59 Me. Ill) ; and in most, if not in all the States, provision is made for
the replevying of property taken under legal process. Hopkins v.
Drake, 44 Miss. 619. See § 3, ante, 458. But when no such provis-
ion is made by statute, property taken under legal process cannot be
taken out of the hands of an officer by replevin when he holds it under
a vr.lid process {Goodrich v. Fritz, 4 Ark. 525 ; Griffith v. Smith, 22
T\~; . 'IIG ; Perry v. Richardson, 9 Gray, 216 ; Gardner v. Caraphell, 15
Joans. 401 ; Raiford v. Hyde, 36 Ga. 93) ; as for a militia fine {Pott
Y, Oldwine, 7 Watts [Penn.], 173 ; Gist v. Cole, 2 :N'. & M. [S. C] 456);
or under an attachment under mesne process. Freeman v. Hovje, 24
How. (U. S.) 450 ; Smith v. Huntington, 3 ]S". H. 76. Thus, where a
United States marshal, upon a writ issuing out of the United States
court, attached a lot of railroad cars, and they were afterward taken
out of his hands upon a writ of replevin, issuing out of a State court,
it was held that the sheriff had no authority to replevy the same, and
was not protected by his process. Freeman v. Hoioe, 24 How. (U. S.)
450. This rule, however, only applies in the case of a valid process,
and does not apply where the property is seized under an unconstitu-
tional law, as, under such circumstances, the j^roperty cannot be said to
be in the custody of the law. Cooley v. Dams, 34 Iowa, 128. But see
Westenberger v. Wheatmi, 8 Kan. 169. Property attached or levied upon
by a valid process, by the direction of the plaintiff, is treated as being con-
structively in his possession, so that the owner may maintain replevin
against him therefor, although the actual possession is in the officer
{Allen V. Crary, 10 Wend. 349) ; and especially is this the case if the
attaching creditor claims to be the owner of the property attached, and
the suit was brought merely to enforce such claim. In such a case it
has been held that he will not be heard to dispute that an action of
replevin therefor was properly brought. Tripp v. Leland, 42 Yt. 487.
Where, however, property has been irregularly taken by an officer upon
a legal process, it cannot be said to be constructively in the possession
of tne plaintiff therein, and under such circumstances he is not amenable
to an action of replevin. Bogan v. Sfoui, novrgJi, 7 Ohio, Part 2, 133.
When goods are bought at sheriff's sale and deli^rered to the vendee,
they may be replevied out of the hands of the vendee, as, after the

464 REPLEVIN.

officer has parted with his possession thereof, they cease to be in custo-
dia legis. Ward v. Taylor, 1 Penn. St. 238 ; Euber v. Sharch, 2
Browne (Penn.), 160 ; ShearicTc v. Huber, 6 Binn. 2. Replevin will
not lie for property levied upon under an execution, although it really
belonged to a third person, and was in his possession when the levy
was made. The remedy in such cases is by trespass or trover {Carroll
V. Ilusser/, 9 Ired. 89) ; and in New Hampshire, under a statute per-
mitting property attached upon mesne process to be replevied out of
the hands of an officer, it is held that the action does not lie when the
property is taken upon final process. K'dtredgeY, Holt, 55 N. H. 621.
Nor will it lie, even where, by statute, provision is made for replevy-
ing property in the hands of an officer under an attachment or levy, if
the property is in the possession of the officer under a writ of replevin.
Morris v. De Witt, 5 Wend. 71 ; Sanborn v. Leavitt, 43 N. H. 473.
Nor under such circumstances can the property be replevied out of the
hands of a person with whom it was deposited by the officer for safe-
keeping. Thus, where a person replevied property from another and
dehvered it to the defendant to keep for him, and the plaintiff brought
a second replevin suit against the defendant therefor, it was held to be
a cross-replevin, and not maintainable. Beers v. Wuerptd, 24 Ark. 272.
But if property has been replevied by a writ against the agent or
bailee of a person, the owner may replevy it from the plaintiff in
the first suit even during the pendency thereof, if the property has
been delivered to the plaintiff in the first action, as, in such case, the
property ceases to be in the custody of the law. WTiite v. DolliveVy
113 Mass. 400 ; S. C, 18 Am. Rep. 502. So long, however, as the prop-
erty is in the possession of the officer, or his bailee, it is in ctistodia legis,
and cannot be replevied, even though the property is, by statute, exempt
from attachment or levy. Saffell v. Wash, 4 B. Monr. (Ky.) 92; Reynolds
V. Sallee, 2 id. 18. Even where the statute gives the right to replevy
property out of the custody of an officer, the action is not maintainable
unless the plaintiff complies with all the statutory requirements. Finch
v. Ilollinger, 43 Iowa, 598. Nor does it lie for spirituous liquors seized
upon a warrant issuing in pursuance of a statute, authorizing its seizure
and sale or destruction in certain cases. Allen v. Stajyles, 6 Gray, 491.
But the mere fact that property is kept contrary to law, and is liable
to seizure and destruction under certain legal proceedings, does not
deprive it of the character of property, or prevent the owner from
maintaining replevin therefor, against a person who unlawfully takes it
out of his possession. Thus, where a person keeps intoxicating liquors
contrary to law, he may maintain replevin therefor against a person
who takes them f»iit of his possession under an attachment against a

EEPLEVIN. 465

third person. Monty v. Arneson^ 25 Iowa, 383, It does not lie for
property levied upon for taxes, altliough seized upon a warrant against
one not the owner of the property. Treat v. Stajjlen, 1 Holmes (C. C),
1 ; Yocht V. Heed, 70 IlL 491. Nor will it lie in favor of one co-tenant
against another for property owned in common, where the effect is to
deprive one whose title to an undivided part of the property is not dis-
puted, of his right of possession {Kindy v. Green, 32 Mich. 310 ;
Us7'y V. Hainwater, 40 Ga. 328) ; the rule being that replevin will not
lie, when the defendant has any, even the slightest legal right to the
possession of the property sought to be replevied. Thus, the majority
of a fire company owning certain property voted to disband, and
appointed a committee to remove the property. A minority of the
company remained, and filled up the company with other persons, and
united with the new members in an action of replevin against the com-
mittee for the property held by them, and it was held that the action
would not lie. Taylor v. True, 27 N. H. 220. But it seems that it
may be replevied out of the hands of a person purchasing the property.
Thus, in a Massachusetts case, at a regular meeting of an engine com-
pany, it was voted to disband and sell the furniture used by the com-
pany, supplied by voluntary contribution of the inhabitants of the town,
and the same was accordingly sold. The members remaining, after those
who passed the vote were removed by the engineers, rej)levied the
property, and it was held that the action would lie. Perry v. Stowe^
111 Mass. 60. In a Georgia case, two persons raised a crop together,
and the corn raised was gathered and separated into two equal parts,
and placed in different cribs, and each of the parties had a key to a
distinct crib, with leave to feed their stock from it, and it was held that
this was not such a division as put each in possession of his own right,
and that, so long as any thing remained to be done, before title of
either to a specific portion of the grain, they were tenants in common,
and neither could maintain replevin against the other for his portion
thereof. TJsry v. Rainwater, 40 Ga. 328. Replevin in the cepit does
not lie against a person who came into the possession of the property
rightfully, even though he refuses to give it up on demand. The remedy
in such a case, where the statute does not permit replevin in the detinety
is in trover or detinue. Meany v. Head, 1 Mas. (C. C.) 319. Thus,
where one joint owner of property pledged it to a person who believed
him to be the sole owner, the pledge was held to be effectual to the ex-
tent of the pledgor's rights, and that the other owner could not maintain
replevin in the ce;pit against the pledgee therefor, nor, under such cir-
cumstances, would replevin in the detinet lie, because the pledgee stands
upon the rights of the pledgor, and is entitled to all the advantages
Vol. Y.— 59

466 REPLEVIN.

respecting tfie property to which the pledgor is entitled. Frans v.
Young, 2-1 Iowa, 375. Where one co-tenant sells or conveys the property
the other may have his remedy in damages, or he may hold his title
with the purchaser, but he cannot compel the delivery of the whole
property to him, because his co-tenant had, and could confer an equal
right. Bavis v. Lottich, 46 N. Y. (1 Sick.) 393 ; Chambers v. Runt, 18
N. J. Law, 339. But a mere stranger cannot hold possession against
him without in some way connecting himself with the other tenant.
Russell V. Allen, 13 IS". Y. (3 Kern.) 173 ; Hart v. Fitzgerald, '2,'M.?l&^.
509 ; Rogers v. Arnold, 12 Wend. 30. But, as against a person who
holds under the other tenant, or who is in any sense a tenant in common
with him, he cannot maintain the action. Thus, A and B being the own-
ers of premises upon which there was a saw-mill, made a contract to sell
the same to C. By the contract — which was executed by the vendors
only — C was to acquire his interest, and was' not to remove or take
away the machinery or property until the purchase-price was paid. C
afterward assigned the contract to D and two others. The plaintiffs
and C thereupon conveyed to E an undivided fourth of the property.
E, with the knowledge and consent of D, sold the machinery and en-
gine to the defendant F, and they were removed, and were about to be
shipped to Michigan, when an action for the possession of the goods
was brought. The court held that, by the conveyance to E of an un-
di\aded fourth of the property, he took the same as a tenant in common
freed from the conditions imposed upon C in the contract, and that
replevin would not lie therefor. Dawis v. Lattin, 46 N. Y. (1 Sick.)
393.

The action does not lie for crops raised on lands by persons claiming
adversely to the plaintiff {Pennyhecker v. McDougal, 46 Cal. 661),
as, at common law, the action cannot be used as an adversary remedy.
Sprague v. Clarh, 41 Yt. 6 ; Eddy v. Davis, 35 id. 247 ; Glover v.
Chase, 27 id. 533. Thus, it has been held, that it will not lie for slate
taken out of the lands of the plaintiff by one in the adverse possession
thereof. Cromelien v. Brink, 29 Penn. St. 522; Brown v. Caldwell,
10 S. & R. 114 ; Powell v. Smith, 2 Watts, 126. But it has been held
that it may be maintained when the question of title is incidentally
raised, if the action is not brought to try the title, as for iron ore taken
out of the plaintiff's land. Green v. Ashland Iron Co., 62 Penn. St.
97. So, for trees cut by a trespasser even though converted into lum-
ber {Snyder v. VaMx, 2 Rawle, 423 ; Young v. Herdic, 55 Penn. St.
172) ; or by a vendee in possession, who has not paid the purchase-
money, for timber cut by him after condition broken. Coamali v.
Stanley, 3 Clark ('Penn.\ 3H9. In an action of replevin ibr grain cut

KEPLEYIN. 467

from lands in the actual adverse possession of another, it is no defense
that the defendant has a better title to the land than the plaintiff, and
he cannot justify by showing such fact, and the same rule applies in the
case of other crops, or of timber, or any thing connected ^rith the land.
Lehman v. Kellerman^ 65 Peun. St. 489 ; Elliott \. Powell, 10 "Watts,
453 ; Spragice v. Clark, 41 Yt. 6. But in California it has been
held that an adverse possession, without any color of title, will not
defeat the action for timber, or other property severed from the land
and reduced to personalty {Kimball v. Lohmas, 31 Cal. 154) ; and in
Georgia, it is held that a person deprived of his property by halere
facias 2>ossessionem may be restored thereto by possessory warrant.
Slayton v. JHussell, 30 Ga. 127. The action does not lie for fixtures,
or any thing that is connected with and forms a part of the realty.
Thus, where the owner of a lot sold it by a parol contract, on a credit
of one year, and the purchaser erected a frame house thereon, placed
upon pillars, as a residence, and before the expiration of the year sold
the house to a person who removed it to another lot and placed it
upon brick pillars sunk in the earth, and built an addition thereto, it
was held that the house thereby became realty, and that replevin would
not lie therefor. Salter v. Sample, 71 HI. 430 ; Roberts v. Dauphin De-
posits Bank, 19 Penn. St. 71. But if a person severs them from the
freehold they are personalty so long as the severance continues. Har-
lan V. Harlan, 15 Penn. St. 507. But if they are severed by a tres-
passer and afterward annexed to his o^vn lands the action does not lie.
Thus, where the defendant took rails out of the plaintiff's fence and
used them in building a fence upon his own land, it was held that they
could not be replevied. Ricketts v. Don^el, 55 Ind. 470. But replevin
lies for a dwelling-house or other building placed upon blocks, and not
annexed to the freehold, upon lands to which the plaintiff claimed
title, but from which he has been evicted by the judgment of a court,
although another person afterward being in possession, affixed it to the
freehold. Mills v. Redick, 1 Keb. 438. So, although a building has
been annexed to the freehold, yet, if it is severed therefrom, it becomes
personalty and may be replevied the same as other personal property.
Northmip V. Trask, 39 Wis. 515 ; Huehschman v. Mc Henry, 29
Wis. 655. So held, where a building was severed from the freehold
and removed to another lot. And see Township of Carioin v. Moore-
head, 43 Iowa, 466. But, in such a case, if the person removing it
holds the building under a sale from one having an equitable title
thereto, replevin will not lie. The remedy is in case for waste {Fair-
hank V. Oudioorth, 33 Wis. 358) ; nor can an action be maintained
against the owner of the soil who merely permitted it to be attached

468 KEPLEVIN.

to his soil, but has no possession of the building, real or constructive.
Northrup r. Tra^k, 39 Wis. 515. Ungathered crops, whether severed
from the freehold or not, cannot be replevied. In all cases, in order to
uphold the action, the property must be susceptible of delivery. Kauf-
mann v. Schilling, 58 Mo. 218 ; Jones \. Dodge, 61 Mo. 368. Thus,
where replevin Avas brought for four hundred and fifty bushels of corn
in a field, based upon a sale, made by the tenant who raised the crop,
to the plaintiff, and it appeared that it was, at the time when the action
was brought, standing in the shock in the field, unhusked, it was held
that the action would not lie. "To sustain the action," said Kapton,
J., " the property must be susceptible of seizure by the officer and of
delivery to the plaintiff." Id. But if the action had been for com
in the shock, would it not have been sustained ? Wliere goods of the
same nature, as wheat, oats, corn or other grain or property, are so inter-
mingled that the particular grain cannot be distinguished, and a division
of equal nature can be made so as to enable the officer to give the plain-
tiff his share, the action will lie. Kaufmann^. Schilling, 58 Mo. 218.
While, as has previously been stated, replevin will lie for fixtures after
they have been severed from the freehold {Gresson v. Stout, 17
Johns. 116), yet, this is not the case if the person severing dis-
seized the plaintiff". Thus, where an owner, who had been disseized by
the defendant, brought replevin for crops cut from the land, and con-
verted by him, it was held that his only remedy was in trespass. De-
mott V. Hagerman, 8 Cow. 220. But, if a bailee or any person is in
possession under the plaintiff, his possession will be treated as the pos-
session of the plaintiff, and will not operate as a bar to the action. Weff
V. Thorrvpson, 8 Barb. 213. Replevin in the detinet cannot be main-
tained against one who has either a legal or equitable right to the posses-
sion. Thus, where an officer, having a writ in his hands for service,
attached property in trcmsitu by rail, and paid the freight charges
thereon to the carrier, it was held that he was thereby subrogated to
the rights of the carrier, and that replevin could not be maintained
against him until such charges were paid or tendered. Rucker v. Don-
ovan, 13 Kan. 256 ; S. C, 19 Am. Rep. 84. The mortgagor of personal
. property, under a chattel mortgage containing a condition that he may
take possession of the property after condition broken, may maintain
replevin in the detinet against the mortgagor therefor. Broohover v.
Efiterly, 12 Kan. 149. But if a mortgagee take possession under an in-
valid mortgage he is liable to the mortgagor, either in replevin or trover.
McCartney v. Wilson, 17 Kan. 294. When an action is brought to
recover live stock, as sheep, the plaintiff, if entitled to recover at all, is en-
titled to have all the increase, as wool, lambs, etc. Buckley v. Buckley,

KEPLEYIN. 469

12 Nev, 423, But if any of the property cannot be delivered on the
writ he is entitled to recover the value and legal damages. Id. ; Bur-
rage V. Melson^ 48 Miss. 244. Replevin does not lie for property seized
to pay a militia fine {Pott v. Oldwine, 7 Watts, 173) ; or a city water
tax {Stiles v. Griffith, 3 Yeates, 82) ; or for animals taken dainage
feasant and posted under a statute {Phelan v. Bonham, 9 Ark. 389) ;
or property taken under execution {Raiford v. Hyde, 36 Ga. 93 ;
Spring v. Bourland, 11 Ark. 658 ; Griffith v. Smith, 22 Wis. 646 ;
Perry v. Richardson, 9 Grray, 216) ; or property held adversely to the
plaintiff {Dillon v. Wright, 7 J. J. Marsh. 10) ; or an apprentice {Mor-
ris V. Cannon, 1 Harr. [Del.] 220) ; to try the right of property {Tag-
gart v. Hart, Brayt. [Vt.] 215) ; for property received by a bailee and
destroyed by his negligence {Burr v. Daugherty, 21 Ark. 559) ; and
where the goods came into the defendant's possession lawfully, reple^an
cannot be maintained because of their mere detention. Wood-
ward V. Grand Trunk R. R. Co., 46 N. H. 524. But, when goods
come into the hands of a carrier, in those States where replevin in the
detinet lies by statute, replevin lies against him if he refuses to deliver
them upon payment of the charges ; and, where he bases his refusal to
deliver on grounds that render a tender of the charges useless, the
action lies even though the charges are not tendered to him. Gilles-
pie V. Goddard, 1 Pittsb. (Penn.) 306.

In Georgia, where a possessory warrant is substituted for replevin,
it is held that the title to property cannot be tried thereunder. Thus,
where A gave his mule to B in exchange for another, which B had
stolen, and A sought by a possessory warrant to regain possession of his
mule from C, an innocent purchaser to whom B had sold it, for value,
it was held that the action would not lie. Jachson v. Sparks, 36
Ga. 445. So, it has been held that it will not lie to recover goods upon
which the defendant has a lien, until such lien is discharged^ Thus,
where a cotton broker received cotton from the plaintiff on storage,
made advances upon it, and sold it contrary to the orders of the owner,
it was held that the plaintiif could not, upon a demand, without a tender
of the amount advanced, obtain a possessory warrant therefor. Ty^is
Y. Rust, 34 Ga. 382. Where property is delivered by an agent to a
vendee, contrary to the orders of his principal, replevin will not lie
in favor of the principal against the vendee. But, if the property
was delivered conditionally, and the principal afterward, even without
the knowledge or consent of the vendee, obtains possession of the prop-
erty, after the time for the performance of the condition has passed,
the vendee cannot maintain replevin against him. Thus, in a
replevin suit for a horse, it appeared that the plaintiff obtained the horse

470 KEPLEYIN.

from the defendant's agent, for the care of the horse, who had been
instructed not to deliver it until he was paid for it, but that the agent
permitted the plaintiff to take the horse to try until a certain day, when
he was to be paid for or returned. The defendant obtained possession
of the horse, after the appointed day had passed, without payment,
without the plaintiff's knowledge, and it was held that the action would
not lie. Jefferson v. Chase, 1 Houst. (Del.) 219. "While a person who
gives instructions to an officer to take or to hold certain property is
treated as being constructively in possession of the property, yet, if the
officer deals with the property unlawfully, so as to become a trespasser,
the constructive possession is thereby overthrown, and • replevin does
not lie against him for the property. Thus, where a field driver took
up a horse going at large in the highway without a keeper, and drove
him, without unnecessary delay, to the pound-keeper's house, and there
left him in the barn, directing the pound-keeper's wife to tell her hus-
band upon his return to put the horse in the pound, which he did, but
the next day he took the horse out of the pound and put him into his
barn, without the field-driver's knowledge or consent, it was held
that replevin would not lie against the field-driver for the horse, under
these circumstances {Byron v. Crippen, 4 Gray, 312) ; and generally it
may be said that replevin will not lie where the defendant is not in the
actual or constructive possession of the property ; nor, if he came into
the possession thereof lawfully, and has any legal or equitable claim upon
the same. See Rmnsdell v. Buswell, 54 Me. 546 ; Potter v. Mardre,
74 No. Car. 36.

A building erected upon the land of another with the consent of the
land-owner, with the builder's own means and for his own use, as dis-
connected from the use of the land, will be treated between the parties
as personal property. And an action of replevin will lie, at the instance
of the owner, for the recovery of the possession of such a building
from the land-owner. District Township of Corwin v. Mooreheadj
43 Iowa, 466.

But it is held that replevin will not lie for a coffin and its con-
tents, when those contents are a corpse. Guthrie v. Weamer, 1 Mo.
App. 136. When a coffin, with the consent of all persons having
any pecuniary interest in it, has been deposited in the earth for the
purpose of interment, with a corpse inclosed within it, it is no longer
an article of merchandise. Id. And see WynTcoop v. Wynkoop, 42
Penn. St. 293.

Where property is sold conditionally, and only a part of the pur-
chase-money is paid, the vendor cannot maintain an action of replevin
for the property because of non-payment as agreed, if the refusal to

KEPLEYIN. 471

pay is predicated upon the ground that the property is not what it was
warranted to be, unless the vendor first offers to refund the money
paid. Thus, the defendant purchased a sewing-machine of the plain-
tiffs, at a certain price, upon which he paid twenty dollars, and was
to pay the balance in installments, and the plaintiffs were to furnish a
machine with a cover, which they did not do. Several months after the
sale, the plaintiffs called for the pay, which the defendant refused to
give, unless they furnished a machine with a cover, telhng the plaintiffs
that if they did not furnish a machine with a cover, they could refund
the twenty dollars and take the machine away. The plaintiff declined
to refund the money or furnish a machine with a cover, and brought
replevin for the machine. The court held that the action would not lie
until they had refunded or offered to refund the money paid on the
machine. Hamilton v. Singer Sewing Macliine Co., 54 111. 370.
, § 5. What title or possession will support the action. In order
to support an action of replevin it is not necessary that the plaintiff
should be vested with an absolute title to the property. It is sufficient
if he has a general or special property therein, . and is entitled to the
immediate possession thereof {Kirby v. Miller, 4 Coldw. [Tenn.] 3 ;
Frost V. Mott, 34 N. Y. [7 Tiff.] 253 ; Gillett v. Treganza, 6 Wis.
343 ; Wilson, v. Royston, 2 Ark. 315 : Walpole v. Smith, 4 Blackf.
(Ind.)304; Mead v. Xilday, ^Wsitts [Penn.], 110; Coxy. Morrow,
14 Ark. 603 ; Halliday v. Lewis, 15 Mo. 403) ; and a person who has
no title to, but is entitled to the immediate possession of property, may
maintain the action. Thus, where a firm engaged in sawing lumber con-
tracted with the plaintiff to receive all pine saw logs belonging to them
and manufacture them into lumber, ship it, receive payment for it, pay
a certain percentage to the plaintiff thereon, and keep the balance for
their services, and the contract provided that the logs should be the
plaintiff's at all times until he received the percentage thereon as agreed,
and the logs were attached as the property of the firm, it was held that,
under the statute, the plaintiff might maintain replevin against the officer
therefor, because, as against the officer, he was entitled to their immediate
possession. Bassett v. Armstrong, 6 Mich. 397. In all cases, as against a
naked trespasser, or wrong-doer, a paramount right of property is not
necessary, but a naked possession, or right of possession, coupled with the
'beneficial interest, is sufficient. Freshwater v. Nichols, 7 Jones' (N. C.)
L. 251 ; Williams v. West, 2 Ohio St. 82 ; Bostick v. Brittain, 25 Ark.
482. Thus, a person in the rightful possession of property as bailee,
may maintain the action. Hopper v. Miller, 76 N. C. 402 ; Simjysoa v.
Wrenn, 50 111. 222. So, one who has a lien thereon for services, advances,
charges, etc. {Allen v. Smith, 45 Ga. 84) ; or one who holds it under

472 KEPLEVIK

a contract for a term from the real owner. Moore v. Moore, 4 Mo. 421.
So, a person who holds a carrier's receipt for goods, not negotiable,
which has been delivered to him by the owner, with intent to transfer
the property in the goods, has such a property therein that he may
maintain replevin therefor against any person who takes them out of
his possession unlawfully. Mears v. Wajples, 4 Houst. (Del.) 62 ; First
National Barik of Cairo v. Crocker, 111 Mass. 163 ; National Bank
of Green Bay v. Dearborn, 115 Miss. 219 ; S. C, 15 Am. Kep. 92. So,
the general agent of a whaling vessel lying at a port where the usage
authorizes such agent to take possession of and distribute or sell the ship's
stores remaining at the end of a voyage, may maintain replevin against
the master for such stores, notwithstanding both parties with others are
joint owners of the vessel and her stores. Rich v. Ryder, 105 Mass. 306.
Where one has purchased a chattel from another who tortiously obtained
it, the real owner may replevy it out of the possession of the purchaser,
although the seller may be pecuniarily responsible, and the owner made
no effort to hold him to accountability, Welker v. Wolverkuehler, 49
Mo. 35. In Georgia it is held that, in order to sustain proceedings by
possessory warrant, it must appear that the property was in the peace-
able and legally acquired possession of the party complaining, and that
it was taken, enticed or carried away either by fraud, violence, seduction
or other means, from the possession of the party, or that it disappeared
without his consent, and has been received or taken possession of by
the party complained against under some pretended claim and with-
out lawful warrant or authority and, consequently, that it does not lie
to recover property from one who purchased it at a regular sale held
by an officer acting under warrant of legal authority, as an assignee in
bankruptcy, a sheriff, etc., but the party's remedy in such case is by an
• action of trespass or trover. Bryan v. Whitsett, 39 Ga. 715.

A trustee may maintain replevin for trust property attached as his
own, upon a debt against himself, in those States where by statute
property may be replevied out of the custody of an officer. Jackson v.
Ilvhhard, 36 Conn. 10. But, a person seeking to replevy timber or
other property severed from the freehold, must show himself the holder
of the real title thereto, and a mere colorable title is not enough. Hun-
(jerford v. Bedford, 29 Wis. 345 ; Johnson v. Elwood, 53 N. Y. (8
Sick.) 431. It may be stated as a general rule, that a person in the
sole and peaceable possession of personal property not as an intruder,
trespasser or wrong-doer, but as owner, either of the whole, or who
has some special property therein, has a valid title as against a mere
etranger, and can maintain replevin against the latter for taking them
irom him, and the action cannot be defeated by the defendant showing

KEPLEVIX. , 473

an outstanding title in some third person ( Van Baalen v, Decm^ 27
Midi. 104) ; nor in himself, miless he also establishes a right to the
immediate possession of the goods existing at the time when the
action was brought. Lehmcm v. Kellerma/n, 65 Penn, St. 489.

But, while the action is a possessory action, and in the cases last
alluded to one in the undisputed possession of property cannot be
required, as against a mere intruder, to show title in himself, yet, where
the plaintiff undertakes to prove title, rather than jpossession^ and sets
out by proving title in a third person, and attempts to deduce it by pur-
chase from him, and the evidence as to possession is merely incidental
to the question of title, his action will fail unless he shows a completed
sale, or so connects himself with the title of such third person as to
show that he has a special property in the property in question, which
entitled him to its immediate possession when the action was brought.
Hatch V. Fowler^ 28 Mich. 205 ; Spencer v. Roberts^ 42 Conn. 75.
Consequently, if the sale was never completed, or if it was procured
by fraud, the real owner may maintain replevin therefor, or may upon
that ground defend against an action of replevin brought against
him for the property. Thus, in a replevin suit the plaintiff showed
that the defendant had agreed to give the property replevied (a horse)
in exchange for a patent right, and that, after conveying the patent
right to the defendant he took the horse from the pasture where it was ;
and that the defendant afterward retook it. It was held that the de-
fendant might show that the exchange was procured by false and fraud-
ulent representations by the plaintiff and that the conveyance of the
patent had been surrendered to him, even though only for the pur-
pose of having a new conveyance made and that this constituted a
good defense to the action. Butler v. Reynolds, 3 T. & C, (N. Y.
S. C.) 242. A mortgagee of personal property having the right to
take the property into his possession under the mortgage whenever he
deems the debt insecure has an immediate right to the possession of
the property, irrespective of the question whether the debt is in fact
insecure or not, and may maintain replevin therefor against the mortga-
gor, or any person in whose possession it may be . Frisbee v. Lang-
worthy, 11 Wis. 375. In Connecticut the remedy by replevin is given by
statute, and it exists only in favor of the owner who, in order to upliold
the action, must make out a title to the property, and a person merely
having a hen upon goods cannot maintain the action. Brown v. Chitk-
opee Falls Co., 16 Conn. 87; Tomlinson v. Collins, 20 id. 375;
Bowen v. Rutchitis, IS id. 551. "One object," says Waite,J., ."if
allowing a person to replevy his goods is, that he may be restored to tl -^
nse and enjopncnt of them. But a person who has merely a lien upou
Vol. Y.— 60

474 KEPLEYm.

them does not need them for any such purpose. His claim is a debt
against the owner, and all he is entitled to, is satisfaction for his debt.
This he can obtain without the aid of a writ of replevin." Brown v.
Chickopee Falls Co.^ 16 Conn. 87. But at common law, as we have
seen, the action lies in favor of either a general or special owner, coupled
with an interest, who at the time when the action was brought — in the
case of replevin in the detinet — was entitled to their immediate posses-
sion ; and, in the case of replevin in the cepit, who, at the time when the
property was taken, and of the bringing of the action, v/as entitled to its
immediate possession. Currier v. Ford, 26 111. 489.

An ofiBcer attaching or levying upon property has such an interest
therein as will uphold an action of replevin [Dunhin v. McKee, 23
Ind. 447 ; Martin v. Watson, 8 "Wis. 315 ; Polite v. Jefferson, 5 Harr.
[Del.] 388) ; but not after the execution and levy has been set aside.
Walpols V. Smith, 4 Blackf. (Ind.) 304. But a receiptor to an officer
has not such an interest in the property as will uphold the action.
Warren v. Leland, 9 Mass. 265 ; Perley v. Foster, id. 112 ; Sirrvpson v.
McFarland, 18 Pick. 427. A person having the real title, who has
sold it conditionally {Meldrum v. Snow, 9 Pick. 441 ; IIolmarTc v. Mol-
lin, 5 Coldw. 482) ; the person to whom property is to be delivered by
the terms of a bill of lading {Powell v. Bradlee, 9 G. & J. [Md.] 220) ;
a person who has a lien on property for advances ( Cv/rrier v. Ford, 26
111. 489 ; Wood v. Orser, 25 N. Y. 348 ; McCurdy v. Broimi, 1 Duer,
101) ; a person who has acquired title to property by adverse possession
{Hicks V. Fluit, 21 Ark. 463), all have such an interest as will uphold
replevin therefor against a person who wrongfully takes or withholds
the property. As against a wrong-doer, prior possession alone is suffi-
cient to enable the plaintiff to maintain the action, if the right of the
plaintiff is better than that of the defendant, whatever it may be with
regard to the rest of the world. Possession is sufficient as against every
one who is neitlier the true owner, nor lawfully possessed. Thus, where
a married woman was in the possession of property through her agent,
and the proof showed that she claimed the same, and tended also to show
that she purchased it with her separate means, and it was seized by the
sheriff as the property of her husband, under an execution against him,
and there was no plea filed justifying under the writ, the only pleas
being non cepit, non detinet and j^roperty in the husband, it was held
that the plaintiff was entitled to recover, and that the defendant, under
the pleadings, was not in a position to question the hona fide character
of the plaintiff's possession and ownership, in respect to her husband's
creditors. Vcm Namiee v. Bradley, 69 111. 299. So, where a person
consigns goods to another, and draws upon liim for advances, and sends

REPLEVIN. 475

the shipping receipt as collateral, the receipt vests in the consignee such
a property in the goods as will enable him to maintain replevin against
an officer who afterward attaches them as the property of the vendor.
{Peters v. Elliott, 78 111. 321) ; and tliis is so, whether the draft was
paid before the levy was made or not, if the plaintiff was at that time
in possession of the shipping receipt and draft, and the payment was
subsequently made in good faith, without notice of the attachment or
levy. Id. Wliere personal property has been leased to the plaintiff, he
may maintain replevin therefor, against the owner or any other person
who wrongfully takes it out of liis possession. Hunt v. Strew, 33
Mich. 85. And see Simjyson v. Wrenn, 50 111. 222.

§ 6. What title or possession is not sufficient. Mere naked pos-
session without color of right, or without any special property or inter-
est in the jjroperty, lawfully acquired, that does not give the person a
legal or equitable right to retain the possession as against the defendant,
will not uphold an action of replevin. Thus, where property had been
stolen, it was held that neither the trespasser nor his vendee could
maintain replevin for it {ParJcham v. Riley, 4 Coldw. [Tenn.] 5) ; nor
can a purchaser of property, that has never been delivered to him,
maintain the action. Thus, the owner of a tract of land gave a permit
to the plaintiff to cut and take away certain timber, reserving the
ownership and control of the Imnber cut, until payment therefor had
been made. A stranger, without license, entered upon the premises
and cut and removed the trees, and it was held that the plaintiff had
no such property or right of possession in the lumber as would enable
him to maintain replevin. Gillerson v. Mansur, 45 Me. 25. So, where
the defendant agreed to manufacture three wagons for the plaintiff
within a given time, and he completed them within the time named,
but refused to deliver them according to the contract, it was held
that the plaintiff did not under the contract acquire such a property or
interest in the wagons as would enable him to maintain reple\'in there-
for, but that he must seek his remedy upon the contract. UjydiJce v.
Henry, 14 111. 378. See, also, Beclcwith v. Philleo, 15 Wis. 223. So,
where a contract was made by which A agreed to sell the plaintiff
eight hundred bushels of corn, more or less, within a given time, at a
stipulated price, and to be delivered at a stipulated place, it was held
that the contract did not give the plaintiff a property in the com in
question that would enable him to recover it in replevin, but that his
only redress was under his contract. Loio v. Freeman, 12 111. 467.
Where a person consents that his property shall be intermingled with
the property of others, so that it cannot be distinguished therefrom,
with the understanding that he shall receive a hke quantity and quality,

476 KEPLEYIN".

hp' cannot maintain replev-in for his portion of the mass {Loii^ v. Ma/r-
tin, IS Ilh 286) ; but if property owned by one be intermingled with
the property of others without his consent., he may maintain replevin
therefor. Id. A person purchasing property so intermingled of a per-
son who has the custody and control of the whole acquires such a title
thereto as will entitle him to maintain replevin for the mass.

Tlius, where a party owned a quantity of corn which had been pur-
chased for liim by a warehouseman, who, without the owner's knowl-
edge or consent, put it in a mixed mass with other corn owned by differ-
ent persons, who had stored their corn with him, and afterward deliv-
ered the whole of the corn in its mixed condition to the party for whom
he had been buying, from whose possession it was afterward taken with-
out his consent by a third party, it was held that he could maintain
reple\dn therefor. Warner v. Cushman, 31 111. 283. A mortgagee of
personal property, who left the property in the possession of the mortga-
gor, and whose mortgage was not recorded, cannot maintain replevin for
the property against an innocent purchaser from the mortgagor, nor from
an officer who attaches it as the property of the mortgagor. Gaff v.
Harding, 48 111. 148. A receiptor to an officer, or any other bailee for
safe-keeping merely, is held not to be vested with such an interest in
the property as will uphold replevin ( Warren v. Leland, 9 Mass. 265 ;
Waterman v. Robinson, 5 id. 303) ; except as against a wrong-doer.
Hopper V. Miller, Y6 E". C. 402.

In all cases, it may be said that, in order to maintain the action, the
plaintiff must have either a general or special property coupled with
an interest sought to be replevied, and must be entitled to the immedi-
ate possession thereof at the time when he brings the action. Prater v.
Frazier, 11 Ark. 249 ; Baker v. Fales, 16 Mass. 147 ; Berthold v. Fox,
13 Minn. 501 ; Hill v. Robinson, 16 Ark. 90; Sprague v. ClarJc, 41
Yt. 6; Aldenw Carver, 13 Iowa, 253; Holliday v. Lewis, 15 Mo.
403 ; Frizell v. White, 27 Miss. 198 ; Moorman v. Quick, 20 Ind. 67 ;
J^oble V. Ep>2)erly, 6 id. 414 ; Gartside v. Nixon, 43 Mo. 138 ; Mc-
Curdy V. Brown, 1 Duer, 101 ; Rockwell v. Saunders, 19 Barb. 473 ;
Bogard v. Jories, 9 Humph. 739. Actual title to the property need
not be established, but he must show a possessory right thereto {Pra-
ter V. Frazier, 11 Ark. 249) ; and he must maintain his case on the
strength of his own title, and if he fails to do so, the property will be
restored to the defendant. Stanley v. Neale, 98 Mass. 343 ; Rein-
heimer v. Hendngvjay, 35 Penn. St. 432.

The vendor of property under an unconditional l)ill of sale cannot
maintain ro])levin against the purchaser because the price is not paid
as agreed {McNail v. Ziegler, 68 111. 224) ; nor by one who has sold

REPLEVm. 477

goods for ready pay, but who delivered them under such circumstances
as to show that he waived this condition {Mixer v. Cook, 31 Me. 340) ;
nor can one of two mortgagors of personal property maintain replevin
against a mortgagee in possession. Keegan\. Cox, 116 Mass. 289. The
burden is upon the plaintiff to establish his right or title to the prop-
erty, and he cannot recover merely because of the weakness of the de-
fendant's title. Hamilton v. Iowa City Bank, 40 Iowa, 307. The
vendor of land under a contract cannot maintain replevin for a house,
placed upon the land by the vendee, which he has sold, and which is
being removed from the premises, because he is neither in possession of
the land or the building, nor has he any right to eitlier until the ven-
dee's equity has been foreclosed. Northrup v. Trask, 39 Wis. 515.
The action cannot be maintained by one co-tenant against another,
nor by one partner against another for goods owned in common,
because the possession of one is the possession of all, and because the
remedy would deprive the defendant of his possessory rights. Haxiker
V. Johnson, ^^ Me. 21. But it is held that where one who has merely
an interest in the profits of goods wrongfully appropriates them, re-
plevin lies therefor. Thus, where the defendant entered into a contract
with the plaintiffs, a corporation, to take charge of a stone-yard for a
specified time, as superintendent for the owners, and was to furnish all
the money required to carry on the business, to pay for the labor and
furnish the material, to keep an account of his expenses, sales and re-
ceipts, and to report the same when required so to do, and who was to
receive for such money, time, etc., so expended about the business, the
net profits arising therefrom during such period, it was held that he
thereby acquired no such interest in the property, as against the plaintiffs,
either in the manufactured articles or implements, as entitled him to theii*
possession as against them, and he having violated his agreement and re-
moved certain of the property from their premises without their consent,
it was held that they could recover the same in replevin. Detroit, etc.,
Stove Works Co. v. White, 35 Mich. 77. A person cannot recover
specific articles severed from the freehold and converted by a wrong-
doer, without showing that he was in the actual or constructive pos-
session of the land when the severance was made, and a constructive
possession, for this purpose, only follows a legal title ; it cannot arise
upon a void conveyance. Johnson v. Elwood, 53 N. Y. (8 Sick.) 431.
§ 7. What property may be replevied. Any personal property
may be recovered by replevin that is susceptible of seizure by the sher-
iff, and of delivery to the plaintiff, unless there are special exceptions
existing by statute, or unless it is m custodia legis {Einerick v. Sic m,
18 Iowa, 139 ; O'ReilVy v. Good, 42 Barb. 521 ; Hudler v. Golden,

47S EEPLEYIK

36 K Y. [9 Tiff.] 446 ; Rohertsx. Daujphin Deposit Bank, 19 Penn.
St. 71) ; and this rule applies to animate as well as inanimate or mov-
able property. Eddy v. Davis, 35 Yt. 247. It lies for houses, barns,
steam engines, offices, sheds, or, indeed, any buildings or erections that
are not annexed to, so as to form a part of, the freehold. Brearley
V. Cox, 24 K. J. Law, 287 ; Pennyhecker v. McDougal, 48 Cal. 160
Yaussee v. Russel, 2 McCord (S. C), 329. See § 3, ante, 458. So it
lies for trees, grain or other property severed from the freehold.
Brewer v. Fleming^ 51 Penn. St. 102 ; Sehulenhurg v. Harrimcm, 2
Dill. (C. C.) 398 ; Wingate v. Smitli, 20 Me. 287. So it lies for a
promissory note {Savery v. Hays, 20 Iowa, 25), to recover money, so
situated that it can be identified, as money in a leather bag (Skid-
more v. Taylor, 29 Cal. 619) ; to recover the records of a private cor-
poration {Southern Plank Road Co. v. Hixon, 5 Ind. 165) ; or of a
municipal coi-j^oration [Sawyer v. Baldwin, 11 Pick. 492) ; to recover
title deeds ( Wilso7i v. Ryholt, 17 Ind. 391) ; or, indeed, any personal
property of whatever kind or description that can be identified with
reasonable certainty. Richardson v. York, 14 Me. 216 ; Davis v,
Easley, 13 111. 192 ; Snyder v. Yaux, 2 Eawle (Penn.), 423 ; Roberts
V. Dauphin Deposit Bo/nk, 19 Penn. St. 71 ; Graff v. Shannon, 7
Iowa, 508 ; Wingate v. Smith, 20 Me. 287 ; Congregational Society v.
Fleming, 11 Iowa, 533 ; Brochway v. Burnap, 16 Barb. 309 ; Water-
man V. Matteson, 4 K. I. 539 ; Eddy v. Davis, 35 Yt. 247.

§ 8. What property may not be replevied. Fixtures, or any
thing connected with or forming a part of real estate, cannot be re-
plevied {Powell V. Smith, 2 Watts, 126 ; Cresson v. Stout, 17 Johns.
116) ; as for a house built upon the land of another without a license or
authority ( Yaussee v. Russel, 2 McCord, 329) ; or fence rails unlaw-
fully taken from the lands of the plaintiff and put into a fence upon
the defendant's land {Rlcketts v. Dorrel, 55 Ind. 470) ; nor for un-
gathered crops, as corn not husked {Kaufmann v. Schilling, 58 Mo.
218 ; Jones v. Dodge, 61 id. 368) ; although, probably, as to the latter
class of property, there may be grave doubts whether the action would
not lie, if the grain was described as ])eing in the husk. Nor does it
lie for property in tlie adverse possession of another, as for slate
taken out of lands which the defendant held adversely to the plaintiff
{Cromelien v. Brink, 29 Penn. St. 522; Powell v. Smith, 2 Watts,
126; Brown v. Caldwell, 10 S. tt E-. 114); although, if there is no
adverse possession, the mere fact that the question of title is incident-
ally raised will not defeat the action. So held where replevin was
brought for ore taken out of the plaintiff's land. Green v. Ashland.
Iron Co., 62 Penn. St. 97. The action will not, except it is otherwise

REPLEVIN. 479

provided hj statute, lie for property in the possession of an officer,
upon a legal process of any kind, as a writ of attachment or execution
( Watkins v. Page, 2 Wis. 92 ; Spring v. Bourland, 11 Ark. 6.58 ;
Raiford v. Jlyde, 36 Ga. 93 ; Freeman v. Hoioe^ 24 How, [U. S.]
450 ; Grijflth v. Smith, 22 Wis. 646 ; Perrtj v. Richardson, 9 Gray,
216; Lathrop x. Cook, 14 Me. 414; Melcher v. Lamjpi'ey, 20 N. H.
403 ; 3fcLeod v. Gates, 8 Ired. 387) ; nor for property sold for taxes
{Bonsall v. Comly, 44 Penn. St. 442) ; even though a portion of the
tax is illegal {Emerick v. Sloan, 18 Iowa, 139) ; nor for property
seized under a valid warrant of any kind upon which it is competent for an
officer to seize property. Musgrave v. Hall, 40 Me. 498. ^QeMoseley
V. Anderson, 4t ) Miss. 49. It cannot be brought to recover an undi-
vided share of property {Low v, Martin, 18 111. 286) ; except it be in
a case where the property of one was intermingled with the prop-
erty of another without his assent thereto. Lovj v. Martin, id.
Thus, where a person adds mill logs belonging to himself to a pile
of logs belonging to another, and marks them in the same manner
so that they cannot be distinguished, he cannot afterward maintain
replevin against the other person for his proportion of the logs,
but only for such logs as he can identify as his own. Dilling-
hain V. Smith, 30 Me. 370. Xor will it lie for property manufac-
tured to order until it is completed and delivered. Updike v. Henry,
14 111. 378 ; Beckwith v. Fhilleo, 15 Wis. 223 ; Pettengill v. Merrill,
47 Me. 109. See § 6. When, however, a person agrees to manufac-
ture an article for another, and when part completed delivers the por-
tion completed to the vendee, who pays him therefor, and after
retaining it for some time returns it to the manufacturer to be com-
pleted, he can maintain replevin against any person who takes the
property out of the manufacturer's possession if the contract was hona
jlde. Thus, a wheelwright, indebted to the plaintiff and his father,
agreed to make a wagon for the plaintiff. He delivered the running
gears to the plaintiff who afterward bought the bed from him. The
plaintiff retained these several months, bought other materials, con-
tracted with the wheelwiight to complete it for a certain sum, and
took all the materials to his shop, the plaintiff to pay the wheelwright's
debt to his father. He afterward settled with the wheelwiight and
paid the balance due. The wagon remaining in the shop was after-
ward levied on for the wheelwright's debt. It M-as held that there was
no legal fraud and that the plaintiff could maintain replevin against
the officer for the wagon. Bond v. Bronson, SO Penn. St. 360. Nor
does it He for property deposited with a person iyi trust by the owner,
although the trust is, as to the owner's creditors, secret and fraudulent

480 REPLEYIN.

{Gihhens v. Peeler, 8 Pick, 254) ; nor for personal property bought of
another, but not delivered to the purchaser. Thus, a builder con-
tracted to erect a house for the plaintiff and find the materials, for
■which he was to receive his pay as the work advanced. After the
house was inclosed, he worked into it plank belonging to him into
columns for a piazza to the building and removed the same as a mere
matter of convenience, to an adjoining house where they were attached
as the builder's property, and it was held that the plaintiff could not
maintain replevin against the officer therefor, as the pillars were
personal property, and could not be said to be deHvered to Inm so as to
become his property until they were affixed to the house. Johnson v.
Hunt, 11 Wend. 137. A recovery cannot be had in an action of replevin
for property of which the defendant never had the possession, nor, where
the legal title to the property is in the defendant, even though he held
it as trustee for the plaintiff. The proper remedy in such a case is in
equity for an accounting. Birdsall v. Patterson, 51 IST. Y. (6 Sick.)
43. Papers in the archives of any of the departments of the govern-
ment are not in the possession of the heads of such departments, but
in the possession of the government, and replevin will not lie against
any of the heads of such departments or other public officers in the de-
partment over which he presides to take papers from such archives
on an allegation that they are the plaintiff's property. Brent v. Sag-
ner, 5 Cr. (C. C.) 71.

§ 9. When demand is necessary. When property belonging to one
is rightfully in the possession of another, or when he holds it as an inno-
cent purchaser from one who wrongfully obtained it, replevin in the de-
tinet cannot be maintained against him therefor until the property has
first been demanded from him. Talcott v. Belding, 46 How. (N.Y.) 419 ;
Hamojn v. Lahoo, 1 ITcb. 210 ; Millspaugh v. Mitchell, 8 Barb. 333 ;
Cormer v. Comstock, 17 Ind. 90 ; Stratton v. Alleti, 7 Minn. 502 ; JVeiv-
mam, v. Jenne, 47 Me. 520 ; Gilchrist v. Moore, 7 Iowa, 9 ; Lewis v.
Masters, 8 Blackf. (Ind.) 244 ; Howell v. Kroose, 4 E. D. Smith (N. Y.),
357; S. ,C., 2 Abb. 107. But see Prime v. CoU, 63 Me. 200, where it
is held that no demand is necessary of a person who purchased the
property of one having no title. In some of the States, a demand before
action brought in the detinet is made indispensable, and where such a
statutory requirement exists, it must be strictly complied with. In such
cases, it is held, as, indeed, in all cases where a demand is necessary,
that the demand must be made before the writ or process issues, and
a demand made by the officer who liolds the process for service be-
fore he serves it is insufficient. Darling v. Tegler, 30 Mich. 54. In
Delaware, it is held that an action of replevin vn the deti/net under

KEPLEVIX. 481

me statute, cannot be maintained until after a demand for the prop-
erty is made ( Windsor v. Boyce, 1 Houst. 605), and the same has been
held in Illinois. Ligalls v. BalTcley, 13 111. 315 ; Ohio^ etc.^ R. R. Co.
V. I^oe, 77 111. 513. In Nebraska, under the Code, it is held that a
person innocently in possession of property cannot be subjected to
costs unless a demand has been made for the property, and that, un-
less the plaintiff sets forth a demand, he will not be entitled to nominal
damages ; but it is held that if the defendant in his answer sets up title
to the property in himself, no demand is necessary {Iloiaan v. Laboo^
1 Neb. 210) ; and in Maine it is held that no demand is necessary,
even when the defendant holds the property as an innocent purchaser
from one having no title to the property. Prime v. Cohh^ 63 Me.
200. So in Micliigan {Ballou v. O'Brien, 20 Mich. 30tt), and in Ar-
kansas. McNeill V. Arnold, 17 Ark. 154. But, generally, unless the
statute requires a demand to be made in all, or in certain cases, the
real test as to whether a demand should be made or not, depends
upon the question whether an action of trover for the same property
would lie without demand.

§ 10. Wheu no deinaud is necessary. Xo demand is ever neces-
sary, as a preliminary ground for an action of replevin in the cepit,
or, as it may be termed, the common-law remedy. In such an action
the action rests entirely upon the wrongful taking, irrespective of the
chararacter of the detention. If the taking is wrongful, the detention,
in law, is also wrongful, and no demand is necessary. Neither is any
demand necessary when the defendant claims to be the owner of the
property and asserts title in himself thereto {Honian v. Laboo, 1
Neb. 200 ; McNeill v. Arnold, 17 Ark. 154 ; Bcdlou v. O'Brien, 20
Mich. 304 ; Prime v. Cohh, 63 Me. 200), and in several of the States,
as was stated in the Jast section, this is held to be the case, even though
the defendant is an innocent purchaser from one having no title to
the property. Prime v. Cobb, 63 Me. 200 ; Ballou v. O'Brien, 20
Mich. 304 ; McNeill v. Arnold, 17 Ark. 154 ; Soman v. Zaboo, 1 Neb.
230; Renry v. Fi?ie, 23 Ark. 417; Clark v. Lewis, 35 111. 417. A
demand is not necessary wheu the defendant came wrongfully into
the possession by force, fraud or otherwise without the owner's con-
sent {Leiois V. Masters, 8 Blackf. [Ind.] 244), and this extends to pur-
chasers from a person who thus acquired the property, whether the
person was privy to, or knew of his vendor's fraud. Butters v.
Haughwout, 42 111. IS ; Stillman v. Squire, 1 Denio, 327. Obtaining
goods by fraudident pretenses is a tortious taking, for which replevin
in the cepit would lie, and, consequently, no demand is necessary to
uphold replevin in the detinet. Ayers v. Ilewett, 19 Me. 281. In-
YoL. Y.— 61

482 EEPLEYIX.

deed, it may be said that no demand is ever necessary to maintain
the action, except wliere the statute makes a demand a condition pre-
cedent, T^-hen replevin in the cejpit would lie for tlie property. De-
lancey v. Holcomh, 26 Iowa, 94 ; Bussing v. Rice, 2 Cush. 48 ; Trudo
V. Anderson, 10 Mich. 357.

Thus, where two persons both claimed to be the owner of a steer,
and one of them, who claimed to be the owner, refused to allow the
other to take away the animal, and he separated it from the other's
cattle and drove it away, it was held that no demand was necessary
before reple^^n could be brought by the real owner against the last
purchaser. Galvin v. Bacon, 11 Me. 28. So, where goods have been
fraudulently obtained, and attached or levied upon as the buyer's
property, the seller may maintain replevin without a previous demand.
Bussing v. Rice, 2 Cush. 4S. So, where property is delivered to a
person through mistake, and he, instead of endeavoring to rectify the
mistake, lends himself to favor it, and without authority performs
services respecting it, and claims a lien upon the property on account
of such services, he is a wrong-doer, and no previous demand is
necessary to enable the owner to replevy the goods out of his hands,
nor is he under any obligation to pay or to offer to pay him for his
services respecting the goods. Picrves v. Molts, 32 How. (N". T.)
478; S. C, 2 Abb. (N. S.) 409. So, where a person who pur-
chases goods upon condition, proves them to be taken on execu-
tion against him, and to be sold to one who was cognizant of the
facts, the vendor is under no obligation to demand the property
of the purchaser before he brings replevin therefor. Blancliard
V. Child, 7 Gray, 155. So, where one intrusts his property to
a person for sale, and such ]ierson intrusts it to another, who ex-
clianges it, no demand is necessary to maintain replevin against the
liolder of the property. Trudo v. Anderson, 10 Mich. 357. In Mis-
sissippi no demand is necessary under any circumstances, but if the
defendant, whose original possession was lawful, after suit brought,
tenders the property to the plaintiff, and delivers it with a proper
plea, the suit will be discharged. Dearing v. Ford, 21 Miss. 269.
It is sufficient, even when a demand is necessary, to make it of the
person who has possession of the property, whether he holds it under
a claim of title thereto or not. Thus, the plaintiff sued to recover
tlie possession of certain personal property in the liands of a sheriff,
under attachment against third persons who had hired it of the plain- j.
tiff. When the property was attached, it was in the possession of the
plaintiff, avIio made a demand upon the sheriff therefor, and it was held
that even thou-j-li a demand was uecessarv at all, it was rightly made

REPLEYIN. 483

npon the sheriff, and that a demand upon third parties not in pos-
session was wholly unnecessary . WoodiDorth v. Knouilton^ 22 Cal.
164. The rule is, that replevin may be maintained without a demand
whenever trover lies without demand. " It is not necessary," says the
court in a l^evada case, ■' to show a demand upon the defendant to re-
turn the property before suit brought. The demand serves only to
establish a conversion or wrongful detention, and when that can be
established without showing a demand, a demand is unnecessary."
Perkins v. Barnes, 3 Nev. 557. See, also, to same effect, Woodvjorth
V. Knoxolton, 22 Cal. 164 ; Lewis v. Master, 8 Blackf. (Ind.) 244 ;

Ledley v. Hays, 1 Cal. 160 ; PurmsY. MoUz, 2 Abb. Pr. (N. Y., K. S,)

409; Trudo v. Anderson, 10 Mich. 357; McNeill v. J.rno?fZ,/17 Ark.
154; Hicks Y. Britt, 21 id. 422; Blanchard v. Child, 7 Gcrly, 155^
Putnam v. dishing, 10 Gray, 334; StiUman v. Squire, 1 Denio\ 337;
Butters v. Haughvwut, 42 111. 18 ; Prime v. Cohl, 63 Me. 200 ; ^it-
vey V. McConnell, 29 Mich. 12. Thus, where property was sold con-
ditionally, and the vendee without the consent of the vendor removed
it to another city and pawned it for money borrowed, it was held
that the vendor might maintain replevin against the pawnee for the
property, without a prevnous demand, as his possession originated from
a tortious taking. Id. The rule may be said to be, that whenever
a person obtains jiossession of the property of another without the
consent of the owner, and then, without any right which the law will
recognize, asserts a claim to the property ine<:)nsistent with the owner's
right of property, and right of possession, the possession of such per-
son becomes illegal immediately, and no demand for the property is
required to be made by the owner before he commences an action of
replevin for the recovery of the property, although the possessor
thereof may ever so honestly entertain the belief that his claim to
the property is both legal and just. Shoemaker v. Sijnpson, 16 Kan.
43. In reference to replevin against an officer, for goods wrongfully
attached, the rule seems to be that when an execution is levied upon
property in the possession of the defendant in the execution, as his
property, and another party claims the goods, he must make a
demand before he can maintain replevin for them ; but if the goods
are in the possession of the party so claiming them, when levied on,
then no demand is necessary {Tuttle v. Pohirison, 78 111. 332), and the
same rule prevails when the goods are in the possession of the agent
of the owner. Id.

So, where at the time of the levy the officer is notified that the
property does not belong to the execution debtor, no demand is essen-
tial. Stone V. Bird, 16 Kan. 488. "Where parties have entered into a

484 REPLEYIN.

verbal contract for the sale of property to an amonnt within the
statute of frauds, as lumber, and the vendor having placed the lum-
ber on the vendee's premises, insists that the vendee shall take it at
his inspection, and the vendee declines to do so, the vendor is not
entitled to bring replevin, until after a refusal by the vendee, upon
a reasonable demand, to permit him to remove it. The property
ha\'ing been voluntarily placed in the vendee's possession, by the
vendor's procurement and consent, the vendee cannot be made a
wrong-doer in regard to it, by simply permitting it to remain there.
Darling v. Teglei\ 3() Mich. 54. In all cases, where the property came
lawfully into the defendant's possession, before he can be charged as
a wrong-doer, a demand must be made upon him for the property.
TcacoU V. Belding, 4G How. (K. Y.) 419.

§ 11. Who may maintain the action. Replevin in the cepit may
be maintained by the person entitled to the possession of the property
at the time of its taking and of action brought {Frizell v. White, 27
Miss. 198 ; Moorman v. Quick, 20 Ind. 67 ; Berthold v. Fox, 13 Minn.
501; PilkingtonY. Trigg, 28 Mo. 95; Sprague v. Clark, 41 Yt. 6;
McCurdy v. Brown, 1 Duer [N. Y.], 101) and who has such an inter-
est therein that he could maintain trespass therefor {Roberts v. Handel,
3 Sandf. 707 ; Sawtelle v. Rollins, 23 Me. 196 ; Crocker v. Mann, 3
Mo. 472 ; Ma/rshall v. Davis, 1 Wend. 109 ; Hall v. Gilmcre, 40 Me.
578 ; Ely v. Ehle, 3 N. Y. [3 Comst.] 506 ; Darne v. Dame, 43 N. H.
37; Tra/pnall v. Ilattier, 6 Ark. 18; Cummings v. McGill, 2
Murph. 357 ; Sayward v. Warren, 27 Me. 453), and the action in the
detinet may be maintained whenever trover lies in favor of the party for
the same property. Sawtelle v. Rollins, 23 Me. 196 ; Marshall v.
Davis, 1 Wend. 109. The action may be maintained by any person
having the general property and riglit to its immediate possession
(Chinn v. Russell, 2 Blackf. 172 ; ^Ross v. Cassidy, 27 How. [N. Y.]
416 ; DunJcham v. Wychoff, 3 Wend. 280), or of a person having
possession and a special property therein {Prater v. Frazier, 11 Ark.
249 ; Kirhy v. Miller, 4 Coldw. 3 ; Brockway v. Burnap, 12 Barb.
847 ; HollidoAj v. Lewis, 15 Mo. 403), as a person having a lien upon
it for services or advances {Currier v. Ford, 26 111. 488), or a person
who has the legal title and is entitled to the immediate possession of
property, as, a person to whom property is to be delivered by a bill of
lading {Powell v. Bradlee, 9 G-. & J. [Md.] 220) ; an officer who has
levied upon property and taken it into his possession ( Walpole v.
-^/wi^A, 4 Blackf. [Ind.] 304; P<Lgh v. Calloway, 10 Ohio St. 488;
Dunkin v. McKee, 23 Ind. 447 ; Martin v. WJiatson, 8 Wis. 315) ; a
lessee of property {Moore v. Moore, 21 Me. 350) ; a vendor who

REPLEVIN. 485

sells property conditionally {Ilohnark v. 3falin, 5 Caldw. 482) ; and
as against a mere wrong-doer or trespasser, a person who has the naked
possession or right of possession coupled with a beneficial interest, may
maintain the action. Freshwater v. Nichols, 7 Jones (N. C), 251. A
mortgagee in the possession of fixtures attached to the freehold can
maintain replevin against a person removing them {Laffiin v. Griffith,
35 Barb. 58) ; so a mortgagee of a chattel may maintain replevin there-
for, against one who takes it out of the possession of the mortgagor.
Fuller V. Acker, 1 Hill (N. Y.), 473. So, replevin lies in favor of
a private corporation to recover its records or other property wrong-
fully taken or withheld from it {SoutJiern Planh Road Co. v. Hixon,
T) Ind. 165) ; so it lies in favor of a municipal corporation. Sudbury v.
Steams, 21 Pick. 14S ; Sawyer v. Baldwin, 11 id. 492. It lies in favor
of the assignee of a chattel mortgage {Barhour v. White, 37 111. 164);
or in many of the States by the assignee of the owner {Lazard v. Whee-
ler, 22 Cal. 130) ; by a bailee of property, against a wrong-doer [Hopjper
V. 21'dler, 76 N. C. 402j; and, generally, any person who has a general or
special property in the thing to be replevied, coupled with a right of
immediate possession, may maintain the action. Brown v. Bissett, 1
Zabr. (N. J.) 267; Eaythorn v. Rushforth, 4 Harr. (N. J.) 160;
Chanibers v. Ilimt, 3 id. 339.

§ 12. Who cannot maintain the action. Replevin does not lie in
favor of one joint owner or tenant in common for property belonging to
them, against the other for property of which he holds the exclusive
possession. De Wolf v. Harris, 4 Mas. (C. C.) 515 ; Scrugham v.
Carter, 12 Wend. 131; Prentice v. Ladd, 12 Conn. 331 ; Mg Elderry
V. Flannagan, 1 H. it G. (Md.) 30S ; JP Arthur v. Lane, 15 Me.
245 ; Silloioay v. Brown, 12 Allen, 30 ; Tlolton v. Binns, 40 Miss.
491. But see Schwartz v. Skinner, 47 Cal. 3. A mortgagee whose
morto'atje is not recorded cannot maintain the action against an oflicer
who attaches it as the property of the mortgagor ; nor can a person who
purchases it in ignorance of the mortgage. Reese v. Mitchell, 41 111.
365. A mere trespasser or wrong-doer cannot maintain the action, nor
can his vendee. Parham v. Riley, 4 Coldw. (Tenn.) 5. A receipt(.ir
of property from an officer has no such general or special property in
the property receipted as will uphold replevin ( Way^ren v. Leland, 9
Mass. 265 ; Perley v. Foster, id. 112 ; Watei^man v. Robinson, 5
id. 303) ; unless lie has the possession of the property, and then only
against a wrong-doer. Sini2)son v. JfcFarland, 18 Pick. 427. A
tenant in common, who lias made advances upon the joint property, or
even who paid for it with his private funds, cannot on that account
maintai!! replevin for the toho'e of the property, against an oflicer attach-

486 REPLEYKs^.

ing it as the propert}^ of ]iis co-tenant. Ladd v. BillingSy 15 Mass,
15. The owner of goods, in the hands of a person having a lien upon
them, has no such possession or rights of possession that lie can main-
tain replevin, unless he first discharges the lien. Wood v. Orser, 25
N. Y. (11 Smith) 358. A defendant in an execution cannot, unless pro-
vision is made therefor by statute, maintain replevin for property levied
upon under an execution, even though by statute it is exempt from levy.
His remedy is trespass or trover. Cromwell v. Owings, 7 H. & J. 55 ;
Reynolds v. Sallee, 2 B. Monr. (Ky.) 18 ; Saffell v. Wash, 4 id. 92. A
mortgagee, who has agreed tliat the niortgagor may retain possession of
the property, cannot maintain replevin against one who takes it from
the mortgagor's possession [Pierce v. Stevens, 30 Me. 18-1 ; Curd v.
Wunder, 5 Ohio St. 92; Warners. Matthews, 18 111. S3; McCoy v.
Cadle, 4 Iowa, 557); and, generally, no person who has not a right to the
immediate possession of the property can maintain the action, whether
he is the owner of the property or not. Replevin cannot be prosecuted
m forma jpau])eris. Horton v. Vowell, 4 Heisk. (Tenn.) G22.

§ 13. Who may be sued. Any person who is tortiously or wrong-
fully in the possession of property may be proceeded against in replevin
therefor, by the person who is entitled to its immediate possession.
Thus, a person who purchases ]3roperty really belonging to another, at
a sale under an execution against a third person, is liable in replevin
therefor to the real owner, as the property, although purchased by him
at a legal sale by an officer, upon a valid process, ceases to be in ciis-
todia legis as soon as the officer parts with his possession thereof.
Dodd V. McCraio, 8 Ark. 83. So it lies against a creditor wdio has
caused property belonging to another to be attached or levied upon as
the property of his debtor, even though the property is actually in the
])ossession of the officer, because, having been taken presumably by his
direction, he is treated as being constructively in possession of them.
Firestone v. Mlshler, 18 Ind. 439 , .Jiaway v. 8t. John, 20 Conn.
343; Knapp v. Smith, 27 N. Y. 2. . ; Estey v. Love, 32 Yt. 744;
cont/ra : see Richardson v. Reed, 4 Gray, 441. The action will
lie against one who has the control of property although it is in
the possession of another as against a principal, when the property
is in the hands of an agent, or against a bailor when the property
is in the hands of a bailee [Bradley v. Gamelle, 7 Minn. 331) ;
and in either case it is proper to join both as defendants, or to perniit
eltlicr to come in to defend after suit brought. Valle v. Cerre, 3G Mo.
575. The action lies agaiiist the vendee of property under a condi-
tional sale, who, without the assent of his vendor, sells the property, and
that, too, even though it wns sold to be manufactured into a particular

EEPLEVIN. 487

article, which he did, and in doing so combined it with articles of a sim-
ilar character belonging to himself. Thus, A. sold to B. some canvas for
a sail, under an agreement that tlie title to the canvas shuuld remain
in him until ;)aidfor. B. made the sail, furnishing further material for
it, and then sold it without having paid A., and it was held that
A. could maintain replevin against the purchaser therefor. Eaton v.
Munroe, 52 Me. 63. "Without stopping to specify more particularly,
it may be said that replevin lies against any person, at common law,
who, without legal process, wrongfully takes property from the pos-
session of another, and that replevin in the detinet will lie against
any person who wrongfully withholds property from another, except
it is held by him as an officer, under a valid legal process. Where one
partner is in possession of property for the firm, his possession is treated
as the possession of the firm, and replevin lies against one, or all the
members, when the articles replevied are in the possession of one claim-
ing to act for, and with the concurrence of all. Hoioe v. Shado, 56
Me. 291.

Replevin in the detinet lies against an agent, who has the actual
possession of the property, instead of the principal, if the plaintiff so
elects, whether the original taking was lawful or not. Stevenson v.
Taylor, 2 Mich. N. P. 65. So, where a person is jointly interested
with another in the detention and impounding of caiile taken doAaage
feasant, as a mode of recovering the damage done by them, his assent to
such detention is sufficient to render him liable in replevin. Riley v.
Noyes, -M Yt. 455. In Wisconsin, under the statute, it is held that
replevin will lie against an officer who has seized property upon a tax-
warrant void upon its face, but that the plaintiff cannot in such case
claim the immediate delivery of the property. Dudley v. Ross, 27
Wis. 679. Generalh', at common law, the possession of personal prop-
erty by the plaintiff and a wrongful taking by the defendant are suffi-
cient to support the action, the remedy being concurrent with trespass
de bonis asportatis. Id.; Dame v. Dame, 43 N. H. 37 ; Ely v. Ehle,
3 :N'. Y. (3 Comst.) 506 ; TrapnaU v. Battier, 6 Ark. IS.

One whose property has been replevied by a writ against his agent
or his bailee can retake it by reple^an from the plaintiff in the first
action even during the pendency of that action. ' WJiite \. Dolliver,
113 Mass. 400 ; S. C, 18 Am. Rep. 502.

§ 14. Who may not be sued. Replevin in the cepit cannot be
maintained against any person who came into possession of the property
under a contract with or by the consent of the owner or lawfullj^ by
whatever means, as, where they are delivered to a person for safe-keep-
ing, or to be transported to a certain point. Woodward v. Gramd Trunk

488 KEPLE\^IN.

R. R. Co., 46 IS". H. 524. Thus, "W. exchanged a horse which he had
stolen, with B., and afterward sold B.'s horse to C. for a good consider-
ation and without notice from B. of the manner in which "W. acquired
the horse. It was held that B. could not maintain replevin against C.
therefor. Brown v. Campsall, 6 H. & J. (Md.) 491. So, where prop-
erty is delivered to the defendant through mistake, replevin in the
cepit cannot be maintained against the person receiving it {Steven-
son V. Ridgely, 3 H. c% J. [Md.] 281) ; nor can it be maintained
against a person merely to try the right of property. Taggart v.
Hart, Brayt. (Vt.) 215. Replevin m the cej.nt or in the detinet can-
not be maintained against a person who came rightfully into its pos-
session and does not claim any title thereto or right to retain it.
Johnson V. Garlicky 25 Wis. 705. Neither can the process be used to
recover property that a person holds under a lease, until the rights
of the parties have been otherwise rightfully determined. Smith v.
Grants 56 Me. 255. The action does not lie against one joint o^vner
of property by his co-tenant, or his vendee, or assignee, to recover
possession of the joint property, as neither, as against the other, is
entitled to the immediate or exclusive possession of the property
{Cross V. Hulett, 53 Mo. 397); nor will it lie for the plaintiff's share
of the property. Mills v. Malott, 43 Ind. 248. Nor does the action
lie against a person who is in the adverse possession of the property
{Brown v. Caldwell, 10 S. & E,. 114) ; nor, unless otherwise provided
by statute, against an officer holding the property under a valid legal
process, as a writ of attachment {Smith v. Huntington, 3 N. H. 76 ;
Freeman v. Hoioe, 24 How. [U. S.] 450) ; an execution {Raiford v.
Hyde, 36 Ga. 93 ; Springy. Bourland, 11 Ark. 658 ; Lathrop v. Coolf,
14 Me. 414 ; Battis v. Hamlin, 22 Wis. 669 ; Melcher v. Lamprey, 20
N. H. 403 ; Gardner v. Camjjhell, 15 Johns. 401) ; or under a warrant
for the collection of a fine {Pott v. Oldwine, 7 Watts, 173 ; Gist v.
Cole, 2 N. & McCord, 456) ; or for the collection of taxes {Emerick v.
Sloan, 18 Iowa, 139 ; Stiles v. Griffith, 3 Yeates [Penn.], 82; Hiidler
v. Golden, 36 N. Y. [9 Tiff.] 446"; O'Reilly v. Good, 42 Barb. 521;
S. C, 18 Abb. 106) ; or under any other valid process Gist v. Cole, 2
McCord, 456 ; MusgraA)e v. Hall, 40 Me. 498) ; and it has been held
that the validity of a tax cannot be questioned in this action. Mo-
Claughry v. Cratzenhcrg, 39 111. 117; Mt. Carhon R. R. Co. v.
Andrews, 53 111. 177. Nor will it lie against a person who was
not in the possession of the property at the time when the action is
brought. Grace v. Mitchell, 31 Wis. 533; S. C, 11 Am. Rep. 613;
Haughton v. Newberry, 69 N. C. 456 ; Hall v. WhiU, 106 Mass. 599.
But, if the action is in the detinet, the fact that the defendant has

KEPLEVIK 489

parted with the possession M'ill not defeat the action. Latimer v.
Wheeler, 3 Abb. App. Dec. (N". Y.) 35 ; S. C, 1 Kejes, 468 ; DunJumi
V. Troy Union R. R. Co., 1 Abb. App. Dec. 565 , S. C, 3 Keves, 543.
§ 15. Of defenses in general. It is a good defense to an action
of replevin that the plaintiff, at the time when the action, was
hroughtj had no right to the possession of the property, even though
before the trial he acquires such a right {Clark v. West, 23 Mich. 242) ;
or that the plaintiff was not in fact divested of his possession of the
property {Taylor v, Jenkins, 24 Ark. 337) ; or that the defendant had
a special property in the articles sought to be replevied {Mitchell v.
Hinman, 8 Wend. 667) ; or that he is the general owner thereof and
entitled to possession. Alsbrook v. Shields, 67 X. C. 333. But he
cannot set up title in a third person, unless he connects his posses-
sion with such person's title and shows a right thereto acquired from
the owner, and thus establishes a paramount right to that of the
plaintiff, justifying either the taking or detention of the property
{Gerber v. Monie, 56 Barb. 652; Reed v. Reed, 13 Iowa, 5; Corhitt
V. Heisey, 15 id. 296 ; McClung v. Bergeld, 4 Minn. 148) ; nor can
he impeach the title of the plaintiff by showing that the plaintiff
acquired title from a third person through an abuse of confidential
relations. In order to make such defense available, such third per-
son should bo made a party defendant. Wyman v. Gould, 47 Me.
159 ; Toion v. Tabor, 34 Mich. 262. But there is an exception to the
rule when the plaintiff has lent or leased the property to a third per-
son and the defendant came into possession of it through a purchaser
from him. At least this woidd be a good defense to replevin in the
cepit and in the detinet, unless a demand for the property was made
by the plaintiff before suit brought, and even in such case if the time
for which the property was lent had not expired. McFerrin v. Perry,
1 Sneed, 314. Indeed, it is always a good defense in replevin to
show that the plaintiff had no right to the possession of the prop-
erty at the time when the suit was brought, as that he had leased
it for a term, which had not expired, or that the defendant lawfully
held it as against the plaintiff, as a bailee from an officer who had at-
tached it upon a process against the plaintiff, or under a writ of replevin.
Belden v. Laing, 8 Mich. -500. It is a good defense that the defendant
holds the property under a writ of attachment against eitliur the plain-
tiff or a third person who is not a party to tlie suit ( Wiler v. Manley,
61 Ind. 169) ; except in tliose States where 1\v statute property
may be replevied out of the possession of an officer, and even then,
unless the plaintiff establishes his title to the property. So, it is a
good defense that the defendant held the property under an execu-
YoL. Y. — 63

490 REPLEYm.

cion {Raiford v. Eyde, 36 Ga. 93 ; Griffith v. Smith, 22 Wis. 646) ;
or iinder any valid legal process or warrant upon which property can
be taken. Gist v. Cole, 2 N". & McCord, 456 ; Fott v. Oldwine, 7
"Watts, 173. To an action of replevin in the cejpit it is a good de-
fense that the defendant came into the possession of the property by
purchase from a third person without notice that it had been wrong-
fully obtained from the plaintiff {Le: v. Portwood, 41 Miss. 109) ; or
that the defendant, at the time when the suit was brought, did not
have either the possession or the control of the property. Myers v.
Credle, 63 jN^. C. 504. It has been held that it is a good defense
to an action of replevin in the detinet that the defendant obtained
the property from a third person, even though he knew that such
person obtained it as a trespasser. Harper v. Baker, 3 T. B. Monr.
421. But if a person obtains property himself fraudulently, it is
treated as a tortious taking. Drumrrbond v. Hopjper, 4 Harr. (Del.)
327. It is, of course, a good defense to an action of replevin that
the plaintiff has no title to the property {Bower v. Highee, 9 Mo.
259); or that the defendant has a lien upon the property for
services or advances {Currier v. Ford, 26 111. 488); or that the de-
fendant is a joint owner with the plaintiff {Kimball v. Thompson, 4
Cush. 441) ; or that the plaintiff only holds as mortgagee and has not
by the terms of his mortgage a right to the possession of the prop-
erty until condition broken, and that the defendant holds the prop-
erty under the mortgagor {Ingraham v. Martin, 15 Me. 373) ; and,
generally, any matter may be shown in defense that tends to show that
the plaintiff, at the time when the action was brought, had no right
to the possession of the property. Clarh v. West, 23 Mich. 242.

§ 16. Abatement. Tlie fact that the defendant was, at the time of
the taking of the property, a joint owner thereof with the plaintiff,
is proper matter in abatement of the action {McArthur v. Lane, 15 Me.
245 ; Hart v. Fitzgerald, 2 Mass. 509) ; or that the declaration is m the
cejpit and the writ in the cepit and detim,et, or vice versa {Brown
V. Peevey, 6 Ark. 37) ; or that the plaintiff is the owner of only a part
interest in the property {Wright v. Bennett, 3 Barb. -151); as, in such
cases, all the owners should join. Comyn's Dig., title Abatement, § 10 ;
Broadhent v. Ledward, 11 Ad. & El, 209. But this defect as to
parties cannot be rendered available as a defense to the action, and un-
less plead in abatement, tiie non-joinder is waived, and unless the de-
fendant can connect himself in some way with the title through some
of the other joint owners, judgment will go against him. I)c Wolf v.
Harris, 4 Mas. (C. C.) 515 ; Coke's Litt. 145J. So, too, it is proper
matter in abatement that tlie defendant holds the property as a receiver,

REPLEVIN. 491

but the plea must set forth when, where and how he was appointed
{Armstrong v. Mc3fiUon, 9 Mo. 721) ; or that no sufficient bond has
been given as required bj statute, or that any other statutory require-
ment as to the action has been omitted. Bloomer v. Craig, 6 Dana
(Ky.), 310.

§ 17. Pleas to the action. If the defendant pleads property in liim-
seK for a third person, lie must also in the same plea traverse the plain-
tiff's right ; and the allegation of property in himself or in a third per-
son is only treated as an inducement to the traverse, and, therefore, the
plaintiff can only take issue upon the traverse and not upon the induce-
ment, and, as a matter of course, upon that issue the substantial matter
is the plaintiff's right to the property. Upon the issue, tlie plaintiff
holds the affirmative and must sustain liis rights or fail in the action.
Pope V. Jackson, G5 Me. 162 ; Atkins v. Brynes, 71 lU. 326 ; Peake
V. Conlan, -13 Iowa, 297. A plea or answer of property in a stranger
is treated as a denial of the plaintiff's title, and is good as a plea in
bar, and completes the issue, without a replication. Landers v. George,
40 Ind. 160. The plea of property in the defendant puts in issue, not
only the plaintiff's title, but also his right of possession, and throws the
burden upon the plaintiff of proving his own title and right, which must
be done upon the strengtli of his own title. If the proof shows that
the plaintiff and defendant are co-tenants of the property, a verdict for
the defendant does not defeat the plaintiff's title to his share of the
property, and only goes to defeat his right to its possession as against
the defendant. Reynolds v. 2fcCorm.ick, 62 111. 412; Kennedy v.
Clayton, 29 Ark. 270. If the defendant's pleadings deny the identity
of the property and the genuineness of the writings under which he
claims, the burden is upon the plaintiff to establish both facts. Wehher
V. Read, 65 Me. 564. A plea denying that the property described in
the complaint, declaration or affidavit, at the time stated, or at any other
time, came into the defendant's possession, or that the same remained
or was in his possession when the action was brought, is a good bar to
the action. Roberts v. Johannas, 41 Wis. 616. The declaration or com-
plaint should show a general or special property in the plaintiff {Scho-
field V. Whitelege, 12 Abb. Pr. N. S. [N. Y.] 320 ; S. C, 49 X. Y. [4
Sick.] 259), and the place where it was taken. Strang v. Lawler, 37
Conn. 177. The plea of non cejnt and non detinet admit the property
and right of possession to be in the plaintiff, and only put in issue the cap-
tion and detention. Yan JSTamee v. Bradley, 69 111. 299. The plea of
property in a third person only puts in issue the plaintifl~s right to the
property, tlie allegation of property in another being mere inducement
to the traverse of the plaintiff's right, and the property in the defend-

492 REPLEVIN.

ant, or a third person, suincient to sustain a defense under such pleas
must be such as goes to destroy the plaintiff's interest, which, if existing,
would sustain the action, or such as would defeat an action of tres-
pass or trover if brought to recover for the same property. Id. The
rule is, that in a plea to an action justifying the taking under a legal
process, there must be an averment that the process is in full force
and tliat tlie money due thereunder has not been paid. Dayton v.
Fry^ 29 111. 525. But if there are allegations in the plea that amount
to such an averment, it has been held that the plea ia sufficient. Thus,
in an action of replevin against a constable who held the goods in-
volved in the action as the })roperty of a third person upon a writ
of attachment, the defendant justified under the writ, and after ver-
dict it was objected that the plea did not aver that a debt was due
from the defendant in the writ to the plaintiff. It was held that if
such averment was necessary, an allegation that the attachment was
for a certain sum, that the writ was at the time of the levy in full
force and effect, and that the amount claimed was unpaid, was suf-
ficient after verdict; also, that the defendant having pleaded prop-
erty in the attachment defendant, he was at liberty to put in tb.o
same defense under that plea and that it was not necessary that the
defendant should aver in his plea of justification, or prove at the
trial, that the writ of attachment was duly returned, or that ther^
was cause for suing out the attachment. McCraw v. Weloh^ 2 Col.
T. 284. No demise and no rent may be plead together; also, 7wn
cejpit and 7ion detinet. Lecky v. McDermot, 5 S. & R. 331. If
tenants in common are joined in replevin they may plead jointly,
but if two are sued, and they are not joint owners, but each stands
upon his own interest, they must plead separately. Talvande v. Vripps,
3 McCord, 147. Where the plaintiff relies on possession, the defend-
ant is not required to deny this specifically, but may state any facts
which go to defeat the action. Kerley v. Hume, 3 T. B. Monr. 181 .
In a plea of property, there must not only be an allegation that the
property mentioned in the writ is not the property of the plaintiff,
but the ])lea must also state to whom the articles belong, or the plea
will be bad. Aiistice v. Holmes, 3 Denio, 244. So, when the action
is brought by a lienor for services, the plea must, in order to shov.'
that tlie pro])erty was not subject to the lien, set out the contract under
wliich the services were rendei'ed with reasonable certainty, particu-
larly the price and time of payment. Curtis v. Jones, 3 Denio, 590.
A plea that goods were distrained for taxes {Deshler v. Dodge, Ifi How.
[U. S.] G22) ; that a former judgment has been obtained against the de-
fendant in trespass for the same property {Cojfia v. Knott, 2 Greene

EEPLEVm. 493

[lowi], 582) ; tliat the animals sought to be replevied were taken up
by tli2 dofendaut as estrays, setting forth a proper cause for such taking
and a coiiipliance with the statutory provisions, liowever expressed
{Barii'js v. Tannehill, 7 Blackf. [Ind.] 604), or that the defendant kept
his milch cows in a pound from seven o'clock in the morning until five
o'clock in the afternoon, in warm ^v^athe^, whereljy they became greatly
injured by shrinking of their miik and in other respects, have been held
to be sufficient. Adams v. Adams, 13 Pick. 3S-4. "Where two pleas
are filed and both are substantially the same, one may be rejected.
Thus, ^vllere tlie first plea was of property in one S., and the second
that the defendant took the goods as constable upon an execution
against S., and that the goods belonged to S., it was held that the second
plea might be rejected upon motion of the plaintiff, it being substantially
the same as the first. JIann v. Perkins, 4 Blackf. (Ind.) 271. Gen-
erally, it may be said, that a plea must set forth the facts relied upon
in defense with reasonable certainty, and must be such as standing alone
constitute a defense to the action, and in this action the want of a pro-
per plea is not cured by verdict. JLeck// v. McDermoi, 5 S. & R. 331.

§ 18. Insufficient pleas. As stated in the preceding section, a
plea in this action, in order to be efficacious, must set forth the matters
relied upon in defense with reasonable certainty, and must be such as,
standing alone, constitute a complete or partial defense to the action.
It is not sufficient to constitute a defense that the plea alleges that the
plaintifTs title is that of lienor or mortgagee and that since the com-
mencement of the action he has used the property, and therefrom real-
ized more than the amount of his clahn, or that he has sold the prop-
erty for a certain sum, for which he has not accounted to the defend-
ant {Gliarles v. Malott, 51 Ind. 350) ; nor, when the action is against
the sheriff, is a plea of payment of the claim upon which the process,
upon which he holds the goods, was issued, without notice to him pre-
vious to the bringing of the action, or an averment that the action was
discontinued, sufficient to entitle tlie plaintiff to recover. Limngston
V. Smith, 5 Pet. (U. S.) 90. When the defendant pleads joint tenancy
with the plaintiff, in the property sought to be replevied, he must not
set forth a history of the tenancy, but should aver the tenancy, and then
prove upon the trial such facts as support the plea. A plea setting
forth that the defendant was not in possession of the property, and did
not claim to own it at the time wlien the action was commenced, has
been lield insufficient in substance, as not setting forth a proper ground
of defense. Say ward v. Warren, 27 Me. 453. But it is not believed
that this is generally tlie rule, as it is held, as we have seen by the pre-
vious sections of this chapter, that the fact that the defendant was not,

494 REPLEVIN.

at the time when the action was brought, in the possession of the prop-
erty, constituted a good defense to the action, and where such is the
rule, the plea would certainly be good. A plea of set-off as to part of
the rent in arrears as avowed, and jjayment as to the residue is bad
upon demurrer ( Wolgamot v. Bruner, 4 liar. & M. [Md.] YO) ; but
a plea of tender of the rent before the distress was issued is good, and
if proved, makes the distress wrongful ah initio. Bennett v. Bayes, 5
H. & K 391.

§ 19. General issue. Except where otherwise provided by statute,
the general issue in an action of replevin m the cepit is non cepit (1 Ad-
dison on Torts [Wood's ed.], 829) ; and merely puts the taking in
issue. Ely v. Ehle, 3 N. Y. (3 Comst.) 506. But where the general
issue is " not guilty," it puts in issue every material fact in the declaration
or complaint including the question of property in the plaintiff {Dill-
ingham V. Smith, 30 Me. 370 ; Ileeron v. Beckwitli, 1 Wis. 17 ; Ashhy
V. West, 3 Ind. 170 ; Loomis v. Foster, 1 Mich. 165 ; Child v. Child,
13 Wis. 17) ; and under it the defendant may show title in himself
iScudder v. Worster, 11 Cush. 573 ; Gibson v. Mozier, 9 Mo. 256) ;
and the same rules apply to replevin in the detinet. Coverlee v. War-
ner, 19 Ohio, 29 ; Patterson v. Fowler, 22 Ark. 396 ; Ingalls v. Bidh
ley, 15 111. 224.

§ 20. Non cepit. The plea of non cejjit only puts in issue the taking.
Fy V. Ehle, 3 IST. Y. (3 Comst.) 506 ; Vose v. Eart, 12 111. 378 ; Roiv-
land V. Mann, 6 Ired. 38 ; Carroll v. Harris, 19 Ark. 237 ; Bourh v.
Hlggs, 38 111. 320 ; Yickery v. Sherhurne, 20 Me. 34 ; Harper v.
Baker, 3 T. B. Monr. (Ky.) 421. It admits the j^roperty to be in the
plaintiff, and no special matter in justification can be shown under it ;
neither can a judgment for a return, nor for damages, be rendered
under it for the defendant. The taking, if establislied, will be held to
be wrongful from the admission of ])roperty in the plaintiff. Van JVa-
mee v. Bradley, 69 111. 299 ; Hopldns v. Burney, 2 Fla. 42. If, how-
ever, tliere Avas not a wrongful taking, the judgment must be for the
defendant. Meanyy. Head,l Mas. (C.C.) 319. But, where 7ion cepit,
and property in the defendant are both pleaded, as they may be, tliere
must be judgment for tlie defendant if the taking was not wrongful,
or if the property and right of possession were in the defendant.
Cooper Y. B(ihnnan,?>^^iv:. V,)'2', Cwmnings v. Gann, 52 Penn. ^t.
484. And, unless property in the defendant is pleaded either in bar or
abatement, it cannot be given in evidence. Dickson v. Mathers,
Ilempst. 65 ; WJiitioell v. Wells, 24 Pick. 25. The plea imposes
upon the plaintiff the burden of proving an unlawful taking, and if it
appears from the proof that the ]n*operty came into the defendant's

EEPLEVIN. 495

possession bj tlic plaintiff's consent, or through a third person, he can-
not prevail in the action. Carter v. Pi])er^ 57 X. 11. 217. Both this
plea and non detinet admit the property in the goods to be in the plaintiff,
as well as the right of possession, and only puts in issue the caption
and detention. Van Nainee v. Bradley^ 69 111. 299. Except where
otherwise provided by statute it is the general issue, and operates as a
traverse of the allegation in the complaint or declr-ration, of the taking
of the chattels, and merely alleges that the defendant did not take the
property mentioned therein. 1 Add. on Torts (Wood's ed.), 829. It is
held that it puts in issue the ganeral, but not the special property in the
goods, and that the issue must be for the defendant, if there was not a
wrongful taking, and for the plaintiff, if there was. Meany v. Head,
1 Mas. (C. C.) 319. It is not a good plea in replevin in the detinet.
Walpole V. Smith, 4 Blackf. (Ind.) 304. In Maryland, non cepit, prop-
erty in the plaintiff, and property in a stranger may all be pleaded in the
same action {Smith v. Morgan, 8 GiU [Md.], 133) ; and in Maine,
under the statute, this plea, with a brief statement of property in the
defendant, imposes upon the plaintiff the burden of proving property
ill himself. Cooper v. Bakeman, 32 Me. 192. The plea of 7ion cepit
in alio loco does not operate as an admission of the taking as alleged
in the declaration, but if the defendant omits to file such a plea, and
pleads property in himself, or in a stranger, \hQ place where the goods
were taken is not material. Emmett v. Briggs, 21 N. J. Law, 53. If
the plea of non cepit and of property are tiled, and the jury pass upon
only one issue, a new trial will be ordered. Sprague v. Kneeland, 12
AYend. 161. At common law, if the defendant wishes to dispute the
plaintiff's property or rights of possession, lie must plead a separate
plea, specially alleging that the plaintiff, at the time, etc., was not the
owner of the chattels, or entitled to their possession, and that the de-
fondant or some third person was the owner thereof when, etc., and
entitled to their possession, and could not enter into proof of such
f lets under the naked plea of non cepit. Dover v. Ramlings, 2 M. tt
Rob. 544.

§ 21. Non detinet. In repleviii the plea of non detinet puts in
i-:3v.c the detention of the property and in some of tiie States, by stat-
T'.te, puts the title of the plaintiff to the property, in issue. Particu-
I:ir!y is this the case in Arkansas {Nets v. Gillen, 27 Ark. 184) ; and
tb.c same is also the case in Ohio. Coverlee v. Warner, 19 Ohio, 29
"Where the action is against two, each may plead non detinet separately ,
and a plea of property l)y one only is not demurrable. Tioyd v. Mc-
Adams, 16 111. 146. The plea of non cepit in an action of replevin in
the detinet is not proper, and if filed, furnishes a good ground for a de-

496 REPLEYIN.

murrer. Davis v. Calvert, 17 Ark. 85. As the action of replevin m
the detinet is purely statutory, the effect of the plea of non detinet is
largely controlled thereby, and to ascertain its effect, the statute in a
sriven State should be consulted.

§ 22. Arowry. An avowry in replevin is an admission of the tak-
ing, with a statement of matter in justification. In ]^ew York it is
treated, when it sets forth a conclusive bar to the action, as a regular
plea, requiring an answer, and, although it follows immediately after
a plea of property in a stranger, it is not to be treated as matter plead
to induce a return of the property, a party under such a plea being
entitled to a return without either avowry or cognizance. Peojple v.
JYew York, 2 'Wend. 644. The plea originated under the statute of Geo.
2, ch. 10, § 22, iind originally applied to cases of distresses for rent,
but has gradually been extended, so that it applies in all cases of re-
plevin where the defendant admits the taking or detention, and sets
up matter in justification. Thus, an avowry setting forth that the cattle
sought to be replevied were taken damage feasant is sufiicient, with-
out further justification [Osgood v. Green, 30 N. II. 210) ; and so is any
avowry that sets forth a taking or detention for a legal cause, or upon
legal grounds. Thus, an avowry for rent in arrear is good, but if the
defendant undertakes to set forth the lease, he must set it forth truly
'{Tice V. Norton, 4 Wend. 663 ; Taylor v. Moore, 3 Harr. [Del.] 6) ; but
an avowant caimot take cognizance as bailiff of another for rent due to
such person, where the distress was made in the name and in the right
of the avowant, notwithstanding he had authority from such person to
make the distress. Swearingen v. Magruder, 4 H. & M. (Md.) 347.
The avowry need not state the exact amount of rent in arrear. The
amount unpaid is not descriptive of the identity of the obligation, out
of which the right to the redelivery of the goods arises. Barr v. Hughes,
44 Penn. St. 516. If a defendant makes cognizance when he sliould
have avowed, the mistake is immaterial {Brown v. Bissett, 21 N. J. Law,
46) ; but if an avowry or cognizance for part of a year's rent does not
show that the residue has l)een paid, it is bad. She^yhcrd v. Boyce, 2
Johns. 446. So, the avowant must set forth the title under wliich lie
is seized {Ilopkins v. Hopkins, 10 Johns. 369) ; and a failure to do so
is not cured by the plaintiff's pleading over, or by a verdict u])on an
issue joined thereunder. Bain v. Clark, 10 Johns. 424. Where an
avowry states that the animal replevied was taken damage feasant, aiui
impounded in a public pound by the defendant, it is not necessary to
state the name of the pound-keeper, nor need it state the title of
the defendant to the close, nor its bounds, abuttals or description
{Oipson V. Bvmj), 30 Vt, 175); nor where it sets forth that notice

EEPLEYIN. 497

was given within the time prescribed by statute, is it necessary to
state the nnanner in which it was given. Keith v. Bradford^ 39 Yt.
34, Where a defendant pleads two avowries to the same count,
if one of them is held good, the defendant must prevail upon that, but
if the other is held bad upon demurrer, the plaintiff will be entitled to
recover his costs as to that avowry. Wright v. Williams, 2 Wend. 632.
No venue is necessary to a demise in an avowry for a distress. Davis
v. Tyler, 18 Johns. 490. Where the defendant in his avowry states
the precise locality, the plaintiff may traverse the place named in the
avowry, although the location is not described with certainty in the
declaration, but where the place is not traversed but issue is joined on
the tenancy, the locus in quo is rendered immaterial ; and the plaintiff
may show the taking of the goods in another place. Gardner v.
Huinjphrey, 10 Johns. 53. The plaintiff may plead several pleas to the
cognizance of the defendant {Roberts v. Tennell, 4 Litt. [Ky.] 289) ;
and may plead in bar thereto matter which shows that the defendant is
a trespasser oh initio {Kiinball v. Ada/ms, 3 N. H. 182) ; or may plead
a tender. Hunter v. LeCoiite, 6 Cow. 728 ; Bills v. Yose, 27 N. H.
212. The plea must not depart from the declaration. Thus, where
the action was for a lot of bricks, and the plaintiffs sued as partners,
and the defendant avowed the taking as the property of one of the
plaintiffs ; to which the plaintiffs plead that they were joint owners of
the property, the plea was held bad, as it should have stated that they
held it as partners, as was alleged in the declaration. Moore v. Stevens,
42 ]Sr. H. 404. When a plaintiff pleads rent in arrear, he thereby ad-
mits the title of the defendant, and he is not bound to prove it, unless
the plea is also accompanied by a plea of non tenure. Bloomer v. Juhel,
8 Wend. 448. A general replication de injuria, etc., to an avowry is bad
upon special demurrer. HopMns v. JSojykins, 10 Johns. 369.

§ 23. Plea of property. A plea of property, either in the defendant
or in a stranger, may be plead either in replevin in the cejyit or in the
detinet {Tngraham v. Hammond, 1 Hill, 353 ; Hall v. Henline, 9 Ind.
256 ; Dermott v. Wallach, 1 Black [U. S.], 96 ; Edwards v. McCurdy, 13
111. 496) ; but where pleaded, the plea must traverse the right of the plain-
tiff to the possession of the property ; for, while the title may not be in
the plaintiff", yet he may still have a right of possession, and this should
also be negatived. Rogers v. Arnold, 12 Wend. 30. Under the issue
raised by this plea, the defendant may show any legal title to the prop-
erty, no matter how it was derived. O' Connor v. Union Line, etc., Co.,
31 111. 230. Upon a plea of property, if each party succeeds in part,
each is entitled to costs. Field v. Post, 38 N. J. Law, 346. The effect
of the plea of property is to put the plaintiff upon his proof of his
VoT,. v.— 63

498 REPLEYIK

rights to the property that he seeks to recover in the action, and he
takes the burden of establishing it by competent proof before the de-
fendant is bound to introduce any proof whatever. Mollvavne v.
Solland, 5 Harr. (Del.) 10.

§ 24. Replication. The replication to an avowry or other plea
must cover all the material allegations in the pleas. Thus, if the de-
fendant pleads property in himself, he thereby avoids the injustice
of the taking, and the plaintiff's reply must state such facts as give him
the right to the possession and control of the property even against the
person in whom the legal title is vested. Dixon v. Thatcher, 14 Ark.
141 ; Prosser v. Woodward, 21 Wend. 205. Whether the want of a
replication to a plea of non cej>it or non detinet is sufficient to reverse
the judgment is perhaps questionable {Riddle v. Parhe, 12 Ind. 89 ;
Prosser v. Woodward, 12 Wend. 205), but in Ohio it has been held
not to be {Ferrell v. Humjphi'ey, 12 Ohio, 112) ; but generally it may
be said that where the defendant's plea refutes the plaintiff's right to
a recovery, the plaintiff must reply thereto {Prosser v. Woodward,
12 Wend. 205), and his replication must be broad enough to deny all
the allegations of the defendant's plea, that establish his right to retain
the projDerty as against the plaintiff. Hurlhurt v. Goodsill, 30 Yt.
146 ; Stoddard v. Oilman, 22 id. 568 ; Phillips v. Townsend, 4 Mo.
101.

§ 25. Judgment for the plaintiff. A judgment for the plaintiff
should always be rendered to the extent of the right established by
him. Therefore, where several articles are involved, he is entitled to
judgment for such as he proves title and a right of possession to
( Walker v. Hunter, 5 Cr. [C.-C.] 462) ; and the defendant will be enti-
tled to a return of the others. Wright v. Matthews, 2 Blackf. (Ind.)
187 ; Young v. Lego, 38 Wis. 206. If the goods or property named in
the writ are not taken and delivered to the plaintiff, and he prevails in
the action, the judgment should not be for costs and damages alone,
but in the alternative, that the goods or property shall be delivered to
him, or that he recover their assessed value in case a delivery cannot
he had {Cochran v. Gottwold, 41 N. Y. Superior Ct. 317; Fitzhugh v.
Wima/n, 9 ]S". Y. [5 Seld.] 559 ; Paws v. Push, 28 Barb. 157 ; Paw-
a/rk V. Zee, 14 Ark. 425 ; Berthold v. Fox, 21 Minn. 51 ; Anderson v.
Tyson, 14 Miss. 244 ; Kehoe v. Pounds, 69 111. 351 ; Bales v. Scott, 26
Ind. 202 ; Jetton v. Smead, 29 Ark. 372) ; but if the property is taken
upon the writ, a judgment in the alternative is erroneous. In case the
plaintiff had no right to the property when the writ issued, but he ac-
quired a right thereto before judgment, he is entitled to judgment in
his favor for the possession of the property, but the defendant will be

KEPLEYIN. 499

entitled to a judgment for his costs. G' Connor v. Blake, 29 Cal. 312 ;
Chissoni V. Lamcool, 9 Ind. 530. If the plaintiff recovers, he re-
covers whole damages as well as the possession of the property, or
its value in case it cannot be delivered to him. Seanicm v. Luce, 23
Barb. 240 ; Moore v. ShenJc, 3 Penn. St. 13. A judgment only deter-
mines the question as to the right of possession at the time and does
not prevent the plaintiff from bringing a new action afterward, tinder
a change of circumstances. Deyeo v. Jamison, 33 Mich. 94.

§ 26. Damages for detention. In an action of replevin, where the
property has a usable value, the value of such use during the time of
its wrongful detention should be given ; but in the absence of proof of
its usable value or of fraud, malice, negligence, or appropriation, the
damage should be the interest on the value of the property during the
time of its detention {Palmar v. Meiners, 17 Kans. 478 ; Yandle v.
Kingsbury, 17 id. 195 ; S. C, 22 Am. Rep. 282) ; but no damages what-
ever can be given against one who neither had possession of the prop-
erty or claimed any right thereto. Lodd v. Brewer, 16 Kans. 204 ;
Palmer v. Meiners, ajitej Broadioell v. Paradice, 81 111. 474. It has
been held in a Wisconsin case that the plaintiff is not entitled to a
judgment for the value of the use of the property, unless he also shows
that he was in a position to use it. Barney v. Douglass, 22 "Wis. 464.
But in the absence of malice or aggravating circumstances, the j)laintiff
is entitled to no more than the use of the property would have been
worth to him during the period he was deprived of its use by the de-
fendant. Speculative damages cannot be given, nor, under such cir-
cumstances, exemplary damages. Pouters v. Florance, 7 La. Ann. 524 ;
Butler V. Mehrling, 15 111. 488 ; Cummings v. Gann, 52 Penn. St.
484. But if there are e xtraordinary circumstances of outrage, vexation
or oppression, the jury may give exemplary damages as in trespass or
trover. Schofield v. Ferrers, 46 Penn. St. 438 ; McDonald v. Scaife, 11
id. 381. It is proper, where the fact is clearly established, to permit a
recovery for a depreciation of the market value of the property during
the period of its detention {Russell v. Smith, 14 Kans. 366) ; but if the
property advanced in value during its detention, but at the time of
judgment, was of about the same value as when seized, it is held that
the defendant cannot have the advantage of such advance by way of
damages, unless he also shows that he would have sold it for that price.
Meshlce v. Yan Doren, 16 "Wis. 319. Where property is replevied out
of the hands of an officer holding it by virtue of a legal process, he
cannot recover damages for the usable value of the property, liecause
he had no right to use it, but is restricted to nominal damages, or pos-
sibly to the interest, in certain cases, upon the value of the property.

600 EEPLEVIN.

If, however, the property cannot be returned, he is entitled to recover
the value of the property, with interest during the period of its deten-
tion. Booth V. AUeman, 20 Wis. 602. See Claj^k v. Martin^ 120
Mass. 543. Where the judgment is for the plaintiff, the damages
shoidd be assessed for the wrongful taking or detention ; but if for the
defendant, they should be assessed at the value of the property. Ken-
dall V. Fitts^ 22 N. H. 1 ; Messer v. Bailey, 31 id. 9 ; Warner v. Atig-
enbaugh, 15 S. ct K. 9.

§ 27. Jiidgment of return to defendant. In replevin except
where the defendant relies upon the naked plea of no7i cepit or non
detinet, upon a judgment in his favor, he is entitled to a judgment de
retorno habendo. In order to be entitled to such a judgment, he must
assert a right of property or of the possession of the goods in himself
{Johnson V. Howe, 7 111. 312 ; Bonner v. Coleman, 3 B. Monr. 1:64) ;
and in such a case he is entitled to an order for the return of the goods
even though the plaintiff produces evidence that the title is in a stran-
ger ( Wakhnan v. Broder, 10 Cal. 378) ; and this is so even though
the defendant has become an insolvent under the statute, or a bank-
rupt even, but upon receipt of the property under the judgment he
will be bound to turn it over to the assignee for the benefit of his
creditors, unless under the statute it is exempt from attachment or levy.
Kimball v. Thompson, 4 Cush. 441. But an officer from whose custody
property that he has no right to sell under the process is replevied, is not
entitled to a return of the goods {Saffell v. Wash, 4 B. Monr. 92) ; but
the rule is otherwise if he has authority to sell {Qwincy v. Hall, 1
Pick. 357) ; and if a return cannot be had, the damage should be as-
sessed at the amount due upon the execution, with costs {Dodge v.
Chandler, 13 Minn. 114 ; Booth v. Ahleman, 20 Wis. 21 ; Ilayden v.
Anderson, 17 Iowa, 158); nor is the defendant entitled to a return
when the goods, after being replevied, have been taken and sold
upon a valid legal process against him or for any purpose when the
sale operates to quiet his title. Thus, where non cepit and property in
a stranger was plead by the agent of the owners of property on which
salvage was due, and the court found both issues for the defendant, but
tlie property had, in the meantime, been sold for the salvage, the court
declined to order its return. Whitwell v. Wells, 24 Pick. 25. Under a
plea of non cepit alone tlie defendant is not entitled to, and cannot
have a judgment for the return of tlic goods, as his plea admits the
title and right of the plaintiff in the property {Simpson v. McFarla/ndy
18 Pick. 427 ; Whitwell v. WelU, 24 id. 25) ; but if, in addition thereto,
he pleads "property in himself or a stranger, he is entitled to the return of
the goods upon a finding in his favor upon both issues {Moulton v.

REPLEYIX. 501

Bird, 31 Me. 296 ; King v. Ramsay, 13 111. 619 ; Tuley v. Mauzey,
4 B. Monr. 5) ; and if the judgment is erroneously entered simply for
costs, the court will, upon motion, modify the entry and make it con-
form to the rights of the defendant. Sumiur v. Cook, 12 Kans. 162.
The same rule prevails when noii detinet is pleaded. Johnson v. Howe,
7 111. 342. In all cases, if the e\ddence authorizes a return, the court
may, upon verdict for the defendant, award it. Matlock v. Straughn,
21 Ind. 128. In iSTew York, under the Code, a defendant, upon a ver-
dict in his favor, cannot elect whether he will take a judgment for the
return of the property, or for its value, but must take a judgment in the
alternative for the return of the property ; or, if a return cannot he had,
for its value as assessed. Seaman v. Luce, 23 Barb. 210 ; .Dwight v.
Enos, 9 N. T. 470. At common law, the judgment was for a return.
Pannell v. Hampton, 10 Ired. 463. When a judgment in the alterna-
tive is rendered, the damages should be assessed at the entire value of
the property, even though the defendant only had a special property
therein, as he is responsible to the general owner therefor {Fallon v.
Manning, 35 Mo. 271 ; Buck v. Remsen, 34 IS". Y. [7 Tiff.] 383), and
in the absence of any evidence of malice, fraud, negligence or oppres-
sion, or other aggravating circumstances, the damages should be assessed
at the time of the taking. Berthold v. Fox, 13 Minn. 501 ; Bonested
v. Orvis, 22 Wis. 522 ; Woodhurn v. Cogclal, 39 Mo. 222 ; Gillies v.
Wofford, 26 Tex. 76 ; Garrett v. Wood, 3 Kans. 231.

§ 28. Of the verdict or finding. The jury may find for the plaintiff as
to part of the property, and for the defendant as to the balance {0' Keefe
V. Kellogg, 15 111. 347; Williams v. Beede, 15 N. H. 483), and if
there are two or more defendants one may be found guilty and the
other not guilty. Carothers v. Va7i Hagan, 2 Green (Iowa), 481. A
general verdict upon a plea of non cepit and property warrants an
entry of both issues on the record, in his favor. Rhodes v. Bunts,
21 Wend. 19; Rowan v. Teague, 24 Ind. 304. The verdict must
show what property belongs to the plaintiff, except where the whole is
found to belong to him {Dowell v. Richardson, 10 Ind. 573) ; and
where there are several issues, a finding upon one in favor of the plain-
tiff and no finding upon the others will not authorize a judgment in
his favor. Thus, where three pleas were plead : First, that the plaintiff
did not take, etc.; second, property in a stranger; and third, property
in the defendant ; and the jury found that the property belonged to the
plaintiff, it was held that this verdict did not warrant a judgment in
his favor because it did not find that the property had been taken or
detained by the defendant. Huff v. Gilbert, 4 Blackf. (Ind.) 19.
The verdict should cover all the issues essential to establish the rights

502 EEPLEVIN.

of tlie parties under the pleadings {Child v. Child^ 13 Wis. 17;
J^oUe V. Epperly, 6 Ind. 46S ; Bates v. Wilhur, 10 Wis. 415) ; but if
it is sufficient in substance, the fact that it is defective in form will
not invalidate it. Coit v. Waples, 1 Minn. 134. If it is defective in
substance the court may remand the jury, to find such a verdict as they
ought to find to settle the rights of the parties. liable v, Epperly, 6
Ind. 468.

§ 29. What judgments are proper. Where parties join as plain-
tiffs in replevin, there must be a joint finding in their favor, or the
judgment cannot be joint. Sweetzer v. Mead, 5 Mich. 107. Upon a
verdict for the plaintiff upon all the issues, he is entitled to judgment
for his damages and costs {Phillips v. Harriss, 3 J. J. Marsh. 121) ;
and a verdict for the defendant entitles him to a return of the prop-
erty, damages for its detention and his costs (Id.), and upon a nonsuit
he is entitled to the same judgment that he would have been entitled
to upon a trial {Smith v. Winston, 10 Mo. 299 ; Kerley v. Hume, 3 T.
B. Mon. 181 ; ChadwicTc v. Miller, 6 Iowa, 34) ; and if he succeeds
upon one avowry, he is entitled to judgment, although the others are
bad. JVichols v. Dusenbury, 2 !N^. Y. (2 Comst.) 283. A judgment
must be rendered according to the facts when the action was brought,
and not subject to any equitable conditions. Rose v. Tolly, 15 Wis.
443. In an action against an officer, upon a finding in his favor, a
judgment for a return of the goods will be rendered, although after
the verdict was rendered the attachment was dissolved ; as in all cases,
the judgment must be rendered in pursuance of the rights of the par-
ties as determined by the verdict and not in accordance with conditions
that may have arisen since its rendition. Damson v. Wetherhee, 2 Allen,
461. Upon a discontinuance it is held that the judgment should be for
the costs only, and not for a return. Mcllvaine v. Halland, 5 Harr.
(Del.) 220. Where there arc several pleas, and the issue is found in favor
of one upon one issue, and a judgment in favor of both for a return of
the property, although the judgment is informal, it cannot be taken
advantage of by the plaintiff. Gotloff v. Henry, 14 111, 384. After
an action is dismissed for any legal cause, the court may render judg-
ment for a return of the property, even though an answer has been
filed, but it should be done upon motion made in due season and ac-
companied with offer of proof tluit the defendant had cither a general
or special property in the goods replevied. Lowe v. Briyha/m, 3
Allen, 429.

§ 30. What judgments are not proper. A judgment that does
not conform to the rights of both parties under the verdict or finding
is improper. Thus, upon a plea of non cepit or non detinet, a verdict

KEPLEVIN. 503

for the defendant does not entitle him to a return of the property,
and a judgment for a return is improper {Brown v. Stanford, 22
Ark. 76) ; and the same is true where it appears of record that
the property has been returned by the defendant {People v. Ifiagara,
4 Wend. 217); so a judgment subject to some equitable condi-
tion, as that a certain mortgage shall be satisfied within a certain
time, is erroneous, because the rights of the parties must stand
upon the verdict or finding and cannot be made to depend upon
extraneous matters. Hose y. Tolly, 15 AVis. 443. Where service is
made upon only one of two defendants, the entry of a default as to
both is erroneous and invalidates the judgment as to both. Ouly v.
Dickinson, 5 Coldw. (Tenn.) 486. When a verdict is rendered for
the defendant and there is no other plea than no7i cepit or non detinet,
there can be no judgment for a return, and if such a judgment is
rendered, it is erroneous {People v. Niagara, 4 Wend. 217) ; but the
rule is otherwise where a plea of property is filed therewith. Under-
wood V. Wilite, 45 111. 437.

§ 31. Effect of verdict and judgment. A verdict and judgment
in replevin is only conclusive between the parties, and under the con-
ditions existing at the time when the action was brought. It does not
in any manner affect the rights of third persons in or to the property
{Edwards v. McCurdy, 13 111. 496); and it only determines the rights
of the parties under the issues raised in the action. Thus, when upon
a plea of 7ion detinet the verdict was that the defendant " did unlawfully
detain the goods," but was silent as to the ownership, it was held that
it only decided the rights of the defendant to detain the goods, and
did not affect the real title therein. Emmons v. Dowe, 2 Wis. 322.
Such a verdict only shows that for some cause the party prevailing is
entitled to the possession and is not a bar to an action involving the
question of title to the property {Moulton v. Smith, 32 Me. 406) ; and
where a judgment of return is rendered, it is conclusive that under
the issues raised the defendant's right of possession is superior to the
plaintiff's. Bath v. Miller, 53 Me. 308.

§ 32. Costs. The subject of costs, being a statutory matter purely,.
the practitioner will be compelled to consult the statutes in a given
case, and a discussion of the question here would be of no practical
value. It may be said, however, that generally the prevailing party
is entitled to his costs as a matter of right, unless the statute restricts
the matter in some way {Small v. Bixley, 18 Wend. 514) ; and if part
of the issues are found for the plaintiff and part for the defendant,
the costs will be apportioned according to the equities of the case.
Poar V. Woodbui'n, 25 Vt. 234.

504 REPLEVIN.

§ 33. Execution. An execution cannot issue in favor of the de-
fendant in an action of replevin at common law where there is a judg-
ment for a return of the property, and, unless provision is made
therefor by statute, the only remedy of the defendant is upon the
bond. A M' rit of de retorno issues in his favor upon which the prop-
erty may be taken and delivered to him, but the damages and costs
must be compensated out of the bond. Acher v. WJiite, 25 Wend.
614. But the plaintifi may have execution upon a judgment in his
favor against the defendant. Fuller v. BowTcer, 11 Mich. 204. In
some of the States provision is made by statute for the issuing of an
execution against a surety in the replevin bond when it is returned as
forfeited by the sheriff. Shute v. McMahon, 10 Ala. 76 ; WooJfolk
V. Ingra?n, 53 id. 11.

§ 34. Action on replevin bonds. In most of the States the
mode of proceeding upon replevin bonds is regulated by statute,
and it will be necessary to consult the statute in a given State
in order to ascertain how the rights of a party upon it are to be en-
forced. In some of the States, the remedy is by scire facias {Tho7np-
S071 V. Raymon, 8 Miss. 186 ; Sartin v. Weir, 3 Stew. [Ala.] 421) ; in
others, it is by action upon the bonds {David v. Bradley, 79 111. 316) ;
in others, by summary proceedings and judgment {Harher v. Arendell,
74 N. C. 85) ; while in others, an execution issues directly against
the sureties after the sheriff has returned the bond as forfeited. Shute
V. McMalion, 10 Ala. 76; Williams y. Rail, 2 Dana, 97; Frei^.
Vogel, 40 Mo. 149. Thus, it will be seen that the question as to how
the rights of the defendant in the replevin suit are to be enforced
under the bond is dependent upon the provisions of the statute
relating thereto.

§ 35. When an action lies. When the statute does not otherwise pro-
vide for the enforcement of a judgment for the defendant against the
sureties in an action, the remedy is by an action upon the bond, and, if
the bond is good at common law, it seems that the party may have his
remedy upon it although it is not enforceable in the mode provided by
statute. BroAich v. Branch, 6 Fla. 314; Mitchell v. Ingram, 38
Ala. 395.

Of course an action lies against the sureties upon a bond given in
replevin whenever there is a l)rcach of any of its conditions, and
nothing has transpired to invalidate it. Thus, an action may be main-
tained for the breach of a conditicjn to prosecute "without delay"
when there has been a delay due to the plaintiff's conduct. Oent v.
Cutis, 12 Jur. 113. A bond conditioned to prosecute the action " to
effect " means successfully, and is broken by a judgment against the

KEPLEYIN. 505

plaintiff for a return of the property. Jackson v. Hanson^ 8 M. &
W. 477. The bond is assignable by the sheriff, and the defendant in
the replevin suit may maintain an action thereon in his own name.
Sfwrt V. Ilubha/rd, 2 Bing. 349 ; Archer v. Dudley, 1 B. & P. 381 n;
and the person making the avowry may take an assignment of
the bond and maintain an action npon it without joining the
party making the cognizance (Id.), or both may take an assign-
ment and join in an action upon it. PhilUj^s v. Price, 3 M.
& S. 180. If the plaintiff does not appear and prosecute his suit
to effect according to the condition of the bond, the defendant is
entitled to an assignment of the bond, and may prosecute it accord-
ing to the condition {Dias v. Freeman, 5 T. E,. 195) ; and he may sue
as assignee of the sheriff in any court of competent jurisdiction, and
is not bound to prosecute it in the same court in which the action of
replevin is pending. Brackenhury v. Pell, 12 East, 585 ; Dias v.
Freemcm, 5 T. E. 195 ; Wilson v. Hartly, 7 DowL P. C. 461.

A bond, the condition of which is that the plaintiff shall prosecute
his suit to effect, or return the goods, is broken by the withdrawal
of the writ of replevin from the hands of the officer by the plaintiff
before the return day, and the discontinuance of the action and
the sureties thereupon become liable {Persse v. Watrous, 30
Conn. 139) ; and a condition that he shall prosecute his suit " to
effect without delay " is a substantive and independent condition,
and as material as any other. Humphrey v. Taggart, 38 111. 228.
The sureties in the bonds cannot defend upon the ground that they
were excepted to as sureties and did not qualify {Decker v. Anderson,
39 Barb. 346) ; nor that the defendant took out and recovered the costs
upon an execution upon a judgment in his favor in the replevin suit
{Kafer v. Harlow, 5 Allen 348) ; nor can the sureties question the con-
stitutionality of the law under which the bond was executed {Ma-
gruder v. Marshall, 1 Blackf. [Ind.] 333) ; nor that the judgment
against his principal was erroneous, as that the judgment was for dam-
ages instead of a return, as it should have been. Mason v. Richards,
12 Iowa, 73. The action does not abate by death, Waples v. McH-
vaine, 5 Harr. (Del.) 381. A writ retomo need not be issued as a con-
dition precedent to the bringing of an action upon the bond. It is
enough that a return was adjudged, and the order not complied with.
Peck V. Wilson, 22 111. 205. The action of replevin may be dismissed
by the consent of the defendant, but the giving of such consent does
not affect the validity of the bonds. Berghoff v. HeckwoJf, 26 Mo.
511 ; Hall v. Smith, 10 Iowa, 45.

§ 36. When the action does not lie. When the judgment in a
Vol. Y.— 64

506 KEPLEYIN.

replevin suit is merely that the defendant recover his costs, the sure-
ties in the bond are discharged and no action lies thereon. Chambers
X. Water's, 7 Cal. 390. So, an absolute release of all demands exe-
cuted by the plaintiff to the principal obligor is a discharge of the
bond. Thomas v, Wilson, 6 Blackf . (Ind.) 203. So, a surety may be
discharged by the substitution of another surety in his place and stead.
Amos v. Sinnott, 5 111. 440. So, the sureties are all discharged when
a nol j^ros. is entered as to any one of them. Harris v. Taylor, 3
Sneed (Tenn.), 536. So, it seems that the sureties are discharged by
a submission of the replevin suit to arbitration without their knowl-
edge or consent. Eldred v. Bennett, 33 Penn. St. 183 ; Pirkins v.
Rudolph, 36 111. 306. When the action is for live animals, it is a good
defense to an action upon the bonds that they died without the defend-
ant's defaidt after they were replevied and during the pendency of the
action. Carpenter v. Stevens, 12 Wend. 589 ; Melmn v. Winslow, 10
Me. 397. Generally, it may be said that an action will not lie upon
the bond when the plaintijff has done any act, or omitted to do any act
that legally tends to excuse the sureties therein, or when there is not
a breach, within the meaning of the conditions. A return of the goods
to the sheriff is no defense to an action upon the bond, which requires
a return to the party from whom they were taken, in pursuance of the
judgment of the court, and not a mere re-delivery to the sheriff.
Gould V. Warner, 3 Wend. 54.

§ 37. Amount of recovery. The sureties in a replevin bond are
only liable for the value of the goods seized, and the damages. Hunt
V. Round, 2 Dowl. P. C. 558 ; Gingell v. TurnluU, 3 Bing. N. C.
881; Odell v. Hole, 25 111. 204; Thomas v. Stafford, 46 Me. 408.
And never for a greater sum than the penalty of the bond and the costs
of suit upon it. Hefford v. Alger, 1 Taunt. 218. Interest is recov-
erable where the property has not been returned. Hoplcins v. Laddy
35 111. 178 ; Caldwell v. West, 21 N. J. Law, 411,; Leighton v. Brown^
98 Mass. 515 ; Ackermam> v. Ki/ng, 29 Tex. 291.

EESCISSION OF mSTKUMENTS. 507

CHAPTER CXVIII.

EESCISSION OF INSTRUMENTS.
ARTICLE I.

or KESCISSIOX IN GENERAL.

Section 1. Definition and nature. To rescind a contract is to
abrogate or to annul it. 2 Boiiv. Law Diet. 4:6S. Rescission may
take place by mutual consent, and this consent may be inferred from
the acts of the parties. It may take place as the act of one party, in
consequence of a failure to perform by the other ; and it may take place
on account of fraud, even though the contract be partially executed.
2 Bouv. Law Diet. 468, and cases cited.

The rescission of a contract may be effected, not only by words or
a direct notice, but by any act of either party which necessarily pre-
vents the performance of the mutual understanding. Siiher v. Pullin^
1 So. Car. 273. The consent of the parties to a rescission may be implied
from the circumstances. Wheeden v. Fiske, 50 N. H. 125. A notice
to the manufacturer by the employer, that if the articles were not de-
livered by a certain limited time, he would make a contract with other
parties, operates, after the expiration of the limited time, as a rescis-
sion of the contract by the employer so far as to amount to a refusal
to accept a delivery under it. Ackerman v. Voorhies, 1 Jones & Sp.
(N. y.) 487. A contract which renders impossible the performance of
a previous contract between the same parties and on the same subject-
matter rescinds the previous contract. Paul v. Meservey, 58 Me. 419.
But application for the rescission of a contract, by mutual consent, is
not jper se a rescission, nor does it imply any breach or abandonment of
the contract on the part of the applicant. Picot v. Douglass, 46 Mo.
497. Nor will a negotiation for the variation of an agreement amount
to a waiver of it, unless the circumstances show an intention of the parties
that there should be an absolute abandonment and dissolution of the
contract. Murray v. Harway, 56 N. T. (11 Sick.) 337. The spolia-
tion of an instrument by a stranger, without the knowledge or consent
of the parties in interest, cannot change the rights or liabilities of such
parties. Piersol v. Grimes, 30 Lid. 129. And the question whether

508 KESCISSION OF INSTRUMENTS.

the ■\\'itbdi'awal of certain shares of stock from the hands of a third
party, followed by a resale at the highest market price, was intended
as a rescission of a contract to buy for a stipulated price, is a question
for the jury. Friest v. Wheeler, 101 Mass. 479.

The rescission of a contract requiring certain formalities to be gone
through with by the party making the same is as much a matter of
business as that of making the contract itself ; and, therefore, if done
on Sunday it is illegal and void. Benedict v. Bachelder, 24 Mich.
425 ; S. C, 9 Am. Rep. 130. Where a party enters into a contract
with the government to furnish it a certain number of horses, a change
made by the government in a material part of the contract amounts to
a renunciation of it. Wormer's Case, 4 Ct. of CI. 258.

One who claims to rescind a contract must give notice, 2:)romptly on
discovering the facts which entitle him to do so, and before it is too
late to put the other party in statu quo. But, whether the time taken,
under the circumstances of the case, was reasonable, should be left to
the jury, without an expression of opinion by the court. Parmlee v.
Adolph, 28 Ohio St. 10. If such notice is given, the party who claims
to rescind is liable for such damages and loss only as the other party
has suffered by reason of such rescission, and it is the duty of the latter,
upon receiving such notice, to save the former, as far as it is in his
power, all further damages, although the performance of this may call
for affirmative action on his part. Dillon v. Anderson, 43 N. Y. (4
Hand) 231. But the necessity of giving notice upon the rescission of
a contract exists only where the party rescinding has received some
benefit or advantage from the contract, which he must surrender before
he can claim to rescind. Ripley v. Ilazleton, 3 Daly (IST. Y.), 329.

The rescission of a contract for fraud must be claimed within a rea-
sonable time, promptly upon information had of its violation or fraud-
ulent misuse or diversion, or the right will be lost by acquiescence.
Mernphis <& Charleston E. R. Co. v. N'eighhors, 51 Miss. 412 ; Barfield
V. Price, 40 Cal. 535 ; lieald v. Wright, 75 111. 17. But it seems that
as a general rule, a delay to rescind, after discovery of the fraud, does
not operate as a waiver of the right, or as a confirmation of the fraud-
ulent contract. Baler v. Lever, G7 N. Y. (22 Sick.) 304 ; S. C, 23
Am. Rep. 117.

"Where a party seeking to rescind a contract, on the ground of fraud,
acts without unnecessary delay, and restores or offers to restore that
which he has received, it is no defense that the wrong-doer has, by his
own act, made a full i-cstoration impossil)le on his part, or has entered
into obligations to others. lie cannot prevent a restoration, as far as
is within his power, by showing that he has himself done acts which

KESCISSION OF INSTKUMENTS. 50&

prevent his being restored to his original position. Hammond v. Pen-
nock, 61 N. Y. (10 Sick.) 1-45. Where the adverse party upon rescis-
sion is entitled only to a refunding of money, and no action or right ia
otherwise involved, a delay of only three days, even with the fullest
knowledge, would be immaterial as bearing upon the question of acqui-
escence or of waiver of fraud. 2fich., etc., R. R. Co. v. DiinKam,, 30
Mich. 128.

When a party rescinds a contract, whereby he is induced to accept
unimproved lands in settlement of a debt, through the fraudulent rep-
resentations of his debtor, made with a knowledge of their falsity, and
upon which the creditor relied, he will be entitled to the interest from
the time of the previous settlement, the same as though the contract of
purchase had never been made, and will not be restricted to the time
when he tendered a reconveyance, he having received no rents and
profits to be deducted. Warren v. Tyler, 81 111. 15.

One desiring to rescind a contract for fraud in its inception must re-
store to the other party any valuable article received as its considera-
tion. In order to make an attempted rescission effectual, the par-
ties must be placed in statu quo. Hougfdon v. Nash, 6-4 Me. 477 ;
Van Trott v. Weise, 36 Wis. 439. Or he must sufficiently excuse
himself from such duty. Jarrett v. Morton, 44 Mo. 275 ; Johnson v.
Walker, 25 Ark. 196 ; Ellington v. Kiiig, 49 111. 449. So, one who
rescinds a contract is bound to return a note which he received as con-
sideration for the contract ; and the fact that the maker of the note is
insolvent makes no difference. Spencer v. St. Clair, 57 N". H. 9.

A party cannot affirm a contract in part, and rescind it as to the res-
idue. If he rescinds, he must do so in toto. He must put the oppo-
site party in as good condition as he was before the sale, by a return
of the property purchased, unless it is entir y worthless. Wolf v.
Dietzsch, 75 HI. 205 ; Glassell v. Thomas, 3 Leigh (Ya.), 113. So, if
a party repudiates a contract on the ground that it is unlawful, he must
repudiate aU contracts of the like kind with the same party. He can
not claim the benefit of such as are profitable, and repudiate those that
are unprofitable. Wolcott v. Heath, 78 111. 433.

The release of a party from the performance of a contract constitutes
a sufficient consideration for his promise to account witli the other party
for moneys paid by the latter under the contract. Cutter v. Cochrane,
116 Mass. 408. And the rules allowing rescission of contracts apply to a
contract of rescission. .Vs, where the purchaser of baiTels found fault
with their quality, and the seller, believing them defective, agreed to a
rescission of the contract, and took back the barrels, giving his note for
the proper repayment, it was held that, upon discovering that he had been

510 KESCISSION OF INSTRUMENTS.

misinformed, and giving prompt notice, he might rescind his agree-
ment to rescind the sale, and prove the good quality of the barrels in
defense to the buyer's action on the note. Byers v. Ghapin, 28 Ohio
St. 300. The right of a party to rescind a contract on the ground of
mistake or fraud does not accrue before the discovery thereof. La7ie v.
Latimer, 41 Ga. 171.

Where, in a contract for service, the employer prevents the other
party from performing the contract, it is optional with the latter to
rescind the agreement, and resort to an action for work and labor
performed. Connolly v. Devoe, 37 Conn. 570. But, a contract can,
ordinarily, be rescinded only by mutual consent of the parties to it.
Therefore, a partial failure of performance, which may be compensated
in damages, does not put an end to the contract, or operate as a rescis-
sion. Gatlin v. Wilcox, 26 Ark. 309. And a party cannot generally
rescind a contract, unless the other party, as well as himself, can be
restored to the condition in which he was before the contract was made.
If one of the parties has derived an advantage from a partial perform-
ance, he cannot hold this and consider the contract as rescinded, because
of the non-performance of the residue, but must do all that the contract
obliges him to do, and seek his remedy in damages. Burge v. Cedar
Rapids, etc., R. R. Co., 32 Iowa, 101 ; Weintz v. Ilafner, 78 111. 27.
And where there has been indulgence on both sides, — as allowing the
time fixed for payment of purchase-money and delivery of the deed to
pass without payment or tender, and to become indefinite, — one party
cannot suddenly rescind the contract without notice to the other.
Hatton V. Johnson, 83 Penn, St. 219. Mental feebleness, not amount-
ing to an absolute incapacity to contract, is not sufiicient to justify a
rescission of a contract honestly entered into. Graham v. Castor, 55
Ind. 559. And ignorance of a party's legal right at the time he makes
a contract is no ground for avoiding it. Ilutton v. JEdgerton, 6 S.
C. 485.

AETICLE IL

IN WHAT CASES DECREED.

Section 1. In general. A court of equity wiU not rescind a contract
Uiiless fraud appear, (jr there has been a plain and palpable mistake affect-
i,ig the very substance of the suljjcct-matter of the contract. Scott v.
PerkiMS, 4 "W. Va. 591 ; Thompson v. Jackson, 3 Rand. (Va.) 504 ;
Harrison v. Stowers, Walk. (Miss.) 165. Especially an agreement of
coiapromise ought not to be disturbed, except for fraud, imposition or
mistake. Shugart v. Thompson, 10 Leigh (Va.), 436. But a com-

KESCISSION OF INSTRUMENTS. 611

promise, induced by fraud and deception, will not prevent tlie rescis-
sion of a contract. Carr v. Callaghan, 3 Litt. (Ky.) 365.

The demand or right to rescind a contract on the ground of fraudu-
lent misrepresentation or concealment, even when unaccompanied by
any circumstances of suspicion like those arising from long and unex-
plained delay to complain or prosecute, or otherwise, is one which must
in all cases be clearly and satisfactorily established in proof. It is
analogous to the case where the object is to turn a deed al)Solute on its
face into a mortgage, or to reform a written instrument on the ground
of mistake, and requires nearly, if not the same degree and kind of
evidence. Mvrphy v. Dunninrj, 30 "Wis. 296. It must be clear that
there has been such a misstatement of the facts as to mislead the in-
jured party, and to induce him to enter into the transaction ; and he
must be prompt to avail himself of the objection as soon as it is dis-
covered. He must not wait to experiment, and see whether the trans-
action may not after all turn out well. Acquiescence for a little time,
in such cases, is condonation. Morgan v. Wew Orleans, etc., JR. R.
Co., 2 Woods, 244 ; Ludington v. Renick, Y W. Ya. 273 ; Treacij v.
Recker, 51 How. (N. Y.) 69.

Where a party seeks to rescind a contract entered into on fraudulent
representations, he must return or offer to return the property acquired
by such contract within a reasonable time, and in such a way as to place
the property and the vendor substantially in the same condition as at
the time the property was received. Manahan v. Noyes, 52 N. H. 232 ;
Lane v. Latimer, 41 Ga. 171 ; Skinner v. White, 17 Johns. 357 ; Pint-
ard V. Martin, 1 S. & M. Ch. 126 ; Hanson v. Field, 41 Miss. 712.
This rule will be applied to a contract under seal to convey a half inter-
est in a stone business, executory on one side and executed on the other.
Bell V. Hartmnan, 9 Phil. (Penn.) 1. It will also be applied to a pur-
chase of live-stock, provisions, etc., by a person not known to be of
unsound mind, the articles having been paid for and enjoyed, and labor
and services having entered into the consideration, and no fraud, undue
advantage, or other imposition being shown. The contract will not be
set aside either by the alleged limatic or her representative. Young v.
Siemens, 48 N. H. 133 ; S. C, 2 Am. Rep. 202. A party who has retained
possession of a portion of lands received by him in a contract of exchange
will not be permitted to rescind on the ground of fraud, without account-
ing for the rents and profits. Underwood v. West, 52 111. 397. And
where, in a contract, a mode of rescinding it is provided, as by giving
notice, and repaying the money received, the party cannot rescind it in
any other way. McKay v. Carrington, 1 McLean (C. C.)j 50. Lapse of
time, and the death of the parties to a deed, have always been considered

512 KESCISSION OF INSTEUMENTS.

in equity to be entitled to great weight, and almost controlling cir-
cumstances in cases where it is attempted to set aside a conveyance by
a child to his parent. Jenkins v. Pye, 12 Pet. 241. And, generally,
where a party intends to rescind a contract, on the ground of a viola-
tion of it, he must do so promptly on the first knowledge of the breach ;
and if, after knowledge of the breach, he negotiates with the other
party, and suffers the work to proceed, he waives his right to rescind
the contract. Lawrence v. Dale, 3 Johns. Ch. 23 ; Ayres v. Mitchell,
3 S. & M. 683. See, also, Tilton Safe Co. v. Tisdale, 48 Yt. 83. A
court of equity may refuse to rescind a contract where it would refuse to
enforce a specific performance of it at the suit of the other party.
Beck V. Simmons, 7 Ala. Tl ; Watkins v. Collins, 11 Ohio, 31 ;
Jackson v. Ashton, 11 Pet. 229. The rescission of an executed
contract will not be granted on the ground of a mere mistake of law,
where there has been no fraud, concealment, or mistake of fact. Brown
V. Armistead, 6 Rand. (Ya.) 594 ; Gunter v. Thomas, 1 Ired. Ch. 199 ;
Catlin V. Fletcher, 9 Minn. 85.

Equity will set aside an agreement in which an unconscionable advan-
tage has been taken of the imbecility of one of the parties. Harris
V. Wamsley, 41 Iowa, 671 ; Gihson v. Fifer, 21 Texas, 260 ; Garrow
V. Brown, 1 Wins. (N. C.) ^o. 2, (Eq.) 46 ; Whipple v. McClure, 2
Root (Conn.), 216. Especially if a confidential relation exists between
the parties. Futrill v. Futrill, 6 Jones' Eq. (K. C.) 337 ; White-
horn V. Hines, 1 Munf. 557 ; Kennedy v. Kennedy, 2 Ala. 571. So,
where a person, whose mind was very weak in consequence of habitual
intoxication, sold his whole property to his brother, in whom he put
great confidence, and there was no proof of a valuable consideration,
the conveyance was set aside. McCraw v. Davis, 2 Ired. Ch. 618;
Bvffalow V. Bvffaloio, 2 Dev. & Batt. Ch. 241. But equity will not
set aside a contract on the ground of a great superiority of intellect in
one of the parties, if the other party was of legal capacity to contract.
Thomas v. Shejpjpard, 2 McCord's Ch. (S. C.) 36. And the mere fact
that an agreement is improvident is no ground for setting it aside.
Green v. Thoiajjson, 2 Ired. Ch. 365.

"Where a contract is silent as to its duration, either party may termi-
nate it at pleasure, and parol evidence that the contract was for a
specific time is inadmissible. Irish v. Dean, 39 Wis. 562. An order
for materials and work may be revoked at any time before acceptance,
and, where a revocation is shown, it will be presumed to have been in
time until the contrary appears. Johnson v. Fllkington, 39 Wis. 62.

AVhere a vendee of land, after full knowledge of his right to ask a
rescission of the contract, has transferred the possession, rescission will

EESCISSION OF mSTRUMENTS. 513

not be granted. Collier v. Thompson^ 4 Monr. 81. But equity will
relieve against a contract where the purchaser was greatly embarriissed
and the vendor availed himself of that embarrassment to exact ciii ex-
orbitant price. Hough v. Hunt, 2 Ham. (Ohio) 495. A bill in etpiijy
will not lie to compel the surrender or cancellation of an overdue
promissory note and mortgage on the ground that the consideration
thereof was the promise of the payee to forbear to prosecute for an
embezzlement. Atwood v. I^isk, 101 Mass. 363. And defect of title
will not alone authorize a rescission, where the conveyance is executed
and the vendee is in possession, because he has an adequate remedy at
law on the covenants contained in his deed. Upshaw v. Dehow, T
Bush (Ky.), 442.

Where subscriptions to public improvements are made with reference
to their location, any subsequent material change of location, without
the consent of a subscriber, releases him from his subscription.
Pratt V. Canton Cotton Co., 51 Miss. 470.

§ 2. For error or mistake, Nothing is clearer than the doctrine
that a bargain, founded in a mutual mistake of the facts constituting
the essence of the contract, or founded upon representations of the
seller, material to the bargain, and constituting the essence thereof,
will avoid it although made by innocent mistake. Daniel v. Mitchell,
1 Story (C. C), 173 ; Glassell v. Thomas, 3 Leigh (Va.), 113 ; Hanv-
mon V. Allen, 2 Sumner (C. C), 387. So if both parties to a contract
for the sale of land are under a mistake with regard to the vendor's
title, which was supposed to be perfect, but proves void, a court of
equity will relieve the vendee from the contract. Hadlock v. Wil-
lianis, 10 Yt. 570. So, too, a contract entered into imder a mutual
mistake or misconception of the rights of the parties, amounting to a
mistake of law, by which the object of the contract is defeated, may
be set aside. Champlin v. Laytin, 1 Edw. Ch. 467. But where a
party enters into an agreement with a full knowledge of all the facts,
he will not be relieved against it because of his ignorance of the legal
consequences of them. Hinchman v. Emans, Saxton (I^T. J.), 100. So
a contract, entered into under a mistake in the construction of a will,
will not be relieved against on that ground alone. Wintermute v.
Snyder, 2 Green's Ch. 489. So, too, a court of equity will not rescind a
contract made in compromise of a pending suit, on account of a mis-
take of law, which was common to both parties, as to the validity of
the consideration of the note on which the suit was founded, nor on ac-
count of fraudulent representations, as to the consideration of the note
unless precisely alleged, and clearly and fully proved. Bell v. Laio-
nnce, 51 Ala. 160. But a party contracting under a clear and unequivo-
YoL. Y.— 65

5U KESCISSION OF mSTRUlIENTS.

cal mistake of his legal rights, where siich rights are of a doubtful
character, will be relieved in equity, nor is a party estopped from as-
serting his rights to property, because he stood by and saw it sold with-
out objection, and acquiesced in the sale for some time, under a clear
mistake as to his own title, which was of a doubtful character, and al-
though acquainted with all the facts upon which such title arose.
Lammot v. Boiuly, 6 Harr. & J. (Md.) 500. "Where the facts upon
which a contract is based are equally unknown to botli parties, and they,
being fully aware of the uncertainty, exercise their own judgments
neither can be relieved against the contract, on the ground of a mis-
take of the facts. Crowder v. Langdon^ 3 Ired. Ch. 476 ; Hunter v.
Goudy, 1 Ham. (Ohio) 449. A misunderstanding between the parties
to a parol contract to furnish a lot of " square-edged " lumber, as to
whetlier boards and planks "square-edged" at one edge and "wany-
edged " at the other, were square-edged lumber, will not give either
party the right to rescind. 3Iontgo7nery v. Richer^ 43 Yt. 165.

A vendee may have rescission of the contract on the ground of mis-
take, when it appears that his vendor supposed that he had a title when
he had none ; the vendee cannot be compelled to rely on his warranty,
and to pay the purchase-money. Bowlin v. Pollock^ % Monr. (Ky.)
26. And wliere a party, from an error of his counsel, binds himself
beyond his liability, he may have relief in equity, Fitzgerald v. PecTc,
4 Litt. (Ky.) 125.

A conveyance will not be set aside in equity on the ground of mistake,
where it is not evident that the grantor acted under a mistake in re-
gard to the property conveyed ; nor will proof of admissions by the
defendant that there was a mistake, and promise to reconvey, be suf-
ficient U) set aside the deed, Mdien it is clearly estabhshed that the
grantor made no mistake, and never intended that the grantee
should reconvey. Tombs v. Tucker^ 6 Mo. 16. A sale cannot be set
aside on the ground that the parties were under a mistake as to the
ability of the vendee to pay, he being in fact insolvent. Lu])in v.
Marie^ 6 Wend. 77. Equity will not relieve against a contract of sale,
because a fact lying in doubt, in relation to the subject-matter of the
sale, turned out differently from what was expected by both parties.
Ashcom V. Smith, 2 Penr. & W. 211.

§ 3. For fraud. In equity, nothing can be called fraud or treated
as fraud, except an act which involves grave moral guilt. It does not
recognize any thing as " constructive fraudP Smallcoinhe' s Cam, L.
Pt., 3 Eq. 761). ]3ut sec ante, tit. Fraud.

Fraudulent misrepresentation and concealment, by a vendor of land,
as to the iiivtun;, quality and quantity thereof, affecting the who^.c sub-

RESCISSION OF INSTRUMENTS. 515

ject-matter of the contract, entitles the vendee to a rescission of the
contract, and he will not be put to his remedy at law for compensation
in damages. Sjpence v. Duren, 3 Ala. 251 ; Stephenson v. Taylor, 1
A. K. Marsh. (Ky.) 235 ; Boyce v. Grundy, 3 Pet. 210. It is an
ancient and well-established principle, that whenever siqjpressio ver\
or suggestio falsi occurs, and more especially both together, they afford
sufficient ground to set aside any release or conveyance. Smith v.
Richards, 13 Pet. 26 ; Torrey v. Buck, 1 Green's Ch. 366. But a
party defrauded in a contract may stand by it, even after he discovers
the fraud, and recover damages resulting from the fraud, or he may
rescind the contract and recover back what he has paid or sold. Per-
formance of it on his part, although with a knowledge of the fraud
acquired subsequently to the making, and previous to the performance,
will not bar him from any remedy for the recovery of damages.
Parlxer v. Marquis, 64 Mo. 38. Whether a party misrepresenting a
fact knew it to be false or made the assertion without knowing whether
it were true or false, is wholly immaterial; for the affirmation of what
one does not know or believe to be true is equally, in morals and in
law, as unjustifiable as the affirmation of what is known to be posi-
tively false, and even if a party innocently misrepresents a fact by
mistake, it is as equally conclusive, for it operates as a surprise and
imposition on the other party. Smith v. Richards, 13 Pet. 26 ;
Shackelford v. Handley, 1 A. K. Marsh. 496. But a misrepresentation
by a vendor to be ground for the rescission of the contract must be in
reference to some material thing unknown to the vendee, either from
not having examined, or for want of opportunity to be informed, or
from entire confidence reposed in the vendor, and his remedy must be
pursued in good time after the injury is discovered. Halls v. Thomp-
son, 1 S. & M. 443 ; Smith v. Richards, 13 Pet. 26. It must not be a
mere matter of opinion equally open to both parties for examination
and inquiry, and where neither party is presumed to trust to the other,
but to rely on his own judgment. Smith v. Richards, 13 Pet. 26.
So, a false assertion by the vendor of land, in a matter of opinion merely,
as concerning the value or the future income, where there is no
warranty and no misrepresentation of facts, is no ground for relief.
SpeigUmyer v. Crawford, 6 Paige's Ch. 254. So, too, a mere matter of
opinion expressed by a vendor of land, in good faith, in respect to the
title to the land sold by him, and the probable decision of the court
thereon, should it be contested, is not ground for the rescission of the
contract, because it turns out not to be correct, there being no particu-
lar confidential relation subsisting between the parties. Maney v.
Porter, 3 Humph. (Tenn.) 847. To entitle a purchaser to rescind his

516 KESCISSION OF INSTRUMENTS.

contract upon the ground of material misrepresentations made by the
vendor as to the title, it must appear that he was actually misled by
them. Gunhy v. Sluter^ 44 Md. 237; Halls v. Thomjpson, 1 S. &
M. 443. If he was misled by them he is entitled to rescind the con-
tract, although the party making the representations did not know at
the time of making them that they were false, but made them recklessly
and without any knowledge as to the facts represented in a manner
calculated to induce a belief in them. Parinlee v. Adolph, 28 Ohio
St. 10. But while, in case of executed contracts, the general rule is
that to obtain rescission, the party complaining must allege and prove
a distinct case of fraud, where fraud is the ground relied on for relief,
yet, in cases of executory contracts, equity will not assist a party who
has, even by innocent misrepresentations, induced the other party to
act. Matthey v. Wood, 12 Bush (Ky.), 293, But as to executed con-
tracts to justify a court of equity in rescinding them upon the ground
of fraudulent false representations in procuring tliem, there must be
clear proof that the party charged with the false representations, knew
them to be false. Walker v. Hough, 59 lU. 375.

One seeking to rescind a contract on the ground of fraud must offer
to restore benefits derived therefrom {Sanborii v. JSatchelder, 51 N.
H. 426) ; unless the one seeking to rescind is unfit from mental and
physical incapacity to conduct business of any kind, to the knowledge
of the other party who took advantage of his weakness. Martin v.
Martin, 35 Ala. 560. And generally one who proposes to disaffirm a
contract on the ground of fraud, which induced him to enter into it,
must do so at once, upon the discovery of the fraud. Bruce v. Daven-
port, 1 Abb. (N. Y.) App. Dec. 233 ; S. C, 3 Keyes, 472 ; Carroll v.
Rice, Walk. (Mich.) Ch. 373 ; Disbrow v. Jones, Harr. (Mich.) Ch.
102. And where a party who seeks a rescission of a contract, has not
used prompt action, and pleads ignorance in excuse, he must show
that it was of such as lie could not have known by the use of a reason-
ably active diligence. Parks v. Evansville, etc., li. R. Co., 23 Ind.
567 ; Street v. Dow, Ilarring. (Mich.) Ch. 427. The maxim lex ne?ni-
nem cogit ad vana, excusing the vendee from offering to return
a worthless thing when electing to rescind the contract of sale
thereof, does not apply to a rescission of a sale of stock of an
alleged insolvent company. The vendor should have the option to
join in the rescission and take back the property at the earliest
period ; he must have notice, which he has upon tendering the
thing sold, and the price demanded. Beetem v. Burkholder, 69 Penn.
St. 249.

To set aside a sale for a inere inadequacy in price, the inadequacy

RESCISSIOX OF mSTPtUMENTS. 517

must be shown to be so gross as to be proof of fraud, or to shock the
judgment and the conscience. Marlatt v. Warwick, 3 C. E. Green
(N. J.), IDS ; Chaires v. Brady, 10 Fla. 133 ; llorriso v. PhiUiler, 30
Mo. 145. Inadequacy of consideration, coupled with the fact that
the parties stand in a fiduciary rehition to each other, is such evidence
of fraud as a court of equity will redress. Coffee v. Muffin, 4 Coldw.
(Tenn.) 487; Maddox v. Sionmons, 31 Ga. 512. So, where a son
acquired control over his father, who was old and imbecile, and, under
suspicious circumstances, obtained a deed for all the father's lands at an
inadequate price, giving his note for the amount, a court of equity will
order the deed to be canceled, at the suit of other heirs. Hartly v.
Estis, 1 Phill. (^. C.) Eq. 167. So, too, where a woman deserted by
her husband had obtained permission from the court to transact busi-
ness in her own name, and though not insane, was greatly incapacitated
from attending to business by mental distress, a court of equity set
aside a conveyance of land then made by her, the price paid being so
grossly inadequate as to shock the conscience. Perkins v. Scott, 23
Iowa, 237. But if the consideration of a conveyance is valuable, equity
will not consider whether it is adequate at the suit of a party who paid
for the same land a very trifling sum much less than the defendant.
Miller v. Fraley, 23 Ark. 735.

It is an established doctrine, founded on a great principle of public
policy, that a conveyance obtained by one whose position gave him
power and influence over the grantor, without any proof of fraud, shall
not stand at all, if without consideration ; and that where there has
been a partial or inadequate consideration, it shall stand only as a secu-
rity for the sum paid or advanced. Futrill v. Futrill, 5 Jones' Eq. (N.
C.) 61 ; Harding v. Wheaton, 2 Mas. (C. C.) 378 ; Whelan v. Whelan,
3 Cow. 537. And, generally, it is a principle of equity, that one stand-
ing in a confidential relation toward others cannot hold substantial ben-
efits which they may have conferred on him, unless they had competent
and independent advice in conferring them ; and, in cases to which this
principle applies, the age and capacity of the party conferring the ben-
efit are of little importance. Rhodes v. Bate, L. R, 1 Ch. 252 ; Hark-
ness v. Eraser, 12 Fla. 336 ; Kennedy v. Kennedy, 2 Ala. 571. So,
where a son living with his mother (a woman of weak intellect), hav-
ing the management of her affairs, and habitually controlling her con-
duct, used a bond that had been imfairly obtained from her ^vithout
consideration, and which had been paid by others to him, as the means
of obtaining from her a conveyance of a slave, the court will compel
its surrender for cancellation. Oldham v. Oldham, 5 Jones' Eq. (N.
C.) 89. And where children, taking undue advantage of their father,

518 KESCISSIOIvr OF INSTEUMENTS.

who was aged and imbecile, hj practicing npon a groundless fear on his
part that his wife was dissipating his property, induced him to convey
all his property to such children, in consideration of a small annuity,
the court set aside the conveyance. Whelan v. Whelan, 3 Cow. 53Y.
So, too, where the confidential agent of an aged woman, the manager
of all her affairs, took from her a bond to secure an alleged indebted-
ness without rendering a full account and without giving her an oppor-
tunity dehberately to examine into the dealings, such bond should
only stand as a security for what might be due upon taking an account
in the court. Franklin v. Ridenhour, 5 Jones' Eq. (N. C. ) 420. But
the relationship between a vnother-in-law and her son-in-law will not
be presumed to be such as would occasion any confidence between
them ; in such case there must be a distinct allegation of confidential
relations and evidence from which such confidential relations, between
them, can be inferred. FisTi v. CJiland, 33 111. 238.

One who would otherwise be entitled to set aside a contract for fraud,
cannot do so, if, after discovering the fraud, he has acted in a manner
inconsistent with the repudiation of the contract. Ex joarte Briggs
L. E., 1 Eq. 483; Hanson v. Field, 41 Miss. 712.

A conveyance obtained, without sufficient consideration, by a person
resorting to undue influences or practicing fraud or deception, will
generally be set aside. But, in order to avoid a grant, on the ground
of undue influence, it must be shown that the influence existed and
was exercised for an improper purpose. Txirner v. Turner, 44 Mo.
535. But in a suit to set aside a deed made by a person unable to read,
for misrepresentations as to its contents, and its purport and effect, the
burden of proof is upon the defendant. Hyer v. Little, 20 N. J. Eq.
443.

Equity and law have concurrent jurisdiction in cases of fraud, and
the former will not refuse relief upon such ground because there is an
adequate remedy at law. Griffi^i v. Shetoe, 30 Ga. 300. A court of
equity will order a surrender and cancellation of a policy of insurance
alleged to have been obtained by fraud, and held by the promisee, upon
which no action has been brought. Globe Mutual Life Lns. Co. v.
Reals, 48 How. (N. T.) 502. It will relieve against a judgment which
was obtained by fraud. Griffin v. Shetoe, 30 Ga. 300, It will set aside
a conveyance which was obtained by undue influence from a grantor of
weak mind, the grantee having failed to perform his part of the con-
tract. Gibson V. Fifer, 21 Tex. 260. It has jurisdiction to declare a
conveyance void, which was made in fraud of the rights of a judgment
creditor; and this jurisdiction may be exercised in favor of a purchaser
under an execution sued out in favor of such creditor. Murphy v.

EESCISSION OF INSTRUMENTS. 519

Orr, 32 111. 489. See too, Wood v. Barker, L. R., 1 Eq. 139. It
will order a deed to be canceled, the wife's acknowledgment of which
was procured by false representations, and it will enjoin a justice enter-
ing up a judgment bond to secure the unpaid purchase-money, from
proceeding against the land on his judgment. Jewett v. Linherger, 3
Pitts. (Peim.) 157. It will set aside as fraudulent an absolute deed of
sale of personal property, on the evidence of one of the grantors, cor-
roborated by circumstances. Brown v. Molineaux, 21 Graft. (Va.)
539. It will set aside a deed fraudulent on the part of the grantor
though the grantee be a honajlde purchaser, and ignorant of the fraud,
Hildreth v. Smids, 2 Johns. Ch. 35. It will set aside a fraudulent
mortgage, even though the plaintiff is in possession, and can maintain
such possession against the mortgagee by action at law. Marston v.
BracTcett, 9 N. H. 336. And where a vendor of land falsely repre-
sents that certain land which he points out to the vendee is a part of the
tract offered by him to be sold, it is a fraud which will authorize the
court to decree a rescission of the contract. Fisher v. Prohart, 5
Hey. 75. But where both parties to an executory non-negotiable con-
tract for the sale and transfer of personal property have failed to perform
any of the stipulations of the contract, neither party can make the
mere fact of non-performance ground for the interposition of a court
of chancery to declare the contract null and void. Misso^iH River,
etc., Co. V. Commissioners., 12 Kan. 482. A purchaser for value can-
not require a voluntary agreement affecting the land purchased to be
delivered up to be canceled. DeHoghton v. Money, L. E., 1 Eq. 154.
And a contract, the performance of which is secured by bond with suf-
ficient sureties, will not be rescinded because of the insolvency of the
contractor, nor will his misrepresentations as to his solvency operate to
annul the bond. Waco Tap. R. R. Co. v. Shirley, 45 Tex. 355.

§ 4. For error of scrivener. "Where a mistake is made by a scriv-
ener in di-afting an instrument so that it does not express the agree-
ment between the parties, the instrument will be reformed, but the
mistake will be no ground upon which a rescission of the instrument
can be demanded ; especially if the party in whose favor the mistake is
made offers to correct it. So, it is no ground for the rescission of a
contract for the sale of land intended to be sold, that the land is incor-
rectly described in the bond for title, the vendor being willing to cor-
rect it. Evans v. Boiling, 5 Ala. 550. Nor will a sale of land be re-
scinded for a mistake in the conveyance, which the vendor offers to
correct. Cates v. Ral'ujh, 1 Monr. (Ky.) 164.

§ 5. Sealed instrnments. It may be laid down as a general rule,
that where any description of writing, evidencing liability on the part

520 KESCISSION OF mSTRUMENTS.

of the maker, whether it be commercial paper, a specialt}' or other form
of legal obligation, has become extinguished or discharged by subse-
quent events, as by payment or otherwise, so that the wi'iting has be-
come functus officio, but where its existence in an uncanceled state
might subject the maker to vexatious litigation, at a distance of time
where the evidence of such extinguishment or discharge may have been
lost or so obscured as to render the party less al)le to repel the claim, in
all these cases, a court of equity will extend its preventive justice to
call out of existence an instrument which ought not to be used or en-
forced, and when it is against conscience to permit the party holding it
to retain it. Garrett v. Mississippi di Alaba7na E. H. Co., 1 Freem.
(Miss.) Ch. TO ; Bromley v. Holland, 1 Ves. 20. Courts of equity have
power, in proper cases, to rescind conveyances and agreements, and
will grant such relief when necessary to prevent a fraud upon the
party seeking it ; and will especially protect in this manner aged and
infirm persons who have conveyed property to their children in con-
sideration of support and maintenance, where the grantees neglect to
perform their duty in that respect. Bogie v. Bogie, 41 "Wis. 209 ;
Jackman v. Mitchell, 13 Ves. 581 ; Van Doren v. Mayor, etc., of W.
Y., 9 Paige, 388. They have power, in proper cases, to cancel a con-
tract on the ground of fraud and to set aside a deed thereunder, although
damages for the fraud may be recovered in a suit at law. Belf v.
Eherly, 23 Iowa, 46Y. But a court of equity will not entertain a bill
to compel the owner of a deed to deliver it up as being void, where the
defectiveness of the deed is apparent on its face, and does not require
extrinsic evidence to prove it ; especially where the deed has been de-
clared void by the court. Peirsoll v. Elliott, 6 Pet. 95 ; Gray v.
Matthias, 5 Yes. 286; Cox v. Clift, 2 N. Y. (2 Comst.) 123. But
where an instrument is voidable, or void, for matters extrinsic, but is
not void upon its face, it seems a proper case for the interference of
the court to compel surrender, as it may enable the holder to convey
to a honafide purchaser, or, at least, may lead to litigation, and cast
suspicion on a good title, Elliott v. Pearsoll, 1 McLean (C. C), 11.
The court has power to order a bond or other instrument to be deliv-
ered up to be canceled, whether it is or is not void at law, or whether
it be void on the face of it or by proof in the case ; but the exercise of
this power rests in the discretion of the court. Hamilton v. Cum-
mings, 1 Johns. Ch. 517.

It also is an established rule in equity that where the vendor has not
the power to make title, the vendee may, before the time of perform-
ance, enjoin the payment of the purchase-money until the ability to
comply with the agrcciiicnt for title is sliown ; but the court will give

EESCISSION OF mSTRUMENTS. 521

a reasonable time to procure the title if it appears prol)able that it may
be procured. Galloioay v, Finley, 12 Pet. 264; Smith v. Pettus, 1
Stew. & Port. lOT. But a purchaser with notice of a defect in the title
will not, for that cause, be relieved in equity. Craddock v. Shirly, 3
A. K. Marsh. 288. Nor will a vendee of land, in the undisturbed pos-
session thereof, under a deed with general warranty, be relieved from
the payment of the purchase-money, whatever the defects in the title.
Long V. Israel, 9 Leigh (Va.), 556. Nor will a contract for the pur-
chase of real estate be rescinded upon stale objections to the title after
long and undisturbed possession. Edwards v. Morris, 1 Ham. (Ohio)
524. The inability of the vendor to make a good title at the time the
decree is pronounced, though it forms a sufficient ground for refusing
specific performance, will not authorize a court of equity to rescind the
agreement in a case where the parties have an adequate remedy at law
for its breach. Hepburn v. Dunlop, 1 "Wheat. 179 ; S. C, Dunlop v.
Hepburn, 2 id. 231. In order to make a defective title a ground
for rescinding a contract, the purchaser should tender payment and de-
mand a title, or take some steps, avowing an intention to give up his
bargain. Hunter v. Goudy, 1 Ham. (Ohio) 449.

§ 6. Unsealed instruments. A court of equity will rescind any
description of writing, evidencing liability on the part of the maker,
whether it be commercial paper, a specialty, or other form of legal obli-
gation, on the ground of mistake, fraudulent misrepresentation or impo-
sition ; and when either or all of these are urged and proved against an
instrument, it will, with equal readiness, order its rescission, whether
the instrument is sealed or unsealed.

§ 7. Who may demand relief. Any one who is injuriously affected
by a contract obtained or entered into by mistake, or fraud, or in any
way involving moral guilt in the opposite party, may ask to have the
contract rescinded, unless the party asking the rescission be involved
in equal guilt. But he who seeks the rescission of a contract on the
ground of fraud or undue influence must show his right to relief by
distinct and pointed allegations clearly proved. Bailey v. Litten, 52
Ala. 282. Relief will not be granted to a party seeking it against his
own contract, and on account of defects in a title which he himself had
sold, unless it first appears that he was ignorant of the defect of the
title when he sold, and that, in a reasonable time after discovering the
defect, he had offered to restore to his vendee what he had received.
Wilgus V. HugJies, 2 A. K. Marsh. (Ky.) 328. And where a purchaser
has made a chancing bargain for land, he cannot have a rescission on
the ground that the title is doubtful, and that the deed by which the
ancestor of the grantor held the land was fraudulent as to the creditors
YoL.Y.— 66

522 EESCISSION OF mSTEUMENTS.

of the party who conveyed to him. Breckenridge v. Waters^ 5 Monr.
(Ky.) 150. Or where a purchaser of land is bound, by contract, as
agent for an heir of the vendor, to procure a good title to land for a
person to whom he has sold, but takes no measures to do so, he cannot,
after a lapse of eight or nine years, be relieved in equity from the pay-
ment of the purchase-money, on the ground that the legal title was not
in his vendor. Bell v. Yance^ 6 Litt. (Ky.) 108. Where a vendee
takes a mere quit-claim of the vendor's title, he cannot obtain a rescis-
sion for defect of title. Pintard v. Martin, Sm. & M. Ch. 126. And
a creditor, whose claim is purely legal, cannot maintain a bill in equity
to set aside a deed as fraudulent, before obtaining judgment and exe-
cution. Anderson v. Bradford, 5 J. J. Marsh. 69. Where a person
who has contracted for the purchase of land, mortgages his interest
therein to the State, he cannot, during the existence of the mortgage,
rescind the contract without the assent of the State. Attorney- General
V. Purmort, 5 Paige's Ch. 620.

Where a party is entitled to rescind a contract he should act promptly,
and not sleep on his rights, or take time to speculate on the course of
events. If he goes on, with a full knowledge of his rights, recognizing
the contract as still in force, and, by his acts and conduct, tacitly gives
his assent to its execution in a manner different from the original un-
derstanding of the parties, he is not entitled in equity to have either
the contract rescinded, or any relief inconsistent with what may fairly
and reasonably be j)resumed, from his own acts, to have been assented
to by him. DeArmand v. Phillips, Walk. (Mich.) Ch. 186.

The husband alone cannot rescind a contract in which he and his
wife are united as one of the contracting parties. Spencer v. ,5'^. Olair,
57 K. H. 9. If two persons agree with a third to furnish necessary
supplies to the latter as the same shall be required, for discovering and
locating lodes for the joint benefit of all, the latter may treat this as a
condition precedent, and, upon failure to furnish the supplies, he may
abandon the enterprise, or he may proceed to discover and locate lodes
in his own right, without regard to the contract. Murley v. Ennis, 2
Col. T. 300. One buying of the owner of a vessel one-eighth thereof,
with the privilege of making the deferred payment out of his wages as
master, may rescind the contract and recover back the money paid, upon
the owner's wrongfully discharging him and taking possession of the
vessel. Moore v. Curry, 112 Mass. 13. In a late case a person con-
tracted with the board of supervisors to build, and keep in repair for
five years, a bridge ; during that time the bridge was destroyed. He
and his sureties were insolvent. A warrant for the last installment due
on the work was issued to him, and by him transferred. Failure of

RESCISSIO-\ OF INSTRUMENTS. o2S

consideration arose before notice of the assignment. The hoard refusing
to levy a tax to pay the warrant, the assignee applied for a mandamus.
It was held, that upon this state of facts the board had a right to re-
coup for damages arising from a breach of the contract, and the failm-e
of consideration having occurred before notice of assignment, was
avoidable against the assignee ; and that it was competent for the boai*d
to take the initiative, by a bill in chancery, for a surrender and cancel-
lation of the warrant. Board of Supervisors v. Arrghi, 51 Miss. 667.

It may be said generally that a party will have a right to come into
equity to have agreements, securities, deeds, or other instruments de-
livered up and canceled, where he has a defense against them, which
is good in equity, but not capable of being made available at law. Eeed
V. Baiik of N'eicburgh., 1 Paige's Ch. 215.

§ 8. Against whom decreed. If parties engaged in the perpetra-
tion of a fraud or concurring in the fraudulent purpose, as jjarticejjs
criminiSf are in pari delicto, neither can have relief as agamst the
other, at law or in equity. Freelove v. Cole, 41 Barb. 318; S. C.
affirmed, 41 N. Y. (2 Hand) 619, note ; Holliday v. Uolliday, 10 Iowa,
200 ; Hovey v. Storer, 63 Me. 486. To exclude relief in such cases the
parties must not only be in delicto but in pari delicto. Freelove \.
Cole, 41 Barb. 318. See Renfrew v. 2fcDoncdd, 11 Hun (X. Y.), 254.
A deed fraudulent on the part of the grantor may be set aside though
the grantee be a hona fide purchaser and ignorant of the fraud. Hil-
dreth V. Sands, 2 Johns. Ch. 35. Duress and fraud are grounds for
annulling a deed procured thereby, but only between the parties and
those having notice. Cooh v. Moore, 39 Tex. 255. But equity will
set aside a deed on the ground of duress, only upon clear and conclu-
sive evidence. Davis v. Fox, 59 Mo. 125.

Where the title to land is fraudulently procured from the owner and
conveyed to a third person, who takes with notice of the fraud, both
deeds will be set aside. Sheiomake v. Williams, 54 Ga. 206. In a suit
to set aside a deed for fraud, where a party is made defendant on his
own motion, and by his answer and the reply an issue as to notice to
him of the fraud is raised, an objection that the petition did not charge
notice to him is untenable in the appellate court. Stivers v. Ilome^
62 Mo. 473. A biU in equity to set aside a deed or mortgage cannot
be sustained without the presence of the grantee or mortgagee, and
with such matters cannot be joined a demand for rents and profits.
Mattair v. Payne, 15 Fla. 682.

§ 9. In what cases denied. Where contracts have been fairly en-
tered into, equity will not, by the application uf strict technical rules of
law, declare such contracts void, especially where the ends uf justice

524 EESCISSION OF INSTKUMENTS.

would thereby bo defeated. Galway v, Fullerton, 2 C. E. Green (N.
J.), 3S9. And it will not interfere to rescind a contract where an ade-
quate remedy at law exists. White v. Thayer, 121 Mass. 227 ; Peay v.
Wright, 22 Ark. 198. And the non-}3erformance of an oral agreement
outside of the written contract is not a fraud which will justify a court
of equity in interfering in disregard of the statute of frauds. Evans v.
Folsom, 5 Minn. 422. And it will not interfere after an indefinite
delay without a reasonable excuse, although the party might have been
entitled to relief upon a more prompt assertion of his right. Barjteld
V. Price, 40 Cal. 535 ; Murphy v. Paynter, 1 Dill. (C. C.) 333. And
it will not rescind a contract on the ground of fraud or duress perpe-
trated after the contract was made. Fulton v. Loftis, 63 N. C. 393.
Nor will it set aside an assignment of a mortgage, on the ground that
it was fraudulently obtained, where it does not appear that any of the
complainants were injured thereby. Jewett v. Davis, 10 Allen (Mass.),
68. So, it will not relieve against a contract, on the ground of the
concealment of a material fact, if the party who seeks relief did not
rely upon the other party's statements, but undertook to examine and
find out for himself, and had an equal opportunity with the other party
to know all the facts. Stephens v. Orman, 10 Fla. 9. A bill to set
aside a deed for imbecility of the grantor, and for undue influence, will
be dismissed, if it appear that although the grantor is of great age, in
this case 87 years, he retains a full comprehension of the meaning,
design and effect of his acts. Lindsey v. Lindsey, 50 111. 79.

One who has conveyed land to a corporation empowered to purchase
and hold land cannot maintain an action to have his deed set aside on
the ground that the corporation is prohibited by charter from acquiring
land except for specified purposes, but has purchased and is holding the
land in question for a different purpose. Hough v. CooJc, County Land
Co., 73 111. 23. And a city, after accepting a donor's deed of land for
a hospital, is not entitled to be released from the contract to build a
hospital thereon, on the mere ground that the land, by reason of its
northern exposure and the nature of its soil, was not a wholesome place
for the hospital ; or on that of any other facts which did not exist, or
were not known to the city at the time of accepting the deed. Worces-
ter V. Kelley, 119 Mass. 575.

Although a court of equity has the power to order the delivery up
and cancellation of a policy of insurance obtained on fraudulent repre-
sentations and suppressions of facts, yet it will not generally do so
when these representations and suppressions can be })crfectly well used
as a defense at law in a suit u])oii tlio policy. Hence a bill foi-such a de-
livering up and cancellation is properly " dismissed without prejudice,"

RESCISSION OF INSTRUMENTS. 525

though the evidences of the fraud were considerable, therj being no alle-
gation that the holder of the jDolicy meant to assign it, and suit on the pol-
icy having been begun at law after the bill was filed. Phcenix Mut.
Insurance Co. v. Bailey, 13 Wall. 616.

§ 10. Decree rendered. In all cases where a delivery up or can-
cellation of deeds or other instruments is sought, either upon the ground
of their original invalidity, or of then- subsequent satisfaction, or be-
cause a party has a just title thereto, or derives an interest under them,
courts of equity act upon an enlarged and comprehensive policy ; and,
therefore, in granting the relief they will impose such terms and qualifi-
cations as shall meet the just equities of the opposing party. 2 Story's
Eq. Jur., § 707. Thus, for instance, if the heir at law seeks a discov-
ery and delivery of the title deeds of the estate of his ancestor against a
jointress, he wiU not be allowed the relief unless upon the terms of con-
firming her jointure. Tower s\\ Davys, 1 Yern. 479 ; Petre v. Petre, 3
Atk. 511 ; Fordy. Peering, 1 Yes. Jr. 76. So, where there is a subsequent
mortgagee, without notice, who has possession of the title deeds, he
will not be compelled to deliver up the deeds to the first mortgagee,
unless upon the terms that the latter will pay him his mortgage-money.
Head v. Egerton, 3 P. Wms. 280. So, where a party, by false and fraud-
ulent representations as to the character and quality of his land, induces
another to exchange other lands for it, and then conveys a portion of the
land thus obtained to an innocent purchaser, so that it is out of his power
to reconvey it, and thus wholly rescind the contract, it is competent for a
court of equity to decree a partial rescission, and to require the party in
fault to pay to the other in money, the price at w^hich the land taken
by him was estimated in the exchange, and take a reconveyance of the
same, and to make the amount of money so decreed to be paid a lien
upon that portion of the land conveyed to the defrauding party, which
he stiU holds. Hopkins v. Snedaker, 71 111. 449. So, too, where a
contract for the sale of land is rescinded, after delivery of possession
to the vendee, by decree of com't, because of the inability of the vendor
to make title, and the decree of rescission does not direct the vendee to
deliver up possession, equity will aid the vendor or his heirs to recover
possession of the land, and to have an account of the rents and profits.
Officer V. Murphy, 8 Yerg. (Tenn.) 502. And where a party seeking
to set aside a conveyance made by him has received part of the con-
sideration, he must return it before a court of equity will cancel the
conveyance. Miller v. Gotten, 5 Ga. 341. The rule that he who asks
equity must do equity will be applied whenever the adverse equity
grows out of the very controversy before the court, or out of circum-
stances which the record shows to be part of its history, or where such

526 RESCISSION OF INSTRUMENTS.

equity is so connected with the cause in litigation as to be presented in
the pleadings and proofs, with full opportunity afforded to the party
recriminated to explain or refute the charges. Conistoclc v. Johnson, 46
N. Y. (1 Sick.) 615. A reconveyance will not be decreed in favor of
persons not parties to the bill. Dale v. Roosevelt, 6 Johns. Ch. 255.
But if a case is made out which will justify the court in declaring a
contract at an end, it will in general be ordered to be delivered up to
be canceled. Wilson v. Getty, 57 Penn. St. 266. So where a party, in-
duced by fraudulent representations, makes a contract, and before being
undeceived makes a second contract annulling tlie first, and a repeti-
tion of the subject-matter thereof, he will be adjudged not to have
thereby confirmed or condoned the first, but to be entitled to a rescission
of the second. Davis v. Henri/, 4 W. Ya. 571.

A court of equity will not interfere to decree the cancellation of a
written instrument unless some special circumstances exist establishing
the necessity of a resort to equity to prevent an injury which might be
irreparable, and which equity alone is competent to avert. The mere
fact that a defense exists to the instrument is insufficient. Nor is it
sufiicient that evidence, to establish the defense, may be lost by delay.
Town of Venice v. Woodruff, 62 N. Y. (17 Sick.) 462 ; S. C, 20 Am.
Rep. 495 • S. C. affirmed, 92 U. S. (2 Otto) 502, note.

SALES. 52Y

CHAPTER CXIX.

SALES.
AETICLE L

OF SALES IN GENERAL.

Section 1. Definition and nature. A sale is defined to be "a
transfer of the absolute or general property in a thing for a price in
money." Benj. on Sales (2d ed.), 1. The word "sale" is one of precise
legal import, both at law and in equity. It means at all times a con-
tract between parties to pass rights of property for money which the
buyer pays, or promises to pay, to the seller for the thing bought and
sold. Wayne, J., in Williamson v. Berry, 8 How. (L". S.) 544. See,
also, Huthmacher v. Harris, 38 Penn. St. 491 ; Newcomb v. Cabell, 1(.>
Bush (Ky.), 460. The essential elements which enter into and make
up the contract are : Competent parties to enter into a contract, an agree-
ment to sell, and the mutual assent of the parties to the subject-matter
of the sale and the price to be paid therefor. If any of these ingre-
dients be wanting, there is no sale. Gardner v. Lane, 12 Allen, 39 ;
Butler \. T}ioms(m, 92 U. S. (2 Otto) 412, 414. A transfer only of the
special property, and not of the geiiLnil or absolute title, is not a sale
of the thing ; for, in law, a thing may in some cases be said to have in
a certain sense, two owners, one of whom has the general, and the other
a special property in it. Numerous illustrations of this principle may
be found under the various branches of the general law of bailments.
And see Jenkyns v. Brown, 14 Q. B. 496 ; Fuller v. Buswell, 34 Yt.
107; Runt v. Wyma^i, 100 Mass. 198 ; Harper v. Godsell, L. E., 5 Q.
B. 424. So, if the price or consideration for a thing, instead of being
paid in money, is paid in goods or merchandise, the transaction is not a
sale, but a barter or exchange. Keys v. Harvjood, 2 C. B. 905 ; Mitchell
V. Gile, 12 N. H. 390 ; Picard v. McCormick, 11 Mich. 68 ; Yailx.
St/rong, 10 Yt. 457 ; Harrison v. Luke, 14 M. k, W. 139. If the prop-
erty in a thing be voluntarily transferred, and no valuable consideration
be given therefor, the trans;' i^tion is a ijift, and not a sale. Yol. 3, tit.
Gift.

The law of sales, technically speaking, is confined to personal prop-

528 SALES.

ertj alone ; while the corresponding transactions in real estate are
classed under the title of " Vendors and Pnrchasers."

§ 2. Who may sell. Any person who has the capacity to contract
generally may sell goods of which he is the owner, and convey a per-
fect title to the purchaser. See Yol. 1, pp. 77 et seq. But no one, however
competent to contract, can sell goods and convey a valid title to them
unless he be the owner of the goods, or lawfully represent the owner ;
for it is a well-settled maxim of the law, that no one can transfer a bet-
ter title than he himself possesses. WJiistler v. Forster, 14 C. B. (IN". S.)
248 ; Peer v. Humphrey, 2 Ad. & El. 495. It is, therefore, held, that
a purchaser of goods from a thief obtains no title, whether the theft
was a larceny at common law or by statute. BrecMnridge v. McAfee,
54 Ind. 141. And if the purchaser, being ignorant of the fact that the
goods were lost or stolen, resell them to a third person, in good faith,
he remains liable in trover to the original owner, who may maintain his
action without prosecuting the felon. Lee v. Bayes, 18 C. B. 599 ;
Stone V. Marsh, 6 Barn. & C. 551 ; White v. Spettigue, 13 M. & W.
603 ; Marsh v. Keating, 1 Bing. N. C. 198 ; 2 CI. & Fin. 250 ; Beaz-
ley V. Mitchell, 9 Ala. 780. But in England, sales in market overt are
available against the original owner for the protection of an innocent
purchaser, even though he bought the goods of a chief. Peer v. Hum-
phrey, 2 Ad. & El. 495 ; Dyer v. Pearson, 3 Barn. & Cr. 42 ; Crane v.
London Dock Co., 5 B. & S. 313 In this country, no market overt
exists. Towne v. Collins, 14 Mass. 500 ; Hoffman v. Carow, 22 Wend.
285 ; Griffith v. Fowler, 18 Yt. 390 ; Browning v. Magill, 2 Har. &
J. (Md.) 308.

§ 3. Who may buy. As a general rule, all persons sui juris may be
buyers as well as sellers. And certain classes of persons, who lack the
capacity to contract generally, may, under special circumstances, make
valid purchases. Thus, an infant has authority at common law to make
contracts for necessa/ries, and to bind himself thereby. Hands v. Slaney,
8 T. E. 578; Cole v. Pennoyer, 14 111. 158. And a purchase by him
of necessaries on credit will be valid, even though it be shown that he
had an income at the time, sufficient to supply him with ready money
to buy necessaries suitaljle to his condition. Peters v. Fleming, 6
Mees. & AY. 42 ; Burghart v. Hall, 4 id. 727. Nor is the legal term
"necessaries" restricted to the absolute necessities of life, such as meat,
drink, apparel, lodgings, and medicine {Shelton v. Pendleton, 18
Conn. 417 ; Nev:i Hampshire Fire Ins. Co. v. Noyes, 32 N. H. 345) ;
it also embraces articles suitable to the condition, rank, fortune, and
genera] needs of the infant. W/iarton v. McKenzie, 5 Q. B. 606 ;•
Rundel v. E:eeler, 7 Watts, 'iZl ', Strong v. Foote, 42 Conn. 203. And

SALES. 529

necessaries for an infant' s wife and children are necessaries for him.
ChappUw Cooper, 13 M. & W. 256; Alell v. Warner,^ Vt. 152;
Tapper v. Cadwell, 12 Mete. 562. A lawsuit, under some circum-
stances, may be a necessary. Thrall v. Wright, 38 Vt. 494. But it
has been held that a horse is not within the denomination of necessaries,
for wliich an infant is liable. Merriam v. Cunningham, 11 Cush. 40;
Rainwater v. Durham, 2 IST. & Mc. (S. C.) 524. And in general, articles
of mere luxury are always excluded. See liyder v. Wombwell, L. K.,
3 Exch. 93 ; Bryant v. Richardson, id. 93, note ; though luxurious arti-
cles of utility are in some cases allowed. Id. ; Chappile v. Cooper, 13
M. & "W. 256. Where an infant had been advised by a medical man to
take exercise on horseback, a horse purcliased by the infant for such
pui*pose was held to be a ''necessary" for which he was liable. Hart v.
Prater, 1 Jur. 623.

As a general rule, the contracts of idiots and lunatics are invalid.
But in respect to supplies of necessaries furnished to an idiot or luna-
tic, if no advantage be taken of his condition by the seller, the purchase
will be held valid. Dane v. Kirkwall, 8 Carr. & P. 679. And the
doctrine is stated generally, that when a person apparently of sound
mind, and not known to be otherwise, enters into a contract for the
purchase of property, which is fair and honafide, and which is executed
and completed, and the property, the subject-matter of the contract,
has been paid for and fully enjoyed, and cannot be restored so as to
put the parties in statu quo, such contract cannot afterward be set aside,
either by the alleged lunatic or those who represent him. Molton v.
Camroux, 2 Exch. 487 ; S. C. affirmed, 4 id. 17. See, also, Beawan v.
McDonnell, 9 id. 309 ; Seals v. See, 10 Penn. St. 56 ; SMdmore v.
Romaine, 2 Bradf. {^. Y.) 122 ; Matthiessen & W. R. Co. v. McMa-
hon, 38 N.J. Law, 537; Searle v. Galhraith, 73111. 269.

It is now well settled that the contracts of a person when in a state
of complete intoxication are in general voidable, however the drunken-
ness may have been occasioned {French v. Hickox, 8 Ohio, 214;
Coole V. Clayworth, 18 Yes. 12 ; Bates v. Ball, 72 111. 108) ; but he
would be hable for absolute necessaries supplied to him while in that
condition. Gore v. Gibson, 13 M. & W. 623. And a man of weak
intellect, arising from habitual drunkenness, and who is incapable of
managing his own affairs, may make a contract for necessaries, includ-
ing such things as are useful and proper for his station. Thus, he may
make a contract with an attorney to have a guardian appointed for his
protection under the statute ; and the attorney is entitled to recover a
reasonable fee from the estate of the drunkard for the value of services
YoL. v.— 67

630 SALES.

rendered in procuring the appointment of a guardian, and for moneys
expended for costs. Darhy v. CkJjanne, 1 Mo. App. 126.

At common law, a married woman is absolutely incompetent, during
her coverture, to make a contract by which she is personally bound.
Whipple v. Giles, 55 ]S". H. 139; Pippin v. Wesson, 74 N". C. 437;
Stillwell V. Adams, 29 Ark. 346. A contract with her is not, as in the
case of an infant, "voidable only, but it is absolutely void, and therefore
incapable of ratification after her coverture has ceased. Zouch v. Pa/y-
sons, 3 Burr, 1794 ; Boss v. Singleton, 1 Del. (Ch.) 149. One excep-
tion to this general rule of the common law occurs when the husband
\& civiliter onortuus, or dead in law; as, for instance, if he be under
sentence of penal servitude, or transportation, or banishment. Bogget
V. Frier, 11 East, 304; Ex parte Franks, 7 Bing. 762; De Gaillon v.
FAigle, 1 B. & P. 357 ; Spooner v. Brewster, 2 Carr. & P. 35. There
are a few other exceptions to the general rule, as where the husband is
an alien, and has never resided in the country ( Walford v. Duchess de
Pienne, 2 Esp. 553. But see De Wahl v. Braune, 1 Hurl. & E". 178 ;
Robinson v. Reynolds, 1 Aik. [Yt.] 174) ; or where the husband has
been absent and unheard from for the period of seven years, in which
case the legal presumption arises that he is dead (Id. ; Story on Sales,
§ 48) ; or if the husband desert the wife, and leaves the country without
providing for her support, and without the intention of returning. Ab-
bot V. Bayley, 6 Pick. 91 ; Cecil v. Juxon, 1 Atk. 278. And by the
custom of London, a married woman may, if the husband assent
thereto, carry on a trade, separate from him, and may sue and be sued,
in all matters arising out of her dealings in her trade. Beard v. Webb,
2 B. & P. 93 ; Candell v. Shaw, 4 Term E. 361. And see Robards v.
Entson, 3 McCord (S. C), 475 ; Oxnard v. Swanton, 39 Me. 125 ;
BurTce v. Winkle, 2 Serg. & K. 189 ; Hobart v. Lemon, 3 Rich. (S. C.)
131.

Recent legislation, ])oth in England and the United States, has made
marked changes in the rules of the common law relative to the capacity
of maiTied women to make contracts, but these changes are more
appropriately noticed elsewhere. See Vol. 3, tit. Ilusbarid and Wife /
see, also, tit. Coverture, under the head of Defenses, Vol. 6.

As to contracts of sale hy agents, see Vol. 1, tit. Agency ; see, also,
tit. Factors and Brokers, Vol. 3.

§ 4. Must be a thing to be sold. It is essential to the validity of
every executed contract of sale that there should be a thing or subject-
matter to be contracted for. And if it appear that the subject-matter
of the contract was not and could not have been in existence at the time
of such contract, the contract itself is of no effect, and may be disregarded

SALES. 531

bj either party. Strickland v. Turner^ T Exeli. 208 ; Hastle v. Coutu-
rier, 9 id. 102 ; S. C, 5 H. L. Cas. 673 ; Franklin v. Long, 7 Gill & J.
(Md.) 407. But a hope or expectation of means founded on a right in
being may be the subject of a sale, because in such case there is a jpo-
tential existence. Wheeler v. Wheeler, 2 Mete. (Ky.) 474 ; ante, Yol.
2, p. 244. Thus, a man may sell the wool to grow upon his own sheep,
or the crops to grow upon his own land, or the milk that a cow may
yield during the coming year. Andrew v. Newcoinb, 32 1^. T. (5 TiS.)
417; Belloios v. Wells, 36 Yt. 599; McCarty v. Blevins, 5 Yerg.
(Tenn.) 195 ; Yan Hoozer v. Cory, 34 Barb. 9 ; Sanhorn v. Benedict,
78 111. 309. So, if a person is under a contract of service, he may assign
his future earnings growing out of such contract ; for the possibility of
future earnings is coupled with an interest, and the light to them,
tliough contingent and liable to be defeated, is a vested right. Hartley
V. Tapley, 2 G-ray, 565. But a mere possibility or contingency, not
founded upon a right or coupled ^vith an interest, cannot be the subject
of a present sale, though it may be of an executory agreement to sell.
Purcell V. Mather, 35 Ala. 570 ; Skipper v. Stokes, 42 id. 255 ; Low v.
Peio, 108 Mass. 347 ; S. C, 11 Am. Eep. 357. There may be an agree-
ment to sell all and every species of personal property not prohibited by
law, whether the vendor owns it at the time or not. Hibhlewhite v. Mc-
Morine, 5 M. & W. 462; Mortimer v. M'Callan, 6 id. 58; 7 id. 20;
Head v. Goodvnn, 37 Me. 182 ; Calkins v. Lockicood, 16 Conn. 276 ;
Hamilton v. Rogers, 8 Md. 301. And, although the subject-matter of the
agreement has neither an actual nor potential existence, such an agree-
ment is usually denominated an executory contract, and for its violation
the remedy of the party injured is by an action to recover the damages.
See Id. ; Hutchinson v. Ford, 9 Bush (Ky.), 318 ; S. C, 15 Am. Eep.
711 ; Pierce v. Emery, 32 N. H. 484 ; Brown v. Bateman, L. R, 2 C.
P. 272. It has been further held that if one sells goods in which he
has no property at the time of sale, and subsequently acquired title be-
fore the repudiation of the contract by the other party, the property in
the goods, imuiediately on the acquisition of a title by the seUer, will
vest in the buyer. Frazer v. Hilliard, 2 Strobh. (S. C.) L. 309, 317 ;
Blackmore v. Shelby, 8 Humph. (Tenn.) 439. And where the vendee
in a "contract of sale had an election, witliin a limited time, to recede
from the purchase and return the article, or else was to complete the
purchase and pay the purchase-money, and the vendor had no title tc
the thing sold at the making of the contract, but acquired one within
the period limited, and the vendee allowed that period to elapse with-
out returning the article, it was held that he could not, when subse-
quently sued for the purchase-money, set up a want of consideration for

632 SALES.

the contract as originally made. IlotcJiMss v. Oliver, 5 Denio, 314.
And the rule in equity is, that if a vendor agrees to sell property of which
he is not possessed at the time, and receives the consideration for the
contract, and afterward becomes possessed of property answering the
description in the contract, the court will compel him to perform ; as-
suming, of course, that the supposed contract is one of the class of
which the court would decree the specific performance. Holroyd v-
Marshall, 10 H. L. Cas. 191 ; Belding v. Eeed, 3 H. & C. 955.

It is not essential to the contract of sale that the subject-matter
thereof should have a corporeal existence, and be capable of manual
delivery. It is sufficient if it has an actual value, however intangible
it may be. Thus, the route of a newsp;; •;• carrier [Mathaivay v Be7i-
Tiett, 10 N. T. [6 Seld.] 108), or the good- will of a trade {Tweed v.
Mills, L. E,., 1 C. P. 39), or a copyright to print and sell a manuscript
(2 Bl. Com. 405), or a license to manufacture patented macliines, may
be the subjects of sale. Brooks v. Byam, 2 Story (C. C), 525 ;
Story on Sales, § 1 7.

§ 5. The price to be paid. There can be no sale without a price
in money. Ante, % 1 ; Wolf v. Wolf, 12 La. Ann. 529. But while this
is generally true, sales are not universally made for a strict money pay-
ment. Thus, the negotiable representative of money, bills of exchange,
promissory notes, or checks, may be taken as the payment of the price.
See Bonnell v. Chamherlin, 26 Conn. 487 ; Wallace v. Agry, 4 Mas.
(C. C.) 342 ; Kendrick v. Lomax, 2 Cr. & Jerv. 405. And it has
been held, that if property is taken at a fixed inoneij jprice, the transfer
amounts to a sale, whether the price is paid in cash or in goods.
Picard v. McGormAck, 11 Mich. 68. And see Keller v. Tutt, 31 Mo.
301 ; Hale v. Hays, 54 N. Y. (9 Sick.) 389 ; S. C, 48 Barb. 674 ; South
Australian Ins. Co. v. Randell, L. E.., 3 P. C. 101 ; Herrichv. Carter^
56 Barb. 41 ; Howard v. Harris, 8 Allen, 297. It is the rule of the
common law that a promissory note or bill of exchange is prima facie a
conditional payment only. Van Ostrand v. Reed, 1 Wend. 424; Owen-
son V. Morse, 7 Term K. 64 ; Wallace v. Agry, 4 Mas. (C. C.) 342. But
in Massachusetts, and in some of the other States, this rule is reversed,
and the doctrine obtains, that the taking a negotiable promissory note
or bill of exchange \b prima facie to be deemed an absolute payment.
Chapyman v. Durant. 10 Mass. 51 ; Heed v. Upton, 10 Pick. 525. See,
a'v.oo. Ward v. Bourne, 56 Me. 161 ; Costar v. Havies, 8 Ark. 213 ;
Wait V. Brewster, 31 Vt. 516, This presumption may, however,
be rebutted (Id.); and it is said to be a question of fact, on the evi-
dence, whether the promissory note given on the one hand and ac-

SALES. 533

cepted on tlie other was in satisfaction and discharge of the original
debt or not, Melledge v. Boston Iron Co., 5 Cush. 158,

A contract of sale is not invalid because it does not in terms fix the
price, if it furnishes a criterion by which it may be determined, leav-
ing nothing in relation thereto for further negotiation between the
parties. Joyce v, Swann, 17 C. B. (JST. S.) 83 ; McCandlish v. Newman,
22 Penn. St. 460; McCoiinellx. Hughes, 29 Wis. 537. But where
any thing remains to be done as between the parties themselves, for
the purpose of ascertaining the price, the right of property does not
pass, although the subject-matter of the sale is placed in the possession
of the vendee. Andrev^ v. Dieterich, 14 Wend. 31 ; Davis v. Hill, 3
N. H. 382 ; Rourhe v. Bullens, 8 Grray, 549. And there can be no exe-
cuted sale, so as to pass the property, when the price is to be fixed by
agreement between the parties afterward, and they finally fail to agree
thereon. Wdtkowsliy v. Wasson, 71 N. C. 451. But the price may be
left by the parties to the decision of some third person ; and if such
person accepts the duty, and actually performs it, the essential of a
price is fullfiled. Bi^oion v. Bellows, 4 Pick. 198 ; Cunningham v.
Ashhrook, 20 Mo. 553 ; Scott v. Whitney, 41 Wis. 504 ; Hutton v.
Moore, 26 Ark. 382 ; Yiclcers v. Vichers, L. R., 4 Eq. 529.

A contract for the sale of a commodity, in which the parties are
silent as to the price, is, in law, a contract for what the goods shall be
found to be reasonably worth. Hoadley v. JiPLaine, 10 Bing. 487 ;
McEioen v. Morey, 60 111. 32. Where the contract is implied to be
at a reasonable price, this means such a price as the jury, upon the
trial of the cause, shall, under all the circumstances, decide to be reasona-
ble, and not in all cases the current price of the commodity at the time
when, :ind place where, the goods are delivered. Acebal v. Levy, 10
Bing. 382.

A sale will not be disturbed for mere inadequacy of j)rice unless
the price obtained is so grossly inadequate as to amount to a fraud or
imposition. Follett v. Rose, 3 McLean (C. C), 332 ; Waller v. Cralle,
8 B. Monr. (Ky.) 1 1 ; Duncan v. Sanders, 50 111. 475 ; Carman v.
Page, 6 Jones' (IN". C.) Eq. 37. Because property is not as valuable
as the buyer supposed, is no reason, in the absence of fraud or war-
ranty, for withholding any portion of the price agreed to be paid.
Leonard v. Peeples, 30 Ga. 61.

§ 6. Mutual assent of the parties. The mutual assent of the
parties is essential to a contract of sale, but this assent need not be ex-
press ; it may be implied from their language or from their conduct.
Joyce V. Swann, 17 C. B. (K S.) 84; Street v. Chapman, 29 Ind. 142;
Payne v. Ca/ve, 3 Term R. 148. A mere proposal or offer constitutes

534 SALES.

no bargain of itself, it must be accepted by another, and the accept-
ance must be unconditional. Carr v. Duval, 14 Pet. (U. S.) 77 ;
Hutchinson v. Bowker, 5 M. & "W. 535. While the offer remains
unaccepted, it is optional with the proposer to withdraw it or not.
{Faulkner v. Hebard, 26 Yt. 452 ; Summers v. Mills, 21 Tex. 77 ;
HeWs Case, L. E.. , 4 Eq. 9) ; but as soon as it is assented to, the con-
tract is complete and binding upon both parties, unless it be subse-
quently changed or rescinded by mutual consent. Joyce v. Swann, 17
C. B. (N. S.) 84; Schuchardt V. AlUns, 1 Wall. (U. S.) 359. Thus,
in the case of a sale at auction, the bid may be retracted at any time
before the hammer is down, but the fall of the hammer settles the
bargain and is tlie intelligible and sufficient sign of a mutual assent.
Payne v. Cave, 3 Term R. 148 ; Yol. 1, p. 485. If the party to whom
an offer is made adds a condition, or in any way modifies the offer,
this constitutes, in law, a rejection of the offer, or is a new proposal,
which must be in turn assented to by the party first proposing before
the bargain can stand complete. Champion v. Short, 1 Camp. 53 ;
Jackson v. Turquand, L. R., 4 H. L. 305 ; Potts v. Whitehead, 23 JST.
J. Eq. 512. If the party proposing to purchase takes the article on
trial for a certain time, he must return it within such time or the bar-
gain will become complete. Johnson v. McLane, 7 Blackf. (Ind.) 501 ;
Humphries v. Carvalho, 16 East, 45. If no period be fixed within
which to make the trial, a reasonable time will be implied. Moss v.
Sweet, 16 Q. B. 493 ; Washington v. Johnson, 7 Humph. (Tenn.) 468.
If the parties be at a distance from each other, consent may be ex-
pressed through letters or messengers. And a contract of sale may be
entered into by means of telegraphic dispatches. Durkee v. Vermont
Cent. R. R. Co., 29 Yt. 127; Taylor v. Steamboat Robert Campbell,
20 Mo. 254. Or, the communication of one of the contracting par-
ties may be by mail, and the reply thereto by telegraph, and thus the
contract be completed. Prosser v. Henderson, 20 Up. Can. (Q. B.)
483. Where a proposition of sale is made by letter through the mail,
the party making the proposition cannot retract after the acceptance by his
correspondent has been deposited in the post-office {Dunlop v. Higgins,
1 H. L. Cas. 381 ; Tayloe v. Merchants' Fire Ins. Co., 9 How. [U. S.]
390) ; nor can the party accepting retract his acceptance after posting
his letter, although prior to his correspondent's receipt of it, nor even
if it never be received. Id. ; Duncan v. Topham, 8 C. B. 225 ; Harris
Case, L. R., 7 Ch. App. 587 ; Wheat v. Cross, 31 Md. 99; S. C, 1 Am.
Rep. 28 ; Abbott v. Shepard, 48 N. H. 14 ; Hallock v. Commer-
cial Ins. Co., 2 Dutch. (N. J.) 268; Yassar v. Camp, 11 N. Y.
(1 Kern.; 441. So, where the offer is by telegram, an acceptance

SALES. 535

signified in the same manner is a sufficient manifestation of con-
currence to consummate the contract, irrespective of the time when
it comes to the knowledge of the proposing party. Trevor v.
Wood, 36 X. Y. (9 Tiff.) 307; S. C, 3 Abb. (]S\ S.) 355; DuUe
V. Batu, 38 Tex. 312. See Henhel v. Pai^e, L. E., 6 Exch. 7. But
an offer by letter may be retracted at any time before the person
to whom it is made deposits his letter of acceptance in the post-office,
since there can be no binding contract unless both parties are bound
thereby. Adams v. Lindsell, 1 B. & Aid. 681. And see Averill v.
Hedge, 12 Conn. 43G ; Longivorth v. Mitchell, 26 Ohio St. 334 ; Mac-
tier V. Frith, 6 Wend. 104; Myers v. Smith, 48 Barb. 614; Story on
Sales, § 129, and note. And an acceptance of an offer made by letter
must be in the words of, or must be entirely accordant with the terms
and conditions of the offer, in order to bind the party who makes it.
Myers v. Smith, 48 Barb. 614. See, also, Lyman v. Robinson, 14
Allen, 242; Hutcheso7i y . Blakeman, ^ Mete. (Ky.) 80; Bidgwayx.
Wharton, 6 H. L. Cas. 238. And if, by the terms of the offer, it is
stipulated that the acceptance is to be made in a particular manner, as,
for instance, in writing, an acceptance in any other manner will not
amount to a binding contract. Governor, etc., v. Fetch, 28 Eng. L. &
Eq. 470 ; S. C, 10 Exch. 610. It is not, however, necessary, in all
cases of an offer by letter, that there should be an express acceptance.
An acceptance is often implied from the acts of the party to whom the
offer is made, and it may be implied from his silence. See Joyce v.
SwoMn, 17 C. B. (N. S.) 83 ; Haines v. Tucler, 50 N. H. 307. So,
there is a peculiar class of sales in which the assent of the parties is
implied by law ; as where a person has converted the goods of another
to his own use, and the owner sues the wrong-doer in trespass or tro-
ver, and recovers judgment for their full value as damages, which the
defendant pays, the title to the goods is thereby transmuted by opera-
tion of law, and vests in the defendant. Story on Sales, § 139 a /
Marston v. Phillips, 12 W. R. 8 ; S. C, 9 L. T. (N. S.) 289. But a
judgment against the defendant in such case, without satisfaction, does
not vest the property in the goods in the defendant. Brinsmead v.
Ha/rrism, L. R., 6 C. P. 584.

The assent of the parties to a contract of sale must not only be
mutual, but it must be freely given and without mistake or imposition.
Thus, if the contract be procured by compulsion or duress, it is void-
able at the will of the party suffering it. Yol. 1, p. 85, So, a contract
which is made while the parties are under a mutual mistake as to
material facts affecting its subject-matter is invalid and may be
avoided. Id.; Ketchumv. Catlin,2lYt. 191; Raffles x.Wichelhaus,

536 SALES.

2 Hurl. & C. 906 ; Asemar v. Casella, L. E., 2 C. P. 431 ; S7nith v.
Zeiois, 40 Ind. 98 ; Wheat v. Cross, 31 Md. 99 ; S. C, 1 Am. Rep.
28 ; Calldns v. Griswold, 11 Hun (N. Y.), 208. The principle is,
that if parties, believing that a certain state of things exists, come to
an agreement with such belief for its basis, on discovering their mutual
error, thej are remitted to their original rights. Moiuatt v. Wright, 1
"Wend. 355 ; Gardner v. Lane, 9 Allen, -^92; Harvey v. Harris, 112
Mass. 32. Thus, if the subject-matter of a sale be actually destroyed
at the time of the sale, neither party is bound, although the fact was
unknown when the sale was made. Allen v. Hammond, 11 Pet. (IT.
S.) 63 ; Couturier v. Hastie, 5 H. L. Cas. 673. A mistake as to the
person with M'hom the contract is made may, or may not, invalidate
the sale, according to circumstances. In the common case of a sale for
cash, a mistake of identity would be immaterial, but where a personal
trust or confidence forms the consideration of the contract, the identity
of the person is an important element therein, and a mistake in this
respect prevents the contract from coming into existence for want
of assent. Mitchells. Lapage, Holt's N. P. 254; Boulton v, Jones,
2 Hurl. & N. 564.

A common mistake of fact as to the subject-matter of the sale, or
the price, or the terms, going to show the want of a mutual assent,
without which no contract can arise, must be distinguished from a
mistake made by one of the parties in relation to a fact wholly collat-
eral, and not affecting the essence of the contract itself. Wheat v.
Cross, 31 Md. 99 ; S. C, 1 Am. Rep. 28. Thus, a mistake by the
buyer in supposing that the thing bought by him will answer a certain
purpose, for which it turns out to be unsuitable, is not a mistake as to
the subject-matter of the contract, but as to a collateral fact, and
affords no ground for pretending that he did not assent to the bargain,
whatever may be his right afterward to rescind it, if the seller
warranted its adaptability to the purpose intended. Id. ; Prideaux v.
Bunnett, 1 C. B. (N. S.) 613 ; Chanter v. Hopkins, 4 M. & W. 399 ;
Smith V. Hughes, L. R., 6 Q. B. 597. See post, §§ 18, 20.

As to the effect of fraud, misrepresentation, and concealment, in case,
of sale, see Yol. 3, pp. 429 et seq.

§ 7. What dealings amount to a sale. A general rule for deter-
mining what dealings amount to a sale is, that, independently of the
statute of irsLads {see post, 589, art. 2), any words, importing a bargain,
whereby the owner of a chattel signifies his willingness and consent to
sell, and whereby another person shall signify his willingness and
consent to buy it, m prcesenti, for a specified price, would be a sale and

SALES. 537

transfer of the right to the chattel. DeFondear v. ShottenkirTc^ 3
Johns. 170 ; Fancher v. Goodmmi^ 29 Barb. 315.

Where wheat was sent to a miller upon a contract that the sender
might have the same amount back again, or as much flour as it would
make, or the price thereof, the miller to mix that sent with his own, the
transaction was held to be asale, and not a bailment. Carlisle v. Wal-
lace, 12 Ind. 252. See, also. Smith v. Clan^Tc, 21 Wend. 83. And the
same is held of a deposit of grain with a warehouseman, with the un-
derstanding that he is to ship and sell it on his own account, and, when
the depositor desires to sell, pay him the higliest price or return a like
quantity and quality. Johnston v. Browne, 37 Iowa, 200; liahillyv.
Wilson, 3 Dill. (C. C.) 420 ; Chase v. Washburn, 1 Ohio St. 244. See,
also, Butterfield v. Lathrop, 71 Penn. St. 225. So, the plaintiff deliv-
ered to II. some sheep under the following agreement : " July 8, 1S69, 1
have taken of H. E. E.. twenty-nine sheep and twelve lambs, to be re-
turned on the 1st of September, 1871, * * said sheep to be returned
as good and in as good condition and age as when taken," — and this
transaction was held to be a sale, and not a bailment of the sheep. Jieed
V. Alley, 2 1^. Y. Sup. Ct. (T, & C.) 380. See, also, Bates v. Coster, 3
id. 580 ; S. C, 1 Hun, 400. A contract, by a merchant, to deliver hides
to a tanner to be tanned, and then returned to the manufacturer to be
sold, and out of the sale the tanner to be paid, and the manufacturer to
keep the balance, is held to be such a sale to the manufacturer as renders
the hides liable to be attached as his property. Jenhins v. Eichelherger,
4 Watts (Penn.), 121 ; Prichett v. Cook, 62 Penn. St. 193.

The plaintiff sold and delivered to the defendant dry goods, which
the latter agreed to pay for in nails at a certain price, to be delivered on
or before a future day specified. The transaction was held not to be a
purchase of nails, nor even an exchange of dry goods for nails ; but that
the seller of the dry goods might recover for their purchase-money, with
interest from the day it became payable. Herrick v. Carter, 56 Barb.
41.

Where, by contract, raw materials are delivered to a manufacturer,
and manufactured articles of equal value are to be returned, the trans-
action is a sale, the manufacturer becoming a debtor to the person de-
livering the raw materials. Foster v. Pettihone, 7 N. Y. (3 Seld.) 433.
This is in accordance with the rule laid down for the distinction between
a bailment and a sale, namely, that " when the identical thing delivered
is to be restored, although in an altered form, the contract is one of
bailment, and the title to the property is not changed ; but when there
is no obligation to restore the specific article, and the receiver is at lib-
erty to return another thing of equal value, he becomes a debtor to make
Vol. Y.— 68

538 SALES.

the return, and the title to the property is changed : in other words, it
is a sale." Bronson, C. J., in Mallory v, Willis, 4 JST. Y. (4 Comst.) 76.
See, also, 3Iarsh v. Richards, 3 Hun (K. Y.), 550 ; S. C, 6 IN". Y. Sup.
Ct. (T. & C.) 29 ; Moore v. Holland, 39 Me. 307 ; Diclc v. Lindsay, 2
Grant's (Penn.) Cas. 431, and cases cited above.

Where a chattel was rented at a certain rate per month, with an agree-
ment that when the rents paid should amount to a specified sum it should
be the property of the lessee, and the chattel was delivered in pursuance
of the contract, it was held to be a contract of sale, and that the title
vested in the lessee, so far as to be liable to be taken on a distress for
rent. Price v. McCalUster, 3 Grant's (Penn.) Cas. 248. So, where a chattel
was sold and delivered to A, after the vendor had agreed to sell it to B,
and had received a part of the purchase-money, in accordance with such
agreement, it was held that the property passed to A. Wilson v. Pur-
cell, 11 Ired. (N. C.) Law, 502. And where a person agreed to purchase
a horse, which was delivered to him and was to be his when he paid the
full price, and he died before completing the payment, this was held to
be a bailment coupled with an interest, which vested in his personal
representative. Grant v. Willianis, 6 id. 341.

A sale of a certain description of standing timber trees, to be taken
off in a specified time, is held to be a sale of so many only as the vendee
may take off within that time. Howard v. Lincoln, 13 Me. 122 ; Poi-
saubin v. Peed, 1 Abb. Ct. App. (E". Y.) 161 ; S. C, 2 Keyes, 323.

An assignment by a person of all his interest in a crop growing on
another's land is a complete sale, and passes all the property to the as-
signee. Carter v. Jarvis, 9 Johns. 143.

And if two persons exchange horses, with the privilege to one of the
parties to return, within a given time, the horse received by him in
exchange, and such party fail, within the time, to return the horse so
received, the contract becomes absolute. Johnson v. McLane, 7 Blackf.
(Ind.) 501. And see Griffin v. Keith, 1 Hilt. (N. Y.) 58.

§ 8. What dealings do not amount to a sale. We have seen, from
the cases cited in the })receding section, that, in general, the delivery
of an article at a fixed i)rice, to be paid for or returned, at the receiver's
option, constitutes a sale. See, also, Marsh v. WicTcham, 14 Johns. 167 ;
SpicTder v. Marsh, 36 Md. 222. But where the party receiving the
property, by a writing given by him at the time, admits that the title
is in the party delivering it, and agrees that it sliall so continue till the
price is fully paid, and meanwhile to use the property in a particular
way, he is a mere bailee, and is answerable for a conversion, if he uses
the property differently. CrocTcer v. Gullifer, 44 Me. 491.

So where goods have been delivered by one party, and the other

SALES. 5a9

party agrees to deliver other goods of a simUar quality, on demand,
the transaction is not a sale of the goods, but an agreement for an ex-
change. Mitchell V. Gile, 12 N. H. 390. See Moras v. Stone, 5
Barb. 516 ; Blood v. Fahner, 11 Me. 41-1. And a contract for one
party to take goods from the other and return monthly the amount of
sales, at the prices charged by the latter, who will furnish the former
with all goods in his line, imports a consignment of the goods for sale,
and not a sale of them, by the second party to the first. WalTier v.
ButtericTc, 105 Mass. 237.

In the case of a common mistake as to the identity of the subject-
matter of sale, one party having one thing in view, the other another,
there is no sale of either. Sheldon v. Capron, 3 E. I. 171 ; ante, § 6.
So, that wliich has no actual or potential existence cannot be the sub-
ject of bargain and sale. Ante, § 4. Thus, until a crop is actually
growing, or at least until the seed is planted, the crop has no existence
actual or potential, and no part of it can be sold so as to pass the title, and
authorize a recovery in trover. Noyes v. JenTcins, 55 Ga. 586 ; Apper-
son V. Moore, 30 Ark. 56 ; S. C, 21 Am. Rep. 170. See, also, Cudworth
V. Scott, 41 X. H. 456 ; Butt v. EUett, 19 Wall. (U. S.) 544.

A promise by a debtor to his creditors, that if they would abstain
from suing him, he would, within a short time, send a specified stock
of merchandise to an auctioneer to be sold and the proceeds to be
applied to the payment of their claims, was held not to be a sale of
the goods. Ochs v. Price, 6 Heisk. (Tenn.) 483.

So, an agreement by an attaching creditor that the debtor should
retain and sell the property as agent, on such creditor's account, unac-
companied by counting, weighing, or fixing a price, was held not to
constitute a sale. Gray v. Millay, 61 Me. 327. And where property
is put up at auction by the master of a ship, as agent of his owners,
and bid in by him to prevent a loss, it is, in contemplation of law, no
sale of the property. Barker v. Marine Ins. Co., 2 Mas. (C. C.) 369.

Where a brewer sold and delivered a quantity of ale, in barrels bear-
ing his brand, to a retailer, upon the agreement that the barrels should
be returned, after the ale was withdrawn and if any were not re-
turned, they should be paid for at $2 per barrel, — it was held that
the property in the barrels remained in the vendor, and that the speci-
fication of their value did not operate to give an election to the vendee
to retain them at that price, but merely to fix the damages in respect
to such as he should be unable to return. Westcott v. Thompson, 18
K Y. (4 Smith) 363.

§ 9. Contract of sale in writing. Where the contract of sale rests
wholly in parol, all that jwisses between the parties may sometimes bo

540 SALES.

taken too-ether as forming parcel of the contract. But if the contract
be finally reduced to writing, and sucli written contract be capable of
a sensible construction, and there has been no fraud or imposition in
obtainino- it, such construction must be determined by the language
found in the instrument itself, and cannot be affected by parol evidence
of what was said by the parties at, or before, the time of execution.
Pichering v. Dowson, 4: Taunt. Y79 ; Kain v. Old, 2 Barn. & C. 634 ;
Sayre v. Peck, 1 Barb. 464 ; Cash v. JlinUe, 36 Iowa, 623 ; Wynn v.
Cox, 5 Cxa. 373; Ridgway v. Bowman, 7 Cush. 268; Wright v.
Crookes, 3 Scott, N. K. 685. The very object of reducing the contract
to \\Titing is to avoid all parol evidence as to what the agreement is,
and to satisfy each party of the understanding of the other, as to the
stipulations of both. Id. ; Story on Sales, § 137. If the parties have
expressed themselves in language so vague and unintelligible that the
court finds it impossible to attach a definite meaning to their agreement,
it cannot take effect. Guthing v. Ly7m, 2 B. & Ad. 232. And see
Moulding v. Prussing, 70 111. 151. But an agreement is not to be
deemed unintelligible because of some error, omission, or mistake in
drawing it up, if the real nature of the mistake can be shown, so as to
make the bargain intelligible. Both courts of law and courts of equity
may correct an obvious mistake on the face of the instrument without
the slightest difficulty. Wilson v. Wilson, 5 H. L. Cas. 40 ; Coles v.
Hulme, 8 Barn. & C. 568 ; Benj. on Sales (2d ed.), 44. See, also, Colt\.
Cone, 107 Mass. 285 ; Smith v. Dallas, 35 Ind. 255 ; Kelley\. Roberts,
40 N. Y. (1 Hand) 432. And it would seem that the courts will con-
strue an instrument of the class under consideration into a present sale,
rather than into an executory agreement to sell, there being nothing in
the transaction to indicate a different intent. Martin v. Adams, 104
Mass. 262 ; Welch v. Moffat, 1 Sup. Ct. N. Y (T. & C.) 575 ; 3fcCra&
v. Yotmg, 43 Ala. 622.

If there be a material difference between the note of a bargain de-
livered by a broker to the vendee, and that delivered to the vendor^
there is held to be no contract of sale. Suydam v. Clark, 2 Sandf.
(N. Y.) 133 ; Peltier v. Collins, 3 Wend. 459.

The words " more or less," in a written contract of sale, may cover
a variation that is unimportant in amount; but they were held not to
allow a variation of 7,000 feet, in a contract for the sale of 23,000 feet
of lumber. Creighton v. Comstock, 27 Ohio St. 548.

The intention of the parties in contracts of sale is to be collected
from the whole instrument, and in carrying this intent into effect, the
courts will disregard the literal import of particular words when incon-
eistcnt with the inteutinn. Thayerx. Lapham, 13 Allen, 26; Kelly

SALES. 541

Y.Upton, 5 Duer (N. Y.), 336. And it is competent to receive ex-
trinsic evidence to aid the court in construing the contract, when it re-
fers to principles of science or art, or where technical phraseology of
some profession or occupation is used, or where the writing uses new
and unusual words, or common words in a technical sense {Brown
V. Orlandy 36 Me. 376 ; WUlmering v. McGaugftey, 30 Iowa, 205 ; S.
C, 6 Am. Kep. 673; Pixley v. Boynton, 79 111. 351) ; but where it is
not apparent that the language is used in any new, peculiar, or techni-
cal sense, extrinsic evidence is not admissible to aid in its construction.
Cash V. Hbikle, 36 Iowa, 623.

§ 10. Executed and executory contracts. See Yol. 1, p. 71. When
any thing remains to be done by either or both the parties to a con-
tract of sale, before delivery, either to determine the identity of the
thing sold, the quantity, or the price, the contract until such things are
done is executory merely, and the title does not vest in the purchaser.
Ealex. Huntley, 21 Yt. 117; Hudson v. Weir, 29 Ala. 291; Stone y.
Peacock, 35 Me. 385 ; Cunningham v. AshhrooTc, 20 Mo. 553 ; DevoMe
V. Fennell, 2 Ired. (N. C.) L. 36 ; Heillutt v. Hickson, L. E., 7 C. P.
138 ; S. C, 3 Eng. E. 328. And so inflexible is this rule, that when
the property has been delivered, if any thing, as just stated, remains to
be done by the terms of the contract before the sale is complete, the
title to the property still remains in the vendor. Ward v. Shaw, 7
Wend. 401 ; Parker v. Mitchell, 5 IST. H. 165 ; Gihls v. Benjamm,,
45 Yt. 124. The transaction is rather an agreement to sell than a sale.
Welsh Y.Bell, 32 Penn. St. 12; Martin \ . Hurlbut, 9 Minn. 142;
Straus V. Ross, 25 Ind. 300. To effect a complete sale, the contract
must be executed {GihbsY. Benjamin, 15 Yt. 121; Fletcher \. Peck,
6 Cranch [U. S.], 136) ; that is, there must be nothing left undone be-
tween the buyer and seller in relation to the goods, although a contract
of sale may be an executed one, notwithstanding something remains to
be done by one of the parties, as, for instance, the payment of the pur-
chase-money. Beller v. Block, 19 Ark. 566; Evans v. Harris, 19
Barb. 116. See McClung v. Kelley, 21 Iowa. 508 ; Bell v. Farrar, 41
111. 400 ; Langton v. Waring, 18 C. B. (N. S.) 315. So, the mere fact
that the quantity of a thing sold remains to be ascertained does not
itself prevent the right of property in a chattel from passing by the
sale. It is only when something is to be done for the ascertainment
of the quantity, hy the very terms of the contract, that the sale is in-
complete. Pennis v. Alexam^der, 3 Penn. St. 50. If a quantity of
goods bargained for at a certain rate is actually delivered, the sale is
complete, although the goods are to be counted, weighed or measured,
in order to ascertain the amount to be paid for them. Macomher v.

542 SALES.

ParTcer, 13 Pick. 175. See, also, Chamblee v. IfcXensie, 31 Ark. 155.
Such weighing, measuring or counting will not be regarded as a part
of the contract of sale, but vrill be considered as referring to the ad-
justment on a final settlement. Ober v. Ca/'san, 62 Mo. 209.

§ 11. Transfer of specific ciiattels. Where specific and ascer-
tained existing goods or chattels are the subject of a contract of imme-
diate and present sale, and whether there be a warranty of quality or
not, the property generally passes to the purchaser upon the comple-
tion of the bargain, and the vendor thereupon has a right to recover
the price, unless from other circumstances it can be collected that the
intention was that the property should not at once vest in the pur-
chaser. HeiTbutt v. Eickson, L. E., 7 C. P. 438 ; S. C, 3 Eng. K. 32S ;
Dixon v. Yates, 5 B. & Ad. 313. The very appropriation of the chat-
tel is equivalent to delivery by the vendor, and the assent of the vendee
to take the specific chattel and to pay the price is equivalent to his ac-
cepting possession. The effect of the contract, therefore, is to vest the
property in the bargainee. Id. And see Chambers v. Miller, 13 C. B.
(K S.) 125; Calcutta Company y. DeMattos, 32 L. J. Q. B. 322;
Biddle v. Varnum, 20 Pick. 280 ; Bailey v. Smith, 43 K. H. 141 ;
Morse v. Sherman, 106 Mass. 430 ; Wehher v. Davis, 44 Me. 147 ;
McNamara v. Edmister, 11 Hvm (]S^. Y.), 597; Jenkins \. Jarrett,
70 K C. 255. ^eepost, §§ 37, 38.

The rule is otherwise, however, where specific chattels are bargained
for under a contract of immediate sale, and something still remains to
be done to them by the mutual understanding of the parties. In such
case the presumption is against a transfer of ownership until the per-
formance of the thing has taken place. Two rules on this subject, the
substance of which has been applied in numerous English and Ameri-
can decisions, are stated by Blackbukn, J., as follows : First, where,
by the agreement, the vendor is to do any thing to the goods for the
purpose of putting them into that state in which the purchaser is to be
bound to accept them, or as it is sometimes worded, into a deliverable
state, the performance of these things shall, in the absence of circum-
stances indicating a contrary" intention, be taken to be a condition pre-
cedent to the vesting of the pro^^erty. Second, where any thing re-
mains to be done to the goods, for the purpose of ascertaining the price,
as by weighing, measuring, or testing the goods, when the price is to
depend on the quantity or quality of the goods, the performance of
these things also shall be a condition precedent to the transfer of the
property, although the individual goods be ascertained, and they are in
the state in wliicli they ought to be accepted. Blackb. on Sales, 151,
152. As illustrating the application of these rules, see Acraman v.

SALES. 543

Mor/'ice, 8 C. B. 449 ; Campbell v. Mersey Docks Company ^14: C.B.
(N. S.) 412 ; Logan v. LeMesurier, 6 Moore's P. C. 116 ; Tansley v.
Turner, 2 Bing. K. C. 151 ; Castle v. Playford, L. R., 5 Exch. 165 ;
S. C, 7 id. 98 ; Barrett v. Goddard, 3 Mas. (C. C.) 107 ; Cooker. Mil-
lard, 65 N. Y. (20 Sick.) 352 ; S. C, 22 Am. Rep. 619 ; Allman v.
Davis, 2 Ired. (N. C.) 12 ; Lingham v. Eggleston, 27 Mich. 324, and
cases cited in the preceding section. It may, however, be observed in
this connection, that the rules are not apphed in the American decisions
without more or less variation, and, as will be hereafter seen, the cases
are far from being harmonious on the subject, especially as it regards
the application of the second rule, as above stated. See post, §§
23, 38. But a third rule may be added, with respect to which the
authorities are harmonious, namely, that where the buyer is by the
contract bound to the performance of a condition, either precedent or
concurrent, the property does not pass even by actual delivery, until
the performance of the condition. Brandt v. Bowlhy, 2 B. & Ad, 932 ;
8>pain V. Shepherd, 1 Moo. & Rob. 223 ; Benj. on Sales (2d ed.), 236 ;
McNamara v. Ed mister, 11 Hun (X, Y.), 597. ^eej^ost, §§ 15, 38.

§ 12. Transfer of chattels not specific. Before an actual transfer
of the property in chattels not specific can take place, it is in general in-
dispensable that the subject-matter be made specific. Until this is done
and the parties are agreed as to the specific identical goods, the contract
can be no more than an executory agreement to sell, and the property
does not pass. Gillett v. Hill, 2 C. & M. 530 ; Austin v. Craven,
4 Taunt. 644 ; Scudder v, Worster, 11 Cush, 573. But if the goods
sold are clearly identified, then, although it may be necessary to number,
weigh, or measure them, in order to ascertain what would be the price
of the whole at a rate agreed upon between the parties, the title will
pass. Thus, if a flock of sheep is sold at so much per head, and it is
agreed that they shall be counted after the sale in order to determine
the entire price of the whole, the sale is valid and complete. But if a
given number out of the whole are sold no title is acquired by the pur-
chaser until they are separated, and their identity thus ascertained and
determined. Crofoot v. Bennett, 2 N, Y. (2 Comst.) 258, The dis-
tinction in all such cases is said not to depend so much upon what is to
be done as upon the object which is to be effected by it. If that is
specification, the property is not changed ; if it is merely to ascertain
the total value at designated rates, the change of title is effected. Id,
And see Rus^>d^ v. Carrmgton, 42 N. Y. (3 Hand) 118 ; S. C, 1 Am.
Rep. 498 ; Fitch v. Bnrk, 3S Yt. 683 ; Bush v. Barfidd, 1 Coldw.
(Teim.) 92 ; Craicford v. Smith, 7 Dana (Ky.), 59,

The same general doctrine is applicable in the case of articles not

54i SALES.

in existence, but to be made or manufactured to order. Where
a party orders a thing to be made, such as a carriage or any other
article, it does not become his property until it is delivered into his
possession, even though he may have paid for it in advance, or fur-
nished a large portion of the materials of which it is constructed ; but
during its production it is, and after it is finished it continues to be,
up to its delivery, the property of the person who produced it. Muck-
low V. Mangles^ 1 Taunt. 318 ; Wilkins v. Bromhead, 6M. & G. 963 ;
Moody V. Brown, 34 Me. 107 ; First Nat. Bank v. Crowley, 24 Mich.
492 ; Eider v. Kelley, 32 Yt. 268 ; Halterline v. Rice, 62 Barb. 593 ;
Fairfield Bridge Co. v. Nye, 60 Me. 372 ; Mclntyre v. Klitie, 30 Miss.
361 ; School District v. DaucJiy, 25 Conn. 530. See Cooke v. Millard,
65 N". y. (20 Sick.) 352 ; S. C, 22 Am. Rep. 619. But, while this is
the rule, it is equally well settled that it is competent for the parties to
agree that the thing to be produced, from the beginning, or at any
stage of its production, is to be the property of the person who ordered
it, and that where a mutual assent to that effect is shown by unequivo-
cal acts or declarations, the title passes before dehvery. Woods v. Bus
sell, 6 B. & Aid. 942 ; Brown v. Bateman, L. R., 2 C. P. 272 ; An-
drews V. Burant, 11 K. T. (1 Kern.) 42 ; Wright v. O'Brien, 5 Daly
(N. Y.), 54.

§ 13. Subsequent appropriation. After an executory contract of
sale has been entered into, it may be converted into a complete bargain
and sale, by the subsequent appropriation of specific chattels to the con-
tract. Merchants' Nat. Bank v. Bangs, 102 Mass. 291, 295. The
selection of the goods by one party, and the adoption of that act by the
other, converts that which was before a mere agreement to sell into an
actual sale, and the property thereby passes. Rohde v. Thioaites, 6
Barn. & C. 388. See, also, Aldridge v. Johnson, 7 El. & Bl. 885 ;
Wait V. Baker, 2 Exch. 1. The authority to appropriate may rest in
the buyer alone, or in the seller alone (see id.) ; but the only difficulty
that can arise on this question is presented in cases where the latter, and
not the former, is bound to make the api)ropriation. Thus, a common
mode of transacting business is for one merchant to give an order to an-
other to send him a certain quantity of merchandise, as, for instance, so
many hogsheads of sugar. In such case it becomes the vendor's duty to
appropriate the goods to the contract, and the difficulty is to determine
what constitutes the appropriation ; in other words, to find out at what
precise point the vendor is no longer at liberty to change his intention.
It is clear that if the hogsheads of sugar were ordered out of a lot of
sugar in bullc, and the seller, after taking out the number ordered, gave
notice to the buyer to take them away, which the latter promised to do,

SALES. 545

the property in the goods has thereby passed to the buyer. Rhode v.
Thwaites, 6 Barn. & C. 388. See, also, Fragano v. Long, 4 id. 219 ;
Alexander v. Gardner, 1 Bing. N. C. 671 ; Wilkins v. BromJiead, 7
Scott X. H. 921 ; S. C, 6 M. & G. 963. And even without such
distinct assent on the part of the buyer, merely dispatching the separate
goods, under circumstances favoring the supposition that the seller
meant to shift the property, has been deemed sufficient to make the ap-
propriation complete. See Langton v. Hlggins, 4 Hurl. & X. 402;
Sparkes v. Marshall, 2 Bing. N. C. 761 ; Aldridge v. Johnson, 7 El.

6 Bl. 885 ; Jenner v. Smith, L. R., 4 C. P. 270 ; Tregelles v. Sewell,

7 Hurl. & N. 671. But see Atkinson v. Bell, 8 Bam. & C. 277. The
delivery of goods to the buyer or his agent, or to a common carrier,
consigned to him, whether a bill of lading is taken or not, if there is
nothing in the circumstances to control the effect of the transaction,
wiU be a sufficient appropriation. Dutton v. Solomonson, 3 Bos. & P.
582; Magruderv. Gage, 33 Md. 344; S. C, 3 Am. Rep. 177; Krulder
V. Ellism, 47 N. Y. (2 Sick.) 36 ; S. C, 7 Am. Rep. 402. And if the biU
of lading, or other written evidence of the delivery to the earner, be
taken in the name of the consignee, or be transferred to him by indorse-
ment, the strongest proof is then afforded of the intention to transfer an
absolute title to the vendee. Id. ; Griffith v. Ingledeio, 6 Serg. & R. 429 ;
Merchants' Nat. Bank v. Bangs, 102 Mass. 291. The vendor may, how-
ever, retain his hold upon the goods to secure payment of the price,
although he puts them in course of transportation to the place of destina-
tion, by delivery to a carrier ; and the appropriation which he then makes
is said to be provisional or conditional. Thus, he may take the bill of
lading or carrier's receipt, in his own or some agent's name, to be trans-
ferred on payment of the price, by his own or his agent's indorsement
to the purchaser, and in all cases where he manifests an intention to
retain this^'w.s dlsponendi, the property will not pass to the vendee.
Id. ^QQpost, § 14.

As it regards subsequent appropriation in cases of chattels manufac-
tured to arder, the rule is not essentially different from that applied in
cases of other chattels not specific, which require appropriation to pass
the title. A contract for the sale of a chattel not yet finished must
generally be regarded as executory mei-ely ; but if the parties have man-
ifested their intent that the transfer of property shall take place in the
unfinished product at once, that intention will take effect. See ante^
543, § 12 ; Tming v. Matthews, L. R., 2 C. P. 127. So, it has been held
that if the vendor has done every thing he was to do under an execu-
tory agreement for the manufacture and sale of a specific chattel, which
was to be manufactured in accordance with the terms of the agreement,
Vol. v.— 69

546 SALES.

and has given notice thereof to the purchaser, the general property in
the chattel vests in the purchaser, and the chattel is at his risk. Goddard
V. Birmey, 115 Mass. 450 ; S. C, 15 Am. Kep. 112. In Elliott v.
Pyhus, 10 Bing. 512, a machine was ordered by the defendant, and he
deposited with the plaintiff a portion of the price. When completed,
he saw the machine, and made another payment on account, but did not
make a final settlement. In reply to a demand for the balance of the
account, the defendant admitted that the machine was made according
to his order, and asked the plaintiff to send it to him before it was paid
for ; and this was held to be an assent to the appropriation, and a count
for goods bargained and sold was maintained. So, the appropriation of
a green-house was held to be complete, so as to transfer the property to
the buyer, where the latter, on being informed that the article was fin-
ished, remitted the price as requested, without seeing it, and asked the
builder to keep the green-house until he should send for it. Wilkins
V. Bromhead, 7 Scott, N. E. 921 ; S. C, 6 M. & G. 963. But it is held
that the mere tender of an article manufactured pursuant to the order
of a customer does not transfer the title to the latter ; nor does leav-
ing the article with the customer, against his will, have this effect. To
pass the title, there must generally be an acceptance, either express or
implied. Moody v. Brown, 34 Me. 107. And see Fairfield Bridge
Co. V. N'ye, 60 id. 372 ; Tripp v. Armitage, 4 M. & W. 687 ; Atkinson
V. Bell, 8 Barn. & C. 277. But see Bement v. S7nith, 15 Wend. 493.
An exception to this rule is said to exist when the customer employs a
superintendent, and pays for the property by installments as the work
progresses. Moody v. Broion, 34 Me. 107. See, also, Sandford v.
Wiggins Ferry Co., 27 Ind. 522 ; Woods v. Russell, 5 B. & Aid. 942 ;
Clarke v. Spence, 4 Ad. & El. 467 ; In re Lindsay, L. E.., 10 Cli. App.
405 ; S. C, 12 Eng. K. 782. But see Oreen v. Hall, 1 Houst. (Del.)
506 ; Elliott v. Edwards, 6 Yroom (N. J.), 265 ; Willia/ins v. Jackr
man, 16 Gray, 514 ; Andrews v. DuroAit, UN. Y. (1 Kern.) 35.

§ 14. Seller's right of sale. However definite and complete may
be the determination of election on the part of the vendor, where, by
the contract of sale, the choice of appropriation has been left to him, the
property will not pass if his acts show clearly his purpose to retain the
ownership, notwithstanding such appropriation. As we have seen in
the preceding section, the act of appropriation, under such circumstances,
is said to be provisional or conditional. This reservation of the seller's
title, or as it is technically known, the seller's reservation of i\\ejus dis-
ponendi, is illustrated by cases which arise where the parties reside far
apart, where they contract by correspondence, and where the seller
desires to secure himself against the insolvency or default of the buyer.

SALES. 547

The practical difficulty in any given case is, to determine whether or not
the vendor's purpose or intention was really to reserve a jus disponendi.
It is properly a question of fact for the jury, under proper instructions,
and must be submitted to them, unless it is plain as matter of law that
the evidence will justify a finding but one way. Allen v. Williams,
12 Pick. 297 ; Stevens v. Boston, etc., R. R. Co., 8 Gray, 262 ; Godts
V. Rose, 17 C. B. 229 ; Moakes v. Nicholson, 19 C. B. (j^. S.) 290- ;
Shepherd v. Harrison, L. K, 4 Q. B. 196 ; S. C, id. 493 ; L. K., 5 H.
L. 116 ; Ogg v. Shuter, L. K, 10 C. P. 159 ; S. C, 11 Eng. R. 316 ;
City Bank v. Rome, etc., R. R. Co., 44 1^. Y. (5 Hand) 136 ; Mer-
chants^ Nat. Bank v. Bam,gs, 102 Mass. 291. It maybe observed in
this place that the reservation by the seller of the jus disponendi
should not be confounded with the special right of stoppage m t/ransitu,
in certain cases of a buyer's insolvency — a mattsr that will be consid-
ered, j?6>5^, 611, Art. 3, § 5.

§ 15. Conditional sales. A conditional contract is an executor)-
contract, the performance of which depends upon a condition. The
distinction pointed out between them is, that a purely executory contract
is absolutely to sell at a future time, while a conditional contract is
conditionally to sell. Story on Sales, § 246. A condition may be either
precedent or subsequent. The former is one which must happen before
either party becomes bound by the contract {Boyd v. Siffkin, 2 Camp.
326 ; JEllis v. Mortimer, 1 New R. 257) ; the latter is one which will
defeat and annul the contract by the subsequent failure thereof. Hay-
den V. Stoughton, 5 Pick. 528. It is not necessary to constitute a con-
dition precedent, or a condition subsequent, that it should be declared
in express terms at the time of the sale. It is sufficient if the intent of
the parties can be inferred from their acts or the circumstances of the
case. Tufts v. Kidder, 8 Pick. 537 ; Hammett v. Linnemam., 48 N.
T. (3 Sick.) 399.

The subject of conditional sales will be best illustrated by instances
from recent decisions. A sale and delivery of goods, upon condition
that the title shall not pass until the payment of the price in cash,
is held to give the vendee no title which he can convey to a purchaser
in good faith, and for a valuable consideration. Deshon v. Bigelow,
8 Gray, 159; Bauendahl v. Horr, 7 Blatchf. (C. C.) 548; Adams v.
O'Connor, 100 Mass. 515 ; S. C, 1 Am. Rep. 137; Jowers v. Blandy,
58 Ga. 379; Fifield v. Elmer, 25 Mich. 48; Duncan v. Stone, 45
Vt. 118; Walash Elevator Co. v. First Nat. Bank, 23 Ohio St.
311 ; Ca/rroll v. Wiggins, 30 Ark. 402 ; Ridgeioay v. Kennedy, 52
Mo. 24; Thompson v. Ra/y, 46 Ala. 224; Paul v. Reed, 52 X.
H. 136 ; Morris v. Rexford,''lS N. Y. (4 Smith) 552. So, where

548 SALES.

goods are sold on time, and delivered to the vendee, it being
part of the contract that they are to be paid for by the negotiable
note of the vendee, such payment is a condition precedent to the
sale, and the title to the goods will not vest without such payment
or a waiver of it. Hirschorn v. Canney, 98 Mass. 149 ; Stone v.
Perry, 60 Me. 48 ; Seed v. Lord, (j^y id. 580. And where the owner of
property consigns it to another under an agreement that when paid
for it shall become the property of the consignee, the title does not
pass to the latter until the condition is complied with, and it is not
liable to levy and sale upon execution against him. ]^or does the fact
that the consignee is a dealer in property of the kind, and has au-
thority to sell, provided he remits the proceeds, or to make a similar
conditional sale recognizing the title of the consignor, operate to pass
the title to the former. Cole v. Mami, 3 N. Y. Sup. Ct. (T. & C.) 380 ;
S. C. affirmed, 62 N. Y. (17 Sick.) 1 ; Powell v. Preston, 1 Hun {^.
Y.), 513 ; S. C, 3 T. & C. 644. It has been further held that property
in the possession of a vendee who is not to become the owner of the
title until he has fully paid for the same, may, at any time before the
price is wholly paid, be mortgaged or sold by the vendor to another
person, and such person will acquire a title to the property thereby,
superior to that of the conditional vendee. Everett v. Hall, 67 Me.
497. See, also. Brown v. Haynes, 52 id. 578 ; Davis v. Bradley, 24
Yt. 55 ; Porter v. Pettengill, 12 N. H. 299 ; Hubbard v. Bliss, 12
Allen, 590. But see, contra, Smith v. Lyries, 5 IS". Y. (1 Seld.) 41.
In Sage v. Sleutz, 23 Ohio St. 1, a piano had been sold and delivered,
payable in monthly installments of " rent," and it was held that the
invalidity of the title of a creditor of the purchaser upon levying thereon,
was not aided by the officer's tendering to the vendor the amount of
the purchase-money then remaining unpaid. See, also, Giddey v. Alt-
man, 27 Mich. 206 ; Goldsmith v. Bryant, 26 Wis. 34. So, A deliv-
ered personal property to B, under a contract, not recorded, that B
should pay the price by installments, and that, until such payment in
full, the title should not vest in B, but should remain in A. Before
full payment by B, he sold and delivered the property to C, who had
no notice of the terms of the contract between A and B, but bought
the property on the faith of B's possession, — and it was held that C
acquired no title as against A, and that A could recover the property
from C, after the breach of tlie condition on which the title was to vest
in B. Ketchum v. Brennan, 53 Miss. 596. See, also, Ballard v.
Burgett, 40 N. Y. (1 Hand) 314. In Smmier v. Woods, 52 Ala. 94,
it was held that a purcliaser of a sewing machine from one in posses-
sion, but without title, could not defeat a recovery by tho owner, unless

SALES. 549

he could show a hona fide purchase, for valuable consideration, without
notice. And see Dudleys. Ahner, id. 572; Vaughn v. Hojpson^ 10
Bush (Ky.), 337.

In case of a conditional sale, where the title is to vest in the purchaser
upon payment of the price, the purchaser may perfect his title to the
property at any time by a tender of the price, although it is payable by
installments, and they are not all due. And if the seller claims that
the amount already paid is forfeited by the failure of the purchaser to
pay one of the installments when due, it is his duty to inform the pur-
chaser of such claim, in order that he may pay or tender such amount.
Cushman v. Jewell, 7 Hun (N. Y".), 525. And see Reese v. Beck, 24
Ala. 651. So, if one buys a chattel conditionally and obtains possession
by fraudulent representations, and then sells to an innocent purchaser,
it is held that the title vests in the latter, Yaughn v. Hopson, 10 Bush
(Ky.), 337. And see Mowrey v. Walsh, 8 Cow. 238.

Where a mare being with foal was sold, but with the condition that
she was to " remain the property of the vendor until paid for," it was
held that the colt subsequently foaled continued the property of the
vendor until the performance of the condition. Allen v. Delano, 55
Me. 113.

And where a party bargained for a horse, but was to perform a con-
dition precedent to the vesting of his title and right of possession, and
failed to perform such condition, it was held that he could not maintain
case or trover for the value of the horse against a bailee who was to
deliver him on the performance of such precedent condition. Ferrier
V. Wood, 9 Ark. 85.

In the case of an entire contract, the condition precedent imposed by
law upon the seller of delivering the whole quantity is not affected
by the circumstance that the buyer has not paid for the portion already
delivered. Shinn v. Bodine, 60 Penn. St. 182 ; Ifetz v. Alhrecht, 52
111. 491 ; Mount v. Lyo7i, 49 X. Y. (4 Sick.) 552 ; Timmons v. Nelson,
66 Barb. 594. And so, where the agreement is explicit in postponing
payment to the delivery of the last load or parcel. Henderson v. Lauck,
21 Penn. St. 359. On the other hand, if the buyer is to remove the
goods from the seller's premises, and the contract is silent as to the time
of payment, the goods must be paid for at once and in full, and not
proportionally as they are removed in parcels. Brehen v. 0' Donndl,
34 IST. J. Law, 408. See Bankart v. Bowers, L. R., 1 C. P. 484 ;
Withers v. Reynolds, 2 B. & Ad. 882.

If one sells and delivers property to another absolutely, and the par-
ties subsequently make it a conditional sale, a change of possession is
held to be necessary in order to protect the property from attachment

550 SALES.

by the creditors of the vendee. Wright v. Vmtghn, 45 Yt. S90. But
a contract absolute in its inception, and consummated bj delivery, -.vill
not be converted into a conditional sale by an ambiguous phrase in-
dorsed upon it afterward, even if such would have been its effect had
it been a part of the original contract. Caraway v. Wallace^ 2 Ala.
542.

An agreement, whereby a vendor sells chattels to another and de-
livers them to him on condition that the purchaser shall pay over to
the vendor the first money received on their resale, or, if he does not
do so, that they shall be subject to the vendor's order at any time, will
have the effect to pass the title to the purchaser, if that was the inten-
tion of the parties. Chamberlain v. Dickey^ 31 "Wis. 68. And see
Smith V. Dallas^ 35 Ind. 255. By mutual agreement, the property
may likewise be made to vest primarily, not in the buyer, but in some
third party. See Sheffer v. Montgomery, 65 Penn. St. 329 ; Worthy
V. Cole, 69 N. C. 157. And where A negotiated for the purchase of
a chattel, and, at his request, B paid for it upon the agreement that he
was to hold it as his own until he was repaid, and the chattel was de-
livered to them under such agreement, it was held that the title vested
in B. Tainter v. Lombard, 53 Me. 369.

In all doubtful cases the law will construe a contract to be a mort-
gage rather than a conditional sale {a/nte, Yol. 2, p. 168), still, the inten-
tion of the parties to the contract is the true test, and when a condi-
tional sale is clearly established, it will be enforced. Hughes v. Sheaff,
19 Iowa, 335. An instrument for the sale of property, containing a
provision that the ownership is to remain " exclusively vested " in the
seller and not to be vested in the defendants, unless prior to a certain
date they fully pay the purchase-money, is an instrument of condi-
tional sale, and is not a mortgage. Mount v. Harris, 9 Miss. 185 ;
Plummer v. ShiHey, 16 Ind. 380 ; Bryant v. Crosby, 36 Me. 562.
And generally, an agreement to convey property on the payment of
certain sums of money and the performance of certain conditions, fol-
lowed by delivery of ]3ossession, constitutes a conditional sale and not
a mortgage. Rowan v. Union Arms Co., 36 Yt. 124. If A transfer
stock to B for the purpose of having B give his own stock note to a
bank for the acconniiodation of A, and with the agreement that if A
does not pay the del>t to the bank on its becoming due, that the stock
shall be B's absolutely, it is a conditional sale and not a pledge.
Lecuoell v. Robinson, 2 Leigh (Ya.), 161. A chattel was conveyed by
an absolute bill of sale for its full value actually paid, and indorsed
upon it was a note that the sale should be void upon repayment of the
money within a specified time, and this was held to l>c ;i conditional

SALES. '551

sale. Poindexter v. McCan/non, 1 Dev. (N. C.) Eq. 373. See, also,
Thompson v. Chumney^ 8 Tex. 389. Where goods were sold at
auction, to be paid for in an approved note at six months, and were de-
livered, but the vendee refused to give the note, it was held that the
sale and delivery were conditional, and, as the condition was not com-
plied with, the vendor might treat the sale as an absolute one and
maintain an action for the goods forthwith. Corlles v. Gardner 2
HaU (N. T.), 345.

Where the act of a party, for whose benefit conditions precedent
attach, is relied on as an excuse for non-performance, it must be the
proximate and not the remote cause of the failure to perform, and
must be of such a character as to render performance impossible,
or induce the belief that it was waived, or, if attempted, would not be
accepted. BrooTclyn Life Ins. Co. v. Bledsoe^ 52 Ala. 538. And
see on this point, Ilothmn v. East India Co., 1 Term E.. 645 ; Frost
V. Knighty L. E., 5 Exch. 322 ; Ford v. Cotesworth, L. K., 4 Q. B.
127 ; Knowles v. Dabney, 105 Mass. 437 ; Smoot v. United States, 15
WaU. 36 ; Burtis v. Thompson, 42 N. Y. (3 Hand) 246 ; S. C, 1 Am.
Kep. 516.

§ 16. Sale or return, or on trial. Where goods are sold and de-
livered by the vendor, who takes the promise of the vendee to return
them within a limited time, or a reasonable time, if none be limited,
or pay a sum of money therefor, the property, by the delivery, vests
in the vendee, subject to an option in him to return the goods within
the time. If the vendee exercises this option by so returning them,
the contract of sale falls to the ground and is defeated as if it had
never existed ; if he does not, the sale becomes absolute and the price
of the goods may be recovered in an action for goods sold and delivered.
Moss V. Sweety 16 Ad. & El. (N. S.) 493 ; Jameson v. Gregory, 4
Mete. (Ky.) 363; Spickler v. Marsh, 36 Md. 222; SchUsinger v.
Stratton, 9 R. I. 578 ; Buffum v. Merry, 3 Mas. (C. C.) 478 ; Cham\-
lerlain v. Smith, 44 Penn. St. 431 ; Hall v. ^tna Manuf. Co., 30
Iowa, 215 ; Crocker v. Gullifer, 44 Me. 491. So, if the vendee misuse
the property dm-iug the time, so as materially to impair its value, the
sale becomes absolute and the vendor may recover the price. Bay v.
Thmnpson, 12 Cush. 281. See Head v. TatUrsall, L. R., 7 Exch. 7;
1 Eng. R. 140. But the title is not so complete in the vendee during
the time in wliich it is optional to return the property as to enable him
to maintain trover if it is taken away by the vendor. Sotithem v.
Cumiingha/in, 11 Each. (S. C.) 533. What is a reasonable time for
return is dependent upon the peculiar circumstances of each case (see
Ca/rter v. Carter, 14 Pick. 424) ; but fifteen years are held to far

552 SALES.

exceed the reasonable time allowed a purchaser to accept an optional
contract. Cooper v. Carlisle^ 17 N. J. Eq. 525.

The rules of law relative to sales " on trial " are, in many respects,
similar to those above noticed relative to the bargain of " sale or
return." An option to purchase if the buyer likes is, however, essen-
tially different from an option to return a purchase if he should not
like. In one case, the property will not pass until the option is de-
termined ; in the other, the property passes at once, subject to the
right to rescind and return. Hunt v. Wyina/ri^ 100 Mass. 198. And
see the cases cited above. In sales on trial, the buyer has the full
period agreed upon within which to retiu-n the property, if not ap-
proved of, but no more (see Moore v. Pieroy, 1 Jones [K. C], 131) ;
and, where no specified period has been fixed in advance, a reasonable
time is implied. Paige v. McMillan^ 41 "Wis. 337. It is the duty of
the buyer, if he disapprove, to make his disapproval known to the
seller in due season, or the contract will become binding by the resolu-
tion of the condition. Humphries v. Carvalho, 16 East, 45; Water^s
Heater Co. v. Mansfield, 48 Yt. 378 ; Quinn v. Stout, 31 Mo. 160 ;
Mowbray v. Cady, 40 Iowa, 604 ; Johnson v. McLane, 7 Blackf . (Ind.)
501. Although the seller lives at a distance, the buyer is bound to
seek him ; and if his residence was unknown, he must show that he
endeavored to discover it. Failing in these respects, the contract will
become absolute. Dewey v. Erie Borough, 14 Penn. St. 211. On
arriving at a determination whether to keep the thing or not, the
buyer is bound to bring to the trial of it honesty of purpose and judg-
ment, according to his capacity to ascertain his own wishes ; but he is
not necessarily bound to use the care and skill of ordinary persons in
making the determination. Hartford Sorghum Manuf Co. v. Brush,
43 Yt. 528. And it is immaterial that the chattel, after its return
to the seller, worked well under his management, without alteration or
repair. Aiken v. Hyde, 99 Mass. 183.

Where a cotton-gin was taken upon trial, in the spring of the year,
with an agreement to purchase if it answered its purpose, and notice
was sent in October following, by the party who took it, that it would
not perform and that he would not keep it, the party's election was
held to have been made seasonably. Hall v. Meriwether, 19 Tex. 224.

Another example of a conditional sale is to be found in the case of
a sale "on arrival." A sale on arrival is a sale of goods expected from
abroad, which is made before they arrive, tlic condition being that the
thing sold shall arrive, and that if it do not arrive, either from the vessel
being lost, or other accidental cause, and without any fraud or fault of
the vendor, the contract is at an end. Shields v. Pettee, 2 Sandf. (N.

SALES. 553

T.) 262 ; S. C. affirmed, 4 N. Y. (4 Comst.) 122 ; Hale v. Rawson, 4
C. B. (N. S.) 85 ; Smith v. Myers, L. R., 5 Q. B. 429 ; Story on Sales,
§. 249. The contract is executory, and does not pass the property in
the goods to arrive ; it is merely an agreement ^f or the sale and delivery
of the articles named, at a future period, when they shall arrive,
Beimers v. Eidner, 26 How. (N. Y.) 385 ; S. C, 2 Robt. 11 ; Bene-
dict V. Field, 16 N. Y. (2 Smith) 597 ; midon v. Smith, 36 N. J.
Law, 148.

§ lY. Sale by sample. When a contract for the sale of goods is
made by sample, strictly speaking, it amounts to an undertaking on the
part of the seller with the buyer, that all the goods are similar, both in
nature and quality, to those exhibited ; and, if they do not correspond,
the buyer may refuse to receive them, or, if received, he may return
them in a reasonable time allowed for examination, and thus rescind
the contract, or he may keep them and recover damages for the breach
of the implied warranty. Magee v. Billing sley, 3 Ala. 679 ; Parker
V. Palmer, 4 B. & Aid. 387 ; Lorymer v. Smith, 1 Barn. & C. 1 ;
WhittaTcer v. Hueske, 29 Tex. 355 ; Day v. Raguet, 14 Minn. 273 ;
Hanson v. Busse, 45 Bl. 496 ; Grimolhy v. Wells, L. R,, 10 C. P.
391 ; S. C, 12 Eng. Rep 451 ; Williams v. Stafford, 8 Pick. 250.
So, it is held that an executory contract to manufacture and deliver
articles, corresponding in all respects to a sample shown, binds the
party to furnish articles equal to the sample in manufacture, material,
description, quality, fitness and durability, for the use for which they
were designed. And if a defect exists which could not be determined
by examination upon the receipt of the articles, but only upon use, it
is not the duty of the vendee to rescind the contract, and return or
offer to return the property upon discovery ; but he may retain them
and recover or recoup his damages. Gurney v. Atlantic, etc., Railway
Co., 58 N. Y. (13 Sick.) 358. And see Day v. Pool, 52 K Y. (7 Sick.)
416 ; S. C, 11 Am. Rep. 719 ; Heilhutt v. Hickson, L. R., 7 C. P.
438 ; S. C, 3 Eng. R. 328 ; Jones v. Just, L. R., 3 Q. B. 197.

It must not, however, be assumed, that in all cases where a sample is
exhibited, the sale is a sale " by sample." If the contract be connected,
by the circumstances attending the sale, with the sample, and refer to
it, and it be exhibited as the inducement to the contract, it may be a
sale by sample ; and then the consequence follows that the seller war-
rants the bulk of the goods to correspond with the specimen exhibited
as a sample. Rose v. Beatie, 2 Nott & McC. (S. C.) 538 ; Brower v.
Lewis, 19 Barb. 574. And see the cases cited above. But the mere
circumstance that the seller exhibits a sample at the time of the sale
will not, of itself, make it a sale by sample, so as to subject the seller to
Vol. v.— 70

554 SALES.

liability on an implied warranty as to the nature and quality of the
goods ; it may be exhibited, not as a warranty that the bulk corresponds
to it, but merely to enable the buyer to form a judgment on its kind
and quality. Ganrdiner v. Gray^ 4 Camp. 144 ; Powell v. Hm^ton, 2
Bing. N. C. 668 ; Josling v. Kingsford, 13 C. B. (N. S.) 447 ; Barnard
V. Kellogg, 10 Wall. 383. Whether a sale be a sale by sample or
not is a question of fact for the jury to find from the evidence in each
case ; and to authorize a jury to find such a contract, the evidence must
satisfactorily show that the parties contracted solely in reference to the
sample exhibited. In other words, the evidence must be such as to
authorize the jury, under all the circumstances of the case, to find that
the sale was intended by the parties as a sale by sample. Waring v..
Mason, 18 Wend. 425 ; Osborn v. Gantz, 6 Jones & Sp. 148 ; S. C.
aflarmed, 60 N. Y. (15 Sick.) 540 ; Jones v. Wasson, 59 Tenn. (3
Bax.) 211 ; Beirrie v. Bord, 5 N. Y. (1 Seld.) 95. And see Boyd v.
Wilson, 83 Penn. St. 319.

A sale is sometimes made by what is known as " average sample."
Thus, if the goods sold consist of several varieties and qualities of the
same article, and the sample is made by mixing proportional parts of
the different varieties and qualities, the warranty is that the whole
quantity, if mingled together, would be of a quality equal to the sam-
ple ; and it is no breach of the warranty that some of the packages are
inferior to the sample, so long as it fairly represented the whole. Leon-
o/rd V. Fowler, 44 N. Y. (5 Hand) 289.

It has been said that the doctrine of implied warranty, in a sale by
sample, is not favored by the common law, and that, strictly speaking,
a contract of sale by sample is not a warranty of quality, but an agree-
ment of the seller to deliver, and of the buyer to accept, goods of the
same kind and quality as the sample. The principle applicable is, that
the seller must deliver that which he has agreed to sell, and if he does
not, the purchaser may rescind the contract, or receive the goods and
claim a deduction for their relative inferiority in value. Gunther v.
Atwell, 19 Md. 157. And see 1 Sm. Lead. Cas. (7th Am. Ed.) 326.
But, in the absence of fraud or latent defects, the acceptance of an
article upon an executory contract of sale, after an opportunity for exam-
ination, is a consent and agreement that the quahty is satisfactory and
conforms to the contract, and Ijars all claim for compensation on account
of any defects ; and the result is the same whether the agreement as to
the quality is implied or expressed. Dutchess Compa/ny v. Hardmig,
49 N. Y. (4 Sick.) 321 ; Gaylord Ma/nuf. Co. v. AlUn, 53 N. Y.
(8 Sick.) 515.

§ 18. Warranty in express terras. A warranty in a sale of goods " is

SALES. 665

an express or implied statement of something which a party midertakes
shall be a part of the contract, and, though part of the contract, collateral
to the express object of it." Lord Abestgek, in Chanter v. Hojjhins^ 4 M.
& W. 399. See, also, Mondel v. Steel, 8 id. 858 ; Foster v. Smith, 1 8 C. B.
156. Representations descriptive of the tiling sold, or which maybe
taken as expressive of the opinion of the vendor, do not necessarily import
a warranty. Baker v. Henderson, 24 Wis. 509 ; Horton v. Green, %^^.
C. 596 ; Tewhesbury v. Bennett, 31 Iowa, 83 ; Carter v. Black, 46 Mo.
384 ; Lawton v. Keil, 61 Barb. 558 ; Hopkins v. Tauqueray, 15 C; B.
130. Yet, where representations are made by the vendor, of the quality
of the thing sold, or its fitness for a particular purpose, if intended as a
part of the contract of sale, and the vendee makes the purchase relying
upon such representations, they will in law constitute a contract of war-
ranty. Id. ; Richardson v. Grandy, 49 Yt. 22. There may be an
express or implied warranty when the contract is executory as well as
when it is executed. Polheraus v. Heirtian, 45 Cal. 573 ; Parks v.
Morris, etc., Co., 54 oST. T. (9 Sick.) 586. But see Oshorn v. GantZy
60 K. Y. (15 Sick.) 540, where it is held that a warranty is an incident
only of a completed sale, and has no present vitality and force in an
executory contract of sale. See, also, Gumey v. Atlantic, etc.. Rail-
way Co., 58 N. Y. (13 Sick.) 358, 364. And a warranty made after
the sale, being wholly without consideration, is void, unless some new
consideration be given to support it. Summers v. Yaughan, 35 Ind.
323 ; S. C, 9 Am. Rep. 741 ; Congor v. Chamberlain, 14 Wis. 258 ;
Roscorla v. Thomas, 3 Q. B. 234.

No precise form of expression is necessary to create r. warranty. If
the vendor at the time of sale affirms a fact as to the essential qualities
of his goods in clear and definite language, and the purchaser buys on
the faith of such affirmation, that is an express warranty. Beats v.
Olmstead, 24 Yt. 115 ; Bryant v. Crosby, 40 Me. 9 ; Thome v. Mc-
Yeagh, 75 111. 81 ; Polhemus v. Heiman, 45 Cal. 573 ; Callanan v.
Broion, 31 Iowa, 333. But a mere affirmation that a thing is good or
sound, a general praise, commendation, opinion, or belief, does not
amount to a warranty when not so intended. Id. ; ONeal v. Bacon, 1
Houst. (Del.) 215 ; Leonard v, Peeples, 30 Ga. 61 ; Bond v. Clark,
35 Yt. 577; Baum v. SUvens, 2 Ired. (N. C.) L. 411 ; Reed v. Hast^
vngs, 61 111. 266 ; Dickens v. Williams, 2 B. Monr. (Ky.) 374. Thus,
the mere affirmation of the soundness of a horse, when exposed for sale,
is not a warranty, unless so intended by the parties. Foster v. Cald-
well, 18 Yt. 176 ; Honse v. Fort, 4 Blackf. (Ind.) 293. And if the
vendor, at a sale of his horse, say he is sure, he is safe, and kind, and
gentle in harness, it is a representation, not a warranty. Jackson v.

556 SALES.

Wetherill, 7 Serg. & K. 480. But an affirmation at the time of a sale
i=? a warranty, provided it appear in evidence to have been so intended.
Pasley v. Freeman^ 3 Term E,. 57. It is a question of intention from
the words used, the circumstances and the subject-matter, for the jury
to consider (Morrill v. Wallace^ 9 K. H. Ill ; Vincent v. Lelcmd,
100 Mass. 432 ; Thome v. Mc Veagh, 75 111. 81 ; Murray v. Smith,
4 Daly ['N. Y.], 277) ; though, if the question is raised upon a written
contract solely, the interpretation and effect of such contract is the prov-
ince of the court, rather than the jury. Brown v. Bigelow, 10 Allen,
242 ; Parks v. Morris, etc., Co., 54 N. Y. (9 Sick.) 586 ; Merriam v.
Field, 24 Wis. 640 ; Sparks v. Messick, 65 N. C. 440. See Stucley
Y. Bailey, 1 Hurl. & C. 405.

A warranty may be verbal, or in writing. Lindsay v. Damis, 30
Mo. 406. But if a representation is made in the course of a negotia-
tion for a sale, and the contract of sale is afterward reduced to writing
and signed, and does not contain the representation, it is excluded
from the contract, and does not amount to a warranty. Randall v.
Rhodes, 1 Curt. (C. C.) 90. Thus where the subject of sale was a ship,
which has been verbally represented by the seller to be "copper-fast-
ened," but the bill of sale of the ship contained no allegation of the
kind, it was held that the oral representation constituted no warranty.
Kain v. Old, 2 Barn. & C. 627. See, also, Pender v. Fohes, 1 Dev. &
Bat. (N. C.) 250. And, in general, parol evidence is inadmissible to
add a warranty to a written contract of sale, or to extend a warranty
therein expressed. Rice v. Forsyth, 41 Md. 389 ; Ranger v. Hearne,
37 Tex. 30 ; Merriam v. Field, 24 Wis. 640. But the oral contract of
warranty may be collected from the language and conduct of the par-
ties at two or more interviews. Pinney v. Andrus, 41 Yt. 631. And
the tones, looks, gestures, and the whole manner of the conversation,
maybe weighed by the jury in connection with the other surrounding
circumstances of the transaction. Horton v. Green, ^^ N. C. 596.
So, an express warranty may be made out from parol words and acts
followed by certain writings. Thus, where a sale of merchandise, with
warranty, is made verbally upon credit, the quantity not being then
ascertained, and the seller forwards a written bill of sale thereof, stating
quantity and price only, and subsequently ships the goods to the buyer,
the whole transaction becomes an executed contract of sale, with war-
ranty, as of the time when the goods are shipped. Foot v. Bentley,
44 N. Y. (5 Hand) 166 ; S. C, 4 Am. Eep. 652.

A warranty may be given by an agent as well as by the principal
party himself. An agent authorized to sell goods is presumed to pos-
sess the power of warranting their quality and condition, unless the con-

SALES. 55T

trary appear ; and this whether the agency be general or special. Up-
ton V, Suffolk County Mills, 11 Cush. 586 ; Boothhy v. Scales, 27 Wis.
626 ; Randall v. Kehlor, 60 Me. 37 ; S. C, 11 Am. Rep. 169 ; Hmjo-
ard V. Shewa/rd, L. E., 2 C. P. 148 ; Brady v. Todd, 9 C. B. (N. S.)
592. And it is not necessary that a warranty should be made directly
to the vendee. A representation made to a stranger in respect to a
sale, and by him communicated to a third person, so as to become the
basis of a purchase by the latter from the party making the represen-
tation, is treated as if made directly by the vendor to the vendee.
Crocker v. Lewis, 3 Sumn. (C. C.) 1. And see Hunt v. Moore, 2 Penn.
St. 105; Bowers Y.Johnson, 10 Sm. & M. (Miss.) 169; Gerha/rdv.
Bates, 2 El. & Bl. 476.

The following instances will serve to illustrate the application of
the foregoing rules and general principles. The use of the word
" Haxall," in a sale note for flour, is a warranty that the flour was
" Haxall." Bert/ram v. Lyon, 1 McAll. 53 ; Flint v. Lyon, 4 Cal. 17.
So, the words " sold A 2,000 gallons prime quality winter oil," in a
sale note, amount to a warranty that the article sold agrees with the
description. Hastings v. Lovering, 2 Pick, 214. So, if wool sold in
sacks be marked on the sacks and described in the invoice, by the au-
thority of the seller, as being of a certain quality, there is a warranty
by the seller that the wool is of that quality. Richmond Trading,
etc., Co. V. Farquar, 8 Blackf. (Ind.) 89. See, also, Allan v. Lake, 18
Q. B. 560 ; Osgood v. Lewis, 2 Harr. & G. (Md.) 495 ; Goss v. Tur-
ner, 21 Yt. 437 ; Brown v. Bigelow, 10 Allen, 242. These cases es-
tablish the principle, that the description contained in a bill of parcels
of goods sold is evidence of the terms of the contract of sale, and so
imports a warranty that the goods are the goods described, and that
they substantially agree with the terms of the description. See, also,
Simond v. Braddon,, 2 C. B. (N. S.) 324 ; Shepherd v. Eain, 5 B. &
Aid. 240. An affirmation in a bill of sale, or a verbal affirmation at
the time of sale that a jack is a good and sure foal-getter, is held
to be a warranty. Lamme v. Gregg, 1 Mete. (Ky.) 444. And a state-
ment made in good faith at the time of sale by the vendor, that seed is
of a certain kind, such seed, with respect to kind, not being ascertain-
able by inspection, will lay a ground from which a jury or a court
having power to pass upon facts may infer a warranty as to kind.
WolcoU V. Mount, 38 N. J. Law, 496 ; S. C, 20 Am. Rep. 425. See,
also, White v. 3filler, 7 Hun (N. T.), 427 ; Schutt v. Baker, 9 id. 556.
In some of the cases, however, the whole doctrine of warranty, arising
from a mere description of the article sold, is repudiated (See Carley
V. Wilkins, 6 Barb. 557 ; Barrett v. Hall, 1 Aik. [Vt.] 269) ; while

568 SALES.

the courts in Pennsylvania limit this class of warranty to the kind of
article described. Thus, where the article was described in the bill
of sale as " superior sweet-scented Kentucky leaf tobacco," the sel-
ler ^vas held not liable on a warranty, if the tobacco was Kentucky
leaf, though of a very low quality, ill-flavored, unfit for the market
and not sweet-scented. Fraley v. Bispham, 10 Fenn. St. 320.
And see WJiitaJcer v. Eastwick^ 75 id. 229 ; Carson v. Baillie^ 19
id. 375; Ilogins v. Plympton, 11 Pick. 97; Dounce v. Dow^ 64
jST. Y. (19 Sick.) 411. The mere description of iron sold as mill
iron, in a bill rendered to the purchaser, will not amount to a war-
ranty that the same is of the quality or grade described, but will be
regarded as a mere statement or expression of opinion as to the qual-
ity. Carondelet Iron Works v. Moore, 78 111. 65. So, the words "ap-
proved standard quality " in a contract of sale of merchandise are held
not to raise an express warranty, but are merely another expression
for a " merchantable article." Cohen v. Piatt, 8 Jones & Sp. (JST. Y.)
483.

Kepresentations by the seller of a " patent screw-fork for elevating
hay," etc., that it would work " in all kinds of hay, grain, straw, and
other grass," and was " m all respects fit for the use intended," were
held to amount to a warranty. Elklns v. Kenyon, 34 Wis. 93.

Declarations as to the amount of wool that certain sheep would yield,
and the time in which the vendee could pay for them, and whether he
would have wool left after paying, are mere speculations as to the future,
and cannot import a warranty. Bryant v. Crosby, 40 Me. 9. But it
is otherwise of declarations that the sheep were young and healthy. Id.

As it regards the buyer's rights under a warranty of soundness in
the sale of a horse, the rule is stated to be that one who buys a horse
warranted sound must be taken as buying Mm for immediate use,
and has a right to expect one capable of that use, and of being im-
mediately put to any fair work the owner chooses. The rule as to un-
soundness is that if at the time of the sale the horse has any disease,
which either does diminish the natural usefulness of the animal so
as to make him less capable of worlc of any description, or which in
its ordinary progress will diminish the natural usefulness of the ani-
mal, or if tlie horse has either from disease or accident undergone
any alteration of structure, that either actually does at the time, or
in its ordinary effects will, diminish the natural usefulness of the
horse, such horse is unsound. Pakke, B., in Coates v. /Stevens, 2
Moo. & R. 157 ; Kiddell v. Burna/rd, 9 M. & W. 668. See, also,
Ilolliday v. Morgan, 1 El. & El. 1 ; Schv/rtz v. Kleinmeyer, 36 Iowa,
392 ; lioberts v. Jenkins, 21 N. 11. 116. An answer by the seller,

SALES. 559

given in reply to a question as to the soundness of a horse, that
" he thought he was " sound, does not amount to a warranty.
Lindsay v. Davis, 30 Mo. 400. But where the jury found the words
" I recommend this horse as having one good eye," to be a warranty,
the court refused to disturb the verdict. Kinleij v. Fitziyatrick, 5
Miss. 59. And an affirmation that a horse is not lame, accompanied
by the declaration of the owner that he would not be afraid to war-
rant him, is held to be enough to establish a warranty. Cook v.
Moseley, 13 Wend. 277. So, where a horse was purchased to use in
harness, and the vendor said he was " all right," it was held to be a
warranty of soundness and of his fitness for use in harness. Smith v.
Justice, 13 Wis. 600. And testimony that the plaintiff offered a certain
price for a horse, upon condition that he was sound, and the defend-
ant thereupon declared that he was sound, and received the price
offered, was held to be sufficient to go to the jury as evidence of
a warranty. Quintard v. Neioton, 5 Robt. (N. Y.) 72.

A bill of sale of " one horse, sound and kind," is a warranty of
soundness ; and it is held that upon such warranty the vendor is liable
if the horse proves to be incurably lame, although the purchaser saw the
horse and knew that he was lame before the sale, and the vendor be-
ing spoken to on ^the subject refused to gi^'e a warranty. Brown v.
Bigdow, 10 Allen, 242. But see Wason v. Bowe, 16 Yt. 525.

So, an assertion by a vendor of cows that " they are all coming in in
good season in the spring," the vendor knowing from the vendee's
statements that this is important for the purposes for which the vendee
is buying them, may be found by a jury to constitute a warranty,
Richardson v. Mason, 53 Barb. 601,

But, generally speaking, the mere oral affirmation of the soundness of
a horse or other animal when exposed for sale and to the jDurchaser's
inspection, is not a warranty, unless so intended by the parties, and such
intention must be proved to the satisfaction of the jury, Osgood v,
Lewis, 2 Har, & G. (Md.) -495 ; Foster v, Caldwell,' 1% Yt, 176 ; Fr-
win V. Jfaxwell, 3 Murph, (X. C.) 241. And see post, 5 64, § 21. Thus,
if a horse is warranted sound, and wants the sight of an eye, an action
lies ; but a mere statement by the seller, that the horse's eyes are as
good as any horse's eyes in the world, is, of itself, only a representation
which does not amount to a warranty. To give it the effect of a war-
ranty there must be evidence to show that the parties intended it
to have that effect. House v. Fort, 4 Blackf. (Ind.) 2J3. See, also,
Bigler v. Flichinger, 55 Penn. St. 279.

The fact of a mare being with foal is not an unsoundness, within the
meaning of a general warranty. Whitney v. Taylor, 54 Barb. 536.

560 . SALES.

Nor does a warranty of soundness strictly cover mere badness of shape
if the animal was sound at the time of sale, even though the misshape
tends to produce unsoundness- Brown v. Elhington, 8 M. & W. 132.
But crib-biting is pronounced an unsoundness, where it affects the gen-
eral health and condition of the horse ( Washburn v. Cuddihy, 8 Gray,
430. And see Walher v. Hoisington, 43 Yt. 608) ; though, on the other
hand, it has been held to come in only under a warranty against vices.
Scholefield v. BoU, 2 Moo. & E. 210. The habit of " shying," when
owing to a malformation of the eye, which causes imperfect vision,
is unsoundness within tlic meaning of a general warranty {HoUiday
V, Morgan^ 1 El. & El. 1) ; so, of organic defects, as that a horse had
been nerved, bone-spavin of the hock, and ossification of the car-
tilages. Oliph. on Horses, 224. And, in general, the term " sound,"
in a warranty of a horse or other animal, implies the absence of any
disease or " seeds of disease " in the animal at the time, which actually
diminishes, or in its progress will diminish his natural usefulness in the
work to which he would properly and ordinarily be applied. Wood-
lury V. Robins, 10 Cush. 520 ; Kiddell v. Burnard, 9 M. & W. 668.

In a contract for the sale and delivery of a patent diamond drill, the
proviso that the machine was " to be complete in every thing for work-
ing," was held not to be an express warranty that the machine would
do the work for which it was purchased, but to mean only that the
machine, such as it was in principle and range of usefulness, should
be delivered fully prepared and equipped to do what, in principle,
it was capable of doing. McGraw v. Fletcher, 35 Mich. 104.

§ 19. Implied warranty of title. The English doctrine of implied
warranty of title is still, to some extent, involved in doubt. But the
rule at present, as stated by Mr. Benjamin, to be more in accord
with the recent decisions is, that " a sale of personal chattels implies
an affirmation by the vendor that the chattel is his, and therefore he
warrants the title, unless it be shown by the facts and circumstances
of the sale that the vendor did not intend to assert ownership, but
only to transfer such interest as he might have in the chattel sold."
Benj. on Sales (2d ed.), 523. See Eichholz v. Bannister, 17 C. B. (N.
S.) 708 ; Sims v. Marryat, 17 Q. B. 281 ; Bagueley v. Eawley, L. E.,
2 C. P. 625.

The prevailing doctrine in this country is, that possession of per-
sonal property implies title, and in every case of the sale of personal
Y)roperty in possession, there is an implied warranty of title in the
vendor. Burt v. Dewey, 40 N. Y. (1 Hand) 283 ; MeGiffin v. Baird,
62 N. Y. (17 Sick.) 329 ; Word v. Cmin, 1 Head (Tenn.), 506 ;
Oross V. Kierski, 41 Cal. Ill ; GKoMcellor v. Wiggins, 4 B. Monr. (Ky.)

SALES. 661

201; Damis v. Smith, 7 Minn. 414; Williamson v. Samrnions^ 34
Ala. 691 ; SU/rm v. Smith, 43 Miss. 497. The term " possession " as
here used must be taken in its broadest sense and as inckiding posses-
sion by a bailee of the vendor ( Whitney v. Ileywood, 6 Gush. 82 ;
Michel V. Ware, 3 Neb. 229 ; Shattuck v. Greeii^ 104 Mass. 42) ; and
the warranty extends to prior liens and incumbrances, to cases where
the title partially fails as well as to those where it wholly fails.
Dresser v. Ainsioorth, 9 Barb. 619. The excepted cases in which no
warranty of title is implied must be substantially cases of sales of the
mere naked interest of persons having no possession, actual or con-
structive. WTiitney v. Heywood, 6 Gush. 82 ; Thurston v. Sjn^att, 52
Me. 202 ; Scott v. Eix, 2 Sneed (Tenn.), 192 ; Lackey v. Stouder, 2
Ind. 376.

Where a sale is made of the exclusive right to manufacture an
article there is a warranty of title. Costigan v. Hawkins, 22 Wis. 74.
And if, after a sale of personal property, the vendor acquire the full
title, it will inure to the benefit of the vendee. Sherm,an v. Cham-
plain Transjp. Co., 31 Vt. 162.

But there is no implied warranty in a sheriff's sale. Worthy v.
Johnson, 8 Ga. 236; Stone n. Pointer, 5 Munf. (Va.) 287; Yates \.
Bond, 2 McC. (S. C.) 382. And a warranty of title to a chattel cannot be
implied or proved, when there is a written bill of sale, which contains
no warranty, for that would be to add to the writing by parol. Sparks
V. Messicli, 65 N. G. 440.

§ 20. Implied warranty of quality. An express warranty ex-
cludes any implied warranty. McGraxo v. Fletcher, 35 Mich. 104.
See, also, Mullain v. Thomas, 43 Conn. 252. And where there is no
express warranty, none will, in general, be implied, except in cases
where goods are sold at sea, where the party has no opportunity to
examine them, or in case of a sale by sample, or of provisions for
domestic use. Getty v. Rountree, 2 Chand. (Wis.) 28; Moore v.
McKinlay, 5 Gal. 471 ; Jones v. Just, L. E., 3 Q. B. 197. As to sale
by sample, see ante, 553, § 17. A warranty that provisions are whole-
some and fit for consumption, if implied at all, is unplied only where
they are sold for consumption or immediate domestic use by the
vendee and not where they are sold as merchandise. Ryder v. Neitge^
21 Minn, 70 ; Iloover v. Peters, 18 Mich. 51 ; Divine v. McCormick,
50 Barb. 116 ; Jones v. Miirray, 3 T. B. Monr. (Ky.) 83. There is no
implied warranty of the merchantable character of an article of which
the vendor is not tlie manufactiu-er, and in regard to whicli the vendee
has equal opportunity for knowledge {Bartlett v. Hoppock, 34 N. Y".
[7 Tiff.] 118) ; and it has been held that where goods are open to in-
VoL. Y.— 71

562 SALES.

spection and are actually examined before tlie sale, there is no implied
warranty of quality, although the manufacturer himself may be the
vendor. Barnett v. Stanton, 2 Ala. 195. And see Matthevjs v.
Hartson, 3 Pittsb. (Penn.) 86. But, as a general rule, upon the sale
of an article by the manufacturer, there is an implied warranty that it
will answer the purpose for which it was made {Brown v. Murphee,
31 Miss. 91 ; Field v. Kinnear, 4 Kans. 476 ; Street v. Chajyman, 29
Ind. 112 ; Kingsbury v. Taylor, 29 Me. 508 ; Pacific Iron Works v.
JVewhall, 34 Conn. 67 ; Bigge v. Parkinson, 7 Hurl. & IS". 955) ; and
that the article sold is free from any latent defect growing out of the
process of manufacture. Hoe v. Sanhorn, 21 N. Y. (7 Smith) 552.
"When, however, there is a latent defect in the materials employed, the
manufacturer is liable, as upon implied warranty, only where it is
proved, or is to be presumed that he knew of the defect. Id, See,
also, Bragg v. Morrill, 49 Yt. 45. And where the vendor sells an
article under a proviso that lie sells it " with all faults," he will not be
liable for any latent defects, whether he knew of their existence or
not, if he has used no artifice to disguise them, or to prevent the buyer
from discovering them, or has not been guilty of misrepresentation.
Pickering v. Dowson, 4 Taunt. 779 ; Pearce v. Blachwell, 12 Ired.
(N. C.) L. 49 ; Hanson v. Mgerly, 29 :N". H. 343.

A mere praise of personal property, such as wool, or a horse, or
other chatte], indulged in by the owner when offering it for sale, does
not amount to an implied warranty of its quality or condition, if the
buyer has an opportunity to examine it and fails to do so, and no artifice
is used by the seller to prevent him from making an examination.
Byrne v, Jansen, 50 Cal. 624. So, when goods are shown to have
been purchased without a warranty, and no misrepresentation by the
vendor is claimed, and they were shipped as ordered, in good condition,
the presumption of warranty will not be entertained, under which proof
of the worthlessness of the goods received can be allowed to defeat the
vendor's claim for the purchase-price. Richardson v. Bouck, 42 Iowa,
185.

When wheat is sold in the stack there is an implied warranty that it
is merchantable. Fish v. Roseberry, 22 111. 288. So, where lumber is
sold witliout opportunity for examination by the vendee, there is an
implied warranty that it is merchantable. Merriam v. Field, 39 Wis.
578. So, if one sells a flock of sheep, or a drove of horses, there is
an implied warranty tliat as a body, they are ordinaj'ily good, and have
not been picked and culled fur the purpose of decejition. Colcock v.
Reid, 3 McCord (S. C), 513. But where cattle were brought to mar-
ket by a drover from a distant place and sold to a butcher, and upon

SALES. 563

being slaughtered, were found to have been bruised on the journey,
it was held that, in the absence of any proof of misrepresentation, con-
cealment, or even knowledge of the injmy sustained by the cattle, the
seller was not liable without an express warranty that no such defect
existed. Goldrioh v. Ryan, 3 E. D. Smith (jS". Y.), 324. And see
Goad V. Johnson, 6 Heisk. (Tenn.) 340. And where A contracted at
a price certain for all the wheat B might raise on his farm, there was
held to be no implied warranty as to the quality or quantity of the
wheat. Davis v. Murj)hy, 14 Ind. 158.

A merchant selling guano, " superphospate," or any other fertilizer,
to a farmer, impliedly warrants it to be merchantable and reasonably
suited to the use designed. Gammell v, Gunhy, 52 Ga. 504. And if,
when properly used, it ordinarily fails to produce a good effect, it can-
not be considered as reasonably fit for the use designed, although it may
be shown that fertilizing ingredients are used in its composition by the
manufacturers thereof. Shns v. Hoioell, 49 Ga. 620.

The residuum or refuse of various kinds of manufactories is often
the subject of sale, but the quality of such refuse material is entirely
subordinate to the process which is the main object of the manufac-
turer ; and on such a sale there is no implied warranty that the article
when delivered shall be of a merchantable quality, as a manufactured
article. Holden v. Clancy, 41 How. 1 ; S. C, 58 Barb. 590. Thus, an
article designated in a contract as " slops from their distillery," does
not constitute a manufactured article, within the meaning of the rule
which implies a warranty of merchantable quality. Id.

"Where perishable goods are sold to be shipped to a distant market,
a warranty is implied that they are properly packed and fit for such
shipment, but not that they will continue sound for any particular or
definite period. The implied warranty will not cover unforeseen
contingencies. Mann v. Everston, 32 Ind. 355.

A warranty may exist in the case of an executory contract, when
the defect in the property is incapable of discovery at the time of de-
livery. In such case the purchaser may retain the property and sue
upon the warranty. Paries v. Morris Axe Co., 54 ]S". T. (9 Sick.)
586 ; Brown v. Bnrhans, 4 Hun (X. Y.), 227. But if the defect is
open, visible, and notorious at the time of delivery, the purchaser is
bound to reject the articles, and refuse to receive them as a compHance
with the contract, or he will waive his right to damages. Id. See Mc-
Clung V. Kelley, 21 Iowa, 508; Phelps x. Quhm, 1 Bush (Ky.), 375.

On the sale of a promissory note, whether by indorsement, or by
delivery without indorsement, the law implies a warranty that it is
genuine, and not a forgery. Dumont v. WillianhS07i^ 18 Ohio St. 515 ;

564 SALES.

McCay v. Barber^ 37 Ga. 423 ; Aldrich v. Jackson, 5 R. I. 218 ;
Bell V. Cafferty, 21 Ind. 411 ; Flynn v. Allen, 57 Penn. St. 482 ;
Terry v. Bissell, 26 Conn. 23. So, on tlie sale of a judgment {Bur-
niss V. Ferguson, 34 N. Y. (7 Tiff.) 485. And in the sale of a land
warrant, there is an implied warranty that it is valid. Presbury v.
Morris, 18 Mo. 165. But in the sale and assignment of a judgment,
without recourse, there is no implied warranty that the judgment and
proceedings are free of error. Glass v. Read, 2Daua(Ky.), 168. And
there is no implied warranty of the past or future solvency of the
maker of a note, from a mere exchange of it, without indorsement, for
merchandise. Bricknall v. Waterman, 5 R. I. 43. And one who
sells a chose in possession is not held to warrant its genuineness. John-
son V. Titus, 2 Hill, 606.

The rule that if an article is ordered for a special purpose and is sold
for that pui*pose, there is an implied warranty that it is fit for that pur-
pose, is held not to apply to cases where a special thing is ordered,
although intended for a special purpose. Port Carbon Iron Co. v.
Oroves, 68 Penn. St. 149.

§ 21. Caveat emptor. It is the general rule of the common law
that no warranty of the quality of a chattel is implied from the mere
fact of sale. The maxim applied in such cases is caveat emptor, by
which is meant that when the buyer has required no warranty, he takes
the risk of quality upon himself. Such is the rule recognized by the
Enghsh courts. See B:all v. Coiider, 2 C. B. (E. S.) 22 ; Early v.
Garrett, 9 B. & C. 928 ; Benj. on Sales (2d ed.), 498. And of such uni-
versal acceptance is the doctrine of co/veat emptor in this country, that
the courts of all the States in the Union where the common law pre-
vails, with one exception, sanction it. Barnard v. Kellogg, 10
Wall. 383, 388. The exception is South Carolina, where ca/oeat ven-
ditor is the rule, rather than comeat emptor. Barnard v. Yates, 1 Nott
& Mc. (S. C.) 142. There are, however, many exceptions to the rule of
ca/oeat emptor, even where the doctrine is fully recognized. These ex-
ceptions have been noticed at considerable length, in treating of implied
waiTanty, under the two preceding sections, and the subject need not
be much further extended in this connection.

In the recent leading English case of Jones v. Just, L. R., 3 Q. B. 197,
the previous cases are carefully collected ?jid reviewed, and are held to
establisli tlie following propositions

First. Where the goods are in esse, and may be inspected by the
buyer, and there is no fraud on the part of the seller, the maxim ca/oeat
emptor applies, even though the defect wliich exists in them is latent,
and not discoverable on examination, at least where the seller is neither

SALES. 565

the grower nor the manufacturer. The buyer in such case has the oppor-
tunity of exercising his judgment upon the matter ; and if the result
of the inspection l^e unsatisfactory, or if he distrusts his own judgment,
he may, if he chooses, require a warranty. In such a case, it is not an
implied term of the contract of sale that the goods are of any particu-
lar quality, or are merchantable. See Parkinson v. Lee, 2 East, 31-1 ;
Emraerton v. Matthews, 7 Hurl. & "N. 586 ; Salisbury v. Stainer, 19
"Wend. 158 ; Deming v. Foster, 42 X. H. 165 ; Barnard v. Kellogg,
10 Wall. 383 ; Kohl v. Lindley, 39 111. 195 ; Bice v. For^th, 41 Md.
389 ; Bowman v. Clemmer, 50 Ind. 10.

Second. "Where there is a sale of a definite existing chattel specifically
described, the actual condition of which is caj)able of being ascertained
by either party, there is no imphed warranty. See Barr v. Gibson, 3
M. & W. 390 ; Williams v. Ingram, 21 Tex. 300 ; Hill v. ISTorth, 34
Yt. 604.

Third. Where a known, described and defined article is ordered of a
manufacturer, although it is stated to be required by the purchaser for
a particular purpose, still if the known, described and defined thing be
actually supplied, there is no warranty that it shall answer the particu-
lar purpose intended by the buyer. See Ollivant v. Bayley, 5 Q. B.
288 ; Chanter v. Hopkins, 4 M. & W. 399 ; Port Carl<m Iron Co.
V. Groves, 68 Penn. St. 149.

Fourth. "Where a manufacturer or dealer contracts to supply an article
which he manufactures or produces, or in which he deals, to be ajjplied to
a particular purpose, so that the buyer necessarily trusts to the judgment
or skill of the manufacturer or dealer, there is in that case an implied
term or warranty that it shall be reasonably fit for the purpose to which
it is to be applied. In such a case the buyer trusts to the manufacturer
or dealer and relies upon his judgment, and not upon his own. See
Jones V. Bright, 5 Bing. 533 ; Brown v. Edgington, 2 Man. & G. 279 ;
Gurney v. Atlantic, etc.. Railway Co., 58 N. Y. (13 Sick.) 358.

Fifth. "Where a manufacturer undertakes to supply goods, manufac-
tured by himself, but which the vendee has not had the opportunity of
inspecting, it is an implied term in the contract that he shall supply a
merchantable article. See Laing v. Fidgeon, 6 Taunt. 108 ; Hoe v.
Sa/nborn, 21 N. Y. (7 Smith) 552. And under this head is classed the
case of a sale by the builder of an existing barge which was afloat, but
not completely rigged and furnished. Here, inasmuch as the buyer had
only seen it when built, and not during the course of the building, he
was considered as having relied on the judgment and skill of the builder
that the barge was reasonably fit for use. Shepherd v. Pybus, 3 Man.
& G. 868.

666 SALES.

In respect to the merchantable quality of goods sold, where the pur-
chaser has an opportunity of inspecting them, the rule of law seems to
be that the seller may let the buyer cheat himself ad libitum, but he
must not actively assist him in doing so. Armstrong v. Bufford, 51
Ala. 410. The rule of caveat emptor never applies to cases of fraud
{Otts V. Alderson, 10 Sm. & M. [Miss.] 476 ; Irving v. Thomas, 18 Me.
418) ; nor where the vendor uses any device to put the purchaser o£E
his guard, or resorts to trick or artifice to take advantage of liim. Ver-
non V. Keys, 12 East, 637; Prescott v. Wright, 4 Gray, 461. But
" mere silence," where there is no special trust between the parties, and
no legal or equitable obligation not to conceal implied in the circum-
stances of the case, will not render the vendor liable. Biggs v. PerJcins,
75 No. Car. 397; Pidcock v. Bishop, 3 Barn. & C. 605. See Yol. 3,
tit. Fraud.

Where personal property sold at a public auction is, at the time, re-
mote from the place of sale, the purchaser, to whom this fact is unknown
up to the moment of bidding, being ignorant of its condition, and hav-
ing had no opportunity to examine it, has a right to rely upon the state-
ments of the seller. The rule of caveat emptor does not apply in such
a case. Overlay v. Lighty, 27 Ind. 27. So, where merchandise is sold
" to arrive," which the vendor has not on hand, and which neither party
can inspect, it is held to be contrary to sound morality and public policy
to enforce the doctrine of ca/veat emptor, and compel the purchaser to
pay for goods of an unmerchantable quality. The just principle of the
civil law, " coweat venditor,^'' shojild be applied in such cases. Newbery
V. Wall, 3 Jones & Sp. (^. Y.) 106 ; S. C. affirmed, 65 N. Y. (20 Sick.)
484.

To a banker or broker who deals in depreciated bills, as an article of
commerce, the rule of ca/oeat emptor applies. And if a bank bill pur-
chased by a broker proves to be of less value than the price given for
it, the vendor is not bound to make it good, especially where the trans-
action is in good faith, IlincTdey v. Kersting, 21 111. 247. So, the
rule of ca/veat emptor applies as well to a sale of stocks as to a sale of
chattels ; and a vendor thereof can be made liable only for misrepre-
sentation or fraud. Benton v. Maryott, 21 N. J. Eq. 123. See Porter
V. Bright, 82 Penn. St. 441.

§ 22. What is a breach of a warranty. The warranty of title to
a chattel has reference to the status of the chattel at the date of the
warranty, and is not intended to protect the title against future events.
When, therefore, slaves were sold with warranty of title, their subse-
quent emancipation, by the government of the United States, was held
to constitute no breach of the warranty. Wliitworth v. Carter, 43 Miss.

SALES. 567

61 ; Blewett v. Evans, 42 Miss. 804. See Ketchum v. Dew, 7 Coldw.
(Teun.) 532; 2IayJieldv. Barnard, '^^ Miss. 270 ; Alrjierx. Black, 32
Tex. 168.

A latent defect, existing at the time of sale, which, by the occurrence
of natural circumstances, develops into a serious injury, is held to be a
breach of warranty. Hook v. Stovall, 21 Ga. 69. And see ante, 561,
§ 20. Thus, a warranty on a sale of a soda fountain, that it was in good
condition, is broken, if from an inherent defect in its construction,
existing at the time of the sale, it was liable to get out of order, from
time to time, and from that cause failed to answer the purpose for
which it was designed, although it was in a condition to make good
soda water on the day of sale. Pritchard v. Fox, 4 Jones' (i^. C.) Law,
140.

But a mere organic or constitutional predisposition to a particular
malady, is held not to be unsoundness, in a legal sense. Fryy. Throck-
morton, 2 B. Monr. (Ky.) 450. And an injury to a horse, existing at
the time of sale, which is temporary only, and does not affect his fitness
for service, is held to be no breach of a warranty of the soundness of
the horse. Roberts v. Jenkins, 21 IST. H. 116. See, also, Springstead
V. Lamson, 23 How. (N. Y.) 302 ; S. C, 14 Abb. 328. It, however,
seems that any injury or infirmity which renders a horse less fit for
present use and convenience, even though the injury be temporary and
curable, is an unsoundness, constituting a breach of the warranty. Elton
V. Brogden, 4 Camp. 281; Rolerts v. Jenkins, 21 N. H. 116. See
ante, 554, § 18.

A representation, at the sale of a horse, that the animal is of any
specified age, is a warranty that he is no older. Burge v. St/roherg, 42
Ga. 89.

§ 28. Delivery of the property. After the completion of the con-
tract of sale, it becomes the immediate duty of the vendor, in the absence
of any stipiilations to the contrary, to deliver the goods to the purchaser
as soon as the latter has complied with the conditions precedent, if any,
incumbent on him. See Willis v. Willis, 6 Dana (Ky.), 49. But in
order to properly understand this branch of the subject, it is necessary
to notice the different senses in which the word " delivery " is used. It is
sometimes employed to denote the transfer of title (see Dixon v. Yates,
5 B. & Ad. 340) ; but it is of tener and more properly employed to
denote the transfer of possession. In the latter sense, it is employed
in two distinct classes of cases, one having reference to the perfortnance
of the contract ; the other to the formation of the contract. The cases
relating to the formation of the contract are those which arise under
the statute of frauds, and they will be examined under a subsequent

568 SALES.

head. See post, 589, Art. 2. The cases in which the word "delivery"
is used to denote a delivery of possession in jperformance of the con-
tract, will be noticed in this, and the sections immediately following.

Where, on a sale of chattels, nothing has been said as to payment,
the law presumes that the parties intended to make the payment of the
price and the delivery of the possession concurrent conditions. On the
one hand, the seller cannot insist on payment of the price without
alleging that he is ready and willing to deliver the goods ; on the other,
the buyer cannot demand delivery of the goods without alleging that
he is ready and willing to pay the price. Coil v. Willis, 18 Ohio, 28;
Mitchell V. Georgia Baiilcing Co., 6 Rich. (S. C.) 188 ; Cde v. Swmiston,
1 Cal. 51 ; Domis v. Adams, IS Ala. 264; Carroll v. Wiggins, 30 Ark.
402 ; Powell v. Bradlee, 9 GiU & J. (Md.) 220 ; De Wolf v. Babhett,
4 Mas. (C. C.) 289, But it constantly happens that the goods are sold
on credit ; in which case, if nothing is agreed upon as to the time of
delivering them, the buyer is immediately entitled to the possession, and
the right of possession and the right of property vest at once in him.
His right of possession is not, however, absolute, but is liable to be de-
feated if he becomes insolvent before obtaining actual possession ; in
other words, the goods are still subject to the original owner's right of
stoppage in transitu. Bloxam v. Sanders, 4 B. & C. 941. And see
post, 611, art. 3, § 5.

In the absence of any agreement to the contrary, the seller is not
bound to send or carry the goods to the buyer. His duty in this re-
spect is sufficiently performed by leaving or placing the goods at the
buyer's disposal, so that the latter may remove them without lawful
obstruction. Means v. Williamson, 37 Me. 556. If the delivery is to
take place upon the doing of certain acts by the buyer, the seller is
not in default for non-delivery, until notice from the buyer of the per-
formance of the acts on which the deliveiy is to take place. Thus, if
the seller agrees to deliver on board of the buyer's ship, as soon as the
latter is ready to receive the goods, the buyer must name the ship and
give notice of his readiness to receive the goods on board before he can
complain of non-delivery. Armitage v. InsoU, 14 Q. B. 728 ; Stan-
ton V. Austin, L. R., 7 C. P. 651 ; S. C, 3 Eng. R. 417; Benj. on
Sales (2d ed.), 559.

§ 24. Time of deliyery. Where no time is fixed for the delivery
of goods sold, the law makes them deliverable in a reasonable time.
Danforth v. Walker, 40 Vt. 257 ; Blydenhurgh v. Welsh, 1 Baldw.
(C. C.) 331. What is a "reasonable time" will depend upon the cir-
cumstances of the case. A delivery witliin such time after the sale as
is reasonable, in view of the l)ulk and character of the article sold, is

SALES. 569

sufficient. Chaffin v. Douh, 14 Cal. 384. Where the contract of sale
is in writing and nothing is said as to time, parol evidence is admissi-
ble of the facts and circumstances attending the sale in order to de-
termine wliat is a reasonable time. Ellis v. Ttuyrrvpson^ 3 M. & W.
445 ; Ford v. Cotesvjorth, L. E., 4 Q. B. 127 ; Cocker v. Franhlin,
etc., Co., 3 Siimn. (C. C.) 530. But where the written contract of sale
expresses the time, the question is one of construction calling for judi-
cial interpretation, and not a question of fact for the jury. See
Wehh V. Fairmaner, 3 M. & W. 473 ; Atwood v. Cohh, 16 Pick. 227.
And it is held, that a contract to be performed " directly," means, to
be performed not " within a reasonable time," but " speedily," or at
least, " as soon as practicable." Duncan v. Topliarii, S C. B. 225.
See, also, Roberts v. Brett, 11 H. L. Cas. 337 ; Rommel v. Wingate,
103 Mass. 327. The words " immediate delivery " usually mean to
deliver forthwith (See Id.) ; but the term is construed to mean among
coal shippers and dealers, a delivery within the present, or in some
cases, within the succeeding month. Neldon v. Smith, 36 N. J. Law,
148. And see Staunton v. Wood, 16 Q. B. 638. A contract to deliver
goods " as soon as possible," means within a reasonable time, regard
being had to the ability of the seller, consistently with the proper exe-
cution of his prior orders, to fulfill the stipulation. Atwood v. Emery,
1 C. B. (N. S.) 110. The word "month," at common law, generally
means a lunar month ; but in mercantile contracts it is understood to
mean a calendar month {Hart v. Middleton, 2 Car. & K. 9 ; ChurcK-
ill V. Merchants^ Bank, 19 Pick. 532. See State v. King, 44 Mo.
238), and the court will look at the context in all cases, to see whether
a calendar month was not intended, and if so, will adopt that construc-
tion. Simpson V. Margitson, 11 Q. B. 23 ; Benj. on Sales (2d ed.),
562. If a certain number of "days" is allowed for the delivery, con-
secutive days are meant, including Sundays, unless the contrary be ex-
pressed {Brown V. Johnson, Car. & M. 440; S. C, 10 M. & W. 331),
or a usage to the contrary be shown {Cochran v. Retberg, 3 Esp. 121) ;
but the days must be counted exclusively of the day of the contract
( Wehh V. Fairmaner, 3 M. & "W. 473) ; and the computation should
also exclude any day expressly set up as a final limit under such ex-
pressions as " until," "up to," or "between." Id. ; Newhy\. Rogers, 40
Ind. 9 ; PeopU v. WalTcer, 17 N. Y. (3 Smith) 502 ; 2 Schoul. Pere.
Prop. 403. See Conawingo Company v. Cunningham, 75 Penn. St.
138. A party contracting to deliver certain goods "on or before" a
given day, at the option of the buyer, can be guilty of a breach of
contract only on that day, unless a previous demand is made by the
buyer. Phelps v. McGee, 18 111. 155. And he has the whole of that
Vol. Y.— 72

570 SALE.-.

day to make delivery. Adams v. Dale^ 29 Ind. 273. But see Cod-
dington v. Pcdeologo, L. E,., 2 Exch. 193. As it regards the Jimir up
to which the vendor can make a valid delivery, on the last day fixed by
the contract, it seems that the purchaser is bound to accept the goods,
if they are tendered to him at such a time on that day as will admit of
their being examined by and completely delivered to him before mid-
night. Startup V. Macdonald, 6 Man. & Gr. 593 ; Story on Sales, §
310. See McClartey v. GoTcey, 31 Iowa, 505. It has, however, been
held that where daylight is required for the proper examination and
assortment of the goods tendered, time should be given the vendee to
make such examination before sunset. Croninger v. Crocker^ 62 K.
T. (17 Sick.) 151.

Where an article was to have been delivered at an agreed time and
place, but was delivered and received at another time and place with-
out objection, it was held that strict performance was waived and that
an action was rightly brought to recover pay for it. Baldwin v.
Farnsworth, 10 Me. 414. So, a transfer of stock, made two days
earlier than the time mentioned in a contract for the transfer, was held
to be a sufficient compliance with the contract. Dodge v. Barnes, 31
id. 290. And see Meriden Britannia Co. v. Zingsen, 4 Robt. (N.
T.) 312 ; S. C. affirmed, 48 N. Y. (3 Sick.) 247.

§ 25. Place of delivery. As to the place where delivery is to be
made, it is said that " if no place be designated by the contract, the
general rule is that the articles sold are to be delivered at the place
where they are at the time of the sale. The store of the merchant, the
shop of the manufacturer or mechanic, and the farm or granary of the
farmer, at which the commodities sold are deposited or kept, must be
the place where the demand and delivery are to be made when the
contract is to pay upon demand, and is silent as to place." 2 Kent's
Com. 505. And see Lucas v. Nichols, 5 Gray, 309 ; Smith v. Gillette
50 111. 290 ; Bailey v. RicTcetts, 4 Ind. 488 ; Barr v. Myers, 3 Watts
& S. (Penn.) 295. "Where a quantity of com was sold to a miller, no
place of delivery being fixed, and a part of the corn was delivered at
the mill of the purchaser, it was held to be the place of delivery.
Field V. Bunk, 22 N. J. Law, 525. Under a contract for the sale of
goods to be delivered on a future day in a certain city, the buyer has a
right to fix the place of delivery in such city. Stillwell v. Bowling^
36 Mo. 310.

A sale of chattels, which are at the time upon the land of the seller,
will authorize an entry upon the land to remove them, if, by the ex-
press or implied terms of the sale, that is the place where the purchaser
is to take them. Drake v. Wells, 11 Allen, 141 ; Wood v. Manley, H

SALES. 571

Ad. & El. 34. A license is implied in such case, because it is neces-
sary in order to carry the sale into complete effect. It forms a part of
the contract of sale. Id. ; McLeod v. Jones, 10.5 Mass. 403 ; S. C, 7
Am. Kep. 539. If, at the time of sale, the goods be in the buyer's
own possession and under his control, there is presumed to be no other
place of delivery agreed upon. Lake v. Morris, 30 Conn. 201 ;
Warden v. Marshall, 99 Mass. 305. If a place of delivery be agreed
upon, the purchaser is not bound to accept a tender of the goods made
in any other place, nor is the vendor bound to make a tender else-
where. Story on Sales, § 308 ; Clark v. Ouson, 3 Head (Tenn.), 55.
If the place of delivery is in the option of the seller, he is bound to
give the purchaser notice where he intends to deliver the goods.
Rogers v. Tan ffoesen, 12 Johns. 221. See, also, Neiocomh v. Cramer,
9 Barb. 402 ; Weiseger v. Wheeler, 16 Wis. 492.

§ 26. Quantity d(>livered. The quantity vAxxok the seller is bound
to deliver depends upon the terms of the contract, and, as a rule, he
must deliver the exact quantity contracted for, no more and no less.
If the goods tendered exceed the quantity agreed upon, the buyer is
entitled to refuse the whole, as, where an order was given for two
dozen of wine and four dozen were sent, it was held that the whole
might be returned. Hart v. Mills, 15 M. & W. 85. So, where a
purchase was made of ten hogsheads of claret and the vendor sent
fifteen, it was held that the contract of the vendor was not performed.
Cunliffe v. Harrison, 6 Exch. 903. And see Rommel v. Wingate,
103 Mass. 327.

On the other hand, if, under a contract to deliver a parcel of goods
of a certain description, there be an essential deficiency in the parcel,
such as would and ought to be regarded as material to the whole, the
buyer is not bound to accept and pay for either the whole or a part.
Rockford, etc., R. R. Co. v. Lent, 63 111. 288 ; Marland v. Stamoood,
101 Mass. 470 ; Smith v. Lewis, 40 Ind. 98 ; Wright v. Barnes, 14
Conn. 518; Wilson v. Wagar, 26 Mich. 452. So, if the contract be
for a specified quantity to be delivered in parcels from time to time,
the buyer may return the parcels first delivered if the latter deliveries
be not made as promised. Oxendale v. Wetherell, 9 Barn. & C. 386,
And see Haines v. Tucker, 50 N. H. 307. The buyer is, however,
bound to pay for any part that he accepts, and after the time for de-
livery has elapsed, he must either return or pay for the part received,
and cannot insist on retaining it without payment, until the vendor
makes delivery of the rest. Id. ; Benj. on Sales (2d ed.), 568 ; Morgan
V. Gath, 3 Hurl. & C. 748.

The seller does not comply with his contract by sending the goods

572 SALES.

sold mixed with other goods. See Nicholson v, Bradford Union, L
K., 1 Q. B. 620 ; Croningery. CrocTcer, 62 K. Y. (17 Sick.) 151 ; Cleve-
land V. Williams, 29 Tex. 204 ; Dunlap v. Berry, 5 111. 327. Thus,
where the goods ordered were sent packed in a crate with other goods
not ordered, the court held that mixing the latter with the former was
a violation of the seller's duty, although the two sets of goods were
perfectly distinguishable. Leny v. Gi^een, 8 El. & Bl. 575. But,
upon a contract to sell and deliver fifty bales of cotton of the vendor's
first picking, a tender of fifty-five bales, with a proposal to the vendee
to select fifty out, was held to be a substantial compliance with the
contract. Dams v. Adams, 18 Ala. 264. And see Downer v. Thomp-
son, 6 Hill, 208.

The quantity to be delivered is sometimes stated in the contract with
the addition of the words " about," *' more or less," etc., indicating that
the quantity is not restricted to the exact nmnber or amount specified, but
that the seller is to be allowed a reasonable latitude in the performance of
his contract. See De?nhroke Iron Co. v. Parsons, 5 Gray, 589 ; Bourne
V. Seymour, 16 C. B. 337 ; Moore v. Campbell, 10 Exch. 323 ; Coohe-
rell V. Aucompte, 2 C. B. (IS". S.) 440. The words " say about six hun-
dred," in a contract for the sale of spars, were held to be words of
expectation and estimate only, not amounting to an understanding that
the quantity should be six hundred ; and a tender of four hundred and
ninety-six spars, which were all of the specified lot that met the re-
quirements of the contract, was held to be a substantial performance
by the vendor. M.cConnell v. Murphy, L. R., 5 P. C. 203. And see
Barler v. WindU, 6 El. & Bl. 675 ; Leyning v. Snaith, 16 Q. B. 275.

In a contract for the sale and delivery of " sixty-five head of fat hogs,
to weigh two hundred and twenty-five pounds and over," it was held,
in an action for refusing to receive the hogs, first, that the contract
called for hogs weighing two hundred and twenty -five pounds each ;
second, that parol evidence, to the effect that by custom this lan-
guage was understood to mean that the hogs should average that, was
not admissible. Ca.sh v. Hinlde, 36 Iowa, 623.

§ 27. How delivered in general. As it regards the manner of de-
livery it may be stated, generally, tliat, in order to constitute a valid
tender under an executory contract for the sale of chattels, all that the
law requires is good faith, and such acts only as are practicable ac-
cording to the character of the thing tendered and the nature of the
business. Thus, if the articles are ponderous and bulky, a manual
delivery is uimecessary ; it is enough if they arc placed in the power
of the vendee. Ilayden v. Demets, 53 N. Y. (8 Sick.) 426 ; affirming
S. C, 2 Jones & Sp. 344 ; Thompson v. Baltimore, etc., R. R. Co.,

SALES. 573

28 Md. 396. But a mere offer to deliver personal property contracted
for is not sufficient to bind the purchaser. There must be a delivery
either actual or constructive, or at least an actual tender of the thing.
Webber v. Minor^ 6 Bush (Ky.), 463. And in order to substitute an
arrangement between the parties for a manual delivery so as to vest
the title under a contract of sale of a quantity of property mixed with
an ascertained and defined larger quantity, the portion sold must be so
clearly defined that the purchaser can take it, and he must be invested
with the right to take it. Foot v. Marsh, 51 K. Y. (6 Sick.) 288.

§ 28. Delivery to third person. Leaving personal property in the
hands of a third party, by consent to be delivered upon the payment
of the price, is a sale, and vests the property in the vendee. ^Ving v.
ClarJc, 24 Me. 366 ; Wright v. Maxwell, 9 Ind. 192 ; Stapj) v. Ander-
son, 1 A. K. Marsh. (Ky.) 535. So, Avliere the property at the time of
sale is in the actual custody of a third person, who consents to keep it
for the vendee, this is held to be a sufficient change of possession to
perfect the sale, as against the vendor's creditors. Potter v. Wash-
hum, 13 Yt. 558. And see Birge v. Edgerton, 28 id. 291. But merely
requesting a servant, in charge of the vendor's barn, to take care of
part of the hay therein, for a purchaser, is not such a substantial visi-
ble change of possession as will prevail against the vendor's attaching
creditors. Sleeper v. Pollard, 28 id. 709.

And where the plaintiff left goods with a thii*d person, and desired
him to deliver them to the defendant when called for, but the defend-
ant did not call for them, and they remained in the third person's pos-
session, the plaintiff was held not to be entitled to recover on a count
for goods sold and dehvered. Hart v. Tyler, 15 Pick. 171.

"Where a mechanic has made an article, according to contract, and
tendered it, and on the customer's refusal to accept and pay for it, he
leaves it with a third person, of which fact the customer has notice, he
may immediately sue on the contract, and aver a delivery ; and he is
entitled to recover the price agreed on in the contract. Beraent v.
Smith, 15 Wend. 493. And see Shawhan v. Van Nest, 25 Ohio St.
490 ; S. C, 18 Am. Kep. 313 ; Ballentine v. Robinson, 46 Penn. St.
177 ; G(yrdon v. Norris, 49 N. H. 376.

§ 29. Delivery to carrier. In cases where it is the duty of the
vendor to send the goods to the pm-chaser, it is a well-estabhshed
rule, that if the goods are delivered to a carrier specially designated by
the purchaser, the carrier becomes the agent of the purchaser, and the
title to the property will pass the moment the goods are dispatched.
Bradford v. Marberry, 12 Ala. 520 ; Maxwell v. Brown, 39 Me. 98 ;
Spencer v. Hale, 30 Yt. 314; Hanson v. Armitage, 5 B. & Aid. 557;

574 SALES.

Cross V. (JDmneU, 44 N. Y. (5 Hand) 661 ; S. C, 4 Am. Eep. 721.
And even where the contract of purchase is silent as to the person or
mode by which the goods are to be sent, a dehvery by the vendor to a
common carrier in the usual and common course of business transfers the
property to the vendee ; the dehvery to the carrier passes the property,
he being the agent of the vendee to receive it, and the delivery to him
being equivalent to a delivery to the vendee. Dutton v. 8olonhonson^
3 Bos. & P. 582 ; Dunloj) v. Lamhert, 6 CI. & Fin. 600 ; Hart v.
Bush, El. Bl. & El. 494 ; MagruderY. Gage, 33 Md. 344 ; S. C, 3 Am.
Eep. 177 ; Comstock v. Affoelter, 50 Mo. 411 ; Watkins v. Paine, 57
Ga. 50. If, however, the vendor undertakes to make the delivery him-
self at a distant place, thus assuming the risk in the carriage, the car-
rier becomes the agent of the vendor, and the property will not pass
until the delivery is actually made. Dunloj) v. Lamhert, 6 CI. & Fin.
600 ; Rail v. Gaylor, 37 Conn. 550 ; Ranney v. Highy, 5 Wis. 62 ;
Thompson \. Cincinnati, etc., E. B. Co., 1 Bond, 152 ; Wait v. Baker,
2 Exch. 1. The vendor is not, of course, responsible for the risks of
transit, in cases where he has treated the carrier as the buyer's agent.
His duty to deliver the goods in merchantable condition is complied
with, if they are in a proper condition when delivered to the carrier.
Hull V. Robison, 10 Exch. 342 ; Mann v. Evertson, 32 Ind. 355 ;
Barton v. Kan^, 17 Wis. 37 ; Clarke v. Hutchins, 14 East, 475.

The same principle of agency applicable to a carrier is also applied
in the case of a delivery made to a warehouseman. Thus, tobacco sold
and paid for while hanging up to dry, and afterward packed, boxed and
stored by the vendor, with a warehouseman designated by the purchaser,
and marked with the purchaser s name, to be kept for him, is sufficiently
dehvered into the latter's hands, and cannot be attached by a creditor
of the vendor ; nor is it necessary for the purchaser to inform the ware-
houseman personally, or by any other agent than the vendor, of his title.
Hunter v. Wright, 12 Allen, 548. And where property sold is deliv-
ered to a warehouseman indicated by the buyer, the right of prop-
erty will vest in the buyer, although the warehouseman may have a
lien on the goods for his charges {Bradford v. Marhury, 12 Ala. 520) ;
or, although the seller should take a receipt for the goods in liis own
name, unless his intention, in so taking the receipt, was to preserve
the right of property in himself. Id. See Bosv)eU v. Green, 25 K
J. Law, 390 ; Shepardson v. Ca/ry, 29 Wis. 34 ; Knights v. Whifen,
L. K., 5 Q. B. 600.

§ 30. Constructive delivery. A sale of personal property must in
general be accompanied by a change of the possession of the thing sold.
The law does not, however, require the parties to a sale to perform acts

SALES. 575

extremely incoTirenient, if not impossible, but accommodates itself to
their business, and the nature of the property ; and, therefore, as some
kinds of property are not susceptible of immediate manual delivery,
the law requires only such delivery and change of possession as the
nature of the property will allow. Long v. Knapp^ 54 Penn. St. 514 ;
Bailey v. Ogden^ 3 Johns. 399. Thus, where goods are sold while at
sea, the vendee acquires, without actual possession, a constriictive pos-
session, sufficient to maintain trespass against any wrong-doer. Hoio-
land V. Harris, 4 Mas. (C. C.) 497. "Where all the logs and boards
designated by a particular mark are sold while afloat, a constructive or
symbolical delivery only is required, and this may be done by the per-
formance of any act which shows that the seller has parted with the right
and claim to control the property, and that the purchaser has acquired
that right. Boynton v. Yeazie, 24 Me. 286. So, an order on the de-
positary of goods sold, given by the vendor to. the vendee, constitutes a
good delivery as between themselves. Sigerson v. Harher, 15 Mo.
101. See, also, Anthony v. Wheatons, 7 E. I. 490 ; McCorniick v. Had-
den, 37 111. 370 ; Davis v. Jones, 3 Houst. (Del.) 68. So, where the
vendor, who was in possession of the goods, gave a certificate to the
vendee that he held them in storage for him, this was held to be a suf-
ficient delivery. Chapman v. Searle, 3 Pick. 38. And, in general,
the transfer of any article, which is a symbol or evidence of ownership,
or the assertion of complete authority on the part of the vendee by acts
consistent only with ownership, and assented to by the vendor, consti-
tutes a sufficient constructive delivery. Chaplin v. Rogers^ 1 East,
192 ; Ricker v. Cross, 5 N. H. 571 ; Story on Sales, § 311. The cir-
cumstances which are to be held tantamount to an actual delivery ought,
however, to be so strong and unequivocal as to leave no reasonable doubt
of the intent of the parties. See Clark v. Draper^ 19 N. H. 419 ;
Cartright v. Phoenix, 7 Cal. 281. And it was held that an agreement
with the vendor about the storage of the goods, and the delivery by him
of the export entry to the agent of the vendee, were not sufficiently
certain to amount to a constructive delivery, or to afibrd an indicium
of ownership. Bailey v. Ogden, 3 Johns. 399. Instances illustrating
the subject of constructive delivery will be found in the sections imme-
diately following.

§ 31. Symbolic delivery, illustrations of. Generally speaking,
where the thing sold cannot be actually delivered, a symbolical deliv-
ery is sufficient {Pleasants v. Pendletoji, 6 Kand. [Va.] 473 ; Atwell
V. Miller, 6 Md. 10) ; but where delivery is essential to the contract, a
sjmibolic deliver}' is effectual only when it can be immediately followed
by actual delivery. Stevens v. Stewart, 3 Cal. 140.

576 SALES.

It has been repeatedly held that the delivery of the key of a builc
ing, in which personal property is stored, by the vendor to the vendee,
with intent to surrender possession of the property, is a sufficient sym-
bohc dehvery thereof to pass the title, Gr^ay v. Douois^ 10 N. Y. (6
Seld.) 285; Packard v. Dunsmore, 11 Cush. 282; Benford v. Schelly
55 Penn. St. 393. And it is held that the delivery of a sliop, so sepa-
rated from the realty as to be an article of personal property, may well
be aifected by delivery of the key, though that delivery be made at a
distance from the shop itself. Yining v. GiTbreth, 39 Me. 496.

Cutting off the spills of wine casks [Anderson v. Scott, 1 Camp.
235), or affixing particular marks to the goods sold {Tansley v. Turner,
2 Bing. K. C. 151), will be deemed a sufficient sjinbolic delivery to
vest the property in the vendee. See, also. Hall v. Micha/rdson, IG
Md. 396 ; Squires v. Payne, 6 Cal. 654. Selecting and marking sheep
in the possession of a third party, who is desired to retain possession
of them for the purchaser, is a sufficient delivery to complete the sale
and pass the property. Barney v. Brown, 2 Yt. 374, And where
the seller pointed out certain cattle of his which were running with
others in a pasture, and designated their price, which the purchaser
agreed to take as they were, and at the stipulated price, it was held
that this constituted a delivery of the cattle. Brown v. Wade, 42
Iowa, 647. See Sutton v. Ballou, 46 id. 517.

A delivery of part of a number of chattels, and a symbolical delivery
of the remainder, is a sufficient transfer of possession. Thus, a deliv-
ery of a part, and an agreement to deliver the key of a shop contain-
ing the residue to a third person, and an actual delivery of the key to
such third person for the use of the vendee, is a sufficient delivery of
the whole. Chappel v, Marvin, 2 Aik. (Yt.) 79.

And the delivery of a sample, if accepted as a symbolical delivery
of the whole, or as a part delivery under an entire contract, will trans-
fer the title of the whole {Dixon v. Yates, 5 Barn. & Ad. 339 ;
Simmons v. Swift, 5 Barn. & C. 857 ; Phelps v. Cutler, 4 Gray, 137.
See ante, 553, § 17) ; and, especially, where the goods are ponderous
or bulky, or the vendor has them not in his personal custody — as, if
they be in the custody of the officers of the government, and where
they could not be actually delivered until the seller had paid the duties.
Ilvnde V. Whitehotise, 7 East, 558. So, where property is under at-
tachment, so that the debtor cannot give actual possession of it to a
purchaser, a symbolical delivery of it will l)e sufficient. Wheeler v.
NicJwls, 32 Me. 233 ; Whipple v. Thayer, 16 Pick. 25.

In the sale of oxen, a delivery of brass knobs, which had been worn

SALES. 577

•apon their horns, is not a symbolical or constructive delivery of the
oxen, unless specially so agreed. Clark v. Drape/\ 19 N. H. 419.

And plucking a handful of half grown grass, and delivering it to a
purchaser in a field, upon a sale of the grass, with an agreement that
the vendor shall cut it for the vendee at a proper time, is not a con-
structive delivery of the hay, as a chattel, which will pass a title to it
a-5 against a third person claiming imder the same vendor. La/maon v.
Patchy 5 Allen, 586.

Upon an agreement for the sale of merchandise and payment there-
for by a satisfactory note, the purchaser examined the merchandise,
had it weighed, marked with his initials, and piled up by itself in
the seller's warehouse, to be taken away upon payment for it, or
giving a satisfactory note for its price. The purchaser failed to com-
ply with these terms, and the seller refused to allow him to take the
merchandise away, claiming a lien upon it for its price. After remain-
ing for several months it was destroyed in the warehouse by fire,
and it was held that there was no such dehvery of the merchandise
as to constitute the seller a bailee for the purchaser. Safford v. Mc-
Dcmough, 120 Mass. 290.

§ 32. By deed or bill of sale. Property in chattels personal may
be transferred in writing without delivery, the delivery of the writing
being a symbolical delivery of the property. Southioorth v. Sehr'ing^
2 Hill (S. C), 587. Thus, the delivery of a deed of transfer of a vessel
at sea passes the title to the purchaser, subject only to be defeated by
his negligence in not taking possession of her within a reasonable time
after her return to port. Brinley v. Sj^riiig^ 7 Greenl. (Me.) 241. And
see Goodenoio v. Dunn^ 21 Me. 86 ; Turner v. Coolidge, 2 Mete. 350 ;
Harjper v. Dougherty^ 2 Cranch (C. C), 284. So, it is a well-settled
doctrine, that where personal property in general is, from its character
or situation at the time of the sale, incapable of actual deliver}', the
delivery of the bill of sale, or other evidence of title, is sufficient to
transfer the title and possession to the vendee. Gibson v. Stevens, 8
How. (U. S.) 384 ; Pratt v. Parlcman, 24 Pick. 42 ; Trieher v. An-
drews, 31 Ark. 163 ; Morgan v. Smith, 29 Ala. 283. And a bill of
sale of property in the possession of a bailee of the former owner
gives the purchaser an imiuediate and valid title, without a formal
delivery of possession ; and the possession of the bailee becomes that
of the purchaser from the time of the execution of the instrument.
Heine v. Anderson, 2 Duer (N. T.), 318.

Put the delivery of a bill of sale of property, by the vendor to the re
corder, without the knowledge or consent of the vendee, will not vest
YoL. Y.— 73

5Y8 SALES.

tlie title as against subsequent attaching creditors of the vendor, Dan)
Y. Giiffith, 15 Iowa, 104.

And the dehvery of a bill of sale of personal property, without con-
sideration and without a delivery of the property itself, is not such a
transfer of the property as a court of equity will enforce. Stone v.
King, 7 K. I. 35S.

A bill of sale and a receipt of payment was given for articles not then
manufactured, but they were subsequently manufactured, and a part
delivered, and it was held that whether such delivery of part operated
as a delivery of the whole depended on the intention of the parties,
which was a question for the jury. Pratt v. Chase, 40 Me. 269.

A bill of sale of personal property in New York, where possession
does not accompany the transfer, has no preference over a mortgage
of the same property subsequently executed, although that also may
be unaccompanied by a change of possession. Bennett v. Earll, 21
Wend. 117.

§ 33. By transfer of bill of lading. It is likewise well settled as
a general principle that the indorsement and transfer to the buyer
of bills of lading will be a good delivery in performance of the
contract of sale, so as to defeat any action by the buyer against the
vendor for non-delivery of the goods. Salter v. WooUams, 2 M, & G.
650 ; Wood v. Mayiley, 11 Ad. & El. 34 ; Jordan v. James, 5 Ohio, 88 ;
Laio V. Hatcher, 4 Blackf. (Ind.) 364 ; Davis v. Jones, 3 Houst. (Del.)
68 ; Ezell v. Ewjllsh, 6 Port. (Ala.) 311 ; Tilden v. Minor, 45 Yt. 196.
So, the delivery or assignment of store receipts, given by a warehouse-
man with invoice and weigher's return, is a sufficient symbolic delivery
to pass the title to property. Stohes v. Recknagel, 6 Jones & Sp. 368 ;
Ea/yden v. Demets, 53 IT. Y. (8 Sick.) 426 ; affirming S. C, 2 Jones &
Sp. 344 ; Gardner v. Howland, 2 Pick. 599 ; Newconib v. Cabell, 10
Bush (Ky.), 469. Usage has made the possession of such documents
equivalent to the possession of the property itself. Broadwell v. How-
a/rd, 77 111. 305. Thus, where a warehouseman purchased grain stored
by him, for another person, and with such other person's money, and
took up his outstanding receipt, held by the vendor, and issued a
new receipt to the person for whom he bought, it was held that the
grain was not liable thereafter to be taken in execution against the
warehouseman. Id.

So, the dehvery to a purchaser of a ginner's receipt for cotton,
wliich stipulated that the same was to be ginned, bailed, etc., and
delivered to the holder of the receipt, was held to be a symbolical
delivery of the cotton, sufficient to pass the title to the purchaser
free from a landlord's lien for rent, of which he had no notice.

^ALES. 579

Puckett V. Beed^ 31 Ark. 131. And see Re Batchelder, 2 Low, 245.
And a tender, by the seller of goods, of an unindorsed custoni-honse
permit, authorizing a delivery of the goods by the warehouseman, is
held to be a sufficient offer of delivery of the goods, it appearing that
the permit was sufficient, if indorsed by the vendor, to enable the
buyer to take possession. Duiibar r. Pettee, 1 Daly (N. T.), 112.

But where A, who had shipped goods to his agent B for sale, drew a
bill on B in favor of C, and delivered to C the railroad receipt for the
goods, this was held to be no transfer of title so as to enable C to main-
tain trover. M'Pherson v. Neuffer, 11 Eich. (S. C.) 267.

§ 34. Buyer's duty to accept. "Where a valid contract of sale is
made in writing, a delivery pursuant to such contract at the place
agreed upon for delivery, or a shipment of goods in conformity with
the terms of the contract, will pass the title to the vendee without any
receipt or acceptance of the goods by him. But if the contract is oral,
and no part of the price is paid by the vendee, there must not only be
a delivery of the goods by the vendor, but a receipt and acceptance of
them by the vendee to pass the title or make the vendee liable for the
price ; and this acceptance must be voluntary and unconditional. Even
the receipt of the goods without an acceptance is not sufficient. Some
act or conduct on the part of the vendee, or his authorized agent, man-
ifesting an intention to accept the goods as a performance of the con-
tract, and to appropriate them, is required to supply the place of a
written contract. Cmdkins v. Hellman, 47 N. T. (2 Sick.) 449; S;
C, 7 Am. Eep. 461 ; Stone v. Browning, 68 N. Y. (23 Sick.) 598 ;
Remick v. Sandford, 120 Mass. 309 ; Edwards v. Grand Trunk
Railway, 54 Me. 105. A detention of custody by the buyer be-
comes, however, in the lapse of time, decisive of the question ;
for, should he determine for any cause not to accept the goods, he
must promptly return them to the vendor, or give him notice to
ta"ke them back. Reed v. Randall, 29 N. Y. (2 Tiff.) 358 ; Clark v.
Wright, 5 Phil. (Penn.) 439 ; Treadioell v. Reynolds, 39 Conn, 31 ;
Couston V. Chapman, L. R., 2 Sc. App. 250 ; Knoblauch v. Kronsch-
iwhel, 18 Minn, 300. And the buyer's appropriation of a part of the
goods, by a sale thereof, will be an appropriation of the whole, so far
as to subject him to pay for them at their real value, not exceeding the
contract price. Watkins v, Paine, 57 Ga. 50,

As it regards the effect of acceptance it is held that where the ven-
dee, under an executory contract for the purchase and sale of personal
property containing no warranty, express or implied, accepts the prop-
erty after examination, such acceptance implies a consent or agreement
on his part that the quality is satisfactory, and is conclusive upon him.

580 SALES.

But if such acceptance is hroTight about by the fraud of the vendor, ot
an examination is fraudulently prevented or interfered with by him,
the acceptance by the vendee is not binding as an assent to the quality,
and his rights are not impaired thereby. Dutchess Company v. Hard-
ing, 49 K. Y. (4 Sick.) 321. See, also, Goodhue v. Butman, 8 Me.
116; Vanderhorst v. WTaggart, 2 Bay (S C), 498; Da^a v. Boyd,
2 J. J. Marsh. (Ky.) 58Y,

"When the purchaser absolutely refuses to accept goods according to
contract, the seller need not continue ready to deliver them, but may
resell and sue immediately for the damages he has sustained. West v.
Cimningham, 9 Port. (Ala.) 104; Pollen v. LeRoy, 30 IST. Y. (3
Tiif.) 558 ; Girard v. Taggart, 5 Serg. & E. 19. A resale of the
goods should be made at the earliest practicable period after an abso-
lute refusal to accept ; but where such refusal is afterward modified,
and the buyer expresses himself as being uncertain whether or not he
shall accept the goods, the seller is not obliged to sell at once, but may
wait a reasonable time to allow the buyer to determine whether he
will take them. Tilt v. LaSalle Silk Manuf. Co., 5 Daly (N. Y.),
19.

Where the law can pronounce upon a state of facts relative to a sale
of goods, that there is or is not a delivery and acceptance, it is a ques-
tion of law to be decided by the court. But where there may be un-
certainty and difficulty in determining the true intent of the parties
respecting the delivery and acceptance, from the facts proved, the
question of acceptance is to be determined by the jury. Hondlette v.
Tallman, 14 Me. 400. And see Stone v. Browning, 68 N. Y. (23
Sick.) 598.

§ 35. Buyer's duty to pay. Where the seller of goods has done
all that was required of him to do in regard to the delivery of the
goods, they are at the risk of the buyer, whose duty it is, at the time
of the delivery, to be by himself or agent at the price fixed in the con-
tract, ready to perform his part of its stipulation {Fitzpatrich v. Fain,
3 Coldw. [Tenn.] 15) ; or, if no price has been expressly agreed upon,
to settle for the goods at their market value, at the time of the sale.
Street v. Blay, 2 Barn. & Ad. 456 ; Iloadley v. McLaine, 10 Bing.
482 ; S. C, 4 Moore & S. 340. In cases where the property has
passed, the buyer must pay the price according to the terms agreed on,
even if the goods are destroyed in the vendor's possession. Rugg v.
Minett, 11 East, 210; Chamhers v. Miller, 13 C. B. (K. S.) 125. And
even where the property has not passed, and the price is to become
payable only on delivery, yet, if the buyer has assented to assume the
risk of delivery, he must pay the price if the goods are destroyed be-

SALES. 681

fore delivery. Martineau v. Kitchiiig, L. E,., 7 Q. B. 436 ; S. C, 2
Eng. R. 539 ; Castle v. Playford, L. R., 7 Exch. 98 ; S. C, 1 Eng.
Rep. 204 ; Benj. on Sales (2d ed.), 583.

§ 36. Mode of payment. In respect to the mode of payment, it
will in any case depend upon the agreement, express or implied, of the
parties. If there is nothing in the contract to the contrary, the sale
will be regarded as ha^^ng been made for casli ; and the purchaser will
not be entitled to delivery, as matter of right, without making pay-
ment. Martineau v. Kitching, L. R., 7 Q. B. 436 ; S. C, 2 Eng. R.
539 ; Eohhms v. Ha/rrison, 31 Ala. 160 ; Metz v. Alfrrecht, 52 111.
491. In the absence of any special agreement, payment and delivery
are to be deemed concurrent acts, and an action for non-perfonnance
cannot be maintained by either party, without showing a readiness to
perform on his part. Id.; Soiothwesterri Freight, etc., Go. v. Plant, 45 Mo.
517; Coil V. Willis, 18 Ohio, 28 ; Davis v. Adams, 18 Ala. 264. And
see CasseU v. Backrack, 42 Miss. 56 ; S. C, 2 Am. Rep. 590 ; Gold-
smith V. Bryant, 26 Wis. 34 ; Brehsn v. CDonnell, 34 N. J. Law,
408. And where it is not the intention of the vendor to part with
the possession of the property until he is paid the price agreed upon,
in money, he will not lose title to the property by inadvertently allow-
ing the purchaser to get possession thereof without payment. Miller
V. Jones, ^^ Barb. 148.

Where, as is sometimes the case, the contract provides that payment
is only to be made after demand or notice, a reasonable time must be
allowed for the purchaser to get his notice and to comply with it.
Brightly v. Norton, 3 B. & S. 305. A notice served at noon to make
payment in half an hour was held not to be a reasonable notice. Id.
And see Massey v. Sladen, L. R., 4 Exch. 13, So, it was held that a
promise to pay " immediately on demand " could not be construed so
as to deprive the debtor of an opportunity to get the money which he
may have in bank or near at hand. Tonus v. Wilson, 4 B. & S. 442.

Wliere the agreement does not provide that payment is not to be
made until the whole is delivered, the vendor is not obliged to deliver,
nor the vendee to receive, any part thereof until the whole be dehver-
able. If less than the whole be received by the vendee, and the con-
tract stipulates for payment on delivery, the vendor is entitled to
immediate payment for the portion delivered ; but such claim may be
waived. Matthews v. Hobby, 48 Barb. 167. See Oxendale v. Weth-
erell, 9 Barn. & Or. 386 ; Houston v. Chapinan, L. R., 2 So. App.
250.

If the payment be made in accordance with the vendor's request,
and in the manner and with the precautions prescribed by him, the

582 SALES.

buyer will be discharged, although the money never reaches the vendor's
hands ; as where the money is transmitted by mail in compliance with
the vendor's directions, and is lost or stolen. Barwich v. Noakes,
Peake, 68 ; Toionsend v. Henry, 9 Eich. (S. C.) L. 318 ; Williams v.
Carpenter, 36 Ala, 9 ; Gordon v. Strange, 1 Exch. 477 ; Gurney v.
Howe, 9 Gray, 404. But it w^as held that a direction to transmit by
mail was not complied w^ith by the delivery of a letter, with the remit-
tance inclosed, to the postman in the street, but it should have been
deposited in the post office, or a receiving office authorized to receive
letters with money. Hawkins v. Rutt, Peake, 186, 248.

A tender of payment is as much a performance and discharge of the
buyer's duty as an actual payment. But a tender is valid only when
the buyer produces and offers to the vendor an amount of money equal
to the price of the goods. See Dixon v. Clarke, 5 C. B. 365. A
tender of a gross sum due on several demands, without designating the
amount tendered upon each, is, however, sufficient, Thetford v. Hub-
hard, 22 Vt. 440. And the actual production of the money may be
dispensed with by the words or acts of the vendor {Mattocks v.
Young, Q>Q Me. 459; Harding v. Davis, 2 Carr. & P. 77;
Douglas v. Patrick, 3 T. K. 683) ; though the courts have been
rigorous in requiring proof of a dispensation. See Finch v.
Brook, 1 Bing. N. C. 253 ; Thomas v. Evans, 10 East, 101 ; Leath-
erdale v. Sweepstone, 3 Carr. & P. 342. A tender should be in the
lawful coin of the country, or in such paper money as the constitution
and laws may have legalized for that purpose. Hallowell Bank v.
Howa/rd, 13 Mass. 234 ; Legal Tender Gases, 12 Wall. 457. But, if
not objected to at the time, a tender in bank notes or even foreign
money will answer. Id. ; Brown v. Simons, 44 N. H. 475 ; Cooley v.
Weeks, 10 Yerg. (Tenn.) 141. A tender of a larger sum than is due,
•>7ith a demand for change, is not a good tender, if the creditor objects
to giving change. Betterhee v. Davis, 3 Camp. 70 ; Bean v. James,
4 B. & Ad. 546. See Patterson v. Cox, 25 Ind. 261. A tender must
be unconditional and unqualified. Sanford v. Bulkley, 30 Conn. 344 ;
Cothran v. Scanlan, 34 Ga. 555. But a tender accompanied by a
protest that the amount is not due is a good tender. Scott v. TJxbridge,
ItaiVway Co., L. R., 1 C. P. 596 ; Manning v. Lunn, 2 Carr. & K.
13. And a tender is not vitiated because the debtor says he considers
it all that is due. Rolnnson v. Ferreday, 8 Carr. & P. 752.

In the absence of any agreement to the contrary, a negotiable secu-
rity, as a promissory note or bill of exchange, taken in payment for
goods, is always understood to be conditional, the vendor's right to the
price reviving on non-payment of the security. Griffiths v. Owen, 13

SALES. 583

M. & W. 5S ; Crowe v. Clay, 9 Exch. 604 ; Griffiths v. Perry, 1 El. &
El. 680 ; Archibald v. Aryall, 53 El. 307 ; Smith v. Miller, 43 N. Y
(4 Hand) 171 ; S. C, 3 Am. Eep. 690; Middlesex v. Thomas, 20 N.
J. Eq. 39. The law is, that if in payment of a debt the creditor is
content to take a bill or note payable at a future day, he cannot legally
commence an action on his original debt until such bill or note becomes
payable, and default is made in the payment (Id. ; James v. Williams,
13 M. & W. 828 ; Simmi v. Lloyd, 2 Cr. M. & R. 187) ; but if such
bill or note is of no 'value, as if, for example, drawn on a person who
has no effects of the drawer's in his hands, and who therefore refuses to
accept it, in such case he may consider it as waste paper, and resort to
his original demand, and sue the debtor. Stedman v. Gooch, 1 Esp.
5 ; Maillard v. Duhe of Argyle 6 Man. & G. 40. And see Wilmarth
V. Mountford, 4 "Wash. (C. C.) 79. In some of the States the ordinary
rule of the common law, that a promissory note or bill of exchange is
j^ima facie a conditional payment only, is entirely reversed. See
a/nte, 532, § 5.

"Where the seller prefers to take an ordinary check on a banker to
payment in money, he is not regarded as electing to take a security
instead of cash, for a check is accepted as a particular form of cask
payment. If dishonored, the seller may resort to his original claim, on
the ground that there has been a defeasance of the condition on which
it was taken. Pearce v. Davis, 1 Moo. & E. 365 ; Caine v. Coidton,
1 Hurl. & C. 764 ; Hough v. May, 4 Ad. & El. 954. But if a check
received in payment is not presented within a reasonable time, and the
drawer is injured by the delay, the check will operate as an absolute
payment. Ilopkins v. Ware, L. Il.,4 Exch. 268; Smith v. Jones, 2
Bush (Ky.), 103 ; Smith v. Miller, 43 N. Y. (4 Hand) 171 ; S. C, 3
Am. Rep. 690.

When property is sold without any expectation of immediate payment,
it is a sale on credit ; and the lengtli of time for which the payment is
deferred, whether one day or a longer period, is of no consequence.
Anstedt v. Suter, 30 111. 164. In the case of a sale on credit, the
property is completely vested in the buyer, so that the seller cannot
reclaim the goods, but is put to his action for the price {Swancott v.
Westgarth, 4 East, 75 ; Eugg v. Weir, 16 C. B. [N. S.] 471) ; and he
cannot maintain his action for the price until the expiration of the term
of credit. Dutton v. Solomonson, 3 Bos. & P. 582 ; Brooke v. White,
1 T^ew R, 330. But if the giving of a credit for the price of goods
sold is conditional, as, for instance, that the buyer's note, with a
surety, be given therefor, and this condition is not complied with,
but the property is taken by the buyer, he is liable for the price at

58i SALES.

once, and before the expiration of the proposed term of credit. Rugg
V. Weir, 16 C. B. (K. S.) 471 ; Bice v. Andrews, 32 Yt. 691.

Where grain was sold, to be placed on the platform by the vendor
and to be paid for when weighed, and no time was specified for weigh-
ino- the srain, the transaction was held to be a sale on credit, and that
the property thereby passed to the vendee. Bell v. Fa/rrar, 41 111.
400.

Payment may be made to a duly authorized agent of the vendor, as
well as to the vendor himself ; and, even though the agent denies his
authority, a tender of payment made to him in the usual manner will
be good for all legal purposes. Mclniffe v. Wheelock, 1 Gray, 600. A
factor, being an agent of a general character, is entitled to receive pay-
ment and give discharge of the price {Fish v. Kemjpton, 7 C. B. 687) ;
but a broker is not, since he is not intrusted with the possession of
the goods. Baring v. Corrie, 2 B. & Aid. 137. It is likewise held in
this country that a factor may sell the goods of his principal on a rea-
sonable credit, unless restrained by instructions or special usage. Riley
V. Wheeler, 44 Yt. 189 ; Daylight Burner Co. v. Odlin, 51 N. H. 56 ;
S. C, 12 Am. Kep. 45. But see Catterall v. Hindle, L. R., 1 C.
P. 186. Payment to a person sitting in a counting-room, appar-
ently intrusted with the conduct of the business, is a good pay-
ment {Barrett v. Deere, 1 M. & M. 200); and a tender under similar
circumstances would be valid. Willmott v. Smith, id. 238 ; 3 C. & P.
453. It has, however, been said that, if a shopman, who is authorized
to receive payment over the counter only, receives money elsewhere
than in the shop, the payment is not good. Kaye v. Brett, 5 Exch.
269. And &qq Jackson v. Jacoh, 5 Scott, 79. An auctioneer employed
to sell goods in his possession for cash may, in general, receive payment
for them. See Yol. 1, p. 477. But the conditions of sale may be such as
show that the vendor intended payment to be made to himself, and in
such case a payment to the auctioneer would not bind the vendor. Id.;
Williams v. Evam,s, L. R., 1 Q. B. 352 ; Sykes v. Giles, 5 M. & W.
645. And if the auctioneer acts as a mere crier, or broker, for a principal
who has retained possession of the goods, he has no implied authority
to receive payment of the price. Benj. on Sales (2d ed.), 606.

At common law a wife has no general authority to receive payment
for a husband, and a payment to her of money, even earned by herself,
will not bind the husband, without proof of authority, express or im-
plied. Offlcy V. Clay, 2 Man. Sc O. 172.

§ 37. Delivery without payment. Where goods are sold for cash,
and the seller delivers them to the buyer upon the faith of his paying
cash for them, and immediately demands the cash, and the buyer refuses

SALES. 685

to pay it, the delivery is not an absolute, but a conditional delivery,
and if the buyer refuses to perform the condition, no property in the
goods passes to him, and the seller may at once reclaim them. Rejm-
i/ng^ etc., Co. v. Miller, 7 Phil. (Penn.) 97 ; Ferguson v. Clifford, 37 N.
H. 86 ; Harding v. Meitz, 1 Tenn. Ch. 610 ; Oshorn v. Gantz, 60 N.
Y. (15 Sick.) 5-10. The seller may, however, waive the payment of the
price, and agree to postpone it to a future day, and proceed to complete
the delivery, in which case it would be absolute, and the title would
vest in the buyer. Paul v. Reed, 52 N. H. 136. See, also, Mixer v.
Cooh, 31 Me. 340 ; Farlow v. Ellis, 15 Gray, 229 ; Bowen v. Burk,
13 Penn. St. 146 ; Pitts v. Owen, 9 Wis. 152. But mere delivery,
without requiring payment, is only presumptive evidence of the waiver
of a condition that payment should be made upon dehvery to vest the
title in the vendee, and this presumption may be rebutted by the acts
or declarations of the parties showing a contrary intent, and the intent,
where any doubt arises, is a question of fact. Hammett v. Linnema/n,
48 K Y. (3 Sick.) 399.

A vendor does not waive the precedent condition of payment, in a
cash sale of merchandise, where the goods are delivered too late on Sat-
urday to send in a bill, and payment is called for on Monday, when the
purchaser has absconded. And the vendor, in such case, may reclaim
the goods from a judgment creditor of the purchaser. Acker v. CoAiyp-
lell, 23 Wend. 372.

So, it is held that a party under a contract to deliver articles by the
wagon-load, and who is entitled to be paid for each wagon-load as deliv-
ered, does not waive that right, but may treat the contract as broken by
a single failure to make payment upon tender of delivery, although he
has repeatedly delivered loads without payment, and has given the other
party no notice of his intention to insist upon immediate payment
thereafter. Gardner v. Clark, 21 :N". Y. (7 Smith) 399. See, also,
Russell V. Minor, 22 Wend. 659.

The cases in which a credit is given, or the condition of payment is
waived by delivery, are distinguishable from those where the interven-
ing period between the delivery and actual payment was necessary, in
order to make the payment as agreed. In the latter class of cases the
idea of a waiver is repelled. If such intervening period is necessary
for counting the money, or drawing a note or bill of a third person, or
going to a bank to procure fimds, or doing any other act for the pur-
pose of completing a contract of sale and delivery according to its
terms, such sale and delivery will not be regarded as complete until the
payment is made. Gibson v. Tohey, 46 N. Y. (1 Sick.) 637 ; S. C, 7
Am. Rep. 397. Such a rule, it is said, insures good faith in commer-
YoL. Y. — 74

586 SALES.

cial transactions, and protects the rights of all parties, and does not
interfere with the principle that an unconditional delivery operates as
a waiver of payment. Id.

"Where, upon a sale of personal property, the right to receive payment
before delivery is waived b}^ the seller, and immediate possession is
given to the purchaser, and yet, by express agreement, the title is to
remain in the seller until the payment of the price, such payment is
strictly a condition precedent, and until performance, the right of prop-
erty is not vested in the purchaser. Armington v. Houston^ 38 Yt.
448; Putnam v. Lamphier, 36 Cal. 151; McFarland v. Farmer, 42
iS^. H. 386 ; Goodwin v. May, 23 Ga. 205 ; Bradshaw v. Thomas, 7
Yerg. (Tenn.) 497 ; Fiser v. Stearns, 1 Hilt. (IsT. Y.) 86 ; Sargent v.
MetcaJf, 5 G-ray, 306 ; 1 Pars, on Cont. 449. And see Cothran v. Flint,
57KH. 514.

And if the owner of a chattel deliver it to another person, under an
agreement in writing, stating its value, and that such person agrees to
pay a specified sum monthly for its use, and that it is to be sold for a
price therein mentioned, and that a specified sum is to be paid each
month until the agreed price is paid, when a bill of sale will be given,
the asrreement does not constitute an absolute sale of the chattel. Under
such an agreement the title does not pass, and the party receiving the
chattel cannot sell it until the purchase-price is paid. Kohler v. Hayes,
41 Cal. 455. Such agreements are frequently entered into, with respect
to sewing-machines, pianos, and the like. See ante, 547, § 15.

§ 38. At what time title passes. As a general rule, the title to
goods does not pass so long as any thing remains to be done to identify
the goods, or to determine the quantity or quality, if the price depends
upon such determination. MoClung v. Kelley, 21 Iowa, 508; Ling-
ham V. Fggleston, 27 Mich. 324 ; Banchor v. Warren, 33 K. H. 183 ;
StepJiens v. Santee, 49 K. Y. (4 Sick.) 35. And see ante, 541, § 10.
But when the thing sold is clearly identified, and the price, time and
manner of delivery are fully agreed upon, delivery will, in the absence
of all other facts, pass the title. JlotcJikiss v. Hunt, 49 Me. 213. And it
is held that the title will pass, where there is a delivery with the inten-
tion of passing the title, although something still remains to be done to
identify the property, or to ascertain the price. Chajpin v. Potter, 1
Ililt. (k. Y.) 366 ; ChamUee v. McKenzie, 31 Ark. 155. And even
w^here there is no delivery, or separation of the property sold from the
bulk of a larger quantity, whether tlie title passes to the vendee is held
to be a question of intent. Rodee v. Wade, 47 Barb. 53 ; Watts v. Hen-
dry, 13 Fla. 523 ; Oraff v. Fitch, 58 111. 373 ; S. C, 11 Am. Rep. 85 ;

SALES. 587

Groat V. Oile, 51 IST. T. (6 Sick.) 431. But see Gibhs v. Benjamin^
45 Yt. 124.

In Chapman v. Shepard, 39 Conn. 413, the general rule is stated to
be, that upon the sale of a certain number of articles, part of a mass
of articles of the same qualitrj and value, a separation of the articles
sold from the mass is not necessary to the passing of the title to the
vendee ; but it is otherwise, where the articles composing the mass are
of different qualities and values, making not merely separation but
selection necessary. See, also, WJdtehouse v. Frost, 12 East, 614 ;
Pleasants v, Pendleton, 6 Rand. (Va.) 473; Kimherlyx. Patcliin, 19
N. T. (5 Smith) 330. Thus, where the owner of a large quantity of
corn in bulk sells a certain number of bushels therefrom, undistinguish-
able in quality or value from the mass in which it is included, and
receives his pay, and the vendee takes away a part, the property in the
part sold vests in the vendee, although it is not measured or separated
from the heap. Waldron v. Chase, 37 Me. 414. And see Groff v.
Belche, 62 Mo. 400. But if a verbal contract is made for the sale and
delivery of certain specified quantities of different kinds of spirituous
liquors, at agreed prices, the property will not pass, and the sale is not
complete until the liquors are separated and set apart for the purchaser.
Bonchor v. Warren, 33 :N'. H. 183. See ante, 542, §§ 11 and 12.

Wliere the vendor has performed every thing that is required of him
as to a.portio7i of the things sold, but something still remains to be
done as to the rest, the portion in regard to which the vendor has per-
formed all his duty becomes the property of the vendee, but the portion
in respect to which something is yet to be done still belongs to the
vendor, and is at his risk ; and it makes no difference as to the operation
of this rule, whether the contract is an entirety or not. Thompson v.
Conover, 32 IST. J. Law, 466. Where the terms of a sale were settled,
and the vendor acce|)ted the promise of the vendee to pay the stipulated
price to another, not making the actual payment a condition of the sale,
the property was held to have passed and vested in the vendee as soon
as he had obtained actual possession of it, by the consent of the vendor,
either express or implied, that being equivalent to a formal delivery.
BucTcnam v. JVash, 12 Me. 474.

Under an agreement entered into for the sale of certain hops, the
hops were, m pursuance of the direction of the buyer, delivered to the
station-master at a designated railway station, to be there paid for by
the buyer. At the time of the delivery the seller instructed the agent
to deliver them to the buyer upon the receipt of the purchase-price.
After the hops had been at the station for a few days, they were stolen ;
and it was held that the title to the hops had passed to the buyer, and

588 ' SALES.

that he was liable to the seller for the price. Morey v. Medbury, 10
Hun (N. T.), 540. See Corrigan v. Sheffield, id. 227 ; Kein v. Tup-
per, 52 IST. Y. (7 Sick.) 550.

Where the purchaser of a chattel, who held it on condition that it
should remain the property of the seller till the price should be paid,
sold it to a third person, and afterward tendered the price to his seller,
who had never demanded payment, it was held that upon the tender,
although it was refused, the title passed to the third person. Day v
Bassett, 102 Mass. 445.

A contract for the future delivery of ore in a mine vests no title to
the ore in the vendee, unless it is set apart for him. Randolph, etc.,
Co. V. Elliott, 34 N". J. Law, 184.

Where sheej) were received under an agreement by the receiver that
he would deliver a part of the wool annually and pay for the sheep at
the end of four years, and that, if the annual amount of wool was not
delivered, the whole price as well as the wool should become due, the
sheep were held to be at his risk. And on their dying early in the
term, though without the fault of the purchaser and from a contagious
disease with which they were affected at the date of the sale, the
whole jDrice nevertheless became due. Smith v. Dallas, 35 Ind. 265.
See, also, Whitcomh v. Whitney, 24 Mich. 486.

A sale of stones by the owner of a farm, accompanied by a payment
for and removal of the same by the vendee to another part of the prem-
ises, constitutes a severance and vests the title in the purchaser.
Fulton V. Norton, 64 Me. 410.

An agreement for the purchase of a commodity to be thereafter
delivered, although the delivery is to be in payment of money lent by
the buyer to the seller, and although the loan may be considered
as earnest paid, is held not to vest the property in the buyer, so as to
enable him to maintain an action for it against another purchaser who
buys it of the same vendor afterward. Jennings v. Flanagan, 5
Dana (Ky.), 217. On the other hand, it is held that one who has con-
tracted to sell chattels on credit with a present delivery, on condition
that the buyer should perform certain work for the vendor, a certain
part of the contract price for which was to be applied in payment for
the chattels, cannot, after the work has been substantially jjerformed,
transfer any title or interest iu the chattels in the buyer's possession
to a third person, so as to vest in the latter a cause of action in re-
plevin. Blaisdell v. Todd, 33 Mich. 176.

The test given to determine whether, upon a contract of sale, the
property vests in the vendee or remains in the vendor, is, could the
vendee recover of the vendor, cither in a court of law or equity, the

SALES. 589

interest or property he claims to have purchased of the vendor?
Pierce v. Lyman, 28 Ark. 550.

AETICLE II.

OF THE STATUTE OF FEATJD8.

Section 1. In general. The only things essential to a valid sale of
personal property at common law were, a proper subject, a price, and
the consent of the contracting parties. "When these concurred, the
sale was complete and the title passed mthout any thing more. See
Art. 1, § 1. But by the statute of 29 Car. II, ch. 3, familiarly known
as the " Statute of Frauds," certain formalities were prescribed " for
the prevention of frauds and perjuries," which must be observed, or
what was before a valid transfer of property would now be without
validity. This statute is in force in England and it exists, with shght
variations, in almost every State of the Union. The only section of
the statute which bears directly upon the subject of sales of personal
property is the 17th, the original language of which is as follows :
" No contract for the sale of any goods, wares or merchandises, for the
price of ten pounds sterling or upwards, shall be allowed to be good,
except the buyer shall accept part of the goods so sold and actually
receive the same, or give something in earnest to bind the bargain, or
in part payment, or that some note or memorandum in writing of the
said bargain be made and signed by the parties to be charged by such
contract, or their agents thereunto lawfully authorized." Act 29 Car.
II, ch. 3, § 17 (A. D. 1677). The language of this section has been
modified to some extent in England, and, in re-enacting its provisions
in this countr}^, the legislatures of the different States have made alter-
ations, by no means uniform, but, in the main, the spirit of the enact-
ment has been retained.

As it respects the object sought to be attained by the provisions of
this important section of the statute of frauds, it is to be observed,
that, at the time the statute went into operation, the common law did
not require any executory contract to be manifested by a writing, or
any other e\ddence than that of mere words. The leading object of
the enactment was, therefore, to exclude oral testimony as a means by
whicli the rights of litigants could be determined, in certain cases,
where experience has shown that it was peculiarly liable to abuse.
See Montgomery v. Edwards, 46 Yt. 151 ; S. C, 14 Am. Rep. 618;
Bailey v. Sweeting, 9 C. B. (N. S.) 843, 859 ; Middlesex Co. v. Osgood,
4 Gray, 447 ; McLeaai v. Nicoll, 7 Jur. (N. S.) 999. In cases not in-

690 SALES.

eluded witliiu the provisions of the section, and in the absence of any
local statute expressly or bj implication establishing a different rule, a
verbal agreement is always sufficient to enable the plaintiff to recover.
Pratt V. Hudson River R. R. Co., 21 N. Y. (7 Smith) 305, 309.

§ 2. What contracts are witliiu tlie statute. It was, for many
years, a mooted question in the English courts, whether the words
" contract for the sale of any goods, etc.," in the lYth section, were
applicable to agreements for future delivery, that is, to executory
agreements or only to such as were equivalent to the common law con-
tract, known as a bargain and sale; and upon this question, the
decisions will be found to be in conflict. As favoring the exclusion of
executory agreements from the operation of the statute, see Towers v.
Osborne, 1 Str. 506 ; Clayton v. Andrews, 4 Burr. 2101 ; Groves v.
Buck, 3 M. & S. 178. As upholding the contrary rule, see Rondeau
V. Wyatt, 2 H. Bl. 63 ; Cooper v. Elston, 7 Term R. 14 ; Garhutt v.
Watson, 5 B. & Aid. 613. In 1828, the legislature intervened and by
the passage of the statute 9 Geo. lY, ch. 14, § 7, known as Lord Ten-
terden's Act, settled the question by enacting that the provisions of
the 17th section " shall extend to all contracts for the sale of goods of
the value of ten pounds sterling and upwards, notwithstanding the
goods may be intended to be delivered at some future time or may
not, at the time of such contract, be actually made, procured, or pro-
vided, or fit, or ready for deliverj'^, or some act may be requisite for
the making or completing thereof, or rendering the same fit for deliv
ery." And it is now settled, that this enactment must be construed
as incorporated with the Statute of Erauds, and that its effect is to
substitute the word " value " for " price " in the 17tli section. Harmon
V. Reeve, 18 C. B. 587 ; Scott v. Eastern Counties R. R. Co., 12
M. & W. 33.

In this country the same perplexity has been exhibited as marks the
history of the subject in the English law, and, while various tests have
been put forward by the courts of the several States, there is yet nothing
which can be claimed as authoritatively settling the application of the
statute. It may, however, be regarded as pretty well settled, even in
the absence of any explanatory acts as that of Lord Tentebden above
noticed, that contracts for the sale of goods, wares and merchandise
are not excluded from the operation of the statute merely because they
are executory. Downs v. Ross, 23 Wend. 270 ; Cason v. Cheely, 6
Ga. 554 ; Edwards v. Gravid Trunk R. R. Co., 48 Me. 379 ; Mead
V. Case, 33 Barb. 202; Hooker v. Knob, 26 Wis. 511; Carman v.
Smick, 3 Green's (N. J.) L. 252 ; NewmoAi v. Morris, 4 Ilarr. & M.
(Md.) 421. And, as observed in an English case, the provisions of the

SALES. 591

17th section of the statute would seem to be of httle use, unless they
were to extend to executory contracts ; for it is from bargains to be
completed at a future period that the uncertainty and confusion will
probably arise which the statute was designed to prevent. Lord Lough
BOROUGH, in Rondeau v. Wyatt^ 2 H. Bl. 63. And see Cunningham
V. AsKbrook^ 20 Mo. 553.

It is now well settled that a sale of goods at auction is within the
statute of frauds, though this was formerly doubted. And not only
sales by common auctioneers are within the statute, but also sheriff's
sales on execution, and public sales generally, to the same extent
as private sales. Bailey v. Ogden, 3 Johns. 399 ; Morton v. Dean,
13 Mete. 385 ; O'DonneU v. Leejnan, 43 Me. 158 ; Johnson v. Buck,
6 Yroom (N". J.), 338 ; S. C, 10 Am. Eep. 213 ; Kenworthy v.
Schofield, 2 Barn. & C. 915. But it would seem that a mortgage
of goods, wares, etc., is not within the statute. See Alexander
V. Ghiselin, 5 Gill (Md.), 138 ; aarh v. Duffey, 21 Ind. 271 ; Glea-
son V. Drew, 9 Me. 79. So, an agreement between two parties to
be partners in a sale of goods is a partnership agreement, and
not within the statute. Buckner v. Ries, 31 Mo. 357. And where
A entered into a verbal contract with B, to the effect that A should,
from time to time, advance money to B for the purpose of ena-
bling the latter to purchase grain, for which sums so advanced A
was to have a lien upon the grain to be purchased, as security for his
advances, and a right to take possession thereof whenever he deemed
it to his interest, it was held that the contract was not one of sale
within the statute. Brown v. Allen, 35 Iowa, 306. So, if a bargain
be made between two for the sale of cattle which they are looking at
in the field, and it is agreed that the cattle shall be from that time the
property of the purchaser, and be kept at his expense by the vendor,
but the payment and delivery are postponed to a future day, it is no
sale within the statute. Kirhy v. Johnson, 22 Mo. 351. See, also,
Green v. Merrian, 28 Yt. 801 ; Brown v. Wade, 42 Iowa, 647.

§ 3. What are goods, wares and merchandise. As to the mean-
ing of the words "goods, wares and merchandises," in the 17th section
of the statute, different views are entertained by the courts. The Eng-
lish rule lays especial stress upon the point, whether the articles bar
gained for can be regarded as goods capable of sale by the professed seller
at the time of delivery, without any reference to the inquiry whether they
were in existence at the time of the contract or not. If a manufacturer
is to produce an article which at the time of the delivery could be the
subject of sale by him, the case is within the statute. But the rule
excludes all cases where work is done upon the goods of another, or

592 SALES.

even materials supplied or added to the goods of another. The lead-
ing case upon this point is Lee v. Griffin, 1 B. & S. 272, where the
action was brought by a dentist to recover twenty-one pounds sterling
for two sets of artificial teeth made for a deceased lady, of whose estate
the defendant was executor. The court held this to be the sale of a
chattel within the statute of frauds — Blackburn, J., stating the prin-
ciple of the decision to be, that " if the contract be such that it will
result in the sale of a chattel, then it constitutes a sale, but if the work
and labor be bestowed in such a manner as that the result would not
be any thing which could properly be said to be the subject of sale,
the action is for work and labor." See Clay v. Yates, 1 Hurl. & N. 73.
The test here given has been adopted in substance in the latest decis-
ions of some of the State courts. Thus, it is held, in Prescott v. Locke,
51 N. H. 94 ; S. C, 12 Am, Rep. 55, that where the contract is for an
article coming under the general denomination of goods, wares, or
merchandise, the quantity required and the price being agreed upon,
it is a contract of sale within the statute, although the subject-matter,
at the time of making the contract, does not exist in goods, but is to
be converted into that state subsequently by the maker and vendor.
But if what is contemplated by the agreement is the peculiar skill,
labor, or care of the maker, then the contract is one for work and
labor, and is not within the statute. See, also, Pitkin v. Noyes, 48 N.
H. 294; S. C, 2 Am. Rep. 218; Edwards v. Gram.d Trunk R. Lt.
Co., 48 Me. 379 ; Finney v. Apgar, 2 Yroom (N. J.), 266 ; Eichel-
lerger v. McCauley, 5 Harr. & J. (Md.) 213.

The Massachusetts rule, as applicable to goods manufactured or mod-
ified after the bargain for them is made, mainly regards the point
whether the products can, at the time stipulated for delivery, be re-
garded as " goods, wares and merchandise," in the sense of being gen-
erally marketable commodities, made by the manufacturer ; in which
respect it agrees with the English rule. The test is not the non-exist-
ence of the commodity at the time of the bargain, but rather whether
the manufacturer produces the article in the general course of his busi-
ness, or as the result of a special order. In a recent case the result of the
decisions is stated to be " that a contract for the sale of articles then ex-
isting, or such as the vendor in the ordinary course of his business man-
ufactures or procures for the general market, whether on hand at the
time or not, is a contract for the sale of goods to which the statute ap-
plies. But, on the other hand, if the goods are to be manufactured es-
pecially for the purchaser, and upon his special order, and not for the
general market, the case is not within the statute." Goddard v. Bin-
ney, 115 Mass. 450; S. C, 15 Am. Rep. 112. Under this rule a con-

SALES. 593

tract to buy a certain number of boxes of candles at a fixed price
per pound, which the vendor said he would manufacture and deliver
in about thi-ee months, was held to be a contract of sale. Gardner
V. Joy^ 9 Mete. 177. On the other hand, in the case of Goddard
V. Binney, cited above, the contract with a carriage manufacturer was
that he should make a buggy for the person ordering it, that the color
of the lining should be drab, and the outside seat of cane, and have on
it the monogram and initials of the party for whom it was made ; and
this was held not to be a contract of sale within the statute. See, also,
Clark V. Nichols, 107 Mass. 547; Mixer v. Eowarth, 21 Pick. 205.

The ISTew York rule is still different. It is held in that State by a
long course of decisions, that an agreement for the sale of any com-
modity not in existence at the time, but which the vendor is to man-
ufacture or put in a condition to be delivered, such as flom- from wheat
not yet ground, or nails to be made from iron belonging to the manufac-
turer, is not a contract of sale. OrooJcshank v. Btorrell, 18 Johns. 58;
Seioall V. Fitch, 8 Cow. 215 ; Stejjhens v. Santee, 51 Barb. 532 ; Bates
V. Coster, 3 N. Y. Sup. Ct. (T. & C.) 580; S. C, 1 Hun, 400. Stress
is laid upon the word sale. There must be a sale at the time the con-
tract is made. The statute alludes to a sale of goods, assuming that the
articles are already in existence. Parsons v. Loucks, 48 N. Y. (3 Sick.)
17; S. C, 8 Am. Rep. 517. If, however, the thing contracted for is
then in existence, but something still remains to be done to finish t,
or put it in the condition required by the contract when it is to be
delivered, tlie contract will be deemed one of sale within the stat-
ute. Flint V. Carlitt, 6 Daly (K. Y.), 429 ; Cooke v. Millard, 65 K.
Y. (20 Sick.) 352; S. C, 22 Am. Rep. 619. See, also, Atwater v.
Hough, 29 Conn. 508. Thus, a contract to cut and deliver wood, then
in standing trees on the vendor's land, is held to be within the stat-
ute, notwithstanding the work and labor to be expended upon them.
Smith V. New York Central R. E. Co., 4 Abb. Ct. App. (K. Y.) 262 ;
S. C, 4 Keyes, 180. See Passaic Manuf. Co. v. Hoffman, 3 Daly (K
Y.), 495.

From an examination of the different views above given, and of the
cases cited, it will be seen that the decisions are conflicting, and no prin-
ciple has yet been discovered which can wholly reconcile them. It
is, therefore, often extremely difficult to distinguish between execu-
tory contracts for the sale of articles to be manufactured, and con-
tracts for the labor and skill of manufacturing. In general, this must
be ascertained from tlie language used by the parties, and the circimi-
stances of the transaction. See Lee v. Griffin, 1 B. & S. 272; Saw-
yer V. Ware, 36 Ala. 675. In the case last cited it is held that an agree-
VoL. v.— 75

594 SALES.

ment that a party shall have iron as fast as it is manufactured, until he
is repaid for advance in money and for certain rent, is a contract for
the sale of iron, and not for the work and labor bestowed in manufac-
turing it, and is within the statute. So, a contract for cider, to be ob-
tained bj the seller from farmers and refined before delivery, was held
to be within the statute. Seymour v, Davis, 2 Sandf. (K. T.) 239.
So, of a contract to make and deliver at a specified time one thou-
sand molasses shooks and heads. Robertson v. Yaughn, 5 id. 1. So,
of an agreement to deliver a quantity of planks for ship-building,
at a future time, and at a specified price. Waterman v. Meigs, 4
Cush. 497. But an agreement to procure and deliver at a certain
time and place one-half of a frame for a vessel, to be hewn and
fashioned according to certain moulds, was held not to be within the
statute. Abhott v. Gilchrist, 38 Me. 260. And where A agreed to
buy a certain quantity of hop roots from such persons as he could find
having them for sale, and deliver them to B for six dollars per bushel,
it was held that this might be considered a contract for work and labor
to be done and performed for B, and so not within the statute. Web-
ster V. Zielly, 52 Barb. 482. So, a parol agreement between the plain-
tiff and defendant, by which the former agreed to sell to the latter
a quantity of malt to be thereafter manufactured by the plaintiff
and delivered, fi'om time to time, as wanted, and by which the de-
fendant agreed to take such malt, and to pay a specified price there-
for, on the delivery of each pa,rcel, was held not to be within the
statute. Ferren v. O'^Hara, 62 Barb. 51Y. See also, Donovan v.
Willson, 26 id. 138 ; Clayton v. Andreivs, 4 Burr. 2101 ; Downs v.
Boss, 23 Wend. 273 ; Illght v. Bljdey, 19 Me. 139.

It has been a disputed point whether a contract concerning the sale
of choses in action, or incorporeal property, was a contract for the sale
of "goods, wares, and merchandise," within the meaning of the statute.
See Story on Sales, § 263. But it is now well settled in England, that
the statute does not apply to shares, stocks, documents of title, choses
in action, and other incorporeal rights and property {Humble v. Mitch-
ell, 11 Ad. & El. 205 ; Watson v. Spratley, 10 Exch. 222 ; Eeseltine
V. Siggers, 1 id. 856 ; Benj. on Sales [2d ed.], 89) ; and the same con-
struction of the statute has been pursued by some of the State courts in
this country. See Vawter v. Grlffi.n, 40 Ind. 593 ; WJiittemore v. Gihbs,
24 N. II. 484. But in Massachusetts, the words " goods, wares, and
merchandise," are so construed by the court as to emljrace incorporeal
property. Thus, in a leading case on the subject in that State, it is
said, there is nothing in the nature of stocks and shares in companies
whicli, in reason or sound policy, should exempt contracts in respect to

SALES. 595

them from those reasonable restrictions designed by the statute to pre-
vent frauds in the sale of other commodities. On the contrary, these
companies have become so numerous, so large an amount of property
of the community is now invested in them, and as the ordinary indicia
of property arising from delivery and possession cannot take place,
there seems to be peculiar reason for extending the provision of the stat-
ute to them. Shaw, C. J., in Tisdale v. Harris, 20 Pick. 9, 1-i. A
contract for the sale of shares of stock was accordingly held to be with-
in the statute. Id. See, also, Eastern R.R. Co. v. Benedict, 10 Gray, 212.
And in a more recent case the same principle was extended to promissory
notes. Baldwin v. Williams, 3 Mete. 365. See, also, North v. For-
est, 15 Conn. 400 ; Riggs v. Magruder, 2 Crauch (C. C), liS ; Colvin
Y.Williams, 3 Ilarr. & J. (Md.) 38; Hudson v. Weir, 29 Ala. 294;
Gooch V. Holmes, 41 Me. 523. In some of the States, as, for instance,
in Xew York, the statute expressly provides for " things in action."
See Allen v. Aguirre, 7 N. Y. (3 Seld.) 543 ; Hagar v. King, 38
Barb. 200. In Florida, the statute uses the words " personal property,"
and shares of stock in an incorporated company were held to be inclu-
ded. Southern Life Ins., etc., Co. v. Cole, 4 Fla. 359.

A contract to furnish a machine or a movable thing of any kind
and fix it to the freehold is not a contract for the sale of goods within
the statute. The consideration to be paid to the workman in such case
is not for a transfer of chattels, but for work and labor done and ma-
terials furnished in adding something to the land. Clark v. Buhner,
11 M. & W. 243 ; Trijyj) v. Arraitage, 4 id. 687.

Contracts for the sale of growing crops of grain, and other annual
productions raised by industry and the cultivation of the earth, are not
contracts for the sale of interests in land, but are to be classed with
contracts for the sale of goods, wares and merchandise, within the 17th
section of the statute. Evans v. Roberts, 5 B. (fe C. 836 ; Jones v.
Flint, 10 Ad. & El. 753 ; Screill v. Boxall, 1 Y. & J. 396. It is
otherwise, however, as it respects contracts for the sale of growing
trees, grass and other natural products of the earth, still unsevered and
annexed to the soil. Contracts of this class are regarded as involving
the sale of interests in land, and not a sale of goods or chattels. Id. ;
Crosby V. Wadsworth, 6 East, 602 ; Carrington v. Roots, 2 M. & W.
248 ; Rodioell v. Phillijys, 9 id. 501 ; Washborn v. Burrovjs, 1 Exch.
107; Kingsley v. Holbrook, 45 N. H. 313 ; Howe v. Batchelder, 49
id. 204 ; Huff v. McCauley, 53 Penn. St. 206 ; Harrell v. Miller, 35
Miss. 700 ; Gi^een v. Armstrong, 1 Denio, 550. But this doctrine is
applicable only when the agreement is, that the property is to be trans-
ferred before the thing is severed ; and an agreement to transfer the

596 SALES.

property in a natural product attached to the soil at the time of the
agreement, but which is to be severed from, the soil and converted into
goods before the property is to be transferred to the purchaser, is an
agreement for the sale of goods. Smith v. Surman, 9 B. & C. 561 ;
KUlmore v. Hoiolett, 48 N. Y. (3 Sick.) 569 ; Boyce v, Washhurn, 4
Hun (N. T.), 792 ; White v. loster, 102 Mass. 375 ; Byassee v. Reese,
4 Mete. (Ky.) 372; Sterling v. Baldwin, 42 Vt. 306; Edwards \.
GroMd Trunh E. R. Co., 54 Me. 105.

Hops growing and maturing on the vines, which are produced by
the annual cultivation of the owner, are held to be personal chattels
within the meaning of the statute of frauds, and, as such, subject to
sale like other personal property. Frank v. Harrington, 36 Barb.
415. And a sale of all the potatoes on a close of two acres, which the
buyer was to take away immediately, was held to be a sale of chattels ;
but the case was put on the ground that the potatoes were to be taken
away immediately, and to gain nothing by further growth in the soil.
Parker v. Staniland, 11 East, 362. In a Jater case it was however
held that a sale of potatoes not yet mature, and which were to be dug
and taken away by the purchasers when ripe, was one of goods and
chattels, governed by the 17th section. Sainshury v. Matthews, 4 M.
& "W. 343. An agreement to sell standing timber, which the seller
had commenced to cut down, at so much a foot, was held to be within
the 17th section, on the ground that it was not the intention to give
the buyer any property in the trees until they were severed from the
freehold. Smith v. Surman, 9 B. & C. 561. It is likewise held in a
recent case in New York, that a contract to cut trees standing upon
the vendor's land, into cord-wood, to be delivered at so much a cord,
is not a contract for the sale of an interest in land, but rather a con-
tract by the vendor to bestow work and labor upon his own material,
and deliver it in its improved condition. Killmore v. Howlett, 48 N.
Y. (3 Sick.) 569.

§ 4. Of the value of ten pounds, etc. The word " price " was
used in the original act of 29 Car. II, but Lord Tenterden's Act
(9 Geo. lY, c. 14, § 7), substituted the word " value " in re-affirming
and amending the 17th section. See a^te, Art. 1, § 1. The only effect
of the substitution apjoears to be, to give wider expression to the policy
upon which legislation against frauds and perjuries rests. See Ha/rman
V. Reeve, 18 C. B. 587. In this country, the word " price " is still
used in the statutes against frauds and perjuries in the different States.
In England, the standard has always been for tlie price or value of " £10,
and upwards ;" and a preference has been shown in the United States
for a similar standard, as computed in Federal money.

SALES. 597

It will not be presumed that the price or value reaches the statutory
sum, but one who claims the protection of the statute must show affirma-
tively that his case falls within it. Crookshank v. Burrell, 18 Johns.
68. It has however been held under the English statute, that although
at the time of the bargain it may be doubtful whether the thing sold
will be of the standard value, according to the terms of the contract,
yet, if in the result it turn out that the value actually exceeds the
standard, the statute applies. Watts v. Friend^ 10 B. & C. 446 ; Benj.
on Sales (2d ed.), 107. And see Bowman v. Conn, 8 Ind. 58. So, the
statute will apply although the price has been enhanced by the vendor's
being bound to deliver the thing sold, there being no separate charge
for the delivery. Astey v. Emery, 4 Maule & S. 262. And if the
sale be of a number of articles at the same time, neither of which is
of a price to bring it within the statute, but which in gross exceeds the
statutory limit, the contract is deemed to be entire, and to fall within the
statute. Hart v. 3£Uls, 15 M. & W. 85 ; Bailey v. Sweeting, 9 C. B.
(X. S.) 848 ; Gihnan v. Rill, 36 X. H. 318 ; Field v. Runk, 22 N.
J. 525 ; Allard v. Greasert, 61 N. Y. (16 Sick.) 1. The mere circmn-
stance of a separate price being fixed upon each article makes no such
difference as will take the case out of the operation of the statute
{Baldey v. Parker, 2 B. & C. 37) ; unless the sale was made at auction,
in which case it is held, that where the same person buys several suc-
cessive lots as they are offered, a distinct contract is created as to
each lot. Emmerson v. Heelis, 2 Taunt. 38. See, also, Roots v.
Lord Dornner, 4 B. & Ad. 77 ; Gouston v. Chapman, L. R., 2 Scotch
App. 250. But see Mills v. Hunt, 17 Wend. 333 ; S. C. affirmed, 20
id. 431. And where the plaintiff sold the furniture in his hotel and his
stable stock at the same auction, and all upon the same terms and con-
ditions, and the defendant purchased a large number of separate arti-
cles, upon as many separate bids, and at separate and distinct prices,
many of which were less than the statutory limit, this was regarded
as an entire contract for the whole of the property thus purchased by
the defendant at the aggregate price, and so within the statute. Jen-
ness V. Wendell, rA X. H. 63 ; S. C, 12 Am. Rep. 48.

Where an agreement is void in part by the statute of frauds, and
good for the residue, non-enforcement is the result as to the whole con-
tract. Harman v. Reeve, IS C. B. 587; Irvine v. Stone, 6 Cush,
508. Thus, a contract for the purchase of coals at Philadelphia, and
to pay for the freight of the same to Boston, if void by the statute of
frauds, as to the sale, is void also and cannot be enforced as to the
freight, although the latter part, if it stood alone, would not be within
the statute. Id. But the part which would be valid, if it stood alone,

598 SALES.

may be held valid, if it can be separated from the part which is void
Id. ; Wood V. Benson, 2 Cr. & Jerv. 94 ; Mayjield v. Wadsley, 3 B.
& C. 361 ; Cohhold v. Caston, 1 Biug. 399 ; S. C, 8 Moore, 456.

§ 5. What is a sufficient acceptance. The exception first mentioned,
in the original seventeenth section is, " that the buyer shall accept part
of the goods so sold, and actually receive the same ;" and this language,
in substance, is used in the American statutes. Acceptance and receip
by the buyer are both necessary to give validity to the contract. When
the seller gives to the buyer the actual control of the goods, and the
buyer accepts such control, he has actually received them ; and such a
receipt is often an evidence of acceptance, but it is not the same thing,
and will not take the sale out of the operation of the statute. To effect
this, there must be also some act or conduct upon the buyer's part,
manifesting his intention to accept the goods, absolutely and uncondi-
tionally, in full performance of the contract of sale. Smith v. Hudson,
6 B. & S. 436 ; Bill v. Bament, 9 M. & W. 36 ; Smith v. Surmam,,
9 B. & C. 561 ; Gorham v. Fisher, 30 Vt. 428 ; Belt v. Marriott, 9
Gill (Md.), 331 ; Gilman v. Hill, 36 N. H. 311 ; CaulUns v. Hellman,
47 N. Y. (2 Sick.) 449 ; S. C, 7 Am. Kep. 461 ; Stone v. Browning,
51 K. Y. (6 Sick.) 211 ; S. C, 44 How. 131 ; 13 Abb. (^. S.) 188. The
receipt by the buyer may be, and often is, for the express purpose of
seeing whether he will accept or not. Id.; CooTce v. Millard, 65 K.
Y. (20 Sick.) 352, 368 ; S. C, 22 Am. Kep. 619 ; Hewes v. Jordon, 39
Md. 472 ; S. C, 17 Am. Rep. 578 ; Maxwell v. Brown, 39 Me. 98 ;
Lucy V. Moujlet, 5 Hurl. & N. 233 ; Smith v. Hudson, 6 B. & S. 431.
To constitute an acceptance giving validity to the contract, it is requisite
that the purchaser shall have made the examination and pronounced it
satisfactory, or shall have dealt with the goods, or done some unequivocal
act evincing his intent to accept them unconditionally as his own. And
it is immaterial whether his refusal to take the goods be reasonable or not.
If he refuse the goods, assigning grounds false or frivolous, or assigning
no reasons at all, it is still clear that he does not accept the goods, and the
question is not whether he ought to accept, but whether he has accepted
them. Stone v. Browning, 68 N. Y. (23 Sick.) 598. Nor does the fact
that the goods are as represented by the seller, and that the contract
on his part has been fully performed, aifect the question of accept-
ance. Id.

The question of acceptance is ordinarily one of fact. It is a question
for tlic jury wliether, under all the circumstances, the acts which the
buyer d(je.s, or forbears to do, amount to an acceptance. Bushell v.
Wheeler, 15 Q. B. 442 ; Morton v. Tibhett, 15 id. 428. But where the
uncontroverted facts afford no ground for finding an acceptance, or

SALES. 599

where the evidence is such that the court would feel bound to set aside
a verdict so finding, it is the duty of the court to take the case from
the jury. Denny v. Williams^ 5 Allen, 1 ; Howard v. Borden^ 13 id.
299 ; Stone v. Browning, 68 JN. Y. (23 Sick.) 598. If the goods were
sold by sample, and the seller seeks to recover the price in an action for
goods sold and delivered, he must show not only a change of possession,
but a change with intent, on the buyer's part, to take possession thereof
as owner, and not merely for inspection. Remick v. Sandford, 120
Mass. 309.

The effect of the acceptance and actual receipt of jpai't of the goods,
however small, is to prove the contract of sale {Hinde v. Whitehouse,
7 East, 558 ; Gcmlt v. Brown, 48 K. H. 183 ; S. C, 2 Am. Eep. 210 ;
Atxoood V. Lucas, 53 Me. 508 ; Richardson v. Squires, 3T Vt. 640 ;
Danforth v. Walker, 40 id. 257) ; and it is held not to be inconsistent
with this, that the vendee should have the right, with respect to the
residue of the goods, when offered in fulfillment of the contract, to ob-
ject that they are not such in quantity and quality as the contract requires.
But in all cases where the goods bargained for have been accepted and
actually received by the vendee, he is thereby precluded, in the absence
of fraud, from objecting that they do not correspond with the contract.
Hewes v. Jordon, 39 Md. 472; S. C, 17 Am. Eep. 578. See, also,
Hunt V. Hecht, 8 Exch. 814 ; Coomhs v. Bristol, etc.. Railway Co., 3
Hm-1. & N. 510 ; Smith v. Hudson, 6 B. & S. 431 ; Benj. on Sales
(2d ed.), 117 et seq. But see Morton v. Tihhett, 15 Q. B. 428.

The act of acceptance is not confined to any particular order of time
in reference to the actual receipt of the goods. It may precede, as well
as be contemporaneous with, or subsequent to, their actual receipt.
Cusach V. Robinson, 1 B. & S. 299. And see McKnight v. Dunlojp,
5 N. T. (1 Seld.) 537 ; Marsh v. Hyde, 3 Gray, 331 ; Bush v. Holmes,
53 Me. 417 ; Cross v. aDonnell, 44 N. Y. (5 Hand) 661 ; S. C, 4
Am. Rep. 721. But so long as the seller preserves his control over the
goods, so as to retain his lien, he thereby prevents the vendee from
accepting and receiving them as his own within the meaning of the
statute. Baldey v. Parker, 2B. & C. 37 ; SaffordY. McDonough, 120
Mass. 290.

A delivery to, and acceptance by, one of several joint purchasers,
renders the contract valid as to all. Smith v. Milliken, 7 Lans. (N. T.)
336. So, the acceptance and receipt which the statute requires may
be made by an agent of the buyer empowered for that purpose / but
an agent with authority from the buyer to receive is not necessarily the
buyer's authorized agent to accept. Thus, it is well settled that a com-
mon carrier, whether selected by the seller or by the buyer, to whom

600 SALES.

the goods are intrusted, without express instructions to do any thing but
to cany and deliver them to the buyer, is no more than an agent to
carry and dehver the goods, and has no implied authority to do the acts
required to constitute an acceptance and receipt on the part of the
buyer, and to take the case out of the statute. Smith v. Hudson, 6 B.
& S. 431 ; Jones v. Mechanics' Bcmk, 29 Md. 287 ; Grimes v. Van
Vechten, 20 Mich. 410 ; Rodgers v. Phillirps, 40 N. Y. (1 Hand) 519 ;
Johnson v. Cattle, 105 Mass. 447 ; S. C, 7 Am. Kep. 545. And the
same may be said of wharfingers and others similarly employed for mere
purposes of custody. Hart v. Bush, El. Bl. & El. 494 ; Quintard v.
Bacon, 99 Mass. 185. But after acceptance of the goods, delivery by
the vendor to a carrier designated by the vendee will answer the require-
ments of the statute. The carrier designated by the vendee can bind
him, as his agent, by receiving. Cross v. C Donnell, 44 IT. Y. (5 Hand)
661 ; S. S., 4 Am. Kep. 721. See, also, Dodsley v. Yarley, 12 Ad. &
El. 632; Tillman^. Barnard, 7 Gray, 554; Ex parte Safford, 2 Low.
Dec. 563 ; Spencer v. Hale, 30 Vt. 314.

Acceptance, to satisfy the statute, should be distinct and unequivocal.
The vendee must act so as to indicate that he receives and accepts the
goods ; and the mere words of a contract for the sale of chattels do not
constitute an acceptance within the statute. HaTn v. Yam, Or den, 4
Hun (]Sr. Y.), 709. If the buyer exercises some decisive act of owner-
ship over the goods, as by pledging them, or selling them to another
person, it affords very strong proof of the intention to accept. Chaplin
V, Rogers, 1 East, 192 ; Beaumont v. Brengeri, 5 C. B. 301. So, a
long and unreasonable delay in returning the goods, or in giving notice
of their rejection, would afford stringent proof of acceptance. Bushell
V. Wheeler, 15 Q. B. 442 ; Coleman v. Gihson, 1 Moo. & K. 168 ;
Meredith v. Meigh, 2 El. & Bl. 364 ; Treadwell v. Reynolds, 39 Conn.
31 ; Gaff v. Homeyer, 59 Mo. 345. And it is said, " if the vendee
does any act to the goods, of wrong, if he is not owner of the goods,
and of right, if he is owner of the goods, the doing of that act is evi-
dence that he has accepted them." Ekle, J., in Parker v. Wallis, 5
El. & Bl. 21.

When goods are marked with the name of the purchaser, by his con-
Bent, it is held to constitute an acceptance of the goods, provided all
the terms of the contract have been agreed on. See Proctor v. Jones,
2 Carr. & P. 532 ; Bill v. Bament, 9 M. & W. 36 ; Benj. on Sales (2d
ed.), 128. Thus, where sheep were selected and separated from the rest
of a flock, and the buyer's mark was put upon them, and then, after such
separation, it was agreed to let them run with the seller's sheep for a
few days, it was held that the jury were warranted in finding that there

SALES. 601

was a sufficient delivery and acceptance of the sheep, to take the sale
out of the statute. Eappleye v. Adee, 65 Barb. 589 ; S. C, 1 N. Y.
Sup. Ct. (T. & C.) 126. See, also, Vincent v. Germorul, 11 Johns. 283.
And when goods had been weighed in the presence of the vendee,
and placed bj themselves in the vendor's warehouse, marked with the
vendee's name, and to be delivered when sent for, it was held to be
such an acceptance as would take the sale out of the statute. Ex parte
Safford, 2 Low. Dec. 563 ; S. C, 15 Bankr. Reg. 564.

Ordinarily, in the absence of any fraud or mistake, an acceptance by
the buyer of a bill of lading of the goods is equivalent to an acceptance
of the property mentioned in it. Currie v. Anderson, 2 El. & El. 592 ;
Rodgers v. PUllips, 40 1^. T. (1 Hand) 519. But the fact that a bill
of lading was left with a clerk at the buyer's office in his absence,
unaccompanied by any proof that the clerk was authorized to receive
it, or the goods therein designated, was held not to constitute an " accept-
ance " of the goods, sufficient to take the case out of the statute. Quin-
tard V. Bacon, 99 Mass. 185.

A seizure of goods by force, or under color of legal process, is not
a receipt or acceptance of them within the statute of frauds. Wash-
ington Ice Co. V. Wehster, 62 Me. 341 ; S. C, 16 Am. Rep. 462.

§ 6. Earnest and part payment. The second exception mentioned
in the 17th section has reference to the giving of something in earnest,
or in part payment to bind the contract. The idea of " earnest," in
connection with a contract, was taken from the civil law, which required
the transfer of something, as, for instance, a ring, as a sign, proof, or
symbol, that the bargain was concluded. But as used in the statute of
frauds, " earnest " is regarded as a part payment of the price, and not
a fictitious ceremony. See 2 Bl. Com. 447 ; Lang fort v. Tiler, 1
Salk. 113 ; Walker v. JVussey, 16 M. & W. 302. And where the buyer
produced a shilling from his pocket, and drew it across the vendor's
hand, and then returned it to his ovni pocket, it was held that this act
was not sufficient to satisfy the requirement of the statute. Blenhimr
sop V. Clayton, 7 Taunt. 597. And see Benj. on Sales (2d ed.), 143,
144. So, it is held that a deposit of money with a third person by the
parties to an oral sale, to be by him paid to either of them, as a forfeit-
ure, if the other should neglect to fulfill his part of the contract, is not
a giving in earnest or part-payment, such as the statute requires. Howe
V. Hayvmrd, 108 Mass. 54 ; S. C, 11 Am. Rep. 306 ; Noakes \. Morey,
30 Ind. 103.

The English statute of frauds does not require the payment of a part
of the purchase-money, in order to render a contract for the sale of
goods valid, to be made at the time of making the contract. If the
Vol. Y.— 76

602 SALES

payment be subsequently made by the one party, and accepted by tlie
other, as the consummation of the prior agreement, it brings the case
within the spirit and intent of the statute. See Wallcer v. JV^ussey, 16
M. ife W. 302 ; ThompsoiiY. Alger, 12 Mete. 428. But in New York,
where the statute provides that the contract " shall be void, unless the
buyer shall at the time pay some part of the purchase-money," it is
held that a payment made at a time subsequent to that of the making
of the contract, does not, of itself, take the contract out of the opera-
tion of the statute. To have that effect the subsequent payment must
be made and received for the express purpose of thus complying with
the statute and validating the contract ; or where payment is made, the
parties must re-affirm or restate the terms of the contract ; in which cases
the payment is made "at the time" of making the contract within the
meaning of the statute. Hunter v. Wetsell, 57 N. Y. (12 Sick.) 375 ;
S. C, 15 Am. Kep. 508.

A tender of part payment is not sufficient ; it must also be accepted
by the vendor. EicTcs v. Cleveland, 48 K. Y. (3 Sick.) 84 ; Edgerton
V. Hodge, 41 Yt. 676. But the vendor's act in receiving payment
may be performed through an agent. And the authority to receive the
payment may be shown by any act, on the part of the vendor, recogniz-
ing the agency ; and a subsequent ratification of the act of an assumed
agent in receiving the payment is equivalent to an original authority to
receive it. Hawley v. Keeler, 62 Barb. 231 ; S. C. affirmed, 53 N. Y.
(8 Sick.) 114.

The giving of the buyer's own promissory note for a part of the price
is held not to be a payment of a part of the purchase-money, within
the statute. Combs v. Bateman, 10 Barb. 573 ; Ireland v, Johnson^
28 How. (N. Y.) 463 ; S. C, 18 Abb. Pr. 392. But the rule seems to
be otherwise, where the obligation of a third person is agreed to be taken
in part payment. Id. And a promise to pay to the seller's creditor,
accepted by the latter, who thereupon discharges the seller, is held to
be a pai-t payment of the price within the statute. Cotterill v, Stevens,
10 Wis. 422.

Earnest or part payment does not necessarily involve the transfer of
a legal title from the seller to the buyer. Its effect is only to bind
the bargain, and not to change the title. See Bach v. Owen, 5 Term
R. 409 ; Woodhurn v. Cogdal 39 Mo. 222 ; Groat v. Oile, 51 N. Y.
(6 Sick.) 431 ; NesUt v. Burry, 25 Penn. St. 208. It follows that
the ])uyer has the right to take the goods, only upon condition that he
pays tlie agreed price for them. And the seller can only claim the pur-
chase-money, upon tendering the thing sold. See Hinde v. White'

SALES. 603

house, 7 East, 5T1 ; ^eil v. Cheves, 1 Bailey (S. C), 537 ; Langfort v.
Tiler, 1 Salk. 113.

§ Y. What is a sufficient memorandum. The third and most
important exception mentioned in the 17th section is " that some note
or memorandum in Avriting of the said bargain be made and signed by
the parties to be charged by such contract, or their agents thereunto law-
fully authorized." The existence of tlie note or memorandiun pre-
supposes an antecedent contract by parol, of which the writing is a note
or memorandnm. Sievewright v. Archibald, 17 Q. B. 103; Partem
V. Crofts, 16 C. B. (N. S.) 11 ; Marsh v. Hyde, 3 Gray, 333 ; Justice
Y. Lang, 42 N. Y. (3 Hand) 493 ; S. C, 1 Am. Eep. 576. The contract
may be made at one time, and the note or memorandum of it at a sub-
sequent time. Lerned v. Wannemacher, 9 Allen, 412. The form of
the memorandnm is not material. If it shall contain a distinct and
clear statement of the terms of the agreement, and of the names of the
parties, the statute is understood to be sufficiently complied with. Bob-
ertsY. Tucker, 3 Exch. 632 ; Gibson v. Holland, L. E., 1 C. P. 1 ; Water-
man V. Meigs, 4 Cush. 497 ; Bailey v. Ogden, 3 Johns. 399. There
are numerous instances of written compliance by letter. See Wilkin^
son V. Evans, L. E.., 1 C. P. 407 ; Leather Cloth Co. v. Hieronimus, L.
E., 10 Q. B. 140 ; S. C, 12 Eng. Eep. 211. And proof of sending
a telegram, and a letter of acceptance by mail besides, is held to be a
sufficient compliance with the statute. Trevor v. Wood, 36 K. T.
(9 Tiff.) 307. So, the buyer's written acknowledgment of a seller's
invoice or bill of parcels may, together with such instrument, consti-
tute a suitable memorandum, if given pursuant to a bargain. Buxton
V. Bust, L. E., 7 Exch. 279 ; S. C, 2 Eng. E. 675 ; Batturs v. Sellers,
5 Harr. & J. (Md.) 117 ; HawUns v. Chace, 19 Pick. 502. And a
written proposal, containing the names of the contracting parties and
all the terms of the proposed agreement, signed by the proponent or by
some other person thereunto by him lawfully authorized, when accepted
and assented to by the party to whom the same is made, is a sufficient
memorandum ; and the delivery of sach instrument as a proposal, and
the acceptance thereof, and assent thereto by the party to whom it is
made, may be proved by parol testimony. Eeuss v. PicTcsley, L. E.,
1 Exch. 342 ; Sanborn v. Flagler, 9 Allen, 474 ; Himrod Furnace
Co. V. Cleveland, etc., B. B. Co., 22 Ohio St. 451.

The statute does not require that the whole of the terms of the con-
tract should be agreed to at one time, nor that they should be written
down at one time nor on one piece of paper. It is fully settled that sev-
eral writings, thougli executed at different times, may be construed to-
gether, for the purpose of ascertaining the terms of the contract, and

604 SALES.

for the purpose of taking an action founded thereon out of the operation
of the statute. Lerned v. Wannemacher, 9 Allen, 412 ; Tollman v.
FranUin, 14 N. Y. (4 Kern.) 584; Peek v. North Staffordshire R. R.
Co., 10 H. L. Cas. 472 ; Caton v. Caton, L. K., 2 H. L. Cas. 127. In such
cases, however, the mutual relation of the several writings to the same
transaction must appear in the writings themselves, parol evidence be-
ing inadmissible for the purpose of showing their connection. Ide v.
Stanton, 15 Yt. 685 ; JBoardman v. Spooner, 13 Allen, 358 ; Brettel v.
Williams, 4 Exch. 023 ; Johnson v. Bxick, 35 N. J. Law, 344 ; S. C, 10
Am. Hep. 243. If one only of such papers be signed by the party to be
cliai'ged in the action, the rule seems to be that special reference must be
made therein to those papers that are not so signed ; but if the several
papers relied on be signed by such party, it is sufficient if their connection
and relation to the same transaction can be ascertained and determined
by inspection and comparison. Thayer v. Luce, 22 Ohio St. 62. See
Ridywaij v. 'Wha7'ton, 6 H. L. Cas. 238 ; Passaic Manuf. Co. v. Hoff-
man, 3 Daly (N. Y.), 495. An order for goods, written and signed
by the vendor in a book of the vendee, omitting the vendee's name,
may be connected with a letter from the vendor to his agent, recogniz-
ing the contract, and stating the name of the vendee. Allen v. Renr
net, 3 Taunt. 169 ; Johnson v. Dodgson, 2 M. & W. 653. So, a bill
of parcels, in which the name of the vendor is printed, may be con-
nected with and explained by a subsequent letter written by the vendor
to the buyer, relative to the same transactions. Saunderson v. Jack-
son, 2 Bos. & P. 238.

In a recent English case it is held that a memorandum or letter
which contains all the necessary elements of the contract is sufficient to
charge the signer, although it be accompanied with an express repudi-
ation of the contract by him. Bailey v. Sweeting, 9 C. B. (N. S.) 843.
See, also, Buxton v. Rust, L. B., 7 Exch. 1 ; S. C, 2 Eng. K. 675 ;
Wilkinson v. Evans, L. B., 1 C. P. 407.

We have seen that the form of the writing is not regarded. If it
expresses a contract, no matter how informally, the statute is satisfied.
On the other hand, no matter how formal the writing may be, if it do
not contain within itself a contract, it fails to satisfy the statute. It must
show with sufficient certainty who are the contracting parties, and which
is the seller. Chavqjion v. Plmmner, 1 New B. 252 ; S, C, 5 Esp. 240 ;
Sanborn \. Flagler, 9 Allen, 476 ; Calkins v. Falk, 1 Abb. Ct. App.
291 ; S. C, 38 How. 62 ; Harvey v. Stevens, 43 Yt. 653. If a specific
price be agreed upon by the parties, it should likewise be stated in the
memorandum. Smith v. Arnold, 5 Mas. (C. C.) 414 ; Soles v. Jlick-
mcm, 20 Penn. St. 180 ; Adams v. McMillan, 7 Port. (Ala.) 73. And

SALES. 605

this is held to be so, as well where a reasonahle price is agreed upon as
where any other is ; and if the price is left to be arranged by parol,
the memorandum will be incomplete. James v. Muir, 33 Mich. 223.
But see Havjkins v. Chace, 19 Pick. 502 ; Goodman v. Griffiths, 1
Hurl. & N. 574 ; Story on Sales, § 270. As it respects the other terms
of the contract, it is necessary that they should so appear by the writ-
ten papers, or memorandum, as to enable the court to understand what
they actually were, in order to satisfy the statute, substance, and not
form, being regarded in all such cases. See Pitts v. Beckett, 13 M. &
"W. 743 ; O'Donnell v. Leeman, 43 Me. 158 ; Buck v. Pickwell, 27
Yi. 157. The purpose of the statute is answered if the names of the
parties and the terms of the contract of sale are authenticated by writ-
ten evidence, and do not rest in parol proof. Id, Thus, an entry of a
sale by a broker in his books in the regular course of his business, stat-
ing the date, the full names of both parties, connected by "to," a de-
scription of the goods sold, and the terms of the bargain, although not
subscribed by any one, was held to be a sufficient memorandum in
writing within the statute. Coddington v. Goddard, 16 Gray, 436.

§ 8. What is not a sufflcient memorandum. A bill of particu-
lars accompanying goods sold, such as is generally furnished by
vendors, is not conclusive as to the terms on which the goods were
sold. It is presumptive evidence of a sale, but does not preclude the
vendor from showing the actual facts. Sutton v. Croshy, 54 Barb. 80.
And it is held that an ordinary bill of the parcels, receipted by the
seller, is not such a memorandum of the contract of sale as will bar
the buyer from proving by parol evidence a warranty of their quality.
Atwater v. Clancy, 107 Mass. 369. See, also, Morehead v. Murray y
31 Ind. 418. An omission from the memorandum of an express war-
ranty of quality by the seller was held to invalidate it. Peltier v.
Collins, 3 Wend. 459.

Where, upon making a contract of sale and purchase, a broker
brings the parties together, merely acting for that purpose, after which
the parties negotiate with each other directly and the broker makes
an entry in his books, it is held that such entry will bind neither party.
Nor will it prevent either party from giving parol evidence of the
contract. Aqxdrre v. Allen, 10 Barb. 74 ; S. C. affirmed, 7 N". Y. (3
Seld.) 543 ; Lawrence v. Gallagher, 10 Jones & Sp. (j^. Y.) 309.

A letter admitting the purchase of goods by the writer from the
person to whom it is written, but without expressing any considera-
tion or stating the terms of the purchase, is not a sufficient note or
memorandum in writing to take the case out of the operation of the
statute. Newbery v. Wall, 65 N. Y. (20 Sick.) 484. See, also, Oak-

606 SALES.

man v. Rogers, 120 Mass. 214. And wliere a sale was made at pub-
lic auction, upon a credit, and a note was to be given with security,
wai\'ing valuation and appraisement laws, a memorandum of the sale
made by the clerk thereof, which did not state these facts, was ad-
judged insufficient to avoid the effect of the statute. Worris v. Blair ^
39 Tnd. 90 ; S. C, 10 Am. Rep. 135. And, as a general rule, where
particular conditions are affixed to a sale, a memorandum of the sale,
which does not set forth or refer to such conditions, will be deemed
insufficient under the statute. Hinde v. Whitehouse, 7 East, 558 ;
G'Donnell v. Leeman, 43 Me. 158 ; Story on Sales, § 2Y1. And if
terms of credit have been agreed on, or a time for performance fixed
by the bargain, the memorandum ^vill be insufficient if these parts
of the bargain be omitted. Davis v. 8Iiields, 26 Wend. 341 ; EJfe
V. Gadsden, 2 Eich. (S. C.) 373 ; Salmon Falls Manuf. Qo. v. God-
dard, 14 How. (U. S.) 446.

§ 9. Signature Iby the party. Although, as seen above, the names
of both buyer and seller must distinctly appear in the memorandum,
yet, the signature of both parties is not necessary. It is well settled
that the only signature required is that of the party against whom the
contract is to be enforced {Smith v. JVeale, 2 C. B. [N. S.] 67 ; Reuss
V. Picksley, L. R., 1 Exch. 342 ; Allen v. Bennet, 3 Taunt. 169 ;
Nichols V. Johnson, 10 Conn. 192; Weightman v. Caldwell, 4 "Wheat.
85; Justice v. Lang, 42 N. Y. (3 Hand) 493; S. C, 1 Am. Rep.
576) ; the effect of which is to leave the party who has not signed; free
to enforce the contract or not, as he may elect. Id. ; Fenly v. Stewart,
5 Sandf. (N. Y.) 101, 105 ; Old Colony B. R. Co. y. Evans, 6 Gray,
25. Nor is the signature required by the statute confined to the actual
subscription of his name by the party to be charged. A mark made
by a party as his signature is sufficient, if so intended. Balier. v.
Dening, 8 Ad. & El. 94 ; Harrison v. EUin, 3 Q. B. 117. And
the signature of a party was held to be sufficient, where, being unable
to M'rite, he held the top of a pen while another person wrote his signa-
ture. JJelshaw v. Langley, 11 L. J, Cli. 17. So, it is immaterial
whether the signature ajjpear at the top or the bottom or in the body
of the memorandum, provided it be so distinctly set forth as to avoid
all uncertainty. Johnson v. Dodgson, 2 M. & W. 653 ; Clason v.
Bailey, 14 Johns. 484; Durrell v. Evans, 1 Hurl. & C, 188.; Harvey^
V. Stevens, 43 Yt. 653 ; Penniman v. Hartshorn, 13 Mass. 87. Sig-
nature by initials is sufficient {Caton v. Caton, L. R., 2 H. L. 127;
Sanhorn v. Flagler, 9 Allen, 478) ; and the party may use a lefid
pencil instead of ink. Clason \. Bailey, 14 Johns. 484 ; Geary v.
Physic, 5 B. & C. 234. There may likewise be a signature by priut^

SALES. 60T

ing or stamping, so as to satisfy the requirement of the statute.
Schiuider v. Xorris, 2 Maule & S. 2S6. Thus, it is held that a bill
of parcels, in which the name of the vendor is printed and that of the
vendee is written by the vendor, is a sufficient memorandum of the con-
tract within the statute to charge the vendor. Id. And see Salmon
Falls Mcmuf. Co. v. Goddard, 14 How. (U. S.) 456.

There must, however, be a signature, or a mark intended as such,
wherever the place of its insertion ; and a mere personal description
of the signer, though written by hunself at the bottom of the paper,
is insufficient. Thus, a letter by a mother to a son, concluding " your
affectionate mother," with a full direction containing the son's name
and address, was held not to be a sufficient signature by the mother.
Selhy V. Selhy, 3 Mer. 2; Benj. on Sales (2d ed.), 189. So, if a signa-
ture be found in the instrument incidentally only, or having relation
and reference only to a, portion of the instrument, it cannot have that
legal effect and force which it must have in order to comply with the
statute, and to give authenticity to the whole of the memorandum.
The signature must authenticate every part of the instrument ; that is,
it must be so pkced as to show that it was intended to relate and refer
to, and that in fact it does relate and refer to every part of the instru-
ment. Cat07i V. Caton, L. E., 2 H. L. 127.

§ 10. Signature by agent. The memorandum may be signed by
any " agent, thereunto la\vf ully authorized," and all that is required to
confer authority upon an agent to make a sufficient signature is, that
he should be recognized by the parties, or party, for whom he acts, as
their or his agent. See Snyder v. Neefus, 53 Barb. 63 ; Johnson v.
Dodge, 17 111. 433 ; Fitzmaurice v. Bayley, 6 El. & Bl. 868 ; Story on
Sales, § 267. Nor need the authority have been previously conferred,
if the agent's act be subsequently ratified. Id. ; Maclean v. Dunn^
4 Bing. 722 ; Newton v. Bronson, 13 I^. Y. (3 Kern.) 587. In short,
the law of agency controls this branch of the subject. See Yol.
1, tit. Agency.

An auctioneer is considered as the agent of both parties at a public
sale for the purpose of signing, and an entry by him in his book will
bind the parties. Durrell v. Evans, 1 Hurl. & C. 174 ; White v. Crew,
16 Ga. 416 ; Brent v. Green, 6 Leigh (Ya.), 16. But the entry must
be made at the very time of sale. Craig v. Godfroy, 1 Cal. 415 ;
Morton V. McCanty, 53 Me. 394. The auctioneer's clerk who is pres-
ent, and takes the terms of the sale from the dictation of the auctioneer,
is a sufficient agent. Bird v. Boidter, 4 B. & Ad. 443 ; Ha)'t v.
Woods, 7 Blackf. (Ind.) 568. But an entry made by a person who
was the clerk of the plaintiff at an execution sale, but was not the clerk

608 SALES.

of tlie auctioneer, will not satisfy the requisitions of the statute.
Ijams V. Roffma/n, 1 Md. 423. But see Frost v. Hill, 3 Wend. 386.

Brokers, as a general rule, are agents for both parties, and their sig-
nature to the memorandum or note of the agreement is binding on both
principals, provided the memorandvim be otherwise sufficient under the
statute. Parton v. Crofts, 16 C. B. (N. S.) 11 ; Baines v. Ewing, L.
K., 1 Exch. 320 ; Benj. on Sales (2d ed.), 203. And see Butler v.
Thomson, 92 U. S. (2 Otto) 412.

The signature of a clerk of a telegraph company to a message was
held to be sufficient where the origina instructions had been signed
by the party. Godwin v. Francis, L. E.., 5 C. P. 295. And see
Trevor v. Wood, 36 N. Y. (9 Tiff.) 307.

But it is necessary that the agent of the party to be charged be some
third person, and not the other contracting party {Sharman v. Brandt,
L. E,., 6 Q. B. 720); and he must sign in the capacity of agent. If
the signature be not that of the agent, as such, but only in the capacity
of a witness to the writing, it is not enough* Goshell v. Archer, 2
Ad. & El. 500 ; Benj. on Sales (2d ed.), 203. And a memorandum
made by the agent of both parties and signed by him in his own name,
in the absence of the parties, not by their agreement, but at his own
instance and for liis own use and convenience, was held to be insuf-
ficient to take the case out of the statute. Noakes v. Morey, 30 Ind.
103.

AETICLE III.

REMEDIES OF THE PARTIES.

Section 1. In general. The remedies which either party has against
the other for breach of the contract of sale will be briefly considered in
the following sections, treating first of the seller's remedies. These
may be of two kinds, first, a remedy by action against the buyer ; second,
a remedy by proceedings against tlie goods. As it respects tlie first
(reniody by action), a distinction is made between cases where the title
has not passed, and where such transfer has fully taken place.

§ 2. Action l)y seller against buyer, where title has not passed.
Where the seller is ready and willing to perform, and offers to do so,
but the property in the goods which are the subject of the contract stiU
remains in him, the breach by the buyer to accept and pay can only
affect the seller by way of damages. His only action is one against
the buyer to recover damages for non-acceptance ; and the rule of dam-
ages in such case would be the actual injury sustained, which is ordi-

SALES. 609

narily the difference between the value of the property at the time and
place of breach, and the price agreed on. This rule is one of constant
application in the courts of Great Britain and the United States. Barrovj
V. Arnmid, 8 Q. B. 604 ; Boswell v. Kilhorn, 15 Moore's P. C. C. 309 ;
Eobbs V. London, etc., R. R.Co., L. R., 10 Q. B. Ill; S. C, 11 Eng. R.
181 ; Allen v. Jarvis, 20 Conn. 38 ; Haines y. Tucker, 50 N. H. 307 ;
McNaught v. Dodson, 49 111. 446 ; Chapman v. Ingram, 30 Wis. 290 ;
Carnj) v. Hamlin, 55 Ga. 259. And see Yol. 2, tit. Damages. And
although the vendor was not the actual owner of all the goods tendered
in compliance with the contract, yet if he was in a position to deliver
them and pass a perfect title, he will, as between the parties, be re-
garded as the owner, and the refusal of the buyer to receive them will
render him liable for the difference between the contract and the mar-
ket price of the whole. Bell v. Offutt, 10 Bush (Ky.), 632. If the
market value turns out to be the same as the price agreed on, the seller
is entitled only to nominal damages for the breach. But the reasona-
ble costs and charges incidental to a resale in the market should always
be re-imbursed as part of the seller's damages. Chesterman v. Lamb,
4 mv. & M. 195 ; S. C, 2 Ad. & El. 129 ; Story on Sales, § 436.

A distinction is made between ordinary goods, wares and merchandise,
and paintings, statuaiy, railroad shares, etc., as to the application of the
rule of damages, where the buyer refuses to receive and pay for the article.
As it regards the latter articles, it is held that the contract price, and
not its difference from the market price, at the time of the refusal, is
recoverable. See Allen v. Jarvis, 20 Conn. 38 ; Rand v. White Moun-
tains R. R., 40 N. H. 79 ; Ballentine v. Robinson, 46 Penn. St. 177.
Thus, where an artist prepares a statue or a picture of a particular per-
son, to orde/, or a mechanic makes a specific article in his line, to order,
and after a particular measure, pattern or style, or for a particular use
or purpose, and has fuUy performed his part of the contract and ten-
dered or offered to deliver the article thus manufactured according to
contract, and the vendee refuses to receive and pay for the same, he may
recover as damages in an action against the vendee for breach of the con-
tract, the full contract pilce of the manufactured article. Gordon v.
Norris, 49 N. H. 376. But in such case the vendor may, if he choose,
after notice to the vendee, sell the property at auction and recover of the
vendee the difference between the contract price and the price for which
the goods were sold. Id. See, also, Chicago v. Greer, 9 Wall, (U. S.) 726.
As a general rule, if one is prevented from completing a contract to
supply goods to order, he should be allowed such damages as will place
him in the same position as if he had been permitted to complete the
contract. Thus, where there is an executory contract for the man-
VoL. Y. — 77

610 SALES.

ufactiire and supply of goods from time to time, to be paid for
after delivery, if the buyer, having accepted and paid for a portion of
the goods contracted for, gives notice to the seller not to manufacture
any more, and that he will not accept or pay for them, the seller hav-
ing been desirous and able to complete the contract, he may, without
manufacturing and tendering the rest of the goods, maintain an action
against the buyer for the breach of contract, and the rule as to damages
just stated will be applied. Govt v. Ainbergate, etc., Railway Co., 17
Q. B. 127. And see Frost v. Knight, L. K., 5 Exch. 322; 7 id. Ill ;
1 Eng. R. 218 ; Danforth v. Walker, 40 Yt. 257 ; Clement, etc., Manuf.
Co. V. Meserole, 107 Mass. 362 ; Morgan v. McEee, 77 Penn. St. 228.

In New York, the rule as to the vendor's privileges in case of the
vendee's non-acceptance is that upon the refusal of the vendee to ac-
cept and pay the price, the vendor, upon proper notice, may sell the
property and recover the difference, or he may sue for the difference
between the contract and actual price, in which case he elects to retain
the j)roperty as his own, or he may recover the contract price. Dustan
V. Mcjhidreio, M ¥. Y. (5 Hand) 72; West/all v. Peacock, 63 Barb.
209. See, also, Bell v. Ofutf, 10 Bush (Ky.), 632. If he elects to
pursue the last-mentioned remedy, he holds the property as trustee for
the vendee, and is bound to deliver it, whenever demanded, upon re-
ceiving payment of the price. Hayden v. Demets, 53 N. Y. (8 Sick.)
426.

In an action by the vendor upon a contract for the sale and delivery
of goods, where only a portion of the goods has been delivered and
part payment has been made, and the vendee has refused, on a tender
thereof, to accept and receive the residue, if it appears that the undeliv-
ered portion exceeds in value the unpaid balance of the purchase-price,
only nominal damages can be recovered. The seller should not be
allowed to gain by the buyer's default. Wilso7i v. Wager, 26 Mich.
452.

"When property sold is agreed to be delivered between certain desig-
nated dates, it is optional with the buyer to designate on which of the
days he will receive it, and his failure to do so fixes the last day as
that which he may be required to perform the contract. Sousley
V. Burns, 10 Bush (Ky.), 87.

§ 3. Action wliere title has passed. Where, by the contract of
sale, the property in the goods has passed to the buyer, and the goods
have reached his actual possession, if he then fail to pay, the vendor's
8ole remedy is by personal action, the damages for the breach being the
price promised, to which may be fairly added interest and the costs of
suit. Martindale v. Smith, 1 Q. B. 395 ; Hoadley v. McLaine, 10

SALES. 611

Bing. 482 ; S. C, 4 Moore & Scott, 340 ; Story on Sales, § 441. And
see Yol. 3, tit. Goods Sold and Delivered.

Wliere the purchaser of goods, with full knowledge, or with full
opportunity for examination and knowledge of their defects, which are
patent, and of the fact that the place of delivery is not that required
by the contract, takes j)06se8sion without notifying the vendor, at the
time of receiving them, or witliin a reasonable time thereafter, that
they are not accepted as fulfilling the contract, he cannot recoup dam-
ages for such defects or failure, in an action for the contract price.
Locke V. Williamson, 40 Wis. 377.

And where the purchaser retained the goods for nearly two months,
without giving notice of his rejection of them, as not coming up to the
description embraced in his order, his appropriation of a part, by a sale
thereof, was held to be an appropriation of the whole, so far as to sub-
ject him to pay for them at their real value, not exceeding the contract
price. Watkins v. Paine, 57 Ga. 50.

And a purchaser of personal property, who takes and retains possession
thereof, and consumes it, cannot defend an action for the price, on the
ground that he had afterward been obhged to pay for the property
again, to a third person who had a paramount title. Krmmhhaar v.
Birch, 83Penn. St. 426. And see Trustees of MillGreek Township v.
Brighton Stockyards Co., 27 Ohio St. 435.

§ 4, Seller's remedies agaiust the goods. Where the property in
goods has passed by a sale, the right of possession also passes, and if
there has been a delivery of the goods into the actual possession of the
buyer, all right on them is gone, and, as seen in the preceding section,
the unpaid vendor's only remedy is an action for the price. But if the
goods are not delivered into the actual i:>ossession of the buyer, the
unpaid vendor has his remedies against the goods ; namely, by the
exercise of his right of stoppage in tra/nsitu, of re-sale, and of lien.
These remedies "will be considered in the three sections immediately
following.

§ 5. Stoppage in transitu. The right of stoppage in tram^itu is
a right possessed by the seller, to re-assume the possession of goods not
paid for, while on their way to the vendee, in case the vendee becomes
insolvent before he has acquired actual possession of them. Story on
Sales, § 318 ; Newhall v. Vargas, 13 Me. 93 ; S. C, 15 id. 314. It
is a privilege allowed to the seller, for the particular purpose of pro-
tecting him from the i/nsoVvency of the consignee. The Constantia,
6 Rob. (Adm.) 321, 327. And see WilmshAirst v. Bowker, 2 M. & G.
792 ; Cham,dler v. Fulton, 10 Tex. 2 ; Reynolds v. Boston, etc., B. R.
Co., 43 N. H. 580 ; Ryherg v. Snell, 2 Wash. (C. C.) 403 ; White v.

612 SALES.

Welsh, 38 Penn. St. 396. The right is one highly favored in law, being
based upon the plain reason of justice and equity, that one man's prop-
erty should not be applied to the payment of another man's debt.
D^Aquila v. Lambert, 2 Eden Ch. 77 ; Gibson v. Carruthers, 8 M. &
W. 337. But it is properly exercised only upon goods which are in.
passage, and are in the hands of some intermediate person between
the vendor and the vendee, in process and for the purpose of delivery.
Id.; Fraschieris v. Henriques, 6 Abb. (N. S.) 251.

The right of stoppage in transitu is not confined to the vendor, but
has been extended to quasi vendors, or persons standing in a similar
position to vendors. And it is asserted as a principle, that a party in
any way interested by way of lien or special interest in personal prop-
erty consigned to his debtor on faith of his solvency, has, upon his
insolvency occurring while the goods are in transit, the right to their
reclamation or stoppage in transitu for the protection of such lien or
interest. To that extent he is a quasi vendor entitled to use all law-
ful means in preventing his property or interests being sacrificed
toward the payment of another person's debts. Midler v. Pondir, 6
Lans. (K Y.) 472; S. C. affirmed, 55 N. Y. (10 Sick.) 325 ; S. C,
14 Am. Rep. 259. It is, however, held that a person having a mere
lien upon goods, without any property in them, as if his lien be for
work done, cannot claim to exercise the right, although his employer
becomes insolvent before the goods reach him. Kinloch v. Craig, 3
Term R. 119 ; Sweet v. Pym, 1 East, 4 ; Nichols v. Lefeuvre, 2 Bing,
N. C. 83. It is the seller's lien only whose protection is regarded.
Id. ; Story on Sales, § 323. Even a mere surety for the buyer has no
right to stop in tram^situ. Siffhin v. Wray, 6 East, 371. See Batch-
elloT V. Lawrence, 9 C. B. (N. S.) 543 ; De Wolf v. Lindsell, L. R., 5
Eq. 209. But the right may be exercised by a person who pays the
price of tlie goods for the vendee and takes from him an assignment of
the bill of lading as security for his advances. Gossler v. Schepeler,
5 Daly (N. Y.), 476. So, the right has been sustained in behalf of a
mere factor or purchasing agent, not only as to his advances but also
as to his commissions. Feise v. Wray, 3 East, 93 ; JSfewhall v. Vargas,
13 Me. 103. And a person sending goods to be sold on the joint ac-
count of himself and his consignee may exercise tlie right. Newsom
V. Thomt07i, 6 East, 17. The vendor of an interest in an executory
agreement may stop the goods as if he were owner of them {Jenkyns
V. Ushorne, 8 Scott N. R. 505 ; S. C, 7 M. & G. 678) ; and the
transfer of the bill of lading by the vendor to his agent vests a suffi-
cient special property in the latter to entitle him to stop in t/ransitu
in liis own name. Morison v. Gray, 2 Bing. 260 ; Benj. on Sales

SALES. 613

(2d ed.), 690. An agent of tlie vendor or consignor may make a stop-
page in behalf of his principal ( Whitehead v. Anderson, 9 M. & W
618) ; nor is it necessary that the agent should be specially authorized
for the purpose. The notice or demand for the goods may be made
by the general agents of the consignor {Chandler v. FvZton, 10 Tex.
2) ; or even by a stranger, if the act be ratified by the vendor before
the delivery to the vendee. Bell v. JIoss, 5 Whart. (Penn.) 189 ;
Whitehead v. Anderson, 9 M. & TV. 518 ; Durgy Cement and
JJmher Co. v. C Brien, 123 Mass. 12. But it is held that where
the stoppage in transitu is effected in behalf of the vendor, by one who
has at no time had any authority to act for him, a subsequent ratifica-
tion of the vendor will be too late if made after the transit is ended.
Bird V. Brown, 4 Exch. 786. See Hutchings v. NvMes, 1 Moore's P.
C. (K S.) 243.

A partial payment of the price will not exclude the vendor's right
of stoppage {Edwards v. Brewer, 2 M. & W. 375 ; Va/n Casteel v,
BooTcer, 2 Exch. 702) ; nor does a conditional payment by bills of ex-
change or other securities have this effect. Dixon v, Yates, 5 B. &
Ad. 345 ; Miles v, Gorton, 2 Cr. & M. 514. But it is otherwise,
where bills or securities are taken in absolute payment. In such cases
the vendor has no further right on the goods, but must seek his rem-
edy on the securities. Lewis v. Lyster, 2 Cr. M. & R. 704 ; Eaton v.
CooT(, 32 Yt. 58.

The unpaid vendor's right of stoppage is held to be higher in its
nature than a carrier's lien for a general balance {Oppenheim v. Mus-
sell, 3 Bos. (fe P. 42) ; though not for the special charges on the goods
sold. Id. ; Benj. on Sales (2d ed.), 695.

The right to stop in transitu can only be exercised against an insol-
vent or bankrupt buyer, or quasi buyer. And when goods are sold to
one person, who, before delivery to him, resells them to another and
this is known to the original vendor who consigns them to the second
purchaser, the original vendor will have no right of stoppage in ira/ti-
situ. Eaton v. CooTc, 32 Yt. 58. See Rosenthal v. Dessau, 11 Hun
(N. Y.), 49 ; Pattison v. Culton, 33 Ind. 240 ; S. C, 5 Am. Rep. 199.
But the object in allowing the pri^dlege to the vendor being his pro-
tection against the insolvency of the vendee, such privilege, unless
waived by the vendor, ought properly to extend to cases of insolvency
whether existing at the time of^sale or occurring at any time before the
actual dehvery of the goods. O'Brien v. Norris, 16 Md. 122 ; Rey-
nolds V. Boston, etc., R. R. Co., 43 N. H. 580 ; Blum v. Mark^, 21
La. An. 268 ; Benedict v. Schaettle, 12 Ohio St. 515. It has, how-
ever, been held in Connecticut that the buyer's failure must, in point

614 SALES.

of fact, have been later than the sale. Rogers v. Thomas^ 20 Conn. 54.
It is not necessary to prove insolvency that the buyer should have been
declared a bankrupt or insolvent by a judicial tribunal, nor that he
should have made an assignment of his property. By the word "insol-
vency " is meant a general inability to pay one's debts {ParTcer v.
Gossage, 2 Cr. M. & E. 617 ; Benj. on Sales [2d ed.], 696 ; Diirgy
Co. V. O'Brien^ 123 Mass. 12) ; and if this fact exist, no matter how
proved, if sufficiently and satisfactorily proved, the law requires
no more. Hays v. Mouille, 14 Penn. St. 48. See, also, Thomp-
son V. Thompson^ 4 Cush. 127; Clark v. Lynch, 4 Daly (N. Y.),
83 ; Durgy Cement Co. v. O'Brien, 123 Mass. 12 ; Inslee v.
Lane, 57 K. H. 454 ; The Queen v. Saddler'' s Co., 10 H. L. Cas.
404, 425. If the vendor exercise the right to stop in transitu,
while the vendee is yet solvent, he does so at his peril. Thus, if on
the arrival of the goods at their destination, the vendee is then insol-
vent, the vendor would be bound to deliver the goods and indemnify
the buyer besides for the premature stoppage. The Constantia, 6
Kob. (Adm.) 321.

The right to stop in transitu may be exercised at any time before
the goods reach their ultimate destination, and come into the actual
possession of the vendee, or of some agent authorized to act in respect
to the disposition of them, otherwise than by forwarding them to the
vendee. See Coates v. Railton, 6 B. & C. 422 ; Cabeen v. Campbell,
30 Penn. St. 254; Mohr v. Boston, etc., R. R. Co., 106 Mass.
67 ; Blackman v. Pierce, 23 Cal. 508 ; Aguirre v. Parmelee,
22 Conn. 473. While the goods are in course of transportation
to the place of destination, or are in the hands of an intermediate
agent or warehouseman for the purpose of being forwarded, they
are still subject to this right. Id.; Calahan v. Babcock, 21 Ohio
St. 281 ; S. C, 8 Am. Rep. 63. And after their arrival at the place
of destination, and while in the hands of the carrier or wharfinger or
warehouseman, for the mere purpose of delivery to the vendee, the
vendor may resume the possession. Id.; Northey v. Field, 2 Esp. 613 ;
Bird V. Brown, 4 Exch. 786 ; Ilarris v. Pratt, 17 N. Y. (3 Smith) 249 ;
CroAJOshay v. Eades, 1 B. & C. 181. And it is said to be doubtful,
whether an act of marking, or taking samples, or the like, without
any removal from the possession of the carrier, though done with the
intention to take possession, would amount to a constructive possession,
80 as to defeat the vendor's right to stop in tramMiu, unless accom-
panied by such circumstances as to denote that the cairier was intended
to keep the goods in the nature of an agent for custody. Whitehead
V. Anderson, 9 M. & W. 518. Goods in public store awaiting the com-

SALES. C15

pletion of their entry at the custom house by the payment of the
diities, are to be deemed still in transitu ; and it is well settled that as
to goods thus deposited, the right of a consignor to stop in transitu
attaches. Western Transp. Co. v. Hawley, 1 Daly (N", Y.), 327. And
goods are liable to stoppage as long as they remain in the possession of
the carrier, as such {James v. Griffin, 2 M. & W, 633) ; notwithstanding
the carrier has been named or appointed by the vendee. Jackson v.
Nichol, 5 Bing. N. C. 508 ; Berndtson v. Strang, L. K., 4 Eq. 481. But
where the owner sends his own servant for the goods, delivery to the
servant is a delivery into the actual possession of the master. It is
therefore held that, if the buyer send his own cart, or his own vessel
for the goods, they have reached the buyer's actual possession, and the
right of stopj)age in transit has ceased, as soon as the seller has deliv-
ered them into the cart or vessel. Ogle v. Atkinson, 5 Taunt. 759 ;
Turner v. Trustees of Liverpool Docks, 6 Exch. 543 ; Thompson v.
Stewart, 7 Phila. (Penn.) 187 ; Benj. on Sales (2d ed.), 698. Whether
a vessel chartered by the buyer is to be considered his own ship, is a
question of intention to be determined by the terms of the charter-
party. Id. ; Sandema/n v. Scurr, L. R., 2 Q. B. 86 ; Berndtson v.
Strang, L. E., 4 Eq. 481.

No particular form or mode of stoppage is prescribed by law ; and it was
said by Lord Hakdwicke, that the vendor was so much favored in exercis-
ing it, as to be j ustifiable in getting his goods back by any means not crim-
inal, before they reached the possession of an insolvent vendee. Snee v.
Prescot, 1 Atk, 250. Upon demand by the vendor, while the right of
stoppage in transitu continues, the carrier will become liable for a con-
version of the goods, if he decline to re-deliver them to the vendor, or
delivers them to the vendee. O'Neil v. Garrett, 6 Iowa, 480 ; Blackman
v. Pierce, 23 Cal. 508 ; Reynolds v. Boston <& Maine R. R. Co., 43 N. H.
580. And a notice by the vendor, without an express demand to re-deliver
the goods, is sufficient to charge the carrier. If the latter is clearly
informed that it is the intention and desire of the former to exercise
his right, the notice is sufficient. Id. ; Bell v. Moss, 5 "Whart. (Penn.)
189 ; Whitehead v. Anderson, 9 M. & W. 518. And notice to the
agent of the carrier, who in the regular course of his agency is in the
actual custody of the goods at the time the notice is given, is notice to
the carrier. Bierce v. Red Bluff Hotel Co., 31 Cal. 160 ; Jones v.
Earl, 37 id. 630. It was formerly held that, unless the vendor recov-
ered back actual possession of the goods by a corporeal seizure of them,
he could not exercise his right of stoppage in transitu. But it has long
been settled, that notice to the carrier as above stated is sufficient, and
if he deliver the goods after such notice, he is liable. See Litt v. Coio-

616 SALES.

ley, 7 Taunt. 168; S. C, 2 Marsh. 457; Rucker ^.Donovan, 13 Kan.
251 ; S. C, 19 Am. Rep. 84. The e£Eect of the notice is, to revest the
vendor's possession, so as to restore to him his lien. Benj. on Sales
(2d ed.), 716. If the notice be given to the principal, whose servant
has the custody of the goods, it must be given at such a time and under
such circumstances, that the principal by the exercise of reasonable dil-
igence may communicate it to his servant in time to prevent the deliv-
ery to the consignee. The only duty that can be imposed on the absent
principal is to use reasonable diligence to prevent the delivery. White^
head v. Anderson, 9 M. & W. 518.

A demand of the property from the vendee, made before its actual
delivery to him, and while it is in the custody of the custom-house
officers, is not sufficient to enable the vendor to reclaim it. The demand
must be made of the carrier or middleman, in whose custody it is at such
time, and under such circumstances that they may prevent its delivery
to the vendee. Mottram v. Heyer, 5 Denio, 629. And the stoppage
on the vendor's behalf, in order to be effectual, must be made in the
assertion of his rights as paramount to the rights of the buyer. Mills
V. Ball, 2 Bos. & P. 457; Benj. on Sales (2d ed.), 719.

The right of stoppage in transitu may be defeated by a sale to a
third person and an indorsement of the bill of lading, in good faith,
and for a valuable consideration, and this is the only legal mode of
defeating the right. Lickhar7'ow v. Mason, 2 Term E. 63 ; Pease v.
Gloahec, L. E., 1 P. C. 219 ; Coventry v. Gladstone, L. P., 6 Eq. 44 ;
Winslow V. Norton, 29 Me. 421 ; Morris v. ShryocTc, 50 Miss. 590, 597];
Rosenthal v. Dessau, 11 Hun (N. Y.), 49. It will not be defeated
by an apparent sale, fraudulently made, without consideration, for the
purpose of defeating the right. There must be a purchase for value,
without fraud, to have this effect. Id. ; Harris v. Pratt, 17 N. Y.
(3 Smith) 249. And an assignee in trust for creditors of the insolvent
vendee is not a purchaser for value, and consequently takes subject to
the exercise of any right of stoppage in transitu which may exist
against his assignor. Id. Nor is the right of stoppage divested, though
the goods ]je levied on by execution or attachment, at the suit of a
general credit or of the vendee, provided the right be exercised before
the transitus is at an end. The vendor's lien has preference ; it is the
elder lien, and cannot l)e superseded by execution or attachment. Uause
V. Judson, 4 Dana (Ky.), 11 ; O'Brien v. Norris, 16 Md. 122 ; Naylor
V. Dennie, 8 Pick. 199 ; Calahan v. liahcoch, 21 Ohio St. 281 ; S. C, 8
Am. Rep. 63 ; Morris v. Shryock, 50 Miss. 590 ; Inslee v. LoAie, 57 N. H.
454. But if the vendor attach the goods as the property of the vendee
while they are in the course of transportation, such attachment will de-

SALES. 61T

stroj the right to stop them in transitu. Woodruff y. Noyes, 15 Conn.
335. It is however held that the commencement of an action against a
buje; , by the attorney of the seller, for the price of goods sold on credit,
without the knowledge of the seller, and before either was apprised that
the transit was not terminated, is not a waiver of the right of stoppage,
if it be asserted within a reasonable time, and the improvident action
be not prosecuted. Oalahan v. Babcock^ 21 Ohio, 281 ; S. C, 8 Am.
Kep.^ 63.

If the vendor or consignor transfers the oill of lading as security for '
advances, and the same is then transferred back on the repayment of
the advances, the rights of the original vendor or consignor return to
him, and he is remitted to all his remedies under the original contract.
Short v. Simpson, L. R., 1 C. P. 248.

If the vendee intercepts the goods on their passage to him, and
takes possession as owner, the dehvery is complete, and the right of
stoppage is gone. If by his order a part of the goods are sold on the
way, the remainder may be stopped. Secomh v. Nutt, 14 B. Monr.
(Ky.) 261.

The mere fact that goods imported from abroaa upon the order of a
buyer have come into the hands of the officers of the customs, and have
been by them put into a warehouse, the buyer exercising no acts
of ownership over them, has been held not to determine the transit.
Donath V. Brooinhead, 7 Penn. St. 301. But it is held that the right
of stoppage in transit ceases when the goods are bonded and deposited
in a warehouse, in the joint custody of the purchaser or consignee, and
the custom-house authorities, under the present warehouse system.
Fraschieris v. Henriques, 6 Abb. N". S. (N. Y.) 251 ; Cartwright v.
Wihnerding, 24 IST. Y. (10 Smith) 521. And where the seller had
goods on board ship which he sold on four months' credit, and took
notes for the price, and handed all the shipping papers to the buyer,
who entered the goods and warehoused them in his own name, it was
held that the seller had thereafter no right of stoppage nor a lien.
Parker v. Byrnes, 1 Low. Dec. 539. So, where the goods, being in a
bonded warehouse, were sold on like terms, and the seller wrote an
order of transfer to the buyer, which was accepted by the warehouse-
man, and handed all the papers relating to these goods to the buyer,
and the goods were distinct from all other goods of the seller, it was
held that he retained in law no lien or right over them. Id.

But a transfer of a bill of lading, as a mere collateral to previous
obligations, without any thing advanced, given up or lost, on the part
of the transferee, does not constitute such an assignment as will pre-
VoL. Y.— 78

61S SALES.

elude the vendor of the goods from exercising the right of stoppage in
transitu. Lesasder v. The Southwestern^ 2 Woods (C. C), 35.

The retaking of goods by the seller in t/ra/nsitu^ from the possession
of the carrier in an action of replevin, of which the transferee of the bill
of lading had no notice, and the recovery of judgment in favor of the
seller, in such action do not bar the right of the transferee of the bill
of lading to maintain an action against the seller for conversion.
Bawls V. Deshler, 4 Abb. Ct. App. (N. Y.) 12 ; S. C, 3 Keyes, 572 ;
affirming S. C, 28 How. m.

As it regards the effect of exercising the right of stoppage in tran-
situ, it may now be deemed settled both in England and in the United
States, that the stoppage does not rescind the contract of sale, but
places the parties in the same situation, as nearly as may be, in which
they would have been if the vendor had not parted with the posses-
sion. Cooper V. Bill, 3 H. & C. 727 ; Wentworth v. Outhwaite, 10
M. & W. 436 ; Ma/rtindale v. Smith, 1 Q. B. 389 ; Schotsman v. Lan-
cashire, etc.. Railway Co., L. E., 2 Ch. App. 332 ; Stanton v. Eager,
16 Pick. 475 ; Rogers v. Thomas, 20 Conn. 53 ; Cross v. O^Donnell,
44 N. Y. (5 Hand) 661 ; S. C, 4 Am. Eep. 721. The vendor, in
exercising the right of stoppage, does not take possession of the goods
as his own, but as the goods of the purchaser, on which the vendor
has a lien for the unpaid purchase-money. If the vendee has paid
part of the price, he cannot recover it back, while the vendor, having
regained the possession, is still willing to deliver the goods on payment
of the balance. If the vendee refuse to pay the balance and take the
goods, the vendor may, after notice and reasonable time allowed to
pay for and take the goods, resell them and apply the proceeds to the
payment of the price, and should a balance still remain unpaid, the
vendor may recover it of the vendee. Newhall v. Vargas, 13 Me.
93 ; S. C, 15 id. 312 ; Story on Sales, § 320 ; 2 Kent's Com. 541.

§ 6. Resale. Where the bargain is completed and the property in
the goods has passed from the seller to the buyer, the seller still retain-
ing the possession of the goods as his security, a default of payment on
the buyer's j^art entitles the seller to an action for the price. See
Maclean v. Dunn, 4 Bing. 728 ; Gregory v. McDowel, 8 Wend.
435; Ba/rrow v. Window, 71 111. 214; West/all v. Peacock, 63 Barb.
209. But, it is said that, " if the buyer unreasonably refuses to accept
of the article sold, the seller is not obliged to let it perish on his hands
and run the risk of the solvency of the buyer. The nsage, on the
neglect or refusal of the buyer to come in a reasonable time, after
notice, and pay for and take the goods, is for the vendor to sell the
same at auction, and to hold the buyer responsible for the deficiency in

SALES. 619

the amount of sales." 2 Kent's Com. 504. That the ven or may
resell the goods in such a case is now well settled in the United States,
at least, though his general right to do so has been doubted in Eng-
land. It has been frequently the case that a condition was annexed to
a sale, that the goods sliould be resold at the risk of the purchaser if
he failed to comply with the terms of sale. And in every such case,
of course, the right of resale and the liability of the first purchaser to
make good the loss existed (See Lamond v. Davall, 9 Q. B. 1030) ;
but it was thought that the law did not impliedly confer this power
of reselling. And the latest English cases hold that a resale for the
buyer's default in payment, after the property in the goods has legally
passed to him, is, on the sellei-'s part, a breach of contract for which
damages may be recovered against him, but only the actual damage
suffered, that is, the difference between the contract price and the
market value on the resale, is recoverable, and if there be no proof of
such difference, the recovery will be for nominal damages only.
Griffiths V. Perry, 1 El. & El. 680; Fa% v. OaJceUy, 16 Q. B. 941;
Benj. on Sales (2d ed.), 655.

The rule as established by the American decisions is, that where the
price is unpaid, the power to resell exists, even in the absence of any
express stipulation, and that the purchaser is responsible for any loss
which may occur, although he did not consent to the resale. Sands v.
Taylor, 5 Johns. 395 ; Larrikin v Craioford, 8 Ala. 153 ; Dustam, v.
McAndrew, 44 N. Y. (5 Hand) 72 ; Bell v. Offutt, 10 Bush, 632 ;
Saladin v. Mitchell, 45 111. 80 ; Redmond v. Smock, 28 Ind. 365 ;
Barr v. Logan, 5 Harr. (Del.) 52 ; Hiighes v. United States, 4 Ct. of
CI. 64; Gordon v. Nm'ris, 49 ^. H. 378 ; Bosenhaums v. Weeden, IS
Gratt. (Ya.) 785. The power, in the absence of contract, seems at first
to have been placed upon the ground that where the goods are perish-
able, the vendor is not bound to let them perish in his hands and thus
lose his security. But this ground very much restricted the rale and
it has since been made general. Id. ; Maclean v. Dunn, 4 Bing. 722.
Nor is it necessary that the resale should be made at auction, or in any
other particular mode. All that is required of the seller is that he
shall dispose of the goods on the resale in good faith, in the mode best
calculated to produce their value. Crooks v. Moore, 1 Sandf . (i^. T.)
297 ; Applegate v. Ilogan, 9 B. Monr. (Ky.) 69. And while it is the
duty of the seller to notify the buyer of his general intention to resell
the goods at the latter' s risk, it has been held that he is not bound to
give notice of the day and place of sale, even though it be at auction.
RosenhoAims v. Weeden, 18 Gratt. (Ya.) 785 ; Gaskell v. Morris, 7
"Watts & Serg, 32. It is, however, the safer and more prudent course

620 SALES.

to give notice of time and place of sale, if it is to be at auction, for the
reason that the vendee will have less, if he can have any, cause to com-
plain of the sacrifice at such resale, if it be fairly made and he had due
notice of the time and place of making it. And to resell without any
notice whatever to the buyer of any such intention, will involve the
seller in a breach of contract, unless he can show that the buyer,
and not lie, was in default, Redmond v. Smock, 28 Ind. 365 ; Barr
v. Logan, 5 Harr. (Del.) 52 ; Gordon v. Norru, 49 N. H. 378. And
see Pollen v. LeRoy, 30 N. Y. (3 Tifi.) 549.

"Where the seller has recourse to a resale, a count for " goods bar-
gained and sold " cannot be sustained by him, for the difference be-
tween the price originally agreed upon and the price obtained on the
resale, but he should bring a special action therefor. Haas v. Tomj)'
Mns, 2 Clark (Penn.), 16 ; S. C, 2 Penn. Law Jour. Rep. lY ; Maclean
V. Dunn, 4 Bing. 728. He cannot, however, recover such difference,
where the evidence indicates that the goods as tendered to the buyer
were not merchantable, or did not correspond with the sample. Duti-
can V. Holt, 21 La. Ann. 235.

And it is held that the seller cannot maintain replevin for an article
sold, delivered and partially paid for, until after an offer to put the
purchaser in statu quo, and a demand and refusal of the article. Ham-
ilton V. Singer Manuf. Co., 54 111. 370.

§ 7. Lien. As to liens in general, see Yol. 4, tit. Lien. When
goods are sold and there is no stipulation for credit or time allowed
for payment, the vendor has by the common law a lien for the price ;
in other words, he is not bound actually to part with the possession of
the goods, although the property therein has passed, without being paid
for them. Miles v. Gorton, 2 C. & M. 504 ; Clark v. Draper, 19 N.
H. 419; Arnold v. Delano, 4 Cush. 38 ; Moore v. Newberry, 6 Mac-
Lean (C. C), 472. The lien of the vendor, for the price of goods sold,
originated with the Roman law, and afterward became incorporated
into the common law. Story on Sales, § 282. It is a right to retain
goods sold until the whole price is paid {Hawes v. Watson, 2 B. & C.
542; Minzeskeimer V. Heine, 4:'E. D. Smith [N. Y.], 65); but the
lien extends only to the price, and it is said that no person has by law
a right to add to his lien upon a chattel, a charge for keeping it till the
debt is paid. British Emjpire Shipping Co. v. Somes, 1 E. B. & E.
353 ; S. C, 8 11. L. Cas. 338 ; Crommelin v. New York, etc., R. R.
Co., 10 Bosw. (N. Y.) 77; S. C. affirmed, 1 Abb. Ct. App. 472 r 4
Keyes, 90.

This lien of tlic vendor may, of course, be waived expressly ; and it
is deemed to i^e waived when the vendor enters into any special agree-

SALES. 621

ment inconsistent with the existence of the lien, or from wliich a
waiver of it may be fairly inferred. Pickett v. Bullock^ 52 N. H.
35-i; Spartali v. Benecke, 10 C. B. 212. Thus, when a credit is given
by agreement, the vendee has a right to the custody and actual pos-
session, on a promise to pay at a future time. He may then take the
goods away, and into his own actual possession ; and if he does so, the
lien of the vendor is gone, it being a right incident to the possession.
Id. ; Crawshay v. Homfray^ 4 B. & Aid. 50 ; Kimhro v. Hamilton^
2 Swan (Tenn.), 190. But the law, in holding that a vendor, who has
thus given credit for goods, waives his lien for the price, does so on
one implied condition, which is that the vendee shall keep his credit
good. If the vendee becomes insolvent while the goods are yet in the
hands of the vendor, the latter may retain them until the price is paid
{Riddle v. Yarnum, 20 Pick. 280 ; M'Ewan v. Smith, 2 H. L. Cas. 309;
Southioestem Freight Co. v. Stanard, 44 Mo. 71 ; ante, 611, § 5) ; and
this rule of law is applicable, although a negotiable promissory note has
been given for the purchase- money, if it remains in the hands of the
vendor, and has not been negotiated, so that it may be delivered up on
discharge of the lien. Arnold v. Delano, 4 Cush. 33 ; Milliken v.
Warren, 57 Me. 46.

The vendor's lien is abandoned when he makes delivery of the
goods to the vendee, or his agent. And a delivery to a common car-
rier for conveyance to the buyer is held to be such a delivery of actual
possession to the buyer through his agent, the carrier, as will defeat the
lien, Dawes v. Peck, 8 Term R. 330 ; Norman v. Phillips, 14 M.
& W. 277. See also, anU, 573, Art. 1, § 29. And a symbolical de-
Hvery will be sufficient to defeat the lien, if it be made with the in-
tention of completely transferring the property to the vendee {Gordon
V. Cam%eron, 7 Term R. 228), and the vendor does not still retain
actual possession of the goods. See Re Batchelder, 2 Low. Dec. 245.
But so long as the vendor does not surrender actual possession, his
lien exists, although he may have performed acts which amount to a
constructive delivery, so as to pass the title, or to avoid the statute of
frauds. See Proctor v. Jones, 2 Carr. & P. 532 ; Clarke v. Spence,
4 Ad. & El. 466; Arnold v. Delano, 4 Cush. 38; Southioestern
Freight Co. v. Plant, 45 Mo. 517 ; Story on Sales, § 290.

"Whether a delivery of part of the goods sold is a sufficient delivery
of the whole, so as to destroy the vendor's lien, is said to resolve itself
into a question of intention. The vendor may, if he see proper, give
up part of the goods, and retain the rest ; and then his lien will remain
on the part retained in his possession for the price of the whole / but
there may be circumstances sufficient to show that there was no inten-

622 SALES.

tion to separate the part delivered from the rest, and then the delivery
of part operates as a delivery of the whole, and puts an end to the
vendor's possession, and consequently to his lieu. Benj. on Sales (2d
ed.), 663 ; Tanner v. Soovell, 14 Mees. & W. 28 ; Joiies v. Jones^ 8 id.
431. But see Dixon v. Yates, 5 B. & Ad. 313 ; Beits v. Gibhins, 2
Ad. & El. 73.

Liens may be created by contract, which may stipulate the mode in
which the hen shall be effectuated, continued, or rescinded, and the
intent of the parties in such case must prevail unless prohibited by
rules of law. See Yol. 4, tit. Lien. And there is held to be no rule of
law to defeat a stipulation in a contract of sale of personal property,
that the vendor shall retain a lien until payment. Sawyer v. Fisher,
32 Me. 28. And see Dunning v. Stearns, 9 Barb. 630.

A sale of goods, stipulating that they shall be delivered as fast as
wanted for manufacturing, that when manufactured they shall be ware-
housed, subject only to the vendor's order, and drawn out for the vendee,
on certain payments being made, is held to vest the property in the
vendee on delivery, and gives the vendor a lien only on the goods ware-
housed. Ilewlet V. F2i7it, 7 Cal. 264.

§ 8. Action by buyer against seller when contract is executory.
Where there is only an agreement to sell, and the sale is not executed, an
action for the possession cannot be maintained. The buyer's only remedy
in such case is an action for damages arising out of the breach of the con-
tract. Boutellx. Warne, 62 Mo. 350. And the measure of damage is, in
general, the difference between the contract price and the market value
of the goods at the time and place when and where they ought to have
been delivered. Barrow v. Arnaud, 8 Q. B. 604 ; Wilson v. Lancashire,
etc., E. R. Co., 9 C. B. (K S.) 632 ; Gordon v. Mrris, 49 N. H. 376.
And see Vol. 2, pp. 459 et seq. Even where it appears that at the time
when the goods contracted for should have been delivered, they could
have been purchased for less than the contract price at the place of deliv-
ery, the buyer will be entitled to recover nominal damages for the
breach of the contract. Deere v. Lewis, 51 111. 254 ; Grijfiths v.
Perry, 1 El. & El. 680. If there be no market price for the goods at
the precise place of delivery, the market price of the same kind of
goods at the nearest practicable market, with the increased cost of trans-
portation therefrom, may l)e taken into account. Furhng v. PoUeys,
30 Me. 491 ; Pearce v. Ca/rter, 3 Iloust. (Del.) 385. And the cost of
the goods may be estimated at the retail price, if the buyer can only
procure the goods in tlic market at retail. Ilashell v. TLimter, 23 Mich.
305. The essence of the legal rule is, to place the injured party in an
equally favorable condition, by allowing him such compensation as

SALES. . 623

•would enable him to supply himself. Furlong v. Polleys^ 30 Ma 491 ;
Brandt v. Bowlby, 2 B. & Ad. 932. And see Yorke v. Ver Plcmck,
65 Barb. 316.

"Where the broken contract provided for the delivery of the goods to
the buyer " on request," it is a condition precedent to the buyer's right
of action that he should make this request personally, or by message or
letter. But this requirement may be waived by the vendor's having
incapacitated himself from complying with the request by consuming,
or reselling, or otherwise so disposing of the goods as to render a request
idle and useless. Bach v. Owen, 5 Term E,. 409 ; Amory v. Brodrick,
5 B. & Aid. 712. See, also, Clark v. Crandall, 3 Barb. 612 ; Boody
v. Rutland, etc., R. R. Co.,1^ Vt. 660 ; HarrissY. Williams, 3 Jones'
(N, C.) L. 483 ; Boies v. Vincent, 24 Iowa, 387, If the sale was for
cash on delivery, the buyer is not entitled to recover damages for non-
delivery, unless he can show that he was ready to receive and pay for
the goods as delivered, and upon request for payment. Metz v, Alhrecht,
52 111. 491. See Isaacs v. New York Plaster Works, 8 Jones & Sp.
Q^. Y.) 277 ; Mount v. Lyon, 49 N. Y. (4 Sick.) 552. But an offer by
the buyer to pay the price is enough. He is not bound to keep up a
technical continuing tender. Philli2)s v. Williams, 39 Ga. 597.

Whether the fact that the purchase-money was paid in advance varies
the rule of damages is a question which has not been deiinitely deter-
mined. But the later authorities are decidedly in the direction of not
permitting that fact to affect the general rule. See 2 Kent's Com. 480 ;
Sedgw. on Damages, 292 ; Hill v. Smith, 32 Vt. 433.

As to the effect of a breach of contract of sale where the bargain
was for delivery by installments, it is held that in the absence of any
evidence on the part of the defaulting seller that the buyer could have
gone into the market and obtained another similar contract on such
terms as to mitigate the loss, the measure of damages is the sum of the
difference between the contract price and the market price at the sev-
eral periods for delivery. Brown v. Midler, L. E.., 7 Exch. 319 ; S. C,
3Eng. E. 429 ; Ex parte LlansamUt Tin Slate Co., L. E., 16 Eq. 155;
S. C, 6 Eng. E. 689 ; Benj. on Sales (2d ed.), 739. Thus, the contract
was for the delivery of five hundred tons of iron in about equal pro-
portions in September, October and November, and action was brought
in December by the buyer. The seller had given notice soon after the
contract that he did not intend to deliver any iron, and it was held,
that the proper measure of damages was the sum of the difference
between the contract and the market prices of one-third of five hun-
dred tons on the 30th of September, tlie 31st of October, and the 30th
of November, respectively. Brown v, Muller, L. E., 7 Exch. 319 ;

624: SALES.

S. C, 3 Eng. E. 429. Nor would the rule be modified, although the
last period fixed for delivery had not arrived when the action was
brought, or the cause tried ; the jury being left to estimate, as best
they can, the probable difierence in respect of the future deliveries.
Roper V. Johnson, L. R., 8 C. P. 167 ; S. C, 4 Eng. R 397.

A partial breach of contract, by a refusal to deliver any particular
parcel of the goods, gives the buyer the right only to a compensation
in damages for the partial breach. Simpson v. Crippin, L. R., 8 Q. B.
14; S. C, 4 Eng. R. 200. And see Haines v. Tucker, -50 IST. H. 307.

So, if before the title has vested in the buyer the property is destroyed,
without the fault of the seller, so that delivery becomes impossible, the
seller is not liable for damages for a breach of the contract. In such
cases, a condition is implied in the contract itself, the effect of which
is to relieve the party when performance has, without his fault, become
impossible. Dexter v. Norton, 47 N. Y. (2 Sick.) 62 ; S. C, 7 Am.
Rep. 415 ; afiirming S. C, 57 Barb. 272. But one who has entered into
a contract to make and deliver a certain manufactured article within a
specified time, having ample time for performance, cannot postpone
performance to the last moment and then excuse it upon the plea of
accident. In such case he takes the responsibility of delay. Booth v.
Spuyten Buyvil Boiling Mill Co., 60 N. Y. (15 Sick.) 487.

If the buyer, on receiving a part of the goods sold, finds they are
not of the kind or quality which his contract entitles him to, he is not
at hberty to retain such part, and claim damages for the non-deliveiy
of the entire quantity. Nor can he require the delivery of the residue,
retaining a claim for damages. He must either receive the article as it
is, or he must return the portion delivered, and then enforce his claim
for damages. He can recover no damages, if he refuse to return the
part delivered. Shields v. Pettee, 2 Sandf. (N. Y.) 262 ; S. C. affirmed,
4 N. Y. (4 Comst.) 122 ; Miner v. Bradley, 22 Pick. 457.

Where, by the contract of sale, the price is to be paid in the currency
of a foreign government, but damages for a breach are to be measured
by the difference between that price and the market value at a place
within the United States, where there are two kinds of currency, one
of gold and one of paper, the latter being the universally adopted
medium, the party recovering the damages is entitled to have them
estimated on the basis of the paper cuiTency, although its value at that
place is capable of being estimated in the foreign currency. Cahen v.
Piatt, 8 Jones & Sp. (N. Y.) 483. And see Simphins v. Lo^o, 54 N. Y.
(9 Sick.) 179 ; The Vawjhn and Telegraph, 14 Wall. 258, 268.

§ 9. Action when title has passed. If the contract which has
been broken by the seller is one in which the property has passed to

SALES. 625

the buyer, the latter has, of course, the right of action for damages for
breach of the contract, noticed in the preceding section. Or, if not in
default, he may obtain redress by an action of trover {Ferguson v.
Carrinyton, 9 Bam. & Ores. 59 ; S. C, 3 Car. (fe P. 457) ; but he can
recover no greater damages by thus suing in tort for non-dehvery of
the goods, than by suing on the contract. Chinery v. Viall, 5 Hurl.
& N. 288. And it is well settled, that so long as any thing remains to
be done by the seller, in order to transfer the title, or so long as pay-
ment is not made, when, by the terms of the contract, credit is not
given, the action of trover cannot be sustained. Woods v. Russell^ 5
Barn. &: Aid. 942 ; S. C, 1 Dowl. & Ry. 5S ; Brownings. Hamilton^
42 Ala. 484 ; Cwiway v. Bush, 4 Barb. 565 ; Story on Sales, § 449.
See post, tit. Trover.

In certain cases, where damages at law afford no adequate compensa-
tion for breach of the agreement, a court of equity will compel the
vendor to deliver the specific chattel sold. Thus, a contract for the
purchase of articles of unusual beauty, rarity, and distinction, such as
objects of virtu, will be enforced, as damages would not be an adequate
compensation for non-performance. Falcke v. Gray, 4 Drew. 658.
See, also, Todd v. Toft, T Allen, 371 ; Summers v. Bean, 13 Gratt.
(Ya.) 404. But a court of equity will not, generally, decree perform-
ance of a contract for the sale of stock or goods, not because of their
personal natm-e, but because damages at law, calculated upon the market
price of the stock or goods, are as complete a remedy to the purchaser
as the delivery of the stock or goods contracted for ; inasmuch as with
the damages he may purchase the same quantity of the like stock or goods.
Adderley v. Dixon, 1 Sim. k. Stu. 610. And see Buhier v. Bahur, 24
Me. 42 ; Waters v. Howard, 1 Md. Ch. 112, 118 ; Swvery v. Spence, 13
Ala. 561.

§ 10. Action after receiving goods. After the goods have passed
into the actual possession of the buyer, the performance of the seller's
duties may still be incomplete by reason of the breach of some of the
warranties, express or implied, whether of title or quality, to which he
has bound himself by the contract. In case of a breach of warranty of
title, the buyer may maintain an action for the return of the price on
the ground of failure of the consideration for which the price was paid
{Eichholz V. Bannister, 17 C. B. [N. S.] 70S) ; or he may sue in damages
for breach of the vendor's promise, as in aU other cases of breach of
contract. Benj. on Sales (2d ed.), 748 ; Poulton v. Lattimore, 9 B. <fe
C. 259.

It is well settled by all the authorities that the buyer may, after
receiving and accepting the goods, bring his action for damages, in case
YoL. Y.— 79

626 SALES.

the quality is inferior to that warranted by the seller, and the rule of
damages is the difference between the actual value at the time of sale
and what the same would have been worth if sound accordins;' to the
warranty. Wright v. Davenport^ 44 Tex. 164; Thornton v. Thomjp-
son, 4 Gratt. (Ya.) 120 ; Howie v. Rea, 70 No. Car. 559 ; Page v.
Parker, 40 X. H. 47 ; Beresford v. McCune, 1 Cine. (Ohio) 50 ; Joiies
V. Just, L. E., 3 Q. B. 197 ; Davis v. Hedges, 6 id. 687. If the article
is wholly worthless, the plaintiff is entitled to recover what would have
been its value to himself at the time ©f the warranty. Peggio v. Brag-
giotti, 7 Cush. 166. And see Perleij v. Balch, 23 Pick. 283 ; Bill v.
O'Ferrell, 45 Ind. 268 ; MooUar v. Lewis, 40 id. 1. Nor is the applica-
tion of the general rule changed or modified by the fact that the
purchaser subsequently sold the article for the same, or even a greater
price than that which he paid for it. Broion v. Bigelow, 10 Allen, 242.
And the good faith of the vendor will not, of course, reduce the dam-
ages sustained by a breach of his warranty. Brishane v. Parsons, 33
]Sr. T. (6 Tiff.) 332. So, as in the case of non-delivery, the buyer is
entitled to recover, not only for the direct and natural consequence of
the vendor's failure to perform, but for such damages besides as were
foreseen, or may reasonably be supposed to have been foreseen, by both
parties at the time of making the contract. Dingle v. Hare, 7 C. B.
(N. S.) 145 ; Page v. Pavey, 8 Car. & P. 769 ; Wolcott v. Mount, 36
N. J. Law, 262 ; S. C, 13 Am. Kep. 438 ; Phelan v. Andrews, 52
111. 486. To ascertain what these were, resort must be had to the
terms of the contract for its meaning, as applied to the subject-matter,
and as inteqDreted by the general and known usages of the business to
which it refers. Merrimach Manuf. Co. v. Quintard, 107 Mass. 127.
Upon a sale of hop roots, the vendor, at the' time of sale, and with
knowledge that the buyer purchased the same for cultivation, warranted
them to be female, or productive roots, when in fact a large number of
them were male, or unproductive roots. The crop having proved a
failure, the buyer brought his action to recover damages for a breach
of the warranty, and he was held to be entitled to recover all the da-m-
ages sustained by him, including the difference between the value of
the crop actually raised and that of the crop that would have been
raised had all the roots been female or productive ones. Schtitt v. Bor
her, 9 llun (N. Y.), 556. And see Randall v. Raper, El. P.l. & El.
82 ; Brooks v. McDonnell, 41 Wis. 139. "Where a cow was sold to a
farmer, with a warranty that she was free from any infectious disease,
and the buyer placed the cow (which was diseased) witli otlier cows,
and some of these became infected with the disease, and died, as also
did the cow in question, it was held that the seller was liable in dam-

SALES. 627

ages for the entire loss, if when he sold the cow he knew that the buyer
was a farmer, and that he would or probably might place the infected
cow with others. Smith v. Green, L. E., 1 C. P. Div. 92 ; S. C, 16
Eng. E. 441 ; Mullett v. Mason, L. E., 1 C. P. 559. See, also, Jef-
frey V. Bigelow, 13 Wend. 518 ; Bradley v. Rea, 14 Allen, 20. So,
where an anchor was lost, in consequence of the insufficiency of a cable
which had been bought under a warranty, the buyer was permitted to
recover, as a part of his damages, the value of the anchor. Borradaile
V. Br.unton, 2 Moore, 582. And it is held that, where merchandise is
sold with a warranty as to quality, and the warranty fails, and the
merchandise is taken to a market, and is totally lost in consequence of
the breach of warranty, the price of transportation to the market, where
the loss was first discovered, will be added in estimating the damages,
in a case where the seller knew it was designed for that market. Lattin
V. Davis, Hill & Deiiio (N. Y.), 9. If the buyer make a subsequent
sale of the defective goods whose quality was warranted, with a like
warranty, the sum paid on a judgment obtained against him, in an ac-
tion brought by his vendee for a breach of that warranty, is prima
facie evidence of the amount which he can recover as special damages
in an action against his own vendor {Reggio v. Braggiotti, 7 Cush.
166) ; and, if he gave notice to his vendor of the commencement of the
sub-buyer's suit, he may also recover his taxable costs therein, though
not the counsel fees incurred in his own defense. Id. ; Randall v.
Raper, El. Bl. & El. 84 ; Lewis v. Peahe, 7 Taunt. 153 ; S. C, 2
Marsh. 431. Nor can the taxable costs be recovered, if by a reasonable
examination of the article the breach of warranty could have been
discovered before the resale. Wrightuj? v. Chamberlain, 7 Scott, 598.
And for injuries and losses which are only the remote results of the
failure of warranty, and for injuries which are merely speculative, it is
well settled that no damages can be recovered. Freeman v. Clute, 3
Barb. 424 ; Davis v. Fish, 1 Gr. (Iowa) 406. And see Yol. 2, tit.
Damages.

Instead of bringing his separate action for the breach of warranty,
the buyer may plead the breach in reduction of the damages in the
action brought by the seller for the price ; and the latter is the more
convenient course, where the goods are not yet jjaid for. See Damis v.
Hedges, L. E , 6 Q. B. 687; Harrington v. Stratton, 22 Pick. 510;
Gautier v, Douglass Manufacturing Co., 13 Hun (N. T.) 514 ; Par-
ker V. Pringle, 2 Strobh. (S. C.) 242. The rule is, that it is competent
for the buyer, in an action for the price, to defend himself by showing
how much less the subject-matter of the action was worth, by reason of
the breach of contract ; and to the extent that he obtains, or is capable

628 SxVLES.

of obtaining, an abatement of price on that account, he must be consid-
ered as having received satisfaction for the breach of contract, and is
prechided from recovering in another action, to that extent, bnt no
more. Mondel v. Steely 8 M. & W. 858 ; Hitchcock v, Runt^ 28 Conn.
343 ; Walker v. Eoisington, 43 Yt. 608 ; Westcott v. Mms, 4 Cush.
215. If he desires to claim special or consequential damages, he must
bring a cross-action, which is not barred by reason of his having obtained
a diminution of price in a previous action brought by the vendor. Id.
And see Rigge v. Burbidge, 15 M. & "W". 598. But see Burnett v.
Smith, 4 Gray, 50. In Poulton v. Lattimore, 9 B. & C. 259, the buy-
er's defense in an action for the price was successful for the whole
amount of the price. And it has been held that, where certain ani-
mals in a drove are sold under a warranty that all the animals in the
drove are free from any contagious disorder, the buyer may recoup in
damages, in an action for the price, the whole loss occasioned to him by
the presence of a disease in the drove at that time, although some of
the animals purchased by him did not become infected till afterward.
Bradley v. Rea, 14 Allen, 20.

The rule still prevails in England, that the purchaser's right to insist
on a reduction of price, on the ground of breach of warranty, cannot
be made available if he has given a negotiable security for the price,
and the action is brought on the security. He is driven in such a case
to a cross-action as his only remedy. Agra & Mastervnavu s Bank v.
Leighton, L. R., 2 Exch. 56 ; Benj. on Sales (2d ed.), 753. But in this
country, the courts in many of the States have decided that a negotia-
ble security, as, for instance, a promissory note, and an agreement which
is the consideration for the note, are not such independent contracts
that the breach of the one cannot be set up by way of recoupment to
the other. The buyer is, therefore, permitted to set off his damages
for the breach of warranty, in an action on his negotiable security for
the price, provided the seller, or a party who took it from the seller
when overdue, be the owner thereof. Hill v. Southwick, 9 R. I. 299 5
S. C, 11 Am. Ttep. 250 ; Mooklar v. Lewis, 40 Ind. 1 ; Coburn v.
Ware, 30 Me. 202 ; Raslerry v. Moye, 23 Miss. 320 ; Perley v. Balch,
23 Pick. 283. See Bidler v. Northumberland, 50 N. JI. 33.

The buyer may use the breach of warranty as a defense in an action
for the price, or he may maintain a direct action for damages for tlie
breach, without, in either case, giving notice to the seller before thus
defending or suing, that the goods are unsatisfactory and offering to
return them. Pateshall v. Tranter, 3 Ad. & El. 103 ; Plant v. Coiv-
dit, 22 Ark. 454 ; Richardson v. Grandy, 49 Vt. 22 ; Rust v. Eckler,
41 N. Y. (2 Hand) 488 ; Vincent v. Lelamd, 100 Mass. 432. It is.

SALES. 629

however, said, that the faihire either to return the goods, or to notify
the seller of the defect in quality, raises a strong presumption that the
complaint of defective quality is not well founded. Fielder v. Starkin,
1 n. Bl. 17 ; Prosser v. Iloo])ei\ 1 Moore, 106 ; Thompson v. Botts,
8 Mo, 710 ; Kellogg v. Denslow, 14 Conn. 411.

It is declared to be settled law in some of the cases, as it respects an
executed present sale, that in the absence of fraud or an express agree-
ment to take back a chattel, sold with warranty, the buyer cannot return
the chattel, and recover back the whole price. See Dawson v. Collis^
10 C. B. 530 ; Heilhutt v. Eichson, L. K, 7 C. P. 438 ; S. C, 3 Eng.
R. 328 ; Wright v. Davenport, 44 Tex. 164 ; Buckingham v. Osborne,
44 Conn. 133; Day v. Pool, 52 K T. (7 Sick.) 416; S. C, 11 Am.
Eep. 719 ; Thornton v. Wijnn, 12 Wheat. 192. But the courts of
Massachusetts, and those of some of the other States declare the rule
of law to be, that, in order to avoid circuity of action, the warranty may
be treated as a condition subsequent, at the election of the buyer, who
may, upon a breach thereof, rescind the contract, and recover back the
amount of liis pmxhase-money, as in case of fraud. Morse v. Brackett,
98 Mass. 209. And this rule is said to be the more reasonable and just.
Rogers v. Hanson, 35 Iowa, 283 ; Hyatt v. Boyle, 5 Gill & J. (Md.)
121 ; Marston v. Knight, 29 Me. 341 ; Dill v. O'Ferrell, 45 Ind.
268 ; Butler v. N'orthumherland, 50 N. H. 33 ; Youghiogheny Iron
Co. V. Smith, 66 Penn. St. 340; Jagers v. Grijin, 43 Miss. 134;
Halph V. Chicago, etc., Co., 32 Wis. 177 ; S. C, 14 Am. Rep. 725.

In Kimhall, etc., Manuf. Co. v. Vroman, 35 Mich. 310, it is held
that the person injured by the breach of a warranty of a such a nature as
would justify a return, cannot be compelled to elect between a return
and damages, but may be entitled to both. The purchase-price may
not make good all his losses ; and the retention of property which is
unfit for use may be onerous and ruinous. And see Mandel v. But-
tles, 21 Minn. 391.

After acceptance of the goods sold, the presumption is that they
were of the quality called for by the contract. The burden is there-
fore on the buyer, objecting to the quality, to prove the fault by a pre-
ponderance of evidence. And the mere fact that he has made a partial
payment does not preclude this. Atkins v. Colh, 56 Ga. 86.

The damages recoverable by the buyer for a breach of warranty may
be greatly augmented when they are the consequence of a fraudulent
misrepresentation by the seller. Thus, in George v. Skivifigton, L. R .
5 Exch. 1, it was held that the l)uyer might recover damages for per-
sonal injury sustained from the use of a deleterious compound fur-

630 SALES.

nislied by a chemist, and unfit for the purpose for which the chemist
professed to sell it. And see Mullett v. Mason, L. E., 1 C. P. 559.

For a gross deficiency in the (][aantity of the article delivered, the
bnyer may sue for damages ; and the words " more or less," accom-
panying the description of <piantity in the contract, will not defeat this
light of action. Nor is a delay, for instance of six months, in giving
notice of the deficiency, or in bringing suit, a waiver of the claim.
Creighton v. Comstock, 27 Ohio St. 548.

§ 11. Rescission by seller. The right of either party to rescind a
contract of sale has been incidentally noticed in the foregoing sections.
And see Yol. 3, tit. Fraud / also post, tit. Rescission of Instruments.
In the absence of fraud, the right to rescind is dependent upon the
agreement of the parties, and springs either from the original terms
of the contract, or from a subsequent mutual assent to break it up.
See Reinekey v. Earle, 8 El. & Bl. 410 ; j^ost, 633, § 13.

As a general rule, if a person is induced to part with his property
on a fraudulent contract, he may, on discovering the fraud, avoid the
contract and ciaim a return of what has been advanced upon it„ See
La/ndauer v. Cochran, 54 Ga. 533 ; Hall v. Fullerton, 69 111. 448 ;
Tilton Safe Co. v. Tisdale, 48 Yt. 83. But he nnist do so at the
earliest practicable moment after discovery of the fraud. Id. If the
seller seeks to rescind a contract of sale of personal property, and to
recover possession thereof, on account of alleged false and fraudulent
representations by the buyer, as to his solvency, he must establish the
facts, that the alleged representations were made ; that at the time
they were made, they were false, and that the purchaser knew them to
be false ; that they were such as would deceive a prudent man ; that
they were believed by the seller, and that they induced him to part
with such property. Gregory v. Schoenell, 55 Ind. 101. And see on
this point Patton v. Campbell, 70 111. 72 ; Donaldson v. Farwell, 93
TJ. S. (3 Otto) 631 ; Fox v. WelsUr, 46 Mo. 181 ; Stewart v. Emer-
scm, 52 N. II. 301, 317; Jordon y. Parker, 56 Me. 557; Kline y.
Baker, 99 Mass. 253 ; Ferguson v. Carrington, 9 B. & C. 59 ; Thmnp-
son V. Rose, 16 Conn. 71 ; Ilennequin v. Nayler, 24 K. Y. (10
Smith) 139. Tlic insolvency of the buyer, and his knowledge of it,
are held not to be alone such fraud as will set aside a sale, and enable
the seller to rescind and replevy the goods, after they have come fairly
and fully into the possession of the buyer. To avoid the sale there
must be artifice, trick or false pretense, as a means of obtaining posses-
sion, and Ijad faith and intent at the time to defraud the seller. Mea/r&
V. Waples, 3 Iloust. (Del.) 581 ; Williams v. Davis, 69 Penn. St. 21 ;
Ila/rner v. Fisher, 58 id. 453. But insolvency and knowledge of it at

SALES. 631

the time of the sale are evidence for the jury with other facts of in-
tended fraud. Rodman v. TJialheimer, 75 id. 232. See Dow v.
Scmborn, 3 Allen, 181 ; Redington v. Roberts, 25 Vt. 686.

Where one obtains credit upon the recommendation of some third
party, whether written or verbal, he must be held responsible for the
extent of the recommendation, the same as if he had made it himself.
And if it be false in material points, and this be known to the buyer,
the seller may, upon obtaining knowledge of such falsehood, rescind
the sale and recover the goods so long as they remain in the hands of
the buyer, or are not passed from him upon any new and valuable con-
sideration. FitzsitnTnons v. Joslin, 21 Yt. 129. See Phelan v. Croshy,
2 Gill (Md.), 462 ; State v. Schulein, 45 Mo. 521.

If personal property is sold on condition that the title shall remain
in the seller until payment in full, by the buyer, of the purchase-money,
due in installments, a rescission of the contract by returning or offering
to return what has been paid on the contract of sale, is held to be a
condition precedent to the seller's right to sue for the property.
Ketchuin v. Brennan, 53 Miss. 596. See Dwinel v. Howard, 30 Me.
258 ; Monroe v. Reynolds, 47 Barb. 574 ; Buclienau v. Homey, 12
111. 336.

When the maker of an article takes it back after delivery, because
it remains unpaid for, the presumption is that the sale is rescinded,
unless there is some evidence to show an intent to take it for the pur-
pose of resale on the buyer's account, or otherwise not to discharge the
debt due for the price. Sloan v. Yan Wyek, 47 Barb. 634 ; S. C
affirmed, 4 Abb. Ct. App. 250. If the evidence is conflicting, it is a
question for the jury. Id. See also, Redmond v. Smock, 28 Ind.
365.

After a contract of sale has been rightfully rescinded by the seller on
account of the buyer's fraud, the contract is at an end and no act on the
part of the seller alone can revive it. Consequently, after such a rescis-
sion, the seller can maintain no action against the buyer on the contract.
And if he brings sucli an action, it will not, without judgment therein,
constitute a bar to an action in trover previously brought by the seller
against a third party who had received a portion of the property which
was the subject of the contract, from the fraudulent buyer. Kiniiey
V. Kiernan,-^^ N. Y. C4 Sick.) 164.

To justify a vendor in avoiding a sale of personal property and
retaking the same upon the ground of false and fraudulent representa-
tions, it is essential that such representations should have been made
to him, or for the purpose of being communicated to him. Hill v.
Carley, 8 Hun {^. Y.), 636; Van Kleeck v. Leroy, 37 Barb. 544; S.

632 SALES.

C. affirmed, 4 Abb. Ct. App. 479; 4 Abb. (N. S.) 431. If made to a
stranger without any intent to influence the vendor, they cannot be
made a pretext for avoiding a sale made by him in person. Id.

]^or can a sale to two persons jointly, who are not partners, be
rescinded by the seller upon the insolvenc}^ of one of the buyers, but
he must make an oifer of performance if the other be solvent. Solo-
mon V. Neidig, 1 Daly (N. Y.), 200.

§ 12. Rescission by buyer. It is well settled that where a sale of
goods is made under the false and fraudulent representations of the
seller, the purchaser may return, or offer to return the goods and avoid
the contract. Holbrook v. Burt, 22 Pick. 546 ; Phelps v. Quinn, 1
Bush (Ky.), 3Y5 ; Rlghter v. Roller, 31 Ark. 170 ; Yol. 3, tit. Frcmd.
An offer to return the goods will be as effectual to rescind the contract
as if the offer had been accepted. Barnett v. Stanton, 2 Ala. 181.
See also, Dill v. Camp, 22 id. 249 ; Smalley v. Hendrickson, 29 K.
J. Law, 371 ; Smith v. Smith, 30 Yt. 139. But where the purchaser
desires to rescind, upon the ground either of mistake or fraud, he
must, upon the discovery of the facts, at once announce his purpose
and adhere to it. If he be silent and continue to treat the property as
his own, he will be held to have waived the objection and will be as
conclusively bound by the contract as if the mistake or fraud had not
occurred. See McOulloch v. Scott, 13 B. Monr. (Ky.) 172; Thomas
V. Bartovj, 48 N. Y. (3 Sick.) 200 ; Jennings v. Broughton, .5 De G.,
M. & G. 139 ; Boughton v. Standish, 48 Yt. 594. This doctrine
applies peculiarly to speculative property which is liable to large and
constant fluctuations in value. Orijmes v. Sanders, 93 U. S. (3 Otto)
55. Moreover, the party seeking relief must appear to have exercised
reasonable diligence. Id. If the goods are valueless to both parties,
the buyer is relieved of the obligation to return them. Love v. Oldham,,
22 Ind. 51 ; Garland v. Spencer, 46 Me. 528 ; Christy v. Ctimmins, 3
McLean (0. C), 386.

There is held to be no legal distinction between the sale of a chattel
with warranty and the exchange with the same warranty, and if the
right of returning the chattel is superadded, the right to rescind the
contract is unquestionable. MilUr v. Grove, 18 Md. 242. But it is
not enough for the injured party to give notice to the other and call
on him to come and receive his goods ; he must himself return them
back to the party defrauding him before any right of action accrues.
Rutter v. Blake, 2 Ilai-. & J. (Md.) 355 ; Norton v. Young, 3 Me. 30.

The buyer is not only bound to rescind for fraud at the earliest
practicable moment, but he must rescind the contract wholly or not at
all {ShieUsv. Pettee, 2 Sandf. [N. Y.] 262; Morse v. Brackett, 98

SALES. 633

Mass. 205) ; he cannot retain either the whole or a part of the con-
sideration received under an entire contract. Canvphell v. Fleming, 1
Ad. & El. 40 ; Willoughby. v. Moulton, 47 N. H. 205 ; Buchenau v.
Homey, 12 111. 336. And the purchase of a specific number of pack-
ages of an article, at a given price per package, is held to be an entire
contract and cannot be rescinded bj the buyer as to some, and affirmed
as to others. Mansfield v. Trigg, 113 Mass. 350. But see Costigan
V. EawTchis, 22 Wis. 74.

A buyer who is entitled to rescind the contract for fraud, but who
delays doing so for the purpose of affording the seller, at his request,
an opportunity of attempting to make the thing sold of value and
satisfactory to the buyer, is not precluded by such delay from there-
after rescinding the contract. Powell v. Woodworth, 46 Yt. 378.

"Where the buyer has himself rendered a redelivery impossible, he
cannot, of his own motion, rescind a fraudulent sale. Clark v. Neuf-
ville, 46 Ga. 261.

§ 13. Mutual rescission. The contract of sale may be avoided by
mutual rescission at any stage thereof, and upon whatever terms may
be agreed upon between the parties ; provided, however, that all who
acquired rights under the sale acquiesce in the arrangement. See
Frazier v. Harvey, 34 Conn. 469 ; Morgan v. Bain, L. R., 10 C. P.
15 ; S. C, 11 Eug. R. 220 ; Smith v. Fidd, 5 Term R. 402. And it
is held that, although, by the terms of the contract, the buyer is not
entitled to return the goods, nor the seller to receive them, yet, if the
buyer do actually return the goods, and the seller do actually accept
them, unconditionally, the contract is rescinded by mutual agreement,
and the buyer may bring his action for money had and received, if the
price be paid. Id. ; Street v. Blay, 2 B. & Ad. 462 ; Thornton v.
Wynn, 12 "Wheat. 193. So, if the seller receive back the goods under
protest that he does not thereby disclaim his right to insist on perform-
ance by the buyer, or that he takes them " without prejudice;" but,
nevertheless, he undertakes to exercise acts of ownership over them,
the contract will be regarded as rescinded. Long v. Preston, 2 Moore
& P. 262 ; Story on Sales, § 419.

If the vendee in a contract of sale reserve the right to rescind within
a given time, on the lapse of that time, without a rescission, the sale
becomes absolute. Wilson v. Davis, 5 "Watts & Serg. 521. But where
both parties have taken a great deal of latitude in the performance of
the contract, without manifesting any intention to hold each other to a
strict and literal performance, neither can suddenly rescind for non-
compliance without a fair warning of an intention to insist upon a
Vol. Y.— 80

634 SALES.

literal compliance witli the coDtract in futuro. Forsyth v. North
American Oil Co., 53 Penn. St. 168.

§ 14. Illegality at common law. The contract of sale, like all
other contracts, is ordinarily wholly invalid, and cannot be enforced by
either party, when entered into for an illegal consideration, or for pur-
poses violative of good morals or prohibited by the law giver. See
Wallc&P V. Perlcms, 3 Burr. 1568 ; 1 Story's Eq. Jiir., § 296 ; Wine-
hrinner Y.Weisiger, 3 Monr. (Ky.) 35. Sales of an obscene book, -and
of indecent prints or pictures, are clearly illegal and void at common
law. Pojplett V. StochdaU, Ky. & Moo. 337 ; Fores v. Johnes, 4 Esp,
97. And the same has been held as it respects sales of clothes or goods
of any kind to a prostitute for the purpose of enabling her to carry on
her business of prostitution, and especially, if the seller expects to
be paid therefor from the wages of her sin {Pearce v. Brooks, L. E..,

I Exch. 213 ; Cowan v. Milbourn, 2 id. 230 ; Bagott v. Arnott, 2 Ir.
R. [C. P.] 1 ; Story on Sales, § 488) ; sales to an ahen enemy {Bran-
don v. Neslyitt, 6 Term R. 23) ; sales in aid of treason {Hanauer v.

Woodruff, 15 Wall. 439 ; Milner v. Patton, 49 Ala. 423) ; aad smug-
gling contracts of sale {Pellecat v. Angell, 2 Cr. M. & R. 311 ; Creeh-
moreY. Chitioood. 7 Bush [Ky.], 317), are likewise void by the common
law. Id. Certain contracts of sale are prohibited at common law as
being against public policy. Thus, contracts for the sale or transfer of
public offices or appointments, or the salary, fees, or emoluments of
office {Blachford v. Preston, 8 Term R. 89 ; Palmer v. Bate, 2 Br.
ife B. 670 ; Hunter v. Nolf, 71 Penn. St. 282 ; Gray v. Hook, 4 N. Y.
[4 Comst.] 449) ; contracts of sale in general restraint of trade {Homer
V. Ashford, 3 Bing. 328 ; Leighton v. Wales, 3 M. & W. 545 ; Whit-
ney V. Slayton, 40 Me. 224 ; Alger v. Thacher, 19 Pick. 51), and
contracts for the sale of law suits or interest in litigation, in certain
cases (see Pechell v. Watson, 8 M. & W. 691 ; Hutley v. Hutley, L.
R., 8 Q. B. 112 ; S. C, 4 Eng. R. 245 ; Scott v. Harmon, 109 Mass.
237 ; S. C, 12 Am. Rep. 685 ; Sedgwick v. Stantcm, 14 K. Y. [4
Kern.] 289), are all held to be void at common law, as being against
public policy. The same is held with respect to contracts of sale in
consideration of carrying or influencing public elections. Duke v. Asbee,

II Ired. (N. C.) 112 ; Martin v. Wade, 37 Cal. 168. See Winj)enny
V. French, 18 Ohio St. 469 ; Trist v. Child, 21 Wall. 441.

Formerly, the common law pronounced " forestalling, regrating, and
engrossing," to be contrary to public policy, and illegal. See 4 Bl.
Com. 148 ; Benj. on Sales (2d ed.), 414. But this narrow view of
trade is no longer entertained, and it is said, that " these three prohib-
ited acts are not only practiced every day, but they are the very life of

SALES. 635

trade, and without them, all wholesale trade and joijbing would be at
an end. It is quite safe, therefore, to consider that they would not now
be held to be against public poHcj." Story on Sales, § 490. jS^or are
contracts for the sale and purchase of " gold " or " stocks " void as
against public policy. Brown v. Speyers, 20 Gratt. (Va.) 296 ; Ajp-
jpleman v. Fisher, 3-1 Md. 540.

§ 15. Illegality by statute. The old distinction which formerly
obtained between contracts essentially criminal (mala in se), and those
which were prohibited by statute {rnala proJiihita), no longer exists.
See Hill v. Spear, 50 N.' H. 253, 277 ; S. C, 9 Am. Rep. 205. And
every contract made for or about any matter or thing, which is prohib-
ited and made unlawful by any statute, is a void contract, though the
statute does not mention that it shall be so, but only inflicts a penalty
on the offender; because the penalty implies a prohibition, though there
are no prohibitory words in the statute. Copte v. Roidands, 2 M. &: W.
149 ; In re Cork, etc.. Railway Co., L. E.. 4 Ch. App. 748 ; Aiken v.
Blaisdell, 41 Yt. 655 ; Lamed v. Andrews, 106 Mass. 435 ; S. C, 8
Am. Rep. 346 ; Marks v. Hapgood, 24 Me. 407. Among the classes
of sales whose illegality depends more especially upon legislation, may
be mentioned such as are made in violation of the acts against lotteries
{Deey v. Shee, 2 Term R. 617 ; Sunt v. Knickerhacker, 5 Johns. 327 ;
Rohj V. West, 4 N. H. 285) ; acts enforcing certain requirements as
to weights and measures {Tyson v. Thomas, McLell. & Y. 119 ; Libhy
V. Downey, 5 Allen, 299) ; and acts requiring licenses to deal in spirit-
uous and intoxicating hquors. Ritchie v. Smith, 6 C. B. 462 ; Rout-
well V. Foster, 24 Yt. 485 ; Butler v. Northuinberland, 50 IS.. H.
33 ; Bartemeyer v. Iowa, 18 Wall. 129 ; Dolson v. Hope, 7 Kans.
161. At common law, a sale made on Sunday was not void. Di'ui'y
V. Defontaine, 1 Taunt. 131 ; Batsford v. Every, 44 Barb. 618. But
it is otherwise by statute in England (see Bloxsome v. Williams, 3 B.
& C. 232 ; Smith v. Sparrow, 4 Bing. 84) ; and in most if not all the
States of the Union. See Pate v. Wright, 30 Ind. 476 ; Allen v.
Gardiner, 7 R. I. 22 ; Cranson v. Goss, 107 Mass. 439 ; S. C, 9
Am. Rep. 45 ; Sayre v. WJieeler, 32 Iowa, 559 ; Finley v. Quirk, 9
Minn. 194. And a note given for property sold on Sunday is held to be
invalid in the hands of the payee {Miller v. Lynch, 38 Miss. 344 ; Pope
V. Linn, 50 Me. 83; Slade v. Arnold, 14 B. Monr. [Ky.] 232); though
it seems not to be fully settled whether such a note is void in the hands
of an innocent indorsee. See Allen v. Deming, 14 N. H. 133 ; State
Capital Bank v. Thompson, 42 id. 369 ; Saltmarsh v. Tuthill, 13 Ala.
390. So, it is held that a contract for the sale of goods is not invalid
under the statute although commenced on Sunday, if not completed

636 SALES.

until another daj, nor if it merely grew out of a transaction -wliicli took
place on Sunday. Merrill v. Doimis, 41 N. H. 78 ; Luehhering v.
Oherkoetter, 1 Mo. App. 393; Goss\. Whitney, 24 Yt. 187; Butler v.
Lee, 11 Ala. 885. And a note, though signed on Sunday, may be
enforced, if delivered on some other day. Hill v. Diuiham, 7 Gray,
543 ; Hilton v. Houghton, 35 Me. 143. So, if the vendee has obtained
possession of the property sold to him on Sunday, with the assent of
the vendor, it is held that the title has passed, and that he may maintain
his possession under the void contract as against both the vendor and
his creditors. Allen v. Deming, 14 K. H. 133 ; Greene v, Godfrey,
44 Me. 25. But see Dodson v. Harris, 10 Ala. 566,

It has been repeatedly held that the mere knowledge of the illegal
purpose for which goods are purchased wall not affect the validity of the
contract of sale ; but that, in order to have such elf ect, there must be
some participation or interest of the seller in the act itself. Gaylord v,
Soragen, 32 Yt. 110 ; Hedges y. Wallace, 2 Bush (Ky.), 442 ; Banchor
V. Mansel, 47 Me. 61 ; Hxdjbard v. Moore, 24 La. Ann. 591 ; S. C, 13
Am. Eep. 128 ; Mahoodw Tealza, 26 La. Ann. 108 ; S. C, 21 Am. Rep.
546 ; Corning v. Ahhott, 54 N. li. 469. Mere knowledge, therefore,
on the part of the vendor, that his vendee at the time of the purchase
of property intends to use it for an illegal pui-pose, will not prevent
his recovering from the vendee the value of the property. Id. ; Web-
her V. Donnelly, 33 Mich. 469 ; Tracy v. Talmage, 14 K.Y. (4 Kern.)
162. But if the vendor does any thing beyond making the sale, to
aid the illegal scheme of the vendee, he renders himself particeps criin-
inis, and cannot recover for the price. Arnott v. Pittston, etc.. Coal
Co., 68 K Y. (23 Sick.) 558 ; S. C, 23 Am. Rep. 190. And see Pearce
V. Brooks, L. R., 1 Exch. 213 ; Tolman v. Johnson, 43 Iowa, 127 ;
Glass V. Alt, 17 Kan. 444. Thus, where the plaintiffs sold the defend-
ant goods, with the knowledge that she intended to make an unlawful
use of them, and to enable her to make such an unlawful use, by her
direction, put them up in packages in a convenient form for sales in
violation of the law, with labels thereon calculated to facilitate such
sales, it was held that the parties were in pai^i delicto, and that the
plaintiffs could not recover the price. Skiff v. Johnson, 57 IST. H. 475.

It may now be regarded as the settled doctrine of the courts in the
different States that a contract made in one State for the sale of goods,
the sale of which is valid there, and valid everywhere by common law,
must be held to be valid in the State to which the goods so sold are con-
signed, under the contract of sale, notwithstanding statutes forbidding
such sales within the latter State. Garland v. Lane, 46 N". H. 245 ;
Bligh V. James, 5 Allen, 107 ; Eoethke v. Philip Best Brewing Co.,

SALES. 637

33 Mich. 340 ; Bait v. MayUn, 52 Ala. 252 ; 2IcCarty v. Gordon, 16
Kan. 35 ; Suit v. Woodhall, 113 Mass. 391.

§ 16. Bights of bona Me purchasers. Where the owner of per-
sonal property parts with it, under a contract of sale which he has been
induced by fraud to make, the contract of sale, though not absolutely
void, is voidable at the election of the vendor. But this election must
be made before the fraudulent vendee sells to a hona fide purchaser;
for a title obtained by fraud, though voidable in the vendee, will be
protected in a Itona fide purchaser from such vendee, without notice.
Jennings v. Gage, 13 111. 610 ; Hidchinson v. Watkins, 17 Iowa, 475 ;
Kern v. Thurler, 57 Ga. 172 ; Sumner v. Woods, 52 Ala. 94. The
principle upon which the hona jide purchaser is protected is, that when
one of two innocent persons must suffer through the fraudulent act of a
third person, he who has voluntarily placed such third person in a position
to commit the fraud must be the sufferer. WMte v. Garden, 10 C. B.
919 ; Peasex. Gloahec, L. R., 1 P. C. 219 ; Williams^. Given, 6 Gratt.
(Va.) 268 ; BiUon v. Randall, 33 Me. 202 ; Hall v. HinTcs, 21 Md.
406 ; Sinclair v. Healy, 40 Penn. St. 417 ; Fassett v. Smith, 23 N. Y.
(9 Smith) 252. But if a party knows of the fraudulent intent of a
vendor, and buys with that knowledge, he is not a hona fide purchaser,
for he is knowingly helping the vendor to accomplish the fraud and do
the wrong. Phillies v. Reitz, 16 Kans. 396. And knowledge of
facts sufficient to excite the suspicions of an ordinarily prudent man,
and put him upon inquiry, is, as a general proposition, equivalent to
knowledge of the ultimate fact. Id.; GaraJiy v. Bayley, 25 Tex. Supp.
294 ; Cochran v. Stewart, 21 Minn. 435 ; Caldwell v. Bartlett, 3
Duer (N. T.), 341 ; Cooper v. Newman, 45 N. H. 339.

The protection which the law accords to the hona fide purchaser is
held not to extend to a case where the act of the party selhng to the
innocent purchaser, in obtaining the property, amounts to a felony. In
such case no right, either of property or possession, is acquired, and the
felon can convey none. Rowley v. Bigelow, 12 Pick. 306. Thus, by
a larceny of goods, the thief acquires no title thereto, and can confer
none on a person to whom he sells the same. And such person is Liable
to the owner of such goods for their value, without regard to his inno-
cence or good faith in making such purchase. BrecTxenridge v. McAfee,
54 Ind. 141 ; Mowrey v. Walsh, 8 Cow. 238 ; Dodd v. Arnold, 28 Tex.
97. It has, however, been held that in case of the sale and delivery by
the owner of personal property, although he may have been induced to
make such sale and delivery by fraudulent acts and representations of
the vendee, amounting to a felony hy statute, the vendee may convey a

^38 SALES.

good title to a hona fide purchaser. Cochran v. Stewart, 21 ]Viinn. 435.
And see Fassett r. Smith, 23 N. Y. (9 Smith) 252.

A lessee who stipulates that crops, etc., shall remain upon the farm,
and belong to the lessor until certain conditions are performed, can
convey no more title to them than he has, even to an innocent purchaser.
Gray v. Stevens, 28 Yt. 1.

So where, by the contract of sale of personal property, the possession
is given to the vendee, while the vendor retains the title until the pur-
chase-money, due in installments, is paid in full, the right of the vendor,
as reserved by the contract, will be protected against a hona fide pur-
chaser from the vendee, unless he has in some way waived the condition,
or done or suffered something to mislead the purchaser from his ven-
dee. Ketclium v. Brennan, 53 Miss. 596.

The recording of a bill of sale of personalty will not affect a purchaser
wit implied notice of the lien retained by the vendor. Mueller v.
Engeln, 12 Bush (Ky.), 4-11. And the rights of a purchaser of per-
sonal property from a tenant, after its removal from the demised prem-
ises, for a valuable consideration, as, in payment of a pre-existing debt,
is not affected by the fact that he knew there was rent due the landlord,
and that he was about to distrain for the same. Hadden v. Knicker-
locler, 70 111. 677 ; S. C, 22 Am. Eep. 80.

One wlio buys securities which are not delivered to him, making only
a nominal payment prior to his receiving notice of another's interest
therein, is held not to be entitled to protection as a hona fide -^xxxohsi^QV.
Haescig v. Brown, 34 Mich. 503.

The purchaser at a sale intended to defraud creditors, if free himself
from all responsibility for the fraud, is not affected, upon afterward
discovering the seller's fraudulent intent, even though he has not then
paid the purchase-money, and the notes given for it have not passed
beyond the control of himself and the seller, it not ajjpearing that he
alone could control the notes without the co-operation of the seller, or
that the latter could have been induced by him to cancel or surrender
the notes which were negotiable. Nicol v. Crittenden, 55 Ga. 497.
Il^or does an innocent purchaser become affected by the fraud of the
seller, though the property be attached in the purchaser's hands before
it is paid for, and before negotiable notes given for the price have passed
to innocent holders. Id.

§ 17. Defense of fraud in action by seller. See Yol. 3, tit. Fraud.
It is a well-settled doctrine, that the rule of ca/veat emp^orncver applies
to cases of fraud. Fraud is so abhorrent to the law that it vitiates every
contract, and gives to the party deceived the right to relief. See Irving
v. Thxjmas, 18 Me. 418 ; Jtts v. Alderson, 10 Sm. & M. (Miss.) 476.

SALES. 639

If the vendor represent propert}'- offered for sale as possessing certain
important qualities, whereby it is rendered more valuable, and by reason
of which the purchaser is induced to buy, and it turns out that tlie
property does not possess those qualities, the representation thus made
is fraudulent. Brown v. Tuttle, 60 Barb. 169. So, in case of wrong-
ful concealment, the exercise of force, and fraudulent conduct generally,
the doctrine of caveat emptor has no application. Paddock v. Strohridge^
29 Yt. 470 ; Manning v. Alhee, 11 Allen, 522 ; Reglna v. Kenrick^ 5
Q. B. 49 ; Kimhell v. Moreland^ 55 Ga. 164 ; French v. Yining, 102
Mass. 135 ; S. C, 3 Am. Rep. 440 ; Oakes v. Turquand, L. K, 2 H.
L. Cas. 325. If, however, the buyer sees the property before taking
possession, and has every opportunity to inspect the same, and no con-
cealment is used on the part of the seller, or representations made
respecting the quality, to induce the buyer not to examine the same?
the defense of fraud cannot be successfully interposed. Carondelet Iron
Works y. Moo?v, 78 111. 65. And see Bondurant v. Crawford, 22 Iowa,
40 ; Vandewalker v. Osmer, 65 Barb. 556 ; Lo7ig v. Wa7'ren, Q% K. Y.
(23 Sick.) 426. But the fact that a buyer had opportunity to inspect
the goods does not rebut his defense to a note given for the price, that
it was procured by false representations as to the cost of the goods.
Inspection enables a buyer to judge for himself as to quality and value,
but is no means of enabling him to guard against deceit as to cost.
McFadden v. Rohison, 35 Ind. 24.

§ 13. Defense of fraud in action by buyers. See ante, 610, § 3. It is
a rule in law and equity that fraud is not to be presumed, but must be
proved (see Yol. 3, 445, tit. Fraud) ; and where the question at law is,
whether a bill of sale was obtained by fraud, the facts attending its
execution, and from which the fraud is attempted to be deduced, must
be stated, and the jury, under instruction from the court, must deter-
mine whether or not they establish the fraud. Clinton v. Estes, 20
Ark. 216.

In order to entitle the vendor of goods to vacate the sale, and reclaim
the goods on the ground of fraud, it is not necessary that the fraudu-
lent representations be made at the time of the sale, as in case of a
warranty, which is part of the contract of sale ; but it is sufficient if
the goods be obtained by the influence and means of false and fraudu-
lent representations, though they were made on a previous occasion.
Sea/oer v. Dmgley, 4 Me. 306. See State v. Prison Keepers, 6 Phil.
(Penn.) 78. An allegation of fraud against the purchaser of goods for
cash will not be sustained by the circumstance of his having tendered
the plaintiff in payment some of the plaintiff's own overdue notes.
Foley V. Mason, 6 Md. 37.

640 SALES.

Wlien a vendor who has sold goods on credit, induced by the fraudn-
lent representations of the vendee, does not disaffirm the contract and
reclaim the goods as his own, but, on the failure and absconding of the
vendee, issues an attachment against him for the debt, and afterward
obtains judgment by confession against him, and seeks to enforce the
judgment by claiming an equitable lien on the goods sold, that is an
affirmance of the contract, and there is no principle on which the com-
plainant is entitled to that relief against prior judgment creditors of
the vendee when executions have been levied on the goods. Stoutenr-
hi/rgh v Konkle, 15 N. J. Eq. 33,

SCIRE FACIAS. 641

CHAPTER CXX.

SCIRE FACIAS.
ARTICLE I.

OF SCraE FACIAS IN GENEBAL.

S^ection 1. Definition and nature. A scire facias is deemed a
judicial wi'it, founded on some matter of record. Chestnut v. Chestmit,
77 111. 346 ; WalJcer v. Wells, 17 Ga. 547 ; Bentley v. Sevier, 1 Hemp.
249. Public records to which the writ is applicable are of two
classes, judicial and non-judicial. Judicial records are of two kinds,
judgments in former suits, and recognizances which are of the nature
of judgments. 2 Bouv, Law Diet. 499. "When the writ is founded
upon a judgment it is merely the continuation of a former suit to exe-
cution. Brown v. Harley, 2 Fla. 159; Hopkins v. Howard, 12 Tex.
7 ; Blachwell v. The State, 3 Ark. 320 ; 2 Bouv. Law Diet. 499. So
the affidavits upon motion for a sci.fa. on a judgment against a share-
holder in a railway company, are properly entitled in the original
action. Edwards v. Kilkenny, etc.. Railway Go., 3 C. B. (N. S.) 786 ;
Same v. Same, id. 787. When founded on a recognizance, its purpose
is, as in case of judgments, to have execution ; and though it is not a
continuation of a former suit, as in the case of judgments, yet, not
being the commencement and foundation of an action, it is not an
original, but a judicial writ, and at most is only in the nature of an
original action. 2 Bouv. Law Diet. 499 ; Blaclcwell v. The State, 3
Ark. 320. But, though generally it is termed a judicial writ, it is
classed and recognized by all the authorities as an action. Kirkland
V. Krebs, 34 Md. 93 ; Winter v. Kretchman, 2 T. R. 46 ; Gedney v.
Commonwealth, 14 Gratt. (Va.) 318 ; Bentley v. Servier, 1 Hemp.
249. The writ in practice very often serves in the double capacity of /
process and declaration, and is in many respects amendable. Gedney \
V. Co?nmonwealth, 14 Gratt. (Ya.) 318. It is an action to which the
party may plead. S Bac. Ab. 598 ; Bentley v. Servier, 1 Hemp. 249.
But not being an original action, in Texas it need not be preceded by
petition. Hopkins v. Howard, 12 Tex. 7. "When sci7'e facias is
brought to enforce the payment of money, it must be for a specific
Vol. Y.— 81

642 SCIKE FACIAS.

sum, or jDerliaps in addition thereto, interest or exchange as an incident
to the debt. Chestnut v. Chestnut, 77 IlL 346.

Non-judicial records are letters patent and corporate charters. The
writ, when founded on a non- judicial record, is the commencement
and foundation of an original action, and its purpose is always to re-
peal or forfeit the record. 2 Bouv. Law Diet. 499 ; Miller v. Twitty,
3 Dev. & Batt. 14. A State may by scire facias repeal a patent of
land fraudulently obtained. Carroll) s Lessee v. Llewellin, 1 Harr. &
McH. (Md.) 162 ; Sevier v. Hill, 2 Overt. (Tenn.) 37. A sci. fa.
will lie to repeal the grant of a franchise where the owner has neglected
his duty. Peter v. Kendal, 6 B. & C. 703, Scire facias is also used
by government as a mode to ascertain and enforce the forfeiture of a
corporate charter, where there is a legal existing body capable of acting,
but who have abused their power ; it cannot like a quo warranto (which
is applicable to all cases of forfeiture) be applied where there is a body
corporate de facto only, who take upon themselves to act, but cannot
legally exercise their powers. 2 Bouv. Law Diet. 499.

A scire facias upon a municipal claim is an original, not a judicial
writ, and does not necessarily issue from the court in which the claim
is filed. Schenley v. Commonwealth, 36 Penn. St. 29.

A sci. fa. issued upon a recognizance for the appearance of a de-
fendant to answer to a criminal charge performs the ofiice of a declar-
ation as well as a process, and a default admits the facts alleged in
the writ. A law which provides for issuing a sci. fa., upon the for-
feiture of a recognizance, against the principal and his surety, to show
cause why judgment should not be entered, etc., and for rendering a
judgment, by default, upon the return of such sci. fa., that the de-
fendants cannot be found, unless they appear and defend, is not in
contravention of the letter or spirit of the constitution. Rietzell v.
People, 72111.416. Where the United States circuit court has jurisdic-
tion of a cause and of the parties thereto, and has authority by laws of
congress to issue a writ of sci. fa. on the judgment in the action, the
8ci. fa. is not a new action, but a continuation of the old one. Notice
thereof must be given to the defendant before judgment thereon can be
legally entered. But as no form of notice is prescribed by law, if the
notice given to a defendant out of the district where the court is held is
actual, personal and seasonaljle, although not in any form ordered by
the court, and proved merely by the affidavit of an officer, not taken in
his official capacity, yet adopted by the court as sufficient, the judg-
ment rendered must be deemed valid, and an action thereon in a State
court sustained. Comstoch v. Tlolhrooh, 82 Mass. 111.
§ 2. In what cases a proper remedy. Scire facias lies to revive

SCIRE FACIAS. 643

a judgment iu a real action, by the common law of Maine {Proprie-
tors Ken. Pur. t. Davis, 1 Me. 309) ; to vacate a satisfaction im-
proj)erly entered on a judgment or execution {Arnold v. Fuller, 1
Ham. 458) ; in Kentucky since the statute authorizing executions to
issue upon decrees in chancery, to revive a decree {Logan v. Cloyd, 1
A. K. Marsh. 201) ; to obtain execution against the indorser of an
original writ, in case of the avoidance or inability of the plaintiff, for
the costs which the defendant may recover of the plaintiff on his fail-
ing in his action. Miller v. Washhurn, 11 Mass. 411 ; How v. Codman,
4 Greenl. 79 ; Merrill v. Walker, 24 Me. 237. It may be maintained
in such case without proving a prior aiTest of the judgment debtor on
the execution, or the return of the execution, into the clerk's office.
Davis V. Whithead, 1 AUen, 276. It lies on a recognizance to the
Commonwealth, or to a party, if the recognizance be duly entered of
record in the proper court ha\ang competent jurisdiction, Common-
vnealili v. Green, 12 Mass. 1. It lies to have execution of debts of
record only. Davis v. The Commonwealth, 4 Monr. 113. So it is
the proper process to enforce payment of arrears of alimony. Morton
V. Morton, 4 Cush. 518. But it will not lie upon the record of an
order for the payment of ahmony pending a suit for divorce, when
a resort to evidence dehors the record would be necessary to ascertain
the amount due. Chestnut v. Chestnut, 77 111. 346. It lies after the
affirmance of judgment on certiorari, on the recognizance to prosecute.
Register v. Layman, 5 Harring. (Del.) 349. It lies to revive a judg-
ment although a previous execution has issued, in every case where
the whole debt has not been levied. Stille v. Wood, Coxe (iST. J.),
118. Under the statute of Illinois it does not lie to foreclose a mort-
gage not duly acknowledged. Kenosha, etc., R. R. Co. v. Sperry, 3
Biss. 309. By the act of congress of February 21, 1793, ch. 11, pro-
cess in the nature of a scire facias, founded on a record to be made of
the preliminary proceedings, is prescribed as the mode for repealing
letters patent. Ex parte Wood, 9 Wheat. 603 ; 1 Kent's Comm. 381.
§ 3. On judgments between the parties. When founded on a
judgment, the purpose of the scire facias is either to revive the
judgment which because of lapse of time is presumed in law to be
executed or released, and therefore execution on it is not allowed with-
out giving notice by scire facias to the defendant to come in and show
if he can, by release or otherwise, why execution ought not to issue ; or
to make a person, who derives a benefit by or becomes chargeable to
the execution, a party to the judgment, who was not a party to the
original suit. 2 Bouv. Law Diet. 499. In both these cases it is a continua-
tion of the former suit and not an original proceeding. Wolf v, Pouns-

644 SCIEE FACIAS.

ford, 4 Ham. 397; Pickett v. Pickett, 1 How. (Miss.) 267; Ryder ^r.
Glover, 3 Scam. 547 ; Treasurer v. Foster, 7 Yt. 52. At common
law an execution cannot be issued after a year and a day have elapsed
since judgment, unless a sci.fa. be issued. Manufacturers' Batik v.
Frederickson, 2 Miles, 70 ; 8 Bac. Ab. 600 ; TJiompson v. Dougherty,
3 J. J. Marsh. 564. So, too, if the plaintiff does not sue out execution
on a scire facias to revive a judgment within a year and a day, he
must revive it again. Yanderheyden v. Gardenier, 9 Johns. 79. But
if execution have issued within a year and a day after judgment, an
alias may be taken out without a scire facias to revive the judgment.
Pennock v. Hart, 8 Serg. & Rawle, 377 ; Durdop v. Spear, 3 Binn.
169. And where an execution is delayed for more than a year and a
day, at the request, or with the consent of the defendant, or by an in-
junction out of chancery, obtained by the defendant, the plaintiff may
take out execution without a previous scire facias. United States v.
Hanford, 19 Johns. 173 ; Michell v. Cue, 2 Burr. 660. A judgment
for costs, obtained by a defendant, may be revived by a scire facias
although execution has been issued and no return made. Stew-
o/rt V. Peterson, 63 Penn. St. 230. But it will not lie to revive
a judgment confessed before a clerk who was not at the time au-
thorized to receive the confession of judgment. Phelps v. Haw-
kins, 6 Mo. 197. And if an original judgment be reversed, a
judgment upon scire facias to revive it cannot be supported. Mills
V. Conner, 1 Blackf. 7. So, too, if the original judgment appears
of record satisfied. Cowan v. Shields, 1 Overt. (Tenn.) 64. A scire
facias does not apply to judgments entered by confession under a
warrant of attorney, but only to actions and judgments thereon by
default, confession, or demurrer under the statute of 8 & 9 Will. 3.
Jones V. Dilworth, 63 Penn. St. 447.

The lien of a judgment against two persons may be continued against
one by an amicable scire facias. Edwards' Appeal, ^'o Penn. St, 9.
But the return of " unsatisfied " made before the return day upon an
execution against the principal defendant, will not authorize the issuing
of a writ of scire facias after the return day against the person ad-
judged trustee. Austin v. Goodale, 58 Me. 109.

A decree rendered against an administrator, on a settlement of his
administration, cannot, under the laws of Alabama, lie revived, \)j scire
fanrias, in favor of a distributee of the estate, against the personal rep-
resentative of such administrator; and such a proceeding will be
(piashed on appeal. Hurst v. Williamson, 42 Ala. 296. An agree-
ment entered into prior to the date of a judgment, as to the mode of
its discharge, but which was not to be executed until afterward, and

SCIRE FACIAS. 645

all payments made in pm-suance of such agreement are admissible in
evidence in support of the plea of payment and satisfaction to a scire
facias to reviv^e the judgment. Downey v. .Forrester, 35 Md. 117.

Where the plaintiff in a judgment has actual notice that land which
his judgment binds has been sold and issues a sci. fa. to revive his
judgment, the writ must be served upon the vendee as terre tenant,
although the vendee may not have taken possession of the land, or
put his deed of record. McCray v. ClarJi:, 82 Penn. St. 457. See
Smith V. Winsto7i, 2 How. (Miss.) 601.

The renewal of a judgment in Pennsylvania by scire facias, with-
out service, only keeps in force the local lien and does not constitute a
new judgment against the person so as to prevent the operation of the
statute of hmitations. Evans v. Reed, 2 Mich. (N, P.) 212.

§ 4. Against heirs, devisees, etc. Scire facias is the proper
remedy to revive a judgment against an ancestor so as to compel his
heirs at law to satisfy it out of lands descended from the ancestor to
them. Commercial Bank of Manchester v. Kendall, 13 S. & M.
278 ; Wood v. Harrison, 1 De^^ & Batt. 356. See Wood v. More-
house, 45 N. r. (6 Hand) 368. But the proceeding by sci. fa. will
not lie against a devisee of the land unless the devisee is also the heir
at law, Ogden v. Smith, 14 Ala. 428. And neither heir, de^asee or
terre tenant is affected by scire facias to revive a judgment against an
ancestor or testator, unless made a party. Campbell v. Rawdon^ 19
Barb. 495 ; Lusk v. Davidson, 3 Pen. & W. 229.

To a scire facias to revive a judgment in ejectment, it is not neces-
sar}^ to make the executors or administrators of deceased defendants
parties. Wcdden v. Craig, 14 Pet. 147. But it must issue against
the heirs of the deceased, the terre tenant and the survivor. Griffith
V. Wilson, 1 J. J. Marsh. 209. If the administrator of the deceased
defendant be in possession of the land and refuse to surrender, he may,
as terre tenant, be made a party to the scire facias, and styling hun
administrator will not vitiate. Thompson v. Dougherty, 3 J. J.
Marsh. 564. If heirs are brought into court by sci. fa. under the
statute to show cause why they should not be made parties to a judg-
ment, it will be necessary to prove up the case against them de novo.
Cox V. Reed, 27 111. 434.

Where judgment is rendered against several and one of them died
before execution, his representatives may be proceeded against jointly
with the survivors in sci. fa., and although the deceased was liable only
as surety. Zanesville Canal <& Man. Co. v. Granger, 7 Ham. (Part
Ist), 165. In order to make the representatives parties, it must desig-
nate them by name, and state in what capacity they are representatives.

646 SCIEE FACIAS.

Caller v. Malone, 1 Stew. & Port. 305. A joint scire facias may be
maintained against tlie heirs and personal representatives of a deceased
co-obligor in a replevin bond. Calloioay v. Eubank, 4 J. J. Marsh.
280. Also against a surviving obligor and such representatives. Id.

"Where a writ of scire facias has been issued against the heirs of a
defendant, and they have appeared and pleaded, it is too late to take
advantage of the failure of the plaintiff to serve them with a copy of
the declaration. Legal service is not complete until a copy is served,
but their appearance waives the objection. Tripp v. Potter, 11 Ired.
121.

§ 5. Reviving decree in chancery. Although scire facias will not
issue to revive a decree in chancery, yet where a decree was rendered
by a probate court, but not satisfied before the transfer of the jurisdic-
tion of the probate court to one in chancery, that writ is the proper
remedy to revive the decree. Isom v. McGhee, 45 Miss. Y12. In
Kentucky, since the statute authorizing executions to issue upon decrees
in chancery, sci. fa. is the proper means of reviving a decree. Logan
V. Cloyd, 1 A. K. Marsh. 201.

§ 6. Renewing execution. A scire facias founded on a previous
judgment between the same parties, to obtain a new execution, is a
wi'it on which process by attachment may issue. Ensworth v. Daven-
port, 9 Conn. 390. See Steward v. Allen, 5 Me. 103. In Yermont,
scire facias is not the appropriate remedy to obtain a new execution
when the former one has been levied upon real estate in a defective
manner, especially where the defect does not appear upon the face of
the levy. Roijce v. Strong, 11 Yt. 248.

§ 7. Foreclosing a mortgage. Scire facias on a mortgage under
the Pennsylvania act is original process provided for on the default of
the mortgagor, and lies on all mortgages, recorded or unrecorded.
Tryon v. Munson, Y7 Penn. St. 250. Under ^he Illinois statute it
applies only to mortgages duly executed and recorded. Kenosha, etc.,
B. B. Co. V. Sperry, 3 Biss. 309. The monthly return days of the
Pennsylvania acts apply to all civil process, including a sci. fa. sur
mortgage, which may be returnable on any legal return day whether
intermediate or not ; and an alias sci. fa. sur mortgage, may be return-
able to an intermediate return day, and judgment taken by default, as
in case of summons, unless specially otherwise provided. Haupt v.
Damie, 79 Penn. St. 238. The actual custody or manual possession of
a mortgage is not essential to issuing a 5a>6/aCT<^s upon it. The right
of a party to issue his scire fmias, and to proceed to trial on the mort-
gage without its actual custody, or when satisfaction appears to have
been entered on tlie record, is distinguishable from the effect of non-

SCIEE FACIAS. 64T

production, or of such an entry as evidence in the trial of the cause.
Otherwise the door would be shut against the mortgagee when he has
been deprived of his paper by wrong, or has been the victim of fraud
or forgery. Lancaster v. Smithy 67 Penn. St. 427.

§ 8. Recognizances or statutes. Scire facias lies on a recognizance,
to the Commonwealth or to a party, if the recognizance be duly entered
of record in the proper com*t having competent jurisdiction. Comraon-
wealih v. Green, 12 Mass. 1 ; Bishajy v. Drahe^ Kirby, 378 ; Howell v.
March, 1 Mo. 182. When certified into the district court pursuant to
Col. Rev. Stat, a recognizance taken by a justice of the peace becomes
matter of record ; and, upon forfeiture, the proper remedy to obtain
execution thereof is by scire facias. Chase v. People, 2 Col. T. .528.
Service upon any one of several cognizors is sufficient to warrant award
of execution as to him, although otherwise not found. People v. lyfel-
lor, 2 Col. T. 705. A writ of sci.fa. upon a forfeited bail bond must
show when, where, and by what authority it was taken, and correctly
describe it. Cushman v. State, 38 Tex. 1 81 ; Frost v. Reynolds, 2
Dana, 94. A scire facias on a recognizance is merely a continuation
of an existing proceeding to enforce the collection of a debt confessed,
and, if enough appears from the record and files of the court to entitle
the State to execution, any errors or omissions in the writ will be dis-
regarded on demm-rer thereto. State v. Heed, 62 Mo. 559. Where
there are several recognizors there may be one writ of sci.fa., one judg-
ment, and one execution. State v. Stout, 6 Halst. 124.

An entry by the solicitor-general upon the original sci. fa. upon a for-
feited recognizance, that he had "received 85 as his cost, the defendant
having appeared in court," is no discharge of the bond, nor any suspen-
sion of the proceedings to take final judgment on the same. Williams
V. Jenkins, 53 Ga. 166.

§ 9. Effect of. The object and effect of proceeding by scire facias
is not to render a new judgment for a debt, but to continue, where it
has not expired, or re-invest when it has, the lien created by statute.
Hanly v. Adams, 15 Ark. 232.

§ 10, Jurisdiction of court. When founded on a judicial record,
the writ of scfire facias must issue out of the court where the judgment
was given or the recognizance entered of record, if the judgment or
recognizance remains there ; or if they are removed out of the court,
where they are. Dickinson v. Allison, 10 Ga. 557 ; Gibson v. Davis,
22 Yt. (7 Washb.) 374 ; Osgood v. Thurston, 23 Pick. 110 ; The People
V. Corey, 19 Wend. 633 ; Cowden v. Stevenson, Wright, 116 ; Boylan
V. Anderson, 2 Penn. (N. J.) 529. And this rule holds regardless
of the defendant's residence. Perkins v. Hume. 10 Tex. 50 : Dick-

648 SCIRE FACIAS.

iTison V. Allison, 10 Ga. 557 ; Fowler v. Thumnond, 8 Eiig. (13 Ark.)
259. By statute in certain States the rule may be changed. Thus in
Vermont the supreme court may issue the writ. Shumway v. Sargecmt^
27 Yt. 440. In Pennsylvania it lies in the common pleas on a recogniz-
ance taken in the quarter sessions. Bodine v. Commonwealth, 24 Penn.
St. 69. The circuit courts of the United States have original jurisdic-
tion and exclusive authority to declare a patent void. Act of Congress
of July 4, 1836; 2 Kent's Comm. 368; Gibson v. Woodworth, 8 Paige's
(N. y.) Ch. 132. But see Mayer v. Fotdkrod, 4 Wash. C. C. Rep.
191. Where a bond for the jail Hberties is taken and duly returned and
enrolled, the district court has jurisdiction of a petition, in the nature
of a scire facias, upon such bond. Gamphell Y.Hadley, 1 Sprague, 470.

§ 11. Within what time. At common law, if no execution was
ever issued on the judgment, and a year and a day have elapsed since
the dissolution of the injunction to the judgment, a scire facias may
be sued out to revive the judgment. Thompson v. Dougherty, 3 J. J.
Marsh. 564 ; Pollard v. Pollard, 4 Monr. 359 ; 2 Bouv. Law Diet.
499 ; Putland v. Newman, 6 M. & S. 179 ; Lewis v. Smith, 2 Serg.
& Pawle, 142. But this rule in many States has been changed by
statute. Davidson v. Thornton, 7 Barr. 128 ; Shackelford v. Miller,
18 Ala. 675 ; Johnson v. Burrell, 2 Hill, 238.

§ 12. Leave of court. Where an execution is retm*ned satisfied by
a sale of personal property which, it afterward appears, did not belong
to the debtor, and the creditor thereupon refunds the money, he is
entitled as of right to sue out a writ of sci. fa. on his judgment, with-
out first applying therefor to the court. Wilson v. Qreen, 19 Pick.
433. But where an execution has been levied on lands not belonging
to the judgment debtor, the creditor cannot sue out a scire facias on
the judgment as a matter of right, but must first petition the court
from which the execution issued, who may grant or refuse the writ, at
their discretion. Kendrick v. Wenimorth, 14 Mass. 57. And where
a judgment is of fifty years' standing, a sci. fa. issued upon it without
permission of the court will be quashed. Pears v. Bache, Coxe (N.
J.), 207. In Kentucky, it is not necessary to obtain leave of the court,
before issuing a sci. fa. to revive a judgment although it be ancient.
Edwards v. ColemoAi, 2 A. K. Marsh. 249. In Pennsylvania, leave
of court need not be obtained for issuing sci. fa. quare executionem
nan to prove a judgment more than thirty years old. Ghamhers v.
Carson, 2 Whart. 365. In Illinois, in an action against two, where
service was made upon one only, and judgment taken against him,
and there is no return as to the other, a scire facias may issue against

SCIRE FACIAS. 649

that other at any time, without the order of the court. Tiffany v.
Breese^ 3 Scam. 499.

§ 18. Who to be plaiiitiflf. A scire facias to revive a judgment
can only be maintained in the name of the original plaintiff, or, after
his death, in the name of his personal representative. McKinney v.
MeJiaffey, 7 Watts (fc Serg. 276. And where a party dies pending a
suit, a sci. fa. to revive it may, in Alabama, by statute, issue at any
time to his personal representative. Farley v. Nelson.^ 4 Ala. 1S3. In
Connecticut a party for whose benefit a recognizance is taken may have
a sci. fa. upon it, whether he be the conusee or not. Bishoj) v. Brake^
Kirby, 378. Sci. fa. upon a paid bond should be brought in the name
of the sheriff, unless the bond had been assigned by the sheriff to the
plaintiff. Priest v. Whitelow., 1 Mo. 259. A restitution of possession
by sci. fa. is allowable ; but all persons appearing by the record to
have been e\'icted should be plaintiffs. Smith v. Mitchell, 1 J. J.
Marsh. 270. "Where d^sci. fa. has been issued, after judgment, by one
legatee, against the official ^bond of an executor, such sci. fa. does not
inure to the benefit of other legatees ; they must issue each for himself,
a sci. fa. Arrison v. Commonwealth, 1 Watts, 374. An assigned
judgment which has become dormant may be revived by sci. fa. in
the name of the original plaintiff, for the use of the assignee. Ma/yor
of Macon Y. Trustees of Bihh County Academy, 7 Ga. 204.

§ 14. Who to be defendants. If a judgment has been recovered
against two or more, the proceeding to revive it must be against all
jointly, unless one of the defendants be dead. Bolinger v. Fowler, 14
Ark. (1 Barb.) 27 ; Orenell v. Sharp, 4 Whart, 344 ; Blair v. Parker,
6 J. J. Marsh. 630 ; Coleman v. Edwards, 2 Bibb, 595. Where a
principal and surety have entered into one recognizance, though sev-
erally, they may both be joined in one sci. fa. to show cause against
the award of execution for their several indebtedness. Chumasero v.
People, 18 111. 405. When one of two judgment debtors is dead, the
judgment cannot be revived by sci. fa. against the survivor alone. It
must at the same time be revived against the representatives of the
deceased. Austin v. Reynolds, 13 Tex. 544. It will not he against
the personal representative of a deceased defendant in a joint judg-
ment, although it may be suggested in the writ that a surviving de-
fendant in the same judgment is utterly insolvent. Stoner v. Stro-
onan, 9 Watts & Serg. 85. In a suit of sci. fa. to revive a judgment,
after the death of the defendant, which judgment constitutes a lien
upon real estate, the heirs, terre tenants, and administrator are prop-
erly joined as defendants. Reynolds v. Henderson, 2 Gilm. 110;
Chahoon v. Eollenhack, 16 S. & H. 425; Morton v. Grogho/n, 20 Johns.
YoL. Y.— 82

650 SCIRE FACIAS.

106. And to continue the lien of a judgment upon land that has been
sold, the terre tenant should be made a party to the sci. fa. Lush
V. Dcovidson., 3 Pen. & W. 229. In scire facias on a judgment for
the possession of land, there may be brought in as defendant with the
original defendant any one who is in possession by grant from him
since the judgment. Von Puhl v. Rucker^ 6 Clarke (Iowa), 187.

The administrators and heirs of a decedent are properly joined as
defendants, in a sci. fa. to revive a judgment against him. Grames v.
SJceels, 6 Ind. 107. But it is held in ]^ew York that in an action in
the nature of a sci. fa.^ to revive a judgment and obtain execution
against the property of a deceased judgment debtor, his personal rep-
resentatives and heirs-at-law cannot be joined as co-defendants. Strong
V. Lee, M How. (K Y.) Pr. 61 ; S. C.', 2 T. & C. Ml.

The assignee of an expired corporation mortgagor may defend in an
action of scire facias on the mortgage. KisterhocTc v. Building Assoc.
7 Phil. (Penn.) 185. A joint sci. fa. may be maintained upon a sev-
eral recognizance, but judgment should be rendered to have execution
according to the effect of the recognizance. Madison v. Common-
wealth, 2 A. K. Marsh. 131.

A person named in the original suit, but not then served with pro-
cess, cannot, by sci. fa., be made a party defendant to the judgment
therein, if it be apparent from the record that judgment could not
have been legally rendered against him in that suit, had he been served
with process. Clinton Bank v. Hart, 19 Ohio, 372.

§ 15. Form and complaint, etc. The pleadings in scire facias are
peculiar. The writ recites the judgment or other record, and also
the suggestions which the plaintiff must make to the court to entitle
him to the proceeding by scire facias. The writ, therefore, presents
the plaintiff's whole case, and constitutes the declaration, to which the
defendant must plead. Lasselle v. Godfrey, 1 Blackf. (Ind.) 297.
The plaintiff may dispense with a declaration, but, in case of such
election, he must set out in the writ all that would be essential in a
declaration to authorize a recovery. Toulmin v. Bennett, 3 Stew. &
Port. 220. A scire facias which fails to state every thing necessary
to justify a final judgment in default of answers is defective ; it should
state enough to answer the purpose of a petition and writ of citation.
Brovm v. State, 43 Tex. 349 ; Prather v. Manro, 11 Gill & Johns.
261 ; Mc Vicka/p v. Ludlow, 2 Ham. 246. It is sufficient if it contain
such recitals as will point to the judgment, intended to be revived,
with such certainty that the defendant must know what judgment is
meant. Ward v. Prather, 1 J. J. Marsh. 4. If the object is to ob-
tain execution of a judgment or recognizance, there must be a prayer

SCIEE FACIAS. (_

for execution. If the condition of the recognizance be set forth, a
breach must be shown. Hicks v. The State^ 3 Pike, 313 ; Randolph,
V. Brown^ 2 Yirg. Cas. 351. A scire facias w^ona, criminal recogniz-
ance serves the double office of process and declaration ; as process, it
should run in the name of the people ; as declaration, it should show
by recital or by proper avennents that the recognizance was legally
matter of record {Shadley v. People^ 17 111. 252) ; it should describe
the offense to answer for which the recognizance was taken {State v.
Brown^ 41 Me. 535) ; it should show that the recognizance was trans-
mitted to the proper court {Sirrvpson v. Commonwealth, 1 Dana, 523 ;
Conner v. People, 20 111. 381) ; it should aver that the recognizance
was taken by a person authorized to take it {Madison v. Common-
wealth, 2 A. K. Marsh. 131) ; and that it was returned to the clerk of
the com-t in which it is prosecuted. Id.

On a sci. fa. to revive a judgment nothing can be pleaded that
might have been pleaded in the original action. Riley v. McCord, 2-4
Mo. 265; McFarlan v. Irwin, 8 Johns. 77 ; Cardesa v. Humes, 5 S. &
K 65.

When a sci. fa. is defective, the court, in the exercise of its discre-
tion, may permit the plaintiff in error to take out a new process, re-
turnable at a subsequent day in the term, or at the term next ensuing.
Tandy v. Rowell, 54 IST. H. 384 ; Thompson v. Dougherty, 3 J. J,
Marsh. 564. A sci. fa. on a judgment, recited as " being the penalty of
a certain bond," etc., but not stated as the amount actually due, does not
set forth a j)erfect judgment nor contain a sufficient statement against
co-sureties. Such defects can be taken advantage of by motion in
arrest. McKnew v. Duvall, 45 Md. 501. In McCrachen v. Swartz,
5 Oreg. 62, the requisites of a declaration or verified motion in a pro-
ceeding in the nature of sci. fa., to compel the payment of alimony,
are considered.

When scire facias is used to forfeit a coi*porate charter, all the causes
of forfeiture must be assigned in distinct breaches in the writ, as on a
bond with a condition is done in the declaration or replication. 2 Bouv.
Ins. 470, 679. A scire facias to revive a judgment, as to costs, against
an administrator, the damages having been paid, is sufficient if it sub-
stantially describe the judgment, although it does not state the amount
of the costs. Barron v. Tai't, 19 Ala. 78.

§ 16. Defeuses. The only defenses to a scire facias to revive a
judgment are satisfaction and md tiel record. Davidson v, Tlwrnton,
7 Barr. 128. The object is to make a new party to the judgment, and
charge him with the duty of making satisfaction, and he cannot set up
any defense which existed anterior to the original judgment, and which

652 SCIKE FACIAS.

mio-ht have been pleaded in bar of the original action. Pollard v.
Ecliford, 50 Miss. 631 ; Ferebee v. Doxey, 6 Ired. 448 ; Moore v. Ga/r-
rettso7i, 6 Md. 444 ; Bell v. Williams, 4 Sneed (Tenn.), 196. Irregu-
larities or errors which might be sufficient to reverse a judgment on
writ of error cannot avail as a defense to scire facias. Langston v.
Ahney, 43 Miss. 161. So, on the trial of a scire facias to revive a dor-
mant judgment, evidence that the note on which the judgment was
founded was paid before the rendition of the judgment, is inadmissible.
Camp V, Baker, 40 Ga. 148. But when payment of the judgment
itself is pleaded, it is error for the court to withdraw the case from the
jury, when the e^ddence tendered in support of the plea is such that
the verdict rendered thereon could not be set aside as being unsupported
by evidence. Hartman v. Alden, 34 IST. J. Law, 518. For a deter-
mination of the defenses allowed by the laws of Texas to a scire facias
on a forfeited bail bond, and the proper mode of proceeding to make
them available, see McCoy v. State, 37 Texas, 219.

It is no defense to a scire facias to revive a judgment at law against
the second indorser of a note, that the first indorser had enjoined the
execution of the judgment, by bill, afterward dismissed, and that the
judgment creditor recovered judgment on the injunction bond, nor
would these facts alone entitle the prior indorser to any relief in equity.
Love V, Allison, 2 Tenn. Ch. 111.

A scire facias was issued on a judgment against two persons, and
returned ^'sci?'efeci''^ as against one, and not served as to the other. A
second writ was then issued, which recited the judgment against both
defendants, but contained no clause of scire facias against either, and
was proceeded with only as against the terre-tenQjit of the one not
served before. No mention was made therein of the previous writ,
nor was any reason assigned for not proceeding against both defendants
and the terre-ten?int& of both. On joinder in demurrer to the latter
writ, judgment was ordered to be entered in favor of the defendant.
Bowie V. ])^eale, 41 Md. 124.

§ 17. Plea or anSAver. A scire facias to revive a judgment is an
action to which the defendant may plead. Iliihhard v. Bolls, 7 Ark.
442. To a writ of scire facias against bail, where the bail-bond has
not become a part of tlie record by oyer or by plea of non est factum,
the i:>lea of md tiel record does not put the bond in issue, and it can
only be brought in issue by a plea of non est factum. Hamlin v. Mc-
Neill, S Ired. 172. In Texas the answer to scire facias u])on a for-
feited bail-bond need not be sworn to. Odlorne v. State, 37 Texas, 122.
And where the forfeited recognisance had been given for the forthcom-
ing of the prisoner, where the answer alleges that prior to the taking of

SCIEE FACIAS. 653

the forfeiture the defendant had delivered the prisoner to the county
sheriff who accepted the surrender, that allegation is sufficient. It is
unnecessary to allege any thing as to the payment of costs. Nor need
the answei' allege that the acceptance of the prisoner was acknowledged
by the slieriff in writing. State v. Meyers^ 61 Mo. 414. But where in a
like case the surety pleaded that his principal, by reason of mob violence
existing in the county before and at the time he should have appeared,
and through fear of losing his life by "violence, had fled from the county,
and that he could not safely have remained in the county, and at the
court, for fear that he would not be protected by law, the averments of
the plea were held not sufficient to release the security from the for-
feiture or the principal from trial. Siigarinan v. State, 28 Ark. 142.

On a scire facias to revive the lien of a judgment, a plea by one who
was summoned in as a terre-tenamt, that the original judgment was
never a lien on his lands, is good. Golwell v. Easley, 83 Penn. St. 31.
So an affidavit of defense filed by executors to a scire facias to revive
a judgment entered in the life-time of decedent, wherein they set forth
that they were informed, believed and expected to prove that there was
nothing due on the judgment, the whole amount having been paid in
usurious interest, is a sufficient defense. Seymour v. Hubert, 83 Penn.
St. 346.

The defendant's answer to a scire facias should show cause for his
failure to move to set aside the forfeiture nisi, at the earliest practicable
moment. Goode v. State, 15 Texas, 124.

Where scire facias is used to forfeit a corporate charter, the defend-
ant must either disclaim the charter or deny its existence, or deny the
facts alleged as breaches, or demur to them. The suggestions in the
writ, disclosing the foundation of the plaintiff's case, must also be trav-
ersed, if they are to be avoided. The scire facias is founded partly on
them and partly on the record. 2 Bouv. Inst. 470, 679. They are
substantive facts, and can be traversed by distinct pleas embracing them
alone, just as any other fundamental allegation can be traversed alone.
2 Bouv. Law Diet. 500.

§ 18. Judgment. On scire facias on a judgment there should not
be a judgment for the debt, costs and damages, but an order that the
plaintiff have execution for his original judgment and costs. Vreden-
hurgh V. Snyder, 6 Clarke (Iowa), 39 ; Tindall v. Carson, 1 Ilarr. (N.
J.) 94; Murray \. Baker, ^ B. Munr. 172. In scire facias on a
judgment for the possession of land, the judgment is that the plaintiff
have execution and be put in possession as against the defendant's
successor. Von Puhl v. Rucker, 6 Clarke (Iowa), 187. In scire facias
to revive a judgment, if the defendant do not appear within four entire

654 SCIKE FACIAS.

days (exclusive of an intervening Sunday), after the return day, judg-
ment may be taken for tlie default in not appearing, without a declar-
ation being filed ; but, if the defendant appears within that time, the
plaintiJff is required to declare, and the cause proceeds as in other cases.
Forest v. Price^ 37 N. J. Law, 1Y7.

§ 19. Costs. "Where a scire facias is prosecuted in good faith in a
proper case, costs follow the recovery of judgment, be the amount of
recovery ever so small. Hoyt v. Blaioi, 12 Wend. 188 ; Commonwealth
V. Stehhins, 4 Gray, 25 ; Yredenburgli v. Snyder, 6 Clarke (Iowa), 39.
Where blanks are left for the costs which had accrued in a scire facias
to re\dve a judgment, it is not objectionable. Talbott v. Rudisill, 5
Ind. 240.

§ 20. Execution. A plaintiff is entitled to his execution instanter,
on a judgment on a scire facias. Hannalian v. Hannahan, 2 Bay,
68. The execution thereon is an execution on the former judgment.
Treasurer v. Foster, 7 Vt, 52. The execution must state the revival
of the judgment. Richardson v. McDougall, 19 Wend. 80.

It is error to award execution on scire facias against a person who
is not before the court as a party. Malony v. Bourne, 3 Greene
(Iowa), 330 ; Camphell v. Bomdon, 19 Barb. 494 ; Lush v. Da/oidson^
3 Pen. & W. 229.

SEDUCTION. 665

CHAPTER CXXI,

SEDUCTION.
AETICLE I.

OF SEDUCTION IN GENERAL.

Section 1. Definition and nature. Seduction is the act of a man

in inducing a woman to commit unlawful sexual intercourse with him.
2 Bouv. Law Diet. 508. To constitute seduction, the defendant must
have used insinuating arts to overcome the opposition of the seduced,
and must, by his wiles and persuasion, without force, have debauched
her. Hogan v. Cregcm, 6 Eobt. (N. Y.) 138 ; Delvee v. Boardmcm,
20 Iowa, 446. If an unmarried man, having by his visits and atten-
tion to an unmarried female, gained her affections and confidence, im-
portunes her to sexual intercourse with him, and she, through her
confidence in him and love for him, yields to his solicitations, it is
seduction. But if an unmarried man solicits sexual intercom-se with
an unmarried female and she yields through the promptings of her own
lascivious and lecherous desires, it is not seduction, such as will entitle
her to recover damages in her own right, though a child be begotten
by the connection. Bell v. Rinher, 29 Ind. 267. See, also, Brough-
ton V. Sma/rt, 59 111. 440. Continued attentions to a female for several
months, followed by an improper intercourse, is suflicient evidence to
warrant the inference of seduction. Clark v. Fitch, 2 Wend. 459.

The word " seduce," when used with reference to the conduct of a
man toward a woman, has a precise and determinate signification and
it is not necessary in an information for the crime of seduction to
charge the offense in any other language. State v. Bierce, 27 Conn.
319.

§ 2. General grounds of tlie action. Incontinence on the part
of a young woman cannot be made the foundation of an action against
the person who has tempted her and deprived her of her chastity.
Satterthwaite v. Dewliui'st 4 Doug. 315 ; Dean v. Peel, 5 East, 47 ;
White V. Nellis, 31 N. Y. (4 Tiff.) 405 ; Roberts v. Connelly, 14 Ala.
235. The law gives no remedy to the parent for the mere seduction
of his daughter, however wrongfully it may have been accomplished.

666 SEDUCTIOK

But if she is living with her parent at the time of the seduction an(J
the seduction is followed by pregnancy and illness, whereby the
parent is deprived of the filial services theretofore rendered to him, an
action is maintainable against the seducer. Add. on Torts, 907.
And an action lies for the seduction of the plaintiff's daughter, although
neither pregnancy nor sexual disease has resulted therefrom, provided
the proximate effect was an incapacity to labor. Abrahams v. Kidney^
104 Mass. 222 ; S. C, 6 Am. Eep. 220 ; Yanhorn v. Freeman, 1 Halst.
322. So if the illness and consequent inability to serve are produced
by a sense of shame at the exposure of the seduction and would not
have occurred but for the exposure, it is such a loss of service as will
sustain the action. Knight v. Wilcox, 18 Barb. 212. And independ-
ently of the loss of service, in a recent case in the New York court of
appeals, it has been held that an action for the seduction can be main-
tained where, by reason of the injury, a minor daughter, before able to
earn her own support, becomes entirely dependent, and a legal charge
upon her mother, under the provisions of the statute which makes
parents liable for the support of their indigent children, the wrongful
act of the defendant, in such case, resulting in a direct pecuniary injury
to the plaintiff. Furman v. Van Sise, 56 N. Y. (11 Sick.) 435 ; S.
C, 15 Am. Kep. 441.

§ 3. Founded ou the loss of service. Whenever the wrongful
act, by immediate and direct consequence, deprives the master of the
services of his servant, or injuriously affects his legal rights to such
service, the law gives the remedy ; the action is maintainable. White
v. milis, 31 I^. Y. (4 Tiff.) 405 ; Scott v. Cook, 1 Duv. (Ky.) 314 ;
Logan v. Murray, 6 Serg. & Kawle, 175 ; Grinnell v. Wells, 14 L. J.
(C. P.) .19 ; S. C, 7 M. & G. 1033 ; Fruitt v. Cox, 21 Ind. 15. Ko
matter how small the service, still the fact of some service must be
proved in order to sustain the action. If, by reason of the act, the
father could not have the benefit of a service, however slight, due
him by virtue of a relation then existing, even if he did not choose to
exact it before, he is entitled to his action, and service will be regarded
as due unless the child is emancipated. Sutton v. Huffman, 3 Vroora
(N. J.), 58 ; Knight v. Wilcox, 15 Barb. 279 ; Evans v. Walton, L.
R., 2 C. P. 815 ; Thompson v. Ross, 5 H. & K. 16 ; S. C, 29 L. J.
(Exch.) 1 ; Doyle v. Jessup, 29 111. 460. Whether there has been a
promise of marriage or not is wholly immaterial to the ground of the
action or to the amount of damages sustained by the sickness. WJdtney
V. Ehner, 60 Barb. (N. Y.) 250 ; Dodd v. Norris, 3 Campb. 520 ;
Phealing v. Kenderdine, 20 Penn. St. 354 ; Lee v. He/ley, 21 Ind. 98.

§ 4. What acts or results not a ground of action. It is no

SEDUCTION. 057

ground for the action by the father to show that his daughter was a
poor person maintaining herself by her labor, that the defendant se-
duced her and got her with child, and that she became unable to main-
tain herself, and that the father was forced to maintain her at his own
expense, and to pay for doctors and nurses to attend upon her, etc.
Grinnell v. Wells, 14 Law J. C. P. 19 ; S. C, 7 Man. & Gran. 1033 ;
South V. Dermiston, 2 Watts, 474 ; Bartley v. Richtmeyer, 4 N. Y.
(4 Comst.) 38. But see Furma/ii v. Van Sise, 56 N. Y. (11 Sick.) 435 ;
S. C, 15 Am. Rep. 444. Nor can it be maintained on the ground that
the father had apprenticed her to the defendant, and paid him a large
sum of money to instruct her in a trade, but that the defendant seduced
her and got her with child, and rendered her unable to learn the trade.
Harris v. Butler^ 2 M. & "W. 539. Although the defendant seduced
the girl, but was not the father of the child of which she was subse-
quently delivered, and did not consequently cause the pregnancy and
illness, and the consequent loss of service, there is no cause of action
against him. Eager v. Grimwoocl, 1 Exch. 61 ; S. C, 16 Law J.
Exch. 236.

ARTICLE II.

WHO MAY aiAmTAIN THE ACTION.

Section 1. In generaL There is no express action given for the
wrong done to a parent by the seduction of his child, and therefore a
special action on the case is allowed by the com*ts founded on a legal
fiction, for a " loss of services " but in reality to punish the seducer in
damages, for the dishonor and distress which the outrage brings upon
the parent. Ellington v. Ellington, 47 Miss. 329 ; Kendrick v. Mc-
Cra/ry, 11 Ga. 603 ; Parker v. Meek, 3 Sneed (Tenn.), 29. To sustain
the action, however, it is necessary to show something like the relation
of master and servant, however slight the degree. Manly v. Field, 7
C. B. (N. S.) 96 ; Rolerts v. Connelly, 14 Ala. 235 ; WhiU v. Nellis,
31 N. Y. (4 Tiff.) 405. This relation is sufficiently estabhshed if it
appear that the parent, at the time of the seduction, had a right to con-
trol the services of the daughter. Roberts v. Connelly, 14 Ala. 235.
Hence the relation exists constructively between a father and his infant
daughter, although the latter is actually in the service of another, pro-
vided the former has a right to reclaim her services at any time. Bart-
ley V. Richtmyer, 4 N. Y. (4 Comst.) 38; Ball v. Bruce, 21 HI. 161 ;
Greenwood v. Greenwood, 28 Md. 369. But a parent cannot maintain
an action for the seduction of a daughter, who lives as a domestic ser-
vant in the house of the master, although with his permission she is
Vol. Y.— 83

658 SEDUCTION.

in the habit during her leisure time of assisting in the work, by which
the parent earned his livelihood. Thompson v. Ross^ 5 Hurl. & Nor.
16 ; S. C, 29 Law J. Exch. 1 ; Hedges v. Tagg, L. E., 7 Exch. 283 ;
S. C, 2 Eng. R. 6Y9. An action for the seduction of the daughter,
in the life-time of the father, may be maintained by his personal
representative. Noice v. Brown, 39 IST. J. (10 Vroom) 569.

§ 2. Action by the fatlier. A father can maintain either an action
on the case or an action of trespass, for the seduction of his daughter,
living with him or being under his control. JBriggs v. Eiians, 5 Ired. 16 ;
Mercer v. Walmsley, 5 Har. & J. (Md.) 27 ; Wallace v. Clark, 2 Overt.
93. In Kentucky the suit by the father for the seduction of his daugh-
ter is maintainable either by the common law for loss of service and
incidental expenses, or by the statutes of Kentucky authorizing him to
sue instead of the daughter for seduction. The rule of damages is
the same in both cases. Pence v. Dozier, 7 Bush (Ky.), 133. And
where pregnancy is a consequence of the seduction, it is not necessary
for the father to wait until the birth of the child to entitle him to full
damages. Briggs v. Evans, 5 Ired. (N. C.) 16. And pregnancy need
not necessarily result. The action may l)e maintained whenever the
wrongful act, by immediate and direct consequence, deprives the mas-
ter of the services of his servant, or injuriously affects his legal rights
to such service. As where by the seduction a venereal disease was com-
municated to the daughter, so that she became unable to work. White
v. Nellis, 31 N. Y. (i Tiff.) 405. So, too, where a minor daughter,
residing with her father, was engaged as a school-teacher under an agree-
ment made with him; and while thus employed she was seduced, be-
came pregnant, and died suddenly about four months after conception.
A post-mortem examination disclosed a dead foetus, and a congested
brain, caused, as it was supposed, by nervous excitability or extreme
mental agitation, it was held that as matter of necessity she must
have been in no condition for ordinary physical exertion for weeks
prior to her death, and that such condition was the direct consequence
of her seduction. Ingerson v. Miller, 47 Barb. 47.

The rule that required actual residence of the daughter -with her
father at tlic time of seduction, to enable him to maintain a suit there-
for, does not prevail in this country. It is only necessary to show that
the parent has the legal right at the time to command the services of
the daughter, and very slight evidence of the loss will suffice. White
V. Murfland, 71 111.' 252; S. C, 22 Am. Rep. 100; Greenwood
V, Greenwood, 28 Md. 369 ; TJi^degraff v. Bennett, 8 Clarke (Iowa),
72; Mulvehall v. Milward, 11 N. Y. (1 Kern.) 343. So, in an
action for the seduction of the plaintiff's daughter, where it appears

SEDUCTION. 659

that she was employed by a thii-d person, but that the plaintiff
requii-ed her to spend a part of every Sunday at home, and that
while there she did work for him, she is his servant so that he
can maintain the action, and it is no objection to the maintenance
of the action, that the sexnal intercourse between the daughter and
defendant was had by force. Kennedy v. Shea^ 110 Mass. 147 ; S.
C, 14 Am. Eep. 584. See, too, Rist v. Faux, 4 B. & S. 409; Grif-
fiths V. Teetgen, 28 Eng. L. & Eq. 371. So, too, a father can main-
tain a suit for the seduction of his unmarried daughter under twenty-
one years of age, though previously to the seduction she had left her
father's house with his consent, without intending to return, and with
his license to appropriate her time and ser\dces to her own use. Boyd
V. Byrd, S Blackf. (Ind.) 113; Martin v. Payne, 9 Johns. 387. A
father liable to a third person for the expenses of the lying-in of a
daughter who has been seduced, within the age of twenty-one, may
maintain an action on the case for such seduction, although the daughter
is a servant de facto of another and the father has incurred no actual
expense. Glarli v. Fitch, 2 Wend. 459. And if a daughter bound
as an apprentice is seduced, upon which the indentures are canceled
by consent, and the daughter returns to the father's house, where she
is delivered of the child, the father may maintain an action on the
case for the seduction. Sargent v. Denison, 5 Cow. 106. But see
Bartley v. RicUmyer, 4 N. Y. (4 Comst.) 38, 46. When a daughter
more than twenty-one years of age is seduced while the relation of
master and servant actually exists, the father may maintain the action,
though the daughter was temporarily absent at the time of the seduc-
tion. Lipe V. Eisenlerd, 32 N. Y. (5 Tiff".) 229 ; Keller v. Donnelly,
5 Md. 211 ; Wallace v. Clark, 2 Overt. 93, The father may sustain
an action against the seducer of his minor daughter, who, at the time
of the seduction, was on her way home, ha^-ing been dismissed from
her master's service. Terry v. Hutchinson, L. R., 3 Q. B. 598.

§ 3. Action by the mother. A mother, after the death of the
father, is entitled to the services and custody of her childi'en during
minority and is therefore qualified in such case to maintain an action
for the seduction of a minor daughter. Furrnan v. Van Sise, 56 N.
Y. (11 Sick.) 435 ; S. C, 15 Am. Rep. 441 ; Keller v. Donnelly, 5
Md. 211. She may maintain the action, although the getting with
child was in the life-time of the father, but the loss of service after-
ward, the loss of service being the ground of the action. Coon v.
Moffett, 2 Penn. (N. J.) 583. But the contrary doctrine is held in
Missouri. Heinrichs v. Kerdener, 35 Mo. 378. And a case in Penn-

660 SEDUCTION.

sylvania holds that a widowed mother cannot sustain an action for the
seduction of a minor daughter. South v. Denniston, 2 Watts, 474.

An action on the case per quod servitiuni amisit will lie against a
seducer in favor of a widowed mother, living with her daughter, who
is over twenty-one years of age, and is owner of the establishment,
but renders service to the mother and family. Villepigue v. Shular,
3 Strobh. 462. And under the statutes of J^ew York respecting mar-
ried women, where a husband has abandoned his wife and family, and
resides in another State, the wife owning a house and being engaged in the
business of keeping boarders on her sole and separate account, may sue
alone for the seduction of her daughter, over twenty-one years of age,
who resides with and performs services for her about the house.
Badgley v. Decker, 44 Barb. 577.

§ 4. Action by step-father. A step-father who has taken the daugh-
ter of his wife by a former husband into his family, and treated her as
one of his household, has the same rights against her seducer that her
father would have"had. Maguiriay v. SaudeTc, 5 Sneed (Tenn.), 146.
This would be so although the child were the illegitimate daughter of
the wife. Bracy v. Kihhe, 31 Barb. 273. But where a step-daughter
leaves the house of her step-father and is seduced while in the service
of a third person, the step-father cannot maintain 'an action for the
seduction, although before the birth of the child she returns to his
house, engages in his service, and is there nursed and attended during
her confinement. Bartley v. Richimiyer, 4 N. Y. (4 Comst.) 38 ;
reversing S. C, 2 Barb. 182.

§ 5. Action by grandfather. A grandfather who, at the request
of the deceased parents of an infant female, has assumed the obliga-
tions, of a parent in respect to her care and management, can maintain
an action for her seduction, although she was living away from him in
the service of the defendant, appropriating the wages received to her
own use, at the time the injury occurred. Certwell v. Iloyt, 6 Hun
(N. Y.), 575. Mekwin, J., dissents, thinking that the plaintiff could
not command the services of the girl on the ground that he had volun-
tarily parted with her custody and was not liable for her support. See
dissenting opinion, id., p. 583.

§ 6. Adopted child. One who has adopted and bred up the daugh-
ter of a deceased friend may maintain an action against one who
seduces her while under the care and protection of the foster-parent.
Irwvn V. Dearman, 11 East, 23. So, too, where the mother of the
seduced girl was still living and the father was only presumed to be
dead ; and the seduced had lived in the plaintiff's family most of the
time since she was seven years old, and was treated by him like one of

SEDUCTION. 661

his own children, it was held that the plaintiff, for the purpose of main-
taining such suit, stood in loco parentis, and might maintain the action,
although the girl, at the time of her seduction, lived and worked in the
family of another, with the plaintiff's assent. Ingersoll v. Jones, 5
Barb. 661.

§ 7. Action l)y relative. A cousin of the seduced who has furnished
her a home, the nearer relatives being unable to do so, may maintain an
action for her seduction. Davidson v. Goodall, 18 N. H. 423. So
may an uncle or aunt who has brought up a neice who is seduced while
under their care and protection. Manvell v. Thomson, 2 Car. &. P.
303 ; Edmondson v. Machell, 2 T. E. 4.

§ 8. Action by one iu place of parent. An action on the case for
seduction may be maintained, not only by a parent, but by any other
person standing in loco parentis to the j)erson seduced. Ball v. Bruce,
21 m. 161 ; Davidson v. Gopdall, 18 N". H. 423 ; Bartley v. Richt-
7mjer, 4 X. Y. (4 Comst.) 38 \ Keller v. Donnelly, 5 Md. 211. It will
lie in favor of a guardian. Fernsler v. Moyer, 3 Watts & Serg. 416.

§ 9. Action by master. An action on the case always lies by a
master for the seduction of his servant, even when trespass vi et a/rmis
could, in the particular case, have been sustained. Funnan v. Applye-
gate, 3 Zabr. 28 ; Ball v. Bruce, 21 111. 161. But one in whose house-
hold, during the sickness of his wife, the injured girl was residing with-
out paying board, with an understanding -u'ith him, but with no agree-
ment with her father or herseK, as to the payment of wages or for any
definite period of service, does not hold toward her such relation of mas-
ter and servant as to give him a right of action for her seduction.
And the case would not be affected by the fact that he was the legally
appointed guardian of the injured girl. Blanchard v. llsley, 120 Mass.
487; S. C, 21 Am. Rep. 535.

§ 10. Action when female oyer twenty-one. Where a daughter
is over the age of twenty-one years, if she still lives in her father's
house, and he is in a position where he enjoys and can command her
services, he may maintain an action for her seduction. We7't v. Strouse,
38 K J. Law, 184; Zz> v. Eisenlerd, 32 N. Y. (5 Tiff.) 229 ; Ken-
d/rich V. McCrary, 11 Ga. 603 ; Vossel v. Cole, 10 Mo. 634. But he
cannot maintain the action in such case unless she was a member of
his family at the time of the seduction and some loss of services or
expenses can be proved. Patterson v. Thompson, 24 Ark. 55 ; Par-
Tcer V. MeeTi, 3 Sneed (Tenn.), 29 ; McDaniel v. Edwards, 7 Ired. 408 ;
Lee V. Hodges, 13 Gratt. (Ya.) 726. But an actual contract for serv-
ices between the father and his daughter, though she be of age, is not
required to be proved. It is presumed from any even the slightest serv-

662 SEDUCTION.

ices performed by lier in the family. BriggsY. Evans, 5 Ired. (N. C.)
16 ; Kendrick v. McCrary, 11 Ga. 603; Badgley v. Decker, M Barb.
577. And after the majority of the daughter, the father may main-
tain an action for her seduction, while a minor. Stevenson v. Belknwp,
6 Clarke (Iowa), 97.

AETICLE III.

WHO CANNOT MAINTAIN THE ACTION.

Section 1. In general. If the father of an infant daughter makes
an oral contract with another to support and maintain her until she is
of age, in consideration of her services, the contract is valid and not
within the statute of frauds ; hence the father cannot maintain an action
for the debauching and getting with child such daughter. White v.
Murtland, 71 111. 252 ; S^ C, 22 Am. Eep. 100. So where the daughter
rented a house and carried on the business of a milliner at the time of
her seduction, it was held, that the circumstances of her mother and
the younger branches of her family residing with her, and receiving
part of their support from the proceeds of her business (the father
lodging elsewhere), did not constitute such " services" as to entitle the
father to maintain the action. Manly v. Field, 7 C. B. (N. S.) 96.
And briefly, unless the relation of master and servant exists between
the plaintiff and the seduced girl — unless she actually is his servant,
or he has a right to command her services at his pleasure — he cannot
maintain the action. So a father, who has indented his daughter to
another man as a servant, being no longer entitled to her services, cannot
maintain an action of seduction against him. Demi v. Wycoff, 7 N.
Y. (3 Seld.) 191. But if the defendant procured the girl to be inden-
tured to him as a servant, as the means of effecting the seduction, then
the father is entitled to maintain the action. Dain v. Wycoff, 18 N. Y.
(4 Smith) 45 ; Speight v. Oliviera, 2 Stark. 495.

§ 2. Injured female, unless by statute. The common law does not
give the seduced woman a right of action in her own name for the seduc-
tion. And unless the legislature see fit to authorize such an action, the
courts have no authority to sanction the bringing of it. Hamilton v.
Lomax, 26 Barb. 615 ; Woodioard v. Anderson, 9 Bush (Ky.), 624.
Some of the States have by statute given her the right to maintain the
action. In Indiana, the female may bring such action against her
seducer, and on the trial it may be shown that her seduction was
accomplislicd under a promise of marriage, and the circumstances
generally, which constituted the means of its accomplishment, may be
alleged and proved. Lee v. Uefley, 21 Ind. 98. But the complaint in

SEDUCTION. 663

such action is insufficient if it does not allege that the plaintiff is
unmarried. Thompson v. Toung, 51 Ind. 599. The statute of
Kentucky, providing that " an action of seduction can be maintained
without allegation or proof of loss of ser\'ice," does not give the right
of action to the seduced woman. Woodward v. Anderson, 9 Bush
(Ky.), 624.

§ 3. The mother. A mother, after the death of her husband, can-
not maintain an action for the seduction of her daughter in his life-time,
where it appears that the daughter was upwards of twenty -one years of
age, and in the actual service of another person, although she shortly after-
ward retm'ned to her mother's family, and was taken care of by her
dming her confinement. George v. Van Horn, 9 Barb. 523 ; Vossel
V. Cole, 10 Mo. 634 ; Heinrichs v. Kerchner, 35 Mo. 378. But see
Coon V. Mofett, 2 Penn. (IST. J.) 583 ; Ellington v. Ellington, 47
Miss. 329. In Penn. a widowed mother cannot sustain an action for
the seduction of a minor daughter. South v. Denniston, 2 Watts, 474.

Where a daughter, at the age of eight or nine years, left the residence
of her mother, at the suggestion of friends, because her mother was a
common prostitute, and went to reside in the family of the defendant,
where she continued until she was seventeen or eighteen years of age,
when she was seduced, and got with child by Imn, there having been
no intercourse between the mother and daughter from the time the lat-
ter left the mother's house, the mother cannot maintain the action. Hoh-
erts V. Connelly, 14 Ala. 235.

§ 4. Female oyer twenty-oue. An action on the case, ^j>er quod
servitium amislt, will not lie by a father for the seduction of his
daughter, where she is above the age of twenty- one years, and is not
in his actual employment. Mercer v. Walmsley, 5 Har. efe J. 27 ;
Nichleson\. Stryker, 10 Johns. 115; Wilson v. Sjproul, 3 Pen. &W.
49 ; McDaniel v. Edwards, 7 Ired. 408.

§ 5. One consenting or negligent. It is expected of every parent
that he should be jealous of, and watchful over, the honor of his
daughter, and protect her, as far as possible, from the advances and
solicitations of notorious libertines. If, therefore, he introduces her
to profligate acquaintances, encourages improper intimacies and invites
the injmy of which he complains, he has no ground of action for dam-
ages. Add. on Torts, 910. So, where the defendant proposed to
marry the daughter of the plaintiff and was received and entertained
as her suitor at the plaintiff's house, and the plaintiff then ascertained
that the defendant was a married man and a great libertine, notwith-
standino; which he allowed him to continue his addresses to the dausrh-
ter on the streni'th of certain assurances which he ^ave to the effect

664 SEDUCTION.

tliat his wife was afflicted with a mortal disease and could not live
long, and then he would many the daughter, and the defendant ulti-
mately seduced her, it was held that as the plaintiff had, by his own
misconduct, contributed to the injury of which he complained, he had
no groTUid of action for redress. Id. ; Reddie v. Scoolt, 1 Peake, 241.
Proof that the defendant " bundled " with the daughter on the night
of the seduction, with the knowledge and without objection on the
part of the parent, will defeat a recovery. Seagar v. Sligerland, 2
Caines, 219 ; Hollis v. Wells, 3 Penn. Law J. 169. And any miscon-
duct by way of connivance on the partof the father, which has ct)-oper-
ated with the misconduct of the defendant to produce the wrong, will
defeat a recovery. Vossel v. Cole, 10 Mo. 634 ; Travis v. Barger, 24
Barb. 614. But conduct not amounting to assent or connivance, but
only to negligence, may be shown only in mitigation of damages.
Graham v. Smith, 1 Edm. (N. Y.) Sel. Cas. 267 ; Parlcer v. Elliott,
6 Munf. 587. So, the fact that the plaintiff allowed a married man
to visit his daughter as a suitor and placed her in exposed situations,
will not be a bar to an action for the seduction of the daughter by such
suitor, unless he knew him to be married, but it is a circumstance for
the jury to consider. Richardson v. Fonts, 11 Ind. 466. Where a
seduced woman is a willing victim to the defendant's lust and to the
gratification of her own, she cannot maintain the action, though gene-
rally it be allowed to the seduced woman in such cases by statute.
Broughton v. Smart, 59 111. 440.

ARTICLE IV.

WHO MADE DEFENDANT.

Section 1. In generaL At common law, upon the death of the
wrong-doer the remedy for torts unconnected with contract in general
determines. For injuries to the i)erson, if the wrong-doer die before
judgment, the remedy determines, and there is no instance of an action
having been supported for such injuries against his personal represen-
tatives. So far as the tort itself goes, a representative should not be liable,
but so far as the act of the offender is beneficial to his personal estate,
his assets ought to be answerable, and his representative, therefore,
should be charged. As the wrong a seducer commits is not beneficial
to his personal estate, therefore his assets ought not to be answerable,
and his personal representatives, in case of his decease, cannot properly
be made parties defendant in an action for the seduction. So it was
held that the seduction of the plaintiff's wife was, in legal contempla-
tion, an injury to the person of the plaintiff for which an action does

SEDUCTION. 665

not survive against the representatives of the defendant. Ga/rrison v.
Burden, 40 Ala. 513.

ARTICLE V.

DAMAGES.

Section 1. In general. The object of the action for seduction is,
in theory, to recover compensation for the loss of the services of the
person seduced. This is so far adhered to that there must be a loss of
that kind or the action will fail ; but when that point is established, the
rule of damages is a departure from the system upon which the action
is allowed. The loss of service is often merely nominal, though the
damages which are recovered are very large ; for the father may not
only recover the damages he has sustained by the loss of service and
the payment of expenses, but the jmy may award him compensation
for the disgrace cast upon his family and the distress of mind which
the parent has sustained in being deprived of the society and comfort
of his virtuous child. Lijye v. Eisenlerd, 32 N. Y. (5 Tiff.) 229
Grahle v. Margrave, 3 Scam. 372 ; Irwin v. Dearinan, 11 East, 23
Ellington v. Ellington, 47 Miss. 329 ; Pridtt v. Cox, 21 Ind. 15
Plielin V. Kenderdine, 20 Penn. St. 354 ; Fox v. Stevens, 13 Minn.
272. The jury may also take into consideration the situation in life
and circumstances of the parties. Andrews v. Askey, 8 C. tfe P. 9 ;
McAulay v. Birkhead, 13 Ired. 28 ; Bea v. Tucker, 51 111. 110 ;
Grahle v. Margrave, 3 Scam. 372. And proof that the defendant
procured an abortion upon the seduced daughter is not inadmissible on
the ground that the resulting damages are too remote. Klojjfer v.
Bromine, 26 Wis. 372. And a verdict will not be set aside for dam-
ages given on account of expenses incurred after the commencement of
the suit, where the suit was brought after the pregnancy of the daugh-
ter, but before the birth of the child. Stiles v. Tilford, 10 "Wend.
338. But in an action by a widow to recover damages for the seduc-
tion of her daughter, she is not entitled to recover compensation for the
support and maintenance of her daughter's illegitimate child. Hitchman
V. Whitney, 9 Hun (N. Y.), 512. The damages to the parent for the
seduction of the daughter and the allowance to the daughter for the
child's support are quite distinct, and neither is a bar to the other.
Sellars v. Kinder, 1 Head (Tenn.), 134.

§ 2. Aggravation of damages. The action on the case for seduc-
tion, considered as one to redress a moral outrage and punish libertin-
ism under the form of a remedy for the loss of manual services, is
peculiar and anomalous. And any circumstances, tl;c U'ltur.il conse-
Vol. Y.— 84

66Q SEDUCTION.

quences of the principal act, may be shown in aggravation of damages,
although they did not happen until after suit brought. Jlewit v.
Prime, 21 Wend. 79; Wilson v. Sprout, 3 Pen. & W. 49; Thompson
V. Clendening, 1 Head (Tenn.), 287; Fox v. Stevens, 13 Minn. 272.
But evidence is inadmissible to show that the defendant accomplished
the seduction through the medium of a promise of marriage, for the
purpose of enhancing the damages, as the breach of promise constitutes
a distinct cause of action, in respect of which damages are recoverable
by the daughter. But it may be shown that the defendant paid his
addresses to the daughter in an honorable way. Dodd v. N'orris, 3
Campb. 520 ; Elliott v. WlcMin, 5 Price, 641 ; Whitney v. Elmer, 60
Barb. 250 ; Kip v. Berdan, 1 Spencer (x^. J.), 239. If, in the course of
the trial, a promise of marriage is inadvertently proved, the jury must be
told to exclude the injury resulting to the seduced girl from the breach
of promise of marriage from their consideration, and leave it quite out
of the C[uestion in determining the amount of the damages to be re-
covered by the father or mother for the loss of service. Tullidge v.
Wade, 3 "Wils. 18 ; Mains v. Cosner, 62 111. 465 ; Whitney v. Elmer,
60 Barb. 250 ; Phelin v. Kenderdine, 20 Penn. St. 354. But it has
been held that the evidence of the promise of marriage on the part of
the defendant is admissible to show the nature of the injury to the
parent, and to enhance the damages. Phelin v. Kenderdine, 20 Penn.
St. 354 ; White v. Camplell, 13 Gratt. (Ya.) 573. See Odell v. Steph-
ens, 12 Ind. 384 ; Grover v. Dill, 3 Clarke (Iowa), 337.

A father may recover vindictive or exemplary damages for the se-
duction of his daughter. Knight v. Wilcox, 18 Barb. 212. And where a
mother has a right to sue in her own name for the seduction of her
daughter, she may recover exemplary damages. Badgley v. Decker,
44 Barb. 577 ; Damon v. Moore, 5 Laus. (N. Y.) 454. But one not
standing in loco parentis to the seduced girl, but merely holding
toward her the relation of a master, is entitled to recover as damages
for her seduction only the actual loss of service. Lipe v. Eisenlerd,
32 N. Y. (5 Tiff.) 229.

§ 3. Mitigation of damages. The issue of not guilty in an action
for seducing the plaintiff's daughter involves the general character of
the daughter for chastity, and the testimony of others than herself may
be introduced to show their own criminal intercourse with her, and the
time and place. But, notwithstanding such evidence, if the jury are
satisfied, from the whole evidence, that the defendant is the father of
the child, tlieir verdict must be for the plaintiff, though perhaps for
diminished damages. White v. Mttrtlcmd, 71 111. 250 ; S. C, 22 Am. Kep.
100 ; Verry v. Watkins, 7 C. & P. 308 ; Smith v. Millnrn, 17 Iowa, 30.

SEDUCTION". 667

But it has been held that the fact that one other person had had inter-
course Avith the person seduced before her alleged seduction by the -defend-
ant, when this had remained unknown to the defendant as well as to the
public at the time of the seduction, is not to be considered by the jury
in mitigation of damages. Lea y. Henderson^ 1 Cold. (Tenn.) 146.
It may be shown that the seduced girl, prior to the seduction, was in
the habit of keeping loose company, or of giving utterance to loose
language and immodest remarks. Carpenter v. Wall^ 11 Ad. (feE. 803 ;
State Y. Sutherland, 30 Iowa, 5Y0. But she cannot be asked on cross-
examination whether she had connection ^vith other men, either for
the purpose of showing her bad character, or for the purpose of con-
tradicting her if she deny it. Hoffman v. Kemerer, 41: Penn. St. 452 ;
Shattuch V. Myers, 13 Ind. 46 ; Doyle v. Jessup, 29 111. 460 ; JReed
Y. Williams, 5 Sneed (Tenn.), 580. And it is not competent for the
defendant to prove, in mitigation of damages, that he had offered to
marry the girl seduced. Ingersoll v. Jones, 5 Barb. 661 ; White v.
Mxirtland, 71 111. 250 ; 22 Am. Eep. 100. But evidence is admissi-
ble to prove that the plaintiff had been warned against the defendant
on account of his bad habits, or profligate character. Mains v.
Cosner, 62 Bl. 465, And any conduct on the part of the plaintiff
amoimting to negligence, but not to assent or connivance, may be
shown as tending to mitigate damages. Graham v. Smith, 1 Edm.
(N. Y.) Sel. Cas. 267 ; Richardson v. Fonts, 11 Ind. 466 ; Parker
V. EllioU, 6 Mimf. 587 ; ante, 663.

In an action for criminal conversation with the plaintiff's wife, an
instruction that " if her bad conduct was confined exclusively to her
intimacy with the defendant, and the plaintiff was induced to marry her
by the defendant's recommendation that she was a good girl, and plaintiff
believed that she was pm-e and virtuous, then her bad conduct before
marriage, if you find there was such, should not be considered in miti-
gation of damages," was held to be both sound law and good morals.
Stumm V. Hummel, 39 Iowa, 478.

In an action for the seduction of the plaintiff's reputed daughter,
evidence that his marriage with his reputed wife is void is admissible
on the defendant's part, to rebut a presumption of actual service, by
showing that the plaintiff was not legally entitled to her services, and
in mitigation of damages. Rowland v. Howland, 114 Mass. 517; S.
C, 19 Am. Eep. 381.

§ 4. Amount recoverable. A verdict for $800 in an action for
seduction is not excessive. Doyle v. Jessup, 29 111. 460. A verdict
of $1,800 against a person worth $18,000 is not damages so excessive
as to be sufficient cause for a new trial. Applegate v. Ruble, 2 A. K.

t>6S SEDUCTION

Marsh. (Kj.) 12S. And a verdict for the plaintiff for $500 damages
was adjudged not excessive under the following circumstances : a widow,
left with a number of infant children, and without the necessary means
to provide for their proper support, permitted a daughter fifteen years
old to become a member of the family of a married man, who in two
years seduced her, whereby she became the mother of a bastard. In
the action by the widow against him for the seduction, he denied it
under oath ; the seduction was proved, also that the girl had borne a
good reputation until her pregnancy, but there was no proof of loss of
service. Felkiier v. Scarlet, 29 Ind. 154. In short, the amount recov-
erable in such action, by the parent or one in loco parentis, is dependent
upon the pecuniary circumstances and position in society of both plain-
tiff and defendant, the reputation for chastity of the seduced female,
before her seduction, not afterward, and uj)on aL the circumstances
surrounding the seduction. WMte v. Murtland, 71 111. 250; S. C,
22 Am. Rep. 100; Irwin v. Dearman, 11 East, 23; Fox v. Stevens,
13 Minn. 272 ; Ellington v. Ellington, 47 Miss. 329 ; Andrews v.
Aslcey, 8 C. & P. 9 ; Bedford v. McKowl, 3 Esp. 120 ; Li;pe v. Eisen-
lerd, 32 N. T. (5 Tiff.) 229 ; Phelin v. Kend^rdine, 20 Penn. St.
354; Rowland v. Howland, 114 Mass. 517; S. C, 19 Am. Eep. 381;
Eager v. Grimwood, 1 Exch. 61 ; S. C, 16 Law J. Exch. 236. In
an action by the master merely, for the seduction of his servant, the
amount is only dependent upon the actual loss of service. Lijoe v. Eis-
enlerd, 32 N. Y. (5 Tiff.) 229. In an action by a widow for the seduction
of her daughter, the plaintiff is not entitled to recover compensation
for the support and maintenance of her daughter's illegitimate child.
Hitchman v. Whit/ney, 9 Hun (N. Y.), 512.

ARTICLE YI.

DEFENSES.

Section 1. In general. The defenses in an action on the case for
seduction are either " not guilty," or that what is complained of by the
plaintiff was done by liis consent and under his license. The plea of
"not guilty" puts in issue botli the fact of the seduction and the fact
that the person seduced was the servant of the plaintiff. Holloway v.
Ahell, 7 C. & P. 528 ; Torrence v. GihUns, 5 Q. B. 297. Under this
plea the defendant may show that the seduced girl was in the service of
a third person, and was not at tlie time of the seduction residing with
the plaintiff ; or that she was aclnally in his own service and the plaintiff
was not entitled to command her services at the time of the seduction

SEDUCTION. 66^

(Dam V. Wijcof, 7 N. T. [3 Seld.] 191); or that he, though he had car-
nal knowledge of the seduced woman, was not the father of the child
of which she was delivered, and, consequently, that the confinement and
illness, and loss of service and expense were not occasioned by the act
of the defendant. Eager v. Grimwood, 1 Exch. 61 ; 16 Law J. Exch.
236. But the fact that neither pregnancy nor sexual disease has resulted
from a seduction does not defeat the right of action, if the proximate
effect was an incapacity to labor. Abrahams v. Kidney, 104 Mass.
222 ; S. C, 6 Am. Kep. 220 ; Ya/nhorn v. Freeman, 1 Halst. 322.
He may also show under this plea that the seduced woman entered the
service of her master in a state of pregnancy {Davies v. Williams, 10
Q. B. Y28 ; Bradley v. RicUmyer, 4 N. Y. [4 Comst.] 38) ; or that
the plaintiff by his own imprudence and misconduct, amounting to con-
nivance, has contributed to the injury of which he complains. Rea v.
Tucker, 51 111. 110; Yossel^. Cole, 10 Mo. 634; Hollis v. Wells, 3
Penn. Law J. 169 ; Reddie v. Scoolt, 1 Peake, 241 ; Travis v. Barger,
24 Barb. 614. Under this issue he may also show, in mitigation of
damages, but not as a defense, the general character of the daughter
for unchastity {Wliite v. Miirtland, 71 HI. 250 ; S. C, 22 Am. Kep.
100 ; Conway v. Nicol, 34 Iowa, 533 ); or, if the action is by the hus-
band for the seduction of his wife, that the marriage was not one of
affection, and has not ripened into love {Dance v. McBride, 43 Iowa,
624) ; or that the plaintiff was cruel to the seduced wife. Colernan v.
White, 43 Ind. 429 ; Hadley v. Reyioood, 121 Mass. 236.

It is no defense to such action that the seduction was accomplished
by a promise of marriage which the defendant made at the time in good
faith, and which he was afterward prevented by the improper conduct
of the seduced from performing. State v. Bierce, 27 Conn. 319.
Even a subsequent marriage between the seducer and the seduced, and
an acquittal of the former on an indictment for seduction, do not,
either alone or together, constitute a complete bar to the father's right
to recover, but they go to mitigate the damages. Eichar v. Kistler,
14 Penn. St. 282 ; State v. Bierce, 27 Conn. 319.

To an action on the case for the seduction of the plaintiff's daughter,
the defendant cannot sustain a plea inter alia of accord and satisfaction
by producing a receipt by the daughter releasing him from all claims
and demands on account of the bearing, bii'th and raising of the cliild,
etc. Such evidence wiU not even mitigate the damages. Sellars v.
Kinder, 1 Head (Tenn.), 134.

It is no defense to an action for seduction that the defendant, at the
time of the seduction, was an infant imder twenty-one years of age
Lee v. Hefley, 21 Ind. 98.

670 seductio:n.

§ 2. Character of female. In an action on the case for cri^n. con. or
seduction, evidence of the woman's character is admissible in mitigation
of damages, under a general denial, and without being specially set up
as a defense. Rarter v. Grill, 33 Barb. (J^. Y.) 283 ; WUte v. Murt-
land, 71 111. 250; S. C, 22 Am. Eep. 100;Peo2)U v. Clark, 33 Mich.
112 ; Conway v. Nicol, 34 Iowa, 533 ; Reed v. Williams, 5 Sneed
(Tenn.), 580. But testimony as to the woman's general character
and acts after the alleged seduction should be excluded. The first
step on the road to ruin is followed by rapid advances in the same
direction, and the unchaste conduct of a female after her seduction
is only an aggravation of the crime of the seducer. McKern v.
Calvert, 59 Mo. 243. And where the defense assails the former
chastity of the woman seduced, the prosecutor may introduce rebut-
ting evidence by proof of character, habits and deportment tending,
in a degree, to contradict the charges against her by establishing the
improbabihty, to some extent, of their truth. State v. Shean, 32
Iowa, SB ; McAulay v. BirTihead, 13 Ired 28 ; Bate v. Hill, 1 C.
& P. 100. But where the cross-examination of the daughter showed
that she had submitted herself to the embraces of the defendant under
circumstances of extreme indelicacy, and had been guilty of great levity
of conduct, testimony as to her general character was refused. Dodd
V. Norris, 3 Campb. 518. And where evidence was given on the part
of the defendant to show that the girl, previous to her acquaintance
with him, had had a child by another man, the evidence offered by the
plaintiff in reply thereto will be restricted to disproving the specific
breach of chastity sought to be shown by the defendant. Bamfield v.
Massey, 1 Campb. 460. But, although the seduced girl's general char-
acter for chastity may be impeached by her general reputation, it can-
not by her reputation among a particular class of people. Drish v.
Davenport, 2 Stew. (Ala.) 266. And in an action of trespass, by a
father, for debauching his daughter, the defendant may not give evi-
dence of her moral character. Wallace v. Clark, 2 Overt. 93. And
in an action on the case it is not necessary to produce the seduced
daughter as a witness at the trial if the seduction can be proved ali-
unde, though the withholding of her testimony may afford a strong
topic of observation to the jury. Farmer v. Joseph, Holt, 452. Be-
fore witnesses can be called to prove the utterance of loose language and
immodest remarks by the seduced daughter, she must be pointedly and
oxpi-essly asked in her cross-examination, whether she ever used the
particular language or the precise remarks intended to be given in
evidence against her. Ca/rpenter v. Wall, 11 Ad. & E. 803 ; State v.
Sutherland, 30 Iowa, 570.

SEDUCTION. 671

§ 3. Character of plaintiflF. The moral character of the plaintiff
may be shown to be bad, but only by evidence of general reputation,
and not of particular instances. Thonijyson v. Clendening, 1 Head
(Tenn.), 287. But in New York evidence of the plaintiff's bad moral
character, especially in respect of chastity, is inadmissiljle for any pur-
pose. Dain v. Wycoff, 18 JST. Y. (4 Smith) 45. In Delaware his
dissolute habits may be inquired into, but not his general reputation in
this respect. Robinson v. Burton, 5 Harring. (Del.) 335. And
although the general reputation of the family and their standing may be
shown, to enhance or mitigate the damages, yet the character of a par-
ticular member of the family other than the plaintiff or the person
seduced, cannot be inquired of. Thompson v. Clendening, 1 Head
(Tenn.), 287. And it cannot be shown that at a particular time the
plaintiff had a venereal disease. Reed v. Williams, 5 Sneed (Tenn.),
580. Li a suit by a father for the seduction of his daughter, in which
she was a witness for him, the jury may be properly instructed to con-
sider, in connection with the question of her credibility, her relation to
tht plaintiff, his character, and his influence over her. Duncan v.
Welty, 20 Ind. 44.

In an action for criminal conversation, the defendant may show the
plaintiff's criminal connection with other women at any time after his
marriage and before trial, in mitigation of damages. Shattuck v. Ham-
TTumd, 46 Vt. 466 ; S. C, 14 Am. Rep. 631. In England the doctrine
is, that the damages are properly increased or diminished by the par-
ticular circumstances of each case, and among other circumstances are
mentioned the rank and quality of the plaintiff, and that the plaintiff
kept company with other women. See Buller'sN. P. 26, 27 ; Bromley
V. Wa^Zace, 4 Esp. K P. Cas. 237; Stephen's K P. C. 8, 27. See,
also, Bennett v. Smith, 21 Barb. 446 ; Calcraft v. Earl of Harhorough,
4 Car. & Payne, 499.

672 SHIPPING.

CHAPTER CXXII.

SHIPPING.
AETICLE I.

OF SHIPPING IN GENERAL.

Section 1. In general. Shipping is a term applied to ships and
vessels in general, and of every kind intended for navigation. It is
also used in relation to the affairs of ships ; as shipping interests, ship-
ping affairs, shipping business, shipping concerns. A ship is any ves-
sel used in navigation ; and the terms, the ship's papers, the ship's hus-
band, shipwreck, and the like are employed whether the vessel referred
to be a brig, a schooner, a sloop, or a three-masted vessel. The boats
and rigging, together with the anchors, masts, cables and such like ob-
jects, are considered as part of the ship. The ship's papers are the papers
or documents required for the manifestation of the ownership and na-
tional character of a vessel and her cargo, and to show her compliance
with the revenue and navigation laws of the country to which she
belongs. These papers are of two sorts ; first, those required by the
law of the particular country to which the ship belongs ; as the certifi-
cate of registry or of enrolment, the license, the crew-list, the shipping
articles, clearance, etc. ; and, second, such as are required by the law of
nations to be on board of neutral ships as e\^dence of their title to that
character, as the passport, sea brief or sea letter ; the proofs of property
in the ship, as bills of sale, etc. ; the charter-party, the bills of lading,
the invoice, the crew-list or muster-roll, the log-book, and the bill of
health. Bouv. Law Diet. ; M'Culloch's Com. Diet.

It is absolutely necessary that a ship should be documented according
to the laws of the country to which she belongs, according to treaties,
and according to the law of nations. These documents must be cor-
rectly framed, otherwise tlie owner of the ship and the freighter will
often incur heavy losses by the detention of the ship, and sending her
in for adjudication. The cases in which questions as to the nature and
sufficiency of the ship's documents and conduct most usually arise are
upon policies of insurance; and the treatises on insurance are the best
calculated to afford complete information on that subject. Abb. on
Ship., p. 347, n.

SHIPPING. 673

The acts of congress relating to ships employed upon the sea may be
divided into several classes : first^ ships built within the United States
and owned wholly by citizens, and employed in foreign trade, which are
entitled to be registered ; second^ ships built and owned in like manner,
and employed in the coasting trade and fisheries, which are entitled to
be enrolled and licensed ; third^ ships built in the United States, but
owned wholly or partly by foreigners, which are entitled to be recorded ;
fourth^ ships built out of the United States and owned by foreigners,
which are deemed alien vessels to all intents and purposes. Ships reg-
istered, enrolled and licensed as in the first two classes are alone denom-
inated and deemed " vessels of the United States, entitled to the benefits
and privileges of such ships ;" and they continue to enjoy the same no
longer than they continue to be wholly owned and commanded by a
citizen or citizens. Regarding the third and fourth classes, there do
not seem to be any important privileges annexed by law, except that they
might obtain from the custom-house a document of their national char-
acter and ownership for their protection, and recorded vessels pay a
lower tonnage duty than foreign vessels. Abb. on Ship., p. 63, n.

A ship is deemed to belong to the coimtry where the ovraers reside.
7%e St. J. Indicmo, 2 Gallis. 268. A vessel built in Canada, and owned
in the United States, is not a " vessel of the United States " nor a " for-
eign vessel " within the meaning of the act of congress of March 1,
1817. The Mary Merritt^'^'^\s& 381. A cruise, like a voyage, begins,
in legal contemplation, when the ship breaks ground for the purpose of
sailing. And when the time once begins to run it is not susjDended by
any casualty happening in the course of the cruise. The Brutus^ 2
Gallis. 526.

The materials which constitute a ship become one as soon as she
leaves the ways, and her keel strikes the element for which she was
originally designed. The Eliza Ladd, 3 Sawyer, 519. As public
policy is against changing the names of vessels, courts of admiralty
will go far in ruling that rebuilt vessels are, in law, identical with those
from the material of which they are built, and requiring them to be
registered in the same name. Where any substantial portion of the
frame or skeleton of an old vessel is built upon and preserved intact,
in constructing the new, the courts lean toward holding the vessel to
be the same in law. But where no such part of the frame or skeleton
is left intact, but each timber of the old vessel is first dislocated, before
being used in the new, in such case, the vessel is a new one, and may
bear a new name, though having the model of the old vessel. United
States V. The Grace Mead^ 2 Hughes, 83.
Vol. v.— 85

674 SHIPPING.

ARTICLE II.

OF THE TITLE TO VESSELS.

Section 1. In general. The builder of a ship, generally, is its first
owner. He constructs the vessel either upon an order, or a contract
for building or sale, or to sell it to any purchaser who may offer, or to
own it himself. If the materials of one are united to those of another
by the labor of the latter, who furnishes the principal materials, the
j)roperty in the produce is in the latter by the right of accession. If
one repairs his vessel with another's materials, the property in the vessel
is in the former. If he builds the vessel from the keel with another's
materials, the whole belongs to the owner of the materials. The prop-
erty in a vessel follows the keel. Coursieu's Appeal, Y9 Penn. St. 220;
Glover v. Austin, 6 Pick. 209; Sumner v. Hamlet, 12 id. 76.

The general principle that a sale cannot be executory, and that there
can be no sale of a thing not in existence at the time, but merely a
contract to sell, which passes no propert}'- in the object itself until it is
finished and delivered, but gives a mere personal right of action, applies
to a ship as to any other chattel, although payment be made in advance.
Mucklow V. Mangles, 1 Taunt. 318. Hence the materials which con-
stitute a ship, not becoming a ship until she leaves the ways, and her
keel strikes the elements for which she was originally designed {The
Eliza Ladd, 3 Sawyer, 519), it would seem that a ship as such could
not be sold and delivered until she was finished. But it is possible
under the authorities that the conti-act for the building and sale of a
ship may be such as to make her become the property of the future
owner, by installments, paid in the course of the building. The cases
are not very clear on this subject, but the rule would seem to be that
whether the property in the fabric passed by the payment of the first
or other installment, is to be shown by the intention of the parties, as
gathered from all the circumstances of the case. Wood v. Bell, 5 Ellis
& B. 772 ; S. C, 34 Eng. L. & Eq. 178 ; S. C. afiirmed, 6 Ellis & B.
355 ; S. C, 36 Eng. L. & Eq. 148 ; Laidhr v. Burlinson, 2 M. & W.
602 ; Merritt v. Johnson, 7 Johns. 473 ; Sctdl v. ShaTcesjpear, 75 Penn.
St. 297 ; Ilam^ey v. Schooner Rosahelle, 20 "Wis. 247 ; Woods v. Russell,
5 B. & Aid. 942 ; MoodT/ v. Brown, 34 Me. 107 ; BaJcer v. Gray, 17
C. B. 462 ; S. C, 34 Eng. L. & Eq. 387. See Edwards v. Elliott, 36
N. J. Law, 449 ; S. C, 35 id. 265 ; S. C. , 13 Am. Rep. 463. Where
the property does pass before the completion of the ship, the builder
has a common law lien, or right of possession to finish her and earn the
full price. Woods v. Russell, 5 B. & Aid. 942.

SHIPPING. 675

The registered owner is not necessarily the sole iegal owner of a vessel.
To make the register evidence of property, it must be shown that it was
made with the assent of the party sought to be affected by it. Ward v.
Bodeman, 1 Mo. App. 272.

A sale of a vessel to a corporation in a foreign country is a sale "to a
subject or citizen of a foreign prince or state," within the prohibition of
section 15 of the registry act of congress ; at least, if any of the share-
holders are such subjects. The Maria, Deady, 89. Abandonment of
a wreck, etc., transfers title to the underwriters. Evans v. Ingersol, 15
Ohio St. 292.

§ 2. Sale of ships without writing. Under the American registry
acts it is well settled that a parol sale of a ship with delivery is good to
pass the title from the vendor to the vendee, although the privileges of
an American bottom are thereby forfeited. Wendover v. Ilogeboom, 7
Johns. 308; S. C, Anthon's K P. 121 ; The Amelie, 6 Wall. (U.S.)
18 ; Mitchell v. Taylor, 32 Me. 434 ; Taggard v. Loring, 16 Mass. 336,
340 ; Fontaine v. Beers, 19 Ala. 722 ; Scranton v. Coe, 40 Conn. 159,
Independently of the registry acts, the same doctrine would seem to
obtain in England. Bobertsoii v. French^ 4 East, 130 ; Thomas v. Foyle,
5 Esp. 88 ; The Nostra Signora de los Dolores, 1 Dods. 290 ; Pirie v.
Anderson, 4 Tamit. 652. It would seem that a court of admiralty
would regard a bill of sale indispensable ; but a vessel on the stocks,
before coming under the admiralty law, does not differ from other kinds
of personal property, as to validity of sale without writing. Derhyshire^s
Estate, 81 Penn. St. 18.

§ 3. Transfer by bill of sale. Bills of sale are of two kinds : first,
the grand bill of sale by which the ship is transferred from the builder
to the first purchaser ; second, the ordinary bill of sale, by which the
owner of a ship, not being a builder, conveys his title to another.
Abb. on Ship. 3. But the distinction is not made in this country.
Portland Bank v. Stacey, 4 Mass. 661 ; Morgan v. Biddle, 1 Yeates, 3 ;
Wheeler v. Sumner, 4 Mason, 183. In England the grand bill of sale
is necessary to the transfer of a ship at sea. Atkinson v. Maling, 2 T.
R. 462 ; Gordon \. East India Co., 7 id. 228. There is no form
for a bill of sale prescribed by law, or by any usage so established as to
have the force of law. Hunter v. Parker, 7 M. & "W. 322 ; Fox v. The
Lodemia, Crabbe, 271.

The vendor of an interest in a ship is discharged of an obligation to
deliver a bill of sale by a sale of the ship, made with the assent of the
purchasers and all the other owners, in behalf of creditors having liens
upon her, valid against all the owners, and followed by application of

676 SHIPPING.

the proceeds in payment of their debts. Wilson v. Almy, 105 Mass.
436.

Delivery of a vessel to the agent of the person for wnom it is built,
unaccompanied by any written conveyaiice, and with no intent on the
part of the agent to appropriate the property to his own use, must be
understood as vesting the title in the owner, and the subsequent act of
the agent in taking the bill of sale to himself from the builders, four
months afterward, would not divest the owner's title and vest it in the
agent. Scudder v. Calais /Steamboat Co., 1 Clifford (C. C), 370.

§ 4. Sale by master. The master of a ship has power to sell her in
case of necessity. The Amelie, 6 Wall. (U. S.) IS ; The William
Carey, 3 Ware, 313 ; Cohequid Marine Ins. Co. v. Barteaux, L. R., 6
P. C. 319 ; S. C, 3i3 L. T. (N. S.) 510 ; 23 W. E. 892 ; Stephenson v.
Piscataqna, etc., Ins. Co., 54 Me. 55 ; The Catharine, 1 Eng. L. &
Eq. 679 ; Patapsco Ins. Co. v. Southgate, 5 Pet. 604 ; Butler v. Mur-
ray, 30 N. y. (3 Tiff".) 88. The sale is a necessity when nothing better
can be done for the owner, or those concerned in the adventure. The
Amelie, 6 Wall. (U. S.) 18 ; Fits v. The ATuelie, 2 Cliff. 440 ; Chambers
V. Grantzon, 7 Bosw. (N. Y.)414; The Schooner Tilton, 5 Mason, 465 ;
Cambridge v. Anderton, 2 B. & C. 693. Good faith in making the
sale, and a necessity for it, must both concur, and the onus of proving
this concurrence is on the purchaser. The Amelie, 6 Wall. (U. S.) 18;
The William Carey, 3 Ware, 313 ; The Glasgow, Swabey's Adm. 145 ;
Ilimter v. Parker, 7 M. & W. 322 ; Ilayman v. Molton, 5 Esp. 65.
If the master can consult the owners within a reasonable time he is
bound to do so. The Amelie, 6 Wall. (U. S.) 18 ; Gates v. Thompson,
57 Me. 442 ; JVew England Ins. Co. v. Brig Sarah Ann, 13 Pet. 387;
Peirce v. Ocean Ins. Co., 18 Pick. 83. So, the sale by the master, of
such parts of the vessel as belong to part-owners who were not, but
might have been notified l)y telegraph in season to act in the premises
before the sale, is void. Miller v. Thompson, 60 Me. 322. See Pike
V. Balch, 38 id. 302. A valid sale by the master cuts off all prior
liens on the ship, known or unknown, tlie master selling for all con-
cerned, the henholders included ; and the proceeds of the ship stand in
the place of the ship itself. The Amelie, 6 Wall. (U. S.) 18 ; Fitz v.
The Amelie, 2 Cliff. 440. The master may sell when the ship is a total
wreck. Cambridge v. Anderton, 2 B. & C. 693 ; Ireland v. Thom-
son, 4 C. B. 149. Or if the expense of repairs would exceed the value
of the vessel when repaired. Gordon v. Mass. F. i& M. Ins. Co., 2
Pick. 249. But in the sale of a stranded vessel by the master, there is
no implied warranty of his right to sell, if the purchaser has every op-
portunity of examining her, and ascertaining whether she is in such a

SHIPPING. 677

state as to give the master authority to sell her as a wreck. Page \.
Cowasjee Edidjee, L. P., 1 P. C. 127.

§ 5. Sale under decree of admiralty. The ship is sometimes sold,
abroad or at home, under a decree of the court of admiralty. But if
it do not appear upon the face of the record of the proceeding in rem,
that some specific offense is charged, for which the proceeding in rem
is sought, and that due notice of the proceedings has been given, either
personally or by some public proclamation, or by some notification or
monition, acting in rem, or attaching to the thing, so that the parties
in interest may appear and make defense, and in point of fact the sen-
tence of condemnation has passed upon ex ])arte statements without
their appearance, it is not a judicial sentence, conclusive upon the rights
of foreigners, or to be treated in the tribunals of foreign nations as
importing verity in its statements or proofs. Bradstreet v. J^ejytune
Ins. Co., 3 Sumn. 600. See, also, Janney v. Columhia7i Ins. Co., 10
Wheat. 411 ; Stevnmetz v. U. S. Ins. Co., 2 S. & K. 293 : The Damn,
1 Ware, 499.

§ 6. Of possession by purchaser. A hona fide sale of a ship, on
consideration, with \\^hatever transfer of papers and of registry can be
made, is valid, if possession be taken by the purchaser as soon as prac-
ticable by reasonable endeavor, however long it may be before such pos-
session is or can be taken. 1 Pars, on Shipping, 82. See lord. v.
Ferguson, 9 jS". H. 380 ; Brooks v. Bondsey, 17 Pick. 441 ; Atkinson
V. Moling, 2 T. R. 462 ; Rohinson v. McDonnell, 5 M. & S. 228.

§ 7. What passes to purchaser. Whatever is on board a ship for
the proper use and object of the voyage and adventure on which she
is engaged, belonging to the owners, constitutes a part of the ship and
her appurtenances, whether the object be warfare, the conveyance of
passengers or goods, or the fishery. Gale v. LoAirie, 5 B. & C. 156 ;
Tlie Dundee, 1 Hagg. Adm. 109 ; Richardson v. Clark, 15 Me. 421 ;
Briggs v. Strange, 17 Mass. 405. See Burchard v. Tapscott, 3
Duer, 363.

§ 8. General rules of sale applicable. If a ship be sold " with all
her faults," the seller may be silent as to any or all the faults which he
knows, without any reference to tlie buyer's ability to discover them ;
but he must not be active in concealing them, for this is a positive fraud.
BaglehoU v. Walters, 3 Camp. 154. See Fletcher v. Bowsher, 2 Stark,
661; Smith v. Richards, 13 Pet. 41 ; Taylor v. Bullen, 5 Exch. 779 ;
S. C, 1 Eng. L. & Eq. 472 ; Dyer v. lewis, 7 Mass. 284. The rule
of caveat emptor, as indeed do all the common rules as to evidence,
agency, warranty and the like, in respect to sales of personal property,
applies to the sale of a ship. So, too, if a ship is ordered to be built

678 SHIPPING.

for a particular purpose, there is an implied warranty tliat she shall be
fit for that pm-pose. 1 Pars, on Shipping, 86. See Shepherd v. Pybus,
3 Man. & G. 868 ; Cunningham v. Hall, 4 Allen (Mass.), 268.

§ 9. Sale of part of a yessel. When a ship is in the country of its
owner, and a delivery of actual possession is possible, such delivery is
necessary to give a perfect title to the buyer in case of a sale of the
whole ship. But delivery of the possession to a purchaser of a moiety
of a vessel, when in the possession of the other part owner, is not, in gene-
ral, indispensable to pass the property. Winsor v. McLellcm, 2 Story
(C. C), 492. An agreement that one part owner shall command the ves-
sel is personal with him, and a purchaser of his share acquires no right
to command her. Ward v. Ruchman, 34 Barb. 419.

§ 10. Sale of vessel at sea or al)roa(l. A ship at sea may be sold
or mortgaged, provided the muniments of title are transferred, and
possession taken by the vendee as soon as possible. Morgan v. Biddle,
1 Yeates, 3 ; Portland Bank v. Stacey, 4 Mass. 661 ; Brinley v. Spring,
7 Me. 241. The purchaser is not bound to follow the ship from port
to port, in order to take possession ; but he may reasonably wait
for her return to the port, to which she belongs, and the sale will be
good against creditors attaching at any other port before such return.
Badlam v. Tucker, 1 Pick. 389 ; WJieeler v. Sumner, 4 Mason, 183.
"Whether possession has been taken within a reasonable time is a ques-
tion for the jury under the circumstances. Joy v. Sears, 9 Pick. 4 ;
Conard v. Atlantic Ins. Co., 1 Peters, 449. Should a vessel so sold
arrive at another port, notice of the sale, forwarded by the purchaser
to the captain, would seem to be equivalent to taking possession. Brin-
ley V. Spring, 7 Greenl. 241. And possession must be taken before
the departure of the vessel on a new voyage, where the transferee ia
aware of her arrival in port. JEx parte Matthews, 2 Ves. Sen. 272.
Notice to the captain may supersede the necessity of taking possession
of the ship, Brinley v. Spjring, 7 Greenl. 241.

§ 11. Mortgage of vessel. A ship at sea may be mortgaged, yet
the mortgagee must take possession in the same way as if he were
vendee, and within a reasonable time after her return, otherwise his
title will not be complete against creditors. Portland Bank v. StuhhSy
6 Mass. 422. See Ingraham v. Wheeler, 6 Conn. 277; Picker v.
Cross, 5 N. n. 570. What constitutes such reasonable time is matter
dependent upon the circumstances of each case. And if, by the terms of
the mortgage, the mortgagor is to retain possession until after default,
the omission on the part of the mortgagee to take possession, until after
that period has arrived, does not invalidate the conveyance, for it comes
within tlie rule tliat the possession accompanies and follows the deed.

SHIPPING. 679

Badlam v. Tucker, 1 Pick. 389. And it is not any objection to such
a mortgage, that it is for futnre as well as past advances. The trans-
mutation of the property is completed by the delivery of the bill of
sale, and the. property thereupon vests in the purchaser, although it may
be divested by his neglect to take possession in due time. Id. See,
also, Bartlett v. Williams, 1 Pick. 288. A bill of sale of a vessel,
absolute in its terms, may be shown by parol evidence to be only a mort-
gage. Morgan v. Shinn, 15 "Wall. 105. And the holders of such bill
of sale may maintain an action for the conversion of the vessel, against
a person claiming under a barratrous sale by the master ; although on
learning of the barratry they abandoned her to the insurers, and received
payment from them as on a total loss. Clark v. Wilson, 103 Mass.
219 ; S. C, 4 Am. Eep. 532.

In order to give validity to a mortgage upon a vessel alleged to be a
vessel of the United States employed in the coasting trade, ao against a
State statute requiring chattel mortgages to be filed in the town clerk's
office, it must be made to appear that the vessel was registered, and,
also, that she was enrolled and licensed as required by the act of 1793.
1 U. S. Stat, at Large, 305 ; Best v. Stajyle, 61 N. Y. (16_ Sick.) 71.

§ 12. Rights and liabilities of mortgagee. The mortgagee of a
vessel, out of possession, is never considered in this country as owner
and consequently cannot be held to be hable for repairs done, or sup-
plies furnished to her. Fox v. Holt, 36 Conn. 558 ; Annett v. Car-
stairs, 3 Camp. 353 ; Briggs v. Wilkinson, 7 B. & C. 30 ; Miln v.
Spinola, 4 Hill (N. Y.), 177; Dufv. Bayard, 4 Watts & S. 240;
Cordray v. Mordecai, 2 Rich. 518. But where he wrote to the per-
son furnishing supplies '' it does not belong to me to pay any bills on
the vessel, but at the same time I am holden for them," he was held
liable. Oakes v. Gushing, 24 Me. 313. Generally, he is not liable
for the contracts or negligence of the mortgagor who is master. Thorn
V. Hicks, 7 Cow. 697. Nor for the wages of the master and crew. An-
nett V. Carstairs, 3 Camp. 353 ; Fisher V; Willing, 8 S. & R. 118. On
the other hand he is not entitled to the benefit of the acts of the master
or other agent of the ship ; so he is not entitled to the freight earned
by the ship. Chinnery v. Blackhurne, 1 H. Bl. 117 n. ; Brancker v.
Mohjneaux, 3 Scott, N. R. 332; Tenney v. State Bank, 20 Wis. 152.
And if, on the vessel arriving in port, he make a secret entry and take
formal possession of her, but does not give notice to any one or con-
tribute to the expenses of the next voyage, he is not entitled to the
rights of a mortgagee in possession as to such voyage, as against a sub-
sequent mortgagee of the vessel subject to his prior mortgage, and of
the earnings of the voyage. Milton v. Mosher, 7 Mete. 244. A mere

680 SHIPPING.

entry by the mortgagee into possession does not render him liable for
the contracts of the master, made after the execution of the mortgage
and before entry, because that alone does not prove an intention on
the part of the mortgagee to adopt the master as his agent. Myers x.
Willis, 17 C. B. 77; S. C, 38 Eng. L. & Eq. 204; S. C. affirmed, 18
C. B. 886 ; 36 Eng. L. & Eq. 350. See, also, Hachioood v. Lyall, 17
C. B. 124; S. C, 33 Eng. L. & Eq. 211. A mortgagee of an interest
in a vessel not in his possession is under no obligation to contribute
for repairs which he did not order. The ships' agents are not his
agents, and thev act under no authority from him. And it makes no
difierence that the vessel is registered in his name. Morgmi v. Shirm,
15 "Wall. 105. And where the nominal owner of a vessel executes a
mortgage thereon to secure money loaned to the real owner, for the
benefit of the vessel, the mortgage containing no covenant by the
morto-acor to pay, he is not personally liable for the debt. Jenki/tis v.
Wheeler, 2 Abb'. (K. Y.) App. Dec. 445 ; S. C, 3 Keyes, 645.

Where a British ship was bought by one not shown to be an Amer-
ican citizen, who had the title taken in the name of a British subject,
and such subject afterward, having no beneficial interest in the vessel,
executed a mortgage, at the request of the purchaser, to one from
whom such purchaser had secured a loan, in a proceeding in rem in
admiralty, the mortgagee is entitled to the benefit of his mortgage out
of the proceeds of the sale of the vessel, especially when neither the
mortgagor nor the beneficial owner contested it, after first satisfying
the lien of any party for advances in a foreign port made on the credit
of the vessel. The Acme, 7 Blatchf. 366. No equities existing be-
tween the joint mortgagors of a vessel will deprive the assignee of the
mortgage of any of the usual remedies for the enforcement of the
security. Dalrymple v. Sheehan, 20 Mich. 224.

A mortgagee of one-eighth of a vessel, not in possession, may main-
tain an action of trover against the assignee of the mortgagor, who re-
fuses to comply with a demand for possession and claims title in himself
as against the mortgagee, and where such assignee has received before
and after the demand one-eighth of the net earnings and paid one-eighth
of the repairs, the amount paid for such repairs will not be deducted
in mitigation of damages. Wood v. Stockwell, 55 Me. 76.

§ 13. Recording mortgages and bills of sale. The recording or
non-recording of a conveyance of a vessel does not affect the personal
liability of the owner; it applies merely to the priority of liens. Matt
V. Buckanmi, 3 Blatchf. C. C. 71. Mortgagees are to be paid in prior-
ity to material men who, at the time of supplying materials, are not
in such actual possession of the ship as to give them a possessory lien.

SHIPPING. 681

The Scio, L. E., 1 Adm. & Ecc. 353. But there is notliing in the act
of congress concerning the necessity of registering bills of sale, mort-
gages, hypothecations, or conveyances of vessels, which can defeat liens
under State laws. That act relates to written conveyances, and
the fact that it makes an exception in favor of " liens by bottomry,"
affords no implication of an intention to destroy all claims for liens
under State statutes, for work, materials and supplies to vessels, in
which there is no attempt at any written conveyance of the vessel.
Thorsen v. T/ie J. B. Martin, 26 Wis. 488 ; S. C, 7 Am. Rep. 91.
Before registry, a vessel is subject to the laws of the State, and a
mortgage thereof duly recorded is valid. But after registry the vessel
is subject to the laws of the United States, and a mortgage not recorded
in compliance therewith is valid only as against the mortgagor, his heirs
and devisees, and parties having actual notice thereof. Perkins v.
Emerson, 59 Me. 319. See Stinson v. Minor, 3-4 Ind. 89.

A mortgage on a vessel, properly recorded in compliance with the
requirements of the act of congress of July 29, 1850 (1 Stat, at L.
440), when prior in point of time takes precedence of the claims of
material men claiming liens under State laws. The Grace Greenwood,
2 Biss. 131.

§ 14. Of part owners of a vessel. Part owners of a vessel are
tenants in common, not partners ; the interest of each can be sold only
by himself or his agent. Coursin^s Ajyjyeal, 79 Penn. St. 220 ; Wil-
liams V. Laiorence, 47 N. Y. (2 Sick.) 462 ; Graham v. Cook, 48 Ala.
103. But they are partners in regard to the earnings of a vessel dur-
ing any voyage upon which it is sent. Merritt v. Walsh, 32 N. T. (5
Tiff.) 685 ; Graham v. Cook, 48 Ala. 103 ; Rea v. Copelin, 47 Mo.
76. An unauthorized sale by a part owner of the whole vessel, if
carried into effect, is a constructive destruction of the property of the
other owners, and trover may be maintained by them against the seller
or against the purchaser, if he also sells the property as his own.
Weld V. Oliver, 21 Pick. 559; White v. Osborn, 21 Wend. 72;
Thomson v. Cook, 2 South. 580 ; Barton v. Williams, 5 B. & Aid.
395 ; Mayheio v. Rei^ick, 7 C. B. 229. The majority in interest in
the ownership of a vessel have the absolute right to employ whom
they will as master, officers and crew, and, at their pleasure, to dis-
place them, whether part owners or not, and employ others, ^^ard v.
Ruckman, 36 N. Y. (9 Tiff.) 26 ; Gould v. Stanton, 16 Conn. 12.
See Montgoimry v. Wharton, 2 Pet. Adm. 397 ; Bee, 388 ; 1 Dall. 49.
And an o^vner of an equal moiety of a vessel will be restrained by
injunction from employing the vessel contrary to the wish of the other
owner. Paynter v. Paynter, 7 Phil. 336. The master and part
YoL. Y.— 86

682 SHIPPING.

owner of a steamboat has no right to insure for the other owners, and
his notes for such insurance will not bind the other owners. Holer oft
V. Wilkes, 16 Ind. 373 ; McCready v. Woodhull, 34 Barb. (N. Y.) bO.
A person who loans money to another for the purpose of purchasing
a vessel and takes a mortgage of the vessel as security, in which it is
provided that instead of paying interest they shall share profit and loss,
is not a part owner of the vessel. The Blohm, 1 Benedict (D. C), 228.
§ 15. Liabilities for repairs or supplies. The master of a vessel,
whether in a foreign or a home port, has a right to charge the owners
with such expenses for repairs as their interests require that he should
incur, unless the owners or their agent are either at the port or so
near that communication can be had with them without injurious
delay. Wood7nc^, etc., Iron Works v. Stetson, 31 Conn. 51 ; Glading
V. George, 3 Grant (Penn.), 290; Benson v. Thompson, 27 Me. 470.
And in a late case it was held that the owners of a ship, though in a
home port where they or their agents reside, are responsible for neces-
sary supplies furnished on the order of the captain, unless furnished
exclusively on his credit. Wmsor v. Maddock, 64 Penn. St. 231*
See Crawford v. Roherts, 50 Cal. 235. The better rule would seem
to be that the captain of a vessel, as such, though himself a part owner,
has no authority to pledge the credit of the other part owner for
necessary repairs made at the home port where the owner resides and
can be consulted, and can personally interfere. Pentz v. Clarke, 41
Md. 327 ; Gagcr v. Babcock, 48 InT. Y. (3 Sick.) 154 ; S. C, 8 Am.
Pep. 532. The authority of the master of a vessel as to repairing her
or supplying her with necessaries, whether abroad or at home, is
lunited by the express or implied authority derivable from the laws
of the vessel's country or the usage of the trade, or the business of the
ship, or the instructions of the owner, and he cannot bind either the
vessel or her owner beyond such limits. The Woodland, 7 Ben. 110.
He is the agent of the owners with power to bind them for repairs
to the extent of the value of the ship and freight, but not further,
unless expressly clothed with larger authority ; there is no presump-
tion from the law of agency to justify expenditm-e beyond that limit.
Sterling v. Nevassa Phosphate Co., 35 Md. 128 ; S. C, 6 Am. Kep.
372. He is not the agent of the owners as such, but of those who
have control of the vessel and the right to receive her freight;
and mere ownership of a vessel, without any right to the profit or
usufruct, will not, of itself, make any one liable for supplies furnished
to her. Ward v. Bodeman, 1 Mo. App. 272. But in order to
make the master of a vessel the owner pro hac vice, under a contract
for sailint' lier on shares, he must have the exclusive control ot her

SHIPPING. 683

for the time being, otherwise the owners will be liable for sup-
plies furnished her on their credit. Noyes v. Staples, 61 Me. 422.
Generally all the part owners are liable in solido for the repairs of a
ship or for necessaries actually supplied. Westerddl v. Dale, 7 T. R.
306; Baldney v. Ritchie, 1 Stark. 338; Hardy y. Sproule, 29 Me.
258. In Louisiana, part owners are not liable in solido, except where
they form a partnership. Carroll v. Waters, 9 Mart. (La.) 500 ;
Burke v. Clarke, 11 La. 206.

§ 16. Liability for torts of employees. The liability of part
owners of a shij) for the torts of those whom they employ or of each
other is governed by the principles of the law of agency. 1 Pars, on
Shipping, 106.

§ 17. Liability to each other. Part owners are not, at common
law, liable to each other for injury or loss to their conmion property
by negligence. The reason given is, that each co-tenant may protect
himself, and need not leave the property in the uncontrolled possession
of the other, unless he choose to do so, and if he does so choose he must
take the consequences. He has, therefore, no right of action if his
co-tenant or part owmer loses or injures the property by his gross neg-
ligence, although he would have it if his co-tenant had willfully
destroyed the property. But this rule is rather more technical than just,
and we doubt whether it would be applied in admiralty, especially as
the civil law, which may be regarded as the common law of courts of
admiralty, makes no such distinction. 1 Pars, on Shipping, 107.

§ 18. Of the ship's husband. The ship's husband is an agent ap-
pointed by the owner of a ship, and invested with authority to make
the requisite repairs and attend to the management, equipment, and
other concerns of the ship. He is the general agent of the owners in
relation to the ship, and may be appointed in writing or orally. He is
usually, but not necessarily, a part-owner. 1 Pars, Marit. Law, 97. He
must see to the proper outfit of the vessel in the repairs adequate to
the voyage, and in the tackle and furniture necessary for a seaworthy
ship, he must have a proper master, mate and crew for the ship, so that
in this respect it shall be seaworthy ; he must see to the due furnishing
of provisions and stores, according to the necessities of the voyage ; he
must see to the regularity of the clearances from the custom-house and
the regularity of the registry ; he must settle the contracts and pro-
vide for the payment of the furnishings which are requisite to the per-
formance of those duties ; he must enter into proper charter-parties, or
engage the vessel for general freight under the usual conditions,
and settle for freight and adjust averages with the merchant ; and he
must preserve the proper certificates, surveys, and documents, in case

684 SHIPPING.

of future disputes with insurers and freighters, and keep regular books
of the shij). Bell's Comm., § 428. These are his general powers and duties,
but, of course, they may be limited or enlarged by the owners. With-
out special authority he cannot borrow money generally for the use of
the ship ; and he cannot give up the lien for freight. 1 Bell's Comm.,
§ 499. He cannot insure or bind the owners for premiums, or pur-
chase a cargo for the owners. Hewett v. Buck, 17 Me. 147 ; McCready
V. Woodhull, 34 Barb. (N. Y.) 80 ; Patterson v. Cfiahners, 7 B. Monr.
595. The ship's husband, as sucli, can have no lien on the vessel or
the proceeds thereof. The Larch, 2 Curtis (C. C), 427; Ex i^arte
Young, 2 Yes, & B. 242 ; Smith v. De Silva, Cowp. 469. By usage
in this country he is entitled to a commission of two and one-half per
cent for purchasing the outfits and paying the bills of the vessel. And
he is entitled to charge interest on the excess of his disbursements over
the amounts received by him, from the time of the occurrence of such
excess. Rennell v. Khriball, 5 Allen, 356. To what extent a
ratification by a ship's husband of a loan to the master for the use of
the ship is prima facie e%ddence against the owners, see Baring v.
Louder, 9 Phil. (Penn.) 20. When a ship's husband and managing
owner gives a bail bond in his name and that of his co-owner to release
the ship from an admiralty process, and judgment is entered for the
plaintiff, and the sureties on the bond are called upon to pay, the co-
owner is responsible to the bail for damages, interest and costs.
Barker v. LLighley, 15 C. B. (N. S.) 27.

As the power of the master to enter into contracts of afifreightments
is superseded in the port of the owners, so it is by the presence of the
ship's husband or the knowledge of the contracting parties that a ship's
husband has been appointed. 2 Bell's Comm., 199.

§ 19. Liens of part owners. A part-owner of a ship, as such, has
no lien whatever on the ship, for his expenses and charges on her ac-
count, but he acquires such a lien when any of the elements of part-
nership, or agency with bailment, upon which a lien may rest, enter
into his relation with the other part-owners. 1 Pars, on Shipping, 115 ;
Braden v. Gardner, 4 Pick. 456. So, where two persons build a ship
together, to be owned by them in certain proportions, and one of them
advances more than his proportion, he has no lien on the ship for the
balance due to him. Merrill v. Bartlett, 6 Pick. 46. So, too, a per-
son who makes a parol contract for the purchase of a share in a vessel,
and receives, jointly witli the other owners, ])ossession of the vessel,
caimot acquii-e a lien upon her for maritime services. Bowling v. The
RelioMce, 1 Woods, 284. But a part-owner who has given a bond
under the statute to dissolve an attachment made in a suit against an-

SHIPPmG. 685

other part-owner, and taken possession of the vessel and subsequently
paid the judgment recovered in such suit, holds the judgment debtor's
share of the vessel as security for the amount so paid, and while so
holding is entitled to its earnings, and may recover the same from the
master, who has adjusted his accounts with the ship's husband, paid one
of the owners his share and promised the plaintiff to pay his. Call v.
Perhins, 55 Me. 517.

§ 20. Suits by and against part-owners. The several owners of
a vessel are tenants in common, and must join or be joined in an action
by or against them as such. If they are joined as defendants, and
one who has not been served with process dies, his personal representa-
tive cannot be joined with the survivors. Wright v. Marshall, 3 Daly
(K. T.), 331. But part-owners of a ship may be sued separately on
separate covenants. Servante v. James, 10 B. & C. 410. And
it is now well settled that an action of tort can be maintained
against one or more part-owners, as well as against all. Mitchell v, Ta^-
hutt, 5 T. R. 61:9 ; Low v. Mumford, 14: Johns. 426 ; Patten v. Gtirney,
17 Mass. 1S2. All part-OAvners should join in an action for a tort commit-
ted against all ; but if they do not, no advantage can be taken for the non-
joinder, except by a plea in abatement. Thompson v. Hoshins, 11 Mass.
419 ; Barnardisto7i v. Chajpman, cited 4 East, 122 ; Wheelwright v. De-
peyster, 1 Johns. 472. It has been the custom for part-owners of a ship
to bring a bill against each other in equity for adjustment of accounts,
in like manner as is done by partners. Moffatt v. Parquharson, 2
Brown's Ch. 338 ; Good v. Blewitt, 13 Yes. 397. In England juris-
diction of matters of account between part-owners is now, by statute,
given to courts of admiralty. 24 Yict., ch. 10, § 8. In this country
admiralty has not jurisdiction in such case. Steamboat Orleans v.
Phoebus, 11 Pet. 175 ; Grant v. Poillon, 20 How. 162 ; Kellum v.
Emerson, 2 Curtis (C. C), 79.

§ 21. Liabilities of owners generally. See, generally, ante, 682, § 15.
The master of a vessel is presumed, even at a home port, to have
authority to contract for such articles for the use of the vessel as come
under the general appellation of ship's stores, and the owner of the
vessel is liable for the value of the same, unless he shows that the mas-
ter had not such power. So, if supplies for a vessel are purchased at a
home port by the captain, with the knowledge and consent of the ship's
husband, the owners qxq prima facie liable for the same, even if credit
is given to the ship's husband, unless exclusive credit was given to him.
Crawford v. Roberts, 50 Cal. 235. See Stirling v. Loud, 33 Md. 436.
So as to repairs. Chapman v. Durant, 10 Mass. 47 ; Schemerhorn v.
Loine^, 1 Johns. 311 ; Thompson v. Finden, 4 Car. & P. 158. Where

CS6 SHIPPING.

the registered owner of a vessel appoints her master, with an agreement
that the master is to have the entire control of the vessel, and victual
and man her, and make contracts of affreightment, and divide the gross
earnings with the owner, the latter is liable on contracts of affreight-
ment made by the master with shippers who have no notice of the
arrangement between the master and himself. Oakland Cotton Man-
■ufacturing Co. v. Jennings, 4G Cal. 175 ; S. C, 13 Am. Pep. 209.
Where a vessel is too disabled to proceed, it is the duty of the master
to reship the cargo, if he can, to the port of destination. In so doing,
If he can save a part to the owner, he will be considered his agent as
well as the shipper's ; otherwise the shipper's alone ; for an authority
arising from implication only will not be presumed where the act of
the master is clearly injurious to the owner. McLoon v. Cummings^
73 Penn. St. 98.

AETICLE III.

BOTTOMBT AIJD BESPONDBNTIA.

Section 1. In general. Bottomry is a contract in the nature of a

mortgage, by which tlio owner of a ship, or the master, as his agent, bor-
rows money for the use of the ship, and for a specified voyage, or for
a definite period, pledges the ship (or the keel or bottom of the ship,
lyars ^ro ioto) as a security for its repayment, with maritime or extraor-
dinary interest, on account of the marine risks to be borne by the lender ;
it being stipulated that if the ship be lost in the course of the specified
voyage, or during the limited time, by any of the perils enumerated in
the contract, the lender shall also lose his money. 1 Bouv. Law, 216 ;
The Atlas, 2 Hagg. Adm. 48 ; The Brig Draco, 2 Sumn. (C. C.) 157.
The essential quality of a loan upon bottomry is that repayment of the
money loaned is dependent upon the safety of the vessel on which the
loan is made. Noy'thwestem Ins. Co. v. Ferward, 36 IS". Y. (9 Tiff.)
139 ; Bray v. Bates, 9 Mete. 237 ; Stainhanh v. Penning, 11 C. B. 51 ;
S. C, 6 Eng. L. & Eq. 412. It is, also, an essential quality that upon
bottomry loans, any rate of interest, not grossly extortionate, which may
be agreed upon, may l)e lawfully contracted for. The reason is the lender
takes upon himself the risk of the vessel's loss, and the consequent loss
of his loan ; and he, therefore, should have extra interest to compen-
sate him for the risk he runs. Sha/rpleyY. Ilurrel, Cro. Jac. 208 ; The
Cognac, 2 ITagg. Adm. 377, 387. But a bottomry and resjyondentia
bond conditioned to be void in case of " utter loss " of the vessel dur-
ing a certain voyage, is not discharged by the stranding of the vessel,
during the voyage, and abandonment to insurers as a total loss, and sale

SHIPPING. 687

by them at the place of strauding, as not worth repairmg, if the ves-
sel exists hi specie at the time of the sale. Delaware Mat. Saf. Ins.
Co. V. Gassier, 1 Holmes, 475. And if a bond be given for a specific
voyage^ which was never commenced, the lender has a right to demand
the return of his money the moment the vessel sidled on a new voyage.
Wilmer v. The Smilax, 2 Pet. Adm. 294, note. But a de^dation from
necessity will not have this efcect. The Armadillo, 1 W. Rob. 251.

The conti-act of respondentia is similar to that of bottomry, except
that it is a loan of money, on goods, laden on board of a ship, and con-
ditioned upon the loss of the goods, regardless of the loss of the ship ;
and it is said that in the contract of respondentia, the lender has, in
general, only the personal security of the borrower. Marsh. Ins. b. 2,
c. 1, p. 734.

§ 2. Bonds by the owner. The owner of the vessel may borrow
upon bottomry in the vessel's home port, and whether she is in port or
at sea. Wilmer v. The Smilax, 2 Pet. Adm. 295, note / The Brig
Draco, 2 Sumn. (C. C.) 157 ; The Duke of Bedford, 2 Hagg. Adm. 294.
And it is not necessary to the validity of a bond made by the owmer
that the money borrowed should be advanced for the necessities of the
vessel or her voyage. Greeley v. Waterhouse, 19 Me. 9 ; The Mary, 1
Paine (C. C), 671. But when money is thus borrowed by the owner
for purposes other than necessities or uses of the ship, and a bottomry
bond in the usual form is given, the jurisdiction of a court of admiralty
to enforce the lien may well be doubted. As a contract made and to
be performed upon land, and having no necessary connection with the
business of navigation, it is probable that it would not now be deemed
a maritime contract, but would take effect and be enforced as a common
law mortgage. 1 Bouv, Law Diet. 2(51. See, also, Thorndihe v. Stone,
11 Pick. 187; Conard v. Atlantic Ins. Co., 1 Pet. 386, 437.

Fraud practiced by an owner on a mortgagee of a vessel, which might
render the voyage illegal, does not invalidate a bottomry bond to a hona
fide lender. The Mary Ann, L. B., 1 Adm. & Ecc. 13.

§ 3. Bond by the master. The authority of the master to borrow
money on the credit of the vessel rests upon the necessity of the case,
and only exists under such circumstances of necessity as would induce
a prudent owner to hypothecate his ship to raise money for her use.
The Orelia, 3 Hagg. Adm m, 74; The Mary, 1 Paine (C. C), 671 ;
The Aurora, 1 Wheat. 96. The mastei-'s power to give a bottomry
bond is exactly analogous to his power to sell the ship, except that the
former will be justified by a less necessity than the latter. 1 Pars,
on Ship. 140. Still it must be a real and a sufficient necessity. So
if he borrow when he knows the owner to be accessible enough to be

688 SHIPPING.

consulted upon the emergency the bond is void, the obligee or lender
is chargeable with notice of his want of authority and can only look to
the personal responsibility of the master. The Circassian, 3 Ben, 398 ;
The Oriental, 3 W. Eob. Adm. 24:3, 265 ; S. C, 3 Eng. L. ifc Eq. 546.
And the master cannot hypothecate the ship for money borrowed for
his own wants. King v. T*erry, 3 Salk. 23.

A master of a vessel is authorized to make an hypothecation of his
vessel when he is unable to leave a foreign port on account of the crip-
pled condition of his vessel, and the necessity of the repairs is pressing
and urgent, and he has no means of his own or of the owners mthin
his control, and no other means of obtaining the necessary funds ex-
cept by hypothecating the vessel. Burke v. The M. P. Rich, 1 Cliff.
(C. C.) 308. See The Robert L. Lomc, 1 Low. 388 ; The Grapeshot, 9
Wall. 129, 141 ; Dunning v. Merchants, etc., Ins. Co., 57 Me. 108 ;
The Eledona, 2 Ben. 31 ; The Lulu, 1 Abb. (U. S.) 191. And the
fact that a vessel was in a foreign port raises a presumption that any
repairs or supplies there furnished to her were necessarily obtained
on the credit of the vessel, and unexplained, will support a hypotheca-
tion. The Washington Irving, 2 Ben. 318 ; The Same, id. 323.

§ 4. Duty and obligation of lender. The lender must see to
it that a necessity exists for the making of a bottomry bond by the
master. Putnam v. Schooner Polly, Bee's Adm. 157 ; The Boston, 1
Blatchf . & H. Adm. 309, 324 ; The Royal Stuart, 2 Spinks' Adm.
258; S. C, 33 Eng. Law & Eq. 602. After reasonable precaution
and inquiry on his part, if sufficient necessity seem to him to exist, it
will be enough, although in fact he be mistaken. The Shi_p Fortitude, 3
Sumn. 228, 249 ; Tlie Tula, 4 Blatchf. (C. C.) 352. But if he connive
in any way at any fraud of the master it avoids the bond in toto. The
Nelson, 1 Ilagg. Adm. 169 ; The Brig Ann C. Pratt, 1 Curt. (C. C.)
340 ; S. C. affirmed, Carrington v. Pratt, 18 How. 63. See The Vir-
gin, 8 Pet. 538. But the fraud of tlie master or borrower does not
have such effect, if the lender were neither participant in, nor conu-
sant of it. Atlantic Ins. Co. v. Conard, 1 Pet. 386 ; S. C, 4 Wash.
(C. C.) 662. And the lender is not bound to see that the master actually
applies the funds thus raised to the ship's necessities. Scarhorongh v.
Lyrus, Latch, 252 ; The Jane, 1 Dods. 461 ; The Virgin, 8 Pet. 538,
553.

§ 5. Additional security. A lender may take other and additional
securities for his debt, provided these securities are also discharged by
any thing which discharges the bond. The Jane, 1 Dods. 461 ; The
Kewnersly Castle, 3 Hagg. Adm. 1 ; Kelly v. Cashing, 48 Barb. 269.
See 1 Pars, on Ship. 149, 155.

SHIPPIKG. es9

§ 6. Boud for supplies or repairs. Where advances for supplies
or repairs are made on the personal credit of the master, or owners,
and a bottomry bond is subsequently given, the bond is void. TJte
ViHlia, 1 W. Rob. 1 ; The Hunter, 1 Ware, 249 ; The Wave, 4 Eng.
L. & Eq. 5S9. But where such advances are made, without direct
evidence of any original understanding or contract, and followed by a
bond, the law will presume that a bond was contemplated in the fii'st
instance. TheVihilia, 1 W. Rob. 1. See TheVirgin, 8 Pet. 538;
The Rubicon, 3 Hagg. Adm. 9. And it is no objection to a recovery
on a bottomry bond for repairs, that the repairs were made before the
bond was effected, where it is impossible to procure funds in any other
way to pay for them. The Yuha, 4 Blatchf. (C. C.) 352. And a charge
for commissions in procuring the loan is incidental to the loan itself
and a proper charge as incidental to the repairs. Id.

The objection that a bottomry bond given in good faith for neces-
sary supplies was executed without due authority operates only to re-
duce the premimn, but does not necessarily relieve the vessel for the
advances made, if that liability can be sustained on the principles of
hypothecation. The Eureka, 2 Low. 417.

§ 7. To whom bond may be made. One holding to the ship-
owner the relation of agent to the principal may take a bottomry bond,
yet where he does so, all the transactions thereto appertaining require
the utmost vigilance of the court for the obvious reason that when the
agent and lender are blended in one, the owner is deprived of the pro-
tection expected from a paid agent. The Royal Stuart, 2 Spinks'
Adm. 258 ; S. C, 33 Eng. L. & Eq. 602. See Rucher v. Conyngham,
2 Pet. Adm. 307 ; The Ship Lavinia v. Barday, 1 Wash. (C. C.) 49 ;
Ross V. Ship Active, 2 Wash. (C. C.) 226, wherem it is held that
such a bond under proper circumstances may be given to a consignee.
But if the consignee has funds in his hands belonging or due to the
owners of the vessel, it is well settled that he cannot lend his own
money on bottomiy. Hurry v. Tlie Ship John and Alice, 1 Wash.
(C. C.) 293; Reader. Commercial Ins. Co., 3 Johns. 352. A bot-
tomiy boud to a part owner binds the shares of the ship belong-
ing to other owners to payment with extra interest for repairs.
Abbott on Sliip. (Am. ed.) 159, note.

§ 8. Boud good iu part aud Toid iu part. That a bottomry bond
may be good in part and void in part has been repeatedly decided,
both in England and America, and it is not affected in this particular
by the rules of the common law, but will be held good^/'o tanto. The
Tarter, 1 Hagg. Adm. 1 ; The Pachet, 3 Mason, 255 ; The Aurora, 1
Wheat. 69; The Hero, 2 Duds, 139 ; The Heart of Oak, 1 W. Rob.
YoL. Y.— 87

690 SHIPPING.

204 ; The Virgin, 8 Peters, 538 ; TJie Brig Hunter, 1 Ware, 249. See,
also. The Royal Stuart, 2 Spinks' Adm. 258 ; S. C, 33 Eng. L. & Eq.
602.

§ 9. Hypothecation of freight. The master may liyj^otliecate the
freight by a bottomry bond, under the same circumstances of necessity,
in which he is allowed to give that security on the ship itself. The
Packet, 3 Mason, 255 ; Murry v. Lazarus, 1 Paine (C. C), 572 ; The
Gratitudine, 3 Rob. Adm. 240, 274. And when the freight is
pledged generally it means the freight of the whole voyage and not
merely from the intermediate port where the repairs and supplies are
furnished, to the final port of discharge. The Schooner Zejjhyr, 3
Mason, 341.

§ 10. Constructiou of hoiid. Bottomry bonds are to be construed
liberally, so as to carry into effect the intention of the parties. Pope
V. NicTierson, 3 Story (C. C), 465. They are entitled to favorable
consideration and have always been upheld by the court of admiralty
with a very high hand. The Rhctdamanthe, 1 Dods. 203 ; The
Calypso, 3 Hagg. 163 ; Smith v. Gould, 4 Moore (P. C), 28 ; S. C,
6 Jur. 543. Although they are the creatures of necessity and distress,
and transactions respecting them should be strictly watched, yet when
such bonds are given hona fide, and for legitimate purposes, it is
important to the interests of commerce that they be liberally pro-
tected. The Reliance, 3 Hagg. Adm. 74; The YiUlia, 1 W. Rob.
1, 5. A bottomry bond is preferred to any other lien whatever {The
Mary, 1 Paine [C. C], 671 ; The Orelia, 3 Hagg. Adm. 75, 83) ;
excepting only the lien of the seamen for wages {The Sydney Cove, 2
Dods. 1, 13 ; The Louisa Bertha, 1 Eng. L. & Eq. 665 ; Blaine v.
Ship Charles Carter, 4 Cranch, 328) ; and the lien of the material men
for repairs or supplies indispensable to her safety. The Jerusalem, 2
Gallis, 345. If there be several bottomry bonds on the same ship, the
last takes precedence and the latter over a former, on the ground that
it is the last which saved the ship. The Betsey, 1 Dods. 289 ; Leland
v. The Medora, 2 Woodb. & M. 113; The Eliza, 3 Hagg. Adm. 87;
The Trident, 1 W. Rob. 29.

§ 11. Special rules. Assets will Ije marshaled by courts of admir-
alty in case of bottomry, so as to give the proper priorities in favor of
the shippers against the property of the master and owner. The Ship
Packet, 3 Mason, 255. Both ship and freight are liable l)efore the
cargo, and this is true, although the bond is given on the cargo alone.
The Constancia, 4 Xotes of Cases, 285. In making up the decree, the
sum lent, together with the marine interest up to the time when the
bond is payable, constitutes the principal, and legn] interest is to be

SHIPPING. 691

added to this from that time to the time of the decree. The Ship
Packet^ 3 Mason, 255 ; Furniss v. The Brig Magoun, Olcott's Adm.
55.

In England courts of equity, as well as courts of admiralty, exercise
jurisdiction over bottomry bonds. Glascott v. Lang, S Sim. 358 ; S.
C, 3 Mylne & C. 451 ; Duncan v. M'Calmont, 3 Beav. 409.

A clause in a bottomry bond, that the master " grants, bargains and
sells " the ship with the usual proviso, that on the payment of the
money, it is to be void, does not vititate the bond. The whole is to
be construed together, and if the risk is to be run, it is a conditional
mortgage or hypothecation. Robertson v. TJ. Ins. Co., 2 Johns. Cas.
250.

§ 12. Respoudeutia bouds. The respondentia bond, although some-
times in the form of a bill of sale, is usually in the form of a bond and
is almost the same thing in respect to the goods which a bottomry
bond is to the ship. The Osmanli, 3 W. Rob. 198 ; The Gratitudine.^
3 Rob. Adm. 240 ; The Nostra Senora del Carmine, 29 Eng. L. &
Eq. 572. It is of the essence of this contract as of that of bottomry
that the lender runs the marine risk, to be entitled to the marine
interest. Thorndilie v. Stone, 11 Pick. 187. The master has no
authority to give a bond on the cargo alone. If he does, the ship and
freight are first liable and then the cargo, because it is the same as if he
had given a bond on the ship, freight and cargo. La Constancia, 4
Kotes of Cas. 285, 512, 518, 677 ; The Shijy Packet, 3 Mason, 255.
In order to pledge the cargo, there should be an express pledge of it
in the substance of the bond. It is not sufiicient to state by way of
recital, that the master was necessitated to take the sum loaned on the
vessel, freight and cargo if the subsequent parts of the bond pledge
only the ship and freight. But if the omission be by mere mistake,
a court of admiralty will reform the bond. The Schooner Zejyhyr, 3
Mason, 341 ; Po^je v. Nicherson, 3 Story (C. C), 465.

A respondentia bond does not pass the right of property in the
goods, being a mere personal contract. United States v. Delaware
Ins. Co., 4 Wash. (C. C.) 418. But if any part of the goods arrive
safely at the end of the voyage, the lender is entitled to have the pro-
ceeds applied to the payment of his debt. And according to the form
of respondentia bond used in Philadelphia, payment of the debt and
marine interest depends on the safe return of the goods and not on
that of the ship ; the borrower, therefore, is obliged to pay if he
receive his goods safely, though by another ship. Ins. Co. of Penn.
V. Duval, 8 S. c'c R. 138.

If the contract clearly contemplates that the goods on which the loan

692 SHIPPING.

is made are to be sold or exchanged, free from any lien, in the course of
the voyage, the lender will have no lien on them, but must rely wholly
on the personal responsibility of the borrower. It has been frequently
said by elementary writers, and without qualification, that the lender
has no hen (2 Black. Comm. 458 ; 3 Kent's Comm. 354) ; but the form
of bond generally in use in this country expressly hypothecates the
goods, and thus, even when there is no express hypothecation, if the
goods are still on board at the end of the voyage, it is not doubtful that
a court of admiralty will direct the arrest of the goods and enforce against
them the maritime lien or privilege conferred by the respondentia con-
tract. There is perhaps no common law lien. 2 Bouv. Law Diet. 471.

§ 13. y alidity of toonds. A bottomry bond given by the master of
a ship, which is a cartel in an enemy's port, for necessary repairs, is
valid, and may be enforced in our courts, notwithstanding the lender
be an enemy. Crawford v. The Williain Penn^ 1 Peters (C C), 106.
But a bottomry bond, given on a belligerent ship, falls on the capture
of the ship, and will not be recognized as a subsisting interest in the
prize courts of the captors, even in favor of a subject of the capturing
power. The Tobago^ 5 Rob. Adm. 194.

A hired transport in the government's service is not incapacitated
from being the subject of an hypothecation. The Jane, 1 Dods. 463.
Where the insurer of a vessel, having the right to loan upon bottomry,
being applied to by the owners for a bottomry loan and unwilling to
increase the amount at risk on the vessel, suspends a part of the policy
equal to the amount of the loan, this is valid as a bottomry loan. Worth-
western Ins. Co. V. Ferward, 36 N. Y. (9 Tiff.) 139.

§ 14. Enforcement of bonds. A bottomry bond does not constitute
an indelible lien on the ship. It vests no absolute indefeasible interest
in the ship ; and therefore, so far as respects subsequent purchasers or
creditors, it becomes void l)y an omission to enforce it within a reason-
able time. Such delay amounts to a waiver in their favor. Therefore,
if a bottomry holder suffers the ship to make several voyages, without
asserting his lien, and executions are levied upon the ship by other cred-
itors, the holder loses his lien on the ship. Blaine v. The Ship Charles
CarUr, 4 Cranch, 328 ; Leland v. Medora, 2 Woodb. & M. 92 ; The
Chusan, 2 Story (C. C.),468. But if the proceedings for enforcing the
bond are instituted within a reasonable time, the lien will not be affected
merely by the departure of the vessel from the return port, ^mih or
without the knowledge of the holder of the bond. Burhe v. The M.
P. Rich, 1 Cliff. (C. C.) 308. And the bond will be a valid lien in
favor of one who had delayed to enforce it through no fault of his,
against the vessel in the hands of one who had purchased her with full

SHIPPING. 693

knowledge of fraud wliich had been practiced on the bottomry creditor,
in order to defeat the lien and avoid the claim. Herwig v. Oakley,
Taney, 389.

ARTICLE lY.

USE OF THE SHIP BY THE OWNER.

Section 1. In general. The owner of a ship carries only his own
goods, or carries all of them that he chooses to send, and fills up his ship
with the goods of others, or carries only the goods of others. And if
he carries only the goods of others, he does this hy offering his ship as
a general ship, or letting her out by a charter party. 1 Pai-s. on Ship.
181. He undertakes to carry in his hip the goods of the shipper to
their destined port in safety, by the proper route and in due season.
Impliedly he promises that his ship is seaworthy in all respects, and
that he has a sufficient master and crew. The Sch. Sarah, 2 Sprague,
31. In considering the extent of the duties and obligations which the
law imposes upon the owners of steamboats and barges, used in carry-
ing grain in bulk on the western rivers, as to seaworthiness or fitness to
perform voyages, regard must be had to the daily and hourly external
forces to which such boats are subjected in the ordinary course of navi-
gation, beyond what they would in navigating on open sea or lake. The
Northern Belle, 9 Wall. 526. But where a vessel takes a cargo late in
the season, for transportation around the lakes, and is laid up by stress
of weather, it is her duty to complete the voyage in the spring, if prac-
ticable, and carry the cargo to its destination. Murray v. JEtna Ins.
Co., 4 Biss. 4.11.

If there be a failure in the performance of the ship-owner's duties and
obhgations, and the goods are thereby injured or lessened in value to
their owner, the ship-owner is responsible, and the ship itself is sub-
jected to the lien of the shipper of the goods, in order that he may en-
force his rights, or obtain indemnity for a ^dolation of them. Cleirac,
Us et Coustunies de la Mer, 72. In this country the existence of the
lien is not only f uUy recognized, but it can be enforced by process in
rem in admiralty. Ths Gold Hunter, 1 Blatchf . & H. Adm. 300 ;
Glarh V. Barnwell, 12 How. 272. See, too, BirleyY. Gladstone, 3M.
& S. 205.

§ 2. Carriage of goods on freight. If the goods are safely carried
and dehvered at their port of destination without imnecessary delay or
deviation, the owner of the goods is bomid to pay to the owner of the
ship the freight earned by the carriage, and the ship-owner has a lien on
the goods to enforce his rights against them. Artaza v. Smallpiece, 1

694 SHIPPING.

Esp. 23 ; Christie v. Lewis, 2 Brod. & B. 410 ; S. C, 5 Moore, 211 ;
Glarhson v. Edes, 4 Cow. 4Y0 ; Perkins v. Hill, 2 Woodb. & M. 158.
And if the goods are once laden on board, the ship-owner has a completed
right to carry them the whole distance. The carrier, however, has no
lien for his freight as against the owners of the goods, if he receives
them from a wrong-doer, and carries them for him. Clarh v. Lowell,
etc., R. R. Co., 9 Gray, 231. But if the goods are carried over a
wrong route, owing to the mistake of the consignor or his agent, the
carrier has a lien for his own charges and for all prior charges paid by
him. Briggs v. Boston, etc., R. R., 6 Allen, 246 ; Nordemeyer v.
Loescher, 1 Hilt. (N. Y.) 499.

§ 3. Delivery to the vessel. The reception of the goods by the
master on board of the ship, or at a wharf or quay near the ship, for the
purpose of carriage therein, or by any person authorized by the owner
or master so to receive them, or seeming to have this authority by the
action or assent of the owners or master, binds the ship to the safe car-
riage and delivery of the goods. 1 Parsons on Shipping, 183.

Delivery of cargo to a lighter moored alongside, and in charge of a
vessel, for shipment on the vessel, where it was the custom of trade to
deliver in that way, and where a receipt was given by the master, is a
good delivery, and binds the vessel receiving the freight. Cam,jphell\.
The Sunlight, 2 Hughes, 9.

§ 4. Bill of lading. A bill of lading is the written evidence of a
contract for the carriage and delivery of goods sent by sea for a certain
freight. It should contain the name of the shipper or consignor ; the
name of the consignee ; the names of the vessel and her master ; the
places of shipment and destination ; the price of the freight, and, in
the margin, the ma,rks and numbers of the things shipped. It is
usually made in three or more original parts, one of which is sent to
the consignee with the goods ; one or more others are sent to him by
different conveyances, one is retained by the merchant or shipper, and
one should be retained by the master. 1 Bouv. Law Diet. 204.

A bill of lading being symbolical of the property described in it,
like the property it represents, may be transferred by delivery merely,
and this is so without regard to the presence or absence of words of
negotiability on its face. Emery v. Irving Nat. Bank, 25 Ohio St.
360; S. C, 18 Am. Rep. 299 ; Allen v. Williams, 12 Pick. 297. And
of course when the bill is indorsed and delivered it transfers the prop-
erty in the goods to the assignee. McCants v. Wells, 4 S. C. 381 ;
Bvffington v. Curtis, 15 Mass. 528. But bills of lading are not, in
the full commercial sense, negotiable paper. Baltimore, etc., R.
R. Co. V. Wilkens, 44 Md. 11 ; S. C, 22 Am. Rep. 26 ; Tison v.

SHIPPING. 695

Hoioard^ 57 Ga. 410; Stolletiwerch v. Thacher, 115 Mass. 224.
If a bill of lading is indorsed in blank, and for a special purpose
delivered to the owner's agent, who is not authorized to sell or pledge
the goods, a person who gets possession of it with the assent of the
agent, but without the assent of the owner, acquires no title in the goods
as against the principal. Id. ; First Ifat. Bank of Cairo v. Crocker,
111 Mass. 163 ; Mears v. Wakles, 4 Houst. (Del.) 62.

The owner of a vessel, in an action brought by him for freight
money against the assignee of the bill of lading which the owner has
signed, is estopped from setting up a state of facts different from that
which he has set forth in the bill of lading, and relying upon which,
the assignee has paid for the property described therein. Byrne v.
Weeks, 4: Abb. (N. Y.) App. Dec. 657. The bill is jpinma facie evi-
dence that the goods were shipped in the condition described in the bill
itself. Nelson v. Woodruff, 1 Black, 156 ; Nelson v. Nat. Steamship
Co., 7 Ben. 340 ; Relyea v. New Hawen Rolling Mill Co. , 42 Conn.
579 ; Bissell v. Campbell, 54 :N". T. (9 Sick.) 353. And the owners of
a vessel are bound by a bill of lading signed by the master, although
he does not add the word " master " to his signature. Fox v. Holt, 36
Conn. 558. But the words in a bill of lading, " in good order and
well conditioned," have reference to the external condition of the pack-
age, and do not refer to or warrant the internal quality or condition
thereof, and when the words " value and contents unknown " are con-
tained therein they exclude the inference of any admission by the car-
rier as to the quantity or quality of the contents of the package at the
time of delivery, beyond what is visible to the eye or apparent from
handling. The California, 2 Sa^vyer, 12. See Tarhox v. Eastern
Steatiiboat Co., 50 Me. 339 ; Hill v. Sturgeon, 35 Mo. 212.

The phrases " dangers of the sea," and " act of God," as used in
bills of lading, are commented upon and defined in DihUe v. Morgan,
1 Woods, 407. The marks on a bill of lading are given only for con-
venience of identification, and the bill is, after all, only the evidence
of a contract to deliver property at a certain point, and the marks on
the margin thereof, or on the property shipped, give no life to the obli-
gation. Horrell v. Parish, 26 La. Ann. 6. A shipper of goods has a
right to have the bill of lading made to his own order ; and, if the
master has been instructed by the charterers not to sign such a bill, his
only alternative is to reject the goods. The M. K. Rawley, 2 Low.
447. And when goods are shipped on board a vessel advertised to
sail for a particular port, and a bill of lading is signed for their delivery
at that port, the ship-owners are bound to carry the goods by that ship
to the port of destination, unless prevented by some event beyond their

696 SHIPPING.

control. Harrison v. Stewa/rt, Taney, 485. Under a bill of lading of
stoneware, excepting dangers of the sea, but not excepting breakage,
tbe vessel is not liable for breakage caused by dangers of the sea, and
shown not to be attributable to negligence in storing or unloading.
Twelve Hundred, etc., Pipes, 5 Ben. 402. See Clark v. Barnwell, 12
How. 272 ; Hunt v. Propeller Cleveland, Newb. Adm. 221 ; S. C, 6
McLean (C. C), Y6.

§ 5. Liability for freight. Full freight may be recovered for the
transportation of goods mentioned in a bill of lading, notwithstanding
a loss in quantity on the voyage, if the vessel is not shown in fault for
the loss. SteelmoAi v. Taylor, 3 Ware, 52 ; Leckie v. Sears, 109 Mass.
424. And where what is shipped increases on the voyage, freight is
due only for what is shipped. Gibson v. Sturge, 10 Exch. 662 ; S. C,
29 Eng." L. & Eq. 460 ; BucUe v. K71002), L. R., 2 Ex. 125 ; S. C.
affirmed, L. K, 2 Ex. 333. And if freight is payable per " net weight
delivered," freight is due only on the amount delivered. Coulthurst v.
Sweet, L. E., 1 C. P. 649.

Generally no freight is payable unless the whole voyage is performed
and the goods are delivered at the place of destination. The Nathan-
iel Hooper, 3 Sumn. 542 ; Hunter v. Prinsep, 10 East, 3Y8 ; Barker v.
Cheriot, 2 Johns. 352. But unreasonable delay in the delivery of a
cargo does not constitute a defense to a libel for freight, without proof
of damage sustained by the owner of the cargo, through such delay.
Page v. Munro, 1 Holmes, 232. And if a cargo is necessarily unloaded
at an intermediate point, and the owner sells it there, though the
vessel might have carried it in the spring, the carrier has earned his
freight. Murray v. JEtna Ins. Go., 4 Biss. 417.

In the absence of a statement of weights, in the bill of lading, the ship
is entitled to freight only on the weight delivered, and the weight
stated in the invoice and entry is not conclusive on the consignee.
Lot of Dry Hides, 6 Ben. 200.

The original sliippcr, unless he appears to act as agent for others, is
bound, ])y the ordinary bill of lading, to pay the freight money. This
is the original bargain made, and does not cease to bind the shipper
until it is discharged l)y actual payment, where freight is once earned
and becomes due. Gilson v. Madden, 1 Lans. (N. Y.) 172 ; Holt v.
Wescott, 43 Me. 445 ; Fox v. Nott, 6 H. & N. 630. But it is also
held that whoever receives the cargo from a ship under a bill of lading
is liable to the ship for the freight in the absence of circumstances show-
ing a different understanding. Philadelphia, etc., B. R. Co. v. Bar-
na/rd, 3 Ben. 39.

As between the charterer and sliip-owner, it is always implied that

SHIPPING. 697

delivery of the cargo is to be made upon paj-ment of the whole freight,
unless the terms of the charter-party show the contract to have been
otherwise. Webb v. Anderson^ Taney, 504. And this lien on the cargo
for the freight is not affected by an indebtedness incurred by the cap-
tain to the consignees on his personal account. And if part of the
cargo is delivered, the lien for the whole freight still attaches to the por-
tion detained. Fox v. Ilolt^ 36 Conn. 558.

§ 6. DeliTery of goods toy the vessel. There can be no action for
freight unless delivery is either made, or prevented from being made,
by the act or fault of the shipper, or of the consignee. Bradstreet v.
Baldwin, 11 Mass. 229; Clendaniel v. TucTcennan, 17 Barb. 184;
Brown v. Ralston, 4 Kand. 504 ; S. C, 9 Leigh, 532. And by issuing
bills of lading for merchandise, stipulating for a delivery to order, the
ship becomes bound to deliver it to no one who has not the order of the
shipper. It is no excuse for a delivery to the wrong persons that the
indorsee of the bill of lading was unknown, and that notice of the arri-
val of the merchandise could not be given to him. Diligent inquiry
for the consignee, at least, is a duty. And if, after inquiry, the con-
signee or the indorsee of a bill of lading for delivery to order cannot
be found, the duty of the carrier is to retain the goods until they are
claimed, or to store them prudently for and on account of the owner.
He has no right, under any circumstances, to deliver them to a stranger.
The Thames, 14 Wall. 98. Delivery at a wharf with notice to the con-
signee is sufficient, provided the wharf is suitable for the cargo which
is to be placed upon it. Hyde v. Trent Nav. Co., 5 T. R. 3S9 ; Yose
V. Allen, 3 Blatchf. (C. C.) 289. See The Ville de Paris, 3 Ben. 276.
If the goods are by the terms of the bill of lading to be delivered at a
particular wharf, they cannot, except upon a new arrangement by the
parties, be delivered elsewhere. Sutton v. Bowker, 5 G-ray, 416. And
where a consignee requests the captain of a vessel to deliver his goods,
then on board, at once, and he is notified that the goods will begin to
be discharged at a certain specified time, and by failure of the con-
signee's agent to employ sufficient drays, a portion of the goods were
left on the wharf over night and thereby injured, the goods are suffi-
ciently delivered, so that the vessel is not liable for the injury. Ells-
worth V. The Wild Hunter, 2 "Woods, 315.

If it is a custom at a port of delivery for vessels to be imloaded
through an elevator, each vessel waiting its turn, such custom becomes
part of the contract, and the master takes upon himself the risks and
delays incident to such a method of unloading. The Glover, 1 Brown's
Adm. 166. And where a cargo of wheat is shipped in bulk, to be
delivered under a bill of lading to a consignee who has charge of an
Vol. v.— 88

698 SHIPPING.

elevator at the port of destination, it is not a sufficient delivery to moor
the barge at the dock of the elevator during bad weather, without notice
to the consignee ; and an alleged custom so to moor barges, leaving them
to be taken charge of by the elevator, does not discharge the carrier.
Germania Ins. Co. v. LaCross, etc., Co., 3 Biss. 501.

In all cases the master must give reasonable notice to the consignee
of the arrival of the vessel and of his readiness to discharge the cargo.
Gatliffe v. Bourne, 4 Bing. N. C. 314 ; S. C. affirmed, 3 Man. & G.
643 ; Barclay v. Clyde, 2 E. D. Smith, 95 ; The Peytona, 2 Curtis (C.
C), 21.

§ 7. Forwarding in other vessels. The master or owner may send
the cargo forward in another ship, or even by land conveyance to its
destination, and then claim his whole freight if he has been forced to
put his own ship into a port of distress for necessary repairs. LuTte v.
Lyde, 2 Burr, 882; Rosetto v. Gurney, 11 C. B. 176 ; S. C, 7 Eng. L.
& Eq. 461 ; SUpton v. Thornton, 9 A. & E. 314.

§ 8. Freiglit pro rata. Where there has been a voluntary accept-
ance of the cargo by the shipper and a willing delivery thereof by the
carrier, the carrier is entitled to and the shipper must pay such part or
portion of the whole freight as the part of the voyage performed is of
the whole voyage. Parsons v. Hardy, 14 Wend. 215 ; Hunt v. Has-
Tcell, 24 Me. 339 ; Forhes v. Bice, 2 Brev. 363; But there can be no
such thing as freight, pro rata itineris, unless the bailee voluntarily
gives up the cargo, and the bailor consents to receive it before the place
of destination is reached. WJiitney v. Rogers, 2 Disney (Ohio), 421.
Where there has been a voluntary acceptance by the insurers of a dam-
aged cargo, at an intermediate place, before its arrival at the place of
destination, the master is entitled to freight pro rata itineris. The
Mohawlc, 8 Wall. 153.

§ 9. Ships as common carriers. See Vol. 2, pp. 92-98. The duty
of a common carrier by water is not fulfilled by simply transporting
from port to port. He must land the goods and give a reasonable oppor-
tunity to the consignee to ascertain their condition. Tlie general rule
requires that the carrier shall notify the consignee of the arrival of
the goods, that opportunity may be given for inspection and removal
of them. If exceptions are made by usage, circumstances, or special
arrangement, they must be proved. The Mary Washington, Chase's
Dec. 125.

The owners of a vessel are responsible as common carriers, for specie
received on board by the master, on proof eitlier that he received it as
freight to be transported and delivered at tlie port of destination, or
that he received it and afterward applied it to the payment of the

SHIPPING. 699

expenses of the vessel on the trip. SulakowsTci v. Flint, 22 La
Ann. 6.

§ 10. Suing for non-deliyery or injury of goods. A consignee
with an indorsed bill, or any commercial agent authorized to take and
hold possession of the goods, and deal with them as factor or in any
such way, may bring an action in his own name, either for the goods
themselves, if they are ^vitliheld, or for compensation if they are deliv-
ered in an injured condition. 1 Pars, on Ship. 268. Where goods
arrive in a damaged condition, and it is apparent that the damage was
in great part caused by the carrier's fault, though, to some extent, would
probably have been caused by the perils of the sea encountered by the
vessel, but to what extent the carrier is unable to show, he will be held
liable for the whole. Speyer v. The Mary Belle Roberts, 2 Sawyer, 1.
But where the contents of a cask have entirely leaked out during its
passage by sea, if the carrier introduce evidence leading to the inference
that the loss was caused by a latent defect in the cask which existed
before shipment, the burden is thrown upon the consignees or other
parties in interest to show that the leakage and loss might still have
been avoided by the exercise of reasonable skill, diligence, and attention,
on the part of the carrier. The Olhers, 3 Ben. 148.

The master of a vessel may lawfully refuse to dehver goods to the
consignee which, ha^ving been attached on his vessel, are carried to the
port of consignment under an arrangement with the sheriff that they
should be returned. The Lord, Chase's Dec. 527.

§ 11. Damages for breach of contract of aflfreiglitment. The
measure of damages where goods are lost before the ship of the carrier
leaves the port of lading is the value of the goods at that port, and
the plaintiff is not entitled to the value at the port of destination less
the cost of transportation. Lakeinan v. Grinnell, 5 Bosw. (j^. T.)
626 ; Dusar v. Margatroyrl, 1 Wash. ((J. C.) 13 ; Klnj v. ShepJierd, 3
Story, 349. But when the loss happens after the vessel has left the
port of shipment, then the value of the goods at the place of destina-
tion, deducting the charges, furnishes the true rule of damages. Krohn
V. Oechs, 48 Barb. (X. T.) 127 ; Wallaxie v. Yigus, 4 Blackf. 260 ;
McGregor v. Kilgore, 6 Ohio, 358. The market value governs, and
not the value for any particular use. Cutting v. Grand Trunk H. H.,
13 Allen, 381; Collard v. South Eastern ^., 7 H. & ^. 79; The
Steamboat New Jersey, Olcott's Adm. 446. In ISTew York it is held
that interest does not follow as a matter of course, and is not to be al-
lowed unless the carrier was actually at fault. Wathinson v. Laughton,
8 Johns. 213 ; Lakeman v. Grinnell, 5 Bosw. 625. And it would
seem that in all cases of damage or non-dehvery, when the value at

TOO SHIPPING.

the port of delivery is necessary to complete indemnity, it sliould be
adopted. Watkinson v. Laughton, S Johns. 213 ; Brant v. Bowlhy^
2 Barn. & Ad. 932 ; Gillingham v. Demj:,sey, 12 S. & R. 188.

"What stowage of cargo is sufficient nnder stipulations in the bill of
lading or contract of aftreightment, and whether the vessel or shipper
must bear a loss from breakage, leakage, etc., etc., is determined in
The Star of Hope, 17 Wall. 651; The Ethel, 5 Ben. 154; The An-
toinetta C. id. 564; Bissel v. Camiybell, h\ N. Y. (9 Sick.) 353.

The fact that a vessel is not a common carrier does not relieve her
from the warranty implied in a contract of affreightment, that she is
sound, staunch and seaworthy. The Planter, 2 Woods, 490.

§ 12. General liabilities of owner. A ship-owner who provides a
seaworthy vessel, properly equipped and commanded by competent
officers, has discharged his duties toward the subordinates and cannot
be held liable for mere neglect of the officers. Malone v. The Western
Trans. Co., 5 Biss. 315. And although a vessel laden with wheat in
bulk is more liable to sea damage than if laden with some other car-
goes, and may be disabled from proceeding on her voyage by encoun-
tering winds and waves through which a different cargo might pass
without injury, yet, if there was no fault in the ship, in her equip-
ment, in the storing of the cargo, or in the manner in which she was
navigated, and if every precaution was taken which is usual in trans-
porting such a cargo, the owners cannot be charged with the loss.
Hooper V. Ratlibone, Taney, 519. In short, where every thing re-
quired by reasonable care and skill in navigation and in the carriage of
goods, is done, neither the vessel nor her owners can be held liable for
accidental damage. Levij v. The Great Republic, 2 Woods, 33. See
The Costa Rica, 3 Sawyer, 538.

The object of the act of congress of 1851, ch. 43, § 1, limiting the
liability of ship-owners for loss of goods by fire, was to exempt them
from common liability as carriers for acts of agents and servants ; and not
to diminish their responsibility for their own willful or negligent acts.
If the fii'e was caused 1>y the design or neglect of the owners themselves,
the section does not apply. Hill Manuf. Co. v. Providence, etc., New
York Steamship Co., 113 Mass. 495 ; S. C, IS Am. Rep. 527. See
Headrick v. Virginia, etc., R. R. Co., 48 Ga. 545.

The publication of a cargo list of a vessel in a daily newspaper upon
her arrival is not such a notice to the consignee as is requisite to dis-
charge a ship-owner from lia])ility under a bill of lading. Caruaiia v.
British Steam Packet Co., 6 Ben. 517. Any way, if such notice is re-
lied on, it should be shown that the consignt^e read the notice. Kohn
V. Packard, 3 La. 224. See Narthern v. Williams, 6 La. Ann. 578.

SHIPPING. 701

§ 13. Defenses. Unreasonable delay in the delivery of a cargo does
not constitute a defense to a libel for freight, without proof of damage
sustained by the owner of the cargo, through such delay ; as, for
instance, proof of a fall in the market value during the time. Page v.
Munro, 1 Holmes, 232.

ARTICLE Y.

OF CHAKTEK-PARTIES.

Section 1. In general. The law relating to charter-parties will be
found fuUy discussed, ante, Yol. 2, pp. 151-165.

Following are the notes of a few recent decisions relative to the con-
struction of charter-parties:

The charterer, when he has complete control of the vessel, is, jp'ro
hoc vice, owner, as to parties dealing with him in such capacity ; but
he is not such in a contest with the actual owners for the value of the
vessel, and on the terms of the charter-party. Wilkinson v. Dalferes
27 La. Ann. 379.

A covenant in a charter-party requiring the owner to keep the vessel
tight, staunch, etc., " in every respect fit for merchant service, at the cost
and charge of the owners," and placing her for an unlimited time at
the entire disposal of the charterers, is not inconsistent with another,
requiring the charterers to return the vessel to the owners " in the
same order as when received, ordinary wear and tear, damage by the
elements, collision at sea and in port excepted." Silliman v. U- S.,
12 Ct. of CI. 433.

A proviso, in a charter-party, against liability for detention, unless
" by default " of the charterer, exempts him only from delay from
causes beyond his control, acting directly to retard the discharging.
Thacherv. Boston Gas-light Co., 2 Low. 361.

Where agents of a vessel, who are part-owners, charter the vessel to
a creditor of their own, to enable him to repay himself out of the earnings,
the charter-party is void as against the vessel and the other owners.
The A. M. Bliss, 2 Low. 103.

An agreement in a charter-party, for quick dispatch, supersedes any
custom of discharging vessels by which they are to take tlieir turn at
the wharf. And the naming a wharf in the charter-party containing
such a stipul'atiou amounts to an undertaking that the wharf shall be
unincumbered. Thacher v. Boston Gas-light Co., 2 Low. 361.

Where government officers withhold a vessel which, by the terms of
a charter-party, the government may retain in its service, or where
government officers withhold charter-money, for the purpose of com-

702 SHIPPING.

pelling the owners to execute a new charter-party, this is not a case of
duress ; and if the owners to avoid litigation execute a new charter-party,
under the pressure, it must be deemed voluntary. Silliman v. United
States, 12 Ct. of CI. 433.

Where a vessel is let to the government, and, by the terms of the
charter-party, the owners are to keep her " tight, staunch," etc., " fit for
merchants' service," the owners cannot recover for her services when
laid up for repairs. White v. United States, 11 Ct. of CI. 578.

ARTICLE VI.

OF GENEEA.L AVERAGE.

Section 1. Definition and nature. General average (also called
gross) consists of expense purposely incurred, sacrifice made, or dam-
age sustained for the common safety of the vessel, freight, and cargo, or
the two of them, at risk, and is to be contributed for by the several
interests in the proportion of their respective values exposed to the
common danger, and ultimately surviving, including the amount of
expense, sacrifice or damage so incurred in the contributory value.
2 Phil, on Ins., § 1269. And seeSturgess v. Cary, 2 Curtis (C. C), 59;
Greely v. Tremont Ins. Co., 9 Cush. 415.

§ 2. Sacrifice of property for general good. It is well settled
in the courts of the United States, that, where a vessel and cargo are
in common peril, and the master, for the purpose of avoiding a greater
peril, selects another and less peril, he can recover compensation, in
general average, from the cargo thereby saved. Thus, when a vessel
is voluntarily stranded, with a view to promote the general safety, tlie
damage to the vessel is a general average loss. 0' Connor v. TIw Ocean
Star, 1 Holmes, 248 ; Fowler v. Rathlones, 12 Wall. 102 ; Fitzpat-
rich V. Bales of Cotton, 3 Ben. 42 ; Patten v. Darling, 1 Clif . C. C. 254.
But to make a case for general average, the property saved and the
property sacrificed must be exposed to a common danger, the sacrifice
of a part must contribute to the saving of the residue, and the sacri-
fice must be voluntary. Delano v. Cargo of the Gallatin, 1 Woods,
642 ; Sims v. Gurney, 4 Binn. 524 ; Stafford v. Dodge, 14 Mass. 74 ;
Williams \. Suffolk Ins. Co., 3 Sumn. 513. If the will of man did
in some degree contribute to the stranding of the ship, this is enough
to constitute the stranding a voluntary act within the meanmg of the
commercial law. Star of Hope, 9 Wall. 203.

If a part of the cargo, instead of being thrown into the sea, is, for
the purpose of relieving the ship, put into boats to be taken to the shore,

SHIPPING. 703

And is lost on the way there, this would give a claim for contribution,
although it was hoped that the goods would reach the shore safely.
Lewis V. Williams, 1 Hall, 437. So goods taken out of a ship and put
upon the beach to lighten her when stranded, if there damaged, fur-
nish a claim for contribution. Hennen v. Monro, 16 Mart. (La.) 449.
But if in the common peril a part of the goods were put into the boats
as the only way of saving them, and with no purpose of saving the
rest of the property, and the boats were swamped, and the goods lost,
there should now be, on the general principles of average, no claim for
contribution, although the lightening of the vessel did in fact relieve
her. Whitteridge v. Norris, 6 Mass. 125.

Goods shipped on deck with the consent of the shipper and con-
signee, or without it, are not such goods, as, if jettisoned, can claim
contribution from other goods shipped. For it is a general and an ancient
rule of the law of shipping, that goods shall not be carried on deck.
Dodge v. Bartol, 5 Greenl. 286 ; Qram v. Aiken, 13 Me. 229 ; Doane
V. Keating, 12 Leigh, 391 ; Taunton Copper Co. v. Merchants' Ins. Co.,
22 Pick. 108 ; Lenox v. United States his. Co., 3 Johns. Gas. 178.

§ 3. Loss by perils of sea. All ordinary loss or damage sustained by
the ship happening immediately from the storms or perils of the sea,
cannot be the subjects of general average. Birkley v. Presgrave, 1
East, 220 ; Covington v. Roberts, 2 X. E. 37S ; Skiff v. La. State
Ins. Co., 18 Mart. (La.) 629. Damage occasioned to the ship and
tackle by standing out to sea with a press of sail in tem^Destuous weather,
the press of sail being necessary in order to avoid an impending peril
of being driven on shore and stranded, is not the subject of general
average. Power v. Whitmore, 4M. & S. 141. So, too, where the bows
of a vessel were cut by ice, and a part of her cargo being linseed,
which was wet by the water that came in through the holes made in
the vessel by the ice, and the linseed being swollen by the water, the
vessel was injured, it was held that the injury was a damage from a
peril of the sea, and could not be allowed in general average, although
the vessel was voluntarily stranded for fear that she and her cargo would
go down in deep water. Rathhone v. Fowler, 6 Blatchf. 294.

§ 4. Of the sacrifice generally. No loss or expense is considered
and applied as general average unless it was intended to save the
remaining property, and unless it accomplished its object. Williams
V. Suffolk Ins. Co., 3 Sumn. 510 ; Scudder v. Bradford, 14 Pick. 13;
Walker v. United States Ins. Co., 11 Serg. & R. 61. There is no
contribution if, at the time of sacrificing the cargo, there was no pos-
sibility of saving it. Crockett v. Dodge, 12 Me. 190. So of a vessel
nm ashore where there was no possibility of saving her. Meech v.

T04 SHIPPmG.

Robinson^ 4 Whart. 360. A previous consultation by the master and
crew is not necessary to create a case of general average. It is suffi-
cient if it appear that the act has been done and the loss occasioned by
the effect of judgment and not by accident. Slmis v. Gurney^ 4 Binn.
513 ; Col. Ins. Co. v. Ashhy, 13 Pet, 342. The master is responsi-
ble for the due exercise of liis own judgment in case of a jettison.
The crew of a vessel are not authorized to make a jettison of any part
of the cargo, even in case of distress, without the order of the master-
The Nimrod, 1 Ware, 14. All damages immediately arising from jetti-
son or other act of necessity is to be contributed for, though it happen
to perishable articles, which remain in specie. Therefore, if, in
cutting away a mast, it be splintered, so that com, which is part of the
cargo, sustains damage, that damage is to be included in the general
average. Maggrath v. Churchy 1 Cai. 196 ; Saltus v. Ocemi Ins. Co.,
14 Johns. 138. But a removal in a port of necessity, for the purpose
of repairs, of a quantity of perishable fruit, which removal increased
an incipient decay and precipitated an entire loss of the fruit, is not a
matter for general average. Bond v. The Superb, 1 Wall. Jr. 355.

§ 5. Sale by master. If a vessel be disabled by the perils of the
sea, from carrying her cargo to its destination, and the master is unable
to raise the money for repairs by bottomry or respondentia, he may
sell part of the cargo to enable him, by repairing the ship, to carry the
remainder to its destination, and it would seem that this would be a
subject of general average. It satisfies the three great requirements
of the law of general average, for it is voluntary, necessary and
effectual. The Gratitudine, 3 Rob. Adm. 240, 255 ; Dobson v. Wil-
son, 8 Campb. 480 ; Richardson v. Nourse, 3 B. & Aid. 237 ; Has-
sami V. St. Louis Ins. Co., 7 La. Ann. 11.

§ 6. What expenses come in general average. In America, the
rule seems definitively settled in our principal commercial States that
whatever be the nature of the injury, whether arising from a voluntary
sacrifice or a mere peril of the sea, the wages and provisions of the
crew from the time of putting away for the port, and every other
expense necessarily incurred during the detention, for the benefit of
all concerned, are to become as general average. See Paddleford v.
Boa/rdman, 4 Mass. 548 ; Dunham v. Com. Ins. Co., 11 Johns. 315 ;
Jones V. Ins. Co. of iT. America, 4 Dall. 246 ; S. C, 2 Binn. 547 ;
Boss V. The Ship Active, 2 Wash. (C. C. ) 226 ; Thornton v. U. 8.
Ins. Co., 12 Mo. 150. In like manner, the expenses of loading and
.unloading, reloading, storage, etc., are general average. Barher v.
Phcenix Ins. Co., 8 Johns. 307 ; The Copenhagen, 1 Rob. Adm. 289,
294.

SHIPPING. 705

The expenses and charges of going to a port of necessity to refit,
can properly be a general average only where the voyage has been or
might be resumed. The doctrine does not apply if the voyage has
been abandoned from necessity. Williams v. Suffolk Ins. Co.^ 3
Snmn. 510. And the expenses of repairing the ship itself, at least if
not occasioned by a voluntary sacrifice, are not a general average.
Paddleford v. Boardman^ 4 Mass. 548. Nor are the expenses for the
wages and provisions of the ship's crew, while the ship is repairing,
after she has arrived at her port of destination and delivered her
cargo. Dunham v. Com. Ins. Co., 11 Johns. 315.

Expenses incurred in raising a sunken vessel, not for the purpose of
saving the vessel and crew and cargo from a common danger, but for
the mere purpose of getting up the vessel so that she might be repaired,
are not general average. Fireman's Ins. Co. v, Fitzhugh, 4 B. Monr.
(Ky.) 160.

The expenses of employing extra seamen in pumping and navigat-
ing the vessel from the place where she was injured to a port of neces-
sity is a general average charge. OrroTc v. Cominonioealth Ins. Co.,
21 Pick. 456; DaCosta v. Newnham, 2 T. K. 407. See Goodwillie
V. McCarthy, 45 111. 186.

If a vessel be stranded near her port of delivery and her cargo be
transported in lighters and thus saved, the salvage and the expense of
the hghters, etc., are general average. Heyliger v. N. Y^. Firemen^s
Ins. Co., 11 Johns. 85. So, of the damage, if the goods sustain injury
during the passage in the lighters. Lewis v. Williams, 1 Hall (N.
Y.), 430.

§ 7. Adjustment of general ayerage. The process of determining
what amount shall be paid by way of contribution, of assessing this
upon the interests which are required to contribute, and of apportion-
ing it among the interests which receive contribution, is called the
adjustment of average losses. 1 Pars, on Ship. 415. The object is
generally attained by adding together the values of all the property,
both saved and lost, and ascertaining the proportion which the value
of what is lost bears to this whole value. And every owner must pay
in this same proportion of his property saved to the owner of the lost
property.

Where the cargo is sent from the port of disaster to the port of
destination by another vessel at a higher rate of freight than under
the original contract, the contribution of general average is to be on
the basis of the value of the cargo at the port of destination. Mc-
Loon V. Cummings, 73 Penn. St. 98.

§ 8. TVhat adjusted as general average losses. See ante, 704, § 6.
YoL. Y.— S9

706 SHIPPING. *

All ordinary losses and damage sustained by the ship happening imme-
diately from the stonn or perils of the sea must be borne by the ship-
owners ; but all those articles which were made use of by the master
and crew upon the particular emergency, and out of the usual course,
for the benefit of the whole concern, and the otlier expenses incurred,
must be paid proportionably by the defendant as general average.
Birldey v. Presgrave, 1 East, 220.

Where deck cargo (timber) lawfully laden pursuant to charter-party,
having broken adrift in consequence of stormy weather, and impeding
the navigation and endangering the safety of the vessel, is necessarily
thrown overboard, the shipper is entitled to claim general average in
respect thereof as against the ship-owner. Johnson v. Chapman, 19
C. B. (K S.) 563.

When masts and spars which have been cut away to avoid the de-
struction of a vessel in distress, and to save the cargo, injure the deck
in falling and destroy rails and bulwarks, or do other damage, the repairs
of such damage belong to the general average. Patten v. Darling, 1
Cliff. (C. C.) 254.

Where the bows of a vessel are cut by ice, and there is danger of
vessel and cargo going down together in deep water, and the master
voluntarily stranding her, she is thereby injured, the case is one author-
izing a general average contribution. PatKbone v. Fowler, 6 Blatchf.
294.

Goods laden on deck with the consent of the shipper, under a bill
of lading excepting " dangers of navigation," and necessarily jettisoned,
do not make a case for general average. And the fact that the ship-
ment on deck was sought by the master for the purpose of trimming
the vessel is immaterial. The Milwaukee Belle, 2 Biss. 197. See, also,
The Congress, 1 id. 42.

§ 9. Cargo to contribute. When a vessel or its cargo takes fire
without the fault of the crew, the damage done by the application of
water or steam in extinguishing the fire and by tearing up part of the
vessel in order to get at it, is general average. NimieJc v. Holmes, 25
Penn. St. 366. See, also. Nelson v. Belmont, 5 Duer (N. Y.), 310.

Where the agent of a wrecking company is emplo^^ed by the master
of a shipwrecked vessel to raise and save the vessel and cargo, and
there])y a (quantity of petroleum is saved, the petroleum must contribute
in general average, and not merely fur the value of services rendered
in preserving it. Jones v. Bridge, 2 Sweeny (N. Y.), 431.

In a case of voluntary stranding, if the vessel has gone to pieces, the
saved cargo must contril)ute in general average to the loss sustained by
the owners of the vessel, taking her value as she was at the time the

SHIPPING. r07

stranding was determined upon, without regard to her then peril. Bales
of Cotton, 8 Blatchf. 221.

§ 10. Loss of freight or profit. The entire freight of the cargo
thrown overboard is to be added to the loss as a part of the sacrifice, and
is to be allowed to the ship-owners. This is the settled course in the
adjustment of general average. The sliijp Nathaniel Hooper^ 3 Sumn.
542; Nelson v. Belmont^ 5 Duer, 310, 322. A loss on profits, as profits^
is never adjusted in a general average loss.

§ 11. Expenses. The principle of contribution is, that every thing
which is saved by common expense and labor shall pay that expense in
proportion to its value ; therefore, property taken from the vessel by
the owners before the expense was incurred by which the vessel was
saved, is not subject to contribution, as it cannot be said to have been
saved by that expenditure. Bedford Ins. Co. v. Parker, 2 Pick. 1, 10.
See Lyo7i v. Alvord, 18 Conn, QQ.

Whatever expenses or charges are necessarily incurred where a vessel
is compelled to seek refuge from a tempest, in a port out of her course
or short of her port of destination, for the mutual safety of the ship and
cargo, the owners of each are respectively bound to contribute in ]3ro-
portion to their several interests. The following charges apj)ear to be
of that description : piloting ( Wightman v, McAdam, 2 Brev. [S,
C] 230) ; harbor-master and health officer's charges ; wharfage to
unload and unloading, and, perhaps, the protest (id.) ; charges of watch-
men (Stephens on Average [5th ed.], 23) ; of men hired to assist in
pumping the ship {Orrok v. Com. Ins. Co., 21 Pick. 469); all the
expenses necessarily incurred for the repair of the ship, necessary
loading or unloading {The Copenhagen, 1 Rob. Adm. 289, 294;
Plummer v. Wildman, 3 M. & S. 482; Barker v. Phoenix Ins. Co.,
8 Johns. 307) ; survey made at a foreign port, to ascertain the amount
of damage and propriety of making repairs, if the damage is a peril
insured against. Potter v. Ocean Ins. Co., 3 Sumn. 27.

§ 12. Value of interest on adjustment. The adjustment is to be
made in the same manner, whether the ship, freight and cargo belong
to the same or to different persons. Spafford v. Dodge, 14 Mass. ^^ ;
Jumel V. Mar. Ins. Co., 7 Johns. 412. The contribution is to be ad-
justed according to the value of the respective articles saved, at the
time and hi the place when and wliere the expense was incurred, in like
manner as if all the three parties had been present, and each had orig-
inally paid his own proportion. Douglas v. Moody, 9 Mass. 548. In
ascertaining the value of a ship, as a proper basis of her contributor)'-
value in a statement of the amount for general average, in the absence
of better evidence, the value as given in the policy of insurance at her

708 SHIPPING.

port of departure may be taken. But from this should be deducted a
just and reasonable amount for deterioration. Star of Hope, 9 Wall.
203 ; Mut. Saf. Ins. Co. v. Cargo of the Ship George, Olcott's Adm.
157.

In New York the freight contributes on one-half the gross amount
earned. Reyliger v. iV. Y. Ins. Co., 11 Johns. 85. The prevailing
rule in this country is to apportion the general average of contribution
on two-thirds of the gross amount of freight earned. Hximphreys v.
Union Ins. Co., 3 Mason, 429. It is said that in England only the
wages are deducted. Marsh on Ins. 467.

The contributory liability of goods is limited to merchandise. Brown
V. Stapyleton, 4 Bing. 119 ; Weston v. Train, 2 Curtis (C. C), 49. And
merchandise is said to include all articles of great value, not carried on
the person. Brown v. Stapyleton, 4 Bing. 119. And see Harris v.
Moody, 30 N. Y. (3 Tiff.) 266 ; S. C, 4 Bosw. 210.

The contributory value of goods in adjustment is that which they
have at the time and place where they are considered as finally saved.
Bedford Ins. Co. v. Parker, 2 Pick. 1, 11.

§ 13. Effect of adjustment. The general rule undoubtedly is in
this country, that an adjustment made in good faith, and with a full
knowledge of all the material facts of the case, is binding upon the
parties. 1 Pars, on Ship. 464. It may, however, be doubted whether it
is not otherwise in England. See Shepherd v. Chewier, 1 Camp. 274.

§ 14. Foreign adjustment. A foreign adjustment made at any
port at which it ought, for sufiicient reason, to be made, is binding upon
all the parties to it. For this purpose the different states of this countiy
are considered as foreign to each other. lewis v. Williams, 1 Hall (N.
Y.), 430. The adjustment may be delayed as long as all the contribu-
tory interests continue together, and should be delayed until the vessel
reaches her port of final destination, if they are to continue together so
lone. But if these interests are to be separated, then the adjustment
should be made at the place where the separation first takes place.
loring v. Neptune Ins. Co., 20 Pick. 411. And the adjustment must
conform to the laws and usages of the place where it is made. Id. ;
Strong v. Firemen's Ins. Co., 11 Johns. 323.

§ 15. Payment of adjustment. The owner of goods chargeable
with general average is personally lial)le for the amount of his contribu-
tion, notwithstanding he has abandoned to the underwriters. Delaware
Ins. Co. V. DeloAinie, 3 Binn. 295. And the master, as the agent of all
concerned, has a lien on all the goods in the ship for their contributoiy
shares. Strong v. Firem. 7ns. Co., 11 Johns. 323, 336; Thornton v.
TJ. S. 7n.9. Co., 12 Mo. 15^; Chamberlain v. Reed, 13 id. 357; Briggs

SHIPPING. 709

V. Merchcmt Traders' Ins. Assoc, 13 Q. B. 167, 174 ; HaUett v. Bonis-
fdd, 18 Ves. 187; GilUtt v. Ellis, 11 lU. 579.

AKTICLE VII.

STOPPAGE IN TRANSITU.

See, as to stoppage in transitu, tit. Sales, ante, 527.
ARTICLE VIII.

OF COLLISION.

Section 1. In general. Wlien a collision takes place by inevitable
accident, without blame being imputable to either party, as where it
is occasioned by a storm or any other vis major, the misfortune must
be borne by the party on whom it happens to light. In this, the civil
law, the common law, and the maritime law of Europe, of England,
and of this country agree. But if one party is at fault and the collision
is caused thereby, such party must suffer his own loss and compensate
the other party for what loss he may sustain. The Scioto, Davies, 360 ;
The Woodrop, Sims, 2 Dods. 83 ; Beeves v. Shij) Constitution, Gilpin,
679 ; The OUr, 2 Hugh. 12. Inevitable accident is only when the dis-
aster happens from natural causes, without negligence or fault on either
side, and both parties have endeavored, by every means in their power,
with due care and caution, and with a proper display of nautical skill,
to avoid injury. Sampson v. United States, 12 Ct. of CI. 480 ; The
Clarita OMd the Clara, 23 Wall. 1, 11. See The Virgil, 7 Jur. 1174 ;
S. C, 2 W. Rob. 201.

The mere fact of a collision between two vessels does not in itself
raise a presumption of negligence on the part of either ; but the cir-
cumstances may be such as upon proof of the situation of the injured
vessel, to raise a presmnption of want of reasonable care, caution and
skill on the part of the other. The Bridgeport., 7 Blatchf. 361. And
the omission of a known legal duty is such strong evidence of careless-
ness and negligence, that, in every case of collision happening under
euch circumstances, the offending vessel should be held to be altogether
in fault unless clear and indisputable evidence establishes the contrary.
Taylor v. Harwood, Taney, 437. But the fact that one boat is in fault
will not justify another in the infliction of an injury that can be avoided
by the observance of proper skill and care. And, in determining the
question of fault with a view to the ascertainment of liability for an
injury, the proximate cause of the injury must be regarded. If that

710 SHIPPING.

proximate cause is found in the improper attempt of the colliding ves-
sel to land, or the inexcusable violence with which it was landed, the
respondents are not shielded from liability by proof of negligence on
the part of the other vessel which had no connection with the act that
produced the injury. Mills v. The Nathaniel Holmes^ 1 Bond, 352.
To nearly the same effect : Western Ins. Co. v. The Goody Friends.,
1 Bond, 459 ; The Maria Martin, 12 Wall. 31.

Risk of collision begins the moment the two vessels have approached
so near that a collision may be brought about by any departure from the
rules of navigation, and continues up to the moment when they have so
far progressed that no such result could ensue. Under such circum-
stances, vessels should adopt such a rate of speed as to be at all times
under ready and complete control until the risk is passed. The Mil-
waukee, 1 Brown's Adm. 313. And the excuse that the error of the
hehnsman, by which a collision was caused, was induced by excitement
from the imminence of the peril, cannot be admitted where the peril
itself was brought about by the negligence, etc., of those in charge of
the same vessel. The Dexter, 23 Wall. 69, 76.

Where a collision occurs between a vessel in motion, propelled by
sail or steam, and a vessel or thing at rest, the vessel in motion i&prima
facie at fault, and can excuse itself only by showing the cause of the
disaster not to be one of the ordinary forces of nature, but something
unexpected, such as a sudden storm, an unknown current, or an unex-
pected derangement of the machinery, which could not have been antic-
ipated or guarded against by the exercise of ordinary nautical skill.
H^all V. Little, decided August 1,1878, in C. C. Dist. of Ky. ; reported,
18 Alb. L. J. 151 ; The Lady FranUin, 2 Low, 220 ; Bill v. Smith,
39 Conn. 206 ; The Milwaukee, 2 Biss. 509. So, too, where a vessel
breaks from her moorings, and comes into collision with another vessel,
also at anchor, the burden of proof is on the former to show vis major,
or inevitable accident. The injured vessel is not in fault for omitting
to set an anchor's watch. The Fremont, 3 Sawyer, 571.

It is not a sufficient defense in a libel for collision to set up that a
sound boat would not have sustained any damage. The Sam Gaty, 5
Biss. 190.

The owner of a scow which is sunk in navigable waters by his negli-
gence, or being raised ])y him without proper precaution to warn the
public, is liable for injury to a vessel Avhich strikes upon it in the exer-
cise of due care, and as a result of his negligence. Boston, etc.. Steam-
loot Co. V. M'unson, 117 Mass. 34.

According U) tlie rule which prevails in the court of admiralty, in a
case of collision, if both vessels are in fault, the loss is equally divided;

SHIPPING. 711

but in a court of common law the plaintiff has no remedy if his negli-
gence, in any degree, contributed to the accident. Doioell v. The Gen.
Steam J^avigation Co., 5 Ellis & B. 195 ; S. C, 32 Eng. L. <fe Eq. 158 ;
Ba/mes v. Cole, 21 Wend. 188 ; Duggins v. Watson, 15 Ark. 118.
But the negligence of the plaintiff, in order to preclude him from recov-
ering, must be such that the defendant could not, by ordinary care, have
avoided the consequences of it. Butterfield v. Forrester, 11 East, 60 ;
Bridge v. The Grand Jxtnction R. R. Co., 3 M. & W. 244 ; Tuff v.
Wa/rman, 2 C. B. {^. S.) 740.

§ 2. Lights. By the maritime law whether a vessel should have a
light or not was generally a question of fact, to be decided by all the
evidence in each particular case, whether the omission of a light consti-
tuted negligence. Tlie Victoria, 3 W. Rob. 49 ; Innis v. Steamer Sena-
t<yr, 1 Cal. 459 ; Rogers v. Steamer St. Charles, 19 How. 108 ; The
Samia Clans, 1 Blatchf. (C. C.) 370 ; N. Y. Steamboat Co. v. Calder-
wood, 19 How. 241, In this country it is, by statute, obligatory upon
aU vessels in navigable waters to carry one or more signal lights. U. S.
Rev. Stat. 821, 822. (It is foreign to the purpose of this chapter to
give these statutory rules in full, and our space permits us to give only
the recent decisions in regard thereto.)

The rules of navigation established in the British orders in counail
January 9, 1863, prescribing the kinds of lights to be used on British
vessels, and substantially re-enacted by the act of congress of April
29, 1864 (13 Stat, at Large, 58), and accepted as obligatory by more
than thirty of the principal commercial States of the world, are to be
regarded, so far as relates to the vessels of those States, as laws of the
sea. And of the historical fact that by common consent of mankind
they have been acquiesced in as of general obligation, courts will take
judicial notice. The Scotia, 14 Wall. 171 ; The Continental, id. 345.

A green and red light placed in the center of a schooner, forward,
and separated only by a board, do not fulfill the requirements of the
act of congress. The lights must be placed at the sides of the vessel.
The Empire State, 2 Biss. 216.

Non-compliance by a vessel with the provisions of the navigation
laws in regard to lights is negligence, wliich will defeat a recovery by
its owners for injuries to it, resulting from a collision with another ves-
sel, if the absence of the proper lights in any way contribute to the
injury. But where the evidence tends to show that the collision
resulted solely from other causes, the question of contributory negli-
gence becomes one of fact. Whitehall Transportation Co. v. iV. J.
Steamboat Co., 51 N. Y. (6 Sick.) 369 ; The Scottish Bride v. Ths
Anthony Kelly, 1 Penn. Leg. Gaz. Rep. 289. But neirlect by one

712 SHIPPING.

vessel to show proper signal Kghts does not absolve the other from the
obligation to observe the usual laws of navigation, or such reasonable
precaution as the circumstances call for. The Empire State, 2 Biss.
216 ; Sillimmi v. Lewis, 49 N. Y. (4 Sick.) 379 ; Swift v. Brownell,
1 Holmes, 467 ; The Gray Eagle, 9 Wall. 505, A steamboat con-
tinuing her course at very nearly her highest rate of speed, in a fog so
dense that an approaching vessel with all proper lights cannot be seen
at a distance of three hundred feet, is in fault, and liable in case of
collision. The Bristol, 10 Blatchf. 537. In a case where a sailing
vessel under way with her regulation lights properly exhibited, was
overtaken and run down by a steamer at night, it was held that no
blame attached to the sailing vessel for not exhibiting a light over her
stem. The Earl Spencer, L. E., 4 Adm. & Eccl. 431 ; S. C, 14 Eng.
R. 684.

Approaching vessels have a right to expect compliance with the law
regulating the display of lights, and exercise their judgment accord-
ingly ; and, even if the same circumstances should operate to lead, in
one instance, to the erroneous belief that the faulty vessel is a steamer,
and, in another instance, to an erronous belief that the faulty vessel is
a sailing vessel, it by no means follows that either of the deceived
parties is in fault. If they actually exercise proper vigilance and skill,
and yet are in fact misled, they are not responsible if, under circum-
stances apt to create doubt, their judgment was in fact deceived. The
Continental, 8 Blatchf. 3. Compliance with statute regulations in
regard to lights does not, in all cases, show a full performance of duty.
The R. W. Burroives, 7 Blatchf. 374.

§ 3. Fog signals. By act of congress of 1864, and of 1871 (U. S.
Rev. Stat. 822), it is enacted that certain fog signals shall be used in a
fog, or in thick weather, whether by day or night, as follows :

" (A.) Steam vessels under way shall sound a steam whistle placed
before the funnel not less than eight feet from the deck, at intervals of
not more than one minute."

" (B.) Sail vessels under way shall sound a fog horn at intervals of
not more than five minutes."

" (C.) Steam vessels and sail vessels when not under way shall sound
a bell at intervals of not more than Hve minutes."

" (D.) Coal boats, trading boats, produce boats, canal boats, oyster
boats, fishing boats, rafts or other water craft, navigating any bay, har-
bor or river, by hand-power, horse-power, sail, or by tlic current of the
river, or anchored or moored in or near the channel or fairway of any
bay, harbor or river, aiKl not in any port, shall sound a fog horn, or

SHIPPING. . 713

equivalent signal, which shall make a sound equal to a steam wMstle,
at intervals of not more than two minutes."

A sand boat moored in the channel of a river near a large city, and
at a place where vessels in making a landing would natarally come, is
in fault for a collision because during a heavy fog and snow storm in
which it was unpossible to see but a short distance, she failed to give
the usual fog signals. TJie Porter^ 2 Dill. 146. When a vessel is pro-
ceeding, at the time of the injury, without the proper cautionary sig-
nals, the fact may raise a presumption that the collision resulted from
the want of them ; but when evidence is given tending to prove that
it resulted solely from other causes, it becomes a question of fact for
the jury. Hoffman v. The Union Ferry Co., 47 N. Y. (2 Sick.) 176.

There is no rule of law or usage requiring a vessel to lay to or come
to anchor during a fog. Whether it is more prudent so to do, or to pro-
ceed cautiously, is for the master to determine, and whether he exercises
reasonable care and prudence in the determination is a question for the
jury. Hoffman v. Unio7i Ferry Co., 68 N. Y. (23 Sick.) 385.

A ferry boat is not exempted from the exercise of care and skill
proportionate to the dangers of navigation and the circumstances in
which she is in respect to other vessels. Id.

§ 4. Steering and sailing rules. Congress has enacted certain
steering and saiKng rules for which see Rev. Stat. U. S. 823 et seq. It
is possible in this chapter only to notice the later decisions under those
rules. The rules of na^ngation prescribed for avoiding collisions, such
as the rule that " when sailing ships are meeting end on, or nearly so,
the helms of both shall be put to port,'' are obligatory from the time
that necessity for precaution begins, and continues to be applicable so
long as the means and the opj)ortunity to avoid the danger remain. They
do not apply to a vessel required to keep her course after the approach
is so near that the collision is inevitable, and are equally inapplicable to
vessels of every description while they are yet so distant from each
other that measures of precaution have not become necessary to avoid
the collision. The DexUr, 23 Wall. 69, 76. See The Huntsville, 8
Blatchf . 228 ; The Johnson, 9 Wall. 146.

The rule that where two vessels are meeting in opposite directions,
each one sliaU port her helm, so as to pass the other on the port side,
applies only to cases where both are steamboats or both sailing vessels.
If one is a steamer and the other navigated only by sails, the latter
should keep her course, and the steamboat should keep out of her
way. Ta/ixey v. The Louisiana, Taney, 602 ; PhilacMj)hia, etc., R.
R. Co. V. Kerr, 33 Md. 331 ; The Free State, 91 U. S (1 Otto) 200 ;
The Carroll, 8 Wall. 302. And from the moment the steamer sees the
YoL. v.— 90

Tl-i SHIPPIISrG.

sailing vessel, the former must watch the course and movements of the
latter with the highest diligence, so as to be able to adopt such timely
measures of precaution as will prevent the two vessels coming in con-
tact, and if a collision occurs through a failure to exercise such diligence •
and to adopt such precautions, she is liable. Mailler v, Express Pro-
peller Line, 61 IS". Y. (16 Sick.) 312. But if a steamer take all nec-
essary precautions in such case and a collision occurs in consequence of
an unexpected change of course on the part of the sailing vessel con-
trary to the rules, the steamer is not chargeable. The Potomac, 8 Wall.
590. But an error committed by a vessel required to keep her course,
after the collision is inevitable, will not impair her right to recover for
the injuries resulting from the collision, if she was otherwise without
fault. The FairhanTcs, 9 Wall. 420 ; The Western Metropolis, 6
Blatchf. 210.

A sailing vessel navigating a river, may take advantage of a favor-
able tide or current as well as of a favorable wind, and, while drifting,
is not required to anchor or take other measures to avoid collision with
an approaching steamer. Parrott v. Knickerbocker Ice Co., 46 N. Y.
(1 -Sick.) 361.

The rule requiring a sail vessel to keep her course when ap-
proaching a steamer in such direction as to involve risk of collision
does not forbid such necessary variations in her course as will enable
her to avoid immediate danger arising from natural obstructions to
navigation. The John L. Hasbrouck, 93 U. S. (3 Otto) 405.

It is incumbent upon the vessel claiming the protection of the rule and
a departure from the statutory requirement to show, — 1. That a proposi-
tion to depart from the statute was made by her by means of the signals
prescriljed by rule one, and in due season for the other vessel to receive the
proposition and act upon it with safety. 2. That the other vessel heard
and understood the proposition thus made. 3. That the other vessel ac-
cepted the proposition. The Milwaiikee, 1 Brown's Adm. 313. See
The Johnson, 9 Wall. 146 ; The Louis Dole, 5 Biss. 172.

It is the duty of steam vessels navigating waters where sailing vessels
are often met with, to keep a trustwortliy and constant lookout in ad-
dition to the helmsman. Philadelphia, etc., R. R. Co. v. Kerr, 33
Md. 331. As a general rule, one to whom belongs the responsibility
of controlling and directing the conduct of all affairs on board a
vessel is not a proper lookout. The City of New York, 8 Blatchf.
194 ; The Tillie, 13 Blatchf. 514 ; Bill v. 'Smith, 39 Conn. 206. And
passengers cannot be regarded as lookouts in any sense known to the
maritime law, unless they are specially designated by the master for
that pur]3ose. Amoskeag, etc., Co. v. The JoJvn Adams, 1 Cliff. (C. C.)

SHIPPmG. 715

404. But a neglect to keep a proper lookout, which does not in any-
way contribute to a collision, cannot be alleged as a ground on which
to recover damages caused by the colKsion. Shirley v. The Richmond^ 2
"Woods, 58; The Milwaukee^ 1 Brown's Adm. 313; TJie Farragut, 10
Wall. 334.

An anchor-watch is not bound to take any active measures to get his
vessel out of the way of a vessel under command, approaching in broad
daylight at the rate of eight knots, nor to hail the approaching vessel
unless he discovers that his vessel is not seen. The Lady Franklin,
2 Low. 220. A steamer is bound to keep clear of barges floating
down a river guided by oars only. Bigley v. Williams, 80 Penn. St.
107.

There is no general obligation upon vessels navigating rivers to
keep to the right of the center of the channel. Ths Milwaukee, 1
Browu's Adm. 313. See Blanchard v. N'ew Jersey Steamboat Co., 59
N. Y. (14 Sick.) 292.

A steamboat carrying the mails is bound by the same laws and rules
of navigation that govern any steamer carrying passengers and mer-
chandise without mail ; and no contract with the post-office department,
or any other department of government, can dispense in any degree
with any of the duties to which other steamboats navigating the same
waters are subject. Taney v. The Louisiana, Taney, 602.

Under the rules of navigation adopted by congress, providing that
" if two ships under steam are crossing so as to involve risk of collision,
the ship which has the other on her own starboard side shall keep out
of the way of the other," if a collision occurs from such other vessel
not having kept on her course, the obligation rests on the latter to
show sufficient causes existing in the particular case to render a depart-
ure from the rule necessary. The Corsica, 9 Wall. 630 ; affirming S.
C, 6 Blatchf. 190.

AKTICLE IX.

CAKRYESTG PASSENGERS.

Section 1. In general. The law regulating the carrying of passen-
gers by water is the same as the law regulating the carriage of passen-
gers by land, and is fully discussed in the chapter on Carriers, Vol. 2,
pp. 62-98.

§ 2. Passengers by water. An undertaking to carry a passenger
in the steerage of a steamship, from San Francisco to Portland, includes
the furnishing of such passenger with a berth, unless there is a fair

716 SHIPPING.

understanding to the contrary. The Oriflamme^ 3 Sawyer, 397;
Koch V. Oregon Steamship Co., 2 Am. L. T. (N. S.) 381.

The return of an unused passage ticket to the general agent of a
steamship company is, under certain circumstances, a sufficient consid-
eration for his promise to refund the money which the plaintiff had
paid therefor. Coggins v. Murphy, 121 Mass. 166.

§ 3. Power and duty of master. The master has a right to com-
mand and compel the service of a passenger, in case of actual danger
from a peril of the sea ; to work at the pumps, for example, if the
ship leaks, or to assist in reducing sail, and the like. 1 Pars, on Ship.
637.

And the master has a similar power if an attack by an enemy be
made or apprehended. But he can require no more exertion or expo-
sure on the part of the passenger than is strictly necessary. Boyce v.
Bayliffe, 1 Gamp. 58. The officers of a steamship have a right to
reserve a table in the dinner cabin for their own use, and to cause an
intruder thereat to be removed by force, so far as force may be neces-
sary. Ellis V. Navragansett Steamship Co., Ill Mass. 146.

AKTICLE X.

POWEKS AND DUTIES OF MASTER.

Section 1. In general. The powers of a master are not quite so
indefinite perhaps as his duties. They rest upon certain ascertained
principles, and are for the most part measured by exact rules. He is
the agent of the owner, appointed by him, and by that appointment
authorized to act as his agent in all matters which are fairl}'- embraced
within the scope of his appointment. To know what this authority is,
in general, or under any particular circumstances, we may appeal to the
law of agency, and the principles of that law which are applicable to
the particular case. 2 Pars, on Ship. 7. He lias no more authority to
bind his owners than any other agent has to bind his principal. Pope
V. Nickerson, 3 Story, 465, 475. He is not the general agent of tlie
owners. Mitcheson v. Oliver, 5 Ell. & B. 419 ; S. C, 32 Eng. L. &
Eq. 219, 232.

Under the laws of the United States governing the registry of ves-
sels, the person in whose name, as master, a vessel is registered, must be
deemed her master for every legal intendment and purpose. The Du-
huque, 2 Abb. (U. S.) 20. A person described as master in the enroll-
ment of a vessel is presumed to continue to be master until the own-
ers by some declaration or overt act displace him. A mere vote of the

SHIPPING. 71?

owners conditionally dismissing liim does not affect third parties. Fox
V. Holt, 36 Conn. 558.

A master, as such, has authority to maintain an action in his own
name for damages to his vessel. The owner of a foreign vessel is pre-
siuned absent until the contrary is shown. The Una, 5 Ben. 198.
And he may recover damages for injuries inflicted upon cargo received
on board of his vessel by him as a common carrier. The Francis
King, 7 Ben. 380.

§ 2. Appointment and removal. Although the master's authority
extends to all matters connected with the hiring of the crew, he cannot,
after the contract is made, at his mere will, bind the owners to the pay-
ment of increased wages, unless some consideration be given for the
advance, or, in the exercise of a reasonable discretion, he had the right
to suppose he would thereby promote the interests of the adventure ;
and especially is this the case where the master has not been selected
by the owners, but appointed by a consul at a foreign port. Neil-
son V. The Laura, 2 Sawyer, 242.

§ 3. Authority over crew. By the common law, the master has
authority over all the mariners on board the ship, and it is their duty
to obey his commands in all lawful matters relating to the navigation of
the ship, and the preservation of good order ; and such obedience they
expressly promise to yield to him by the agreement usually made for
their service. In case of disobedience, disrespectful or disorderly con-
duct, he may lawfully correct them in a reasonable manner ; his author-
ity in this respect being analogous to that of a parent over his child,
or of a master over his apprentice or scholar. Abbott on Ship. (Am.
ed.) 177. See 7%owe v. White,! Pet. Adm. 168; United States \ .
Smith, 3 Wash. (C. C.) 525. See, also, j?o^ 723, § 8.

§ 4. Power over vessel. For general statements of the power of
the master to sell or hypothecate the vessel, see ante, §§ 8 and 9, art. 2,
§ 4 ; The Grape Shot, 9 "Wall. 129, 141 ; Dunning v. Merchants^
etc., Ins. Co., 57 Me. 108.

§ 5. Power over cargo. Generally, and in the exercise of his duties,
the master is a stranger to the cargo between the lading and the unlad-
ing. But exigencies and emergencies may arise in which the master
becomes, of necessity, super-cargo or consignee, or to speak more cor-
rectly, is clothed with whatever agency or authority may be needed to
enable him to protect the property and interests intrusted to his care.
See TJie Gratitudine, 3 Eob. Adm. 240, 257 ; Douglas v. Moody, 9
Mass. 548 ; Gillett v. Ellis, 11 111. 579 ; Vlierhoom v. Chapman, 13
M. & W. 230, 239. See, 2Xm,post, 719, § 10.

The master of a chartered vessel, in stowing cargo, may make depart-

718 SHIPPING.

ures from the stipulations of the charter-party, necessary for the safety
of the voyage ; and the admiralty court will decree in favor of the
charterer a proj^er allowance for any space he may have lost by such
changes. Reynolds v. The Josejyh, 2 Hugh. 58.

§ 6. Powers as ageut of owners. See ante, 716, § 1. The mas-
ter of a vessel has no implied authority from the owners to sign a blank
bill of lading ; and one so signed is not binding on the owners. The
Joseph Grant, 1 Biss. 193. He has no authority to sign a bill of lading
for goods not actually put on board, and, therefore, the owner of the
ship is not responsible to parties taking, or dealing with, or making
advances on the faith of such an instrimient, which is untruthful in
this particular. The consignee, and every other party, thus acting, does
so with notice of this limitation of the power of the master, and acts
at his own risk, both as respects the fact of shipment, and the quantity
of cargo purported, by a bill of lading, to be shipped. Baltimore, etc.,
E. li. Co. V. Wllkens, U Md. 11.

§ 7. Power as to supplies, repairs, etc. See ante, G82, § 15. The
master of a boat, in ordering supplies, is the agent, not of the owner
of the boat as such, but of those who have control of the vessel and
the right to receive her freight. Ward v. Bodeman, 1 Mo. App. 272.
His authority as to repairing her or supplying her with necessaries,
whether abroad or at home, is limited by the express or implied author-
ity derivable from the laws of the vessel's country, or the usage of the
trade, or the business of the ship or the instructions of the owner; and
he cannot bind either the vessel or her owner beyond such limits. The
Woodla/nd, 7 Ben. 110.

A master's certiticate as to the amount agreed to be paid for services
will not be set aside, unless it appear clearly and satisfactorily that the
sum named is so unreasonable as to raise a suspicion of fraud. The
making of such certificate under a threat to attach the vessel is not such
duress as will avoid its effect. The Senator, 1 Brown's Adm. 544.

§ 8. Power to hypotliecate vessel. See Art. 3, a7ite, 686, Bottomry
and Respondentia. The fact that a vessel was in a foreign port raises
a presumption that any repairs or supplies there furnished to her were
necessarily obtained on the credit of the vessel ; and, unexplained, will
support a hypothecation. The Washington Irving, 2 Ben. 318, 323 ;
Tlve Lulu, 1 Abb. (U. S.) 191 ; The Eledona, 2 Ben. 31 ; Robert L.
La/ne, 1 Low. 388 ; The Lulu, 10 Wall. 192.

§ 9. Power to sell vessel. See Art. 2, § 4 ; and Art. 6, § 5. When
the shi]3 is di.sal)lod l^y pei'ils of the sea, and the master has no means
of getting the repairs done in tlie place where the injury occurred, or
if, being in a place where the repairs might be made, he has no funds

SHIPPING. Y19

in his possession and cannot, on account of the distance or other suffi-
cient cause, communicate with the owner, and is not able to raise the
necessary means by bottomry or otherwise to execute the necessary
repairs, or if the injuries to the ship are so great that the cost of repair-
ing her would be greater than her value after the repairs were made,
or if the ship is disabled so tliat she cannot proceed, and the cost of
repairs will amount to more than half her value, reckoning one-third
new for old, and the master has no funds, and can neither procure
any nor communicate witli tlie owner, and the whole circumstances are
such that a prudent owner would decide to break up the voyage, then
the master is justified in selling the ship. Fitz v. TTie Amelie, 2 Cliff.
440. See Gates v. Thompson, 57 Me. 442 ; Robinson \. Common-
wealth Ins. Co.^ 3 Sumn. 226 ; American Ins, Co. v. Ogden, 15 "Wend.
532 ; The lord Cochrane, 8 Jurist, 716.

§ 10, Power to sell cargo. Where the progress of a voyage is
interrupted by any casualty, such as capture, shipwreck, or other acci-
dent, the master of the ship becomes of necessity an authorized agent
for the owners, freighters, insurers, and all concerned ; and whatever
he undertakes and whatever expenses he may incur, fairly directed to
that purpose, become a charge upon them respectively, in the same
manner as if incurred at their special request. Douglas v. Moody, 9
Mass. 548. In such case he has power to sell the goods, which are. dam-
aged or of a perishable nature, or if any other necessity exists so to do ;
but not otherwise. Smith v. Martin, 6 Binn. 262 ; Scidl v. Briddle,
2 Wash. (C. C.) 150; Saltus v. Everett, 20 Wend. 267; Jordan \.
Warren Ins. Co., 1 Story (C. C), 342 ; The Velmia, 3 Ware, 139.
See Goodwin v. United States, 6 Ct. of CI. 146.

§ 11. Duties and liabilities of master. The master as well as
the owners of a vessel is a common carrier, and is personally responsi-
ble for his own negligence and misfeasances. White v. McDonough, 3
Sawyer, 311. And the captain of a merchant vessel is personally lia-
ble for injuries caused by the negligence of his subordinates during
the voyage, among them the steward, and the voyage is not ended un-
til the vessel is moored at her point of destination. The visit of the
health officer of the port to the vessel does not divest the captain of
his general power and control, nor relieve him from liability for the
neghgence of his subordinates. Hijall v. Kennedy, S Jones & Sp. (N.
Y.) 347. But although l)oth master and o^vners are liable to the ship-
per of goods as carriers, yet the master is liable only for reasonable
care and diligence, and the exercise of such skill as his position may be
supposed to require. Bissel v. Mepham, 1 Woolw. 225.

The duties of the master extend to aU that relates to loading the

720 SHIPPING.

cargo, and the vessel is liable for liis faithful performance. In loading
wheat from a warehouse through a pipe, it is his business to arrange
the pipe and trim the vessel, and for any loss by the careening of the
vessel and consequent parting of the pipe the vessel is liable. The R.
G. Wi7islow, 4 Biss. 13.

The first duty of a master, in case of stranding of his vessel and an
attempt to remove her from a sand bar, by which she is made leaky, is to
take all possible care of his cargo. The Ocean Wave, 3 Biss. 317.

A master in command of a vessel is not liable in a personal action
for damages done by his vessel to another in a collision, where he was
not on board his vessel at the time of the collision. DeHarde v. The
Magdalena, 24 La. Ann. 267. And a master may enter a harbor on
a dark night with a heavy sea and high wind, notwithstanding access
is difficult, but not unusually dangerous or difficult, without incurring
the imputation of negligence. The Juniata Paton, 1 Biss. 15.

Generally the master must at the commencement of the voyage see
that his ship is seaworthy and fully provided with the necessary ship's
papers, and with all the necessary and customary requisites for naviga-
tion, as well as with a proper supply of provisions, stores, etc. Ship
Elizabeth v. IticTcers, 2 Paine (C. C), 291 ; United States v. Staly^
1 Woodb. & M. (C. C.) 338. He must also make a contract with
the seamen, if the voyage be a foreign one from the United States.
He must store safely under deck all goods shipped on board, unless
by well-established custom or by express contract they are to be
carried on deck ; and he must stow them in the accustomed manner in
order to prevent liability in case of damage. In respect to the lading
or carriage of goods shipped as freight, he is required to use the great-
est diligence, and his responsibility attaches from the moment of their
receipt, whether on board, in his boat or at the quay or beach, 3 Kent's
Comm. 206.

§ 12. Owners' lifibility for torts of master. By thp general rule
of the maritime law, tlie owners of a vessel are liable for all injuries
caused by the misconduct, negligence or unskillfulness of the master,
provided the act be done while acting witliin the scope of his authority
as master. Stinson v. Wyman, Daveis, 176 ; Z>ias v. The Privateer
Revenge, 3 Wash. (C. C.) 262, 268 ; Wright v. Wilcox, 19 Wend. 343 ;
Walter v. Brewer, 11 Mass. 99.

§ 13. Liens for wages, disbursements, etc. A master has no

lien on the vessel for his wages. The Diibugue, 2 Abb. (U. S.) 20 ;

TJie Monongahela, 5 Biss. 131 ; Logan v. TJw ^olian, 1 Bond, 267 J

Willard v. Dorr, 3 Mason, 91 ; Ilussey v. Christie, 9 East, 426. The

general current and language of the American cases seem to have settled

SHIPPING. ^21

the question that the master has a lien on the freight for his necessary-
disbursements for incidental expenses, and the liability he comes under
for these expenses during the voyage and also for his own wages.
Drinkwater v. Brig Spartan, Ware, 149 ; Ingersoll v. Von Bokkelin,
7 Cow. 670; S. C, 5 Wend. 315 ; The Ship Packet, 3 Mason, 255 ;
Richardson v. Whiting, 18 Pick. 530. So also on the cargo, and his
lien on these is co-extensive with the advances made or liabilities incur-
red by him for the use of the ship. So of his claim for primage. In-
gersoll V. Yan Bokkelin, 7 Cow. 670; S. C, 5 Wend. 315 ; Lewis v.
RoMcock, 11 Mass. 72 ; Shaw v. Gookin, 7 N. H. 19.

AETICLE XI.

OF THE SEAMEN.

Section 1. In general. Com-ts of maritime law have been in the
constant habit of extending toward seamen a peculiar protecting favor
and guardianship. They are emphatically the wards of the admiralty ;
and although not technically incapable of entering into a valid con-
tract, they are treated in the same manner as courts of equity are ac-
customed to treat young heirs, dealing with their expectancies, wards,
with their guardians, and cestuis que trust, with their trustees. The
most rigid scrutiny is instituted into the terms of every contract in
which they engage. If there is any undue inequality in the terms, any
disproportion in the bargain, any sacrifice of rights on one side which
are not compensated by extraordinary benefits on the other, the
judicial interpretation of the transaction is, that the bargain is imjust
and unreasonable, that advantage has been taken of the situation of the
weaker party, and that pro tanto the bargain ought to be set aside as
inequitable. Harden v. Gordon, 2 Mason, 541, 555. See The Bark
Rajah, 1 Sprague, 199 ; The Ringleader, 6 Ben. 400 ; Somerville v.
The Francisco, 1 Sawyer, 390.

§ 2. Shipping articles. The shipping articles are the agreement
in writing or print, between the master and seamen or mariners on
board of liis vessel (except such as shall be apprenticed, or servant to
himself or owners), declaring the voyage or voyages, term or terms of
time for which such seamen or mariners shall be shipped.

If there is any thing unusual in the terms of a shipping contract, a
court of admiralty will require proof that it was fairly explained to
the seamen and balanced by an adequate compensation, and in default,
will set the contract aside and treat the men as engaged on the usual
terms, or such as may be presented by law in absence of an agreement,
YoL. Y.— 91

722 SHIPPING.

The Atistralia, 3 Ware, 240. And see T?ie Hochamheau, id. 304.
See The Lola, 6 Ben. 142 ; The Christina, Deady, 49 ; The Ahnatia,
id. 473 ; The Minerva, 1 Hagg. Adm. 347, 355.

§ 3. Wages. It seems to be well settled that if tlie voyage is broken
Tip or the seamen are dismissed withont cause before the voyage begins,
they are entitled to their wages for the time they serve and a reasonable
compensation for special damages. Parry v. The Peggy, 2 Browne's
Civ. & Adm. 533. See ^Yells v. Osmond, 2 Ld. Raym. 1044. Con-
tracts with seamen, upon a discharge before completion of the voyage,
concerning wages already earned, will be set aside or disregarded by
com'ts of admiralty if inequitable. The Hermine, 3 Sawyer, 80.

A seaman duly discharged at his own request and by consent of the
master, from a whaling ship at a foreign port, is entitled to be paid the
'pro rata part of his lay, reckoned according to the value of the catch
at the home port, not at the port of discharge. Jenks v. Cox, 1
Holmes, 92.

When a seaman is unable to perform duty during a part of the
voyage, by reason of sickness, he is entitled to his whole wages, not-
withstanding that the sickness may have begun before he signed the
articles, but after he -had entered on the service. Neilson v. The
Laura, 2 Sawyer, 242.

§ 4. ProYisions. Provisions of due quality and quantity are to be
furnished by the owner under the general principles of law as applies
to this particular contract. The Madonna DPdra, 1 Dods. 37 ; Dixon
V. The Cyrus, '2i Pet. Adm. 407. It is provided by statute in this
country how every ship and vessel belonging to a citizen of the United
States should be provisioned. Under this statute it has been held
that if less than the statute quantity be put on board, and there be a
short allowance, extra wages are to be given for each day. Collins v.
Wheeler, 1 Sprague, 188. See The Ilermon, 1 Low. 515.

§ 5. Seaworthiness of sliip. Both law and reason imply that at
the commencement of the voyage the vessel should be seaworthy.
Dixon V. Ship Cyrus, 2 Pet. Adm. 407 ; The Shij) Moslem, Olcott's
Adm, 289. Our statutes provide the means of lawfully ascertaining
her condition on the complaint of the mate and a majority of the
seamen, by a regular survey at home or abroad. 1 U. S. Stats, at L.
132 ; 5 id. 396.

§ 6. Cure in sickness. A sick seaman is entitled to be cared for
and cured at the expense of the ship. Tomlinson v. Uewett, 2 Sawyer,
278 ; Myers v. Tlte Lizzie Hopkins, 1 Woods, 170 ; Brown v. The
Bradish Johnson, id. 301. And the fact that his disease is malig-
nant and infectious will afford no justification or excuse to the master

SHIPPING. 'f^

for setting him ashore without any provision for his care, his subsist-
ence, or his proper medication. Tomlvtison v. Hewett, 2 Sawyer, 278.

§ 7. Return home. By statute it is provided that consuls and
other like officers shall provide for our seamen who are found destitute
within their district, and for a return home at the expense of the United
States. But the seamen are bound to work on the passage according
to their several abilities. It is also provided that any master refusing
to bring back a seaman, able to return, shall forfeit not more than
$500 or be imprisoned not more than six months. IJ. S. Pev. Stat.,
pp. 893, 1046. See United States v. Biddle, 4 Wash. 644 ; Matthews
V. Offley, 3 Sumn. 115.

A seaman in the whaling service, who, having become separated
from his ship by no faidt of his own, fails to rejoin her from causes
which he cannot control, is entitled to wages to the time of separation
and the expenses of return to his country, as if the ship had left him
behind for sickness. Antone v. IlicTcs, 2 Low. 383.

§ 8. Disobedience of seamen. Generally the only punishments
which can now be resorted to, to enforce obedience and good condnct,
are forfeiture of wages {Relfx. Shij) Maria^ 1 Pet. Adm. 186 ; Buck
V. Lane, 12 S. & P. 266) ; irons {Sampson v. Synith, 15 Mass. 365 ;
Shorey v. Rennell, 1 Sprague, 407) ; confinement on board ( U. S. v.
Alden, 1 Sprague. 95) ; imprisonment on shore ( TJ. S. v. Buggies, 5
Mason, 192 ; Wood v. The Nimrod, Gilpin, 83); hard labor or such other
means as may be invented to take the place of flogging. A consid is
not empowered to discharge for mere disobedience. Coffin v. Weld, 2
Low. 81. A master may discharge officer or sailor in the home port
for being disobedient. The Garnet, 3 Sawyer, 350 ; The Bichard,
Matt, 1 Biss. 440. See ante, 717, § 3.

§ 9. Desertion of seamen. Leaving a vessel before the expiration
of the time of service, without the consent of the master, with the
intention not to return, constitutes desertion by the maritime law, and
such desertion works a forfeiture of all antecedent wages, unless a rea-
sonable excuse be shown, founded upon gross misconduct or harsh
usage. Slight and transient causes, such as the fact that the meat used
on board was for a short time slightly tainted, are not enough. The
Balize, 1 Brown's Adm. 424; The Magnet, id. 547. See The Ericson,
3 Sawyer, 559 ; Fitzsimmons v. Baxter, 3 Daly (N. Y.), 81 ; TTie
Catawanteak, 2 Ben. 189.

724 SHIPPING.

ARTICLE XII.

OF PILOTS.

Section 1. Powers and duties. A pilot is an officer serving on
board of a ship during the course of a voyage and having the charge
of the helm and of the ship's route. Also an officer authorized by law
who is taken on board at a particular place for the purpose of conduct-
ing a ship through a river, road, or channel, or from or into port. Pilots
of this second description are established by legislative enactments at
the principal seaports in this country, and have rights, and are bound
to perform duties, agreeably to the provisions of the several laws estab-
lishing them. They are licensed to offer themselves as guides in differ-
ent navigation ; and they are usually bound to obey the call of a ship-
master to exercise their functions. 2 Bouv. Law Diet. 331.

It is the duty of the pilot to select the time and place of coming to
anchor. The George, 2 W. Rob. 386 ; S. C, 9 Jurist, 670. And he
is solely responsible for the measures adopted in getting the ship under
way. The Peerless, Lush. Adm. 30.

The relation between the owner or master and pilot, as that of master
and employee, is not changed by the fact that the selection of the pilot
is limited to those who have been found by examination to possess the
requisite knowledge and skill, and have been licensed by the govern-
ment inspectors. Sherlock v. Ailing, 93 U. S. (3 Otto) 99.

§ 2. Liabilities of owners for pilot's acts. If the owner is not
obliged by law to take a pilot, and does take one on board, he is responsi-
ble for injuries resulting from the default of such pilot. The Atty. -Gen-
eral V. Case, 3 Price, 302 ; Yates v. Brown, 8 Pick. 23 ; Smith v.
The Creole, 2 Wall. (C. C.) 485. But if the pilot in charge of the ship
had been received in obedience to a requisition of law enforced by a
penalty, then the owner would seem not to be liable for the misconduct
or mismanagement of the pilot. The Carolus, 2 Curt. (C. C.) 69 ; Car-
ruthers v. Sydebotham, 4 M. & S. 77 ; The Ma/ria, 1 W. Rob. 95.

ARTICLE XIII.

LIENS UPON VESSELS.

Section 1. In general. All maritime contracts made by the master,
within the scope of his authority as master under the maritime law, per
se, hypothecate the ship, and performance in whole or in part does not
affect the question of jurisdiction generally, or the character of the

SHIPPING. 725

proceeding, whether in rem or in personam. The Williams, 1 Brown's
Adm. 208 ; Merch. Mxit. Insurance Co. v. Baring, 20 Wall. 159 ; The
St. Lawrence, 3 "Ware, 211.

§ 2. Wheu a lieu arises. The presumption of law is, in the ab-
sence of fraud or collusion, that where advances are made to a captain
in a foreign port, upon his request, to pay for necessary repairs or sup-
plies to enable his vessel to prosecute her voyage, or to pay harbor dues,
or for pilotage, storage, and like services rendered to the vessel, that
they are made upon the credit of the vessel, as well as upon that of
Jier owners. It is not necessary to the existence of the hypothecation
that there should be, in terms, any express pledge of the vessel, or any
stipulation, that the credit shall be given on her account. This pre-
sumption can be repelled only by clear and satisfactory proof that the
master was in possession of funds applicable to the expenses, or of a
credit of his own, or of the owners of his vessel, upon which funds
could be raised by the exercise of reasonable diligence, and that the
possession of such funds or credit was known to the party making the
advances, or could readily have been ascertained by proper inquiry.
The Emily Souder, 17 Wall. 666. See The Tangier, 2 Low. 7 ; The
Sarah Harris, 13 Blatchf . 503 ; The Mai^y Elizabeth, 3 Sawyer, 491 ;
The Eclipse, 3 Biss. 99; The J. F. Spencer, 5 Ben. 151.

§ 3. Home and foreign ports. The maritime law does not give a
lien upon a vessel for supplies furnished at the home port. The resi-
dence of the owner is the home port of a vessel although she may be
enrolled elsewhere. The Mary Bell, 1 Sawyer, 135 ; Steamer Petrel
V. Dum-ont, 28 Ohio St. 602 ; S. C, 22 Am. Eep. 397 ; Pichell v. The
Loper, Taney, 500. But see Crawford v. The Caroline, 42 Cal. 469.
Jersey City is foreign to the city of l^ew York, in the sense of the
law governing supplies to ships. The Sarah J. Weed, 2 Low. 555.
See, also. The Plymouth Rock, 13 Blatchf. 505; S. C, 7 Ben. 448.

§ 4. Lien, how lost or waived. A delay to enforce a maritime
lien after a reasonable opportunity to do so is deemed a waiver of the
lien as agamst subsequent purchasers or incumbrancers in good faith
and without notice, unless such delay is satisfactorily explained. The
Duluque, 2 Abb. (U. S.) 20; The Galloway C. Morris, id. 164. Other-
wise a maritime Hen will not be considered as waived by any thing less
than an express contract. The decisions as to waiver of liens under
State statutes are not apphcable. The Gate City, 5 Biss. 200; The
Sarah J. Weed, 2 Low. 555. The purchase by the government of a
vessel for the revenue service does not divest the same valid liens exist-
ing at the time the title was acquired. Revenue Cutter No. 1, 1
Brown's Adm. 76. But a person having a lien on a steamboat, who

726 SHIPPmO.

proceeds to enforce his demand in a State court, and obtains judgment
therefor, waives his original lien. Stapp v. The Swallow, 1 Bond, 189.

§ 5. Priority and enforcement. Of two sets of material men, the
lien of the last ones, tliej contributing most immediately to the success
of the voyage, should have priority over that of the first set. The
Ornery 2 Hugh. 96. The exclusive jurisdiction of suits in rem to
enforce liens is vested in the United States courts. Dowell v. GoodCy
25 Ohio St. 390 ; Weston v. Morse, 40 Wis. 455. But a State law
giving a right of action in a State com't against owners of a vessel for
seamen's wages, to be enforced by a seizure of the vessel in the nature
of an attachment, is not void for infringing the exclusive admiralty
jurisdiction of the United States. Switzer' v. Hemn, 27 La. Ann. 25.

Want of jiu-isdiction to enforce a lien in any particular locality is
not fatal to the existence of the hen. The lien exists by virtue of the
general maritime law, it follows the ship wherever she goes, and may
be enforced wherever there is jurisdiction to enforce it. The Cham-
pion, 1 Brown's Adm. 520 ; TJie Avon, id. 170. See Dowell v. Goode,
25 Ohio St. 390.

What is a reasonable time for proceeding to enforce a lien, within
the rule that a lien upon a vessel is lost by failure to enforce it within
a reasonable time, is a question for the discretion of the court, under
the circumstances of the particular case. Winterport Granite, etc., Co.
V. The Jasper, 1 Holmes, 99. Creditors of vessels plying upon the
lakes must enforce their liens, as against hona fide purchasers without
notice during the current season of na\'igation, or within such reason-
able time after the commencement of the next season as may be neces-
sary to arrest the vessel. The Hercides, 1 Brown's Adm. 560. The
new 12th rule in admiralty of 1872, intends that in every case of a
maritime contract for supplies, etc., to a vessel domestic or foreign, pro-
cess in rem against the vessel, or ^V^ personam against her master or
owner, may, optionally, be resorted to, where a suit is required to
enforce the contract. But it cannot, in respect to a libel filed since
such rule was adopted, have the effect to revive a claim whicli is almost
barred by tlie statute of limitations, and make it a lien upon the vessel,
so as to cut off titles thereto perfected or acquired before such role "was
adopted. The Circassiam., 11 Blatchf. 472.

SLANDER. 727

CHAPTER CXXIIT.

SLAJ^DER.

TITLE I.

OF SLAXDER m GENERAL.
ARTICLE I.

OF ACTIONAELE WOKDS.

Section 1. In generaL Slander may be defined, malicious and
scandalous words falsely uttered of another in the hearing of one or
more persons besides the party of whom they are spoken, to the damage
and derogation of the latter. White v. Nicholls, 3 How. (U. S.) 'iQQ ;
Desmond v. Brown, 33 Iowa, 13 ; JBroderiek v. Jaraes, 3 Daly, 481.
A person may be slandered by means of a malicious suit. In such case
the party injured may either bring an action for slander or for malicious
prosecution. Jamigan v. Fleming, 43 Miss. 710. The term " slander "
formerly embraced written, as well as oral, defamation ; but it is now
understood only to apply to the latter.

An action may be maintained for any willful communication to the
damage of another made without lawful justification or excuse. Oral
slander, as a cause of action, may be divided into five classes, as follows :
1. Words falsely spoken of a person, which impute to a party the com-
mission of some criminal offiense involving moral turpitude, for which
the party, if the charge is true, may be indicted and punished; 2.
Words falsely spoken of a person which impute that the party is infec-
ted with some contagious disease, or has committed a debasing act,
where, if the charge were true, it would exclude him from society ; 8.
Defamatory words falsely spoken of a person which impute to the
party unfitness to perform the duties of an ofiice, or employment of
profit, or the want of integrity in the discharge of the duties of such
an office or employment ; 4, Defamatory words falsely spoken of a
party which prejudice such party in his profession or trade ; 5. Defama-
tory words falsely spoken of a party, which, though not in themselves
actionable, occasion him special damage. Pollard v. Lyon, 91 U. S.

728 SLANDER.

(1 Otto) 225 ; Brooker v. Coffim.^ 5 Johns. 188 ; Ycm Ness v. Hamil-
ton^ 19 id. 36T ; Bissell v. Cornell, 24 Wend. 354 ; Young v. Miller,
3 Hill, 21 ; Wright v. Paige, 3 Keyes, 582 ; Kenney v. McLaughlin,
3 Gray, 5 ; Lewis v. Hudson, 44 Ga. 568.

§ 2. What words are actionable per se. As a general rule, where
the immediate tendency of the words is to cause damage to the per-
son of whom they are spoken, as if they import a charge of having
been guilty of an indictable offense, or of having a contagious or in-
fectious disorder, or contain an imputation affecting the plaintiff in his
office, profession, trade, or calling, they are in themselves actionable.
Onslow V. Home, 3 Wilson, 1Y7 ; McNamara v. Shminon, 8 Bush, 557 ;
Kimmis v. Stiles, 44 Yt. 351; Rammell v. Otis, 60 Mo. 365. Where
crime is charged it does not prevent the words from being actionable,
that the imputed offense is barred by the statute of limitations. Yan-
Ankin v. 'Wesifall, 14 Johns. 233. Nor that they indicate that the
party has already suffered the penalty of the law, and is no longer ex-
posed to the danger of punishment {Burling ame v. Burlingame, 8
Cow. 141; Shipp v. MOraw, 3 Murphy, 463 ; Wiley y. Campbell,
5 Monr. 396 ; Deford v. Miller, 3 Pen. & W. 103 ; Smith v. Stewart,
5 id. 372 ; Krebs v. Oliver, 12 Gray, 242), the ground of action not
being liability to punishment but injury to reputation. Stewart v.
Howe, 17 111. 71 ; Miller v. Parish, 8 Pick. 384 ; Poe v. Graver, 3
Sneed, 664. It is not necessary that crime should be charged expressly.
It may be imputed indirectly by question, or the slander may consist
of a statement of alleged facts which lead the hearer to believe that the
crime has been committed. Lewis v. Hudson, 44 Ga. 568. So,
speaking defamatory words hypothetically, as to say, " if reports are
true," does not change their actionable nature. Johnson v. Brown, 57
Barb. 118 ; Smith v. Stewart, 5 Penn. St. 372.

Saying of a person that he has the leprosy, or the venereal disease, is
actionable ^(?r se for the reason that its tendency is to cause him to be
shunned by society. Bloodworth v. Gray, 7 Mann. & Gr. 334 ; Wil-
liaras v. Holdredge, 22 Barb. 396 ; Irons v. Field, 9 R. I 216. And
it has been held actionable to charge a female with being addicted to
drunkenness. Brown v. Nicker son, 5 Gray, 1. Where a person hav-
ing, upon the request of a school committee, undertaken to examine
candidates for admission to a school, with intent wrongfully to exclude
the plaintiff from the school, maliciously and falsely reported to the com-
mittee that he was not qualified, and he was in consequence not ad-
mitted, it was held that the examiner was liable to an action therefore
Hammond v. Hussey, 51 N. H. 40; S. C, 12 Am. Rep. 41.

Words, which if spoken of a person without reference to his calling,

SLANDER. 729

Would not be actionable, will become so when uttered concerning his
business or profession {Harman x.Delany^ 2 Str. 898) ; as imputing
to a tradesman that he makes use of false weiglits {G7nffiths v. Lewis, 7
Q. B. 65) ; or is in the habit of cheating and defrauding his customers
{Beeve v. Eolgate, 2 Lev. 62 ; Burne v. Wells, 12 Mod. 420 ; Thomas
V. Jackson, 10 Moore, 425 ; Backus v. Bichardson, 5 Johns. 476 ;
Burtch V. Nickerson., 17 id. 217; Way^e v. Clowney,^^ Ala. 707;
Nelson v. Brochenhis, 52 111. 236) ; or that he is insolvent. Brown v.
Smith, 13 C. B. 599 ; Car])enter v. Dennis, 3 Sandf. 305. It is ac-
tionable to impute to a physician professional ignorance, or want of
integrity, or habitual drunkenness {Tutty v. Alewin, 11 Mod. 221 :
Southee v. Denny, 1 Exch. 196 ; Johnson v. Bobertson, 8 Porter, 486 ;
Camp V. Martin, 23 Conn. 86 ; Seoor v. Harris, 18 Barb. 425 ; Ber-
gold V. Puchta, 2 Thomp. & Cook, 532) ; or to charge the chief engi-
neer of the fire department with being drunk at a fire {Gottbehuet v.
Hvbachek, 36 Wis. 515) ; or to say of the commander of a vessel, that
he was often drunk and when in that condition had to be carried on
board of his vessel {Irwin v. Brandwood, 2 II. & C. 960 ; 33 L. J.
Exch. 257) ; or of a shipmaster, that he sold the consignment of a certain
ship and pocketed the money {Orr v. Skofield, 56 Me. 483) ; it is
actionable to charge a lawyer with the betrayal of professional con-
fidence, or of a disregard of the interests of his chents, or with the
want of integrity in the conduct of his business {King v. Lake, 2
Yentr. 28 ; Day v. Buller, 3 "Wilson, 59 ; Bush v. Cavenaugh, 2
Penn. St. 187) ; a clergyman with having been drunk in church, or
of preaching false doctrine or sedition, or of dishonesty in a clerical
matter {Dodd v. Robinson, Aleyn, 63 ; Oranden v. Walden, 3 Lev.
17; Musgrave v. Bovey, 2 Str. 946; Pemberton v. Colls 16 L. J.
Q. B. 403 ; Dcmarest v. Haring, 6 Cowen, 76) ; or to say of a per-
son that he is wanting in integrity in the discharge of his oflicial
duties, or that he habitually neglects them. Gove v. Bletlien, 21 Minn.
80 ; S. C, 18 Am. Rep. 380 .

§3. What words are not actionable. Mere vituperation and
abuse are not actionable unless spoken of a person in the conduct of
his business {Davis v. Farrington, Walker [Miss.], 304) ; as to say of
a man he is a rogue, or scoundrel, or vagabond, or black leg, or a
deserter. Wierback v. Trone, 2 Watts & Serg. 408 ; Stevenson v.
Hayden, 2 Mass. 409 ; Odiorne v. Bacon, 6 Cush. 185 ; Quinn v.
CGara, 2 E. D. Smith, 388; Chase v. Whidock, 3 Hill, 139 ; Yoai
Tassel v. Capron, 1 Denio, 250 ; McKee v. Ingalls, 5 111. 30 ; Ford
V. Johnson, 21 Ga. 399 ; Artieta v. Artieta, 15 La. Ann. 48 ; Hollings-
w&rthY. Shaw, 19 Ohio St. 430; S. C, 2 Am. Rep. 411. The words
" you are a cheat and a swindler, and you defrauded me," are not action-
Vol. v.— 92

730 SLANDER

ahleper se {Lucas v. Flinn^ 35 Iowa, 9) ; nor saying to a person, " you
have cheated and robbed orphan children," when sliown merely to have
charged the person of whom they were spoken with having procured
the assignment of a mortgage by fraud {Filber v. Dautermann, 28
Wis. 134) ; saying of a woman that she commits self-polhition is not
actionable per se {Anonymous, 60 K. Y. 262 ; S. C, 19 Am. Rep.
174); nor charging another with having a bastard {Hoary. Ward,
47 Yt. 657) ; nor saying of a person that he is addicted to the intem-
perate use of intoxicating liquors or was drunk on a certain occasion.
CHanlon v. Myers, 10 Rich. 128 ; Warren v. Norman, Walker
(Miss.), 387.

Words are not actionable which do not make any direct or specific
charge, as " a man that would do that would steal " {Stees v. Kemble,
27 Penn. St. 112) ; or saying of the plaintiff, " she had her hogs in my
com field and carried corn away {Stitzell v. Reynolds, 67 Penn. St.
54; S. C, 5 Am. Rep. 396); or of a woman, she "keeps a bad
house," the words not necessarily implying a bawdy house {Peterson
V. Sentman, 37 Md. 140 ; S. C, 11 Am. Rep. 534) ; or of merchants,
" they have sold out, they are not worth fifty cents on a dollar "
( Windsor v. Oliver, 41 Ga. 538) ; or of a person, " he willfully and
maliciously poisoned a Xxox^q'''' {Glines v. Sm.itli, 48 K. H. 259); or
of one, " he set fire to and burned up his hop house." Frank v. Du7i-
ning, 38 Wis. 270. The following words spoken by a roman catholic
priest to his congregation, in church on Sunday, were held not action-
able ; " may the Lord have mercy on two men who brought me to court
yesterday, bringing shame and scandal upon me, my curse, and the
curse of God, be down upon Patrick Fitzgerald and Patrick Butler who
brought me to court yesterday, bringing me shame and scandal, and
that it remain on them." Fitzgerald v. Robinson, 112 Mass. 371. But
see Servatius v. Pichel, 34 Wis. 292.

§ 4. When special damages must be shown. When the words are
not in themselves actionable, special damages must be alleged and j^roved
in order to maintain the action. Andres v. Koppenheafer, 3 Serg.
& R. 256 ; Iloag v. Hatch, 23 Conn. 590. In such case the declaration
must set forth precisely in what way the special damages resulted from
the speaking of tlie words. Martin v. Henrichson, 2 Ld. Raym. 1007;
Wether ell v. Clerlcson, 12 Mod. 597 ; Johnson v. Robertson, 8 Porter,
486 ; HallocTc v. Miller, 2 Barb. 630. It is not sufficient to allege,
generally, that the plaintiff has sustained special damages, or tliat he
has been put to great costs and expenses ( 6(90^ v. Coolc, 100 Mass. 194);
nor to allege that the plaintiff " has been injured in her name and fame "
{Pollard V. Lyon, 91 U. S. [1 Otto] 225); nor that the plaintiff, in

SLANDER. 7SI

consequence of the speaking of the words, " has been slighted, neglected
and misused bj the neighbors and her former associates, and tm*ned out
of doors." Pettihone v. S{?n^son, 66 Barb. 492 ; Bassell v. Elmore^
48 N. Y. 561. See Strauss v. Meyer, 48 III. 385. Where the decla-
ration sets forth different slanders uttered at different times, a general
allegation that " the plaintiff sustained special damages by means of
the committing of the said several grievances," is not sufficient. The
particular wrongful act must be averred, from which the special damage
is claimed to have resulted. Hoar v. Ward, 47 Yt. 657.

The special damage must have been the natural and direct, or rea-
sonable consequence of the defamatory words. Vicars v. WilcocTcs, 8
East, 1 Wilson v. Runyon, "Wright, 651 ; Moody v. Baher, 5 Cowen,
351 ; Bradt v. ToiusUy, 13 Wend. 253 ; Hastings v. Palmer, 20 id.
225 ; Olrnstead v. Brown, 12 Barb, 657 ; Terwilliger v. Wands, 25 id.
813 ; S. C, 17 N. Y. 54 ; Basill v. Elmore, 65 Barb. 627 ; Eeenholts
v. Becker, 3 Denio, 346 ; Knight v. Gibhs, 1 Ad. & El. 43 ; Birch v.
Benton, 26 Mo. 153 ; Price v. Whiteley, 50 id. 439. Where, therefore,
it is alleged that the defendant threatened the plaintiff with bodily in-
jury, and caused such interruption and inconvenience as to occasion pe-
cuniary loss, to entitle the plaintiff to recover he must show that it was
a reasonable fear. Grimes v. Gates, 47 Yt. 594 ; S. C, 19 Am. Rep.
129. But if the injury consist of a loss of business, there va^y be a
recovery without setting out or showing the particular customers whom
the plaintiff lost through the speaking of the words, when it is difficult
or impracticable to do so. Hartley v. Herring, 8 Term R. 130 ; Tren-
ton, etc., V. Perrine, 3 Zab. 402. Where there are two distinct grounds
of special damage, one from the act of the defendant and the other
from the act of a third person, the plaintiff cannot recover. Vicars v.
Wilcoclcs, 8 East, 1. Ante, Yol. 1, 149.

Where words not actionable in themselves concern a person in his
office, trade or profession, it must be alleged and proved that they were
spoken in reference to such office, trade or profession ; and a mere
allegation that the plaintiff had a certain office, or was engaged in a
certain trade or profession, and that the speaking of the words injured
him therein, is insufficient. Burnet v. Wells, 12 Mod. 420 ; Miller r.
Damd, 43 L. J. C. P. 84 ; Ay re v. Craven, 2 Ad. & Ell. 2 ; Gilbert v.
Field, 3 Caines, 329 ; Van Epps v. Jones, 50 Ga. 238 ; Rammell v.
Otis, 60 Mo. 365.

§ 5. Charging crime. Where the defamation consists in charging
another with crime, it is not necessary to show that the person of whom
the words were spoken had the physical ability to commit the crime
{Chamhers v. White, 2 Jones, 383); or was legally capable or competent

732 SLANDER.

to commit it, unless the fact of Ins disability was known to the hearers
Kennedy v. Gifford, 19 Wend. 296 ; Carter v. Andrews^ 16 Pick. 1
Walker v. Wmn, 8 Mass. 248 ; Montgomery v. Deeley, 3 Wis. Y09
Tenney v. Clement, 10 N. H. 52 ; Sawyer y. Hopkins, 23 Me. 268
Stallings v. Neioman, 26 Ala. 300 ; Poe v. Grower, 3 Sneed, 664. And
words are actionable, although they charge crime indirectly, and not in
technical language {(Jurtis v. Curtis, 10 Bing. 477 ; Ingalls v. Allen,
Breese, 300 ; Eckart x. Wilson, 10 Serg. & R. 44; T/"?^e v, Plumley,
36 Me. 466 ; Stewart v. ^c^z^e, 17 111. 71 ; Colmam. v. Godwin, 3 Dougl.
90 ; Morgan v. Livingston, 2 Rich. 573 ; ^a^e v. Shelton, 3 id. 242 ;
Johnson v. Shields, 1 Dutcher, 116; Walrath v. NeUis, 17 How. Pr.
72) ; or in slang terms, as, to say of another, " he is a bogus peddler,"
when understood to be a slang phrase for a dealer in counterfeit money
{Pike V. Van Wormer, 6 How. Pr. 99) ; or by instituting a comparison
or expressing a suspicion or opinion, or stating the defamatory matter
as hearsay {Peake v. Oldham, Cowp. 275 ; Stich v. Wisedome, Cro. Eliz.
348 ; Waters v. Jones, 3 Porter, 442 ; Logan v. Steele, 1 Bibb, 593 ;
Giddens v. Mirk, 4 Ga. 364 ; Miller v. Miller, 8 Johns. 74) ; or by
saying that the plaintiff is deserving of punishment, if the words con-
vey an imputation that a crime has been committed by him (Cro. Eliz.
62 ); by interrogation {LIunt v. Thimblethorjpe, 1 Yin. Abr. 429 ; EaH
of Northam^ptonus Case, 12 Rep. 134); or in answer to a question
{LLoRjward v. Baylor, 1 Roll. Abr. 50) ; but not a mere suspicion or
opinion, which does not import any express or precise imputation of
guilt {LLodgson v. Scarlett, 1 B. & Aid. 243 ; LLarrison v. King, 4 Price,
46); nor accusing an individual of crime, no other person being present
{Force v. Warreti, 15 C. B. [N. S.] 806 ; Sheffill v. Van Deusen, 13 Gray,
304 ; Desmond v. Brown, 33 Iowa, 13 ; ILaile v. Fuller, 5 Thomp. &
Cook, 716; S. C, 2 Hun, 519) ; or none who understood the language
in which the words were uttered. Lyle v. Clason, 1 Caines, 581 ;
Broderick v. James, 3 Daly, 481. Words imputing a disposition or a
mere intention to commit crime are not actionable in themselves, unless
the intention charged is of a treasonable nature. LLarrison v. Stratton,
4 Esp. 218 ; Seaton v. Cordray, Wright, 101 ; McKee v. Lngalls, 4
Scam. 30 ; Wilson v. Latum, 8 Jones, 300.

Not every unfounded imputation of crime is actionable ; and it is
for the jury to determine whether the words were spoken in good faith
in prosecuting an inquiry as to a suspected offense, and, if so, whether
they were uttered in stronger language, or in a more public manner
than was necessary. Padvwre v. L^awrence, 11 Ad. & El. 380 ; Lem-
pest V. Chamhers, 1 Stark. 67; Lleming v. Pov)er, 10 M. & W. 564;
LLa/rjper v. Harper, 10 Bush, 447.

SLANDER. 733

§ 6. Charging adultery or fornication. At common law, words
imputing to a female immoral and unchaste conduct are only action-
able when special damage ensues. Roberts v. Roberts^ 5 B. & S. 3S4;
33 L. J. Q. B. 249 ; Lucas v. Nichols, 7 Jones, 32. As to say of a
woman, " she is li^dng by imposture, and used to walk the streets for a
living," though the jury find that the words were spoken with the
intention of imputing that she was a swindler, and a prostitute.
Wilby V. Elston, 8 C. B. 142. So, the refusal of a father, in conse-
quence of defamatory words spoken of his daughter, which he disbe-
lieves, to supply her with certain articles of clothing which he had
promised her, or the means of education, is not such special damage as
will sustain an action. Anonymous, 60 N. Y. 262 ; S. C, 19 Am. Rep.
174. But the loss of any substantial benefit, such as marriage, the
hospitality of friends, or the means of support, is suificient special dam-
age, whether the plaintiff be a man or a woman. Moore v. Meagher,
1 Taunt. 39 ; Davies v. Solomon, 4i L. J. Q. B. 10 ; Davis \. Gardiner,
4 Co. 16 ; Reston v. Pomfreicht, Cro. Eliz. 639 ; Mathews v. Crass, Cro.
Jac. 323; Malone v. Stewart, 15 Ohio, 319; Sjpencerv. McMaster, 16
m. 405 ; Cleveland v. Detioeiler, 18 Iowa, 299 ; LincTc v. Kelly,
25 Ind. 278; JJnderhill v. Welton, 32 Yt. 40. The refusal of
entertainment to the plaintiff, by a person from whom she had
been accustomed to receive it, is sufficient special damage to sustain
the action, if it be proved that such refusal was the direct con-
sequence of the speaking of the defamatory words. Pettihone v. Simp-
son, ^Q Barb. 492. And under a statute making the imputation of
want of chastity in a female actionable per se, it was held competent for
the plaintiff to show that, in consequence of the speaking of the words,
she was excluded from the society in which she formerly moved, and
was affected in mind and health, although the declaration did not claim
special damages. Burt v. McBain, 29 Mich. 260 ; S. C, 16 Am.
Rep. 578. Where a landlord went to the house of his tenant, and
stated to the wife of the tenant that the plaintiff and others of her
lodgers behaved improperly at the windows, and that no moral per-
son would wish to have such people in his house, and the plaintiff
was forbidden the house, it was held that the action would lie, although
the mistress of the house testified that she dismissed the plaintiff in
consequence of the landlord's complaint, not because she behoved it,
but for the reason that she feared her landlord would be offended if
the plaintiff remained. Knight v. Gibhs, 1 Ad. & El. 43 ; S. C, 3
Nev. & Mann. 469. And where a clergyman, in consequence of a
charge of incontinence, was prevented from preaching, it was held suffi-
cient to support an action. Hartley v. Herring, S Term R. 130.

734 SLANDER.

"Where the words are spoken of a married woman, her illness from
over excitement produced by the slander, and her inability to attend to
her domestic afiairs, are not the kind of damage which forms a ground
of action. Allsoj) v. Allsqp, 5 H. & N. 534. But it has been held
otherwise as to an unmarried female dependent on her labor for her
support. Fuller v. Fenner, 16 Barb. 333.

Saying of a person that he has committed adultery or fornication is
not actionable j?er se when spoken where such acts are not indictable.
Berry v. Carter, 4 Stew. & Port. 3ST ; Flliott v. Ailsherry, 2 Bibb, 473 ;
Dulces V. Clarli, 2 Blackf. 20; Woodbury v. Thomjpson, 3 N. H. 194;
McQueen v. Fulcham, 27 Tex. 463 ; Pollard \. Lyon, 91 U. S. (1 Otto)
225 ; Pettibone v. Sirrvpson, QQ Barb. 492. So, calling a woman a
whore is not actionable. Gascoigne v. Amhler, 2 Ld. Raym. 1004;
Boyd V. Brent, 3 Brev. 241 ; Linney v. Maton, 13 Tex. 649 ; contra :
Snediker v. Poorhaugh, 29 Iowa, 488. But where adultery or forni-
cation is made indictable by statute, words imputing that a person has
been guilty of such an offense are actionable in themselves. Moberly
V. Preston, 8 Mo. 462 ; MBrayer v. Hill, 4 Ired. 136 ; Truman v.
Taylor, 4 Iowa, 424 ; Terry v. Bright, 4 Md. 430 ; Stieher v. Wensel
19' :Mo. 513; Sidgreaves v. Myatt, 22 Ala. 617; Snoio v. Witcher, 9
Ired. 346 ; Vanderlip v. Boe, 23 Penn. St. 82 ; Miller v. Parish, 8
Pick. 384 ; Syinonds v. Garter, 32 IST. H. 458 ; Kenney y. Zcmghlin,
5 Gray, 5 ; Wilso7i v. Barnett, 45 Ind. 163 ; Mayer v. Schleichter,
29 Wis. 646 ; Spencer v. McMasters, 16 111. 405 ; Flam v. Badger, 23
id. 498 ; Peltier v. Mid, 50 id. 511 ; Waugh v. Waugh, 47 Ind. 580.

Words importing that a person keeps a bawdy house are actionable,
the keeping of such a house being an indictable offense at common law
{Martin v. Stillwell, 13 Johns. 275 ; Wright v. Paige, 36 Barb. 438 ;
S. C, 3 Keyes, 581 ; Hewit v. Mason, 24 How. Pr. 366 ; McGue v.
Ferguson, 73 Penn. St. 333 ; Zipprant v. Lipprant, 52 Ind. 273); and
Words charging that a married woman had a bastard child by her hus-
band before her marriage, have been held slanderous. Murray v.
Murray, 1 Cine. (Ohio) 290. But calling a woman " a bitch," is not
slanderous as imputing whoredom {Schurick v. Kollman, 50 Ind. 336) ;
nor to say that a married woman " is in a fix," meaning that she is
pregnant ; 1)ut it might be otherwise if spoken of an unmarried female.
Acker v. McGallough, id. 447.

§ 7. Murder. Words imputing to another the commission of a
homicide are actionable ^(3r se, though the person charged to have been
killed be living. Eckart v. Wilson, 10 Serg. & R. 44 ; Ilays v. Ilays^
1 Humph. 402 ; 0' Connor v. 6>' Connor, 24 Ind. 218. Where the
defendant, alluding to the death of a certain person, said to the plaintiff,

SLANDEK. 735

" you are a bad man, and I am thoroughly convinced that you are guilty,
and rather than you should want a hangman, I would be your execu-
tioner," it was held that the words were actionable ; and the judgment
was affirmed on writ of error. Peaks v. Oldha^n, Cowp. 275.
See Button v. Heyward, 8 Mod. 24. The following words were held
actionable: "I think the business ought to have the most rigid
inquiry, for he murdered his first wife, that is, he administered improp-
erly medicines to her for a certain complaint, which was the cause of
her death." Ford v. Primrose, 5 Dowl. & Ky. 287.

§ 8. Arson. Words charging a person with willfully burning a build-
ing, the burning of which is arson, are actionable, 2J&'" se. Wallace v.
Young, 5 T. B. Monr. 155. But it is not sufficient, in an action for
slander, merely to allege in the declaration, that the defendant said of
the plaintiff, " he burned a school-house," the willful intention being
of the essence of the offense. Jories v. Ilungerford, 4 Gill & J. 402.
In an action, however, by A against B for slander, a declaration alleg-
ing that the defendant spoke of the plaintiff words substantially as fol-
lows— " he (meaning the plaintiff) burned it (meaning the said mill),
because he was poor and wanted the money," was held, sustained by
proof, that B charged A with burning his own mill to get the insurance,
and that the objection that the declaration did not show that B charged
A with a crime could only be taken by demurrer. Chace v. Sherman,
119 Mass. 387. Saying of the plaintiff that he burnt the defendant's
barn was held actionable under a statute making it felony to burn a
barn which was empty, or had personal property in it. House v. House,
5 Har. & J. 125. The following words were held actionable — " Some
time ago Mr. !Norris' stables were burned, and I lost my horse, and
public opinion says, you were the author of it ; and what public opinion
says, I believe to be right." Gage v. Shelton, 3 Rich. 242. The same
was held of saying of the plaintiff — " I have every reason to believe he
burnt said barn ; I believe he burnt said barn." Logan v. Steele, 1
Bibb, 593. And it was held actionable to say of another — " I believe
he burnt the camp ground." Giddens v. Mirh, 4 Ga. 364.

§ 9. Forgery. Charging another with forging a deposition, or the
name of a person to a petition to the legislature, or with forging a let-
ter acknowledging the receipt of money, or of saying of an agent that
he altered books of account and papers in order to defraud his princi-
pal, is actionable. Atkinson v. Reding, 5 Blackf. 39 ; Alexander v.
Alexa/tider, 9 Wend. 141 ; Picks v. Cooper, 3 Hawks, 587. The same
is true of charging a person with the alteration of a written instrument
without consent, " in order to get better security," or " for the purpose
of binding me to pay for it." And, also, of the following — ''' I never

736 SLANDEK.

wrote it ; this note has been tampered with ; if Jim had said at the
time the note was given, he wanted security, he could liave had it,"
when found by the jury to have imputed to the plaintiif forgery.
McLaugTdin v. Bascom, 38 Iowa, 660. Where the defendant, after a
note and mortgage which had been given him by the plaintiff, had
been paid and taken up, said that the plaintiff had inserted a clause of
payment of interest for one year in the mortgage, that the plaintiff had
forged it, that he was a forger, and guilty of forgery, and had made
use of false pretenses to obtain money, it was held that the words
imputed forgery, and not the obtaining of money by false pretenses.
HotcKkiss V. Olmsteadj 37 Ind. 74.

But where the charge is not specific, or is in the disjunctive, it is not
actionable ; as, to say of another — " He, or somebody, has altered the
indorsement of the note from a larger to a less sum ; the note will
speak for itself " {Ingalls v. Allen, Breese, 300) ; or, " I never put my
name on the back of the note, and he must have done it." Athinson
V. Scammon, 22 ]S". H. 40. So, charging another with passing counter-
feit money is not actionable, without alleging that the defendant charged
the plaintiff with passing counterfeit money knowing it to be such.
Church V. Bridgman, 6 Mo. 190. And an action cannot be maintained
against a person, who, when asked to pay a note which he had signed
as surety, denied his signature, and stated that he never gave authority
to another to sign his name to the note. Andrews v. Woodmansee, 15
Wend. 232.

§ 10. Larceny. To charge a j^erson with having stolen any thing is
actionable 2^er se. Holley v. Burgess, 9 Ala. 728 ; Parker v. Lewis, 2
Greene (Iowa), 311 ; Qaul v. Fleming, 10 Ind. 253 ; Johnson v. Shields,
1 Dutcher, 116 ; Coleman v. Flaysted, 36 Barb. 26 ; Ujjharn v. Dick-
rnison, 50 111. 97. And although the charge be indirect, yet if it impute
larceny, it is actionable. As, to say of another — " You get your living
by sneaking about when other people are asleep. What did you do
with the sheep you killed ? Did you eat it ? It was like the beef you
got negroes to bring you at night. Wliere did you get the shoats you
always have in your pen? You are an infernal, roguish rascal" {Mor-
gan V. Livingston, 2 Eich. 573) ; or, " I saw him take corn from the
crib twice, and look around to see if any one saw him measuring"
{Jones V. McDowell, 4 Bibb, 188) ; or, " my watch has been stolen, and
I have reason to believe that she took it, and that her mother concealed
it." Miller v. Miller, 8 Johns. 74. To say of another — " I believe
he will steal, and I believe he did steal ;" or, " he took my wood, and
is guilty of any, and every thing, that is dishonest," is actionable.
Dotta/rer v. Btishey, 16 Penn. St. 204. So the words — "you will

SLANDER. 73T

steal," are actionable, if meant to charge that the person of whom they
are spoken has been guilty of stealing. Cornelius v. Yan Blyck, 21
"Wend. 70. The words — " he is a thief," in the absence of explanation,
are equivalent, in their legal effect, to a charge of larceny. McKee v.
Ingalls, 4 Scam, 30 ; Dudley v. Robinson, 2 Ired. 141 ; Robinson v.
Keyser, 2 Fost. 323 ; Sabin v. Angell, 46 Yt. 740 ; McNamara v. Shan-
non, 8 Bush, 557 ; Little v. Barlow, 26 Ga. 423. Saying of a partner—
" the books of the firm must be in court ; for he is a swindler, and thief,
and stole eight thousand dollars from me," is actionable per se. Stern
V. Katz, 38 Wis. 1 36. See Fisher v. Rottereau, 2 McCord, 189 ; Hogg
V. Wilson, 1 Nott & McCord, 216 ; Davis v. Johnston, 2 Bailey, 579 ;
Ifye V. Otis, 8 Mass. 122.

If it appear, that the word "thief" was employed as a mere term of
abuse, without any imputation of actual theft, there is no cause of action.
This was held, where the defendant said of the plaintiff, " he is a damned
thief, and so was his father before him," it appearing that the words
were spoken in anger, during a conversation relative to the plaintiff's
refusal to pay over money which he had received as executor. Thomp-
son V. Bernard, 1 Camp. 48. And see Penfold v. Westcote, 2 B. &
P. (N. E.) 335.

Where the language is afterward qualified, so as to show that it did
not impute a felonious taking, an action cannot be maintained. As,
"you stole my money ; yes, you kept my money." Taylor v. Short,
40 Ind. 506. So, where the defendant said to the plaintiff, "you are a
thief, for you have taken my beasts under execution," it was held that
an action could not be maintained. WiWs Case, 1 Roll. Abr. 51. It
is not, however, a defense, that the charge could not be true, if, when
the words were spoken, there was nothing said by the defendant, to
qualify, or explain them, or to enable the hearers to understand that a
crime was not intended to be charged. Carter v. Andrews, 16 Pick.
1 ; Yan AMn v. Caler, 48 Barb. 58.

To charge another with having robbed a certain person, or with hav-
ing robbed the United States mail, is actionable {Toinlinson v. Brit-
tlebank, 4 B. & Ad. 630 ; S. C, 1 Nev. & Mann. 455 ; Slowman v.
Dutton, 10 Bing. 402 ; Jones v. Chapman, 6 Blackf . 88) ; as, to say,
"he had a roll of money, a short time after the death of my father,
and this was the money he robbed my fatlier of." Hittts v. Hutts, 51
Ind. 581.

To characterize another as " a thieving person " or " a thieving
puppy " is actionable. Pierson v. Steortz, 1 Morris, 136 ; Alley v.
Neely, 5 Blackf. 200. This was held, of the following words spoken

of the plaintiff, " you are a G — d d d lying, thieving son of a

YoL v.— 93

738 SLANDER.

bitch," the adjective "thieving" importing that the defendant had
been guilty of stealing. Reynolds v. Boss, 42 Ind. 387.

The words must impute the commission of a felonious act. There-
fore to say to a person " you as good as stole A's canoe," is not action-
able {Stokes V. A?'ei/, 8 Jones, Q6) ; nor, " I have seen women steal
before," unless shown, by reference to facts and circumstances, to
have imputed larceny to the plaintiff {Hart v. Coy, 40 Ind. 553) ; nor
'•' he must settle for some of my logs he has made away with " {Brown
V. Brown, 14 Me. 317) ; nor "he killed my hogs and converted them
to his own use" {Sturgenegger v. Taylor, 2 Brev. 480); nor "he is
mighty smart after night — put him in the dark and he would get it
all " {Kirhsey v. Fike, 29 Ala. 206) ; nor the words " you hooked my
geese." Rays v. Mitchell, 7 Blackf. 117.

The term " stealing " is not actionable, unless it appears from the
additional words that the charge was intended to embrace something
more than a mere trespass. Robertson v. Lea, 1 Stew. 141 ; Stone v.
Clarl, 21 Pick. 51; Stitzellx. Reynolds, 67 Penn. St. 54; S. C, 5
Am. Rep. 396. Wliere an officer takes certain articles from a person
whom he has arrested and the latter accuses the officer of theft, it is
not actionable. Ayers v. Grider, 15 111. 37. So, an action cannot be
maintained for charging a person with a mere breach of trust. Hawn
V. Smith, 4 B. Monr. 385.

Charging a person with the taking of property which is not the sub-
ject of larceny, as, for instance, to accuse him of stealing a bee tree, is
not actionable. Cook v. Weatherhy, 5 Sm. & Marsh. 333. "When the
declaration shows that the charge could not have been meant to impute
a felonious stealing, as if it allege that the defendant said "you stole
an acre of my land," it will be bad on demurrer. Walter v. Beaver,
3 Lev. 166. Where, however, the defendant said to the plaintiff, "thou
hast stolen our bees and thou art a thief," it was held that as tlie words
" thou art a thief " imported the stealing of such bees as might be the
subject of felony, they were actionable. 3 Salk. 325. See Quinn v.
O'Gara, 2 E. D. Smith, 388. But if the defendant called the plain-
tiff a thief, he cannot sliow that the words were spoken in relation to
a transaction which did not constitute larceny, without offering to
prove that the persons who heard them so understood or might have
understood them. Nor can he prove that hostility existed between
him and the plaintiff when the words were uttered, without also show-
ing that tlie words were uttered in the heat of passion. Sahin v.
Angell, 40 Vt. 740.

§ 11. Perjury. To render a charge of false swearing actionable J9^
86, it must have been made concerning an oath in a proceeding in

SLANDEIi. 739

which false swearing is indictable and punishable as perjury and relate
to a matter material to the issue. Harris v. Woody ^ 9 Mo. 113;
Snyder v. Degant, 1 Ind. 578 ; Roella v. Follow^ 7 Blackf. 377 ;
Darling v. Banks, 14 111. 46 ; Dalton v. Siggins^ 34 Ga. 433 ; Hoss
V. Bouse, 1 Wend. 475 ; Wood v. Southwick, 97 Mass. 354. The
court must have had jurisdiction. Bullock v. Koon, 4 "Wend. 531 ;
Hall V. Montgomery, 8 Ala. 510. Charging a person with having
taken an oath prescribed by a void act of the legislature is not slander.
Burkett v. McCarty, 10 Bush, 758. But it is sufficient that the
words refer to a material matter in a judicial proceeding, though such
proceeding was not, in fact, had {Brioker v. Potts, 12 Penn. St. 200 ;
Kern v. Towsley, 51 Barb. 385) ; or was dismissed for irregularity.
Reg. V. Meek, 9 C. & P. 513 ; Henry v. Hamilton, 7 Blackf. 506.
It is actionable to say of another that he committed perjurj^ in taking
out a peace warrant, although the warrant was void for the want of a
seal. Bell v. Farnsvjorth, 11 Humph. 608. And it has been held
slanderous to charge a person with swearing falsely to an immaterial
matter, if it was supposed to have been material by the hearer.
Butterfield v. Buffum, 9 N. H. 156. Saying of a person that he
swore falsely at an arbitration is actionable, although the arbitrators
were not sworn. Howard v. Sexton, 4 N. Y. 157. See Moort, v.
Horner, 4 Sneed, 491.

Any imputation of being foresworn is actionable, when meant and
understood of such false swearing as would constitute perjury {Ilolt
V. Scholefield, 6 Term E. 691 ; Wilson v. Oliphant, Wright, 153 ;
Jones V. Marrs, 11 Humph. 214; Jacobs y. Fyler, 3 Hill, 572; San-
ford V. Gaddis, 13 111. 329 ; Eccles v. Shannon, 4 Harring. 193 ; Brown
V. Hanson, 53 Ga. 632 ; Bonner v. McPhail, 31 Barb. 106 ; Case v.
Buckley, 15 Wend. 327 ; Williams v. Spears, 11 Ala. 138 ; Spooner
V. Keeler, 51 N. Y. 527) ; as to say, "you swore to a lie, for which you
now stand indicted " {Pelton v. Ward, 3 Caines, 77) ; or " he has sworn
falsely and I wiU lay the matter before a grand jury " {Oilman v.
Lowell, 8 Wend. 573) ; or to say of another after the termination of
a cause, "you swore false at the trial" {Fowlev. RolMns, 12 Mass.
498) ; or to say of a person " I would not swear to what he has for the
town or coimty " ( Walrath v. Nellis, 17 How. Pr. 72) ; or " he has

sworn to a d d lie and I will put him through for it if it costs

me all I am worth '' {Crone v. Angel, 14 Mich. 340) ; or " he is a
perjured scoundrel " {Haws v. Stanford, 4 Sneed, 520) ; or " he has
sworn falsely against me and I have advertised him as such " {Magee
V. Stark, 1 Humph. 506) ; or to say to a witness while testifying,
"that is a he" {Mower v. Watson, 11 Yt. 536) ; or "you swore to a

740 SLANDER.

lie before the grand jury " {Persely v. Bacon, 20 Mo. 330) ; or to a
witness who had testified in a case, " you swore to a lie and I can
prove it." Lewis v. Black, 27 Miss. 425. So, words which, of them-
selves, do not appear to be actionable, may be shown to be so by proper
averments. Power v. Miller, 2 McCord, 220 ; Stafford v. Ch^een, 1
Johns. 505 ; Rich v. Liwingston, 2 Rich. 573.

But simply to say of a person, that he is forsworn or has taken a
false oath is not actionable for the reason that such words only impute
a breach of morality, of which the law does not take cognizance.
Roella V. Follow, 7 Blackf. 377; Sluder v. Wilson, 10 Ind. 92;
Phincle v. Vaughafi, 12 Barb. 215; KiinmisY. Stiles, 44 Yt. 351.
The following words are not, therefore, slanderous j9er se : "he swore
to a damned lie" [Muchler v. Mulhollen, Hill & Denio, 263; Shin-
loub V. Aminerman, 7 Ind. 347); "she has sworn falsely" {Barger v.
Barger, 18 Penn. St. 489) ; " if I had sworn to what you did, I should
have sworn to a lie." Beswick v. Chapjpel, 8 B. Monr. 486. Merely
to allege that the defendant spoke the foregoing, or similar words, is
not sufficient without an averment that the words had reference to a
matter in which an oath was authorized by law. Small v. Clewley,
60 Me. 262.

§ 12. Other crimes or misdemeanors. A false and malicious
charge of treason, or any species of felony, whether the imputed
offense be known as such at common law, or has been created by
statute, is actionable. Saying of another that lie received goods know-
ing them to be stolen, when false, is slander. Alfred v. Farlow, 15 L.
J. Q. B. 260 ; Dorsey v. Whipps, 8 Gill, 457. So, charging a per-
son with embezzlement is actionable when the charge is made with
reference to one, who, from his situation, might have committed that
offense, but not otherwise. Williams v. Stott, 1 0. & M. 675. Bribery
being an indictable offense at common law, it is slanderous per se to
say of another, that he received money for his vote at an election
{Bendish v. Lindsey, 11 Mod. 194) ; or to accuse one of the members
of a commission awarded out of chancery to take testimony and to
hear and determine the matter, with receiving bribes from a party to
the suit {Moor v. Forster, Cro. Jac. 65) ; or to charge one with pay-
ing money to be made purser of a man of war. Purdy v. Stacey,
Burr. 2699. But where words, which, by themselves, charge a felony,
are accompanied with an allusion to a transaction which merely
amounts to a breach of trust or breaeli of contract, no action will lie.
TJiompson v. Berna/rd, 1 Camp. 48 ; Christie v. Cowell, Peake, 4.

The rule deducible from the authorities is, that an action may be
maintained without proof of special damage, for imputing any crime

SLAXDEE. Y41

•or misdemeanor, for which corporal punishment may be inflicted ; but
not where the penalty for the offense is merely pecuniary, even though
in default of payment, imprisonment be prescribed by the statute. Holt
V. ScJwlefield, 6 Term R. 691 ; Frisbie v. Fowler^ 2 Conn. 707 ; Dema/rest
V. Having^ 6 Cowen, 76 ; Johnston v. Morrow, 9 Porter, 52.5 ; Gage v.
Shelto7i, 3 Eicli. 242 ; Burton v. Burton, 3 Greene (Iowa), 316 ;
Stitsell V. Reynolds, 67 Penn. St. 54; S. C, 5 Am. Rep. 396. But
see Miller v. Parish, 8 Pick. 384. It is actionable to impute to
another an attempt to procure an abortion {Filher v. Dautermann,
26 "Wis. 518) ; or to say of a person that he took the clothing, anirno
furandi, from the body of a man who was drowned and driven ashore,
from a wreck ( Wonson v. Sayvjard, 13 Pick. 402) ; or that he was the
author of a libel {Russell v. Ligon, 1 Yin. Abr. 423 ; Andres v.
Koppenheafer, 3 Serg. & R. 255 ; Viele v. Gran/, 10 Abb. Pr. 1 ; S.
C, 18 How. 550) ; or to charge one with a trespass, which, if com-
mitted, would have rendered him liable to indictment ( Wilcox v.
Fdwards, 5 Blackf. 183) ; as, that he maliciously removed a landmark
( Young V. Miller, 3 Hill, 21) ; or, the corner stone of a survey. Dial
V. Bolter, 6 Ohio St. 228.

§ 13. Slander of profession, office, or vocation. Words falsely
and maliciously spoken of a person, with reference to his office, and
imputing to him corruption, ill design, or want of principle therein,
are actionable per se {Tovmsend v. Hughes, 2 Mod. 152 ; Roe \.
Clargis, 3 id. 26 ; Lumhy v. Allday, 1 C. & J. 301 ; Dodds v. Henry,
9 Mass. 262 ; Mayrant v. Richardson, 1 Nott <fe McCord, 347) ; as to
say of a judge, " his sentence was corruptly given " (Cro. Eliz. 305) ;
or, of a justice in the execution of his office, " you are a rascal, a vil-
lain, and a liar" {Aston v. Blagrave, 2 Ld. Raym. 1369) ; or, " he is
forsworn, and not fit to be a justice, or to sit upon the bench " {Kirle
V. Osgood, 1 Mod. 23) ; or, " he makes use of the king's commission, to
worry men out of their estates" {Newton v. Stuhhs, 9 id. 71); or ''I have
often been with him for justice, but could not get any thing at his
hands, but injustice " (Cro. Car. 14). But not to represent a person
as wanting in ability to liold an ofiice, when the words do not imj)ute
to him any breach of oflicial duty. Hovj v. Prinn, 2 Salk. 694 ; On-
slmo V. Home, 3 Wils. 186 ; Rex v. Parhij, 3 Mod. 139. The rule
Includes all offices of trust or profit, of a temporal nature. It is there-
fore actionable to charge a sheriff with converting to his own use
moneys which he has collected on execution {Dole v. Van Rensselaer,
1 Johns. Cas. 330) ; or, to say of a postmaster, " he would rob the
mail, for one hundred dollars ; yes, he would rob the mail for
five dollars " {Craig v. Brown, 5 Blackf. 44) ; or, of an Bflmin-

742 SLANDER.

istrator, " he has a room in wliicli are two beds, and both beds are
full of leather, which he smuggled away at the time of the appraise-
ment." Beck V. Stitzel, 21 Penn. St. 522.

To maintain an action, it is not sufficient that the person of whom
the words were spoken filled an office ; but they must have been
uttered with reference to his official character or conduct. Oakley v.
Farrvngton^ 1 Johns. Cas. 129 ; YanTassel v. Capro7i^ 1 Denio, 250 ;
Irelomd v. McGarvish, 1 Sandf. 155 ; Kinney v. Wash, 3 Comst. lYT ;
James Y. Brook, 9 Ad. & Ell. Q^. S.) 7. Nor, is it enough, that the
person of whom the words were spoken merely acted in tlie capacity
of a public officer ; but it must appear that he was duly authorized so
to act. Sellers v. Killew, 7 D. &E,y. 121. So, the words must have
been uttered while the plaintiff was in office ; the ground of presumed
injury being the danger of exclusion from office, and not damage to
general reputation. Onslow v. Horn£, sapra', Doyley v. Roberts 3 Bing.
N. C. 835 ; Forward v. Adams, 7 Wend. 204. Saying of a justice
of the peace that he has been guilty of corrupt conduct in trying a
case, over which he has no jurisdiction, is not actionable. Oram v.
Franklin, 5 Black. 42.

Imputing to a person gross ignorance, general unfitness, incapacity,
or want of integrity, in his profession, is actionable iJer se. Tutty v.
Alewin, 11 Mod. 221 ; Johnson v. Robertson, 8 Porter, 486 ; Secor v.
Harris, 18 Barb. 425 ; Carroll v. WJiite, 33 id. 615 ; Bergold v.
Puchta, 2 Thomp. & Cook, 532 ; Camx> v. Martin, 23 Conn. 86. But
words which only impute to a professional man ignorance, or want of
skill, in a particular case, are not actionable, unless they cause pecun-
iary loss. Ayre v. Craven, 2 Ad. & Ell. 2 ; Foot v. Brown, 8 Johns.
64 ; Williams v. Hill, 19 Wend. 305 ; Garr v. Selden, 6 Barb. 416 ;
Jon£S V. Diver, 22 Ind. 184; Snell v. Snow, 13 Mete. 278; Cook v.
Cook, 100 Mass. 194.

In general, to render the words actionable, it must appear that they
were spoken of the plaintiff, in his profession, business, or vocation.
But imputing to a person want of integrity in a situation of trust, or
confidence, has been held actionable, though the charge does not ex-
pressly refer to his situation {^Harper v. Beaumond, Cro. Jac. 56) ; as,
to say of an attorney, " you are well known to be a corrupt man, and
to deal corruptly " (4 Rep. 16) ; or to charge an attorney with being a
" common barrator " (Cro. Car. 192) ; or to say of a surgeon, " he is a
bad character, none of the medical men will meet him." Southee v.
Denny, 1 Exch. 196. But charging an attorney with having defrauded
his creditors, when not spoken of him in his profession, is not actiona-
ble without proof of special damage. Doyley v. Roberts, 3 Bing. N".

SLANDEK. 743

C. 835. Where a profession calls for great ability, and extensive attain-
ments, it has been held actionable to impute a general lack of ability,
Avithout special reference to the person in his profession. As to say of
a lawyer, " he is a dmice " {Peard v. Jones^ Cro. Car. 382) ; or, of a
physician, " he is no scholar." 7 Bac. Abr. 269.

Words tending to injm-e a person engaged in trade, by imputing to
liim dishonest practices therein, or by reflecting upon his credit, or the
commodity in which he deals, are actionable 'per se. Thomas v. Jack-
son, 3 Bing. 104 ; Angle v. Alexander, 7 id. 122 ; Stober v. Green, 1
B. & G. 5 ; Sibley v. Tomlins, 4 Tyrw. 90 ; Lancaster v. French, Str.
797 ; Bachxis v. Richardson, 5 Johns. 476 ; Harris v. JBurley, 8 IST.
H. 216 ; Phillies v. Hafer, 1 Penn. St. 62. The action extends to words
spoken of a person in any lawful employment by which he may gain
his livelihood, and also, where the person does not gain his li\'ing in the
character to which the slander is applied, if he habitually acts in that
character, and derives profit from it. Greenfield'' s Case, 1 Yin. Abr.
465, PI. 19 ; Balonneau v. Farrell, 15 C. B. 360 ; Foulger v. JVew-
conib, 36 L. J. Exch. 169 ; Seaman v. Bigg, Cro. Car. 480 ; Terry v.
Hooper, 1 Lev. 115. Imputations upon the credit of a tradesman are
actionable, although they did not impute that the want of credit ex-
isted at the time of speaking them. Leycroft v. Dunker, Cro. Car.
317. And it is sufficient, that the charge of want of credit was general.
Davis V. Lewis, 7 Term R. 17.

Words which impute insolvency to another in trade are actionable,
although they only express the speaker's opinion {Harrison v. Thorn-
borough, 10 Mod. 196) ; and where one of two partners in a firm is
charged with insolvency in trade, he may maintain an action there-
for. Harrison v. Bevington, 8 Car. & P. 70S. It is actionable to
impute indigent circumstances to a banker {Ltobhison v. Marchant, 7
Q. B. 918) ; or, to say of a stock broker, " he is a lame duck." Morris
v. Langdale, 2 B. & P. 284. Where a banker, who had in his hands
sufficient funds belonging to a customer, dishonored the customer's
check, it was held that the banker was liable to an action for damages.
Molin V. Steward, 14 C. B. 595.

ARTICLE II.

ACTION FOR SLANDER.

Section 1. In general. The venue in actions for slander is transi-
tory. The action may, therefore, be brought in any county of the State
Jefferies v. Duncomhe, 11 East, 226 ; Teagle v. Deboy, 8 Blackf. 134

744 SLANDER.

Where defamatory words spoken in a foreign country are actionable
there, the defendant may be sued here. Hart v. Gumpach, 9 Moo. (N.
S.) 241 ; Offutt V. Earlywine, 4 Blackf. 460 ; Johison v. Dicken, 25
Mo. 580 ; Bundy v. Hart, 46 id. 460 ; S. C, 2 Am. Rep. 525 ; Foe
V, Grever, 3 Sneed, 664. But see Klumph v. Dunn, QQ Penn, St.
141 ; S. C, 5 Am. Rep. 355. It will be presimied, until the contrary
is shown, that the parties are citizens of the State in which the action
is brought and that the slander was uttered there. Lister v. Wright,

2 Hill, 320 ; Worth y. Butler, 7 Blackf. 251 ; contra, ^hipp v. M'Craw,

3 Murphy, 463.

In general, the very words used must be set out on the face of the
declaration, and not merely their purport or effect {Gutsole v. Mathers,
1 M. & W. 502 ; McPherson v. Daniels, 10 B. & C. 274 ; Wright v.
Clements, 3 B. & Aid. 503 ; torsyth v. Edmiston, 5 Duer, 653 ; S.
C, 2 Abb. Pr. 430; Bassett v. Spofford 11 N. H. 167; Taylor v.
Moran, 4 Mete. (Ky.) 127 ; Teates v. Reed, 4 Blackf. 463), or, as is
sometimes permitted, their substance. Nye v. Otis, 8 Mass. 122 ; Grubhs
V. Kyzer, 2 McCord, 305 ; Whiting v. Smith, 13 Pick. 364 ; Baldwin
V. Soule, 6 Gray, 321 ; Lee v. Kane, id. 495 ; Doians v. Hawley, 112
Mass. 237. If they were uttered in a foreign language, they should be
set out in the original and their import stated in English, and it should
also be averred that the persons, in whose presence they were spoken,
understood their meaning, unless the language was the one commonly
used there in conversation. Warmouth v. Cramer, 3 "Wend. 394;
RehoMser v. Schwerger, 3 Watts, 28 ; Bechtell v. Shatter, Wright, 107 ;
Zerg v. Oi't, 3 Pinney (Wis.), 30 ; I{^erschhaugher v. Slusser, 12 Ind.
453. It must be alleged that the words were spoken in the presence
of some third person. Anonymous, 3 How. Pr. 406; Wa7'e\. Cartledge,
24 Ala. 622. But the name of the person need not be given. BurhanJcs
V. H(yrn, 39 Me. 233 ; Ilutts v. Hutts, 51 Ind. 581. When the de-
famatory language concerns a person in his office, profession or trade,
it should be connected therewith either by specific averment, or by im-
plication. Ayre v. Craven, 2 Ad. & E. 7 ; Miller v. David, L. R., 9
C. P. 118; 8 Eng. R. 434; 43 L. J. C. P. 84; HoyU v. Young, 1
Wash. (Va.)150; Gilbert y. Field, Z Gaines, 329; Dicken v. Shep-
Iierd, 22 Md. 399 ; Van Epps v. Jones. 50 Ga. 238. If the words
were sjjoken ironically, they must be set out as spoken with an aver-
ment that they were meant to be ironical. Boydell v. Jones, 4 M. &
W. 446.

At common law, when the words are not actionable per se, and do
not on their face convey a slanderous imputation, there must be a pre-
fatory averment of some extrinsic matter, a colloquium connecting it

SLANDER. 745

mth the words spoken, and an innuendo showing the injurious sense
in which they were uttered {Hawlces v. Hawley, 8 East, 427 ; Wood y.
Scott, 13 Yt. 42 ; Sanderson v. Huhbard, 14 id. 462 ; Kinney \. Nash,
3 N. Y. 177 ; Sa/nderson v. Caldivell, 45 id. 398 ; S. C, 6 Am. Rep.
105 ; Gosling v. Morgan, 32 Penn. St. 273 ; Liikehart v. Byerly, 53
id. 418 ; Hanshrough v. Stinnett, 25 Gratt. 495), where, for instance,
the words charge another with swearing falsely, the declaration should
allege the fact that testimony was given under oatli, the speaking by
the defendant of and concerning such testimony, the words spoken
and the innuendo that the defendant meant by those words to impute
perjury to the plaintiff in such testimony. Kimmis v. Stiles, 44 Yt.
351. The omission to allege that the defamatory words were spoken
by the defendant will be bad on demurrer, and such omission cannot
be supplied by the colloquium or innuendo. Watts v. Morgan, 50 Ind.
318; Roberts v. Lovell, 38 Wis. 211. "When the words are not action-
able in themselves, the plaintiff must aver and prove special damages ;
and the special damages must be particularly set forth. Merely to
allege that the false and slanderous statements of the defendant greatly
injured the plaintiff, and caused her relatives to slight and shun her,
is not sufficient. Bassil v. Elmore, 65 Barb. 627; S. C affirmed, 48
N. Y. (3 Sick.) 561. In charging malice, it is sufficient to aver that
the defendant spoke, uttered and published " the false, scandalous,
malicious and defamatory words, following." KeesUivg v. McCall, 36
Ind. 321.

It is sufficient for the plaintiff to prove the words substantially as
charged {Des7nond v. Brown, 29 Iowa, 53 ; S. C, 4 Am. Rep. 194) ;
but not different words of similar import. Bundy v. Hart, 46 Mo.
460; S. C, 2 Am. Rep. 525. All the words charged need not be
proved, but only those which constitute the slander. Pennington v.
Meels, id. 217.

§ 2. Who may sue. The party plaintiff must be the one concerning
whom the defamation was uttered, notwithstanding it amounts to an
indirect imputation upon a third person. Maxvjell v. Allison, 11 Serg.
& R. 343; Briggs v. Byrd, 11 Ired. 353. Where the slander was
spoken at the same time concerning several persons, each must bring a
separate action. Hinkle v. Daveniwrt, 38 Iowa, 355. If it was against
a member of a corporation or partnership, indi\'idually, he is the proper
party plaintiff, even though the corporation or firm be also injured by
the speaking of the words. Fidler v. Delavan, 20 Wend. 57; Taylor v.
Church, 8 N. Y. (4 Seld.) 452 ; Tait v. Culhertscm, 57 Barb. 9 ; Ba/vis
V. Rvff, Cheves, 17; Robinson v. Marchant,1 Ad. & Ell. (K S.) 918.
But if the imputation be against the corporation, or firm, the action
YoL. Y.— 94

746 SLAISTDEK.

must be broTigbt in its name. Maitland v. Golclney, 2 East, 425 ;
Forster v. Lawson, 3 Bing. 452 ; Taylor v. Churchy 8 K. Y. 452 ; Giraud
V. Beach, 3 E. D. Smith, 337.

At common law, for defamation against the wife, the action must be
brought in the names of the husband and wife. Ehersoll v. Krug, 3
Binn. 555. See Leonard v. Pope, 27 Mich. 145. If the slander be
against both of them, the husband may bring a separate action for the
injury to hmi, and the husband and wife join in an action for the injury
to her. Willianis v. Holdridge, 22 Barb. 396 ; Hart v. Crow, 7 Blackf.
351 ; GazynsM v. CoThurn, 11 Cush. 16 ; Bash v. Sommer, 20 Penn.
St. 159. Upon the decease of the plaintiff the action abates. Nettle-
ton V. Dinehart, 5 Cush. 544 ; Sanford v. Bennett, 24 I!^. Y. 20.

§ 3. Who may be sued. The action must be brought against the
person who spoke the words. Ward v. Weelcs, 7 Bing. 211 ; Parkins
V. Scott, 1 H. & C. 153. It will not, therefore, lie against a corporation
aggregate. Trenton Ins. Co. v. Perine, 23 N. J. 402. But an action
for slander may be maintained against an infant ; and if judgment be
rendered against him, and he have no property, execution may be issued
against his person. Defries v. Pavies, 3 Dowl. 629. If two or more
persons participated in the slander, an action must be l)rought against
them separately. Barratt v. Collins, 1 0 Moore, 446 ; Beach v. Pan-
ney, 2 Hill, 309. For words spoken by the wife, the husband and wife
must be jointly sued. If the husband united with lier in the slander, a
joint action may be brought for the slander uttered by the wife, and a
separate action against the husband for the words spoken by him.
Penters v. England, 1 McCord, 14.

§ 4. Of malice. Malice in law does not necessarily mean desire for
revenge, or settled anger against a person, but the doing of a wrongful
act intentionally, without just cause or excuse, though it only proceed
from a mind not sufficiently cautious about doing another injury. Mc-
Pherson v. DamAels, 10 B. & C. 272 ; Duncan v. Thwaites, 3 id. 584 ;
Shipley v. Todhunter, 7 C. & P. 680 ; Com. v. Bonner, 9 Mete. 410 ;
Kenney v. McLaughlin, 5 Gray, 5 ; Jellison v. Goodwin, 43 Me. 287 ;
Sexton V. Brock, 15 Ark. 345.

Malice is implied from the deliberate utterance of words which are
actionable per se / a person being presumed to intend the natural con-
sequence of his own act. Ilaire v. Wilson, 4 Man. & Py. 605 ; Wash-
hum V. Cooke, 3 Denio, 110 ; Farley v. Panck, 3 Watts & Serg. 554 ;
Yeates v. Peed, 4 Blackf. 463 ; Byrket v. Monohon, 7 id. 83 ; Ilosley
V. Brooks, 20 111. 115; Pennington v. Meeks, 46 Mo. 217; Dale v.
Ha/rris, 109 Mass. 193 ; Jarnigan v. Fleming, 43 Miss. 710 ; S. C, 5
Am. Pep. 514. Excepting, therefore, when the communication was

SLAJN'DEE. 747

prima fade privileged, the plaintiff is not called upon to show malice.
Carlock v, Spence?^ 7 Ark. 12. And if the words are actionable in
themselves, malice need not be alleged ; it being sufficient to aver that
the charge is false. Viele v. Gray, 10 Abb. Pr. 6 ; Opdike v. Weed, 18
id. 223 ; Hunt v. Bennett, 19 K. Y. 176 ; Weaver v. Eendrick, 30 Mo.
502 ; Purdy v. Carpenter, 6 How. Pr. 369 ; contra, Williams v.
Gm^don, 11 Bush, 693; Dillard v. Collins, 25 Gratt. 343. The
declaration must, however, show on its face that the words were spoken
without legal excuse. Garr v. Selden, 4 Comst. 91.

When the communication is privileged, malice is not presumed, but
must be proved. Fry v. Bennett, 28 N. Y. 324 ; Ormsby v. Douglass,
37 id. 477 ; Harper v. Harper, 10 Bush, 447 ; Lester v. Thurmond,
51 Ga. 118. The plaintiff, to prove express malice, may show that the
imputation, or a material part of it, is false, and that the defendant,
after pleading its truth, failed to offer any evidence in support of his
plea, and refused to admit that the words were false. Simpson v. Bob-
inson, 12 Ad. & El. (N. S.) 511 ; Blagg v. Start, 10 id. 899 ; Edwards
V. Chandler, 14 Mich. 471 ; Bichardson v, Boberts, 23 Ga. 215 ; Pool
V. Defers, 30 Ala. 672. But f ailm-e to establish the truth of a plea of
justification is not of itself conclusive evidence of malice. It is suffi-
cient that the defendant believed it to be true. Hawver v. Hawver,
78 111. 412. Although the occasion was prima facie privileged, yet
the words used may have been so much too strong and violent that an
inference of express malice may be drawn from them {Toogood v. Spy-
ring, 1 C. M. & E. 194; Fryer v. Kinnersley, 15 C. B. [N. S.] 424); or
they may have been spoken in the presence of more persons than was
necessary. Bavenga v. Mcintosh, 2 B. & C. 693. So, the conduct or
expressions of the defendant, showing ill-will, or that the parties had
quarreled, and were living on bad terms, are admissible in evidence
upon the question of malice ( Wright v. Woodgate, 2 C. M. & R. 573 ;
Simpson v. Bohinson, 12 Ad. & El. [K. S.] 511; Merrill v. Peaslee, 17
N. H. 540 ; Flam v. Badger, 23 111. 498 ; Garrett v. Dickerson, 19
Md. 418 ; Baldwin v. Soule, 6 Gray, 321 ; Boblins v. Fletcher, 101
Mass. 115); or, that the defendant, in defaming the plaintiff, was actu-
ated by mercenary motives. Morgan v. Livingston, 2 Rich. 573. It
may be shown that the defendant, after speaking the words, repeated
the same, or similar words, either before or after the commencement of
the action {Boot v. Lowndes, 6 Hill, 518 ; True v. Plumley, 36 Me.
466 ; Ware v. Cartledge, 24 Ala. 622 ; Meyer v. Bohlf/ng, 44 Ind. 238 ;
Titus V. Sumner, 44 N. Y. 266 ; Hesler v. Degant, 3 Ind. 501 ; Wil-
liams V. Miner, 18 Conn. 464 ; Mclntire v. Young, 6 Blackf. 496 ;
Smith V. Wymam,, 16 Me. 13 ; Kennedy v. Gifford, 19 Wend. 296 ;

748 SLANDER.

S(miieborn v. Bernstein, 49 Ala. 168 ; HinTde v. Davenport, 38 Iowa,
355 ; Ellis v. Lindley, id. 461 ; Harris v. Elliott, 39 Cal. 72) ; but not
words spoken after the commencement of the action, unless they refer
to the slander in suit, and do not constitute a distinct ground of recov-
ery. Taylor v. Kneeland, 1 Doug. (Mich.) 67 ; Severance v. Hilton,
32 N. H. 189 ; Elliott v. Boyles, 31 Penn. St. 65 ; Bartow v. Brands,

15 N. J. 248 ; Frazier v. McClosJcy, 60 :N. Y. 338 ; S. C, 19 Am.
Rep. 193 ; Peterson v. Hutchinson, 30 Ind. 38. The speaking of the
same words on a former occasion may be proved to show malice, even
though the statute of limitations would bar an action for such speaking.
Randall v. Holsenhake, 3 Hill (S. C), 175 ; Flamingham v. Boucher,
Wi-ight, 746 ; Throgmorton v. Damis, 4 Blackf . 174 ; Letton v. Young,
2 Mete. (Ky.) 558 ; Cavanaugh v. Austin, 42 Yt. 576 ; Titus v.
Sumner, 44 N. Y. (5 Hand) 266. An occurrence more than two years
before the commencement of the action was held admissible to show
malice. Harmon v. Harmon, 61 Me. 233.

Although the law implies malice from the speaking of actionable
words, yet this presumption may be rebutted ; and the intent of
the defendant is to be determined by the jury. Kleizer v. Symmes,
40 Ind. 562 ; Adcoch v. Marsh, 8 Ired. 360 ; Wichols v. Packard,

16 Yt. 147; Ahrams v. Smith, 8 Blackf. 95; Lancey v. Bryant, 30
Me. 466. But when the words are actionable j^er se, and no justifiable
cause is shown for uttering them, or they are admitted to be false, the
question of malice should not be left to the jury. Chalmers v. Payne,
2 C. M. & R. 156 ; Hooper v. Truscott, 2 Bing. N. C. 457 ; Farley v.
Panck, 3 Watts & Serg. 554.

The defendant, for the purpose of rebutting the presumption of mal-
ice, may show that the words were not uttered in a slanderous sense,
and that those who heard them ought not to have so understood them
{McKee v. Ingalls, 4 Scam. 30) ; or where the plaintiff's conduct has
been such as to raise a strong suspicion of his guilt, the defendant may
prove that he made the charge bona fide, and under the belief that it
was true. Moseley v. Moss, 6 Graft. 534 ; Chapman v. Colder, 14 Penn.
St. 365. But the defendant cannot show in defense that he had no
malicious intent {Harwood v. Keech, 6 Thomp. & Cook, 665 ; S.
C, 4 Hun, 389) ; nor that he was in jest and did not expect to be
believed. Hatch v. Potter, 2 Oilman, 725. And an answer alleging
that the words were spoken confidentially and without malice, to
ascertain whether they were true or false, is bad. Wilson v. Barnett,
45 Ind. 163. So malice in the speaker is not rebutted by proof that
the charge was currently reported, and believed in the community
where the parties lived {Shelton v. Simmons, 12 Ala. 466), or that

SLANDER. T4&

the defendant only repeated what he had before heard without naming
the author. Bromage v. Prosser^ 4 B. & C. 247.

Where there is no intrinsic or extrinsic evidence of malice, it is the
duty of the court to direct a nonsuit or a verdict for the defendant ;
but when there is the slightest evidence of malice, the case should not
be withdrawn from the jury. Cooke v. Wildes, 5 E. & B. 340 ; Fowles
V. Bowen, 30 N. T. 20 ; Liddle v. Hodges, 2 Bosw. 537.

§ 6. Of the construction of the words. The words are to be
taken according to their natural and popular import, and in the sense
in which any reasonable bystander would apply them ( Woolnoth v.
Meadows, 5 East, 468 ; Boberts v. Gainden, 9 id. 93 ; Deimarest v-
Having, 6 Cowen, 76 ; Borland v. Patterson, 23 "Wend. 422 ; Butter-
field V. Buffum, 9 K. H. 156 ; Duncan v. Brown, 15 B. Monr. 186 ;
Hancock v. Stejyhens, 11 Humph. 507 ; Lukehart v. Byerly, 53 Penn.
St. 418; Ja/rnigan v. Fleming, 43 Miss. 710; S. C, 5 Am. Rep.
514) ; and the inquiry must be directed to the understanding of the
words at the time they were spoken. Briggs v. Byrd, 12 Ired. 377.
The question is not what construction the defendant put upon the
words in his own mind, but what he intended to convey to the minds
of the persons to whom they were spoken. Bead v. Amfyridge, 6
C. & P. 308. If they were ambiguous, ironical or figurative, the
sense in which the defendant meant them to be understood is to be
gathered from the facts and circumstances connected with the speaking.
CoTTh. V. Kneeland, 20 Pick. 216. Where, however, they are plainly
slanderous, it is not proper to attempt to explain them by reference to
other facts. Watson v. Nicholas, 6 Humph. 174. At the same
time, the words are not to be construed absolutely in the sense in
which the hearers understood them, but in the sense in which, in the
light of all explanatory circumstances known to speaker and hearer,
they were calculated to impress the hearer's mind and would naturally
be understood. Dixon v. Stewart, 33 Iowa, 125. When they are
capable of two interpretations, one innocent and the other slanderous,
it is for the jury to say how the defendant used them. Baker v.
Pierce, 2 Ld. Raym. 959 ; Cregier v. Bunton, 2 Rich. 395 ; Mc-
Laughlin V, Bascom, 38 Iowa, 660; Hallon v. Adkins, 59 Mo.
144. Defamatory words will be construed in their most innocent
sense unless there are averments giving them a different meaning.
Where it was alleged that the defendant " told A, that he, A, had
intercourse with the said plaintiff Martha," innuendo that she had
committed adultery with A, without other averment, it was held that
the allegation imputed no crime. Merritt v. Dearth, 48 Yt. 65.

The meaning of defamatory words is to be determined by the jury ;

T50 SLANDER.

but where crime is charged, what constitutes such crime is a question
of law for the court. Turrill v. Dolloway, 26 Wend. 383 ; Thomp-
son V. Grimes, 5 Ind. 385 ; Steinman v. 3£c Williains, 6 Penn. St.
170 ; Vanderlij) v. lioe, 23 id. 82 ; Bunnell v. Fiske, 11 Mete. 551 ;
Lucas V. Nichols, 7 Jones, 32 ; Moore v. Butler, 48 IS". H. 161 ;
White V. Carroll, 42 N". Y. 161 ; S. C, 1 Am. Eep. 503. Where the
expressions made use of by the defendant were ambiguous, tlie persons
who heard them may be called to testify as to their understanding
of them. Morgan v. Livingston, 2 Rich. 5Y3 ; McLaughlin v. BusseU,
17 Ohio, 475; 8mawley v. Starl', 9 Ind. 386; Miller v. Butler, 6 Gush.
71 ; Nelson v. Borchenius, 52 111. 236 ; contra : Vaii Vechten v.
Hopkins, 5 Johns. 211 ; Gibson v. Williams, 4 "Wend. 320; Snell v.
S710W, 13 Mete. 278. But they must give the exact words as nearly
as they can recollect without reference to other matters not embraced
in the conversation at the time the words were spoken. Teague v.
Williams, 7 Ala. 844; Allensworth v. Coleman, 5 Dana, 315;
Cresingei' v. Reed, 25 Mich. 450. When the words, " you keep a
disreputable house," are spoken to several, the question as to which
of them w^as intended, is one of fact, and if no name is mentioned, it
is dependent on opinion. This may be gathered from the tone of
voice, eyes and gestures of the utterer. But if the opinion is based
merely on the words used, the understanding of a witness is not admis-
sible. McCue V. Ferguson, 73 Penn. St. 333.

When words unputing crhne were not so understood by those who
heard them, they are not actionable ; but the burden of establishing
that fact is on the defendant. Myers v. Dresden, 40 Iowa, 660. He
may show that the words were used in a different or qualified sense
from the one alleged by the plaintiff, or that they were spoken in
reference to a transaction which negatived a slanderoiis imputation.
Baines v. Hartley, 3 Exch. 200; 18 L. J. Exch. 81 ; Van Rensselaer
V. Bole, 1 Johns. Cas. 279; Quinn v. O'Gara, 2 E. D. Smith, 388.
But it must be made to appear that the qualification or transaction
referred to was such as to have been reasonably capable of being under-
stood by the persons in whose presence the words were spoken. Van
Akin V. Caler, 48 Barb. 58; Mayhee v Fisk, 42 id; 256; TJphann
V. BicUnson, 50 111. 97; Ogden v. Riley, 2 Green (K. J.), 185.

§ 6. Of the damages. When the innnediate tendency of the words
is to cause injury to the person of whom they are spoken, an action
may be sustained, though no actual damages have in fact resulted. In
other eases, to sustain an action, tliere must have been damage in fact.
Moody v. Bakery 5 Cowen, 351 ; Bradt v. Towsley, 13 Wend. 253 ;
Linney v. Maton, 13 Tex. 449. By special damage is meant pecuniary

SLANDEE. 751

loss. But the term may also include the loss of substantial hospitality of
friends, loss of marriage, or of profitable employment, or of emoluments,
profits or customers. Davis x. Gardine/\ 4 Co. 16 ; Reston v. Pora-
freict, Cro. Eliz. 639 ; Moore v. Meagher, 1 Taunt. 39 ; Williams v.
ITill, 19 Wend. 306. Loss of customers by a tradesman, or innkeeper.
IS a ground of special damage, although the slander do not relate to his
business, and although if the dealing with such customer had been had,
it would have been attended with loss to the plaintiff. Bovyn v. Gih-
hons, Ld. Raymond, 831 ; Baternan v. Lyall, 7 C. B. (K S.)638;
Storey v. Challands, 8 C. & P. 23-1. Proof of general loss of custom
is sufficient, without showing what particular customers were lost.
Evans V. Harries, 1 H. tfc N. 251. The fact that a person in conse-
quence of the slander does not receive what he otherwise would have
done, though an anticipated donation, is a sufficient ground of special
damage. Hartley v. Herring, 8 Term E.. 130. But not the falling
off of attendants at chm*ch, in an action by the officiating clergyman.
Hopwoodx. Thorn, 8 C. B. 293 ; 19 L. J. C. P. 94.

The special damage relied upon must be the natural and probable
effect of the words spoken. Yicars x. Wilcocks, 8 East, 1 ; Knight x.
Gills, 1 Ad. & El. 43 ; Beach v. Ranney, 2 Hill, 309 ; Hallock v.
Miller, 2 Barb. 630 ; Anonymous, 60 ^. Y. 262 ; S. C, 19 Am.
Rep. 174. But the damage need not be the necessary and ine\dtable
consequence of the defamatory words. It is sufficient that the slander
imposes upon the plaintiff an urgent motive for incurring expen&e in
order to vindicate his character. Peake v. Oldham, Co^vp. 277;
Hichs X. Foster, 13 Barb. 663 ; Alley x. Neeley, 5 Blackf. 200. Loss
by the wife of maintenance by her husband is a good ground of special
damage. Lynch v. Knight, 9 H. L. 577. The plaintiff is entitled to
recover for mental suffering, circumstances of indignity or disgrace,
notwithstanding the defendant believed the charge to be true. Fry x.
Bennett, 4 Duer, 247. But a mere apprehension of injury is not
sufficient {Barnes v. Bruddel, 1 Lev. 261) ; nor the payment of money
voluntarily by the plaintiff. Van Epps v. Jones, 50 Ga. 238. In an
action by a surgeon for slander, in saying of him to A, " that the
plaintiff had a child by a female servant, whereby A would not employ
him to attend liis \vife in her confinement," it was held that the jury,
in gi"^ng damages, were not restricted to the loss of employment of
the plaintiff, by A, but they might, also, allow for loss of business
caused by the slander ; but not for supposed injury arising from the
circulation of the slander by other persons. Dixon v. Smith, 5 H. &
N. 451.

The plaintiff cannot introduce evidence of any special damage which

752 SLANDER.

is not alleged in the declaration. Oeare v. Britton, Bull. N. P. 7 ;
Shauss V. Meyer, 43 111. 385. And although when the plaintiff fails
to prove the special damage alleged, he may recover general damages,
yet he cannot go into general damage beyond the special damage laid.
Smith V. Thomas, 2 Bing. N. C. 380 ; Dixon v. Sinith^ 5 H. & N.
450 ; 29 L. J. Exch. 125 ; Price v. Whitely, 50 Mo. 439. The declara-
tion must show in what way the special damages resulted from the
slander. Cook v. Cook, 100 Mass. 194. Where it is claimed as a
ground of special damage, that the defendant lost the hospitality of
friends, the names of such friends should be set out in the declaration ;
and the plaintiff must prove that substantial benefit was derived from
the alleged hospitality, which was lost in consequence of the spanking
of the words. Moore v. Meagher, 1 Taunt. 39; Davis v. Solomon,^!
L. J. Q. B. 10. But on the question of damages the plaintiff may
show his position in life, without special averment. Klumph v. Dunn,
QQ Penn. St. 141 ; S. C, 5 Am. Rep. 355.

After the words laid in the declaration have been proved, evidence is
admissible on the question of damages, of other similar words spoken
by the defendant either previous or subsequent to the slander, which
is the subject of the action. Hanshrough v. Stinnett, 25 Gratt. 495 ;
Leonard v. Pope, 27 Mich. 145. And a reiteration of the slander by
the defendant may be proved to enhance the damages, although not
spoken in the presence, or brought to the knowledge, of the person
through whom the plaintiff sustained the damage. Bassell v. Elmore,
48 N. Y. 561 ; S. C, 65 Barb. 627. But it is not competent for the
plaintiff to prove in aggravation of damages that the defendant repea-
ted the slander, or spoke other slanderous words, after the commence-
ment of the action. Frazier v. McClosJcey, 60 N. Y. 337; S. C,
19 Am. Rep. 193. Charging the jury that they may consider the re-
iteration of the slander at different times, and to different persons, in
estimating the damages, is error, as assuming the fact in issue. Far-
narri v. Childs, QQ 111. 544. Although the defendant originated the
scandal, yet, if the damage complained of was caused by the repetition
of the charge by another person, the defendant is not liable. Pettibone
V. Simpson^ 66 Barb. 492.

In estimating the damages, the probable future injury to the plaintiff
may be considered. True v. Plumley, 36 Me. 466. The wealth of the
defendant may be proved in order to show his position in society,
and the consequent damage thereby likely to result from the speaking
of the words by him. Stanwood v. Whitmore, 63 Me. 209. So, the
condition in life of the plaintiff may be shown. Peltier v. Miot, 50
111. 511. The jury, on the question of damages, may consider the

SLANDER. 753

nature of the imputation. How it was made and how persisted in, down
to the time of the verdict {Simpson v. Rohhison, 12 Q. B. 513) ; and
whatever tends to show express malice on the part of the defendant
toward the plaintiff is admissible in aggravation. Bodwell v. Swan,
3 Pick. 376. When there is express malice, exemplary damages may
be recovered. Kiniiey v. Rosea, 3 Harring. 397 ; Gilreath v. Allen, 10
Ired. 67 ; Cramer v. Noonan, 4 "Wis. 231 ; Miles v. Harrington, 8 Kan.
425 ; Meyer v. Bohlfing, 44 Ind. 238 ; Harmon v. Harmon, 61 Me. 23 ;
Bormin v. Elliott, 19 La. Ann. 322 ; Symonds v. Carter, 32 T\. H.
458 ; Elinck v. Colby, 46 N. Y. 427 ; S. C, 7 Am. Rep. 360.

It is the duty of the court to instruct the jury as to the rule of law
with reference to the damages. True v. Plumley, 36 Me. 466. It is
not error in the judge to charge that, upon the facts proved, the dam-
ages should be more than nominal. Mathews v. Beach, 5 Sandf. 256.
The question of damages is a matter solely for the determination of the
jury ; and unless the damages are very excessive, and such as to show
that the jury acted from passion, prejudice or corruption, the verdict
will not be disturbed. Southwich v. Stevens, 10 Johns. 443 ; Coleman
V. Southwich, 9 id. 45 ; Bodwell v. Osgood, 3 Pick. 379 ; Shute v. Bar-
rett, 7 id. 82 ; Boss v. Boss, 5 B. Monr. 20 ; Sanders v. Johnson, 6
Blackf. 51 ; Teagle v. Behoy 8 id. 134 ; Biley v. Nugent, 1 A. K.
Marsh. 431 ; Miller v. Johnson, 79 111. 58. Two thousand dollars
damages were held not excessive, where the words uttered in a public
place, by a person worth more than one hundi-ed thousand dollars,
charged the plaintiff, who was in humble life, with perjm-y. Flagg v.
Roberts, 67 111. 485. When, however, the damages are outrageously
excessive, the verdict will be set aside. Cassin v. Delaney, 38 N. Y.
178. A verdict and judgment in the action will bar a recovery for
damages afterward arising from the same words. Bull N. P. 7 ; Camp-
bell v. Butts, 3 N. Y. (3 Comst.) 173.

ARTICLE in.

DEFENSES.

Section 1. In general. The defendant may set up in defense a
denial of any fact essential to the plaintiff's case. As, that he did not
speak the words alleged, or that they were not used in a defamatory or
actionable sense ; or, he may show, that they were spoken on an occasion,
or under circumstances, which rendered them lawful and proper. Pat-
tison V. Jones, 8 B. & C. 578 ; McPherson v. Daniels, 10 id. 272 ;
LiUie V. Price, 5 Ad. & Ell. 645. Where the alleged slander was
YoL. Y.— 95

754 SLANDEK.

uttered concerning the plaintiff, in his office, profession, or trade, the
plea of not guilty operates as a denial of the speaking of the words, or
of speaking them in the defamatory sense impnted, and with reference
to the plaintiff's office, j^rofession, or trade. If the occasion of the
speaking does not fm'nish a bar to the action, but casts upon the plain-
tiff the burden of showing malice in fact, the defense may be given in
evidence under the general issue. Lewis v. Walter, 4 B. & Aid. 605.
When the words are not actionable in themselves, the plea of not guilty
puts in issue all the facts creating special damage. Wilhy v. Elston,
8 C. B. 142 ; Worton v. Sholefield, 9 M. & W. 665. A release, or
accord and satisfaction, may be shown under the plea of not guilty.
La7ie V. A])j)legate, 1 Stark. 97. Under a statute permitting a defend-
ant to set up as many defenses, legal and equitable, as he may have,
the defendant in an action of slander may both deny and justify the
words charged ; and he is not obliged to elect between the two defenses.
Horton v. Bcmner, 6 Bush, 596 ; Payson v. Macomher, 3 Allen, 69.
The plea of the general issue admits that the plaintiff is not guilty of
the charge. Sheehan v. Collins, 20 111. 325.

§ 2. Privileged communications. Words spoken in the conduct
of legislative proceedings are privileged, however injurious to indi-
viduals, and even though spoken maliciously. Rex v. Lord Abingdon,
1 Esp. 226 ; Llex v. Creevey, 1 M. & S. 273 ; Coffin v. Coffin, 4 Mass.
1. So, language used in the course of judicial proceedings, whether
by the judge, a party, counsel, witness or jm'or, if it be relevant to the
matter under consideration, and the tribunal either have or may reason-
ably be supposed to have jurisdiction, is protected. Liex v. Skinner,
Lofft. 55 ; Scott v. Stansfield, L. E.., 3 Exch. 220 ; Seaman v. Nether-
clift, 34 L. T. (N". S.) 878 ; Randall v. Brigham, 7 Wall. 523 ; South
V. Maryland, 18 How. (U. S.) 403 ; Lawson v. Illehs, 38 Ala. 279
Hector V. Smith, 11 Iowa, 302; Hastings v. Lush, 22 Wend. 410
Jennings v. Paine, 4 Wis. 358 ; Calkins v. Sumner, 13 id. 193
Terry v. Fellows, 21 La. Ann. 375 ; Garr v, Selden, 4 Comst, 91
Whiter. Carroll, ^2 N. Y. 161; Marsh v. Mlsivorth, 60 id. 309
S. C, 1 Am. Rep. 503 ; Spooner v. I^eeler, 51 id. 527 ; Dunham v.
Powers, 42 Yt. 1 ; White v. NichoUs, 3 How. (IT. S.) 266 ; Shelf er
V. Gooding, 2 Jones, 175; Iloar v. Wood, 3 Mete. 193; yi'yait v.
Buell, 47 Cal. 624. But excepting in the case of the judge, the
words must have been spoken with probable cause and without ex'press
malice. Uodgson v. Scarlett, 1 B. & Aid. 245. The answers of a
witness to be privileged must have been pertinent and material to the
issue {Smith v. Iloward, 28 Iowa, 51) ; or reasonably regarded as such
and not objected to. L.ea v. White, 4 Sneed, 111. The rule of privi-

SLANDER. 755

leges is applicable to a coroner holding an inquest in his address to
the jury. Thmnas v. Churton, 2 B. & S. 475.

Information communicated to the proper authorities honafide, and
without malice by a person seeking legal redress or to prevent or pun-
ish some pubHc abuse is privileged, notwithstanding the matter com-
municated be defamatory of third persons, and although the applica-
tion by mistake was made to an authority having no jjower to afford
the desired redress. Woodward v. Lander, 6 C. & P. 548 ; Johnson
V. Evans, 3 Esp. 32. So, stating confidentially to another a suspicion
based upon information, which is communicated at the time of speak-
ing the words that a person has committed a crime for the puqDOse of
securing the arrest of the offender is privileged. Grimes v. Coyle, 6
B. Mom-. 301 ; Faris v. Starke, 9 Dana, 128 ; Mayo v. Samjyle, 18
Iowa, 307.

What is said in a public meeting on the question under consideration
is privileged, if believed to be true and spoken without malice. M' Mxil-
lan V. Birch, 1 Binney, 178 ; Smith v. Higgins, 16 Gray, 251. And
where an inspector of election hona fide charged a person with having
voted twice, it was held that, as the words were spoken in the dis-
charge of a public duty, the inspector was not liable to an action for
slander. Bradley v. UeatJi, 12 Pick. 163. So charges made by a
member of a church in the regular course of church discipline, to a
meeting of the society, are privileged. Shelton v. Nance, 7 B. Monr.
128 ; Coonibs v. Rose, 8 Blackf. 155. And the same has been held as
to charges made to a lodge of odd fellows. Streety v. Wood, 15 Barb.
105.

"Where a person, in transacting business with another bona fide, makes
use of language which the business renders necessary, it is privileged,
even though it be injurious or painful to the person he addresses, and
notwithstanding it contain criminatory matter, if the one to whom the
words are spoken has a corresponding interest or duty in the subject of
discourse. Harrison v. Bush, 5 E. & B. 344 ; Tuson v. Evams, 12
Ad. & E. 736. The kind of duty or amount of interest that will pro-
tect is to be determined by the court. Whiteley v. Adams, 15 C. B.
(N. S.) 418. But whether the defendant acted in good faith and fairly
in the exercise of the privilege is a question for the jury. Cooke v.
Wildes, 5 E. & B. 328. The fact that a third person was present when
the words were spoken does not deprive them of privilege, though in
a given case it might afford evidence of malice. Child v. Afileck, 9
B. &. C. 403 ; contra : Bale v. Ilarris, 109 Mass. 193.

A statement made in good faith to persons interested therein, of ru-
mors as to the disreputable character of a person seeking admission

756 SLANDEK.

into society is privileged. Howard v. Thompson, 21 "Wend. 319.
And the same is true of a communication made honajlde and without
malice by a landlord to his tenant in relation to the immoral conduct
of some of the inmates of the house occupied by the tenant. Knight
V. Gibhs, 3 Nev. & Man. 469. Where the resident of a school dis-
trict whose daughter attended school, told the trustees that the char-
acter of a female teacher of the school was bad, it was held privileged
and the utterer not liable in the absence of malice. Harwood v.
Keech, 6 Sup. Ct. (T. & C.) N. Y. 665 ; S. C, 4 Hun, 389.

"Words fairly and honestly spoken in the discharge of a duty, in reply
to a confidential inquiry in relation to a matter in which the inquirer
has an interest, are privileged. Carrol v. Bird, 3 Esp. 204. When a
master gives a character of a servant, the absence of malice will be
presumed until the contrary is shown, and the burden is on the plain-
tiff to prove that the communication was malicious and known to be
untrue. Fountain v. Boodle, 3 Q. B. 11. So, if a master having
given a servant a good character, subsequently ascertains that he was
mistaken, he has a right, and it is his duty to make known the fact to the
inquirer. Gardner v. Slade, 13 Q. B. 796 ; Fowles v. Bowen, 30 N.
Y. 20. Giving a character of a servant to other servants in the employ
of the defendant or in the presence of a third person may be privileged.
Somermlle v. Hawhins, 10 C. B. 590 ; Padmore v. Lawrence, 11 Ad.
& El. 380. "Where the defendant said of the plaintiff, his farm tenant,
" he is stealing my corn," it was held that if the defendant honestly be-
lieved that the taking of the corn constituted larceny, and so believing
and without malice uttered the words only to those to whom he commu .
nicated the facts, the plaintiff could not recover. Hall v. Adkins, 59
Mo. 144.

§ 3. "What are not privileged. The privilege extended to utter-
ances in the course of legislative proceedings is not personal, but local,
and only absolute within the walls of the house to which the member
belongs. Rex v. Lord Abingdon, 1 Esp. 226. And a member is lia-
ble for false and malicious words not spoken in discharging the func-
tions of his office, though uttered within the house of which he is a
member. Coffin v. Coffin, 4 Mass. 1.

A judge who utters a slander when not in the discharge of his official
duties is liable to an action therefor. Goodenow v. Tappan, 1 Ohio,
61. If a magistrate indulge in slanderous imputations which are irrele-
vant to the matter before him, and not called for by the occasion, he
will be answerable in damages upon proof of malice, and the want of
reasonable and probable cause [Kendillon v. Maltby 2 M. & Rob.
438) ; and defamatory words, spoken by the judge of a court of limited

SLANDER. 757

jurisdiction in a proceeding over which he has no jui'isdictioa, are
actionable. Moor v. Ames^ 3 Caines, 170 ; Milam v. Bumsides, 1
Brev. 295 ; Hosmer v. Loveland, 19 Barb. 111. Slanderous imputa-
tions made in the course of judicial proceedings oatside of the case,
without probable cause, by counsel, parties, or witnesses, are not privi-
leged. Ei7ig V. WTieeler, 7 Cowen, 725 ; Kean v. McLaughlin, 2
Serg. & E.. 469 ; Gilbert v. People, 1 Denio, 41 ; Smith v. Tloward,
28 Iowa, 51 ; Ruohs v. Backer, 6 Heisk. 395 ; S. C, 19 Am. Rep.
678 ; WUU V. Carroll, 42 N. Y. 161 ; S. C, 1 Am. Rep. 503 ; Wyatt
V. Buell, 47 Cal. 625.

The utterance of a suspicion, which is in fact unfounded, that another
is guilty of crime, is not privileged, except for the purpose of legal
inquiry. Powel v. Plunket, Cro. Car. 52 ; Hooper v. Truscott, 2 Bing.
(N. R.) 457. Where a person, who goes with an officer to search a
house for stolen property, tells the officer that the occupier of the house
has robbed him, the utterer is liable to an action for slander. Doncas-
ter V. Hewson, 2 Man. & Ry. 176. And although one, in the bona fide
prosecution of an inquiry into a suspected crime, may lawfully charge
the suspected person with it, yet if the charge be repeated after the
person has been acquitted, it will not be privileged. Burlingame v.
Burlingame, 8 Cowen, 841.

Although the communication be prima facie privileged, yet if the
speaker goes beyond it, and makes a defamatory charge not connected
with the matter in hand, or uses language more defamatory than the
occasion requires, it is for the jury to determine whether it does not
show malice so as to deprive the defendant of protection. Senior v.
Medland, 4 Jur. (N". S.) 1039. A master, who, unasked, gives a bad
character of a servant, and manifests therein an officious zeal, will be
required to justify as in other cases {Pattison v. Jones, 8 B. & C. 578 ;
3 Man. & Ry. 101 ; Rumseij v. Well, 1 Carr. & Marsh, 104) ; and if
the character be given before third persons, when it might have been
done in private, it will afiord strong evidence of malicious intention.
Toogood V. Spy ring, 1 C. M. & R. 181. So, a statement to a bank
director that a dealer of the bank is insolvent, made in a conversation
in a pubUc street, is not privileged. Sewall v. Catlin, 3 Wend. 291.
And where a customer publicly charges a tradesman with fraud and
dishonesty, or does so privately in the presence of third persons, and
uses stronger language than he need to do, it wiU be evidence for the
jury to consider whether the words were spoken maliciously. Oddy
V. Paulet, 4 F. & F. 1009. If a person, upon being told that another
had slandered him, goes to the supposed offender and asks him if he
made such a statement, and the reply is in the affirmative, and he

T53 SLANDEE.

repeats the charge, the communication is not privileged unless he was
requested to repeat it. Griffiths v. Lewis, 7 Q. B. 61 ; Force v. War-
ren, 15 C. B. (N. S.) 806 ; Thor^i v. Iloser, 1 Denio, 488.

§ 4. Justification or excuse. The truth of the words is a good
defense, even when spoken maliciously and without a belief that they
are true. Vcm Ankin v. Westfall, 14 Johns. 233 ; Foss v. Hildreth^ 10
Allen, 76. And where crime is imputed, the fact that the plaintiff
committed it may be shown notwithstanding he has been tried and
acquitted. England v. Bourhe, 3 Esp. 80.

The truth must be specially pleaded. Rumsey v. Wehh, 1 Carr. & M.
104 ; Manning v. Clement, 7 Bing. 367 ; Brickett v. Davis, 21 Pick.
404 ; Kay v. Fredrigal, 3 Penn. St. 221 ; Teagle v. Deloy, 8 Blackf .
134 ; Jarnigan v. Fleming, 43 Miss. 710 ; S. C, 5 Am. Eep. 514 ;
Adams v. Smith, 58 Bl. 417. The plea must be certain and direct,
and not argmuentative, and must be as broad as the charge laid in the
declaration. Stilwell v. Barter, 19 Wend. 487 ; Fidler v. Delavan, 20
id. 57 ; S710W v. Witcher, 9 Ired. 316 ; Billings v. Waller, 28 How.
Pr. 97. Where the words accuse the plaintiff of crime, a plea justify-
ing their truth must be as specific as an indictment for the offense.
Steele v. Phillips, 10 Humph. 461 ; cmitra : Thompson v. BarMey,
27 Penn. St. 263. Where the defendant imputed whoredom to the
plaintiff, a plea of justification which did not aver any act of whoredom,
but merely alleged that the plaintiff's character for unchastity was
notorious, and that the words charged were true, was held bad. Sun-
mem V. Brewin, 52 Ind. 140. If the words spoken of the plaintiff
charge him with perjury, a plea in justification must state facts suffi-
cient to constitute perjury. It is not enough, therefore, to aver that
the testimony given by the plaintiff was material and false, but it must
also be alleged that it was known to him to be false, or that it was will-
fully and corruptly given. Downey v. Dillon, 52 Ind. 442.

The truth of the precise charge must be proved {Dawns v. Haw-
ley, 112 Mass. 237; Peterson v. Morgan, 116 id. 350; Dillard y.
Collins, 25 Gratt. 343) ; and it will not be sufficient to show that the
plaintiff was guilty of something similar, though different from that
imputed. Skimier v. Grant, 12 Yt. 456 ; WTiitaker v. Carter, 4 Ired.
461 ; Waiters v. Smoot, 11 id. 315 ; Sharpe v. Stephenson, 12 id. 348;
M'KimZeyY. Bob, 20 Johns. 351; Fero v. Ruscoe, 4 N. Y. 162;
Thompson V. Bowers, 1 Doug. (Mich.) 321 ; Houston v. Lane, 39
Mo. 495. Where the words impute crime to the plaintiff, the defend-
ant, to support a justification that the charge is true, must show the
plaintiff's guilt by evidence sufficient to convict him of the crime on
a trial for it. Seely v. Blair, Wright, 683 ; Offutt v. Earlywine, 4

SLANDEK. T59

Blackf. 460 ; Sperry v. Wilcox, 1 Mete. 267 ; Gorman v. SutUni, 32
Penn. St. 247 ; Tucker v. Call, 45 Ind. 31 ; Merk v. Gelzhaeuser, 50
Cal. 631 ; Polston v. /.See, 54 Mo. 291 ; contra : Wilson v. Nations, 5
Yerg, 211; Kincade v. Bradshaw, 3 Hawks, 63; iZoo^' v. Hancock,

5 Mimf. 546 ; ^ic^-^ v. ^m^i^, 24 111. 506 ; Ellis v. Buzzell, 60 Me.
209 ; S. C, 11 Am. Rep. 204. When the plaintiff is charged with
adultery, a preponderance of evidence will support a plea of justifica-
tion. Id. See Wilson v. Barnett, 45 Ind. 163.

The defendant may show in defense, that the words were first
spoken by a third person, and repeated by the defendant upon a justi-
fiable occasion, without malice, believing that they were true and that
he named his informant. Davis v. Lewis, 7 Term E,. 19 ; IfPher-
son V. Daniels, 10 B. & C. 263 ; Raynes v. Leland, 29 Me. 233 ; Olm
sted V. Brown, 12 Barb. 657 ; Johnston v. Lance, 7 Ired 448 ; Cuni-
merford v. JHcAvoy, 15 111. 311. But see Catesw. Kellogg, 9 Ind. 506.
It is no defense that the slander was uttered as a common report, if
the defendant conveyed the idea that it was true, or that he believed it
to be true {Kinney v. M'' Laughlin, 5 Gray, 3), nor that the slander
was spoken in jest, unless proved to have been so understood by the
hearer. Long v. Eakle, 4 Md. 454. Where the words imputed to
the plaintiff the stealing of the defendant's property, it was held no
defense, that the plaintiff took the property in jest and caused the de-
fendant to believe that the accusation was true. Clark v. Brown, 116
Mass. 504, Where the defendant gives evidence in justification, the
plaintiff may show his general character in rebnttal. Doioney v. Dil-
lon, 52 Ind. 442. If the justification embraces part of the slander but
not the whole, the verdict must be for the plaintiff with less damage
than if the jmy had found the entire justification unproved. Cooper v.
Lamson, 8 Ad. & El. 746 ; 1 P. & D. 15 ; Empson v. Fairfax, 8 Ad.

6 El. 296 ; 3 Nev. & P. 385.

§ 5. Mitigation of damages. Any facts and circumstances t^iding
to show the absence of malice on the part of the defendant, when he
uttered the slander, are admissible in evidence in mitigation of dam-
ages {Hutchinson v. Wheeler, 35 Vt. 330 ; Bush v. Prosser, 11 N. Y.
347 ; Bishey v. ShoAji), 12 id. 67), as that the plaintiff's conduct or sit-
uation was such as to cause the defendant to believe that the charge
was true {Shoulty v. Miller, 1 Cart. [Ind.] 544 ; Haywood v. Foster, 10
Ohio, 88 ; Huson v. Dale, 19 Mich. 17; S. C, 2 Am. Rep. 66; Alpin
V. Morton, 21 Ohio St. 536) ; or, that he did not originate the slander^
but only repeated what he had heard and that the plaintiff was geuei'ally
suspected to have been guilty of the charge imputed to him {H inkle v.
Davenport, 38 Iowa, 355 ; Henson v. Veatch, 1 Blackf. 369) ; or that

760 SLANDER.

before the slander was spoken by the defendant, it was the subject of
common report. Morris v. Bai'her, 4 Harr. 520 ; Young v. Slemons^
Wright, 124; Case v. Marks, 20 Conn. 248; Sheahan v. Collins, 20
Bl. 325 ; Bridgman v. RopMns, 34 Yt. 532 ; YoMderveer v. Sutphin,
5 Ohio St. 293 ; co7itra : Scott v. McKinnish, 15 Ala. 662 ; Bodwell
V. Swam,, 3 Pick. 376; Fisher v. Patterson, 14 Ohio, 418 ; Young v.
Bennett, 4 Scam. 43 ; Dame v. Kenney, 25 N". H. 318. But a common
report tliat the plaintiff had been guilty of stealing was held not
admissible in mitigation of damages, withoiit first showing the plain-
tiff's bad character and that the report was believed in the community
where the parties lived. Bradley v. Gibson, 9 Ala. 406. The defend-
ant may show that the words were spoken in the heat of passion under
provocation caused by the plaintiff at or about the time they were
uttered {Botelar v. Bell, 1 Md. 173 ; Moore v. Clay, 24 Ala. 235 ;
McClintock v. Crick, 4 Iowa, 453; Miles v. Harrington, 8 Kan. 425;
Mousler v. Harding, 33 Ind. 176 ; S. C, 5 Am. Rep. 195 ; Jauch
V. Jauch, 50 id. 135 ; S. C, 19 Am. Rep. 699 ; Freeman v. Tinsley,
50 111. 497 ; Flagg v. Roberts, 67 id. 485 ; Ranger v. Goodrich,
17 "Wis. 78 ; Powers v. Presgroves, 38 Miss. 227), but not former
misunderstandings between the plaintiff and defendant. Lister v.
Wright, 2 Hill, 320 ; Sheffill v. Yom Dusen, 15 Gray, 485. It may
be proved that the defendant was so intoxicated when he spoke the
words, that he did not know what he said {Howell v. Howell, 10 Ired.
84; contra: M^Kee v. Ingalls, 4 Scam. 30), or that the defendant's
mind had become so weakened by dissipation that no one regarded
what he said. Gates v. Meredith, 7 Ind. 440. The defendant may
show that the plaintiff had committed offenses similar to the one
charged, and the plaintiff's general reputation in that respect. Conroe
V. Conroe, 47 Penn. St. 198 ; Moyer v. Moyer, 49 id. 210 ; Bowen v.
Hull, 12 Mete. 232; Fletcher v. Burroughs, 10 Iowa, 557; Parh-
hurst V. Ketchum, 6 Allen, 406 ; Fidler v. Dean, 31 Ala. 654 ; Wil-
son V. Noonan, 35 Wis. 221. But particular acts of the plaintiff can-
not be proved ( Waithman v. Weaver, D. & R. [JST. P.] 10 ; Leonard v.
Allen, 11 Cush. 341 ; Fitzgerald v. Stewart, 53 Penn. St. 343 ; Dillard
V. Collins, 25 Gratt. 345), and evidence as to the plaintiff's bad char-
acter nuist be confined to the subject of the slander. Bell v. Farns-
worth, 11 Humph. 608 ; contra : Lamos v. Snell, 6 N. H. 413 ; Say re
V. Sajyre, 1 Dutch. 235. The fact that the slander was retracted is
admissible in evidence in mitigation of damages {Brown v. Brooks, 3
Ind. 518), but not a retraction by the husband, of slander uttered by
the vdfe. Mousler v. Harding, 33 Ind. 176.

SLANDER. 761

ARTICLE IV.

SLANDER OF TITLE.

Section 1. In generaL By slander of title is meant a statement
of something which tends to cut down the extent of another's title to
property, whether real or personal, which statement is injurious only,
if it is false. Pater v. Bakei\ 3 C. B. 868 ; Like v. McKinstry^
3 Abb. Ct. App. Decis. 62 ; S. C, 4 Keyes, 397. Where, for instance,
property is about to be sold at public auction and a person falsel}'
declares that the owner's title is defective, and thereby keeps away
bidders or causes .the property to be sold for less than it would other-
wise have brought, it constitutes slander of title, and gives the owner
a claim for compensation in damages. Tashurgh v. Day, Cro. Jac. 48-i ;
Gutsole Y.Mathers, 1 M. & W. 501. The statement may be written,
printed or verbal {Malachy v. Soper, 3 Scott, 723), and the slander
may be in relation to the title to letters patent. Haddan v. Lott, 15
C. B. 411 ; 24 L. J. C. P. 49. So it is sufficient that the effect of the
statement was to prevent the owner from raising money on a mortgage.
Linden v. Graham, 1 Duer, 670.

§ 2. When the action lies. To sustain an action, it must be such
a slander as goes directly to defeat the plaintiff's title, and the words
must have been false and malicious and have resulted in a pecuniary
loss. Hargrave v. LeBreto7i, 4 Burr. 2422 ; Smith v, Spooner, 3
Taunt. 246 ; Kendall v. Stone, 1 Seld. 14 ; Paule v. Halferty, 63
Penn. St. 46 ; S. C, 3 Am. Rep. 518. There need not have been
express malice, but malice may be imphed from the language used and
its probable effect. Where the utterer of the slander clauns no title in
himself, but his conduct in asserting title in another is a mere wanton
act, mahce in law will result from his doing that which was likely
to occasion damage, and if he cannot prove the truth of his statement,
he is responsible in damages. Pennyman v. Bdbanks, Cro. EHz. 427.
But if the defendant has any interest in the matter and asserts the
defect of title, bona fide, in order to protect hunself or to prevent the
commission of a fraud, the legal presumption of malice is rebutted and
the burden is then upon the plaintiff to show that there was no reason-
able or probable ground for the statement. Pitt v. Donovan, 1 M. <fe
S. 648.

The precise words used must be set out in the declaration {Gutsole

V. Mathers, 1 M. & W. 495) ; and some particular damage resulting

to the plaintiff therefrom be alleged {Malachy v. Soper, 3 Scott, 723) ;

which must appear on the face of the declaration to be the natural

Vol. v.— 96

762 SLANDER.

result of the facts stated therein. Haddon v. Lott^ 15 C. B. 511 ;
24 L. J. C. P. 49. An allegation that a voluntary promise to confer a
benefit on the plaintiff had been withdrawn or postponed by reason of
the utterance of the slander, is a sufficient statement of special damage,
and it is not necessary to aver the intention of the promisor to perform
it. Corcoran v. Corcorcm, 1 1rish C. L. E. (IST. S.) 272. But where the
plaintiff, before the words were spoken, had contracted in writing with
another for the sale of land, and the latter, in consequence of the words,
requested the plaintiff to cancel the contract, which he did, it was held
that the action could not be maintained ; the loss of a sale, which was
the only special damage alleged, being the result of the plaintiff's volun-
tary act. Kendall v. Sto7ie, 5 N. T. (I Seld.) 14.

§ 3. Damages. The action is not strictly or properly for the speak-
ing or publication of the slander in relation to the plaintiff's title, but
an action on the case for special damage sustained thereby. Haddon
V. Lott, 15 C. B. 411. Where a person is prevented from selling, ex-
changing or otherwise disposing of land or other property in consequence
of the slander, the plaintiff, in order to maintain the action, must show
that he has sustained some damage as by not being able to let or sell
the property. Gerrard v. DicJcenson, Cro. Eliz. 196. The mere appre-
hension that his title may be drawn in question is not sufficient, but it
must be proved that some specific person was deterred from making an
offer. Neither will it be enough to show that the value of the prop-
erty was lessened in the estimation of people, but there must be proof
of actual damage. Manning Y.Avery, 3 Keb. 153; MalachyY.
Soper, 3 Scott, 723.

§ 4. Defense. Proof that the alleged slander is true and that the
infirmity of title suggested in point of fact exists, will constitute
a perfect defense, notwithstanding the defendant's intention may
have been malicious {Pater v. Balcer, 3 C. B. 868) ; or the defendant
may show that he supposed that the statement was true and tjbat it was
made in good faith without malice, and under a honajlde claim to the
property, or under such circumstances as caused the statement to be
privileged. Smith v. Spooner, 3 Taunt. 246 ; Wren v. WeUd^ L. R., 4
Q. B. 730.

SPECIFIC PERFOKMAJ^CE. 763

CHAPTER CXXIV.

SPECIFIC PERFORMANCE.
ARTICLE I.

OF SPECIFIC PERFOKMANCE IK GENERAL.

Section 1. Definition and nature. Specific performance is the
actual accomplishment of a contract by the party bound to fulfill it.
2 Bouv. Diet. 538. At common law, a contract to sell or transfer a
thing, if there be no actual transfer, is treated as a mere personal con-
tract, and in case of non-performance by the party, no redress can be
had, except in damages. But, in equity, such a course is deemed
wholly inadequate for the purposes of justice ; and courts of equity will
therefore intei-pose and require from the conscience of the offending
party a strict performance of what he cannot, without manifest wrong
or fraud, refuse. See Alley v. Deschamps^ 13 Ves. 225, 228 ; Har-
nett V. Yielding^ 2 Sch. & Lef. 553. The jurisdiction of courts of
equity to decree the specific performance of contracts is of verj- early
origin (See 1 Story's Eq. Jur., § 715) ; and the original and sole foun-
dation of the jurisdiction is, that an award of damages at law will not
give a party the compensation to which he is entitled ; that is, will
not put him in a situation as beneficial to him as if the agreement
were specifically performed. Harnett v. Yielding, 2 Sch. & Lef. 553.
Performance is not specifically decreed because there is no remedy at
all at law, but because the legal remedy is, in certain cases, not a com-
f)lete remedy. Seymour v. Helancy, 3 Cow. 445, 505 ; Lead. Cas. Eq.
(4th Am. ed.) 1093. In general, wherever, from the nature of the re-
lief sought, performance of a contract tVi specie will alone answer the
ends of justice, equity will decree specific performance. Cathcart v.
Rohmson, 5 Pet. 264 ; Storer v. Great Western Railway Co., 2 Y. <fe
Coll. 48 ; Shimer v. Morris Canal, etc., Co, 27 N. J. Eq. 364. Nor
is the jurisdiction to decree a specific performance dependent upon,
or affected by, the form or character of the instrument (see Chilliner
V. Chilliner, 2 Ves. Sr. 528 ; Daily v. Litchfield, 10 Midi. 29 ; Hooker
V. Pynchon, 8 Gray, 550 ; Hull v. Sturdivant, 46 Me. 34) ; and the
jurisdiction may be exercised without regard to the character of the

764 SPECIFIC PERFORMANCE.

property involved. Duffy. Fishery 15 Cal. 375 ; Yulee v. Canaoay
11 Fla. 9 ; Falckey. Graij, 4 Drew. & Sm. 651 ; 5 Jur. (N. S.) 645.

The doctrine was at one time held in England, that a court of equity,
where it cannot, or where it considers, in view of all the circumstances,
that it ought not decree a specific performance, may, in lieu thereof, award
an issue to ascertain the plaintiff's damages ; or, if it can do so, may
fijK the amount of the compensation by the application of some equita-
ble rule or measure. Denton v. Stewart^ 17 Yes. 276, note ; S. C, 1
Cox, 258. See, also. City of London v. JSfash, 3 Atk. 512 ; Cud v.
Hutter, 1 P. Wm. 570. But the decision in Denton v. Stewart, 1 Cox,
258, was overruled in Todd v. Gee, 17 Yes. 273, and since then, and
■until recently, the only relief obtainable in equity in England, for the
non-performance of a contract, was a decree for specific performance.
See Aheraman Iron Works v. Dickens, L. R., 5 Eq. 515 ; Sainshury\.
J(mes, 5 Myl. & Cr. 1. Under Lord Cairn's act (21 & 22 Yict., c.
27, § 2), whenever the court has jurisdiction to entertain a suit for
specific performance, it may, in its discretion, award damages to the
party injured, either in addition to, or substitution for, the primary
relief. See Scott v. Hayment, L. R., 7Eq. 112; Durell v. Pritchard,
L. R., 1 Ch. App. 244 ; Ferguson v. Wilson, 2 id. 77.

The principle of the decision in Denton v. Stewart, 1 Cox, 258,
namely, that the court may, under its general jurisdiction, award com-
pensation for non-performance, in the event of the primary relief fail-
ing, has been fully adopted and applied by many of the courts in this
country. See Phillips v. Thompson, 1 Johns. Ch. 131 ; Woodman v.
Freeman, 25 Me. 531 ; Berry v. Yan Winkle, 1 Green's Ch. 269 ;
Fisher v. Kay, 2 Bibb (Ky.), 434; Gibhs v. Champion, 3 Ohio, 335 ;
Doan V. Mauzey, 33 111. 227; Andrews v. Brown, 3 Cush. 130;
MilkmoM V. Ordway, 106 Mass. 255 ; Scott v. Billgerry, 40 Miss. 119 ;
Barlow v. Scott, 24 IST. Y. (10 Smith) 40. But see Kempshall v. Stone,
5 Johns. Ch. 193 ; Hatch v. Cohh, 4 id. 559. The rule practically es-
tablished seems to be, that although a court of equity will not take
jurisdiction of a suit for damages when that is the sole object of the
bill, and no other relief can be given, yet, when other relief is sought
by the bill which a court of equity is alone competent to grant, and
damages are claimed as incidental to relief, which cannot be obtained
at law, then the court, being properly in possession of the cause for the
purpose of relief purely equitable, will, to prevent multiplicity of suits,
proceed to determine the whole cause. Person v. Sanger, 2 Ware,
256. And see the cases cited above.

§ 2. Discretion of the court. The specific performance of con-
tracts is not a matter of course in all cases. The jurisdiction is not

SPECIFIC PERFORMANCE. T65

compulsory upon the court, but the subject of discretion. Radcliffe, v.
Wa/rrington, 12 Yes. 332 ; Willard y. Tayloe, 8 Wall. 565. An appli-
cation to enforce specific performance must, therefore, always be directed
to the sound discretion of the court and it will be granted or refused as
the equities of the case may require. Manning v. Wadsworth, 4 Md.
59 ; McComas v. Easeley^ 21 Gratt. 23 ; Blachwilder v. Loveless, 21
Ala. 371 ; Pickering v. Pickering, 38 N. H. 4r)0 ; Hudson v. Layton,
5 Harr. (Del.) 74 ; Iglehart v. Vail, 73 111. 63 ; Thurston v. Arnold, 43
Iowa, 43. But although the specific execution of agreements rests
within the discretion of the court, yet this will be exercised, as far as
may be, in obedience to general rules and recognized principles.
Pulliami V. Oioen, 25 Ala. 492 ; Iloioard v. Moore, 4 Sneed (Tenn.),
317 ; Zowry v. Biiffington, 6 W. .Ya. 249 ; Rogers v. Saunders, 16
Me. 92 ; Sweeney v. G'Hara, 43 Iowa, 34. The court acts with more
freedom than when exercising its ordinary powers, since it withholds
or grants rehef according to the circumstances of each particular case
{Tyson v. Watts, 1 Md. Ch. 13) ; but it is said that it is always desira-
ble to make the least draft which is possible upon this undefined power
of discretion, and to determine causes upon established rules. Rudolph
V. Covell, 5 Iowa, 525.

A court of equity may refuse to decree the specific performance of a
contract, although it is such a contract as it would not set aside if exe-
cuted. Barksdale v. Payne, Riley's (S. C.) Ch. 174 ; Clitherall v.
Ogilvie, 1 Desau. (S. C.) 250. And see Crane v. Gough, 4 Md. 316.

§ 3. Jurisdiction as to land. If a contract for the conveyance of real
estate is, in all respects, fair and free from ambiguity, and there are no
insurmountable difiiculties in the way of a specific performance, it is
as much a matter of course for courts of equity to decree a specific per-
formance of it, as it is for courts of law to give damages for its breacli.
Greenaway v. Adams, 12 Yes. 395 ; St. Paul Division, etc., v. Brown^
9 Minn. 151 ; King v. Hamilton, 4 Pet. 311. On the other hand, if
the contract is unconscionable, or ambiguous, or through fraud or mis-
take, or want of skill on the part of the draftsman, it does not truly
embody the agreement of the parties, or if, for any other reason, the
court is of the opinion that the contract is one which in equity and
good conscience ought not to be specifically enforced, it will decline
to interfere and will leave the parties to such redress as can be obtained
in an action at law. Rogers v, Sa/unders, 16 Me. 92 ; Sn£ll v. MitcheH,
65 id. 48.

The court has jurisdiction to decree a specific performance of a con-
tract to convey land situated in another State, if the defendant is
within the jurisdiction of the court. Orr v. Irwin, 2 Law Repos. (N.

766 SPECIFIC PEKFOKMANCE.

C.) 465 ; Sutphen v. Fowler^ 9 Paige, 280 ; Massie v. Watts, 6 Cranch,
148 ; Fe7in v. Hayward, 14 Ohio St. 302. So, it may compel tbe
specific performance of a contract to purchase land, though such con-
tract was both made and to be performed and the land hes within a
foreign jurisdiction, provided the defendant has been duly served with
process, and subjected to the jurisdiction of the court. Cleveland v.
Burrill, 25 Barb. 532. ^Q^post, 775, Art. 2. Ante, Yol. 1, 21.

It has been observed, that the power of courts of equity to enforce
partial performance is to be exercised with great caution in this country,
where the value of real estate is so fluctuating, lest it be an instrument
of injustice to vendors. Mills v. Van Voorhies, 20 N. Y. (6 Smith)
412.

§ 4. Contracts as to personal property. Courts of equity decree
the specific performance of contracts, not upon any distinction between
realty and personalty, but because damages at law may not, in the par-
ticular case, afford a complete remedy. See ante, 763, § 1. Thus, a
court of equity decrees performance of a contract for land, not because of
the real nature of the land, but because damages at law, which must be
calculated upon the general money value of the land, may not be a com-
plete remedy to the purchaser, to whom the land may have a peculiar
and special value. So, a court of equity will not, generally, decree the
performance of a contract for the sale of stocks or goods. McGarvey
V. Hall, 23 Cal. 140 ; City, etc., Ins. Co. v. Olmstead, 33 Conn. 476 ;
Dalzell V. Crawford, 1 Pars. (Penn.) 37 ; Caldwell v. Myers, Hard.
(Ky.) 561 ; Hoy v. Hansboi'ougli, 1 Freem. Ch. (Miss.) 533 ; Summers
V. Bean, 13 Graft. 404; Scott v. Billgerry, 40 Miss. 119; JSallY.
Joiner, 1 So. Car. 186. Not, however, because of their personal nature,
but because damages at law, calculated upon the market price of the stock
or goods, are as complete a remedy to the purchaser as the delivery of the
stock or goods contracted for ; inasmuch as, with the damages, he may
purchase the same quantity of the like stock of goods. Adderley v.
Dixon, 1 Sim. & Stu. 607 ; and see the cases cited above. But when-
ever a violation of the contract cannot be correctly estimated in dam.
ages, or wherever, from the nature of the contract, a specific perform-
ance is indispensable to justice, a court of equity will not be deterred
from interfering because the contract relates to personal proj^erty. S^il-
livan v. Tuck, 1 Md. Ch. 59 ; Furman v. Clark, 11 N. J. Eq. 306.
There are, therefore, many cases to be found where specific perform-
ance of contracts, relating to personalty, have been enforced in equity ;
and the courts will only weigh with greater nicety contracts of this
description, than such as relate to lands. Mechanics' Bank v. Seton, 1
Pet. 299. And see Justices v. Croft, 18 Ga. 473 ; SoAiery v. Svence,

SPECIFIC PERFORMANCE. 767

13 Ala. 561 ; Roundtree v. McLain, 1 Hempst. 245. Specific perfonn-
ance of an agreement to transfer stock will be decreed where the con-
tract to convey is clear, and the uncertain value of the stock renders it
difficult to do justice by an award of damages. Treasurer v. Commer-
cial, etc., Co., 23 Cal. 390 ; White v. Schuyler, 31 How. (N. Y.) 3S ;
S. C, 1 Abb. (N. S.) 300 ; Buckmaster v. Consumers' Ice Co., 5 Daly
(N. Y.), 313 ; TocM v. Ta/t, 7 Allen, 371. And see Doloret v. Both-
schild, 1 Sim. & Stu. 590. Specific performance of a contract for the
sale of shares in a railway company may be decreed. Ashe v. Johnson,
2 Jones' (N. C.) Eq. 149. So, of a contract for the sale of a patent.
Corhin v. Tracy, 34 Conn. 325 ; Binney v. Annan, 107 Mass. 94 ;
S. C, 9 Am. Rep. 10.

"Where there was a contract for the sale of a large quantity of iron, to
be paid for in a certain number of years by installments, a specific per-
formance was decreed. Taylor v. Neville, cited 3 Atk. 384 ; Adder-
ley V. Dixon, 1 Sim. & Stu. 610 ; Chamberlain v. Blue, 6 Blackf.
(Ind.) 491. So, where the bill was for the specific performance of a
contract for the delivery of certain timber at specified periods, it was
held that a court of equity could grant relief in such a case. Buictoti
V. Bister, 3 Atk. 384. And in the recent case of Falche v. Cray, 4
Drew. & Sm. 651 ; S. C, 5 Jur. (N. S.) 645, it was decided, that a
court of equit}^ will enforce the specific performance of a contract for
the sale of a chattel where pecuniary damages would not be a sufficient
compensation for the breach of the contract ; as where the chattel is of
unusual distinction and curiosity, and of doubtful value. See, also,
Phillips V. Berger, 2 Barb. 60S ; S. C. affirmed, 8 id. 527 ; Barnes v.
Barnes, 65 Ko. Car. 261, 263.

But the specific performance of a contract for the sale of a certain
number of bales of cotton at a fixed price, which was paid when the
contract was made, cannot be granted, as the remedy at law for the
breach of such a contract is adequate. Scott v. Billgerry, 40 Miss. 119.
Nor wiU an executory contract for the transfer of stock as collateral
security for a debt, where the debtor has died insolvent, be enforced by
a court of equity to the injury of other creditors. City, etc., Ins. Co.
V. Olmstead, 33 Conn. 476.

§ 5. Performance of personal acts, etc. As it respects contracts
for the performance of personal acts, etc., there is a diversity of opin-
ion in the authorities, as to the cases and circumstances in which a spe-
cific performance ought to be decreed in equity. In the earlier English
cases it was maintained, that a covenant to build or rebuild ought to be
decreed in equity to be specifically performed {Buxton v. Lister^ 3
Atk. 385 ; City of London v. Wash, 3 id. 512, 515 ; Mosely v. Virgvn^

768 SPECIFIC PEEFOKMANCE.

3 Yes. Jr. 184); but it may now be regarded as pretty well settled that,,
with some few exceptions, the court will not decree specific performance
of contracts either to build or repair. Errington v. Aynesly, 2 Bro.
Ch. 343 ; Paxtrni v. J^eioton, 2 Sm. t% Giff. 437 ; Wilkinson v. Cle-
ments, L. R., 8 Ch. App. 96 ; S. C, 4 Eng. E. 782 ; Brace v. Welmerf,
25 Beav. 348. So, it has been held that the court will not decree the
specific performance of a contract to make good a gravel pit at tlie expira-
tion of a lease {Flint v. Brandon, 8 Ves. 163) ; nor to make a branch
railway {South Wales Railway Go. v. Wythes, 5 De G. M. & G. 880 ;
S. C, 1 K. & J. 186 ; Fallon v. Railroad Co., 1 Dill. [C. C] 121) ;
nor to work quarries {Booth v. Pollard, 4 Y. & C. 61), or coal mines.
Pollard V. Clayton, 1 K. & J. 462 ; Wheatley v. Westminster, etc..
Coal Co., L. E., 9 Eq. 538. It has been repeatedly held that the spe-
cific enforcement of an agreement to build a railroad cannot be enforced.
Ross V. Union Pacific R. R. Co., 1 "Woolw. 26 ; Heathcote v. North.
Stafford Railway Co., 20 L. J. (N. S.) 82, and cases above cited. And,
in general, equity will not enforce the specific performance of duties
which are continuous, and involve skill, personal labor, and judgment ;
as, for example, the running of the cars of a street railway along a par-
ticular street daily, " at such regular intervals as may be right and
proper" {McCann v. Nashville R. R. Co., 2 Tenn. Ch. 773); or such
as grow out of a contract to deliver marble of certain kinds, and in
blocks of particular size. Marhle Company v. Rijpley, 10 "Wall. 358.
For the same reason the court dechned to specifically execute a con-
tract to cultivate land in a particular way. Starnes v. Newsom, 1
Tenn. Ch. 239. And it has been held that equity will not enforce a
contract for the personal services of an actor. Ford v. Jermon, 6
Phil. (Penn.) 6. And as contracts of hiring and service are always of
a confidential character, and cannot therefore be enforced against an
unwilling party with any hope of ultimate success, courts of equity, as
a general rule, now refuse to decree specific performance of them. See
Pickervng v. Bishop of Ely, 2 Y. & Coll. 249 ; Stoker v. BrocMehank^
3 Mac. & G. 250; Mair v. Himalaya Tea Co., L. E., 1 Eq. 411;
Richmond \. Dubuque, etc., R. R. Co., 33 Iowa, 480. The specific
performance of a contract of agency will not be enforced in equity.
Chinnoch v. Sainsbury, 30 L. J. (N. S.) Ch. 409. Nor can a contract
to write a book be specifically enforced {Clarke v. Price, 2 Wils. Ch-
157); but a contract not to write, except for a particular person, is good
and will be enforced in equity. Morris v. Coleman, IS Yes. 437; Yol.
3, 693. So, although equity will not enforce a contract for the per-
sonal services of an actor at a particular theater, yet, such a contract
will be negatively enforced by an injunction restraining performance

SPECIFIC PERFOEMANCE 769

elsewhere, whether there is, or is not the further agreement not to per-
form elsewhere, Lumley v. Wagner^ 1 De G. M & G. 604 ; Wehster
V. Dillon, 3 Jur. (N. S.) 432. And see Vol. 3, 693, 754 et seq. So, in
general, where a person has entered into a contract not to do a thing,
specific performance of such negative contract will be enforced by an
injunction restraining him from doing any thing in contravention of it.
1 Lead Cas. Eq. (4th ed.) 815. Thus, parties have been restrained
from carrying on a particular trade in a certain place {Qlements v.
Welles, L. R., 1 Eq. 200 ; Cornwall v. Hawkins, 41 L. J. [N. S.] 435);
from erecting buildings {Rankin v. Huskisson, 4 Sim. 13 ; Bowes v.
LoAjt}, L. R., 9 Eq. 636) ; from making applications to parliament {Lan-
caster, etc., Railway Co. v. Northwestern Railwa/y Co., 2 Kay & J.
293) ; or from ringing a bell {Martin v. Nutkin, 2 P. Wms. 266), con-
trary to an agreement not to do such acts. And upon the same princi-
ple a railway company has been restrained from allowing, contrary to
its contract with a land-owner, any of its ordinary or fast trains, other
than mail, express, or special trains, to pass a station without stopping
there for the purpose of taking up and setting down passengers.
Hood v. Northeastern Railway Co., L. R., 8 Eq. 666 ; L. R., 5 Ch. App.
525. And see Phillijps v. Great Western Railway Co., L. R., 7 Ch.
App. 409; S. C, 2 Eng. R. 316; Righy v. Great Western Railwa/y
Co., 2 Phil. Ch. 44.

It was at one time doubted whether a contract for the sale of the
business of an attorney was legal (see Thornhury v. Bevill, 1 Y. &
Coll. C. C. 554) ; but it seems now that such a contract is valid at law
{Bu7m V. Guy, 4 East, 190), and will be enforced in equity. Whitta.
ker V. Howe, 3 Beav. 383 ; AuUn v. Holt, 2 K. & J. QQ.

As a general rule, equity will not decree a special performance of an
agreement to enter into and carry on a partnership. Sheffield Gas Co.
v. Harrison, 17 Beav. 294; Birchett v. Boiling, 5 Munf. (Ya.) 442;
Buck V. Smith, 29 Mich. 166 ; S. C, 18 Am. Rep. 84 ; Meason v.
Kaine, 63 Penn. St. 335; Scott y. Rayment, L. R., 7 Eq. 112. But
there are lunited exceptions to this rule (see Id. ; England v. Curling,
8 Beav. 129) ; and a court of equity will decree specific performance of
the articles of partnership where it is necessary, in order to invest the
complainant with the legal rights for which he contracted. Whitworth
V. Harris, 40 Miss. 483. And sec Wilson v. Campbell, 10 111. 383.
So, in the case of a subsisting partnership, the court will restrain
one of the partners from breaking his agreement not to carry on the
same trade with other persons. Kemlle v. Kean, 6 Sim. 333. And
the agreement by a partner to offer his interest to other partners, before
YoL. Y. -97

770 SPECIFIC PEEFOKMANCE.

selling to a stranger, may be specifically enforced. Komfray v.
Fothergill, L. R., 1 Eq. 567.

Specific performance of a contract for the sale of the good will of a
business, unconnected with the premises where the business is carried
on, will not be decreed {Baxter v, Conolly, 1 Jac. & W. 556 ; Boz&n
V. Farlow, 1 Mer. 459) ; but where the good will is wholly or principally
annexed to the premises, a contract for the sale of the good will and
premises may be enforced in equity. Darhey v. Whitaker, 4 Drew.
134 ; Shackle v. Bakei\ 14 Beav. 468. See Bryson v. Whitehead
Sun. & Stu. 74.

Courts of equity will, in some cases, decree the specific performance
of a contract to grant a lease or renew a lease. Tritton v. Foote, 2
Bro. Ch. 636; S. C, 2 Cox, 174; Furnwal v. Crew, 3 Atk. 83. But
see, as to cases where specific performance of agreement for leases was
refused on various grounds, Jones v. Jo7ies, 12 Yes. 188 ; Gelston v.
Sigrnond, 27 Md. 334 ; MoKihUn v. Brown, 1 McCart. (K. J.) 13 ;
Hojpkins v. Gilman, 22 Wis. 476 ; Moore v. Marrahle, L. E.., 1 Ch.
App. 217. Equity will decree specific performance of a covenant in a
lease which provides that the lessee shall have the privilege of pur-
chasing the premises for a fix;ed sum of money on or before the expi-
ration of the term. Hall v. Center, 40 Cal. 63. It has been held that
an agreement for the grant of an annuity, or to charge it on land, may
be specifically decreed. Lyde v. Mynn, 1 Myl. & K. 683 ; S. C, 4
Sim. 505 ; Wellesley v. Wellesley, 4 Myl. & Cr. 554. So, of an agree-
ment to settle the boundaries between two estates {Penn v. Balthnore,
1 Yes. Sr. 444) ; or to keep the banks of a river in repair {Kilmorey v.
Thackeray, cited 2 Bro. Ch. 65 ; 1 Story's Eq. Jur., § 722) ; or to in-
dorse a bill of exchange or promissory note, upon a transfer thereof,
when it has been omitted by design, or accident, or mistake. Id., §
729 ; Watkins v. Maule, 2 Jac. & W. 242. And it has been held
that a promise to pay in gold for a valuable consideration received for
the difference between paper currency and gold may be specifically en-
forced in equity like any other binding contract, the specific perform-
ance of which may become proper for the effectuation of full justice
according to the intention of the parties. Hord v. Miller, 2 Duv.
(Ky.) 103 ; Hall v. Hiles, 2 Bush (Ky.), 532. But see Hoioe v. Nich-
erson, 14 Allen, 400. An agreement not to erect a dam on the defend-
ants' own land may be enforced {Barnes v. Barnes, 65 ]N"o. Car. 261);
so an agreement between a creditor and a third person, founded on a
valuable consideration, to compromise the claim of the former against
his debtor, will be specifically enforced {Phillijys v. Berger, 8 Barb.
527) ; so, specific performance of a contract to indemnify one against a

SPECIFIC PEEFOEMANCE. 771

pecuniary liability may be enforced in equity, altliongli its performance
is secured by a penalty. Cliamherlain v. Blue, 6 Blackf. (Ind.) 491.
And where the o\\Tier of a mortgage debt, on receiving money from
another person, agrees in writing to pay him a specified portion of the
debt, " when received, and in manner as received," a specific perform-
ance of the agreement may be enforced in equity. Buck v. Swazey,
35 Me. 41. So where A signs an agreement to do certain acts on the
performance of certain conditions precedent by B, and B performs
those conditions, equity will compel a specific performance of the agree-
ment by A. Lanincj v. Cole, 4 X. J. Eq. 229. An agreement to insure
may be specifically enforced in equity. Carpenter v. Mutual Ins. Co.,
4 Sandf. Ch. 408 ; Union Mut. Ins. Co. v. Commercial, etc., Ins. Co.,
2 Curt. (C. C.) 524. And so of an agreement to purchase a copyright.
Thonibleson v. Black, 1 Jur. 198. An assignment of an expectancy,
if made for a valuable consideration, may likewise be enforced in equity.
Meek v. Kettlewell, 1 Phil. Ch. 342. See, also, Mastin v. Marlow,
65 N. C. 695 ; Powers' Appeal, 63 Penn. St. 443.

Specific performance of an agreement by creditors, to receive a por-
tion of their debts in satisfaction of the whole, will not be decreed in
equity. Acker v. Phmnix, 4 Paige, 305. Nor will a court of equity
enforce the specific performance of an agreement contained in a lease,
upon the part of the lessor, to repair damages caused by fire. Beck v.
Allison, 56 N. Y. (11 Sick.) 367; S. C, 15 Am. Eep. 430. And the
specific performance of an agreement in settlement of a family dis-
pute will not be enforced unless the agreement is complete and final,
nor if it is hard or imconscionable or unequal, or if the plaintiff seeks
undue advantage by insisting on the strict legal construction of its terms.
Wista/r's Ajypteal, 80 Penn. St. 484.

In Clayton v. Illhigworth, 10 Hare, 451, the court refused to grant
specific performance of an agreement for a tenancy from year to year,
apparently upon the ground that the remedy at law was adequate.

§ 6. Specific delivery of chattels. It has long been admitted, as
undoubtedly within the jurisdiction of a court of equity, specifically to
compel the delivery up of heir-looms, or chattels of peculiar value to the
owner, although the heir-looms or chattels, if they could be found, might
be recovered in an action of detinue, or their value in an action of trover.
See 1 Lead. Cas. Eq. (4th ed.) 822. The precise ground of this juris-
diction is said to be the same as that upon which the specific jierform-
ance of an agreement is enforced, namely, that fruition of the thing,
the subject of the agreement, is the object, the failure of which would
be ill supplied by an award of damages. Lowth^r v. Lowther, 13 Yes.
95 ; Fells v. Eeed, 3 id. 71. The examples to be found in the English

772 SPECIFIC PERFOEMANCE.

books are usually those cases where, from the nature of the thing sought
after, its antiquity, or because of some peculiarity connected with it, it
cannot easily, or at all, be replaced ; such, for instance, as a valuable
painting {Loiother v. Lowthe7\ 13 Yes. 95); the title deeds of an estate,
and other muniments of property (Id.); an antique silver altar-piece
{DtiTce of Somerset v. Coolcso7i, 3 P. Wms. 389) ; an ancient horn, the
symbol of tenure, by which an estate is held {Pusey v. Pusey, 1 Yern.
273) ; heir-looms {Earl of Macclesfield v. Davis, 3 Yes. & B. 16) ; and
even a finely carved cherry-stone. See Pearne v. Lisle, Ambl. 77.
Such articles as these are commonly esteemed not altogether, or perhaps
at all, for their intrinsic value, but as being objects of attachment or
curiosity, and, therefore, not to be measured in damages by a jury, who
cannot enter into the feelings of the owner ; so, too, the impossibility,
or even the great difficulty of supplying their loss, may put damages out
of the question as a medium of redress. Fells v. Peed, 3 Yes. 71 ;
Nuibrown v. Thornton, 10 id. 163; McGowin v. Pemington, 12Penn.
St. 56. In Powling v. Betjemann, 2 Johns. & H. 544, it was said
that a court of equity has jurisdiction to order the delivery up to an
artist of a picture painted by himself, as having a special value, the legal
remedy being inadequate.

It seems, however, that the interjDOsition of courts of equity will not
be confined to those cases in which the articles sought are of some pe-
culiar or intrinsic value, if there subsist any fiduciary relation between
the parties. Where such a relation subsists between the parties, whether
it be the case of an agent, or a trustee, or a broker, or whether the sub-
ject-matter be stock or cargoes, or chattels of whatever description, the
court will interfere to prevent a sale, either by the party intrusted with
the goods, or by a person claiming under him, through an alleged abuse
of power. Wood v. Rowclife, 3 Hare, 304 ; S. C, 2 Phil. Cli. 383.
See, also, Edwards v. Clay, 28 Beav. 145 ; Pollard v. Clayton, 1 K. &
J. 462. Upon the same principle, a specific delivery up of deeds or
writings to the persons legally entitled to them, will be decreed by a
court of equity. Lady Beresford v. Driver, 14 Beav. 387; Peece v.
Trye, 1 De G. & Sm. 273 ; 1 Lead. Cas. Eq. (4th ed.) 824.

An agreement by a holder of notes to deliver them up to the maker
to be canceled, maybe specifically enforced. Tuttle v. Moore, 16 Minn.
123. And as a general rule, if a written obligation is invalidated by
fraud, mistake, or other like cause, a court of equity may direct that it
shall be delivered up and canceled. Wilson v. Getty, 57 Penn. St.
266.

§ 7. Matters submitted to arbitration. It is a well-settled prin-
ciple of equity jurisprudence, that a court of equity will not compel

SPECIFIC PERFORMANCE. Y73

the specific performance of an agreement to refer any matter in contro-
versy between adverse parties to arbitrators. Street v. Higby, 6 Yes.
815 ; Gervais v. Edwards, 2 Dr. & W. 80 ; King v. Howard, 27 Mo.
21; Toheyv. County of Bristol, 3 Stoiy (C. C), 800. ^qq Bunnell v.
Keteltas, 16 Abb. (N. Y.) 205. ISTor -svill they compel arbitrators to
make an award. 2 Story's Eq. Jur., § 1457. The reason assigned for
this rule is, that courts of equity will not aid parties in ousting, by their
agreements, the jurisdiction of the ordinary tribunals of the country,
established for the trial of causes. Nor will they permit parties, by
agreement, to change their mode of proceeding. Id.; Conner \. Drake,

1 Ohio St. 166. But see Livingston v. BalU, 5 El. & Bl. 132 ; Boj?-
kins V. Oilman, 22 "Wis. 476 ; City of Providence v. St. John^s Lodge,

2 R. I. 46.

And where parties submit a matter in controversy to the award of
arbitrators, a court of equity has no peculiar jurisdiction to enforce the
award, if it be for the payment of money only. Turpin v. Banton,
Hard. (Ky.) 320 ; Rowe v. Nickerson, 14 Allen, 400. But the court
will interfere in the exercise of its ordinary jurisdiction as applied to
the specific performance of agreements, and will enforce an award of
arbitrators which provides a specific remedy, or prescribes the execution
of a specific act, other than the payment of money. Story v. Norwich,
etc., R. R. Co., 24 Conn. 94 ; Cook v. Vick, 3 :Miss. 882 ; Thomjysonx.
Deom.s, 6 Jones' (N. C.) Eq. 22 ; McNeil v. Magee, 5 Mas. (C. C.) 244.
Such a specific performance will be decreed, almost as if it were a matter
of contract, instead of an award. 2 Story's Eq. Jur., § 1458 ; Bouck
V. Wilher, 4 Johns. Ch. 405 ; Jones v. Welwood, 9 Hun (N. Y.), 166.
And a court of equity has jurisdiction to enforce the specific execution
of an award concerning real estate, or of an agreement for the purchase
or sale of real estate {Jones v. Boston Mill Corp., 4 Pick. 507 ; Cald-
well V. Dickinson, 13 Gray, 365) ; notwithstanding it involves the en-
forcement of an award to pay money. Wood v. Shepherd, 2 Patt. &
H. (Ya.) 442. In other words, the jurisdiction of the court will not be
ousted and the ends of justice defeated because of an obligation in the
award to pay money. Memphis, etc., R. R. Co. v. Scruggs, 50 Miss.
284.

Since, however, the specific performance of awards, as well as of
contracts, rests in the sound discretion of the court, if, upon the face
of the award or otherwise, there appear just objections to enforcing
it, equity will not interfere. Auriol v. Smith, 1 Turn. & Russ. 187 ;
2 Story's Eq. Jur., § 1459; Backus' Appeal, 58 Penn. St. 121. And
see Nickels v. Hancock, 7 DeG., M. & G. 300. But it is held that the
specific performance of an award, legally void by reason of an apparent

774 SPECIFIC PEKFORMANCE.

non-compliance with the terms of submission, caused bj a mere clerical
error, will yet be decreed in equity, unless its performance would work
injustice. Buys v. Eherha/rdt, 3 Mich. 524. And where an award has
been long acquiesced in by both parties, it will not be set aside, nor the
matters unraveled, although valid objections might have been originally
urged against it. Jones v. Bennett, 1 Pro. P. C. 528.

§ 8. When left to courts of law. It is the general rule, that courts
of equity will not entertain jurisdiction to compel the specific perform-
ance of a contract, when the plaintiff can obtain adequate redress by his
action at law for damages. Pennsylvania Goal Co. v. Delaware, etc.,
Co., 31 N. Y. (4 Tiff.) 91. Put this rule is said to be confined to cases
in which there is a certain measure of damages, and money must be a
satisfactory compensation. Barnes v. Barnes, 65 N. C. 261 ; Phyfe
V. Wardell, 2 Edw. Ch. 47. Contracts for the sale of land, or for leases,
and, indeed, it may be said, all contracts affecting lands, will always be
specifically enforced, if there be nothing in the circumstances to forbid it.
See ante, 705, § 3 ; /Sckroeppel v. Hopper, 40 Parb. 425; Foss v. Haynes,
31 Me. 81. Put, the question, in all cases where the specific per-
formance of an agreement relating to personalty is sought, is, will dam-
ages at law afford an adequate compensation for breach of the agree-
ment ? If it will, there is no occasion for the interference of equity ;
if it will not, specific performance of the agreement, as in the case of
an agreement relating to realty, will be enforced. 1 Lead. Cas. Eq.
(4th ed.) 792. And see ante, 766, § 4. On a contract to deliver so many
bushels of corn, or so many sheep, it is clear that a complete remedy
may be given in damages, because the vendee can always go into the
market and buy corn or sheep. Put if there be any thing in the na-
ture of the article contracted for by reason of which it could not be
purchased in the ordinary market, as if it be an ancient horn, or a unique
china vase, or shares in a particular railway, the general rule of a spe-
cific enforcement would apply. Williams v. Howard, 3 Murph. (N.
C.) 74 ; Barnes v. Barnes, 65 N. C. 261 ; Falcke v. Gray, 4 Drew.
658.*

Courts of law, as a general rule, do not enforce the specific perform-
ance of agreements, unless specially authorized to do so by statute, but
award damages for the breach. McLane v. Elmer, 4 Ind. 239. See
Darling v. lioarty, 5 Gray, 71.

After an action at law has been commenced for the breach of a con-
tract, the defendant cannot go into equity for a specific performance
of it, unless there are some particular equitable grounds to excuse and
relieve against his breach of it, and entitling him in equity to the spe-
cific execution of it. Long v. Colston, 1 Hen. & M. (Va.) 111.

SPECIFIC PERFORMANCE. 7t5

ARTICLE II.

WHAT CONTRACTS MAY BE SO ENFORCED.

Section 1. In general. In the preceding article it has been pointed
ont, in a general way, what contracts may be specifically enforced. And
it may be here observed in brief that a contract should be enforced in
every case where the subject of it is something susceptible of substan-
tial enjoyment ; provided, always, that the circmnstances surrounding
and connected with the contract bring it within the equitable rules
which entitle it to the relief sought, and where the remedy at law is
uncertain and inadequate. Johnson v. Rickett, 5 Cal. 218. See, also,
Hopper V. Hopper, 16 N". J. Eq. 147 ; Chance v. Beall, 20 Ga. 143.

§ 2. Contract must l)e one proper to be executed. The jurisdic-
tion of equity in specific performance proceeds on the supposition that
the parties have not only agreed, as between themselves, upon every
material matter, but that the matters so agreed upon are of such a na-
ture, and the subjects of enforcement so delineated or indicated, either
directly or by reference to something else, or so raised to \'iew by legit-
imate implication, that the court may collect and place in their proper
relations all the essential elements, and proceed intelligently and prac-
tically in carrying into execution the very things agreed upon and
standing to be performed. If, however, it appears, either that the things
to be performed are in their nature incapable of execution by the court,
or that needful specifications are omitted, or that material matters are
left by the parties so obscure or undefined, or so in want of details, or
that the subjects of the agreement are so conflicting or incongruous, that
the court cannot say whether or not the minds of the parties met upon
all the essential particulars, or if they did, then cannot say exactly upon
what substantial terms they agreed, or trace out any practical line where
their minds met, the case is not one for specific performance. Blanch-
curd V. Detroit, etc., R. R. Co., 31 Mich. 43 ; S. C, 18 Am. Rep. 142.
See, also, Wright v. Wright, 31 Mich. 380 ; Bruch v. Tucker, 42 Cal.
347 ; Grey v. Tuhls, 43 id. 359.

It is an elementary principle, that, in order to give an agreement an
obligatory force, the subject of it ought to be such a thing as men have
a lawful right and power of stipulating about at their pleasure. It fol-
lows that an engagement to do a thing, in itself unlawful, must be void,
and equity will not lend its aid to compel the specific execution of a void
contract. Wood v. Griffith, 1 Swanst. 43 ; Woodhouse v. Meredith^
1 Jac. & W. 215 ; BogoM v. Camp, 30 Ala. 276. The law will not give
its aid to either party to enforce a contract which is illegal, immoral, or

776 SPECIFIC PEKFORMANCE.

against public policy, but will leave both parties in the condition in
which it finds them. And when the contract is executed, neither party
can have any remedy against the others, to be restored to his former
condition. Evans v. Kittrell, 33 id. 449 ; Dobson v. Swan, 2 "W. Ya.
511; Mercier v. Mercier, 50 Ga. 546; S C, 15 Am. Rep. 694; Dumont
V. Diifore, 27Ind. 263 ; Parhs v. McKaimj, 3 Head (Tenn.), 297. So,
if the contract has been procured by any sort of fraud or falsehood, or
its enforcement will be attended with great hardship or manifest injus-
tice, the court will refuse its aid. Fish v. Leser, 69 111. 394 ; Plum-
mer v. Keppler, 26 N. J. Eq. 481 ; Mississipjn, etc., R. R. Co. v. Crom-
well, 91 U. S. (1 Otto) 643 ; Canterbury Aqueduct Co. v. Ensworth,
22 Conn. 608.

A court of equity will not, any more than a court of law, enforce a
contract which it sees to be tainted with the crime of maintenance.
Sayles v. Tihbitts, 5 E,. I. 79. Nor will it decree the specific perform-
ance of one contract which grows directly out of another, which is
illegal, immoral, or tainted with champerty. Bowman v. Cunningham,
78 111. 48. And, in general, no contract which deprives a person of his
liberty can be specifically enforced. Matter of Baker, 29 How. (N. Y.)
485. So, an agreement between husband and wife, providing for their
future separation, is contrary to public policy, and cannot therefore be
enforced. Wilson v. Wilson, 1 H. L. Cas. 538 ; H. v. W., 3 K. & J.
382 ; People v. Mercei/n, 8 Paige, 47. If the bad conduct of the wife
Tnay he the contingency in which the husband will be bound to make the
provision, the contract must fail altogether, for it is an inducement to
the wife to be guilty of the most atrocious conduct, in order to entitle
herself to the provision. Cocksedge v. Cocksedge, 14 Sim. 244. But
it the agreement be entered into after the separation has taken place,
or on the eve and in contemplation of an intended separation, it may
be upheld. 2 Chit, on Cont. (9th ed.) 1469. And see Williams v.
Baily, L. R., 2 Eq. 731 ; Wilson v. Wilso7i, 1 H. L. Cas. 538.

Where a party has no right of action at law, equity will not interfere
to enforce a contract, unless there have been some circumstances excus-
ing the failure at law, or a waiver of the forfeiture on the part of the
obligee. Allen v. Beal, 3 A. K. Marsh. (Ky.) 554 ; Tevis v. Rich-
ardson, 7 T. B. Monr. (Ky.) 654. And where the plaintiff in equity
once had a right to a specific performance of a contract, and had never-
theless prosecuted his claim at law for damages for the breach of it to
judgment, it was held that his claim to a specific performance of it no
longer remained. Buckmaster v. Grundy, 8 111. 626 ; Marston v.
Humphrey, 24 Me. 513.

Specific performance of a contract will not be decreed where it

SPECIFIC PERFORMANCE. 777

appears that such performance is obviously impossible ( WGodward v.
ITa/rris, 2 Barb. 439) ; as, for instance, where the defendant, sued on his
contract to convey, has not, and never did have, title to the land, and,
being bankrupt, has no means with which to buy it for the plaintiff
{Pack V. Gaither, 73 No. Car. 95) ; or where one who had already mort-
gaged his land contracted to convey it free of incumbrances, and the
purchaser prayed a specific performance, but would not waive objection
to the mortgage. Snell v. Mitchell, 65 Me. 48.

§ 3. Covenants to sell or renew. We have already seen {ante^
765, art. 1, § 3,) that it is as much a matter of course for courts of
equity to decree a specific performance of a contract for the conveyance
of real estate, as it is for courts of law to give damages for its breacli.
See, also, HiiffTnari v. Hummer^ 17 N. J. Eq. 263. And the form of
the instrument by which the contract appears is wholly unimportant.
St. Paul Division v. Brown, 9 Minn. 157. But, upon an application
for a specific performance of a contract for the sale of land, the com*t
must be satisfied that the claim is reasonable and just, and the contract
equal in all its parts, and founded on an adequate consideration ; and if
any of these points are not established by the complainant, he will be
left to his remedy at law. Johnson v. Dodge, 17 111. 433 ; Modisett v.
Johnson, 2 Blackf. (Ind.) 431. Nor will a specific performance of an
illegal contract concerning land be enforced, although the party seeking
the aid of equity is in possession of the premises. Smith v. Johnson,
37 Ala. 633.

Specific performance of an agreement to convey real estate will not
be refused because a penal sum has been agreed on as " liquidated dam-
ages," in case of a refusal to convey. Dull v. Sturdivant, 46 Me. 34.
Nor will the form of such an agreement affect the right to specific per-
formance. Id.

A covenant for a lease or to renew a lease may be specifically
enforced {cmte, 767, art. 1, § 5; Clark v. Clark, 49 Cal. 586); and since a
covenant to renew a lease runs with the land, the assignee of the lease
may require a specific performance of it. Robinson v. Perry, 21 Ga.
183. But the specific performance of a covenant to renew a lease, in
which the rent is not fixed, cannot be enforced in equity. Rohinsmi
V. Kettletas, 4 Edw. Ch. 67; Whitlock v. Duffidd, 1 Hoff. Ch. 110.

And where the purchaser of an agreement for a lease and those
under whom he claims have committed such acts as would have created
a forfeiture had the lease been actually executed with the covenants
usually inserted in leases of the same estate, he will not be entitled to
the aid of a court of equity in compelling a specific performance of
uch agreement against a purchaser in fee-simple of the land, who has
Vol. v.— 98

778 SPECIFIC PEEFORMANCE.

recovered a judgment at law. Jones v. Hoheris, 3 Hen. & M. (Va.)
436.

A parol agreement for the sale of lands will not be specifically
enforced, where the parol evidence of it is contradictory. Rmjoton v,
Mowton, 1 id. 92. And, in general, a parol contract for the sale of
lands must be established with reasonable certainty and the considera-
tion claimed to have been paid or tendered therefor must be clearly
and satisfactorily proved to have been paid or tendered, otherwise a
specific performance should be refused. Shropshire v. Brown, 45
Ga. 175.

§ 4. Yendor of land, when lie may enforce contract. The
vendor of land may come into equity to compel a specific performance
of the contract of sale, although he may have a remedy at law by an
action for the purchase-money. Finley v. Aiken, 1 Grant's (Penn.)
Cas. 83 ; Springs v. Sanders, Phil. (N. C.) Eq. 67 ; Phyfe v. War-
dell, 5 Paige, 268. But the rule is that specific performance of a con •
tract of sale will not be decreed at the instance of the vendor, unless
his ability to make a good title is unquestionable. Owings v. Baldwin,
8 Gill (Md.), 337 ; Garnett v. Macon, 6 Call (Ya.), 308. See, also,
Moss V. Hanson, 17 Penn. St. 379 ; LuohettY. Willla^nson, 37 Mo. 388.
Creigh v. Shatto, 9 Watts & Serg. 82. A court of equity will, how-
ever, in some instances, decree specific performance of a contract for
the sale of land, if the vendor is prepared to comply with his covenants
at the hearing, and will even afford him a reasonable time to remove
incumbrances and perfect his title. But this is a matter of favor to
the vendor, to be granted only in cases which admit of such relief
without prejudice to the rights of the vendee. Christian, v. Cabell,
22 Gratt. 82.

A contract for the purchase of a large tract of land will be specific-
ally enforced, where the vendor can make title to all but two hun-
dred and eight acres, the deficiency being a matter of compensation.
Hepburn v. Axdd, 5 Cranch (U. S.), 262.

§ 5. When vendor cannot enforce. It is, however, the general
rule that where there is a substantial defect with respect to the nature,
character, situation, extent or quality of the estate, which is unknown
to the vendee, and in regard to which he is not put upon inquiry, a
specific performance will not be decreed. Halsey v. Grant, 13 Yes.
76 ; Lowndes v. La/ne, 2 Cox, 363 ; Waters v. Travis, 9 Johns. 450 ;
Belknap v. Sealey, 2 Duer (N. Y.), 577; Freetly v. Barnhart, 51
Penn. St. 281 ; EllicoU v. White, 43 Md. 145 ; 1 Story's ^(\, Jur., %
778. Thus, the specific performance of a contract for the sale of a

SPECIFIC PERFORMANCE. 779

house and land will not be decreed where only one-half of the house
and lot can be obtained. Terrell v. Farrar^ 1 Miss. (Walk.) 417.

And it is held that a vendor of land should not have specific execu-
tion of his contract, where he cannot show a good and perfect title at
the hearing, although he may have been thrown off his guard by the
purchaser {Barnett v. Higgins, 4 Dana [Ky.], 565) ; nor, unless the
court is satisfied of the equitable, as well as the legal, title of the
vendor. Creigh v. Shatto, 9 Watts & Serg. 82. But although a court
of equity will not compel a purchaser to take a doul)tful title {Povjell
V, Conant, 33 Mich. 396), and if there is such an uncertainty about
the title as to affect its marketable value, the contract may not be
specifically enforced, even though a court might consider it good, still
there must be some debatable grounds on which the doubt can be justi-
fied. Yreeland v. Blauvelt, 23 N. J. Eq. 483.

§ 6. When vendee may enforce. In general, under a contract for
the sale and purchase of lands, a court of equity will decree a good and
sufficient conveyance to be made upon payment of the purchase-money.
Mxirphy V. Mg Vicher, 4 McLean (C. C.), 252. See, also, Ridgely v.
Clodfelter, 43 111. 195 ; Taylor v. Rowland, 26 Tex. 293. And a con-
tract for the conveyance of land, by which the purchaser may pay in
money or labor, at his election, can be enforced in equity, if he elects
to pay the money, and tenders the amount. Owen v. Fririk, 24 Cal,
171. So, a vendee who has fulfilled his contract of purchase may
obtain a decree for specific performance against parties, who, with notice
of his equities, succeeded to the interests of the vendor. Foss v. Hay^ies,
31 Me. 81 ; Laverty v. Mom^e, 33 N". Y. (6 Tiff. ) 658. And the heir
of the purchaser may enforce a conveyance. Rutherford v. Green, 2
Ired. (N. C.) Eq. 121. Where the vendor has not a title to all of the
lands which he contracts to sell, the vendee may compel a specific per-
formance of the contract, so far as the vendor can perform it, and insist
upon an abatement of the price as to the residue {Milligan v. Cooke,
16 Yes. 1 ; Graham v. Oliver, 3 Beav. 124 ; Springle v. Shields, 17 Ala.
297; Ranking. Maxwell, 2 A. K. Marsh. [Ky.] 488 ; Ketchum v. Stout,
20 Ohio, 453) ; or he may rescind the contract. Id. The vendee may have
a conveyance with compensation in a case where the vendor's wife will
not release her dower. Wright v. Young, 6 Wis. 127. But see
BurFs Appeal, 75 Penn. St. 141 ; S. C, 15 Am. Rep. 587, where it
is held, that the specific execution of an agreement to sell land will not
be decreed against a vendor, a married man whose wife refuses to join
in the deed, unless the vendee be willing to pay the full purchase-
money and accept the deed without the wife joining therein. Riesz's
Appeal, 73 Penn. St. 485. In the case of outstanding leases upon

780 SPECIFIC PEEFORMANCE.

premises contracted to be sold, eqititj will decree performance with
compensation. Jerome v. SGudder, 2 E-obt. (IST. Y.) 169. See James
V. Lichfield, L. R., 9 Eq. 51. So, where, by mistake, the boundaries
stated in the agreement did not include a house, supposed by both
parties to be on the land sold, the vendee was held to be entitled to
performance, with abatement. Austin v. Ev)ell, 25 Tex. (Supp.) 403.

Where there are two parcels of and embraced in the contract of sale,
and the vendor can make a good title to but one parcel, the vendee is
entitled to have a conveyance of that parcel, if he will pay the stipu-
lated price of that parcel, and accept it in full satisfaction of the contract.
White V. Bohson, 17 Gratt. (Ya.) 262.

Where a person enters into a contract for the purchase of land from
several joint owners, and files his bill for a specific performance of the
entire contract, and fails to recover the whole of the land, because the.
contract was not binding upon some of the owners, he may neverthe-
less recover the portion owned by those upon whom the contract was
binding. Meek v. Walthall, 20 Ark. 648. See, also, Hooker v.
Pynchon, 8 Gray, 550.

It has been held that the vendee has a right to a decree for the spe-
cific perfonnance of a contract for the sale of land according to the
terms of the contract, notwithstanding that, before bringing his bill,
he claimed a right of way under it, to which he was not entitled.
Prothro v. Smith, 6 Rich. (S. C.) Eq. 324. So, an agreement, at the
time of a conveyance of land, and on the strength of which the pur-
chase-money is paid, that the vendor will satisfy the mortgages on that
land, so that the title shall be unincumbered, will be enforced in equity.
Barkley v. JSa/rkley, 14 id. 12.

Where the vendee elects to take such title as the vendor can give,
with compensation for the deficiency, he will be allowed as damages
only the fair money value of what is not conveyed. Woodbury v.
Luddy, 14 Allen, 1. See Stockton v. Union Oil Co., 4 W. Va. 273 ;
Wilcoxon v. Calloway, 67 N. C. 463.

§ 7. When vendee cannot enforce. A specific performance of a
contract for the conveyance of land will not be decreed where the
vendor has no title {Niool v. Carr, 35 Penn. St. 381 ; Stevenson v.
Buxton, 37 Barb. 13 ; S. C, 15 Abb. Pr. 352 ; Maiden v. Fyson,
9 Beav. 347 ; ante, 778, § 5) ; or has, since the contract, conveyed the
land to a stranger without notice. Ferrier v. Buziok, 2 Iowa, 136 ;
Shields V. Trammell, 19 Ark. 51 ; Bruecjgem,an v. Jurgensen, 24
Mo. 87. And where a person bargains for land which the vendor
does not own, and this is known to the vendee, and the vendor is un-
able afterward to procure a conveyance, the vendee in such case is

SPECIFIC PEKFORMANCE. 781

not entitled to specific performance. Love v. Cohlj^ 63 N. C. 324 ;
Hill V. Fiske^ 38 Me. 520. So where the vendee, at the time
of the contract, knows of the limited interest of the vendor, he will
have no claun to insist upon a conveyance of such interest, with
compensation. Colyer v. Clay, 1 Beav. 189 ; Lawrejison v. But-
ler, 1 Sch. & Lefr. 13. Thus, where a husband and wife agreed to sell
the wife's estate in fee simple, the purchaser being aware that the
estate belonged to the wife, and the Avife afterward refused to obey,
it was held that the purchaser could not compel the husband to convey
his interest, and accept an abated price. Castle v, WilJcinsoji, L. R.,
5 Ch. App. 534. And see BavTies v. Wood, L. R., 8 Eq. 424. So it
appears to be immaterial that the purchaser has constructive notice only
of the limited interest of the vendor. Thus, where the vendor con-
tracted to sell certain property which the pm'chaser knew to be in the
occupation of a tenant, and it was afterward discovered by the pur-
chaser that the tenant had a lease, it was held that the purchaser
was affected with notice of the lease, and was not entitled to specific
perfoiTnance with compensation. James v. Lichfield, L. E,., 9 Eq. 51.

The general rule, that where there is a deficiency in the quantity of
land comprised in a contract of sale, the purchaser can demand specific
performance with compensation (See ante, 779, § 6), is subject to certain
limitations. Thus, if it appears that there is a great deficiency in the
quantity of the land contracted to be sold, the court will not, in the
absence of fraud, compel the vendor to complete the sale, making a
deduction from the price for the deficiency. Rugge v. Ellis, 1 Desau.
(S. C.) 160 ; Earl of Durham v. Legard, 34 L. J. Ch. (N. S.) 589.
And the neglect of a purchaser to make inquiries may disentitle him
from claiming compensation for some defect, which, with ordinary
care, he might have discovered. 2 Lead. Cas. Eq. (4th ed.) 551. Thus,
an agreement for the sale of an advowson for a certain sum was made,
nothing being said by either party as to the income of the hving. The
title was accepted, but before completion the purchaser discovered that
the income of the living was charged with the repayment of a sum of
money borrowed from Queen Anne's Bounty for rebuilding the par-
sonage, of which charge the vendor was aware ; and it was held that
the purchaser who obtained a decree for specific performance was not
entitled to compensation. Edwards Wood v. Marjorihanks, 1 Giff.
384 ; S. C. affirmed, 3 De G. & J. 329 ; 7 H. L. Cas. 806.

So, the right to compensation may be excluded by express contract
{Cordingley v. Cheesehorough, 3 Giff. 496) ; but a condition excluding
compensation for eiTors is sometimes construed so as to extend to small
imintentional errors only. Whittemore v. Whittemore, L. R., 8 Eq.

782 SPECIFIC PERFORMANCE.

603. Thus, at a sale by auction under a decree, the property sold was
stated in the particulars to contain seven hundred and fifty-three square
yards or thereabouts, and one of the conditions of sale provided that
if any error, misstatement or omission in the particulars should be dis-
covered, it should not annul the sale, nor should any compensation be
allowed by the vendor or purchaser in respect thereof. The property
was found to contain five hundred and seventy-three square yards only,
and it was held that the condition only applied to small errors, and
that the purchaser was entitled to compensation. Id.

The right of the purchaser to compensation may likewise be excluded
by a rescission of the contract on the part of the vendor under a con-
dition empowering him to do so, in case he be unwilling or unable to
make a title, or if the title do not prove satisfactory. Duddell v.
Simpson, L. R., 2 Ch. App. 102 ; Maivson v. Fletcher, L. R., 10 Eq.
213; L. R., 6 Ch. App. 91. And under such a condition tlie vendor
may rescind the contract, although the title may be good, if the pur-
chaser persists in an objection to it. Greaves v. Wilso7i, 25 Beav. 290 ;
2 Lead. Cas. Eq. (4th ed.) 552.

Courts of equity will not, on behalf of the purchaser, compel a
partial performance of a contract which is unreasonable, or which
would be prejudicial to persons interested in the property, but not
parties to the contract {ThoTnas v. Dering, 1 Keen. 729) ; nor will a
partial performance be decreed if there has been misrepresentation on
the part of the purchaser, even though he is satisfied with a perform-
ance of the contract subject to any outstanding interests without com-
pensation {Clermont v. Tashurgh, 1 Jac. & W. 112) ; nor will the court
decree specific performance where the purchasers were at the time of
the contract aware of important facts with reference to the subject-
matter of the contract which ought to have been disclosed to the
vendors. 2 Lead. Cas. Eq. (4th ed.) 553. Thus, the owners of a
colliery entered into a contract with an adjoining land-owner for the
purchase of his estate without disclosing the fact, of which he was
ignorant, that they had, without authority, obtained a considerable
quantity of coal from under it ; and it was held that tlie court would
not enforce the contract at the suit of the purchasers, although the sale
was not shown to be at an under value, Phillips v. Ilomfrey, L. R.,
6 Ch. App. 770. See JIa/rris v. Tyson, 24 Penn. St. 347.

Where any deficiency in certain events arises as to the extent or
duration of any interest in an estate contracted to be sold, not admit-
ting of compensation, it has been laid down as a general rule, that equity
can neither compel a purchaser to take nor a vendor to give an indem-
nity. Balmanneo v. Lumley, 1 Ves. & B. 225 ; Aylett v. Ashton, 1

SPECIFIC PERFOKMANCE. 783

Myl. & Cr. 105 ; Bainbridge v. Kinnaird, 32 Beav. 346 ; In re Bun-
huTj/s Estate, 1 Ir. R. Eq. 45S ; 2 Lead. Cas. Eq. (4tli ed.) 554.

Where a bill in equity has been brought to enforce the specific per-
formance of an agreement to convey lands, it is said that the court
will hardly be disposed to afford relief to the plaintiff when the en-
forcement of the contract will be attended with inequitable loss to the
defendants in impairing the value of adjoining lands. Church of the
Advent V. Farroio, 7 Rich. (S. C.) Eq. 378.

§ 8. Enforcing contracts of married women. An agreement by
a married woman for the sale of her real estate, made either vnth. or
without the assent of her husband, and although for a valuable consid-
eration, is void in law, and will not be enforced in equity {Lane v.
McKeen, 15 Me. 304; Watrous v. Chalker, 7 Conn. 224; MehoU v.
Jones, L. R., 3 Eq. 696 ; Field v. Moore, 19 Beav. 176 ; S. C, 7 DeG.,
M. & G. 691 ; Berrett v. Oliver, 7 Gill & J. [Md.] 192. But see
Barrow v. Barrow, 4 K. & J. 409) ; and the rule applies where she
is a trustee for sale. Avery v. Griffin, L. R., 6 Eq. 606. But by
statute in some of the States, specific performance may be had of a
married woman's agreement for the sale of her real estate. See Baker
V. Hathaway, 5 Allen, 103 ; Dresel v. Jorda/n, 104 Mass. 407.

A court of equity will not decree a specific performance of a contract
by a husband and wife for the sale of the wife's land, at the suit of the
vendee, the wife refusing to execute the contract. Clarke v. Reins, 12
Graft. 98 ; Weller v. Weyand, 2 Grant's (Pemi.) Cas. 103. ^ov will
a specific performance be decreed of a parol contract, made by
husband and wife, for the sale of the wife's estate, where a deed
has been executed by both husband and wife, if the wife dies
before the deed is delivered, or the estate taken possession of by the
vendee, or the purchase-money paid. Leland's Apjpeal, 13 Penn. St.
84. So, it is held in Iowa, that an agreement by a husband -^-itliout
joinder of his wife to convey lands to which there is a homestead right,
cannot be enforced by the court in case of the wife's refusal to accede.
Yost V. Devault, 9 Iowa, 60. JS^or will a court of equity compel the
husband to convey his life estate to the vendee, with compensation for
the failure of the wife to convey her interest in the land. Clarke v.
Reins, 12 Gratt. 98; Castle v. Wilkinson, L. R, 5 Ch. App. 534.

Equity will, however, enforce a contract entered into between a hus-
band and wife, for the transfer of property from the former to the
latter for a honafide and valuable consideration. Stockett v. Holliday,
9 Md. 480 ; Livingston v. Livingston, 2 Johns. Ch. 539.

So, where the husband and wife join in a contract for thesale of her
land, and in pursuance of the terms of the contract, their joint deed

784 SPECIFIC PEEFORMANCE.

for the land, executed and acknowledged according to law, is placed in
the hands of a third person, to be delivered by him to the purchaser upon
his paying the purchase-money, the husband and wife may enforce a
specific performance of the contract on the part of the purchaser.
Farley v. Palmer, 20 Ohio St. 223.

And a married woman possessed of a separate estate in real or per-
sonal property may charge the same with her debts, at least to the ex-
tent that such debts may be incm-red for the benefit of her separate
property, or f r her own benefit upon the credit of her separate prop-
erty, and courts of equity will enforce the payment of such charges
against the separate estate. Phillips v. Graves, 20 Ohio St. 371 ; S.
C, 5 Am. Rep. 675. And see Sharpe v. Foy, L. R.,'4 Ch. App. 35 ;
Barrow v. Barrow, 4 K. & J. 409.

But to decree the specific performance of a parol agreement made
with a married woman, to mortgage her leasehold property without
the knowledge of her husband, induced by professions of her brother,
that it was to secure to her a provision in the event of her becoming a
widow, would violate the principles of both law and equity. Berry v.
Cox, 8 Gill (Md.), 466.

§ 9. Must be competent parties. Generally speaking, all parties
who are competent to bind themselves at law are competent to enter
into agreements which equity will enforce. And an agreement by the
agent of a party is, of course, equivalent to that of the party himself
if he be authorized to enter into the agreement. An infant is not, in
general, bound by any agreement, nor can a lunatic enter into a con-
tract. So, an agreement by a married woman is, generally speaking,
quite ineffectual to bind her, or those claiming under her. See Mtir-
ra/y v. Barlee, 4 Sim. 82 ; Gore v. Gihson, 13 M. & W. 623. But if
an infant is old and cunning enough to contrive and carry on a fraud,
he ought to make satisfaction for it ( Watts v. Cresswell, 9 Vin. Abr.
415 ; Zoucli V. Parsons, 3 Burr. 1794) ; and the same is true in the
case of a married woman. Infancy or coverture shall bes no excuse in
the case of fraud. Cory v. Gertcken, 2 Madd. 40.

Eleemosynary and ecclesiastical corporations are not bound by any
thing in the shape of an agreement regarding their lands, unless it is
evidenced by a deed or writing with their corporate seal afiixed to it.
Carter v. Beam, of Ely, 7 Sim. 227. A corporation is a body politic owing
its existence to the law, and is only able to speak or act through the
medium which the law gives it. All coiporatc acts need not indeed
be evidenced by the common seal, but the rule is stringent as to agree-
ments concerning land. See Arnold v. Mayor of Poole, 5 Scott N.

SPECIFIC PERFOKMANCE. 785

R. 741 ; Mayor of LvMow v. Charlton, 6 M. & W. 821. And see
Vol 2, tit. Corporations.

It is thought that personal incapacity, on the part of the plaintiff, at
the time of the contract, cannot be set up as a defense to a suit for
specific performance, if the plaintiff has recovered his capacity at the
time of filing the l)ill {Clayton v. Ashdovjn, 9 Yin. Abr. 393 ; 2 Chit, on
Cont. [9th ed.] 1465); but the continuance of incapacity, at the time of
the bill being filed, would be a good defense. FUght v. Bolland, 4:
Russ. 298 ; Mchards v. Greeti, 23 K. J. Eq. 536.

§ 10. Assent to the contract. When equity assists a party in ob-
taining his right under a contract, it does so on the principle that the
very contract, as assented to by the party alleged to be in default, is
alone to be enforced. Railey v. Bacon, 26 Miss. 455. An agreement
compelled by force or threats is not binding, and will not be enforced.
So, in cases of intoxication, although the party may not have been drawn
into drink by the plaintiff, yet, if the agreement was made in a state of
intoxication, the court will not decree a specific perfonnance. Malin-s
V. Freeracvn, 2 Keen, 34. And see Morrison v. McLeod, 2 Dev. &
Bat. (JS . C.) 221 ; Conant v. Jackson, 16 Yt. 335 ; Prentice v. Achorn,
2 Paige, 30 ; French v. Hiclcox, 8 Ohio, 214. But it is held that the
mere fact that the defendant has partaken freely of liquors at the time
of entering into the contract is not, in the absence of fraud, or of evi-
dence that he was without the full understanding and knowledge of
what he was doing, a sufficient reason for refusing specific performance.
Licjhtfoot V. Heron, 3 T. & Col. 586. See, also, Shavj v. ThacTcray, 1
Sm. & G. 537.

If the relation between the parties be one of influence on the one
hand and of dependence on the other, as a general rule, a gift obtained
from the party under influence will be set aside {Dent v. Bennett, 4
Myl. & Cr. 269 ; Fx parte James, 8 Yes. 337 ; Huguenin v. Baseley,
14 id. 273) ; and it will be for the party ha\ang that influence, and ob-
taining an agreement, whether such agreement be executed or not, to
prove that the agreement was reasonable and proper, or in the case of
a sale, that the price was adequate. Gartside v. Isherwood, 1 Bro. (C.
C.) 561. This rule is likewise applicable to cases where it is not the
relation of the two contracting parties, but merely the circumstances of
the party from whom the agreement is obtained, which make it fraud-
ulent to take advantage of those circimastances, as in the case of persons
in distress, or dealing with expectancies or contingent or reversionary
interests. Bawrtee v. Watson, 3 Myl. & K. 339 ; Pickett v. Loggon, 14
Yes. "215 ; Beasley v. Mc&rath, 2 Sch. & Lef. 31 ; Farmer v. Farmer^
1 H. L. Cas. 724. But the party cannot refuse to perform the agree-
YoL. Y.— 99

786 SPECIFIC PERFOEMANCE.

ment, if it is proved to be fair and reasonable. See Cane v. Lord Allen^
2 Dowl. (P. C.) 289 ; Champion v. Bighy, 1 Russ. & M. 539. And
agreements which are voidable as being made to the disadvantage of
one party, between two parties whom the law thus discourages from
entering into agreements with each other, may be confirmed when the
relative position of the parties is at an end. See Morse v. Royal^ 12
Yes. 361 ; Purcell v, McNamara, 14 id. 91.

And it is no objection to enforcing a specific performance, that the
contract was made with an agent of the plaintift" in the agent's own
name, if the defendants have subsequently recognized the plaintiff as
principal, and have accepted performance on his part, and partly per-
formed on their own part. St. John v. Griffith, 13 How. (N. Y.) 59 ;
S. C, 2 Abb. Pr. 198.

§ 11. Of the consideration. We have already seen {ante, 775, § 2),
that the courts will not lend their aid to enforce a contract founded
upon an illegal consideration. See, also, Piatt v. Maples, 19 La. Ann.
459 ; Paton v. Stewart, 78 111. 481. So, it is essential, in order that
equity should lend its aid to the execution of a contract, that it be en-
tered into for a valuable consideration. Edioards v. Jones, 1 Myl. &
Cr. 226 ; Callaghan v. Callaghan, 8 CI. & Fin. 874. A court of equity
will not decree the specific performance of a mere voluntary agreement,
however proved. Id.; Darlington v. MoCoole, 1 Leigh (Ya.), 36; Estate
of Webh, 49 Cal. 542 ; Shepherd v. Shepherd, 1 Md. Ch. 244 ; Yasser
V. Vasser, 23 Miss. 378 ; Tumlinson v. Yorlc, 20 Tex. 694 ; Hanson v.
Michelson, 19 Wis. 498. And promises founded merely on the benev-
olent intentions of the promisor will not be enforced in equity. Mercer
V. Stai'Ti, 1 Miss. (Walk.) 451. But while a valuable consideration is
requisite to invoke the aid of equity in the enforcement of a contract,
it is not necessary that the consideration be of a pecuniary character,
nor that it be a full or adequate equivalent for the property. If some
benefit is to inure to the party promising, or some detriment to be sus-
tained by the promisee, it constitutes a sufficient consideration. Curlin
V. Hendricks, 35 Tex. 225 ; Neale v. Neales, 9 Wall. 1. Marriage is
a consideration of the most valuable nature. Gevers v. Wright, 18 N.
J. Eq. 330. But it is only a valuable consideration moving from those
within its sphere ; they are only the husband and wife, and the children
of the marriage. Nairn v. Prowse, 6 Yes. 752, 759. The release by
the husband of his interest in the future acquired property of the wife
is a good consideration from the husband to support his claim to an
aimuity covenanted to be paid to liim by his wife out of her separate
estate in a deed of separation, and the covenant will be enforced by
the court. Logan v. Birkett, 1 Myl. & K. 225. Where a trust is

SPECIFIC PEEFOKMAi^CE. T87

aetually created iu favor of a volunteer, a court of equity will enforce
its execution. Bill v. Cureton, 2 id. 503 ; Pulvertoft v. Pul/vertoft,
18 Yes. 84.

Inadequacy" of price, where it is so gross and palpable as of itself to
appear evidence of actual fraud, may be sufficient to induce the court
to stay the exercise of its discretionary power to enforce a specific per-
formance, and leave a party to his remedy at law. See Powers v. Hale,
25 :N". H. 145 ; Gasque v. Small, 2 Strobh. (S. C.) Eq. 72 ; Rodman v.
Zilley, 1 N. J. Eq. 320 ; Garnett v. Macon, 2 Brock. 185 ; Viele v.
Troy, etc., P. P. Co., 21 Barb. 381 ; S. C. affirmed, 20 N. T. (6 Smith)
184. But mere inadequacy of price, unconnected with any circumstances
of unfairness, overreaching or oppression, and where the parties stand
on equal ground, with equal means of information, and without any
artifice practiced, is no objection to the specific performance of a con-
tract. Id.'; STiei:>lierd v. Bemn, 9 Gill (Md.), 32 ; Harrison v. Town,
IT Mo. 237 ; Galloway v. Barr, 12 Ohio, 354. And the doctrine that
equity will not decree specific performance of a contract, where there
is great inadequacy of consideration, does not apply to the case where
A purchases jDroperty of B at a low price, and agrees to give the children
of B the benefit of it, on being repaid the purchase-money and interest.
Sarter v. Gordon, 2 Hill's (S. C.) Ch. 121. IS^or is inadequacy of price
any objection to enforcing a sale made on execution. Pussell v. Stin-
son, 3 Hayw. (Tenn.) 1.

Excess of price over value, though considerable, if the contract is
free from imposition, is not in itself sufficient to prevent a decree for
specific performance. But where, besides the excess of price, the con-
tract is unconscientious or unreasonable, or there is an omission or mis-
take in the agreement, or there has been misrejDresentation and con-
cealment, or unfairness, though not such as to induce a court of equity
to set aside the contract, it will not lend its aid to enforce it. Cathcari
V. RoUnson, 5 Pet. (IJ. S.) 263.

Contracts in restraint of trade, to be good at law, must be foimded
in a valuable consideration, they must be reasonable and must impose
no general restraint on trade and industry. The presumption of equity
is that such contracts are bad ; and although good at law, wherever the
terms be at all hard or even complex, equity will not enforce them.
Keeler v. Taylor, 53 Penn. St. 467.

An antecedent debt of the husband is not a sufficient consideration
for the wife's agreement to convey, to support a bill for specific per-
formance. Bayler v. Cowmonwealth, 40 Penn. St. 37.

§ 12. Mutuality of coulract. It may be stated generally, that the
contract or agi-eement sought to be enforced must be mutual, and the

788 SPECIFIC PEEFORMANCE.

tie reciprocal, or a. court of equity will not enforce a performance.
Beard v. Linthioum^ 1 Md. Cli. 345 ; Bodine v. Glading, 21 Penn.
St. 50 ; Ohio v. Bmim, 6 Ohio, 383 ; Marble Co. v. Eipley, 10 Wall.
359 ; Ewiiis v. Gordon, 49 N. H. 444 ; Tarr v. Scott, 4 Brewst. (Penn.)
49 ; Moore v. Fitz Randobpli, 6 Leigh (Va.), 175 ; Luse v. Deitz, 46
Iowa, 205. It is, therefore, always an answer to a bill for specific per-
formance of an agreement by one party, that if the defendant were to
seek performance of the same agreement against the plaintiff, he could
not obtain it ; both parties must be bound, otherwise there can be no
valid agreement. Id. ; Hills v. Croll, 2 Phil. Ch. 62 ; Gervais v. Ed-
wards, 2 Dr. & Warr. 80 ; Kimberley v. Jennings, 6 Sim. 340. But
the condition of mutuality is, in general, sufficiently satisfied if there
be a/ny consideration on the one side as well as the other (see Coles v.
Trecoihick, 9 Yes. 246), and the court does not insist that the mutual-
ity should have existed at the time of the contract being entered into ;
it is sufficient if it exists where the case is brought before it for decis-
ion, and on this ground, if a party contracting to sell can acquire a
title before the hearing, it is sufficient. Hoggart v. Scott, 1 Russ. &
M. 293 ; Chamberlain v. Lee, 10 Sim. 444 ; Salisbury v. Hatcher, 2
Y. & Coll. (C. C.) 54. And see 2 Lead. Cas. Eq. (4th Am. ed.) 1078.

It is held that a court of equity, in actions for the specific perform-
ance of optional contracts, and covenants to lease or convey lands, will
enforce the covenant, although the remedy is not mutual, provided it
is shown to have been made upon a fair consideration ; and where it
forms part of a contract, lease or agreement, that may be the true con-
sideration for it. Schroeder v. Gemeinder, 10 l^ev. 355. See, also,
HawraZty v. Warren, 18 N. J. Eq. 124.

So, it is held not to be necessary to the specific performance of a
written agreement that it should be signed by the party seeking to en-
force it ; if the agreement is certain, fair and just in all its parts, and
signed by the party sought to be charged, that is sufficient ; the want
of mutuality is no objection to its enforcement. White v, Schuyler, 31
How. (N. Y.) 38; S.' C, 1 Abb. Pr. (N. S.) 300; Justice y. Lang,
42 N. Y. (3 Hand) 493 ; S. C, 1 Am. Rep. 576 ; Butler v. Thor)i-
son, 92 U. S. (2 Otto) 412 ; Smith v. Fleck's Appeal, 69 Penn. St.
474; Gn^n y . Richards, 23 N. J. Eq. 32; Rogers v. Saunders, 16
Me. 92. But see Jones v. Noble, 3 Bush (Ky.), 694 ; Duvall v. Myers,
2Md. Ch. 401.

§ 13. Certainty. See ante, 775, § 2. The contract which is sought to
be specifically executed must not only be proved {Allen v. Wehb, 64
111. 342), but the terms of it must be so precise as that neither party
could reasonably misunderstand them If the contract is vague or un-

SPECIFIC PEKFORMANCE. 789

certain, or the evidence to establish it is insufficient, a court of equity
will not exercise its extraordinary jurisdiction to enforce it, but will
leave the party to his legal remedy. Lokerson v. Still/well^ 13 N. J.
Eq. 357 ; Minium v. Baylis, 33 Cal. 129 ; Reese v. Reesey 41 Md.
554 ; Wright v. Wright, 31 Mich. 380 ; Stanton v. Mille^r, 58 N. Y.
(13 Sick.) 192 ; Bowman v. Cunningham, 78 111. 48 ; Mastin v. Hal-
ley, 61 Mo. 196; Odell v. Morin, 5 Oreg. 96; Shropshire v. Brown,
45 Ga. 175. A contract for the sale of lands cannot be enforced by a
bill for specific performance, unless the parties have described and iden-
tified the particular tract, or the contract furnishes the means of iden-
tifying with certainty the land to be conveyed. Camden, etc., R. R.
Co. V. Stewart, IS X. J. Eq. 489 ; Capps v. Jlolt, 5 Jones' (N. C.) Eq.
153 ; Jordmi v. Beaton, 23 Ark. 704 ; Patrick v. Horton, 3 W. Ya.
23 ; J(yrdaM v. Fay, 40 Me. 130. Nor will equity enforce an incom-
plete contract, but will leave the parties to the remedy at law. Mc-
Kibhin v. Brown, 14 N. J. Eq. 13 ; Southern Ins. Co. v. Cole, 4 Fla.
359 ; Hammer v. McEldowny, 46 Penn. St. 334 ; Madox v. M^ Quean,
3 A. K. Marsh. (Ky.) 400. If an agreement is entered into by two
parties, neither of whom understands its full effects, on the ground of
mistake and surprise, the court will not only refuse to enforce the
agreement, but will set aside the contract when executed and not leave
the parties to the law. Willan v. Willan, 16 Yes. 72.

So where a contract is, as to any part of the lands a conveyance
whereof is sought to be enforced, uncertain and incapable of being
rendered certain, it will not be enforced. Kor can the contract as to
such part be rejected as immaterial and performance be ordered of
the residue, with compensation. King v. Ruckman, 20 N. J. Eq. 316.

A resolution of the board of directors of a company, " that two
acres be sold," is too vague and uncertain on its face to authorize a
court of equity to decree the specific performance of a sale. Carr v.
Passaic Land, etc., Co., 22 X. J. Eq. 85. See, also. Hammer v.
McEldowney, 46 Penn. St. 334. But a specific performance of a con-
tract will not be refused because, in the description of the land, it omit-
ted to state the town in which it hes, where the description is other-
wise rendered definite. Robeson v. Harnhaker, 3 N. J. Eq. 60. And
where land intended to be designated in a contract to convey, not
described with sufficient certainty, can be identified by parol evidence,
the contract may be enforced. Waring v. Ayi^es, 40 N. Y. (1 Hand)
357. See, also, Colerick v. Hooper, 3 Ind. 316.

But courts of equity will not ordinaj-ily compel the specific perform-
ance of a contract with variations or additions, or new terms to be made
And introduced into it by parol evidence. In such a case, the attempt

790 SPECIFIC PERFOEMANCE.

is to enforce a contract, partly in writing and partly by parol, and
courts of equity deem the writing to be higher proof of the real inten-
tions of the party than any parol proof can generally be, independently
of the objection which arises under the statute of frauds. Whiteaker
V. YoAischoiack, 5 Oreg. 113.

Wliere a covenant in a lease is so ambiguous and doubtful that it is
difficult to decide what its real meaning may be, an action will not lie
to compel its specific performance. Buckmaster v. Thompson, 36 IST.
Y. (9 Tiff.) 558. Nor will a court of equity decree a specific perform-
ance of a contract to give a lease which does not specify the term for
which it is to be given. Myers v. Forbes, 24 Md. 598. So, an agree-
ment to renew a lease for as much as any one else would pay, with option
on the part of the lessee to accept or refuse the lease, is wanting in cer-
tainty and mutuality, and therefore does not merit the interposition of
a court of equity to enforce it. Gelston v. Sigmund, 27 id. 334.

The certainty as to the terms of a contract may be made to depend
upon the opinion of third parties as arbitrators ; and as we have seen
{ante, 772, art. 1, § 7), a court of equity will decree specific performance
of an award as well as of any other agreement. See, also, Kingsley v.
Young, 17 Yes. 469. But where, by an agreement for the sale of land,
the price was to be afterward ascertained and fixed by the parties, and
one of them died before the price had been fixed by them, it was held
that the agreement was too incomplete and uncertain to be specifically
enforced in equity. Graham v. Call, 5 Munf. (Ya.) 396. See, also,
Baler v. Glass, 6 id. 212.

It is held that the specific performance of a contract, embodied in a
letter, will not be awarded against another person than the signer, with-
out clear proof that the letter was in fact intended as the letter of the
defendant. Proof that the defendant knew of its being written, and
assented to it, as the letter of the signer, and not as his own, is not
enough. Bickett v. White, 27 Ohio St. 405.

In the construction of agreements, equity follows the law. The
court is bound by the construction which the language receives from a
court of law, and it is not bound to find an equitable effect for a clause,
merely because the construction which a court of law has put upon it
could leave it inoperative. Browne v. Warner, 14 Yes. 156 ; Ball v.
Storie, 1 Sim. & Stu. 213 ; lloltzaxjffel v. Baker, 18 Yes. 115.

§ 14. Contract must be proved or admitted. It is a well-estab-
lished principle, that all agreements, in order to be executed in a court
of equity, must l)e proved in such manner as the law requires. Lord
WalpoU V. Lord Orford, 3 Yes. 402, 420 ; Allen v. Well, 64 111. 342.
Agreements relating to land must, in order to be valid at law accord-

SPECIFIC PEEFORMANCE. 791

ing to the statute of frauds, be in writing, and signed by the party.
See art. 3, post, 797. Equity always refused to perform such agreements,
unless proved by written evidence. But agreements respecting person-
alty were binding at law, though not in writing, and were valid in
equity. As to the effect of the statute of frauds upon the latter agree-
ments, see ante, tit. Sales. And it may be observed generally in this
connection, that equity does not only admit the proof of positive agree-
ments in terms, as an agreement to do, or not to do, a particular thing,
but it also considers an agreement as sufficiently proved by the produc-
tion of what, although not amounting to an agreement in terms, yet is
evidence that the parties came to an agreement. Equity, which adverts
to the substantial object of all contracts, independent of the forms which
they assume, gives effect to the intent of the parties. See Yol. 3, 1 87,
et seq.

§ 15. Contract must be reasonable. Courts of equity have always
exercised the discretion of withholding their assistance from the per-
formance of unreasonable agreements. Wood v. Griffith, 1 Swanst.
43. See, also, Duke of Bedford v. Trustees, etc., 2 Myl. & K. 552 ;
Ryan v. Daniel, 1 Y, & Col. C. C. 60. Or, if the enforcement of the
contract will be attended with great hardship or manifest injustice, the
court will refuse its aid. Conover v. War dell, 20 N. J. Eq. 273 ;
Pluminer v. Kepjpler, 26 id. 481 ; Weise^s Apjyeal, 72 Penn. St. 353 .
The principle upon which the rule of not performing an unreasonable
agreement is founded, seems to be, that it is impossible to conceive a
man intentionally entering into such an agreement. See Pearce v.
Piper, 17 Yes. 1 ; Willan v. Wlllan, 16 id. 216.

§ 16. Court will not vary terms of contract. The agreement
between the parties is substantially to be performed, and courts of
equity have no more jurisdiction than courts of law, to vary the express
agreement between the parties. Equity "svill not therefore interfere,
unless it can secure substantially what each party contracted for. If a
vendor, during the negotiation of a purchase, materially alters the
nature of the property, as by cutting down ornamental trees, and com-
mitting equitaljle waste, he cannot compel a specific performance in
equity, any more than he can recover in an action at law ; but if the
injury done is one completely to be compensated by an abatement of
the purchase-money, it will not in equity, although it will at law, be a
bar to his claim. Batt. Specif. Perf. 298. And see Stoddart v. Smith, 5
Binn. (Penn.) 355; Foley v. Crow, 37 Md. 51; am,te, 778, §§ 4, 5. Where
a party has entered into a contract for the sale of more property than
he has, the purchaser, if he tliinks fit to accept that which it is in the
power of the vendor to give, is entitled to a performance to that extent.

792 SPECIFIC PEKFORMANCE.

Graham v. Olwer, 3 Beav. 124. See Jacohs v. Locke, 2 Ired. (N. C.)
Eq. 286 ; Stockton v. Union Oil Co., 4 W. Va. 273. So, if an agree-
ment is made for the sale of an estate, the vendor cannot compel the
purchaser to take the estate, unless the title be sound. See ante, 778, § 5.
But if the purchaser chooses to take such a title as the vendor can give
him, the vendor cannot object that he could not have forced such a
title upon him. The vendor must have known the circumstances of
the case, and is bound to fulfill his engagement. Erwin v. Meyers, 46
Penn. St. 96 ; Mortlock v. Buller, 10 Yes. 315 ; Waters v. Travis, 9
Johns. 464. See a/nte, 779, § 6.

In all cases of covenants, a court of equity, on application to have
them decreed in specie, considers what was the intention of the parties
covenanting, and if that was, that they should rely upon the security
of the covenant only, the court will not alter the security agreed to
be accepted of, or vary the remedy. To do so would be going beyond,
and consequently against, the intent of the parties. Brough v. Oddy,

I Russ. & Myl. 55 ; Warrington v. Langham, cited 1 P. Wms. 107.
A decree for a specific performance cannot be made where a contract

in writing, which is an absolute obligation for the payment of money,
is sought to be varied, to make out a case proper for such a decree, by
parol proof of a contemporaneous understanding and agreement, in the
absence of any pretense of fraud, accident or mistake. Rittenhouse v.
Tomlinson, 27 N. J. Eq. 379. See Park v. Johnson, 4 Allen, 259 ;
Mmmds' A2)peal, 59 Penn. St. 220; Tucker v. Madden, 44 Me.
206 ; Chajypell v. Gregory, 34 Beav. 250 ; Walters v. Morgan, 3 De
G., F. & J. 725.

§ 17. Tendor not compelled to perform a dlflferent contract.
We have seen from the preceding sections that, if the vendor contracts
to sell an estate, and the title to a part of it fails, the vendee may
claim a specific performance of the contract, as to that part of the land
to which the vendor can give him a title, and for a compensation in
damages as to the part of the land to which the title fails. A court of
equity will not, however, make a contract for the parties by compelling
the vendor to do what he did not agree to, because he cannot do as he
agreed. See J/o/'^.s' v. Elmend<yrf, 11 Paige, 277; Bailey \. James,

II Gratt. 468 ; Clay'Tce v. Reins, 12 id. 98; Claj-h v. Seirer, 7 Watts,
107 ; 2 Lead. Cas. E(i. (4th Am. ed.) 1149. Thus, wliere a husband,
or a husband and wife, enter into a contract for the sale of the wife's
land, with which she refuses to comply, he will not be directed to per-
form an imjx)ssibility by executing the contract, nor will he be com-
pelled to convey his life estate, and take a corresponding proportion of
the purchase- irioney. Id. ; Young v. Paul, 2 Stockt. (N. J.) Ch. 402.

SPECIFIC PERFORMANCE. 793

And it is a well-settled doctrine in Pennsylvania, that specific perform-
ance of an agreement to sell real estate will not be decreed against a
vendor who is a married man, and whose wife refuses to join in the
conveyance so as to bar her dower, unless, indeed, the vendee is willing
to pay the full purchase-money, and accept the deed of the vendor with-
out his wife joining. Burkes Appeal, 75 Penn. St. 141 ; S. C, 15 Am.
Rep. 587. And see Hawralty v. Warren, 18 N. J. Eq. 124. The
right of dower of the "svidow is said to be of such a contingent nature,
depending as it does as well upon her surviving her husband, as on her
continuance in life after his death, that no abatement in the price can
be made which will be just to both parties, without in effect making a
new contract for them ; a contract which, perhaps in the first instance,
neither party would have come into, certainly not the vendor. Riesz^s
Ajypeal, 73 Penn. St. 485.

§ 18. Assignee of contract. If A should enter into a contract with
B, and B should afterward assign the contract to a third person, no
action at law could be maintained by such assignee against A, or by A
against such assignee, on the contract. But a bill in equity might be sus-
tained by either of them against the other, to enforce a specific execu-
tion of the contract, in the same manner, and under the same circum-
stances, as such a bill could be sustained between the immediate parties
to the contract. See 1 Story's Eq. Jur., § 783 ; Duke of Chandos v.
Talbot, 2 P. Wms. 601, 608 ; Champion v. Brown, 6 Johns. Ch. 398,
402 ; AshUij v. Ashley, 3 Sim. 149.

So, it is well settled, that if A enters into a contract in writing to sell
land to B and afterward refuses to perform his contract, and sells the
land to C, for a valuable consideration, B may, by a bill in equity, com-
pel the purchaser to convey to him, provided he be chargeable with
notice, at the time of his purchase, of B's equitable title under the agree-
ment. Atcherley v. Vernon, 10 Mod. 518 ; Domiels v. Damson, 16
Yes. 249 ; Potter v. Sanders, 6 Hare, 1 ; Foss v. Haynes, 31 Me. 89 ;
Haughwout v. Murphy, 22 N. J. Eq. 531 ; Tenney v. State BoAik, 20
Wis. 152 ; Smoot v. Rea, 19 Md. 398. The rule that affects the pur-
chaser is just as plain as that which would entitle the vendee to a spe-
cific performance against the vendor. If he be a purchaser, with notice,
he is liable to the same equity, stands in liis place, and is bound to do
that which the person he represents would be bound to do by the
decree. Champion v. Brown, 6 Johns. Ch. 398. See, also, Terrett v.
CowenJioven, 11 Hun (N. Y.), 320.

§ 19. Fairness and good faith. It is a well-established doctrine of
equity, that those contracts only, which are fair, just and reasonable,
will be specifically enforced. If the court finds the contract unfair,

T94 SPECIFIC PERFOEMANCE.

unjust, inequitable, or unconscionable, on account of the inadequacy of
the consideration or any other cause, it will not execute the contract.
Andrews v. Andrews, 28 Ala. 432 ; Smith v. Wood, 12 Wis. 382 ;
Stoutenburgh v. Tompkins, 9 N. J. Eq. 332 ; McCarty v. Kyle, 4 Coldw.
(Tenn.) 348 ; Daniel v. Frazer, 40 Miss. 507 ; Smith v. Orandall, 20
Md. 482 ; Cannaday v. Shepard, 2 Jones' (N. C.) Eq. 224 ; Farr v.
Gladding, 1 Phil. (Penn.) 372 ; Frishj v. Ballance, 5 111. 287. Nor
will the specific performance of a contract be enforced, unless the party
seeking it shows that he has acted in good faith. Conrad v. Lindley,
2 Cal. 173. And where there is any thing, by reason of the change of
circumstances in regard to the property, that makes it unconscionable
that the party should have execution of the contract, a court of equity
will withhold its aid. Mortlock v. Buller, 10 Yes. 292 ; Iglehart v.
Vail, 73 111. 63 ; Ferhins v. Wright, 3 Har. & M. (Md.) 324. But
fluctuations in the value of property, caused by events subsequent to
the making of the contract, wiU not be regarded by the court, if the
contract is fairly entered into at the time. Low v. Treadwell, 12 Me.
441. See, also, Morrison v. Feay, 21 Ark. 110. And in general, if
a contract is fairly made and without mistake, by competent parties,
upon good consideration, and unattended with any circumstances which
make its enforcement inequitable, a mere naked hardness of bargain is
no valid objection to its enforcement in equity. Id.

It has been held that the intoxication of the buyer at the time of the
sale will not be ground for refusing to enforce specific performance of
the contract against him, unless it appears that his intoxication was pro-
duced or procured by the vendor, or that undue advantage was taken
of it. Whitesides v. Greenlee, 2 Dev. (N. C.) Eq. 152 ; Maxwell v.
Fittinger, 3 N. J. Eq. 156. See a/nte, 785, § 10.

§ 20. Fraud and misrepresentation. A court of equity will give
no relief to a party who has been guilty of any fraud or misrepresenta-
tion ; his conduct must be free from any imputation. Cadmo/n v. Hor-
ner, 18 Yes. 10. The principle on which the performance of an agree-
ment is compelled requires that it must be clear of the imputation of
any deception. The conduct of the person seeking it must be free from
all blame ; and misrepresentation, even as to a small part only, prevents
him from applying to a court of equity for relief. Clermont v. TojS-
Imrgh, 1 Jac. & W. 112; Fearson v. Knapp, 1 Myl. & K. 312; East-
mam, V. Flurner, 46 N. H. 464 ; Bradbury v. White, 19 N. J. Eq. 391 ;
Clement v. Reid, 17 Miss. 535. If an agreement for a lease has been
obtained by a studious, artful, and fraudulent concealment of the real
purposes of the lessee, which he knew the lessor would not have granted,
except under the effect of that conceahnent, the performance of the

SPECIFIC PEKFOEMAKCE. 795

agreement will not be specifically enforced. Bonnett v. Sadler, 14 Yes,
525. So, it is held that if a vendee fraudulently misrepresents to the
vendor the value of wild lands which the vendor, as the vendee well
knows, has not seen for many years, the contract so induced is void,
and specific performance will not be decreed. Kelley v. Sheldon, 8
"Wis. 258. So, if the purchaser of lands induces the vendor to sell, by
misrepresenting his means of payment, and is guilty of gross negli-
gence, in failing to perform his part of the contract, a court of equity
will not decree specific performance in his favor. Fuller v. Perkins^
7 Ohio (Part 11), 196. And where a bidder at an auction sale en-
tered into an agreement with B, a bystander intending to bid, that
if B would not bid against him, he would divide the land with B,
it was held to be a fraud upon the vendor, and that a court of equity
would not enforce the contract against him. WhitaJcer v. Bond, 63
N. C. 290.

But an intention to deceive, and a false statement, even on a ma-
terial point, will not overthrow a bargain, unless the statement was
the means of producing it. Phipjps v. Buckman, 30 Penn. St. 401.
And see Stoutenburgh v. Tompkins, 9 ^. J. Eq. 332.

A vendee in a contract for the sale of land is not bound to know
what land is contained in the description in his contract or deed, and
fraud may be predicated upon representations that the description cov-
ers lands not actually included therein. Wiswall v. Hall, 3 Paige, 313.
And it is held that where the vendee, induced by such fraudulent mis-
representations, accepts a conveyance, not including all the lands orally
agreed to be conveyed, and pays the consideration and enters into pos-
session, the statute of frauds is not a bar to an action to compel a spe-
cific performance of the oral agreement ; and, although no improve-
ments have been made by him upon the lands not included in the
deed, he is not confined to relief in damages, but may have specific
performance. Beardsley v. Duntley, 69 X. T. (24 Sick.) 577. But
see Glass v. Eulhert, 102 Mass. 24 ; S. C, 3 Am. Kep. 418.

Wliere a young man, lately become of age, sold land, of the value of
which he was ignorant, to a person who knew the value, and who im-
portuned hiin to sell, the court refused to decree specific performance
of the contract, leaving the purchaser to his remedy at law. ClitheraU
V. Ogilvie, 1 Desau. (S. C.) 250.

§ 21. Mistake/ A court of equity will refuse to enforce a contract
which was entered into under a common mistake {James v. State
Bank, 17 Ala. 69; Quick v. Stuyvesant, 2 Paige, 84; Spurr v. Ben-
edict, 99 Mass. 466 ; Morganthau v. White, 1 Sweeny [N. Y.], 395 f
GUroy v. Alis, 22 Iowa, 1 74 ; Alvanley v. Kinnaird, 2 Mac. <fe G. 7 ;

796 SPECIFIC PERFORMANCE.

Cochrane v. Willis, L. R., 1 Ch. App. 58), or, in many cases, a mistake
only by the defendant. Ha/rnett v. Yielding, 2 Sch. & Lef. 549 ; Swaia-
Imid V. Dearsley, 29 Beav. 430 ; Pendleton v. Dalton, Phill. (N. C.) Eq.
119 ; Greer v. Boone, 5 B. Monr. (Ky.) 554. And not only so, but if
an agreement is entered into by two parties, neither of whom under-
stands its full effects, on the ground of mistake and surprise, the court
will not only refuse to enforce the agreement, but will set aside the con-
tract when executed, and not leave the parties to law. Willan v. Wil-
lan, 16 Yes. 72 ; CalverUy v. WilUaim, 1 id. 210. A defendant may
show that, without gross laches of his own, he was led into a mistake
by any uncertainty or obscurity in the descriptive part of the agree-
ment, so that it applied to a different subject from what he understood
at the time, although he was not misled by any misrepresentation of
the other party. Western R. R. Co. v. Bahcock, 6 Mete. (Mass.) 346.
But if a party enters into an agreement, and signs it, he will not be
permitted to say that he did not know what he was signing. One who
commits a mistake, because he does not exercise the ordinary diligence
which the law requires, will be bound, notwithstanding the mistake.
DuU of Beaufort v. Neeld, 12 CI. & Fin. 248.

"Where the vendor made a 'bona fide mistake as to the authority
which he had given to the auctioneer, and the property was knocked
down at a less sum than he had intended to accept, specific perform-
ance was refused. Day v. Wells, 30 Beav. 220. But it is held that a
mistake as to the legal consequences of an act {Powell v. Smith, L. R.,
14 Jlq, 85 ; 3 Eng. R. 654 , or a mere inadvertent omission to insert
an intended term in the contract {Parher v. Taswell, 2 DeG. & J.
559), or a mistake as to the purposes for which the property may be
used {Mildmay v. Hungerford, 2 Vern. 243), is an insufficient ground
of defense. 2 Chit, on Cont. (11th Am. cd.) 1474. See Patterson
v. Bloomer, 35 Conn. 57.

Land was conveyed under a mistake of both parties as to the bound-
aries, whereby a house intended to be conveyed was not conveyed and
the ])urchaser demanded a deduction of the value of the house before
paying the second note for the purchase-money, and it was held that
he was entitled to an account of the proper deduction and to specific
performance, and that the vendor had no right to declare a forfeiture,
or to re-enter or resell. Austin v. Ewell, 25 Tex. 403. And see
White V. Williams, 48 N. Y. (3 Sick.) 344.

§ 22. Effect of waiver, release, novation, etc. If a purchaser
haa waived his riglit to abandon a contract, it may be enforced against
him. Pugh v. CJiesseldiMe, 11 Ohio, 109. So, where the proof of
the cancellation of a contract is not clear and satisfactory, a court of

SPECIFIC PEKFORMANCE. 797

equity will decree the specific performance thereof. Fleming v.
Duncan, Sneed (Kj.), 325.

A written contract cannot, either at law or in equity, be waived or
discharged by parol, but when one party, by a parol waiver or dis-
charge, induces the other to enter into engagements inconsistent with its
performance, the remedy by specific performance will be barred, pro-
vided the waiver be explicit and clearly proved. Stevens v. Cooper, 1
Johns. Ch. 429 ; Ilnffman v. Humnier, 18 N.J. Eq. 83 ; Boyce v.
McCulloch, 3 "Watts & Serg. 429. Nor will equity compel a specific
performance where the parties have, upon default of one party, agreed
by parol to rescind the contract. Attwux v. Romans, 25 How. 427.

To sustain the allegation by the vendee, that the contract had been
abandoned by the vendor, he ought to show that the conduct of the
vendor was such as to justify a reasonable man in behevdng that he
acquiesced in the decision of the vendee to abandon the contract. It
ought to be such as might reasonably influence the conduct of the
vendee and induce him to regulate his own affairs on the presumption
that it was no longer incumbered by his contract. Garnett v. Ma,con,
2 Brock. 185.

§ 23. Contract affects those only who claim under its parties.
An agreement is deemed equivalent to an actual conveyance only as
between the parties themselves and their representatives, and not as to
third parties. See Wood v. White, 4 Myl. & Cr. 460 ; Corder v.
Morgan, 18 Yes. 344. Thus, when a bill for specific performance is
filed by a person who has contracted to purchase the absolute legal and
equitable interest in a mortgaged estate from the supposed owner of
the equity of redemption, neither the mortgagee nor a person who
claims an interest in the equity of redemption, but has not joined in
the contract, can be made a defendant. And the circumstance that
the mortgagee does not object to being made a party, but requires the
sanction of the person so claiming an interest in the equity of redemp-
tion before joining in the conveyance, does not make that person a
proper party. Tasker v. Small, 3 Myl. &: Cr. 63. See, also, Long v.
Bowling, 33 Beav. 585. And see ^o*^, 816, Art. 6.

ARTICLE III.

EFFECT OF THE STATUTE OF FRAUDS.

Section 1. Written contract or memorandum. The provisions
of the statute of frauds which require contracts respecting lands to be
in writing, are equally binding on courts of equity as courts of law.

798 SPECIFIC PERFORMANCE.

Nevertheless, courts of equity have, in many instances, relaxed the
rigid requirements of the statute, but this has always been done for the
pm'pose of administering equities subservient to its true objects or col-
lateral to it, and independent of it. In other words, courts of equity
interfere to hinder the statute made to prevent frauds from becoming
the instrument of fraud. Instances of such interference will be given
in the following sections.

§ 2. Requisites of writing. A contract for the sale of lands to be
within the statute of frauds and to entitle to a decree for specific per-
formance, as a general rule, must be evidenced by writing. Skipwith
V. Bodd, 24 Miss. 487 ; Patterson v. Yeaton, 47 Me. 308 ; Blair v.
Snodgrass, 1 Sueed (Tenn.), 1. And a contract for the exchange of
lands is as much witliin the statute as a contract for their sale, and a
party seeking to enforce the specific execution of such a contract must
bring himself within the same conditions before he can invoke the aid
of a court of equity. Purcell v. Miner, 4 Wall. 513. But any mem-
orandum in writing, indicative of the intent of the parties, and so
precise as to enable the inquirer to ascertain the terms of the contract,
the land to be conveyed and the price to be paid for it, is a sufficient
contract in writing to be enforced specifically. Cathcart v. Robinson,
5 Pet. 264 ; McFarson's Appeal, 11 Penn. St. 503. Thus, a corre-
spondence by letters, which reasonably import a conclusion, has been
sustained as an agreement. Huddleston v. Briscoe, 11 Yes. 591.
And this, though the person did not intend to be bound ( Welford v.
Beezely, 1 Yes. Sr. 8} ; or looked to the execution of a more formal
instrument. Fowle v. Freeman, 9 id. 351. But, unless the whole
contract appears in the writing or writings, without the aid of oral testi-
mony, is it within the statute and specific performance will not be
decreed. Clinan v. Cooh, 1 Scho. & Lef. 32 ; Patton v. Develin, 2 Phil.
(Penn.) 103 ; Blair v. Snodgrass, 1 Sneed (Tenn.), 1 ; Hyde v. Cooper,
13 Ricli. (S. C.) Eq. 250. And it is held that an agreement not exe-
cuted will not be specifically enforced, even though the non-execution
was by reason of the fraudulent interference of one of the parties in
interest. Gilhert v. Trustees, etc., 12 N. J. Eq. ISO.

§ 3. Dispeusing with writing. Although a contract may be void
under the statute of frauds, yet, if the conduct of the party setting up
the invalidity has been such as to raise an equity outside of, and inde-
pendent of the contract, and nothing else will be adequate satisfaction
of such equity, a court of e({uity will sustain the contract, notwith-
standing its invalidity under the statute. Hunt v. Turner, 9 Tex.
385.

And it is held to be no infringement of the pohcy of the statute of

SPECIFIC PEEFOKMANCE. Y99

frauds, to decree the specific performance of a contract within the
statute not m writing, where an agreement fully set forth in the bill is
admitted, and the statute is not relied on as a bar. Woods v. Bille, 11
Ohio, 455; Baker v. Hollohaugh, 15 Ark. 322; Artz v. Grove, 21
Md. 456 ; Houser v. Lamont, 55 Penn. St. 311 ; Kirhsey v. Kirksey,
30 Ga. 156 ; Attorney- General v. Sitwell, 1 Younge & Coll. 583. But
although the answer confesses the parol agreement, if it insists by way
of defense upon the protection of the statute, the defense must prevail
as a competent bar. Blagden v. Bradhear, 12 Yes. 471 ; 1 Story's Eq.
Jur., § 757; LuckettY. Williamson, 37 Mo. 388.

§ 4. Effect of performance or payment of price. It may now be
deemed the settled doctrine, that a com't of equity will enforce the specific
performance of a contract within the statute, not in writing, where the
party seeking to enforce it has executed the agreement fully on his part,
and where it is inferable from the circumstances that the party refus-
ing to perform designed to pei-petrate a fraud, which, if a specific
performance were not decreed, he might be able to accomplish. J'an-
nin V. McMidlen, 2 Abb. Pr. (X.S.) 224. The contract being fully exe-
cuted by one party, equity demands that the other shall be compelled
to perform his part of it. Walker v. Walker, '2i Atk. 100 ; Morrill
V. Cooper, 65 Barb. 512. And see Wheeler v. Reynolds, ^^ 'B. Y. (21
Sick.) 227. A parol agreement by the mortgagee to release the mort-
gor from his personal liability, if he wiU convey the lands to a third
person, may be enforced by the mortgagor after performance on his part.
Coyle V. Davis, 20 Wis. 564. And where an agreement for the settle-
ment of a family controversy has been executed on one side, equity
will compel its execution on the other, although it is a parol agreement
and \vithin the statute. Watkins v. Watkins, 24 Ga. 402. See, also,
Watson V. Mohan, 20 lud. 223. It has, however, been held, that pay-
ment of the purchase-money alone is not such a part performance as
to take a contract out of the statute of frauds. Cole v. Potts, 10 N.
J. Eq. 67 ; Cuppy v. Hixon, 29 Ind. 522 ; JacJcson^s Assignees v.
Outright, 5 Munf. (Ya.) 31S. And see 1 Story's Eq. Jur., § 760.

§ 5. Effect of part performance. It is clear that a court of equity
will, under some circumstances, decree a specific performance of a parol
contract, where there has been a part performance {Brashier v. Gratz,
6 Wheat. 528) ; and especially when the contract has been in part per-
formed in such a manner that a refusal would be a fraud on the other
party. Eyre v. Eyre, 19 N. J. Eq. 102. And indeed the modern rule
is stated to be, that nothing is to be considered as a part performance
which does not put the party into a situation which is a fraud upon him
unless the agreement is fully performed. Temple v. Johnson, 71 IlL

800 SPECIFIC PEKFORMANCE.

13. See, also, Ham v, Goodrich, 33 IST. H. 32 ; Brewer v. Brewer,
19 Ala. 481 ; Dickerson v. Chrisman, 28 Mo. 134 ; Hcmiilton v. Jones^ 3
Gill & J. (Md.) 127 ; Nye v. Taggart, 40 Vt. 295 ; Green v. Finin, 35
Conn. 178. And to authorize a decree for the specific performance of
a parol agreement within the statute on the ground of part perform-
ance, it is indispensable, not only that the acts wliich are alleged to be
in part performance, but the contract itself as stated in the bill, should
be established b}'^ clear and definite proof. Smith v. Crandall, 20 Md.
482; Bunton v. Smith, 40 N. H. 352 ; Petrick v. Ashcroft, 19 N". J.
Eq. 339 ; Gosse v. Jones, 73 111. 508 ; Purcell v. Miner, 4 Wall. 513 ;
Wheeler v. Reynolds, m N. Y. (21 Sick.) 227.

A partial payment of the purchase-money will not take a case out of
the operation of the statute, because the legislature having said that it
should have that effect in the case of goods, and having omitted to say
so in respect to lands, it is to be inferred that they meant that a par-
tial payment should not make the contract binding in the case of lands.
Clinan v. Coolie, 1 Sch. & Lefr. 41. See, also, Fa/nnin v. MoMullen^
2 Abb. Pr. (N. S.) 224 ; ParTce v. Leewright, 20 Mo. 85; Blanchard v.
McDougal, 6 Wis. 167. It is therefore held, that the specific perform-
ance of a verbal contract for the sale of land Mali not be enforced, un-
less it is clearly shown to have been in part performed, either by the full
payment of the purchase-money, the taking of possession, or the mak-
ing of valuable improvements. Hawkins v. Hunt, 14 111. 42 ; Lowry
v. Buffingtoyi, 6 W. Ya. 249. And see Beardsley v. Huntley, 69 N.
Y. (24 Sick.) 577. That the payment of the purchase-money alone is
not such a part performance as to take a contract out of the statute,
see Temple v. Johnson, 71 111. 13 ; Cole v. Potts, 10 N. J. Eq. 67 ;
Horn V. Ludington, 32 Wis. 73.

The courts in some of the States have declined to decree the specific
performance of parol agreements within the statute of frauds, although
there has been a part performance. See Hurit v. Roberts, 40 Me. 187 ;
Glass V. Hdlmrt, 102 Mass. 24; S. C, 3 Am. Rep. 418; McGuire
V. Stevens, 42 Miss. 724 ; S. C, 2 Am. Rep. 649 ; Allen v. Chamhers,
4lred. (N. C.) Eq. 125; Ridley v. McNairy, 2 Humph. (Tenn.) 174.

§ 6. Taking possession and making improvements. It is a well-
established doctrine, that when there has been part performance of a
parol contract for the sale of land, and the purchaser has been let into
possession and has made actual improvements, with the knowledge and
acquiescence of the vendor, the contract is not within the reason of the
statute of frauds, and a specific performance of such a contract will be
compelled. Freeman v. Freemwn, 43 N. Y. (4 Hand) 34 ; S. C, 3 Am.
Rep. 657 ; MiUer v. Ball, 64 N. Y. (1 9 Sick.) 286 ; Patterson v. Cap&-

SPECIFIC PERFOEMANCE. 801

Zaw<^, 52 How. (N. Y.) 460; Edwards v. Fry,^ Kans. 417; Bowe v.
Eogers, 32 Tex. 218 ; PecTcham v. Barlcer, 8 R. 1. 17. And it is held that
courts of equity regard the taking of possession and making improve-
ments upon the faitli of a parol contract as a substitute for the mem-
orandum required by the statute, without reference to the inquiry
whether the beneiits received by the purchaser equal or exceed the
value of the improvements put upon the land by him. Mims v. Loch-
ett, 33 Ga. 9. But the possession of the land must be connected with
the contract or sale, and in consequence and pursuance of it, and be
intended to be in execution of it {Knoll v. Harvey, 19 Wis. 99 ; Mc-
Neill v. Jones, 21 Ark. 277); it must unequivocally refer to and result
from the agreement. Rosenthal v. Freehurger, 26 Md. 75 ; Mahana v.
Blunt, 20 Iowa, 142. The mere possession of the land contracted for
will not be deemed a part performance, if it be obtained wrongfully
by the vendee, or if it be wholly independent of the contract. Id. ;
Jacobs V. Peterborough, etc., R. R. Co., 8 Cush. 224 ; Cratoford v.
WicTc, 18 Ohio St. 190. And a possession which has been abandoned,
under a parol contract for the purchase of land, is not such a part per-
formance as will authorize a decree for the specific execution of the
contract. Chambliss v. Smith, 30 Ala. 366. So where improvements
are relied on as helping to take the case out of the statute, it must dis-
tinctly appear that they were made under the contract itself. Wood
V. Thornly, 58 111. 464. And when the purchaser has been fully com-
pensated for his improvements, or has gained more by his possession than
he has expended in improvements, they will not avail him as a ground
for specific execution. O'Reilly v. Thompson, 2 Co. 271 ; Wack v.
Sorber, 4 Wheat. 387 ; Lodge v. I^everton, 42 Tex. 18. But see Mims
V. Lockett, 33 Ga. 9, cited above.

Courts of equity will specifically enforce a parol contract for the ex-
change of lands, which has been partly executed by delivery of posses-
ion and acts of ownership under it. Parrill v. McKinley, 9 Gratt.
(Ya.) 1. But it is held in Purcelly. Mirier, 4 WaU. 513, that a party
seeking to enforce the specific execution of a parol contract, either for
the sale or exchange of lands, should be held rigidly to full, satisfactory,
and indubitable proof. First. Of the contract, and of its terms. Such
proof must be clear, definite, and conclusive, and must show a contract,
leaving no jus deliberandi, or locus poeniteyitice. Second. That the
consideration has been paid or tendered. But the mere payment of the
price, in part or in whole, will not, of itself, be sufficient for the inter-
ference of a court of equity, the party having a sufficient remedy at
law to recover back the money. Third. Such a part performance of
the contract that its rescission would be a fraud on the other party,
YoL. Y.— 101

'802 SPECIFIC PEKFORMANCE.

and could not be fully compensated by the recovery of damages in a
court of law. Fourth. That delivery of possession has been made in
pursuance of the contract, and acquiesced in by the other party.
This wiU not be satisfied by proof of a scrambling and Litigious pos-
session. See, also, Ghmmley v. JSanshury, 13 Penn. St. 16 ; Phillips
V. Thompson, 1 Johns. Ch. 131 ; Price v. Salushiiry, 32 Beav. 446];
Owings v. Baldwin, 1 Md. Ch. Dec. 123 ; Lester v. Kinne, 37 Conn.
9 ; Waters v. Howard, 8 Gill (Md.), 277.

It is held that equity will enforce a verbal gift of land from a father
to his son when clearly established if it be accompanied by possession
and followed by improvements made on the strength of the gift with
the consent of the father. Willis v. Matthews, 46 Tex. 478 ; Galhraith
V. Galhraith, 5 Kans. 402. So a contract to convey a parcel of land
to a wife in consideration of her joining her husband in a deed of a
homestead, and thereby releasing her dower and homestead rights, is
held to be taken out of the statute of frauds by performance when the
deed has been fully executed and delivered. Farwell v. Johnston, 34
Mich. 342.

§ 7. Signing of contract by one party. Although, to entitle one
of the parties to a contract to a specific performance, the assent of both
to the terms of the contract must be proved, the note or memorandum
of the contract to comply with the statute of frauds need be signed
only by the party sought to be charged. Seton v. Slade, 7 Yes. 265 ;
Ives V. Hazard, 4 R. I. 14 ; Hstes v. Furlong, 59 111. 302 ; Tripp v.
Bishop, 56 Penn. St. 424. It is not, therefore, an answer to a bill for
a specific performance that the complaiaant did not sign the contract,
and might have violated it with impunity. Id. ; Old Colony R. R. Co.
V. Evans, 6 Gray, 25 ; Sams v. Fripp, 10 Rich. (S. C.) Eq. 447 ; Yas-
aault V. Edwards, 43 Cal. 458 ; Barnard v. Lee, 97 Mass. 92 ; Morim,
V. Ma/rtz, 13 Minn. 191 ; Justice y. Lang, 42 K Y. (3 Hand) 493;
S. C, 1 Am. Rep. 576; Laning y. Cole, 3 Green's (N. J.) Ch. 229";
Rogers v. Saunders, 16 Me. 92. But the opposite doctrine that the
writing must be signed by both parties seems to prevail in Kentucky.
Boucher v. Vanljushirh, 2 A. K. Marsh. 345 ; Joties v. Ndble^ 3
Bush, 694. And see Duvall v. Myers, 2 Md. Ch. 401.

ARTICLE lY.

PERFORMANCE BY COMPLAINANT.

Section 1. Performance by plaintiff. It is a general rule, not less
regarded in equity than in hiw, that one who seeks to enforce a con-

SPECIFIC PEEFORMANCE. 803

tract must show that he has fulfilled, or is ready and willing to fulfill
the contract on his part. Those who are claiming the performance of
a contract of any kind are never in a situation to do so, unless they
are themselves prepared to fulfill what they have undertaken on theu'
own part. Thorp v. PetUt, 16 N. J. Eq. 488 ; Tyler v. McCardle,
17 Miss. 230 ; Sullings v. SulMtigs, 9 Allen, 234 ; G'Kane v. Kiser,
25 Ind. 168 ; Burling v. King, Q^ Barb. 633. Thus, it is the duty of
a vendor applying for a specific execution of a contract for the sale of
land to show a perfect and complete title to the land {Beckwith v.
Kouns, 6 B. Monr. (Ky.) 222 ; Starnes v. Allison, 2 Head (Tenn.), 221 ;
Seymour v. Delancey, 6 Johns. Ch. 222) ; and a specific performance
will not be decreed at the instance of a vendor who is unprepared to
give a good title to the whole and every part of the land. Hoover v.
Calhoun, 16 Gratt. (Ya.) 109 ; Brymi v. Bead 1 Dev. & Bat. (N.
C.) Eq, 78 ; Hepburn v. Auld, 3 Cranch, 321 ; Kin^g v. Knapp, 66
Barb. 225 ; S. C. afiinned, 59 N. Y. (14 Sick.) 462. On the other
hand, specific performance will not be decreed in favor of a purchaser
unless he has paid the purchase-money due on the contract, or offers
by his bill to pay it. Doyle v. Teas, 5 111. 202 ; Thompson v. Bruen,
46 id. 125 ; Oliver v. Dix, 1 Dev. & Bat, (N. C.) Eq. 605. See, also,
Jones V. Alley, 4 Greene (Iowa), 181; Jordonx. Beaton, 23 Ark.
704 ; Cox V. Boyd, 38 Ala. 42 ; Gentry v. Rogers, 40 id. 442. And
such a decree will not be made on the presumption of payment arising
from lapse of time. Lawrence v. Ball, 14 N. Y. (4 Kern.) 477.

§ 2. When performance excused. There are certain cases in which
a full and complete performance on the part of the complainant will
be excused. In other words, the specific performance of a contract
may be decreed where there has been a substantial performance on the
part of the complainant, though not strictly according to the terms of
the contract. Shaio v. Livermore, 2 Greene (Iowa), 338 ; Hart v.
Brand, 1 A. K. Marsh. (Ky.) 159. Thus, where a vendor is unable
from any cause, not involving mala fides, on his part, to convey each
and every parcel of the land contracted to be sold, and it is apparent
that the part that cannot be conveyed is of small importance, or is
immaterial to the purchaser's enjoyment of that which may be conveyed
to hun, in such case the vendor may insist on performance with com-
pensation to the purchaser, or a proportionate abatement from the
agreed price if that has not been paid, Foley v. Crow, 37 Md. 51 ;
Stoddart v. Smith, 5 Binn. (Penn.) 355. And see ajite, 778-783, art. 2, §§
4 to 8. So, where time is not of the essence of acontract to convey land,
a specific performance will be decreed at tlie suit of the vendor, if he
can give a good title at the time of the decree, though his title was

804 SPECIFIC PERFORMANCE.

defective at the time fixed by the contract for the conveyance. SeyTiWKr
V. Delancey, 3 Cow. 445. See, also, Snowman v. Harford, 55 Me. 197 ;
Kennedy v. WolfolTc, 3 Hayw. (Tenu.) 195.

It is likewise held, that the vendor of land cannot resist a specific
performance of the contract of sale, on account of the purchaser's fail-
ure to make a cash payment as stipulated, when he accepts the payment
as subsequently made. Brassell v. MoLemore, 50 Ala. 476. So, if
the vendor stands by and suffers the vendee to make valuable improve-
ments, and does not demand a strict compliance with the terms of the
contract by the vendee, equity will deem him to have waived a strict
compHance, and upon a substantial compliance, equally favorable to
him, will decree a conveyance. Farley v. Yaughn, 11 Cal. 227. And
see Steele v. Branch, 40 Cal. 1.

"Where a^party claims specific performance of a contract, and, although
he has not wholly performed his part, is in no default as to the residue,
but cannot be placed in statu quo, he is entitled to specific performance
{Breckenridge v. Clinhinhea/rd, 2 Litt. [Ky.] 127) ; but he is not so
entitled when in default, and when, by receiving compensation for
what he has done, he may be placed in statu quo. Id. ; Larison v.
Burt, 4 Watts & Serg. 27.

§ 3. Mode of performance. Specific performance of a contract will
not be enforced in favor of a party who has not actually performed, or
cannot be compelled to perform, his part thereof. His mere offer to
perform is not sufficient. Cooper v. Pena, 21 Cal. 403. But, as already
seen in the preceding section, equity regards compensation in cases of
defective execution, if the contract can be substantially executed, as
equivalent to performance. It looks to the substance of the contract,
and does not allow small matters to interfere with it, when compensation
can be made, Kingy. Bardeau, 6 Johns. Ch. 38 ; Hanhury v. Litch-
-fkld, 2 Myl. & K. 629. But there is no case in which a different con-
tract from that made by the parties has been enforced. Philadelphia,
etc., P. P. Co. V. Lehigh Navigation Co., 36 Penn. St. 204.

Where a purchaser of land, who is seeking a specific performance by
his vendor, was bound by his contract of purchase to pay the taxes, on
the premises, instead of paying them, allows the property to go to sale
and bids it off himself, but seeks no inequitable advantage from the tax
sale, it will be regarded as an indirect mode of paying the taxes, and a
sufficient performance on his part in that respect. Oliver v. Crosiaell,
42 ni. 41.

The vendee was ready and willing to perform the contract on his
part by the payment of the purchase-money when due, but was pre-
vented by the absence of the vendor. Immediately on the return of

SPECIFIC PEKFORMAJ^CE. 805

the vendor the amount due was tendered with interest, and this was
held to be a sufficient performance of the contract on the part of the
vendee. Clark v. Sears, 3 Iowa, 104.

§ 4. Tender, when necessary. "When a vendor comes into court
to enforce the execution of a contract, he should tender a perfect and
unincmnbered title, or at all events, a title such as he contracted to con-
vey. Ex jparU Hodges, 24 Ark. 197. See, also, Irvin v. BleaMey, 67
Penn. St, 24. And it is held that a vendor who has executed a bond,
to make title upon the payment of the purchase-money, cannot main-
tain against the vendee a bill in equity for a specific performance of
the contract, or to procure a sale of the land for the payment of the
purchase-money, until he has put the vendee in default by a tender of
a deed and a demand of payment. An offer in the bill to make a deed,
and an averment of readiness at all times to make it, will not do.
Elyce V. Broyles, 37 Miss. 524 ; Arther v. Pearson, 32 id. 131. But
where the covenant is to make title upon the payment of the purchase-
money, the covenants are mutual and dependent, and neither party can
insist on performance of the contract without an offer or tender of per-
formance on his part. Eckford v. Ilalbert, 30 id. 273. So, it has been
held that although in a suit for specific performance, it is the duty of
the applicant to prepare and tender a deed, yet, his neglect to do so
will not defeat his right of action, but only his right to costs. Seeley
V. Howard, 13 Wis. 336. And see Woodson v. Scott, 1 Dana (Ky.),
470 ; Wi7ito7i v. Sherman, 20 Iowa, 295 ; Hawk v. Greensweig, 2
Penn. St. 295 ; Wells v. Smith, 7 Paige, 22. And it is not necessary
that the vendor should execute and tender a deed to the vendee, in
order to entitle him to specific performance of the contract, where he
is present at the time and place appointed for delivering it, and the
vendee then positively declines and refuses to receive a deed. Max-
well V. Pittenger, 3 N. J. Eq. 156.

As a general rule, a vendee of land, seeking to enforce a specific per-
formance by the vendor, must tender or bring into court the amount
due on the purchase-money. See ante, 802, § 1. But where the vendor
denies the obligation of the contract, attempts to rescind it, resumes
possession of the land, and is in receipt of the rents and profits thereof,
he may maintain his action without such tender. Brock v. Hidy, 13
Ohio St. 306. See, also, Deichman v. Deichman, 49 Mo. 107. And
when the making of the deed by the vendor, and the payment of part
of the price, and securing the remainder, l>y the vendee, are to be con-
current acts, if the vendor unqualifiedly refuses to carry out the con-
tract, the vendee need not tender the money and security before bring-
ing suit. Brown v. Eaton, 21 Minn. 409 ; Crary v. Smith, 2 IST. Y.

806 SPECIFIC PEKFOEMANCE.

(2 Comst.) 60 ; Turner v. Parry ^ 27 Ind. 163 ; Blewett v. Baker, 58
N. T. (13 Sick.) 611. And see Irvin v. Gregory, 13 Gray, 215.

§ 5. What is a sufficient tender. In a case of dependent cove-
nants, to pay money and to give a deed, it is only necessary to show a
readiness to pay at the time stipulated, in a proceeding for specific per-
formance. The complainant need not, after showing a tender, prove that
it has been kept good ever since. McDaneld v. Kimhrell, 3 Greene
(Iowa), 335; And see Washburn v. Deioey, 17 Vt. 92. "Where a contract
for the conveyance of real estate stipulated for the payment of the con-
sideration in three installments, after which the obligee became entitled
to a deed, it was held that the payment of the first two and the tender
of the amount of the last entitled the obligee to specific performance
of the contract. Rogers v. Taylor, 40 Iowa, 193. So, where the agree-
ment was for a conveyance upon payment of the first installment, and
for notes and a mortgage to secure the balance, it was held that a ten-
der of the first installment, without a tender of notes and a mortgage,
entitled the vendee to the deed. Parker v. McAllister, 14 Ind. 12.
And where a vendee tenders the whole amount of the purchase-money,
and the interest due on the first installment, at the time the second falls
due, and the vendor has taken no steps to release the vendee from his
liability on the contract, specific performance may be decreed in favor
of the vendee. Gihhs v. Champioii, 3 Ohio, 337.

A contract for the payment of the price of land " by the first day
of August," is a contract to pay on or before that day, and, there-
fore, a tender made on the 31st day of July is good. Pa/rker v. Mc-
Allister, 14 Ind. 12.

"Wliere it is a part of the contract for the future conveyance of land,
that the vendee shall labor for a specific period for the vendor, the
vendee cannot entitle himself to the conveyance by tendering a sum
of money, after the time fixed for the execution of the deed, as an
equivalent for the non-performance of the labor unless the perform-
ance of it was prevented by the vendor. Brewer v. Thorp, 3 Ind. 262.
See Cooper v. Pena, 21 Cal. 403. So, a tender, by a grantee, of the
purchase-money, and demand of a conveyance, after a bill filed by the
grantor for a specific performance, is a nullity. Knickerhacker v. Ha/r-
ris, 1 Paige, 209.

Where a purchaser dies before the period when, by the terms of the
contract, the first payment is to be made and possession of the land
given, a separate tender of the deed to all the heirs or devisees of the
purchaser is not necessary. It is sufficient if a deed conveying the
premises to the heirs and devisees be tendered to the executor, who
represents the testator's means of paying the purchase-money. Brink-

SPECIFIC PEKFORMANCE. 807

erhoff V. Olp, 35 Barb. 27. See Hmens v. Patterson, 43 N. Y. (4
Hand) 218.

§ 6. Effect of inability or failure of plaintiff to perform. Equity
win never, at the instance of tlie vendor, compel the purchaser to re-
ceive a partial execution of the contract {Reed v. iToe, 9 Terg. [Tenn.]
283 ; Bryan v. Reed, 1 Dev. & Bat. [N. C] Eq. 78 ; McEinny v.
Watts, 3 A. K. Marsh. [Ky.] 268) ; nor to take a title which is reason-
ably doubtful {IMtlejleld v. Tinsley, 26 Tex. 353 ; LinJcous v. Cooper,
2 W. Ya. 67 ; Swain v. Fidelity Ins. Co., 54 Penn. St. 455 ; Lowry
V. Muldrow, 8 Rich. [S. C] Eq. 241) ; nor to take land which is
involved in doubt or dispute as to boundary. Yoorhees v. DeMyer, 3
Sandf. Ch. 614. But the court will not permit a purchaser to reject a
title upon the ground that there is a bare possibility of its proving to
be imperfect. Laurens v. Lucas, 6 Rich. (S. C.) Eq. 217. And where
the uncertainty arose principally from the vaguenesa and obscurity of
proof, the court refused to dismiss the bill for a specific performance
without a further investigation. Seymour V. Delancey, Hopk. (N. Y.)
Ch. 436 ; S. C. affirmed, 5 Cow. 714. So if a purchaser is content to
take part of the land sold, because the vendor cannot make title to the
whole, he is entitled to performance as to that part, and to have an
abatement of the price. Bell v. Thompson, 34 Ala. 633 ; Wright v.
Yo^mg, 6 Wis. 127 ; Evans v. Kingsherry, 2 Rand. (Va.) 120. And
see a/nte, 778-783, Art. 2, §§ 4 to 8.

Where a vendee of land knows that, at the time of making the con-
tract, the vendoi-'s title is defective, but the vendor agrees to make a
good title by a given day, and the vendee goes into possession, and the
vendor fails to make a good title at the time appointed, whereupon the
vendee quits the possession of the land, the fact that the vendee knew,
at the time of the sale, of the defect in the vendor's title, is no ground
for compelling him to receive such title as the vendor can make. Jack-
son V. Ligon, 3 Leigh (Va.), 161.

But where the purchaser of land knew, at the time of the purchase,
that the land was subject to a pre-emption right in a third person, he
was compelled to take the title subject to the incumbrance, and without
compensation therefor, though such incumbrance was not mentioned
in the contract of sale. Winne v. Reynolds, 6 Paige, 407. And see
Riggs v. Pursell, ^^ N. Y. (21 Sick.) 193.

§ 7. When time is not of the essence of the contract. Courts
of equity do not generally view time as being of the essence of a con-
tract, unless it appears, from the terms of the contract or the conduct of
the parties, that it was the design of the parties to render it essential
Tminger v. Wdch, 22 Tex. 417 ; Walton v. Wilson, 30 Miss. 576 ;

808 SPECIFIC PEKFORMAKCE.

Pennock v. Ela, 41 1^. H. 189 ; Pritchard v. Todd, 38 Conn. 413. And
where time, place, and mode of payment are not of the essence of the con-
tract by agreement expressly made, or to be implied from the nature of
the case, performance may be decreed in favor of the party in default in
those respects. Crittenden v. Drury, 4 Wis. 205 ; Bomier v. Caldwell,
8 Mich. 463 ; Knott v. Stephens, 5 Oreg. 235 ; Brashier v. Gratz, 6
Wheat. 528; Morgan y. Scott, 26 Penn. St. 51. There is, however,
no general rule that time is not of the essence of a contract ; each case
depends upon its own circumstances. And in all cases courts of equity
wiU see to it that one party shall not be relieved against his own neg-
lect or default in performing his contract, if such relief will seriously
injure the other party. Ruckman v. King, 19 K. J. Eq. 360 ; Huhhell
V. VonSchoening, 49 N. Y. (4 Sick.) 326. Even where time is not of
the essence of a contract, one seeking specific performance after delay
in the performance of his part must show good excuse for the delay
under the circumstances. Young v. Daniels, 2 Iowa, 126 ; Ditto v.
Harding, 73 111. IIY.

§ 8. Where time is essential. Parties to a contract have a right
to make the time of its performance material, and when they have done
so, a court of equity has no power to enforce its specific performance,
when the plaintiff has failed to perform his part of it at the stipulated
time. Stow v. Russell, 36 111. 18 ; Kirby v. Harrison, 2 Ohio St. 326 ;
G' Fallon v. Kennerly, 45 Mo. 124. Such court will not at least inter-
fere, unless, by reason of mistake, or for other cause, falling within its
legitimate province, it shall see that essential justice demands the exer-
cise of its jurisdiction. Benedict v. Lynch, 1 Johns. Ch. 370 ; Potter
V. Tuttle, 22 Conn. 512 ; Quinn v. Roath, 37 id. 16 ; Baldwin v. Vam.
Vorst, 10 N. J. Eq. 577. So, time may be of the essence of a contract,
not only by the express agreement of the parties, but where the circum-
stances of the case show that such must have been their intention.
Thus, where land is the subject of a contract for sale, the fact that land
is constantly rising in value is a circumstance in favor of the presump-
tion that time is to be, and was regarded by the parties, as material.
Edwards v. Atkinson, 14 Tex. 373 ; Merritt v. Brown, 19 N. J. Eq.
286. So, if the parties stipulate that the agreement shall be void un-
less the purchase be completed on a certain day, it will be consid-
ered essential in equity. See Hudson v. Temple, 29 Beav. 536 ; Hokes
v. Lord Kihnorey, 1 DeG. & S. 444 ; Oakden v. Pike, 34 L. J. Ch.
(N. S.) 620. Where the payment of the price on a particular day was a
condition precedent to the conveyance and surrender of the possession
of the land sold, time was held to be of the essence of the contract ;
and the personal representatives of the purchaser, he having died just

SPECIFIC PERFOKMANCE. 809

before the day to pay arrived, were not allowed to have specific per-
formance, payment not having been tendered on that day. Jones v.
Nolle, 3 Bush (Ky.), 694. And see Maughlin v. Ferry, 35 Md. 352 ;
Kerr v. Purdy, 51 N. Y. (6 Sick.) 629 ; Fessler' s Appeal, 75 Penn. St.
483 ; Austin v. Tavmey, L. R., 2 Ch. App. 143 ; Brooke v. Garrod, 2
DeG. <fe J. 62. But the mere statement in the conditions of a sale that
the abstract wiU be dehvered on or before a particular day will not, it
seems, be sufficient to render the time of its delivery of the essence of
the contract. Roberts v. Berry, 3 DeG., M. tfe G. 284. And see
RibUbell V. Van Schoening, 49 K. Y. (4 Sick.) 326 ; Barnard v. Lee, 97
Mass. 92. And it has been held that the mere circumstance that the
instrument is in the ordinary form of a bond, concluding with the
clause that it shall be void in case of a breach of the condition, other-
wise remain in full force, does not necessarily make time of the essence
of the contract. Molloy v, Eagan, 7 Ir. Eq. 592 ; Jones v. Robhins, 29
Me. 351. The intention of the parties to make time an essential ele-
ment of their agreement must be unequivocally declared, or it must
appear from the fluctuating, uncertain, or perishable nature of the com-
modity, nipwell V. Knight, 1 Y. & Coll. (Exch.) 411 ; Hearne v.
Tenant, 13 Yes. 288 ; Morgan v. Herrick, 21 111. 481 ; Remington v.
Irwin, 14 Penn. St. 143. And it is a general rule, that language
which admits of a milder interpretation shall not be so construed as to
work a forfeiture. 2 Lead. Cas. Eq. (4th Am. ed.) 1129 ; Iloyt v.
Kimhall, 49 N. H. 322.

The benefit of the objection in respect of time may be waived by the
conduct of parties, notwithstanding it was originally made essential.
Webh V. Hnglies, L. R., 10 Eq. 281 ; Wells v. Maxwell, 32 Beav. 408.

When time is of the essence of the contract, and the purchaser ob-
tains a decree for specific performance, he will be entitled to compensa-
tion for the loss which he has sustained in consequence of the possession
not having been given to him according to the contract. Thus, in the
case of an agreement for the sale of a lease " with possession on the
1st of December, the rent to commence at Christmas," and through
the default of the vendor, possession was not given until the 31st of
January, it was held that the purchaser was entitled to compensa-
tion, and an inquiry was directed. Oedye v. Duke of Montrose, 26
Beav. 45. So, where the consideration consists of goods or services
which are not tendered until after the time prescribed, the purchaser
must not only show that the absolute or intrinsic value is unchanged,
but that they are worth as much to the vendor as if the contract
had been punctually fulfilled. Rider v. Gray, 10 Md. 282 ; Andrews

810 SPECIFIC PEEFORMANCE.

V. Bell^ 56 Penn. St. 343 ; Denniston v. Coquilla/rd^ 5 McLean (C. C),
253 ; 2 Lead. Cas. Eq. (4th Am. ed.) 1129.

ARTICLE Y.

EFFECT OF DELAY.

Section 1. In generaL It is the doctrine of equity that specific
performance will not be decreed in favor of a complainant who has
been giiilty of laches, either in performing his part of a contract, or
in applying to a court for relief. Each v, Williams, 4 DeC, M. &
G. 691 ; Haughwout v. Murphy, 21 N. J. Eq. 118 ; McMurray v.
Spicer, L. R., 5 Eq. 52Y. If there has been any unusual delay that
cannot be explained consistently with good faith, equity will not en-
force a specific performance. Roby v. Cossitt, 78 111. 638. But where
time has not been made of the essence of the contract by its terms, al-
though there may not be a performance upon the day, if the delay is
excused and the situation of the parties and property remain unchanged,
and the party is reasonably vigilant, the court "will relieve from the con-
sequences of the delay and grant a specific performance. Huohell v.
Yon Schoening, 49 IST. Y. (4 Sick.) 326 ; Merchants' Bank v. Thom-
son, 55 E". Y. (10 Sick.) 7 ; Childress v. Holland, 3 Hayw. (Tenn.)
274 ; Dubois v. Baum, 46 Penn. St. 537.

Where either party to a contract of sale fails or refuses to claim or
act under the contract, for such a length of time as to give the impres-
sion that he has waived or abandoned the sale or purchase, and more
especially when the circumstances justify the belief that his intention
was to perform the contract only in case it suited his interest, he will
necessarily forfeit all claim to equity. Alloway v. Braine, 26 Beav.
575 ; Eastern R. R. Co. v. Knott, 10 Hare, 122 ; Eastman v. Plumer^
46 K H. 464; M'Dermid v. M'Gregor, 21 Minn. 111. And it has
been held that where the purchaser of land delays offering payment of
the purchase-money for five months after the stipulated time for pay-
ment, without any excuse therefor, his right to call for a specific per-
formance will be thereby precluded, unless the stipulated time for pay-
ment has been waived. Mix v. Balduc, 78 111. 215. Nor will a court
of equity decree the specific performance of a contract, when the pur-
chaser has lain by and delayed completing it, although he may have
paid part of the purchase-money. Alley v. Beschainps, 13 Yes. 225.

§ 2. Delay arising from the state of the title. Where time has
not been made by the contract of the parties, or is not, from the nature
of the property, of the essence of the contract, and the delay may be
accounted for upon the ground of the state of the title, it will not pre-

SPECIFIC PEKFOKMANCE. 811

vent a specific performance from being decreed. In sucli case, if the
vendor files a bill for specific performance, it is sufficient if he can pro-
cure a good title at the time of the decree. Langford v. Pitt^ 2 P.
Wms. 630 ; Phillijpson v. Gibbon, L. K, 6 Ch. App. 428. See ante,
778, art. 2, §§ 4, 5, And a purchaser, by buying up the title of a third
party which might, had it remained outstanding, have constituted a
valid objection to the vendor's title, will not be able, on the ground
that the vendor has not got that title in himself, be able to object to a
specific performance {Murrell v. Goodyear, 1 DeG,, F. & J. 432), with,
however, an abatement for the amount expended. Wee'ins v. Brewer,
2 Har. & G. (Md.) 390. So, if a purchaser is aware of the objections
to the title, or if he receives the abstract after the day appointed {Hip-
well V. Knight, 1 Y. & Coll. [Exch.] 411) ; or proceeds with the pur-
chase, although the time fixed for the completion of the contract may
have elapsed, and a much longer period may be requisite in order to
make a good title {Ex parte Gardner, 4 id. 503 ; Wood v. Maohu, 5
Hare, 158), he will be held to have waived his right to object to the
delay, and will not be enabled to resist a specific performance. Id. ; 2
Lead. Cas. Eq. (4th ed.) 1055. See, also, Hoggart v. Scott, 1 Russ. &
Myl. 293.

"Where the purchase of land is made upon condition that the title is
foimd good, the purchaser is only entitled to a reasonable time in which
to determine whether he will take the title the vendor has, or reject it.
He cannot keep the contract open indefinitely, so as to profit by a rise
in the value of the property, or relieve himself in case of a deprecia-
tion. Hoyt V. Tuxbury, 70 111. 331. But the time within which ob-
jections are to be made to a title may be enlarged by the consent of
the vendor. Cutts v. Thodey, 13 Sim. 205.

Where the vendor of land, by a contract, under which the payment
of the purchase-money and the delivery of the deed were to be concur-
rent, tendered a deed to the vendee, at the proper time, and demanded
payment, which was refused, and no offer of payment was ever made
until four years afterward, it was held that there was such laches as to
prevent a court of equity from decreeing a specific performance of the
contract in favor of the vendee or his assignee. Uedenberg v. Jones,
73 111. 149.

Where the vendor's bill for specific performance is dismissed on the
ground of his laches in instituting the suit, and without any decision on
the question of title, the comt will not order the deposit to be returned
to the purchaser, but will leave both parties to their legal remedies.
Southcomb V. Bishop of Exeter, 6 Hare, 213.

§ 3. Compensation for delay. In all cases where the court decrees

812 SPECIFIC PERFOEMANCE.

specific performance, notwithstanding the time for completing the con-
tract has elapsed, care will be taken that proper compensation be made,
and the parties, in fact, put in the same situation as if the contract had
been strictly fulfilled. Thus, ordinarily, the purchaser will be entitled
to the profits of the estate from the time when the contract ought to
have been completed {De Visme v. De Yisme, 1 Mac. & G-. 346;
EuragU v. Fitzgerald, 2 Ir. Eq. 87 ; S. C, 2 Dru. & W. 43; Mmjov.
Pur cell, 3 Manuf. [Va.] 243 ; Brown v. Wallace, 2 Bland [Md.], 585;
2 Lead. Cas. Eq. [4th ed.] 1057) ; and the vendor, whether the estate
be in possession or reversion, will be entitled to interest upon the pur-
chase-money from the same time. Id.; Grove v. Bastard, 1 DeG., M.
& G. 69 ; Monro v. Taylor, 3 Mac. & G. 713 ; S. C, 8 Hare, 70 ;
Bailey v. Collett, 18 Beav. 179. See, also, Stevenson v. Maxwell, 2
]N. Y. (2 Comst. ) 408 ; Parker v. Parker, 65 Barb. 205 ; Breckenridge
V. Soke, 4 Bibb (Ky.), 273 ; Botjle v. RowoAid, 3 Desau. (S. C.) 555 ;
Buchanan v. Lorman, 3 Gill (Md.), 82.

In ordinary contracts, where no time is fixed for completion, interest
wiU generally be payable by the purchaser from the time he takes pos-
session {Birch V. Joy, 3 H. L. Cas. 565) ; and especially if he has re-
ceived the rents and profits. Powell v. Martyr, 8 Ves. 146. See
Merchants^ Bank v. Thomson, 55 N. Y. (10 Sick.) 7. But where
there is a weighty objection to the title, the purchaser is not bound to
take possession, nor, consequently, to pay interest until it is cleared up.
Carrodus v. Sharp, 20 Beav. 56.

Where a purchaser agrees that if, " from any cause whatever," the
purchase shall not be completed on the day fixed, he will pay interest,
the rule is that he must pay such interest, unless the delay be attribut-
able to fraud or willful misconduct on the part of the vendor. Vickers
V. Hand, 26 Beav. 630. If the delay is occasioned merely by the state
of the title, and is not willful on the part of the vendor, he will be enti-
tled to interest according to the express terms of the stipulation. Id.;
Sherv)in v. Shakspear, 5 DeG., M. & G. 517 ; Esdaile v. Stephenson,
1 Sim. & Stu. 122 ; Bannerman v. Clarke, 26 L. J. (N. S.) Ch. 77 ;
Lewis V. South Wales R. R. Co., 10 Hare, 113. But see De Visme v.
De Yisme, 1 Mac. & G. 346 ; Williams v. Glenton, 34 Beav. 528 ; S. C,
L. E., 1 Ch. App. 200.

If there has been delay in making out the title, and the property has
deteriorated by dilapidations or mismanagement and negligent conduct,
the purchaser will Ijc allowed a compensation {Lord v. Stephens, 1 Y.
& Coll. [Exch.] 222 ; Tester v. Deacon, 3 Madd. 394) ; and if he has
paid his purchase-money, under an order, into court, he will be entitled
to interest on the aiiiMuiit fixed for eoinpens;ition, from the time of his

SPECIFIC PERFORMANCE. 813

making such payment. Ferguson v, Tadman, 1 Sim. 530. But a pur-
chaser will not be entitled to compensation for deterioration after the
time when he actually did take, or ought to have taken possession
{Minchin v. Nance^ 4 Beav. 332) ; nor if he has himself occasioned the
deterioration, as by causing the tenant to quit before the completion of
the contract. Harford v. Purrier, 1 Madd. 532.

If, after a party has agreed to sell property to another, he chooses to
spend money in improving it, he cannot call upon the purchaser to re-
pay him the money for such improvement. Monro v. Taylor^ 8 Hare,
51, 60 ; Sherwin v. Shakspear, 5 DeG., M. & G. 517. And in the
absence of any express stipulation, the expenses and outgoings of prop-
erty sold must be borne by the vendors, down to the time when the
purchaser could prudently take possession ; that is, down to the time
when a good title was shown. Carrodus v. Sharp, 20 Beav. 56.

If a purchaser pays a deposit to the auctioneer at the time of sale in
part of his purchase-money, and brings an action against him to recover
it back because of the inability of the vendor to make a good title, and
such deposit is recovered from the auctioneer, the purchaser is entitled
to interest on the deposit from the time the purchase should have been
completed, and may recover it from the vendor on alleging the special
damage in his declaration. Farquhar v. Farley, 1 Taunt. 592 ; S. C,
1 Moore, 322.

§ 4. Where vendor seeks performance. See ante, 778, art. 2, §§ 4,
5. In equity the rule is, that if the purchaser can get substantially
what he contracted for, specific performance will be decreed against
him at the suit of the vendor, with compensation, for the difference in
value between what he will get and what he contracted for. Halsey
V. Grant, 13 Yes. 73, 77; Vignolles v. Bo^oen, 12 Ir. Eq. 194;
Foley V. Grow, 37 Md. 51. But if the failure to perform the contract
is substantial, and siich as does not admit of compensation, not only will
equity refuse to interfere in favor of the vendor, but even will assist
the purchaser in recovering his deposit. Id. ; Spunner v. WaUh^ 11
Ir. Eq. 597. Thus, although the vendor cannot make a good title to a
small portion of the estate, yet, if compensation can be made for the
deficiency, in consequence of such portion not being material to the pos-
session and enjoyment of the estate, specific performance will be decreed.
Bmoyer v. Bright, 13 Price, 698 ; Garver v. Richards, 6 Jur. (N". S.)
667. But where a good title cannot be made to a portion of the estate
contracted to be sold, if it be material to the possession and enjoyment
of the rest, specific performance will be refused. Peers v. Lamhert, 7
Beav. 546 ; Shackleton v. Sutliffe, 1 De G. & S. 609. So, if a pur-
chaser in the same contract agrees to purchase an estate for a fixed

814 SPECIFIC PEKFORMANCE.

price, and also something else which is not essential to the enjoyment
of the estate, and is but a small adjunct to it, if a good title cannot be
made to the adjunct, the court will compel specific performance of the
contract to purchase the estate alone. Richardson v. Smith, L. K., 5
Ch App. 64:8. But where the adjunct is essential to the enjoyment of
the property, as in the case of fixtures in a public house, specific per-
formance of the contract to purchase the property without the adjunct,
though with compensation, wiUl not be enforced. Jackson v. Jackson,
1 Sm. & G. 184 ; Darhey v. IVhittaker, 4 Drew. 134. The principle
is, that when the part lost appears to be so essential to the residue that
it cannot reasonably be supposed that the purchase would have been
made without it, the contract will not be enforced. Stoddart v. Smith,
5 Binn. (Penn.) 355.

"Where lands are described as '"' of or about " a certain acreage, or a
certain acreage, "be the same more or less," and the lands have been
actually conveyed, the purchaser will not be entitled to an abatement,
though they should turn out to be considerably less. Townshend v.
Stangroom, 6 Ves. 328 ; Anonymous, 2 Freem. Ch. 106. But if the
agreement in which the acreage has been so described has not been car-
ried out by a conveyance, the purchaser will be entitled to an abatement
for a deficiency, unless it be trifling. Hill v. Buckley, 17 Yes. 394.
But see Winch v, Winchester, 1 Yes. & B. 375.

A purchaser wiU not be bound to accept land of a different tenure
from that which he contracted for, as, for instance, leasehold instead of
freehold. Drewe v. Corp., 9 Yes. 368 ; Twining v. Morrice, 2 Bro. (C.
C.) 326 ; Price v. Macaiday, 2 DeG., M. & G. 339 ; Ayles v. Cox,
16 Beav. 23. Nor can a purchaser be compelled to take an under lease
instead of an original lease. Madeley v. Booth, 2 De G. & Sm. 718.
But it seems that specific performance could not be successfully resisted
if an estate, represented as copyhold, equal in value to freehold, should
turn out to be freehold {Twining v. Morrice, 2 Bro. [C. C] 326),
unless there be an express stipulation that the contract should be void
if it should appear that any part of the estate was freehold. Daniels
V. Damson, 16 Yes. 249. And objections to tenure may be waived by
the conduct of the purchaser, as, for instance, by his proceeding with
the treaty for the purchase, after becoming acquainted with the nature
of the tenure. Bumell v. Brown, 1 Jac. & W. 168 ; Fordyce v. Ford,
4 Bro. (C. C.) 494.

A purchaser of the entirety will not be compelled to take an undi-
vided share of an estate. Dalhy v. Fullen, 3 Sim. 29 ; Casamajor v.
Strode, 2 Myl. & K. 726 ; Lead. Cas. Eq. (4th ed.) 1066. See Crnir
ningham v. Sharp, 11 Humph. (Tenn.) 116 ; White v. Dobson, 17

SPECIFIC PERFOKMANCE. 815

Gratt. 262. Nor will he be compelled to take a remainder expectant
upon the determination of a previous life interest, instead of an estate
in possession {Nelthorpe v. Holgate, 1 Coll. 203) ; nor to take an estate
if it be subject to an undisclosed right of digging for mines {Seamcm
V. Yawdrey, 16 Yes. 390 ; Barton v. Lord Dovjnes, 1 Flan. & K. 505);
or an undisclosed reservation of minerals to the lord of the manor on
enfranchisement. Upperton v. Nickolson^ L. R., 6 Ch. App. 436.
Nor if it be a mere sheep-walk and not a freehold. Yaiicowiier v.
Bliss, 11 Ves. 458 ; 2 Lead. Cas. Eq. (4th ed.) 1066.

§ 5. Where vendee seeks performance. See ante, 779, 780, art. 2, §§
6, 7. Although, as seen above, a person purchasing the entirety cannot,
upon a failure to make a title to the whole, be compelled to take a part
only of the estate, yet, a purchaser may, in general, if he wishes it,
elect to take what he can get, with compensation ( Western v. Russell,
3 Yes. & B. 187) ; unless it be expressly stipulated that the agreement
should, in such event, be void. Williams v. Edvmrds, 2 Sim. 78.
And see Painter v. Newby, 11 Hare, 26; Seaman v. Vawdrey, 16
Yes. 390 ; Leslie v. Orommelin, 2 Ir. Eq. 134. The general rule is,
that a purchaser may, if he choose, compel a vendor who has contracted
to sell a larger interest in an estate than he has, to convey to him such
interest as he is entitled to, with compensation. Mortlock v. Buller,
10 Yes. 315 ; Barnes v. Wood, L. R., 8 Eq. 424 ; 2 Lead. Cas Eq. (4th
ed.) 1069 ; Waters v. Tra/vis, 9 Johns. 450 ; Napier v. Da/rlington,
70 Penn. St. 64 ; Stockton v. Union Oil Co., 4 W. Ya. 273. See
exceptions to the general rule, ante, 780, art. 2, § 7.

§ 6. Delay when not important. Where a party neglects, for a
great length of time, to assert his right under a contract, specific per-
formance of it will not be decreed in his favor. This is the general
rule. See 6^i^6, 810, § 1. But where there is sufficient excuse for the
delay, lapse of time will not bar relief. Id. ; Ashmore v. Evans, 11
N. J. Eq. 151 ; Logan v. McCIwrd, 2 A. K. Marsh. (Ky.) 224; Craig
V. Lsiper, 2 Terg. (Tenn.) 193. Even the fact that negligence may be
imputed to a party will not deprive him of the aid of a court of equity
to enforce specific performance, where time is not of the essence of the
contract, and it is equitable that it should be enforced. Farris v.
Bennett, 26 Tex. 568. And see Delavan v. Duncan 49 N. Y. (4 Sick.)
485.

And upon a bill in equity to enforce the specific execution of a con-
tract to convey lands, if it appears that the complainant has made great
and valuable improvements with the knowledge and acquiescence of
the defendant, the court will decree specific execution upon payment of
the agreed price with interest, although payment has been delayed for

816 SPECIFIC PEKFORMANCE.

an unreasonable time. Mason v. Wallace, 4 McLean (C. C), 77. And
see am,te, 811, § 3 ; Spalding v. Alexander, 6 Bush (Ky.), 160 ; C Fal-
lon V. Kennerly, 45 Mo. 124 ; New Barbadoes Toll Bridge v. Yree-
land, 4 K J. Eq. 157.

But, although, time be not of the essence of a contract, if there has
been great and improper delay on one side, the other party has a right
to fix a reasonable time within which the contract is to be completed.
The time fixed will then be considered by a court of equity as having
become of the essence of the contract ; and in case the party makes
default in doing what is right and proper on his part, within the time
so fixed, it will be a reason why the court will not afterward interfere,
in his favor, to compel the execution of the contract. Nott v. Ricard,
22 Beav. 387 ; Eads v. Williams, 4 De G., M. & G. 674 ; Gordon v.
Mahoney, 13 Ir. Eq. 404 ; 2 Lead. Cas. Eq. (4th ed.) 1061. And see
Falls V. Carpenter, 1 Dev. & B. (N. C.) Eq. 237 ; Miller v. Bear, 3
Paige, 466.

ARTICLE Yl.

PARTIES TO ACTION.

Section 1. Who ought to be plaintiffs. Either the vendor or the
vendee may resort to a court of equity to enforce the specific perform-
ance of an executory contract. McKee v. Beall, 3 Litt. (Ky.) 190.
But it is said that contracts are not specifically enforced at the instance
of the vendor, as readily as at the instance of the vendee ; as when
applied for by the vendor he can be better compensated in damages
than the vendee, who may desire to acquire a particular estate. Mc-
Whorter v. McMahan, Clark's Ch. (^. T.) 400. See, also, Li^U Street
Bridge Co. v. Bannon, 47 Md. 129, 143.

In general, where the specific performance of a contract would be
decreed between the original parties to it, it will also be decreed between
the parties claiming under them by assignment, or in privity of estate,
or of representation, unless some new equity intervenes, which is insisted
on in bar of the specific execution. Nelthorpe v. Holgate, 1 Coll. 218;
Roberts v. Marchant, 1 Phill. Ch. 370 ; Champion v. Brown, 6
Johns. Ch. 398 ; Ewins v. Gordon, 49 N. H. 444 ; Currier v. Howard,

14 Gray, 511 ; Corlus v. Teed, 69 111. 205 ; McMorris v. Crawford,

15 Ala. 271. So, the party for whose benefit an agreement is to be
performed, especially if any valuable portion of the consideration has
been rendered by him, has the legal right to enforce it, though the
promise to fulfill was not made to him. Van Dyne v. Yreeland, UN.

SPECIFIC PERFORMANCE. 817

J. Eq. 370. And it is held that, if a party competent to contract in
behalf of an infant, makes a contract on full consideration, which is
actually paid, the infant may maintain a suit in equity for specific per-
formance. Guard v. Bradley^ 7 Ind. 600. And see Haines v. HaAnes^
6 Md. 435; Van Dyne v. Vreeland, 11 N. J. Eq. 370. So, the
objection to a suit for specific performance brought by a married woman,
that it should not be enforced in her behalf, because she could not have
been compelled to perform it on her part, comes too late after she has
fully performed on her part, and the objecting party has reaped the
full benefit of such performance. Seager v. Burns, 4 Minn. 141.

Where a testator dies before the performance of a contract to convey
lands to him, the devisees are the proper persons to enforce its per-
formance ; and the executors cannot do so, although dh-ected by the
will to take all just and proper means to insure a conveyance of the
land to the devisees. Buck v. Buck, 11 Paige, 170.

A grantor of property in trust for a specific purpose retains such an
interest therein as entitles him in equity to insist on a specific execu-
tion of the trust ( Warren v. Mayor of Lyon City, 22 Iowa, 351 ;
Williams v. I^irst Presbyterian Society, 1 Ohio St. 478 ; Gliapnan v.
Wilbur, 4 Oreg. 362) ; but a diversion of trust property by a trustee
from the purpose for which it was granted does not operate as a for-
feiture of the property or cause it to revert to the donor. Id.

A county, to which land is dedicated on condition that a certain town
is made the county seat, on compliance with such condition, may have
a bill for vspecific performance of the contract of dedication. Reese v.
Lee County, 49 Miss. 639.

In general, all who are interested in a contract for the conveyance of
land must join with the plaintiff in an action brought for its enforce-
ment, or a valid excuse for their not joining with the plaintiff must be
shown. The law will not tolerate a suit to enforce a contract by piece-
meal. McCotter v. Lawrence, 4 Hun (jST. Y.), 107; S. C, 6 K Y.
Sup. Ct. (T. & C. ) 392. See, also, Mitchell v. Shell, 49 Miss. 118.

§ 2. Who uot proper parties plaintiff. Equity will not, as a gene-
ral rule, enforce specific performance at the suit of one who is not a
party nor privy to the contract. Beardsley Scythe Co. v. Foster, 3"6
N. Y. (9 Tiff.) 561. The performance of an executory contract wiU
not be enforced in favor of a mere volunteer, although he be the child
of the promisor. Morris v. Lewis, 33 Ala. 53. Nor can any one indi-
vidual maintain an action for the specific performance of a public duty
imposed for the public benefit. Getty v. Hudson River R. R. (7o.,
21 Barb. 617. And one who has assigned all his interest in a contract
made by him need not join with the assignee, as a plaintiff, in a biU
YoL. Y.— 103

818 SPECIFIC PEEFORMANCE.

for specific performance. Golerick v. Hooper, 3 lud. 316 ; sillier v.
Whittier, 32 Me. 203.

A wife cannot, after the death of her husband, who has contracted
for the sale of her land, describing it as his, enforce specific perform-
ance by the purchaser for her own benefit. Hoover v. Calhoun^ 16
Gratt. (Ya.) 109.

And where a party purchasing land of one clothed with the legal
title has notice, actual or constructive, that another owns it, and that
the vendor holds the legal title as a security for money owing him and
others, he cannot be placed in a better position than the vendor, and a
court of equity will refuse to enforce the specific execution of his con-
tract of purchase. Franz v. Orton, 75 111. 100. And the actual posses-
sion of the land by the tenants of such other party is constructive notice
of his rights in the same, whether legal or equitable. Id, ; Warren v.
Hichmond, 53 id. 52.

If A, as the agent of B, contracts to sell land belonging to C, and it
is claimed that C afterward adopted the sale, B and the hehs of A, the
agent, are improper parties to a bill to enforce specific performance
against C, and, if made parties, the bill will be bad on demurrer. Hoiy
V. Cossett, 78 111. 638.

A creditor at large before judgment, and before he has a certain
claim upon the property of his debtor, has no right to call for a specific
execution of his debtor's contracts, for the creditor's benefit. Wiggitis
V. jBoerum, 2 Johns. Ch. lil ; Briggs v. Oliver, 68 N. Y. (23 Sick.)
336; Griffk v. Frederick County Bank, 6 Gill & J. (Md.) 424.
Neither can the creditor, in such case, ask for a rescission of the con-
tract. Id.

§ 3. Wlio to be defendants. In a suit for the specific execution of
a contract, which has passed through various hands by assignment, all
the assignees must be made parties. Estill v. Clay, 2 A. K. Marsh,
(Ky.) 497. In a suit against one for the specific performance of his
contract to sell land, persons having, or claiming to have, an interest in
the land, obtained from the defendant after the date of the contract,
and with notice thereof, are necessary parties. Stone v, Buckner, 20
Miss. 73 ; Morris v. Hoyt, 11 Mich. 9 ; Houghwout v. Murphy, 21 N.
J. Eq. 118 ; SnowmaM v. Harford, 57 Me. 397 ; Case v. James, 29
Beav. 512 ; Castle v. Wilkinson, L. R., 5 Ch. App. 536. And the
notice need not be actual nor amount to full knowledge. Information,
from whatever source derived, which would excite apprehension in an
ordinary mind, and prompt a person of average prudence to make
inquiry, will be sufficient. Bryant v. Booze, 55 Ga. 438. In Bishop
of Winchester v. Mid Hants RaAlway Co., L. R., 5 Eq. 17, the specific

SPECIFIC PEEFORMAj^CE. 819

performance of a contract with a railway cc/mpany was enforced against
another company, which had leased the line.

A suit in equity to enforce the specific performance of a contract
made by a deceased person for the sale of land must include his heirs
as pai-ties defendant. Moore v. Mv/rrah, 40 Ala. 573. See, also, Mor-
gan V. Morgan, 2 "Wlieat. 290 ; Anshutz^s Appeal, 34 Penn. St. 375 ;
DaMy V. Litchfield, 10 Mich. 29. And to obtain the specific perform-
ance of a contract with a corporation for the sale of real estate, the
trustee who holds the legal title to the corporation lands should be
made a co-defendant with the corporation. Morrow v. Laiorence, 7
Wifi. 574.

As a general rule in equity, all persons having an interest in the sub-
ject of the suit should be parties to it. See Rochester v. Anderson,
6 Litt. (Ky.) 143. And, therefore, the assignee in bankruptcy of a
vendor of land, who executed a bond for title, but did not receive the
whole of the purchase-money, must be made a party defendant to a bill
by the vendee, for a specific performance of the contract to convey.
Swejpson v. Rouse, 65 l^o. Car. 34 ; S. C, 6 Am. Rep. 34. Even
where a party holds an instrument in -wi'iting as the mutual friend of
both parties, or a deed as an escrow, and refuses to deliver the same,
he is a proper party to a bill for a specific performance of the instru-
ment, or the terms of the deed. Davis v. Henry^ 4 TV. Ya. 571.

A specific performance wiU not be decreed by a com-t of equity to
compel a married woman to convey her real property upon a contract
or covenant executed by her and her husband for that purpose during
coverture. See Field v. Moore, 7 De G., M. & G. 691; S. C, 19 Beav.
176; Phillips Y. Graves, 20 Ohio St. 371; S. C, 5 Am. Eep. 675;
Nicholl V. Jones, L. R., 3 Eq. 696. But where a married woman,
during coverture, joins with her husband in a covenant to convey her
real property, and the covenantee advances money to the wife on the
contract, or, with her assent, enters into the possession of the premises,
and makes permanent improvements thereon, the money so advanced,
and the value of such improvements (less the value of the use of such
premises), will be decreed to be a charge upon such land until paid.
Courts in protecting the rights ot married women should not go so far
as to encourage the perpetration of fraud by them. Frarey v. Wheeler,
4 Oreg. 190. See Barron v. Barron, 4 Kay & J. 409 ; Sharpe v.
Foy, L. R., 4 Ch. App. 35.

§ 4. Who not to be defendant. "Where A makes a contract, and
therein names B as his attorney to carry out its provisions, B is not a
necessary or proper party in a suit against A for specific performance.
Dahoney v. Hall, 20 Ind. 264. In a suit by the grantee of the equit-

820 SPECIFIC PEEFOKMANCE.

able title to land, to compel a conveyance of the legal title to him, his
grantor need not be made a party. Elliott v. Armstrong^ 2 Blackf.
(Ind.) 198. Nor need the promisee named in a written contract,
who has transferred it by an unconditional verbal assignment, be made
a party to a suit by his assignee for specific performance of the con-
tract. Currier v. Howard, 14 Grray, 511.

In a suit against an administrator for the specific performance of a
contract made by his intestate to convey land, the heirs need not be
made parties ; they would be bound though not parties. Sha/nnon v.
Taylor, 16 Tex. 413.

The wife of a surviving partner has no vested interest in real estate
held as stock of the partnership, and need not be made a party to a
suit to enforce a specific performance of a contract for the sale thereof.
Gallraith v. Gedge, 16 B. Monr. (Ky.) 631.

"Where a purchaser of land from the State, having a certificate and
possession, but no patent, mortgaged the land, and the mortgagee pur-
chased at the sale, it was held that the original purchaser was not a
necessary party to an action against the assignee of the original pur-
chaser's certificate, to compel a conveyance of the land. Stewart v.
Hutchinson, 29 How. (N. Y.) 181.

AETICLE YII.

PLEADINGS.

Section 1. Bill or complaint. In a bill for specific performance
the plaintiff must show his own readiness, and a demand on the other
party imcomplied with. Bell v. Thompson, 34 Ala. 633. A general
allegation that the plaintiff has " offered, and has always been ready
and willing to comply with his contract,"' is not sufficient, but the facts
constituting the offer should be alleged. HaH v. McClellan, 41 id. 251 ;
Davis V. Harrison, 4 Litt. (Ky.) 261. And see Huff v. Fisher, 15 Cal.
375 ; UnderhillY. Allen, 18 Ark. 466. So, a bill for specific perform-
ance must show the contract, including consideration, date, terms, and
stipulations. GasMns v. Peebles, 44 Tex. 390 ; Forsyth v. Clarh, 3
Wend. 637. A bill for conveyance of land should describe the land
with such accuracy as to enable the court to decree its conveyance.
GroA/ V. Davis, 3 J. J. Marsh. (Ky.) 381 ; Mallory v. Mallory, 1 Busb.
(N. C.) Eq. 80-, Allen v. Chamhers, 4 Ired. (N. C.) Eq. 125. A bill
for enforcing payment of a lost note must allege that it has not been
paid. Mason v. Foster, 3 J. J. Marsh. (Ky.) 283. But a complaint

SPECIFIC PERFORMANCE. 821

for specific performance need not allege the defendant's ability to
perform. Greenjield v. Carlton^ 30 Ark. 547.

An allegation that the contract was in writing is not necessary in an
action for the specific performance of a contract for the sale of land.
Huhlell V. Courtney, 5 S. C. 87 ; Wildlahm v. Rohidoux, 11 Mo. 659.
If the agreement, as stated in the bill, appears to be a parol agreement
only and no sufficient grounds are alleged to take the case out of the
statute, the defendant may, by demurrer, object to any relief founded
thereon. But, if it is stated generally, that an agreement or contract
was made the court will presume it a legal contract until the contrary
appears ; and the defendant must either plead the fact that it was not
in writing, or insist upon the defense in his answer. Cozine v. Gra-
hmn, 2 Paige, 177; Poag v. Sandifer, 5 Rich. (S. C.) Eq. 180;
Cranston v. Smith, 6 R. I. 231 ; Dudley v. Bacfielder, 53 Me. 403 ;
Richards \. Richards, 9 Gray, 314; Gapeharty. Hale, 6 "W. Va.
547; Woody. Midgley, 5 DeG., M. & G. 41. See Barhworth v.
Young, 4 Drew. 1 ; Piercy v. Adams, 22 Ga. 109.

Where the contract is originally conditional, the performance of the
condition should be alleged ; so, where it purports to be signed by an
agent, the fact of the agency, and the authority of the agent should be
alleged and proved. Columbine v. Chichester, 2 Phil. Ch. 27; Rohy
V. Cossett, 78 111. 638. It is, however, held not to be necessary to al-
lege in the petition in a suit to enforce the specific performance of a
contract to convey land, that the defendant's agent who made the con-
tract had written authority to sell the land. Fisher v. Bowser, 41
Tex. 222. It is likewise held that in a bill for the specific perform-
ance of a contract made by an agent, it is unnecessary to set forth the
manner of its execution, or any thing more than the fact of the execu-
tion, and the contract must then be proved as a valid one. Hanchett v.
McQueen, 32 Mich. 22.

When a waiver of objection to the title is relied on as a ground for
specific performance of the contract of sale, the vendor's bill should be
so framed as to put that question in issue, or e^ddence to prove the
waiver cannot be received. Page v. Greeley, 75 111. 400.

A complaint by a purchaser to enforce the specific performance of a
parol contract for the sale of land, which relies on part payment of the
purchase-money, possession and the making of valuable and lasting im-
provements by the purchaser, must also show that possession was taken
under the contract, with the knowledge and consent of the vendor,
and that thq ])ureliaser is ready and willing to pay the residue of the
purchase-money on obtaining a decree or receiving a deed for the land.

S22 SPECIFIC PEEFORMAI^CE.

Moore v. Highee^ 45 Ind. 4S7. See Anthony v. Leftwich, 3 Rand.
(Ya.) 238 ; Hcttofber v. Hatoher, 1 McMuU. (S. C.) Ch. 311.

If the whole case shown by the bill in equity, praying for specific
performance, but with no mention of general relief, does not justify
the relief prayed for, the bill must be dismissed, although the com-
plainant may have been entitled to some other relief. Hiern v. Mill, 13
Ves. 119; mil v. Great Northern Bailioay Co., 5 DeG., M. & G. 72;
Colton V. Boss, 2 Paige, 396 ; Laird v. Boyle, 2 "Wis. 431 ; Our son
V. Belworthy, 3 II. L. Cas. 742.

§ 2. Plea or answer. If the specific performance of a contract is
sought to be enforced in equity, and the defendant desires to avoid
such performance, on the ground that the contract was by parol, and
therefore withm the statute of frauds, he must make this objection by
plea or answer, otherwise he will be deemed to waive it. Hull v.
Beer, 27 lU. 312; Adams v. Batrick, 30 Yt. 516; Dean v. Dean, 9
N. J. Eq. 425 ; Walker v. Rill, 21 id. 191 ; Albert v. 'Winn, 5 Md. m ;
Artz V. Grove, 21 id. 456 ; Hollingshead v. MoKenzie, 8 Ga. 457 ;
Tilton V. Tilton, 9 :N". H. 385,

A defendant cannot defeat a bill for a specific performance of an
agreement to convey real estate by setting up an outstanding right to
the premises in a third party, who acquiesces in the title of the plain-
tiff. Laverty v. Moore, 33 N. Y. (6 Tiff.) 658.

Where the answer denies the contract as stated in the bill, the fact
that the answer is disproved, as to some of the facts denied, does not de-
stroy the weight ascribed to it by law in respect to other facts, as to
which it is not disproved by the required amount of evidence. Brough-
ton V. Goffer, 18 Gratt. (Ya.) 184.

If the plaintiff in a suit for the specific performance of an agreement
for an exchange of lands cannot give the title mentioned in the agree-
ment, the bill may be dismissed, although the objection is not stated in
the answer, or taken until the hearing before a master, to whom the
case has been referred to receive a proper conveyance. Bark v. John-
son, 7 Allen, 378.

§ 3. Matters of defense. In general, a specific performance wiU
not be decreed, where it would be inequitable ; and greater latitude
will be allowed the defendant in resisting, than to the plaintiff in mak-
ing out his case. Casey v. Bolrnes, 10 Ala. 776. On a bill to enforce
the specific performance of a contract to purchase land, the defendant
may show in defense that the written contract does not state correctly
the agreement of the parties, by reason of some omission, insertion or
variation, through mistake, surprise or fraud. Clinan v. Cooke, 1 Sch.
& Lef. 38 ; Honeyman v. Marryatt, 6 H. L. Cas. Ill ; Brooks v.

SPECIFIC PEEFORMAJS^CE. 823

•

WheelocTc, 11 Pick. 440; Lee\. Kirhy, 104 Mass. 427; Eastmam,\.
Plumer, 46 N. H. 464 ; Dermy v. Hancock^ L. R., 6 Cli. App. 7 ;
Best V. Stow, 2 Sandf. Ch. 298. Aii.l a misrepresentation made by
the vendor in a matter of substance, affecting the value of the estate
sold, is a good defense to a suit by him for a specific performance, al-
though the vendor, as well as the vendee, was ignorant of its untruth.
Id. But the court will not allow a mistake in law to be set up as a
ground for resisting specific performance. Marshall v. Collett, 1 Y. &
Coll. (Exch.) 232; Cooper v. Phibhs, L. R., 2 E. & Ir. App. 149, 170.

A parol promise to vary the terms of a written agreement has been
admitted as a defense to a bill, seeking its specific performance. Clarke
V. G^rant, 14 Yes. 519. And see Quimi v. Itoath, 37 Conn. 16. So,
it may be shown by the defendant that the contract has been rescinded
by a parol agreement. McCorTde v. Brown, 17 Miss. 167 ; England
V. Jackson, 3 Hmnph. (Tenn.) 584.

Specific performance of a contract to convey land will not be en-
forced where the vendor is prevented from performing his agreement
by reason of his wife's refusing to join in the deed. Clark v. Seirer,
7 Watts (Penn.), 107. But the refusal of his wife to release dower is
no defense to an action for specific performance, if the vendee offers to
waive the release. Corson v. MulvoMey, 49 Penn. St. 88.

The fact that one party to a contract might have recovered damages
at law of the other for his non-performance is no reason why the former
should not have a decree for a specific performance. Washhurn v.
Deioey, 17 Yt. 92. Xor is it a defense to a bill in equity for the spe-
cific performance of a contract for the sale of lands, that since the con-
tract of sale was made, at a fair price, the land has become more valu-
able. Falls V. Carpenter, 1 Dev. & Bat. (N. C.) Eq. 237 ; Young v.
Wright, 4 Wis. 144. The inadequacy of price which will operate to
prevent the specific performance of a contract must be inadequacy at
the time of the sale. Hale v. Wilkinson, 21 Gratt. (Ya.) 75. And it
is held that unless the inadequacy of price is such as shocks the con-
science and amounts in itself to conclusive and decisive evidence of
fraud in the transaction, it is not itself a sufficient gromid for refusing
a specific performance. Id. ; Coles v. Trecothick, 9 Yes. 234.

And in a case for the specific execution of a contract for the sale of
land, though it appears that the price contracted to be given for the
land was double its value, yet as the purchaser was fidly competent to
contract, and there was no fiduciary relationship between him and the
vendor, and the purchaser made his own examination of the land,
though it was mostly covered by snow, in the absence of all fraudulent

824 SPECIFIC PERFOKMANCE.

representations on the part of the vendor the contract will be enforced.
White V. McGannon, 29 Gratt. (Ya.) 511.

We have seen (aiite Art. 4), that every agreement as to time is not
of the essence of the contract, and therefore every failure in a literal
performance in that respect does not of necessity furnish to the other
party a sufficient defense against a bill for a specific performance. To
make it a suflicient defense the broken stipulation should be of such a
character as to constitute a condition precedent to the petitioner's right
to enforce the contract ; or be such as on its non-fulfillment without
reasonable excuse to render in terms the contract void ; or in some
other manner to make it clearly inequitable, under circumstances of
fraud, mistake, surprise, unreasonable delay, gross neglect, bad faith or
other manifest unconscientiousness, that the petitioner should have a
decree. Quinn v. Roath, 37 Conn. 16. See Johns v. Norris^ 22 K.
J. Eq. 102.

Where the principal inducement to a sale of land was a stipulation,
by the purchaser, to pay a certain debt which was pressing the vendor,
and the vendor was obliged to pay such debt in consequence of the
failm'e of the purchaser to perform his agreement, a bill, subsequently
filed by such purchaser for specific performance, was dismissed. -Deaver
V. Parker, 2 Ired. (N. C.) Eq. 40.

ARTICLE VIII.

EVIDENCE.

Section 1. What is admissible. In all cases for specific perform-
ance the contract must be accurately stated in the bill, and the proof
must in every essential particular correspond with the terms of the
contract thus set up. The proof must be clear and explicit, leaving no
room for reasonable doubt. Tiernan v. Granger, 65 111. 351 ; Fardy
V. Williams, 38 Md. 493; Brewer \. Wilson, 17 N. J. Eq. 180 ; Sims
V. McEwen, 27 Ala. 184 ; LoMell v. LobcleU, 36 N. Y. (9 Tiff.) 327.
And especially in cases for the specific enforcement of a contract to
devise real estate, where the property has been devised to other
parties, the utmost certainty is required ; as, by the enforcement of the
contract, the court undertakes to set aside a solenm testamentary act
of the deceased party, in the absence of all possible explanation of his
contract, and when he is no longer present to vindicate himself against
the imputation of bad faith. Semmes v. Worthington, 38 Md. 298.

On a bill in equity to enforce specific performance, parol evidence
ifl admissible in estabhshing the contract, unless the statute of frauds

SPECIFIC PERFOEMANCE. 825

is pleaded or set up in answer. Esmay v. Groton, 18 111. 483. And
see 822, Art. T, § 2. But see Allen v. Chambers, 4 Ired. (N. C.) Eq. 125.
And it has been held that notwithstanding the answer to a bill denies
the agreement, it may be established by aliunde proof. Printup v,
Mitchell, 17 Ga. 558. As a defense to the specific performance of a
written contract, a mistake in it may still be shown by parol ( Chamhers
V. Livermoi'e, 15 Mich. 381; see 822, Art. 7, § 3); and it is competent for
the defendant to prove a parol discharge or waiver of the performance.
Tolson V. Tolson, 10 Mo. 736.

Where a contract refers to the subject-matter by a vague and insuffi-
cient description, the defect may be supplied by other documents com-
ing from or adopted by the party against whom the contract is to be
enforced, pending and connected with the transaction. Wiswall v.
McGowan, 1 Hoffm. Ch. 126.

And in all cases where a defendant resists the specific performance
of a Avritten contract, the circumstances attending the making of the
agreement may be gone into. Ratcliffe v. Allison, 3 Rand. (Ya.) 587.

§ 2. What not admissible. However closely courts of equity may
be disposed to adhere to the salutary rule of law, that parol evidence
is not admissible to vary, contradict or control a written instrument,
they must necessarily exercise much more liberality in admitting evi-
dence in order to reach the equity of the case, than would be allowed
by a court of law. But such com-ts draw a distinction as to the admis-
sibility of parol evidence in cases of specific performance between
cases where it was ofiered on behalf of the complainant, and where on
that of the defendant, and much more liberality is manifested in its
admission to resist than to enforce a specific performance. See ante, 822,
Art. 7, § 3. Parol evidence on the part of a plaintiff seeking a specific
performance of a written contract, with a variation supported by such
evidence, will, where there are no acts of part performance, be invari-
ably rejected, notwithstanding the difference of the written from the
real agreement was the result of fraud, accident or sm-prise. Fell v.
Chamherlain, 2 Dick. 484 ; Jenhinson v. Pepys, cited 1 Yes. & B.
528 ; Humphries v. Home, 3 Hare, 276 ; Higginson v. Clowes, 15
Yes. 516 ; Legal v. Miller, 2 id. 299. But see KeisseWrack v. Liv-
ingston, 4 Johns. Ch. 144. As a d^ense, however, to a bill for a
specific performance, parol evidence is admissible to show, not only
that by fraud, but by mistake or even surprise, the agreement entered
into differs from that which was reduced to writing. Joynes v. Stat-
ham, 3 Atk. 388 ; Townshend v. Stangroom, 6 Yes. 328 ; Wehster v.
Cecil, 30 Beav. 62 ; Wood v. Scarth, 2 Kay & Johns. 33 ; Price v.
Ley, 4 Giff. 235 ; Selden v. Myers, 20 How. (U. S.l 506 ; Coughmour
Vol. v.— 104

826 SPECIFIC PERFOEMANCE.

V. Suhre, 71 Penn. St. •±62 ; Carter v. HamiUon, 11 Barb. liT. But
it is said that the principle has never been established by authority,
that parol evidence is admissible, even in defense, to va/ry or contradict
a written agreement without showing that the dijSerence was the result
of fraud, mistake, accident or surprise. Stoutenhurgh v. Tomjfykins^ 9
N. J. Eq. 332. Still, a defendant will generally succeed in procm*ing
a dismissal of the bill for a specific performance, if he convinces the
court that the exercise of the jurisdiction will be inequitable under all
the circumstances. Id.

In parol sales of land, it is the duty of the courts, in the application
of the practice and principles of equity, to reject all the evidence of a
verbal contract, if, being taken together, it fails to make out such a
case as is entitled to stand as an exception to the statute of frauds.
Poorman v. Kilgore, 26 Penn. St. 365. And see Smith v. Mc Veigh^
3 Stockt. (N. J.) 239 ; Stuart v. London, etc., Railwaij Co., 1 DeG.,
M. & G-. 721 ; Bronson v. Gahill, 4 McLean (C. C), 19 ; Heaphy v.
Hill, 2 Sim. & Stu. 29. Unsupported parol evidence of conversations
with, a deceased person, taken seventeen years after the conversations,
is unsatisfactory proof of a contract to sustain a suit for specific per-
formance. Cooper V. Carlisle, 17 IsT. J. Eq, 525.

Upon a bill to enforce the specific performance of a contract to con-
vey land, parol evidence of the defendant's representations as to the
quantity of land is inadmissible to lay the ground for compensation for
a deficiency, when the contract only describes the land in general
terms. National Iron Armor Co. v. Bruner, 19 N. J. Eq. 331.

If an answer fails to set up an agreement to rescind or abandon a
contract, it is held that evidence of such agreement is inadmissible.
Mix V. White, 36 111. 484.

§ 3. Burden of proof. In suits for the specific performance of con-
tracts, the contract must be established by competent and satisfactory
proof, clear, definite and certain. If an alleged contract is supported
only by the testimony of the plaintiff, corroborated by admissions
made in conversations with third persons, and is positively denied by
the defendant, specific performance will not be decreed. Wilmer v.
Fa/rris, 40 Iowa, 309. One who claims to recover land upon the evi-
dence of a parol contract of pm*chase will be held to full, complete,
satisfactory and indubitable proof of what the contract was, what
land he purchased, its boundaries, what the consideration was, that it
was paid, and that possession was delivered in pursuance of the con*
tract. Without such proof, the statute of frauds will bar his recovery.
Woods Y. Fa/rmare, 10 AVatts (Penn.), 195. See Wilson v. Wilson, 6
Mich. 9 ; McCuev. Johnston, 25 Penn. St. 306 ; Pri/ni/wp v. Mitchell, 17

SPECIFIC PERFORMANCE. 827

Ga. 558. Tlie evidence of a parol sale of lands, between parents and
children, must be very clear to avoid the statute ; all the acts necessary
to its validity must have especial reference to it, and nothing else-
Cox V. Gox^ 26 Penn. St. 375. And where a party seeks to divest
another of the legal title to real estate by proof of a parol gift upon
conditions which he says have been complied with by him, and these
averments are denied by the answer, the burden of proof is pecuharly
upon him. Williamson v. Williamson^ 4 Iowa, 279. Where the
proofs fall short of making out the contract of wliich specific perform-
ance is sought, or any contract or bargain at all, and at most indicate
no more than a vague intention on the part of the defendant to give
the land at some time or other to the complainant, in fulfillment of one
of those family arrangements which are understood to rest on the will
of the parties, and where each sees fit to rely on expectations, they
utterly fail to make out a case warranting the relief sought. Wright
V. Wright, 31 Mich. 380. And see Johnston v. Johnston, 19 Iowa,
74.

In an action to compel specific performance, brought by a vendor
who has contracted to convey a perfect title, the burden of showing
title is on the plaintiff, and mere proof of a recent deed to himself is
held to be insufficient. Walsh v. Barton, 24 Ohio St. 28.

So, it is held that on a bill for the specific performance of a con-
tract for the sale of land made by an agent under a parol authority,
the bm-den of proof is upon the complainant to establish the power by
more than a bare preponderance of evidence. Proudfoot v. Wight-
man, 78 111. 553.

If the consideration of tlie contract is hnpeached by competent and
credible evidence, it must be sustained by rebutting proof or the bill
will be dismissed according to the established rules of chancery prac-
tice. Mead v. Randolph, 8 Tex. 191.

§ 4. Variance. An immaterial variance between the agreement
stated in the bill and that admitted by the answer should not prevent
a decree for specific performance. Ashmore v. Evam,s, 11 Is". J. Eq.
151. And where the agreement proved is sufficient to entitle the
plaintiff to a decree for specific performance, a slight variance in the
proof from the agreement alleged will not be regarded. Zane v. Zane,
6 Munf . (Va.) 406. Where on a bill for the specific performance of a
parol agreement for the purchase and conveyance of lands, the con-
tract as proved differed in the particulars of time, place and mode of
payment, from that set out in the bill, but corresponded in other
respects, it was held that the variance was not material. Bomier v.
Caldwell, 8 Mich. 463.

828 SPECIFIC PERFORMANCE.

So, in a bill for specific performance, the failure to prove an alleged
stipulation of the contract, which the law implies, is no variance, as
where the bill alleges an agreement, bj the husband, to settle property
on the wife for her sole and separate use, and the evidence fails to
show that the exclusive words were used. Andrews v. Andrews, 28
Ala. 432.

It is, however, well settled in equity as at law that the allegata et
probata must correspond, and however strong may be the proof of a
complainant and however clear his title to the aid of the court, it is
wholly immaterial, if the allegations of his bill are not in harmony
with his testimony, it cannot be received and regarded by the court.
Drury v. Conner, 6 Har. & J. (Md.) 288. Specific performance of a
contract will not, therefore, be decreed, where the proof of the con-
tract is uncertain and contradictory and substantially variant from the
allegations of the bill. Goodwin v. Lyon, 4 Port. (Ala.) 297.

ARTICLE IX.

DECREE.

Section 1. In general. A decree requiring the performance of a
contract by one party should also require, if possible, performance by
the other. Craft v. Bent, 8 Kans. 328 ; Owens v. Hall, 13 Oliio St.
571. See ante, 787, Art. 2, § 12. That a contract may be reformed and
then enforced in the same suit, see Waterman v. Button, 6 "Wis.
265 ; Keisselhrach v. Livingston, 4 Johns. Ch. 144 ; Rider v. Powell,
4 Abb. Ct. App. (N. Y.) 63 ; McOomas v. Easley, 21 Graft. (Ya.) 23.
But where a decree for specific performance is granted upon terms, the
defendant cannot be required to vary his contract. Courcier v. Gra-
ham, 2 Ohio, 341. See anU, 791, Art. 2, § 16.

A decree declaring that a contract for the sale of land ought to be
performed, and directing the vendee to execute a mortgage thereof to
secure the purchase-money, is to be understood as requiring the vendor
first to make title to the vendee. Mayo v. Purcell, 3 Munf. (Ya.)
243. See Goddin v. Vaughn, 14 Gratt. (Ya.) 102.

Where the plaintiffs, instead of a decree for a specific performance
which they were entitled to, elected to take a decree for the payment
of money by the defendant instead, it was held that they could not, on
an allegation of his subsequent insolvency, afterward obtain a decree
for a specific performance, and especially where there was an interven-
ing innocent purchaser. Weber v. Fowler, 11 How. (N. Y.) 458.

In a suit for specific performance, a husband will not be decreed to

SPECIFIC PERFOKMAlSrCE. 829

procure his wife to join in the execution of a deed for the purpose of
releasing her inchoate right of dower, if she is unwilling to do so. The
husband, however, may be decreed to convey and to give indemnity
against the claim of the wife. Welsh v. Bay and, 21 jST. J. Eq. 187;
Reilly v. Smithy 25 id. 158. But a decree of indemnity will only be
made where it appears that the wife's refusal to convey is not her vol-
untary act, but made in bad faith by the device of the husband to
escape his just obligation. Peeler v. Levy, 26 id. 330.

§ 2. The relief in general. Specific perfoi-mance of contracts is
within the discretion of courts of equity, and it will not be decreed
unless the contract is fair, just, and reasonable, in all respects, and there
be no doubt in the proof of any of its terms. See rnitej 826, Art. 8, § 3.
It is, however, stated as a general principle, that, where an agreement
contains provisions which, by reason of some technical rule of law,
cannot be carried into effect according to its literal import, it is the
duty of a court of equity, for the sake of the intent, to give it that
construction which the rules of law will tolerate, and the intention of
the parties collected from the whole instrmnent will justify. Coale v.
Barney, 1 Gill & J. (Md.) 324. If specific performance be impracti-
cable, then the plaintiff may have approximate relief in some other
form which will secure to him the substantial advantages of his con-
tract. Bennett v. Ahrams, 41 Barb. 619. And see Hamhiltoii v.
Hamilton, 59 Mo. 232. Or, if the plaintiff is willing to accept a
partial performance, the court will, upon the bill filed, decree such
partial performance. Btdl v. Bell, 4 Wis. 54 ; Bass v. Gilliland, 5
Ala. 761.

In decreeing the specific performance of a contract for the sale of
lands, the court can only compel the vendor to convey his title and inter-
est in the land, whatever that may be. Consequently, vagueness and
uncertaioity in the pleadings and proof, or a variance between them, as
to whether the vendor covenanted to convey the entire interest in the
lands, or only his undivided interest, is held to be no obstacle to a
specific performance to the extent of his interest. Bogaii v. Daugh-
drill, 51 Ala. 312.

In a suit by the vendor to enforce specific performance of the con-
tract of sale by the vendee in possession, if the decree for specific per-
formance is refused, relief may be granted to the vendor in respect to
the rents and profits under the general prayer for relief, although the
bill contains no specific prayer that they be paid to him. Watts v.
Waddle, 6 Pet. 389. See Hampton v. Snipes, 1 Desau. (S. C.) 125;
Sugg V. Stmoe, 5 Jones' (N. C.) Eq. 126.

Where a purchaser has been kept out of possession by the vendor,

830 SPECIFIC PERFORMANCE.

the general rule is, that the parties must be placed in the same situation
as if the contract had been performed according to its terms ; and to
that end the vendor will be regarded as trustee of the land for the
benefit of the purchaser, and liable for the rents and profits ; and the
purchaser will be treated as trustee of the purchase-money if not paid,
and will be charged with interest thereon. Worrall v. Munn, 38 N.
Y. (11 Tiff.) 137. But this rule is not inflexible, and the court moulds
its relief to the circumstances of each case. See ante, 811, Art. 5, § 3.

If, upon the faith of a parol contract for the sale of lands, the pur-
chase-money, in whole or in part, has been paid, a court of equity, upon
a bill by the vendee for a specific performance to which the statute of
frauds is set up as a defense, will decree that the money be refunded
with interest, and, as against the vendors, it will be declared a lien on
the land agreed to be conveyed. Johnston v. Glanoy, 4: Blackf. (Ind.)
94 ; Hilton v. Duncan, 1 Coldw. (Tenn.) 313 ; Mialhi v. Lassabe, 4
Ala. 712.

On a bill against the infant heir for specific performance of a con-
tract of the ancestor, the court may direct a coveyance by the infant
when of age, and in the mean time may authorize the vendee to take
and hold possession, and will restrain the infant from interfering with
the possession, or incumbering the title. Sutphen v. Fowler, 9 Paige,
280. But if a purchaser has been in default during the life of a
vendor, and seeks conveyance after his death from his infant heirs by
proceedings in court, a judgment for conveyance against them will be
withheld, unless the plaintiff will accept it on the equitable terms of
paying the costs. Hill v. Kirhy, 7 Ind. 217.

In decreeing specific performance of an agreement for a lease, the
court may direct the lease to be dated at a time antecedent to alleged
breaches, in order to give the plaintifi his action upon the covenants.
Noonan v. Orton, 21 Wis. 283.

Where the contract sought to be enforced is alleged to be one by
which the defendant was to take a lease of land, and the proof shows
that she contracted for the fee, and for no other estate in the property,
and authorized no other person to make a different contract for her, the
court wiU not compel her to accept a lease instead of a deed in fee, or
give the complainant compensation for the non-performance of the
contract. Ellicott v. White, 43 Md. 145.

Upon a bill for a specific execution of an agreement and an injunc-
tion, if, upon the plaintiff's case, as made out by his bill, he is not
entitled to a specific execution of the agreement set up by him, he
cannot be entitled to an injunction which is only ancillary to the prin-
cipal object of the suit. Allen v. Burke, 2 Md. Ch. 534.

SPECIFIC PERFOR]\IANCE. 831

A court of equity disregards penalties, and will enforce the specific
performance of a contract secured by a penalty without being limited
in its decree by the amount of the penalty. Gordon v. Browtt, -i
Ired. (N. C.) Eq. 399.

§ 3. Compensation in damages in lieu of performance. There is
some conflict both in the English and in the American decisions as to
how far courts of equity will entertain bills for compensation or dam-
ages, except as incidental to other relief . SeGa7ite, 763, Art. 1, § 1. But
while tins is so, it is now well settled, that where a court of equity
clearly has jurisdiction of the subject of the controversy, jurisdiction
for compensation or damages will always attach where it is ancillary to
the rehef prayed for. Thus, when the court has jurisdiction of the
case, and it is a case proper for specific performance, it may, as ancil-
lary to specific performance, decree compensation or damages. Nagle
V. Newton, 22 Gratt. (Ya.) 814 ; Beyer v. Marlis, 2 Sweeny (^. Y.),
715 ; Newham v. May, 13 Price, 258. If the jurisdiction does attach
in any other cases, it must be under very special circumstances, and
upon peculiar equities, as, for instance, in cases of fraud or in cases
where the party has disabled himself by matters ex post facto, from a
specific performance, or in cases where there is no adequate remedy at
law. 2 Story's Eq. Jur., § 799; Andrews v. Brown, Z Cw&h. 130;
Pratt V. Law, 9 Cranch, 492 ; Scott v. Billgerry, 40 Miss. 119 ; Sims
V. McEwen, 27 Ala. 184 ; Tenney v. State Bank, 20 "Wis. 152 ; Milh-
man v. Ordway, 106 Mass. 232. No inflexible rule can be adopted
applicable to all cases, but each case must be decided on its own special
facts. Comj)ensation is to be awarded when it appears, from a view of
all the circumstances of the particular case, it will subserve the ends of
justice ; and it will be denied, when, upon a Kke view, it appears that
it will produce hardship or injustice to either of the parties. Peeler v.
Levy, 26 N. J. Eq. 330. Generally, it will be denied where the party
asking it had notice at the time the contract was made, that the vendor
was agreeing for more than he could give or convey, and it appears
that the vendee has not, in consequence of the contract, placed himself
in a situation from which he cannot extricate himself without loss.
Thomas v. Bering, 1 Keen, 747 ; Nelthorpe v. Holgate, 1 Coll. 223 ;
Harnett v. Yeilding, 2 Sch. & Lefr. 559 ; McQueen v. Choteau, 20
Mo. 222. And see Ellett v. Wade, 47 Ala. 456.

§ 4. Compelling part performance. See ante, 778-783, Art. 2, §§
4-8 ; Art. 4, § 2.

§ 5. Decree, how enforced. A suit for a specific performance like
that of foreclosure is of a twofold character partly in personam and partly
m rem. The court may enforce the contract either by operating upon

832 SPECIFIC PERFORMANCE.

the person to compel a conveyance, or may pass the title of the land by
decree. Bui'^'all v. Eames^ 5 Wis. 260. And there is no doubt that
when a court of equity has jurisdiction of the person of a defendant, it
may decree the specific performance of a contract for the conveyance
of land situated in a foreign State or county. See ante^ 765, Art. 1, § 3 ;
Gardner v. Ogden, 22 K. Y. (8 Smith) 327. But although a court of
equity will act upon the person of a defendant within its jurisdiction, and
compel the specific execution of a contract in relation to lands in a foreign
State, on a proper case being made, still, it is said that the court has
never gone to the extent of compelling a defendant, by its decree, to
go into a foreign State and specifically execute a contract ihere^ even
in the case of a natural person, and more especially when the defend-
ant is an artificial person, having no legal existence beyond the terri-
torial limits of the State which created it. It was accordingly held in
a recent case in Georgia, that a court of chancery, in that State, has
no jurisdiction to compel a domestic corporation to go into a foreign
State and specifically execute a contract by opening ditches on the
complainant's land, keeping the same open to a certain depth, construct-
ing and keeping in repair cattle-guards thereon, and on its failure thus
to perform, to enforce that decree, by attachment and sequestration of
its property in the State of Georgia. Port Royal R. R. Co. v. Ham-
Tnond^ 58 Ga. 523. But see Penn v. Hay ward, 14 Ohio St. 302.

In an action for specific performance, the plaintiff, after a decree in
his favor which does not designate the time for performance, may de-
mand its enforcement at any time until the statute of limitations be-
comes available to his adversary. Redington v. Chase, 34 Cal. QQQ.

A decree in favor of the vendor of land on a bill by him for a spe-
cific performance of the contract of purchase, finding the sum due the
vendor, and ordering the sale of the bargained premises, and awarding
the vendor an execution for any unsatisfied balance of the purchase-
money that may remain after the sale, was held to be proper. Corhus
v. Teed, 69 111. 205.

But a decree directing one party to pay on a certain day, on condi-
tion of the other surrendering the land without ordering a surrender,
or reserving to the court to determine on the performance, was held to
be erroneous. Jarman v. Davis, 4 T. B. Monr. (Ky.) 115. So, it is
erroneous in a decree for specific execution to appoint a commissioner
to convey when the purchase-money is paid ; the time when the con-
veyance should be made is proper for the decision of the court alone.
Payne v. Wallace, 6 id. 380. See McDaniel v. Watson, 4 Bush (Ky.),
234 ; Roberts v. Lovejoy, 28 Tex. 641 ; Etchison v. Dorsey^ 1 Bland
(Md.), 535.

SPECIFIC PEKFOEMAJ^CE. 833

And where the defendant to a bill for specific performance of a con-
tract to convey land alleges that the land consists of two tracts, that he
is the owner of one, and that the other belongs to his wife, and then
proceeds to set up a defense which, if good, appHes to the whole con-
tract, it is eri'or for the court to render a decree in respect to one tract,
and reserve the question as to the other. Swepson v. Mouse, 65 N. C.
34; S. C, 6 Am. Kep. 735.

Vol. Y.— 106

INDEX TO VOLUME V.

A.CTION; PAGE.

When judicial officer liable to 30, 85

When public officer may maintain 34

For money had and received 35

Qui tarn, action 156

Popular action 156

Of debt for penalty 158

When qui tarn action lies » 160

Judgment, in qui tarn « 163

ADMISSIONS:

Of partner binds the firm « 131, 132

ALTERATION:

Of contract discharges surety 231

ASSIGNMENT:

Office will not pass by 18

Otherwise in England 18

Pay of officer not assignable • • • • 28

Of dower by infant heir • ■ 66

Partner may assign firm paper 130

Power of partner to make general 132, 133

Owner cannot assign his property in pledge 172

Of rights to surety - " 217

Of mortgage, what interest passes 433

Of growing crops 538

ATTORNEYS:

Not entitled to pay, without proving retainer 22

Compensation iu absence of agreement 23

Not entitled to pay for worthless services 25

Actions against, for malpractice 36

Dealings between attorney and client 38

May be enjoined from divulging secrets 38

BAILMENT :

Pledge or pawn 167, 178

Distinction between sale and 537

836 INDEX.

BASTARD : page.

Mother of, bound to maintain ■ 49

Has no name • 49

BONDS:

Official o 5

BURDEN OF PROOF :

On jDarty alleging incapacity of a judge 15

Lies on party setting up infancy 80

In suit for partition 97

In action of debt for penalty 158

On pledgee to account for loss of pledge 180

In action of replevin 494, 495

In actions for specific performance 826

COMPENSATION:

Of officers, not founded on contract 1, 2

When legislature may change 19

Of judicial officers, how regulated 23

For extra services by officers 27

To president of corporation 27

Minor entitled to, for military service 45

To parties in partition 87

Distinction between compensation and profits 109, 110

To land-holders by railway company 295, 297

Of receiver 389, 390

Decree of specific performance with 781

For delay in performance of contract . - 811, 831

CONTRACT:

By infant, when voidable 62

By infant, when binding 63

Of apprenticeship, by infant 63

By infant, for necessaries 63, 64, 78

Of copartnerships, how construed 1 14, 123

Of suretyship, how construed 189

Subscription to stock is 277

Contracts ultra vires 280, 281

Specific performance of 350, 766

Distinction between executed and executory 541

In general restraint of trade are void 634

CONTRIBUTION :

Right of surety to ■ 220

When surety may claim 220, 222

Principle upon whicli right to, rests « 221

Right to, how lost 223, 225

In general average 706

CONVERSION:

Infant may be sued for 73

Sale of stock, when » . 169

Sale of pledge before default is 167, 179, 181

When pledgee may maintain action for <> 181

im)EX. 837

COSTS:

Guardian ad litem, when liable for 77

In proceedings for partition 103, 104

In i)eual actions 165

In actions by surety , , 206

In proceedings in prohibition , , . . 256 257

In proceedings in nature of quo warranto 370

In proceedings to redeem real estate .435, 436

In action of replevin 503

In proceedings on scire facias 654

DAMAGES :

Recovery of, for seduction 46

Infant liable for, in tort 67

In penal actions 164

For lands taken for railway purposes 299

In action of replevin 499

For breach of contract to sell goods 608, 609

Recoupment of 611

In action for seduction 665, 668

In action for slander 750

In lieu of performance of contract 831

Double or treble damages, when recoverable 164

DEFENSES :

To action against public officer „ 38, 39

In action by infants 77

Infancy as a personal defense 80

To an action for a penalty 162

To writ of quo warranto 267

To action of replevin 491

Of fraud, in action by buyers 639

To scire facias 651

To action for seduction 668

To action for slander 753

To action for specific performance 822

DEFINITION :

Office 1

Legitimate children 40

Partition 82

Partnership 105

Penalty 156

Pledge 167

Suretyship 185

Prohibition 248

Quo tcarranto 258

Receiver 353

Recognizance 395

Equity of redemption 419

Reformation of instrumenta 437

838 INDEX.

DEFINITIOlSr— Continued. page.

Replevin 454

Rescission of instruments 507

Sale 527

Express warranty 554

Delivery 567

Stoppage in transitu 611

Scire facias , 641

Seduction 655

Shipping 673

Bottomry 686

JRespondentia . , 687

BiU of lading 694

General average 703

Inevitable accident 709

Slander, 737

Specific performance , , 763

DELIVERY:

Actual delivery not necessary to pledge 168

Symbolical, when sufficient 168

Of contract of suretyship 188

Duty of railway companies to deliver goods 318, 319

Delivery up of instruments, when decreed 535

Of goods, when a sufiicient appropriation 545

Duty of vendor to deliver 567

Time of 568, 569

Place of 570

Mode of 573

Of goods to carrier 573

Constructive 574

By deed or bill of sale 577

By transfer of bill of lading 578

Payment and deliveiy, when concurrent acts 581

Of goods without payment 584

DUTY:

When certain 17

When ministerial 17

Officer protected in discharge of 17

Officer bound to make redress for breach of 35

EMINENT DOMAIN:

Right of, by railway company 286

Right to, derived from legislature 386

Title acquired under right of 288

EXECUTOR:

Office of 1

Of infant may affirm voidable contract 68

When party to bill for partition 95

Dispossession of, by appointment of receiTer 364

INDEX. 839

PEES : PAGE.

May be presumed from usage 19

Of attorneys 22, 23

Lien for, on money of his client 24

Of clerks of courts 25

Of officers of courts , , 26

Public officer cannot assign „ 28

Action to recover 35

Injunction to restrain collection of 37

Appointment of receiver to receive 357

When receiver entitled to 390

FIXTURES:

Cannot be replevied 478

FRAUD:

Judge may be impeached for 16

Effect of, upon contract of surety ; . . 190, 202

When surety cannot take advantage of 203

Of creditor discharges surety 226

When receiver appointed on ground of 357

Reformation of instrument on ground of 438, 439

Ground for rescission of contract 510, 511

The rule of caveat emptor not applicable in cases of » 638

FRAUDS, STATUTE OF:

Parol partition void within 84

Does not stand in the way of reformation of instruments 441

General provisions of 589

Contracts within 590

Auction sales within 591

Goods, wares and merchandise within 591

Word " price " as used in statute 596

What is sufficient acceptance within 598

Sufficient memorandum within 603

Contract for sale of land within 798

GUARDIAN:

Office of 1

Father entitled to act as, when 42, 47

Testamentaiy guardian ... 42

Natural guardian of illegitimate child 43

Enhstment by infant not binding without consent of 63

Of infant, how appointed 76

Guardian ad litem 76, 79

May sue for seduction of ward 661

EAB'EAS CORPUS:

Writ of, to recover custody of child 43

INCORPOREAL HEREDIT^i^IENTS:

How granted 1

Offices are, in England 1

840 INDEX.

INFANT (See Parent and Child) : page.

Cannot hold judicial office 5

May hold office merely ministerial 5

Custody of, in whom 41

When custody of, awarded to mother 43

Father entitled to services of 44

Duty of father to support 52

Duty of mother upon death of father c. . . 52

To what age infancy continues at common law 56

May acquire and hold property 58

How far bound for necessaries , 61

Submission to arbitration by, voidable 61

Promise of marriage by, voidable 63

When voidable contract may be avoided by 63

Cannot ratify contract during minority 67

Must appear by guardian , 78

Question of infancy one of fact 80

As party to proceedings in partition , 101

Appointment of receiver in action by „ 367

May sue for slander 746

INJUNCTION:

Will lie to restrain public officer 36

When partner may be restrained under , 139, 154

Against railroad company 348, 350

JOINT-STOCK COMPANIES:

Nature of 117

Rights and privileges of stockholders 118

Not dissolved by change or death of members 138

JURISDICTION:

Of partition, in what court 83, 98, 99

Of inferior courts, how restrained 348

Origin of jurisdiction of courts 348

Of information in nature of quo warranto 366

Of United States courts 383, 391

Of equity, over receivers , 353

To correct mistakes in wills .* 443

In replevin 458

As to rescission of contracts 518

Of scire facias ... 647

I*EGISLATURE :

May diminish or abolish fees of officers 2

May establish, alter, or abolish an office 3

May create corporations 373

LIEN:

Of attorney for his fees 34

Loss l>y assigning claim 24

Of attorney upon judgment 34

Upon clients' papers 34

INDEX. 841

LIEN — Continued. page.

Judgment as 87

Partner's lien on partnership property 108

Of firm creditors or partnership property 148

Of i^ledgee 174

When pledgee does not forfeit 181

Of surety 210, 311

Of railway company for freight 321

How lost, or waived 458, 459, 725

Sufficient to sujDport replevin 484

Waiver of, for price by vendor 620, 621

Vendor's lien, how abandoned 621

Of part owners of ship 684

Upon vessels 724

LIMITATIONS, STATUTE OF :

Right to partition not affected by 90

Acknowledging partnership debt takes it out of 141

Need not be pleaded in penal actions 163

Suspension of, in favor of infants 77

LUNATIC :

Partition of estate of , 88

When necessary party plaintiff in partition 90

Lunacy of partner, dissolves partnership. 138

Cannot make valid pledge 171

Receiver in case of lunacy 857, 367

MANDAMUS:

Will not lie to recover an office 10

Will issue to compel performance of ministerial duty 10

Will lie to compel production of papers 19

When it will not lie against State treasurer 29

LIARRIAGE :

Infant may sue for breach of promise of , 75

MISTAKE OF FACT:

Reformation of instrument for. 437, 438

Ground for rescission of contract 513

MISTAKE OF LAW:

Money paid under, cannot be recovered back 24

No ground of relief in equity 440

As ground for rescission of contract 513

MUNICIPAL CORPORATION:

May abolish an office created by it 11

Injunction to restrain officers of 37

Action for penalties, under charter of 161

Subscriptions of, to stock of railway company 276

Replevin lies in favor of 485

NEGLIGENCE:

Ministerial officer, liable for 31, 32

Liability of postmaster for 33

Vol. Y. — 106

842 INDEX.

NEGLIGENCE — Continued. page.

Damages for, in action for injury to child 46

Where father is liable for negligence of child 53, 74

Action for, by infant 60

Pledgee liable for 178

When negligence of creditor discharges surety. 238, 239

Liability of railway companies for 332, 326

Contributory negligence of passengers 345

Liability of receiver for 385, 387

Mere fact of collision does not raise presumption of 709

NOTICE :

Public officer cannot be removed without 13

Of sale of pledge 176

Of resale of goods 619, 620

OFFICE AND OFFICERS:

Definition 1

Incumbent cannot sell office, purchase or incumber it 1

Will not pass by assignment of property 1

Right of fees does not grow out of contract 1

Fees may be abolished 2

Duties may be increased, or diminished 3

Office how created 3

By legislation or constitution 3

Appointment in case of death or disability 3

Commission merely evidence of appointment 3

Time from which title commences 3, 10, 11

Officers, how appointed or elected 3

May be elected or appointed 3

Commission is only legal evidence of title 3

Appointment to fill vacancy 3

When to be confirmed by senate 3

Holding over until successor appointed 3

Appointment for life 3

For special occasion 3

Officer not to appoint himself 3

When presumed to be duly authorized to act 3

Who are officers 3

One in possession 3

One acting as such 3

When validity of appointment may be questioned 4

Public officers defined 4

What constitutes ^

Reputed to be public officer 4

When second commission presumed erroneous 4

Who may hold office '*

Who eligible to office of president 4

Who eUgible to office of senator 4

Who eligible to office of member 4

When disqualified ^

INDEX. 843

OFFICE AND OFFICERS — Continued.

PAGE.

When cannot be executed by infants _ 5

When ofSciul oath sufficient .5

When official bond forfeited g

Extension of time of filing of bond 5

When bond valid ^

What constitutes discharge of bond g

When sureties are Hable to contribution g

Wlien sureties are not liable g

Approval of official bond g

Breach of bond, what constitutes g

Action on bond n

What constitutes officer de facto 7

When acts of, valid -j- g

When acts of, not valid 7' g

Acts of usurper, wlien void ' 7

What affords presumption of colorable title 7

Title of officer cannot be assailed collaterally g 9

Who may become so, though ineligible . . .' g

Where one may become so though no vacancy 8

Title to office, how tried 9

Determination of title g

Who must bring action to try title 9

When mandamus will not lie 1q

How title tried ja

When judgment of ouster renders acts void 10

Expiration of term jq

When changes of constitution terminates office and salary H

When office may be abolished n

When term of, may be changed H

Holding over at common law U

What is not a holding over H

When person cannot assign office H

When office becomes vacant U

When resignation may be by parol H

What constitutes resignation \i 13

Involuntary discharge 19

To whom the power of removal belongs 13

How removed p:)

New appointment operates as removal of incumbent 13

Re-appointment, condonation of previous misconduct 13

Officer cannot be removed without notice 13

When officer restored after removal 13

How vacancy in office created 13 14

How filled 23

When rightful incumbent must try right 13

Of vacation of one office by acceptance of another , 13

Of the powers and duties of officers in general 14

When officers not liable for errors in judgment 14

FAGBi

8M INDEX.

OFFICE AND OFFICERS — Continued.

When forms of statute must be complied with 14

Of service of process by officer 14

What duties may be delegated 14, 15

What duties judicial officej-s may discharge 15

When counsel can be employed by officer of corporation 15

Of officers of corporation selling its property 15

Locating railroad line by officers 15

What officer to act in certain case 15, 16

Mode of exercising powers 16

Review or control over officer's action 16

What is a specific duty 16

What is a ministerial duty 17

Acts of officers, how construed 17

Of the general powers of officers 17

Of the assignment or transfer of office 18

Deputy differs from agent 18

Acts of deputy when appointed, valid 18

Rig'lits and compensation of 19

Power of legislature to abolish office, change its duties and com-
pensate 19

Legislation of, must not conflict with constitution 19

Rights to office, books and papers 19

Salary or fees of public officers 19, 20, 21, 22

Of the compensation of judicial officers 22

Attorney must prove retainer to be entitled to pay 22

Payment of services of counsel 23

Of absence of agreement with attorney as to price 23

Of agreement to accept specific sum 23, 24

Attorney's Uen on money in his hands for fees 24

What amount attorney may take for services 24

Attorney's lien on judgment 24

Attorney's lien on papers 24

Collusive agreement to settle cause by parties 24

When attorney not allowed to prevent compromise 25

When permitted to prosecute suit to perfect lien 25

Where services are of no value to client 25

Wlien contract between attorney and client will be set aside 25

When attorney cannot recover for services or advice 25

Fees of clerks of courts 35, 26

Prepayment of fees 35, 26

Right to recover fees 26

Illegal fees 36, 27

Fees of officers of courts 36

Subpoena served by sheriff in Ins own cause 36

Right of slieriff to recover commission 36

When sheriff entitled to poundage 36, 37

Travel fees of officer, how computed 37

Allowance of extra pay to officer of court a judicial act 37

IKDEX. 845

OFFICE AND OYFICBHS — Continued. p^^^

When officer allowed extra pay 27 28

Assignment by public officer of prospective salary void 28

When profits of public office of assignor does not pass 28

Liabilities of officers 29

When malice must be shown 29

When motives cannot be inquired into 29 30

When mandamus cannot be maintained 29

When ministerial officer protected in execution of process 29

When warrant of arrest will not protect officer who serves it 29

When ministerial officer not liable for injury 30

When official acts are presumed valid 30

Judicial officers exempt from liability, when 30

Pubhc officer making contract, when liable 30 31

Liability of officer for neglect 31 32

Ministerial officer bound to obey law 32

When officer is responsible to person injured 32

Liability of clerk through failure to take proper security 32

Liability of postmaster for money contained in letter stolen 32

Liability of officers for torts 33

Bemedies by and against 33

Remedies by officers for goods wrongfully taken from their possession, 33, 34

When officer may maintain action 34

When action may be maintained against 35

When legality of election may be contested 35

Civil remedy for misconduct in office 35

Rejecting vote of a qualified voter, wrongfully 36

Proceedings against attorneys for malpractice 36

When injunction will lie to restrain officer from doing unlawful acts ... 36

What court has jurisdiction to interfere by injunction 36

What plaintiff must show to obtain injunction 37

When injunction will not be granted 37

What constitutes violation of 37

When attorney may be restrained by injunction 38

Defenses 38

What defendant may set up, as an officer, in defense 38, 39

What officer may show in mitigation 38

What is not a defense 39

PARENT AND CHILD :

Of legitimate children 40

Who are legitimate 40

Presumption of legitimacy 40

Rule of the English law 40

Rule of the civil law 40

Of the rights of parents 41

To custody of children 4X

Right of custody, when terminated 41

Right to, how lost 41

Right to, how regained 41

846 INDEX.

PARENT AND CHILD — Continued. page.

Custody of father superior to that of mother 42

In what cases awarded to mother 42

Father entitled to act as guardian 42

May appoint testamentary guardian 42

May relinquish custody of child 42, 43

When mother has right to custody 43

Right to, upon death of father 43

Natural guardian of illegitimate child 43

Parental control 43

Right to control person of child 43

Foundation of such right 43

May exercise necessary discipline 43

Liable for unnecessary cruelty 43

Limit of right to chastise 43, 44

Stepfather i7i loco parentis 44

Control of child by teachers 44

Extent of teacher's authority 44

Right to child's services, etc 44

Rights of father to 44

Right to earnings or wages of child 44, 45

Not entitled to bounty money paid to child 45

Rights of mother to 45

On death of father entitled to child's services 45

Recovery for injuries to child 46

Recovery by father 46

Right of action for personal injury to child 46

When he may sue for seduction 46

Action for seduction by stepfather 46

Damages recoverable for seduction 46

Recovery for injury by negligence 46

Contributory negligence of father bars recoveiy 46, 47

Recovery by mother 47

When mother may sue for injury to infant child 47

Control of cliild's property 47

Usually intrusted to guardian 47, 48

Parents usually appointed guardian 48

Of illegitimate children 48

Who are illegitimate 48

Illegitimacy, how established 48

Custody of illegitimate cliildren 48

Mother entitled to 48, 49

Mother bound to support 49

Father bound to support by statute 49

Of their riglits of property 49

Cannot inherit at common law 49

May acfjuirr' luul hold i)roperty by assumed name 49

Duties and liabilities of parents 50

Their duties in general 50

INDEX. 847

PARENT AND CHILD — Continued. page.

Support of children 50

Must supply necessaries .... 50

What are necessaries 50

Effect of refusal to supply 50, 51

Child may bind jiarent for 51, 53

Parent may aid child in a lawsuit 52

Duty of the father 52

Primarily bound to support child 52

When allowance made from infant's estate 52

Husband not bound to support stepchildren 52

Duty of the mother 52

When liable for support of child 52, 53

Education of children 53

Duty of jiarent to provide for 53

Liabilities for child's torts , , 53

When parent is not liable 53

Rights and duties of children 54

Rights and duties generally 54

Reciprocal nature of 54

Obedience and service 54

How enforced 54

How relieved from service 54

Implied emauciiDation 54, 55

Stepfather not entitled to custody or service of stepchild 55

Agreements between father and child 55

Promise to pay for child's services not implied 55

Express agreements 55

Support of parents by child 56

Not liable for at common law 56

Liability by statute, or express promise 56

Rights, duties and liabilities of infants 56

Infant's rights in general 56

Legal status of 56

Period of infancy at common law 56, 57

Testamentary capacity of infants 57

Infant may act as agent 57

Laches not imputable to infant 58

Criminal lia!>ility of infant 58

Emancipation and right to wages .... 58

Rights in real property 58

Right to acquire and hold 58

Control of, intrusted to guardian 58, 59

Conveyances by infants voidable , 59

Rights in personal property 59, 60

Right to redress for torts 60

May sue for injury to liis person 60

Duties and liabilities of infants 60

Of their contracts generally 60

848 INDEX.

/•ARENT AND CHILB — Continued. p^ge.

By what contracts bound 60, 61

Contracts for necessaries 61. 63

Contracts voidable by infants 61, 63

Contracts for service 63

May be avoided by infant 63, 63

Contracts for public service binding on 63

Bound by contract of apprenticeship , 63

When responsible for necessaries ^ 63, 64

Things held to be necessaries 64

Things adjudged not necessaries 65

Contracts under seal 65

Avoidable by infant 66

Negotiable instruments voidable by 66, 67

Confirmation and ratification. , , . . 67

When ratification is binding 67, 68

What acts amount to ratification 68

Ratification may be inferred 68

Infant's executor, etc. , may ratify 68

Modes of confirmation 69, 70

What is not a confirmation 70

Disaffirmance 71

Right of, when exercised 71

Modes of 71, 73

Return of consideration received 73

Effect of disaffirmance 73

Liability for torts and frauds 73

Infants generally liable for 73

For what torts liable 73, 74

Acts must be wholly tortious 74

Gifts by infants 74, 75

Gift by child to parent 75

Snits by and .against infants 75

Suits by, on contracts 75

For breach of promise 75

To recover personal property 75

Ejectment for lands 75

For injury to person or character 76

Suit by guardian or next friend 76, 77

Suits against infants 77, 78

For breaclies of contracts 78

For necessaries 78

For torts and frauds 78

Must appear on record by guardian 78, 79

Infant's liability for costs 80

Infancy as a personal defense 80

Must be pleaded specially 80

Question of infancy one of fact 80

Burden of proof 80, 81

INDEX. 849

PARTITION: pagb.

Of partition in general 83

Definition and nature 82

Writ of partition at common law 82

Jurisdiction in equity 82

General rules and principles 82, 83

By tenants in common 83, 84

By tenants in common of real estate 85

Between husband and wife 85

When legal title is in dispute 86

Partition of real estate 87

Partition by deed 87

May be partition of standing timber 88

Of the estate of a lunatic 88

Of land divided by a river 88

Of land bounded by passageways. 88

Partition of personal property 89

Proceedings for, by bill in equity 89

Who may claim partition 89

Tenants in common 89, 90

Trustees 90

Tenant by the curtesy 90

Committee of lunatic, etc 90

Partner 91

Judgment creditor 91

Heirs of deceased person 91, 92

Executors and devisees of deceased tenant 92

Devisees in remainder ... 92

Assignees of tenant for life 93

Mortgagor and mortgagee 93, 94

Waiver of right of partition 94

Wlio to be made defendants 94

Who may come in and defend 94

Incumbrancers as defendants 94, 95

Heirs and executor 95

Who not proper parties 95, 96

Eflfect of non-joinder of defendant 96

What is a defense . 96

Burden of proof 97

What are not defenses 97, 98

Jurisdiction of court 98

Concurrent jurisdiction in law and equity 98

Partition of personal property in equity 98, 99

Proceedings in partition are in rem 99

Mode of proceeding in equity 99

Legal title must be determined 99

What judgment or decree proper 100

What decree must set forth 100

Wlien real estate cannot be divided 100

Vol. y.— 107

850 mDEX.

PARTITION — Continued. pagb

When sale is necessary 100

Where bill prays for general relief 100

When infant ie a party 101

As to widow's dower 101

Judgment, when void 101

Execution of judgment or decree 102

Decree equivalent to conveyance 102

Judgment conclusive as to title 102

Costs 103

Proceedings dismissed with, when 103

Defendant, when entitled to ... 103

Plaintiff, when entitled to 103, 104

When to be borne equally 104

Apportionment of costs 104

PARTNERSHIPS :

Definition and nature 105

How created 105, 106

Business must be lawful 106

When each party lawful agent of the partnership 106

When partnership liable for the tort of one partner 106, 107

Relation of partners, what is required 107

Private speculation with partnership funds 107, 119

Lien of each partner on partnership funds 108

Partners as between tliemselves 108

How the question of actual partnership determined 108, 109

What constitutes a partnership 108, 109

What does not constitute a partnership 109, 110

Who is a partner 110, 111

How partners liable as to third persons 111, 115

Best test of partnership as to third persons 112

Sharing profits 112

The ground of liability of partners 112, 113

Presumption of partnership . . . , 113

Admissions of partners 113, 114

Partnership cannot be proved by general reputation 114

Definition of dormant partners 114

Wlien dormant partner necessary defendant 114

What notice required on retirement of partner 114

How contracts of copartnerships construed 114, 115

Definition of limited partnership 115

Limited or special partner, liability of 115, 116

When notice of dissolution required of special partner 116

Definition of joint-stock companies 117

How members of, treated by third persons 117

Rights and privileges of stockholders in joint-stock companies 118

Difference between ordinary partnership and joint-stock company 118

Rights^ powei's, duties and liabilities to each other ,. , 118

Interest of partners presumed to be equal 118

INDEX. 851

PARTKEESniPQ— Continued. ^^^^

Private property of partners 118

Agreements between partners 118. 119

Partners considered as joint tenants II9

Interest of, in the stock in trade Hg

When real estate partnership property II9 130

When real estate considered partnership capital 120 121

When interest of a partner in real estate subject to right of dower 121

When interest of a partner in real estate vests in his heirs 121

Right of one partner to convey real estate of partnership 121, 123

One partner can make executory contract to convey 122

How part owners of ships considered 122

Distinction between part owners and partners 123

Constriiction of contracts between 123 124

Continuation of, after expiration of time provided for . . 124

When provisions in contract may be modified or waived by 124

Dealings of, on separate account 124. 125

When partner regarded as trustee of firm I05

What acts bind the firm 126

When firm bound by acts of one member 126

What is necessary to bind the firm 127

Right of one partner to mortgage firm property 127

Bond executed by one partner in firm name 127

Right of one partner to mortgage his individual interest 127

By purchase of goods 127 128

Right of one partner to execute bill or note 128, 129

Restraining partner from using firm paper 129

Right of one partner to bind firm by indorsement 129, 130

Right to bind firm by guaranty 130

Right of, to transfer firm paper ... 139

Use of firm property for private purposes 131

Admitting debts or liabilities of firm 131, 132

Assignment made by one partner 132, 133

Submission to arbitration by one partner 133

Right of partner to bind firm by deed or mortgage 133, 134

Right of one partner to execute lease under seal 134

Right of one partner to execute bond under seal 134

Right of one partner to execute chattel mortgage under seal 134, 135

Right to receive payment, compromise and discharge claims 135

Dissolntion 135

By oral declaration 13g

By assent of all the members 1 36

When court of equity will decree dissolution. 136, 137, 138, 139

By assignment or sale of property 136

By limitation I37

By death 137^ 138

When insanity ground of dissolution 138

When bankruptcy or insolvency ground of dissolution 138

When inability to act ground of dissolution , 140

852 INDEX.

PARTNERSHTPS — Cantinmd. pagb.

Effect of dissolution 140

What powers partners have after dissolution 140, 141

What acts of partners are binding after o , . . . . 141, 142

Right of one partner to close up affairs after 142, 143

Power of survivor in genei'al = 143, 144

Who to be paid fii*st out of assets of firm 144

When compensation allowed for extra services to partner 144

Authority of retiring partner to bind firm 144

Liability of retiring partner 144, 145

Actions at law or in equity 145

Under what name partners may conduct business , 145

Under what names to sue 145

Actions by partners against third persons 146

May maintain action for tort 146

When surviving partner may maintain action 147

When proper to join heir and administrator of surviving partner as

defendant 147

Interests of representatives of deceased partner 147

Suits by third persons against partners 147

Amount that creditor of one partner may recover on execution 147

Creditors of partnership preferred to creditors of partners 148

When this preference destroyed 148

How interest of partner sold on execution, taken 149

When one partner may sue another 149, 150, 151, 152, 153

Remedy in equity, until final settlement had. . 151

Whether express promise to pay the balance, necessary 151, 152

Right of stockholder to sue company for work done 152

Right of partner to sue for claim arising after dissolution 152

Accounting between partners . . . , 153

Right of partner to obtain injunction against copartners 154

Appointment of receiver and taking possession of partnership property,

154, 155

When receiver will be appointed 155

PENALTIES:

Of penalties in general 156

Definition and nature 156

Cannot be raised by implication 156

Qui tarn actions 156

Popular action 156

Penalty cannot be raised or altered 156

Construction of statute 156, 157

One and entire penalty 157

No penalty for past omissions 157

Penalty implies a prohibition 158

When action will lie for 158

Action of debt, when proper 1 58

Debt or assumpsit 158

When no action will lie 158, 159

INDEX. 853

PENALTIES — Continued. page.

Who may sue 159. 160

Party aggrieved 160

Commoa informer 160

Action in name of people 161

Who may be sued 161

Joinder of defendants 161, 162

Who not liable 162

Defenses 162, 163

Pleas in bar 163

Statute of limitations 163

Contributory negligence 163

Ignorance of law no defense 163

Recovery and judgment 163

Penalty, how assessed 163

Double or treble damages 164

Forfeiture of interest 164, 165

Costs 165

Rules as to 165

Compounding penalties 165

When allowed 165, 166

Costs on compounding penalties 166

PLEDGE :

Of pledges in general 167

Definition and nature 167

Distinction between pledge and mortgage 167, 168

Chattels, how pledged 168

By delivery of chattel 168

By transfer of title 168, 169

Debt or engagement must exist 169

Pledgee need not hold the property 169, 170

What may be pledged 170

Goods and chattels generally 170

Negotiable securities, etc 170

Natural increase of pledge 170

Pledgor need not be owner of thing 170

What may not be. pledged 170

Property not in existence 170, 171

Pay and emoluments of officers, etc 171

Title to pension certificate 171

Who may pledge 171

All persons having legal capacity 171

Who cannot pledge 171

Persons under disabilities 171

Pledge by minor voidable • 171

Who may be pledgee 171, 172

Rights of pledgor 172

Right to redeem 172

May sell or assign property in pledge 172

854 INDEX.

PLEDGE — Continued. pagb.

Right of action for damage to pledge 172, 173

Eights of pledgee 173

Has special property in pledge 173

Is entitled to possession of , 178

Re-imbursement for expenses 174

In what cases may use pawn 174

May sell or assign his interest therein 174

Eights as to negotiable securities 174, 175

Right to repledge 175

May sell pawn on default of pledgor 176

Sale how conducted 176

May not sell commercial pajier 176

Cannot appropriate pledge to himself • 177

Right of third persons 177, 178

Action by pledgor against pledgee 178

Pledgee bound to ordinary diligence 178

When guilty of a conversion 179

Must account for rents and profit 179

Must account for default to restore pledge 179, 180

Burden of proof 180

Action by pledgee against pledgor 180

Pledgor bound to the exercise of good faith 180

Equitable aid in favor of pledgee 180, 181

Action by pledgor against third person 181

When action will lie 181

Action by pledgee against third person 181

For conversion of pledge 181

Bars action by general owner 181

Damages recoverable 181, 183

Remedy in equity 183

By bill to redeem 183

Compelling specific delivery to pledgor 183

Remedy at law usually sufficient 183

Redemption 183

Reasonable time for redemption to be given 183

Waiver of right to redeem 183

Complaint for accounting and redemption 183, 184

PRESUMPTION:

That officer acted from right motive 17

Of legitimacy 40, 48

Partition not presumed from length of possession 97

Partners are equally interested in partnership property 119

When relation of principal and surety presumed 187

Of discharge of surety 337

Of death of husband after seven years' absence 530

Of warranty in sale of goods 563

Of malice in slander "^48

INDEX. 855

PRINCIPAL AND AGENT: paob:.

Relation of, does not exist between public oflBcers as to unlawful acts. . . 29

Public agent not liable on contract for government 31

Each partner agent of partnership 106, 126

When pledgee is deemed agent of owner 174

Agents of railway company, powers of 310

"When carrier is agent of buyer 573

PRINCIPAL AND SURETY:

01 principal and surety in general 185

Definition and nature 185

Is collateral engagement : 185

How tiie relation arises 185, 186

Contracts not changed by statutes 186

Who are considered sureties. . _ 186

Knowledge of the relation sometimes presumed 187

Of the contract of the surety 187

How far collateral 187

Original as between principal and surety 187

Governed by same rules as other contracts 187, 188

Consideration 188

Delivery of contract 188

Construction of the contract 189

Leading rules as to 189, 190

Validity of the contract 190

Invalidated by fraud 190

Effect of misrepresentation 191

Various grounds of invalidity 192

Riglits and liabilities of the principal 193

In regard to the surety 193

In reference to the creditor 194

In reference to third jiersons 194, 195

Bights and liabilities of the surety 195, 197

Rights of, in general 195

Right to reUef in equity 195, 196

Liability to third person 196, 198

Creditor's right of substitution 198

Entitled to benefit of pledges, etc 198

Perfecting right of action 199

Must be breach of contract 199

Notice to principal not necessary 200

Exhausting remedy against principal 200

Rule in equity 201

Parties in suits against sureties 201

Who to be joined in equity 201, 202

Defense to suit against surety 202

Imperfection in contract 203

Fraud 203

Discharge by act of creditor 203

t)uress of principal 203

856 INDEX.

PRINCIPAL AND SURETY — Cmtimied. pagis.

What is not a defense 203, 204

Right of re-imbursement from principal 204

On what the right depends 204

Must have paid the debt in full 205

Amount of recovery 205

Recoveiy of costs 206

When entitled to interest 206

Limits of recovery 206

Cannot recover extraordinary expenses 206

Expenses and costs must have been reasonably incurred 207, 208

Right to retain funds of the principal 208

In what cases may be retained 208

Surety taking security 208

Rights against principal not affected by 208

From stranger, presumed cumulative 208

Insolvency of principal 209

Ground of relief to surety 209, 210

Sureties' right to priority 210

Priority, how gained 210, 21 1

Part payment by surety 211

Entitled to benefit of 211

Demand or notice 211

Notice to principal not generally necessary 211

Notice should be given when demand doubtful 211, 212

Notice as to incurring expenses 212

Defense to sureties' action 212

Performance of contract with creditor 212

Release by surety 212

Termination of relation 212

That surety was a partner 212

Payment by surety was voluntary 212

What are not defenses 213

Subrogation of surety to rights of creditor 213

When surety may claim to be subrogated 213

Upon what right of subrogation depends 213

Relates back to date of contract 213

Cases in which the right may be claimed 214, 215

When not subrogated 215

Stranger not subrogated .... 216

Surety of surety not subrogated 216

Effect of subrogation 216

Is an equitable right for protection of surety 216

Assigning creditor's securities 217

American doctrine as to 217

When assignment refused 217, 218

Of the rights of co'snreties 218

To be placed on footing of equality 218, 219

To participate in benefit of security 219

INDEX. 857

PRINCIPAL AND SURETY— (7(m<mM6<f. paqb.

When right attaches 219

Sureties must exercise good faith 219

When rule of equality not applicable 219, 220

Rights to contribution 220

Foundation of right 220

In what cases claimed 220, 221

Limitations of right 221

Amount recoverable 221, 222

When not recoverable 222

Between successive indorsers 222

Between surety and guarantor 222

Surety of a surety 222

Request to sign no bar to contribution 222

Right to contribution, how lost 223

Surety may stipulate for separate indemnity 223, 224

How obtained 224

Form of remedy 224

Parties to action 224

At law 224

In equity 224

Defenses to action 225

Release of security 225

Set-off 225

Part payment by surety 225

Of the discharge of sureties 226

What is a discharge 226

Alteration of contract without consent 226

Substitution of new surety 226

Fraud of creditor 226

Merger of contract 226

Other matters in discharge 226, 227

What is not a discharge 227, 228

Payment of creditor's demand 229, 230

Discharge of the principal 230

In bankruptcy, does not release surety 230

From prison, no discharge of surety 230

Changing the contract or obligation 231

Effect of, in releasing surety . . 231

What alterations will release » 231

What alterations will not release 231, 232

Taking a new security 232

Will not discharge surety 232

Adding name of new surety 232

Substituting new security 233

Impairing the sureties' remedy 233

How impaired 233

Effect of 233, 234

Refusal of creditor to sue principal 234

Vol. Y.— 108

858 INDEX.

PRINCIPAL AND hTJUETY — Continued. PAoa

Effect of refusal 234

Notice to creditor to sue 235

What notice must require 235

When creditor to sue without notice 235

When a refusal to sue is no discharge 236

No discharge at common law 236

Indulgence to principal 236

Forbearance, effect of 236, 237

Mere delay no discharge 227

Creditor bound to active diligence 237, 238

Effect of gross laches 238, 239

Giving time to the principal 239

When it operates to discharge surety 240

Nature of the agreement to extend time 240

Must be binding 240

Must be bar to previous suit 240

Sureties must sign it 240

Must be good consideration 240

Need not be in writing 241

Instances 241, 242

When not a discharge 242, 243

When a forbearance to sue is a discharge 244

When forbearance is no discharge 244

Staying proceedings against the debtor 244, 245

Sureties' assent to giving time 246

Assent may be inferred 246

May be given after contract 246

Discharge, how set up 247

What the plea must set out 247

PROCESS:

When ministerial officer protected by 29

When not protected by 29, 30

PROHIBITION :

Of prohibition in general 248

Difference between prohibition and injunction 248

What court may grant 249

When writ of, is proper remedy 250

When prohibition will lie 250

Wliat is no answer to application for 250

Office of 251

When prohibition refused 251, 252, 253

When only to be resorted to 253

When a matter of right and when discretionary 253, 254

When prohibition granted 254

To what courts awarded 254, 255

When it cannot be barred by lapse of time 255

At whose instance it may issue 256

When disobedience of, is a contempt 256

INDEX. 859

PROHIBITTON — Continued. page

How punishable 256

When costs allowed 256

QUO WARRANTO:

Quo warranto in general 258

Definition and nature 258

When it lies 259, 260, 263

When it does not lie 260, 261

When discretionary 261, 262

Trying title to ofiBce 262

In whose name proceedings brought 262, 263, 264

Usurping franchise 263

When proceedings must be against corporations, not against members... 264

When proceedings must be against individuals 264

Forfeiting franchise 264

Trespass by corporation does not work forfeiture 264

Upon whose application 264, 265

What court has jurisdiction 266

Within what time 266, 267

Proper practice of defendant is to plead 267

When defendant to justify 267

May set up as many defenses as he has 267

When appearance of defendant, waiver of defects 268

Defenses 267, 268

When relators must show title in themselves 268

The question as to an elective office 268

What issue is, where individual exercises franchise of a corporation .... 269

When jury trial cannot be denied 269

When courts cannot grant motion to change venue 269

When evidence of voters as to how they voted proper 269

When voter must disclose how he voted .... 269

When court authorized to render judgment upon relator's rights 269

Judgment binds all parties interested 270

Court will give judgment on default 270

When judgment of ouster will not be entered 270

When entitled to costs 270

RAILROADS :
Creation of corporation 273

Right to build not necessarily of a corporate character 272

Usually owned by corporations 273

When legislature may grant other charters interfering with former. 273, 273

Legislature may impose additional burdens 273

Legislature cannot destroy or impair franchise 273

Mode of organization of company 273, 274

When members and company cannot deny corporate existence 274

Subscriptions to stock 274

When signature to subscription conclusive evidence of incorporation

against subscriber 374

When assessment cannot be made on share of subscriber 275

860 INDEX.

KAILROADS — Continued. paob.

Capital stock must be paid in money 275

When conditional subscriptions valid 275

When party subscribing, absolved from obligation 276, 277

When municipal subscription invalid 276

When subscriber liable to payment of subscription 276, 277, 278

Must be binding upon subscriber and company 277

Powers as to property 278

Right to make rules and regulations 278

Rights of passengers to remain in depot 278, 279

Right of officer acting under warrant, to break open depot 279

Right to use highway 279

When iron rails are part of the realty 279

Erection of buildings by permission of company 279

Power to make contracts 279, 280, 281

Has power prima fade to make promissory note 280

May take bond for payment of stock subscriptions 280

May take mortgage of real estate to secure same 280

Ultra vires contract with company void 280, 281

May sue or be sued 281

Place of bringing actions in its favor 281

Place for bringing actions against 281, 282

Action for assault and battery will lie against 282

When two companies consolidated, how debts against both enforced.. . . 282

Road and fi'anchises can be sold under judgment 282

How railway corporations dissolved 282

When franchise may be seized 282, 283

What will not work a dissolution 283

Acquiring lands for roads^ etc 284

By consent or grant 284

Where verbal consent of owner is sufficient 284

When company may compel specific performance to convey a right of

way 285

Right of company to hold and purchase land 285

Right of eminent domain 286

Dwelling-house not exempt from this right 286

Right to exercise, only derived from legislative enactment 286

When title vests 286

When railway has no right to take lands without consent 286

Right of eminent domain strictly construed 286, 287

When it cannot be exercised 287

Title acquired Ijy private purchase or under right of eminent domain. . . 288

May acquire absolute fee in land by purchase 288

Interest of, in lands acquired 288, 289

Taking for public use 289, 290

Taking highways 290

When railroad liable to indictment as nuisance 291, 806

Bridging streams 291

Impairing navigation by bridge 291

INDEX. 861

RAILROADS — Continued.

PAGE.

Have nght to divert stream of water from flowing on line of road 293

Not vrithout compensation 293

Liable for injuries caused by such diversion 293

Obstructing private ways 292 393

May make experimental surveys, before locating 293

Making location of road 293 294

Right to locate on street 294

How location completed 294

Changing location 294 295

Must be changed by legislative act ' 295

When company will not be allowed to change route 295

Must make compensation to owners of land 295

Possession of land may be recovered, when 295

When company considered tresjiasser 295 296

Estimating damages for land taken 297, 298 299 800

Interest acquired in land 300

Construction of the road. . 30o

On what Une 300, 30I

Mode of construction 3qj

Where location of building obstructs public highway 301

When liable for defects and injuries 302 303

Contracts for construction 303 304

When performance of, will not be enforced 304

Commencing work upon 3Q4

Additional compensation for extra work by contractor 304

When performance will be enforced 304 305

Authorization of service, before incorporation 305

Liability of company to contractor, for damages sustained in obedience

to its servant 305

When company required to fence its line of road 306

When required to make cattle-guards 306

What the term ' ' cattle " includes 306

When company may make alteration in highway 306

Company not to obstruct public roads 306

Must .keep ' ' crossing " in safe condition 306

Duty of those in charge of trains upon approaching a crossing 307

Right to cross public highway 307 308

liabilities in regard to officers, agents and servants 308

Principle of respondeat superior 308

Negligence of sub-contractors and their servants 309

When company not liable for injuries received 309

When company liable 3O9

What acts president may do, without special authority 309

When extra compensation allowed president 310

What board of directors may do 310

Acts through officers and agents 310

Power of station agents 310

Liability for damages occasioned by fraud or negligence of agent 311

862 INDEX.

RAILROADS — Continued. page.

Liability for torts of agents 311

Liability for acts of its conductor 311, 312

Demand of fare, second time 312

Passenger stopping over on tickets indorsed "good for this day only " . . 312

Separation of freight and passenger business 312

Right of station agent or conductor to incur expense, for injured servant, 313

Liability for injuries to animals run over 313

Actions to recover extra fare omitted to be collected 313

Power and authority of superintendent 313

Right of superinteudent to incur expense for servant, or other person

injured 313

Extra services by superintendent 314

Liability for negligence of engineer 314

Liability for wanton and malicious injuries caused by its servants 314

When admissions of employee not binding upon company 314

Special receiver or assignee not servant 314

"When receiver liable for injuries 314, 315

Rights, duties and liabilities iu management of road 315

Carrying goods, etc 315

Right to tolls 316

How established . 316

Power of State to limit fares and freights 316

When company can charge for transportation in addition to toll 316

Freights may be established by directors or agents 316

Right to establish two rates of fare 317

Not bound to keep its ticket offices open 317

Recovering penalty for extorting excessive fares 317

Action to recover tolls due 318

Delivery of goods 318

When liable for transportation and delivery of goods 318

When not liable 318

Delay in transportation or delivery 319

Liability for loss of goods 319, 320

When company not liable for injury to goods 320

Duty of owner of dangerous goods to inform carrier 320

When owner liable 320, 321

Stoppage in transit 321

Lien for freight 321

Carriers have insurable interest 321

Passenger must conduct himself with due prudence 322

Representations that trains will stop at station for which ticket is pur-
chased 322

Train must stop long enough to allow passengers to get safely oflE 322

Must observe same care toward a drunken man as if sober 322

Messengers, express and mail agents receiving injuries 322

Liability of company for delay of train 323

Awarding damages for delay 323

Refusal to carry passengers 323

IKDEX. 863

RAILROADS — Continued. page

When common carrier beyond its limits 323

Passengers entitled to seat, before surrendering tickets 324

Exacting fare in gold coin, extortion, when 324

Passenger cannot leave train after surrender of ticket and c'.aim seat on

another train 324

Passenger not complying with rules can be ejected 324

Delivery of baggage check, prima facie evidence of receipt of baggage. . 325

Baggage, for the loss of which company is liable 325

When lialnlity as carrier of baggage terminates 325

Proprietors of sleeping cars, not liable for property lost 325

Holder of tickets "good for this day and train only " 326

Holder of ticket ' ' good for this trip only " 326

Lay over ticket 326

Negligence in running trains 326, 327

Care required in operating road in pubhc street 327

Care required iu regard to track and rolling stock 327

Persons riding without paying fare 327

Passengers injured in collision 328

Injuries to adjoining property, caused by fire from locomotive 328

Injuries to employees 328, 329

Persons on track at other places than usual crossings are trespassers 329

Right of traveler on highway at crossing 329

Traveler injured in collision at crossing, what he must show 329, 330

Neglect to ring bell or whistle, etc 330

Injuries to stray animals 331

When company not liable for injuries to 331

Connected or associated railroads 332

Contracts, how construed 332, 333

What lessee takes, under lease of 333

Duty to keep the road safe 334

Liability of company owning road, when operated by lessee 334

When in charge of receiver 334

When lessee company liable for injuries to passenger caused by wrong-
ful act of its servants 335

Company liable when cars are under exclusive control of its servants. . . 335

Who liable when servants of both companies control train 335

How far liable for carriage of goods 335, 336, 337

Goods marked to a point beyond its line 336

Check given for baggage beyond its line 336

Of horse and street railroads 337

Riglit to lay track in public street 337

Interest of. in street 337, 338

Person not trespasser walking on track of 338

Cars have exclusive right of way 338

Right to use steam 338

Using track of another corporation 339

Another railway track crossing 339

Contract by, ultra vires, when 339

864 INDEX.

RAILROADS — Continued. page.

Forfeiture of franchise, in case of non-completion 339

Terms and conditions imposed for use of street 389, 340

Rules and regulations 340

Collecting fares 340

Care and caution required in carrying passengers 340

"When company will be liable for injury 341

When company not liable 341, 342

Conductor may eject unruly passenger 342

Intoxicated passenger 342

Illegal exaction of fare 342

Passenger by invitation of driver, injury to 342

Child put off, while car in motion 342

Must keep track in proper condition 343

Defect in construction 343

Liability to persons injured in construction 344

When not hable for repairing street 344

Care required as to pedestrians 344

Method of attaching horses to car 344

When stepping on car a trespass 344

Passenger riding on car, in place of danger 345

Standing on platform 345

Person on track of company, neglect to move off for car 345

Child getting off while car in motion 345

When question of negligence should be left to jury 346

Remedies 346

Actions at law 346

Taking land without consent, liable to action 346, 347

Assessment of damages, mistake of commissioners 347

Property of infants taken by, remedy to pursue 347

Contractor entering upon land, without owner's consent 348

Impeding travel on highway, damage for 348

When injunction may issue against 348, 349

When injunction will not issue 349, 350

When specific performance of contract by, will be decreed 350, 351

Receiver's possession, how regarded 351

When liable for negligence as carriers - . 351

Authority of receiver to incur expense 351, 352

Earnings accruing before his appointment 352

RECEIVERS:

Receivers in general 353

Nature of the office 353

How appointed 353

Object of appointment 353

Is an officer of the court 354

Leave of court to dispossess - 354, 355

When receiver will he appointed 355

When no other expedient remedy 355

For what purposes appointment made 355

INDEX. 865

RECEIYERS — Continued. p^ge.

Appointment of, discretionary ... 356

Appointment pending suit 356

Receiver of rents and profits 857

In action for recovery of real estate 357

To carry on a business 357

Equitable grouuds for appointment 357

Appointraeut ■without suit 357

Appointment without notice 358

Appointment before answer, when 358

When appointment takes effect , 359

Corporation and associations 359

Appointm?at to receiver to wind up affairs of 359

On dissolution oi a partnership 360, 361

When partnership is insolvent 361

After death of partners 362

Mortgages 363

Receiver in foreclosure cases 362, 363

Where legal title is in mortgagee 363

Executors and trustees , 364

When receiver will be appointed 364

Pending litigation for administration or probate 365

Pending suit for removal of trastee 365

Receiver of trust funds 365

Bankruptcy of executor 366

Bad character of 366

Poverty of 366, 367

Infants 367

In action on behalf of 367

Lunatics 367

When receiver of estate of, appointed 367

Vendors and purchasers 367

When receivers will be appointed as between 367, 368

Tenants in common 369

When co-tenants insolvent 369

Where part are infants 369

In suit for iiartition 369, 370

Construction of will 370

Debtor and creditor 370

Receiver for equitable creditor 370

In what cases appointed 370, 371

In suit for specific performance 371

In action for divorce 372

In ejectment 372

Plaintiff must show title to premises 372

Supplementary proceedings 373

Receiver in, is an officer of the court 373

May be appointed pending proceedings 373

When a receiver will not be appointed 373, 374

Yol. v.— 109

866 INDEX.

RECEIYERB — Continued. page.

When suit is not pending 373

Where applicant has no interest in property 373

Where property is out of State 374

Where tlie case is an improper one 374

On dissolution of partnership merely 375

In proceedings in nature of quo icarranto 375

When applicant is guilty of laches 375

Who appointed receiver 376

Must be person of good character 376

Person interested in suit may be appointed 376

Who may not be appointed 376, 377

Solicitor of complainant 377

Party to suit ■without consent of opposite party 377

Next friend of infant 377

Trustee 377

Mortgagee §77

Interest of creditors to be considered 377

Rights, powers and duties 377

Conferred in order of appointment 377

Powers may be inferred 378

General duty of receiver 378

Leave of court to bring and defend actions 379

Powers conferred upon receivers by statute 378, 380

Right of subrogation 381

Employing counsel 381

Duty to protect projierty 381, 383

Duty in respect to sale of property 383

Right to use of property 383

No right to dispose of funds 382, 383

Power to make expenditures 383

Power to make leases 383

Entitled to rents in arrear 384

May satisfy a mortgage 384

Liabilities of 384

When deemed a trespasser 384

When Hable for rent 385

For injuries in prosecuting business 385

In operating a railroad 385

Riglit of set-off against receiver , 385

Liability for negligence 386, 387

What title receiver takes 388

Legal title, after giving security 388

Real estate vested in him by conveyance 388

Title to personal property 388

Title in supplementary proceedings 388

Right of action for injury to personal property 388

Right to charge of rents and profits 388, 389

Salary and allovrances 389

IXDEX. 867

RECEIVERS — Continued. p^ce.

When entitled to 389

Mode of compensation 389

Allowance for exj^enses incurred 390

Counsel fees, etc 390

Accounts 391

How rendered 391

Rules as to accounting apjilicable 391

Reference of, to a master 391

Proceedings as to, upon death of receiver 392

Discharge of receiyer 392

How discharged 392

When discharged 392 393

Removal and substitution 393

Grounds of removal , 393 394

RECOGXIZAXCE :

Of recognizance in general . 395

Definition 395

What it binds to 395

General form and contents 395 396

Return of 396

Validity of 396, 397

Power to take 397

Who may enter into 397

When required or given 397

In criminal cases generaUy 397^ 398

Who authorized to take 398

In civil cases 398

In criminal cases 398 399

Recognizance, when void 399^ 400

Of the form and requisites : . . . 400

What omissions will not invalidate 401 402

Mode of executing . 402

Seal not essential 402

Need not be signed by party 402

Bail bond executed on Sunday is binding 402

Recognizance in form of bond sufficient 402 403

Of the construction and effect 403

Defective recognizance 404

Of forfeiture 404

What amounts to 404

What is not a forfeiture 405

Discharge of the sureties 406

By surrender of defendant 406

Exoneratur 406, 407

Deatli of principal , _ _ 407

Discharge, a matter of record 408

Of the right of action 408

Debt, or scire facias 408 409

868 INDEX.

RECOGNIZANCE — Continued. page.

Proceedings by scire facias 409

In what cases 409, 410

Decluration or complaint 411

What complaint should show 411

Form of declaring in debt 411, 413

Plea or defense 412

Available defenses 413, 414

Evidence 414

"Variance 414, 415

Matter of practice 415, 416

Of the judgment 416, 417

Entry of judgment ... 418

REDEMPTION OF REAL ESTATE:

Actions to redeem mortgaged land 419

Definition of equity of redemption 419

Nature of 419

Estate of mortgagor in 419

Right of redemption 430

Right of mortgagor to open foreclosure 430, 431

How to redeem, after mortgagee in possession 430, 481

How bill in equity to redeem, framed 431

When it cannot be redeemed 431

Part payments after foreclosure, for redemption, how considered 433

Of the right to redeem 433

When and how mortgagor may redeem 433, 433

Owner of equity of redemption out of possession 433

When junior mortgagee must pay costs 433

When wife not estopped from redeeming, after release of dower 433

Equitable interest subject to redemption 433

Extension of right to redeem 434

Barring redemption, acts 424

What acts will not bar. . .' 434, 435

Right to redeem, how enforced 435

Tender before redemption 435

Who cannot redeem 435

Successive rights of redemption 426

Conditional sales 426

What is 426

When vendor cannot redeem after appointed time 426

Who may redeem 427, 428

When wife is (nititled to land upon paying only the mortgage 428

When wife invested with right to redeem from senior mortgage 428

Mortgagor and mortgagee tenants in common 429

Mortgagor who has conveyed premises by deed, right to redeem 429

How junior mortgagee may redeem from senior mortgage 429

Second incumbrancer, right to redeem 430

Part purchaser cannot redeem without paying whole debt 430

Rights of successive holders of a series of notes 430

INDEX. 869

REDEMPTION OF REAL ESTATE — Continued. page.

What lieu-holding creditors must produce to redeem 430

Wheu right of secoud mortgagee to redeem cannot be cut off 431

Who defendant 431

Action, when to be brought 431, 4"2

What interest assignment of mortgage passes 432

Wheu right to redeem carries with right to assignment of mortgage .... 432

Transfer of mortgage 432

Mortgagee in possession 432

What accountable for 432

What allowed 432, 433

Terms of redemption , . . . . 433

What is not sufficient tender 434

Mortgagor not required to pay compound interest 434

Rents and profits, how applied 434

What bill in equity must contain 434, 435

Where right to satisfy mortgage had lain dormant for thirty years 435

Judgment > 435

Costs 435, 436

REFORMATION OF INSTRUMENTS :

Of reformation in general 437

Definition and nature 437

Equity will protect against mistake 437

Mistake must be mutual 437

Cases in which equity will interfere 437, 438

Accident, mistake, or fraud 439

Party must act promptly 439

Mistake of law no ground for relief 440

Intent of parties must differ from contract 440

Unavoidable accident 441

Mistakes in wills 442

Evidence as to fraud or mistake 442

Proof must be clear 443

Mistake by agent of party 443

Mistake in description of land 443, 444

Innocent misrepresentation 445

Mistake in agreement for a life insurance 446

Marriage contract induced by fraud 447

For error of scrivener 44 <, 448

Sealed instruments 448

Reformation of, for mistake of fraud 448, 449

Unsealed instruments 4^5 9

Policy of insurance 449, 450

Bill of sale 450

Who may demand relief 451

Against whom decreed 451, 4.)2

In what cases denied 452, 453

Decree rendered 4o3

870 INDEX.

REPLEVIN: p^oe.
Of repleTin in general ... 454

What replevin lies for „ 454

For wrongful taking or seizure of goods „ 454

Eight to possession in plaintiff 455

Original province of remedy 455

Statutoiy regulation of remedy 455, 456

Replevin in the eepit 456

Replevin in the detinet 456

Distinction between the two , 457

Jurisdiction 458

Provision as to mode by statute 458

When the action lies at common law 458

Eor personal property wrongfully taken 458

For goods procured through fraud 459

To try legality of distress for rent 460

Cases in which replevin will be sustained 461, 463

When replevin does not lie 463

Property in custody of the law 463, 464

Property levied upon for taxes 465

Property owned in common 465

Instances 465, 466

Cannot be used as adversary remedy 466

Does not lie for fixtures 467

Property must be deliverable 468

Instances 469, 470

Defendant must be in possession 470

Building disconnected from use of land 470

Property sold conditionally 470, 471

What title or possession will support the action 471

Absolute title not necessary 471

Riglits to immediate possession sufficient 471

Carrier's receipt for goods sufficient 473

A trustee may maintain the action 473

Mortgage of personal property 473

Officer attaching or levying property 474

Property leased to the plaintiff 475

What title or possession is not sufficient 475, 476

What property may be replevied 477

Personal property, generally 477, 478

Buildings not annexed to freehold 478

Trees and grain severed from freehold 478

Promissory notes, etc 478

Records of coi-poration 478

What property may not be replevied 478

Things connected with the realty 478

Ungathcred crops 478

Property in adverse possession of another 478

Attached property 479

INDEX. 871

REPLEVIN — Continued,

PAGE.

Property sold for taxes 479

Property deposited in trust 489, 480

When demand is necessary 480, 481

When no demand is necessary 481

Instances where not necessary 481 482

Not necessary whenever trover lies without 483

Who may maintain the action 484

Replevin in the cepit 484

Replevin in the detinet 484

By mortgagee in possession 485

By private corporation 485

By municipal corporation 485

By assignee of chattel mortgage 485

By bailee of property 485

Who cannot maintain the action 485, 486

Who may be sued 486, 487

Who may jiot be sued 487, 488

Of defenses in general 489, 490

Abatement 490

Proper matters in 490 491

Pleas to the action : 491, 493

Insufficient pleas 493

General issue 494

Non cepit 494, 495

Non detinet 495

Avowry 496

Definition of 496

Origin of the plea 496

When proper 497

Plea of property 497

Replication 498

Judgment for the plaintiff 498

What the judgment determines 499

Damages for detention ... 499

Exemplary damages 499

How assessed 500

Judgment of return to defendant 500

When entitled to 500

Judgment in the alternative 501

Of the verdict or finding 501

What verdict must show 501, 503

What judgments are proper 503

What parties join as plaintiffs 503

Damages, etc 503

What judgments are not proper 503, 503

Effect of verdict and judgment 508

How far conclusive 503

Costs 503

872 IKDEX.

REPLB VIN — Continued. page.

Prevailing party generally entitled to 508

Execution 504

Action on replevin bonds 504

Remedy by scire facias ^ 504

Wlien an action lies 504, 505

When an action does not lie 505, 506

Amount of recovery 506

When interest is recoverable 506

RESCISSION OF INSTRUMENTS:

Of rescission in general 507

Definition and nature 507

How effected .507

Notice of rescission 508

Parties to be placed in statu quo 509

Return of consideration 509

Must rescind in toto 509

Mutual assent 510

In what cases decreed 510

Fraud, imposition, or mistake 510

Misrepresentation or concealment 511

Taking unconscionable advantage 512

Defect of title 513

For error or mistake , 513

When no ground for rescission 513, 514

For fraud 514

Character of the fraud 514, 515

Fraudulent representations 515

Mere matter of opinion 515

Material misrepresentations 516

Party must restore benefits received 516

Inadequacy of price 516, 517

Parties in fiduciary relation 517

Undue influence 518

Equity and law have concurrent jurisdiction 518

Error of scrivener 519

Sealed instruments 519, 520

Unsealed instruments 521

Who may demand rehef 521

To whom relief not granted 521, 522

Against whom decreed 523

In what cases denied 523, 524

Decree rendered 525

Cancellation of instrument 525, 526

SALES:

Of sales in general 527

Definition and nature 527

Elements of the contract 527

Confined to personal property 537^. 528

INDEX. 873

SALES — Continued. page.

Who may sell 528

Seller must have title 528

Who may levy 528

As to infants 528, 529

Idiots and lunatics 529

Intoxicated person 529

Married woman 530

Must be a thing to be sold 530

Things having a potential existence 531

Corporeal existence not essential 532

The price to be paid 532

Money 532

Negotiable representative of money 532

Mode of fixing price 533

Implied price 533

Inadequacy of price 533

Mutual assent of the parties , 533, 534

Assent, express or implied 534

By mail or messengers 534

By telegram 534, 535

Assent must be freely given 535

Effect of mistake 536

What dealings amount to a sale 536

Instances 537, 538

What dealings do not amount to a sale 538, 539

Contract of sale in vpriting 539, 540

Cannot be affected by parol evidence 540

How construed 540, 541

Executed and executory contracts 541

Distinction between 541

Transfer of specific chattels 542

Rules as to 542, 548

Transfer of chattels not specific 543, 544

Subsequent appropriation 544

Doctrine as to 544, 545

In cases of chattels manufactured to order 545, 546

Seller's right of sale 546

Conditional sales 547

Definition of 547

Conditions precedent or subsequent 547

Instances of conditional sales 547, 548

Payment by installments 549

Conversion of absolute into conditional sale 549, 550

Mortgage or conditional sale 550

Sale or return, or on trial 551

Time of return 551

Rules relating to sales on trial 552

Sale on arrival 552, 553

YOL. y — 110

874 INDEX.

SALES — Continued. page.

Sale by sample 553

The seller's undertaking 553

Whether sale by sample a question of fact 554

Sale by average sample 554

Warranty in express terms 554

Definition of 555

Representations amounting to 555

Instances 555, 556

May be verbal or written 556

May be given by agent 556, 557

Instances of warranty 557, 558

Warranty as to soundness of horse 558, 559

What is not a warranty 559

What the term "sound " implies 559, 560

Implied warranty of title 560

English rule 561

American doctrine o 560, 561

When the docrine applies 561

Implied warranty of quality 560

In what cases implied 561, 563

As to merchantable (juality of goods 563, 563

Packing of goods 563

Warranty in case of executory contract 563

As to genuineness of note 563, 664

Caveat emptor 564

Meaning of the maxim . . 564

When the doctrine applies , 564, 565

When the doctrine does not apply 566

What is a breach of warranty 566, 567

Delivery of the property 567

Meaning of the term " delivery " 567, 568

In cash sales 568

Sales on credit 568

Time of delivery 568

Where no time is fixed , 568

Meaning of ' ' reasonable time " 568, 569

Immediate delivery 569

Qualifying terms 569

Hour of delivery 570

Place of delivery 570

Where place is not designated 570

Goods in the buyer's possession 571

Place of delivery, when in seller's option 571

Quality delivered 571

Defendant dependent on terms of contract 571

Buyer must pay for what he accepts 571

Goods sold must not be mixed with other goods 6*71, 573

Construction of qualifying terms 572

mDEX. 875

SALES — Contimied. page.

How delivered in general 572

Actual or constructive 572, 573

Delivery to third person 573

Delivery to carrier 573, 574

Delivery to ■warehouseman 574

Constructive delivery 574, 575

What constitutes 575

Symbolic delivery 575

When sufficient 575

Instances 575, 57G

By deed or bill of sale 577

When a sufficient delivery 577

When not sufficient 577, 578

By transfer of bill of lading 578

By transfer of store receipts 578

By tender of custom house permit 579

Buyer's duty to accept 579

What is an acceptance ■ 579

EflEect of acceptance 579, 580

Effect of refusal to accept 580

Buyer's duty to pay 580

Mode of payment 581

Payment and delivery, when concurrentiacts 581

Payment on demand and notice 581

Direction to transmit by mail 582

Tender of payment 582

What a sufficient tender 582

Payment by negotiable security 582, 583

Payment by check 583

Sale on credit 583

Payment to agent or vendor 584

Auctioneer may receive payment 584

Payment to wife 584

Delivery without payment 584

Conditional delivery 585

Waiver of payment 585

What is a waiver 585

What is not 585, 586

At what time title passes 586

Question of intent 586

Instances and illustrations 587, 588

Test as to transfer of title 588, 589

Of the statntes of frauds 589

Provisions of, in general 580

Leading object of 589, 590

What contracts are within the statute 590

Executed and executory contracts 590, 591

Sales at auctions 591

876 INDEX,

SALES — Continued. PAoa

Mortgage of goods, etc., not within the statute. 591

What are goods, wares and merchandise 591

The English rule 591

Massachusetts rule 593

New York rule 593

Conflicting decisions on subject 593, 594

As to choses in action 594

Shares of stock 595

Contracts for sale of growing crops 595

Unsevered natural products 595

Standing trees, etc 596

Of the value o( ten pounds, etc , . 596

The word " price " as used in the statute 596, 597

Agreement void in part 597, 598

What is a sufficient acceptance ... 598

Acceptance and receipt both necessary 598

Question of acceptance one of fact 598

Acceptance of "part of goods - 599

Time of acceptance 599

Acceptance hj joint owner 599

Acceptance by agent 599, 600

Acceptance must be distinct and unequivocal 600

Acceptance by marking goods 600, 601

Accepting bill of lading 601

Seizure by force not acceptance 601

Earnest and part payment 501

Meaning of tenn ' ' earnest " 601

When part payment may be made 601, 601

Part payment must be acce]]ted 602

EfEect of earnest or payment 603

What is a sufficient memorandum 603

Form of, immaterial 603

Must contain within itself a contract 604

What is not a sufficient memorandum 605

Bill of particulars 605

Signature by the party 606

How signed 606

Signature by agent , 607

Entry by auctioneer sufficient 607

Signature l)y l^roker 608

Remedies of the parties 608

Remedies in general 608

Action by seller, title not passed 608

Recoveiy of damages 608, 609

Where contract price is rule of damages 609, 610

Where portion of goods are delivered 610

Action wlion title has passed ; 610

Rule of damages 610, 611

INDEX. 877

SAXES — Continued. page.

Seller's remedies against the goods 611

Stoppage in transitu . 611

What is 611, 613

Foundation of right 613

Who entitled to exercise - 613, 613

Against whom 613

When to be exercised 614, 615

Mode of stoppage 615

Notice to carrier 615, 616

Right, how defeated 616, 617

How the right is not defeated 616

Effect of exercising the right 618

Resale , 618

Right to resell, when it exists 618, 619

Mode of sale 619

Notice of sale 619, 630

Lien 620

Wlien a lien exists 630

Waiver of 630, 631

How destroyed 631, 633

Liens by contract 633

Action by buyer against seller when contract is executory 633

Measure of damage 633

When goods to be delivered on request 623

When by installments 633

Damage for partial breach 634

When delivery is rendered impossible 634

In what currency payable , 634

Action when title has passed 634

Remedy of buyer 635

Action after receiving goods 635

Remedy for breach of warranty 635

Rule of damage 625, 626

Where article is wholly worthless 636

Instances 636, G37

No damages for speculative injuries 637

Pleading breach of warranty 637, 638

Notice to the seller not necessary before suing or defending 638

Need not offer to return goods 638

Warranty as a condition subsequent 639

Damages for breach of warranty, how augmented 639, 630

Rescission by seller 630

On ground of fraud 630

Insolvency of buyer 630, 631

Falsely representing standing of buyer 631

When a rescission is presumed 631

Rescission by buyer 633

When buyer may return goods 633

8T8 INDEX.

SALES — Contimied. page.

Wheu offer to return suiBcient 633

Must rescind in whole or not at all 633

;aiutual rescission 633

May mutually rescind at any time 633

When sale becomes absolute 633

Illegality at common law 634

Immoral consideration - 634

. Contracts against public, policy ... 634

In restraint of trade 634

Forestalling, regrating and engrossing 634, 635

Illegality by statute 635

Instances 635, 636

Sales on Sunday 636

Knowledge of illegality 686

Rights of bona fide purchasers .... 637

Doctrine as to 637, 638

Defense of fraud in action by seller 638, 639

Defense of fraud in action by buyers 639

Fraud not to be presumed 639

SCIRE FACIAS:

Definition and nature 641

In what cases a proper remedy 642

When it lies 648

When it does not lie 643

On judgments between the parties 643

In what cases continuation of former suit 643

When it will not lie to revive a judgment 644

When it will lie to revive a judgment 644

Proper remedy to revive judgment against ancestor 645

Will not lie against devisee, unless heir at law 645

When heir, devisee or terre tenant must be made party 645

When not necessary to make executors or administrators of deceased

defendant parties 645

Where judgment rendered against several, and one dies before exe-
cution 645

Joint scire facias may be maintained, when 646

When legal service is not complete 646

Reviving decree in chancery 646

Renewing execution 646

Foreclosing a mortgage 646

Recognizances or statutes 647

Effect of 647

Wliat court has jurisdiction 647, 648

Within what time 648

Leave of court , 648

Who to be plaintiff 649

Who to be defendant 649, 650

Form and comi)laint, etc 65C

INDEX. 879

SCIME FACIAS— Continued. page.

Upon criminal recognizance serves as process and declaration 651

What it must show 651

What pleaded, to revive judgment 651

When scire facials defective 651

When used to forfeit a corporate charter 651

Defenses to 651

Irregularities or errors 652

Payment of note on which judgment founded pleaded 652

Payment of judgment pleaded 652

Plea or answer 652

What answer to allege 652, 653

What plea good 653

Judgment, what to contain 653

What judgment on, for possession of land should be 653

Judgment by default 653

Costs, when allowed 654

Blanks left for costs 654

Execution 654

SEDUCTION:

Definition and nature 655

Grounds of the action 655

Founded on the loss of service 656

What acts or results not ground of action 656, 657

Who may maiutain the actiou 657

Founded on legal fiction for loss of services 657

Relation of master and servant must exist 657

Action maintained by personal representatives of father 658

When father can maintain action 658

Pregnancy, consequence of 658

Communicating venereal disease 658

Death caused by 658

Residence at time of seduction 658, 659

Father liable for lying-in expenses 659

When mother can maintain action 659, 660

Action by step-father 660

Action by grandfatlier , 660

Adopted child 660

Action by relative 06 1

Action by one in place of parent OGl

Action by master GGl

Action when female over twenty-one 661

Who cannot maintain the actiou 662

Wlien the father cannot maintain the action 662

Injured female cannot, unless by statute 662. 663

When mother cannot maintain actiou 663

Female over twenty-one 663

One consenting or negligent 663, 664

Who made defendant 664

880 INDEX.

SEDUCTION — Continued. page.

Damages 665

What jury may take into consideration , . . . , 665

Aggravation of damages 665, 666

What evidence admissible 666

Who may recover vindictive damages 666

Mitigation of damages 666

What may be shown in mitigation 667

Amount recovered when not excessive 667, 668

What recoverable in certain cases 668

Defenses 668

Plea of " not guilty " 668

What defendant may show under plea of not guilty 668, 669

What is no defense 669

Character of female 670

Character of plaintiff 671

SERVICES:

Right of father to child's services 44

SHERIFF :

Right to fees 26

When entitled to poundage 26, 27

Liable for negligence of deputy 31

SHIPPING:

Nature of 673

Ship's papers 672

To what country vessel belongs 673

Different classes of ships 673

When cruise begins 673

Changing name of vessel 673

Of the title to vessels 674

Who first owner 674

When materials constituting, becomes ship 674

Builder's lien 674

Registered owner is not necessarily sole legal owner 675

Sale of, to corporation in foreign country 675

When parol sale of goods 675

How regarded by court of admiralty 675

Transfer by bill of sale 675, 676

Sale of vessel by master 676

When sale of, by master, necessary 677

When master to consult owners 676

When sale of, by master, void 676

Sale under decree of admiralty 677

Possession by purcliaser 677

What passes to purchaser 677

Ship sold " with all her faults" 677

Rule of cfimeat emptor 677

Sale of part of the vessel 678

Sale of vessel at sea or abroad 678

INDEX. 881

SHIPPING — Continued. page.

Ship may be mortgaged at sea 678

When mortgagee must take possession 678

What constitutes reasonable time for 678, 679

When and how bill of sale shown to be mortgage 679

Rights and liabilities of mortgagee 679

Mortgagee out of possession when not liable for repairs done or supplies

furnished 679, 680

When liable 679

Not entitled to freight earned 679

Recording mortgages and bills of sale 680

Mortgagees to be paid in priority to materialmen 680

Before registry 681

Part owners of vessels tenants in common 681

Unauthorized sale by part owner 681

Majority in interest 681

When part owner will be restrained 681

Who not part owner 682

Liabilities for repairs or supplies 682

Right of master in foreign port to charge owners 682

In home port 682

When part owners liable in solido 683

Liability for torts of employees 683

Liability to each other 683

Who is shija's husband 683

How appointed 683

Duty of 683, 684

To what entitled 684

Liens of part owners 684

Suits by and against part owners 685

When owners liable for supplies and stores purchased 685, 686

Bottomry and respoudentia 686

Nature of contract of bottomry 686

What rate of interest on bottomry may be contracted for 686

When bond not discharged by stranding and abandonment 686

Nature of contract of resjwndentia , 687

Bonds made by owner 687

Master's power to give bottomry bond 687, 688

Duty and obligation of lender 688

Additional security 688

Bond given for supplies or repairs 689

To whom bond may be made 689

Bond good in part and void in part 689

Hypothecation of freight 690

Bottomry "bonds, how construed 690, 691

What liens "have preference over 690

Which bond takes preference 690

Ship and freight liable before cargo, when 690, 691

Making up decree 690

. VOL.-V.— Ill

882 INDEX.

SHIPPING — Continued. paqb.

What courts have jurisdiction over 691

Form of respondentia bond , 691, 692

Essence of this contract 691

What necessary in order to pledge cargo 691

When court of admiralty will reform bond 691

What respondentia bond does not pass 691

Validity of bonds , 692

Enforcement of bonds 692

Use of the ship by the owner 693

Setting ship out by charter-party 692

Fitness or sea-worthiness of vessel on river 698

Duties and obligations of ship owners 693

Lien for carriage of goods 693, 694

Delivery to the vessel 694

Definition of bill of lading 694

Transfer of bill of lading 694, 695

When owners bound by bill signed by master 695

What words "in good order and condition " in bill have reference to . . 695

Words ' ' value and contents unknown " 695

When ship owners bound to carry goods 695

Breakage 696

When full freight may be recovered _, . . 696

Wlien no freight can be recovered 696

Amount of freight recoverable in certain cases 696

Lien on cargo for freight 697

DeUvery of goods by the vessel 697, 698

Forwarding in other vessels 698

Freight j^fo rata 698

Ships as common carriers 698

Suing for non-delivery or injury of goods 699

Damages for breach of contract of affreightment 699, 700

When owner not liable for mere neglect of officers 700

When owners cannot be charged with loss 700

Liability of owners for loss of goods by fire 700

Notice to consignee of arrival 700

What does not constitute a defense 701

Of charter-parties 701

When charter owner p)i'o hac vice 701

Construction of charter-parties 701, 702

Of jjeneral averajye 702

Definition and nature 702

Sacrifice of property for general good 702, 703

Goods shipped on deck 703

Lost by perils of sea 703

To constitute, must be intended to save property and must accomplish

object 703

When there is no contribution 703, 704

Musi be Ijy order of the master 704

INDEX. 883

SHIPPING — Continued.

c , , PAQK.

bale by master of cargo 704

What expenses come in general average 704 705

Adjustment of general average 705

What adjusted as general average losses 705 70G

In what cases cargo to contribute 706

Loss of freiglit or profit 7O7

Expenses «q2

Value of interest in adjustment 7O7 708

Effect of adjustment 708

Foreign adjustment 70g

Payment of adjustment „ 708

Stoppage in transitu «qq

Of collision „Qg

By inevitable accident 709

One party at fault 709

Wlien risk of collision begins 710

Vessel in motion and one at rest 7IO

Vessel making for mooring 7J0

Scow sunk in navigable waters 710

Both vessels at fault /^i 0

Vessels must carry one or more lights 712

Kinds of lights used ' 711

Lights must be placed at sides of vessel 711

Non-compliance with rules in regard to lights 711

When vessel with lights liable 712

When not liable ^-.n

Approaching vessels 712

Fog signals 713^ ^^13

Steering and sailing rules 713 714 715

Carrying passengers ' ' 715

When contract to carry passenger in steerage includes berth 715

Return of unused passage ticket 71g

Power of master to compel service of passenger 716

Riglit of officers to resei-ve table in dinner cabin for their own use 716

Powers and dnties of master 71g

Authority to bind principal 71g

Who deemed master 71g

Authority to maintain action .... 717

Appointment and removal 717

Authority over crew 717

Power over vessel. ... r-ir,
(17

Power over cargo • r.-,^

Powers as agent of owners 71g

Power as to suppUes, repairs, etc 718

Power to hypothecate vessel <-.-,q

Power to sell vessel r.i8

Power to sell cargo 71q

When master personally liable 71q

884 INDEX.

SHIPPING — Vonttnued. page.

Duty of master in regard to loading cargo 719

Stranding of vessel, duty of ; 720

When not personally liable 720

Duty at commencement of voyage 720

Owners' liability for torts of master 720

Liens for wages, disbursements, etc 720, 731

Of the seamen 721

Seamen wards of the admiralty ' , 721

When contracts with, will be set aside 721

Shipping articles 721

Wages 722

Seaman discharged at foreign port at his own request 722

Seaman unable to perform duty by sickness 722

Provisions 722

When extra wages allowed 722

Sea- worthiness of ship 722

Cure in sickness 722

Return home 723

Disobedience of 723

Desertion of 723

Of pilots 724

Powers and duties 724

Liabilities of owners for pilot's acts 724

Liens upon vessel 724

Lien arises, when 725

Home and foreign ports , , 725

Lien, how lost or waived 725

Priority of 726

Lien follows ship 726

Enforcement of 726

SLANDER:

Definition of 727

Oral slander divided into five classes 727

What words are actionable per se 728, 729

What words are not actionable 729, 730

Where special damage must be shown 730, 731

What it is not sufficient to allege 730, 731

Charging crime, what not necessary to be shown 732

Crime charged indirectly 733

Crime charged, no other person present 732

Where none understood language 732

Charging female with immoral conduct 733

What is sufficient special damage 733, 734

When acts charged are not indictable 734

Charging person with keeping bawdy house 734

Charging married woman with having bastard 734

Words charging murder, when actionable 734, 785

Words charging arson 735

INDEX. 885

SLANDER — Cordinued. '^^^^

Words charging forgery .... 735 736

Charging j^erson with having stolen 736

Indirectly charging larceny 736 737

When charging person with being a thief not actionable 737, 738

Qualifying language afterward 737

When term ' ' stealing " not actionable 738

Charging ciinie of perjury 738, 739, 740

Charging treason or any species of felony 740

Charging a jierson with embezzlement 740

Charging member of commission out of chancery with receiving bribes. . 740

Any words, imputing indictable offense 740 741

Slander of office, profession or vocation 741, 742, 743

Must have reference to official character 742

Must be uttered while person in office 742

Words imputing ignorance, unfitness, incapacity or want of integrity,

742, 743

Words tending to injure person in trade 743

Action for slander 743

Venue transitory 743

Words spoken in foreign country 744

Words used, how set out in declaration 744

Words uttered in foreign language 744

Must be spoken in joresence of third person and so alleged 744

The name need not be given 744

Words spoken ironically 744

What averment necessary, where words not actionable per se 744, 745

Charging malice, what sufficient averment 745

How plaintiff to prove words 745

Who may sue 745, 746

Who may be sued 746

Of malice 746

How implied 746

When malice need not be alleged 746, 747

When communication is privileged , 747

Pro\'ing express malice, wliat to show 747

What is not conclusive evidence of malice 747

What is admissible upon question of maUce 747, 748

When presumption of malice may be rebutted 748

What may be shown to rebut presumption of malice 748

What defendant cannot show in defense 748

When answer alleging that the words were spoken confidentially, bad. . 748

Wlien no evidence or malice, judge to direct verdict for defendant 749

How words construed 749, 750

Ambiguous words 749

When construed in innocent sense 749

How determined 749

Of the damages 750

What is meant by special damage 750, 751

886 INDEX.

SLANDER — Continued. page.

What is sufficient to recover special damage 751

Evidence of special damage . 751, 752

What should be set out in declaration 752

What may be shown in aggravation of damages 752, 753

Duty of court to instruct jury as to rule of law in reference to damages . 753

What is not excessive verdict 753

What will bar a recovery for damages afterward arising for speaking

same words 753

Defenses 753

What defendant may set up in defense 753

When plea of not guilty puts in issue all facts creating special damage. . 754

When not obliged to elect between the two defenses 754

General issue 754

Privileged communications 754

In judicial proceedings 754

Words spoken at public meeting 755

Use of language in transaction of business 755

When question for jury 755

When third person present 755

Person seeking admission into society 755

Master giving character of servant 756

What are not privileged 756

Utterance in legislative proceedings, when 756

Judge uttering slander 756

Utterance of unfounded suspicion 757

Person suspected of crime 757

Master showing officious zeal 757

Charging tradesman with fraud 757

Justification or excuse 758

Truth of words good defense ,■ 758

Truth must be specially pleaded 758

How specific plea must be 758

How broad justification must be 758

Words first spoken by third person 759

Common report 759

When plaintiff may show defendant's general character in rebuttal 759

Mitigation of damages 759

Evidence admissible in mitigation 759

Words spoken in heat of passion 760

Words spoken by intoxicated person 760

Evidence of plaintiff's character 760

Retraction of slander 760

Slander of title 761

Definition of 761

When action lies for 761, 763

Damages 762

Defense ; what defendant may show 762

CsDEX. 887

SPECIFIC PERFOKMANCE: p^gb.

Definition and nature ^ 763

When court of equity -will decree, in general 763

When matter of disci-etion of the court 764 765

How application to be directed 765

Jurisdiction as to land 765

When matter of course to decree 765

Contract unconscionable or ambiguous 765

Contract both made and to be performed in foreign jurisdiction 765

Land lying in foreign jurisdiction 766

Partial performance, to be exercised with great caution 766

Contracts as to personal property 766

Agreement to transfer stocks 767

Sale of shares in railway company 767

Sale of large quantity of iron, to be paid in installments in certain num-
ber of years 767

Contract for delivery of timber at specific periods 767

Chattel of doubtful value 767

Performance of personal acts, etc 767

To build or repair 768

Building railroad 768

Running street cars 768

Cultivating land in particular way 768

Services of an actor , 768

Writing a book 768

Restraining parties from carrying on trade 769

Sale of business of an attorney 769

Agreement to cany on partnership 769

Contract for sale of good-will of a business 770

Contract to grant or renew a lease 770

Agreement for the grant of an annuity 770

Settle boundaries between two estates 770

Indorsing bill of exchange or promissory note 770

Agreement not to erect dam 770

Agreement to insure 771

Agreement to i:)urchase copyright 771

Assignment of an expectancy 771

Agreement of creditors to receive part of a debt in payment of the

whole 771

Agreement in settlement of family dispute 771

Tenancy from year to year 771

Specific delivery of chattel 771

Heir-looms or chattels of peculiar valuej 771, 772

Title deeds of an estate 773

Matters submitted to arbitration 772

Will not compel arbitrators to make award 773

Enforcement of award 773

When award will not be set aside 774

When left to courts of law 774

888 INDEX.

SPECIFIC PERFORMANCE — Continued. page.

What contracts may be so enforced 775

Contract must be one proper to be executed 775

Engagement to do unlawful thing 775

Illegal or immoral contract 775, 776

Contract procured by fraud or falsehood 776

Covenant to sell or renew 777

Agreement to convey real estate 777

Covenant to lease 777

Parol agreement for sale of lands 777

Vendor of land when he may enforce contract 778

When vendor cannot enforce 778, 779

When vendee may enforce 779

When vendor's wife will not release her dower 779

Outstanding leases upon premises contracted to be sold 780

Where vendor cannot make perfect title 779, 780

Where several joint owners 780

Satisfying mortgages by vendor 780

When vendee cannot enforce 780

Where vendor has no title 780

Subsequent conveyance 780

Agreement of husband and wife to sell wife's estate 781

Notice to purchaser 781

Deficiency in quantity of land contracted for 781

Right of compensation 781, 783

When vendor may rescind the contract 782

When partial performance not compelled 782

Inequitable loss to defendant, in inpairing value of adjoining lands 783

Enforcing contracts of married women 783

Wife dying before deed delivered 783

Enforcing payment of charges against separate estate 784

Must be competent parties 784

Infants and married women 784

Assent to the contract 785

Agreement compelled by force and threats 785

Agreement made in state of intoxication 785

Relation of parties 785

Persons in distress 785

Of the consideration 786

Illegal consideration 786

Valuable consideration 786

Promises founded on benevolent intentions of promisor 786

Sufficient consideration 786

Inadequacy of price 787

Excess of price 787

Contracts in restraint of trade 787

Mutuality of contract 787, 788

Both parties must ])e bound 788

Terms of contract must l)e certain , 788

INDEX. 889

SPECIFIC PBTlFOIiMANC^—Cmtinued. p^^^

Incomplete contract 739

Contract entered into where neither party understands its full effects. . . 789

Contract vague and uncertain 789

Covenant iu lease, ambiguous or doubtful 79O

Opinion of third jjarties as arbitrators 79O

Contract embodied in a letter 79Q

Contracts must be proved or admitted 79O 791

Contracts must be reasonable 79I

Court will not vary terms of contract 79I 792

Vendor not compelled to perform different contract 792 793

Assignee of contract 793

Fairness and good faith 793 794

Fraud and misrepresentation 794

Intention to deceive 795

Ignorance of value of land 795

^listake 795^ 796

Effect of waiver, release, novation, etc , 796 797

Contracts affect those only who claim under its parties 797

EflFect of statute of frauds 797

Written contract or memorandum 797

Requisites of writing 793

Contract for sale of lands 793

Contract for exchange of lands 793

What is sufficient contract to be enforced 793

What is not 793

Dispensing with writing 793

Effect of performance or payment of price 799 .

Contracts fully executed by one party 799

Payment of purchase-money 799

Effect of part performance 799^ 300

Partial payment of purchase-money 800

Taken jjossession and making improvements 800. 801

Possession abandoned, under parol contract 801

Purchase compensated for improvements 801

Parol contract, for exchange of lands, partly executed when enforced. . 801

Verbal gift of land 802

Signing of contract by one party 802

Performance by complainant 802

Performance by plaintiff 802, 803

When performance excused 803

When time is not the essence of contract to convey land 803, 807

Purchaser's failure to make cash payment 804

When in default 804

Mode of performance 804

When vendee jDrevented from fulfilling by absence of vendor 804

Tender, when necessary 805

What is a sufficient tender 806

Effect of inability or failure to perform, of plaintiff 807

Vol. v.— 112

890 INDEX.

SPECIFIC PERFORMANCE — CoTi^mwec?. paqk.

Wlien time is not of the essence of the contract 807, 808

When time is essential 808

Purchase to be completed on day certain 808

Clause that contract shall be void in case of breach of condition 809

Intention of parties 809

How construed 809

Objection in respect of time, how waived 809

Loss sustained by failure to give purchaser possession 809

Effect of delay 810

Complainant guilty of laches 810, 811

When all claim to equity forfeited , 810

Delay arising from state of title 810

Buying up title of third person 811

Purchaser aware of objections to title , 811

Compensation for delay 811

Profits of estate 813

Interest upon purchase-money 813

Interest from what time . , . 813

Deterioration by dilapidation or mismanagement 813

Expenses of property sold 813

Where vendor seeks performance 813

When equity refuses to interfere in favor of vendor 813

Where good title cannot be made to adjunct 813, 814

When purchaser not entitled to abatement , 814

Different tenure from that contracted for 814, 815

Where vendee seeks perfoimance 815

When delay not important 815

When lapse of time will not bar relief 815

Negligence imputed to a party 815

Improvements made with knowledge of defendant 815

Parties to the action 816

Who ought to be plaintiffs 816

When infant may maintain action 817

Married women 817

Devisees 817

Grantor of property in trust for specific purpose 817

County when 817

Who not proper parties plaintiff 817

Mere volunteer 817

One not party to contract 817

Wife after death of husband 818

Who to be defendants 818

Persons having or claiming interest in land 818

Railway company having leased line 818

When heirs of deceased person 819

Trustee holding title to corporate lands 819

Persons having interest in subject of suit 819

Married woman, when necessary defendant 819

IKDEX. 891

SPECIFIC PERFORMANCE— Cow«m?<e<Z. page.

Who not to be defendant 819

When heirs need not be made parties 820

When wife of surviving partner need not be made defendant 820

Pleadings : 820

What plaintiff must show in a bill for 820

What allegation not sufficient 820

Bill for conveyance of land 820

Bill for enforcing payment of lost note 820

Need not allege defendants' ability to perform 820

What necessary allegations in complaint 821

When bill must be dismissed 823

What objections must be taken by plea or answer' 822

What plea or answer cannot defeat^ bill 822

Denial of contract stated in bill .... 822

Matters of defense 822

What defendant may show in defense 822, 823

Misrepresentation by vendor 823

Parol promise to vary term's 823

Parol promise to rescind 823

Refusal of wife to release dower 823

Land became more valuable since contract 823

Inadequacy of price 823

What sufficient defense 824

Eyidence 824

What is admissible 824

What is not admissible 825

Burden of proof 826

Variance 827

Decree ./-s 828

Requiring performance by one party ^ 828

The relief 829

When plaintiff may have approximate relief 829

If plaintiff willing to accept part performance 829

Court can only compel vendor to convey his interest in land 829

What may be granted under general prayer for relief 829

Where purchaser has been kept out of possession by vendor 829

Court moulds relief to circumstances of case 830

Bill against infant heirs 830

Decreeing performance of agreement for a lease 830

Bill for execution of agreement and an injunction 830

Contract secujred by a penalty 831

Compensatim in damages in lieu of performance 831

Decree, how enforced 831

Land in foreign state or county 832

Where decree does not designate time of performance 832

Directing one party to pay on a certain day 832

When decree erroneous • . S32, 833

892 INDEX.

STOPPAGE IN TRANSITU (See Sales) : page.

Right of, upon what based 612

Who may exercise right 612

When right may be exercised 614

Against whom exercised 613

Mode of stoppage 615

Right how defeated 616

SUBROGATION:

of surety 213

On what the right depends 213

When tenant by the curtesy entitled to 427

SUNDAY :

Penalty for violating 157

Bail bond executed on, vahd • 402

Rescission of contract on, void 508

Sale on, not void at common law 635

SURETY:

Who considered a surety 186

Nature of the contract of , 187

Defense to suit against 202

Discharge of 226

TEACHER (See Parent and Child) :

Stands in loco 2yarentis 44

Liable for cruelty to child 44

TENANTS IN COMMON:

Right of, to division of land 89

Part owners of ships are 122, 681

Receiver of property of 369

TENDER :

VaUdity of 582

In what currency 582

To agent 584

Of title by vendor 805

Of purchase-money by vendee o 805

Wliat is a sufficient tender 806

TITLE :

To public office, liow determined 9

Judgment of partition conclusive as to title to land 102

Transfer of, when sufficient delivery 168

Title to office, how tried , 362

Of railway company to its road-bed 278

Of railway companies to land 288

Of receiver 388

Sufficient to maintain replevin 471, 475

Implied warranty of 560

When title passes on sale of goods 586

To vessels 674

INDEX. 893

TITLE — Continued. ^^^^

Slantler of 7g j

Tender of, by vendor 8O5

TORTS :

Liability of public officer for 33

Liability of parents for torts of child 53

Infant may sue for qq

Infant liable for 73 73

Firm liable for torts of partners 107

Right of action for, by partnerships I47

Part owners of ships liable for torts of employees 683

TRUSTEE :

May maintain suit for partition 90

Dispossession of, by appointment of receivers 364

Cannot be appointed receiver 377

May maintain replevin for trust property 472

WAIVER :

Waiver of pledge I73

Of discharge by surety 243 245

By State, of enactment in its own favor 407

Of right to rescind contract 508

Of payment of price 548

Of condition of payment 585

Of right of stoppage in transitu 618

WARRANTY:

Implied in sale by a sample 554

What representations import 555

Form of express warranty 556

By agent 556

Of soundness in sale of horse 558, 559

Implied warranty of quality 561

May exist in case of executory contract 563

Breach of, what is 566

Action for breach of 625, 626

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