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Full text of "The American decisions : containing all the cases of general value and authority decided in the courts of the several states, from the earliest issue of the state reports to the year 1869"

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THB 


American  Decisions 


OOVTAnflRa  THB 


CASKS  OF  GENERAL  VALUE  AND  ATITHORITT 


jytOiDMD  VK 


The  Courts  of  the  Several  States 


FBOM  THS  KARTiTHOT  I8S0B  OF  THS  RATS  B1POB3I8  TO 

TH8  YEAR  186t. 


Bt  a.    0.   FBEEMAN, 

ta  hkw,  ASD  Autmam  of  *<nnA<xia  ov  «■■  law  ov 


Vol  Lxn. 


BAIT  FBANCieCO: 

BANCROFT-WKITI^EY   CO. 

LikW  PUBU8HBB8  AND  LAW  BOOXSEXJJ'Ba 

1886. 


/  *?  t  : 


763 


JtiL  &  ^-  liMHk 


■wntMng  tn  ft  nt  nf  ^angiiim.  In  Ihi  jiw  IIHH. 
Bi  A.  L.  BANOBOn  *  OOMPAST, 
fe  «h*  OSm  «l  tha  libmiaa  of  OooffMit  at 


k  « 


.•  •       •  • 

r  •  -    •     • 

•      •  •■    • 


•  •      •  • 

•       •      • 

I       •       •      • 


American  Decision& 


YOL.  Lxn. 


The  cases  re-reported  in  this  Yolume  will  be  found 
oiiginallj  reported  in  the  following  State  Beports: 

Hiw  Ton  BnoKiB. Yob.  11,  U.  1864. 

Jom't  N.  Oakxuu  Liw  RnoBfs.  -    -YoIb.!,  S.  1864. 

Jom't N. Cab(»j]u Egumr Bnosn.   -yol8.1»a.  1864. 

QqoSiATBBBOBn. Vols.  8,  4.     1888;  1864. 

ObmohBdobtb. Vol.  i;  1864. 

PmniLTAaLk  Srixi  Rnosfs.     -    -    -Yob.  28,  S8«  84.     1864. 
Bbodi  Tslmxd  BnoBis.    -    -    .    .    •  Vol.  8.  1864. 

BuBiJEDScni'B  B.  Caboldu  Eq.  BiMfcmn.  YoIb.  6»  7.     1868, 1864. 
BicHABDe^v't  S.  CiJKnuvA  Law  Bnosn.  Yob.  7,  8.  1864. 

SniD't TsmnflBB BDonk  -    •    -    -Yob.  1.3.     1864^1866. 

Texas  Bbvobts. Yob.  11,  IS,  18.     1864. 

YnMOMT  Boons. Yob.  96 JfT.  1864. 

Gbattav's  YnanmL  Bnosn.  •    -    -    -Ydl.  U.  1864. 

Wnoonar  Bnosn.      .    .    •    •    .    -YoL8.  1864. 

Alabami  Bnosn.    ...•••    -Yob.  96,  ST.  1866. 

s 


SCHEDULE 

ow 
MEMKa  VBOM  WHICH  CASKS  HATS  BDEir  SELMTD 

AMERICAN  DECISIONS 


ll^BJJiik-a  Hbcr)  12|  (1  8««w.)I8;  (9  Sttv.)  19»  20|  (S  Sttw.)  30^  ai| 

(1  Stew,  ft  P.)  21;  (1.%  8  Stew,  ft  P.)  23;  (4, 6  Stew,  ft  P.)  M;  (AStew. 

ft  P.,  and  1  Ptetar)  26;  (l»2Ptetar)27;  (3»  4  Pbrter)  29;  (4,  ft,  0  Pbrter) 

30;  (0,  7  Porter)  31;  (8.  9  Porter)  33;  (1)  34»  39;  (2,  8)  36;  (3,  4)  ST; 

(4,  6)  33;  («.  7)  41;  (7.  8)  42;  (9,  10)  44;  (11,  12)  46;  (13,  14, 1ft)  48; 

(1ft,  16)  50;  (17, 18)  52;  (18, 19)  54;  (20^  21)  56;  (29^  28)  58;  (24, 2ft)  60; 

(28,27)62. 
AMLkWU»-(l.  2)  33;  (2)  35;  (3)  36;  (4)  37,  38;  (ft)  39,  41;  («  42;  ff,  8) 

44,  46;  (8,  9)  47;  {9,  10)  50;  (10, 11)  52;  (11, 19  54;  (12, 18)  56;  (18, 

14)  58;  (14,  1ft)  60. 
Gauvobsia— (1)  52,  54;  (2)  56;  (3)  58;  (4)  60. 
CowicncuT-(Kirby,  and  1,  2  Boot)  1;  (1, 2  Digr)  2;  (8  D*y)  3;  (4  Day)  ♦; 

(ft  Day)  5;  (1)  6,  7;  (2)  7;  (3)  8;  (4)  10;  (ft)  13;  (0)  16;  (7)  18;  (8)  20; 

(9)  21;  (10)  25,  26,  27;  (11)  27,  29;  (12)  30,  31;  (13)  33;  (18, 14)  35; 

(14)  36;  (1ft)  38, 39;  (16)  41;  (17, 18)  44;  (18)  46;  (19)  48;  (19, 20)  50; 

(20,  52;  (21)  54;  (21,  22)  56;  (22)  58;  (23)  60. 
DnjkWABB— (1  Harr.)  23^  25,  26, 27;  (2  Harr.)  29,  30^  31,  33;  (4  Harr.) 

42,  44;  (5  Harr.)  48,  60. 
TSMLLD A—il)  44,  46;  (2)  4^  50;  (3)  52;  (4)  54,  56;  (ft)  5a 
QiOBOiA— (1  T.  U.  P.  Cliarlton)  4;  (1)  44;  (2, 3)  46;  (4,  ft)  48;  (0^  7)  50;  (8,  9) 

52;  (9,  10)  54;  (11,  12)  56;  (12;  13,  14)  58;  (1ft,  16)  60. 
lujHOiaHBreeee)  2;  (1  Scam.)  25,  26,  27,  28^  29,  30,  32,  33;  (2  Scam.) 

33,  35;  (3  Scam.)  36;   (3,  4  Scam.)  38;  (4  Scam.)  39;   (1  CKlm.)  41; 

(2  Oilm.)  43;  (3  GUm.)  44;  (4  Gilm.)  46;  (5  Oilm.)  48,  50;  (11)  50;  (11, 

12)  52;  )12,  13)  54;  (13,  14),  56;  (14,  16)  58;  (16)  60;  (16)  61. 
I]n>iAHA— (1  Blackf.)  12;  (2  Blackf.)  18^  20,  21;  3  Blackf.  25, 26;  (4  Blacki.) 

28,  29,  30,  32;  (5  Black!)  32,  33,  35,  36;  (6  Blackf.)  36,  38,  39; 

(7  Blaokf.)  39,  41, 43;  (8  Blacki.)  44,  46;  (1)  4^  50;  (2)  52;  (2, 8)  5<| 

0)  56;  (4)  58;  (5,  6)  61. 


^  m:i  >iiii 


UB. 


Iowa— (Morrb)  99,  41, 43;  (I  O.  Oraena)  44;  4fl^  80;  (SO.  Qmm) 
(8  O.  GfMoe)  54,  56;  (4  0.  Oreene)  61. 

KjumroKT— (1  Sneed)  2;  (Hudin)  8;  (1  Bibb)  4;  (2  Bibb)  <  5;  (S  Bibb)  Bt 
(4  Bibb)  7;  (1  A.  K.  MAnh.)  10;  (2  A.  K.  lianb.,  and  UtL  SaL  Om.)  X2; 
(3  A.  K.  Manh.,  and  1,  2  litt.)  13;  (3,  4  litt)  14;  (1,  2  Mon.,  and  5 
Litt.)  15;  (3,  4  Moo.)  16;  (5,  6  Mon.)  17;  (7  Moo.)  18;  (1,  2,  3  J.  J. 
Manh.)  19;  (3,  4,  5  J.  J.  Manh.)  20;  (5,  6  J.  J.  Manh.)  22;  (7  J.  J. 
lianh.)  22,  23;  (1  Dana)  25;  (2  Dana)  26;  (3  Dana)  28;  (4  Dana)  29; 
(5  Dana)  30;  (6,  7  Dana)  32;  (8,  9  Dana)  33;  (9  Dana,  and  1  B.  Mon.) 
35;  (1,  2  B.  Mon.)  36;  (2,  3  B.  Mon.)  38;  (3,  4  B.  Mon.)  38;  (4,  5  B. 
Mon.)  41;  (5,  6  B.  Mon.)  43;  (6  B.  Mon.)  44;  (7  B.  Mon.)  45;  (7,  8  B. 
Mon.)  46;  (8,  9  B.  Mon.)  48;  (9,  10  B.  Mon.)  50;  (10,  11  B.  Moo.)  52| 
(12  a  Mon.)  54;  (13  B.  Mon.)  56;  (14  &  Mon.)  58;  (14, 15  B.  Mon.)  61. 

LovniAKA— (If  2,  8  Mart.)  5;  (3,  4  Mart)  6;  (5, 6, 7  Mart)  12;  (8^  9, 10,  II, 
12  Mart)  13;  (1,  2  Mart,  N.  S.)  14;  (3  Mart,  N.  S.)  15;  (4,  5  Mart., 
N.  8.)  16;  (6  Mart,  N.  8.)  17;  (7  Mart,  N.  8.)  18;  (8  Mart,  N.  S.)  19, 
20;  (1, 2)  20;  (2, 3)  22;  (3,  4)  23;  (5,  6)  25;  (6, 7)  26;  (8)  28;  (9, 10)  29; 
(11)  30;  (12)32;  (13,  14)  33;  (15,  16)  35;  (17,  18,  19)  36;  (1  Rob.)  36; 
(1, 2, 3  Bob.)  38;  (4, 6,  6  Bob.)  39;  (8, 7, 8,  9  Rob.)  41;  (10, 11, 12  Bob.) 
43;  (1  Ann.)  45;  (2  Ann.)  46;  (3  Ann.)  48;  (4  Ann.)  50;  (5  Ann.)  52; 
(6  Ann.)  54;  (7  Ann.j  56;  (8  Ann.)  58;  (9  Ann.)  61. 

Maivv— (1  GroenL)  10;  (2  Qroenl)  11;  (3  Qreenl.)  14;  (4  OroenL)  16; 
(5  GreenL)  17;  (6  Greenl.)  19;  (8,  7  OreenL)  20;  (7,  8  GraenL)  22;  (8,  9 
OreenL)  23;  (10  Me.)  25;  (11)  25,  26;  (12)  28;  (13)  29;  (14)  30,  31; 
(15)  32;  (15,  16)  33;  (17)  35;  (18,  19)  36;  (20)  37;  (21,  22)38;  (22,  28) 
39;  (23,  24)  41;  (25)  43;  (26)  45;  (26,  27)  46;  (28,  29)  48;  (29,  d(K  31) 
50;  (31,  32)  52;  (32,  33)  54;  (34,  35)  56;  (35,  36,  37)  58;  (37)  59;  (38)  61. 

Martland^I,  2,  3,  4  H.  ft  M.)  1;  (1  H.  ft  J.)  2;  (2  H.  ft  J.)  8;  (3  H.  ft  J.) 
5,  6;  (4  H.  ft  J.)  7;  (5H.  ft  J.)  9;  (6  H.  ft  J.)  14;  (7  H.  ft  J.)  16;  (1  BL 
Ch.)  17, 18;  (1  H.  ft  Q.)  18;  (1,  2  GiU  ft  J.)  19;  (2  BL  (7b.,  and  2, 3  O. 
ft  J.)  20;  (3  Bl.  Cli.,  and  3  G.  ft  J.)  22;  (4,  5  G.  ft  J.)  23;  (5,  6  G.  ft  J.) 
25;  (6,  7  G.  ft  J.)  26;  (7  G.  ft  J.)  28;  (8  G.  ft  J.)  29;  (9  G.  ft  J.)  31; 
(10  G.  ft  J.)  32;  (11  G.  ft  J.)  33,  35,  37;  (12  G.  ft  J.)  38;  (1  GiU)  39; 
(2  GiU)  41;  (3  GUI)  43;  (4  GUI)  45;  (5,  6  GiU)  46;  (6,  7  GUI)  48;  (8  GUI) 
60;  (9  GiU)  52;  (1)  54;  (2,  3)  56;  (4,  5)  59;  (5,  6,  7)  61. 

MAJBaAaHnsBTT»-(Qainoy)  1;  (1)  2;  (2,  3,  4)  3;  (5, 6)  4;  (7, 8)  5;  (9, 10, 11)  6; 
(12, 13, 14)  7;  (15,  16)  8;  (17)  9;  (1  Pick.)  11;  (2  Pick.)  13;  (3  Pick.)  15; 
(4, 5  Pick.)  16;  (6  Pick.)  17;  (7,  8,  9  Pick.)  19;  (9, 10  Pick.)  20;  (11, 12 
Pick.)  22;  (12,  13  Pick.)  24;  (13,  14,  15  Pick.)  25;  (15,  16  Pick.)  26; 
(16,  17  Pick.)  28;  (18  Pick.)  29;  (19  Pick.)  31;  (20  Pick.)  32;  (22  Pick.) 
33;  (23  Pick.)  34;  (24  Pick.,  and  1,  2  Met)  35;  (2,  3  Met)  37;  (3,  4,  5 
Met)  38;  (5,  6,  7  Met  39;  (7,  8  Met)  41;  (9,  10  Met)  43;  (11, 12  Met) 
45;  (12,  13  Met)  46;  (1,  2  Cash.)  48;  (3,  4CHi8h.)50;  (5  CJnah.)  51;  (5, 
0  Gush.)  52;  (6  Cush.)  53;  (7, 8  Cuah.)  54;  (9  Gnab.)  55^  57;  (10  Cnah.) 
57;  (11,  12  Oiah.)  59;  (1,  2  Gray)  61. 

MiomoAvHl  I>oug.)  40, 41;  (2  Dong.)  43,  45, 47;  (1)  48^  51,  53;  (2)  M. 
57;  (2,  3)  69;  (3)  61. 

MnnrcsoTA— (1)  ^^i  ^^' 

MiasissiFPiMWalker)  12;  (1  How.)  26^  28»  29, 31;  (2  How.)  32;  (3, 4  How.) 

34;  (4, 5  How.)  35;  (5  How.)  37;  (6  How.)  38;  (7  How.,  and  1 S.  ft  M.) 

40;  (2,  3  S.  ft  M.)  41;  (4,  5  S.  ft  M.)  43;  (5,  0,  7  a  ft  M.)  45;  (8»  9  & 


•-I  :i  H  i:i 


ftlL)€V|  A10&  ft  1L)«}  (U  S.  ftM.)40|  (U;ll&ftll.)81|  m 
14  &  ft  IL)  58$  (»)  S5,  07;  (24>  SB)  07|  (S8»  96)  09|  (9,  «)  el. 

ifnmw-<i)U.i4;  (2)22;  (S)2a;a8^a8,aei  (4)aflk»,nim«i.ni 

(AM,  35;  (7)87,38;  (8)  40,  41;  (9)  43;  (9,  10) 45;  (10,11)47;  (11. 
12)  49;  (12)  51;  (13)  58;  (14,  15]l55;  (Ifi^  15,  17)  57;  (17.  18,  18)  58| 

a9,  20)  ei. 

Vsw  HAMP8Hnui-<l)  8;  (2)9;  (8)  14;  (4)17;  (6)  90^  22;  (8)  28^  28^  28| 
(7)26^28;  (8)28,29,31;  (9)81,22;  (10) 34;  (11) 35;  (12) 37;  (1«) 83| 
(18.  14)  40;  (15, 16)41;  (16, 17)  43;  (18)  45,  47;  (19)  40|  (19,  90)  81| 
(21,  22)  53;  (22;  23»  94)  55;  (94,  25^  96)  07|  (96^  27.  96)  59;  (98, 
99)81. 

Vsw  JKB8ET-(Ooxe)  1;  (1  P«n.)  2;  (2  Fta.)  4;  (1  Sovtlk)  7;  (2  Soalh.)  8| 
(lHa]st)Kh  (2HiJsk)ll;  (8HalsL)14;  (4HalsL)17;  (6Hakt)18| 
(6  Hakt)  19,  20;  (1  8mc,  7  Hakt)  21;  (1  Or.,  1  Stt.,  7  B^bt)  22| 
a  SuL.  1  (9r.)  28;  (1, 2Gk.)  25;  (2 (9r.)  27;  (SCh-.)  28;  29;  (2 Ch-.  Ch.) 
29;  (1  Harr.,  8  <3r.  C9i.)  81;  (}  Hirr.,  1  (9r.  Ch.)  32;  (2  Harr.,  1  <}r.  Oh.) 
34;  (1  Or.  Gb.,  2,  8  Hirr.)  85;  (8  Hair.)  87;  (8  (9r.  Ch.,  1  SpMiMr,  8  ft 

4  Hur.)  38;  (1  Spencer,  ZQr.  Ch.)  40;  (8(9r.  Cb.)  41;  (1  8pne«r, 8Qr« 
Ch..  1  Hakfc.  Ch.)  43;  (1  Spenoer,  1  Halsk  Ch.)  45;  (1  Zab..  2  BaM. 
ai.)47;  (2  ZaK,  8  Heist  Ch.)  51;  (2, 8Zeh.)  58;  (8Zeh.,  4B^btCh.) 
55;  (3  Zab.,  1  Stock.  Ch.)  57;  (4  Zab.,  1  Stock.  Ch.)  59;  (4  Zeb.)  61. 

Viw  YoBX— (1,  2  Johns.  Ou.)  1;  (8  Johns.  Om.,  1,  2  00.  Om.,  1,  2,  8  00.) 
2;  (1. 2, 8  Johns.)  3;  (4, 6  Johns.)  4;  (8, 7,  8  Johns.)  5;  (9, 10, 11  Johns.) 
6;  (12, 13,  14  Jc^ns.,  1,  2  Johns.  Ch.)  7;  (18,  16, 17  Johns.,  8,  4  Johns. 
Ch.)  8;  (18  Johns.,  6  Johns.  Ch.)  9;  (19  Johns.,  6  Johns.  Ch.)  10;  (28 
Johns.,  7  Johns.  Ch.)  11;  (1  Cow.)  18;  (Hop.  Ch.^  end  2  Cow.)  14;  (8, 4, 
6 Cow.)  15;  (6 Cow.)  16;  (7  Cow.)  17;  (8, 9Cow.)  18;  (1  FtL,  1, 2  Wend.) 
19;  (2, 3  Wend.)20;  (2 PsL,  4, 8, 6  Wend.)  21;  (2, 8F)d., 6, 7,8W«id.) 
22;  (3  PsL)  23,  24;  (8,  9, 10  Wend.)  24;  (4  Pai.,  10,  11  Wend.)  25| 
(4  PteL,  11, 12,  13  Wend.)  27;  (6  PaL,  13,  14  Wend.)  28;  (6  PaL)  29; 
(16,  16  Wend.)  30;  (6,  7  F^,  17, 18  Wend.)  88;  (7  PaL,  19.  20  Wend.) 
82;  (7,  8  Pai.,  21,  22  Wend.)  34;  (28,  24,  25  Wend.,  8  Pai.)  35;  (26,  28 
Wend.,  1,  2  Hill,  9  PkL)  37;  (9  PoL,  2,  8  HUl)  38;  (10  PaL,  4,  6,  6  HiU) 
40;  (6  Hill)  41;  (7  Hill,  10, 11  PaL)  42;  (1,  2  Denio,  11  PteL,  1  Bteh. 
Ch.)  43;  (1,  2  Barh.  Ch.,  8  Denio)  45;  (4. 6  Denio,  2  Barb.  Ch.)  47; 
(3  Barb.  Ch.,  5  DenIo)  49;  (1,  2)  49;  (2,  8)  51;  (3,  4)  53;  (4,  6,  6)  55; 
(6,  7)  57;  (7,  8,  9)  59;  (9,  10)  61;  (11. 12)  62. 

KoBTH  Caboliha— (1  Biart,  1  Hayw.,  1  TayL)  1;  (2  Hayw..  1  Conf.)  2; 
(1  Morph.)  3, 4;  (2 Miurph.)  5;  (1, 2  LawBep^)  6;  (1 T.  R.) 7;  (8Mnxph.. 

1  Hawks)  9;  (2  Hawks)  11;  (3  Hawks)  14;  (4  Hawks)  15;  (1  Der.)  17; 
(2 Dot.)  18,  21;  (1  Bev.  Bq.)  18;  (3  Der.,  2  Der.  Eq.)  22,  24;  (4  Der., 

2  Dot.  Bq.)25;  (4  Bev.,  2  Dot.  Bq.,  1  D.  ft  B.,  1  D.  ft  B.  Bq.)  27;  (1, 2 
D.  ft  B.,  1  D.  ft  Bw  Eq.)  28,  80;  (1  D.  ft  B.  Bq.,  2  D.  ft  Bw)  31;  (8,  4  D. 
ft  Bw,  2  D.  ft  B.  Bq.)  32;  (4  D.  ft  B.,  2  D.  ft  Bw  Bq.)  34;  (1  Ired.)  35; 
(1  Ired.  Bq.)  36;  (2  Ired.)  37;  (2;  8  Ired.,  2  Ired.  Bq.)  38;  (8,  4  Ired., 
2,  3  Ired.  Eq.)  40;  (4, 5  Ired.,  3  Ired.  Bq.)  42;  (6,  6  Ired.,  3, 4  Ired.  Bq.) 
44;  (6, 7Iied.,  4 Ired. Ch.) 45;  (7,8Ired.,4,  6  Ired., Eq.) 47; (8, 9Ired.. 

5  Ired.  Bq.)  49;  (9, 10,  11  Ired.,  0  Ired.  Eq.)  51;  (11  Ired.,  7  Ired.  Bq.) 
53;  (12, 13  Ired.,  8  Ired.  Eq.)  55;  (13  Ired.,  8Ired.  Bq..  BosbeeL.,  Bnh 
bee  Eq.)  57;  (Bnsbee  L.,  1  Jones  L^,  Bnsbee  Eq.,  1  Jones  Bq.)  59;  (1,  9 
JoMs  L.,  1.  2  Jones  Bq.)  62. 


(8)81,  83;  (9) 8ft;  (l(Q 86;  (11)  87, 88|  (U)  40;  (m44  a^lSI^Bt 
m  ^l  (IT)  49;  (18)^81;  (10)88|  (90)  58;  (1,  S  Ohio  81.)  89;  (8.  4 
Ohio  81.)  62. 

Onsov— (1)  62. 

JPfenrsTLTAinAHI  Add.,  1,  %  S  DilL,  1,  STMtas)  1;  (1  BiiL,  t»  4 TMtes) 
8;  (2  Bin.)  4;  (S,  4  Bin.)  8;  (8»  6  Bin.)  6;  (1, 2  &  ft  B.)  7;  (1^  4  a  ft  B.)  % 
(8^68.ftR.)9;  (7  8.ftB.)10;(8,9&ftR.)ll;(10&ftB.)18;  (1I| 
12  &  ft  B.)  14;  (13  &  ft  B.)  18;  (14,  Ifi,  16  8.  ft  B.)  16;  (17  8.  ft  B.)  17. 
(1  Bawk)  18;  (2  BawU)  19;  (2  Bawl%  1,  2  P.  ft  W.)  21;  (8  Bawlo,  2,  8 
f  .  ft  W.)  23,  24;  (4  Bawle,  1,  2  Wattp)  26;  (4  Bawle,  %  8  WftMi)  27; 

(6  BawIa,  4  W»tte)  28;  (1  Whwt )  29;  (1, 2  Whnrt.,  5  Wfttte)  80;  (6  Wa*K 
S  WhMt.)  31;  (7  Watti)  32;  (4  Whart)  83;  (8»  9  Watti,  4^  0  Wbart.) 
84;  (9^  10  Wfttta,  6  Whart)  86;  (6  Whart,  1,  2,  8  W.  ft  &)  87;  (3  W. 
ft&)38;  (3»4,5W.ftS.)39;  (5,  6  W.  ft  8.)  40;  ad.9W.ft8.)  48; 
(1,  2  Pa.  St)  44;  (?,  3, 4, 6)  45;  (6, 6, 7)  47;  (7, 8. 9, 10)  49;  (10, 11,  121 
81;  (13,  14, 16)  53;  (10,  17, 18)  55;  (18»  19,  20)  57;  (20, 21)  59;  (22)  60; 
(22»  28,  24)  62. 
Bbomi  l8LAin>-(l)  19,  86,  51,  53;  (2)  55,  57,  60;  (8)  62L 
fkntK  GABOLDrA— (1,  2  Bay,  1  Tkmxu  Bq.)  1;  2  Dana.  Bq.,  1  Brer.)  2; 
(2  Bror.)  3;  (3  Deaan.  Bq.,  2  Bror.)  4;  (3  Deaan.  Bq.,  8  Biwr.)  8; 
(4DMaa.Bq.,3  Bnv.)  6;  (lN.ftM.)9;  (1  N.  ft  M.,  1  MoG.)  10;  (1,2 
Mill)  12;  (2  MoO.)  13;  (1  Harp.  Eq.)  14;  (3  MoO.)  15;  (1,  2  Mca  Ch.) 
16;  (4  Moa)  17;  (1  Harp.)  18;  (1  BaL)  19;  (1,  2  Bai,  1  Bai.  Eq.)  21; 
(2  Bai.,  1  Bai.  Eq.,  1  Eioh.  Eq.)  23;  (1  Rich.  Bq.)  24;  (1  Hill,  1  HUl  (^) 
86;  (2  Hill,  1,  2  HiU  Ou)  27;  (2  Hill  Gh.)  29;  (3  Hill,  1  Biley,  1  Biley 
C8l,  2  HiUCai.)  30;  (Dudley)  31;  (Rioe)  83;  (Chevea)  34;  (MoM.)  86; 
(1  BCoM.  Bq.,  2  MoM.)  87;  (2  MoM.,  1  Spaan  Eq.)  39;  (1  Spean,  1  Spean 
Bq.)  40,  42;  (1  Rioh.  Bq.,  1  Rioh.,  2  Spean)  42;  (1,  2  Eioh.,  1,  2  Eioh. 
Sq.)  44;  (2,  3  Rioh.)  45;  (2  Rich.  Eq.)  46;  (1  Strob.  Eq.,  1,  2  Strob.)  47; 
(%  3Strob.,  2  Strob.  Eq.),49;  (3»  4  Strob.>  3  Strob.  Eq.)  51;  (4,  5  Strob., 

4  Rioh.,  4  Strob.  Bq.)  53;  (3, 4  Rioh.  Eq.,  4, 5,  0  Rioh.)  55;  (4  Rioh.  Eq., 

5  Rioh.)  57;  (5, 6  Rioh.  Eq.,  6  Rioh.)  60;  (8, 7  Rich.  Eq.,  7,  8  Rich.)  62. 
TBrrasBSB— (1  Overt)  3;  (1  Cooke,  2  Overt)  5;  (3»  4,  5  Hay.)  9;  (Peek)  14; 

(M.  ft  Y.)17;  (1,2, 3Yerg.)24;  (4,5Yerg.)26;  (0,7Yerg.)27;  (8  Yerg.) 

29;  (9,  10  Yerg.)  30;   (10  Yerg.)  31;  (1  Meiga)  83;   (1  Hnmph.)  34; 

(2  Humph.)  36,  37;  (3  Humph.)  39;  (4  Humph.)  40;  (5  Humph.)  42; 

(6  Humph.)  44;  (7  Humph.)  46;  (8  Humph.)  47;  (8,  9  Humph.)  49; 

(9^  10  Humph.)  51;  (10,  11  Humph.)  58;  (1  Swan)  55,  57;  (2  Swan)  58; 

(1  Sneed)  60;  (1,  2  Sneed)  6Z 
TnAfrHD  «6;  (2)  47;  (3)  49;  (4, 5)  51;  (5, 6)  55;  (6)  56;  (7, 8, 9)  58;  (9, 10, 

11)  60;  (11,  12,  13)  62. 
▼nMOMT— (1  N.  Chip.,  1  D.  CHiip.)  1;  (1,  2  lyier)  2;  (ID.  Chip.)  6, 12; 

(1  Aik.,  2  D.  Chip.)  15;  (2  Aik.)  16;  (1)  18;  (2)  19,  21;  (3)  21,  23;  (4) 

23,  24;  (5)  26;  (6)  27;  (7)29;  (8)30;  (9)31;  (10)  83;  (11)84;  (12)36; 

(18)  37;  (14)  39;  (16)  40;  (16,  17)  42;  (17,  18)  44;  (18,  19)  46;  (19)  47; 

(20)  49;  (20,  21)  50;  (21,  22)  52;  (22,  23)  54;  (23)  56;  (24,  26)  58;  (25^ 

20)  60;  (26,  27)  6Z 

IINIA— (1  Jeffl,  1,  2  Wash.,  1,  2  Call)  1;  (3,  4,  6  OaU)  2;  (1,  2  H.  ft  M., 

6  OaU)  3;  (4  H.  ft  M.,  1  Muni)  4;  (1  Va.  Cat.,  2, 3  Munf.)  5;  (4  Munf.) 
6;  (6  Munf.)  7;  (6  Munf.)  8;  (1  Gihn.)  9;  (1  Rand.)  10;  (2  Rand.)  14| 


SCHEDUUL  • 

A4BaBd.)15;  (SBMd.)26;(6Baad.)18;  (iUi^)l»;  ffUl^)^ 
(t  I^Vi)  38;  A  4  lifl^)  M;  (4  Ldgh)  26;  (5  L^fh)  97|  (•  Li^)  a»» 
(7  La^)  aO;  (8  Iifl^^)  31;  (9  Lel|^)  88;  (10  Li<^)  M;  (11  Li^t)  86; 
(U,  12 La(gii} 87;  (1  Bol».)89.40;  (2BobL)40;(l(3iitt.)4a;(3<anll.) 
44;  (S  OntL)  40;  (4  Gntt.)  47;  (4^  5  Ctetl.)  80;  (Bi  •  Gntt)  82; 
(7  Ontt.)  M;  (7>  8  Oia*!.)  66;  (9  Gntt)  60;  (9^  10  Qntt.)  60»  ai 
Giitl)62. 

nnivHl  FiB.>30^  «a  4a;  M;  eiKikt  lOhnJ.)  68|  A8Ilik.i^8 
GhaML)  84;  (8  Pbi.)  001  (1«  8)  00;  (8)  08. 


American  Decisions. 

TOL.  LXII. 


CASES  REPORTED. 


•  •  •  • 


AUmt.  HffnUr...... DepotUkm 12 

Agnwr  T.  Johwiwii. «...  9 

Alaxudar  T.  FoK Msfnamdmimkfn.  S  Jooh*  Bqpity . .  811 

Andrawa  T.  Dunat CbniraeCiL 1IK.T.(1K«bhi)    W 

AtkfaiMnT.BnMki....^ iTey.  Iiiifriiwfa, .  .M  Vwaoat (M 

Avery  t.  Avciy ••«•« J7«iftaiidaMl«f^..lST(nM 511 

Bttilqrv.  JsBMi ...^•^^•...JSawiMte^eMMto.llOffittMi 601 

Bnfidd  T.  Brifti. ^^ Skmdtr. S  Jooh'Uw.....  190 

Bums  t.  TaagM BUittUpffnmU,..  IJooti'Bqpity...  SM 

BilUngs  T.  BiUMlI JwdgmaHt. 2t  P«bii.  Stiite. . . .  810 

Kthopr.  BUiop JMhtw 11  N.Y.(lK«nuui)    60 

Bcadfoid  T.  Sooth  OuoliaaJL  B.OMMMI  eorrim..  7  Biehaidaon'i L .  411 

Brittein  t.  Qnwt £^f-^. IJooflt*  Bqnl^.. . 

Brown  T.  Caipcntv • .  • . .  Jnlnab 20  VoraiOBt. . .  • .  •  • 

BnekT.  Albee OMifnMto 20  Vcnnoiit. 

Burdm  t*  Steiii«a»««««»**«*^«««AfNirfaM  fI|0M0«»*»27  AisImhdul •••■••  700 
Barton  T.  FkttoB QMMmMCOb 2  JoohTaw.....  194 


Cfeke'i  Appoil »« JmdgwmUi.m...»m^.2M  P<an.  9Mi...« 

CkrlinT.  Hndaon. /if^HiMtfoiM 12  Team 

Outer  T.Stotd .^ ..ChimiMktkm, 12  Texas 

GiUin  ▼.  Onntv Umrp UK.  Y.(lKenuui)  118 

Gbppv.Kdaoa BMmHi 12T^ni 680 

Gbik  ▼.  Bok^ein WMmce 22P«bb.  SMe....  807 

CkrkT.  GoM (Jjfcenmi^fUin.A^ttaam 681 

Oobl^WelahAOowT.  JohBMik..JMfaw0 28iieed 467 

OoUier'a  Adm'rT.Wlad]Myn.....AeeMlioiM 27AkbMM 707 

GomnMniweelth   t.  PttiJwpriil  r„.t .t €iai>.—  "^  -  vra 

Gonnell  t.  OiMidkr I>$ed$ 18Texae •  646 

Cammiiigi  t.  Oolema BomJUepmAamn  7  Bkhaidm'aBq.  402 


IkM  T.Fiedler CbnAwete 12K.T.(2KMMHi) 


It  Oases  Bkforibx 

Pi 


DiftHi  T.  Fkwktto Aftnekmmlw SWbooiMliu 

DiUv.  South  OM«iliiMiB.B.Obw.OoMMoiiearrte«...  7  BWiarfw'iL.  407 

DolMonv.  Pewoa. /w^mailt. 12  N.  T.  (2  Kermui)  152 

Dorr  T.  New Jerwy SteunNAT.  Oo^Oommom  eorrbrv. . .  11  N.  7.  (1  Kermui)  125 

DnnUp's  Adm'r  T.  Wri^t Deed$. 11  Tana 500 

DotyT.Onhm Morii/mgm 12Tnat 684 

EUiworth  T.  Turtt IhMHnaMp SBAlabMiuL 749 

EmenoDT.  Patridga^ Cmiirme$B 27  VaraiOBt. 017 

Evana  t.  Dato Fremd. cwwwfaiicai.24  Pann.  Steto....  S60 

Ez  parte  Vinoent..... Jkaj^mf 26  AlahanuL 714 


Fariah  T.  Baigle , Chmmm  owifaia, .  .11  Qrattan 

Fiaher  V.  Saltier 33oeeMikm» 28  Peon.  State....  885 

Fitshiigh'a  Ez'r  V.  Fltdumft Jfe'rvcDMl  odMi'ra.ll  Grattan 053 

Foggv.  Johnaton. Pturtnenk^ 27  Akbanuu 771 

Ford'a  Leaiee  v.  Ijagal JS^etmeai 40hioStKto 290 

Fowler  T.  Stoneum /VcnmI.  0MMiqfaiie8t.ll  Texaa 490 


Graham  T.  DaTia Attumpmi 4<HiioStato 285 

Green T.  KeUam Trtgpan 28Peim.  State....  882 

QfumT.  Howell PUadSng  wnd  pm^Sl  ATahuna. 785 


HailMraT.  Gadaden'. BpmficTperfomifit. ,  0  Biohacdaoii'aBq.  890 

HarkneaaT.  Sean ifasfiim 26  Alahana 742 

Harmony  t.  Bingham Cammcm  carrien, . .  12  N. T.(2 Keman)  142 

milyardv.  Crabtree'a.  Adm'r. . .  .Qutmimm  mermU  ...  11  Teama 475 

Hoyt  T.  Howe JudgmenU 3  Wiaoonain 705 

Hunter  t.  Lawrenoe'a  AdmV. . .  ,Ouardkmandwmrd,ll  Grattaa 040 

Hnbbell  T.  Hnbbell Jiarr'ffeanddimirce.  SWhoimtta 702 

Johnson  t.  GatUn  ..••.•••.»«^..PfauiiiH^aiul|vtK..27  Vermont ••  022 

Joneav.  HoUiday ConCraete 11  Tezaa 487 

JoncaT.  State ^....JiuirmeUon» 18 Tezaa 660 


Icam SOhioStete 240 


Keating T.  Spink Pkadhig tmd proiC..  OOhioState 214 

Kerwhaoker  t.  Clerelaad  ate. 
R.  R.GO. 

Kimball  T. Rutland efeo.B.R.Co.CofiMnoi»earrierf... 26  Vermont. 507 

Kirkaey  y.  Fike iiMrdaiMlarMlr'n.27  AUbunn 700 

Kirkwood  T.  Gordon IndrueHoiM. 7  Riohardaon'a  L .  418 

Knabb  y.  Drake. SaoieMikmM 23  Penn.  State ... .  802 


Lunonty.  Stimaon PvhUc  landt 3  Wiaoonain. 

Leey.  Kingabury JudgmenU 13  Tezaa 540 

Lawia  y.  Keeling NwHgtMe  rhen. , .  IJonea'Law 168 

linooln  y.  Wright Atmmjmit 23Penn.Stete 310 

Lookwood  y.  Thome Account 11  N.  T.  (1  Kettiaii)    81 

Loftin  y.  Cobb .•••••..  .Adperae  posmisUm, .  1  Jonea'  Law  ....  178 

I/>rilhmlT.  TkywnorMoni«a....Jrimie^eofii'«a..llN.y.(lKeiuHi)  198 


la 


MaiidflnoiiT.LDkm«..«««n.^.««^MMNpiif- SSFonn. 

T^Jakamm • i^fitmif ••>! 

MsttbewB  T.  Dovtiiitt JfcVt  amI  flteiiiffV.S?  AlabuuL 7» 

HcOi^eyT.Gnff Iffeetmad SSFonn.  8lMto..««  SM 

McDuiieb  T.  BoUnm Imkegten, ttVanioat. 674 

MeFaddan  ▼.  ConnnoawwiHh. , ,,Jbnw<r/eojww'rff . . .28  Pbml  8tirt> # . , ,  809 

HoGar  T.  WiUiaBis JVwKJ.  iijirwil^ii.W  AMwMim 788 

McQuaaB  T.  MeQoMn Mledkm 8  JoBM'Sqailsf ..  808 

Mdvin T.  Eulqr »«^...M«iaioe 1  JonM* Iaw  . . . .  171 

Monev.Goold StaMit, llK.Y.(lK«nuui)  108 

MowlyT.  livie MmMmginuU.,...T!  AbhuuL 708 

MoMT.CoIly Pleadimgtmdpme,.  1  Oregon 801 


NelmnT.  Vcnnont  ete.  B.  B.  Oo.Obf7oraffoM 88  Vcnnoiit. 014 

Kett]MT.8oathOHPoliniiB.B.ObwObMMO»earpi0rf...  7BidMidm^L.  408 

KdMT.  State. JJoMMIt aOAlabviuL 711 

Nortoa  t. 'Venter JBnemHma 1  Oragao. 887 


Oikley  T.  Mortau C^mlraefe^ ai  N.Y.(1K«bhi)    48 

Overton  T.  Sawyer Jbmmemi$ IJonti'Lsir....  170 

OwoiT.  SUttor i^...J)amer. S8A]abMM. 740 

Pilmer T.  Dodge PgHmnkIp 40hio8tete 871 

Filler  ▼.lIlM ^Ankmb S7AkbMM 770 

Peckk  ▼.  mblMffd a9i|/lfe<^laiM....80VenMiiit 

Feoosylvinift  B.  B. Oow t.  AipelL Ammoi^ 28  Peon.  Sftste.... 

Phillips T.  Davis. €htMrditm€mdwmrdU  SSnesd 472 

Pieksps  T.  YsrbogQin^'s  Adm*t.  .AmmmptU 80  Akhsma 720 

Porter  T.  Seller TrttpatB, 28  Pena.  State. .. .  841 

Pleeley  ▼.  Detis WUU 7  Biehsrdion'sBq,  88e 

Pritchett  ▼.  Stste Z^areenw SSneed 400 


Biebsrdaon  t.  BaMBMtt.«,.,,,.*2V»rif ••  8  Wiseoosfau 

Bippej  T.  Miller • Sftapoti 1  Jones' Law  ...  •  177 

BobinsoBT.  MoDooeld..... Vmtdor amd wmdm .11  T^nm 481 

Boee  T.  Houston Auftond  omI  wf^e.  .11  Tens 47f 


Bertein  ▼.  Hunflton Pomniom 18  Texas 

Brfmferifag t.  HaJBoMn StubamdimdwVk..  4(Hiio8tete 281 

Seotty.ffiz Sfmbamdemdw{f:.  2Snead 458 

Bhosmaker  T.  Benediel •Pleading  natf  proe..ll  N.T.(lK«naD)    86 

Simpson  T.  Wtttto WrUi^nwkm 0  Biohsidson'sBq. 

Stetnbeek  T.  Bead  ft  Oo» •^^ei^r 11  Grattsa. 

StaUiogST.  Newman • Skmder •-•••.26  Alabama ••....•  723 

State  ads.  Jones /asfmefieaf 18  Texas 660 

State  T.  Bamett DeU IJones' Law 189 

Steamboat  Btensr  ▼,  lieOiaw. .  .Ntf^iffetiee 26  Alabama 718 

Stephenson  T.  Dtokson .iT^v.  iMCmmoKf... 24  Pcnn.  State ..«.  808 


14  Omseb  BxFOBsna 


Tii^lorT.  IfoffriMB.... OotHribvOkm S8  AlabiiiML 747 

11iofp6T.BatlaDd«l8,S.B.Cb.(lM]wralioiit.»««,«.S7  V«rm^  820 

TMIarT.HngbM .....M^Hgagm 12N.Y.(SK«nuui)  197 

T.  GfMM Tnui$«mdirmim,.  S  JoBM'Bqvily..  206 


••  •• 


Viaent^  Bz  pvrto Bmyhtrf 86  Alilwauk 714 

Wilw T.WhttDiy WUU UN.Y.UKenutt)   71 

WafeUT.Ward. LoitpropeHg lOragoo.. 296 

WaitT.  Bigby • Judifmm^ 18  Tom 618 

WMterralt  V. Off^gg jBrtroqwrthw  lMM..18N.T.(2K«nuui)  166 

WilMm T. MoGaUoa^ igectmiaU 26P«iu&.  Steto....  647 

WiiMloir,LiBi«ftOo.T.LMMid.Aalif • 84Feim.  aMi.«.«  664 

fFMIakT.  TkMB. JkHmm ••••87  AlabiiiML 776 


CASES 


!••••< 


AMwtlT.  BloaMm 

AI>bottT/Jolii»toirD,0«  ft  K.  H. 

B.K.O0 617 

Abel  T.  SntfcoB S70b  277 

AbdlT.  WaiTCD 786 

AohMODT.  liilkr 112 

AfikflnoB  ▼.  Bkk  K.  B.  Od 685 

Adami  T.  CUm 601 

Adams  T.FdrfcPkfaiBMk 137 

V.  H0V8 488 

T.Liiliflr 110 

AdaiDfl,  Ex  parte. 168 

AdajT.  Eofaob 202 

AddelyT.  Dizon 878»  770 

Addingtony.  ^^niMm 422 

Atoalna.  Co.  ▼.Johrnon 187 

AgriealtualBaiikT.  FkUeo.....  828 

AlkmY.Tmj 748 

Alamango  t.  Sapcniion  of  Al- 

iMinrOo 128 

Allveoht  T.  Qiflfl. 87,    88 

Aldndm  T.  Beed 118 

Alexander  T.  EUiMn 488 

Alexander  ▼•  Gfeone 120 

Alexander  V.  Belfe. 881 

Alida^The 241 

Allairav.Hartahone 600^  731 

AUbrigbt  T.  Gorl^ 621 

AllMbeny  Vall^  B.  &.  t.  Mo- 


r.  Oamdon  elo.  WmrjOik 

881,  888 

r.OoolK 87 

ABanT.Dium 762 

Allen  T.HaU 486 

T.Kiag 6OQ16O2 

T.KewiMRy..,. 286b  288 

Allen  T.  Smith 688,714,  7!6 

AEen  T.  Sterena 88 

AUianoe  eto.  AMoiaaoe  Obw  t. 

Lwiiaiana  SfMe  lai.  Oo 110 

Altemaa  T.  GMnpbaU 884 

AneUe^Tlie 241 

Ameiioan  BxpNH  Go.  ▼.  Fatter- 

•on 881,884 

Amiable  Kanoy 886 

AmoryT.  Flyn 800^801 

AaaUe  T.  Gommonwoalllk. 680 

Aadenon  T.  Ghreble 488 

▼.Jabkaoft*. •••«»••••  816 


AndonoQ  t.  Long. • 844 

AndenoB  t.  Boberta 487 

Andlngv.  Lery 88Ltt,    88 

Andxewa  T.  Branoh  Bank  al  Mo- 
bile  788 

Andxewa  V.  Dielerieh. 867 

Andrewa  t.  Dorant 87, 68,  187 

Andrewa  t.  Hobeon'a  AdaiV ....    80 

Andrews  ▼.  Molfotd .179^  176 

Andrewa  t.  Partiagtoa 401 

Andrews  T.  Planten' Bank 281 

ANewBrig 841 

Ann  Arbor 288 

Annely  T.  De  SansBora. 484,  488 

Anonymooa  ▼•  Gelpoke 168 

Antarotio,  The 241 

Apjp  y.  Dreisbach 781 

JKaftof  QypressLogik 


Arasmith  t.  Temple. .  •  • 

Arlington  y.  Hinaa.. . .  .822;  688,  824 

Armington  t.  Town  of  Banai. . 

888,  608 

Arms  T.  Ashlev 488 

Armstrong  T.  Bisteaa 176 

Armstrong  t.  Sanford 624 

ArmstroiMrT.  ToI«r 
Amdt  T.  WiUiama . 
Arnold  ▼.  Dekno  • . 

Arlington  v.  Screws. 187 

Arthur  T.  Broadnaz 688 

Arthnr  y.  Homeatsad  V.  Ina.  Obw  168 
Aahbrooke  y.  The  Steamsr  Gol- 
den Gate 286,241,842;  818 

Ashby  T.  Ashl^. 667,  668 

AssoAMannel,InBtltntBSof....  628 
Astley  y.  B^ynolds. . . .  .144»  146,  160 

Aston  ▼•  Heayen. • 671 

Astory.Bnyt 608 

Atkins  y.  finnan 881 

Atkinson  y.  BelL 67, 6^  88; 

Atkinson  y .  Brooks 

Atkinson  y.  Bltoher 60 

Atkinson  y.  State. 668 

Atkinsony.  WoodalL 01 

Atlantio  Dook  Co.  ▼.  Lmyftl. . . .  141 
Atlantio  A  Great  Westetn  Co.  t. 

Dnnn 881,  888 

Atlee  y.  Raekhonae 148 

Attorney  General  t.  Bownaa.  • .  848 
Attoniey  Genenl  T.  Qrsaft  Vorlh- 
em  vtjOo, 


16 


Cases  Cited. 


via 


S75 

S76 

S74 

88 


Attorney  Gkntfal  t.  Londoo  4  8. 

R><S> 

Attorney  Qenend  ▼•  B.  R.  Com- 

paoiee 

Attorney  General  t.  Tbm  Oolioee 

Co 

Atwater  t.  Fowler 86^ 

Atwood  T.  Manning! 660 

Aabnm  City  Bank  ▼•  Laonaid. .  150 

Anliok  T.  Colvin 701 

Aurora,  The 240 

Aneonla  Bw  &  C.  Oow  t.  New  Lunp 

ChimneyCo 158 

Austin  T.  Bostwiok 102 

Aoetin  y.  Onrtia 808 

Aofltin  V.  ManohfMiter  ota  B>  06.  578 

Awtin  T.  Wilson 847,870,  880 

Antwnter  v.  Mathrot 866 

A?ery  t.  ATery .•  545 

Avery  T.  Leech 88 

A?0B,The 286,  280 

Ayles  T.  South-eastern  B.  B.  Go.  684 

Baboook  t.  Booth 506,  546 

Bach  y.  Goodrioh 524 

Bacon  T.Oobb 151 

Badger  y.  Phinney 785 

Bagndl  T.  Broderick 701 

Bailey  y.  Bamberger 735 

Bailey  y.  Freeman • 480 

Bailey  y.  Ogdeu 857 

Bailenry.  Shaw 820 

Baird  y.  Jackson • .  •  •  484 

Baker  y.  Arnot 467 

Bakery.  Briggs 748 

Baker  y.  depper 512 

Baker  y.  Oompton. 512 

Bakery.  Barney 512 

Bakery.  State 563,  630 

Baker  y.  Wheaton 610 

Baker's  WiU 158 

Baldwin  y.  Garter 136 

Baldwin  y.  Kinimd 150 

Baldwin  y.  liyerpool  ft  O.  W.  a 

Co 

Baldwin  y.  Mnnn 52, 

Baldwin  y.  New  York  life  Ins.  k 

T.  Go 54, 

Baldwin  y.  Payne 634 

Baldwin  y.  U.  a  Telegr^h  Co. .  120 

Ballantine  y.  Goldxng 600,  611 

Ballard  y.  Anderson 512 

Baltimore  etc.  B.  B.  Go.  y .  Blooher 

881,  884 

Baltimore  etc.  &,  B.  Co.  y.  Boone 

381,  384 

Baltimore  etc  B.  B.  Co.  y.  Die- 

triot  of  Colombia 376 

Baltimore  etc.  B.  B.  Co.  y.  Noell 

6»2.  688,  684,  685,  688 

Baltimore  etc.  B.  K  Co.y.  Wight- 
man. .  .681,  682,  683,  68^  &5,  688 
Baltimore  etc.  B.  B.  Co.  y.  Worth- 

ington 683 


152 
110 

151 


Baltimon  4  SosoMlyyma  B.  R» 

Co.  y.  Woodnuh 270^ 

Baoffsy.  Hall 07 

Banl  of  Angnsta  y.  Baile •    167 

Bank  of  Commonwealth  y.  liayor 

etc.ofN.7 12ft 

Bank  of  Ksntncky  y.  Adams  Ex- 

pressCo 130 

Bank  of  Pittsborgh  ▼.  Whitehead 

850,352,   688 

Bank  of  Scotland  y.  Cnthbert. . .   611 
Bank  of  Sonth  Carolina  y.  Hum- 

phrm 821 

Bank  of  St  Albans  y.  QilliUnd.  601 

Bank  of  Stale  y.  Cooper 638 

Bank  of  Tenneasee  t.  Patterson.   168 
Bank  of  the  Coauumwealth  t. 

Mndgett  • • 

Bank  of  the  Bepnbllo  y.  Caning- 

ton 

Bank  of  United  States  y.  Beima. 
Bank  of  United  States  y.  Mer- 
chants' Bank  at  Baltimore. .  •  • 
Bank  of  United  States  y.  Scfaohb  624 

Bank  of  Virginia  y.  Craig 644 

Barber  y.  Bnex. 687 

Barden  y.  Feloh 876 

Barfield  y.  Britt 187 

Barser  y.  Dnryin • . .  101 

Barkelew  y.  Taykir 785^  760 

Barker  y.  Ho^ion* 60 

Barkery.  HoC 61 

Barkley  y.  Tuiant  Comity. iOO 

Barnard  y.  Wallis. 870 

Bamardiston  T.  lingood 

Barnes y.  Meeds ..••... 

Barnes  y.PMtfson......... 

Bamesy.  State 188^  188 

Barnes  y.  Underwood  •••••...••  167 

Barney  y.  DonghMs  . ••• 618 

Barney  y .  Earle 

Bamnm  y.  Vandnsen 

Barrv.Grats 148 

Barrett  y.  Stockton  ft  U  B^y  Co.  874 

Barron  y.  Bichard 874 

Bartholomew  y.  Ifnnemore.  .786^  788 

Bartiett  y.  Gowles 735 

Bartietty.  Emery 87*    83 

BartleU  y.  Jones 768 

Bartiett  y.Sinmmns 177 

Bartiey  y.  Hodges 613 

Barto  y.  Himrod 456 

Barton  y.  Faherty 464 

Barton  y.  ThomMon 187 

Bashore  y.  Whisler 469 

Ba88y.Chica«>eto.B.B.Co.385»  387 

Batesy.  Dandy 161 

Bates  y.  Planters'  eto.  Bank. 788,  700 

Batesy.  Bosekrans 150 

Bates  y.  Townley 86»    87 

Batte  y.  Coleman 606 

Battle  y.  Petway 210|  211 

Batty  y.  Carswell 660 

Bangher  y.  Kelson 112,  166,  456 


Cases  Cma 


17 


Hoqgbi 


4B3 

Baylies  ▼.  Hongbtoo 619^  821 

▼.KorriB 406 

▼.  Davis 484 

Beach  v.  Hanoock 347 

lieach  V.  Packard 680 

Bealfion  v.  Schank 52 

Beaman  ▼.  Riuaell 906 

Bean  V.  Burbank 489 

Beardsley  v.  Ontario  Bank 70 

Beatty  v.  Qilmore 270 

Bcaubien  v.  Ciootte« 81 

Beavers  V.  State 182 

Beck  V.  Uhrich. 647,  758 

Beckman  v.  Shoase 127 

Beckwith  V.  Smith 372 

Becoelv.  Beenel 483 

Bedwell  v.  Thompson 520 

Beebe  V.  Johnaon 143,  149 

Matterof 167 

▼.  Uanghtoa 107 

Begley  v.  Moigan 320 

Behrle  v.  ShermaD 159 

Beit*  V.  Puller 102 

Belfast.  The. .  .235,  236, 237, 238, 

240,241,242,243,  244 

Belser  V.  Dimnnora 129 

Belknap  v.  Boston  k  Maine  &.  R. 

381,384 

Belknap  v.  Gleason 539 

BeU  V.  Hull  &  S.  B'y  Co. . .  .374,  375 

Dell  V.  Morrison 96,97,  278 

Bell  V.  Scammon 315,  401 

Bellasv.Hays 118 

Beman  V.  Rofford 617 

Bemns  Y.  Beekman 783 

Bendetson  v.  French 592 

Benedict  ▼.  Bray 119 

Benham  ▼.  Bishop 737 

Benham  v.  Rows 688 

Benitesv.  Bicknell 88,     93 

Benjamin  y.  Benjamin 652 

Bennet  v.  McFadden 524 

Bennett  ▼.  Farrar 700 

Bennett  v.  Mellor 577,  587 

Benson  ▼.  Bennett 189 

Benson  v.  Heathen 755,  756 

Benson  V.  Monroe 152 

Benson  V.N.  Y.  (Sty 637 

Benson  V.  Titoomb 687 

Bentley  v.  Long 315 

Benton  v.  Pratt 742 

Beriuhire  Woolen  Oo.  v.  'Prootor, 

668»689,  590 

Berley  V.  BampaohMr 112,  167 

Bmy  v.State 294 

Bertholf  V.  O'Reilly 167 

Bertrsnd  v.  Taylor 91 

Besley  ▼.  Fuller 95 

Betts  V.  JaoksoQ 73 

Betts  V.  Kimpton 161 

Bevsa  V.  Oolfen M^    94 

Bererleys  v.  Holmes 4^ 

Beverly  V.  Barks 

▲m.  Dsa  You  LXn— ft 


WA 

Bibb  V.  Thomas • 73 

Biehnv.Bidm 486 

Bigelow  V.  Kinasy •  .786,  788 

Bigelowv.  Pritchanl 106^  111 

Biggins  V.  Brockman 156 

Bingliam  v.  Rogsfs 127 

Binssev.  Fugs 141 

Binsteadv.  fiiek 300 

Krbeek  v.  Hoboken  Wrrv-boats  242 
Bird  V.  Great  Korthsn  K>  Go. 

688^688 

KrdT.Hdbrook 262 

Birge  v.  Gardiner 261 

Birmingliam  Canal  Co.  v.  IJoyd.  762 

Bishopy.Lee 838 

BisseQv.  N.  Y.  Cent.  B.B.....  129 

Bizbjr  V.  Carskaddon 182 

Blade  V.  Bazendale., 410 

Black  V.  Ounden  ft  A.  R.  &.  Co.  137 

Blackman  v.  Simmons 60i 

Blackwell  V.  Bamett 639 

Blaeser  v.  Milwaukee  etc  Ins.  Co.  187 

Blair  V.  Forehand 605 

BUkely  v.  Dancan 517 

Blokely  ▼.  Jaoobson 119 

Blakemore     v.    Glamorganshirs 

CsnalNav.  Co 375 

Blanchard  V.  Baker 119 

Blanchard  v.  Rnssell 607,  6il 

Blanchard  ▼.  Stevens 600 

Blandfordv.  Thackerell 83 

Block  V.  Colombian  Ins.  Co 136 

Bloodgood  V.  Mohawk  eto.  R.  R.  638 

Bloesom  V.  Dodd 129 

Blamenthal  v.  Brainerd 573 

Blyer  v.  Monholland 138 

Blystone  v.  Blystone 364 

Board  V.  Head 777 

Board  of  Sopenrisora  v.  Hackett    86 

Boatner  v.  ventris 702 

Bodley  ▼.  Taylor 701 

BoIiTar,  The 241 

Boiler  ▼.  Mayor  eto.  of  N.  Y. . . .  158 

Bolton  V.  Jacks 158 

Bonaparte  v.  Osmden  k  Ambov.  449 
Bonoe  v.  Dnboqae  Street  R'y  Co.  687 

Bond,  Ex  parte 400 

Bonsteel  V.  Vanderbilt 151 

Boody  V.  MoKinney 735,  738 

Boofterv.  Rogers 689 

Boorman  V.  Jenkins 119 

Booth  V.  Bamum 362 

Booth  V.  Spayten  Dnyril  Rolling 

Mm  Co 64,  151 

Borah  v.  Archer 485 

Borden  V.  Fitch 153 

Borden  V.  State 831 

Bosanquet  V.  Corser 597 

Bosanqnet  v.  Dadman 597 

Bosanqnet  v.  Forster 597 

Boston  V.  Cummins 456,  6tt 

Boston  Water  Power  Co.  v.  Boston 

AW.  R.  R.Co 373,  874 

Bostwiek  v.  Champion. . ^* .  .760,  761 


18 


Cases  Ctteix 


Bostwiok  T.  Dodge 600 

Boewell  ▼.  Goodwin 321 

BoBwell  T.  Hndflon  Bivw  R.  &. . .  129 

Boulflton  T.  Sandiford 128 

Bound  y.  La throp 102 

Bouslog  y.  QarreU 86 

Bovee  V.  Danyille 687 

Bowey.Gano 101 

Bowen  v.  New  York  eto.  B.  &.  Co.  683 

Boweny.B.  B.  Co 681,  682 

Bowery.State 562 

Bowler  y.  Lane 381 

Bowles' Case 482 

Bowman  y.  Blodget 280 

Bowman  y.  Norton 710 

Bowman  y.  Teall 410 

Bowman  y.  Van  Knren« 603 

Bowser  y.BIisa 852 

Boy ce  y.  Anderson 670,  672 

Boyce  y.  Cal.  Stage  Co 682 

Boyd  y.  Anderson 467 

Boyd  y.  Barclay 505 

Boydy.Bopst 464 

Boydy.McOann 322 

Boydeny.Beed 158 

Boylan  y.  The  Victory 416 

Braoegirdle  y.  Orford 770 

Bracken  y.  Preston 777 

Brackett  y.  Goddard 3 

^Bradford  y.  Erwin 174 

Bradford  y.  Marbnry 688 

Bradish  y.  Bliss 187 

Bradley  V.  O'Donnell 369 

Bradley  V.  Spoflford 776 

Bradley  V.  State 184 

Bradley,  Ex  parte 563 

Brainard  y.  Back 101 

Brandon  y.  Huntsyille  Bank ....  301 

Branger  v.  Cheyalier 87,    91 

Brant  v.  Fowler 656,  557 

Brawner  y.  Franklin 738 

Braynard  y.  Marshall 607,  610 

Brazier  y.  Ansley 859 

Breck  y.  Blanchard 332 

Breckenridge  y.  Moore 601 

Brecknock  Co.  y.  PritehaKL..50,  149 

Breckon  y.  Smith 87 

Bredin's  Appeal 364 

Breesev.  U.S.  Telegraph  Co....  130 
Brehm  y.  Qreat  Western  B.  B. 

Co 681,  682,  683 

Bremner  y.  Williams. 674 

Brewer  y.  Boston  etc  B.  B. . . . .  529 

Brewer  y.  Bowen 396 

Brewer  y.  Davis. 457 

Brewer  y.  Strong 689 

Brewster  y.  Hough -.  629 

Bridge  y.  Johnson 105 

Bridges  y.  Maye 204 

BrigCityof  Eriey.  Canfield....  244 

Briggs  V.  A  Light  Boat. 67 

Briggs  y.  McCabo 737 

Brigss  y.  Mitehell 167 

Bright  y.  Boyd 4...  626 


Bright  Star,  The 240 

Brighton  Market  Bank  T.Meriok.  613 
Brignoli y. Chicago B.B. Co....  683 

Bristow  y.  Estman 189 

Britty.  Aylett , 505 

Brittain  y.  McKay 696 

Britton  y.  Preston 61S 

Britton  y.  Tamer ....•••  477 

Broadas  y.  Bosson 64d 

Broadway  Widening,  Matter  of..  167 
Broadwell  y.  Swigert.  .246,  721,  723 

Brockington  t.  Camlin 401 

Brockway  y.  Kinney 781 

Bronson  y.  Kinzie 110,  111,  241 

Brookhank  y.  Brookbank. 364 

Brookfield  y.  Williams 485 

Brooks  y.  Clayes 187 

Broughton  y.  Bandall 509 

Brown  y.  Adams 488 

Brown  y.  Bnrkenmeyer 771 

Brown  y.  Clark 278 

Brown  ▼.  Cockbom 463 

Brown  y.  Cockerill 527 

Brown  y.  Commonwealth 562 

Brown  y.  Congress  etc  Street 

B'yCo 680,685,680 

Brown  y.  Gay 527,  529 

Brown  y.  Himmel 639 

Brown  y.  Johnson 665,  758 

Brown  y.  Kimmel .90,     91 

Brown  y.  Long 204 

Brown  y.  hyndh 754 

Brown  T.  ^tcheU 119 

Brown  v.  Mor«m 66 

Brown  y.CBnen 320 

Brown  y.  PierceJ 464 

Brown  y.  Ray 749 

Brown  y.  Stete  of  Maryland. ....  239 

Brown  y.  Vandyke 85,  88,    94 

Brownfield  y.  Brownfield 130 

Browning  v.  Estes 610 

Browning  y.  Long  Island  B.  B.« .  129 

Brown's  Case «...  760 

Broyles  y.  Waddel 485 

Bruce  y.  Edwards •  • .  •  731 

Brucey.Beed 388 

Brash  y.  Scribner 60O 

Brushy.  Ware. 701 

Bryan  y.  Horsemanj 96 

Bryan  y.Kelton 495 

Bryan  y.  Lofitns 666 

Bryan  y.  Ware 04 

Bryan'sEstete 354 

Buchan  y.  Sumner. 329 

Buck  y.  Cox. 399 

Buckbey  y.  Coles 762 

Buckley  y.  Brown 239 

Buckley  y.  Fumiss 856 

Buckner  v.  Beal  Estate  Bank. . ..  406 

Budd  y.  Long 523 

Buddinjgton  y.  Stewart. 241 

Buesohing  y.  St  Looia  Gas  Light 

Co 687 

Buffi>rdy.Holllman..315k816,6I8,  791 


Cases  Gctd. 


19 


#  •  #  •   •    •  ••«  «  •  • 


•   •  •  •    • 


DqH  t*  Sruokwiy, 

BbIIt.  BoU ^ 

Bnlbid  ▼.  LunlMrt 

Bollard  V.  Baynor. 88,  91» 

BnUion  y.  Campbeli 

BuUoek  Y.  Bqyd 93, 

Bonce  t.  Bidvell 

Borbank  ▼.  ^VhitIley 

Borden  y.  McElmoyle 

Burden  v.  Stein 

Borford  v.  CMaody 

Borford  ▼•  Roiwnneld. 

BoTgoBB  T.  Clements. 

Boigees  ▼.  Mlllican. 

Bnzgeai  ▼.  Vreelaiid 

Bone  Y.  Croger 

Borke  Y.  EIliotL 

Borldgh  Y.  Coffin 167, 

Borlagh  Y.  Stott 

BameS  Y.  Malonejr 

Bornet  Y.  Bisco 488, 

Bomet  Y.  Kinnaster 

Boms  Y.  Kevins • 

Borper  y.  Baker 

BoiT  Y.  Been. 

Borr  Y.  Bfen 

Boir  Y.  Wilson 

BiirnKifl)is  Y.  Hoosatooie  B.  R. 

Co 

BuzTows  Y.  Whitaker. 

Bort  Y.  Dewey 

Barton  Y.  Gbrratii 

Barton  Y.  liaich 

Bosehman  y.  Morling 

Bosh  Y.  Cooper 

Bosh  Y.  Peckard 

Boak  Y.  DoYis 

Boassy  y.  Gent's  AdmV. 

BnUer  y.  Basing 

Botler  Y.  Page 

Y.Tnfta. 


Bailer 

Botman  y.  Hobbs 

Batter6eld  y.  Bnffbm 

Bottedkld  Y.  Forrester 261, 

Bottoo  Y.  Hejrward 

BattoQ  Y.  Hudson  BiYer  B*y .... 

Baxton  y.  Uster 

Bybee  y.  State 

Byen  y.  Fowler 882,  406, 

^ler  Y.  JohnscxD. 

Bynom  y.  Carter. 

Bymside  y.  Bordett. .  .464,  465, 
B^roo  Y.  Johnston 

CUben  y.  Flatt 

Cblais  Steamboat  Co.  t.  Sendder . 

Caldwell  y.  May 

Osldwell  Y.  New  Jersey  etc.  Co. 

381,389,680,681, 

Caldwell  Y.  Walten 

Oalisto^The 

CUIy.  Hsflnr. 

GU  wt  Y.  AldxiclL^ 

CUmtF.  BUmr 


04 
315 
776 

94 
487 

94 
528 
315 

88 
777 
331 
560 
584 
512 
872 
539 
197 
460 

95 
528 
489 
160 
159 
781 
141 
752 
187 

294 

67 
464 
176 
194 

86 
539 
600 
356 

86 
408 

70 
464 
187 
725 
262 
725 
687 
770 
562 
529 
512 
176 
467 
375 

137 

67 

726 

684 
550 
241 
107 
482 
86 


539 


GUlye^Oue. JF77,  «^, 

Ounden  ft  A.  &.  B.  Cow  Y.  Baldaol 

127,  573 

Qunden  k  Ambqy  B.  B.  Co.  y. 

Barke 406 

Camden  Co.  Y.  Belknap^ 126 

Camden  v.  Rich 128 

Cameron  Y.  White 522 

Campbell  Y.  Campbdl 487 

Campbell  Y.  EYans 167 

Campbell  Y.  Hoghes 659 

CampbeU  Y.  State 187,560 

Canal  Boat  Horon  v.  Simmons  . .  222 

Cannon  ▼.  McDaniel 512, 

Cape  Girardeaneto.  &.  R.  y.  Kim- 

mel 

Carew  Y.  Rotherfofd 152 

GaniYY.  Berkshire  &.  R.Co....  347 

Carlm  y.  Hudson 524 

Carixsle  Y.  Holton 723 

Carlisle  Y.  Wishart. 600 

Carman  v.  Johnson. 701 

Carpenter  y.  Carpenter 736 

Carpenter  Y.  HoBride. 647 

Carpenter  Y.  Nickeiaon 88,    90 

Carpenter  Y.  Ottley 159 

Carpenter    y.    Sebooner    Bnmia 

Johnson 240 

Carpenter  y.  State 406 

Carpenter  y.  SteYons 50 

Carpoe  Y.  London  eto.  R.  Co.682,  683 

Carr  y.  Cloagh 735^  736 

Carr  y.  Lancashire  R'y  Co 569 

Carrol  Y.  Welch 478 

CarruU  Y.  Paal*s  Adm'r 91 

CarroUT.  State 662,  713|  714 

Carson  y.  Allen 621,  092,  693 

Carson  y.  Bomett 173 

Cartr.Rees. 161 

Carter  Y.  Hobbs 590 

Carter  y.  Spenoer 701 

Cartwright  y.  Gfeene. 90 

Cartwright  y.  Rowley 145 

Canrer  Y.  Miller 482 

Case  Y.  Hotchkiai 88,    90 

CasoY.  Woolley 234,  235 

Casebeer  y.  Kslbfleisch 118 

Cataret  Y.  Paschal 161 

Cathcart  y.  Robinson 495 

Cathey  y.  Cathey 315 

Catley  y.  Wintnngham 127 

Catlin  Y.  Gnnter 118,  120 

Celestine,  The 241,245,  246 

Cent.  Ohio  R  R.  Co.  y.  Lawrence  270 
Central  B.  U.  P.  R.  R.  Co.  y. 

Western  U.  T.  Co 567 

Certain  I^gs  of  Mahogany .  .241,  244 

Chaoe  y.  iTafford 04 

Chamberlain  y.  Masterson 588 

Chamberlain  y.  Bfilwaokee  eto. 

R.Co 686»  687 

Chambers  Y.  Bedell 668 

Chamben  y.  Board  of  BdncatJon 

6^,    67 


so 


Cases  Citkd. 


Cluunben  t.  Union  N»t  Bsnk..  468 

Champion  T.  Bostwiok 76Qi  751 

Champion,  The 241 

Chancellor  v.  Wiggina 464 

Chandler  v.  Simmons 738 

Channel  y.  Ditchbnm 95 

Chaplin  V.  Hawes 262 

Chaplin  y.  Bosen 357 

Chapman  ▼.  Allen 479 

Chapman  v.  Bamaby 373 

Chapman  y.  Carolin 119,  120 

Chapman  y.  Glaasell 665 

Chapman  y.  Harwood 336 

Chapman  y.  Speller 466 

Chappelaine  y .  Dechenanx ....  84,    91 

Chardon  y.  OUphant 102,  280 

Charles  Biyer  Bridice  y.  Warren 

Bridge 630,  635 

Charlton  y.  Lay 464 

Chamley  y.  Dalles ^ 467 

Chase  y.  Barnham 624 

Chase  y.  Dwinal 146,  150 

Chase  y.  Hatch 151 

Chase  y.  Haughton 618 

Chase  y.  Hogan 151 

Chase  y.  Plymouth 332 

Cheeky.  State 563 

Cheenut  y.  Strong 406 

Chicago  y.  Kelly 3S9 

Chicago  y.  Longlass 389 

Chicago  T.  Parks 381 

Chicago  eta  R.  B.  Co.  y.  Dickson 

381,  334 

Chicago  etc.  B.  B.  Co.  y.  Flexman 

381.  383 

Chicago  etc  B.  B.  Co.  y.  Jarrett  389 
Chicago  etc.  B.  li.  Co.  y.  Parks.  384 

Chicago  etc.  B'y  y.  Peters 86 

Chicago  etc.  B.  B.  Co.  y.  Sonrr. 

381,384.  389 

Chicago   etc.    B'y  y.  Town   of 

Oconto 123 

Chicago  etc.  B.  B.  Co.  y.  Trotter 

680,  686 

Chicopee  Bank  y.  Chapin 600 

ChUds  y.  Little  Miami  B.  B.  Co.  294 

Chilson  y.  Beeves 550 

Chisholm  y.  Georgia 216 

Chismy.Woods 463 

Chisman  y.  Count 91 

Chollar  Mining  Co.  y.  Wilson. . .  .792 

Chotean  y.  Jones 605,  506 

Chouteaux  v.  Leech 130 

Christie  y.  Griggs 674,  682 

Christmas  y.  Bussell 159 

Christy  y.  Bamhart 202 

Qiubbuok  y.  Vemam 91 

Church  y.  Church 364 

Chasan,The 241 

Cincinnati  eto.B.B.Go.y.  Pontiiu 

ABiohmond 294 

Cincinnati  etc  B.  B.  Co.  ▼.  Wa- 

terson 270 

Orcaasian,  The 241 


City  of  Detroit  y.  BImU^ 124 

City  of  Lexington  y.  MoQiiillMi.  43<l 

aty  of  linooln  y.  Walker 687 

City  of  Louisyille  y.  Hyatt 438 

Ci^  of  Memphis  y.  Brown 137 

Ci^  of   Bochester  v.  Town  of 

Bush 125 

Claire  y.  Claire •»••     85 

Clark  y.  Baker 357 

Chirk  y.  BamwelL 290 

Clark  y.  Bradshall 96 

Clark  y.  Chicago  stc  By  Co* .. .  682 

Clark  y.Cogge 762 

Clark  y.  Faxton 128 

Clark  y.  Gray 673 

Clark  y.  Martin 376 

Clark  V.  McCreary 162 

Clark  y.  Miller 123,  124 

Clark  y.  Pinney 133 

Clark  y.  Bicker 322 

Clark  y.  Smith 80 

Clarke  y.  Beins 665 

Clarke  y.  Spence. 

.  ..57,  58,  59.  60,  62,  63,  64,  66»  67 

Chu-key.  Webb 87 

Clayes  v.  Hooker. 119 

Cleaviuger  y.  Beimar 338 

Cleghom  ?.  N.  Y.  etc  B.  B.  Cc 

386,387,388,  389 

Clemens  y.  Lftcy 486,  487 

Clements   y.    Branch    Bank    at 

Montgomery 789 

Cleveland  etc  B.  B.  Co.  y.  Gur- 

ran 294 

Cleveland  etc  B.  B.  Co.  y.  Elliott  270 

Cleveland  y.  Harrison 101 

Cleveland  etc  B*y  y.  Bowan. . . .  687 

Cleveland  Ins.  Co.  y.  Bead 112 

Clifty.  Boger 55 

Clinton  v.  Strong 146 

Clutey.  Wiggins 581,  686 

Coatly  v.  Curry 162 

Coolter  v.  Chicago  etc  B'y  Co..  387 

CoatesT.  CityofN.  Y 635 

Coates  y.  Clarence  B*y  Co 374 

Coates  k  HiUiard,  Matter  of  .611»  612 

Cobby.  Arundel 85 

Cobb  y.  Harmon 54,  151 

Cobb  y.  West 119 

Cobb,  Adm*r,  v.  Norwood 545 

Cochrane  y.  AUen 85 

Cochran  v.  Estill 320 

Cookmg  y.  Ward ^ 03 

Cockreli  y.  Gorley 787 

Coe  y.  Smith 56^  478 

Coffin  T.  Heath 482 

Coggsv.  Barnard 128,  584 

Coggs  y.  Bernard 570 

^y  v.  Cnshman 736,  738 

ten  y.  State 183 

Cohen  y.  Wright 167 

Coitv.  Tracy 102 

Cole  y.  Goodwin 126,  288»  570 

Cole  y.  Sprowl. ... •••••••••.•• 


Gases  Getxix 


11 


101,  102 

T.  MeAanttj.^ 332 

Ooieman  t.  K.  Y.  ft  N.  EL  B.  R. 

Co 381 

OolesT.KdwT 102 

ColkDder  ▼.  Dinmora. 196 

CoUett  ▼.  Hfl&denoo 485 

C611ier  ▼.  SimiMon 172 

Collina  ▼.  Benbory 160 

GbUioa  ▼.  Bowo 141 

Collins  T.  Weiaer 858 

Goltnkiiie  ▼.  Ganaey 505^646 

ColwelW.  Woods 611 

CocD^jrB  ▼.  Gkrley 627 

Comfort  ▼.  Kiersted 66 

Commensial  Bank  ▼.  Cnnninghsm  352 

Oommercial  Bonk  ▼.  Perry 280 

Commereisl  Bank  of  BoehesfeerT. 

City  of  Rochester 152 

Commercial  Mnt.  Ins.  Ca  t.  Brett 

101,  102 

CommiwnoDers  v.  McDaoiel 190 

Commonwealth  ▼.  Brio& 124 

CommoD wealth  ▼.  Quurksfeown. .  239 

ConuDonwealtfa  ▼.  Cine 310 

Commonwealth  v.  Cnllen. . .  .456^  639 

Commonwealth  ▼.  Goodwin 183 

Commonwealth   V.    Intoxicating 

liqnors 639 

Oommonwealth  ▼.  Kimball 639 

Conmxmwealth  ▼.  Knapp 312 

Commonwealth  ▼.  Martin 322 

Commonwealth  ▼.  McPike 347 

Commonwealth    t.    MoWiUiams 

436,  438 

Commonwealth  ▼.  Power. 327 

Commonwealth  ▼.  Boby 556 

Commonwealth  ▼.  Webster. 

...179,  181,  182,  183,  186,  187,  347 

CommoQwealth  ▼.  York. 184 

Comstock  V.  Draper 567 

Comstock  V.  Hadlyme 420 

Comstock  T.  Hadlyme  EccL  Soc 

76,    81 

Conger  ▼.  Hudson  R.  B.  R.  Co. .  152 
Congr^ation  Beth  Elohim  ▼. . . . 

C^t.  Presbyterian  Church ....  137 

Conkey  V.Hart 112 

Conklin  T.  Conklin 485 

Converse  v.  Ferre 483 

Conway  v.  Alexander. 502 

Conway  v.  Taylor. 240 

Conway  T.Taylor's  Executor. 239,  240 

Convers  v.  Kenan 334 

Cook  V.  Bradley 489 

Cook  V.Cook 705 

Cookv.Moffiit. 107 

Go(^v.  The  Champlain  Trans.  Co.  264 
Cook  &  Steadman  v.  Sumner  etc 

Co 433 

Cooo  V.  Knap 190 

Cooper  V.  Cooper. • 484 

Cooperv.  Reynolds 246 

Cboper  V.  Smith 132 


Coopsrv.  IMfHT 438 

Coopwood  ▼•  BonoB •.••••.••.••    86 

Coote  V.  Gilbert 725 

Copier  V.  Kew  Haven  ste.  Co.. . .  687 

CorfieJdv.Cofyell S39 

Cornell  V.  Todd 606 

Comer  v.  Shew. . .  .664, 666,  657,  658 

Conie  V.  Calder 406 

Conyl  v.  ^^ylor 233 

Corwin  V.  Walton 347,  778 

CoiyeUv.  Perine <6 

Coryton  V.  lithebye 664 

Cosgrove  T.  Ogden 380 

Costar  V.  DavMs 359 

Costigsa  T.  Hawkins 464 

Conlaon  V.  White 373 

Coosa  V.  Boyle 666 

Cowing  V.  Howard 137 

Cowles  V.  Bacon S20^  688 

Coxv.  Bailey 102 

Coykendall  V.  Eaton 590 

Crafts  V.  Crafts 486 

Craigv.Wsrd 110 

Craighead  v.  Bank  of  State.... 88»    90 

Crain  V.  Paine 539 

Craker  v.  Chicago  etc.    R.  R. 

Co 886,386^  387 

Cramer  V.  Benton 160 

Crandall  V.  Clark 62,    56 

Cnmdall  v.  Goodrich  T^ansp.  Co. 

680,  681 

Crane  V.  Knnbel 64 

Crary  V.  Goodman 160,  629 

Craven  v.  Craven 706 

Crawford  V.  Edwards 141 

Crawford  v.  WUliams 66 

Crayton  v.  Munger 619 

Creringer  V.  Welch 688,  737 

Crest  V.Jack 483 

Crew  V.  St.  Louis  etc.  Ry.  Co. 

680,681,  687 

Croftv.  Alison ;..  379 

Crofts  V.  Waterhoose 671,  674 

Cromwell V.  Stephens..... 687 

Crookshank  v.  BurrsU 56 

Croas  V.  Marston. 70 

Cross  V.  Moore. 94 

Crowell  V.  Maughs. 520 

Crump  V.  Black 647 

Cudworth  v.  Thompson. 315 

Cumberland  v.  Codrington 141 

Cumberland  Valley  R.  R.  Co.  v. 

Hughes 270,  327 

Cummings  v.  Morris 159 

Cummingsv.  Powell 735 

Cummins  v.  Spruance 721 

Cumpston  v.  Lambert 768 

Cunningham  v.  Cochnm 458 

Cunningham  v.  HalL 241 

Carley  v.  Dean 118 

Cnrrie  V.  White 137,  468 

Curtis  V.  Barnes 169 

Cortb  ▼.  Price 496 

Curtis  V.  Richards 91 


22 


Cases  CixEa 


Gurtb  T.  Boohettereto.  BV*681«  683 

Curtis  V.  Tyler 188 

UutinY.  Hoyt....^ 70 

Coaack  V.  White 490 

Caster  V.  Tompkins  Oo.  B'k 850 

Cntler  v.  Sootoem 147 

Dagal  V.  Simmons 119 

Dambman  v.  Sohalting 159 

Dan  V.  Brown .78,  80 

Dana  ▼.  Coombs 738 

Dancey  y.  Smith. 545 

Daniel  v.  Metropolitan  E*y  Co. . . 

681,682,  685 

Daniel  Ball,  The 236,  238»  240 

Daniels  V.  Pond 69 

Danielsv.  Potter 695 

Danley  y.  Bector 359 

Dannat  v.  Mayor  eta  of  N.  Y. . .  124 
Danner  v.  South  Carolina  B.  B. 

Co 270,  327 

DantY.  State 185 

Danzey  ▼.  Smith 516 

Darby  v.  Lastrapes 85,  88,  89 

Darling  v.  Bryant 776 

Darling  v.  Marsh 278 

Darlington  v.  Taylor 88 

Darst  V.  Brockwav 468 

Darst  V.  Trammell 512 

Dartmouth  College  ▼.  Woodward 

626,627,633,  638 

Dash  V.  Van  Kleeck 105,  165 

Daubigny  v.  Dnval 306 

David  V.  Ellice 93 

Davidson  ▼.  Graham 287,  290 

Davies  ▼.  Mann. 264 

Davis  V.  Allen 312 

Davis  V.Bali 136 

Davis  y.  Calvert 81 

Davis  V.  Desauqne 278 

Davis  v.  French 520,  659 

Davis  y.  Garr 624 

Davis  V.Hunt 466 

Davis  V.  Jerkins 170 

Davis  V.  MaishaU 520 

Davis  V.  Newman 213 

Davis  V.  Nye 464 

Davis  V.  Shields 133 

Davisv.Smith 158,  529 

Davis  V.  State 562,  563 

Davis  y.  Tiernan 86,  89,    94 

Dawson  v.  Chamney 581 

Dawson  y.  Dawson 94 

Dawson  v.  Holoomb 2127,  230 

Dawson  y.  Manchester  etc.  B*y . .  682 

Dayv.  Bather 588 

Day  y.  Lowrie 367 

Day  y.  Perkins. 744 

Dayton  v.  Pease 270 

Deanv.  Hewit. 96,  97,  99 

Deanv.O'Mean 485 

Dean,  Ex  parte 747 

Deane  y.  Clayton 262 

Dearing  y.  Moore 777 


DeBrahlT.MMa 611 

De  Bunere  T.  HoUadaj 168 

Deoh'sApMd 488 

Decker  v.  Fomias. 66 

Defreeze  v.  Tmmper 468 

De    Qranw    v.    Sapervison    of 

Qneen's  Co 124 

DeHaasy.Bonn 815 

Dehon  y.  Foster 158 

Deihlv.King 815 

De  la  Chaumette  y.  Bank  of  Eng- 
land  506,  6^  607 

De  Lavallette  v.  Wendt 137 

Delaware  etc.  E.  B,  y.  Bown8.54,  151 
Delaware  etc.  B.  B.  Co.  y.  Nap- 

heys 686 

Dellet  y.  Whitner 484 

Delmoaioo  y.  Mayor  eto.  of  N.  Y.  123 

De  Louis  V.  MeeL 396 

De  Lovio  V.  Bolt. 237 

Demott  y.  Field 655 

Deny.  Frew 747 

Denman  v.  Prince. 483 

Denning  v.  Corwin 789 

Dennis  v.  Alexander 356 

Depas  y.  Mayo. 479 

Derbyshire's  Estate,  In  re.... 66,    67 

Derwort  v.  Loomer. 671 

Deschamps  v.   Second   &  Third 

Street  etc.  B.  B.  Co 876 

Deshler  v.  Hodffes 784 

Deslondes  v.  Wilson 301 

Deroard  y.  Walbndge 150 

DeSoby  V.  De  Laistree 609 

Despatch  Line  v.  Bellamy  liig 

Co 744 

Dessaucr  y.  Baker 592 

Devereux  v.  Buiguin 170 

DeVossy.  Ciiyof  Bichmond....  653 

Dew  V.  Clark. 421 

Dewey  v.  Supervisors  of  Niagara 

Co 152 

Dexter  v.  Bevins. 67 

Dexter  v.  Norton 151 

Deyy.Dox 138 

Deyo  V.  N.  Y.  etc  B.  B.  Co.  .688,  686 

Dezell  y.  OdelL 756 

Dialv.  Hair 567 

Dibble  y.  Taylor 768 

Dibble  y.  Brown 409 

DibreU  y.  Miller 119 

Dick  y.  Pitohford 210 

Dickenson  y.  Grand  Jvnetion  Ca- 
nal Co 378 

Dickerson  y.  Nabb.... 91 

Dickerson  y.  Bogert. 587 

Dickinson  v.  Barber. 77 

Diehl'sAppeal 369 

Dillingham  T.  EstiU 508 

Dinkey  y.  Common  wealtii 312 

Dixonv.BeU 264 

Doane  V.  Badger 482,  488 

Doby.  Halsey 761 

Dodson  V.  Mook 777 


Gases  Cited. 


Dodfloo  T«  SlnpiOBi 
Doe  T.  DongltiM  . . . 

Doer,  reikm, 

Doe  T.  PioToost . . . 
D««e  V.  Roberta.... 


WAorn 

646 

638 

73 

316 

363 

Doloret  ▼.  RotheohOd 770 

Donifcldaon  ▼.  Cape  Fear  Bmk. . .  204 

Donaldson  ▼.  Newman 468 

Donnell  V.  CkK>k 213 

Doolittie  V.  Naylor. 141 

DoppT.  Albee 709 

Dom  V.  Dunham 529 

Domy.Foz 123 

Dorrv.Fuher 464 

Doney  v.  Jackman 463 

Dotyy.Strong 688 

Dongfaaday  ▼.  Growell 485 

Dougherty  ▼.  Miasoari  Padfio  R 

R.Co. 680,  681,  682,  685,  688 

Donglaav.  Holme.. 91 

Donglaaa  ▼•  Ctoh 142 

Dooglaaa  y.  Davis 489 

DoogUsB  V.  Wella. 142 

Douninff  Y.  Mann 524 

Dow  ▼.  McKenney. 527,  528 

Dowe  V.  Schntt 114 

Downing  ▼.  MoFadden.. ........  374 

Downing  v.  Wherrin 315,  401 

Dowsv.  Dnrfee 88 

Dozier  v.  Dozier 204 

Draco,  The 241 

Drake  v.  Jones 524 

Drake  v.  Rogers 270 

Drennany.  Walker 485,  486 

Dresser  y.  Ainswortii 464,  466 

Driggs  y.  Garretson 94 

Drinkwater  y.  Drinkwater 364 

Drury  v.  Kent 373 

Dryden  y.  Kellogg 464 

Dubois  y.  Kelly 744 

Dudley  y.  Geauga  Iron  Co 87 

Dudley  y.  LindMy 119 

Dudley  y.  Steamboat  Superior. . . 

241,  244 

Duel  y.  Spence 119 

Duffy.  Bayard 320 

Dngeins  y.  Watson. 688 

Duubar  y.  Johnson 93 

Duncan  y.  Jeter. ..... 665 

Duncan  y.  Ij^on 164 

Dunham  y.  Griswold 91 

Duunigan  y.  Cmmmey 119 

Dupr«  y.  Richard 372 

Durant  y.  Ashmon 74 

Durant  y.  Essex  Company 113 

Durbin  y.  Barber 773 

Durham  &  Sanderland  R'y  Co.  y. 

Wawn 375 

Dumford  y.  Degniys 336 

Durst  V.  Burton 137 

Dutcher  v.  Dutcher 705 

Dutton  y.  Tayler 762 

Dwight  V.  Brewster 128 

Ihryer  y.  Garlongh 234 


Dyckmaa  T.  Valifl&te 

Dyer  y.  Tnakaloosa  Bridga  Oo. . .  639 

Eagle  y.  ffiehelbeiger 857 

Eagle  Packet  Co.  y.  Defriea 685 

Eagle,  The 235 

Early  y.  Garland 689 

Earlyy.  State 563 

Barnes  y.  Express  Co 130 

East  Hartford  y.  Hartford  Bridge 

Co 637,  639 

Easton,  Ex  parte 236,237 

Eckel  y.  Mnrphey 55 

Eckert  y.  Lewis 330 

Edelmann  y.  St.  Lends  Transfer 

Co. 387,  889 

Edgerton  y.  K.  Y.  eta  B.  R.  Co. 

682,  683 

Edicky.Crim 464 

Edith,  The 236,  241 

Bdminster  y.  Coohrane 66 

Edmonds  y.  State 184 

Edwards  y.  EUiott 286,  241,  244 

Eichhola  y.  Banirter 462,  463 

Eighmy  y.  People 80 

Ellicott  y.  Nichols 102 

Elliotty.Hom 732 

Elliott  y.  Collins 161 

Elliott  y.  Edwards 66 

ElUott  V.  Niohols 280 

Elliott  V.  Van.  Bnren 187 

EUis  y.  Bnzsell 187 

Ellis  y.Ellis 201 

Elroy  y.  Nashua  eta  R.  R.  Coip.  327 

Elwes  y.  Maw 743 

Embree  y.  Hanna 621 

Embory  y.  Conner 155^  167,  560 

Emerson  y.  Brigham 464 

Emerson  y.  Patridge 694 

Empire  City  Bank  (U.  S.  Trust 
Co.  y.  U.  S.  F.  Ins.  Co.),  Case 

of  the, 112 

Enfield  Toll  Bridge  Co.  y.  Hart- 
ford etc.  R.  R. 639 

England  y.  Lewis 524 

Englemaa  y.  State 347 

English  y.  Foots 744 

English  y.  State 540 

English  y.  Tomlinaon 755 

Enicks  y.  PoweU 766 

Epesy.Dndley 654,  658 

Epiey  y.Witherow 351 

Eppinger  y.  MoGrsal 511,  512 

Eppsy.Hinds 592 

Enck  y«  Johnson 730 

Erie  R'y  Ca  y.  Ramasgr 159 

Erwin  y.  Commerdal  ft  R.  R. 

Bank 332 

Estate  of  Phelan,  In  rs 709 

Estes  y.  Browning. 510 

Etting  y.  Bank  of  U.  S 106 

Etting  y.  SchuylkiU  Bank. .  .370,  372 

Eunson  y.  Heaiy 692 

Eustace  y.  Jahns. 520 


u 


CASBS  GiTEDl 


Btwm  V.  Oodbold 400 

Btwmy.  Verity. 86 

Ev&QSTille  etc.  R.  R.  ▼.  Young...  129 

BTcreU  v.  Dookory. 177 

Ewurtv.Staik 600 

Ewer  V.  Coffin 701 

Swing  V.  Handley 646 

Ewing  Y.  Sanford. 776 

Exeter  &CredifeonB'yGo.T.Bnller  376 

Faikeney  ▼.  Reynooe S64 

Fairv.  Howard 603 

ndrbanka  V.  Wood 747 

Fairchild  ▼.  Cal.  Stage  Co..  .682,  688 

Fairchild  ▼.  Slocom 752 

Fairfax  ▼.  Stoyer. 658 

Fambro  y.  Gantt 768 

Fans  y.  Starkie 728 

Fariab  y.  Beigle 658 

Farley  y.  Qiimer • 315 

Farmers*  Delight,  The,  y.  Law* 

fence 242 

FaimerB*  eto.  Bank  y.  Qalbraith..  665 
Farmen'  Loan  &  T.  Co.  y.  Hen* 

drickaon 70 

Furmera'  &  Mechanies'  Bank  y. 

Champlain  Trans.  Co.  120,  673,  577 

Famawortb  y.  Cbaae 621 

Farwell  y.  Boston  &  Woroester 

B.  R.Co 260 

FarweU  V.  Hilliard 722 

Fatman  &  Co.  y.  Cincinnati  B.  R. 
Qq 294 

Fanlky.  State.!! !!!!.. !!..'..!!  182 

Faalkner  y.  City  of  Aurora. 124 

Fanlks  y.  Heard. 792 

Faonce  y.  Burke 456 

Fayers  y.  Glass 406 

Fawcet  y.   York  &  North  Mid- 

landlLCo. 631 

Fawoett  y.  Osbom 464 

Fawcett  y.  Whitehouse. 766,  756 

Fay  y.  Mnzzey 70 

Fay  y.  Oliver 665 

Federal  eto.  R*y  Co.  y.  Gibson..,.  686 

Feigley  y.  Whittaker. 281 

Feital  V.  Middlesex 683 

Ferguson  y.  Crawford 159 

Ferguson  y.  Herring 624 

Ferguson  y.  Spencer 611 

Ferris  y.  Crawford 138 

Ferry  Co.  y.  Beers 239 

Ferry  St*m'rs  v.  Norfolk  &  Union  238 

Fesenmayer  y.  Adcook 91 

Fibel  V.  Liyingston 129 

Field  V.  Mayor  of  N.  Y 457 

Field  y.  Sohieffelin 644,  647 

Field  y.  Syms 119 

Pigart  v.  Halderman 142 

Filer  v.  Peebles 87 

Findley  y.  State 183,  312,  562 

Finney  y.  Steamboat  Fayette  ...  241 

First  Nat.  B'k  v.  Ballon 101 

First  Nat  B'k  y.  Continental  Blc  91 


First  Nat.  B'kT.MMik«ta.  Cow.  4M 

First  Nat  B'k  y.  Smith 101 

Fishall  y.  Winana 117 

Fisher  y.  Bassett 646 

Fiaher  y.  Beokwith 119 

Fisher  y.  Salmon 652 

Fisher  y.  Taoker 278 

Fisher's  Appeal 369 

Fitoh  y.  easier 690 

Fittsy.  Hall 738 

Fitzhugh  y.  Custer 650 

Fleet  y.  Hollenkemp 347 

Fleetwood  y.  City  of  N.  Y 146 

Flemingy.  Gilbert , 62 

Fleming  y. Townaend 340 

Flemmmg  y.  Marine  Ina.  Co. . . .  688 

Flamming  y.  MuUigaii 118 

Flanagan  y.  Demaraai 64 

Fletcher  y.  Howard 368 

Fletcbery.  Peck 438,  439 

Fletcher  y.  State 662 

Flint  River  Steamb't  Co.  y.  Foster  246 

Flippin  y.  Banner 206 

Flynny.  Allen 467 

Fogg  y.  Johnston 773 

FolKtm  y.  Brawn 187 

Foltay.  Pourie 278 

Footv.Sabin 281 

Ford  y.  Bank  of  Mobile. 789 

Ford  V.David 141 

Forrest  y.  Collier. 332 

Forsyth  y.  Matthews 689 

Foster  y.  Allanson 93 

Foster  y.  Jackson 783 

Foster  y.  Pearson 697 

Fostery.  Walton 499,  601 

Fountain  y.  Brown 776 

Fowle  V.  Mann. 167 

Fowler  y.  Austin 110 

Fowler  y.  ^tna  Fire  Lia.  Co. . . .  343 

Fowler  v.  Fowler 488 

Fowler  v.  Stoneum. 646 

Foxv.Holt 241 

Fraley  y.  Bispham.. 86 

Frame  v.  Stewart 314 

Francis  v.  The  Harrison 241 

Frank  v.  Harrington 71 

Franklin  v.  Thomebuiy 364 

Freeland  v.  Heron 83,  88 

Freeman  v.  Adams 62 

Freeman  y.  Eatman 406 

Freeman  y.  Fenton 96 

Freeman  y.  Freeman 187 

Freeman  y.  Howell 86,88,  89 

Freer  y.  Cameron 270,  327,  686 

French  y.  Buffalo  eto.  R.  R.  .129,  130 

French  y.  Pearoe 628 

French  V.  Seel:^ 665 

Frewin  v.  Lewis 374 

Friend  v.  Woods. 128 

Frink  v.  Coe  388,  688 

Fripp  V.  Hasell 25) 

Fryev.  Barker 95 

Fryer  y.  Dennis 767 


GAflBs  Gma 


Oaflild  T.  Hnco0d 70 

CkOoTT.  BM& 123,  124 

GdiMaT.  Union Tnoi. ft Ina^Cou  294 

G«ither  ▼.  Gaither 754 

Qftleoa  &  ChicagD  U.  B.  B.  Co.  ▼. 

Looiiiu.....270^327,  617,  637,  639 

Gailego  ▼.  Gall^go 163 

QalliottT.  Fknton'ftMeohaiikB' 

Bank 280 

GalTeston  etc  &V  Go.  t.  Don^ 

boe 884,  885 

Gftmble  V.  St.  LofUM 624 

Gangwdr  ▼•  Fry 202 

Gtfdmer  v.  Houghton 611,  612 

OnitiDer  T.  Conn 281 

Gardner  ▼.  Deiderichfl 485 

Gtfdner  ▼.  Tyler 168 

Qarforth  T.  Bradley 160,  161 

Garland  ▼.  Bicheson 643 

Gamer  ft  Nevill  T.  JohnaoD 747 

Qamaey  T.  Bogen 141 

Canity  ▼.  Haynea 159 

Garvey  ▼.  Carey 159 

Gasper  T.Adama. 119,  120 

Gaatrel  y.  A  Cyprem  Baft 239 

Gaaway  t.  Atlanta  etc  B.  B.  Co. 

881,388,887,  388 

Gates  V.  Bntler 628 

Gatling  T.  Kewell 137 

Ganlt  T.  Goldthwaitc 524 

Gayle  T.  Elliott 766 

Gaylor  V.  Copes 467 

Gee  T.  Metropolitan  B.  Co 685 

Qelley  T.  Clerk 576,  590 

General  Gaas,  The .236,  239 

Genena  Smith,  The 241,  243 

Geneaee  Chief  ▼.  Fitdingh. .  .219,  220 
Genesee  Chief,  The. ...235^  238,  239 

Gentryv.Owen 647 

George  ▼.  St.  Lonis  etc  BV  Co. . 

681,682,  683 

Gibbon  ▼.  Pteynton 127 

Gibbons  v.  Ogden 238,  239,  240 

Gibson  ▼.  Conner 600 

Gibson'sCaae 211 

Gabert  ▼.  Colnmbia  Tnmpike  Co.  320 

Gilbert  V.  Gilbert 81,  776 

Gilbert  t.  Hofiman 339 

Gilchiist   T.  Brooklyn   Grooers' 

Mfg.Ass 85,    88 

Gachrist  ▼.  GUchrist's  Ez'is . . . .  119 

Gacfarist  ▼.  Hilliard 468 

Gilchrist  ▼.  McLsnghlin. ....  176,  528 

Cyies  T.  Fantleroy 592 

Giles  ▼.  Yigorenz 320 

GiUenwaiterT.  Madison  ft  LB.B. 

Co. 389,  688 

GiUeBpie  V.  State 312 

Gilliam  y.  Bbd 70 

Gifanan  y.  Philadelphia. 280,  240 

Gihnery.Wara. 742 

GOmorey.Cvr 722 

Gilson  y.  Stewart 93 

Girtaian  y.  Gnt.  B»  B. 


n 

GIsbonniT.  Hnal««*« 

Giyens  y.  Bradley. 

Giyensy.  Taylor,  Hart  ft  Co....  521 

Gladinff  y.  Qeotge 820 

Glasseuy.  Thomaa 664 

Gleason  y.  Gleason 706 

Gleason  y.  Smith. 477 

GliBSon  y.  Hening. 780 

Globe,  The 241 

Goddaid  y.  Grand  Tnmk  BV  •  • . 

881,882,  386 

Goddin  y.  Crump 486 

Godeffiroy  y.  CaldwaQ 639 

Godfrey  y.  Thornton. 710 

Colder  y.  Offden 859 

Gonzales  Omw  y.  McHngh. ...  477 

Goodenow  y.  Ewer 488 

Goodman  y.  Grifibu ^...  731 

Goodrich  y.  Jonsc 69 

Goodriffht  y.  Hicks 848 

Goodwin  y.  U.  8.  IncCo 91 

Gookin  y.  GrahanL 464 

Gordon  y.  Appeal  Tax  Court. . . .  629 
Gordon  y.  Cheltenham  ft  Great 

Western  U.  B'y  Co 375 

Gordon  y.  Titos 159 

Qoogh  y.  St.  John, 343,  344 

Gould  y.  Hill 126,  127,  570 

Gould  y.  Meyer 792 

€k>yemor  y.  Carroway 188 

Governor  y.  Vanmeter. 689 

Governor  y.  Withers 409 

Graoev.Smith 750 

Graham  y.  First  Nat  Bank  of 

Norfolk 613 

Graham  y.  Maitland 137 

Graham  v.  Oliver 391 

Graham  v.  Selover... 102 

Graham  v.  Vining 538 

Grainger  V.  State 714 

Grant  v.  Thompson 77 

Grant  v.  Winbome 174,  176 

Giayes  V.  Berdan 151 

Graves  y.  Merry 280,321,  822 

Grayy.  Holdship 69,  70 

Gray  V.  Lessington 738 

Gray  v.  Liverpool  ft  B.  B.  B.  Co.  374 
Great  Northern  B'y  Co.  y.  The 

Eastern  C.  B.  Co 617 

Great  Western  B'yv*  Braid....  684 

Great  Western  B'y  v.  Fawoett. .  684 

Greeny.  Crane 97,  98 

Greeny.  Hall 66 

Green  v.  Putnam 485,  486 

Green  V.  Sarmiento 606 

Green  v.  Van  Buskirk 621 

Green,l>en  ex  dem.  v.  Harman.  175,  528 

Greene  y.  Harris 94 

Greenleaf  v.  Quincy 95,  102 

Greenwood  y.  Greenwood 421 

Greer  v.  M^or  etc  of  N.  7. . . .  137 

Gregory  v.  Bailey's  AdmV 93 

Gregory  v.  Hooker 659 

Gr^ory  V.  Stiyker 61,  65 


Gases  Cited. 


Gratton T»  HftWAra* ••■••    ••••»•  208 

Griffin  t.  ABhley 95 

Griffin  V.  Obadwiok 524 

Griffin  V.  Chubb 359 

Grittin  ▼.  Mayor  etc.  of  N.  T.. . .  123 

Griffin  V.  McKemdo 112 

Oriffiu  V.  West  Ford 487 

Griffith  T.  Baffum 752 

Griffith  ▼.  Frazier 766 

Griffitha  ▼.  Robins 421 

Griggs  V.  Howe 119 

(irinnell  v.  Cook 578,  588,  590 

Griswold  v.  Davis 603 

Gross  V.  Kierski 464 

Grobev.  Wells 527 

Grumbles  ▼.  Sn#dd 506 

Guernsey  ▼.  Kexford 88,    91 

Gnillauma    ▼.    Hambargh    etc. 

PacketCo 129 

Gnillev.  Swan 696 

Guion  ▼.  Goion 401 

Gunn  V.Howell 776,  792 

Gumey  v.  Tufts 331,  332 

Haokley  V.  Draper...   158 

Hackley  v.  Patrick 275.  277 

Hadley  ▼.  Clarke 143,  149 

Hagan  v.  Domestic  S.  M.  Co 130 

Haggerty  v.  Amory 701 

Haines  v.  Stauffer 688 

Hale  V.  Baker 512 

Hale  V.  Crow 658 

Hale  V.  Glidden 529 

Hale  V.  N.  J.  Steam  Nav.  Co.  128,  791 
Hale  V.  Omaha  National  Bank . .     CS 

Halev.  Smith 464 

Haley  ▼.  Mobile  etc.  B^  B.  Co.. .  381 

Hallv.  Blake C20 

Hall  V.  Conn.  River  Steamboat 

Co G71 

Hall  V.  Cushman 749 

Hall  V.  Green 66 

Hall  V.  HaU 479,  659 

Hall  V.  Piddock 485,  486 

Hallv.  Pike 588,  589 

Hall  v.  Savill 506,  539 

Hall  V.  Schultz 144,  145 

Hall  V.  WilUams 791 

Hallgarten  v.  Eckert 119 

Halsey  v.  Reed 138,  139 

Halstead  V.  Seaman 91 

Halterline  y.  Rice 66 

Ham  V.  Mayor  etc.  of  N.  Y 124 

Hamblett  v.  Hamblett 735,  738 

Hamilton  Avenue,  Matter  of . . . .  635 

Hamilton  T.  Brooks 470 

Hamilton  V.  Dent 725 

Hamilton  V.  Smith 725 

Hamilton  V.  West 628 

Hammack  v.  White 680,  681,  686 

Hammon  ▼.  Huntley 95 

Hammonds  v.  Belcher 523 

Hampton  y.  McConnel 155,  157 

Hanoooky.  Day 485 


Hanoock  y.  Jordan 744 

Hancock  v.  Rand 688,  689 

Hanooz  v.  Dunning 242 

Hand  v.  Baynes... 143 

Haner  v.  Martin. 161 

Haney  v.  The  Schooner  Boaabeile.    60 

Hanks  v.  Thompson. 513 

Hanley  v.  O'Donald 3)53 

Hanna  y.  Spotts 396 

Hannan  v.  Osbom 483 

Hanson  v.  Barnes 768 

Hanson  v.  European  ft  K.  A.  B. 

R.Co 381,  383 

Hapgood  V.  Houghton 655 

Happy  V.  Mosher 60 

Hard  V.Caldwell 524 

Hanlesty  y.  Wilson 336 

Harding  v.  Alden 705 

Harding  v.  Handy 839 

Hardy  V.  Broddus 606 

Harleyv.  Eleventh  Ward B'k. 88^    91 
Harmon  v.  Salmon  Falls  Mfg.  Co. 

56,  478 

Harmony  v.  Bingham 149 

Harper  V.  Fairley 102 

Harrington  v.  O'Reilly 768 

Harrington  v.  Sharp 329 

Harriott  V.  Wells 120 

Harris  V.Ely 88 

Harris  v.  Mandeville 611 

Harrison  v.  Berkley 347 

Harrison  v.  Borwell 405 

Harrison  v.  Edwards 606 

Harrison  v.  Hogs 339 

Harrison  v.  Pender 331 

Harrison  v.  Shanks 466 

Harrison  v.  Sterry 609 

Harrison,  The '. . . .  241 

Hart  V.  Hudson  River  Bridge  Co.  687 

Hart  V.  Reed 727 

Hart  V.  Rensselaer  &  S.  R.  R.  Co.  418 

Hart  V.  Rust 618,  646 

Hart  V.  Taylor 66 

Hart  V.  Tallmadge 742 

Hartley  V.  McAnulty 363 

Hart's  Devisees  v.Hawkin's  Heirs  485 

Harvest,  The 241 

Harvey  v.  Thomas 688 

Harvey  v.  Towers 598 

Harvey  v.  West  Side  Elevated  R'y    90 

Hastings  V.  Levering 119 

Hatchett  v.  Gibson 776 

Hathaway  v.  Town  of  Homer. . .  125 

Havemeyer  v.  Cunningham 137 

Haven  V.  Mehlgarten 483 

Hawes  v.  Knowles 881,  384 

Hawes  y.  Leader 364 

Hawes  V.  Watson 866,  367 

Hawkins  v.  Barney's  Lessee. ....  107 

Hawks  V.  Crofton 788 

Hawkins  y.  Long 86,    88 

Haynes  v.  Wooa. 748 

Hays  V.  Houston  etc.  R.  R.  Co. . 

S86,887,  888 


Oases  Cimx 


WAam 

Haywood  T.Bndflgr***** 755 

Haaid  ▼.  BJunlin 357 

Haard  ▼.  Israel «. 389 

Hazleton  y.  PainaaiL. 202 

HealevT.Ony 690 

Heard  T.  Horton 315 

Heath  V.  Grenell 101 

Heath  V.  West 738 

Heermanoe  v.  Vemoy 464 

Hegeman  ▼.  Western  B.  Co.6^  684 

Hempstead  V.  Read 611 

Henderson  ▼.  Gandy. 767 

Henderson  v.  Glass 490 

Henderson  ▼.  Merrill 522 

Henderson  v.  Western  eta  Ins. 

Co 688 

Hendricks  ▼.  Sixth  Ato.  B.  B. 

Co .....884,  889 

Hcndrickson  y.  Evans 365 

Hendrlk,  The,  ▼.  Hudson 239 

Henrietta,  The 241 

Henry  y.  Root 738 

Henryy.  Welch 702 

Hershey  y.  Weilang 364 

Heranv.  HaU 752 

Herbemont  y.  Sharp 466 

Herbert  y.  Hobbs 731 

Herrick  y.  Randolph 629 

Herring  y.  Wilmington  etc  BL  R. 

Co. .TT. 327 

Hersey  y.  Tnrbett 368 

Hewes  y.  Doddridge 650 

Heyer  y.  Pmyn 539 

Heyl  y.  Inman  S.  S.  Co 151 

Heywood  t.  Watson 597 

Hickman  y.  Thomas 578 

Hicks  y.  Skinner 466 

Highmore  y.  Primrose 85 

Higgins  y.  Morray 66 

Higgins  y.  WateryUet  T.  Go.880,  385 

HiUrity.The 241 

Hill  y.  Chapman 401 

HUl  y.  New  Haven 687 

HUl  y.  K.  O.  etc.  R.  R.  Co 385 

HiU  y.  The  Golden  Gate 241 

Hillebrant  y.  Brewer 186 

HiUyer  y.  Bennett 735,  736 

Hilton  y.  Earl  of  Granvilla 762 

miton  y.  Soothwick 471.  562 

Hinckley  y.  Emerson 605 

Hine  y.  Trevor. . .  .28S»  236,  241,  242 

Hinesv.  State 568,  563 

Hinson  y.  Pickett 395 

Hippy.State. 183 

Hitehooek  v.  Harrington 609 

Hitchcock  y.  Skinner. 485 

Hitchings  y.  Morrison. 528 

Hite  y.  Long 780 

Hit-ti2k-ho>mi  y.  Watts 701 

Hodge  y.  Manley 101 

Hodges  y.  New  England  Sorew 

Co 639 

Hoen  y.  Simmons 202 

Hbsry.  Fomaa.  •••.•« «•• 


Ho£bry.  Dement • •    87 

Hoffinan  y.  N.  T.  Osnl  olo.  B. 

R.Co 380 

Hoffman  v.  Western  eta  Lm.  Co.  187 

Hogan  v.  Lncas 2E8,  231 

Hogshead  y.  State 657 

Hoke  y.  Henderson 638 

Holbrook  t.  Finney 608,  609 

Holland  y.  Moody 167 

Holland  v.  Stoner 726 

HoUiday  y.  Rheem 847 

HoUingsworth  v.  Barbour. 22jt 

Hollingsworth  v.  Horn 768 

Hollis  v.  Chapman 478 

HoUister  y.  Nowlsn 

120»288,670,  688 

HoUoway  y.  Johnson 767 

Holmes  y.De  Camp 93 

Holmes  y.  Holmes 166 

Holmes  y.  Tiuising 107 

Holmes  y.  Rhodes 147 

Holmes  y.  Tremper 70,  300,  744 

Holmes  v.  Williams lli 

Holt  &  Carr  v.  Robinson 484 

Home  y.  Pillans 398 

HomeryiFish 153 

Homesy.  Smyth 599,  600 

Hooban  y.  Bidwell 359 

Hood  y.  Fahnestook 3(^1 

Hood  y.  Manhattan  F.  Ins.  Co. .    66 

Hoof  y.  Rollins 659 

Hooper  y.  Wells 180 

Hopkins  v.  Atlantio  eta  R.  R. 

O) 381,  384 

Hcpkins  v.  Grimiell 466 

Horan  v.  Wahrenbeiger.158,  331,  791 

Horfaach  y.  Riley 366,637,  368 

Homer  y.  Doe   ex  dem.  State 

Bank 650 

Homer  y.  State  Bank  of  Indiana.  331 

Horton  V.  Sledge 486 

Hosford  y.  Merwin 756 

Hosley  y.  Black 66 

Hoogh  V.  Bir^ 666 

Hooser  t.  Irvme 102,  278 

Honser  y.  State 183 

Houston  eta  RV^  Ca  y.  Cowser. 

886,887,388,  687 

Houston  T.  MoCInney 484 

Houston  y.  Sneed 629 

Hoax  y.  Batteen 627 

Hovey  v.  Feignson 486 

Howton  y.  Freaison 762 

Howard  y.  Reedy 527 

Howards  y.  Dnvu 608,  609 

Howe  Machine  Ca  y.  Pease  ....  592 

Howe  v.  Newmaroh 379 

Howell  y.  Barden 76 

Howell  y.  City  of  Buflalo 112 

Howell  T.  Freeman 298 

Howell  y.  Harvey 778 

Howell  y.  Knickerbocker  L.L  Co.  161 

Howey  y.  Gohigs 485 

H(^le  V.  Toong 721 


Oasbs  Crnox 


HnUiAid  ▼.  O'Bkifln 66,    67 

Habbard  ▼.  WmiaiDS 021,  603 

Huckabee  ▼.  AlbrittoB 742 

Huckabee  v.  BillingBleo 647 

Huffman  V.  Click 172 

Huggins  ▼.  King 156 

Hughes  V.  Hughes 400 

Hughee  ▼.  Parker 748 

Hughes  T.  Thorpe 86 

Hulett  V.  Swift 129 

Humphrey V.  Humphr67....843,  845 

Humphreston's  Gase 497 

Humphries  v.  Chastain 280 

Hunt  V.  Bridgham 95,  102 

Hunt  V.  Buttcrworth 518,  546 

Hunt  V.Hunt 158,  159 

Hunt  V.  Sackett 464,  467 

Hunt  ▼.  Turner 567 

Hunter  ▼.  Chrisman 529 

Hunter  V.  Potts 611 

Hunter's  Appeal 376 

Huntingdon  V.  Hall 464,  465 

Hurd  V.  Cass 166 

Hursh  V.  Byers 590 

Hurt  V.  State 312,  560,  563 

Hutchins  v.  Bank  of  Tennessee. . 

321,322 

HutchinBon  v.  Market  Bank  of 

Troy 88,89,90,    91 

Hutchinson  v.  Perley. 334 

Hutchinson  v.  Wetmore 55,  473 

Hyde  y.  Great  Western  B'y  Co..  375 

Hyland  v.  Paul 162 

Hylton  V.  U.  S 438 

Hynson  v.  Dunn 665 

Illinois  Central  R.  B.  Co.  y.  Ham- 
mer  381,384,  388 

Indianopolis  etc.  B.  R.  v.  Ker- 

cheval 639 

Ingalls  V.  BUls 674,  675,  679,  686 

Ingallsbee  v.  Wood 588,  590 

Inge  ▼.  Bond 464 

IngersoU  ▼.  Lewis 334 

Inglish  V.  Breneman 308 

Ineram  v.  Little 334 

Inhabitants  of  Hancock  ▼.  Has- 

zard 125 

Inman  v.  Western  F.  Ins.  Co. ...    52 

Innis  y.  Steamer  Senator 458 

Innocent  v.  North  Midland  R*y 

Co 375 

Insurance  Co.  v.  Dnnham 

235.238,  239 

Irish  V.Smith 77,    81 

Iron  R.  R.  Co.  v.  Mowery 684 

Irwin  v.  Enox 781 

Irwin  y.  Thompson 466 

Isaacs  V.  Third  Ave.  R^y 380 

Israel  V.  Clark 684 

Ives  v.  Jones • 768 


Jackson  v.  Betts. . . . 
Jackson  v.  Blanshan , 


73 
815 


Jacksoo  T.  Dewltl 506^  501^ 

Jackson  v.  Dnnsbegji.. 508 

JaoksoD  y.  Kniffisn . . .  .74,  78,  80,    81 

Jackson  v.  Lawton 701 

Jackson  v.  Lodse 159 

Jackson  y.  Loya....» 629 

Jacks<m  v.  McKenny 508 

Ja(&8on  v. Merrill 315 

Jackson  V.  R.  &  B.  R.  Co 631 

Jackson  v.  Rogers 128 

Jackson  v.  Staats 815 

Jackson  v.  Staokhoose 782 

Jackson  v.  Steamboat  Ma^piolia.  235 

Jackson  y.  Sammerville 339 

Jackson  V.  ToUett 671 

Jackson  v.  Town 495 

Jadcson  v.  Woodmff 529 

Jacob  Hall's  Case 878 

Jacob's  Adm'r  v.  Lonisyille  etc. 

R.R.  Co 381,  384 

Jacques  v.  Weeks 351 

JaUe  V.  Cardinal 586,  588,  589 

James  v.  Fisk 896 

James  v.  Fulcrod 567 

James  V.  Patten 456 

James  v.  Steamboat  Pawnee. 241,  242 

Jamison  v.  Beaabien 701 

Jansen  v.  Brigantine  Christina. . .  238 
Jarden  v.  PhUadelphia,  W.  &  B. 

R.R.CO... 373 

JarreU  v.  State 184 

Jarvaisv.  Moe 709 

Jasper  v.  Maxwell 209 

Jaycoz  V.  Caldwell 167 

Jeans  v.  Lawler 776 

JeffersonvilleR.  R.  Co.  v.  Rogers. 

881,  383,  384 

Jemison  v.  Planters'  and  Mer- 
chants'Bank 634 

Jenkins  v.  Eichelberger 357 

Jenkins  y.  Wheeler 54,  151 

Jennings  v.  Carson 245 

Jennings  v.  Gage 359,  665 

Jennings  v.  Newman 654 

Jewett  V.  Lincoln 358 

JewBon  V.  Monlton 160,  161 

Johnson  v.  Beardsley 95 

Johnson  v.  Commonwealth 184 

Johnson  v.  County  of  Stark 456 

Johnson  v.  Harrison 487 

Johnson  v.  Hicks 80 

Johnson  v.  Hunt. 66,  61,    65 

Johnson  v.  Jennings. . .  .518,  688,  689 

Johnson  v.  Kay « 765 

Johnson  v.  Reynolds. 590 

Johnson  v.  Toulmin 406- 

Johnston  v.  Barker. 463 

Johnston  v.  Smith. 506 

Joues  v.  Blalock 771 

Jones  V.  Boston  Mill  Corporation  771 

Jones  v.  Clark 647 

Jones  V.  Dunn 91 

Jones  V.  Fort 307 

Jones  V.  Qrsat  Western  R*y  Go,.  87C 


Oases  Gubx 


#OttM  ▼•  vHNWVSa  •  •  »•  ••••••••••  JlOi 

JOBCMI T,  H0W6ll*«  •••••>•••••••••  790 

Jones  T.  Hiiggoiovd. •••••••  ••••  406 

Jones  V.  Jones 406 

Jones  ▼.  Morgan 137 

Jones  V.  K.  Y.  Cent.  B.  B.  Go. . .  6S7 

Jones  V.  Bofainson. 872 

Jonea  ▼.  The  Coal  Bscsei. . .  .238,  230 

Jones  V.  The  OonuMiM. 221 

Jones  T.  Voorhees 288 

Jones  ▼.  Walker. 120 

Jordan  y.  Peak 650 

Jordan  v.  State 644 

Joseph  E.  Goffee»  The. 242 

Joslyn  T.  Smith 05 

Joy  V.  State 471 

Jadson  t.  Western  B.  B.  Onp. .  673 

Junction  B.  B.  Go.  t.  Hazria. . . .  167 

Kalorama,  The 240^  241 

Kane  ▼.  Hihemia  Ina.  G6 187 

Kansas  Pacific  BV  Go.  ▼.  IfiHer.  685 

Kate  Tremaine,  The. 241 

Keane  ▼.  Branden 04 

Keegan  ▼.  Western B.  B.  Gorp. .  827 

Kein  T.  Tapper 151 

Kellogg  V.  Braman 221 

Kelly  V.  Bradford 490 

KellyT.  Weber 101 

Kemp  V.  Knickerbocker  Ice  Go. .  161 

Kemp  T.  London  &  B.  B'y  Go. . .  874 

Kenoig  y.  Qyerhnlaer 187 

Kennard  v.  Buton 721 

Kennedy  T.  Brown 93 

Kennedy  v.  Strong. 306 

Kenrig  t.  Eggleston. 127 

Kent  T.  Elstob 721 

Kent  V.  Great  Northern  B'y  Go..  684 

Kent  ▼.  Laahy 710 

Kent  y.  Lyon , 840 

Kent  y.  Shaokard 682 

Kerlin's  Lessee  y.  Boll 814 

Kerns  y.  Swope 361 

Kerr  y.  Qilmore 608 

Ketcham  y.  Ghok 321 

Key  City  O.  L.  Go.  y.  Monaell. .  624 

Kidy.MitcheU 646 

Kidder  y.  Bixford 483 

Kilgoor  y.  Finlyion 276 

Killamy.  Preston 86,    88 

Killinger  y.  Beidenhanr 863 

Kimball  y.  Goohecho  B.  B.  Go . .  766 

Kincade  y.  Bradahaw 187,  103 

Kincaid  y.  Donney 627 

KInderhook  y.  Oiffiord 120 

King  y.  Hoggina 605 

King  V.  Klme 777 

King  y.  Bfawbey 660 

King  y.  Paterson  &  HndsooJUyer 

B.  B.Go 821 

King  y.  Whitely 188,  130 

Kina  y.  Yon^  Men^  A«^ 612 

Kinleside  y.  Harrison 421 

Kinnard  y.  Herbek..; 620 


Kinne^^.  €h<ssr.*«^»«» •••••••••  881 

Kinnier  y.  Kinnier 169 

Kirklaad  y.  Dinsmora 129 

SHrtony.  Wood 86 

Kirwan  y.  Latoor 744 

Kisten  y.  Hildebrand  ..686, 580,  690 

Kitcheny.Lee 788 

Kittredgey.  Woods. 60 

Kline  y.  Gent.  Faoifio  B.  B.  Go.  885 

Klota  y.  Batler 87 

Knell  y.  U.  S.  etc  Steamship  Go.  129 

Knibbsy.HaU 144 

Knight  y.  Goleman. 620 

Eoiowles  y.  Michel 86,86^  OS 

Knowles  y.  Scriboer. 187 

Knowlton  y.  Golyer 689 

Knowlton  y.  Smith 627 

Kocky.  Bonits 86^  19 

Kohn  y.  Schooner  Bwiafaianoe  . .  791 

Kopper  y.  Willis 687 

Knhny.MoNeU 624 

Knnkle  y.  Wolfersbergor. 603 

Kmrta  y.  Hifaner. 486 

La  Ban  y.  Vanderbilt 81 

Labbe's  Heirs  y.  Abat 284 

Lack  y.  Seward 721 

Lackawanna  &  Bloomsboig  B.  B. 

Go.  y.  Ghenewith 328 

Lackey  y.  Stoader 464 

Lackington  y.  Atherton 366 

Laddy.  Baker 621,  603 

Lafayette  etc  B.  B.  Go.  y.  Gei- 

ger 457 

Laidler  y.  Bnrlinson.  .66,  60,  63,  64 

Laing  y.  Colder 327,  681 

Laird  y.  Eichold 602 

Lakeman  y.  Qrinnell 137 

Lake  Shore  etc  B.  B.  y.  Perkins  136 

Lamb  y.  Dnrant. 867 

Langdale,  Ex  parte 761 

Lament  y.  Stimson 821 

Lancaster  y.  Bolan 499 

Landon  y.  Litchfield 629 

Laney.  HilL 86 

Tjanfear  y.  Sumner 868 

Langy.  Waring 466 

Langdon  y.  Boane's  Adm'r. . .  .83,  88 

Lannng  y.  Gains 321 

Lansing  y.  Smith 638 

L'Apostro  y.  LTlalstrier. 482 

Latch  y.  Bnmner  B'y  Go. . .  .683,  686 

Lathrop  y.  Knapp 118 

Latonr  y.  Bland 189 

Lanasatt  y.  Lippinoott 806 

Lawy.State 180,  182 

Lawrence  y.  Bank  of  the  Broab- 

Uc 169 

Lawrence  y.  Bowman 821 

Lawrence  y.  Howard. 589,  691 

Lawrence  y.  State 469,  470 

Lawrence  y.  Worrall 96 

Lawson  y.  Hicks 728 

Lawton  y.  Fitchbnrg  B.  B.  <)c..  270 


80 


Gase&  OrojK 


WAon 

T.DttTii*. .••••«• 776 

Leavitt  T.  Goooh 606 

Leckey  y.  Bloaer 847 

Lee  ▼.  Browning • 820 

Lee  ▼.  Kingsbury 709 

Leev.  Manh 129 

Lee  ▼.  Milner. . .  •  875 

LeesT.  Kattall 755 

Leeeon  ▼.  Holt 127 

Lehmberg  v.  Bibentein. 506 

Leidig  v.  Rawson 119 

Lemerev.  Elliott. 86,    91 

Lemon  v.  Chanslor ^682 

Lentz  V.  Stroll *777 

Leon  ▼.  Galcerau.  .236^  241,  2^  244 

Leonard  T.  Hendriokeon 129 

Leonard's  Ex'rs  v.  Winslow. 369 

Le  Roy  v.  Crowninshield. 611 

Lessee  of  Maosie's  Hein  ▼.  Long.  768 

Lestapies  ▼.  Ingraham. 864 

Levenng  ▼.  Bank  of  Ckilnmbia. 

240,  241 

Leverty.  Planters' eto.  Bank....  789 

Leyiy.  Brooks 879,881,  884 

Levyy.  Oadet 102 

Leyy  y.  Mayor  etc»  of  N.  T. 123 

Lewis  y.  Gastleman 606 

Lewis  y.  Claiborne 815 

Lewis  y.  Cleyeland 221 

Lewis  y.  Day 141 

Lewis  y.  Loye 406,  606 

LewU  y.  Lewis 701,  702,  781 

Lewis  y.  Owen 613 

Lewis  y.  Woodworth 100 

Lienan  y.  Dinsmore 129 

Liford's  Case 373 

Lillard  y.  Casey 755 

Lincoln  y.  Edseoomb 527 

Lines  y.  Smith 464 

Linfield  y.  Old  Colony  R.  B 

270,827,  617 

Linn  y.  Scott 632 

Litchfield  y.  Falconer 776 

Litchfield  y.  McComber 112 

Little  y.  BirdweU 618 

Little  y.  Clarke 821 

Little  y.  Holland 52 

Uttlefield  y .  LiUlefield 101 

Liyermore  y.  St.  John 88 

Liyingston  y.  Mayor  etc.  of  N.  Y.  374 

Liyingston  y.  Liyingston 373 

Uoydy.Keach 118 

Lloyd  y.  Mayor 467 

Lobdell  y.  Baker 742 

Lobdell  y.  Fowler 521 

Lockwood  y.  Sleyin 85,    88 

Lockwood  y.  Stockholm 164 

Lockwood  y.  Thome 89,    91 

Lodge  y.  Simontoo 862 

Logg  y.  People 663 

Logffins  y.  State 546 

London  &  B.  R'y  Go.  t.  Qnnd 

Junction  Canal  Co 874 

Long  y.  Hammond 611 


Long  y.  Hiddngbottoni  4A4^  465^  467 

Long  y.  Rogers 776 

Longy.Wier 208 

Lonsdale's  Estate 365 

Loomis  y.  Marshall 751,  752 

Lord  y.  Ooean  Bank 602 

Lord  y.  Steamship  Co 240 

Loring  ▼.  Bacon 482 

Lottawana,  The 237,  288 

Lonisyille  etc  R.  R.  Co.  y.  Gar- 
rett  881,383,  884 

Louisyille  etc,  R.  R.  Co.  y.  Ma- 

hony 381 

Louisyille  etc.  R.  R.  y.  Smith. . . 

381,883,384,  385 

Louisyille  &  Frankfort  R.  R.  Co. 

y.  Milton 270 

Louyalley.  Meoard 483,  485 

Loyey.  Jones 866,367,  368 

Loye  y.  RobertMn 479 

Loyell  y.  Field ^..  666 

Low  y.  Austin 65 

Lowrv  y.  O'Bryan 315 

Lowther  y.  Chappell. 102 

Lucas  y.  Board  of  Commission- 

ers 466 

Lucketts  y.  Townsend 502 

Lucy  y.  Wabrond 655 

Ludwick  y.  Fair 831 

Lnhrs  y.  Eimer 167 

Lund  y.  Lihabitants  of  l^gs- 

borough 688 

LuskyTselote 586,688,  591 

Luxford  y.  Large 721 

Lycoming  y.  Union... 112 

Lyerly  y.  Wheeler. 765 

Lylesy.  State 662 

Lyman  y.  Becannon 66 

Lyman  y.  Clark 782 

Lynar  y.  Mossop 590,  591 

Lynch  y.  Baxter 619,  549 

Lynch  y.  Nurdin 261 

Lyne  y.  Gilliat 93 

Lyon  y.  Hunt 876 

Lyon  y.  Johnson 822 

Lyon  y.  MoGuffey 329 

Lyons  y.  Diyelbis 468 

Lytle  y.  State  of  Arkansas. 700 

Maodougall  y.  a  P.  R.  R.  Co. . .  687 

Mackay  y.  Mackay 66 

Mackiey.  Smith 70 

Maoklot  y.  Dubrenil 296 

Maoomber  v.  Parker 856,  857 

Macyy.  De  Wolf 241 

Mad  Riyer  &Lake  Brie  R.  R.  Co 

y.  Fulton 408 

Maeck  y.  Nason 815 

Maggie  Hammond,  The 241 

Maguire  y.  Card 280,  249 

Mahoney  y.  Mahoney 486 

Main  y.  Schwanwaelder 71 

Maine  Fire  &  Marine  Ina.  Go.  r 

Weeks 


Oases  Oited. 


81 


VAOB 

MaJot  ▼.  Pnllkm 777 

BialiT.  Lord 379 

liaIon7T.atyoflClw«iikee236,  239 
liaoderaon  v.  Gommercud  Bank.  375 

Manderille  ▼.  Reynolds 159 

MAiidevillA  ▼.  Wcloh 488 

Manley  ▼.  Manlev. 7(^  704 

Mann  t.  Gitgrof  Utioa 112 

Hum  T.  Fuoon 639 

Mann  ▼•  ^^ ^^ 

Manning  t.  £wtemCoDntiea  R'y 

Co 631 

Mftjiniwg  Y»  T^ler 120 

Manning  ▼.  Wells 586,589,  590 

Manaellr.  Payne 88 

Manser  t.  liortheni  k  Bartem 

Connties  B'y  Go 874 

Maples  T.  Tonis 832 

March  ▼.  Scarboro 212 

March  T.  State 563 

Marietta  &  Cincinnati  B.  B.  Co. 

T.  Stephenson 270 

Marine  Ins.  Co.  of  Alezandz^  ▼. 

Hodgson 154 

Markham  V.  Middleton 781 

Marrv.  Given 652 

BfarriottT.  Stanley 262 

Marsh  V.  Benson 159 

Marsh  v.  Jones 605 

Marsh  ▼.  Town  of  little  Valley.  123 

Marshall  ▼.  Dake 464 

Marshall  V.  Haney 458,  688 

Marshall  ▼.  Kerns 453»  454 

Martin  ▼.  Broach 102 

Martin  ▼.  Hewitt 524 

Martin  ▼.  Hunter's  Lessee 224 

Martin  y.Kirk 278 

Martin  ▼.  Martin 546 

Martin  ▼.  Mayor  eta  of  Brooklyn  123 

Martin  ▼.  Walton  &  Co 276,  277 

Martindale  y.  Alejcander. . .  .485,  486 

Martin,  Ex  parte 376 

Marx  V.  MoGlynn  81 

Maty  Gratwick,  The 241 

Maty,  The 243 

Marye  ▼.  Stronse 88,    90 

Mason  y.  Caldwell 659 

Mason  ▼.  Halle 107 

Mason  T.  Noonan 694 

Mason  y.  Thompson 

577,578^682,  586,  588 

Massey  y.  Hudson 399 

MassoB  y.  Boyet 665 

Masters  y.  Vamer's  Ex'rs 320 

Masterson  y.  Cohen. 512 

Masterson  y .  West  Bad  B.  B.  Co,  821 

Mateer  y.  Brown 458 

Matheny  y.  Mason 464 

Mathews  y.  Smith 189 

Mathis  y.  Hammond 398 

Matossy  y.  Fresh 519 

Manlding  y.  Scott 315 

Manry  y.  Talmadge 671 

Manniliany.  Mayor  eta  of  N.T.  124 


MazweU  y.  The  PowsU 241 

May  y.  Breed 611,  612 

May  y.  Chapauuu 821 

Mayr.Eloes 93 

May  V.  State  Bank  of  North  Caro- 
lina  768 

Mayo  y.  Boston  eta  B'y 687 

Mayor  eta  of  Baltimore  y.  Balti- 
more etc.  B.  B 639 

Mayor  eta  of  Liyerpool  y.  Chorlsy 

W.  W.Co 374 

Mayor  eta  of  Mobile  y.  Tnille. .  639 

Mayor  eta  y.  Fane 123 

Mayor  of  Colchester  y.  Brooke  . .  263 

McAUister  y.  State 545 

McAniay  y.  Birkhead 770 

McBumey  y.  Wellman 159 

McCabe  y.  Morehead 464 

McCahiU  y.  Hamilton 167 

McCally.Naye 86^    93 

McCall  y.  Neely 833 

McCaskill  y.  Mliott 605 

McChesney,  The  E.  M 236^  239 

McClanahan  y.  Henderson 490 

McClary   y.  Sioux  City  eta  B. 

B.Co 686 

McCleUand'sEz'ry.West^Adm'r    98 

McClenny  v.  Floyd 501 

McClenny  y.  McClenny 506,  546 

McComber  v.  Granite  Ina  Co. . .  119 

McCombie  y.  Davies 780 

McConihe  y.  K.  Y.  &  Erie  B.  B.    65 
McConnell  y.  Matoal  Ins.  Co. . .  187 

McCoy  y.  Artcher 464,465,  466 

McCracken  y.  Hay  ward 110,  111 

McCravey  y.  Beroaon 783 

McCready  y.  Viivinia 230 

McCuUoch  y.  Hollingsworth ....  624 

McDaniel  y.  Baca 689 

McDaniel  y.  State..  194, 312, 347,  688 

McDaniel  y.  State 714 

McDearman  y.  McClore 483 

McDonald  y.  Edgerton 688,  590 

McDonald  y.  Hewitt 856 

McDonald  y.  May 756^  756 

McDonald  y.  NeUson 154 

McDowell  y.  Goldsmith 401 

McDowell  y.  Hall 508 

McDowell  y.  Simpson 506 

McElroy  y.  Kashna  eta  B.  B. 

Corp iK70,  827 

McFarland  y.  Gutter 87 

McFarlane  y.  Shaw JOl,  192 

McGee  y.  Campbell 606 

MoGheey.EUu 466 

MoGUl's  Appeal 816 

McGiU  y.  Monette 776 

McGinnu  y.  State 81%  471 

McGinty  y.  Mabrf 706 

McGowan  y.  Manifea 721 

McGown  y.  Spragna 769 

McGregor  y.  State ,.••  184 

McGriffin  y.  Baixd  464 

McHenry  y.  Hazard, 169 


82 


Cases  Citbd. 


Mdntire  y.  Oliver 102 

Mclntyre  ▼.  Chftppell 479 

Mclntyre  V.Warren 91 

McJilton  V.  Love 158,  791 

McKay  V.  City  of  Bnfihlo. 124 

McKeon  v.  Citizeiu'  B.  Ck> .  .383,  386 

McKindcr  v.  littlejohn. 189 

McKinney  v.  Kenny 529 

McKinney  V.  Neil 682 

McKinney  v.  People 312 

McKinney  v.  Springer 55,  477 

McKnight  V.  Donlop 136 

McLanoh&n  v.  City  of  Syracnae.  124 

McLaren  v.  McMartin 101 

McLanghlin  v.  Shepherd 352 

McLean  v.  Bnrbank 682 

McLellan  v.  Cox 320 

McMahan  v.  Fawcett 749 

McMahan  v.  MoMahan 202 

McMahon  v.  Sloan 306 

McManoa  v.  Grickett 379 

McMillan  v.  McNeill 609,  613 

^IcMillan  v.  Michigan  etc.  R.  R. 

129,130,  574 

McMorria  v.  Hemdon. 489 

McMuUen  v.  Wenner 366 

McNamee  v.  Tenny 102 

McNeel  v.  Baker 85 

McPherson  v.  McPheraon 119 

McPike  V.Pen 623 

McTaggart  V.  Thompson 78 

Mechanics*  and  Traders'  Bank  v. 

Dcbolt 629 

Medina  v.  Stoughton 461,  4C4 

Mehurin  V.  Stone 294 

Meier  v.  Penn.  R.  R.  Co. . .  328,  684 

Melchior  V.  McCarty 93 

Meloy  V.  Dougherty 524 

^Icllon  V.  Campbell 88 

Melton  V.  Troutman 775 

Memphis  v.  Whitefield 685 

Memphis  etc.  Packet  Co.  v*  Mc- 

Cool 685 

Memphis  R.  R.  Co.  v.  Green. . . .  384 
Mercantile  Mut.  Ins.  Co.  v.  Calebs  129 

Merchants'  Bank  v.  Central 652 

Merchants'  Bank  v.  Evans 524 

Merest  v.  Harvey 777 

Merrill  v.  Grinnell. 120 

Merrill  v.  Harris 520 

Merrill  v.  Lake 234 

Merrills  v.  Tariff  Mfg.  Co. .  .388,  389 

Merritt  v.  Claghom 580 

Merritt  V.  Johnson.  56,  60,  61,  64,    65 

Merritt  v.  Scott 102 

Methodist  E.  Charch  at  Harlem  . 

V.  Mayor  etc.  of  N.  Y 158 

Metropolitan  R.  R.  Co.  v.  Jack- 
son L.  R 681,682,  686 

Meuz  V.  Anthony 406,  505 

Meyer  v.  Haiden's  Express  Co. 

129,  130 

Meyer  v.  Meyer 238 

MinhigaoBaiikT.  Eldred.......  003 


Michigan  Osnt.  B.  B.  T.  Hjda. . .  130 
Michigan  State  Bank  v.  HaatlngB  639 

Mickle  V.  State 182 

Milbank  V.  Dennistoun 120 

Milbnm  V.  Beach 778 

MUesv.Jaoob 726 

MUes  V.  Lingennaa 737 

Miller  v.  Brmkerhoff 831,  332 

Miller V.  Brown 119 

Miller  v.  Creeson 351 

MUler  T.  Goddard 66,  478 

Miller  v.  Peeples 591 

MUlerv.Plnmb 744 

Miller  V.  Rogem 512 

Miller  v.Shackleford 783 

Miller  v.  St.  LonU  R.  R.  Co. 684,  687 

Miller  V.  Talcott 101 

MillerT.VanTa8aeL464^465,466,  467 

Miller's  Appeal 364 

Milligan  v.  Cooke 391 

Milliman  v.  Oswego  &  Syraoaae. .  637 

MiUis  V.  Barber 698 

Millsv.Mills 647 

MUls  V.  Stewart 787,  788,  790 

MUls  V.  Traylor 639 

Miltimore  v.  Miltimore 365 

Milwaukee  etc  B.  R.  Co.  v.  Fin- 
ney   885 

Minor  v.  Staples 690 

Minot  V.  P.  W.  A  B.  R.  R.  Co. .  239 

Mitchell  V.  Ostrom 278 

Mitchell  V.  Western  R.  R.  Co. . .  686 

Mitchell  V.  Williams 639 

Mitford  V.  Mitford 160,  161 

Mixer  v.  HowarUi 66,    66 

Mizell  V.  Moore 204 

Moakeley  V.  Rigsa 60 

Mockbee  v.  Ga^er 464,  466 

Mode,  Doe  ex  dem.  v.  Long. ....  628 

Moffatt  V.  Shepherd 768 

Monongahela  Nav.  Co.  v.  Coon. .  639 

Monroe  v.  Buchanan 612 

Monte  Allegro 466 

Montcfiori  v.  Montefiori 362 

Montello,  The 236,  238 

Montgomery  v.  Swen 624 

Montgomery  v.  Givhan 754,  755 

Moody  V.Brown 63,    65 

Moody  V.  Keener 783 

Moody  V.  McDonald 384 

Moorv.  Veasde 456,  628 

Moore  v.  Am.  Trans.  Co 240 

Moore  V.  Armstrong 296 

Moore  v.  Bettis 458 

Moore  v.  Cord 624 

Moore  v.  Evans 127, 670,  673 

Moore  v.  Fitchbnrg  R.  R.  Co.. . .  381 

Moore  v.  Lea 776 

Moore  v.  Madden 506 

Moore  v.  Morgue 249 

Moore  v.  Thompson 177 

^foore  V.  Williamson. 487 

Moran  v.  State 470 

Moravia  v.  Levy 


Cases  Crsd. 


XorakndT.  Bamhart.., 
Morford  T.  Woodvotth. 
Moigan  ▼.  Home 


380 
189 


Morgui 
....£3»  784 
Moriarityv.Haidai'aRiprMil20,  180 

Moriaon  y.  Toamoar 201 

Moiiii  T.  BffMi^ 75 

Morley  ▼•  Attsnborovffh •  • 

46i;462»4fia^  486 

MorrisY.HayA 177 

Morris  ▼.  NoffeDt 806 

Morris  V.  Slatery 120 

Morris  ▼.  State MO 

Morris  v.  Thompsoe.  > 484 

Morrow  ▼.  Morgan 539 

Morse  ▼.  Boston  ft  M.  B.  B.  •  •  •  •  830 

Monev.Slne 127 

Mortloek  V.  Bailer 891 

Mosbyv.WaU. 860 

Moass  T.  Boston  ft  M.  B.  B 673 

Moses  ▼.  Bradley 848 

Moses  Taylor,  m S36,  241,  242 

Mount  Vernon  ▼.  Daaomdiekt.  • .  327 

Mount  ▼.  Van  Keas 141 

Mowatt  ▼.  Howland. 321 

Mower  ▼.  FetiMn 690 

MowryT.MiUsr 119 

Mncklow  ▼.  Mangles 86»  81,  357 

Muddle  T.  Stride 290 

Mnmford  ▼.  Brown 482,  483 

Mmm  ▼.  GonunisnoQ  Go 118 

Monroe  V.  OniUeannie ••  813 

Monroe  V.  Leach. 280 

Mmison  ▼.  Atwood. 187 

Mnrphy  ▼.  Grouch 710 

Mnrphy  t.  New  York  ate.  B.  B» 

Co 388 

Mnrrah  ▼.  Bkancb  Bank 776 

Mnrray  ▼.  Ferry-boa* 240 

Murray  ▼.  ToIand.....88,84»  87,    88 

MnrreU  T.  State. 186 

MaschampT.  LsaeastsrftAwiton 

Junction  B'y  Co 414, 418 

Muse  ▼.  Donelson. 102,  280 

Mustard  V.  WoUfofd. 738 

Mutual  life  Ins.  Go.  T.  Daridge.  490 

Muzsy  T.  Whitney 761 

MyerT.Cble. 656 

Myers  ▼.Myers 246 

Mvnard  ▼.  sviaeose • 129 

Kash  T.  Gilkeson 344 

Nash  ▼.  Towns 119 

Kashyille    etc.    B.    B.    Go.    ▼. 

Stsnies 381,386,387,388 

National  Bank  ▼.  Norton 276 

National  Bank  ▼.  Phelpa 102 

Nanman  v.  Oaldwell 137 

Naumaa  ▼.  Zoerhlaut. 91 

Nave  ▼.  Hadley 624 

Nealr.  Fesperman 178,  194 

NealT.  GUiaspy 466 

Nealv.  Saunderson 689 

AM.  Dao,  Vol.  LZII«  S 


Nealis  ▼.  IKflfta U8 

NefarbasT.C  P.  B.B.C0 887 

Neiheisel  7.  Tosige 81 

NeUr.  ShackeUard....484»486b  487 

Neilson  ▼.  Qar» 240 

NelmaT.  State 471 

Nelson  ▼.  Clay 484^486^486 

Nelson  ▼.  Hudson  BiTsrB.B...  129 

Nelson  ▼•  Ivenon 776 

Nelson  ▼.  Lsake 484 

Nelson  ▼.  MoGUIeri 81 

Nelson  ▼.  Odiome 64^  151 

Nelson  ▼.  State 468,  634 

Nelson  ▼.  Vermont  ft  C  B.  Go. .  631 

NesUtt  ▼.  Walters 689 

Nerins  ▼.  Bay  State  Steamboat 

Co 129 

Newborn  ▼.  Just. 671 

119 


[ayberry 

Steamboalft 


Traaa. 


Newell  ▼.  Ma^ 
New  Haven 

Go.  ▼.  VanderbttI 
New  Jersey  Steam  Nar.  Ga  ▼• 

Merofaanti'  Bank. ....  127,  218,  219 

236,239,210^242,288,  670 

Newlln  V.  Duncan 101 

Newman  ▼.  Foster. 688 

Newman  V.  Kershaw 119,  120 

Newman  ▼.  Superfiaon  of  liv* 

ingstonCo 124,  125 

New  Orleans  etc  B,  B.  Go.  ▼.  All- 

britton 884 

New  Orleana  ate.  B.  B.  Go.  T. 

Bailey 381,383,  884 

New  Orleans  etc  B.  B.  Co.  ▼. 

Burke 381,388,  387 

New  Orleans  etc  B.  B.  Gc  ▼. 

Hurst 381,  384 

Newson  ▼.  Huey 776 

Newton  ▼.  Jacksoeu 775 

Newton  ▼.  Triog 680 

New  York  B.¥B.  Go.  ▼.  Waah- 

ingtonF.LGo 138 

New  York  C  L  Go.  t.  National 

P.I.  Go. 159 

New  York  etc  Saw-mill  and  Lum- 
ber Co.  T.  City  of  Brooklyn.. .  124 
New  York  Fire  Ins.  Go.  y.  Bsn- 

nett 281 

New  Yoric  lif e  Ina  ft  T.  Go.  t. 

Covert 101 

New  York  T.  ft  L.  Co.  v.  Helmer  118 

Ntblo  ▼.  Binase. 151 

Nichol  V.  Mayor  and  Aldermen 

of  Nashville 436 

Nicholas  ▼.  New  York  eto 129 

Nichob  ▼.  City  of  Bridgsport ...  456 

Nichols  y.  Dibrell 650 

NoholsY.  Patten 506 

Nichols  V.  Beynolds 606 

Nicholson  ▼.  Chapman. 300 

Nicholson  v.  N.  Y.  eto.  B.  B.  Co.  689 

Nicholson  T.  Taylor 359 

Noev.  Ewing 167 

Nolesv.  State '• 714 


84 


Oases  Cstesk 


HoraroH  ▼•  Nonran  ••«••  •«••••  086 

NomuHi  ▼.  NormMi 706 

Norrit  T.  Bagreft 167 

Norrit  ▼.  Norris 005 

Northern  line  Packet  Go.  ▼.  putt  90 
North  Biver  Bunk  t.  Ayiiuur.660,  651 
North  BiTor  eto.  Go.  t.  ShrawB- 

bnryGh 119,  908 

North  Union  BV  Go.  r.  Bolton  k 

PreatonBVGo 873 

Norton  v,  Beaver 624 

Norton  ▼.  Waite 600 

Norway  Plaina  Go.  t.  Boaton  k 

Maine  B.B.  Go. 294 

NoyeaT.  Terry « 70 

Oakley  ▼.  Tmateea 624 

Obertv.  Obert 485 

Ober,  The 236 

O'Brien  V.  Bllloit 747 

O'Brien  V.  GUohriat 190 

O'Bryaa  ▼.  O'Biyan 847,  776 

Oconto,  The 240 

O'DonneU  T.  Bailey 629 

Odwin  V.  Forbea 611 

Ogden  V.  A^tor 88 

C^en  T.  Larrabee 158 

Ogden  ▼.  Sanndera 609,  611 

Ohio  L.  I.  &  T.  Go.  y.  Merohanti' 

L&T.Go 567 

Ohio  eto.  R'yGo.  ▼.  Selh^ 574 

Oil  Company  ▼.  Van  Etten 

•  •••••••••••••■•■••••a OOy   OV,         91 

Oldham  y.  Bentley 739 

Oldham  y.  Mclver 550 

Oliver  y.  Ghapman 606 

Oliver  v.  Robertaon 479 

Oliver  y.  State 713 

Olympic  Theatre,  In  re 70 

Olyphant  y.  Atwood 611,  612 

Onderdonk  v.  Gity  of  Brooklyn. .  124 

O'Neal  y.  Brown 780 

Orange  Gonnty  Bank  y.  Brown. .  128 

Ord  y.  Noel 394 

Oriental  Bank  y.  Haakina 505 

Orleana  v.  Phoobua 217 

Ormond  y.  Martin 486 

Orrv.  Bigelow 137 

Ory  V.  Vnnter 807 

O'Shea  y.  Twohig 532,  533 

Otis  y.  Thorn 720,  722 

Ottmany.  Moak 738 

Outwater  y.  Dodfle 857 

Owen  y.  Farmera^  J.  S.  Go 152 

Owen  y.  Owen 207 

Owens  v.  Richmond  etc  R.  R.Go.  687 

Packard  T.  United  Statea 847 

Packer  y.  Wekted 762 

Packham  y.  Gregory 400 

Packwood,  Sncoeaaion  of. 479 

Page  y.  Bank  of  Alexandria. ....  624 

Page  V.  Pa^e 766 

Paige  y.  Ott 51 


jnuge  y.  Btone* .••••••••••••••• 

P^frey  T.  PMlaad  B.kV.K.K. 

Go 618 

Palmer  y.  Grand  JnaoUon  B.  B.  569 

Palmer  t.  Richards 697 

Paradine  y.  Jane. 143 

Pardee  y.  Treat 142 

Parker  y.  Great  Western  R'y  Go.  874 

Parkery.Kane 821 

Parker  y.  Lewia. 656 

Parker  y.  Lona  laland  R.  R.  Go.  888 

Parker  y.  MoGomber 277 

Parrill  y.  MoKlnley 202 

Panona  y.  Gopelano. 487 

Ptavona  y.  Hardy. 411 

Parsons  y.  Lindsay 889 

Parsons  y.  Monteatfa. .  ,127,  570^  578 

Pasley  y.  English 678 

Pasley  y.  Freeman 461,  465 

Passenger  R.  R.  Go.  y.  Toiing.879,  881 

Ptiteey.  Pelton 464«  467 

Pateraon  T.  Tash 306 

Patrick  y.  MarshaU 485 

Patterson  y.  Choate 95 

Patterson  v.  Gage 55»  478 

Patton  y.  Moore 71 

Pattridge  y.  Gildenneistsr 54 

Pawiet  T.  Biahop  of  linooln. ....  889 

Payne  y.  Gardiner 101 

Payne  y.  Jenkina. 91 

Payne  y.  State 101,  102 

Peacock  y.  Hammond 532 

Peacock  y.  Harria. 94 

Pearoey.Bell 518 

Pearoe  y.  Ghastain • 168 

Pearoe  y.  Hawkins 199 

Pearson  y.  Loyejoy. 820 

Pease  y.  Hnrst 96 

Peck  y.  Jenness 228,  281,  Mi 

Peck  y.  Vandenberg 479 

Peebles  y.  Reading 851 

Peel  y.  January 158 

Peet  y.  Ghicago  &  Nortfa-weatem 

R.R.O0 411 

Peet  y.  McQraw 578 

Peiffer  y.  Gommonwealth 568 

Peizotti  y.  McLanghlin 409 

Pelter  y.  Planter 791 

Pendleton  Street  R.  R.  Go.  y. 

Stallmann 27C 

Penn.  v.  Bn£blo  &  EriaB.  B. . . .  180 

Penn.  Go.  y.  Toomey 879 

Penn.  B*y  Go.  y.  Books 686 

Penn.  B.  R.  Go.  y.  Ganal  Gom- 

missioners 874 

Penn.etcNay.Go.  y.  Dandridga.  119 
Penn.  etc.  R.  R.  Gc  y.  Derby. . .  671 

Penn.R.R.Go.  y.  Hnffhea 859 

Penn.  R.  R.  Gc  y.  Kugora 827 

Penn.  R.  R.  Go.  y.  yandw«r.879,  881 

Pennington  y.  YeU 688 

Pennoyer  v.  Neff 248 

People  V.  Brown 124»  188 

People  v.  Garpenter. 118 


Gases  Cited. 


ft 

BMple  ▼.  Git7  of  St.  LiMili. 376 

Peopls  ▼.  Oolemaa 638 

Pboplar.Cook 457 

People  T.  OroniB 182 

Facile  ▼.  Ganaingham 688 

People  T.  Deyoe 167 

Psople  T.  Dick 182 

People  ▼.  DoDglafli.666»  557,  562;  563 

People  ▼.  Draper 112 

People  T.  Fiaher 340 

People  ▼.  Keriick 183 

People  T.  I^unbert 183 

People  T.  Mayor  of  BrooUyn..  .  456 

People  ▼.  Mayor  eto.  of  K.  T.. . .  105 

People  T.  McOnire 158 

People ▼.  Morrow. ••• 181 

Peoples.  Mamy 183 

People  T.  Padillu 182 

People  T.  Peck 457 

People  T.  Phippe 183,  187 

People  ▼.  RensMlier  eto   R.  &. 

Co 199.  239 

People  ▼.  Richarde 840 

People  T.ShaU 488 

People  ▼.  Skinner 331 

People  ▼.  Smith 158 

Peoples.  Swan 199 

People  ▼.  Town  Aniiton  of  Seo- 

124 

r.  Toynbee 112»  167 

Pteplev.  Tweed 124 

PtopIoT.  VanCleve 456 

People  ▼.  Vennilyea 554,  562 

People  ▼.  Vldeto 180,  181 

People  ex  reL  N.  Y.  Elevated  B. 

R.  ▼.  Commiaeionen 71 

People  ez  rel  FeciBo  Mail  Steam- 

■hfp  Co.  ▼.  Com'n  of  Tkne.  .66>66 

PeopbeT.  Tatom 204 

People's  Bank  V.  Qayley 350 

People's  Bank  ▼.  Knrti 464,  468 

Peoria  etc.  B.   B.  Co.  r.  Bey- 

nolde 682 

Peoria  M.  &  F.  L  Co.  t.  Waber. 

54»  151 

Peoria  JtB.  L  B.  B.  Co.  ▼.  Lane.  617 

PerdTal  t.  Frampton. 597 

Peidyal  V.  Hickey 242 

Percy  v.  Millendon 484 

Perkins T.  Eastern B.  B.  Go.....  270 
Perkins  t.  Misaooxieta  B.  B.  Go. 

381,385^  387 

PerkinsT.  N.  Y.  Cent.B.B....  129 

Perkins  T.  Baynal 95 

PcrkinsT.  Sterne 539 

P^ridaa  T.  Winter. 746 

Pcrley  T.  Balch 464 

Perrin  T.  Keeoe. 278 

Perryy.Coati 692 

Perry  T.  niipps 777 

Pereons  ▼.  Jones 567 

Peters  T.  Clements 512 

Peters  V.  Bylaods 270;  327 

Piitenaa  ▼.Speer 340 


Petre  ▼.  Eastern  OoatissB*yOa.  375 

Petriev.  Gark 

Petriev.  Hannay 

Petttt  T.  Shepherd 524 

Peyserv.  Mayor  eta  of  N.  Y....  152 

Phelps  T.  Brewer 

Philadelphia  etc  B.  B.  G&  t. 

Anderaon • 

Philadelphia  etc  B.  B.  Co.  t. 

Derby 291.379,  380 

Philips  T.  Beldso 83,84,    88 

PhUipsT.  Peters 102 

Phillips  ▼.  AUan 613 

PhilHps  V.  Beriok 781 

Phillips  T.  BistolH 367 

Phillips  ▼.  Davis 647 

Phillips  T.  Gorfaam 159 

Phillips  ▼.  Boss 58 

Phimps  V.  The  Soatteraood 241 

PhiUpottsT.  Phillpotte 363 

PiokettT.King 101 

Pickett  T.  Leonard 101,  102 

Pickford  ▼.  Grand  JoaotioB  BV 

Go 128 

Pieroe  T.  Oarleton 332 

Pierce  T.  Thomely 161 

PikoT.  Batler 

Pike  ▼.  Warren 

Pincbon  t.  Chiloott 

Pinckard  ▼.  Woods 646 

Pinderv.  Wilks 275 

Pingry  ▼.  Waahbom 684 

P^erton  ▼.  Woodwaid.687. 686,  589 

Piatole  V.  Street 766 

Piteher  ▼.  Henneaay 159 

PiteherT.  Laycock 787 

Piteobki  y.  Andeison 512 

Prttebarg  ete.  B*y  V.  Heck 66 

Pittobnrgb  aty  ▼.  Grfer 

Pittebnrgh   etc.  B.   B.    Go.    ▼. 

Jonea 

Pittebnrgh    etc    B.   B.  Go.  ▼. 

Thompeon 

Pittebnrgh   etc    B.    B.  Cc  t. 

Williama 682 

Plzley  ▼.  Hoggina 524 

PUoe  ▼.  Minater 120 

PUoe  ▼.  Union  Express  Co 129 

Planters'Bankv.  Sharp.... Ill,  634 

Pleaaante  ▼.  Pendleton 357 

Plnme  ▼.  Seward 176»  334 

Plymouth,  The 238 

PoeT.Darrah 320 

Poirer  v.  Fiaher. 119 

Poirer  ▼.  Morria. 598 

Poland  ▼.  The  Spartan. 241 

Polhemua  ▼.  Heiman. 90 

Pellook  ▼.  Gilbert 158 

PoUock  V.  Landia 589 

Pomfret  T.  Bioroft 762 

Pope  T.  Whitehead. 485 

Porter  ▼.  Bright. 468 

Porter  ▼.  Lobach 90 

PorterT.  Stete 


Oases  Cma 


IrDmr  ▼•  TTOOoi.  •••••■•••••  ••• 

Potty.  Kimberly..^.... 750 

PottT.  Moim 170 

Poti«r  V.  Borden 785 

Potterr.  Brown. 609»  611 

Pottery.  Town  of  Graenwiob....  123 

PottB  ▼.  HoQse. 422 

PottB  ▼.  Smith 767 

Potfs  Appeal 816 

PotwineTi  Appeal 321 

Powell  ▼.  Brown. 480 

Powell  ▼.Myers 126 

Powellv.  Koye 88 

Powell  ▼.  Paoifio  R.  B. .  ..87,  88,    80 

Powen  ▼.  Shepard 618 

Powen  ▼.  Southgate. 102 

Pmtherv.  CityofLeziogton....  125 

Pirmtt  ▼.  Tador. 612 

Prentioe  ▼.  Jannen. 484 

Pl«ntioe  V.  Zane. 601 

PrentiM  ▼.  Savage. 613 

Preebvterian  Cnnvoh  ▼•  Cktj  of 

N.Y .-635 

Preeeott  ▼.  Parker. 200 

Preston  ▼.  Boston 160 

Preston  t.  Briggs 744 

Pteston  ▼.  City  of  Boston 122 

Preston  ▼.  Drew 630 

Preston  ▼.  Preston.. 740 

Price  ▼.  Alexander 752 

Prioe  ▼.  Furman 7S5,  738 

Price  ▼.  Hartshorn. 120,  151 

Price  ▼.  McDonald 352 

Price  ▼.  Sessions 162 

Prioe  ▼.  Towsey 280 

Prichardv.  Hawkins. 725 

Prig  ▼.  Adams 407 

Prigg  ▼.  Pennsylvania 227,  231 

Pringle  ▼.  PhUlips 320 

Pringle  ▼.  Pringle 365 

Pritchard  V.  Howell 101 

Pritchett  ▼.  Jones 357 

Pritchett  ▼.  State 713 

Propeller  Can,  The 240 

Proprietors  of  Enfield  ▼.  Day. . .  620 
Pron^  ▼.  Michigan  S.  k  K.  Ind. 

R.R.OO.... 137 

Providenoe  Bank  ▼.  filings... 

628,  630 

ProTidenoe  Gas  Go.  ▼.  Thnrber. .    70 

Provisv.  Reed 75 

Provost  ▼.  Wilcox 221 

Palaski  Comity  ▼.  Stnart 702 

Pnlciferr.  PAgo 65,    70 

Pnlliamv.  Booth 86 

Pnrvis  t.  Coleman 120 

Putnam  ▼.  Payne 605 

Pntnam  v.  Peabody 01 

Pyle  ▼.  Pennock 70 

Pym  ▼.  Great  Northern  R'y 683 

• 

Qnackenbash  ▼.  Danks'. 105 

Quarles's  AdmV  ▼.  Littlepage. . .   118 
Qaelin  ▼.  Moiason 611,  613 


Qaigley  t.  Oanfenl  PImMs  JL  ^ 
CoT. 881,883,884 

Qoimby  t.  The  VermotttCsnt.  B. 
R.O0 ?...267, 

Railroad  Co.  v.  Barrett 

Railroad  Co.  ▼.  Barron 617 

Railroad  Ca  T.  OampbeQ 294 

Railitiad  Co.  T.  Harris 120,  130 

Railroad  Co.  ▼.  Lockwood. .  .180,  574 

Railroad  Co.  ▼.  Mitchel 681,  686 

Railroad  Co.  ▼.  Nat  Bank 008 

Railroad  Co.  ▼.  PoUaid 681.  684 

Railroad  Co.  V.  Skinner 270 

Raisin  ▼.  Mitchell 262 

Rambant  V.  MayfiekL 904 

Rambler  ▼.  Tryon 78»    81 

*Rambor.  Wyatt 767 

Ramseyr.Qark 118 

Rand  v.  Wneht 04 

RaDdleson,&  parte 00 

Rankin  ▼.  DameU 56 

Rankin  ▼.  Hnskisson 874 

Rann  ▼.  Hughes 488 

Ransom  T.  Mack S7(V  372 

Rapelye  v.  Madde 857 

Raphael  V.  Piokfoid 410 

Raritan  V.  Pollard 241 

Raritan  ▼.  Smith 241 

Bathbun  ▼.  Aeker 821 

Ratfabun  r,  P^o 721 

Rawlinson  ▼.  Clarke 751 

Rawls  V.  Kennedy 166 

Rawson's  Adm'x  ▼.  Gofdand. ....  138 
Raymond  t.  The  Ellen  Stuart. . .  240 

Read  T.  Amidon 687 

Read  ▼.  Spanlding 162 

Real  Estate  T.  Co.  V.  Balch 141 

Reciprocity  Bank,  Matter  of. ...  167 

Roddick  ▼.  Jones 600 

Reed  V.Jones 484 

Reedr.Reed 485 

Reed  ▼.  Upton 356 

Reed  T.  Vaughan 640 

Reelv.Reel 76,78,70,    81 

Rees  T.  Citv  of  WatertowB 167 

Reeves  v.  Dougherty 206 

Reeves  ▼.  Reeves 485 

Reformed  Prot.  Duteh  Gbnroh  t. 

Mott 211 

Regents  ▼.  Williams 630 

Reginav.Bhminj^uun&G.R'yCo  374 
Uegina  t.  London  k  B.  R'y  Co. .  375 

Redna  t.  Musoot 103 

Reichart  V.  Castator 863 

Reidv.  Giffoid 760 

Reigalv.Wood 154 

ReiHy V.Smith 821,  822 

Beinhardt  T.  Hines 85,    86 

Reitz'sApMal 350 

Renf  ro  v.  Heard .....    •  768 

Reno  V.  Hogan  128 

Rensselaer  k  Saratoga  R.  R,  Co., 

Matter  of 267 


Gases  Cimii. 


486 

BazT.AIdetiiMBofHcwBadBor.  197 
JLbm.  v.  DeitMbon. ••••••••••••••  S78 

Rexv.  Bard«tt 180 

T.CnreU 716 

▼.  Hairis 197 

V.  HindmaxBh 184 

Rex  T.  Martin 716 

Sexr.  Rogen 716 

BewT.  Petet 95 

Bflynolds  T.  Adam 80 

Reynolds  ▼.  Stanabmy 831 

R^nolds  ▼.  Toppaa 320 

~       V.  Angtin,. 761 

T.  HariwBon. ...  ••••••••••  158 

T.  State 662 

Rich  T.  Eldred^e 89 

RichT.Lord 782 

Richards  v.  Richaida. 161 

Richardson  t.  Boright 738 

Richardson  T.  Koysa 316 

Richmond  ▼.  Smith 580,  582 

RSrhmond  B.  Go.  v.  His  Louisa 

KCo 629,  630 

Richmond  Tompike  Ca  t.  Van- 

derixiit 379 

Richtmyer  V.  Morm 71 

Richer  T.  Hibbard 528 

Ri<^T.  Dilbhmity 464,  466 

Riddle  V.  I>ixon 320 

RiddleT.  Murphy 339 

Riddle  T.  Vamnm 866,  357 

RidsTT.  Hnlse 167 

Rieben  T.  White 167 

Rigby  ▼.  Great  Western  B'y  Co. 

873,  375 

Riker  T.  Hooper 187 

Riley  T.  OriflSn 527,  529 

Riptoy  T.  Gelsfam 146 

Ritchie  y.  Summers 464,  467,  468 

River  Don  Kav.  Co.  t.  North 

Midland  B'y  Co 374 

Roach  T.  Martin's  Leasee 315 

Robbina  Y.  Eaton 738 

Robbfns  Y.  Windly. 208 

Robert  Edwards,  The 181 

Robert  Fulton, The.232»241, 245,  246 

Roberta  y.  Johnson 685 

Roberts  y.  Opdyke 54 

Roberts  Y.  State 471*  663,  714 

Roberts  y.  Trawiofc 81 

EobertsY.  Wiggin 735 

RobcrteY.Wyatt 127 

Robertson  y.  N.  T.  et&  B.  R.  Gow  687 

Robertaon  Y.  Fad. 512 

Robertson  Y.  StSYens. 208 

Robertson  Y.  Wright 88 

Robinson  Y.  Cooper 466 

Robinson  y.  Hutchinson 81 

Robinson  y.  Kinne 527 

RobmsonY.N.Y.CentB.B  Co.  684 

Robinson  Y.  Bioe. 464 

Robinson  Y.  ^ton. 776 

Eofaiiison  Y.  Wilson  347 


BofatnsoBT.W.P.  Bi.Bi.Ook....  687 
Boefasstar  Oa  Co.  Y.  Huhay . . . .  80t 
BodnraaY.Hubbsn^A&Ss...  US 

BodcwsU  Y.  Nsariqf 167 

Bodgers  y.  Eybus 881 

BodgeiB  Y.  MoClMrIi  AdmVi. . .  829 

Bogers  Y.  Brest 701,  702 

Bogers  y.  Green. 512 

Bogers  Y.  Gvinn 199 

Bogers  Y.Lamb 843 

Bogers  Y.  Pries. ••••..••••« ••••  656 

BaiersY.Wil^ 868 

BohrY.Davia. 678 

Boof  Y.  Stafford 735,  736 

BooseYsH  Y.  SUitiiorps 164 

BoossTeltY.  Mark 96 

Bootes  Y.  Weilford. 278 

Bossy.  LsAn 694 

Boss  Y.  Stephens   ete.  Tnmfx 

Co 680^  684 

BossYBlt  Y.  Fulton 380 

Bossy.  Fuller 696 

Bossy.  Gould 627,  529 

Boss  Y.  GYsrton 118 

Bossy.  Wood 158 

Bothsehild  y.  Americnn  G.  Lis. 

Co .  187 

Bounds  Y.  Dehnrars  efee.  B.  B. 

Co 380 

BouthY.Bonth 284 

Bowan  Y.  Bead 487 

Bowe  Y.  PhilUss 116,  120 

Bowlandson,  Ex  parte 751 

Rowley  y.  Etome 821,  822 

BoxbofTongh  y.  Meisiek 603 

BoyaU  Yrieasee  of  Lide. 176 

Rnan  Y.  Perry. 848,  344 

Bnbejr  Y.  Bamett 315^ 

Bnchisky  y.  Ds  HaYsn 735 

Bncker  Y.  State. 562 

Buesler  Y.  Hannay 96 

Buff  Y.  Butherford 898 

Baffin Y.  Armstrong ...••••...•  118 

Buffners  Y.  Lewis 484 

Buloff  Y.  People 185 

RunyanY.Pnoe 294 

BnsssU  Y.  FUlor 748 

Bnssell  Y.  Hester 730 

Bussell  Y.  Plstor. 141,  142 

BussellY.  Bicharda 70 

BoneU  Y.  Splatsr 603 

BustY.Qott 466 

Butledge  Y.  Moors 85,    86 

ByaU  Y.Bowles 462 

ByderY.  Hulse 167 

Sackett  Y.  Twitting. 747 

Sage  Y.  City  of  Brooklyn 124 

SaSer  y.  Portsmouth  eto.  B.  B. 

Co 573 

SahhmmY.MilU 358 

Sale  Y.  Saunders 466 

Saltus  Y.  Saltus 807 

SameY.  NoelL. 681 


98 


Casss  Citxix 


Bunpion  t.  Willlamwii 648,  650 

Sanborn  ▼.  Kittredge 332 

Sanders  ▼.  Bobertoon. 485 

Sanders  T.  State 160 

Sanderson  v.  Cokermonth  k  W. 

RVCo 375 

Sandford  ▼.  Mayor  eta  of  N.  T.  152 
Sandford  v.  Wiggins  Ferry  Go. . .    67 

Sands  ▼.  Codwise 340 

Sands  v.  Gelston    07 

Sands  V.  Taylor. 357 

Sanford  ▼.  Nickles 270 

Sanger  v.  Eastwood 498 

Santo  V.  State 456 

Sapoote  ▼.  Newport 760 

Sarch  V.  Blackbam 604 

Sasseen  Y.  Clark 692 

Saunders  v.  Camp. 790 

Saunders  t.  Hartwell 511 

Sayaoool  v.  Boughton 332 

Sayage  ▼.  Allen  159 

Savage  ▼.  March « 607 

Sarage  V.  0*Neil 167 

Savery  y.  Spence 770 

Sawyer  y.  Hannibal  etc.  R.  R.  Go. 

681,  682,  685 

Sayward  y.  Sayward 316 

Scaife  y.  Thomson 486 

Scalf  y.  Tompkins 624 

Schall  y.  The  WUliams  Valley  R. 

R.Co 335 

Schiefifelin  y.  Harvey 161 

Schiflf  y.  N.  Y.  etc.  R.  R. . .  .129,  130 

Schmidt  v.  Blood 294 

Schmidt  y.  New  York  N.  M.  F, 

Ins.  Co 187 

Schnell  T.  Toomcr 187 

Scholey  v.  Mnmf ord 152 

Schooler  y.  Asherst  119 

Schopman  v.  B  &  W.  R.  R.....  270 

Schoppert  V.  Gillam 398 

Schultz'v.  Bradley 1?7 

Schultz  V.  Schultz 331,  401,  549 

Schultze  V.  Third  Avenue  R.  R. 

Co 380 

Schusler  y.  State 182 

Schuyler  y.  Hoyle. 160,  161,  164 

Schwartz  y.  Saunders 151 

Schwerin  v.  McKie 137 

Soott  v.  Coleman 788 

Scott  y.  Guernsey 486 

Scott  y.  Home  Ins.  Co 187 

Scott  y.  Onderdonk 524 

Soott  T.  Purcell 505,  506 

Scott  y.  Wells 356,  357 

Scranton  v.  Cbrk 464 

Scudder  y.  Calais  Steamboat  Go.    67 
Scudder  y.  Trenton  Del.  F.  Co. .  376 

Seagoe  v.  Dean 93 

Scale  y.  Soto ^ 485 

Sealyy.  State 312 

Seaman  y.liow 119 

Seamans  T.  Carter 709 

Sean^y.  State 562 


Sears  y*  Miiimmhi*«««*«»«« ••••••  484 

Sebastian's  Estate 316 

Seely  y.  Peters 253 


Selt,The. 

Seneca,  The 

Sergeant  y.^teinberser. 
*     y.  fiwii 


241 
240 
251 
91 


Sergeant's  Heirs  y.  JSwiog 

Sessions  v.  Stoyens 832,  792 

Sevart  V.  Service 606 

Sewall  v.  Fitch 66 

Seward  v.  Jackson 495 

Sexton  y.  The  Troy 241 

Seylar  y.  Carbon 340 

Seymour  y.  Cook 692 

Seymour  y.  Greenwood 379 

S^rmour  y.  Montgomery 65 

Shaddon  V.  Knott 359 

Shafer  y.  Bushnell 705 

Shaffer  y.  Snyder 3^1 

Shailer  y.  Bnmstead 81 

Shane  y.  Kansas  City,  St.  J.  k  C. 

B.R.R.CO 171 

Sharkey  y.  Mansfield 91 

Sharp  v.  Grey 674 

Sharpless  v.  Mayor  of  Phila.450,  638 

Shattuck  V.  Carson 524 

Shattuck  y.  Green 464,  465,  467 

Shaw  V.  Boyd 736 

Shaw  y.  Dennis 436 

Shaw  V.  Lenke 71 

Shaw  V.  Levy 357,  358 

Shaw  V.  Monefelt 400 

Shaw  v.  Woodcock 146,  150 

Shaw  V.  York  k  Midland  R'y  Co.  673 

Sheehan  v.  Hamilton 159 

Shehan  y.  Hampton 731 

Shelton  v.  Cocke 95 

Shelton  V.  Hamilton 347 

Shepard  y.  Bank  of  State. .  .  .88,    89 

Shcpard  y.  Shepard 401 

Shepbard  y.  Shephard 815,  399 

Shepherd  v.  McQuilkin 659 

Sheppard  v.  Earles 460 

Sheriff  y.  Smith 169 

Sherley  v.  Billings 381,  383 

Sherlock  v.  Ailing 684 

Sherman  v.  Champlain  etc.  Co. .  464 

Sherman  y.  Sherman 83,    88 

Sherman  V.  Wells 129 

Sherrard  v.  Nevius 158 

Sherrill  v.  Hopkins  . . .  .607,  611,  612 
Sherwood  v.  Agricultural  Ink  Co. 

64,  151 

Shiells  y.  Blackbume. 249 

Shindler  v.  Houston 867,  359 

Shivers  y.  Wilson 789 

Shoecraft  y.  Bailey 588,  689 

Shorter  v.  People 714 

Shottenkirk  y.  Wheeler. 164 

Shotwell  y.  Hamblin 768 

Shrewsbury  V.  Miller.... 659 

Shubrick  v.  Salmon . .". 60 

Shnbrick  v.  Salmond. 143 

Shurlds  y.  Tilson 821,  322 


GASB3 


^y«<  ii 


ffidajray  V.  Hay 611 

Sidirell  T.  RfBiia 119 

StoonniflT  T.  Dmry 05 

Sifov.HopkiiM 464 

SUliniMi  T.  Hudaon  Biw  Bridn 

Co. 230 

Simmans  t.  Johoaoit 709 

ffimpio  T.  London  k  K  'R*j  Co. .  S75 

Sinipaon  T.  Blount. 176 

Simpaon  r.  Geddos 06 

Simmon  t.  Iaw 190 

Stmonds  r.  Strong 321 

Simon  T.  Barber 400 

T.  Manyatt 462.  463 

T.  Stilwea 657 

SiniiaQ  T.  London  oto.  Omnibas 

Co. 685 

Singer  M^  Co.  Y.  Holdfodt 381 

Sir  BaAham*s  Gkse 725 

Sir  Thomaa Holt  T.  Astcprigg....  724 

SiieonT.  Conger 80 

Six  Carpenters  Caw 780 

Skinner  t.  Crawford. 627 

Skinner  V.  Dodge 306 

Skinner  t.  London  elo.  B*y  Go. .  684 

Slamm  v.  Pomery 607 

Slaoghter  ▼.  Conningham. 320 

Slaaghter  v.  State 560 

Slanghter-boase  Caiee 240,  639 

Sloan  ▼.  Gilbert 187 

Sloan  ▼.  Hnbbard 270 

Smalley  V.  Doni^ty 120 

Smith  ▼.  Blatchford 332,  621 

Smith  V.  Braine 697,  598 

Smith  V.  Bri^cga. 51 

Smith  V.  Brittam 665 

Smith  V.  Bromley 144,  145 

Smith  ▼.  Buchanan. 613 

Smith  V.  aarke 400 

Smith  V.  Commonwealth. 185 

Smith  V.  Craig. 856 

Smith  V.  Edwarda 67 

Smith  v.  Evana 735,  736 

Smith  T.  Ewer 206 

Smith  T.  Fenner 74,77,  78 

Smith  v.FowIe 789 

Smith  T.  Olenn  Falls  Ins.  Co....    93 

South  V.  Hathom 118 

Smith  V.Hayes 204 

Smith  T.Lewis 153 

Smith  T.  Manrin 88,    94 

Smith  T.McIver 245 

Smith  T.Mead 607,  608 

Smith  T.  Morrison 107 

Smith  Y.Morrow 529 

^mithY.Neale 468 

Smith  T.  Nelson. 158 

Smith  Y.  N.  T.  Gsnt.  B.  B 129 

Smith  Y.  Pelah 604 

Smith  Y.  Bathbnn. 120 

^mithY.  Byan 101,  102 

Smith  Y.  State 183 

teith  Y.  State  of  Maryland.....  239 


Snith ▼.  TliniMim  ^^...jn.  766 

Smith  Y.  Wood. 029 

Smith  Y.Zanar 775 

Smith,  Doe  ex  den.,  y.  Tapper..  549 

Smitheal  Y.  Orar 647 

Smithwiok  Y.  Euison 70 

Smoot  Y.  BdaYa. 621,  6n,  775 

Smyth  Y.Craig 357 

Snead  Y.  Gdeman 520 

Snelgar  Y.  Henston 422 

SnellY.  Snow 727 

Snider  Y.Croy 780 

Snyder  y.  Snyder 164,  166 

Snyder  y.  Wanen 747 

Society  Y.  Morris' Oaaal  06 376 

Somers  Y.  O'Dooohne 463 

Sender's  Appeal 360 

Sonthcote's  Case 127 

Sonthwick  Y.  Soathwiok 89 

Sonth  k  North  Alabama  B.B.  Go. 

Y.  McLendon 388 

Spangler  y.  Springer 88 

Sparka  Y.  Messiek 466^  467 

SparkaY.  Pico 539 

Spear  Y.  Carter 331 

Spencer  y.  London  k  B.  B^  Co..  375 

Spragne  y.  Birofaard 56,  832 

Spragne  y.  Iiebuid 539 

SpmiU  Y.  Moore 815,  401 

SqaibY.  Wager 161 

Squire  y.  N.  Y.  Cent.  B.  B.  Co.  574 

Stack  Y.  Williama 213 

Stafford  Y.  King 521 

Stafford  Y.  Richardson 97 

Stainer  Y.  Tyaen 650 

Stalker  Y.  McDonald 601 

Stamper  y.  Johnson 502 

Stanley  Y.  Robinson 405 

SUnley  Y.  Stanley 634 

Stanton  Y.  Leland 592 

State  Y.  Baltimora  efeo.  B.  B.  Co. 

406,  686 

State  Y.  Belden 563 

State  Y.  Benner 186 

State  V.  Boaworth 634 

State  Y.  Borton 694 

SUte  Y.  CardweU 172 

State  Y.  Chandler 347 

State  Y.  Coleman 182 

State  Y.  Commissioners  etc.. ..  .  294 

State  Y.  Cooper 312 

SUteY.  Crank 562 

SUtoY.Craton 713 

State  Y.  Gennan 185 

State  Y.  Goldsboroogfa 

Tl79, 180, 182,  187 

State  Y.GuUd 562 

State  Y.Gumey 639 

State  Y.  Hardie 195 

State  Y.  Hayden 182 

State  Y.  Hildreth ..... .312,  562,  688 

State  Y.  Holcombe 189 

State  Y.  Homes 847,  471 

State  Y.  Latham 777 


40 


Gases  Gnxa 


SteteT.MoCUl 717 

Btatev.  MoKee S12,  471 

State  V.  Morton 780 

State  ▼.  North  Lookiaiia  eta  B. 

RCo 468 

State  V.  Nonrell 812 

State  ▼.  O'Neal 172 

State  T.  Phelps C62 

State  Y.  Pk«0oott 656 

Stater.  Beld 639 

State  ▼.  Beigart •  •  »«.• .  •  •  •  688 

State  V.  Shelton 194 

State  v.  Shields 662 

Statey.  Soper 562 

Stater.  Swift 456 

State  V.  Taylor 182 

Stater.  Weed 832 

Stater.  Welpton 527 

Stater.  Weston 469 

State  r.  WUliams 184 

Stater.  McNally 832 

State  of  Michigan  r.  Phoniz  BIl  158 

State  of  N.  J.  r.  Wilson 629 

State  of  Pennsylvania  r.  W.  ft  B. 

Bridge  Co 239,  240 

State  Tonnage  Tax  Cases 240 

Steamboat   Cheeseman    r.    Two 

Ferry-boats 240 

Steamboat  Co.  r.  Chase 

236,  241,  242,  243,  244 

Steamboat  Co.  r.Liringston. 238,  240 
Steamboat  New  World  r.  King.  684 
Steamboat  Snltanar.  Chapman..  129 
Steamboat  Thomas  Jefferson .... 

217,218,  210 

Steamboat  Warerly  r.  Clements.  221 

Steamer  Henrietta,  The 241 

Steamer  St.  Lawrence 237 

Steam  Propeller  Thomas  Swan. .  240 

Stebbins  r.  HaU 141 

Stebbina  r.  Niles 85,    88 

Steele  r.  Bates 119 

Stegall  T.  Hnff. 177 

Steiger  r.  Erie  By 129 

Stein  r.  Borden 764,  765 

Steinweg  r.  Erie  Bailway 130 

Stenton  r.  Jerome 86,  88,  152 

Stephen  Allen 240 

Stephens  r.  Sherrod 602,  61 1 

Stephens  r.  State 562 

Stephen's  Ezecator^  Apml. ...  869 
Sterens  t.  BaflUo  ft  N.  Y.  City 

K.R. 70,    71 

Stevens  r.    European   etc    BV 

Co. 682 

Sterens  r.  Mayor  etc  of  N.  T....  159 

Sterens  r.  Osman 423 

Sterens  r.  Piatterson 399 

Sterens  r.  State 639 

Sterens  r.  Thompson 483 

Stevens  r.  Yancle ve 75,    77 

Stevenson  r.  McBeary 688 

Steward  r.  Bishop 725 

Stswart  V.  Kearney 646 


Stewart  v.  Maekev. . 

Stewart  v.  Nnckou. 767,  706 

Stewart  r.  Potomao  Fsiry  Oc 

184,238,  243 

Stewart  r.  Smith IH 

Stewart  r.  State 714 

Stewart's  AppeaL 376 

St.  Felix  V.Rankin 486 

StillweU  V.  Mayor  etc  of  N.  Y...  124 

Stilwel  V.  Carpenter. 15S 

St.  Jago  de  Cuba,  The 241 

St.  Joseph  Township  r.  Rogers. .  456 
St.  Louis  University  r.  McCunc.  627 

St.  Martin  r.  Desnoyer 689 

St.  Mary's  Churoh,  Case  of 461 

Stocking  v.  Hunt 108 

Stockton  V.  Frey.  .671,  674,  682,  688 
Stokes  V.  Saltonstall 

325,670,682,683,684 

Stone  r.  Pointer 466 

Stone  V.  State 656,  667 

Storer  v.  Great  Western  R'y  Co.  873 

Storey  v.  Salomon 136 

Storm  V.  Smith 464,  466 

Stottghton  V.  Swan 372 

Stoutv.  McAdams 688 

Storall  r.  Fsrmers'  ft  Merofaants' 

Bank 340 

Stow  r.  Tiflft 608,  509 

Strader  r.  Qoff 659 

Strain  r.  Wright 738 

Stranse  r.  Floyd 658 

Strawbridge  r.  Robinson 372 

Streubel  r.  Milwaukee  ft  Miss.  R 

R 112 

Strickland  r.  Parker 70 

Strong  r.  Barnes 511 

Stroup  r.  Sulliran 168,  332 

Stryker  r.  Cassidy 91 

Stuart  r.  Pklnier 167 

Studwell  r.  Ritoh 253 

Stump  r.  Findla]^ 316 

Stni^es  r.  Crowningshield..l07,  609 

Stur^  r.  Ewing 167 

Sublett  r.  McKmney 639 

Sngart  v.  Carter 726 

Sullivan  v.  Philadelphia  etc  R.  R 

Co 68S 

Sullivan  v.  Toole 70 

Sununer  v.  Hamlet 367 

Sumner  V.  State .188,  187 

Sumner  v.  Williams 664 

Sunbolf  V.  Alford 680 

Sunderland  v.  Westoott 130 

Surp.  ft  Rem.  of  the  Edith 241 

SutcUfTe  V.  State 312 

Sutherland  v.  DeLson •  649 

Sutton  V.  Campbell 66 

Sutton  V.  Sutton. 647 

Suydam  v.  Moore 636 

Swafford  V.  Whipple 471 

Swanv.  Scott 362 

Swan  V.  Swan 486 

Swan  V.  Wil 


Oases  Gtosk 


41 


T.  Vukm 407*  468 

8fPMt  T.  jMXMte 7H7M»  758 

SwettT.  Ohi^nHi 118 

SwiffeT.  awof  PongUumlt...  125 

Swift  Y.  Hofdridge 606 

Swift  T.  TyiOB.^ W^  600 

Bwinofly  T.  DoroHui 775 

&rdiior  T.  Robarti 506 

^Iph 940 

^▼wlar  ▼.  DowMT, 119 

Tbdlock  Y.  EoqIm 560 

Taft  &  Go.  Y.  Pike 735 

Tut  Y.  N.  T.  L.  Iniu  Go... 151 

TUbotY.  DoDt^ 436 

lUoott  Y.  Townihipof  FiaeOrof* 

456, 

TUiaf  eno  T.  LuM. ^ 789 

T)uiim  Y.  Kellogg. ttZ7«  528 

Tuletoo  Y.  Johnflon 820 

TMMy  V.  Clmreh 86 

Tkte  Y.  ShaoklefaRl 659 

Tate  Y.  Sootherd 834 

Tatem  Y.  GhApUn 609 

IWylor  Y.  Beldwbi. 483^  484 

Tkylor  Y.  Bnmoh 119 

Tkylor  Y.  Canrl 241,  244 

Taylor  Y.  Fowler. ?47 

Taylor  Y.  Hudgine. 511,  539 

Taylor  Y.  Porter 163,  166 

Tkylor  Y.  Townaend 70 

Taylor  Wm  Gaae 80 

TeeffY.  Hewitt ^69^70,  744 

Teal  Y.  Aaty 86 

TealY.FdtoQ 246 

Tear  T.  Hatbewa. 524 

Teaadale  Y.  BandatMO. 487 

Tebbetta  Y.  Pickering 119 

Teeee  y.  Huntingdon 662 

Telegraph  Co.  Y.  Oriiwold 294 

Tennery  Y.  Pippinger 681,  682 

Tenney  Y.  Clement. 726 

Terry  Y.  Baflmgtcn 422 

Terry  Y.  Si<Uee 85,    88 

Thacher  Y.  Dinamora 488 

Thackeimy  Y.  The  Funer 240 

TharpY.  Tharp 88 

Thatcher  Y.  PoweU. 789 

Thayer  Y.  Boyle 187 

Thayer  Y.  Mitfoh 141 

Thayer'a Greditora  y.  SiMnff....  466 

Thickatnn  y.  Howard 578^  588 

ThomaaY.  Babb 527 

Thomaa  Y.  Dering 391 

ThonuM  Y.  Hawkea • 92 

Thomaa  Y.  State 545 

Thomaa  Y.Winohwtar 327 

Thompson  y.  Boatwiek 484 

Thompeon  Y.  GhnnuBey 502 

Thompaon  y.  Comatook 529 

Thompeon  y.  Fiaher 94 

Thompeon  y.  Lacy 587 

ThoBipaon  Y.  MawUnaey 776 

nompaoB  Y.  Peter • 97 


Y, 

Thon^aoB  y.  StwunboatJiHw  D. 

Morton 221,  284 

Thompeon'aLaaaeeY.  Gum.....  296 

ThomdikeY.  DeWoU 299 

Thornton  y.  Bimki^ 024,  647 

Thorp  Y.  Keoknk  Goal  Gow 141 

llinrmond  y.  Sandera 87 

ThniatOB  Y.  DicUnooa 488 

Thnraton  Y.  BpiHU 404 

Thnrtell  Y.  Beaumont 187 

Tiohbnme  Y.White..  ..r. 822 

Tiokel  Y.  Short 88 

Ticknor  Y.  Harria 218 

TimmonaY.Cent  OU0B.B.G0W  270 

Tingl^  Y.  Cntler 488 

Tinker  Y.  Van  Dyke 112 

Tippin  Y.  Petty 763 

Toland  Y.  Spnigne.82,  84,  89p  80,    94 

Toledo  Bank  Y.Bond 629 

Toledo  eto.  K.  R.  Go.  Y.  Bigga..  684 
Toledo  etc.  B^  B.  Ga  Y.  Hannon. 

381,  384 

Toledo  etc  B^y  y.  Gity  of  Jaok- 

aonYille 639 

Toledo  etc.  By  Go.  Y.Biannagaa.  687 

T61enY.T6len 705 

Tome  Y.  Fonr  Griba  ol  LunW..  239 

Tomkiea  y.  Beynolda 756 

Tompkina  y.  Cflay  Stroet  Hill  R. 

B.  Go 723 

Tompkina  Y.  Dndl^f 66,  151 

Tompkina  y.  Gardner 97»    99 

Tomlinaon  Y.  Brittlabank 725 

Tonawanda  B.  B.  Go.  y.  Monger. 

254,25^0,  777 

Towera  y.  Oabome 56 

Towle  Y.  DroaMT 735 

Town  Y.  Keedham 486 

Townea  Y.  Bixehett 88,    89 

Town  of  FiBhkiU  y.  FiahkiU  eto. 

PlankBoadGo 123 

Town  of  Galen  Y.Glyde  etc.  Phmk 

BoadGo 123 

Town  of  QaUatin  y.  Loneka 123 

Town  of  Guilford  y.  SnperviMra 

of  Chenango  Go 123 

Town  of  Ldce  View  y.  Booahill 

Cemetery  Go 639 

Towna  Y.  Biddle 748 

Towaley  Y.  Deniaoa 88,    91 

Towaon  y.  The  HaYie  de  Oraoe 

Bank 582,586,  589 

IVanap.  Co.  y.  Downer 680^681 

IVapnell  Y.  Biohardaon 329 

Traun  Y.  li^ttiek 784 

IVnYera  y.  Kanaaa  Paoiflo  BV. . . 

381,385,  387 

TreaaY.Tmitt 88 

TredweU  Y.  Beddiok 176 

IHggY.  Faris 467 

Trim  Y.  WiUottghlqr. US 

Trimble  V.  Turner 340 

Tkotter  Y.  Hnghea •.  141 


42 


CisEs  Cited. 


nmudala.  Got.  eto.,  ▼.  PhilliM.  468 
IVow  v.  TIm  VemumtGnt.  B.  jEL 

Go 266,  266,  270,  827»  631 

Tirowbridge ▼.  Didier ^....  119 

Trowbridge  v.  MeaiiB. 209 

Iceman  ▼.  Hurst 66,    87 

TrambeU  ▼.  Gibbons 815 

Tnissy.Old 644 

Trustees  of    Baltimore   Aimiul 

Ckmf ereooe  ▼.  Sobell 709 

Tmsteesof  K.  T.  Proi.Bpls.Pab- 

tto  8ohool,*In  re 112 

T^on  Y.  Whitmarsh. 742 

Tucker  ▼.  Baldwin 689 

Tnoker  v.  Barrow 91 

Tacker  ▼.  Harris 791 

Tacker  ▼.  Tacker 436 

Tofts  y.  Glintock 832 

Tag  Oconto 239 

Tagwell  y.  Heyman 655 

Tamer  ▼.  Biasell 751 

Tamer  y .  North  Beach  etc  K.  &. 

Co 383 

Tamery.  WilUns 767 

Tameyy.State 347 

Tamipseed  y.  Cnnningham 506 

Tampike  Co.  y.  R'y  06 634 

Tatiley.  Jackson 821,  334 

Twiggy.  Paris 464 

TwitSielly.  Shaw 332 

Twyne'sCase 495,  496 

l^ng  y.  Commerxnal  Warehoase 

Co 119 

Tynsy.  DeJamette 748 

Unangst's  Appeal *^.  876 

Underwood  y.  Oreen 113 

Unknown  Heirs  y.  Kimball 205 

Union  Bank  y.  Meeker 136 

Union  Bonk  y.  Knapp 86,    94 

Union  Bank  y.  Bmerson 744 

Union  Nat  Bank  y.  Bassett  ....  119 
Uniyersities   of   Oxford   etc  y. 

Richardson 375 

Upman  y.  Second  Ward  Bank.. .  709 

Upson  y.  Hom 331 

Utlcy  y.  Donaldson 468 

United  States  y.  Beyans 238 

United  States  y.  Coles 182 

United  States  y.  Dewitt 240 

United  States  T.  Douglass 182 

United  States  y.  Oibert 184 

United  States  y.  Hughes 701 

United  States  y.  Martin 182 

United  States  T.  McGlue 643 

United  SUtea  y.  New  Bedford 

Bridge 

United  States  y.  Steam  Foet/- 

boat 

United  States  y.  Steam  Ferry- 
boat Wm.  Pope 239,  240 

United  States  y.  Steamboat  Mor- 
rison  238,  239,  240 

Unitsd Statss T  ThaMoUie  ....  240 


United  States  BMik  ▼•  FknkM' 
Bank 

United  States  Hxpnm  Oc  y. 
Baffhman •.  ••••••• 


VaUy.  Knapp ••  166 

Valette  y.  Mason • 


Vallance  y.  Bausch 167 

Valpy  y.  Giboon 867 

Van  Amrige  y.  Peabody 806 

Van  Bauxnbach  y.  Bade 112 

Van  Brunt  y.  Pike 859 

Vanbuskirk  y.  Hartford  Ins.  Co.  619 

Van  Buskirk  y.  Roberts 151 

Vance  y.  Thro^onortoii 689 

Vanderburgh  y.  Hull 751 

Vanderplank  y.  Miller 720 

Vandersmissen,  Bz  narte 896 

Vandeyoort  y.  Goula 137 

Vandine  y.  Burpee 778 

Van  Epps  y.  Van  Densen 161 

Van  Hem  y.  Taylor 294,  723 

Van  Keuren  y.  rarmelee 

95,98,99,100,101,102,  280 

Van  Metre  y.  MitcheU 821 

Van  Ness  y.  Pacard 744 

Van  Rensselaer  y.  Jewett 136 

Van  Rensselaer  y.  Snyder 112 

Vann  y.  Harsett 766 

Vaughan  y.  Menloye 264 

Vaughn  y.  Gardner 656 

Vealey.  Hassan 276 

VennaU  y.  Gamer 721 

Vere  y.  Lord  Cawdor 

2S2g  268;  269,  604 

Vemon  y.  City  of  DnUin 760 

Vernon  y.  The  Manhattan  Co. .  • 

821,822,  828 

Verplank  y.  Story 495 

Verrier  y.  Guillon 88,    94 

Very  y.  McHenry 611 

Vibbard  y.  Johnson 464 

Vicksburg  etc  R.  R.  Cc  y.  P&t- 

ton 881,  884 

ViUard  y.  Robert 474 

Volkeningy.  DeGraef 86 

Volunteer,  The 239 

Voorhees  y.  Earl 666 

Voorheeey.  U.  S.  Bank 647 

Voorhisy.  Voorhis 80 

Vosey.  Morton 169,  660 

Vrooman  y.  Turner 141 

Wabash  etc  RV  Oc  t.  Beotor. . 

881,  889 

Wadleigh  y.  Gilmaa. 639 

Wadhurst  y.  Damme 604 

Walbmnn  y.  Ballan 628 

Waldron  y.  Rensselaer  aiid  Saia- 

togaKCo 637 

Wales  y.  Sherwood. 142 

Walker  y.  Blackwell 24S 

Walker  y.  Erie R.  &. Go.. ..680,  684 
Walker  y.  Forbes • 771 


GiflB  GmDi 


WalkcTT.HaBntan.. ••  780 

Walkw  T.  Ooeaa  BMik 118 

Walkar  V.  Shonnui 8^90^  744 

Walker  T.  Walker 776 

Wallaoa  ▼.  Bneda. 866 

Wallace  v.  Hannnm 296 

Wallace  ▼.  HoUt 832 

Wallace  ▼.  Merrimaok  elo.  Go. . .  879 

WaUing  ▼.  Kinnaid 666 

WaUing  V.  Fdtter 689 

Wallia  ▼.  Randall 102 

Walah  Y.  Oilmar 118 

Walter  T.  Bacon 108 

Walter  T.  Greenwood.... 484 

Walter  ▼.  Lockwood 169 

Waiting  ▼.  Kinnard 891 

Walton  ▼.  Beafler 620 

Wanmaker  y.  VaaBoekirk 490 

Ward  Y.  Farrelly. 88»    90 

Ward  Y.  Green 320 

Wftrd  Y.  Morriaon 618»  619 

Wftcd  Y.  N.  T.  Gent.  R.  B.  Go. .  151 

WardY.Shaw 866 

Wardrobe  Y.  Gal  Staoe  Gou 385 

Ware  y.  Baraftraria  ft  L.  Oual 

Go 827,879.880,  889 

Ware  y.  Dodley 86 

Ware  y.  Gay 682 

Ware  Y.  Ware'a  AdmV 647 

Waring  y.  Gierke.  .217, 218,  219,  242 

Warner  y.  MyridL 93 

Warren  Y.  Bean 65 

Warren  y.  State 646 

Warren  etc.  R'y  Go.  y.  Glarion 

Land  Go 376 

WarrenderY.  Warrender 703 

Waahington  N.  Ina.  Go.  y.  WDaon  187 

WatersY.Wing 687 

WatkinaY.  Peck 322 

Watkins  Y.  Wallace 187 

Watkinaon  y.  Bank  of  Pemi.S21,  322 

WataonY.GebotBaok 600 

WataonY.Oregg 334 

WatoonY.Loop 606 

Wataon  Y.  MoGarthy 727 

Watt  Y.  Watt 161 

WaymanY.HiUiard 86 

Wayne  Y.  Sherwood 124 

WeaYer  y.  Alabama  Goal  Idling 

Go. 776 

Weaver  Y.  Jonea 782 

Webb  Y.  Mallard. 660 

Webb  Y.  Mancbeater  ft  L.  BV 

Go 874 

Webb  Y.  PorUaad  Mfg.  Go.  .761,  763 

WebbY.  State 645 

Webater  Y.  Bond. 160 

WebeterY.  Mann 612 

Webater  Y.  ^elly 70 

Weokerly  y.  The  lAthenn  Gon- 

gregiation 846 

WeedV.Beebee 788 

WeedY.  PtaiaiiiaB.Gow 879 


288 


294 
801 


Weeki ▼.  HuL ••••••••««««••'••  747 

Wehle  Y.  HaYOaad 187 

WeatY.  Tbonitn 766 

WeatcottY.I^n 128 

Weatem  SaYhigFaad  Ga  y.  Phfl- 

adelphia. 874 

Weatem  Traniportatfon  Goy  ▼• 

KewhaU 129 

WeatoD  Y.  Dorr 8Si 

WeatonY.  OraTlin 187 

Weat  BlYcr  Brid^Go.  y.  Diz. . .  638 

WetmoreY.  Tracf 791 

Wetmore  y.  Mell. 776 

Wetcell  Y.  Boaaard. 97 

Welch  V.  JngenbeioMr 187 

Weller  Y.  Smeaton 760 

WelleaY.  N.  T.GantB.B.....  129 

WellaY.  Head 

Wella  Y.  Steam  NaYigitlon  Go . . 

127, 

Welah  Y.  German-Amorioan  Bank 
Welah  Y.  Pittabugh  elo.  B.  B. 

Go 

Wentwortfa  Y.  Day 800^ 

WeniY.Stato 546 

Wharton  y.  Andereon 91 

Wheeler  y.  Gonneotieat  M.  L.  L 

Go. 151 

Wheeler  Y.  Wheeler 729 

WheelerY.Winn 621 

WheelookY.  Doolittle 102 

^Vhipple  Y.  Thayer 366 

Whitaker  Y.  Eaatwiok 464 

Whitaker  Y.  Whitaker 161 

Whitohnroh  Y.  BcYia. 201,  202 

Whitcomb  y.  Whitney 

67,90,96,98,  279 

White  Y.Banka 748,  749 

White  Y.  Branch 737 

White  Y.  Gampbell 88,  94 

White  Y.  Goataworth 166 

White  Y.  Gomstook 187 

White  Y.  FlaniUgain 376 

WhiteY.  Hale 96,  102 

White  Y.Morritt 549 

White  Y.  Miller. 139 

White  Y.  NiohoUa 726 

White  Y.  ShntUeworth 366 

White  Y.  Trotter 168,  340 

WhiteY.  Wager. 167 

WhiteY.  Welah 359 

WhiteY.  White. 166 

White  Y.  Whiting. 87 

White  RiYcr  Turnpike  Go.  Y.Ver- 
mont Gent.  B.  Go 634 

White'a  Bank  of  Boflalo  Y.Ward.  102 

White'a  Bank  of  Bnffido  Y.Ware.  102 

Whitehooae  Y.  Froat 866 

Whiteman  Y.  Gaatleberry 610 

Whitemore  y.  Haroldeon 091 

Whiteaidea  y.  Thnrkill 128,  678 

Whitfield  Y.  Bogera 876 

Whiting  Y.  Geaxty 141 

Whiting  Y.  Sheboygan  eta  BtB.  688 


44 


Oases  Cimx 


r 

Whitmw  T.  WnUi 524 

Whittlawy  T.  Delaaey 158 

WibertY.NewTarketo.B.B.00.  162 

Wiggins  ▼.  Burkham 88,  89»    91 

Wi^tmaa  v.  Wettsni  IL  &  F. 

Ins.  Go. 187 

Wilooz  ▼.  Jaekwrn  ex  dem.  Mo- 

Connell 700 

Wilds  ▼.  JenkiiM 83 

Wilkes  V.  Ferris 866 

Wilkier.  Bolster 681.  685 

Wilkie  Y.  Roosevelt 118 

Wilkins  ▼.  Bromheadt 866 

Wilkinson  ▼.  Lelaod 166 

WiUard  T.  Beinhud 587 

William  t.  Holmes 485 

William  and  KmmftHn<%  TIm.  . . .  241 

Williams  ▼.  Allen 850 

Williams  ▼.  Bachanaa.  •  • 176 

Williams  ▼.  Bdwaids 490 

Williams  Y.  Field 518 

Williams  ▼.  0«sso 577 

WUliams  V.  Jackman 66 

Williams  r.  Little 509,  600 

Williams  ▼.  Merle 807 

Williams  ▼.  Michigan  Gent.  B.  R. 

Co 870,  827 

Williams  V.  Moor 88 

WiHiams  ▼.  Otev 647 

Williams  ▼.  Smith ..  600 

Williams  T.  State 182;  185 

Williams  ▼.  Tnrner 470 

Williams  t.  YanderbUt 152 

Williams  ▼.  Wallace 177 

Williams  Y.  Williams 874 

Williams'  Adm'z  t.  Williams  ...  864 

Williamson  ▼.  Sammons 464 

WiUisv.Hill 102 

Willis  V.  Jemegan. ..  .82,  88,  85,    88 

Wilson  ▼.  Abrahams 566,  557 

Wilaonr.Amy 207 

Wilson  T.  Catchings 534 

Wilson  ▼.  Forder 281 

Wilson  ▼.  Henderson 808 

Wilson  ▼.  Stoxe 867 

Wilson  ▼.  Stripe 560 

Wilson  ▼.  Torbert 102,  281 

Wilson  ▼.  Wheeling 389 

Wilsons  ▼.  Hamilton 294 

Wilton  V.  Tazewell 485 

Winans  T.  Christy 834 

Winch  T.  Birkenhead 617 

Winchell  V.  Bowman. 102 

Winchell  r.  Hicks 101,  102 

Winchester  ▼.  Beardin 831 

Winobrener  ▼.  Johnson. 113 

Wineland  ▼.  Coonoe 506 

Wing  V.Gray 70 

Winne,  Matter  of 167 

Winslow  V.  Merchants'  Ins.  Co..  744 

Winstead  v.  Reid 65,  478 

Winter  v.  Jones 456 

Wintermnte  v.  Clark. 590 

Wintermnte  v.  Montgomery ....  296 


Wisev.  FbslkwaftI •• 

Withers  V.  North  KmI  a.  Oo. . .  684 

Withers  T.Thompsoii 485 

Witmer  T.  Sohlaitor. 722 

Wittv.  Bnssey 831 

Wittiok  V.  Tnwn 781,  785 

Wolfe  V.  Howes 54 

Womraih  ▼•  MoOnmiok 316 

Woodv.BodweU 692 

Woodv.  Ganlt 94 

Wood  V.  Qoodridge 652 

Woodv.  Long 54 

Woodv.  Wood 119,  485 

Wooden  v.  Austin 129,  151 

Woodman  v.  Hubbard 567 

Woodruff  V.  Whittdsey 843 

Woods  V.  Devin 409 

Woods  V.  Rnssell 

58,  59,  60,  61,  62;  63|    66 

Woodworth  v.  Bank  of  Amerioa.  308 

Woodworth  V.  Downer 280 

Woolfv.Beaid 721 

Worcester  v.  Lord. 527,  528 

Worcester  v.  Propriston  of  Ouial 

Bridge 679 

Word  V.  Gavin 467 

Worden  v.  Nourse 621 

Workman  v.  Lis.  Go 717 

Wormly  v.  Lowry 601 

Wort  V.  Jenkins 777 

Worth  V.  Edmonds 152 

Worthington  V.  MoBobsrti 746 

Worthy  v.  Johnson 466,  520 

Wrightv.Goer 119 

Wright  V.  O'Brien. 66,    67 

Wright  V.  Ramscot 777 

Wright  V.  Wilooz. 879 

Wright  V.  Wright 466 

Wroth  V.  Norton 187 

Wyatt  V.  Hudson 95 

Wyattv.  Ribb 488 

Wyld  V.  Pickf ord 127 

Wynehamer  V.  Peopto 112 

Wynnv.AUard 260 

Wynne's  Lessee  v.  Wymia.. .  112,  166 


Taney  v.  Batte. 486, 

Yarmouth  v.  North  Yamouth. . 

467, 

Yates  V.  Bond 

Yates  V.  Houston 

Yeargain  v.  Johnston. 

Yeomans  v.  Contra  Ooata  Steam 

Nav.Co 681, 

Yerkesv.  Keokuk  etc  F^Mkot  Co. 
York  V.  Grindstone 

576,677,578, 

York,  Newcastle  ft  BerwidL  R'y 

Co.  V.  Crisp 

Yorke  v.  Grenaugh 

Yorke  V.  Ver  Planck 

Young  V.  Austin 

Young  V.  Brander 

Young  V,  Gammel •••••« 


487 


466 

547 
118 

684 
684 

588 

671 
588 

136 


Gases  Cixedii 


45 


▼.  Hm n»  M 

YmmgY.  Kti§fiJtf 3M 

TooBg  T.  TemnMoB S29 

Yoong  T.  Tibmtti.. 922 

Toonger.  Kinnej 682 


&btkkto  ▼.  SaUk. 


ZftoharYT.  Am8 688 

Zhm  V.  The  PmUmI. 241 

Zdgkr*sAnM«l 888 

Zemp  ▼.  R.  K.  Go 681 

ZcmohT.  FuMM.... 782 

Zbiup  T.  Howlaad. 180 

— --T.PInoM ..  la 


Amemoan  Decisions. 

VOL.LXIL 


CASES 


nr  Tn 


COURT  OF  APPEAI^ 


ov 


NEW   YOBK, 


Oaklet  v.  Mobtok. 

[U  Nsw  TOftK  (1  KSBVAV),  9S.] 
PlBlOBMAirCB   OT   CONDITION    PRSCBDENT   TO  RfORT   Of  AtmOK   MOfff   M 

Stbkslt  Pbotkd,  to  entitle  plaintiff  to  reoover. 
OoiiT&ACT  FO&  PuBCBAaB  OP  BuTTSB  between  O.  and  M.  provided  ttaft  0. 
would  keep  twenty  oowe  daring  the  ensuing  aeeaoQ,  mad  would  aell  the 
batter  from  their  milk  to  M.  at  a  fixed  price,  which  li.  agreed  to  pay. 
O.  provided  the  twenty  cowe,  bat  towards  the  close  of  the  season  sold 
five,  whose  milk  failed,  and  did  not  supply  their  places.  ITM,  that  M. 
was  not  bonnd  to  take  and  pay  for  the  batter  made.  Keeping  twen^ 
cows  daring  the  season  was  a  condition  precedent. 

Appeal  from  an  order  granting  a  new  trial.  Februaxy  26, 
1846,  the  parties,  in  anticipation  of  the  coming  daiiying  Beason, 
entered  into  an  agreement  reciting  that  Gktbriel  C.  OaJdey  had 
bought  a  certain  farm,  and  providing  that  ''he  doth  hereby 
agree  with  the  said  Lewis  Morton,  that  he  will  keep  twenty  cows 
or  more  daring  the  coming  season,  for  the  dairying  business, 
and  that  he  will  sell  the  butter  made  from  said  daiiy  of  cows  to 
the  said  Lewis  Morton,  well  packed  in  good  firkins,  for  the  sum 
of  fifteen  cents  per  pound,  to  be  delivered  to  the  said  Lewis 
Morton  at  the  village  of  Chenango  Forks,  on  the  canal,  in  the 
counfy  of  Chenango,  at  such  time  or  times  as  the  said  Lewis 
Morton  shall  request,  between  the  first  day  of  October  and  the 
first  day  of  December  next,  the  batter  to  be  of  a  good  prime 
quality,  and  it  shall  be  submitted  to" — ^a  person  named  as  in- 
spector. Upon  Morton's  part  the  agreement  provided:  "And 
the  said  Lewis  Morton  agrees  with  the  said  Gabriel  L.  Oakley 
that  he  will  pay  the  said  Gabriel  L.  Oakley  the  sum  as  above 

Am.  Dio  Vol.  LXII*4  40 


60  Oaklet  u  Morton.  [New  York, 

■tatod  tor  his  batter  as  abore  stated,  to  be  deliyered  as  before 
mentioned,  agreeing  to  fulfill  the  aboTe  agreement  in  all  re- 
spects, and  the  payment  or  payments  to  be  made  by  him  at  the 
time  of  reoeiying  the  batter."  Towards  the  end  of  the  season, 
the  milk  of  some  of  the  cows  failing,  Oakley  sold  at  one  time 
two,  at  another  three,  for  that  reason,  and  did  not  replace  thenu 
When  the  butter  was  completed  and  ready  for  deliyeiy,  Morton 
refused  to  take  and  pay  for  it;  and  this  nxstion  was  brought  for 
damages.  The  judge  on  the  trial  granted  a  nonsuit.  The  so* 
preme  court  reyersed  this  and  granted  a  new  trial,  holding  that 
the  contract  had  been  substantiaUy  complied  with;  the  parties 
must  be  supposed  to  haye  anticipated  such  natural  and  common 
oontingendee  as  the  drying  of  some  of  the  cows.  The  defend- 
ant appealed. 

SamiLel  Bearddey^  for  the  appellant. 

Horaiiio  Ballard,  for  the  respondent. 

By  Oourt,  Allbh,  J.  The  right  of  action  of  the  plaintiff 
depended  upon  the  performance  by  him  of  a  condition  prece- 
dent, to  wit,  the  keeping  of  at  least  twenty  cows  for  the  dairying 
business  during  the  season  of  1846,  and  deliyering  the  butter 
made  therefrom  to  the  defendant  at  the  time  and  place  speci- 
fied in  the  agreement.  The  plaintiff  was  bound  to  ayer  and 
proye  a  fulfillment  of  such  condition  or  some  excuse  for  the  non- 
performance; and  if  an  excuse  was  relied  upon,  he  should  haye 
ayerred  his  readiness  to  perform,  and  the  particular  circum- 
stances which  constituted  such  excuse:  1  Ch.  PL,  Springf.  ed. 
of  1844,  821,  826.  A  performance  of  the  condition  precedent, 
haying  been  yoluntarily  assumed  by  the  plaintiff,  could  only  be 
dispensed  with  or  preyented  by  the  opposite  party;  and  would 
not  be  excused,  although  it  had  become  impossible,  without  any 
default  on  the  part  of  the  plaintiff:  Carpenter  y,  Stevens,  12 
Wend.  689;  Moakeley  y.  Biggs,  19  Johns.  69  [10  Am.  Dec.  196.] 

WLennyer  a  party  by  his  own  contract  creates  a  duty  or  charge 
upon  himself,  he  is  bound  to  make  it  good,  if  he  may,  notwith- 
standing any  accident  by  ineyitable  necessity,  because  he  might 
haye  proyided  against  it  by  his  contract:  Aleyn,  27;  per  Lord 
Ellenborough,  in  Atkinson  y.  BUcher,  10  East,  630;  Com.  Dig., 
Action  upon  the  Case  upon  Assumpsit,  G;  Id.,  Condition,  D,  1; 
6  Petersd.  Abr.  216;  Shubrick  y.  Salmon,  8  Burr.  1687;  Barker 
y.  Hodgson,  8  Mau.  &  Sel.  267;  Brecknock  etc.  Canal  Nov,  y.  PriJtch' 
ard,  6  T.  B.  760.  The  plaintiff  has  sought  to  entitle  himself  to  re- 
coyer,  by  ayerring  that  he  did  keep  a  large  number,  to  wit,  twenty 


July,  1854]  Oaklkt  v.  Mobtok.  61 


oowSy  for  the  daiiying  business,  during  the  season  of  1846,  and 
the  oonrt  below  have  decided  that  this  ayerment  was  sustained 
by  the  eyidenoe.  The  proof  was,  that  the  daiiying  season  oom« 
menoes  in  April  and  ends  during  the  month  of  November,  and 
when  cows  begin  feeding  on  hay;  thattheplaintiif  in  the  spring 
put  twenty  cows  on  his  farm,  three  of  which  became  dry  about 
the  first  of  September,  and  two  others  from  the  first  to  the  fif* 
teenth  of  October.  The  five  were  disposed  of  and  their  places 
were  not  supplied.  The  quantity  of  butter  of  course  depended 
upon  the  number  of  cows  from  which  it  was  made,  and  there 
was  CTidence  offered  to  show  that  the  Talue  in  market  of  butter 
made  from  a  dairy  of  twenty  cows  was  greater  than  that  made 
from  fifteen  cows. 

It  will  be  observed  that  the  covenant  of  the  plaintiff  does  not 
refer  to  any  particular  cows;  but  is  to  the  effect  that  he  will 
keep  twenty  or  more,  that  is,  at  least  twenty  cows  for  dauying 
business;  and  in  this  he  covenants  that  they  shall  be  reasonably 
suitable  for  dairy  purposes,  that  is,  milch  cows;  and  when  they 
ceased  to  give  milk  they  were  no  longer  within  the  condition  of 
the  contract.  The  covenant  was  co-extensive  with  the  season, 
and  a  failure  to  perform  it  at  the  latter  part  of  the  season  was 
as  much  a  violation  of  its  letter  and  spirit  as  would  have  been  a 
failure  in  the  earlier  part.  The  agreement  was  to  keep  the  en- 
tire number  during  the  entiru  season,  and  a  strict  performance 
was  a  condition  precedent  to  his  right  to  recover  of  the  defend- 
ant, who  could  not  be  compelled  to  receive  and  pay  for  the  but- 
ter made  from  any  less  number  of  cows:  Paige  v.  OU,  5  Denio, 
406;  Smith  v.  Briggs,  3  Id.  73.  Had  the  party  desired  to  pro- 
tect himself  against  the  contingency  of  the  failure  of  any  of  the 
twenty  cows  which  he  should  procure,  or  his  inability  to  supply 
the  places  of  any  that  should  die  or  cease  to  be  suitable  for 
dairy  purposes  before  the  close  of  the  season,  or  his  inability  to 
supply  pasturage  for  so  large  a  number,  and  still  hold  the  de- 
fendant to  the  performance  of  his  part  of  the  contract,  he  should 
have  made  provision  for  it  in  the  agreement. 

Having  undertaken  to  keep  the  complement  of  twenty  cows 
diuring  the  season,  it  was  his  duty  in  the  first  instance  to  pro- 
ride  such  as  would  probably  answer  the  purposes  of  the  con- 
tract, and  if  any  by  an  unforeseen  contingency  should  fail  or 
die,  to  supply  their  places  within  a  reasonable  time.  A  keeping 
of  twenty  cows  for  three  months  and  fifteen  for  the  next  three 
months  is  not  literally  or  substantially  keeping  the  first  num- 
ber for  the  whole  six  months.    The  contract  can  not  be  other- 


92  Oaklet  v.  Hostok.  [Mew  York, 

^lae  ooBstnied  than  if  the  defendant  had  undartakoi  to  pay  a 
^OBS  aom  for  the  hatter  to  be  made  from  a  giyeai  nmnber  of 
<sow6,  and  under  such  a  contract  it  would  not  be  claimed  thai 
the  dairyman  could  provide  the  whole  number  of  cows,  of  suoh 
as  would  become  dry  in  the  midst  of  the  season,  and  still  com- 
pel a  performance  by  the  def^idant.  This  case  is  in  principle 
aomewhat  like  Beataon  y.  Schank,  3  East,  233,  in  which  it  was 
lield  that  the  party  who  took  upon  himself  to  keep  on  his  vessel 
a  certain  number  of  hands  was  bound  to  provide  a^^ainst  the 
contingency  of  any  of  them  dying,  as  by  taking  an  extra  num- 
beron  board:  See  also  Jnmany.  Wealem  Mre  Ins.  (7o., 12  Wend. 
-452.  The  plaintiff  in  this  case,  by  the  exercise  of  proper  care 
in  making  his  purchases  in  the  spring,  could  have  guarded 
against  the  contingency  which  eventually  deprived  the  defend- 
ant of  the  butter  to  which  he  was  entitled;  and  if  he  preferred 
euch  cows  as  would  give  milk  a  part  of  the  season  and  then 
make  beef  in  the  fall,  and  the  consequence  has  b^n  that  he  has 
been  unable  to  perform  his  contract  with  the  defendant,  he  has 
sustained  no  injury,  and  no  action  will  lie  against  the  defendant, 
t  Jn  Fike  v.  BnUer,  4  N.  Y.  360,  which  was  a  suit  in  equity,  the 
^iMjuities  of  the  plaintiff  were  much  stronger  than  in  tiiis  case» 
and  yet  the  court  held  that  he  was  not  entitled  to  any  relief, 
and  dismissed  his  bill  with  costs. 

The  plaintiff  did  not  prove  a  substantial  performance  of  this 

^:  part  of  the  contract,  and  the  performance  was  not  dispensed 

with  or  prevented  by  the  defendant.    The  evidence  did  not  tend 

•"to  establish  an  excuse  for  non-performance,  even  if  under  the 

:  pleadings  an  excuse  could  have  been  shown.    Upon  the  merits, 

(therefore,  and  upon  all  the  evidence,  the  motion  for  a  nonsuit 

should  have  been  granted.    But  under  an  averment  of  perform* 

ance,  as  in  this  case,  evidence  ii!  excuse  of  non-performance  was 

not  admissible  and  should  hare  been  excluded:   CrandaU  v. 

€lark,  7  Barb.  169;  Baldwin  v.  Munn,  2  Wend.  399;  PkOlips 

V.  Eo9e,  8  Johns.  392;  lYeeman  v.  Adams,  9  Id.  115;  Fleming  v. 

CMbert,  3  Id.  528;  LUOe  v.  EbUand,  3  T.  B.  590;  1  Gh.  PL  321, 

826. 

This  point  is  fatal  to  the  plaintiff,  and  renders  it  unnecessary 
"to  examine  the  other  questions  made  on  the  tiiaL 

The  judgment  of  the  supreme  court  should  be  reversed  and  a 
new  trial  ordered,  costs  to  abide  the  event. 

Johnson,  J.  If  the  decision  of  the  justice  was  correct,  it  will 
follow  that  if  half  of  the  twenty  cows  had  died  in  the  middle 
^f  the  season  the  defendant  would  still  have  been  bound  to  re-^ 


July,  1854.]  Oaklbt  v.  MoBioir.  5ft 

oeire  and  pay  for  the  batter  of  Uie  remaining  ten.  I  tbink  Vnm 
decision  is  in  dizeot  oonfliet  with  the  terms  of  the  contract  of  th» 
parties.  The  plaintiff's  nndertaking  was  that  he  wonld  keep* 
twenty  cows  or  more  dnring  tiie  season ;  not  that  he  would  stock, 
his  farm  with  twenty  cows  at  the  commencement  of  the  season* 
The  contract  related  to  the  making  of  batter  from  the  milk  off 
the  cows  so  kept,  and  the  covenants  are  to  be  interpreted  with» 
reference  to  the  purpose  for  which  the  cows  were  to  be  kept.  I 
do  not  think  that  the  plaintiff  could  have  satisfied  the  require* 
ments  of  the  contract  by  putting  on  twenty  cows,  ten  of  which 
were  dry;  and  for  the  same  reason  I  do  not  think  that  the  risk. 
of  the  drying  up  of  the  cows  during  the  season  was  upon  tha 
defendant.  This  latter  question  is,  however,  hardly  involved  ii^ 
the  case,  for  the  plaintiff  parted  with  the  cows  before  they  wer» 
actoaliy  dried  up.  It  is  true  that  the  milk  which  was  afterwards. 
procured  from  them  was  of  small  amount;  but  upon  a  questioa 
of  the  performance  of  a  condition  precedent,  small  matters  are- 
of  consequence.  The  performance  must  be  exact,  not  cy-pres. 
Besides,  if  the  law  says  that  six  quarts  of  milk  evety  other  day 
for  fids  or  eight  days  are  not  enough  to  be  regarded  upon  such. 
a  question,  I  am  considerably  at  a  loss  to  know  where  in  the  law 
is  to  be  found  the  precise  measure  of  milk  which  a  cow  may 
yield,  and  yet  under  such  a  contract  be  disposed  of  without  a. 
violation  of  it.  Another  consideration  seems  to  me  to  strengthen 
this  view  of  the  contract:  the  plaintiff  was  not  bound  to  keep 
the  same  cows  during  the  whole  season;  on  the  contnry,  he  waA 
at  liberty  to  change  them  at  his  pleasure,  and  according  to  his 
own  views  of  his  own  interest  All  the  defendant  stipulates  for 
is  the  batter  from  the  milk  of  twenty  cows  during  the  season. 
Now,  if  the  risk  of  the  drying  up  of  the  cows  is  on  the  defendant,  ii 
would  attach  from  time  to  time  to  each  cow  the  plaintiff  might 
choose  to  substitate  for  those  with  which  he  originally  stocked 
his  farm.  That  such  a  consequence  is  involved  in  the  construc- 
tion put  upon  the  contract  at  the  trial  seems  to  me  to  show  it 
to  be  an  unreasonable  construction,  and  ooe  which  ought  not  k>> 
be  sustained.  The  obligation  of  the  plaintiff  under  this  contract 
was,  as  I  conceive,  to  keep  at  least  twenty  cows  yielding  milk 
during  the  dairying  season;  and  as  he  has  failed  to  comply  witlk 
this  obligation,  he  should,  in  my  opinion,  have  been  nonsuited*. 

G-AXDmxB,  C.  J. ,  BuaGLXs,  Pabkeb,  and  Edwabbs,  J  J. ,  concurred.. 

Dsxio,  J.,  was  in  &vor  of  affirming  the  judgment  of  the  su«^ 
preme  court,  on  the  ground  that  the  defendant,  by  his  letter  of  tha- 
twenty-sixth  of  October,  written  near  the  close  of  the  dairy 


54  Oaklet  v.  Mobton.  [New  York, 

■on ,  gave  Qie  plaintiff  explicit  and  peremptory  directions  what  to 
do  with  the  batter  made  under  the  contract,  and  thereby  waived 
performance  of  the  condition  precedent.  That  in  the  absence 
of  proof  to  the  contrary,  it  should  be  presumed  he  was  informed 
of  the  true  state  of  facts  when  he  gave  these  directions,  especially 
as  in  his  letter  he  acknowledged  the  receipt  of  one  from  the 
plaintiff  on  the  subject  of  the  butter,  which  was  not  given  in 
evidence. 

Judgment  reversed  and  a  new  trial  ordered. 

Condition    Pricsdskt   must  bb   Stbictlt    PBRroBaoD  to  Estitls 
Pabtt  to  RaoovxB:  Jenkins  t.  Wheder,  3  Keyes,  655;  S.  C,  37  How.  Pr. 
409;  2  Abb.  App.  Deo.  444;  Crane  ▼.  Knubel,  2  Jones  k  &  455;  8.  a,  43 
How.  Pr.  393;  PaUridgt  ▼.  GOdrnnHteer,  1  Reyes,  99,  per  Mnllin,  J.,  dis- 
senting; and  it  ia  indispensable  that  a  performance  or  waiver  of  a  conditioa 
precedent  should  be  established  by  evidence  before  the  plaintiff  can  recoren 
Roberti  V.  Opdyht^  40  K.  Y.  264.    A  vendor  of  goods,  tikerefore,  can  not  re- 
cover, either  the  contimct  price  or  npon  a  quantum  menctf,  for  a  part  of  ths 
goods  delivered,  oven  although  accepted  by  the  vendee:  FUnagat^  y.  De- 
fnartfi^  3  Robti    183.    And  inconvenience,  difficulty,  impossibility,  or  in- 
evitable accident  will  not  excuse  a  performance:  Peoria  M.  S  F.  Ins.  0(k  ▼. 
Kaiser,  22  Ind.  85;  Wood  t.  Long,  28  Id.  317;  Nelson  v.  Odiome,  45  N.  T. 
493;  Jenkins  t.  Wheeler,  3  Keyes,  655;  8.  C,  37  How.  Pr.  469;  2  Abb.  App. 
Dec.  444;  Crane  v.  Knubel,  2  Jones  k  8.  455;  8.  C,  43  How.  Pr.  393;  Sher^ 
wood  T.  Agricultural  Ins.  Co.,  10  Hun,  595;  unless  the  misfortune  or  accident 
be  caused  by  the  adverse  party:  See  Sherwood  v.  AgricuUural  Ins,  Co.,  supra. 
The  duty  was  brought  upon  the  party  by  his  own  act,  and  he  must  discharge 
It  or  become  liable  as  upon  a  breach  of  the  contract:  Kelson  v.  Odiome,  j»- 
pra;  the  province  of  courts  is  not  to  make  contracts,  but  to  enforce  them: 
Booth  V.  Spuyten  Duyvil  SoUmg  JUiU  Co.,  3  Thomp.  k  C.  371.    It  is  only 
when  the  law  creates  or  casts  the  duty  that  the  party  may  be  excused  froin 
compliance  when  he  is  dittbled  from  performing  it,  without  any  fault  upon 
hia  part,  by  the  act  of  Ood  or  of  the  law,  rendering  performance  impossible: 
Co66  V.  Harmon,  29  Barb.  476.    The  principal  case  is  cited  to  the  foregoing 
ipoiuts.    But  in  Delaware  etc.  R.  R.  v.  Bowns,  58  K.  Y.  577,  while  the  prin- 
4}ipal  case  was  cited  to  the  point  that  perhaps  a  mere  agreement  by  a  corpo- 
ration to  sell  and  deliver  an  article  by  a  certain  day,  without  limitation  or 
qualilicatioD,  would  have  held  the  corporation  to  its  undertaking,  notwith* 
•standing  its  inability  to  perform  by  any  of  the  causes  mentioned  in  the  con> 
tract,  yet  it  y  as  said  that  this  rule  only  applied  when  the  contract  was  posi- 
tive and  absolute,  and  not  subject  to  any  condition,  express  or  implied;  and 
in  Wolfe  V.  Iloufes,  24  Barb.  666,  the  principal  case  was  criticised  as  not  call- 
ing for  so  strong  a  ruling  as  therein  announced,  to  the  effect  that  an  express 
.covenant  to  do  a  specific  act  is  not  discharged,  altliongh  its  performance  is 
prevented  by  inevitable  necessity,  because  the  plaintiff  might  have  fulfilled 
bis  covenant  by  supplying  what  he  had  contracted  to  do;  so  in  Baldwin  t. 
New  York  L\fe  Ins.  dt  T,  Co.,  3  Bosw.  545,  in  holding  that  where  the  per- 
formance of  a  condition  is  wholly  personal,  and  the  party  is  disabled  from 
perfonnanoe  by  act  of  Ood,  without  neglect  or  default  of  his  own,  but  with 
the  intention  of  performing  it  literally,  the  condition  is  saved,  the  principa] 
case  is  diBtinguiiJied  as  a  leading  authority  on  the  performance  of  oond*ti€na 


July,  1854.]  Andbxws  v.  Dubakt.  55 


precedent.  In  wbick  wm  tlie  imporluit  clement  thai  there  did  eadet 
eooomplieh  or  meet  the  condition.  Perfomumoe  of  en  entire  oontmet 
a  condition  pnoedent  to  a  reoorery,  and  when  a  reoovwy  ie  poeeible  where  a 
«0Dtnct  ia  only  part  performed:  See  McKUmeg  ▼.  Sprimger^  64  Am.  Deo. 
470;  PaCtermn  ▼.  Ooge,  56  Id.  90,  and  notee  coUecting  and  daerifying  prior 
ceaee  in  thie  eoiee;  Hmlekkuon  ▼.  Weimore,  Id.  337;  JiUier  t.  Ooddard^  Id. 
638;  IVhutmd  ▼.  Bad,  67  Id.  671;  Harmon  ▼.  Salnum  IbdU  Mfg.  CSo.,  68  Id. 
718;  Coe  t.  Smiik^  Id.  618,  and  note;  eee  aleo  Bamkm  y.  DaneU,  62  Id.  667| 
Kctei  ▼.  Mwpkeg^  63  Id.  607;  and  eee  Cnntford  ▼.  WUttams,  60  Id.  146| 
Spmgne  t.  BmJkard^  Id.  803. 

Etidkngb  Of  Waptesl  <n  nr  Ezcun  n  IvADMrnsiBLB  vkdkr  Allma* 
TiOB  OF  Pbriobmakcs:  KdmimMer  ▼.  CocArane,  8  Daly,  141;  Ifarrai  ▼.  Bean, 
6  Wia.  126»  both  citing  the  principal  caee.  In  Clfft  t.  Roger,  25  Han,  43^ 
the  principal  caee  ia  dted  aa  approving  the  caee  and  doctrine  of  OramdaU  t. 
Chrk^  7  Barb.  171,  and  aa  citing  many  other  caeoe  which  eoatain  it,  the  doo> 
trine  there  annoonced  being  that  aa  arerment  of  performance  will  not  he 
eostained  by  evidence  of  a  legal  excnae  for  non-performance;  and  In  Hodtg 
▼.  Black,  28  N.  Y.  443,  S.  a,  26  How.  Pr.  102,  while  the  principal  oaai 
cited  to  the  xK>int  that  the  technical  rale  nndoabtedly  waa  that  under  a 
plaint  Betting  oat  a  contract  and  averring  ita  performance  evidence  in  excnae 
for  non- performance  wae  not  admiaaible,  it  waa  farther  eidd  that  thia  rale  waa 
of  little  conaequence,  for  the  plaintiff  might  amend  hia  comphint,  and  than 
give  the  evidence. 


Andbews  v.  Dubant. 


[U  Vair  Toes  (1  XaaaAa),  16.] 

Oo5TRAcr  fOR  CoxsTBUcnoK  OF  Vbbbl  dob  hot  PAfli  TiTLi  antO  the 
venel  ie  delivered.  That  the  work  ia  Inapected  and  approved  by  the 
porchaeer  aa  it  proceeds,  and  that  inataUmente  of  the  price  are  paid 
from  time  to  time,  make  no  difference. 

Appeal  from  a  judgment  of  the  supreme  court  sustaining  the 
claim  of  defendants  to  the  ownership  of  a  vessel.  The  vessel  was 
a  horge,  in  process  of  construction  under  a  written  agreement, 
by  which  the  builders,  Bridger  &  Co.,  were  to  provide  all 
materials,  and  to  build  her  subject  to  the  inspection  and  ap- 
proval of  the  superintendent  of  the  intending  purchasers,  and 
to  deliver  her  to  the  purchasers  on  a  day  specified.  The  pur- 
ehasers  were  to  pay  a  fixed  price:  one  tiiousand  dollars  when 
the  keel  was  laid,  one  thousand  dollars  when  the  frame  was  up, 
one  thousand  dollars  when  planked  and  calked,  and  the  balance 
of  two  thousand  dollars  when  completed  and  delivered.  Three 
installments  were  paid.  Before  the  completion  and  delivery  of 
the  barge,  the  builders  became  insolvent  and  the  ship  was  siezed 
by  the  sheriff  on  executioii  for  a  debt  of  the  builders.  The 
purchasers,  claiming  that  title  had  vested  in  them  as  the  work 
progressed,  replevied  her,  completed  her  at  a  cost  of  seven  hun- 


56  Andrews  v.  Durakt.  [New  York, 

died  doUan,  and  treated  her  as  theirs.  Meantime  the  bnildeni 
had  made  a  general  assignment  for  the  benefit  of  creditors;  and 
the  assignees  now  brought  an  action  in  the  nattire  of  troyer  to 
establish  their  claim  to  the  ownership. 

Nicholas  EiUfjun,,  for  the  ap{>ellant8, 

8.  JJ.  Hammand^  for  the  respondents. 

By  Court,  Denio,  J.  In  general,  a  contract  for  the  building 
of  a  yessel  or  other  thing  not  yet  in  esse  does  not  vest  any 
property  in  the  party  for  whom  it  is  agreed  to  be  constructed 
during  the  progress  of  the  work,  nor  until  it  is  finished  and 
delivered,  or  at  least  ready  for  delivezy  and  approved  by  such 
party.    All  the  authorities  agree  in  this:    Towers  r,  Osborne, 

I  Stra.  506;  Mncklow  y.  Mangles,  1  Taunt.  818;  Johnson  y.  Hunt, 

II  Wend.  139;  Crookshank  y.  Burrell,  18  Johns.  58  [9  Am. 
Dec.  187];  Bewail  v.  Filch,  8  Cow.  215;  Mixer  v.  Eowarih,  21 
Pick.  205  [32  Am.  Dec.  256].  And  the  law  is  the  same  though 
it  be  agreed  that  payment  shall  be  made  to  the  builder  during 
the  progress  of  the  work,  and  such  payments  are  made  accord- 
ingly. In  Mucklow  v.  Mangles,  supra,  which  arose  out  of  a  con* 
tract  for  building  a  barge,  the  whole  price  was  paid  in  advance, 
the  vessel  was  built,  and  the  name  of  the  person  who  contracted 
for  it  was  painted  on  the  stem;  yet  it  was  held  that  the  title 
remained  in  the  builder.  In  MerrUt  v.  Johnson,  7  Johns.  478 
[6  Am.  Dec.  289],  where  a  sloop  was  agreed  to  be  built,  and  one 
third  of  the  price  was  to  be  paid  when  one  third  of  the  work 
was  done,  two  thirds  when  two  thirds  were  done,  and  the 
balance  when  it  was  completed^  and  before  it  was  finished  it 
was  sold  on  execution  against  the  builder  after  more  than  a 
third  had  been  done  and  more  than  that  proportion  of  the 
price  had  been  paid,  the  court  decided  that  the  vessel  was  the 
property  of  the  builder,  and  not  of  the  person  who  engaged  it  to 
be  constructed. 

Where  during  the  course  of  the  transaction  the  vessel  or 
other  thing  agreed  to  be  built  is  identified  and  appropriated,  so 
that  the  mechanic  would  be  bound  to  complete  and  deliver  that 
particular  thing,  and  could  not,  without  violating  his  contract, 
substitute  another  similar  article,  though  otherwise  correspond- 
ing with  the  agreement,  there  would  seem  to  be  more  reason 
for  holding  that  the  property  was  transferred;  still  it  has  never 
been  held  that  this  was  enough  to  pass  the  title.  In  Laidler  v. 
Burlinson,  2  Mee.  &  W.  602,  the  vessel  was  about  one  third 
built  when  the  contract  was  made.    The  builder  and  owners 


July,  1854]  Akdbews  v.  IhJBANT.  57 

•gieed  to  finish  that  partiealar  Teasel  in  a  manner  spedall j 
agieed  npon  for  a  price  which  was  the  equivalent  for  the 
finii#iftfi  TeeseL  Before  it  was  completed  the  bnildar  became 
bankrapt,  and  the  possession  passed  into  the  handa  of  his  as- 
Bignee.  The  conrt  of  exchequer  held  the  tme  oonstrootion  of 
the  cofntract  to  be  &at  the  title  was  to  pass  when  the  diip  was 
eompleled,  and  not  before.  The  parties  onlj  agreed  to  buj  a 
particular  ship  when  complete,  and  although  the  builder  could 
not  comply  with  the  contract  by  deUyering  another  ship,  still 
it  was  considered  an  executory  contract  meqely.  In  Atkinaen  t. 
BeU^  8  Bam.  &  Gress.  277,  the  same  principle  was  held  in  re* 
spect  to  a  contract  for  making  spinning  machinery,  and  in 
Clarbe  t.  Spence,  4  Ad.  &  El.  448,  which  is  the  case  principally 
relied  on  by  the  defendants,  it  was  admitted  by  the  court  that 
the  appropriation  of  the  particular  ship  to  the  contract  then  in 
question,  by  the  approval  of  the  materials  and  labor  by  the  super- 
intendent, did  not  of  itself  vest  the  property  in  the  purchaser 
until  the  whole  thing  contracted  for  bad  been  completed. 

In  the  case  before  us,  it  can  not  be  denied  but  that  the  barge, 
as  fast  as  its  several  parts  were  finished,  vrith  the  apjnoval  of 
the  superintendent,  became  specifically  appropriated  to  the  ful* 
ffilment  of  this  contract,  so  that  Bridger  &  Co.  could  not  have 
fnlfilLed  their  agreement  with  the  defendants  in  any  other  way 
tlutn  by  completing  and  delivering  that  identical  boat.  This 
lesnlts  from  the  consideration  that  the  superintendent  could 
not  be  called  upon  to  inspect  and  approve  of  the  work  and 
»w>^"a1«  of  another  barge,  after  having  performed  that  duty  as 
to  one,  BO  that  the  contract  would  be  broken  up  unless  it  ap- 
plied itself  to  this  vessel.  But  it  is  clear  that  this  circumstance 
alone  does  not  operate  to  transfer  the  title.  The  precise  quea* 
tion  in  this  case  is  whether  the  concurrence  of  both  particulars— 
tbe  payment  of  parts  of  the  price  at  specified  stages  of  the  work, 
and  the  intervention  of  a  superintendent  to  inspect  and  approve 
of  the  work  and  materials — produces  a  result  which  neither  of 
them  separately  would  effect.  It  is  no  doubt  competent  for 
the  parties  to  agree  when  and  upon  what  conditions  the  prop- 
erty in  the  subject  of  such  a  contract  shall  vest  in  the  prospect- 
ive owner.  The  present  question  is  therefore  simply  one  of 
construction.  The  inquiry  is,  whether  th3  parties  intended  by 
the  provisions  which  they  have  inserted  in  their  contract  that 
as  soon  as  the  first  payment  had  become  payable  and  had  been 
paid,  the  property  in  the  unfinished  barge  should  vest  in  the 
jUifon^pfg  80  that  thereafter  it  should  be  at  their  risk  as  to 


58  Andrews  v.  Durant.  [New  York. 

casoalties,  and  be  liable  for  their  debts,  and  pass  to  their  lepre- 
sentatiTes  in  case  of  their  death.  Such  an  agreement  would  be 
lawful  if  made,  and  the  doubt  only  is  whether  the  parties  have 
so  contracted. 

The  courts  in  England,  under  contracts  in  all  material  respects 
like  this,  have  held  that  the  title  passed.  In  Woods  t.  RusseU^ 
5  Bam.  &  Aid.  942,  the  question  came  before  the  court  of  king's 
bench,  and  Abbott,  G.  J.,  distinctly  declared  his  opinion  that  the 
payment  of  the  installments  under  such  a  contract  vested  the 
property  in  the  ship  in  the  party  for  whom  it  was  to  have  been 
constructed.  But  there  was  another  feature  in  the  case,  upon 
which  it  was  finally  decided.  The  builder  had  signed  a  certifi- 
cate for  the  purpose  of  enabling  the  other  party  to  procure  the 
vessel  to  be  registered  in  his  name,  and  it  was  so  registered  ac- 
cordingly, while  it  was  yet  unfinished,  and  before  the  question 
arose.  The  court  held  that  the  legal  effect  of  signing  the  cer- 
tificate for  the  purpose  of  procuring  the  registry  was,  from  the 
time  the  registry  was  complete,  to  vest  the  general  properly  in 
the  party  contracting  to  have  the  ship  built.  This  case  was 
decided  in  1822,  and  was  the  first  announcement  of  the  principle 
upon  which  the  defendants'  counsel  rely  in  the  English  courts. 
The  case  of  Clarhe  v.  Spence^  supra,  was  decided  in  1886.  It 
arose  out  of  a  contract  for  building  a  vessel,  which  con- 
tained both  the  features  of  superintendence  and  of  payments 
according  to  specific  stages  of  the  work,  as  in  Woods  v.  BuS' 
selly  supra,  and  as  in  the  contract  now  before  the  court. 
The  court  of  king's  bench  was  clearly  of  opinion  that  as  fast  as 
the  different  parts  of  the  vessel  were  approved  and  added  to  the 
fabric  they  became  appropriated  to  the  purchaser  by  way  of 
contract,  and  that  when  the  last  of  them  were  so  added,  and  the 
vessel  was  thereby  completed,  it  vested  in  the  purchaser.  The 
court  conceded  that  by  the  general  rules  of  law  until  the  last 
of  the  necessary  materials  was  added,  the  thing  contracted  for 
was  not  in  existence;  and  they  said  they  had  not  been  able  to 
find  any  authority  for  holding  that  while  the  article  did  not  ex- 
ist as  a  whole,  and  was  incomplete,  the  general  property  in  such 
parts  of  it  as  had  been  from  time  to  time  constructed  should  vest 
in  the  purchaser,  except  what  was  said  in  the  case  of  Woods  v. 
Bnssell,  supra;  and  that  was  admitted  to  be  a  didum  merely,  and 
not  the  point  on  which  the  case  was  decided.  The  court,  how- 
ever, decided,  upon  the  authority  of  that  case,  though  with  some 
hesitation,  as  they  said,  that  the  rights  of  the  parties  in  the  case 
before  it,  after  the  making  of  the  first  payment,  were  the  same 


Jaly,  1854]  Akbeewb  v.  Dubant.  59 

■s  if  BO  much  of  ihe  Teasel  as  was  then  constraeted  had  origi- 
Bally  belonged  to  the  party  contracting  for  its  constmction,  and 
had  been  deliyeied  by  him  to  the  builder  to  be  added  to  and  fin* 
ished;  and  they  said  it  would  follow  that  ereiy  plank  and  arti- 
cle subsequently  added  would,  as  added,  become  the  prox>6rty 
of  the  party  oonixacting  with  the  builder.  The  dictum  in  WoodM 
▼.  BuMdl,  tupra^  was  incidentally  referred  to  as  the  htw  in  Jl- 
kinMon  y.  Bdl^  8  Bam.  &  Cress.  277,  and  the  doctrine  there  stated, 
and  confirmed  in  C2arl»  t.  Spence^supraf-wBa  assumed  to  be  cor* 
cect  in  Laidler  t.  BurlinMon^  before  referred  to.  It  has  also  been 
Cpenerally  adopted  by  systematic  writers  in  treatises  published  or 
tevised  since  the  decision  of  Clarke  t,  Spence^  that  case  and  WoodM 
▼.  Russdl  being  always  referred  to  as  the  authority  on  which  it 
tests:  Stoiy  on  Sales,  sees.  315,  816;  Chit  ConL  878,  879;  Ab- 
bott on  Shipping,  4,  5. 

It  is  scarcely  neoessaiy  to  say  that  the  English  cases  since  the 
vevolntion  are  not  regarded  as  authority  in  our  courts.  Upon 
disputed  doctrines  of  the  common  law,  they  are  entitled  to 
respectful  consideration;  but  where  the  question  relates  to  the 
construction  or  effect  of  a  written  contract,  they  hare  no  greater 
weight  than  may  be  due  to  the  reasons  giyen  in  their  support. 
Oan  it  then  be  fairly  collected  from  the  provisions  of  this  contract 
that  the  title  to  the  unfinished  barge  was  to  be  transf eiied  from 
the  builder  to  the  other  party  upon  the  making  of  the  first  pay- 
ment, contrary  to  the  principle,  well  settled  and  generally  undc^ 
atood,  that  a  contract  for  the  construction  of  an  article  not  in 
existence  is  executory  until  the  thing  is  finished  and  ready  for 
deliyeiy?  In  the  first  place,  I  should  say  that  so  marked  a 
circumstance  would  be  stated  in  words  of  unequivocal  import, 
stnd  would  not  be  left  to  rest  upon  construction,  if  a  change  of 
property  was  really  intended.  The  provisions  for  superintend- 
ence by  the  agent  of  the  intended  owner,  though  it  serves  to 
identify  and  appropriate  the  article  as  soon  as  its  construction 
Is  commenced,  does  not,  as  we  have  seen,  work  any  change  of 
property.  Such  would  not  ordinarily  be  the  intention  to  be 
deduced  from  such  a  circumstance.  Many  of  the  materials  of 
which  a  vessel  is  composed  are  ultimately  covered  so  as  to  be 
concealed  from  the  eye  when  it  is  finished;  and  as  the  safety  of 
life  and  property  is  concerned  in  the  soundness  and  strength  of 
these  materials,  it  is  but  a  reasonable  precaution  to  be  taken  by 
one  who  engages  a  vessel  to  be  constructed  to  ascertain,  as  the 
work  progresses,  that  everything  is  stanch  and  durable;  and 
such  a  provision,  as  it  seems  to  me,  does  not  tend  to  show  a  design 


80  Andrews  v.  Durant.  [New  York, 

Chat  tliere  shall  be  a  change  of  properfy  as  fast  as  any  material* 
or  work  are  inspected  and  approved.  It  amounts  only  to  an 
agreement  that  when  the  whole  is  completed  the  party  will  re- 
ceiye  it  in  fulfillment  of  the  contract.  The  provision  for  advances 
at  particular  stages  of  the  work  is  a  very  usual  one  where  an  ex- 
pensive undertaking  is  contracted  for,  and  it  only  shows  that 
the  party  advancing  is  willing  thus  to  assist  the  artisan,  provided 
that  he  can  see  that  the  work  is  going  on  in  good  fiaith,  so  as  to 
afford  a  reasonable  prospect  that  he  will  realize  the  avails  of  hia 
expenditure  in  a  reasonable  period.  The  argument  for  the  de- 
fendants would  be  somewhat  stronger  if  we  could  say  that  the 
amount  to  be  advanced  at  the  several  stages  mentioned  was  un- 
derstood by  the  parties  to  be  the  price  or  equivalent  for  the  labor 
and  materials  already  expended.  This  by  no  means  appears; 
but  on  the  contrary,  there  is  strong  reason  to  believe  that  in 
this  case  a  considerable  portion  of  the  price  was  to  be  at  all 
times  kept  back  in  order  to  secure  the  speedy  completion  of  the 
contract.  When  Bridger  &  Go.  failed,  only  three  thousand  dol« 
lars  of  the  five  thousand  had  been  paid,  and  the/ would  not  be 
entitled  to  any  more  until  the  barge  was  finished,  and  yet  it  cost 
only  seven  hundred  dollars  to  complete  it  This  renders  it  im- 
probable that  the  parties  could  have  intended  the  sale  and  pur> 
shase  of  so  much  as  was  done  at  the  several  stages  of  the  work 
»t  which  payments  were  to  be  made,  if  indeed  such  a  contract 
irere  not  in  itself  so  much  out  of  the  course  of  the  ordinary  con- 
duct of  parties  as  not  to  be  assumed  without  unequivocal  language. 

The  decision  in  Clarke  v.  Spence,  aupra,  is  placed  very  much 
upon  the  idea  that  parties  may  have  contracted  in  reference  to 
the  doctrine  announced  in  Woods  v.  Rusaell,  supra.  That  argu- 
ment can  have  no  force  here;  but  on  the  contrary,  the  inferenoe 
to  be  drawn  from  our  own  cases,  and  particularly  from  MerriU 
V.  Johnson,  supra,  would  be  that  the  title  remained  in  the  builder 
under  such  a  contract  until  the  completion  of  the  vessel 

The  foregoing  considerations  have  led  me  to  the  conclusion 
that  the  modern  English  rule  is  not  founded  upon  sufficient 
reasons,  and  that  it  ought  not  to  be  followed.  The  judgment 
of  the  supreme  court  should  therefore  be  reversed,  and  a  new 
trial  ordered. 

Pabkxb,  J.  The  question  we  are  called  upon  to  decide  is, 
whether  under  the  rules  of  law  applicable  to  the  contract  the 
barge  at  the  time  of  the  assignment  to  the  plaintiffs'  belonged 
to  Bridger  &  Bishop,  who  constructed  it,  or  to  the  defendantS| 
who  employed  them  to  build  it. 


July,  1854]  Andrbwb  v.  Dueabx  CI 

The  genenJ  rule  ia,  ibat  if  a  person  contiact  with  mather  for 
a  chattel  which  is  not  in  exiatenoe  at  the  time  of  the  oontEaet* 
though  he  pay  him  the  whole  value  in  adiranee,  and  the  other 
proceeds  to  execute  the  oxder,  the  buyer  acquires  no  property 
in  the  chattel  till  it  is  finished  and  deUvered  to  him.  The  case 
of  Mucklow  Y,  Mangles,  1  Taunt.  818,  decided  in  England  in  1808» 
xecognized  to  the  fullest  extent  the  general  rule  I  have  stated. 
It  was  an  action  of  troyer  by  the  assignees  of  a  bankrupt  for  a 
barge  and  other  effects.  Boyland,  who  was  a  barge*builder,  had 
undertaken  to  build  the  barge  in  question  for  Pocock.  Before 
the  work  was  begun  Pooock  advanced  to  Boyland  some  money 
on  account,  and  as  it  proceeded  he  paid  him  more,  to  the  amount 
of  one  hundred  and  ninety  pounds  in  all,  being  the  full  value  of 
the  barge.  When  it  was  nearly  finished  Pocock's  name  was 
painted  on  the  stem.  Two  days  after  the  completion  of  the 
work,  and  before  a  commission  of  bankruptcy  had  issued,  the 
defendant,  who  was  an  officer  of  the  sheriff,  took  the  barge  un- 
der an  execution  against  Boyland,  the  barge  at  the  time  of  the 
levy  not  having  been  delivered  to  Pocock.  It  was  held  that  the 
title  to  the  barge  had  never  passed  from  Boyland  to  Pocock,  and 
judgment  was  given  for  the  plaintiff.  The  correctness  of  this 
decision  has  never  been  questioned,  either  in  England  or  this 
country,  but  has  been  repeatedly  followed  in  both.  In  this 
state  the  more  prominent  cases  are  MerriU  v.  Johnacm,  7  Johns. 
473  [5  Am.  Dec.  289];  Gregory  v.  Stryker,  2  Denio,  628;  and 
Johnson  v.  HurU,  11  Wend.  139. 

But  it  is  sought  to  take  this  case  out  of  the  general  rule  because 
the  work  was  to  be  performed  under  the  direction  of  a  superin- 
tendent employed  by  the  defendants,  and  was  to  be  paid  for  at 
specific  stages  of  the  work.  The  first  of  the  English  cases  relied 
on  to  sustain  that  position  is  that  of  Woods  v.  Eussell,  5  Barn.  & 
Aid.  942,  which  was  decided  in  1822.  Paton,  a  ship*builder,  had 
contracted  with  Bussell  to  build  a  ship  for  him  and  complete  it 
in  April,  1819,  Bussell  to  pay  in  four  installments.  The  first  and 
second  installments  were  duly  paid.  In  March,  1819,  Bussell  ap- 
pointed a  master,  who  superintended  the  building.  On  Paton's 
signing  the  usual  certificate  of  her  build,  the  ship  was  registered 
in  Bussell's  name,  and  on  that  day  he  paid  Paton  the  third  install- 
ment. It  was  held  that  the  general  properly  was  vested  in  Bus- 
sell  from  the  time  the  registry  was  completed,  but  that  the  plaintiff 
had  a  lien  for  the  work  done  after  payment  of  the  third  install- 
ment. There  seems  to  me  to  be  enough  in  that  case  to  sustain  the 
judgment,  independent  of  the  circumstances  relied  upon  by  the 


62  Andrews  v.  Dctrant.  [New  York» 

defendants  in  this  action.  The  registry  of  the  vessel  in  the  name 
of  Russell  on  the  certificate,  and  by  the  aid  and  procurement  of 
Paion,  was  equiTalent  to  a  deliyery,  and  was  conclusive  to  show 
that  the  parties  to  the  contract  agreed  that  from  that  time  the 
properly  belonged  to  Bussell. 

In  delivering  the  opinion  of  the  court,  Abbott,  0.  J.,  said: 
'/  It  is  part  of  the  terms  of  the  contract  that  given  portions  of 
the  price  should  be  paid  according  to  the  progress  of  the  work — 
part  when  the  keel  is  laid  and  part  when  they  are  at  the  light 
plank.  The  payment  of  these  installments  appears  to  us  to 
appropriate  specifically  to  the  defendant  the  very  ship  so  in  pro- 
gress, and  to  vest  in  ttie  defendant  a  property  in  that  ship;  and 
that  as  between  him  and  the  builder  he  is  entitled  to  insist  upon 
the  completion  of  that  very  ship,  and  that  the  builder  is  not 
entitled  to  require  him  to  accept  any  other.  But  this  case  doea 
not  depend  merely  ui>on  the  payment  of  the  installments;  so 
that  we  are  not  called  upon  to  decide  how  far  that  payment 
vests  the  property  in  the  defendant,  because  here  Paton  signed 
the  certificate  to  enable  the  defendant  to  have  the  ship  regi»» 
tered  in  his  (the  defendant's)  name,  and  by  that  act  oonsentedp 
as  it  seems  to  us,  that  the  general  property  in  the  ship  should 
be  considered  from  tiiiat  time  as  being  in  tiiie  defendant." 

The  decision  in  Woods  v.  BusseU,  supra^  seems  very  improperly 
to  have  been  considered  as  resting  on  the  ground  first  stated  in 
the  extract  I  have  made:  AUcinson  v.  Bell^  8  Bam.  &  Cress.  277; 
15  Eng.  Com.  L.  216.  And  so  far  it  has  evidently  been  looked 
upon  with  distrust  and  followed  with  reluctance  in  the  later 
decisions  of  the  English  courts. 

In  Clarke  v.  Spence,  4  Ad.  k  El.  448,  81  Eng.  Com.  L.  107, 
the  plaintiff  contracted  with  a  ship-builder  to  build  him  a  ship 
for  a  certain  sum,  to  be  paid  in  installments  as  the  work  pro- 
ceeded. An  agent  of  the  plaintiff  was  to  superintend  the  build- 
ing. The  builder  became  bankrupt  before  the  ship  was  com- 
pleted. Afterwards  the  assignees  completed  the  ship,  and  all 
the  installments  were  paid  or  tendered.  In  trover  by  the  plaint* 
iff  against  the  assignees  for  the  ship,  it  was  held  that  on  the 
first  installment  being  paid  the  property  in  the  portion  then 
finished  became  vested  Jn  the  plaintiff,  subject  to  the  right  of 
the  builder  to  retain  such  portion  for  the  purpose  of  complete 
ing  the  work  and  earning  the  rest  of  the  price,  and  that  each 
material  subsequently  added  became,  as  it  was  added,  the 
property  of  the  general  owner.  This  decision  was  made,  as 
was  said  by  Williams,  J.,  who  delivered  the  judgment  of  the 


July,  1854.]  Andbxws  v.  Duramt.  6S 

ooart,  "  vrith  eome  h^itatioit/*  and  entirely  npon  the  anthoritjF 
of  the  expression  in  the  opinion  of  the  court  in  Woods  7.  BuMdl^ 
first  above  quoted.  Williams,  J. ,  conceded  that  the  facts  in  the 
csase  of  Woods  t.  RussM,  supra^  did  not  make  it  necessary  to  deter- 
mine the  point  whether  the  building  of  the  Tessel  under  the  super- 
intendence of  a  person  appointed  by  the  purchaser,  and  the  pay« 
ment  of  installments  at  particular  stages  of  the  work,  vested  the 
general  property  in  the  purchaser,  and  added:  "  Neither  did  th* 
decision  of  the  court  proceed  ultimately  on  any  such  point,  but 
on  the  ground  that  the  yeesel,  by  yirtue  of  the  certificate  of 
the  builder,  had  been  registered  in  the  name  of  the  purchaser^ 
and  that  the  builder  had  by  his  own  act  declared  the  general 
property  to-  be  in  the  purchaser.**  And  he  proceeded  in  a  very 
full  and  able  opinion  to  show  that  the  opinion  thus  eztrajudi- 
cially  expressed  in  Woods  t.  RusseU^  supra^  was  in  conflict  with 
well-established  rules  of  law.  Williams,  J. ,  said : ' '  Until  the  last 
of  the  necessary  materials  be  added,  the  vessel  is  not  complete; 
the  thing  contracted  for  is  not  in  existence;  for  the  contract  is 
for  a  complete  vessel,  and  not  for  parts  of  a  vessel;  and  we  have 
not  been  able  to  find  any  authority  for  saying  that  whilst  the 
thing  contracted  for  is  not  in  existence  as  a  whole,  and  is  in* 
complete,  the  general  property  in  such  parts  of  it  as  are  from 
time  to  time  constructed  shall  rest  in  the  purchaser,  except  the 
above  passage  in  the  case  of  Woods  v.  Russell,**  And  he  fol- 
lowed the  authority  of  Woods  v.  RusseU^  supra^  on  the  ground  that 
it  had  been  subsequentiy  recognized,  and  that  such  construction 
had  probably  been  acted  upon  since  the  decision  by  persons 
engaged  in  diip-building. 

The  case  of  Woods  v.  Russell,  supra,  and  Clarke  v.  Spence, 
supra,  were  recognized  in  Laidler  v.  Burlinson,  2  Mee.  &  W* 
602,  though  they  were  not  followed,  being  inapplicable  to  the 
case  then  before  the  court. 

It  can  not  be  denied  but  the  decision  in  Clarke  v.  Spenoe,  supra, 
covers  the  whole  ground  assumed  by  the  defendants'  counsel  in 
this  case,  but  it  has  never  yet  been  followed  in  this  country. 
In  Moody  v.  Brown,  84  Me.  107  [56  Am.  Dec.  640],  allusion  is 
made  to  such  an  exception  to  the  general  rule,  but  it  was  un- 
necessarily said,  inasmuch  as  it  was  adjudged  that  the  case 
did  not  come  within  such  an  exception.  It  has  also  been  stated 
in  the  elementary  books  as  resting  on  the  English  decisions  I 
have  cited:  Story  on  Sales,  sees.  315,  316;  Chit.  Gont.  378; 
Long  on  Sales,  288.  I  find  no  adjudged  case  in  which  the  ex- 
ception claimed  has  been  applied  in  this  country,  and  the  case 


64  Andbsws  v.  DuBAirr.  [New  York, 

of  Clarke  y.  Spenoe,  mipra,  not  being  authority  of  itself,  ought  not 
to  be  followed  here  if  it  ib  in  conflict  mth  well-flettled  principlefl 
of  law,  or  inconsistent  with  decisions  made  in  our  own  state. 
We  are  not  placed  in  a  situation  to  feel  anj  of  the  embarrassment 
from  a  supposed  precedent  under  which  the  court  felt  compelled, 
in  the  case  of  Clarke  t.  Spencer  aupra,  to  make  a  decision  incon- 
sistent with  their  own  reasoning  and  against  their  own  good 
judgment.  A  well-established  general  rule,  if  founded  upon 
principle,  should  not  be  invaded  by  an  exception  without  good 
reason. 

The  question  is  simply.  What  was  the  contract  of  the  parties  ? 
Laidler  v.  Burlinson,  2  Mee.  &  W.  603.  If  it  was  intended 
that  certain  parts  of  the  vessel  should  pass  to  the  defendants  as 
the  work  progressed  and  was  paid  for,  it  was  very  easy  for  the 
parties  to  have  so  provided  in  the  contract  in  express  terms. 
As  they  did  not  do  this,  we  must  gather  the  intent  from  the 
contract  as  expressed.  It  is  not  a  contract  to  purchase  parts  of 
a  barge,  but  an  entire  vessel;  and  the  general  rule  that  the  title 
does  not  pass  till  completion  and  delivery  must  control  the 
construction,  unless  a  different  contract  is  to  be  implied  from 
the  fact  that  the  bazge  was  built  under  the  superintendence  of 
a  person  employed  and  paid  by  the  defendants,  and  was  paid 
for  by  installments  at  certain  stages  of  the  work. 

It  can  not  be  claimed  that  the  employment  of  a  superintendent 
who  decided  upon  the  quality  of  the  materials  and  approved  the 
work  amounted  to  a  delivery  of  the  parts  as  the  work  progressed; 
but  it  is  supposed  that  inasmuch  as  it  bound  the  builders  to 
deliver  that  particular  barge,  and  took  away  from  them  the  right 
to  substitute  another  in  its  place,  it  amounted,  together  with  the 
payments,  to  a  transfer  of  the  general  property  to  the  purchaser. 
The  mere  payment  by  installments  at  specific  stages  does  not 
of  itself  imply  anything  further  towards  a  change  of  title  to 
property  than  the  payment  of  installments  at  fixed  periods  of 
time.  Now,  conceding  that  the  effect  of  both  these  circum- 
stances combined  is  to  place  the  builder  in  a  situation  in  which 
he  would  be  bound  to  finish  and  deliver  the  specific  vessel  begun, 
it  by  no  means  follows  that  they  vest  the  title  to  the  vessel  in 
the  purchaser  before  its  completion.  It  becomes,  in  such  case, 
simply  a  contract  for  the  finishing  and  delivery  of  that  par- 
ticular vessel;  and  the  obligations  upon  the  parties  are  the  same 
as  if  the  builder  had  contracted  to  finish  and  deliver  a  particular 
vessel  partly  constructed  at  the  time  of  the  contract. 

MerriU  v.  Johnaon,  7  Johns.  473  f  5  Am.  Deo.  2891,  waa  a  case 


July,  l(i54]  Andbsws  t;.  Dubant.  Of 

in  which  it  iraB  adjudged  that  the  property  to  the  tcbboI  remained 
in  the  builder  until  completion  and  deliTery,  though  some  of  the 
materials  employed  had  been  furnished  by  the  purchaser.  The 
question  of  ownership  by  no  means  depends  upon  the  right  that 
a  particular  artide,  in  preference  to  another,  shall  be  finished  for 
the  purchaser.  In  H^rriffT.c/b/^nsonySupm^  Travis  agreed  to  build 
a  ship  for  E.  Merritt  and  to  furnish  the  timber  for  the  frame,  and 
£.  Merritt  was  to  pay  in  installments  and  furnish  the  materials  for 
the  joiner's  work.  E.  Merritt  furnished  various  materials  and  ad- 
vanced money  to  Travis  with  which  to  purchase  other  materials^ 
and  afterwards  assigned  the  contract  to  D.  Merritt^  who  con- 
tinued to  furnish  materials  and  advance  money  to  Travis  on  the 
contract  until  about  one  third  the  vessel  was  finished,  Travis  hav- 
ing furnished  the  materials  he  was  bound  to  supply  under  the 
contract,  when  it  was  levied  on  under  an  execution  against  Travis 
and  sold  by  the  sheriff  to  C,  who  afterwards  completed  the 
vessel  and  sold  her  to  Johnson.  An  action  of  trover  being 
brought  by  D.  Merritt  against  Johnson,  it  was  held  that  the 
property  in  the  vessel  was  in  Johnson,  and  that  D.  Merritt  could 
not  have  any  property  in  the  vessel  under  the  contract  until  she 
was  completed  and  delivered  to  him.  This  was  therefore  a  case 
where  the  ownership  remained  in  the  builder,  though  he  would 
have  no  right  to  have  substituted  another  vessel  in  its  place,  part 
of  the  materials  having  been  furnished  by  the  purchaser.  It  ap- 
peared in  MerriU  v.  Joknaon^  supra,  that  the  ship  was  built  upon 
ground  hired  by  Travis,  and  in  this  suit  the  barge  remained  at 
the  yard  of  the  builders.  It  is  said,  however,  in  Johnson  v.  Bunt, 
11  Wend.  139,  that  had  the  fact  been  different  in  MerriU  v. 
Johnson,  supra,  it  would  not  have  changed  the  result  See  also 
Blackburn  on  Sales,  158;  Gregory  v.  Siryker,  2  Denio,  628; 
Mixer  v.  Howarth,  21  Pick.  206  [82  Am.  Deo.  266]. 

I  think  the  legal  title  to  the  barge  remained  in  the  builders  at 
the  time  of  their  assignment  to  the  plaintiffs,  and  the  judgment 
of  the  supreme  court  should  be  reversed  and  a  new  trial  ordered. 

Judgment  reversed,  and  new  trial  ordered. 


Propxbtt,  whin  Passes  ik  Vxssel  or  Abticls  to  be  Built  ok  Maku« 
VACruBU):  See  MerriU  v.  Johnmm,  6  Am.  Dec.  289;  note  to  Putcifer  ▼. 
Page,  54  Id.  586;  Moody  v.  Brown,  56  Id.  640,  and  note^  The  principal 
ease  has  been  frequently  followed,  cited,  and  referred  to  on  the  point  that 
where  a  vessel  or  article  has  been  contracted  to  be  built  or  constructed,  the 
property  remains  in  the  builder  untU  completion  and  delivery :  Low  v.  Austin, 
20  K.  Y.  182;  McOwiihe  v.  New  York  *b  Erie  R.  R,,  Id.  497;  People  ex  reL 
Pacific  Mail  SUanuhip  Co,  v.  Corners  qf  Taxes,  58  Id.  247;  Seymour  v.  Monl- 
goTnery,  1  Keyes,  466;  CoryeU  v.  Perine,  6  Bobt.  40;  Low  v.  AutUmt  26 
Am.  Dao.  Vol.  LZn— < 


66  Andrews  u  Uueakt,  [New  York^ 


BmIx  28;  (km^wrl  y.  KienUd,  26  Id.  473;  ^a/>py  ▼.  Mother,  47  Id.  503; 
HaUerUne  y.  ITtce,  62  Id.  600;  Dyckman  y.  VaUenie,  43  Id.  142;  S.  C,  28 
How.  Pr.  847;  ITr^Al  ▼.  O'Brien,  5  Daly,  66;  ^rotro  y.  Morgan,  2  Bosw.  488; 
Decker  Y.  fkmUt,  8  Daer,  317;  PiUeburg  etc.  B'y  v.  //edk,  60  Ind.  308; 
Honey  y.  The  Schooner  RotabeUe,  20  Wis.  249;  Lyman  y.  Becannon,  29  Mich. 
471;  nnlen  an  agreoment  to  the  contrary  appears:  See  People  ex  rei  Paeijtc 
Mail  SUamMp  Co.  y.  Com*r$  qf  Taxes;  Ilcuiey  v.  The  Schooner  RoBobeUe, 
iupra.  A  more  formal  proposition,  to  which  the  principal  case  has  been  often 
cited  and  its  langnage  quoted,  is  that  a  contract  for  the  building  of  a  vessel 
or  other  thing  not  yet  in  cue  does  not  yest  any  property  in  the  party  for 
whom  it  is  to  be  oonstmoted  dnring  the  progress  of  the  work,  nor  nntil  it  is 
finished  and  deliyerod,  or  at  least  ready  for  deliyery,  and  approyed  by  such 
party:  TompHnB  y.  Ihtdley,  25  N.  Y.  273;  IligginB  v.  Murray,  73  Id.  254; 
Mackay  y.  Maekay,  I  Lsns.  607;  Hubbard  y.  O'Brien,  8  Hun,  245:  Sutiony. 
Campbell,  2  Thomp.  k  G.  687;  HaU  v.  Oreen,  I  Houst  558;  WilHama  v.  Jack^ 
man,  16  Gray,  614;  the  last  case  citing  the  principal  case  as  containing  an 
elaborate  discnssion  of  all  the  decided  cases,  and  an  exposition  of  the  applica- 
tion of  the  rule  of  law  to  contracts  for  the  building  of  ships  adopted  in  New 
York  and  confirmed  by  subsequent  decisions.  The  principal  case  is  in  full 
accord  with  the  early  English  cases,  which  hold  that  where  a  builder  agrees 
to  furnish  the  materials  and  construct  a  yessel  or  other  thiiig  not  in  esse,  to 
be  paid  for  in  installments  as  the  work  progresses.  It  is  a  contract  for  work 
and  materials,  and  not  one  of  sale,  and  the  title  remains  in  the  builder  until 
the  work  is  completed  and  delivered:  MioU  v.  Edwards,  85  N.  J.  L.  268. 
It  frequently  happens  that  one  man  owns  the  keel,  and  employs  a  ship-builder 
to  furnish  materials  and  finish  the  ship;  such,  materials,  though  completely 
finished,  remain  the  property  of  the  builder  until  they  actually  become  apart 
of  the  stmctnre  of  the  ship:  Hood  y.  Manhattan  F.  Ins.  Co.,  UN.  Y.  541; 
and  where  a  carpenter  agreed  to  make  certain  repairs  upon  the  defendant's 
house,  and  to  furnish  the  lumber,  which  the  defendant  was  to  draw,  and  the 
lumber  was  selected  and  drawn,  no  title  passed  until  the  materials  were  affixed 
to  the  freehold:  AhboU  v.  Blossom,  66  Barb.  364.  The  rule  that  where  a 
party  orders  a  thing  to  be  made  it  does  not  become  his  property  until  it  is 
delivered  into  his  possession  also  obtains,  even  though  he  may  have  paid  for 
it  in  advance,  or  furnished  a  large  portion  of  the  materials  of  which  it  is  con- 
structed*: Wright  V.  O'Brien,  6  Daly,  56.  A  biU  of  sale  of  an  article  not  in 
existence  likewise  vests  no  title  in  the  one  to  whom  given:  Ilort  v.  Taylor^ 
82  N.  Y.  376.  The  principal  case  has  been  further  cited  m  Qreen  v.  HaU,  1 
Houst.  515;  HaU  v.  Oreen,  Id.  660;  In  re  Derbyshire's  Estate,  11  Phila.  628; 
Chambers  v.  Board  qf  Education,  60  Mo.  377,  as  repudiating  the  doctrine  of 
the  English  cases  of  Woods  v.  RusseU,  5  Bam.  k  Aid.  942;  Clarke  v.  Spence,  4 
Ad.  k  El.  448;  Aihine(m  v.  BeU,  8  Bam.  k  Cress.  277;  but  in  In  re  Derbyshire's 
Estate,  supra,  the  court  favored  the  English  constraction,  as  altogether  appli- 
cable to  Pennsylvania,  and  declined  to  follow  the  principal  case.  In  Wright 
Y.  O'Brien,  5  Daly,  60,  however,  it  is  said  that  the  principal  case  does  not 
question  the  decision  of  Woods  v.  RusseU,  supra,  upon  the  ground  that  the 
builder,  before  the  ship  was  completed,  signed  a  certificate  under  which  the 
person  who  ordered  the  vessel  was  entitled  to  register  her  In  his  own  nameu 
In  Chambers  v.  Board  of  Education,  supra,  the  court  observes  upon  WHi- 
iams  V.  Jackman,  supra,  and  the  principal  case:  **  In  these  cases  it  was  held 
that  the  general  mle  of  law  was  well  settled  that  under  a  contract  for  build* 
ing  a  ship  or  making  any  other  chattel,  not  in  existence  at  the  time  of  the 
contract,  no  property  vests  in  the  purchaser  during  the  progress  of  the  woriCt 
•or  nnUl  the  ship  or  other  chattel  is  finished  and  delivered.    At  the  Mat 


V 

i 


Jnljf  1854]  Andbsws  v.  Dxtbaht.  67 


time  it  wbs  oonooded  that  there  were  exoeptioDB  to  thii  mle  growing  oat  <d 
expreai  Btipnlationa  in  the  contract  between  the  orderer  and  tiie  builder,  bj 
which  the  building,  as  it  progressed,  might  vest  in  the  purchaser  from  time 
to  time.    But  they  denied  that  an  agreement  to  pay  the  purchase  money  in 
instellmcDtB,  aa  the  work  progressed,  or  a  stipnlation  for  the  employment  ol 
a  superintendent  by  the  purchaser  or  orderer,  would  operate  to  change  the 
general  rule  of  law,  and  vest  the  title  in  the  orderer  to  so  much  of  the  chattel 
aa  was  built.    The  question,  as  these  American  courts  declare,  depends  on 
the  intent,  to  be  inferred  from  any  interpretation  of  the  contract.    If  the 
Intent  of  the  parties  to  the  contract  is  to  invest  the  property  in  the  purchaser 
during  the  progress  of  the  work,  and  before  its  completion,  the  courts  will 
give  effect  to  such  intent,  and  the  property  be  held  to  pass;  but  the  general 
rule  of  law  will  prevail  unless  the  intent  is  clearly  manifested."    It  was  said 
in  Santlfard  v.  Wiffffina  Ftrry  Co,,  27  Ind.  524,  525,  that  the  conflict  of  lead- 
ing authorities  on  this  question  turns  rather  on  the  weight  given  to  particular 
oircamstances  as  evidence  of  intention  than  on  any  dispute  about  the  princi- 
ple itself,  although  it  must  be  admitted  that  the  principal  case  was  in  conflict 
with  the  English  cases  cited  tupra;  and  it  was  further  said  that  the  attempt 
of  Denio,  J.,  to  show  that  Oiarhe  v.  Spence,  tnpra,  was  in  violation  of  a  plain 
mle  of  law,  and  that  the  decision  was  reluctantly  made,  was  hardly  a  fair  view 
of  the  case,  and  was  best  answered  by  the  opinion  of  WiUiams,  J.     And  in 
Cakua  SttambocU  Co.  r.  Scudder,  2  Black,  384,  the  English  authorities  and 
the  principal  case  are  cited,  per  Clifford,  J.,  dissenting,  to  the  effect  that  the 
general  role  given  above,  as  to  property  in  a  vessel  passing,  does  not  prevail 
where  the  vessel  ia  constructed  under  the  superintendence  of  the  party  for 
whom  she  is  built^  or  his  agent,  and  payments  for  her,  based  upon  the  prog 
resa  of  the  work,  are  to  be  made  by  installments  as  the  work  is  done.    The 
parties  may,  however,  agree  when  and  upon  what  conditions  the  property 
shall  vest  in  the  prospective  owner:  Dexter  v.  BeviM,  42  Barb.  575;  Wright  v. 
O'Brien,  5  Daly,  56;  WhUcamb  v.  W'KUney,  24  Mich.  490;  and  see  Chamber$ 
T.  Board  qf  Education,  »upra;  In  re  DefhyikMa  EetaU,  11  Phila.  628,  all  cit- 
ing or  quoting  the  principal  case;  and  the  question  is  simply.  What  was  the 
contract  of  the  parties  7    If  it  was  intended  that  certain  parts  of  the  article 
should  pass  to  the  vendee  as  the  work  progressed  and  was  paid  for,  it  was 
very  easy  to  have  so  provided  in  the  contract  in  express  terms,  and  if  not,  the 
intention  must  be  gathered  from  the  contract  as  expressed:  Sand  ford  v. 
Wiggina  Ferry  Co,,  27  Ind.  524,  quoting  from  the  opiuion  of  Parker,  J.,  in  the 
principal  case;  see  also  Smith  v.  Edwards,  29  Hun,  496,  to  nearly  the  same 
effect;  and  if,  taking  all  the  stipulations  together,  it  is  clear  that  the  parties 
intended  that  the  property  should  vest  in  the  purchaser  during  the  progress 
of  the  work,  and  before  its  completion,  effect  will  be  given  to  such  intention, 
and  the  property  will  pass,  but  it  will  not  be  deemed  to  have  passed  out  of 
the  builder  unless  the  intent  is  clearly  manifested:  Briggs  v.  A  Liyht  Boat, 
7   Allen,  293;  and  see  Chcunbers  v.  Board  qf  Education,  euj/ra;  WrigfU  v. 
O'Brien,  5  Daly,  66,  all  citing  the  principal  case.    But  the  principal  case  has 
no  application  to  one  where  the  property  is  to  be  delivered  at  different  times, 
and  received  and  accepted  as  a  delivery  was  made  from  time  to  time:  Bur^ 
raw§  V.  Whitaier,  71  N.  Y.  295.     If,  also,  the  article  is  finished  and  delivered 
and  accepted,  the  property  passes:  Scudder  v.  Calais  Steamboat  Co,,  1  Cliff. 
879;  Hubbard  v.  O^Brien,  8  Hun,  245,  both  citing  Andrew  v.  Durant,    The 
principal  case  was  said,  in  WhUeomb  v.  WhUneif,  24  Mich.  489,  to  have  very 
little  bearing  upon  a  case  where  there  was  a  contract  for  the  purchase  of  all 
the  lumber  of  certain  grades  that  should  be  manufactured  at  a  certain  mill 
during  a  certain  season,  "  to  be  delivered  on  rail  of  vessel  when  lumber  is 


€8  Bishop  v.  BmaoB^  [New 

«Mdy  ta  ihlp^  or  when  Tanel  ia  ready  to  send  for  it;**  and  wlienat  tiia  aod  «i 
the  aeaaon,  upon  notioe  from  the  ▼endor,  the  vendee  aent  an  inapeetocv  who» 
acting  for  both  partiea*  inapected  the  lamber  at  the  mill,  which,  aa  faat  aa  in* 
^peoted,  waa  haoled  aome  forty  roda  to  the  dock  to  bedelivered  on  the  veaaal, 
«nd  the  vendee  notified,  the  title  veata  in  the  vendee. 

MxBOiLLAiiBOUB  CITATIONS  OF  Pbingipal  Cabs.— In  BoU  V.  Omoka  Nmtimud 
Scmk^  49  N.  Y.  633,  to  the  point  that  where  leaaeea  covenant  to  pay  the  veal 
aa  it  ahall  become  dae,  and  add,  '*  a  lien  to  be  given  by  the  aald  leaooea  to 
«aid  leaaor  to  aecnre  the  payment  thereof  on  all  the  fnmitore  that  ahall  be 
f>laoed  in  aaid  hotel  by  aaid  leaaeea,"  the  partiea  evidently contemplatod  aome 
farther  act  or  deed  to  complete  and  perfect  the  aeeority;  and  in  Awdmw  v. 
DwraifUt  IS  Id.  50Q,  on  a  anbeeqnent  trial,  to  the  point  that  the  claim  of  tide 
m9M  thwein  determined  to  be  nnfoonded. 


Bishop  v.  Bishop. 

lU  Haw  YoBX  (1  KsBiTAiv),  13S.] 
FOLBS  AdATTSD  AVD  UsEB  rOB  CULTIVATINO  H0F8  T7P0H  PABM  ABB  PaBT 

Of  Rbaiat,  equally  while  in  nae,  and  while,  having  been  taken  down  for 
the  pnrpoae  of  gathering  the  crop,  they  are  lying  piled  upon  the  premiaea 
with  the  intention  of  being  need  again  next  aeaaon. 

Appeal  to  review  a  judgment  oyemiliiig  a  demoner  to  an  an- 
-Bwer.  The  action  was  on  a  note  given  for  the  price  of  a  pazoel 
of  hop-poles  sold  by  plaintiff  as  executrix  of  the  former  owner. 
The  defense  was  failure  of  consideration,  in  that  the  poles  had 
been  withheld  from  defendant  by  purchasers  of  the  fum,  aa 
being  part  of  the  realty.    The  appeal  was  snbmittMl. 

Oeorge  W,  Sumner^  for  the  appellant. 

Southtoorth  and  PrUchard,  for  the  respondent. 

By  Court,  GABrnmEB,  C.  J.  The  only  question  presented  in 
this  case  is,  whether  the  hop-poles,  at  the  time  of  the  sale  to  the 
defendant,  were  personal  property,  or  to  be  deemed  part  of  the 
realty.  This  question,  I  think,  is  settled  by  the  facts  stated  in 
the  answer,  to  which  the  plaintiff  has  demurred.  If  hop-poles 
constitute  a  portion  of  the  real  estate,  the  defendant  acquired 
sio  title  to  those  purchased  by  him,  conceding  the  truth  of  the 
«nswer.  Assuming,  as  we  must,  the  truth  of  the  facts  alleged 
by  the  defendant  in  his  answer,  the  hop-poles  were  at  the  time 
of  the  sale  a  part  of  the  realty.  Of  course  no  title  passed  to 
the  purchaser,  and  the  note  in  question  was  wholly  wittiout  oon* 
fiideration. 

The  root  of  the  hop  is  perennial,  continuing  for  a  series  of 
years.  That  this  root  would  pass  to  a  purchaser  of  the  real 
estate,  there  can  be  no  question.    The  hop-pole  is  indispen* 


July.  1864.]  Bishop  v.  Bishop.  69^ 


table  to  fhe  proper  enltiTation  of  this  crop.  It  is 
sTSned  and  admitted  that  the  polea  belonged  to  the  jard  upoa 
these  premises,  that  they  were  lased  for  the  purpoees  of  eultivar-^ 
tion,  and  weire  ranoTed  from  the  place  where  they  were  aet  ift 
the  usual  coarse  of  agricnltnre  with  a  Tiew  to  gather  the  crop,  anci 
without  any  design  to  serer  them  from  the  freehold;  bat  on  the 
oontiaiy,  withthepnipoeeof  repLudngthemastheezigencyof  the 
new  growth  required.  In  a  word,  they  were  to  be  permanently 
naed  upon  the  land,  and  were  neceesaiy  for  its  proper  improve- 
ment. If  the  poles  had  been  standing  in  the  yard  at  the  time^ 
of  the  sale,  all  admit  that  thej  would  have  formed  a  part  of  the 
realty.  But  by  being  placed  in  heaps  for  a  temporaiy  purpose,, 
they  would  not  lose  their  distinctiTe  character  as  appurtenant 
to  the  land  any  more  than  rails  or  boards  from  a  fence  in  the 
same  condition  would  become  personal  property.  Indeed,  the  casa. 
can  not  be  distinguished  from  Goodrich  t.  Jone$,  2  Hill  (N.  Y.)w 
142,  where  it  was  held  that  manure  in  heaps  in  the  yard,  and 
that  fences,  constitute  part  of  the  freehold;  and  where  the  ma- 
terials of  which  the  fence  is  composed  were  temporarily  detached 
without  any  intent  to  divert  them  from  their  original  use,  it 
would  work  no  change  in  their  nature. 

The  opinion  in  the  case  cited  was  pronounced  by  Justice 
Gowen,  who  was  himself  an  advocate  for  the  doctrine  of  corpce- 
real  annexation,  as  being  in  general  the  true  criterion  of  a  tx^ 
tore:  Walker  t.  Sherman,  20  Wend.  666.  But  all  that  was 
claimed  hy  the  learned  justice  in  his  elaborate  opinion  in  Walker 
1.  Sherman,  tupra,  was  that  the  chattel  should  be  ' '  habitually  at- 
tached to  the  land,  or  some  building  upon  it"  "  It  need  not,'^ 
he  adds,  *'  be  constantly  fastened."  I  think,  according  to  this 
principle,  that  hop-poles  which  are  put  into  the  ground  every 
season,  and  continue  there  until  they  are  removed  to  gather  the 
crop,  and  which  are  designed  to  be  thns  used  in  the  same  yard 
for  the  same  purpose  until  they  decay  by  lapse  of  time,  may,. 
without  impropriety,  be  considered  as  "habitually  attached  ta 
the  land,"  although  "  not  constantly  fastened  to  it." 
The  judgment  of  the  supreme  court  should  be  aflbmed. 

Edwasds,  Alleh,  Pabkeb,  and  Sbldkh,  JJ.,  concurred. 

DsHio  and  Johkson,  JJ.,  dissented. 

TaxuBMa,  What  abs:  See  Orof  v.  HokMp,  17  Am.  Deo.  680,  and  nole 
eoeridering  tfaaqiMBtiim;  and  m  to  the  criterioos  of  flztorei,  eee  Tt^fv,  Bew^ 
itt;  60  Id.  S84,  and  notet  oc^eoting  and  claaaifying  prior  caaee  in  this  seriea. 
Aa  to  when  manure  ia  a  part  of  the  freehold,  see  Kittredge  ▼.  WootU,  14  Id. 
M;  note  to  ti^roy  ▼.  HddtMp,  17  Id.  COO,  098;  Denkb  ▼.  PoimI,  82Id.  2e9| 


70  Bishop  v.  Bishop.  [New  York, 

SmUkwkk  T.  EUbon,  38  Id.  697;  bnildings:  Ta/j^  ▼.  T<nimmkd,  5  Id.  107s 
Bus9eU  ▼.  Biehardt,  25  Id.  254;  Butler  y.  Page,  39  Id.  757;  OvrUas  v.  //o^^ 
48  Id.  149;  OiUiam  t.  J?^,  49  Id.  379;  note  to  Pulc\fer  v.  Page,  54  Id.  5SS; 
machinery:  Tec^y.  IletciU,  supra,  and  note  collecting  prior  caaes;  iron  rolls 
and  plates  constituting  floor  of  rolUng-mill:  Pyle  v.  Pennock,  37  Id.  517;  fire- 
frame  fixed  to  fire-place:  Oaffield  v,  Ilapgood,  28  Id.  290;  mirrors  placed  in 
recesses  in  walls:  Mackie  y.  Smith,  52  Id.  615;   case  of  drawers,  and  slioir- 
case:  Cross  7.  AlartUm,  44  Id.  353;  cider  mill  and  press:  Holmes  v.  Tremper^ 
1 1  LI.  238;  gas-pipes  sunk  in  soil:  Providence  Oas  Co.  v.  7*Attr6er,  55  Id.  621; 
and  as  to  gas-fixtaros  generally,  see  note  to  Gray  v.  IJoldship,  17  Id.  691« 
llop-poles  nsed  in  raising  hops  upon  a  farm  are  part  of  the  real  estate  coyered 
by  a  mortgage  thereon:  Stdlivan  v.  Toole,  26  Uun,  294,  citing  the  principal 
ease;  bnt  where  hop-poles  are  pot  on  a  farm  by  a  tenant  for  his  own  use,  ha 
has  a  right  to  remove  them,  both  as  between  himself  and  his  landlord,  and 
his  landlord's  grantee:  IVing  v.  Cray,  36  Vt.  269,  distingaishing  the  principal 
case  as  decided  substantially  between  grantor  and  grantee.     In  Stevens  v. 
Buffalo  A  New  York  City  B.  B.,  31  Barb.  615,  it  was  said  that  the  reason  as- 
signed for  the  decision  in  the  principal  case  was  that  the  poles  were  to  be 
pennanently  used  upon  the  land,  and  were  necessary  for  its  proper  improve- 
ment; but  it  was  apprehended  tliat  it  was  not  intended  that  everything  neoes- 
lary  for  the  proi>er  improvement  of  land  became  real  estate;  and  in  Farm' 
ers*  Loan  cC-  T,  Co,  v.  Jlendrickson,  25  Id.  491 ,  after  giving  the  above  reason, 
anil  the  grounds  of  dissent  by  Denio,  J.,  viz.,  because  the  poles  had  not  been 
constantly  fastened  to  the  ground,  and  were  not  constructively  annexed,  as  it 
did  not  appear  that  the  inheritance  could  not  be  enjoyed  without  their  use, 
or  tliat  they  were  accessories  necessary  to  the  enjoyment  of  the  principal,  it 
was  said  that  it  might  be  inferred  from  the  remarks  of  Gardiner,  O.  J.,  that 
he  thought  the  doctrine  of  corporeal  annexation  had  been  laid  down  too 
strictly  in  Walker  v.  Sherman,  20  Wend.  665;  and  it  would  seem  from  the 
remarks  of  both  Gardiner  and  Denio  that  they  concurred  with  In  re  Olympic 
Theatre,  2  Browne  (Pa.),  285,  that  where  an  instrument  or  utensil  is  a  neces- 
sary accessory  to  the  enjoyment  of  the  inheritance  it  is  to  be  considered  as  a 
part  of  such  inheritance.    In  Noyes  v.  Terry,  1  Lans.  222,  the  principal  case 
is  commented  upon  as  having  carried  the  rule  to  its  extremest  point,  and  wai 
only  to  be  sustained  on  Uie  precise  ground  on  which  it  was  put,  viz.,  that  as 
the  hop-root  is  perennial,  and  would  pass  to  a  purohaser,  so  the  pole  which  is 
used  exclusively  in  connection  with  it,  and  is  indispensable  to  its  cultiyation, 
passes  equally  to  such  purchaser.     The  opinion  of  Denio,  J.,  is  further  favor- 
ably commented  upon,  and  apparently  followed.    That  hop-poles  taken  down 
and  piled  in  the  yard  with  the  intention  of  being  used  the  following  season 
are  part  of  the  realty  is  a  proposition  to  which  the  principal  case  has  been 
cited  in  Brackett  v.  Ooddard,  54  Me.  313,  in  holding  that  hemlock  trees  cut 
down  and  lying  where  cut,  with  the  bark  pulled  off,  but  with  the  tops  on, 
will  pass  by  a  deed  of  the  land;  in  Strickland  v.  Parker,  Id.  267,  in  holding 
that  a  marine  railway  consisting  of  iron  and  wooden  rails  and  sleepers,  end- 
less chain,  gear,  Mheels,  and  ship-cradle,  and  constructed  in  the  usual  man- 
ner, was  a  fixture,  and  passed  by  a  levy  upon  the  realty;  in  Beardsley  v.  On- 
tario Bank,  31  Barb.  634,  in  holding  that  locomotive-engines  and  other  rolling 
stock,  stock  materials,  rails,  ties,  etc,  were  not  real  estate;  and  in  Fay  v. 
Mvxuy,  16  Gray,  56,  in  holding  that  manure  taken  from  the  barn-yard  of  a 
homestead  and  piled  upon  the  land,  though  not  broken  up  nor  rotten,  nor  in 
a  fit  condition  for  incorporation  with  the  soil,  was  part  of  the  realty,  and  did 
not  go  to  the  administratrix  of  the  ovmer.   The  principal  case  has  been  fnrthef 
cited  in  WebUer  v.  Zielly,  52  Barb.  484,  to  the  point  that  hop-roots,  whan 


Jidy,  1854.]      .    Watkbhah  v.  Whithxt.  71 

iMtod  in  fbe  graoiid,  an  a  part  of  tlw  red  «tteto  of  tiM  ivoprittorof  t^ 
nd  mmld  pan  hy  a  oonTeyaace  of  tlie  land;  in  JWmA  t.  HmrringUmt  86  Id. 
415,  it  b  oomnieiitod  upon  aa  a  eiae  which  depcndad  upon  other  oomlder- 
altioDB,  and  not  Beoenarily  iiiTohred  in  one  when  the  qnoation  waa  whath« 
hops  growiag  and  maturing  on  Tinei  ware  pereonal  chafttnle  within  the  mean* 
ing  of  the  etatnte  of  frauds;  in  Potton  ▼.  Moore^  16  W.  Va.  499,  it  ie  leferred 
to  in  holding  that  if  an  engine  and  boiler  haTe  been  booght  by  the  owner  of 
a  mill,  and  hauled  upon  hie  gioandi  into  the  mill-yard  with  the  6ona  JUie  in- 
tention of  attaching  them  to  the  millf  and  they  are  neceewy  for  the  porpoee 
for  which  they  are  to  be  need,  they  most  be  regarded  aa  a  part  of  the  realtyi 
and  not  liable  to  the  levy  of  an  ezeeation  as  personal  property;  see  also  the 
opinion  of  Denio,  J.,  quoted  in  Sievena  y.  Bt{falo  S  New  Tork  CUy  J2.  J?.,  81 
Barb.  603,  in  considering  whether  engines^  cars,  and  other  rolling  stoek  on 
railroads  were  a  part  of  the  real^;  in  People  ex  reL  New  Tork  JBfcsaled  J2L  A 
T.  Commuaumera,  19  Hun,  462,  it  is  dted  to  the  point  that  aa  to  the  founds 
tions  of  an  elevated  railroad,  standing  alone,  they  were  clearly  within  the 
common-law  rule  as  to  fixtures;  snd  in  Riektmifer  r*  Mcru^  4  Abb.  App. 
Dec  59:  S.  C,  6  Abb.  Fr.,  N.  S.,  48;  3  Keyes,  862;  87  How.  Pr.  89%  it  is 
dted  to  the  point  that  where  a  building  ia  erected  upon  the  land  of  one  per* 
son  by  another  without  any  agreement  or  understandings  it  becomes  a  part  of 
^e  realty,  and  peases  under  a  conveyance  of  the  land;  it  is  sufficiently  af- 
fixed  to  the  freehold.  The  adjustment  of  gsa-fiztnrea  to  a  gsa-plpe  is  not 
such  an  annexation  to  the  freehold  as  to  make  them  a  part  of  the  realty,  and 
sabject  them  to  the  operation  of  a  grant  thereof:  Shaw  v.  Xenibe,  1  Daly,  488f 
they  are  not  a  part  of  the  realty,  as  in  the  prindpal  case.  Courts  of  New 
Tork  are  not  disposed  to  relax  the  rule  as  to  fixtures  against  the  grantor,  aa 
it  formerly  existed:  Jtfala  v.  Sehwanwaelder,  4  E.  D.  Smith,  276;  and  the 
same  rule  prevails  between  mortgagor  and  mortgagee  as  between  grantor  and 
grantee^  the  first  citing  and  the  second  referring  to  the  prindpal 


WaTEBMAST    V.  WmTNET. 

[11  Nbw  Tobx  (1  Ksaaiv),  157.} 

DMLABATioifa  ov  TisTATOK  Madx  aitkb  Ezicutioh  ov  Will,  relating  to 
the  disposition  of  his  property  thereby,  and  inconsistent  with  the  will, 
are  competent  evidence  under  an  issue  Involving  his  testamentary  c^ia- 
dty,  but  so  far  only  as  they  tend  to  show  his  mental  condition  at  the 
time  when  the  will  was  made. 

Appeal  from  a  decision  of  the  Bupreme  court  denjing  a  new 
trial  of  is8ti08  fnuned  to  determine  teetamentary  capacity.  The 
principal  question  ivas  whether  the  judge  below  erred  in  exclud- 
ing cTidenoe  by  contestant,  that  the  testator,  at  yarious  times, 
after  the  execution  of  the  will,  had  stated  to  Tarious  persons 
how  he  had  disposed  of  his  property  in  his  will;  which  state- 
ments where  totally  at  Taziance  with  the  contents  of  the  instra> 
ment 

Damd  8.  Dickinscm,  for  the  appellant.  «   < 

B,  DavU  Noxon^  Uxt  the  respondent. 


n  Watbbhlak  t;.  WmTHXT.  [New  York; 

By  Ooart»  Ssum,  J.  The  principal  question  rreeented  hf 
file  fain  of  exoeptione  in  this  case  is  as  to  the  admissibility  of 
the  declarations  of  the  testator  made  after  the  execution  of  the 
will.  The  subject  to  which  the  question  belongs  is  of  vexy  con- 
■ideiable  interest,  and  one  upon  which  the  decisions  are  to  some 
extent  in  conflict.  Much  of  the  difficuliy,  howcTcr,  has  arisen 
from  the  omission  to  distinguish  with  sufficient  clearness  be* 
tween  the  different  objects  for  which  the  declarations  of  testa- 
tors may  be  offered  in  evidenoe,  in  cases  involving  the  validiiy 
of  their  wills.  It  will  tend  to  elucidate  the  subject  to  consider 
it  under  the  following  classification  of  the  purposes  for  which 
the  evidence  may  be  offered,  viz. :  1.  To  show  a  revocation  of  a 
will  admitted  to  have  been  once  valid;  2.  To  impeach  the  valid- 
ity of  a  will  for  duress,  or  on  account  of  some  fraud  or  impo- 
sition practiced  upon  the  testator,  or  for  some  other  cause  not 
involving  his  mental  condition;  3.  To  show  the  mental  inca- 
pacity of  the  testatx)r,  or  that  the  will  was  procured  by  undue  in- 
fluence. The  rules  by  which  the  admissibility  of  the  evidence 
is  governed  naturally  arrange  themselves  is  accordance  with 
this  classification.  They  have,  however,  been  considered  in  most 
of  the  cases  withoHt  regard  to  it;  and  hence  much  of  the  appar- 
ent conflict  among  them  will  disappear  when  the  proper  dis- 
tinctions are  taken. 

To  show  the  state  of  the  authorities,  therefore,  and  what  the 
differences  really  are  between  them,  it  is  necessary  to  arrange  the 
cases  according  to  this  arrangement  of  the  objects  for  which  the 
evidence  is  given.  In  referring,  however,  to  Ihose  belonging  to 
the  first  of  these  divisions,  it  is  proper  to  premise  that  the  revo- 
cation of  a  valid  will  is  a  matter  which  not  only  in  England  but 
in  this  state,  and  in  most  if  not  all  the  other  states,  is  regu- 
lated by  statute;  and  these  statutes  are  substantially  the  same: 
those  in  this  country  being  for  the  most  part  taken  from  the 
English  statute  of  frauds.  Most  if  not  all  these  statutes  require 
either  a  written  revocation,  executed  with  the  same  formalities 
as  the  will  itself,  or  some  act  amounting  to  a  virtual  destruction 
of  the  will,  such  as  burning,  tearing,  obliterating,  etc.,  accom- 
panied hy  an  unequivocal  intention  to  revoke  it.  '  Mere  words 
will  in  no  case  amount  to  a  revocation. 

Under  these  statutes,  therefore,  the  only  posflible  purpose  for 
which  evidence  of  the  declarations  of  the  testator  can  be  given, 
upon  a  question  of  revocation,  is  to  establish  the  animo  revocandi; 
in  other  words,  to  show  the  intent  with  which  the  act  relied 
upon  as  a  revocation  was  dona     The  cases  on  this  subject  are 


July,  1864]  Watekicah  v.  WmnnBT.  78 

in  the  nuun  in  harmony  iriOi  eadi  oQier,  and  in  general  entirely 
aeeord  with  the  Tiew  here  preaented.  I  will  refer  to  a  few  ct 
the  most  prominent.  Bibb  t.  Thonuu^  8  W.  Black.  1044,  was  a 
case  of  rerooation  by  throwing  the  will  on  the  fire.  The  will 
^vas  not  consmnedy  bat  fell  off  the  fire,  and  was  taken  tip  and 
saved  by  a  bynstander  without  the  knowledge  of  the  testator. 
The  conrt  held  the  reyocation  complete.  The  case  was  held  to 
depend  upon  the  intent  with  which  the  will  was  thrown  upon 
the  fire;  and  to  establish  this  intent,  the  declarations  of  the  tes- 
tator, both  at  the  time  of  the  transaction  and  afterwards,  were 
teceiyed.  So  &r  as  regards  the  declarations  which  accompanied 
the  act,  this  was  in  accordance  with  general  principles  and  with 
all  the  other  cases;  but  I  apprehend  that  the  declarations  of  the 
testator,  made  after  the  transaction  was  over,  could  not  in  such 
a  case  be  properly  receiyed.  This  distinction,  howeyer,  was  not 
taken,  and  the  question  did  not  arise.  Doe  y.  Perkes,  3  Bam. 
ft  Aid.  489,  was  a  similar  case,  in  which  the  declarations  of  the 
testator  showed  that  he  had  abandoned  the  intention  to  destroy 
the  will  before  the  work  of  destruction  was  complete.  No  dec- 
larations were  proyed  in  this  case  except  those  which  were  clearly 
a  part  of  the  res  gesUB.  In  the  case  of  Dan  y.  Broum,  4  Cow. 
483  [15  Am.  Dec.  395],  it  was  insisted  by  the  counsel  that  upon 
a  question  of  revocation  the  declarations  of  a  testator,  made 
either  before  or  after  the  act  relied  upon,  were  admissible,  as 
well  as  those  which  accompanied  the  act  itself;  but  the  court 
held  that  declarations  accompanying  the  act,  such  as  were  a 
part  of  the  res  gestcB,  were  admissible  for  the  purpose  of  show- 
ing the  quo  ammo;  but  that  no  others  could  be  received.  In 
Jackson  y.  Betts^  6  Id.  877,  the  main  question  was  whether  a 
will  proved  to  have  been  once  properly  executed,  but  which 
could  not  be  found  after  the  death  of  the  testator,  had  been 
canceled  or  destroyed  and  thus  revoked,  or  whether  it  continued 
in  force;  and  evidence  was  offered  of  the  declarations  of  the 
testator  during  his  last  sickness  as  to  the  existence  of  his  will, 
and  the  place  where  it  would  be  found.  The  supreme  court 
held  the  evidence  not  admissible.  The  case  ultimately  went  to  the 
court  of  errors,  and  the  chancellor  there  expressed  doubts  as  to 
the  correctness  of  the  decision  of  the  supreme  court  upon  the 
point,  but  did  not  overrule  it:  See  BeOs  v.  Jackson^  6  Wend. 
178. 

I  conader  these  cases  as  establishing  the  doctrine  that  upon 
a  question  of  revocation  no  declarations  of  the  testator  are  ad- 
nrisrible  except  such  asacoompany  the  act  by  which  the  will  is 


74  Watebman  v.  WHmnsT.  [New  York, 

leroked;  sacli  declarationB  being  xeoeiTed  as  a  part  of  the  ret 
geskB  and  for  the  purpose  of  showing  the  intent  of  the  act.  The 
only  direct  decision  to  the  contrary  which  has  fallen  nnder  my 
observation  is  the  case  of  DurarU  y.  Ashmen,  2  Rich.  (S.  0.)  184. 
This  case,  howeyer,  is  in  conflict  with  anthoriiy  as  well  as  with 
principle.  The  fact  to  be  proved  in  such  cases  is  the  act 
claimed  as  a  revocation,  together  with  the  intent  with  which  it 
was  done;  and  all  declarations  of  the  testator  which  do  not  ac- 
company the  act  are  to  be  regarded  as  mere  hearsay ,  and  should 
be  treated  as  such. 

In  regard  to  the  second  class  of  cases,  viz.,  where  the  validity 
of  a  will  is  disputed  on  the  ground  of  fraud,  duress,  mistake, 
or  some  similar  cause,  aside  from  the  mental  weakness  of  the 
testator,  I  think  it  equally  clear  that  no  declarations  of  the  tes- 
tator himself  can  be  received  in  evidence  except  such  as  were 
made  at  the  time  of  the  execution  of  the  will,  and  are  strictly  a 
part  of  the  res  gestcB.  Jackson  v.  Kniffen,  2  Johns.  81  [3  Am. 
Dec.  890],  is  a  leadiujg  case  on  this  subject.  In  that  case  the 
plaintiff  claimed  as  heir  at  law;  the  defendant,  under  the  will  of 
David  Eniffen.  The  plaintiff  gave  evidence  tending  strongly 
to  show  that  the  will  was  obtained  by  duress,  and  offered  to 
follow  this  up  by  proof  of  the  testator's  declarations,  some  of 
them  made  in  extremis,  that  the  will  had  been  extorted  from 
him  by  threats  and  duress.  The  court  held  the  evidence  inad* 
missible.  Thompson,  J.,  says:  ''This  will  might  have  been 
executed  under  circumstances  which  ought  to  invalidate  it,  but 
to  allow  it  to  be  impeached  by  the  parol  declaration  of  the  tes- 
tator himself  would,  in  my  judgment,  be  eluding  the  statute, 
and  an  infringement  upon  well-settled  and  established  princi- 
ples of  law."  In  Smith  v.  Fenner,  1  Gall.  170,  one  of  the 
questions  was  whether  the  will  of  Arthur  Fenner  had  been  ob- 
tained by  fraud  and  imposition,  and  the  plaintiffs  offered  to 
prove  declarations  of  the  testator  to  that  effect,  made  before 
and  at  the  time  of  making  the  will  and  immediately  afterwards. 
He  also  offered  to  prove  similar  declarations  made  afterwards  at 
different  times  during  the  last  years  of  his  life.  The  court  held 
that  the  declarations  made  before,  as  well  as  at  or  so  near  the 
time  as  to  be  a  part  of  the  res  gesUs,  were  admissible,  but  not 
those  made  afterwards.  So  far  as  this  case  seems  to  justify  the 
reception  of  declarations  made  before  the  execution  of  the  will 
to  prove  fraud  or  duress,  I  think  it  inconsistent  with  principle, 
as  well  as  opposed  to  the  best  considered  of  the  modem  casen. 
In  other  respects,  it  is  in  accordance  with  both.    In  the  case 


July*  1854]         Watebman  v.  WHiTNir.  7S 

of  Sieveng  t.  Vancleve,  4  Wash.  262,  it  was  made  a  qaeatioii 
vhetherairfllhadbeen  dulj  executed;  and  as  bearing  npon 
ihat  question,  the  defendant's  counsel  offezed  to  proye  that  the 
uniform  declarations  of  the  testator  in  favor  of  the  defendant, 
who  was  the  devisee,  had  been  consistent  with  the  disposition 
made  by  the  will,  from  the  year  1820  to  the  execution  of  the 
will  in  1817.  The  evidence  was  rejected.  Washington,  J. ,  said : 
**  The  declarations  of  a  party  to  a  deed  or  will,  whether  prior  or 
subsequent  to  its  execution,  are  nothing  more  than  hearsay  evi- 
dence, and  nothing  could  be  more  dangerous  than  the  admis- 
sion of  it,  either  to  control  liie  construction  of  the  instrument, 
or  to  support  or  destroy  its  validity.  In  MoritM  v.  Brough,  16 
Seig.  &  B.  403,  the  supreme  court  of  Pennsylvania  held  the 
declarations  of  the  testator,  whether  made  before  or  after  the 
execution  of  the  will,  inadmissible  for  the  purpose  of  proving 
fraud  or  coercion,  although  it  is  there  conceded  that  for  the 
purpose  of  showing  the  mental  imbeciliiy  of  the  testator  such 
evidence  might  be  received.  It  was  also  unanimously  decided 
by  the  court  of  errors  of  Connecticut,  in  the  case  of  Camstock  v. 
Hadlyme  Eocle.  8oc.,  8  Conn.  254  [20  Am.  Dec.  100],  that  the 
declarations  of  the  testatx)r,  unless  a  part  of  the  res  gesUs,  were 
not  admissible  for  any  purpose  except  to  prove  his  mental  con- 
dition at  the  time  of  executing  the  will.  The  same  doctrine  is 
held  by  the  English  courts.  In  Pravia  v.  Beed^  5  Bing.  485,  it 
was  sought  to  impeach  liie  validity  of  the  will  by  proving  the 
declarations  of  the  testator  made  after  its  execution.  The  evi- 
dence was  rejected.  Best,  0.  J.,  said:  "It  has  been  insisted  that 
declarations  of  the  testator  were  admissible  in  evidence  to  show 
that  the  will  he  had  executed  was  not  valid;  but  no  case  has 
been  cited  in  support  of  such  a  position,  and  we  shall  not  for 
the  first  time  establish  a  doctrine  which  would  render  useless 
the  precaution  of  making  a  will." 

These  cases  must,  I  think,  be  su£Scient  to  establish  the  posi- 
tion that  declarations  of  a  testator,  made  either  before  or  after 
the  execution  of  the  will,  are  not  competent  evidence  to  im- 
peach its  validity,  on  the  ground  of  fraud,  duress,  imposition, 
or  other  like  cause.  In  one  of  Oowen  &  Hill's  notes  to 
Phillips  on  Evidence,  see  note  481,  page  267,  it  seems  to  be  in- 
sisted that  the  declarations  of  a  devisor  are  admissible  against 
the  devisee,  upon  the  same  principle  with  those  of  an  ancestor 
against  the  heir,  or  of  a  grantor  against  his  grantee.  Perhaps 
they  may  be,  where  the  declaration  is  in  regard  to  the  estate; 
but  where  it  has  reference  to  the  validity  of  the  will,  the  case  is 


76  Wateruan  v.  WHiTinET.  [New  YoA^ 

entirely  different.  Declarations  of  an  ancestor  grantor^  eto.»  are 
admitted,  because  they  are  against  the  interest  of  the  party  mak- 
ing them,  and  might,  when  made,  have  been  used  against  him. 
But  these  reasons  do  not  apply  at  all  to  the  declarations  of  a 
testator  in  r^;ard  to  his  will.  He  has  no  interest  in  the  matter, 
and  the  declaration  could  never  under  any  circumstances  be 
used  against  him  personally.  The  distinction  is  obvious  and 
material.  There  are  one  or  two  cases  in  the  reports  of  the  state 
of  North  Carolina  which  might  seem  to  hold  a  contrary  doctrine 
to  that  here  advanced,  viz. :  Bed  v.  Bed,  1  Hawks,  248  [9  Am. 
Dec.  682],  and  Hotoell  v.  Borden,  8  Dev.  462.  But  the  decision 
in  the  first  of  these  cases  is  entirely  reconcilable  with  the  view 
here  taken,  although  all  that  is  said  by  the  court  may  not  be. 

I  have  referred  thus  particularly  to  these  numerous  cases,  in 
which  the  declarations  of  testators  have  been  held  inadmissible 
upon  contests  respecting  the  validity  of  their  wills,  for  the  pur- 
pose of  showing  that  they  all  apply  to  one  or  the  other  of  the 
first  two  of  the  three  classes  into  which  I  have  divided  the  cases 
on  the  subject.  None  of  them  have  any  application  to  cases  in 
which  the  will  is  assailed  on  account  of  the  insanity  or  mental 
incapacity  of  the  testator  at  the  time  the  will  was  executed,  or 
on  the  ground  that  the  will  was  obtained  by  undue  influence. 

The  difference  is  certainly  very  obvious  between  receiving  the 
declarations  of  a  testator,  to  prove  a  distinct  external  fact,  such 
as  duress  or  fraud,  for  instance,  and  as  evidence  merely  of  the 
mental  condition  of  the  testator.  In  the  former  case,  it  is  mete 
hearsay,  and  liable  to  all  the  objections  to  which  the  mere  dec- 
larations of  third  persons  are  subject;  while  in  the  latter  it  is 
the  most  direct  and  appropriate  species  of  evidence.  Questions 
of  mental  competency  and  of  undue  influence  belong  in  this  re- 
spect to  the  same  class;  because,  as  is  said  by  Jarman  in  his 
work  on  wills,  **  the  amount  of  undue  influence  which  will  be 
sufficient  to  invalidate  a  will  must  of  course  vary  with  the 
strength  or  weakness  or  the  mind  of  the  testator:"  1  Jarm.  on 
Wills,  86.  So  the  mental  strength  and  condition  of  the  testator 
is  directiy  in  issue  in  every  case  of  alleged  undue  influence;  and 
the  same  evidence  is  admissible  in  eveiy  such  case,  as  in  cases 
where  insanity  or  absolute  incompetency  is  alleged.  It  is  abun- 
dantiy  setUed  that  upon  either  of  these  questions  the  declara- 
tions of  the  testator,  made  at  or  before  the  time  of  execution  of  the 
will,  are  competent  evidence.  The  only  doubt  which  exists  on 
the  subject  is  whether  declarations  made  subsequent  therete 
may  also  be  received. 


July,  1854]  Watebman  v.  Whttnet.  77 

Clear  and  aocmaie  writers  have  been  led  into  confusiou  on 
this  subject  by  not  attending  to  the  distinctions  growing  oat 
of  the  different  pxurposes  for  which  the  evidence  may  be  offered. 
Hr.  Greenleaf,  in  his  work  on  eyidence,  in  treating  of  the  in- 
validity of  wills  in  consequence  of  the  insanity  or  mental  im- 
becility of  the  testator,  says:  "  In  the  proof  of  insanity,  though 
the  evidence  must  relate  to  the  time  of  the  act  in  question,  yet 
evidence  of  insanity  immediately  before  or  after  the  time  is  ad- 
missible. Suicide  committed  by  the  testator  soon  after  making 
his  jrill  is  admissible  as  evidence  of  insanity,  but  it  is  not  con* 
duaive."  And  in  the  same  section  he  adds:  **  The  declarations 
of  the  testator  himself  are  admissible  only  when  they  were  made 
BC  near  the  time  of  the  execution  of  the  will  as  to  become  a  part 
o2  the  res  gesUs;  "  and  he  refers  for  the  last  proposition  to  Smith 
y.  Fenner,  1  Gall.  170 :  See  2  Oreenl.  Ev. ,  sec.  690.  Nothing  could 
be  more  incongruous  than  the  different  branches  of  this  section. 
To  say  that  the  insanity  of  the  testator  subsequent  to  the  mak- 
ing of  the  will  may  be  proved,  but  that  the  declarations  of  the 
testator  are  inadmissible  for  the  purpose  of  proving  it,  is  not  a 
litUe  extraordinaiy.  It  admits  the  fact,  but  excludes  the  most 
common  and  appropriate  evidence  to  establish  it. 

This  incongruity,  and  the  citation  of  the  case  of  Smith  v. 
fenner,  9apra,  where  the  declarations  were  offered,  not  to 
jirove  insanity  or  mental  imbecility,  but  fraud  and  circumven- 
uon,  shows  that  the  attention  of  the  learned  author  was  not  di- 
c^ected  to  the  distinction  I  have  alluded  to.  The  first  position 
advanced  by  Mr.  Oreenleaf  in  this  passage,  viz.,  that  the  insan- 
ity or  incapacity  of  the  testator  after  the  execution  of  the  will 
may  be  proved,  not  as  important  in  itself,  but  as  a  means  of 
arriving  at  his  condition  when  the  will  was  executed,  seems  to 
be  sustained  by  authority:  Dickinson  v.  Barber,  9  Mass.  225  [6 
Am.  Dec.  68];  QrcarU  v.  Thompson,  4  Conn.  203  [10  Am.  Dec. 
119];  Irish  v.  Smiih,  8  Serg.  &  B.  578  [11  Am.  Dec.  648].  But 
the  latter,  that  this  can  not  be  established  by  the  conversation 
or  declarations  of  the  testator  himself,  is  in  conflict  with  numer- 
ous cases.  In  Stevens  v.  Vandeve,  4  Wash.  262,  the  question 
arose,  and  Washington,  J.,  said:  *'  The  only  point  of  time  to 
be  looked  at  by  the  jury,  at  which  the  capacity  of  the  testator 
is  to  be  tested,  is  that  when  the  will  was  executed.  He  may 
have  been  incapable  to  make  a  will  at  any  time  before  or  after 
that  period,  and  the  law  permits-evidence  of  such  prior  and  sub- 
sequent incapacity  to  be  given.  But  unless  it  bear  upon  that 
period,  and  is  of  such  a  nature  as  to  show  incompetency  when 


78  Waterman  v.  Whitnky  [New  York, 

the  will  was  ezeouted,  it  amounts,  to  nothing/*  In  Eambler  r. 
IVyon,  7  Serg.  &  B.  90  [10  Am.  Deo.  444],  upon  a  qnestion  of 
mental  imbecility,  the  plaintiff  was  permitted  to  prove  that  the 
testator,  in  the  absence  of  his  wife,  to  whom  he  had  deyised  his 
property,  ''told  the  witness  that  his  father-in-law  and  wife 
plagued  him  to  go  to  Lebanon;  that  they  wanted  him  to  give 
her  all,  or  he  would  have  no  rest,  and  that  he  did  not  wish  to 
go  to  Lebanon.'*  The  court  held  this  proof  admissible  as  evi- 
dence of  weakness  of  mind,  operated  upon  by  excessive  and  un- 
due importunity.  It  does  not  distinctly  appear  from  the  report 
of  this  case  whether  the  declaration  was  prior  or  subsequent  to 
the  making  of  the  will;  but  in  the  subsequent  case  of  McTag^  1 

gari  v.  Thompson,  14  Pa.  St.  149,  it  is  distinctly  asserted  by  the  ! 

court  that  the  declaration  was  after  the  execution  of  the  will.  ' 

Rogers,  J.,  says:  ''  It  is  expressly  ruled  in  Batnbler  v.  l\yon,  7 
Serg.  &  B.  90  [10  Am.  Dec.  444],  that  the  dedarations  of  the 
testator,  although  after  the  execution  of  the  will,  are  evidence 
of  imbecility  of  mind." 

The  offer  in  the  case  of  McTaggart  v.  Thompson,  supra,  was  to 
prove  declarations  of  the  testator  after  the  execution  of  the  will  as 
to  the  disposition  of  his  property,  **  that  he  had  ruined  bis  fam- 
ily, and  that  he  had  been  deceived  and  imposed  upon  by  persons 
who  procured  him  to  make  his  will."  The  court  held  the  evi- 
dence admissible.  The  case  of  Bed  v.  Eeel,  1  Hawks,  247  [9  Am. 
Dec.  632],  is  a  leading  case  on  this  subject,  and  one  which  has 
been  supposed  to  conflict,  and  was  supposed  by  the  court  which 
decided  it  to  conflict,  with  several  of  the  cases  I  have  cited, 
especially  Jackson  v.  Kniffen,  2  Johns.  81  [3  Am.  Dec.  890],  and 
Smith  V.  Fen-MT,  1  Gall.  170;  but  which,  when  viewed  in  the 
light  of  the  arrangement  of  the  cases  which  is  here  adopted,  will 
be  seen  to  be  in  entire  harmony  with  them.  The  offer  in  Red 
V.  Reel,  supra,  was  to  prove  repeated  declarations  of  the  testator, 
made  after  the  execution  of  the  will,  in  which  he  stated  its  con- 
tents to  be  materially  and  utterly  different  from  what  they  were. 
These  declarations  were  offered  in  connection  with  conflicting 
testimony  upon  the  point  of  testamentaiy  capacity.  The  evi- 
dence  here  offered  bore  exclusively  upon  the  question  of  the 
competency  of  the  testator,  and  of  course  did  not  fall  within  the 
principle  of  those  cases  which  exclude  declaraitions  bearing  upon 
questions  of  fraud,  duress,  etc.,  unless  a  part  of  the  res  gestm. 
Hence  there  was  no  necessity,  as  the  court  seemed  to  suppose, 
for  overruling  the  cases  ot  Jackson  v.  Kniffen,  supra,  and  Smiih  v, 
Fenner,  supra,  in  order  to  admit  the  evidence  offered  in  this  case. 


July*  18^]  Watxbman  v.  Whttnet.  7S^ 

The  dedsioii  of  the  court  in  holding  the  eyidence  odmisBible  i» 
not  in  conflict,  so  fur  as  I  hare  been  able  to  discover,  with  any  ad- 
judged case,  either  in  this  oountiy  or  in  England,  and  on  the  other 
hand,  is  in  entire  harmony  with  what  seems  to  be  the  established 
doctrine,  that  the  insanity  or  imbecility  of  the  testator  subse- 
quent to  making  the  will  may  be  proved,  in  connection  with 
other  evidence,  with  a  view  to  its  reflex  influence  upon  the  ques- 
tion of  his  condition  at  the  time  of  executing  the  will.  Indeed, 
if  the  latter  doctrine  is  sound,  it  necessarily  follows  that  the 
decision  is  right. 

This  conclusion  is  of  course  decisive  of  the  present  case,  which 
is  identical  in  princijAe  with  that  of  Bed  v.  Bed,  supra.  Here,  as 
in  that  case,  the  offer  was  to  prove  declarations  of  the  testator, 
stating  the  contents  of  the  will  to  be  entirely  different  from 
what  they  were  in  fact,  and  these  declarations  were  offered,  in 
connection  with  other  evidence  bearing  upon  the  competency  of 
the  testator  at  and  before  the  execution  of  the  will.  If  evidence 
of  the  mental  condition  of  the  testator  after  the  execution  of  the 
will  is  adxnissible,  in  any  case,  as  to  his  capacity  when  the  will 
was  executed,  and  the  competency  of  such  proof  seems  to  bo 
sustained  by  many  authorities  and  contradicted  by  none,  then 
it  is  clear  that  the  testimony  offered  here  should  have  been  ad- 
mitted. 

It  does  not  follow  from  this  that  evidence  of  this  nature  is 
necessarily  to  be  received,  however  remote  it  may  be  in  i>oint  of 
time  from  the  execution  of  the  will.  The  object  of  the  evidence 
is  to  show  the  mental  state  of  the  testator  at  the  time  when  the 
will  was  executed.  Of  course,  therefore,  it  is  admissible  only 
where  it  has  a  legitimate  bearing  upon  that  question;  and  of  this 
the  court  must  judge  as  in  every  other  case  where  the  relevancy 
of  testimony  is  denied.  If  the  judge  can  see  that  the  evidence 
offered  can  not  justly  be  supposed  to  reflect  any  light  upon  the 
mental  condition  of  the  testator,  at  the  time  of  making  the  will, 
he  has  an  undoubted  right  to  exclude  it.  In  the  present  case 
it  was  impossible  for  the  judge  to  say  this  in  advance  of  any  in- 
formation as  to  the  precise  period  when  and  the  circumstances 
under  which  the  declarations  proposed  to  be  proved  were  made. 

There  is  no  conflict  between  the  doctrine  here  advanced  in 
regard  to  the  admissibility  of  the  species  of  evidence  in  question 
and  the  rule  before  adverted  to,  which  excludes  it  when  the  is- 
sue is  as  to  the  revocation  of  a  will.  The  difference  between  the 
two  cases  consists  in  the  different  nature  of  the  inquiries  in- 
volved.   One  relates  to  a  voluntary  and  conscious  act  of  the 


80  WixmxAH  ik  WHnxsr.         [New  York, 


mind;  {lie  other  to  its  iiiTolimieiy  stste  or  eondition.  To 
eeiye  eridenoe  of  subfieqaent  dedaations  in  the  f oimer 
wonld  be  attended  with  all  the  dangera  whieh  oonld  grow  out 
of  changea  of  pnzpoae,  or  of  external  motirea  <^nniting  apon 
an  intelligent  mind*  No  aaoh  dangers  woold  attend  the  evi- 
dence upon  inquiriee  in  relation  to  the  sanily  or  capacity  of  the 
testator. 

It  is  unnecessary  to  notice  the  other  points  in  the  case.  It 
may,  howeyer,  be  proper  to  say  that  the  testimony  offered  and 
rejected,  in  regard  to  the  two  thousand  acres  of  land  in  Florida, 
was  wholly  iinmatftrial,  as  it  would  not,  if  given,  hare  been  in 
the  least  inconsistent  with  the  will,  which  in  terms  admitted 
that  the  land  had  formerly  belonged  to  William. 

The  judgment  of  the  supreme  court  must  be  reversed,  and 
there  must  be  a  new  trial  of  the  issues. 

Denio,  Johnson,  Pabkeb,  Allen,  and  Edwabds,  JJ.,  concurred. 

Qabdinxb,  0.  J.,  dissented. 

Judgment  of  the  supreme  court  reversed  and  new  trial  ordered. 

DSCLARATIONS  OF  TbSTATOB,  WHSN  AdMISSIBLS  TO  ImPXAOH  OalNVAIXDAXa 

Wnx. — ^Anything  said  accompanying  the  performance  of  an  act,  expUnatocy 
thereof,  or  showing  its  purpose  or  intention,  oonstitatee  a  part  of  the  ret  ffedm 
and  IB  admissible  as  such:  EUjhmy  v.  PfopU^  79  N.  Y.  658;  but  when  dedaim- 
tions  offered  are  merely  a  narrative  of  past  oocitrrenoes  they  are  incompatents 
Id.  559;  hence  upon  the  question  of  revocation  of  a  will  no  declarations  of  a 
testator  are  admissible,  except  such  as  accompany  the  act  by  which  the  win 
is  revoked,  and  for  the  purpose  of  showing  the  intent  of  the  act:  Id.  like 
principal  case  is  cited  to  the  foregoing  points;  and  in  8i»9on  ▼.  Chnffer^  i 
Thomp.  &  C.  569,  it  is  followed  on  the  proposition  that  the  dadatmtioA  of  a 
decedent  that  he  had  destroyed  his  will,  not  made  at  the  time  of  sach  destme- 
tion,  was  inadmissible  to  show  the  intention  of  the  testator.  See  further,  on 
the  admissibility  of  a  testator's  declarations  to  show  a  revocation,  note  to 
Jachon  v.  Knifftn^  3  Am.  Dec  895;  Dan  v.  Brown^  15  Id.  395.  See  alao 
VoorhiB  V.  roorAts,  50  Barb.  125^  where  no  objection  was  made  in  the  coort 
below  to  the  introduction  of  the  declarations.  In  Ckurk  ▼.  SmUk^  34  Id.  142, 
the  court  did  not  deem  it  necessary  to  decide  whether  the  snrrc^te  erred  in 
following  the  (/tcta  of  Selden,  J.,  in  the  principal  case,  in  rejecting  evidence 
that  the  testator  subsequently  admitted  he  made  nuffka  or  erasures  in  certain 
eUusea  of  his  will  with  the  intent  of  canceling  or  revoking  those  claosea. 
Declarations  of  a  testator  after  the  date  of  a  will  that  he  had  made  such  will 
are  inadmissible  to  sustain  the  genuineness  of  the  signature:  Johtuon  v.  ITidb, 
1  Lans.  159,  citing  the  principal  case;  but  in  Tajflor  WiU  Caae^  10  Abb.  Pr., 
N.  S.,  306,  it  was  said  that  the  applicability  of  the  rule  of  adnussion  of  decla- 
rations to  the  ease  of  disputed  genuineness  of  signatore  seems  not  to  have 
been  considered  or  even  referred  to  in  the  principal  case.  In  BtifnMi  v. 
Adam$,  90  IlL  147,  148,  the  principal  case  is  cited  and  commented  upon  to 
the  point  that  while  the  declarations  of  a  testator  are  not  admissible  to  show 
•n  exptess  levoeation  of  the  will,  or  the  fact  that  it  was  executed  under  da« 


July,  1854.]  LocKwooD  v.  Thobnx.  81 

IMS  or  from  nndoe  inflnence,  they  may  neyerthelets  be  proved  and  used  to 

•how  hia  mental  condition  at  the  time  of  the  execution,  or  lo  near  the  time  that 
tlie  same  state  of  affairs  mnst  have  existed;  and  see  the  principal  case  qnoted 
in  Btaubkn  t.  OieoMe,  12  Mich.  4S7,  in  holding  a  testator's  snfaeequent  deda- 
ratious  admissible  to  show  nndne  influence.  On  the  other  hand,  the  principal 
case  is  cited  and  quoted  in  Marx  v.  MeOlynnf  88  K.  Y.  374,  to  the  point  th»| 
diaries  kept  and  letters  written  by  a  testator,  either  before  oraftt^r  ihe  execu- 
tion of  the  will,  while  proper  evidence  as  bearing  upon  the  meutal  capacity, 
and  the  condition  of  the  mind  of  the  teetator  with  reference  to  the  objects  of 
hid  bounty,  are  not  competent  evidence  of  the  faets  stated  in  them  to  prove 
f  rauil  or  uodne  influence.  See  also  Marx  v.  MeOlymn^  4  Bedf .  461.  The  prin- 
citxU  case  is  further  cited  in  Neiheiad  v.  Toerfft,  Id.  332;  Shailer  v.  Bumatead, 
DO  Mass.  124,  to  the  point  and  as  holding  that  the  declarations  of  a  testator, 
liefore  and  subsequent  to  the  making  of  the  will,  were  admissible  to  prove  hia 
mental  condition;  but  his  declarations  two  yean  after  the  will  was  made  are 
too  remote  in  time  to  be  received  as  evidence  of  this  mental  capacity  at  the 
time  of  the  execution  of  the  will:  La  Bau  v.  VaatdarbiUf  3  Redf.  390»  412,  cit* 
ing  and  quoting  the  principal  case.  See  further,  on  the  admissibility  of  the 
declarations  of  a  testator  to  show  his  mental  condition,  note  to  Jackson  t. 
Knijfen,  3  Am.  Dec  397;  Reel  v.  Heel,  9  Id.  632;  Rambler  v.  Tryon,  10  I«l.  444; 
Dcufis  V.  Calvert,  25  Id.  282;  note  to  RoUrU  v.  Trawtck^  52  Id.  168;  and  aee 
Iri»h  V.  Smith,  1 1  Id.  648;  to  show  undue  influence:  Reel  v.  Reel,  supra;  Com- 
ttofk  V.  nadlyme  Ecclemutlicai  Society,  20  Id.  100;  Xelson  v.  McOifert,  49  Id, 
170;  Gilbert  v.  OUbert,  58  Id.  2G8;  Robinson  v.  Hutchinson,  60  Id.  208;  fear  or 
duress:  Jadcson  v.  Knifen,  3  Id.  390;  fraud  or  mistake:  Note  to  Jackson  y. 
Kniffen,  Id.  396;  Reel  v.  Reel,  supra;  Roberts  v.  Trawick,  62  Id.  164,  and 


LooKWooD  V.  Thornb. 

[11  NKW  YOBX  (1  KXBKAK) ,  170.J 

Aooomr  Stated  need  not  bk  Signed  bt  Parties.  Examination  and 
acceptance  are  enough  to  render  it  binding;  and  tliese  are  presumed 
where  one  retains  an  account  rendered  beyond  a  reasonable  time  for  exam- 
ination witliout  objecting  to  its  correctness,  and  in  addition  thereto 
draws  fur  and  receives  the  balance  shown  by  such  account. 

.  Appeal  from  a  judgment  of  the  supreme  court.  The  pi-inci- 
pal  question  was  whether  proper  effect  had  been  given  bv  th^ 
referees,  on  the  tiial,  to  a  stated  account  introduced  by  defenrl* 
ants  as  a  bar  to  plaintilTs'  claim. 

Lyman  Trenxaine,  for  the  appellants. 

Henry  Ilogeboom,  for  the  i^espondonts. 

By  Court,  Parker,  J.  By  the  contract  between  the  parties 
the  plaintiffs  agreed  that  the  hides  received  from  the  defendants 
fihould  not  only  "  be  tanned  in  a  good  and  workmanlike  man- 
ner," but  also  that  they  should  be  "  made  to  gain  in  weight  as 
much  as  good  tannera  make  from  the  same  description  of  hides." 

Am.  Dko.  Vol.  LXII-4 


62  LocKWOOD  V.  Thorne.  [New  York, 

The  defendants  allege  that  the  plainiiffs  failed  to  keep  the  lat- 
ter part  of  this  stipulation »  and  that  the  referees  erred  in  not 
finding  against  the  plaintiffs  on  that  issue.  However  prepon- 
derating may  be  the  weight  of  evidence  against  the  finding  of 
the  referees  on  this  point,  and  I  think  it  was  so,  it  is  not  a  mat- 
ter subject  to  review  in  this  court.  It  was  a  question  of  fact, 
and  if  it  has  been  erroneously  determined  by  the  referees,  the 
defendants  can  have  no  redress  beyond  the  power  of  the  suprerne 
court  to  set  aside  the  report  as  against  the  weight  of  eviden^^. 

The  second  point  made  by  the  defendants  is  that  the  referf'ea 
erred  in  not  giving  legal  efiect  to  an  account  stated  and  settled 
between  the  parties,  and  in  permitting  the  same  to  be  opened 
without  proof  of  fraud  or  mistake,  and  this  presents  properly 
a  question  of  law  for  our  decision;  for  whether  on  a  given  state 
of  facts  the  transaction  amounts  to  an  account  stated  is  a  ques- 
tion  of  law  and  not  of  fact:  Toland  v.  Sprague,  12  Pet.  300.  In 
accordance  with  the  established  custom  of  the  defendants  to 
make  up  the  accounts  between  them  and  the  plaintiffs  ou  the 
first  day  of  February  in  each  year  and  to  transmit  the  same  to 
the  plaintiffs,  an  account  between  the  parties  was  made  up  and 
sent  to  the  plaintiffs  by  mail  on  or  about  the  first  day  of  Feb- 
ruary, 1847,  showing  a  balance  due  to  the  plaintiffs  from  the 
defendants,  amounting  to  the  sum  of  five  thousand  six  hun- 
dred and  twenty-three  dollars  and  forty-one  cents.  In  that 
account  the  plaintiffs  were  charged  for  deficiency  in  gain  of 
weight  on  certain  hides,  particularly  referred  to,  the  sum  of 
eight  hundred  and  eighty  dollars  and  forty-eight  cents.  After 
receiving  said  account,  and  on  or  about  the  seventeenth  day 
of  February,  1847,  the  plaintiffs  drew  upon  the  defendants  ai 
si^ht  for  the  amount  of  the  said  balance  shown  by  the  account, 
without  objection  to  any  part  thereof,  and  their  draft  for  the 
same  was  duly  paid  by  the  said  defendants.  The  matter  thus 
rested  till  November,  1847,  when  the  plaintiffs  brought  this 
action  to  recover  the  eight  hundred  and  eighty  dollars  and  forty- 
eight  cents  charged  in  the  account  for  the  deficiency  in  weight. 

It  is  not  necessary,  in  order  to  make  a  stated  account,  that  it 
should  be  signed  by  the  parties.  It  is  sufficient  if  it  has  been 
examined  and  accepted  by  both  parties.  And  this  acceptance 
need  not  be  express;  but  may  be  implied  from  circumstances; 
I  Story's  Eq.  Jur.,  sec.  526.  Keeping  it  any  length  of  time 
without  objection  binds  the  person  to  whom  it  is  sent:  Willis  v. 
Jemegan,  2  Atk.  251.  Between  merchants  at  home  an  account 
which  has  been  presented  and  no  objection  made  thereto  after 


July,  1854.]  LocKwooD  v.  Thobvb. 

the  lapse  of  seyexal  posta  is  treated,  under  ordinary  circum« 
Btanoes,  as  being  by  acquiescence  a  stated  account:  Sherman  v. 
SJierman,  2  Yem.  276;  1  Story's  Eq.  Jnr.,  sec.  526.  Between 
merchants  in  different  countries  a  longer  time  is  given,  but  if 
no  objection  be  made  after  seTcral  opportunities  of  writing  have 
occurred  it  is  considered  an  acquiescence:  WiUis  t.  Jemegan, 
2  Atk.  252;  Jiland/ord  ▼.  Thackerdl,  2  Ves.  jun.  239;  Murray  v. 
TUand,  3  Johns.  Ch.  5G9,  575;  Freeland  t.  Heron,  7  Cranch, 
147.  TVhat  is  a  reasonable  time  is  to  be  judged  of  by  the  habits 
of  business  at  home  and  abroad:  1  Story's  Eq.  Jur.,  sec.  526. 
The  law  was  very  fully  stated  by  Collier,  C.  J.,  in  Langdon  ▼. 
ltoane'8  AdmW,  G  Ala.  518  [41  Am.  Dec.  GO],  as  follows:  <<  It  is 
said  to  be  a  general  rule  that  where  an  account  is  made  up  and 
rendered,  he  who  receives  it  is  bound  to  examine  the  same  or  to 
procure  some  one  to  examine  it  for  him.  If  he  admits  it  to  be 
correct,  it  becomes  a  stated  account,  and  is  binding  upon  both 
parties — the  balance  being  the  debt  which  may  be  sued  for  and 
recovered  at  law  upon  the  basis  of  an  t^mmuZ  computaaseid. 
So  if,  instead  of  an  express  admission  of  the  correctness  of  the 
account,  the  party  receiving  it  keeps  the  same  by  him  and  makes 
no  objection  within  a  reasonable  time,  his  silence  will  be  con- 
strued into  an  acquiescence  in  its  justness,  and  he  will  be  bound 
by  it  as  if  it  were  a  stated  account:  Philips  v.  Belden,  2  Edw. 
Ch.  1.  In  fact,  the  rule,  as  lafd  dovm  by  the  authorities,  would 
seem  to  be,  that  if  one  does  net  object  to  a  stated  account  which 
has  been  furnished  him,  within  a  reasonable  time,  he  shall  be 
bound  by  it,  unless  he  can  show  its  incorrectness:  Murray  v. 
Ibland,  3  Johns.  Ch.  5G9;  Wilde  y.  Jenkins,  4  Paige,  481."  la 
stating  the  law  as  above  extracted,  the  learned  chief  justice  fol- 
lowed the  decision  in  the  case  of  Philips  v.  Belden,  2  Edw.  Ch. 
1,  where  the  same  principles  of  law  are  clearly  stated. 

If  this  case  rested  upon  the  question  of  reasonable  notice,  I 
can  not  doubt  but  the  lapse  of  nine  months  after  the  receiv- 
ing of  the  account  before  the  commencement  of  the  action,  there 
having  been  made  in  the  mean  time  no  objection  or  complaint, 
would  have  been  abundant  to  authorize  tlie  legal  inference  of 
acquiescence;  particularly  as  the  proximity  of  the  parties  to 
each  other  secured  them  a  daily  opportunity  of  communication 
by  mail,  and  the  nature  of  their  business  transactions  must 
have  brought  the  plaintiffs  frequently  during  that  time  to  the 
city,  where  the  business  of  the  defendants  was  transacted. 

But  this  case  does  not  rest  on  mere  inference  or  acquiescence 
from  lapse  of   time.     There  in  affirmative  evidence  of   such 


^4  LocKwooD  V.  Thobnk.  [New  York; 

•equiMcenee.    Witbin  a  few  dajsafier  theaoooant  was  reoeiTed 
Lj  the  plainliffi  they  dxew  on  the  defendants  for  the  halanoe 
stated;  not  a  general  draft  in  round  figures,  bat  a  draft  for 
five  thonaand  aix  hundred  and  twenty-three  dollars  and  fortj- 
one  cents,  the  preciae  halanoe  of    the.  account  as  rendered. 
There  being  no  other  accounts  between  the  parties,  a  draft  in 
that  form  is  as  dearly  indicatire  of  an  intention  to  draw  the 
balance  as  such  as  if  those  terms  had  been  inserted  in  the  draft. 
Here  is,  then,  affirmative,  and  I  think  conclusive,  evidence  that, 
with  the  account  before  them,  in  which  among  other  items  the 
•deduction  for  loss  of  weight  was  particularly  stated,  the  plaint- 
iffs agreed  to  it  as  a  stated  account  by  drawing  for  and  receiv- 
ing the  precise  balance  admitted.    We  are  not  without  authority 
in  deducing  such  a  l^al  assent  from  the  act  of  the  plaintiffs. 
This  precise  question  arose  in  Ibland  v.  Sprague,  12  Pet.  300- 
834,  and  Mr.  Justice  Barbour,  in  giving  the  opinion  of    the 
«ourt,  said:  "We  agree  that  the  mere  rendering  an  account 
•does  not  make  it  a  stated  one;  but  that  if  the  other  party  re- 
'  ceives  the  account,  admits  the  correctness  of  the  items,  claims 
:  the  balance  or  offers  to  pay  it  as  it  may  be  in  his  favor  or  against 
'  liim,  then  it  becomes  a  stated  account.     The  plaintiff  having 
-  received  it,  having  made  no  complaint  as  to  the  items  or  the 
\  balance,  but  on  the  contrary  having  claimed  that  balance, 
-i  thereby  adopted  it,  and  by  his  own  act  treated  it  as  a  stated 
jiccount:"    See  also  Murray  v.  Toland,  3  Johns.  Ch.  669. 
(      Hhe  transaction,  then,  being  on  account  stated,  is  conclusive 
\ipon  the  parties  unless  the  plaintiff  affirmatively  shows  fraud 
or  mistake.     The  law  is  stated  in  Philips  v.  Belden^  2  Edw.  Ch. 
1 ,  that  if  either  party  attempts  to  impeach  the  settlement  and  to 
open  the  accounts  for  reexamination,  either  wholly  or  in  part, 
and  which  can  only  be  done  upon  the  ground  of  fraud,  mistake, 
or  error,  the  burden  of  proof  rests  upon  the  party  impeaching, 
jaiid  be  must  prove  the  fraud  or  point  out  the  error  or  mistake 
./K>n  which  he  relies.     Here  no  fraud  or  mistake  was  pretended. 
It  was  merely  an  attempt  to  litigate  an  item  once  settled,  with- 
out a  shadow  of  pretense  that  there  had  been  anything  unfair 
in  the  settlement,  or  any  misapprehension  in  regard  to  it. 

It  was  well  said  by  Chief  Justice  Marshall,  in  Cliappelaine  v. 
Dechvnaux,  4  Cranch,  306,  where  an  attempt  was  made  to  open 
an  account  stated:  "  No  practice  could  be  more  dangerous  than 
that  of  opening  accounts  which  the  parties  themselves  have  ad- 
justed on  suggestions  supported  by  doubtful  or  by  only  proba- 
«  ble  testimony." 


July,  1854.]  Lockwood  u  Thorhk  8S 

On  flie  eriddnce  before  the  referee,  therefore,  the  defendants 
were  entitled  to  jadgment,  and  the  judgment  of  the  Bapreoaft- 
court  ought  to  be  reversed  and  a  new  trial  oidared. 

Johnson,  J.,  also  delirered  an  opinion  for  reversal. 

Gabdinxb,  O.  J.,  and  Dbnxo  and  Edwasda,  JJ.,  ooncnrred. 

Ruoouss,  jr.,  was  in  favor  of  affirmance. 

Judgment  reversed. 

AooouxT  Stated — Definition  and  Elements.— An  aoconnt  stated  has  beeo^ 
defined  to  be  *' an  agreement  between  persona  who  have  had  pcerioos  trana- 
actions,  fixing  the  amoant  due  in  rgppect  of  snch  traasactionB,  and  promising, 
payment: "  Abbotts  Trial  £v.,  458;  Zacarino  v.  PalloUi^  49  Conn.  3C,  3S;  H. 
C.,  ]4  Rep.  554.     Among  the  Taiions  definitions  given  by  text- writers  and* 
judges,  this  is  perhaps-ihe  best,  but  even  this  has  a  serious  fault  in  assuming  - 
that  a  promise  of  payment  is  requisite,  since  where  the  parties  agree  upon  a 
balance,  or  a  debt  is  acknowledged  to  be  due  from  one  to  the  other,  the  law- 
will  imply  a  promise,  and  an  express  promise  is  not  necessary:  See  Claire  v. 
Claire,  10  Neb.  54;  Cochrane  v.  Allen,  58  N.  H.  250;  S.  C,  9  Ilcp.  183;  Terr^ 
r,  SieUeA,  13  Cal.  427;  although  iu  KiOam  v.  Preston^  4  Watts  &  S.  15,  it  uaa. 
held  that  an  express  promise  was  necessary  where  one  partner  rendered  au 
account  to  bis  copartner  after  dissolution  of  the  firm,  and  the  account  was  - 
retained  without  objection.    But  see  Cochrane  v.  Alien,  aupra;  AtuxUer  v. 
Fowler,  1  £dw.  Ch.  417.     An  account  stated  is  an  agreement  between  tlia- 
parties  that  all  the  items  of  the  account  are  correct:  Trueman  v.  JJurtt,  1  T« 
R.  40,  per  Lord  Mansfield;  UnUm  Bank  v.  Knmpp,  3  Pick.  96;  S.  C,  15  Am. 
Dec.  181;   Davii  v.  Tieman,  2  How.  (Miss.)  786,  804;  SUhbins  v.  NiUi,  25 < 
Miss.  267,  348;  Uthihardt  t.  HintB,  51  Id.  344,  346;  Andmg  v.  Levy,  57  Id.. 
51,  62;  S.  C,  34  Am.  Rep.  435;  Claire  v.  ClMre,  10  Neb.  54,  57;  IJawHus  v. 
Long^  74  N.  C.  781 ,  783.    The  distinction  between  stated  and  settled  accouuta 
should  be  noticed:  "A  stated  account  properly  exists  only  where  accounts 
have  been  examined  and  the  balance  admitted  as  the  true  balance  betweeiK 
tlie  parties,  without  having  been  paid.    When  the  balance,  thus  admitted,  ia> 
paid,  the  account  is  deemed  a  settled  account:"  Story's  £q.  PL,  sec.  7US;, 
ATcNeel  v.  Baker,  6  W.  Va.  153,  165;  Stebbins  v.  NUes,  25  Miss.  267,  348. 

It  is  not  necessary,  in  order  that  there  may  be  an  account  stated,  that  ther* 
should  be  cross  or  mutual  demands  between  the  partiea.  The  charges  may  all 
be  on  one  side,  and  the  defendant's  acknowledgment  that  a  certain  sam  waa 
due  from  him  to  the  plaintiff  need  not  relate  to  more  than  a  single  debt  o» 
transaction:  2  Chit.  Cont.,  11th  Am.  ed.,  962;  Knowla  v.  Michel,  13  Kast.. 
249;  Ilifjhmore  v.  Primrose^  5-Mau.  &.  SeL  65;  RvUedge  v.  Moore,  9  Mo.  533;- 
Ware  v.  Dudley,  16  AJa.  742;  CM  v.  Arundel,  26  Wis.  553;  Kock  v.  BoniU^ 
4  Daly,  1 17;  but  where  the  account  is  stated  with  reference  to  a  single  item^ 
only  that  item  must  consist  of  a  debt  then  due  and  owing:  2  Chit.  Cont.  062.. 
So  to  make  an  account  a  stated  account,  it  need  not  be  signed  by  the  parties^ 
it  is  sufficient  if  the  account  be  examined  and  accepted,  or  assented  to,  anci 
this  acceptance  or  asseut  need  not  be  express,  but  may  be  implied  from  circnn^ 
stances:  1  Story's  Eq.Jur.,  sea  526;  WUUm  v.  Jtmegan,  2  Atk.  251;  Freeman, 
V.  Howell,  50  Am.  Dec.  561;  Brown  y.  VandyU,  55  Id.  250;  Darfiy  v.  Lu^^ 
trapes,  28  La.  Ann.  605;  Gilchrist  v.  Brooklyn  Grocera*  Man,  Ast'n,  66  Barb. 
no,  401;  Lochoood  y.  Slewn,  26  Ind.  134,  per  Gregory,  C.  J.,  dissenting, 


86.  LocKWOOD  V.  Thobns.  [New  York, 


the  ImI  two  OMM  citing  tlM  principal  cmc;  m  to  an  acoonnt  rendered  be- 
coming by  aoquieeoence  an  acoonnt  stated,  see  pcti.    There  mnst  be,  liow- 
ever,  an  abeolute  acknowlcsdgment  or  admiaston  of  a  certain  enm  due,  or  an 
adjoatmcnt  of  accoonta  between  the  parties,  the  striking  of  a  balance,  and  an 
assent,  express  or  implied,  to  the  correctness  of  the  balance:  KnawUs  r, 
Michel,  13  East,  249;  Teal  ▼.  Avty,  2  Brod.  ft  B.  99;  S.  C,  4  Moo.  572; 
Waymam  y.  IlUliard,  7  Bing.  101;  8.  C,  4  Moo.  &  P.  729;  Kirlon  ▼.  Wood^ 
Moo.  &  R.  253;  Evant  v.  Verity,  Ry.  ft  M.  239;  Caloeri  y.  BcJser,  4  Mee.  ft 
W.  417;  Ilvghet  v.  Thorpe,  5  Id.  656;  Lane  v.  HiU,  18  Q.  B.  252;  8.  C,  21 
L.  J.,  Q.  B.,  318;  16  Jar.  496;  Lemere  y.  EUioU,  6  H.  ft  N.  656;  S.  C,  30  L. 
J.  Ezch.  350;  4  L.  T.,  N.  S.,  304;  7  Jar.,  N.  S.,  1206;  TasteyY,  Church,  39  Am. 
Dec.  65;  Fraley  y.  Biepham,  61  Id.  486;  Stenton  v.  Jercme,  54  N.  Y.  480, 
citing  the  principal  case,  p.  485;  UuMey  v.  GcmCe  Adm*r,  10  Humph.  238; 
RuUedge  v,  Moore,  9  Mo.  533;  Cai)e  Oirardtau  etc  R.  R.  ▼.  Kimmeil,  58  Id. 
&3;    Ward  v.  FarreVy,  9  Mo.  App.  370;  Reinhardt  y.  IlineM,  51  Miss.  344; 
MeCall  y.  Nave,  52  Id.  494, 497, 498;  Botulog  ▼.  Garrett,  39  Ind.  338;  Board 
of  Supervi$ora  y.  Ilackett,  21  Wis.  613;  PuUiam  y.  Booth,  21  Ark.  420;  ^o^ 
Ixning  v.  De  Oraif,  81  N.  Y.  268;  S.  C,  10  N.  Y.  Week.  Dig.  286.     If  the 
acknowledgment  or  admission  is  qualified,  and  not  absolute,  or  if  there  is  bnt 
an  admission  that  something  is  due,  witliout  specifying  how  much,  there  is 
no  account  stated;  nor  does  an  account  stated  exist  if  there  is  bnt  a  partial 
settlement  of  accounts,  without  arriying  at  a  balance,  or  there  is  a  dissent 
from  the  balance  as  struck.    Thus  the  plaintiff  in  (untrnjisit  for  lands  barw 
gained  and  sold  can  not  recover  upon  a  count  on  an  account  stated,  where  in  a 
conversation  with  the  defendant  he  said,  "  Pay  me  the  £10  you  owe  me,'*  and 
the  defendant  said  he  would,  provided  the  plaintiff  had  not  moved  the  grates, 
which  he  considered  fixtures,  and  the  plaintiff  replied,  denying  that  they  were 
fixtures,  and  told  the  defendant  that  if  he  would  not  pay  him  he  would  sue 
him:  Evans  y.  Verity,  Ry.  &  M.  239;  and  a  promise  by  a  party  who  had  de- 
stroyed a  boat,  to  replace  it,  or  pay  a  certain  sum  for  it,  will  not  sustain  an 
action  upon  an  account  stated:  Rutledge  v.  Moore,  9  Mo.  533;  so  a  letter  which 
contains  no  admission  of  any  sum  of  money  certain  being  due,  but  is  only  a 
conjecture  as  to  the  amount,  is  not  sufficient  evidence  of  an  account  stated: 
Hughes  V.  Thorpe,  5  Mee.  ft  W.  656;  and  it  is  not  an  averment  of  an  account 
stated  to  allege  that  the  plaintiff  and  defendant  '*  have  had  accountings  and 
settlements:"   Ward  y.  FarreLly,  9  Mo.  App.  370.     "What  is  an  account 
stated?"  says  Earl,  C,  in  Stenton  v.  Jerome,  54  N.  Y.  480;  *' it  takes  two 
parties  to  make  one,  the  debtor  and  creditor.    There  must  be  a  mutual  agree- 
ment between  them  as  to  the  allowance  and  disallowance  of  tlie  respective 
claims,  and  as  to  the  balance  as  it  is  struck  upon  the  final  adjustment  of  the 
whole  account  and  demands  of  both  sides.    Their  minds  must  meet  as  in 
making  other  agreements,  and  they  must  both  assent  to  the  account  and  the 
balance  as  correct     But  this  agreement  and  assent  need  not  be  direct  and 
express,  but  may  be  implied  from  circumstances."    An  account  stated  can  not 
be  based  upon  an  appraisal,  where  it  does  not  appear  that  both  parties  mu- 
tually agreed  on  the  appraisers  or  recognized  them  as  authorized  to  bind  them 
by  their  actions:  Chicago  etc.  R'y  v.  Peters,  45  Mich.  636;  see  also  Bates  v. 
Townley,  2  Kxch.  152;  S.  C,  19  L.  J.  £xch.  399;  12  Jur.  606;  but  where  the 
iloolaration  contains  a  count  upon  an  account  stated,  it  is  competent  to  give  in 
evidence  an  award  made  between  the  parties,  and  an  admission  of  the  balance 
due:  liwtchman  v.  Morling,  30  Md.  384.     If  an  account  was  staled  by  the  par^ 
tics,  and  an  amount  was  agreed  upon  as  due  the  plaintiff,  within  certain  dates, 
but  the  defendant  claimed  something  on  a  prior  account,  it  is  held  there  is  a 
4ufiicicnt  stating  of  account  for  the  amount  named,  subject  only  to  a  right  of 


Jdy,  1854.]  LocKwooD  v.  Thorxb.  AT 

■et-off  an  tiie  put  of  the  defendant  to  any  prior  elaim  not  indndcd  therein! 
rtlerv.  PeaU$,  8  N.  H.  226;  and  in  WhiU  t.  WkUUg,  8  D^y,  23,  it  b  held 
that  where  anaooodnt  has  been  stated  between  two  persons,  embrmcing  all  tbe 
items  of  a  particular  transaction,  but  the  debtor  refoaes  to  pay  unless  the 
creditor  executes  a  release  embracing  other  disputed  matters,  the  accouDt 
ii  so  far  conduaiTe  against  the  debtor,  in  an  action  to  recoTer  the  balance» 
at  to  cast  upon  him  the  burden  of  ahowing  error  or  mistake  therein;  and  as 
to  when  an  account  is  not  stated  as  to  a  disputed  item  therein,  see  Dudley  v. 
Omuffa  Iron  Co.,  13  Ohio  St.  168.  An  account  in  writing  ezaminerl  and 
signed  by  the  parties  will  be  deemed  a  stated  account  notwithstanding  it 
contains  the  clause  that  "errors  are  excepted:**  1  Story's  Eq.  Jur.,  see.  526; 
Branger  v.  Chnalier,  9  Cal.  353.  It  is  necessary  to  observe,  also,  that  the 
count  on  an  account  stated  implies  some  previous  transaction  between  the 
parties  with  reference  to  which  the  account  relied  on  was  stated  between 
them.  Therefore  where  a  lamllonl,  being  in  possession  of  premises  lately 
held  by  hie  insolvent  tenant,  on  which  were  fixtures  belonging  to  the  latter, 
agreed  to  give  up  poesession  on  his  assignees  paying  a  certain  sum  for  the  rent 
due,  such  sum  can  not  be  recovered  upon  an  account  stated:  CUtrbe  v.  Webb, 
4  lyrw.  673;  S.  C,  1  Cromp.  M.  A  K.  29.  A  complaint  contains  a  clear  and 
amply  sufficient  allegation  of  an  account  stated  when  it  sets  forth  that  the 
parties  accounted  together  on  a  certain  day,  of  and  concerning  certain  work 
and  labor,  and  the  wages  due  therefor,  and  the  amounts  paid  thereon,  and 
that  it  was  found  and  ascertained  that  tliere  was  due  the  plaintiff  a  certain 
sum,  which  the  defendants  then  and  there  agree  to  pay:  Mcfarlundy,  Gutter ^ 
1  Mont.  383.  Evidence  tending  to  show  that  the  parties  met  and  settled  up, 
and  that  a  balance  was  struck  and  agreed  upon,  is  admissible  to  prove  an 
account  statecl,  and  is  sufficient  to  authorize  the  submission  of  the  question 
as  one  of  fact  to  the  jury:  Albreeht  y.  Oiet,  33  Mich.  389. 

Adhlssiox,  when  axd  to  WnoH  Madb — Who  mat  State  ax  Account.— 
It  in  not  material  when  the  admission  is  made,  whether  before  or  after  action 
brought,  if  it  be  proved  tliat  a  debt  existed  before  suit,  to  which  the  conver- 
sation related:  2Qreenl.  Ev.,  sec.  128;  Allen  v.  Cooil',  2  Dowl.  Pr.  &46;  but  an 
acknowledgment  of  money  due  after  the  bringing  of  an  action  can  not  lis 
given  in  evidence  in  support  of  the  count  on  an  account  stated,  where  no  debt 
existing  before  the  action  was  brought  is  proved:  Allen  v.  Cook,  sttpra.  Nor, 
if  the  account  haa  been  assigned,  is  it  material  whether  the  admission  was 
made  before  or  after  the  assignment:  Powell  v.  Pacific  liailrocul,  65  Mo. 
658. 

The  admission  must  be  made  to  the  opposite  party  or  to  his  agent: 
2 Greenl.  Ev.,  sec.  128;  Batea  v.  Toundey,  2  Exch.  152;  S. C,  19  L.  J.  Excli.  390; 
12  Jur.  606;  Breckon  v.  Smith,  I  Ad.  t,  El.  488;  Jloffar  v.  JJement,  5  Gill,  13 J; 
Thurmond  v.  Sanders,  21  Ark.  255.  Thus  defendant's  admissions  or  tieclara- 
tions  to  third  persons,  not  shontn  to  be  agents  of  the  plaintiff,  that  he  owed  the 
latter  a  certain  sum  of  money,  is  not  evidence  of  an  account  stated:  J/oJat 
V.  Dement,  Breckon  v.  SmUh,  Thurmond  v.  Sanders,  supra ;  and  an  agent, 
of  course,  may  bind  his  principal  by  an  account  stated:  Murray  v.  Tolaiul,  3 
Johns.  Ch.  569;  so  in  these  cases  in  which  a  husband  may  bind  his  wife's 
estate,  under  the  statute,  for  plantation  supplies,  he  may  state  an  account 
that  will  bind  her:  KloUv.  Butler,  56  Miss.  333. 

To  s^te  an  account,  a  party  obviously  must  have  capacity  to  contract. 
Assumpsit  on  an  account  stated,  therefore,  does  not  lie  against  an  infant, 
even  though  the  particulars  of  the  account  were  for  necessaries:  7^*ueman  v. 
Hwrsif  1  T.  B.  40;  BarileU  v.  hhnery.  Id.  42,  note;   but  an  account  ntated  by 


88  LocKWOOD  V.  Thobns.  [New  York» 

Ml  infiiit  b  not  alaofaiiely  Told,  bat  roidabla  only,  and  may  be  ratified  by 
him  after  attaiDing  faU  age:  WiUiamu  t.  Moor,  11  Mee.  ft  W.  256. 

AooomrxB  Rbxdebjcd  Bsoomivo  Accounts  Stated  bt  Aoquiescekcb. — 
As  baa  been  aaid  abore,  the  aaaent  to  an  account,  thereby  making  it  an 
account  stated,  need  not  be  express  bat  may  be  implied.    It  is  therefore  well 
settled  that  while  the  mere  rendering  of  an  account  will  not  make  it  an 
account  stated,  still,  where  an  account  is  made  up  and  rendered  by  one  per* 
son  to  another,  he  who  receives  it  is  bound  to  examine  it  and  state  hia 
objections  thereto,  and  if  he  does  not  object  within  a  reasonable  time,  it 
will  be  treated,  under  ordinary  circumstances,  as  being  presumptively,  by 
acquiescence,  a  stated  account:    WUHs  v.  Jemtgan,  2  Atk.  251;  Sherman  v. 
Slumuai,  2  Vem.  276;  Tictel  v.  8hoH,  2  Ves.  sen.  239;  Langdon  v.  Roane*o 
AdmW,  41  Am.  Dec  60;  Freeman  v.  Howell,  50  Id.  561;  Brown  v.  Vandyke, 
65  Id.  250;  Freeiattdy.  JJeron,  7  Cranch,  147;  Tolandy.  Spragne,  12  Pet  300; 
Wiggnu  v.  Burkham,  10  Wall.  129;  Oil  Company  v.  Van  MUn,  107  U.  S.  325; 
8.  C,  1  Sup.  Gt.  Rep.  178;  Afarye  v.  Strouse,  6  Saw.  204;  Murray  v.  Tokmd^ 
8  Johns.  Ch.  669;    Atwater  v.  Fotoler,  I  Edw.  Ch.  417;    PhUipe  ▼.  Belden^ 
8  Id.  1;  Dowe  v.  Dur/ee,  10  Barb.  213;  Pofrell  v.  Noye,  23  Id.  184;  Tow- 
ley  V.  Denieon,  45  Barb.  490;  IltUchinson  v.  Market  Bank  of  TVoy,  48  Id. 
802;  Gilchrist  v.  Brooklyn  Oroeera*  Man.  Atts'n,  390,  401;  Ogden  v.  Asbor,  4 
Sandf.  311;   Avery  y.  Leajch,  9  Hun»  106;  Stenlan  v.  Jerome,  54  N.  Y.  480; 
Smith  V.  Marvin,  27  N.  Y.  137;  S.  C,  25  How.  Pr.  317;  BuUard  v.  Baynar, 
80  Id.  197,  202;    Guernsey  v.  ReTford,  63  Id.  631,  633;    Case  v.  HotchJnsn,  1 
Abb.  App.  Dec.  324;    S.  C,  3  Abb.  Pr.,  N.  S.,  381;  3  Keyes,  334;    37  How. 
Pr.  283:    Harley  v.  Eleventh  Ward  Bank,  7  Daly,  476;    Harris  v.  Ely,  Sold. 
Notes,  37;    Allen  v.  Stevens,  1  N.  Y.  Leg.  Obs.  359;  Terry  v.  Sickies,  13  Cal. 
427;  Treas  v.  TruiU,  2  Col.  489;  Mansell  v.  Payne,  18  La.  Ann.  124;   Darby 
V.  Lastrapes,  28  Id.  605;    White  v.  Campbell,  25  Mich.  463,  469;    Stebbins  v. 
Nites,  25  Miss.  267;  Coopwood  v.  Bolt0n, 2aid,  212;  Shepard  v.  Banko/State^ 
15  Mo.  141 ;    PouM^  v.  Paq/ec  BaUroad,  65  Id.  658;    Hawkins  v.  Lon;;,  74 
K.  C.  781;    Darlington  v.  ^ayZor,  3  Grant  Cas.  195;    Bevan  v.  C7u4^  7  Pa. 
St.  281 ;  Burden  v.  McElmoyle,  1  Bail  Ch.  375;   Craighead  v.  Bttni;  o/State^ 
7  Yerg.  399,  409;  ^o^  y.  Tharp,  15  Vt.  105;    TVmnes  v.  BircheU,  12  Leigh, 
173;    Bobertson  y.  IFr^/i^  17  Oratt.  534;    BenitesY.  BickneU,  2  West  Coast 
Rep.  359;  S.  C,  3  Pac.  Rep.  206.      The  principal  case  has  always  been  re- 
garded as  a  leading  one  on  this  proposition,  and  is  cited  to  that  effect  in  Case 
V.  Hoiehkiss,  1  Abb.  App.  Dec.  326;  S.  a,  3  Abb.  Pr.,  N.  S.,  382;  3  Keyes,  335; 
87  How.  Pr.  285;  SmUh  v.  Marvin,  27  N.  Y.  143;  S.  C,  25  How.  Pr.  326; 
Gildirist  v.  Brooklyn  Orocertf  Man,  Aas'n,  66  Id.  401;  Carpenter  v.  Nickerson^ 
7  Daly,  425;  Livermore  v.  St.  John,  4  Robt.  17;  Wiggins  y.  Burkham,  10  Wadi; 
131,  132;    OU  Company  v.  Van  Etten,  107  U.  S.  334;    S.  C,  1  Sup.  Ct.  Rep. 
185;    Loekioood  v.  Slevin,  26  Ind.  134,  per  Gregory,  C.  J.,  dissenting;   White 
v.  Campbell,  25  Mich.  469;  Benitesy.  BickneU,  2  West  Coast  Rep.  362;  a  a, 
3  Pao.  Rep.  208.     Certain  Pennsylvania  cases  have  maintained  that  mere 
acquiescence  in  an  account  rendered  is  very  slight  etidenoe  of  its  correctness: 
Spongier  v.  Springer,  22  Pa.  St.  454,  citing  KUlam  v.  Preston,  4  Watts  k 
S.    15;    see  fldso  Mellon  v.  Campbell,   11   Pa.   St.   415;    but  the  doctrine 
announced  in  Verrier  v.  Guillon,  97  Id.  63,  68,  "that  an  account  rendered  to 
a  party  indebted  by  his  creditor,  and  not  objected  to  in  a  reasonable  time.  Is 
prima  facie  evidence  against  the  party  to  whom  it  is  rendered,*'  is  a  departure 
from  this,  and  accords  with  the  great  weight  of  authority  as  stated.    It  will 
be  observed  that  the  rule  as  first  above  given  is  not  confined  in  its  language 
to  any  particular  class  of  persons;  but  Andkng  v.  Levy,  67  Miss.  51;  S.  C. 


Jdy,  1854]  LocKWooD  t;.  Thornk  W 

U  Am.  Rep.  43S»  donies  Hi  applicability  to  oihera  than  mrelMmti,  citing  the 
prineipal  cMe»  pp.  64,  43S,  respectively,  as  holding  it  applieable  to  permns 
^eially;  and  in  Bich  v.  Sdredge,  42  N.  II.  158^  150.  Bell,  C.  J.,  after 
stating  the  role  an  to  an  acconnt  rendered  becoming  an  aoooout  statcfl,  aa 
between  merdiaata,  to  which  lie  dtea  the  principal  caae,  nya:  "The  mie 
as  tfaoa  stated  does  not  apply  in  the  cases  of  persons  who  are  not  mer- 
chsotL  But  SQSie  prasomption  of  assent  to  the  correetneas  of  an  account 
rendered,  firom  the  silence  and  acquiescence  of  the  party,  witbont  making 
toy  objeetion  after  a  reasonable  opportunity  has  elapsed  for  its  exami- 
nation, and  reasonable  time  for  objcdting,  arises  with  more  or  less  force 
m  the  ease  of  all  penons  who  can  be  properly  regarded  as  men  of  business, 
eonsiflering  the  nature  of  their  business  and  education,  their  local  situation 
and  other  drgumstanoea,  such  presumptions  applying  with  most  force  in 
citi»,  and  being  slightly  r^parded  in  the  country.**  Therefore  an  instruction 
to  the  jury  was  held  to  be  proper,  that  if  a  testator  exhibited  to  the  plaintiff 
his  books,. and  preaented  to  him  a  detailed  statement  of  the  account  between 
them,  as  dealers  in  lumber,  showing  a  balance  against  the  plaintiff,  and  they 
were  examined  by  him  without  objection,  and  the  account  kept  without  ob- 
jection  a  year  and  a  half  without  any  claim  for  the  balance  now  asserted  to 
be  due,  it  is  evidence  of  assent  to  the  correctness  of  the  account.  This  re- 
ttriction  hud  down  by  tiiese  cases  is  not  recogniied  in  the  numeroas  authori- 
ties cite<1  above,  and  in  some  it  has  been  expressly  repudiated:  7*oim^s  v. 
BirckeU^  12  Leigh,  173;  Shepard  v.  Bank  o/SkUe^  15  Ma  141;  and  although 
Mr.  Justioe  Story  states  tlie  rule  as  if  it  applied  to  merchants  solely,  1  Eq. 
Jur,  see.  526,  Mr.  Wharton  put  it  in  a  more  general  form,  2  Ev.,  sec.  1140; 
bat  it  seems  to  us  hie  wording  is  not  sufficiently  brood.  The  doctrine  of 
accoQsti  rendered  becoming  accounts  stated  has,  however,  been  held  not  to 
ipply  to  married  women,  in  cases  arising  between  them  and  their  haslMinds: 
Soutiiwidt  V.  Suuthwiekj  I  Sweeny,  47,  distinguishing  the  principsl  case,  p.  49, 
M  a  decision  between  persons  having  no  other  than  business  relations.  What 
ii  a  reaionahle  time  within  which  the  person  to  whom  an  ocooant  is  rendered 
most  object  or  become  bound  dependis  upon  the  relations  of  the  parties  and 
the  usual  course  of  business:  Freeman  v.  Ncwdl,  50  Am.  Dee.  561 ;  Darby  v. 
Lattrapa,  28  La.  Ann.  605;  see  1  Story's  £q.  Jur.,  sec.  526.  In  Wiggitu  v. 
Bnrkham,  10  Wall.  120,  132,  the  following  language  is  used:  **The  proiKMi- 
tioD  that  what  ia  a  reasonable  time  in  such  cases  is  a  question  for  the  jury,  as 
laid  down  by  the  court  below,  can  not  be  sustained.  Where  the  facts  are 
clear,  it  is  always  a  question  exclusively  for  the  court.  The  point  was  so 
rated  in  Tokrnd  v.  Sprague^  12  Pet.  336;  see  also Xociwooef  v.  Thornf,  II  N. 
Y.  175.  Where  the  proofs  are  conflicting,  the  question  is  a  mixed  one 
of  law  and  of  fact.  In  such  cases  the  court  should  instruct  the  jury  aa  to  the 
law  upon  the  several  hypotheses  of  fact  insisted  upon  by  the  parties.*'  Com- 
pare OU  Company  v.  Van  EUen,  KfJ  U.  8.  325,  334;  S.  C,  1  Sup.  Ct.  Rep. 
178, 185,  citing  the  principal  case;  and  Powell  v.  PaHfic  /Railroad,  65  Mo.  658, 
661,  quoting  the  principal  caae;  J/utchin»n  v.  Market  Bcuik  of  Troy^  43 
fiarb.  302.  In  Miasisalppi,  it  is  held  that  whether  an  account  bo  an  account 
•tated  or  not  is  for  the  jury  to  determine:  />osw  v.  Tieman^  2  How.  (Miss. ) 
786;  Anding  v.  Levy,  57  Miss.  51;  S.  0.,  34  Am.  Rep.  435;  but  see  the  cases 
nted  svpro. 

The  following  are  cases  arising  under  this  head  on  exceptional  conditions 
of  foct.  It  has  been  held  to  be  an  essential  element  of  an  account  stated  that 
the  account  was  rendered  for  the  purpose  of  asserting  a  claim,  or  at  Icaat  of 
establishing  the  balance  doe  thereby;  therefore  a  transcript  from  the  bo4»ka 


90  LoCKWOOD  V.  Thornk.  [Now  York. 

of  a  corporation,  famiahed  by  ita  book-keeper  on  roqneat,  haa  not  the  effect 
of  an  aoooont  stated,  so  aa  to  bind  the  oorporation:  Ilaroey  t.  We$t  Side  EU" 
voted  Ii%  IS  Hun,  392.  So  the  rule  that  acquiescence  in  an  account  after  its 
delivery,  by  failing  to  make  objections  thereto  within  a  reasonable  time, 
makes  it  an  account  stated,  does  not  apply  where  a  party  renders  an  account 
under  a  miatake  or  misapprehension:  Polhemva  v.  Heiman^  60  Cal.  438;  and 
if  A  trustee,  under  a  deed  Toluntarily  executed  by  a  father  in  favor  of  his  chil- 
dren, renders  an  account  to  the  grantor,  which  ia  casually  examined  by  one 
of  the  beneficiaries,  not  being  at  the  time  aware  of  his  own  interest  in  the 
trust,  this  does  not  render  it  aa  to  him  an  account  stated:  Andrew*  t.  Ilolh 
son'ti  Adm*r,  23  Ala.  219.  Where  an  account  was  rendered  a  firm  in  January 
of  a  certain  year,  for  money  loaned  to  a  person  employed  by  them,  and 
although  retained  for  some  months,  there  was  no  act  directly  or  indirectly 
affirming  its  correctness,  but  in  the  fol'owiug  March  and  August  its  accuracy 
was  disputed,  and  when  last  disputed  the  firm  was  requested  by  the  lenders 
to  allow  the  account  to  stand  as  it  Was  until  the  return  of  the  borrower  from 
Europe,  such  account  is  not  a  stated  account  which  the  firm  is  not  at  liberty 
to  dispute:  Porter  y.  LobcuJi,  2  Boaw.  188,  distinguiahing  the  principal  case, 
p.  104,  in  that  there,  after  the  account  showing  a  balance  waa  received,  the 
defcnd£Jits  immediately  drew  for  tbe  amount  of  such  balance,  which  was  paid. 
And  where  the  defendant,  having  sold  goods  for  the  plaintiff,  sent  him  an 
account,  and  the  plaintiff  several  times  unsuccessfully  attempted  to  get 
further  explanations  from  the  defendant  in  regard  to  it,  and  afterwards,  on 
seeing  the  defendant  was  paid  something,  and  promised  a  more  detailed  state- 
ment, for  which  the  plaintiff  wrote  after  waiting  a  long  time,  the  first  account 
sales,  by  the  action  of  the  parties,  was  not  made  an  account  stated:  Carpenter 
V.  Nickeraon,  7  Daly,  424.  Where,  also,  a  factor  transmits  to  his  principal 
two  different  accounts  of  sales  of  the  same  goods,  the  latter,  having  approred 
and  recognized  the  first,  need  take  no  notice  of  the  second:  Cariwrighi  ▼. 
Oreeiie,  47  Barb.  9.  If  a  merchant  furnishes  goods  to  workmen  on  orders 
from  their  employer,  and  receives  his  pay  from  the  employer  on  presentation 
of  the  orders^  the  amount  being  fixed  by  the  orders  and  deducted  from  the 
wages  of  the  workmen,  the  arrangement  is  evidence  of  an  account  stated: 
BtiU  V.  Broekway,  48  Mich.  623;  S.  C,  14  Rep.  403;  12  N.  W.  Rep.  685. 
Balances  struck  in  a  broker's  pass-book  may  be  accounts  stated  by  acquies- 
cence: Marye  v.  Strouaet  6  Saw.  204;  as  may  bo  bank-books  written  up  from 
time  to  time;  HtUehnuon  v.  Market  Bank  of  TVoy,  48  Barb.  302;  Craighead  v. 
Bank  o/Staie,  7  Yerg.  399,  409;  but  see  Ex  parU  Bandleaon,  2  Deac  &  Ch.  634. 
An  account  rendered,  which  has  become  by  acquiescence  an  account  stated, 
draws  interest  from  the  time  when  rendered:  Case  v.  IJotchkisH,  1  Abb.  App. 
Dec  324;  S.  C,  3  Abb.  Pr.,  N.  S.,  381;  3  Keyes,  334;  37  How.  Pr.  283.  To 
enable  a  plaintiff  to  recover  as  upon  an  account  stated,  upon  an  account  ren- 
dered, he  must  declare  upon  it  as  such:  Northern  Line  Packet  Co.  v.  Plait, 
22  Minn.  413;  and  evidence  to  show  that  the  account  was  received  and  held 
by  the  defendant,  who  offered  no  objection  to  it,  will  not  aupply  an  omission 
to  plead  an  account  stated:  Ward  v.  FarrrVy,  9  Mo.  App.  370;  but  where  a 
petition  alleged  that  the  defendants  were  indebted  to  the  plaintiff  for  pro- 
fessional services  and  moneys  advanced,  and  contained  a  bill  of  items,  and 
further  alleged  that  this  bill  was  presented  to  the  defendants,  and  after  the 
lapse  of  some  months  returned  by  them  without  objection,  there  is  no  allega- 
tion of  an  account  stated:  Brown  v.  Kimmel,  67  Mo.  430. 

Whebb  Only  Oni  Item  ix  Aooouvt  is  Objected  to,  it  is  evidence  of 
an  account  stated  aa  to  the  itema  to  which  no  objection  wma  made:  2  GreenL 


July,  1854.]  LocKwooD  v,  Thorne.  91 

Ev.,  aec.  126;  ChUman  y,  CflwU,  2  Man.  k  O.  307;  S.  C,  2  Soott  N.  R.  569; 
Sergeant's  Nehn  y.  Ewing,  36  Pa.  St.  156;  IViffghu  v.  Burkham,  10  Wall.  129, 
citing  the  principal  case,  p.  131,  a«  a  leading  authority  in  accord  with  thii 
proposition;  but  the  repudiation  by  the  defendant  of  any  obligation  to 
plaintiff,  by  reason  of  a  transaction  subsequently  made  the  subject  of  an 
account  stated  to  him  by  the  plaiutiff,  is  not  equivalent  to  a  rejection  of  the 
account,  and  is  only  a  circumstance  to  be  considered  on  the  issue  as  to  whether 
there  wss  an  account  stated  or  not:  Puiuam  ▼.  Peabody^  11  N.  Y.  Week.  Dig. 
440. 

Accouirr  Rskdkrzd  does  not  Preclttdb  Rioovert  or  Laroeb  Amount 
if  the  account  was  not  assented  to  by  the  party  to  whom  it  was  rendered; 
Siryl^  V.  Camdy,  76  N.  Y.  60;  Natmum  t.  ZoerhltnU,  21  Wis.  469,  citing 
the  principal  case;  and  an  offer  to  pay  a  sum  less  than  the  sum  claimed,  U 
not  accepted,  is  no  evidence  against  a  defendant  for  the  larger  sum  on  an  ac- 
count stated:  Atkinsoti  v.  Woodall,  31  L.  J.,  M.  C,  174. 

I  0  U  IS  Evtde:ccb  of  Account  Stated:  Payne  v.  Jenkins,  4  Car.  &  P. 
3*24;  FeMenmayerv,  Adcocl\  16  Mee.  &  W.  449;  although  it  is  not  addressed  to 
any  one,  if  it  is  in  the  defendant's  handwriting,  and  is  produced  by  the  plaint- 
ilf:  2  Chit.  Cont.,  11  Am.  ed.,  963;  CuHu  v.  Richards,  1  Man.  ft  O.  46; 
S.  C,  1  Scott  N.  R.  155;  4  Jur.  608;  Douglas  v.  Holme,  4  Per.  ft  D.  685;  S. 
C,  12  Ad.  ft  El.  641 ;  and  if  the  defendant  wishes  to  rebut  the  inference  aris* 
ing  from  its  proiluction  by  the  plaintiff,  he  should  show  that  it  had  been  in 
the  hands  of  some  other  party:  Curtis  v.  Richards,  supra.  But  an  I  0  U  not 
given  in  acknowledgment  of  a  debt  due,  nor  as  the  result  of  an  account  stated, 
Ib  not  evidence  under  a  count  on  an  account  stated:  Lemert  v.  Elliott,  6  H.  ft 
N.  656;  S.  C,  30  L.  J.  Ezch.  350;  4  L.  T..  K.  S.,  304;  7  Jur.,  K.  S.,  1206. 

C0NCLU8IYXNB8S  or  Account  Stated — Impeachment  of,  for  Fraud,  Mis- 
take, ETa — ^An  account  stated  Ib  not  absolutely  conclusive  upon  the  partiea. 
It  estiablishes  prima  fade  the  accuracy  and  correctness  of  the  items,  and  un- 
less this  presumption  is  overcome  by  proof  of  fraud,  mistake,  or  error,  it  be- 
comes condusiye;  but  the  converse  of  this  proposition,  namely,  that  an  account 
stated  may  be  impeached  for  fraud,  mistake,  or  error,  is  very  well  settled. 
See,  on  these  propositions,  1  Story's  Eq.  Jur.,  sec.  523;  Dickerson  v.  Nabb, 
2  Am.  Dec  725;  Hutehinton  v.  Market  Bank  of  Troy,  48  Barb.  302; 
TowsUy  y.  Deniton,  45  Id.  490;  Lockwood  v.  Thome,  18  N.  Y.  285; 
JIarUy  v.  JOeventh  Ward  Bank,  76  Id.  618;  Sharkey  v.  Man^fieUl,  90  Id. 
227;  Kock  v.  BonUz,  4  Daly,  117;  Barker  v.  Jfoff,  52  How.  Pr.  382;  Chap- 
pelaine  v.  Deehenaux,  4  Cranch,  306;  Oil  Company  v.  Van  Etlen,  107  U. 
S.  325;  S.  C,  1  Sup.  Ct.  Kep.  178;  Bertrand  v.  Taylor,  32  Ark.  470;  Branger 
T.  Chevalifr,  9  CaL  353;  Goodwin  v.  United  States  Ins,  Co,,  24  Conn.  591,  603; 
Wharton  v.  Anderson,  28  Minn.  301;  S.  C,  9  N.  W.  Rep.  &60;  12  Rep.  752; 
24  Alb.  L.  J.  476;  Carroll  v.  Paul's  Adm'r,  16  Mo.  226;  Jones  v.  Dunn,  3 
Watts  ft  S.  109;  Dunham  v.  Otiswold,  16  N.  Y.  Week.  Dig.  501;  First  Nat. 
Bank  v.  Continental  Bank,  17  Id.  42;  see  the  principal  case  cited  on  the  above 
points  in  Hutchinson  v.  Market  Bank  of  Troy,  48  Barb.  324;  Towsley  v.  Dem-^ 
son,  45  Barb.  493;  Kock  v.  Bofiitz,  4  Daly,  120;  Harley  y.  Eleventh  Ward 
Bank^  7  Id.  478;  Halstead  v.  Seaman,  52  Uow.  Pr.  421 ;  Bullard  v.  Raynor, 
30  N.  Y.  202;  Ouemsey  v.  Rexford,  63  Id.  633;  Oil  Company  v.  Van  Etten, 
107  U.  S.  334;  S.  C,  1  Sup.  Ct  Rep.  185;  Brown  v.  Kimmel,  67  Mo.  431. 
"The  result  is,**  says  Hogebooro,  J.,  in  Hutchinson  v.  Market  Bank  of  Troy, 
supra,  *'  that  a  stated  account  never  gives  to  a  party  claiming  under  it  the 
benefit  of  an  absolute  estoppel,  and  in  practical  effect  gives  him  little  more 
than  these  two  advantages:  1.  When  the  question  arises  upon  the  plead- 


92  LoCKWOOD  u  Thokne.  [New  Tork^ 


hgB,  tliA  ooort  bas  In  some  instanoee,  in  granting  penniarion  to  amend  or 
ply  some  equitable  control  over  the  power  of  opening  the  accounts;  2.  W'heifr 
the  queation  ariaea  npon  the  trial,  the  party  impeaching  the  acoonnt  haa  the 
affirmatire  of  the  iaane,  and  the  burden,  and  aometimea  an  oppressive  bur- 
den, of  proof.  Theae  are  considerable  advantages,  but  they  come  very  far 
short  of  placing  the  adrerae  party  under  the  bar  of  an  abaolute  estoppel.'*' 
So  in  Lockwood  t.  TAome,  18  N.  Y.  285,  where  the  principal  case  again  came 
before  the  New  York  court  of  appeals,  and  was  there  explained,  Mr.  Justice 
Selden  observes:  **An  account  stated  or  settled  is  a  mere  admission  that  the 
account  is  correct.  It  is  not  an  eatoppel.  The  account  is  still  open  to  im- 
peachment for  mistakea  or  errors.  Its  effect  is  to  eatabliah,  prima  fncie,  the 
accuracy  of  the  itema  without  other  proof;  and  the  party  seeking  to  impcacli 
it  is  bound  to  show  affirmatively  the  mistake  or  error  alleged.  The  force  of 
the  admisaion  and  the  strength  of  the  evidence  which  will  be  necessary  to 
overcome  it  will  depend  upon  the  circumstances  of  the  case.  An  account 
stated  which  is  shown  to  have  been  examined  by  both  parties,  and  expressly 
aasented  to  or  signed  by  them,  would  afford  stronger  evidence  of  the  correct- 
ness of  its  items  than  if  it  merely  appeared  that  it  had  been  delivered  to  the 
party,  or  sent  by  mail,  and  acquiesced  in  for  a  sufficient  length  of  time  to  en- 
title it  to  be  considered  as  an  account  stated."  An  account  stated  may  also  be 
attacked  when  it  is  shown  to  have  been  procured  by  duress:  Dunham  v.  OrU* 
wM,  16  N.  Y.  Week.  Dig.  501.  In  this  case  it  was  held  that  if  threats  of 
criminal  prosecution  are  used,  the  account  stated  may  be  avoided,  but  a. 
threat  of  legal  process,  even  including  arrest  and  imprisonment,  was  not  suf- 
ficient to  constitute  duress.  See  also  Tueber  v.  Barrow^  7  Bam.  &  Cress.  623;: 
S.  C,  3  Carr.  k  P.  85,  on  the  proposition  that  an  admission  under  compulsion* 
of  a  debt  due  was  not  evidence  of  an  account  stated. 

It  is  well  to  observe,  however,  that  the  parties  in  stating  an  account  may^ 
have  made  concessions,  or  have  so  acted  upon  its  faith  as  to  prevent,  by 
estoppel,  its  impeachment  in  some  cases:  See  the  observations  in  Kock  v. 
Bonitz,  Lockwood  v.  TAome,  Wharton  v.  Anderson^  supra.  In  the  last  of  theae 
cases  it  b  said  that  an  account  stated  **  is  only  prima  ftMcie  evidence  of  the 
correctness  of  the  balance,  and  not  conclusive  upon  it,  unless  in  arriving  at 
the  agreed  balance  there  has  been  some  concession  made  upon  items  disputed 
between  the  parties  so  that  the  balance  is  the  result  of  a  compromise,  or 
some  act  has  been  done  or  forborne  in  oousequence  of  the  accounting,  and  re- 
lying upon  it,  which  would  put  the  party  claiming  the  benefit  of  it  in  a. 
worse  position  than  as  though  it  had  not  been  had,  so  as  to  bring  the  case 
within  the  principles  of  an  estoppel  in  pais,  A  stated  account  not  affected 
by  such  new  consideration  or  estoppel  may  be  impeached  for  mistake  or  er- 
ror in  law  or  in  fact  with  respect  to  the  items  included  in  it,  or  for  omission 
of  items." 

It  is  in  the  matter  of  impeaching  accounts  that  the  distinction  between  ac- 
counts stated  and  accounts  settled,  above  referred  to,  has  a  practical  impor- 
tance. As  was  well  said  by  Selden,  J.,  in  Lockwood  v.  Thome,  mpra,  "An 
account  settled,  that  is,  when  the  balance  it  exhibits  has  been  paid  or  ad- 
justed between  the  parties,  is  stronger  evidence  and  requirea  more  proof  to 
overcome  it  than  a  mere  account  stated;"  see  also  the  principal  case  cited  in 
Mclntyre  v.  Warren,  3  Abb.  App.  Dec.  104;  S.  C,  3  Keyes,  189;  Chubbuck  v. 
Kemom,  42  N.  Y.  436,  as  to  the  quantum  and  burden  of  proof  in  opening 
settled  accounts. 

Under  an  averment  of  indebtedness  upon  an  account  stated,  the  defendant 
is  entitled  to  show,  under  the  general  issue,  the  incorrectness  of  the  account t 
Thomas  v.  JJawlxa,  8  Mee.  &  W.  140;  but  under  a  general  denial  to  a  com* 


July,  1854.]  LoGKWOOD  v.  Thornk  93 

{Jaxnt  on  an  accMmt  stated,  tha  defendant  can  not  be  permitted  to  attack  tha 
foiTectDeai  of  the  itema  of  which  the  aooonni  stated  ia  oompoaed:  Wamfrr 
JJjfHek^  16  Mum.  91.  If  the  action  ia  npon  the  original  contract,  the  plaintilT 
ia  not  called  npon  to  plead  errora  in  an  aoooont  stated,  aet  up  aa  a  defeoas^ 
either  in  hia  complaint  or  by  way  of  reply:  WeUk  v.  Oerman'Awteriemm 
Bamk^  10  Jooea  &  S.  402.  Where  the  plaintiff  seeka  to  open  an  account 
aUteil,  the  acoount  is  open  to  any  objections  on  the  part  of  the  defendant: 
Yomg  V.  HiU,  67  K.  T.  102;  S.  C,  23  Am.  Bep.  99.  U  a  bUl  is  brought  to 
impeach  a  stated  ncconnt»  and  it  chargea  that  the  complainant  has  no  counter 
part  of  the  acco«int»  and  prays  the  same  may  be  set  forth,  the  defeudaal 
will  be  obliged  to  do  so  or  to  annex  it  to  his  answer  or  plea,  even  though  ha 
sets  up  or  |»leada  a  stated  acoount:  BuUoci  ▼.  Boyd,  2  £dw.  Ch.  293;  ace  also 
Story's  £q.  PL,  see.  802. 

Effect  on  Orioimal  Debt  of  Statinu  AccofuvT, — The  stating  of  an  ao* 
count  alters  the  nature  of  the  debt,  and  is  in  the  nature  of  a  new  promise  or 
uodertaking:  Foster  t.  AUamtm^  2  T.  R.  479.  482,  483,  per  Ashburst  and 
BuUer,  J  J. ;  //o2mef  y.  De  Camp,  1  Johns.  34;  Smith  v.  OUmh  FalU  Iw.  Co. ,  66 
Barb.  556;  McadkauTM  Sx'r  t.  West's  Adm'r,  70  Pa.  St.  183;  Benitea  v.  Bick- 
ndl,  2  West  Coaat  Bep.  359;  a  C,  3 Pac.  Rep.  206.    Theraforo  an  account 
stated  with  a  new  firm  may  aometimea  include  defata  due  a  former  firm  or  to 
one  of  the  partners:  David  v.  EUictt  6  Bam.  k  Cresa.  196;  and  surviving  part- 
neis  who  continue  to  trade  under  the  copartnership  name  may  recover  u^ion 
an  insimul  eamptUasseMl  the  balance  admitted  to  be  due  by  a  debtor  after  the 
partner'a  deoeaae,  without  stating  the  death  of  such  partner  and  the  survivor- 
ship: Jlolmea  y.  De  Camp^  supra;  and  when,  after  a  fire,  the  parties  meet 
and  adjust  the  loss  and  liquidate  the  amount,  which  the  insurer  promises  to 
pay,  it  will  sustain  an  action  as  upon  au  acoount  stated:  Smith  y.  Olerm  Falls 
Ins,  Con^  SMpra,    It  is  also  consequently  unnecessary  to  show  the  nature  of 
the  ori|^nal  debt,  or  to  prove  the  specific  items  constituting  the  account:  2 
Chit.  Cont.,  11  Am.  ed.,  961;  2  OroenL  £v.,  sec  127;  BarOeti  v.  Enury, 
2  T.  B.  42,  note;  Morwria  v.  Levy^  Id.  483,  note;  Qrtgory  y.  BaiAqfs  AdnCr, 
4  Harr.  (DeL)  256;  AWrtdd  y.  Gies,  33  Mich.  389;  McCaU  v.  Natfe,  52  Miss. 
494,  408;  May  y.  Klass,  44  Mo.  300;  McCleUand*s  ExW  y.  West's  Adm'r,  70 
Pa.  St.  183;  Lyne  y.  OiUiaif  3  Call,  5;  so  in  declaring  upon  an  account  stated 
it  ia  not  neoessazy  to  set  forth  the  subject-matter  of  the  original  debt:  Me- 
t'aU  y.  Kave^  supra;  the  debt  may  have  arisen  by  covenant:  Morama  y.  Levy^ 
Fost/tT  y.  AUanson,  supra;  but  in  Oilson  v.  Stewart,  7  Watts,  100,  it  was  held 
that  an  action  of  ajssumpsiU  would  not  lie  upon  an  express  promise  to  pay  a 
debt  secured  by  specialty,  or  other  security  of  a  higher  nature,  although  an 
account  be  stated  between  the  parties  and  a  balance  struck;  but  if  other 
matters  of  account  be  blended  with  the  settlement  of  that  which  arose  out  of 
the  specialty,  asswtnfsit  will  lie  upon  an  express  promise  to  pay  the  balance 
due:  and  although  the  original  contract  was  void  by  the  statute  of  frauds,  an 
admission  afterwards  made  that  a  sum  of  money  was  due  the  plaintiff  en- 
titles the  latter  to  recover  upon  the  account  stated:  Seagoe  y.  Dean,  3  Car.  & 
P.  170;  S.  C,  4  Bing.  459;  Pinchon  v.  ChOeoU,  3  Car.  &  P.  23G;  Kitowles  v. 
Michel,  13  Eaat,  249;  Cock'mgy.  Ward,  1  C.  B.  858;  S.  C,  15  L.  J.,  C.  P.,  245. 
But  it  is  held  that  a  claim  which  is  absolutely  void  by  reason  of  an  illegality 
In  the  consideration  can  not  be  rolied  on  in  support  of  a  count  upon  an  ac- 
count stated:  Kennedy  v.  Broun,  13  C.  B.,  N.  S.,  677;  8.  C,  32  L.  J.,  C.  P., 
137;  7  L.  T.,  N.  a,  626;  9  Jur.,  N.  S.,  119;  so  it  is  held  that  the  defendant 
may  plead  and  prove  that  the  claim  was  founded  upon  sales  of  intoxicating 
liquoFi  in  violation  of  the  law,  and  thus  defeat  the  action:  Dunbar  v.  Johnson, 
m  Mass.  519;  Melehior  y.  McCarty,  31  Wis.  252;  S.  C,  11  Am.  Rep.  605| 


M  LocKWOOD  V.  Thobne.  [Now  Tork. 


K>  In  the  caw  of  imtiy:  Keane  ▼.  Branden^  12  La.  Ann.  20;  eofUra  in  New 
York:  Swutk  t.  Sfarpin,  27  N.  Y.  137;  S.  O.,  25  How.  Pr.  317;  BuUard  v. 
Raymor,  30  N.  Y.  197;  compare  Foiiyij^  ▼.  Hill,  67  Id.  162;  S.  C,  23  Am.  Rep. 
M.  If  the  money  n  claimed  by  the  pUintiff  in  a  particolar  capacity  or  char- 
•eter,  it  ia  not  DeoeaaEy  for  him  to  prove  that  character,  under  the  connt 
i^oQ  an  aocoont  stated,  for  the  defendant,  by  accounting  with  him  without 
objectloii,  haa  admitted  it:  Pfocock  v.  IfarrU,  10  East,  lOi.  The  sUting  of 
an  aocoont  was  held  in  Crou  ▼.  Moore,  23  Vt.  482,  not  to  render  it  neoea- 
sary  to  declare  specially  upon  the  account  stated,  but  a  recovery  might  still 
be  had  upon  the  original  account.  But  see  Rand  v.  Wright,  129  liaaa.  50| 
&  C  10  Repw  307. 

Statutb  or  Limitations  »  Cass  op  Aocoukts  Statkd. — ^Acoounts  stated 
are  not  viithiu  the  exception  contained  in  statutes  of  limitation  in  favor  of 
such  accounts  as  concern  the  trade  of  merchandise  between  merchant  and 
■lerchant:  Union  Bank  v.  Knapp,  15  Am.  Deo.  181;  DavU  v.  T%eman,  2 
How.  (Miss.)  786;  Bevan  v.  CulUn,  7  Pa.  St.  281;  Thompson  ▼.  FUher,  13 
Id.  310.  If  a  consignee  render  to  the  consignor  an  account  of  sales,  and  the 
latter  receives  it  without  objection  and  dairos  the  balance,  the  account  be- 
comes thereby  stated,  and  the  statute  of  limitations  begins  to  run  from  the 
time  of  demand  made:  Tokmd  v.  Sprague,  12  Pet.  300.  Under  a  statute  pro- 
viding that  "  no  acknowledgment  or  promise  shall  be  evidence  of  a  new  or 
oontinuing  contract,'*  whereby  to  take  a  caae  out  of  the  operation  of  the  stat- 
ute of  limitations,  unless  in  writing,  signed  by  the  party  to  be  charged,  an 
account  stated,  which  is  not  supported  by  evidence  of  some  writing  signed  by 
the  party  to  be  charged,  will  not  prevent  the  running  of  the  statute  against 
the  previously  existing  liabilities  included  therein:  Chaoey.  Troffcrd^  116 
Mass.  529;  S.  C,  17  Am.  Rep.  171.  If  an  account,,  barred  by  the  statute  of 
limitations,  be  sent  by  the  creditor  to  the  debtor,  at  the  request  of  the  latter, 
and  Is  by  him  retained  for  sevei-al  years  without  objection  to  its  correct- 
ness, it  ia  not  thereby  converted  into  a  stated  account  so  as  to  revive  the  debt 
and  the  bar  of  the  statute:  Bryan  v.  Ware,  20  Ala.  687;  and  see  Verrier  v. 
Guillon,  07  Pa.  St.  63,  G8.  In  an  action  for  goods  sold  and  delivered,  where 
the  bencGt  of  tlie  statute  of  limitations  is  claimed  as  a  defense  to  a  portion  of 
the  amount,  ou  the  ground  that  it  lias  been  converted  into  an  account  stated 
through  the  assent  of  the  defendant  to  the  account  as  rendered,  it  is  not  suf- 
Bcient  to  sustain  such  defense  that  upon  and  after  the  exhibition  of  the  ac- 
count to  him  he  remained  perfectly  passive,  but  he  must  show  some  word  or 
act  marking  or  implying  his  assent:    White  v.  Campbell,  25  Mich.  463. 

Stated  Account  as  Bar  to  Suit  for  Accouktixo. — It  is  ordinarily  a 
good  bar  to  a  suit  in  equity  for  an  accounting,  that  the  parties  have  alr^idy 
stated  an  account:  1  Story's  E(|.  Jur.,  sec.  523;  2  Id.,  sec.  1524;  Daicson  v. 
DawKoxif  1  Atk.  1 ;  Brown  v.  ran/ZyXr,  55  Am.  Dec.  250;  Bullock  v.  Boyd,  2 
Kdw.  Ch.  20.'^,  Drifjgs  v.  OarreUon,  25  N.  J.  £q.  178;  therefore,  where  a  bill 
is  brought  for  a  general  account,  and  the  defendant  sets  forth  a  stated  one,  the 
l>Iaintiff  must  amend  his  bill:  Dawnon  v.  DawMn,  Brown  v.  Vandyke^  tupra; 
but  the  defendant,  iu  pleading  the  stated  account,  must  by  his  plea  aver, 
althougli  neither  fraud  nor  error  ia  charge<l,  that  the  account  is  just  and  true, 
to  the  best  of  liis  knowledge  and  belief:  Story's  Eq.  PI.,  sec.  802;  Driggs  v. 
OarreUon,  siipra;  and  ho  must  show  that  it  was  in  writing,  and  the  balance  like- 
\vi»e  iu  writing,  or  at  least  set  forth  what  the  balance  was:  Story's  Eq.  PL,  sec. 
79S;  WoolI  v.  GauU,  2  Md.  Ch.  433;  but  he  need  not  show  that  it  was  signed  by 
the  parties.  Charges  of  fraud  or  mistake  made  in  a  bill  in  equity  must,  in  a  plea 
of  account  stated,  l>e  denied  by  proper  averments:  Oreene  v.  Harris,  11  R.  I.  6. 
Am  to  Impeaching  a  stated  account  for  fraud*  mistake,  and  the  lika^  see  fypn^ 


Joij,  1854.]          Shoxkakxr  u  Benkdict.  95 

Shoemakeb  v.  Benedict. 

[11  HxY  Ton  (1  ExMMMM) .  176.] 

Pakt  Fajmzht  upoh  Jom  and  Several  Note,  ICade  bt  Oirs  Maebe, 

does  not  affect  the  other's  right  to  plesd  the  statate  of  Uniitatioos. 

Aptbal  from  a  judgment  of  the  supreme  coorty  in  favor  of  de- 
fendant, who  alone  answered  in  an  action  on  a  joint  and  sereral 
note  against  the  three  makers.  The  defendant  insisted  that 
the  action  as  to  him  was  barred  hj  the  statute  of  limitations,  but 
the  plaintiff,  to  take  the  case  out  of  the  statute,  relied  upon  par- 
tial payments,  made  by  one  of  the  other  makers  before  the  stai* 
ute  had  attached,  and  indorsed  upon  the  note. 

Fraricis  Keman,  for  the  ap]>ellant. 

F.  Oiom,  for  the  respondent. 

By  Court,  Allen,  J.  The  plaintiff  in  this  action  relies  upon 
payments  by  one  of  several  makers  of  a  promissory  note,  made 
before  the  statute  of  limitations  had  barred  an  action  upon  it, 
to  take  the  case  out  of  the  statute  as  to  all  the  makers,  and  con- 
tinue the  joint  liability  of  all  for  six  years  from  the  time  of  the 
last  of  such  payments. 

Before  the  decision  of  Van  Keuren  v.  Parmelee,  2  N.  Y.  523 
[51  Am.  Dec.  322],  it  would  have  been  considered  very  well  set- 
tled upon  authority  that  such  jNiyments  did  operate  to  prevent 
the  statute  of  limitations  from  attaching  to  the  demand;  that 
by  the  joint  contract  there  was  a  unity  of  interest,  by  which  a 
fuosi  agency  was  created  between  the  contractors,  so  that  the 
admission  or  promise  of  one  would  have  bound  all:  Whiicomb 
▼.  Whiiing,  Dougl.  662;  Patterson  v.  Choate,  7  Wend.  441;  Ilam-^ 
mcnv.  Huntley  J  4  Cow.  493;  Johnson  v.  Btsarddey,  15  Johns.  3; 
SooseveU  v.  Mark,  6  Johns.  Ch.  291;  Sigoumey  v.  Drury,  14 
Pick.  887;  Perkins  v.  Ilaynal,  2  Bing.  306;  Burleigh  v.  Stott,  8 
Bam.  &  Cress.  36;  Pease  v.  JIunU,  10  Id.  122;  WyaU  v.  Hudson,  8 
Bing.  309;  lYye  v.  Barker,  4  Pick.  382;  Hunt  v.  Bridgham,  2 
Id.  581  [13  Am.  Dec.  458];  White  v.  Hale,  3  Id.  291  [15  Am. 
Dec.  209];  Channel  v.  DUchbum,  5  Mee.  &  W.  494;  Orijffin  v. 
AMey,  1  Car.  &  P.  139;  Bew  v.  Petet,  1  Ad.  &  El.  196;  Oreen- 
tea/Y,  Quincy,  12  Me.  11  [28  Am.  Dec.  145];  Pikey.  Warren, 
15  Id.  393;  Joslyn  v.  Smith,  13  Vt.  356;  Shelion  v.  Cocke,  Munf. 
311;  Besley  v.  Fuller,  1  McCord,  541;  Simpson  v.  Oeddes,  2  Bay, 

633. 

While  the  decision  of  Van  Keuren  v.  Parmelee,  supra,  does  not 
decide  the  precise  point  presented  by  the  case  before  us,  it  in- 


96  Shoemaker  v.  Benedict,         [New  Totk, 

▼olyed  principles  -which  were  necessarily  decided,  and  which  have 
an  important  bearing,  if  not  a  controlling  influence,  upon  the 
decision  of  this  cause.  The  judge  who  pronounced  the  opinion 
of  the  court  in  that  case  refers  to  the  distinctions  supposed  to 
exist  between  that  case  and  this,  but  did  not  profess  to  lay  much 
stress  upon  them.  He  did  not,  however,  undertake  to  decide 
-whether  there  were  or  were  not  distinctions  between  the  two 
eases  which  would  influence  the  decision,  and  bring  them  within 
different  rules.  His  argument  was  adapted  to  the  settlement  of 
general  principles,  and  the  application  of  those  principles  to 
the  case  then  under  consideration;  and  he  designedly  left  the 
•question  open  as  to  what  other  cases  those  principles  should 
govern,  and  what  facts  and  circumstances  would  operate  to 
phice  a  case  in  other  respects  similar  to  that  decided  without 
the  rule  then  established.  But  the  court  in  that  case,  as  the 
•court  of  last  resort  in  the  state,  reviewed  a  series  of  decisions 
of  the  courts  of  this  state  and  of  others  and  of  England,  and 
established  as  the  law  of  this  state  principles  inconsistent  with 
many  of  the  coses  which  have  been  followed  by  our  courts  as 
law,  and  has  in  some  respects  made  the  law  more  self-consistent. 
They  have  adopted,  to  a  great  extent,  the  views  of  Mr.  Justice 
Story,  as  expressed  in  Bell  v.  Morrison,  1  Pet.  351,  which  the 
«upreme  court  of  this  state,  acting  upon  the  principle  of  siare 
ilecvsui,  had  not  considered  proper  to  do:  Dean  v.  EeioU,  5  Wend. 
257. 

The  cases  cited  above,  in  which  it  has  been  held  that  the  prom- 
ise of  one  joint  debtor  was  sufficient  to  take  the  case  out  of  the 
statute  of  limitations  and  revive  or  continue  the  debt  as  against 
All,  have  followed  the  decision  of  Whitcomb  v.  Whiting,  supra, 
and  have  merely  applied  the  principle  of  that  case  to  cases  sub- 
stantially the  same,  or  supposed  to  be  so,  and  only  diffei-ing  in 
circumstances.  They  have  depended  upon  the  presumed  agency 
of  one  to  do  an  act  to  bind  the  other  debtors  growing  out  of 
the  joinder  in  the  contract  and  unity  of  interest.  The  leading 
case  was  decided  at  a  time  when  the  statute  of  limitations  was 
looked  upon  with  disfavor  by  the  courts,  and  when  any  ac- 
knowledgment, even  the  slightest,  of  the  existence  of  a  debt 
was  sufficient  to  deprive  the  party  of  the  benefit  of  the  statute, 
iilthough  the  acknowledgment  was  made  under  circumstances 
showing  that  the  debtor  did  not  intend  to  recognize  or  admit 
an  existing  intention  or  liability  to  pay:  Freeman  v.  Fenton^ 
Cowp.  548;  Bryan  v.  Horseman,  4  East,  599;  Lawrence  v.  Wbr^ 
-^U,  Peake,  93;  Mucker  v.  Hannay,  4  East,  604,  note;  Clark  r. 


July,  1851.]         Shoskakeb  t;.  Bxnxdicxl  ST 

BradshaU,  8  Esp.  155.  The  oonrtB  were  willing  to  lay  holfi 
of  any  drcnmstance  which  tended  to  show  the  eziatenoe  of  a 
demand,  or  that  a  demand  once  existing  had  not  been  paid,  to 
take  the  case  out  of  the  statute;  and  hence,  perhaps,  they  were 
the  more  ready  to  imply  an  agency  which  would  not  have  been 
implied  for  any  other  purpose  or  under  any  other  circumstances, 
and  bind  one  person  by  the  acts  of  another,  whom  he  never 
designed  to  constitute  his  agent  for  any  purpose,  and  to  hold 
that  a  partial  payment  by  one,  as  it  negatived  to  some  extent 
the  presumption  of  a  prior  payment  of  the  debt,  was  evidence 
against  all  that  the  debt  had  not  been  paid,  and  was  an  existing 
liability.  The  statute  was  treated  as  raising  a  presumption  of 
payment,  and  that  presumption  being  rebutted,  the  statute  was 
treated  as  no  bar.  The  early  cases  in  England  upon  this  sub- 
ject have  not  been  generally  followed  in  this  country,  and  are 
no  longer  considered  as  law  in  that  country;  but  the  statute  of 
limitations  has  been  treated,  not  as  merely  raising  a  presump- 
tion of  payinent,  but  as  a  statute  of  repose.  It  has  been  held 
that  a  circumstance  or  expression  from  which  a  probable  or 
possible  inference  could  be  drawn  of  the  acknowledgment  of  a 
debt  was  not  sufficient  to  overcome  the  defense  under  it:  SancU 
▼.  Oelston,  15  Johns.  511;  WeUeU  v.  Bussard,  11  Wheat  809; 
Bangs  v.  HaU,  2  Pick.  3G8  [13  Am.  Dec.  437].  It  is  now  held 
that  there  must  be  an  express  promise  or  a  clear  recognition  of 
the  present  existence  of  the  demand  from  which  a  promise  may 
be  implied:  Stafford  v.  Richardson,  16  Wend.  302.  There  must 
be  an  admission  that  there  is  a  subsisting  debt  which  the  debtor 
is  willing  to  pay. 

It  needs  no  authority  that  an  admission  to  be  operative  must 
be  made  by  the  party  to  be  affected,  or  by  an  authorized  agent. 
It  is  substantially  a  new  contract  upon  which  the  action  is 
brought  when  it  is  sought  to  be  sustained  by  evidence  of  a  new 
promise,  when  but  for  such  new  promise  it  would  have  been 
barred  by  the  statute  of  limitations:  Oreen  v.  Crane,  2  Ld. 
Baym.  1101;  BeU  v.  Morrison,  supra;  Thompson  v.  Peter,  12 
Wheat.  665;  Dean  v.  Hewii,  supra;  l\)mpkinB  v.  Oardner^  1 
Denio,  247. 

The  only  question  then  is,  whether  the  joint  contract  creates 
an  agency  in  one  of  several  joint  debtors  to  continue  a  debt  or 
renew  a  debt  already  barred  against  all,  and  prevent  the  statute 
of  limitations  from  attaching  by  a  new  promise,  express  or  im- 
plied; or  in  other  words,  whether  such  joint  debtor  is  author- 
ised, in  virtue  of  his  relation  to  the  parties,  to  make  Bueh  new 

Am.  Dml  Vol.  LXn— T 


98  Shoiqiaker  u  Benedict.  [New  York, 

oontraot  which  shall  bind  them  all.  The  cases  in  England,  and 
in  this  state  prior  to  Van  Keuren  y.  Parmelee,  supra,  have  fol- 
lowed the  case  of  WkUcomb  y.  Whiiing,  supra,  and  held  that 
such  agency  did  exist.  But  the  decisions  were  made  without 
adverting  to  the  fact  that  the  decision  of  Whiicomb  y.  Whit'- 
ing,  supra,  while  it  was  perhaps  not  inconsistent  with  the  prin- 
ciples upon  which  the  courts  proceeded  at  the  time  it  was 
pronounced,  as  to  the  construction  to  be  put  upon  and  the 
effect  to  be  given  to  the  statute  of  limitations,  was  incon- 
sistent with  the  more  modem  decisions  under  the  statute  upon 
the  subject,  and  with  the  case  of  Qreen  y.  Crane,  supra,  and 
other  authorities  to  the  same  effect  The  decision  of  the  court  in 
Van  Keuren  y.  Parmelee,  supra,  without  reference  to  the  reason- 
ing of  the  judge  by  whom  the  opinion  was  deliyered,  necessarily 
decides  or  recognizes  as  law:  1.  That  the  action  is  substantially, 
though  not  in  form,  upon  the  new  promise,  and  that  such  prom- 
ise is  not  a  mere  continuation  of  the  original  promise,  but  a 
new  contract  springing  out  of  and  supported  by  the  original 
consideration;  2.  That  to  continue  or  renew  the  debt,  there 
must  be  an  express  promise  to  pay  or  an  acknowledgment  of  the 
existence  of  the  debt,  with  the  admission  or  recognition  of  an 
existing  liability  to  pay  it  from  which  a  new  promise  may  be  in- 
ferred; 3.  That  such  acknowledgment  or  promise,  to  take  a 
debt  out  of  the  statute,  must  be  made  by  the  party  to  be  charged, 
or  by  some  person  authorized  by  him;  and  4.  That  there  is  no 
mutual  agency  between  joint  debtors  by  reason  of  the  joint  con- 
tract, which  will  authorize  one  to  act  for  and  to  bind  the  others 
in  a  manner  to  vaiy  or  extend  their  liability.  These  questions, 
with  the  exception,  perhaps,  of  the  first,  were  directly  inyolyed 
in  the  case  and  necessarily  decided,  and  the  decision  of  the  oourt 
was  unanimous. 

Do  the  points  in  which  this  case  differs  from  that  decided  bj 
the  court  of  appeals  take  it  without  the  principles  decided,  and 
without  the  statute  of  limitations?    I  think  not. 

1.  One  point  of  difference  is,  that  in  this  case  partial  pay- 
ments,  and  not  a  promise  or  naked  acknowledgment  of  the  ex- 
istence of  the  debt,  are  relied  upon  to  take  the  case  out  of  the 
statute.  But  partial  payments  are  only  available  as  facts  from 
which  an  admission  of  the  existence  of  the  entire  debt  and  a 
present  liability  to  pay  may  be  inferred.  As  a  fact  by  itself,  a 
payment  only  proves  the  existence  of  the  debt  to  the  amount 
paid,  but  from  that  fact  courts  and  juries  have  inferred  a  prom- 
ise to  pay  the  residue.    In  some  oases  it  is  said  to  be  an  iin« 


July,  1854.]  SHOEiiAKSB  V.  Benxdicil  99 

eqmTocaladmissioii  of  the  ezistenoe  of  the  debt;  and  in  the  eeae 
of  the  payment  of  money  as  interest,  it  would  be  siieh  an  ad- 
mission in  respect  to  the  principal  sum.  A^ain,  it  is  said  to  be 
a  more  reliable  circumstance  than  a  naked  promise,  and  the  rea- 
son assigfned  is  that  it  is  a  deliberate  act,  less  liable  to  miscon- 
struction and  misstatement  than  a  yerbal  acknowledgment.  So 
be  it  It  is  nevertheless  only  reliable  as  evidenoe  of  a  promise, 
or  from  which  a  promise  may  be  implied.  Any  other  eridence 
which  establishes  such  promise  would  be  equally  efficacious,  and 
most  assuredly  a  deliberate  written  acknowledgment  of  the  ex- 
istence of  a  debt  and  promise  to  pay  is  of  as  high  a  character 
as  eTidenoe  of  a  partial  payment  to  defeat  the  statute  of  limita- 
tions. In  either  case  the  question  is  as  to  the  weight  to  be 
giTen  to  eridence,  and  if  a  new  promise  is  satisfiMstorily  proved 
in  either  method  the  debt  is  renewed;  and  without  a  promise, 
express  or  implied,  it  is  not  renewed.  The  question  still  recurs, 
Who  is  authorized  to  make  such  promise?  If  one  joint  debtor 
could  bind  his  co-debtors  to  a  new  contract  by  implication,  as 
by  a  payment  of  a  part  of  a  debt  for  which  they  were  jointly 
liable,  he  could  do  it  directly  by  an  express  contract.  The  law 
will  hardly  be  charged  wiUi  the  inconsistency  of  authorizing 
that  to  be  done  indirectly  which  can  not  be  done  directly.  If 
one  debtor  could  bind  his  co-debtors  by  an  unconditional  prom- 
ise, he  could  by  a  conditional  promise,  and  a  man  might  find 
himself  a  party  to  a  contract  to  the  condition  of  which  he  would 
be  a  stranger. 

2.  Another  fact  relied  upon  to  distinguish  this  case  from  Van 
Keuren  t.  Parmelee,  supra,  is,  that  the  payments  were  made  before 
the  statute  of  limitations  had  attached  to  the  debt,  and  while  the 
liability  of  all  confessedly  existed.  In  some  cases  in  Massachu- 
setts this,  as  well  as  the  fact  that  the  revival  or  continuance  of 
the  debt  was  effected  by  payments  from  which  a  promise  was 
implied  rather  than  by  express  promises,  were  commented  upon 
by  the  court  as  important  points.  But  I  do  not  understand 
that  the  cases  were  decided  upon  the  ground  that  those  circum- 
stances really  introduced  a  new  element  or  brought  the  cases 
within  a  different  principle.  The  decisions  in  truth  were  based 
upon  the  authority  of  the  decisions  of  the  English  courts,  and 
prior  decisions  in  the  courts  of  that  state.  That  a  promise  made 
while  the  statute  of  limitations  is  running  is  to  be  construed 
and  acted  upon  in  the  same  manner  as  if  made  after  the  statute 
has  attached  is  decided  in  Dean  v.  HeurU  and  TompkiriM  v.  fford- 
netf  mipra.    If  the  promise  is  conditional,  the  condition  must 


100  Shokkakkb  v.  Bknsdict.  [New  York^ 

be  peif omied  bef ora  the  liability  attaches,  eo  as  to  authoriBe  an 
action.  It  does  not,  as  a  lecognition  of  the  existence  of  the 
debt,  reTive  it  abaolntely  from  the  time  of  the  conditional  prom- 
ise. Andy  in  principle,  I  see  not  why  a  promise  made  before 
the  statute  has  attached  to  a  debt  should  be  obligatory  when 
made  by  one  of  several  joint  debtors,  when  it  would  not  be  obli- 
^tory  if  made  after  the  action  was  barred.  The  statute  operates 
upon  the  remedy.  The  debt  always  exists.  An  action  brought 
after  the  lapse  of  six  years  upon  a  simple  contract  must  be  upon 
the  new  promise,  whether  the  promise  was  before  or  after  the 
lapse  of  six  years,  express  or  implied,  absolute  or  conditionaL 
The  same  authority  is  required  to  make  the  promise  before  as 
after  the  six  years  have  elapsed.  Can  it  be  said  that  one  of  sey- 
eral  debtors  can  on  the  last  day  of  the  sixth  year,  by  a  payment 
small  or  large,  or  by  a  new  promise,  either  express  or  implied, 
so  affect  the  rights  of  his  co-debtors  as  to  continue  their  liabil- 
ity for  another  space  of  six  years  without  their  knowledge  or 
assent,  or  any  authority  from  them,  save  that  to  be  implied  from 
the  fact  that  th^  are  at  the  time  jointly  liable  upon  the  same 
contract,  and  yet  that  on  the  yery  next  day,  without  any  act  of 
the  parties,  such  authority  ceases  to  exist  ?  If  so,  I  am  unable 
to  discover  upon  what  principle.  And  may  the  debt  be  thus 
revived  from  six  years  to  six  years  through  all  time,  or  if  not, 
what  limit  is  put  to  the  authority?  If  any  agency  is  created,  it 
oontinues  until  revoked.  The  decision  of  Van  Keuren  v.  Par- 
melee f  supra,  is  upon  the  ground  that  no  agency  ever  existed,  not 
that  an  agency  once  existing  had  been  revoked. 

The  debt  in  this  case  is  joint  and  several.  The  several  liabil- 
ity of  the  party  making  the  payments  is  doubtless  continued  by 
his  own  acts;  but  as  against  the  others,  I  can  not,  without  disre- 
garding Van  Keuren  v.  Farmelee,  supra,  or  drawing  distinctions 
for  which  I  can  find  no  reason,  come  to  any  conclusion  other  than 
that  the  action  is  barred  by  the  statute:  See  also  Leuns  v.  Wood- 
worth,  2  N.  Y.  512  [51  Am.  Dec.  819].  In  this  latter  case  it  was 
held  that  one  of  two  joint  contractors  could  not  be  deprived  of 
a  defense  by  the  admission  of  the  other;  that  one  had  not  power 
to  increase  or  extend  the  liability  of  the  other  beyond  the  terms 
of  the  contract.  To  hold  that  one  joint  debtor  could  by  his  acts 
deprive  his  co-debtors  of  a  defense  under  the  statute  of  limita- 
tions, and  could  renew  and  extend  his  liability  by  a  new  con- 
tract, would  be  directly  inconsistent  with  the  principles  dedded 
in  this  case. 


Jiily,  1854]  Shoxmaiocb  v.  BniKDicr.  101 

Oabuhsb,  G.  J. ,  and  Seldbi,  Pabeke,  Edwasds,  ud  Axxn, 
J7.,  for  the  xeasonsgiTen  in  the  foregoing  opinion,  irave  in  fttfor 
of  affirming  the  jndgment  of  the  supreme  oonrL 

Judgment  affirmed. 

Dmo  and  Johxsok,  JJ.,  diaaented. 

Pbomisb  OB  AcKvowLUMnoBTy  TO  Taks  Dibt  ovt  ot  Scatozb  ov 
LooTATioirs,  Kscnsmr  akd  EaaniTUUi  or:  86e  PrUekard  t.  EomeO^  00 
Am.  Dec  363,  and  iio;e  referring  to  prior  cases  in  thia  aeriea;  also  Ccletmtm 
▼.  /b6et.  Id.  75;  Brmnard  y.  Budt,  Id.  291.  The  prineipal  oaae  fa  dted  with 
Tos  Kemm  t.  ParmOee,  2  K.  T.  523,  S.  C,  51  Am.  Dea  822»  in  Wmekdk 
T.Hkka,  18  K.  Y.  559,  as  eetabliriiing  that  to  leriYe  or  renew  the  deU  there 
imiit  be  either  an  express  promise  to  pay  or  an  aeknowledgment  of  its  sodst- 
eaoe  from  wliieh  a  promise  may  be  implied;  and  an  acknowledgment*  to  be 
mfficient,  must  not  only  be  an  adnuasion  of  the  existence  of  the  debl^  bat  ia 
additian  thereto  a  recognition  of  a  liability  to  pay,  in  snch  a  mode  aa  wiU 
aathorize  the  inference  of  a  new  promise:  Commerdal  JIuL  In9,  Co,  r,  BrrU^ 
44  Id.  492,  493,  quoting  the  principal  case.  See  the  principal  ease  dted  i» 
Pasj^  ▼.  Siate,  99  Barb.  638,  as  furnishing  a  synopsU  of  what  waa  deoidsd 
scd  recognized  as  law  in  the  leading  case  of  Van  Keurtn  t.  Pairmdu^  Mpra» 

Pabtial  PATnNTS  Asx  OKLT  EviDavcE  ov  PBOMm^  Of  from  which  • 
promise  may  be  implied,  "so  ^  to  present  the  operation  of  the  statnte  of 
limitations:  Kewlm  v.  DurreLfi^  ^25  Ada.,  T>ee'  G6;  IJiglge  v.  Ifon^,  .60  Id. 
2S3u  The  prindpal  case  is  citea  to  tiiis  point,  cr  ^  ectiU>lihhing  this  {voppai* 
tioQ,  in  WmeheU  t.  Hieka,  18  K.  Y.  560;  PicheU  il  Leonard^  ^  id.  iV6t 
McLaren  r.  McMcariin^  36  Id.  90;  8.  C,  3  Abb.  Pr.,  N.  S.,  348;  Pofne  t. 
&aU,  39  Barb.  636,  637;  Bwot  t.  Qano^  9  Hon,  8;  Kdly^.  Wtber^  27,  Id.  11} 
snd  see  the  rale  as  stated  in  CUvdeaid  r,  HarrUion^  15  Wia.  677;  and  they 
most  be  made  under  circumstances  to  warrant  a  finding,  as  a  qoestion  of  &Mt» 
that  the  debtor  intended  to  recognize  as  subsisting  the  debt  in  question,  and 
which  he  was  willing  to  pay:  PieheU  r.  King,  34  BarK  195;  MUier  t.  ToI- 
ooO,  46  Id.  172.  If  a  case  lacks  the  element  of  payment  from  which  an 
intention  to  renew  the  original  debt  may  be  implied,  the  demand  is  not  taken 
oat  of  the  statute:  Unt  Nat,  Bank  t.  SmUht  26  Hun,  224;  so  a  payment  by 
an  administratrix  has  no  bearing  against  the  estate,  if  not  made  from  its 
sssets,  and  the  administratrix  waa  z*ot  acting  in  her  repreaentative  capadty 
hi  making  or  ordering  payment:  Heath  ▼.  Orendly  61  Barb.  204.  It  fa  only 
by  reason  of  their  effect  as  a  recognition  of  the  existence  and  validity  of  the 
debt  that  partfal  pajrments  are  available  to  take  a  esse  out  of  the  operation  of 
the  statute:  Fim  NaL  Bank  ▼.  BaOou^  49  K.  Y.  158;  LiUl^/idd  t.  LUtUJUld, 
91  Id.  206. 

PbOXISK,  AOKirOWUD)OMKNT,  OK  PATMXITT  BT  JoDTT  DkBTOB,  PaBTNIB, 

nc,  A3  Takivo  Cask  dot  or  Statutx  or  Liirtations. — ^A  promise  or 
acknowledgment  to  take  a  demand  out  of  the  statnte  of  limitations  must  bs 
made  by  the  party  to  be  charged,  or  by  hfa  authorized  agent:  WtnekeU  v 
HickB,  18  K.  Y.  559;  Pkheti  t.  Leonard,  34  Id.  176;  Pkkea  ▼.  King,  34 
Bsrb.  197,  all  dting  the  principal  case  as  establishing  thfa  propontion;  and 
ss  between  joint  debtors  or  contractors,  partners  after  dissolution^  prin- 
dpal and  surety,  and  the  like,  no  agency  exists  by  which  a  promise,  payment, 
or  other  acknowledgment  made  by  one  will  bind  the  other:   WincheU  t. 
//icfa,  18  N.  Y.  659-661;  PickeUr.  Leonard,  34  Ijl.  176;  Payne  v.  Oard- 
mer,  29  Id.  178,  179»  per  Wright,  J.,  dissenting;  Smith  v.  Byan,  66  Id.  366|> 


102  Shoemaker  v.  Benedict.         [New  York,. 

Bcarger  ▼.  Durvin,  22  Barb.  69;  New  Tarh  Life  Ins.  <fr  T.  Co.  t.  Covert^  29 
Id.  441;  Whii^B  Bank  qfB^fdlo  ▼.  Ward,  85  Id.  640;  Payne  t.  8taU,  39  Id. 
636;  Smith  r,  Ryan^  7  Jones  k  S.  607,  per  Freedman,  J.,  diasenting;  each 
stands  npon  his  own  bottom:  MernU  v.  Scott^  3  Hon,  659;  S.  C,  6  Thomp.  ft 
C.  162,  all  citing  the  principal  case  to  this  point,  or  as  adjudicating  it.  In 
WiwheU  v.  Bowman^  21  Barb.  448,  452,  this  niling  of  the  principal  case  was 
recognized  with  unwillingness,  and  held  that  itought  not  to  be  extended  beyond 
what  was  necessarily  decided  therein,  nor  applied  to  an  instance  where  there 
had  been  a  direct  recognition  of  the  agency  of  the  joint  contractor  making 
the  payment  by  his  associates.  And  although  one  copartner  or  joint  debtor 
may  not  always  bind  his  co-contractor  by  an  acknowledgment  of  the  con- 
tinuance of  or  promise  to  pay  the  debt,  yet  he  will,  though  the  co-contractor 
is  not  held  thereby,  be  held  himself:  National  Bank  ▼.  Phdpe^  86  N.  T.  492. 
The  principal  case  is  also  cited  in  WdUia  t.  Bandall,  81  Id.  170,  on  the  gen- 
eral proposition  that  the  mere  fact  that  a  person  is  a  joint  debtor  never  gives 
him  the  authority  to  bind  any  other  person  jointly  liable  with  him  by  his 
statements  or  admissions;  and  in  7%o>mpson  v.  RichardBy  14  Mich.  189,  it  is 
referred  to  on  the  point  that  the  power  of  one  joint  contractor  to  bind 
another  by  admissions  tending  to  create  a  liability  is  unreasonable  and 
dangerous.  See  further,  on  the  negative  of  the  proposition  that  one  joint 
debtor  or  contractor  may  bind  the  others  by  a  promise  or  acknowledg- 
ment, note  to  Be^  v.  FuUer,  10  Am.  Dec.  695;  Po^oerB  v.  Sauthgale^  40  Id. 
691 ;  note  to  Vam  Keuren  v.  Parmelee^  51  Id.  S^lj  Coleman  v.  FobeB,  60  Id. 
75;  and  on  the  affirmatiy^:  Beii»\,\F3JiUev\  lO^d^.^3,  and  note;  Bound  v.  Lc^ 
thropyld,  147;  WhUi  v*  !^ale,'\b  id.  "5&f;  GoU  V.Traq/,  20  Id.  110;  Austinr, 
'BoBCi^l''^  "25 1(1.  42;  CbxW  BaUey* ti  Id.  358.  As  regards  the  negative  in  case 
of  piOrthers  after  dissolution  of  the  firm:  Note  to  Chardon  v.  OHphant,  6  Id.  575; 
Levy  V.  Cadet,  17  Id.  650,  and  note;  Wilson  v.  TorbeH,  21  Id.  632;  WWis  v. 
im,  31  Id.  412;  Muse  v.  Donelson,  36  Id.  309;  micoU  v.  NichoU,  48  Id.  646, 
and  note;  Van  Keuren  v.  Parmdee,  51  Id.  322,  and  note;  and  the  affirnuitive: 
Mcltitirt  V.  Oltoer,  11  Id.  760,  and  note;  Note  to  GTiardonY.  Oliphant,  6ld.  575; 
AuBtinr.  Boetwick,  25  Id.  42;  Oreenlec^Y,  Quiney,  28 Id.  145;  HouBery.  Irvine^ 
88  Id.  768  (payment);  Wheelock  v.  DooUtUe,  46  Id.  163.  And  as  regards  a 
surety  being  bound  by  a  partial  pajrment,  or  acknowledgment  made  by  the 
principal,  see  Hunt  v.  Bridgham,  13  Id.  458;  Lowther  t.  Chappell^  42  Id.  643. 

It  is  Immaterial  whether  Promise,  Acknowledomsnt,  or  Patment 
IS  Made  before  or  after  Statute  of  Limitations  has  Attached:  Win- 
chell  V.  Hicke,  18  N.  Y.  560;  PickeU  v.  Leonard,  34  Id.  176;  Harper  v.  Fair- 
ley,  53  Id.  445;  McNamee  v.  Tenny,  41  Barb.  508,  per  Sutherland,  J.,  dis- 
senting; Oraham  v.  Selover,  59  Id.  316;  and  see  White*B  Bank  qf  Buffalo  ▼. 
Warty  35  Id.  640;  Payne  v.  State,  39  Id.  636;  and  the  same  auUiority  is  re- 
quired to  make  the  promise  before  as  after:  Commercial  Mut,  Ine.  Co,  v. 
Brett,  44  Id.  493;  all  citing  the  principal  case. 

AcnoN  must  be  Sustained  ufon  New  Promise,  where  that  is  relied  upon 
to  take  a  case  out  of  the  statute  of  limitations,  although  the  original  con- 
tract is  the  cause  of  action,  and  the  complaint  counts  upon  that  as  the  ground 
of  recovery:  WincheU  v.  Hicke,  18  N.  Y.  559,  citing  the  principal  case  as  es- 
tablishing this  proposition;  see  also  ColeB  v.  Kdftey,  ^7  Am.  Dec  661,  and 
prior  cases  in  note;  Alturtin  v.  i^roocA,  50  Id.  306;  Van  Keuren  v.  Parmelee^ 
51  Id.  322.  In  PhUipB  v.  Peters,  21  Barb.  358,  it  was  said  that  the  doctrine, 
uniformly  adjudged  and  conceded  by  a  long  line  of  cases  in  New  York,  thai 
the  old  demand  and  not  the  new  promise  was  the  foundation  of  the  action 
was  only  recently  questioned  in  the  dicta  in  Van  Keuren  v.  Parmdee^  BM/pra, 
and  in  the  principal  case. 


Oct  1854]  MoBSE  V.  Gooldl  108 

MOBSE  Y.   GOOLD. 

[11  HXW  TOBK  (1  EZBUX),S81.) 

Statutes  Eklaboino  Exxmftiovs  or  Pbopkbtt  fbox  EimuTioy  amm 
NOT  Unoonstitutional  ft8  impairiiig  the  obligation  of  oootnMti»  evm  if 
applied  to  debta  contracted  before  their  paasage.  Thej  afffiot  th«  rem* 
edy  only. 

Justice  of  Peace  may  RKsncw  Execution  vbom  Tixe  to  Tiiie»  under  the 
New  York  revised  statotee,  so  as  to  keep  it  alive  more  than  two  yoan^ 
though  he  can  not  iwae  one  anew  after  two  years  have  expired. 

Appeal  from  a  judgment  of  the  supreme  court  iu  favor  of 
execution  creditors  sued  in  trover  for  seizing  a  span  of  horses 
of  plaintiff  on  an  execution  on  a  judgment  on  a  promissory 
note  against  him  before  a  justice  of  the  peace.  The  contro- 
versy on  the  trial  turned  chiefly  on  the  validity  of  the  execution, 
which  was  originally  issued  within  the  two  years  prescribed  by 
statute,  and  having  been  returned  unsatisfied,  was  thereafter 
twice  renewed  by  indorsement,  the  sale  complained  of  having 
been  made  under  it  as  last  renewed,  and  two  years  having 
elapsed  from  the  time  of  rendering  the  judgment  at  the  date  of 
the  last  renewal.  The  horses  seized  did  not  exceed  in  value  one 
hundred  and  fifty  dollars,  and  were  necessary  for  the  cultiva- 
tion of  a  farm  which  the  plaintiff  worked.  The  promissoiy  note 
was  executed  in  1841. 

Nicholas  EHX^jun.y  for  the  appellant. 

Henry  B.  Selden^  for  the  respondent. 

By  Court,  Denio,  J.  Upon  the  question  whether  the  execu- 
tion in  this  case  was  legally  renewed,  two  years  having  elapsed 
from  the  time  of  rendering  the  judgment  at  the  date  of  the  last 
renewal,  I  am  of  opinion  with  the  defendants.  The  title  of  the 
revised  statutes  relating  to  courts  held  by  justices  of  the  peace 
vests  in  such  courts  all  the  necessaiy  powers  which  are  possessed 
by  courts  of  record:  2  B.  S.  225,  sec.  1.  This  includes  the 
pinver  to  issue  executions  or  judgments  rendered  in  those  courts. 
Sectious  144-147  of  the  same  titie  contain  the  special  provis- 
ious  deemed  essential,  relating  to  the  issuing  of  executions, 
their  renewal,  and  the  issuing  of  further  executions,  and  the 
language  is  such  as  to  show  that  each  of  these  acts  is  considered 
as  distinct  and  different  from  each  of  the  others.  An  execution 
may  be  issued  at  any  time  within  two  years  from  the  time  of 
rendering  the  judgment:  Sec.  146.  If  an  execution  be  not 
satisfied,  it  may  be  from  time  to  time  renewed  by  an  indorse- 
ment:  Sec.  146.    If  an  execution  be  returned  unsatisfied,  in 


104  MoBSS  a  QooLix  [Nefvr  Ywk, 

whole  or  in  part,  a  farther  ezecation  may  be  iasaed:  See.  147. 
Although  this  is  not  the  order  in  which  the  sections  stand  in 
the  statute,  it  is,  I  think,  the  order  in  which  the  sense  requires 
Uiem  to  be  read.  There  is  a  phiin  distinction  made  between 
the  issuing  an  execution,  and  the  renewal  of  one,  and  it  is  the 
former  only  that  the  limitation  of  time  is  ajyplied  to.  There  is 
no  limitation  in  terms  as  to  the  time  of  renewaL  It  is  to  be 
done  from  time  to  time,  as  the  necessity  of  the  case  may  require. 
I  haye  no  doubt  but  that  the  legislature  had  in  Tiew  the  prac- 
tice in  courts  of  record,  which  prohibited  the  issuing  of  an 
execution  after  a  year  and  a  day  from  the  entering  of  the  judg- 
ment, but  allowed  the  issuing  of  an  alias  or  other  execution  at 
any  time  after  one  had  been  issued  in  time  and  returned  un- 
satisfied. The  practice  grew  out  of  the  presumption  which  was 
indulged,  that  the  judgment  might  haye  been  paid  or  released 
when  it  was  seen  that  the  creditor  had  neglected  to  sue  out  final 
process  for  such  a  length  of  time.  That  presumption  was  dono 
away  when  an  execution  was  once  promptly  issued;  and  after 
that,  delay  would  not  prejudice,  as  the  failure  to  make  the 
money  on  the  first  execution  would  account  for  it.  I  do  not  see 
but  that  this  kind  of  reasoning  is  as  applicable  to  justices'  judg- 
ments as  to  judgments  of  a  court  of  record.  At  any  rate,  I 
think  the  legislature  has  applied  it  to  both  cases.  The  language 
of  the  reTised  statutes,  limiting  the  time  for  the  issuing  of  execu- 
tions in  courts  of  record  to  two  years  from  the  entry  of  the  judg- 
ment, is  similar  to  that  used  in  regard  to  justices'  judgments; 
and  the  identity  of  the  period  within  which  it  may  be  done  in 
the  two  cases  furnishes  an  argument  of  some  weight  that  the 
object  and  motive  was  the  same  in  both:  2  B.  S«  863,  sec.  1. 

We  have  been  referred  to  an  act  passed  in  the  year  1840, 
Laws  1840,  c.  847,  as  giving  a  construction  to  the  provisions 
in  question.  By  this  act  a  justice  whose  office  has  expired 
is  allowed  six  months  within  which  to  issue  and  renew  execu- 
tions, whether  he  is  re-elected  or  not;  but  if  he  is  re-elected,  he 
may  issue  executions  within  the  time  allowed  by  the  revised 
statutes.  An  act  passed  in  1846,  chapter  276,  allows  a  justice 
whose  office  has  expired  two  years  after  the  rendering  of  any 
judgment  before  him  to  issue  and  renew  executions  on  such 
judgment.  I  do  not  see  that  these  statutes  assume  the  con- 
struction for  which  the  plaintiff  contends.  On  the  contrary,  the 
first  act  appears  to  make  a  distinction  between  the  act  of  issu- 
ing and  the  renewing  of  an  execution,  which  so  far  favors  the 
construction  contended  for  by  the  defendants;  and  as  to  the- 


Oet  1864.]  IfoBSl  V.  GOOLD.  lOS 

krt  one,  it  is  suffioieDt  to  bbj  that  the  legiaktufe  might  be  wiD- 
ing  to  allow  a  penon  who  had  been  a  jnatioey  bat  who  was  out 
of  office,  the  light  to  iasoe  an  ezecotion  when  thej  woold  not 
intrnst  to  him  the  duty  of  renewing  it  from  time  to  time.  The 
code  of  procedniB  does  not  pzoride  in  terms  for  a  renewal  of  an 
eieeatioiiy  bat  limita  the  time  for  iaeoing  one  to  fire  years  from 
the  entry  of  the  jadgmenk  I  do  not  see  that  this  has  any  bear* 
iog  upon  the  qnestion  under  consideration.  Under  it  the  issa- 
ing  and  renewal  of  an  execation  probably  onght  to  be  consid- 
ered as  the  same  things  and  it  woold  be  held  that  neither  ooold 
be  done  attet  fire  years.  If  this  were  the  only  point  in  the  case* 
I  Bhonld  be  ia  faror  of  sastaining  the  judgment  of  the  sapreme 
eoort. 

The  oondosion  which  I  haye  thus  arriyed  at  makes  it  neces- 
niy  to  examine  the  other  qnestion  in  the  case.  If  the  prop- 
Mty,  for  conrerting  which  the  suit  was  brooght,  was  legally 
eiempt  from  execation,  the  plaintifT  was  entitled  to  recoyer, 
thoQgh  it  shonld  be  admitted  that  the  execation  was  regalar 
and  operatiye  at  the  time  of  the  seizure.  The  qnestion  as  to  the 
eonstitational  yalidity  of  the  exemption  act  of  1842,  which  was 
before  the  late  supreme  court  in  Quackenbush  y.  Danks,  1 
Denio,  128,  and  which  came  before  this  court  in  the  same  case 
upon  appeal,.  1  N.  Y.  129,  is  consequently  again  presented; 
and  it  is  eminently  proper  that  so  important  a  question  should 
be  finally  determined.  Although  the  judgment  of  the  supreme 
eonrt  denying  any  effect  to  the  act  in  respect  to  contracts  made 
pieyious  to  its  passage  was  affirmed  by  this  court,  yet  as  the 
judges  were  equally  diyided  in  opinion,  the  determination  can 
not  be  considered  as  a  precedent,  but  the  question  must  be  re- 
garded as  entirely  open:  Bridge  y.  Johnson^  5  Wend.  342;  HUing 
y.  Bank  of  U.  8.,  11  Wheat  69,  78;  People  y.  Mayor  etc.  of  N. 
F.,  25  Wend.  252  [35  Am.  Dec.  669]. 

The  language  of  the  act  does  not  except  executions  for  debts 
alieady  contracted.  It  is  general,  and  in  terms  applies  to  all 
fatore  levies  and  sales  on  execution,  without  regard  to  the  time 
when  the  debt  was  contracted  or  the  judgment  obtained;  and 
we  do  not  think  the  case  is  within  the  principle  of  Dask  y.  Van 
Kkeek,  7  Johns.  477  [5  Am.  Dec.  291],  and  the  other  cases  of 
tiiat  class  in  which  it  has  been  determined  that  general  lan- 
guage in  an  act  of  the  legislature  will  not  be  held  retrospectiye, 
flo  as  to  take  away  a  yested  right.  The  question  depends  essen- 
tially upon  the  same  considerations  which  are  applicable  to  the 
point  which  we  are  about  to  consider,  as  to  the  constitutionality 


106  MoBSB  V.  QooLD.  [New  York, 

of  tbe  act;  for  if  fhe  creditor  in  this  case,  upon  receiTing  tlie 
promissory  note  of  his  debtor,  acquired  a  Tested  right,  as  an 
incident  to  that  contract,  to  have  his  execution  ultimately  levied 
upon  all  the  debtor's  property  not  exempt  by  the  laws  in  exist- 
ence when  the  contract  was  made,  the  act  providing  for  additional 
exemptions  is  clearly  unconstitutional;  and  it  will  be  unneoea- 
sary  to  resort  to  the  somewhat  forced  construction  by  which 
courts  have  sometimes,  in  order  to  preyent  injustice,  annexed 
an  implied  exception  to  the  general  language  of  an  act  of  the 
legislature. 

The  contracting  of  a  debt  does  not  in  any  l^gEd  sense  create  a 
lien  upon  the  debtor's  property.  He  is  as  much  at  liberty  to 
deal  with  and  to  transfer  it  bona  fide  as  though  he  were  en- 
tirely free  from  debt.  The  right  which  a  creditor,  by  becoming 
such,  acquires  is  to  haye  the  use  and  benefit  of  the  laws  for  the 
collection  of  debts  which  may  bo  in  force  when  he  shall  haye 
occasion  to  resort  to  them  to  enforce  his  demand  against  the 
debtor.  The  constitution  of  the  United  States  prohibits  the 
several  states  from  passing  a  hiw  "  impairing  the  obligation  of 
contracts,"  and  the  precise  question  in  this  case  is  whether  the 
act  of  1842,  which  exempts  from  levy  and  sale  on  execution  (in 
addition  to  former  exempt  property)  ''necessary  household  fur- 
niture and  working  tools  and  team  owned  by  any  person  being 
a  householder  or  having  a  family  for  which  he  provides,  to  the 
value  of  not  exceeding  one  hundred  and  fifty  dollars,"  impairs 
the  obligation  of  the  contract  antecedently  made,  by  which  the 
plaintiff  for  a  valid  consideration  agreed  to  pay  the  defendants 
a  sum  of  money.  The  most  obvious  method  by  which  a  con- 
tract may  be  impaired  by  legislation  would  be  tiie  alteration  of 
some  of  its  terms  or  provisions,  so  that,  assuming  the  validity 
of  the  law,  the  parties  would  be  relieved  from  something  which 
they  had  contracted  to  do,  or  would  be  obliged  to  do  something 
which  the  contract  did  not  originally  require.  This  is  not  the 
case  with  this  law,  as  applied  to  the  contract  in  question.  The 
right  of  the  defendants  to  the  money  agreed  to  be  paid,  and  the 
obligation  of  the  plaintiff  to  pay  it,  remains  as  when  the  con- 
tract was  made.  But  it  is  admitted  that  a  contract  may  be  vir- 
tually  impaired  by  a  law  which,  without  acting  directiy  upon 
its  terms,  destroys  the  remedy,  or  so  embarrasses  it  that  the 
rights  of  the  creditor,  under  the  legal  remedies  existing  when 
the  contract  was  made,  are  substantially  defeated.  With  this 
necessary  qualification,  the  jurisdiction  of  the  states  over  the 
legal  proceedings  of  their  courts  is  supreme.   It  may  frequently 


Oct  1854.]  MoBSS  V.  GooLO.  107  - 

be  Jifficolt  to  diaw  the  line  as  to  acts  professedly  aflbotiiig 
the  remedy  only  between  those  which  are  within  the  legitimate 
proTinoe  of  the  state  legislature,  and  such  as,  orerstepping 
those  bonds,  substantially  impair  the  obligation  of  antecedent 
contracts;   and  it  is  perhaps   impracticable  to  lay  down  in 
language  a  rule  by  which  all  such  questions  may  be  tried 
and  determined.    Chancellor  Kent,  when  a  justice  of  the  su- 
preme court,  furnished  a  definition  of  the  principle  as  pieoiae, 
perhaps,  as  the  subject  is  capable  of.    After  stating  that  the 
constitution  could  not  have  an  eye  to  the  details  of  legal 
remedies,  he  declared  that  the  provisions  in  question  were  not 
violated  "  so  long  as  contracts  were  submitted,  without  l^gis> 
latiTe  interference,  to  the  ordinary  and  regular  course  of  jus- 
tice, and  the  existing  remedies  were  preserved  in  substance 
and  with  integrity : "  Holmes  v.  Lansing,  3  Johns.  Gas.  75.    Every 
alteration  in  the  course  of  legal  proceedings  affects,  to  a  greater 
or  less  extent,  the  efficacy  of  the  machinery  for  the  collection  of 
debts.    The  creditor's  actions  for  an  existing  debt  may  be  ren- 
dered more  or  less  speedy,  stringent,  and  effective,  without  rais- 
ing any  question  under  this  provision  of  the  constitution.     The 
very  thorough  and  radical  change  lately  made  in  our  praotioc 
by  the  code  of  procedure  was  applied  to  existing  causes  of  ac- 
tion where  suits  were  not  already  commenced;  yet  it  was  never 
regarded  as  touching  the  obligation  of  prior  contracts.   In  con- 
formity with  this  principle,  it  has  been  repeatedly  held  that  the 
right  of  imprisonment  for  debt  is  no  part  of  the  contract,  but 
only  parcel  of  the  remedy,  and  that  it  may  rightfully  be  abol- 
ished as  to  existing  as  well  as  future  contracts,  absolutely  or 
conditionally,  by  means  of  insolvent  laws:  Sturges  v.  Crowning 
skidd,  i  Wheat.  122,  200,  201;  Hastm  v.   Eaile,  12  Id.  870; 
Beers  v.  HaughUm,  9  Pet.  828,  369;  Cook  v.  Moffat,  5  How.  816; 
2  Kent's  Com.  397;  3  Story's  Com.,  sec.  1392,  p.  268.    Nor  is 
the  law  of  limitations  considered  as  a  part  of  the  contract;  and 
hence  the  legislature  may,  consistentiy  with  the  constitutional 
provision,  enact  a  statute  limiting  the  time  within  which  actions 
may  be  brought  to  enforce  demands  where  there  was  before  no 
period  of  limitation,  or  may  shorten  the  existing  time  of  lim- 
itation, and  such  a  law  may  operate  upon  existing  contracts: 
Slurges  v.  Crowningshidd,  supra;  Hawkins  v.  Bametfs  Lessee,  6 
Pet.  467;  3  Story's  Com.,  sec.  1379,  p.  261;  SmUh  v.  Morriscm, 
22  Pick.  430;  CaU  v.  Hagger,  8  Mass.  423.    By  the  revised 
Btatutes  of  this  state,  a  landlord  whose  tenant's  chattels  were 
taken  in  execution  was  entitied  to  be  paid  his  rent  upon  Ttt»^lri^f; 


108  MoBSB  u  OoQLD.  [New  York. 

a  oerbdn  afid«fik  and  ghing  a  oerbdn  notioe  to  {ha  sheriflL  Id 
18A6  flie  kgialatuxe  abolished  Oub  light,  together  with  the  right 
to  distrun  for  rent  in  arvaar;  and  the  late  sapveme  court  held 
the  enactment  constitational  in  its  application  to  leases  in  exist- 
ence when  the  act  was  passed:  Stocking  t.  Huni^  8  Denio,  274. 
Li  Hassaehnsetts  it  is  known  that  it  has  long  been  the  right 
of  a  creditor  to  proceed  against  his  debtor  by  a  preliminary  at- 
tachmenty  under  which  the  properiy  of  the  latter  was  seized  and 
held  to  await  the  obtaining  of  judgment,  when  it  was  subjected 
to  sale  for  the  payment  of  the  debt.  In  1838  an  insolrent  law 
was  passed,  containing  a  proyision  giving  to  the  assignees  the 
title  to  all  the  insolyenfs  properly,  including  any  which  might 
haye  been  attached  on  mesneprocess.  This  was  held  to  apply  to 
a  debt  contracted  before  the  passing  of  the  act,  and  to  be  a  con- 
stitutional enactment.  It  diyested  the  creditor,  under  certain 
circumstances,  of  his  remedy  by  attachment,  which  existed  in 
full  force  when  the  contract  was  made:  Bigdow  y.  Priichard, 
21  Pick.  169.  In  Walier  t.  Bacon,  8  Mass.  468,  it  was  decided 
that  an  act  of  the  legislature  confirming  an  unauthorized  and 
illegal  enlargement  of  the  limits  of  a  prison-yard,  which  had 
been  ordered  by  the  sessions,  was  a  good  defense  to  an  action 
on  a  prison  bond  which  had  been  executed  before  the  statute 
was  passed.  These  authorities  are  exemplifications  of  the  prin- 
ciple that  legal  remedies  are  in  the  fullest  sense  under  rightfal 
control  of  the  legislatures  of  the  several  states,  notwithstanding 
the  provision  in  the  federal  constitution  securing  the  inviola- 
bility of  contracts;  and  that  it  is  not  a  valid  objection  to  legis- 
lation on  that  subject  that  the  substituted  romedy  is  less  bene- 
ficial to  the  creditors  than  the  one  which  obtained  at  the  time 
the  debt  was  contracted.  That  this  principle  is  a  sound  one  I 
can  not  entertain  the  slightest  doubt.  Such  legislation  must  of 
necessity  belong  to  the  states,  for  it  is  certain  that  it  is  not  em- 
braced within  any  of  the  grants  of  power  to  the  general  govern- 
ment, and  in  the  naturo  of  things  can  only  be  exeroised  by  the 
state  sovereignties.  The  change  effected  by  the  act  of  1842  is 
far  less  important,  in  its  operation  upon  existing  contracts,  than 
several  of  those  which  have  thus  been  held  unobjectionable.  The 
right,  for  instajice,  to  coerce  a  debtor  by  imprisoning  his  person 
would  be  much  more  efficacious,  in  a  large  class  of  cases» 
than  the  power  to  levy  on  a  team  and  a  small  amount  of  furni- 
ture which  he  might  or  might  not  possess.  Thero  is  no  univer- 
sal principal  of  law  that  eveiy  part  of  the  property  of  a  debtof 
is  liable  to  be  seized  for  the  payment  of  a  judgment  against  hin^ 


Oet  1854.}  MoBSB  v.  Ooold.  109 

The  propriety  of  eoceinpiiiig  oerbdn  artidas  of  oimII  tmhw,  bal 
which  were  considered  important  to  the  comfort  of  the  familj 
of  the  debtor,  waa  ingrafted  upon  the  hiwof  the  state  bef ova  the 
revision  of  1813,  and  the  list  of  exempt  articles  has  been  from 
time  to  time  increased  down  to  the  passage  of  the  act  of  1842; 
bat  the  great  mass  of  indrridnal  properly  has  always  been,  and 
still  is,  left  liable  to  the  claims  of  creditors.  According  to  the 
opinion  of  the  sapreme  court,  each  of  these  acts  ooght  to  ha^ 
been  limited  to  futore  contracts,  and  until  the  prior  cases  had 
been  disposed  of,  there  must  have  been  two  kinds  of  executions, 
one  embracing,  and  the  other  excepting,  the  exempt  property; 
for  however  trifling  and  unimportant  it  might  be,  the  prorision 
releasing  it  from  the  execution  is  considered,  to  that  extent,  a  rio- 
lAiion  of  all  prior  contracts  of  the  debtor.  This  position,  it  seems 
to  me,  proceeds  yery  much  on  the  idea  that  the  creditor  has  a 
specific  lien,  coeval  with  the  contract,  upon  all  the  chattels  of 
ihe  debtor,  which,  as  already  remarked,  is  quite  erroneous. 
When  it  is  remembered  that  his  right,  so  far  as  it  is  protected 
by  the  constitution  of  the  United  States,  is  limited  to  the  benefit 
of  the  general  laws  of  the  state  provided  for  the  collection  of 
debts,  and  to  the  continuance  of  such  laws,  in  substance  and 
with  good  faith,  it  seems  clear  that  any  change  which  the  policy 
or  hiimaniiy  of  the  legislature  may  make,  which  shall  leave  a 
ambetantial  remedy,  does  not  touch  the  obligation  of  prior  con* 
tracts,  within  the  meaning  of  the  constitution.  The  regulation 
prescribed  by  the  act  of  1842  is  a  general  one.  It  professes  to 
^ve  the  rule  according  to  which,  during  all  future  time,  the 
rights  of  creditors  are  to  be  enforced;  and  it  is  not  made  to  enn 
brace  past  transactions  because  there  existed  any  motive  for  re* 
lieving  existing  debtors,  but  in  order  that  the  course  of  legal 
procedure  should  be  uniform.  ICen  will  judge  differently  as  to 
the  policy  of  these  exemption  acts,  but  their  conformity  with  the 
eonstitution  can  not  depend  upon  the  ideas  which  courts  may 
entertain  as  to  their  wisdom  and  political  expediency.  The 
question  is,  whether  the  law  which  prevailed  when  the  contract 
was  made  has  been  so  tax  changed  that  there  does  not  remain 
«  substantial  and  reasonable  mode  of  enforcing  it  in  the  ordi« 
nazy  andr^golar  course  of  justice.  Taking  the  mass  of  contracts 
and  the  situation  and  circumstances  of  debtors  as  they  are  ordi- 
narily found  to  exist,  no  one  would  probably  say  that  exempt- 
ing the  team  and  household  furniture  of  a  householder,  to  the 
amount  of  one  hundred  and  fifty  dollars,  from  levy  on  execution, 
would  sensibly  affect  the  eflknenqr  of  remedies  for  the  ooUeotioa 


110  MoBSE  V.  GooLD.  [New  York, 

of  debts,  though  a  case  might  possibly  happen  where  the  exempt 
property  would  constitute  all  that  the  debtor  possessed.  When 
the  remedy  of  imprisonment  was  taken  away,  its  effect  upon  ex- 
isting engagements  was  tenfold  more  important;  yet  this  was 
held  not  to  be  objectionable  because  of  the  right  which  the  state 
legislatures  must  always  possess  to  modify  and  regulate  the 
methods  of  legal  procedure.  I  regaxA  the  act  of  1842  as  a  pro- 
yision  clearly  within  the  competency  of  the  legislature,  and  one 
which  they  might  lawfully  apply  to  all  future  proceedings  in 
courts,  whether  such  proceedings  should  relate  to  existing  or 
future  causes  of  action. 

A  good  deal  of  reliance  is  placed,  in  the  judgment  I  haye  been 
examining,  upon  two  cases  in  the  supreme  court  of  the  United 
States:  Bronson  y.  Eineie,  1  How.  411,  and  McCrachen  y.  Hay^ 
ward,  2  Id.  608.  In  these  cases  a  statute  of  the  state  of  lUinoia 
was  declared  to  be  a  violation  of  the  constitutional  proyision 
under  consideration;  and  if  the  case  now  before  the  court  came 
fairly  within  the  principle  of  these  adjudications,  it  would  form 
a  precedent  which  we  could  not,  and  which  for  myself  I  should 
not  desire  to,  disregard.  But  I  do  not  think  there  is  any  con- 
siderable similarity  in  the  cases.  The  statute  of  Illinois  did  not 
profess  to  be  a  part  of  the  ordinary  and  regular  system  for  the 
collection  of  debts,  but  was  special  and  exceptional  in  its  char- 
acter, and  was  eyidently  passed  to  meet  a  particular  emergency, 
namely,  to  afford  relief  against  a  mass  of  indebtedness  which 
the  peculiar  circumstances  of  some  preceding  years  had  led  the 
citizens  to  contract.  This  is  obyious  from  the  fact  that  its  oper- 
ation is  limited  to  existing  contracts,  and  to  such  as  might  be 
entered  into  prior  to  the  first  day  of  May  then  next,  which  waa 
about  two  months  after  the  passing  of  tiie  act.  It  can  not  be 
pronounced  that  the  legislature  of  Illinois  considered  the  pro- 
visions of  this  act  as  affording  an  adequate  and  sufficient  or  rea- 
Bonable  remedy  for  the  collection  of  debts  in  ordinaiy  cases;  but 
the  contrary  is  to  be  inferred  from  their  declining  to  apply  them 
generally  to  all  future  cases.  Again:  the  act  forbade  the  sale  of 
the  debtor's  property  altogether,  unless  there  should  be  offered 
for  it  an  amount  equal  to  two  thirds  of  a  valuation  to  be  put 
upon  it  by  three  persons,  one  of  whom  was  to  be  selected  by  the 
debtor.  This  was  interpolating  a  new  feature  into  the  law  and 
practice  of  judicial  sales,  and  one  which  would  be  quite  likely 
in  many,  if  not  in  most,  cases  to  render  the  remedy  entirely 
nugatory.  I  should  have  found  no  difflculfy  in  saying  that  no 
reasonably  substantial  remedy  was  left  to  the  creditor  under  this 


Oct  1854.]  MoBSE  u  GooLD.  HI 

act;  but  it  would  liaTe  been  sofficient,  in  deteimininif  against 
the  oonstatutionality  of  the  hiw»  to  refer  to  the  hci  Chat  all  ex- 
isting  oontracta,  and  such  as  should  immediately  be  made,  weirs 
by  it  taiken  ont  of  the  ordinary  and  reguhur  system  of  legal  rem- 
edies and  sabjected  to  new  and  exceptional  roles  of  an  anoma- 
lous character,  which  were  calculated  to  embarrass,  and  which 
might  in  many  cases  wholly  defeat  the  creditor's  remedy.  The 
Illinois  act  subjected  sales  pursuant  to  a  judgment  of  foreclos- 
ure of  a  mortgage  to  the  same  provisions,  and  thus  directly  tio- 
lated  one  of  the  specific  terms  of  that  class  of  securities;  and  the 
first  case  referred  to  was  a  review  of  a  judgment  where  the  stat- 
ute had  been  applied  to  a  foreclosure  case.  In  the  other  case 
the  judgment  was  the  ordinary  one  in  personam,  and  in  both 
eases  the  statute  was,  in  my  opinion,  rightfully  held  to  impair 
Uie  obligation  of  the  contract.  I  do  not  understand  either  of 
the  cases  to  determine  that  the  law  respecting  legal  procedure 
in  existence  when  the  contract  was  made  can  not  be  changed  in 
snch  manner  as  to  operate  upon  existing  contracts.  In  the  able 
and  discriminating  opinion  of  Chief  Justice  Taney,  in  the  first 
ease,  the  right  to  make  such  changes  is  distinctly  asserted ;^and  if 
the  opinion  in  McCracken  v.  Hayward,  supra,  bolds  the  oontnuy, 
it  was  unnecessary  to  go  that  length,  and  the  doctrine  would  be 
hostQe  to  the  principle  of  several  prior  cases,  and  an  unwarrant- 
able restriction  upon  the  powers  of  the  state  govemmenfa.  It 
is  evident  that  the  court  did  not  intend  to  embrace  a  case  like  the 
one  under  review.  The  chief  justice  expressly  declares,  in  giving 
the  opinion  of  the  court  in  Bronson  v.  Kinzie,  supra,  that  a  state 
l^;islature  may,  "  if  it  thinks  proper,  direct  that  the  neoeasaiy 
implements  of  agriculture,  or  the  tools  of  a  mechanic,  or  articles 
oi  necessity  in  household  furniture  shall,  like  wearing  apparel, 
not  be  liable  to  execution  on  judgments; "  and  in  a  subsequent 
case  of  FUmiersT  Bank  v.  Sharp,  6  How.  801,  880,  decided  as 
late  as  1848,  Mr.  Justice  Woodbury,  in  giving  the  opinion  of 
the  court,  enumerated  laws  exempting  tools  or  household  goods 
from  seizure  among  the  examples  of  legislation  respecting  the 
remedy  which  might  be  constitutionally  applied  to  existing  con- 
tracts; and  in  Bigelow  v.  PrUchard,  supra,  Putnam,  J.,  in  de- 
livering the  opinion  of  the  supreme  judicial  court  of  Masna- 
ehusetts,  said  that  the  legislature  might  lawfully  <1iTnittiali  the 
creditor's  remedy  to  enforce  payment  by  exempting  a  part  of 
the  property  of  the  debtor  from  attachment  on  mesne  process  or 
levy  on  execution;  **  for  example,  articles  of  furniture,  beds,  and 
bedding,  etc.,  necessary  for  a  debtor  and  his  family/' 


112  MoBSE  V.  QooLD.  [New  ToTk« 


Upon  the  whole,  I  am  of  opinion  that  the  statute  of  1842 
lates  exclusiYel J  to  the  remedy,  and  does  not  touch  the  obliga- 
tion of  the  contract  within  the  meaning  of  that  expression  in 
the  constitution  of  the  United  States;  and  moreoyer,  that  it  can 
not  be  classed  among  those  legishitiye  provisions  which,  pro* 
fessing  to  operate  upon  the  remedy  only,  do  neyertheless  mate- 
rially impair  the  obligation  of  the  contract  itself.  I  am  there- 
fore in  favor  of  revecsing  the  judgment  of  the  supreme  court  on 
that  ground,  and  of  ordering  a  new  trial  to  be  had  in  that  court. 

BuooLBS,  J.,  was  not  present  at  the  argument,  and  took  no 
part  in  the  decision  of  the  case. 

Judgment  reversed. 

CoNSTiTUTioKALiTT  ov  ExxMPTiOK  Lawb:  See  BockweU  T.  nybbeir» 
Adm*r$t  45  Am.  Dec.  246,  and  note  considering  the  question.  In  addition  t» 
the  authorities  there  cited,  see  Freeman  on  Executions,  sec  219;  Pomeroy** 
Const.  Law,  sec.  625;  Cooley's  Const.  Lim.  350. 

Lbgislativs  Control  ovxk  Rbxedixs:  See  Baugher  v.  i^Telsom,  52  Am. 
Deo.  694,  and  prior  cases  in  note:  Lycoming  y.  Union^  53  Id.  575;  Wjfmne^B 
Lessee  v.  Wynne,  58  Id.  66;  AcJiewn  v.  JklilUr,  59  Id.  663;  also  Orifin  ▼• 
McKemie,  50  Id.  389,  and  note  on  the  constitutionality  of  statutes  of  limita- 
tion.  The  principal  case  has  been  frequently  cited  and  quoted  on  the  point 
that  the  legislature  has  the  right  to  change  or  modify  the  procedure  or 
dies  given  by  law  for  the  enforcement  of  existing  contracts:  Van 
V.  Snyder,  13  N.  Y.  306;  Conhey  v.  Hart,  14  Id.  29;  In  rt  Trustees  XewTork 
Prot.  Epis.  Public  School,  31  Id.  585;  Mann  v.  City  of  Utiea,  44  How.  Pr, 
343:  Trim  v.  WUhughby,  Id.  192;  Litchfield  v.  McComber,  42  Barb.  298f 
People  V.  Carpenter,  46  Barb.  621;  Tinker  v.  Van  Dyke,  1  Flipp.  527;  Strem- 
bel  V.  Milwaukee  dt  Miss,  R,  R.,  12  Wis.  80;  and  in  Wynehamer  ▼.  People,  IS 
N.  Y.  421 ;  S.  C,  2  Park.  Cr.  542,  /)er  Johnson,  J.,  as  stating  and  examining  tlM 
cases  on  this  proposition.  Thei'efore  the  period  of  time  in  which  claims  shaQ 
bo  barred  by  the  statute  of  limitations  may  be  shortened:  Stewart  v.  Simih^ 
14  Abb.  Pr.  79.  A  statnte  of  limitations  affects  the  remedy,  not  the  oo»- 
tract,  where  a  reasonable  time  is  given  for  bringing  suit  on  existing  demands: 
CleoeUuid  Ins,  Co.  v.  Reed,  1  Biss.  186.  But  the  legislature  can  not,  by  acting 
on  the  remedy,  impair  the  obligation  of  a  contract:  People  v.  Draper,  15  N.  Y. 
563,.  per  Brown,  J.,  dissenting;  Case  of  the  Empire  City  Bank  (Unitetl  State» 
Trust  Co.  V.  United  States  F,  Ins,  Co,),  18  Id.  216;  S.  C,  8  Abb.  Pr.  214;  and 
see  Litcf{field  v.  MeComber,  42  Barb.  298.  So  a  contract  may  be  rirtuaUj 
impaired  by  a  statute  which  destroys  the  remedy,  or  so  embarrasses  it  that 
the  rights  of  the  creditor  under  the  legal  remedies  when  the  contract  was 
made  are  substantially  defeated:  People  ▼.  Toyi  bee,  20  Id.  197;  S.  C,  11  How. 
Pr.  321;  2  Park.  Cr.  342;  and  see  also  Howell  r.  City  of  Buffalo,  15  N.  Y.  623, 
per  Denio,  C.  J.,  dissenting;  and  where  a  statnte  deprives  a  creditor  of  th« 
right  to  look  to  the  husband's  property  for  the  satisfaction  of  the  wife's  debts 
contracted  by  her  before  marriage,  it  deprives  him  of  a  substantial  right,  and 
is  not  a  restriction  of  the  extent  of  the  remedy,  which  might,  under  cizcum- 
stanoes,  be  valid:  Berley  v.  RampacheT,  5  Dner,  193.  The  remedy  afforded  fay 
existing  laws  enters  into  and  forms  a  part  of  the  obligation  of  oontracti:  ('cm» 
Baumbaeh  t.  Bade^  9  Wis.  677. 


Oct  1854.]  Catlik  v.  Ounteil  118 

The fbhicipa^ qjju is DnrnrouisHSDiii  Wmebremet ▼.  Mm§om^T AJtfb,  Plr., 
N.  S.,  20&,  M  being  a  cue  where  the  ezecotioD  waa  inoed  hj  s  Jnstioe  of  tlM 
pMoe,  in  holding  that  an  execation  usaed  after  the  bpee  of  fire  yean  from 
the  entry  of  judgment,  without  leave  of  coort,  waa  not  voidy  hot  ToidaUa 
only,  under  aection  284  of  the  code;  and  in  Underwood  v.  Often,  4  Jooea  k  8. 
488,  it  ia  referred  to  in  holding  that  the  langnage  of  the  aame  aeetioii  deariy 
pvohibiti  the  iasoing  of  an  execation  after  the  lapae  of  ^y  yean  from  the 
cn^  of  judgment,  except  upon  notioe  and  proofi,  and  an  order  of  oonrt 
founded  thereon  granting  permiaaion  to  iaaue  the  aame.  It  ia  cited  in  Dmrami 
T.  Enex  Company,  8  Allen,  108,  to  the  point  that  in  New  York  the  practioe 
ia  tbe  aame  aa  in  Masaachnaetta,  aa  regarda  the  presumption  that  a  point  de- 
cided by  a  aingle  judge  haa  been  rightly  decided,  and  it  ia  reaaonable  that  the 
praanmptioQ  should  stand;  aee  it  alao  referred  to  in  Lathrop  ▼.  Kwapp,  87 
Wia  312;  on  the  question -ol  ttare  dedeie. 


GaTLIN  n.  GUNTEB. 

(11  Ksw  TOBX  (1  KmoLUl),  t8B.] 
HtlWBMQfJMXT  KlOOnATIOir  OF  NOTX  UFOK  USUKIOUS  CoVSIDEBAmm  GAK  HOI 

BEnar  Achon  tbebmov  againat  the  maker,  if  it  had  a  legal  Inosptica 
ia  the  handa  of  the  holder. 

Hon  HAS  No  Legal  Incxption  a  Hakim  or  One  to  Whom  DBUYXfts* 
WITHOUT  Consideration  by  the  maker,  for  the  purpose  ol  raising  money 
for  the  benefit  of  either,  and  a  negotiation  of  it  by  such  holder  upon  a 
nsnxioaa  conaideratiaa  rendera  it  inoperatiTe  and  roid  in  the  handa  of  a 
third  pefson. 

QVBBTiOK  or  Usury  should  be  Suexittxd  to  Jurt,  where,  although  there 
was  no  direct  eridence  of  a  nsorioos  agreement  at  the  time  when  tbe 
loan  waa  made,  it  waa  shown  that  twenty-two  days  thereafter  a  aum  la 
exoeaa  of  the  legal  rate  waa  paid  and  receired  for  the  uae  of  the  money. 

Pbotisionb  or  New  Tore  Code  or  Procedure  ooncernino  Variance  be- 
tween Pleadings  and  PROors  are  Appuoable  to  All  Actions;  and  a 
varianoe  between  fdlegationa  of  usory  in  an  anawer  and  the  proof  ahonld 
be  deemed  immaterial  when  the  proof  doea  not  differ  from  the  allegationa 
in  their  entire  scope  and  meaning,  and  the  plaintiff  doea  not  prore  that 
he  waa  actually  mialod  thereby  to  hia  prejudice. 

Afpkai.  from  a  judgment  of  the  New  York  superior  court,  in 
tftTor  of  the  phuntiff  in  an  action  on  a  promisfloiy  note  against 
the  maker.  The  defense  was  usury.  The  answer  alleged  that 
the  defendant  delivered  the  note  to  one  Crandall,  without  con- 
sideration, to  have  the  same  discounted,  and  that  Crandall  de> 
livered  the  note  with  six  others  to  Davenport  to  raise  money, 
who  left  them  with  Beecher,  as  collateral  security  for  the  pay- 
ment of  certain  sums  of  money,  at  a  usurious  rate  of  interest. 
On  hearing  the  evidence  the  presiding  justice  directed  a  verdict 
for  the  plaintiff,  which  the  full  court  sustained,  on  the  ground 
that  the  burden  of  proof  was  on  the  defendant,  and  the  proof 

Ax.  Dma,  Yois,  LXD— 8 


114  Catlin  v.  Ounter.  [New  York, 

wholly  failed  to  sustain  his  defense.  The  usurious  contract  at 
set  out  in  the  answer,  the  testimony  of  Crandall  as  to  the  char* 
acter  of  the  transaction  between  him  and  the  defendant,  and  the 
eyidence  on  the  question  of  usury  sufficiently  appear  in  the 
opinion. 

A.  Thampaan,  for  the  appellant. 

Charles  P.  Kirldand,  for  the  respondent. 

By  Court,  Johnson,  J.  The  plaintiff's  counsel  insists,  in  the 
furst  place,  that  the  note  upon  which  this  action  was  brought 
had  a  legal  inception  in  the  hands  of  dgindall.  If  this  is  so, 
DO  subsequent  negotiation  of  it  upon  a  usurious  consideration 
could  defeat  the  action  against  the  maker.  If  this  point  should 
be  decided  against  him,  he  then  contends  that  there  was  no  evi- 
dence of  usury  sufficient  to  have  been  submitted  to  the  jury; 
but  if  wrong  in  this,  he  further  maintains  that  the  usurious  con- 
tract which  the  evidence  tended  to  prove  was  so  far  variant 
from  that  set  up  in  the  answer  that  it  could  not  be  rightfully 
received,  and  that  upon  this  groimd  the  ruling  at  the  trial 
ought  to  be  sustained. 

1.  The  transaction  between  the  defendant  and  Crandall  is 
obscurely  stated.  It  is,  however,  pretty  apparent  that  the 
note  was  delivered  to  the  latter  to  enable  him  to  raise  money  by 
negotiating  it.  Whether  he  was  to  do  this  for  the  benefit  of 
the  defendant  and  as  his  agent,  or  whether  the  note  was  lent  to 
him  for  his  own  accommodation,  is  not  clear.  But  in  either 
case,  the  paper  did  not  become  operative  until  it  was  passed 
away  for  value.  There  seems  to  me  to  be  no  foundation  for  the 
argument  that  Crandall  purchased  the  note  of  the  defendant, 
and  the  case  is  not  within  the  reason  of  those  decisions  in  which 
it  is  held  that  an  exchange  of  notes  constitutes  them  both  busi- 
ness paper:  Dowe  v.  SchuU^  2  Denio,  621,  and  the  cases  cited. 
The  remark  of  the  witness  that  he  would  have  paid  the  defend* 
ant  for  the  notes  if  he  had  called  for  it,  and  the  witness  had  got 
the  money,  implies  very  strongly  that  the  notes  were  to  be  used 
to  raise  money  for  the  benefit  of  the  defendant.  He  says,  in 
terms,  that  the  defendant  received  no  consideration  for  the 
notes.  If  this  is  to  be  understood  literally,  it  of  course  puts  an 
end  to  the  idea  that  the  note  had  become  operative  when  de- 
livered  to  him.  If  he  means  only  to  negative  the  fact  of  pay* 
meat  in  money,  and  to  have  it  understood  that  he  made  some 
engagement  which  was  equivalent  to  his  own  note,  and  which 
would  constitute  a  consideration  for  the  transfer  to  him  of  the 


Oct  1854.]  Catun  v.  Qunter.  Hi 


note  in  question,  the  arrangement  should  have  been 
such  perspicuity  that  the  court  could  judge  of  its  character  and 
effect.  Upon  the  testimony  which  was  given,  I  am  of  opinion 
that  the  jury  might  rightfully  have  found  that  the  note  in  question 
was  deliyered  to  Crandall  to  enable  him  to  raise  money  upon  it 
for  the  benefit  of  the  defendant,  or  for  his  own  accommodation. 

2.  The  evidence  of  usury  was  sufficient  to  be  submitted  to  the 
consideration  of  the  jury.  On  the  eighteenth  March,  1851,  Da- 
venport borrowed  one  thousand  five  hundred  dollars  of  Beecher, 
and  the  question  is,  whether  this  money  was  lent  at  an  usurious 
rate  of  interest.  Davenport  was  not  able  to  deny  positively  that 
there  was  an  agreement  for  illegal  interest.  He  could  not  recol- 
lect. The  case  is  pretty  much  as  it  would  be  if  there  was  no  direct 
evidence  of  the  making  of  the  contract.  On  the  ninth  of  April, 
twenty-two  days  after  the  loan,  Davenport  paid  and  Beecher  re- 
ceived fifty-one  dollars  and  eighty-eight  cents  ''for  the  use  of  the 
one  thousand  five  hundred  dollars  from  the  eighteenth  March  to 
that  day.''  This  was  some  evidence  of  an  agreement  for  a  rate  of 
interest  which  would  produce  that  amount,  coeval  with  the  loan. 
I  agree  with  the  court  below,  that  evidence  of  prior  usurious 
loans  would  not  alone  affect  this  contract;  but  connected,  as 
that  evidence  was,  with  the  subsequent  receipt  of  usurious  in- 
terest for  all  the  time  which  elapsed  between  the  loan  and  the 
receipt  of  that  money,  it  made  a  case  to  be  left  to  the  jury.  I 
do  not  say  that  they  must  necessarily  have  found  that  the  loan 
was  usurious,  but  only  that  the  evidence  was  suitable  to  be  sub- 
mitted to  them. 

3.  It  is  the  remaining  question  which  alone  presents  any 
difficulty.  There  is  a  wide  discrepancy  between  the  ulurioua 
contract  set  up  in  the  answer  and  the  one  which  the  evidence 
tended  to  prove.  According  to  the  former,  the  note  in  contro- 
versy was  negotiated  by  being  delivered,  together  with  six  other 
notes,  which  are  described  as  collateral  security  for  the  pay- 
ment of  three  several  sums  of  five  hundred  dollars,  one  thou- 
sand dollars,  and  one  thousand  three  hundred  dollars  and  sev- 
enty-five cents,  lent  at  different  times  by  Beecher  to  Crandall,  at 
a  rate  of  interest  equivalent  to  eighteen  and  three  fourths  cents 
per  day  on  one  hundred  dollars.  According  to  the  testimony, 
this  note  and  three  others,  only  one  of  which  corresponds  with 
any  of  the  six  notes  mentioned  in  the  answer,  were  transferred 
as  security  for  one  sum  of  one  thousand  five  hundred  dollars 
loaned  on  the  eighteenth  of  March,  1851,  to  Crandall  by 
Beecher;  and  the  rate  of  interest  indicated  by  the  evidence 


116  Catldt  v.  Ouvteb.  [New  York, 

would  be  KMnething  orer  twenty-two  cents  per  day  on  one 
hundred  dollars  instead  of  the  rate  mentioned  in  the  answer. 
There  is  a  correspondence  between  the  allegations  and  the 
proof  to  this  extent:  they  concur  in  the  position  that  the  note 
in  suit  was  transferred  by  Davenport  to  Beecher  with  other 
notes  as  security  for  a  loan  made  by  the  latter  to  the  former, 
which  loan  was  at  a  usurious  rate  of  interest,  and  in  respect  to 
which  DaTcnport  also  gave  to  Beecher  his  check  on  a  bank. 
The  point  as  to  the  variance  I  understand  to  have  been  made 
by  the  objection  which  the  defendant  took  that  the  proof  was 
not  vdthin  the  issue  in  the  cause.  If  the  code  of  procedure  has 
not  changed  the  rule  which  is  to  govern  this  case,  the  court  be- 
low was  clearly  right  in  holding,  as  it  did,  that  there  was  a  fatal 
variance.  The  cases  are  uniform  and  consistent,  and  several  of 
them  are  referred  to  in  Bawe  v.  Phillips^  2  Sandf .  Ch.  14.  The 
code,  however,  contains  provisions  on  the  subject  of  variances 
applicable  to  all  actions;  and  if  they  establish  a  different  rule 
from  the  one  reoognisEed  in  these  cases,  we  are  bound  to  apply 
it,  though  thereby  the  plaintiff  may  suffer  loss  which,  by  the 
defendant's  slip  in  pleading,  he  would  have  avoided  under  the' 
former  rule.  It  is  provided,  in  the  first  place,  that  no  variance 
between  the  allegation  in  a  pleading  and  the  proof  ehall  be 
deemed  material,  unless  it  shall  actually  have  misled  the  adverse 
party  to  his  prejudice  in  maintaining  his  action  or  defense:  Sec. 
1G9.  Then  it  is  not  left  to  the  judgment  of  the  court  whether, 
in  a  given  instance,  it  was  calculated  to  mislead,  and  from 
thence  to  hold  that  it  did  mislead;  but  whenever  it  is  alleged 
that  a  party  has  been  misled,  that  fact  must  be  proved  to  the 
satisfaction  of  the  court,  and  the  proof  must  show  in  what  re- 
spect he  has  been  so  misled;  and  thereupon  the  court  may  order 
the  pleading  to  be  amended  upon  such  terms  as  shall  be  just: 
Id.  Where  the  variance  is  not  material,  as  above  provided, 
namely,  when  the  party  has  not  proved  that  he  has  been  actu- 
ally misled,  the  court  may  either  direct  the  fact  to  be  found 
according  to  the  evidence,  or  may  order  an  immediate  amend- 
ment wiUiout  costs:  Sec.  170.  But  if  an  allegation  is  unproved, 
not  in  some  particular  or  particulars  only,  but  in  its  entire  scope 
and  meaning,  it  is  not  to  be  deemed  a  case  of  variance,  but  a 
failure  of  proof:  Sec.  171.  These  provisions  introduce  a  prin- 
ciple unknown  to  the  former  practice,  namely,  that  of  determin- 
ing this  class  of  questions,  not  by  the  incoherence  of  the  two 
statements  upon  their  face,  and  hence  inferring  their  effect  upon 
the  state  of  the  preparation  of  the  party,  but  by  proof  aliunde 


Oct  1854.]  Catuk  v.  Ourtxb.  IIT 

i8  to  whether  the  party  WBB^etaaUy  mided  to  his  pnjiidioe  bj 
the  incorrect  statement.    In  this  case  the  plaintiff  did  not  ofler 
any  proof  of  the  character  suggested,  nor  did  he  eren  allege 
that  he  had  been  misled.    He  put  himself  upon  the  principle 
of  the  old  role  by  alleging  that  the  usnrions  contract  set  np  in  the 
answer  was  different  from  that  indicated  by  the  proof,  and 
henoe  insisting  that  the  proof  was  not  within  the  issue.    If, 
then,  the  disczepancy  was  a  Tariance,  as  defined  by  these  pro- 
Tisions,  it  should  hare  been  r^parded  as  immaterial;  and  the 
only  question  is,  whether  it  was  a  fault  of  that  chamcter,  or  a 
failure  of  proof,  as  defined  by  section  171.     What  was  the 
"  scope  and  meaning  "  of  the  allegation  of  usury  in  the  answert 
In  general  terms,  it  was  that  the  note  was  negotiated  at  its  in- 
ception upon  a  usurious  consideration.     Such  a  general  allega- 
tion in  an  answer,  it  is  conceded,  would  be  bad  for  its  general- 
ity.   But  certain  particulars  were  added  which  were  true:  the 
name  of  the  party  to  whom  the  note  was  passed  was  given;  the 
general  character  of  the  transaction  was  stated,  to  wit,  that  it 
was  delivered  to  that  person  with  other  notes  as  collateral 
Becurily  for  a  loan  of  money;  and  the  name  of  the  borrower  was 
correctly  stated.     To  this  was  added  the  fact,  with  which  the 
eridence^onesponded,  that  the  loan  was  evidenced  by  the  check 
of  the  borrower.     Then   certain   circumstances  were  stated, 
which  have  already  been  mentioned,  which  the  evidence  did 
not  confirm  but  disproved;  that  is  to  say,  the  particular  addi- 
tional notes  transferred  for  the  same  purpose,  the  number  of 
Q^e  loans,  and  the  amount  and  the  rate  of  the  usurious  interest. 
In  my  opinion,  these  circumstances  were  accidental  merely,  and 
did  not  constitute  the  entire  scope  and  meaning  of  the  allega- 
tion, in  the  sense  of  the  provisions  of  the  code. 

We  are  not,  I  conceive,  warranted  in  applying  a  different  rule 
io  the  defense  of  usnry  from  that  which  we  would  hold  appli- 
cable in  o^er  cases.  It  is  a  defense  allowed  aiid  provided  by 
law.  The  defendant,  in  seeking  to  avail  himself  of  the  evidence, 
notwithstanding  the  variance,  did  not  claim  an  indulgence  from 
the  court,  but  simply  asked  for  the  application  of  those  rules 
which  the  legislature  has  provided  for  all  cases  indiscriminately, 
whether  the  party  invoking  their  exercise  was  seeking  to  visit 
his  adversary  with  a  forfeiture  or  not.  The  law  has  not  made 
any  distinction  between  such  defenses  and  those  where  no  for- 
feiture is  involved,  and  the  court  can  make  none.  If  the  sense 
of  the  legislatare  is  plainly  expressed,  as  it  seems  to  me  to  be, 
We  have  no  judgment  to  pass  upon  the  policy  of  these  provisions. 


118  Catlin  v.  Guntek.  [New  York, 

It  is  apparent  that  in  many  cases  the  record  will  not  furnish  a 
true  account  of  the  issue  actually  tried  and  determined,  and  I 
can  foresee  some  difficuliy  whefi  it  shall  be  necessarily  used  as 
eyidence  of  a  former  judgment.  Perhaps  some  of  the  incon- 
veniences which  might  be  expected  to  ensue  may  be  avoided  by 
the  provisions  of  section  173,  by  which  the  courts  are  authorized, 
oven  after  judgment,  to  conform  the  pleading  to  the  facts  proved. 
But  however  this  may  be,  we  can  not  dispense  with  the  new 
rule  which  the  code  has  established.  I  can  not  doubt  that  the 
difficulty  under  which  the  defendant  labored  in  this  case  was  a 
variance  merely,  which,  not  having  been  proved  to  have  misled 
the  defendant,  should  have  been  considered  immaterial.  The 
judgment  should  be  reversed,  and  a  new  trial  ordered  in  the 
superior  court. 
Judgment  accordingly. 

Validity  of  Negotiable  Paper,  when  Affected  bt  Subseqcekt  Sale 
UPON  UsuBious  CoNsiDEBATio^:  See  note  to  WilkU  v.  RooMveU^  2  Am.  Deo. 
155;  Lloyd  v.  Keach,  7  I^I.  256;  Munn  v.  Commotion  Co,,  8  Id.  210;  RmJ^  v. 
Armstrong,  11  Id.  774;  Flamming  v.  Mulligan^  13  Id.  707;  Holmes  v.  Williams, 
40  Id.  250;  Ramsey  v.  Clark,  Id.  645,  and  notes  to  these  cases.  A  promissory 
note  has  no  legal  inception  until  it  is  delivered  to  some  person  as  evidence  of 
a  subsisting  debt:  Walher  v.  Ocean  Bank,  19  Ind.  250;  it  must  be  an  existing 
valid  obligation  in  the  hands  of  the  payee,  to  be  the  subject  of  sale,  and  must 
be  given  for  some  actual  consideration,  so  that  it  can  be  enforced  between  the 
original  parties:  Stcett  v.  Chapman,  7  Hun,  579;  if  not  valid  in  the  hands  of 
the  payee,  it  can  not  be  rendered  valid  by  a  sale  to  a  bona  fide  purchaser  at  a 
rate  of  interest  exceeding  that  allowed  by  law:  Id.;  and  M'hen  made  and 
indorsed  for  the  benefit  of  another,  a  sale  by  the  latter  at  a  greater  rate  of 
discount  than  permitted  renders  it  usurious  in  the  hands  of  the  holder:  Com- 
beer  v.  Kalbfieisch,  11  Id.  121.  The  principal  case  is  cited  to  the  foregoing 
points.  But  a  case  where  notes  and  a  mortgage  were  transferred  by  a  princi- 
pal party  to  one  wlio  paid  the  full  price  thereof  as  a  loan  upon  the  security  of 
the  same,  which  money  was  delivered  to  the  other  principal  party,  less  a 
certain  sum  retained  for  ser>'ice8,  exceeding  the  legal  rate  of  interest,  is  not 
like  a  case  of  accommodation  paper  made  for  the  sole  purpose  of  raising 
money  upon  it:  Aldridge  v.  Reed,  2  Sweeny,  173,  per  Monell,  J.,  dissenting; 
and  a  bank's  discounting- notes  made  to  raise  money  by  receiving  them  from 
the  original  parties  to  them  before  they  have  had  any  other  legal  inception, 
and  placing  the  proceeds  in  account,  to  be  paid  out  on  the  checks  of  one  of 
those  parties,  is  a  very  different  thing  from  merely  buying  or  advancing 
money  upon  promissory  notes  as  property:  New  York  T,  dfL,  Co*  v.  Helmer, 
12  Hun,  42;  the  last  two  cases  distinguishing  CaUin  v.  OunUr* 

Question  of  Usury,  when  should  be  Subiotted  to  Jury. — Subsequent 
payments  of  interest  in  excess  of  the  lawful  rate  are  evidence  which  ahoold 
go  to  the  jury  on  the  question  whether  there  was  a  corrupt  agreement  between 
the  parties:  Smith  v.  /lalhom,  25  Hun,  161,  citing  the  principal  case. 

Variance,  when  Immaterial  and  when  not:  See  Teargain  v.  Johnston^ 
1  Am.  Dea  581;  Ross  t.  Overton,  2  Id.  552;  Quarles*s  Adm*r  v.  LiUlepage,  1 
Id.  687;  Walsh  v.  Oilmor,  6  Id.  502;   BeUas  ▼.  ^ays,  9  Id.  885;  CWffey  ▼. 


Oct  1854]  Catun  v.  Ounteb  119 

Dean,  10  Id.  140;  SckoolerT,  Aahenlj  13  Id.  232;  H€U(tkng$  ▼.  Loimrkig^  M. 
420;  Stedt  r.  Batei,  16  Id.  720;  Baidwin  r.  Jfwm,  20  Id.  027;  SidweU  ▼. 
BmMs,  21  Id.  387;  NeweU  v.  Maifiterry,  23  Id.  261;  Ta^  ▼.  UroncA,  U. 
20.3;  jSlancAanl  t.  Baker,  Id.  504;  iftf/€r  t.  Brwm,  Id.  603;  iToMvy  ▼•  ^^ 
2er,  24  Id.  680;  Adam»  ▼.  i^uAer,  25  Id.  102;  Finder  r.  Austin,  26  Id.  701; 
Boorman  v.  Jenkins,  27  Id.  158;  IFHyA^  v.  Cfter,  Id.  538;  ilOianee  etc,  Attwr, 
Co.  r.  Louukma  State  Iru.  Co.,  28  Id.  117;  DibrM  r,  MUkr,  29  Id.  126;  LH- 
dig  T.  Ramtm,  Id.  354;  Penn.  tic.  Nan.  Co.  ▼.  Dandridge,  Id.  543;  Dwdlty  t. 
lAmls*^,  50  Id.  522;  MePhermm  ▼.  McPherwn,  53  Id.  416;  ^^Mrftd  ▼.  Bray, 
M  Id.  332;  aiao  FUktr  v.  BeekwUh,  46  Id.  174;  SylmUer  ▼.  Z>oi0ii«r,  40  Id. 
786;  TVMettf  v.  Pickering,  51  Id.  48;  i^ortA  i?t«er  etc.  Co.  ▼.  5Ar«iot6iify  CA., 
63  Id.  258.    Under  the  New  York  code  of  procedure,  s  Tsrianoe  between  al- 
legations and  proofs  U  to  be  deemed  immaterial,  and  disregarded  if  it  has  not 
misled  the  adverse  party  to  his  prejadioe:  McComber  t.  Oranite  Ins.  Co.,  15 
N.  Y.  497;  Craig  v.  Ifarcf,  36  Barb.  382;  JDunnigan  v.  Crummey,  44  Id.  535; 
Chapman  ▼.  Carotin,  3  Boew.  458;  Poirer  v.  Fisher,  8  Id.  263;  Blakeiy  v,  Jor 
eobmm^  9  Id.  152;  Co66  t.  Wtti,  4  Doer,  44;  Nash  t.  Towne,  5  Wall.  698;  or  « 
an  amendment  may  be  ordered:  Crasg  v.  Ward,  Dunmigan  v.  Ontmmeif,  w- 
yra;  and  the  ooart  is  boond  to  receive  the  evidence  when  offered,  if  the  va- 
riance to  arise  therefrom  be  not  each  as  to  leave  the  allegation  unproved  la 
its  entire  scope  and  meaning:  Seaman  v.  Low,  4  Bosw.  351.    A  pUdntiff  who 
expects  to  recover  in  an  action,  when  there  is  a  substantial  defense  to  it, 
•olely  by  reason  of  defects  in  the  answer,  or  a  defendant  who  thinks  of  suc- 
ceeding upon  errors  in  the  complaint,  without  regard  to  the  merits  of  his  de- 
fense, may  therefore  as  well  stay  out  of  court  as  to  come  in:  Wood  v.  Wood, 
26  Barb.  359.    So  after  a  trial  and  decision  of  a  controversy,  as  appearing 
upon  the  proofs,  where  no  question  was  made  as  to  their  relevancy  under  the 
pleadings,  it  is  not  the  duty,  nor  within  the  rightful  authority,  of  an  appellate 
court  to  deprive  the  successful  party  of  his  recovery,  on  the  ground  of  incom- 
pleteness or  imperfection  in  the  pleadings:  Tffng  v.  Commercial  Warehouse 
Co.,  58  N.  Y.  313.  The  principal  case  has  been  cited  to  the  foregoing  points. 
The  provisions  of  the  code  in  this  respect  are  as  applicable  to  the  defense  of 
usury  as  to  other  cases;  therefore,  where  the  evidence  tends  to  show  a  usu- 
rious agreement  which  does  not  differ  from  the  one  alleged  in  its  entire  scope 
and  meaning,  the  variance  is  immaterial  if  the  plaintiff  gives  no  proof  thai 
he  was  misled  thereby  to  his  prejudice.    The  principal  case  has  been  fre- 
quently cited  and  quoted  on  these  propositions:  Dagal  v.  Simmons,  23  Id. 
493;  Clayes  v.  Hooker,  4  Hun,  235;  S.  C,  6  Thomp.  &  C.  451 ;  Duel  v.  Spenee, 
1  Abb.  App.  Dec.  561;  S.  C,  1  Abb.  Pr.  240;  Brown  v.  MUchell,  2  Id.  482; 
8.  C,  12  How.  Pr.  409;  Union  Nai.  Bank  v.  Bassett,  3  Abb.  Pr.,  N.  S.,  362; 
OUchrist  V.  OUehrist*sEz^rs,  44  How.  Pr.  319;  Hallgarten  v.  Eeksrt,  5  Thomp, 
3t  C.  682;  Trowbridge  v.  Didier,  4  Duer,  451;  fteld  v.  Syms,  2  Robt  45,  per 
Monell,  J.,  dissenting;  Newman  v.  Kershaw,  10  Wis.  339;  but  see  the  ruling 
in  this  last  case.     In  Onsper  v.  Adams,  24  Barb.  288,  289,  while  the  princi- 
pal case  was  cited  as  holding  that  variances  between  the  proof  and  the  allega- 
tions are  to  be  disregarded  at  the  trial,  as  much  in  usury  cases  as  in  any  oth- 
ers, it  was  said  that  the  decision  was  stated  to  be  contrary  to  what  the  law 
formerly  was,  and  acknowledged  that  the  law  had  not,  prior  to  the  code, 
deemed  it  in  furtherance  of  justice  to  allow  a  party  to  defeat  a  recovery  for 
the  amount  actoally  due  by  the  defense  of  usury,  unless  he  made  his  aU<^- 
lions  conform  exactly  to  the  proof;  and  it  also  noticed  that  the  defendant 
was  not  applying  for  indulgenoe  as  in  the  case  at  bar:  See  also  the  principal 
cited  in  Origgs  t.  Howe,  2  Abb.  App.  Deo.  294;  8.  C,  2  Keyes,  578;  1 


110  LoRHXABD  V.  Town  or  Monbob.     [New  Tork» 

U.  1M»  M  to  what  Tuianoe  would  liavo  been  fatal  to  the  def eoae  of  vmary 
prior  to  tlie  eode.  When  a  party  dauns  to  have  been  misled  to  hia  prejudice, 
lint  iaet  moat  be  proved  or  the  variaaoe  will  be  deemed  immaterial:  Sm$th 
T.  Raikbmi,  13  Hon,  S2;  Plaee  ▼.  MUuter,  65  K.  T.  09;  Zabritkie  r.  fyiMlk, 
13  Id.  331;  MtrriU  r.  GrameU,  30  Id.  614;  MUbank  ▼.  DenmttottM,  1  Boaw. 
280;  ChapmoM  ▼.  Gorolm,  3  Id.  458;  and  in  what  respect  he  haa  been  misled  j 
MUbtmk  T.  Dnnitiovn,  Chapman  ▼.  CoroKii,  tupra;  all  citing  the  principal 
case.  Bot  the  precisioii  required  in  stating  facts  essential  to  make  oat  the 
defense  of  nsniy  has  not  been  rehuted  by  the  code:  Manwing  t.  2V^»  ^^  ^* 
y.  509,  distingnishing  CatUn  t.  Qunter  as  turning  entirely  on  the  qnestioii 
of  Tarianoe;  and  see  it  cited  in  2iorr%s  v.  Slalery^  6  Abb.  Pr.  76,  as  appear- 
ing to  recognise  the  authority  of  Rowe  ▼.  PhOips,  2  Sandf.  Ch.  14,  aa  to  the 
manner  of  setting  up  the  defense  of  usury;  see  also  Oaaper  ▼.  Adamn^  24 
Barb.  288,  289;  ^eiomaa  t.  Kenhaw,  10  Wis.  880.  The  principal  caae  ia 
further  died  in  KimUrkook  v.  Chfcrd^  40  Barb.  660,  as  looking  in  the  direo- 
taon,  but  as  deciding  nothing  on  the  point,  that  on  opening  a  default  prop- 
erly excused  the  court  will  not  impose  as  a  condition  tiiat  the  defendant  shall 
not  set  up  what  ia  termed  a  hard  or  unconscionable  defense,  as  usury,  or  the 
statute  of  limitations;  and  in  BtarrioU  ▼.  WeUs^  0  Bosw.  633,  to  the  pouit 
that  the  right  of  a  defendant  to  amend  his  answer  is  not  affected  by  the  iaoi 
that  he  proposes  to  set  up  the  statute  of  limitations;  but  see  it  distinguished 
tn  Smalky  t.  Dougkiy,  6  Id.  73,  sa  to  when  an  answer  will  not  be  allowed  to 
be  amended  so  sa  to  set  up  usury;  so  in  Jonet  t.  Walker^  22  Wis.  223,  the 
principal  case  ia  explained  and  distinguished  sa  one  not  of  amendment»  but 
of  variance,  and  as  not  an  authority  against  the  proposition  that  where  a  do- 
fendant  asked  leave  to  amend  hia  answer  so  as  to  set  up  usuzy,  and  leave  waa 
granted  on  condition  of  his  paying  the  principal  sum  due,  with  legal  Intereal^ 
there  waa  no  abuae  of  discretion. 


LoBiLLABD  t;.  Town  of  Mohboe. 

[U  Hkv  TOBX  (1  Knaaia),  S93.) 

Towira  abs  not  Ri8poh8ibli  iob  Bbrors  ob  Wronoittl  Aots  of 

AHi>  GoLLBCTOBS  ov  Tazbs  in  assessing  and  ooUecting  excessive  or  nnau* 
thoriaed  taxes. 

AasxasoBS  and  Ck)LLxcTOBs  or  Taxis  abb  Ikdbpbndbnt  Pubuo  OmcBBa» 
not  agents  of  the  towns  in  which  they  are  respectively  elected. 

Appeal  from  a  judgment  of  a  general  term  of  the  supreme 
court  reversing  a  judgment  in  favor  of  the  plaintiff,  in  an  action 
by  him  to  recover  the  amount  of  taxes  erroneously  assessed  by 
the  town  assessors  upon  land  not  situated  in  the  town,  and  ool- 
lected  from  the  plaintiff  l^  the  town  coUecton  of  taxee.  The 
appeal  was  submitted. 

G.  W.  Sandford,  for  the  appellant. 
MoneU  and  Dunning,  for  the  respondent* 

By  Court,  Dknio,  J.  If  this  action  can  be  maintained,  it  will 
be  by  assuming  that  the  town  is  a  corporate  body,  that  the  aa< 


Oct  1854.]  Lorhjla&d  u  Town  or  Honsox.  If  1 

lesBiaeDt  and  collection  of  taxes  is  a  corporate  act,  and  that  the 
iflBeeeors  and  ooUectors  of  taxes,  when  performing  their  duties 
B8  such,  are  to  be  r^arded  as  the  servants  and  agents  of  the 
town  as  a  corporation,  and  hj  applying  to  these  premises  the 
maxim  of  the  common  law,  that  the  master  or  principal  is 
responsible  for  the  acts  of  those  he  employs  or  appoints,  while 
they  are  acting  within  the  scope  of  their  employmenL 

The  sereral  towns  in  this  state  are  corporations  for  certain 
special  and  yexy  limited  purpoees;  or,  to  i^>eak  more  accurately, 
th^  have  a  certain  limited  corporate  capacity.  They  may  pur* 
diase  and  hold  lands  within  their  own  limits  for  the  use  of 
their  inhabitants.  They  may,  as  a  corporation,  make  such  con* 
fcncts  and  hold  such  personal  property  as  may  be  necessary  to 
the  exercise  of  their  corporate  or  administrative  powers,  and 
they  may  regulate  and  manage  their  corporate  property,  and  as 
a  necessary  incident  may  sue  and  be  sued  where  the  assertion  of 
their  corporate  rights,  or  the  enforcement  against  them  of  their 
QOipoiate  liabilities,  shall  require  such  proceedings:  1  B. 
S.  337,  sec.  1  et  seq.  In  all  other  respects — ^for  instance,  in 
everything  which  concerns  the  administration  of  civil  or  crim- 
inal justice,  the  preservation  of  the  public  health  and  morals, 
the  conservation  of  highways,  roads,  and  bridges,  the  relief  of 
the  poor,  and  the  assessment  and  collection  of  taxes — the  sev* 
sial  towns  are  political  divisions,  organized  for  the  conTcnient 
exerdae  of  portions  of  the  political  power  of  the  state,  and  are 
no  more  corporations  than  the  judicial  or  the  senate  and  assem- 
bly districts:  Id.,  sec.  2.  The  functions  and  the  duties  of  the 
several  town  officers  respecting  these  subjects  are  judicial  and 
administrative,  and  not  in  any  sense  corporate  functions  or 
duties.  The  imposition  and  collection  of  the  public  burdens 
is  an  essential  and  important  part  of  the  political  goremment 
of  the  state,  and  it  is  committed  in  part  to  the  agency  of  officers 
appointed  by  the  local  divisions  called  towns,  and  in  part  to 
the  officers  of  the  counties,  upon  reasons  of  economy  and  con- 
venience; and  the  official  machinery  which  is  organized  vnthia 
the  towns  and  counties  is  public  in  the  same  sense  as  is  that  part 
of  the  same  system  which  is  managed  by  the  state  officers  resid- 
bg  at  the  seat  of  government,  and  whose  operations  embrace 
the  whole  state.  It  is  a  convenient  arrangement  to  have  the 
assessors  chosen  by  the  electors  of  the  towns  within  which  they 
are  to  perform  their  duties,  for  the  reason  that  the  people  of 
these  small  territorial  divisions  will  be  most  likely  to  know  the 
fnalifioatiouB  of  those  from  among  whom  the  selection  is  to  be 


122  LoRiLLABD  V.  TowN  OF  MoNROB.     [New  Tork, 

made.  "Wlien  chosen,  they  are  public  officers  as  truly  as  the 
highest  official  functionaries  in  the  state.  Their  duties  in  no 
respect  concern  the  strictly  corporate  interests  of  the  towns, 
such  as  their  common  lands  and  their  corporate  personal  prop- 
crty,  or  the  contracts  which  as  corporations  they  are  permitted 
to  make,  nor  are  their  duties  limited  to  their  effects  on  the  towns 
as  political  bodies.  The  description  and  valuation  of  property 
for  the  purposes  of  taxation,  which  they  are  required  to  m&ke, 
form  the  basis  upon  which  the  state  and  county  taxes  are  im- 
posed; and  although  money  is  raised  by  the  same  arrangement 
to  be  expended  within  the  towns,  the  purposes  for  which  it  is 
to  be  employed  are  as  much  public  as  are  those  for  which  the 
state  and  county  taxes  are  expended.  I  am  of  opinion,  there- 
fore, that  the  assessors  and  collectors  of  taxes  are  independent 
public  officers,  whose  duties  are  prescribed  by  law,  and  that 
they  are  not  in  any  legal  sense  the  servants  or  agents  of  the 
towns,  and  that  the  towns  as  corporations  are  not  responsible 
for  any  default  or  malfeasance  in  the  performance  of  their  duties. 
It  is  not  alleged  in  the  complaint,  and  was  not  proved  on  the 
tiial,  that  any  part  of  the  money  which  was  collected  from  the 
plaintiffs  was  paid  to  the  town  or  into  its  treasury,  nor  could 
such  an  allegation  be  true  consistently  with  the  legal  provisions 
on  the  subject  of  taxation.  The  collector  is  directed  by  his  war- 
rant to  pay  separate  portions  of  the  money  to  the  supervisor,  com* 
missioners  of  highways,  superintendent  of  conmion  schools,  and 
overseers  of  the  poor,  and  the  residue  to  the  county  treasurer: 
Id. ,  p.  896,  sec.  37.  The  town,  as  such,  has  no  treasury,  and  the 
town  officers  who  are  thus  to  receive  and  disburse  this  money 
are  co-ordinate  with  the  assessors  and  collectors,  holding  their 
offices  by  the  same  mode  of  appointment,  and  r^fulated  by  the 
same  public  law. 

We  have  not  been  refeiTed  to  any  authority  where  a  similar 
action  has  ever  been  sustained  in  this  state.  In  the  case  of 
Preston  v.  City  of  Boston,  12  Pick.  7,  the  tax  which  the  plaintiff 
had  been  illegally  compelled  to  pay  was  paid  by  him  to  the  treas* 
urer  of  the  city  of  Boston,  and  the  action  was  for  money  had 
and  received  to  the  plaintiff's  use.  The  city  corporation,  as 
such,  had  received  the  plaintiff's  money,  which  was  an  essential 
feature,  which  is  wanting  in  this  case.  Besides,  that  was  the 
case  of  a  city  having  full  corporate  powers,  the  officers  conoemed 
in  imposing  and  collecting  the  tax  being  coix>orate  officers.  In 
this  case  the  duty  which  is  alleged  to  have  been  erroneously  and 
illegally  performed  was  imposed  upon  theassessorsaiid  ooUeotors 


Oct  1854.]    LORILLABD  V.  TOWN  OF  MONBO&  123 

by  a  public  statate,  and  nofc  in  any  sense  by  the  town.  In  Martin 
V.  Mayor  etc.  0/  Brooklyn,  1  Hill  (N.  T.),  545,  the  rule  was  laid 
down  by  the  late  Justice  Cowen  that  even  a  municipal  corpora- 
tion was  not  liable  for  the  misfeasance  or  non-performance 
of  one  of  its  officers^  in  respect  to  a  duty  imposed  by 
the  statute  upon  such  officer,  though  it  was  conceded  that 
if  the  duty  had  been  imposed  upon  the  corporation,  as  in 
the  case  of  streets  and  sewers,  which  tha  corporate  body  was 
bound  to  repair,  the  rule  would  have  been  otherwise.  It  was 
upon  the  principle  last  referred  to  that  the  cases  of  Delmonico  v. 
Mayor  eic.  of  New  York,  1  Sandf.  222,  and  Blldyor  elc.  v.  Furze,  3 
Hill  (N.  Y.),  612,  were  decided.  Even  where  a  person  sustains 
an  injury  by  means  of  the  neglect  of  an  officer  of  a  municipal 
corporation  to  execute  an  ordinance  of  the  corporation  accord- 
ing to  his  duty,  the  corporate  body  is  not  liable  to  an  action: 
Levy  V.  Mayor  etc.  of  New  York,  1  Sandf.  465;  Griffin  v.  Mayor 
etc.  of  New  York,  9  N.  Y.  [61  Am.  Dec.  700.]  A  fortiori  where 
the  duty  which  has  been  violated  was  imposed  by  a  public 
law  of  the  state,  the  corporation,  though  it  had  the  appoint- 
ment of  the  officer,  would  not  be  liable.  The  judgment  should 
be  affirmed. 
Judgment  affirmed. 

Towns,  how  Fab  Ck)RPOHATioN8  in  Nbw  YoRK.~B6yond  the  capftoity  of 
towna,  as  bodies  corporate,  to  sae  and  be  sued,  in  cases  where  the  assertioii 
of  their  corporate  rights,  or  the  enforcement  against  them  of  their  corporate 
liabilities,  require  such  proceedings^  towns  are  not  bodies  corporate,  but  mere 
political  divisions  for  the  convenient  exercise  of  portions  of  the  political 
power  of  the  state:  Town  qf  QaJen  v.  Clyde  etc  Plank  JRoad  Co,,  27  Barb.  551| 
bat  towns  may  sue  and  be  sued  to  enforce  corporate  rights  and  liabilities, 
when  the  assertion  of  such  rights  or  the  enforcement  of  such  duties  shall  re- 
quire such  proceeding:  Marsh  v.  Town  qf  Little  VaUeyt  1  Hun,  556;  a  town, 
however,  in  its  corporate  capacity  can  not  maintain  an  action  to  vindicate 
tax-payers  from  an  illegal  tax:  Town  qf  OuHford  v.  Supervisors  of  Chenango 
Co,,  13  K.  T.  147.  Towns,  as  such,  have  no  power  to  contract,  other  than  the 
vtatutes  give  them:  Potter  v.  Town  qf  Greenwich,  26  Hun,  335.  This  power 
is  restricted  to  cases  where  the  assertion  of  their  corporate  rights  or  the  en- 
forcement of  their  corporate  liabilities  require  such  proceedings:  Tovm  oj 
FUhkiU  V.  rtshkiU  etc.  Plank  Road  Co,,  22  Barb.  645.  In  respect  to  the 
assessment  and  ooUection  of  taxes,  a  town  is  but  a  political  division,  and  not 
a  corporatioii:  Town  qf  OaUatin  v.  Loucks,  21  Id.  580;  and  as  a  corporation  it 
has  nothing  to  do  with  highways  within  its  limits,  and  of  course  nothing  to 
do  with  the  money  raised  for  highway  purposes:  OaUor  v.  Herrick,  42  Id.  85; 
Clark  V.  MUUr,  47  Id.  41;  so  supervisors  of  a  county,  in  building  and  man- 
aging a  penitentiary  authorized  by  statnte,  are  engaf^  in  a  public  duty,  and 
are  not  a  corporation,  but  a  mere  instnimentality  selected  by  the  state: 
AUunango  v.  8upervitor»  qf  Albany  Co.,  26  Hun,  662.  The  principal  caas 
Is  cited  to  all  the  foregoing  points;  and  in  Chieago  etc  IPy  v.  Town  qfOamiOt 


124  LoRiLLABD  v.  TowN  OF  MoNROE.      [New  York^ 

00  Wis.  105,  its  laDgoage  defining  or  describing  how  £ar  towns  were  corpor»» 
tioDs  b  quoted  with  approTaL  In  Newman  t.  Superviaon  qf  Livmg$ion  Co.^ 
45  N.  Y.  683,  it  was  said  that  the  reasoning  of  the  principal  case  applied  aa 
well  to  an  action  of  the  same  kind  against  a  coonty;  and  (page  686)  it  is  cited 
to  the  point  that «  county  has  to  some  extent  a  corporate  capacity,  the  same 
as  a  town.  See  fnrther,  on  the  $tahiM  of  ooonties,  CommonwedUh  y.  Briee,  60 
Am.  Dea  79. 

Towns  or  Mubicipal  Cobtoeatiohs  abx  not  Liablv  iob  KoH-ncABAHci, 
MiSFKASAHCB,  OB  Malvbasahcb  OF  THSiB  OmcBBS  in  respoct  of  a  duty  im- 
posed upon  such  officers  by  law:  MaxmUioM  y.  Mayor  etc.  of  New  York,  62  N. 
Y.  164;  S.  C,  2  Hun,  268;  4  Thomp.  &  C.  496;  New  York  etc.  Saw-miU  and 
l/umber  Co,  y.  City  of  Brooklyn,  8  Hun,  40;  Ham  y.  Mayor  etc.  of  New  York, 
6  Jones  k  8.  468;  StiUweU  v.  Mayor  tie.  of  New  York,  17  Id.  865;  such  offi- 
cers, as  regards  duties  so  imposed,  are  in  no  sense  agents  or  serrants  of  the 
town  or  municipality:  OaUor  v.  Herriek^  42  Barb.  85;  CHiy  qf  Detroit  y. 
Blacktby,  21  Midi.  113;  and  their  neglect  or  misconduct  is  not  to  be  regarded 
as  that  of  the  municipality,  which  is  not  chargeable  therefor  unless  it  author- 
ized or  ratified,  expressly  or  by  implication,  the  act  or  omission:  OUy  of  De- 
troit y.  Blackeby,  wupra.  Assessors  and  coUectors  of  taxes  are  therefore  not 
the  agents  or  servants  of  towns  which  are  not  responsible  for  their  default, 
misfeasance,  or  malfeasance:  McLanaJian  y.  City  qf  ByraeuMe,  18  Hun,  264; 
Onderdonk  v.  CUy  qf  Brooklyn,  31  Barb.  507;  OaUor  v,  Herrick,  42  Id.  85; 
People  y.  Brown,  55  N.  Y.  187;  so  a  city  is  not  liable  for  a  comptroller's  fail- 
ure to  pay  money  realized  from  assessments  for  street  improyements  pro  rata 
upou  all  awards:  Sage  v.  City  qf  Brooklyn,  89  N.  Y.  209,  per  Earl,  J.,  dis* 
senting;  and  where  a  special  commission  was  appointed  to  audit  and  allow 
claims  against  a  county,  and  direct  revenue  bonds  to  be  issued  to  nuse  the 
amount,  and  a  tax  laid  by  the  supervisors  to  pay  such  bonds,  they  are  not  the 
agents  of  the  county  or  of  its  supervisors:  People  v.  Thoeed,  13  Abb.  Pr.,  N. 
8.,  77;  so  the  limitation  of  liability  of  a  municipal  corporation,  with  refer- 
ence to  money  paid  for  the  purpose  of  redeeming  property  previously  sold  for 
taxes,  is  that  it  only  extends  to  cases  where  the  duty  is  cast  upon  the  corpo- 
ration, and  not  where  it  is  imposed  by  law  upon  the  officer:  Onderdonk  v. 
City  of  Brooklyn,  31  Barb.  507.  Commissioners  of  highways  are  likewise  not 
the  agents  of  towns,  so  as  to  subject  the  towns  to  liability  for  the  acts  of  such 
commissioners:  People  v.  Tovm  Auditors  qfEsoptu,  74  N.  Y.  316;  S. C,  10  Hun, 
654;  and  the  same  is  trae  of  supervisors:  CUxrk  v.  Miller,  47  Barb.  41.  So  a 
city  is  not  liable  for  the  negligence  of  its  marshal,  policemen,  or  firemen, 
when  such  officers  are  independent  of  the  city,  and  are  not  its  officers  or 
agents:  McKay  v.  City  of  Bi^falo,  9  Hun,  407;  Ihulkner  v.  City  qf  Aurora, 
85  Ind.  135;  nor  is  a  city  liable  upon  a  contract  for  the  erection  of  a  school- 
house  entered  into  by  a  board  of  public  instruction,  which  was  created  by 
statute,  with  8x>ecifio  powers  and  duties  to  perform  a  public  service,  not  pe- 
culiarly local  or  corporate,  but  as  a  part  of  a  general  system,  and  which  is  in* 
dependent  of  the  city  as  to  tenure  of  office  and  the  manner  of  dischaiging 
duties:  DanncU  v.  Mayor  etc.  qf  New  York,  6  Hun,  91.  And  a  county  is  also 
not  liable  for  the  default  or  negligence  of  its  treasurer  in  the  discharge  of  the 
duties  of  his  office,  the  relation  of  master  and  servant  not  existing:  De 
Cfrauw  v.  Supervisors  qf  Queens  Co,,  13  Id.  385;  and  see  further,  as  to  the  lia- 
bility of  counties,  Newman  v.  Supervisors  of  Livingston  Co.,  45  N.  Y.  683. 
The  principal  case  is  cited  to  the  foregoing  points;  and  see  it  cited  in  Wayni 
y.  Sherwood^  14  Hun,  428,  on  the  power  to  contract  of  oommissioneni  ap* 
fointed  to  issue  bonds  of  a  town  and  subscribe  for  the  stock  of  a  railroad. 


Dec.  1854.]  DoRB  v.  New  Jkbset  Stkam  Nay.  Oo.  126 

8«e  further,  on  the  question  under  conaidention,  PrtUkar  ▼.  OUp  qf  Laem^ 
ton,  56  Am.  Dec.  585;  and  on  the  penKnul  liability  of  a  town  treMarer  and 
collector  for  money  collected,  InkahiianU  o/Hcmooek  ▼•  Hamard,  69  Id.  171» 
And  note. 

LiAJULiTT  OF  Towm,  BTo.,  roB  Illboal  Tazeb  akd  Monbtb  Paid  otib 
-vo  Tbxbc. — The  principal  eaae  does  not  sustain  tlie  l»oad  proposition  that  a 
town  is  not  liable  for  money  received  by  its  sapervisors,  when  it  belongs  to 
another  party  or  town,  the  money  having  been  received  nnder  a  supposition 
that  it  was  rightfully  paid  for  the  benefit  of  the  town,  and  was  appropriated 
for  that  purpoee:  Hathaway  v.  Town  qf  Homer,  5  Lans.  274;  so  an  action 
will  lie  against  a  county  for  money  paid  to  satisfy  an  illegal  taac,  and  received 
and  used  by  the  connty— explaining  and  distingni^^ing  the  principal  case,  in 
that  it  was  expressly  noticed  therein  that  it  was  not  alleged  in  the  complaint, 
«ior  proved  at  the  trial,  that  any  part  of  the  money  which  waa  collected  was 
paid  to  the  town  or  into  its  treasury:  Newmaa  v.  Superviion  qflAvinffitam 
-Co.,  45  N.  T.  683;  Bank  qf  CommtmweaUh  r.  Mayor  tie.  qfNew  York,  43  Id. 
180;  bat  see  Sw^  v.  CUy  qf  Pougkkeepne,  37  Id.  515;  Dam  t.  Fox,  6  Lans. 
165.  But  a  town  is  not  liable  to  repayment  of  illegal  taxes  which  it  has  paid 
•over  to  officers  which  do  not  represent  it,  their  functions  being  proscribed  by 
statute,  and  the  money  received  being  expended  in  the  performance  of  official 
4nty:  Ctty  qfBoeheaier  y.  Town  qfltuah,  80  N.  T.  311. 


DoRB  V.  New  Jebset  Steam  Natioation  Go. 

fU  Haw  TosE  (I  Kaavjji),  IML) 
OXMMON    GaBBIXBB   MAT    RSSTBIOT  TBKIB   CoiOIOy-LAW  LUBIUTT  bj  «■• 

press  contract,  although  not  by  a  mere  notioe. 

Appeal  from  a  judgment  for  plaintiffii  on  demtirxer  to  plea. 
The  action  vtbb  against  a  carrying  company  for  loss  of  goods 
mentioned  in  the  following  agreement:  ''New  Jersey  Steam 
Navigation  Company  receiyed  of  S.  &  F.  Dorr  &  Co.,  on  board 
the  steamer  Lexington,  Childs,  master,  two  cases  for  E.  Baker  ft 
Co.,  Boston,  marked  and  numbered  as  in  the  margin,  to  be 
transported  to  Stonington,  and  there  to  be  delivered  to  railroad 
agent  or  assigns,  danger  of  fire,  water,  breakage,  leakage,  and 
all  other  accidents  excepted;  and  no  package  whatever,  if  lost, 
injured,  or  stolen,  to  be  deemed  of  greater  value- than  two  hun- 
dred dollars.  Freight  as  customary  with  the  steamers  on  this 
line.  N.  B.  The  company  are  to  be  held  responsible  for  ordi- 
nary care  and  diligence  only  in  the  transportation  of  merchan- 
dise and  other  property  shipped  or  put  on  board  the  boats  of 
this  line.  Dated  at  New  York,  January  13,  1840.  Contents 
unknown.  George  Childs,  master."  The  plea  averred  that  the 
loss  was  within  tiie  restriction  appended  to  the  agreement,  and 
the  ground  of  the  demurrer  was  that  such  restrictions  are  in- 
valid. 


126         DoBB  V.  Nxw  Jkbsxt  Steam  Nat.  Oa  [New  York; 

WUliam  M.  Evarts,  for  the  appellant. 
Bet^amin  D.  SiUiman^  for  the  respondents. 

Cj  Court,  PiBKKB,  J.  The  courts  of  this  state  haye  steadily 
adhered  to  the  common-law  role  that  a  common  carrier  can 
not  screen  himself  from  liability  by  notice,  whether  brought 
home  to  the  owner  or  not.  Since  the  very  full  and  learned  dis- 
c^ission  of  that  question  in  EoUisler  t.  Nowlen,  19  Wend.  234 
[82  Am.  Dec.  455],  and  Cole  t.  Goodwin,  Id.  251  [82  Am.  Dec« 
470],  it  has  been  regarded  as  settled  upon  mature  deliberation, 
and  the  conclusion  arrived  at  in  those  cases  has  been  uniformly 
acquiesced  in  and  followed:  Camden  Co.  t.  Belknap,  21  Id.  354; 
Clark  V.  Faxton,  Id.  153;  Alexander  v.  Greene,  8  Hill  (N.  Y.),  9; 
S.  C. ,  7  Id.  633;  Powell  y.  Myers,  26  Id.  594.  These  decisions  rest 
on  the  yery  satisfactory  reasons  that  the  notice  was  no  evidence 
of  assent  on  the  part  of  the  owner,  and  that  he  had  a  right  to 
repose  upon  the  common-law  liability  of  the  carrier,  who  could 
not  relieve  himself  from  such  liability  by  any  mere  act  of  his 
own. 

But  the  question  here  presented  is  of  a  veiy  di£Perent  char- 
acter. It  is,  whether  it  is  competent  for  the  carrier  and  the 
owner,  by  an  agreement  between  themselves,  to  establish  con- 
ditions of  liability  different  from  those  cast  by  law  upon  a  com- 
mon carrier.  I  think  this  question  is  distinctly  presented  by 
the  demurrer  to  the  second  plea;  and  it  seems  to  me  also  to  be 
involved  in  the  decisions  made  at  the  trial  of  the  issue  of  fact; 
for  the  exceptions  to  the  common-law  liabiliiy,  being  made  in 
the  bill  of  lading  and  delivered  to  the  agent  of  the  plaintiffs, 
must  be  deemed  to  have  been  agreed  upon  by  the  parties.  If 
such  is  not  the  legal  inference,  then  it  was  a  question  of  fact 
for  the  jury  to  decide  what  was  the  agreement  between  the  par- 
ties, and  in  that  case  the  same  question  of  law  would  still  be 
presented  for  decision. 

The  plaintiffs  rely  upon  the  case  of  Gould  v.  HiU,  2  Hill  (N.  Y. ), 
623.  It  was  there  broadly  decided  by  a  majority  of  the  late  su- 
preme court.  Nelson,  C.  J. ,  dissenting,  that  common  carriers  could 
not  limit  their  liability,  or  evade  the  consequences  of  a  breach 
of  their  legal  duties  as  such,  by  an  express  agreement  or  special 
acceptance  of  the  goods  to  be  transported.  That  decision  rested 
upon  no  earlier  adjudication  in  this  state,  though  the  question 
had  been  previously  discussed  and  obUer  opinions  upon  it  some- 
imes  expressed  by  judges  in  deciding  the  question  whether  a 
carrier  could  lessen  the  extent  of  his  liabliiy  by  notice.    But  the 


Dec  1854.]  Dobr  v.  New  Jebset  Steam  Nay.  Oa  127 

cftse  of  Oould  T.  EUl^  supra,  has  been  deliberatelj  OTermled  by 
the  present  supreme  court  in  two  carefully  considered  cases,  viz. , 
Partsans  v.  Monieaih,  13  Barb.  353,  and  Moore  t.  Evans,  14  Id. 
524.  In  both  those  cases  the  question  is  examined  with  iniich 
ability,  and  I  think  the  tmsoundness  of  the  conclusion  in  Oould 
r.  Bill,  supra,  most  satisfactorily  shown.  I  am  not  aware  that 
Oould  V.  Hill  has  been  followed  in  any  reported  case.  In  Wells 
▼.  Steam  Nov,  Co.,  2  N.  Y.  209,  Bronaon,  J.,  who  seems  to  hare 
concurred  with  Judge  Cowen  in  deciding  Oould  t.  JBiQ,  supra, 
speaks  of  the  question  as  being  still,  perhaps,  a  debatable  one. 
That  a  carrier  may  by  express  contract  restrict  his  common- 
law  liabilify  is  now,  I  think,  a  well-established  rule  of  law.  It 
18  80  understood  in  England:  Kenrig  t.  Effgleston,  Aleyn,  93; 
Morse  y.  Slue,  1  Vent.  190,  238;  Galley  v.  Winiringham,  Peake 
N.  P.  G.  150;  GMan  v.  PaynUm,  4  Burr.  2301;  Leeson  t.  EoU, 
1  Stark.  N.  P.  186;  Boberts  t.  TTyotf ,  2  T^unt.  271;  WyldY.  Pick- 
ford,  8  Mee.  &  W.  443;  Souihcot^s  Case,  \  Co.  84;  and  in  Penn- 
sylvania: Camden  df  A.  B.  B.  Co.  t.  Baldauf,  16  Pa.  St.  67 
[55  Am.  Dec.  481];  Beckman  ▼.  Shouse,  6  Bawle,  179  [28  Am. 
Dec.  653];  Bingham  y.  Rogers,  6  Watts  &  S.  496  [40  Am. 
Dec.  581].  In  other  states  where  the  question  has  arisen, 
whether  notice  would  excuse  the  liability  of  the  carrier,  it  seems 
to  haye  been  taken  for  granted  that  a  special  acceptance  would 
do  so;  and  'in  N.  J.  Steam  Nav.  Co.  y.  Merchants^  Bank,  6  How. 
882,  it  was  so  held  by  the  supreme  court  of  the  United  States. 
For  the  concurrent  opinions  of  elementary  writers  in  fayor  of 
Uiis  doctrine,  see  Btory  on  Bail.,  sec.  549;  Chit.  Cont.  152;  2 
Kent's  Com.  606;  Angell  on  Carriers,  sees.  59,  220,  221.  Upon 
principle,  it  seems  to  me  no  good  reason  can  be  assigned  why 
the  parties  may  not  make  such  a  contract  as  they  please.  It  is 
not  a  matter  affecting  the  public  interests.  No  one  but  the  par- 
ties can  be  the  losers,  and  it  is  only  deciding  by  agreement  which 
shall  take  the  risk  of  the  loss.  The  law,  where  there  is  no  spe- 
cial acceptance,  imposes  the  risk  upon  the  carrier.  If  the  owner 
chooses  to  relieye  him  and  assume  the  risk  himself,  who  else 
has  a  right  to  complain  ?  It  is  supposed  that  the  extent  of  the 
risk  will  be  measured  by  the  amount  of  compensation,  and  the 
latter,  it  will  not  be  denied,  may  be  regulated  by  agreement. 
The  right  to  agree  upon  the  compensation  can  not,  without  great 
inconsistency,  be  separated  from  the  right  to  define  and  limit 
the  risk.  Parties  to  such  contracts  are  abundantly  competent 
to  contract  for  themselyes.  They  are  among  the  most  shrewd 
tnd  intellii^ent  business  men  in  the  community,  and  haye  no 


2S8         DoBR  V.  New  Jkbset  Steam  Nat.  Co.  [New  York« 

need  of  a  special  gaardianBhip  for  their  protection.  It  is  enoogli 
that  the  law  declares  the  liabiliiy  M^lere  the  parties  haye  said 
nothing  on  the  subject.  Bat  if  the  parties  will  be  better  satisfied 
to  deal  on  different  terms,  they  onght  not  to  be  prevented  from 
doing  so. 

It  is  tme,  a  common  carrier  exercises  a  qwui  public  employ- 
ment, and  has  pnblic  duties  to  perform;  that  hecannot  reject  a 
customer  at  pleasure,  or  charge  any  price  that  he  chooses  to 
demand;  and  that  if  he  refuses  to  cany  goods  according  to  the 
course  of  his  employment,  without  a  sufficient  excuse,  he  will 
be  liable  to  an  action;  and  that  he  can  only  demand  a  reason- 
able compensation  for  his  risk  and  services:  Bac.  Abr.,  tit.  Gar- 
ners, B;  2  Kent's  Com.  699;  Story  on  Bail.,  see.  828;  Coffgs  ▼. 
ttemard,  2  Ld.  Baym.  917;  Boulston  ▼.  Sandiford,  Skin.  279; 
Oisboum  v.  Huni,  1  Salk.  249;  Jackaon  t.  Rogers,  2  Show. 
827;  Pickford  t.  Ormid  Jtindum  BaQtoay  Co.,  8  Mee.  A 
W.  372;  Dwighi  t.  Brewster,  1  Pick.  50  [11  Am.  Dec.  133]; 
Hale  ▼.  N.  J.  Steam  NaviffoHon  Co.,  15  Conn.  539  [39  Am. 
Dec.  898];  and  that  an  action  will  lie  against  him  upon  a  tort, 
arising  ex  delicto,  for  a  braach  of  duty:  Orange  County  Banker. 
Brown,  3  Wend.  158.  In  such  case,  tliere  being  no  special  con- 
tract, the  parties  are  supposed  to  have  acted  with  a  full  knowl- 
edge of  their  legal  rights  and  liabilities,  and  there  may  be,  pex^ 
haps,  good  reason  for  the  stringent  rule  of  law  which  makes 
the  carrier  an  insurer  against  all  except  the  act  of  God  and  the 
public  enemy.  But  when  a  special  oontnct  is  made,  their  rela- 
tions are  changed,  and  the  carrier  becomes,  as  to  that  transac- 
tion, an  ordinary  bailee  and  private  carrier  for  hire.  This 
neither  changes  nor  interferes  with  any  established  rule  of  law; 
it  only  makes  a  case  to  be  governed  by  a  different  rule.  To  say 
the  parties  have  not  a  right  to  make  their  own  contnct,  and  to 
limit  the  precise  extent  of  their  own  respective  risks  and  liabili- 
ties, in  a  matter  in  no  way  affecting  the  public  morals  or  con- 
flicting with  the  public  interests,  would,  in  my  judgment,  be  an 
unwarrantable  restriction  upon  trade  and  commerce,  and  a  most 
palpable  invasion  of  personal  right. 

The  judgment  of  the  supreme  court  should  be  reversed,  and 
judgment  be  given  for  the  defendant  on  the  demurrer,  with 
leave  to  the  plaintiffs  to  reply  on  terms,  and  a  new  trial  should 
be  awarded  on  the  issue  of  fact. 

Judgment  accordingly. 

Common  Carbier'h  Liabilitt  in  General:  See  WhiUmdf  v.  ThtHkiJX, 
51  Am.  Dec.  128;  Friend  v.  Woods,  52  Id.  119;  Cameron  v.  ^iek^  53  Id.  670| 


Doe.  18S4.]  DoBB  v.  Nxw  Jkbskt  Stbam  Nat.  Oa  1S9 

Ltmmrdr,  ffendrkkaon,  06  Id.  587;  Fanmni  ami Mfdktmk^Bank  t.  CAmi- 
pLain  Tnmgportatwm  Oo,^  56  Id.  68,  and  notes  to  these  oMee.  An  owner  oui 
insiifc  on  a  oommon  cftrrier'B  reoeiving  his  goods  under  all  the  rftdn  and  re- 
■pGoaibiiitiea  which  the  law  annexes  to  his  employment:  MeMWam  t.  MkM' 
Ifta  ttc  R.  B.^  16  liich.  111.  Where  there  is  no  special  contnett  his  respon- 
libiUty  extends  toall  loss  or  damage,  except  that  which  is  caosed  hf  act  of 
God  or  paUio  enemy:  HvieU  r.  Swifts  42  Barh.  230,  253;  Sherman  t.  WdU^ 
28  Id.  411;  Western  Transportation  Co.  r.  NewhaB^  24  IlL  470.  The  rales 
appticahle  to  common  carriers,  to  which  the  liability  of  innkeepers  has  been 
hkcDed,  Itave  always  been  maintained  with  firmness  by  the  ooorts:  Punrig  t. 
Cdamm^  21  N.  Y.  117.  The  principal  case  has  been  cited  to  the  foregoing 
poiiits;  and  in  Wooden  t.  Atutinf  61  Barb.  11,  it  is  cited  as  bearing  on  the 
qsertimi  in  regard  to  the  degree  of  negllgenoe  to  be  estabUshed  to  render 
liftUe  the  owner  of  a  vessel  need  in  towing  only. 

Common  Garbxrb's  Powkr  to  Limit  Liabiutt  bt  Noncx:  See  jWanweiV 
and  MtehoMc^  Bank  ▼.  ChampUdn  TVansportaUon  Co.^  56  Am.  Dea  68,  and 
note  collecting  prior  cases;  also  Beno  v.  Hogan^  54  Id.  513.  That  a  oommon 
eirrier  can  not  by  mere  notice,  even  if  bronght  to  the  knowledge  of  thoee 
vhoee  persons  or  property  they  carry,  limit  his  common-law  liability,  is  a 
point  to  which  the  principal  case  is  cited  in  Biatell  v.  New  York  Cent,  B,  /?., 
SSN.  Y.  445;  Bioeeom  v.  Dodtl,  43  Id.  267;  SmUh  v.  New  York  Cent.  B.  B,,  28 
Buhl  136, 143;  Browning  v.  Long  Idand  B,  B,f2  Daly,  121;  Lienan  v.  Dint- 
more,  3  Id.  369;  S.  C,  10  Abb.  Pr.,  N.  S.,  212;  41  How.  Pr.  09;  Baldwin  v. 
United  Slates  Telegraph  Co,,  1  Lans.  136;  Western  Traneportathn  Co.  v.  New- 
haU,  24  m.  470;  Evansville  etc.  B.  B.  v.  Young^  28  Ind.  619.  It  is  presumed, 
under  such  ciroamstances,  that  the  shipper  delivers  the  goods  onder  the  con- 
tract which  the  law  creates,  and  not  upon  the  terms  stated  in  the  notice: 
KirHcLndy.  Dinsmore,  62 N.  Y.  175;  BaUroad  Company  v.  Harris,  12  Wall.  86. 

CoMMoir  Cabbieb's  Powkb  to  Limit  Liabiutt  bt  Expbbsb  Aobbbmbitt: 
8ee  Farmers*  and  Mechandt^  Bank  v.  Chantplain  Transportation  Co.^  56  Am. 
Dec.  68,  and  prior  cases  in  note  thereto.  The  principal  case  has  been  often 
cited  to  the  point  that  a  common  carrier  may  limits  restrict,  control,  and 
modify  his  common-law  liability  by  special  contract:  MercantiU  Mut.  Ins.  Co, 
T.  CaJi^i,  20  N.  Y.  176;  Perkins  v.  New  York  Cent.  B.  /?.,  24  Id.  216;  SmUh 
V.  NtJB  York  Cent.  B.  B.,  Id.  223;  BisseU  v.  New  York  CenU  B.  /?.,  26  Id. 
445;  Oumamne  v.  Hamburgh  etc.  Packet  Co.,  42  Id.  214;  Blossom  v.  Dodd, 
43  Id.  267;  Nelson  v.  Hudson  Bitter  B.  B.,  48  Id.  503;  Jliynard  v.  Syracuss 
etc.  R,  B.,  71  Id.  186;  French  v.  Bt^cUo  etc  R.  B.,  2  Abb.  App.  Dea  207} 
8.  a,  4  Keyes,  121;  Welles  v.  New  York  Cent.  B.  B.,  26  Barb.  645;  Smith  v. 
New  York  Cent.  B.  B.,29  Id.  137;  Hulett  v.  Swijt,  42  Id.  250;  Lee  v.  Manh, 
43  Id.  105;  S.  C,  28  How.  Pr.  276;  Prieer.  Hartshorn,  44  Barb.  666;  Befger 
V.  Dinsmore,  61  Id.  78;  S.  C,  34  How.  Pr.  428;  WesteoU  v.  Fsargo,  63  Barh^ 
S53;  S.  C,  6  Lans.  327;  Fibel  v.  Livingston,  64  Id.  188;  Nicholas  v.  New  York 
de.  R.  B.,  4  Hon,  329;  S.  C,  6  Thomp.  ft  G.  608;  Steiger  v.  Mhrie  B'y,  5  Hun, 
346;  Sek^Y.  New  York  etc  B.  B.,  16  Id.  282;  S.  C,  62  How.  Pr.  93;  Plaes 
▼.  Union  Sxprtss  Co.,  2  Hilt.  25;  ^ermt  v.  Bay  8taU  Steamboat  Co.,  4  Bosw. 
233;  Boswell  v.  Hudson  Biver  B.  B.,  5  Id.  703;  Aforiariiyr.  Harden's Express^ 
1  Daly,  230;  S.  C,  24.  How.  Pr.  292,  sub  nam.  Meyer  v.  Harden*s  JEah 
pros  Co.;  Brownkig  v.  Long  Iskmd  B.  B.,  2  Daly,  121;  Lienan  v.  Dinsmore, 
3  Id.  369;  &  C,  10  Abb.  Ft.,  N.  S.,  212;  41  How.  Pr.  99;  Kndl  v.  United 
States  etc  Steamship  Co.,  1  Jones  ft  8.  433;  Wetkm  Transportation  Co.  v. 
NewhaU,  24  HL  470;  Steamboat  Sultana  v.  Chapman,  5  Wis.  465;  and  if  a 
Mgmph  compnny  is  held  tobean  ordinary  common  carrisr,  it  has  the  right  to 
Am.  Aaa  Toi-.  I«zn-« 


180  Dana  v.  Fdcdleb.  [New  York, 

limii  iti  Ikbility  by  ezpraei  oontraot:  Breue  ▼.  Uniied  StaUi  Tdegntpk  C«., 
45  Bftrb.  293;  S.  G.,  31  How.  Pr.  03.  To  hold  thataihipperoannot  ooQtrad 
with  a  oommon  oanier,  by  which  the  latter's  oommon-lftw  liafaility  will  be  re- 
•trieted,  would  be  *'  an  nnwamntable  restriction  upon  trade  and  oommeree, 
and  a  most  palpable  inTanon  of  personal  nght:"  Mtckigan  OemL  R*  B,  v. 
HdUf  6  Mich.  263;  bat  see  this  langoage  criticised  in  Railroad  Oompamp  r. 
Ifoehoood,  17  WaU.  878.  The  express  contract  may  be  in  the  fonn  of  a  biQ 
of  lading:  Zung  v.  HwtHand^  5  Dsly,  137;  Schiff  r.  Nem  York  tic  R,  J?.,  16 
Han,  282;  &  C,  62  How.  Pr.  03;  McMfUan  ▼.  MkkigtmtU.  R.  R.,  16  Midu 
116;  bot  see  Chouteau  ▼.  XeecA,  67  Am.  Dec  602;  or  a  reoeipti  Bamk  </  JTen- 
iacijf  V.  Adama  Bxprea§  Co.,  I  Flipp.  248;  Hooper  t.  WeUe,  27  CSaL  38,  per 
Sandenon,  0.  J.,  dissenting;  and  see  Raihroad  Compaof  t.  HarrU,  12  WalL 
66.  When  an  express  oontiact  Ib  thas  entered  into^  the  relations  of  the  par^ 
ties  are  changed,  and  the  carrier  becomes,  as  to  thai  tnnsaotion,  an  Qidiimiy 
bailee  and  private  carrier  for  hire:  StmderUmd  ▼.  We$teoU,  40  How.  Pr.  460; 
8.  a,  2  Sweeny,  263;  MoriarUy  v.  Ilarden's  Expreu^  1  Daly,  230;  8.  C,  2« 
How.  Pr.  292,  nib  nom,  Meyer  v.  HardenU  Exprete  Co.;  Petm  t.  B^/alo  A 
Erie  R,  i?.,  49  N.  Y.  208;  French  ▼.  Bv^fcdo  etc  R.  1?.,  2  Abb.  App.  Dea 
207;  S.  C. ,  4  Keyes,  121 ;  Lake  Shore  eicR,R.y.  Perhau,  26  ICich.  286;  Sarmeo 
▼.  Expreu  Company^  1  Woods,  677;  bat  he  remains  sabjeot  to  his  commoo-law 
liability  except  in  so  far  as  he  is  exempted  therefrom  by  eflbot  of  his  special 
oontraot:  Stdnweg  t.  Erie  Railway,  43  N.  T.  126;  S.  C,  60  Bsib.  646^  notof 
Simmons  t.  Law,  4  Abb.  App.  Dec  246;  8.  C.,  8  K^yes,  220. 


Dana  v.  Fiedleb. 

fl3  Nxw  ToBX  <2  Emmmah)  ,  40.] 

FiJtOL  Etidxnob  u  Admissiblx  to  Explain  MxAimro  or  Ttem  or  lonM 
of  expression  commonly  osed  in  a  particnlar  trade  or  bnsfnsss,  whs— tei 
knowledge  of  their  pecaliaror  technical  ase  becomes  material  in  ooustiu- 
ing  a  written  contract.  A.  boaght  and  sold  note  for  supplying  "  best 
madder,  12  1^4,"  if  not  rendered  intelligible  by  other  expressions  in  the 
instrnment,  is  explainable  by  evidence  that  among  dealers  in  madder  the 
fignres  '*  12  1-4  '*  in  each  connection  were  commonly  used,  and  wonld  be 
nnderstood  as  meaning  twelve  and  one  quarter  cents  per  pound. 

If  BABU&X  OF    DaMAGKS    FOB    SxLLKB'S  BrSAOH  OV   Ck>llTBAOT  TO    FUBVUB 

OooDS  for  a  price  not  paid  down  is  the  difisrenoe,  with  interest,  betWMO 
the  contract  price  and  the  market  price  of  the  article  when  it  shoold 
have  been  delivered. 
liABKXT  Value  must  be  Bstimatxd  upon  ByiDXHCB  of  Aotval  Eulim 
Pbicis  at  the  time  and  place  in  question;  conjectural  opinions  of  wH- 
neesee  as  to  the  probable  effect  of  putting  upon  the  market  the  quantity 
called  for  in  a  particular  oontraot,  in  addition  to  the  usual  supply,  oaa 
not  be  received. 

Afpbal  from  a  judgment  of  the  New  York  oommon  pleas  in 
iaTor  of  the  plaintiff,  in  an  action  for  damages  for  the  seller^s 
iailnre  to  deliver  goods.  The  plaintiff  on  the  trial  relied  on  a 
biOQght  and  sold  note  by  which  defendant  had  engaged  to  de» 


Dee.  1854.]  Dana  v.  Foedi^kb.  181 

Iher  "one  himdxed  and  fifty  casks,  'of  one  ton  each/  beet 
EXF  madder,  12  1-4,  6  ms."  and  offered  parol  eridence  of  the 
tense  in  which  the  fignres  **  12  1-4  "  were  oonunonly  nsed  and 
understood  in  sach  connection  by  dealers  in  the  article,  which 
was  leceiyed  subject  to  exception.  Exceptions  were  also  taken 
to  questions  put  and  aUowed  on  the  subject  of  nuurket  prices  J 
madder  at  the  time  in  question,  the  nature  of  which  appears  by 
the  opinion.  The  plaintiff  had  a  yerdict  in  which  the  jury  were 
directed  to  and  did  include  interest;  this  also  against  objection* 
The  full  court  held  that  allowing  interest  was  a  question  for  the 
juiy,  but  oTerruled  the  other  objections,  and  allowed  the  judg* 
ment  to  stand  if  plaintiff  would  remit  the  interest,  which  he 
did:  1  E.  D.  Smith,  468.  From  the  judgment  thus  modified 
this  appeal  was  taken. 

/Vancts  B.  Cutting,  for  the  appellant,  the  seller. 

Augustus  F.  8mHh,  for  the  respondent,  the  buyer. 

By  Court,  Johhsov,  J.  On  reading  the  oontraot  of  the 
parties,  it  apx>ears  upon  its  face  to  be  expressed  in  so  short 
terms  in  respect  to  the  price  as  to  be  unintelligible.  The 
instntment  of  payment  is  expressed,  viz.,  ''Fearing  &  Hall's 
acceptance,"  and  the  figure  and  abbreviation  "6  ms.,"  eren 
without  evidence  to  show  that  **  ms."  is  the  ordinary  oontraction 
for  months,  are  probably,  and  with  that  evidence  are  certainly, 
soffident  to  enablea  court  to  say  that  the  acceptance  was  to  be  at 
six  months.  That  it  was  to  be  delivered  in  payment  upon  the 
delivery  of  the  property  purchased  results  from  the  absence  of 
any  contrary  stipulation,  that  being  the  rule  of  law  as  to  time 
of  payment.  In  the  contract,  this  expression,  fixing  the  time 
which  the  paper  to  be  given  in  payment  shaU  have  to  run,  is  pre- 
ceded by  the  figures  "  12  1-4,"  vrithout  any  marks  of  notation 
or  other  signs  which  can  enable  a  court  to  say  what,  in  reference 
to  the  contract,  is  the  signification  which  the  parties  attached 
to  them  and  intended  to  convey  by  their  use.  The  figures  read 
"  twelve  and  a  quarter,"  and  occurring  where  they  do,  every 
term  of  the  contract  except  the  price  being  ascertained,  a  court 
IB  bound  to  conclude  that  they  relate  to  the  price,  although  it 
is  at  the  same  time  unable  to  declare,  from  the  writing  itself, 
either  in  what  denomination  of  money  the  price  is  expressed,  or 
for  what  quantity  of  the  article  the  named  price  is  to  be  the  equiva- 
lent In  this  Btaie  of  the  case,  parol  evidence  was  received  that 
madder,  the  subject  of  the  contract,  is  usually  sold  by  the 
ponnd  and  at  so  many  cents  per  potmd,  and  no  evidence  vraa 


132  Dana  v.  Fdedlxb.  [New  York, 

offered  to  shoi?  that  it  was  erer  sold  in  any  other  way.  It  waa 
also  shown  that  among  merchants  these  figures,  standing  as 
they  do  in  this  contract,  would  be  understood  to  express,  in 
cents,  the  rate  per  pound  at  which  the  madder  had  been  sold. 
The  first  question  in  the  case  rektes  to  the  admissibility  of  this 
evidence.  The  legal  tendency  of  the  evidence  is  to  show  that 
among  dealers  in  the  article  in  question  this  contract,  although 
so  elliptical  in  its  expressions,  would  couTcy  a  definite  mean- 
ing. Evidence  is  always  admissible  to  explain  the  meaning 
of  terms  used  in  any  particular  trade  or  occupation,  when 
their  meaning  becomes  material  in  order  to  construe  a  con- 
tract; and  the  principle  on  which  the  rule  is  fotmded  ex- 
tends to  forms  of  expression  commonly  used  in  any  particu- 
lar business  as  well  as  to  single  words.  In  both  cases  the 
evidence  is  admitted  as  a  means  of  enabling  the  court  to  declare 
what  the  language  of  the  contract  did  actually  express  to  per- 
sons standing  in  the  position  of  the  contracting  parties,  and  so 
to  ascertain  what  it  does  express  to  the  court,  which  for  this 
purpose  is  bound  to  place  itself  in  their  position.  I  am  not 
aware  of  any  case  in  which  the  precise  point  in  this  case  has 
been  adjudged.  In  Cooper  v.  Smith,  15  East,  108,  the  memo- 
randum on  which  the  suit  was  brought  contained  merely  the 
vendee's  name,  and  the  expression,  **  40  of  8 — 68  s."  This  was 
explained  by  evidence  to  mean  forty  sacks  of  flour,  called  thirds, 
at  fifty-eight  shillings  per  sack.  No  question  was,  however, 
made  upon  it,  although  the  case  turned  on  the  sufficiency  of 
the  memorandum,  which,  being  unsigned,  was  held  to  be  in- 
sufficient. Upon  principle,  however,  the  evidence  was  admis- 
sible, for  it  would  be  intolerable  that  a  writing,  which,  to  the 
parties  and  to  persons  standing  in  their  situation,  contained 
language  sufficient  to  express  their  meaning,  should  fail  of 
effect:  Wigram  on  Ex.  Ev.  174, 175;  1  Greenl  Ev.,  sees.  282, 
288,  292,  298. 

'  The  next  question  to  be  considered  relates  to  the  exclusion  of 
questions  offered  to  be  put  by  the  defendant  as  bearing  upon 
the  measure  of  damages.  The  rule  of  damages  laid  down  in 
the  charge  was,  that  the  plaintiffs  were  entitled  to  the  difference 
between  the  market  value  of  the  article  contracted  for,  on  the 
day  it  should  have  been  delivered,  and  the  price  which  the 
plaintiffs  agreed  to  pay  for  it.  To  this  there  was  no  exception, 
and  it  is  not  now  affirmed  to  be  incorrect. 

The  questions  excluded  were  put  in  various  forms,  but  their 
admissibility  is  urged  upon  the  groimd  that  in  ascertaining  ths 


Dec  18S4.]  Daha  v.  Focdlxb.  188 

market  iralne  of  the  madder  the  jviy  were  to  consider  Iiow  tbe 
plaintifiB  oould  hATe  diapoeed  of  the  madder  in  questioii  if  it 
had  been  deliyered  to  them.  Accordingly,  inquiries  irere  made 
B8  to  the  probable  effect  on  the  market  price  of  an  additional 
supply  of  one  hundred  and  fifty  casks;  whether  a  quantify  of 
one  hundred  and  fifty  tons  was  not  a  hirge  supply  to  the  market 
in  reference  to  the  amount  ordinarily  in  the  market;  and  whether 
the  same  quantity  would  not  be  a  Tciy  large  supply  for  a  single 
printing-works.  The  evident  object  of  all  these  inquiries  was 
to  show  that  if  the  defendant  had  performed,  and  the  plaintifb 
had  desired  to  sell  the  whole  quantity^  the  market  price  would 
haye  been  lowered  1^  throwing  so  huge  a  quantity  at  once  upon 
the  market.  A  sufficient  answer  to  aU  these  exceptions  is,  that 
they  are  founded  upon  an  attempt  to  substitute  a  hypothetical 
market  Talue  for  the  actual  market  Talue.  They  call  upon  the 
jury  to  speculate  as  to  the  consequences  which  would  hare  re- 
sulted to  the  plaintiffs  if  the  defendant  had  perfonned  his  con- 
tract. The  rule  of  damages  was  correctly  hiid  down  by  the 
court:  Clark  v.  Pinney,  7  Oow.  681;  Dey  t.  Dox,  9  Wend.  129 
[24  Am.  Dec.  187];  Davis  t.  Shields,  24  Id.  822;  and  the  market 
value  of  the  article  on  the  day  of  deUyery,  which  that  rule  fixes 
as  the  test,  requires  an  iuTestigation  of  the  actual  condition  of 
the  market,  and  does  not  warrant  the  consideration  of  the  con- 
jectural consequences  of  a  state  of  things  which  did  not  exist. 

The  principle  on  which  the  rule  rests  is  the  indemnification 
of  the  injured  party  for  the  injury  which  he  has  sustained.  In 
a  suit  by  the  Tender  against  the  yendee  for  non-acceptance  of  the 
articles  sold,  in  order  to  giye  him  a  complete  indemnity,  he 
must  recoyer  the  difference  between  the  agreed  price  and  that 
at  which  he  could  sell  on  the  day  when  the  yendee  was  bound 
to  receiye  and  pay  for  the  thing  bought.  So,  on  the  other 
hand,  in  a  suit  by  the  yendee  against  the  yendor  for  non-deliy- 
ery,  his  complete  indemnity  is  to  receiye  that  sum  which,  with 
the  price  he  had  agreed  to  pay,  would  enable  him  to  buy  the 
article  which  the  yendor  had  failed  to  deliyer.  The  yalue  in 
the  market  on  the  day  forms  the  readiest  and  most  direct  method 
of  ascertaining  the  measure  of  this  indemnity  in  both  cases,  and 
accordingly,  where  a  market  yalue  for  the  article  exists,  the  law 
has  adopted  that  standard. 

Some  other  rulings  of  the  court,  in  respect  to  the  rejec- 
tion of  questions  put  1^  the  defendant's  counsel,  are  to  be 
considered.  The  first  was  an  inquiry  as  to  the  market  yalue 
of  madder  on  the  day  when  by  the  contract  it  should  haye 


184  Dana  v.  Fzedlee  [New  York* 

been  delivered  in  as  large  a  quantify  as  one  hundred  and 
fifty  casks.  This  inquiiy  i?as  rejected*  unless  it  was  first 
shown  that  there  was  a  market  value  for  the  article  in 
such  quantities.  The  limitation  thus  imposed  by  the  court 
was  correct ;  for  otherwise  the  question  only  called  upon  the 
witness  to  speculate  upon  the  probable  consequences  of  attempt- 
ing to  buy  or  sell  such  a  quantify  upon  the  day  when  the  de- 
livery ought  to  have  been  made.  If  admitted,  it  would  have 
brought  to  the  consideration  of  the  juzy  the  same  question  we 
have  already  concluded  that  they  were  not  to  pass  upon.  It 
moreover  called  for  no  matter  of  fact  within  his  knowledge,  bat 
only  for  his  judgment  upon  a  question  as  to  which,  if  a  judg- 
ment was  necessary  to  be  formed  by  anybody,  the  juzy  were  the 
proper  tribunal,  and  were  competent  to  form  it.  Another  ques- 
tion alluded  to  was  asked  in  these  terms  :  *'  What  is  the  dif- 
ference in  the  price  of  madder  on  sales  as  large  as  one  hundred 
and  fiffy  tons  and  sales  of  two,  three,  or  five  tons?"  This 
question  called  upon  the  witness  for  some  average  estimate  to 
be  formed  by  him  as  to  the  difference  in  price  spoken  of,  and  not 
for  facts  lying  within  his  knowledge,  and  was  on  that  account 
properly  excluded.  Nor  do  I  think  it  was  proper,  by  way  of 
founding  an  argument  upon  the  answer  sought  for,  that  the 
plaintiff  should  be  limited  to  such  a  price  as  could  be  procured 
for  the  whole  quantify  of  one  hundred  and  fiffy  tons  in  a  single 
sale.  No  facts  were  in  evidence  to  warrant  the  supposition  that 
the  plaintiffs  could  have  procured  the  quantify  which  the  de- 
fendant had  agreed  to  deliver  to  them  by  a  single  purchase.  In 
the  absence  of  such  facts,  at  least,  the  inquiiy  was  in  that  aspect 
irrelevant.  In  every  other  aspect  it  only  presented  the  same 
question  which,  upon  this  branch  of  the  case,  was  first  con- 
sidered. Another  question  arises  upon  the  exclusion  of  an  in- 
quiry by  the  defendant's  council  as  to  the  range  of  the  market 
value  of  madder  for  a  period  of  three  months  before  and  after 
the  day  when  the  delivery  was  due.  As  no  sales  were  shown  on 
the  precise  day,  it  was  necessary  to  have  recourse  to  sales  before 
and  after  the  day,  and  for  that  inquiiy  a  reasonable  range  in 
point  of  time  was  allowable;  but  in  some  degree,  the  extent  of 
time  which  shall  be  included  in  such  an  inquiiy  mustiest  in  the 
discretion  of  the  court  which  tries  the  cause.  Sales  were  shown 
in  this  case  on  the  tenth  and  fifteenth  of  April.  From  a  subse- 
quent alteration  in  the  price,  no  legitimate  inference  could  be 
drawn  as  to  the  market  value  prior  to  those  sales;  and  the 
question  put  was  too  broad  in  its  terms  and  embraced  too  great 


Dec  1854]  Daka  v,  Frdler  1M 

&  period  of  time  to  entitle  the  defendant  to  indsty  as  matter  id 
right,  upon  its  being  allowed  to  be  put. 

Another  ground  of  objection  to  the  judgment  is  that  the 
general  term  of  the  common  pleas,  lumng  decided  that  the 
JTxdgeat  the  trial  erred  in  instmoting  the  jury  that  interest  was  to 
be  reooYered  as  part  of  the  damages  upon  the  amount  of  dif- 
ference between  the  contract  price  and  the  market  Talue,  dii 
not  grant  a  new  trial  absolutelj,  but  only  in  the  eyent  that  the 
plaintiffs  should  refuse  to  strike  out  the  amount  of  interest 
which  had  been  separately  assessed  by  the  jury,  and  in  case  of 
their  consent,  denied  a-new  trial  and  awarded  costs  to  them. 

I  think  the  decision  at  the  trial  was  correct  upon  principle. 
Interest  is  a  necessary  item  in  the  estimate  of  damages  in  this 
class  of  cases.  The  party  is  entitled  on  the  day  of  performance 
to  the  property  agreed  to  be  delivered;  if  it  is  not  delivered,  the 
law  gives,  as  the  measure  of  compensation  then  due,  the  differ- 
ence between  the  contract  and  market  prices.  If  he  is  not  also 
entitled  to  interest  from  that  time  as  matter  of  law,  this  contra- 
dictory result  follows:  that  while  an  indemnity  is  professedly 
given,  the  law  adopts  such  a  mode  of  ascertaining  its  amount 
that  the  longer  a  party  is  delayed  in  obtaining  it  the  greater 
shall  its  inadequacy  become.  It  is,  however,  conceded  to  be 
law  that  in  these  cases  the  jury  may  give  interest  by  way  of 
damages  in  their  discretion.  Now  in  all  cases,  unless  this  be 
an  exception,  the  measure  of  damages  in  an  action  upon  a  con- 
tract relating  to  money  or  property  is  a  question  of  law,  and 
does  not  at  all  rest  in  the  discretion  of  the  jury.  If  the  giving 
or  refusing  interest  rests  in  discretion,  the  law,  to  be  consistent, 
should  furnish  some  legitimate  means  of  influencing  its  exercise 
by  evidence,  as  by  showing  that  the  party  in  fault  has  failed  to 
perform,  either  willfully  or  by  mere  accident,  and  without  any 
moral  misconduct.  All  such  considerations  are  constantly  ex- 
cluded from  a  jury,  and  they  are  properly  told  that  in  such  an 
action  their  duly  is  to  inquire  whether  a  breach  of  the  contract 
has  happened,  not  what  motives  induced  the  breach. 

That  by  law  a  party  is  to  have  the  difference  between  the  con- 
tract price  and  the  market  price,  in  order  that  he  may  be  indem- 
nified, and  because  that  rule  affords  the  measure  of  his  injury 
when  it  occurred;  that  he  may  not,  as  matter  of  law,  recover 
interest,  which  is  necessary  to  a  complete  indemnity;  that  nev- 
ertheless the  jury  may,  in  their  discretion,  give  him  a  complete 
indemnity  by  including  the  amount  of  interest  in  their  estimate 
of  his  damages;  but  that  he  may  not  give  any  evidence  to  infln- 


ISe  DiHA  v.  Fdedubb.  [New  Torii; 

anoe  tUbt  diaeietion,  prasentB  a  series  of  pioposiiions  some  of 
which  can  not  be  law.  The  case  of  Van  Benndaer  r.  JeweU^  % 
N.  Y.  141  (61  Am.  Dec  275],  establishes  a  principle  broad 
enough  to  indode  this  case,  and  has  freed  the  law  from  this  as 
well  as  other  apparent  inconsistenoieB  in  which  it  was  supposed 
to  hsTS  become  inyolTcd.  The  right  to  interest  in  actions  Upon 
contract  depends,  not  ai)on  discretion^  bat  npon  legal  right, 
and  in  actions  like  the  presentis  as  much  a  partof  theindemniiy 
to  which  the  party  is  entitled  as  the  difference  between  the  mar- 
ket Talue  and  the  contract  price.  If,  therefore,  the  general  term 
committed  any  error,  it  is  not  one  of  which  the  defendant  can 
complain,  as  it  was  in  his  fsTor,  and  deprived  the  plaintiffs  of 
part  of  the  relief  to  which  they  were  by  law  entitled. 
The  judgment  should  be  affirmed. 

All  the  judges  concurred  in  the  foregoing,  as  to  explaining 
the  written  contract  by  parol  CTidence,  except  GABDnnsB,  0.  J. 

They  all  concurred,  also,  in  that  part  of  the  opinion  as  to  the 
right  to  recover  interest,  except  Sxldsn,  J. 

DsNio,  BuGOLBs,  Edwabds,  and  Allen,  JJ.,  concurred  in  the 
result  of  the  opinion,  that  no  evidence  as  to  the  market  value  of 
madder  at  the  time  for  its  delivery  was  improperly  excluded. 

Gabdisxb,  0.  J.,  and  Pabsxb  and  Seldxn,  JJ.,  were  of  opin- 
ion that  evidence  touching  the  market  value  of  the  madder 
erroneously  excluded,  and  on  this  ground  were  in  favor  of 
versing  the  judgment. 

Judgment  affirmed. 

Parol  Bvidbnoi,  ADMiasxBiLiTr  or,  to  Rxplaxn  WBimv  ImrrBummt 
See  Dam%9  r.  BaU,  53  Am.  Deo.  63,  note  55|  Bram^ield  v.  Br<wi\fiM^  51  Id. 
590,  note  594;  Unum  Bank  ▼.  ifedbfr,  50  Id.  559;  Baldwin  v.  CarUr^  42  Id. 
735,  note  739,  where  other  oases  are  ooUeoted.  Where  oharacters,  marks,  or 
technical  terms  are  used  in  a  particnlar  business,  unintelligible  to  penooa 
unacquainted  with  such  business,  and  oocnr  in  a  written  instrument,  their 
meaning  may  be  explained  by  parol  evidenoe,  if  the  explanation  is  oondstant 
with  the  terms  of  the  contract:  CoUender  ▼.  Dinsmort^  55  N.  Y.  206,  dting 
the  principal  case.  Evidence  of  accompanying  dreumstances  is  admissible 
to  expUin  a  contract:  New  York  B,  A  B,  Co.  v.  Wathinglon  F,  /.  Gb.,  10 
Boew.  433;  Hagan  v.  Domuiie  8.  M,  Co.,  9  Hun,  76;  Block  ▼.  Coimmbian 
/sM.  Co.^  3  Bobt.  307*  all  dting  the  principal  case.  In  Storeif  v.  Salonum^  e 
Daly,  540,  it  was  dedded,  dting  the  prindpal  caae,  that  the  words  "  settled 
at  market  72},"  indorsed  upon  a  straddle,  oould  be  understood  by  a  court 
without  the  aid  of  expert  testimony. 

Mkasure  or  Bamaqbs  tor  Breach  or  Contract  to  Dbuvxb  Goods  Sold: 
See  McKwght  r.  DwUop,  55  Am.  Dec  370^  note  375,  where  other  oaaee  are 
toUeeted;  HiUebraiU  ▼.  Brewer,  Id.  757,  note  762;  in  Tcrka  t.  Ver  Pkmck^ 


Dec  1854.]  Trottxb  v.  Hughb.  1S7 

66BHl)L321;5bM(liT.  2Ihiifley,4Dftl7,  89;  yaumtm  ▼.  Oaliwdl,  t  Bwmmft 
21 7;  and  in  Orr  T.  Bigeiaw,  14  N.  T.  561 ,  ftU  citing  the  prinefpnl  mm,  H  «w 
dedded  that  the  tma  role  of  damagw  for  the  brendi  of  a  oontnet  to  dellvw 
merehandiM  eold  ia  tlie  difference  between  the  contract  price  and  the  talne 
on  the  day  ^Hiea  it  ahonld  have  been  deliTered;  and  in  lUkeil  ▼.  IftMuu^ 
88  Berbw  230;  Wekle  t.  Hamkmd,  09  N.  T.  400;  OaUmg  t.  Newdl,  12  Ind. 
125;  and  C!^  o/  MempkU  r.  Aroma,  20  WalL  805,  it  wm  held,  dting  the 
pnndpal  caae,  that  in  an  action  on  a  contract  for  the  non-deUTery  of  ner- 
dianHiiw  the  plaintiff  ia  entitled  to  recover  the  difference  between  the  contrad 
price  and  the  market  value  of  the  gooda  at  the  time  and  place  apecified  for 
the  delivery,  with  intereat  thereon;  in  Hasmmeftr  v.  CWimifi^Aam,  8S  Barb. 
£22;  a  a,  22  How.  Pr.  90;  and  in />iir«(  v.  .Stoton,  47  N.  T.  174,  both  citing 
the  principal  caae,  it  waa  decided  that  the  rale  of  damagea  for  not  delivering 
ngar  aold  waa  the  difference  between  the  market  value  on  the  day  ol  delivery 
and  the  price  agreed  to  be  paid;  and  in  (^Wrie  v.  ITAtte,  0  Abb.  Pr.,  N.  8.» 
386;  S.  C,  37  How.  Pr.  303;  S.  C,  1  Sweeny,  208,  citing  the  principal  caeab 
it  ma  held  that  the  meaanre  of  damagea  for  the  breach'  of  a  contract  to 
deliver  atocka  on  time,  where  the  vendee  haa  not  paid  the  porehaae  mooey  ia 
advaaoe,  ia  the  difference  between  the  contract  price  of  the  atock  and  the 
market  price  on  the  day  of  the  breach,  with  intereat  from  that  day;  In 
GnvreyaOoa  BM  Slckhnr,  Centred  Predf^Unaa  Ckurck,  10  Abb.  Pr., K.  &, 
488,  it  waa  decided,  citing  the  principal  caae,  that  the  general  rule  ia  thai 
the  loaa  of  the  bargain  cooatitntea  the  proper  rale  of  damagea. 

Pluntiff  u  Bntitlsd  to  Ihtebist  on  the  damagea  awarded,  in  an  aetm 
for  the  breach  of  a  contract,  from  the  time  of  the  breach  until  the  triali 
BtatkY,  Camden ie  A,  R,R.  Ca, 45  Barb.  43;  Cototn^  v. i/oMunf^  46 Id.  684| 
Lahman  v.  OrliMwff,  5  Bosw.  038;  PrtfiUy  v.  Michigan  8.  S  N.  Tnd.  R.  R. 
Ox,  1  Hun,  667;  S.  C,  4  Thomp.  ft  G.  242;  Andreum  v.  Durani,  18  K.  T. 
m;  AdamM  v.  F\aH  Plain  Bank,  36  Id.  261;  VamUvoort  v.  Gould,  Id.  646| 
De  LavaUeite  v.  Wendt,  76  Id.  682;  WhUe  v.  AfiUer,  78  Id.  396;  Oreer  t. 
Ma^or  etc,  of  If.  T.,  3  Robt.  410;  Schwerin  v.  McKie,  6  Id.  423,  aU  citing 
the  principal  caae. 

HiBXXr  PRiCB. — ^In  ordinary  caaea,  evidence  of  the  market  price  of  property 
h  ooDfin«d  to  the  time  when  the  right  to  demand  payment  accraed,  or  to  a 
naaomLble  time  before  or  after  that  time:  /oaei  v.  Morgan,  24  Hun,  87S» 
dting  the  principal  caae.  Where  the  damagea  to  be  recovered  depend  upon 
market  value,  the  plaintiff  may  reaort  to  the  opinion  of  witneaaea  dealing  ia 
the  aame  article,  aa  formed  from  their  general  knowledge  of  the  buaineaat 
QrakamY.  Maiiland,  6  Abb.  Pr.,  N.  S.,  329;  S.  C,  37  How.  Pr.  309;  8.  a, 
1  Sweeny,  152,  citing  the  principal  caae.  Where  no  aalee  of  the  commodity 
took  place  at  the  place  of  delivery,  evidence  may  be  given  of  the  price  at 
other  placea,  for  the  purpoae  of  eetobUahing  the  market  price  at  the  place  of 
deliveiy:  Caken  v.  PlaiU,  69  N.  T.  352,  citing  the  principal  caae. 


Tbotteb  v.  Hughes. 

[la  Nxw  TOBX  (3  KmiAH),  74.] 

CfcAyw  Who  Assuxm  to  Pat  on  Mobtoaoi  as  Pabt  of  PuxoBAal 
Pbicx  ia  liable,  even  if  he  doea  not  execute  any  independent  bond  or 
covenant  to  indemnify  hia  grantor  againat  any  peraonal  liability  for  the 
mortgage  debt. 


188  Tbotteb  v.  Hughes.  [New  York, 

Apfbal  from  a  jadgment  reversing  a  judgment  of  the  city 
ooiirt  of  Brooklyn.  The  controversy  tamed  chiefly  on  matters 
of  fact,  but  involved  the  question  whether  defendants,  who  had 
purchased  a  house  and  land  ''  for  fourteen  hundred  dollar  mort- 
gage on  it,"  and  had  taken  a  conveyance  of  the  property  sub- 
ject to  mortgage  for  fourteen  hundred  dollars,  *'  which  mort- 
gage forms  the  consideration  money  in  the  deed,"  were  liable 
to  indemnify  the  grantor  against  a  deficiency  upon  foredoBore 
of  the  mortgage.  The  supreme  court  held  that  they  were,  and 
reversed  the  judgment  below,  which  ordered  a  diBmiftsal  of  the 
complaint;  and  the  defendants  appealed. 

James  Campbell^  for  the  appellants 

ITumuw  H.  Rodman^  for  the  respondent. 

By  Court,  Denio,  J.  If  Mrs.  Striker,  the  mortgagee,  had 
been  the  plaintiff,  and  had  sought  to  enforce  against  the  defend- 
ant Hughes  the  liability  which  is  insisted  upon  by  the  present 
plaintiff,  the  case  of  King  v.  WhUely,  10  Paige,  465,  would  have 
been  precisely  in  point  to  show  that  she  could  not  prevail.  If 
there  is  any  distinction  between  the  cases,  the  one  cited  is 
stronger  for  the  pretensions  of  the  mortgagee  than  the  one 
under  review.  There  the  party  seised  of  the  equity  of  redemp- 
tion had  conveyed  the  mortgaged  premises  to  the  defendants, 
subject  to  the  mortgages  thereon,  and  the  conveyance  recited  that 
the  grantees  assumed  the  payment  of  such  mortgages,  and  were 
to  pay  them  off  as  a  part  of  the  consideration  of  the  convey- 
ance; while  in  this  case  there  is  no  undertaking  in  terms  by  the 
defendant,  either  in  the  preliminary  contract  or  in  the  convey- 
ance, to  pay  off  the  mortgage.  All  that  is  said  is,  that  the  con- 
veyance is  subject  to  the  mortgage,  and  that  the  latter  forms  the 
consideration  of  the  deed.  No  distinction  in  principle  arises 
out  of  the  fact  that  in  the  case  referred  to  the  defendants  did 
not  execute  the  deed,  and  that  in  the  one  under  consideration 
the  defendant  signed  the  contract  which  preceded  the  convey- 
ance. In  this  class  of  cases  the  acceptance  of  a  conveyance 
containing  a  statement  that  the  grantee  is  to  pay  off  an  incum- 
brance binds  him  as  effectually  as  though  the  deed  had  been  irder 
partes,  and  had  been  executed  by  both  grantor  and  grantee: 
Ealsey  v.  Reed,  9  Paige,  446;  GuHis  v.  Tyler,  Id.  432;  Blyerr. 
MonkoUand,  2  Sandf.  Ch.  478;  Rawson's  Adm'x  v.  Copland,  Id. 
251;  Ferris  v.  Crawford,  2  Denio,  595.  In  the  case  first  referred 
to,  as  well  as  in  the  one  now  before  the  court,  the  grantor  was 
not  personally  holden  to  pay  the  mortgage  debt.   While  he  oon- 


Dee.  1854.]  Tbotfeb  v.  Hughib.  189 

tinued  to  own  the  equity  of  ledemption,  he  was  interested  to 
have  thai  debt  paid,  because  it  was  a  barden  upon  his  estatei 
but  when  he  parted  with  the  land,  he  had  no  farther  connection 
with  the  mortgage,  and  was  only  concerned  to  have  his  conTej- 
ance  contain  such  expressions  as  would  qualify  the  general  terms 
of  his  coTcnants  of  title,  and  protect  him  from  the  conse- 
quences of  an  eviction  by  paramount  title  derived  from  the 
ncortgage.  The  chancellor  held  in  the  case  cited  that  where  a 
party  thus  situated  conveys  the  mortgaged  premises  subject  to 
the  mortgage,  and  the  grantee  engages  to  pay  it  off,  such  agree- 
ment must  be  construed  as  a  mere  declaration  that  the  property 
was  conveyed  to  him  subject  to  the  Uen  of  the  mortgage  thereon, 
and  that  the  general  covenants  of  seisin  and  warranty  in  the 
conveyance  are  not  intended  to  extend  to  this  particular  in- 
cumbrance, of  which  the  grantee  assumed  the  payment  in  case 
he  should  vidsh  to  retain  the  title  of  the  lands  conveyed  to  him. 
We  are  satisfied  that  the  conclusion  is  in  accordance  with  the 
intentdons  of  the  parties,  and  is  a  sound  exposition  of  the  law. 
Where  a  mortgagee  is  permitted  to  resort  to  a  subsequent 
grantee  of  the  mortgaged  premises,  who  has  agreed  with  his 
grantor  to  pay  off  the  mortgage,  to  recover  a  deficiency  after 
applying  the  proceeds  of  the  sale,  it  is  by  virtue  of  the  doctrine 
of  subrogation  in  equity,  by  which  the  creditor  is  entitled  to  aU 
the  collateral  securities  which  the  debtor  had  obtained  to  re- 
enforce  the  primary  obligation.  The  mortgagor  in  such  a  case 
is  looked  upon  as  occupying  the  position  of  a  surety;  while  the 
grantee,  having  undertaken,  upon  a  competent  consideration,  to 
pay  the  debt,  is  regarded  as  the  principal  debtor:  Hahey  v.  Beed^ 
ffupra.  In  this  case  C.  W.  Trotter,  after  his  conveyance  to  the 
defendant  Hughes,  ceased  to  have  any  connection  with  the  mort- 
gage debt,  and  therefore  can  not  be  considered  as  a  surety  for 
its  payment;  and  for  this  reason  the  mortgagee  could  not  claim 
the  benefit  of  any  engagements  which  the  defendant  may  have 
contracted  with  him.  Mrs.  Striker,  the  mortgagee  in  this  case, 
has  no  title  to  call  upon  the  defendant  Hughes  to  respond  per- 
sonally for  this  debt.  He  would  be  a  necessary  party  defendant 
to  an  action  at  her  suit  to  foreclose  the  mortgage,  but  the  only 
remedy  she  could  ask  against  him  would  be  that  his  equity  of 
redemption  in  the  mortgaged  premises  should  be  foreclosed,  and 
that  the  land  might  be  sold  for  the  payment  of  the  debt.  She 
would  also  be  entitled  to  a  personal  decree  for  any  deficiency 
against  the  mortgagor  on  his  bond,  but  not  against  the  defend- 
ant Hughes,  who  had  incurred  no  personal  obligation  to  her,  of 


140  Tbotteb  v.  Huohbl  [New  York, 

to  any  one  to  wkoee  zightB  ehe  was  entitled  to  mioceed.  One 
objeotion  to  the  judgment  rendered  by  Uie  snpreme  oonrt  there- 
fore IB,  that  it  giyes  to  the  mortgagee,  who  is  made  a  defendant, 
a  remedy  against  Hughes  to  which  she  is  not  entitled,  for  by  its 
provisions  Hnghes  is  required  to  pay  to  her  any  deficiency  of 
the  mortgage  debt  which  may  remain  after  applying  thereto  the 
proceeds  of  the  sale  of  the  premises.  In  ^ect,  the  judgment 
is  precisely  such  as  would  have  been  rendered  upon  a  foreclos- 
ure suit  instituted  by  her,  if  it  had  been  determined  that  the 
defendant  Hughes  was  liable  to  her  for  such  deficiency.  This 
is  of  course  in  direct  hoetilify  to  the  case  of  King  t.  Whiidy^ 
mipra,  with  the  principles  of  which  we  have  expressed  our  ap- 
probation. 

Aside  from  the  rights  of  Mrs.  Striker,  there  is  no  ground  for 
sustaining  this  suit.  Hughes  was  to  pay  nothing  to  0.  W. 
Trotter  for  the  land,  the  sole  consideration  between  them  being 
the  mortgage  debt  due  to  Mrs.  Striker,  in  regard  to  which,  as 
before  remarked,  Trotter  had  no  interest  or  concern.  If  he  had 
brought  his  suit  instead  of  assigning  the  demand  to  the  plaint- 
iff, it  would  haye  been  impossible  for  him  to  show  that  he  had 
any  interest  in  its  determination,  one  way  or  the  other.  Indeed, 
he  could  have  no  possible  legal  or  pecuniary  motive  for  institut- 
ing such  an  action,  as  he  would  have  been  a  stranger  to  the  sub- 
ject of  the  litigation. 

The  plaintiff,  it  is  true,  has  a  very  obvious  motive  in  sustaining 
a  judgment  which  shifts  the  personal  liability  for  any  deficiency 
which  may  arise  from  his  own  shoulders  upon  those  of  Hughes. 
His  difficulty,  however,  is  that  he  has  no  equitable  right  to  ask 
for  such  a  transfer  of  that  burden.  Independentiy  of  the  as- 
signment from  G.  W.  Trotter,  he  could  not  require  Hughes  to 
stand  between  him  and  such  a  liability,  for  he  neglected  to  re- 
quire an  engagement  to  that  effect  from  the  person  to  whom  he 
conveyed  the  premises.  So  far  as  is  shown,  he  rested  satisfied 
that  tiiey  would  sell  for  sufficient  to  pay  the  mortgage  debt,  and 
conveyed  simply  by  a  quitclaim  deed.  By  the  assignment,  he 
acquired  no  other  rights  than  such  as  0.  W.  Trotter  had,  and 
we  have  seen  that  he  had  none  whatever  as  against  Hughes.  He 
rested  satisfied  with  a  statement  in  his  contract  and  conveyance, 
the  legal  effect  of  which  was  that  he  would  not  guarantee  against 
the  effect  of  the  mortgage,  and  that  ^ughes  should  himself  sat- 
isfy it  if  he  wished  to  protect  the  land  against  it.  The  plaint- 
iff s  situation  was  not,  therefore,  improved  by  his  assignment. 

I  am  of  opinion  that  the  dty  court  of  Brooklyn  was  ri^t  ii 


Dec  1864.]  Tbotteb  t;.  HuoHxa.  141 

its  judgmenty  bj  which  the  oomplaint  was  fli»iniBHftd  with  oostiy 
and  that  such  judgment  ahoxdd  be  affirmed  and  the  judgment  of 
the  supreme  court  rerersed. 

All  the  judges  except  Buoeiju,  J.,  who  took  no  part  in  the 
decision,  concurred. 

Judgment  accordingly. 

Whsbs  Mobtoaokd  PsxinsBB  AXE  OomnrsD  Subjsot  to  MosaoAm,  ttis 
purchaaer  aBaaming  the  payment  of  the  mor^jage  m  a  part  of  the  pnmhm 
money,  the  Umd  pnrohaaed  is,  in  his  hands,  the  primary  fond  for  the  paymoil 
of  the  mortgage:  See  Ruaaell  y.  Piator,  67  Am.  Deo.  509,  note  612,  and  the 
cases  there  dted.  The  aooeptanoe  of  a  oonTeyanoe  containing  words  import- 
ing that  the  grantee  wiQ  pay  a  mortgage  whioh  is  a  lien  upon  the  premiseSi 
and  referred  to  in  the  deed,  imposes  npon  him  an  engagement  to  do  so:  Oof* 
Una  V.  Bofwe,  1  Abb.  X.  C.  09;  StMina  ▼.  HaU,  29  Barb.  633;  Fbrd  t. 
David,  1  BoBW.  600;  DoolUtle  v.  Naylor,  2  Id.  225;  WhUxng  y.  Otarty,  14 
Hun,  500;  AOaniic  Dock  Co.  v.  LwmU,  54  K.  T.  39;  Thaytr  ▼.  Mcarah^  75 
Id.  342,  all  citing  the  principal  case.  The  acceptance  of  such  a  deed  binds 
the  grantee  as  effectoally  as  though  the  deed  ha4  been  made  itder  partea,  and 
had  been  executed  by  both  grantor  and  grantee:  Creuo/ard  ▼.  Edwarda^  St 
MiciL  359,  citing  the  principal  case.  And  a  mortgagee  may  maintain  a 
personal  action  against  a  grantee  of  the  mortgaged  premises  who  has  flitimmful 
to  pay  the  incumbrance:  ^tirr  v.  Been,  24  N.  T.  179,  citing  the  principal 
ease.  But  when  a  grantor,  in  whose  conveyance  there  is  contained  a  stipida* 
tion  to  pay  the  mortgage  debt,  was  not  himself  personally  liable  for  the  debt* 
the  holder  of  the  mortgage  acquired  no  right  to  resort  to  the  grantee  for  pay- 
ment: Real  Eataie  T.  Co.  ▼.  Bakh,  46  Super.  Ct.  631,  citing  the  principal 
case.  If  a  grantor  is  not  personally  liable  for  the  mortgage  debt,  the  mort- 
gagee can  not  look  to  the  grantee  personally  at  all:  Mount  v.  Van  Neaa,  33 
N.  J.  £q.  265,  citing  the  principal  case.  Tlie  mere  fact  that  premises  are 
conTeyed  subject  to  a  mortgage  does  not  make  the  grantee  liable  to  pay  the 
mortgage:  Binaae  t.  Paige,  I  Abb.  App.  Dec.  142;  8.  C,  I  Keyes,  89,  citing 
the  principal  case.  A  sale  and  conveyance  of  land  with  covenants  of  war* 
ranty,  subject,  however,  to  a  prior  mortgage,  does  not  of  itself,  and  without 
«  further  showing,  amount  in  law  to  a  promiw  to  pay  off  such  incumbrance 
jmd  discharge  the  mortgage  debt:  Lawia  v.  Day,  63  Iowa,  679,  citing  the 
principal  case.  In  Vrooman  v.  Tumar,  8  Hun,  80,  Dykman,  J.,  said  that 
the  principal  case  decided  that  where  the  grantor  in  a  conveyance  is  not  per- 
sonally liable  to  the  holder  of  the  mortgage  to  pay  the  same,  his  grantee  is 
not  liable  to,  although  assuming  in  terms  to  pay  it.  On  the  following  page, 
referring  to  the  principal  case,  he  said:  "But  whatever  else  may  be  said 
about  that  ease,  it  can  not  be  oonsldered  as  authority  since  the  case  of  Burr 
▼.  Beera,  24  N.  Y.  17^" 

In  Cktmaey  v.  Rogera,  47  N.  Y.  238,  Bapallo,  J.,  said  that  the  case  of  Burr 
V.  Beera,  24  N.  Y.  179,  though  apparently  in  conflict  with  TroUer  v.  Ilughea^ 
may  well  be  sustained  for  reasons  mentioned  by  Chancellor  Kent  in  Ou mfter- 
land  V.  CodringUm,  8  Johns.  Ch.  254.  In  T^lorp  v.  Keokuk  Coal  Co.^  48 
N.  Y.  258,  Earl,  C,  refening  to  the  opinion  of  Judge  Denio  in  the  prinoipa] 
ease,  said:  "But  later  the  learned  judge's  views  underwent  some  modifica- 
tion; and  in  Bwrr  v.  Beers,  he  placed  the  liability  of  the  grantee  who  has 
assumed  the  payment  of  a  mortgage  upon  the  broad  ground  that  if  one  per- 


142  Harmont  t;.  Binohajc.  [New  York. 

Km  makes  a  promiie  to  another  for  the  benefit  of  a  third  perND,  fhat  third 
perK>n  may  maintain  an  action  on  the  promiae.** 

Thx  principal  case  18  CITED  in  Patrdot  t.  Trtat^  82  N.  T.  388»  to  the 
point  that  a  covenant  to  pay  an  inonmbrance  can  not  he  enforoed  in  eqnity 
by  a  mortgagee,  when  the  grantor  in  the  oonveyance  in  whidh  the  oorenant 
ii  contained  is  not  perMnally  liable  to  pay  the  mori^;age  debt;  and  in  Wale§ 
▼.  Shenoood,  52  How.  Pr.  414,  to  the  point  that  the  aooeptanoe  of  a  deed, 
and  the  enjoyment  of  the  estate  created,  estop  the  grantee  from  denying 
his  covenants,  and  that  the  seal  attached  is  his  as  well  as  that  of  the  grantor. 

Party  Assuming  to  Pat  Mortoaob  Debt  Becoicbs  Principal  Derok, 
and  he  whose  debt  he  assumes  occupies  the  position  of  a  snrety:  F^gari  ▼. 
Halderman^  75  Ind.  567,  citing  the  principal  case.  See  also  noto  to  RuueU 
T.  PUtor,  57  Am.  Dec  613. 

The  principal  case  is  DisTiNOinBHED  in  Dougkua  t.  GhMS,  66  How.  Pr^ 
SSI;  and  in  Douglau  t.  WeUi,  67  Id.  S80;  S.  G,  18  Hon,  91. 


Habmony  i;.  Binqham. 

4 

[la  1^^  ToBX  (3  KnxAJi),  99.] 

Carrier  is  Liable  on  his  Express  Contract  to  Delxveb  within  a  sped* 

fied  time,  notwithstanding  that  the  delay  of  which  plaintiff  complains 

was  caused  by  inevitable  accident. 
Patment  Made  to  Carrier  because  He  Demands  It  as  Freight,  for 

which  he  withholds  the  goods,  is  not  deemed  voluntarily  made,  but  (If 

the  sum  is  excessive,  and  proper  and  timely  objection  Is  made)  may 

be  recovered  back. 
Plea  that  ip  Plaintipp  has  been  Damkipied  He  has  been  so  Only 

THROUGH  HIS  OwN  Wrono,  eto.,  is  applicable  only  in  an  action  on  a 

bond  of  indemmty. 

COYENANT  TO    Do  ACT    POR    SPECIPIED    PRICE  WITHIN  FiXED  TnCRi    Or  In 

case  of  delay  to  submit  to  a  reduction  of  price,  need  not  be  dedared  on 
as  a  covenant  in  the  alternative. 

Appeal  from  a  judgment  of  the  New  York  superior  court 
ftgainst  a  oarrying  company  for  damages  for  delay  in  transport- 
iBg  goods.    The  facts  appear  from  the  opinion. 

Albert  Matthews^  for  the  appellant,  the  carriers. 

Benjamin  W.  Bonney,  for  the  respondent,  the  shipper. 

"^y  Court,  Edwards,  J.  This  suit  was  brought  upon  a  cove- 
nant made  by  the  defendants  that  they  would  cany  and  trans- 
port from  the  city  of  New  York  to  Independence,  in  Ifissouri, 
and  would  safely  deliver  there  within  twenty-six  days  from  the 
first  day  of  April  then  next,  any  and  all  goods  which  the  plaint- 
iff might  send  by  their  transportation  line  on  or  before  the  said 
first  day  of  April,  at  certain  prices,  which  were  particularly  men- 
tioued.    This  covenant  is  absolute  and  unqualified. 


Dee.  18M.]  Habmont  v.  Bikqhail  148 

It  is  a  weU-Bettled  role  that  where  the  law  creates  a  duty  or 
charge,  and  the  party  is  disabled  from  pezfonamg  it  without 
any  de&nlt  in  himself,  and  has  no  remedy  over,  then  the  law 
will  excuse  him;  but  where  the  party,  by  his  own  contract  ere- 
atesadutyor  charge  upon  himself,  he  is  bound  to  make  it  good, 
notwithstanding  any  accident  or  delay  by  incTitable  necessity, 
because  he  might  have  provided  against  it  bycontract:  ParO' 
dine  v.  Jane,  Aleyn,  26;  Shubrick  v.  Salmond,  8  Burr.  1637; 
Hadley  v.  Clarke,  8  T.  B.  259;  Hand  v.  Baynes,  4  WharL  204 
[33  Am.  Dec.  54];  Beebe  v.  Johnmm,  19  Wend.  500  [82  Am. 
Dec.  518];  Angell  on  Carriers,  sec.  294;  Chit.  Cont.  787.  This 
rule  has  been  uniformly  followed,  and  that,  too,  even  in  cases 
in  which  its  application  has  been  considered  by  the  court  as 
attended  with  great  hardship.  The  only  exception  which  .has 
e?er  been  acknowledged  is  where  a  party  has  contracted  to  do 
a  thing  which  the  law  considers  impossible:  Co.  lit.  206  b; 
Shep.  Touch.  164;  Be.d>e  v.  Johnson,  supra.  In  this  case  the 
referee  has  not  found  that  the  thing  covenanted  to  be  done 
could  not  by  any  means  be  accomplished,  and  there  is  no  fact 
bom  which  we  can  draw  any  such  inference.  It  is  said,  how- 
ever, that  the  carrier's  receipt,  which  was  given  by  the  defend- 
ants to  the  plaintiff,  qualifies  the  covenant.  Whether  the  cov- 
enant cotdd  under  any  circumstances  be  thtis  qualified  it  is 
not  necessary  to  inquire.  It  is  sufficient  for  the  present  pur- 
pose that  the  receipt  is  in  no  respect  inconsistent  with  the  cove- 
nant The  part  relied  upon  merely  excepts  damage  to  the  goods 
by  unavoidable  accident,  and  it  makes  no  exception  in  case  of 
delay  in  their  delivery. 

The  covenant  further  provides  that  in  case  of  faflure  to  de- 
liver the  property  at  the  time  and  place  agreed  upon,  the 
defendants  ''shall  deduct  ten  cents  per  hundred  pounds 
from  the  freight  bill  for  every  day  that  the  goods  are  delayed.'' 
It  appears  from  the  case  that  the  goods  were  not  delivered  until 
some  days  after  the  twenty-sixth  of  April,  and  that  the  agents 
of  the  defendants  refused  to  make  any  deduction  from  the 
freight  by  reason  of  such  delay.  It  further  appears  that  the 
plaintiff  insisted  upon  a  deduction,  and  that  finally,  in  order  to 
obtain  possession  of  his  goods,  he  paid  the  amount  of  freight 
demanded.  The  defendants  now  contend  that  this  payment  was 
Tolontary,  and  that  the  plaintiff  is  not  entitled  to  recover  for 
the  non-performance  of  the  covenant. 

Before  examining  the  question  whether  the  payment  made  by 
the  plaintiff  was  voluntary  or  not,  it  is  proper  to  refer  to  the 


144  Habmont  v.  Binqhajc.  [New  York* 

cases  upon  this  subject,  as  there  ia  an  appazent,  although  I 
think  no  real,  discrepancy  in  the  decisions. 

In  the  case  of  AsUey  y.  Reynolds^  2  Stza.  915,  the  phuntiff 
had  pawned  plate  with  the  d^endant  to  secure  the  payment  of 
twenty  pounds,  and  at  the  end  of  three  years  came  to  redeem 
it.  The  defendant  insisted  on  the  payment  of  ten  pounds  for 
interest,  which  the  plaintiff  refused  to  pay;  but  finding  it  im* 
possible  to  obtain  his  properly  upon  any  other  terms,  he  paid 
the  sum  demanded,  and  brought  his  action  for  the  surplus  be- 
yond legal  interest.  The  court,  in  giving  their  opinion,  say: 
"  The  cases  of  payment  by  mistake  or  deceit  are  not  to  be  dis- 
puted, but  this  case  is  neither;  for  the  plaintiff  knew  what  he 
did,  and  in  that  lies  the  strength  of  the  objection.  But  we 
think  that  this  is  a  payment  by  compulsion.  The  plaintiff  might 
have  such  an  immediate  want  of  his  goods  that  the  action  of 
trover  would  not  do  his  business.  When  the  rule,  VclenH  rum 
fii  injuria,  is  applied,  it  must  be  where  the  party  had  his  freedom 
of  exercising  his  will,  which  this  man  had  not  We  must  take 
it  be  paid  the  money  relying  upon  his  legal  remedy  to  get  it 
back  again."  This  decision  is  referred  to  with  approbation  by 
Lord  Mansfield  in  the  case  of  Smith  v.  Bromley,  3  Dougl.  695, 
and  I  have  not  found  any  English  case  in  which  it  has  been 
doubted.  In  the  case  of  Hall  v.  SchulU,  4  Johns.  240,  the  de« 
fendant  had  agreed  to  buy  the  land  of  the  plaintiff,  which  was 
to  be  sold  under  execution,  and  reconvey  it  to  him  on  payment 
of  the  money  advanced,  and  reasonable  compensation  for  his 
trouble.  The  defendant,  having  bought  the  land,  refused  to 
reconvey  it  unless  he  was  paid  three  hundred  dollars,  in  addi- 
tion to  the  principal  and  interest  of  the  sum  advanced;  and  the 
plaintiff,  in  order  to  obtain  his  land,  paid  the  sum  demanded, 
and  then  brought  his  action  to  recover  back  the  sum  paid.  The 
learned  justice  who  delivered  the  opinion  of  the  majority  of  the 
court,  in  reviewing  the  authorities,  referred  to  Aslley  v.  Bey^ 
nolds,  supra,  and  said  that  the  principle  of  that  case  had  been 
subsequently  overruled  by  Lord  Kenyon  in  the  case  of  KyiiJbbs  r. 
Uall,  1  Esp.  84.  In  the  last  case,  a  tenant  had  paid  a  larger 
sum  of  money  for  rent  than  he  admitted  to  be  due,  upon  a  threat 
made  by  his  landlord  to  distrain,  and  the  report  says  that  Lord 
Kenyon  was  of  opinion  that  this  could  not  be  deemed  a  pay- 
ment by  compulsion,  as  the  defendant  might  have,  by  a  replevin, 
defended  himself  against  a  distress.  I  should  rather  say  that 
Lord  Kenyon,  instead  of  intending  to  overrule  the  principle  laid 
down  in  AaUey  v.  Reynolds,  9wpra,  placed  his  decision  upon  th« 


Dec  1854.]  Habmont  v.  BQfQHAK.  145 

ground  of  the  peculiar  effieacy  and  appropiiateneBS  of  tlie  aotioii 
of  reploTin  in  a  case  of  illegal  distress.  In  the  snbsequent  caaa 
of  Carivorighl  t.  Rowley^  2  Id.  722,  Lord  Eenjon  says  that  monej 
may  be  recovered  back  in  an  action  of  ai&tumpmi  when  it  has 
been  paid  in  conseqoence  of  coercion;  and  by  way  of  illnstra- 

tion  be  says:   "I  recollect  a  case  of v.  PiggoU,  where 

this  action  was  brought  to  recover  back  money  paid  to  tha 
steward  of  a  manor  for  producing  at  a  trial  some  deeds  and 
courtprollSy  for  which  he  had  charged  extravagantly.  The  ob- 
jection was  token  that  the  money  had  been  paid  voluntarily,  and 
so  could  not  be  recovered  back  again;  but  it  appearing  that  the 
parly  could  not  do  without  the  deeds,  so  that  the  money  was 
paid  through  necessity  and  the  urgency  of  the  case,  it  was  held 
io  be  recoverable."  In  the  case  of  Smith  v.  Bromley^  supra, 
money  had  been  advanced  by  a  sister  of  a  bankrupt  to  induce 
a  creditor  to  sign  a  certificate,  which  he  refused  to  do  without 
tach  advance.  An  action  to  recover  back  the  money  was  sus- 
tained. In  the  opinion  which  was  delivered  in  the  case  of  Hall 
T.  SkuUze,  supra,  it  is  said  that  the  action  was  sustained  as  com- 
ing within  the  letter  and  reason  of  the  statute  which  prohibited 
BQcb  inducements  being  taken.  I  think  that  an  examination  of 
the  report  will  show  that  the  action  was  not  sustained  solely 
upon  that  ground,  irrespective  of  other  considerations;  for  Lord 
Mansfield  says:  "  It  is  argued  that  as  the  plaintiff  founds  her 
claim  on  an  illegal  act  she  should  not  have  relief  in  a  court  of 
justice.  If  the  act  is  in  itself  immoral,  or  a  violation  of  the 
general  rules  of  public  policy,  then  the  party  paying  shall  not 
bave  this  action;  for  when  both  parties  are  equally  criminal 
against  such  general  laws  the  rule  is.  Potior  est  condilio  defenden- 
hg.  But  there  are  other  laws  which  are  calculated  for  the  pro- 
tection of  the  subject  against  oppression,  extortion,  deceit,  etc. 
If  such  laws  are  violated,  and  the  defendant  takes  advantage  of  the 
plaintiff's  condition  or  situation,  then  the  plaintiff  shall  recover." 
And  he  adds:  "  This  does  not  depend  on  general  reasoning  only, 
but  there  are  analogous  cases,  as  that  of  Astley  v.  Reynolds.** 
But  notwithstanding  some  of  the  views  which  were  expressed 
by  the  court  in  the  case  of  HaJll  v.  ShulU,  supra,  the  decision 
itself  is  not  inconsistent  with  any  of  the  cases  which  were  made 
the  Bobject  of  comment,  for  the  opinion  of  the  court  concludes: 
"On  the  graund  that  there  existed  no  legal  right  on  the  port  of 
the  plaintiff  to  demand  or  enforce  a  conveyance — ^that  he  must 
be  considered  in  the  light  of  any  other  purchaser,  and  that  the 
defendants  might  make  their  own  terms,  and  that  the 

Ax.  Dmo,  Vol.  LXII— 10 


146  Harmony  v.  Bingham.  [New  York, 

has  Yoltintariljy  and  ynXk  his  eyes  open,  fixed  the  compenBatioD 
claimed  by  the  defendants,  and  paid  them  the  money;  he  can 
have  no  claim  to  call  on  the  court  to  aid  him  in  getting  rid  of 
what  he  conceiveB  an  unconscientious  advantage;  but  if  there 
did  exist  a  legal  remedy  to  enforce  a  reconveyance,  as  the  meas- 
ure of  the  defendant's  claim  to  compensation  rested  in  arbitrary 
discretion,  the  plaintiff,  by  voluntarily  acceding  to  the  terms 
proposed  by  the  defendants,  has  lost  any  right  to  call  on  a  jury 
to  relieve  him  from  any  allowance  deliberately  fixed  by  himself." 
From  this  opinion  Thompson,  J.,  dissented.  In  the  case  of 
Shaw  V.  Woodcock,  7  Bam.  &  Cress.  78,  the  general  rule  is  laid 
down  that  a  payment  made  in  order  to  obtain  possession  of 
goods  or  propei*ty  to  which  a  party  is  entitled,  and  of  which  he 
can  not  otherwise  obtain  possession  at  the  time,  is  a  compul- 
sory, and  not  a  voluntary,  payment,  and  may  be  recovered  back. 
In  that  case  the  property  consisted  of  certain  policies  of  insur- 
ance belonging  to  the  plaintiff,  and  upon  which  the  assignees  of 
a  bankrupt  claimed  a  lien.  In  the  case  of  Alice  v.  Backhouse^ 
8  Mee.  &  W.  633,  649,  the  same  principle  was  recognized,  and 
Baron  Parke,  in  giving  his  opinion,  says  that  there  is  no  doubt 
of  the  proposition  that  if  goods  are  wrongfully  taken,  and  a  sum 
of  money  is  paid  simply  for  the  purpose  of  obtaining  possession 
of  the  goods  again,  without  any  agreement  at  all,  especially  if  it 
be  paid  under  protest,  that  money  can  be  recovered  back.  In 
the  case  of  Chase  v.  Dwinal,  7  Greenl.  134,  money  was  paid  to 
liberate  a  raft  of  lumber  detained  in  order  to  exact  illegal  toll, 
and  it  was  held  that  the  money  could  be  recovered  back,  on  the 
ground  that  it  was  a  payment  by  compulsion.  And  in  the  case 
of  Fleetwood  v.  GUy  of  New  York,  2  Sandf.  Ch.  475,  Sandford, 
J.,  says  that  the  principle  that  money  paid  when  there  is  no 
mistake  or  fraud  may  be  recovered  back  has  been  extended  oc- 
casionally to  cases  where  bailees,  or  others  who  came  into  the 
possession  of  goods  lawfully,  have  exacted  more  than  was  due 
before  they  would  relinquish  that  possession:  See  Clinton  y. 
Strojig,  9  Johns.  370;  Mipley  v.  GelsUm,  Id.  201  [6  Am.  Dec.  271  j. 
In  the  case  before  us,  according  to  the  provisions  of  the  agree- 
ment which  had  been  entered  into  between  the  parties,  the 
plaintiff  was  clearly  entitled  to  a  deduction  from  the  freight. 
The  property  consisted  of  merchandise  of  great  value,  which  had 
been  transported  to  a  remote  part  of  the  country,  in  reference  to 
a  commercial  adventure  in  Mexico.  Every  precaution  had  been 
taken  by  the  plaintiff  to  procure  its  transportation  in  the  shortest 
practicable  period.,  and  it  was  essential  to  his  interest  that  ha 


Dec.  1854]  Habmont  v.  Binqhaic.  147 

ghonld  obtain  possession  of  it  immediately  on  its  arrival.  The 
defendants  refused  to  deliver  the  property  without  the  payment 
of  a  greater  sum  for  freight  than  they  could  legally  claim.  The 
plaintiff  protested  against  the  payment  of  what  he  considered  an 
illegal  and  extortionate  charge,  and  finally,  from  the  necessity 
of  the  case,  and  for  the  purpose  of  obtaining  possession  of  his 
property,  he  paid  the  illegal  demand.  I  think  that  a  payment 
under  such  circumstances  should  not  be  considered  as  voluntary. 

The  other  questions  in  the  case  arise  upon  the  demurrer  to 
the  defendants'  second  plea.  The  plea  avers  that  if  the  plaint- 
iff has  been  damnified  by  reason  of  anything  in  the  articles  of 
agreement  mentioned,  he  has  been  so  damnified  of  his  own 
wrong  and  through  his  own  act,  and  concludes  with  a  verifica- 
tion. This  is  taken  from  a  form  which  is  found  in  the  books  of 
precedents,  and  which  is  applicable  only  to  a  bond  of  indem- 
nity, and  it  is  not  a  proper  defense  to  a  covenant  for  the  perform- 
ance of  a  particular  act,  such  as  the  transportation  of  property: 
Cutler  V.  Southern,  1  Saund.  116  a,  1;  Holmes  v.  BhodeSy  1  Bos. 
k  Pul.  638,  640,  and  note. 

But  it  is  contended  that  the  covenant  of  the  defendants  is  in 
the  alternative,  and  that,  as  it  has  not  been  so  counted  upon, 
the  declaration  is  defective.  The  covenant  is  that  the  defend- 
ants will  transport  the  plaintiff's  goods  to  a  particular  place 
within  a  particular  time,  for  a  price  or  sum  agreed  upon,  and 
that  in  case  of  failure  there  shall  be  a  deduction  from  such  price 
or  sum.  It  will  be  observed  that  it  is  not  a  coveiuuit  to  do  a 
specific  act  or  pay  a  sum  of  money.  The  act  which  is  to  be  per- 
formed by  the  defendants  is  the  transportation  of  the  property, 
and  the  consequence  of  non-performance  is  that  the  amount 
which  the  defendants  will  be  entitled  to  receive  will  be  reduced, 
or,  in  a  certain  event,  they  will  be  entitled  to  receive  nothing. 
The  receipt  of  a  less  sum  is  not  strictly  an  alternative  act  to  be 
done;  it  is  rather  in  the  nature  of  liquidated  damages  for  the 
non-performance  of  the  act  which  the  defendants  had  covenanted 
to  p^orm. 

I  think  the  judgment  should  be  afiirmed. 

RuooLBS,  J.  The  defendants'  second  plea  is  bad  on  demur- 
rer. In  the  action  of  covenant  an  excuse  for  the  non-perform- 
ance must  be  specially  pleaded,  and  the  nature  of  the  excuse 
must  be  specially  shown,  as  in  an  action  for  rent  that  the  de- 
fendant was  evicted,  or  that  the  plaintiff  omitted  to  perform  a 
condition  precedent:  1  Chit.  429,  ed.  1828;  487,  ed.  1861;  and 
iee  the  precedents  in  Covenant,  in  vol.  8.     The  defendants' 


148  Habmont  v.  Binohak  [New  YoA^ 

■econd  plea  in  this  case  does  not  apprise  the  plaintiff  of  the 
nature  of  the  defense,  bj  stating  what  wrong  or  default  had 
been  done  or  committed  by  the  plaintiff  to  defeat  his  action. 
There  is  no  precedent  for  such  a  plea  in  an  action  of  coTeuant, 
and  it  is  repugnant  to  the  general  principles  of  pleading,  hj 
which  a  defendant  is  bound  to  set  forth  his  defense  in  such 
manner  that  the  plaintiff  may  know  how  to  meet  it.  We  are  re- 
ferred to  ^  precedent  of  a  similar  plea  to  be  found  in  8  Chit. 
985,  ed.  1828.  But  that  was  a  plea  in  an  action  of  debt  upon 
a  bond  of  indemnity,  and  I  am  unable  to  perceiye  how  it  can  be 
reconciled  in  that  action  with  the'  general  rules  of  pleading 
unless  it  was  in  a  case  in  which  the  acts  against  which  the  in- 
demnity was  provided  were  in  themselves  illegal  and  tortious, 
and  the  indemnity  therefore  void  iii  law.  The  plea  in  the  pres- 
ent case  can  not  be  supported  upon  any  analogy  to  the  cases  in 
which  the  plaintiff  may  reply,  De  injuria  absque  taU  causa,  to  a 
defendants'  plea  in  excuse  of  the  act  complained  of.  I  think 
the  court  below  was  right  in  the  judgment  on  the  demurrer. 

The  question  between  these  parties  upon  the  merits  of  the 
case,  as  disclosed  by  the  referee's  special  report,  depends  on  the 
defendants'  liability  upon  the  covenant,  and  not  upon  the  law 
applicable  to  the  duty  of  a  common  carrier.  The  defendants 
covenanted  to  transport  the  goods  from  the  city  of  New  York  to 
Independence,  in  the  state  of  Missouri.  But  they  were  not 
bound  to  carry  them  there  by  any  particular  route  or  mode  of 
conveyance.  It  appears  from  the  contract  that  the  parties 
expected  the  goods  to  be  carried  by  way  of  Pittsburgh,  but  there 
was  no  covenant  on  either  side  that  they  should  go  by  that  route; 
and  if  they  had  been  sent  by  way  of  New  Orleans,  and  had  arrived 
in  season,  it  would  have  been  a  good  performance  of  the  defend- 
ants'  covenant. 

The  delay  in  repairing  the  Pennsylvania  canal  does  not  excuse 
the  defendants  for  not  delivering  the  goods  in  time.  The  cove- 
nant was  to  deliver  the  goods  within  twenty-six  days  from  the 
first  of  April.  No  provision  was  made  by  which  they  were  to 
be  discharged  from  the  obligation  upon  any  contingency  what- 
ever. It  is  a  well-settled  rule  of  law  that  where  a  party,  by  his 
own  contract,  absolutely  engages  to  do  an  act,  it  is  deemed  to 
be  his  own  fault  and  folly  that  he  did  not  thereby  expressly  pro- 
vide against  contingencies,  and  exempt  himself  from  responsi- 
bility in  certain  events;  and  in  such  a  case,  therefore,  that  is,  in 
the  instance  of  an  absolute  and  general  contract,  the  perform- 
ance is  not  excused  by  an  inevitable  accident  or  other  contin* 


Bee.  1854.]  Habmont  v.  Binqhaii.  1M 

gencj,  altfaoagh  not  foreBeen  bj  or  within  the  eontidl  ol  Um 
portj:  Chit  Oont.  734,  ed.  1842,  and  oases  cited;  see  Hddiy  t. 
Clark,  8  T.  B.  259;  Beebe  y.  Johnmi,  19  Wend.  500  [82  Am.  Deo. 
518];  Barr  y.  OraU,  4  Wheat.  214;  Brecknock  Co.  y.  FrOchard, 
6  T.  S.  750;  Angell  on  Carriers^  see.  294,  and  eases  eited. 

If  the  absolute  impossibilitj  of  deliyering  the  goods  at  Inde- 
pendence within  the  time  specified  woold  haye  excused  the  d^ 
fendants,  it  was  incumbent  on  them  to, show  it.  lliis  they  haye 
not  done.  For  aught  that  appears  in  the  case,  the  goods  might 
haye  been  forwarded  in  time  by  way  of  New  Orleans:  Beebe  y. 
Johmm,  19  Wend.  500.  We  are  ref eired  by  the  defendants'  ooun- 
ael  to  a  great  number  of  cases  to  proye  that  the  defendants  were 
excused  for  the  non-deliyeiy  of  the  goods  within  the  twenty-six 
days  mentioned  in  the  contract  by  the  fact  that  the  Pennsyl- 
Tsnia  canal  was  rendered  innayigable  by  the  act  of  God.  I  haye 
examined  them  all,  but  none  of  them  appear  to  me  to  sustain 
tus  proposition. 

The  construction  giyen  in  the  court  below  to  the  bill  of  LuUng 
was  correct.  It  was  a  contract  to  deliyer  the  goods  at  Pitts- 
burgh in  good  order,  "  all  unayoidable  accidents  excepted."  The 
exception  related  to  the  engagement  to  deliyer  in  good  order, 
and  not  to  the  coyenant  to  deliyer  them  within  the  time  specified 
in  the  original  coyenant.  On  any  other  construction  it  would 
haye  altered  the  original  coyenant  in  its  most  yital  and  important 
part,  and  would  indeed  haye  rendered  it  of  little  or  no  yalue. 
All  the  circumstances  of  the  case  show  that  this  could  not  haye 
been  the  intention  of  the  parties. 

The  declaration  appears  to  me  to  be  sufficient,  and  the 
breaches  well  assigned,  for  the  reasons  stated  in  the  opinion 
deliyered  in  the  court  below:  Harmony  y.  Bingham^  1  Duer,  230. 
The  plaintiff  ayers  that  the  goods  did  not  reach  Independence 
until  Biz  months  after  the  lapse  of  the  twenty-six  days  from  the 
first  of  April  when  they  were  to  haye  been  deliyered  there;  and 
that  after  their  arriyal  the  defendants  refused  to  deliyer  them  to 
the  plaintiff  unless  the  plaintiff  would  pay  the  freight  thereon, 
and  that  he  thereupon  paid  it  under  protest.  It  is  plain  that, 
according  to  this  ayerment,  the  deductions  spoken  of  in  the  con- 
tract would  exceed  the  amount  of  freight;  and  the  refusal  to 
deliver  the  goods  with^^t  payment  of  the  freight  was  a  refusal 
to  make  the  deductions.  The  ayerment  of  the  defendants'  re- 
fusal to  deliyer  the  goods,  without  payment  of  freight,  is,  in 
substance  and  effect,  an  ayerment  of  a  refusal  by  the  defendants 
to  make  the  deductions. 


150  Harmont  v.  BiNQHAiL  [Mew  Tork, 

The  only  remaining  question  is,  whether  the  payment  of  the 
freight  bj  the  plaintiff  at  Independence  is  to  be  regarded  as 
Tojuntary.  If  it  were  so,  this  action  can  not  be  maintained;  but 
if  it  is  to  be  regarded  as  compulsory^  it  is  otherwise. 

When  a  party  is  compelled,  by  duress  of  his  person  or  goods, 
tc  pay  money  for  which  he  is  not  liable,  it  is  not  Yoluntaiy,  but 
compulsory.  Where  the  owner's  goods  are  unjustly  detained  on 
pretense  of  a  lien  which  does  not  exist,  he  may  have  such  an  im- 
mediate want  of  his  goods  that  an  action  at  law  will  not  answer 
his  purpose.  The  delay  may  be  more  disadvantageous  than  the 
loss  of  the  sum  demanded.  The  owner,  in  such  case,  ought  not 
to  be  subjected  to  the  one  or  the  other;  and  to  avoid  the  incon- 
venience or  loss,  he  may  pay  the  money,  relying  on  his  legal  rem- 
edy to  get  it  back  again :  AfUley  v.  Reynolds^  2  Stra.  916.  What 
shall  constitute  such  duress  is  often  made  a  question.  Where 
the  owner  is  in  possession  of  his  goods,  the  threat  of  a  distress 
for  rent,  or  of  any  other  legal  process,  is  not  such  duress,  for 
the  party  may  defend  himself  against  such  suit  or  proceeding: 
PresUm  v.  Boston,  12  Pick.  14.  But  if  a  party  has  in  his  posses- 
sion goods  or  other  property  belonging  to  another,  and  refuses  to 
deliver  such  property  to  that  other  unless  the  latter  pays  him  a 
sum  of  money  which  he  has  no  right  to  receive,  and  the  latter, 
in  order  to  obtain  possession  of  his  property,  pays  that  sum,  the 
money  so  paid  is  a  payment  made  by  compulsion:  Shaw  v. 
Woodcock,  7  Bam.  &  Cress.  73.  In  Chase  y,  Lhoinal,  7  Me.  134 
[20  Am.  Dec.  852J,  the  plaintiff's  raft  was  stopped  by  a  boom 
erected  by  authority  of  the  state  of  Maine  across  the  Penobscot 
river,  for  the  purpose  of  stopping  drift  timber,  for  which  the 
owners  of  the  boom  were  entitled  to  demand  and  recover  boomage. 
The  defendant  demanded  boomage  for  the  plaintiff's  raft,  to  which 
he  was  not  entitled,  and  detained  the  raft  until  it  was  paid.  The 
plaintiff  brought  his  action  to  recover  the  money  back.  It  was 
insisted  that  it  was  a  voluntary  payment;  but  the  court  held 
that  the  plaintiff  was  entitled  to  recover,  Weston,  J.,  observing 
'*  that  replevin  would  have  restored  the  property  unlawfully 
seized;  but  to  procure  a  writ  and  an  officer  to  serve  it  would 
have  occasioned  delay  which  might  have  subjected  the  plaintifl 
to  greater  loss  than  the  payment  of  the  money  demanded.  Be- 
sides, he  must  have  given  a  bond  to  the  officer  to  prosecute  his 
suit,  and  he  might  meet  with  difficulty  in  obtaining  sureties,  and 
that  the  delay  in  bringing  a  trespass  suit  to  a  finale  might  have 
been  attended  with  serious  inconvenience."  To  this  might  have 
been  added  that  the  plaintiff  was  not  bound  to  take  the  risk 


Dec  1854.]  Habhokt  v.  Binqhax.  ISl 

of  the  defendant's  ability  to  pay  the  yalue  of  the  lafi  if  the 
plaintiff  had  recovered  in  trespaae. 

In  the  case  under  consideration  the  property  detained  'wbb  of 
great  value.  It  wbjs  at  a  great  distance  from  the  plaintiff's  res- 
idence; the  necessity  of  obtaining  immediate  possession  was 
evidently  urgent,  and  the  payment  of  the  freight  demanded  was 
clearly  compulsoxy  within  the  decisions  here  and  in  England. 

The  judgment  below  should  be  a£Srmed. 

Judgment  accordingly. 

When  Party  by  his  Omtn  Express  Contract  Enoaoss  to  Do  Act,  any 
ubseqaent  casualty,  even  though  ipevitable,  will  not  relievo  him  from  ito 
performance,  or  from  making  the  oUier  ptLrij  good,  if  performaaoe  beoomai 
impossible:  Omvea  v.  Berdan,  29  Barb.  101;  Coltb  v.  IJarmott,  Id.  476;  Km 
V.  Tupper,  42  How.  Pr.  451;  S.  C,  3  N.  Y.  Super.  Ct.  479;  Kemp  ▼.  Knkh^ 
trbocJxr  Ice  Co.,  51  How.  Pr.  34;  Jl^nfl  v.  Inman  S.  S.  Co.,  14  Hun,  667;  Van 
Budirk  v.  ^oberU,  31  N.  Y.  675;  Nelson  v.  Odiome,  45  Id.  403;  Dexter  t. 
Xorton,  47  Id.  64;  Delaicare,  L.  dt  W.  R,  li,  Co.  v.  lioum$,  58  Id.  677;  Booth 
r.  Spnifteu  DuyvU  R,  i/.  Co.,  GO  Id.  492;  S.  C.  in  supreme  court,  8  Tliomp. 
&  C.  371;  Wheeler  v.  Connecticut  M.  L.  Ins,  Co.,  82  N.  Y.  551;  Bacon  v. 
Cobb,  45,  111.  63;  SchwaHz  v.  Saunders,  46  Id.  22;  Peoria  M.  is  F.  I.  Co.  r. 
Walser,  22  Ind.  85;  Toil  v.  N.  York  L.  Ins.  Co.,  1  Flipp.  821,  all  citing  the 
prmci|jal  case.  And  this  principle  lias  been  followed  even  in  caaca  in  which 
its  application  has  been  considered  to  be  attended  with  great  harahneaai 
yiblo  V.  Dinsse,  44  Barb.  62;  DexUr  v.  ^'orUm,  55  Id.  287;  JcMns  v.  Wheeler, 
37  How.  Pr.  470;  S.  C,  3  Keyes,  650;  Tompkins  v.  Dudley,  25  N.  Y.  275, 
ail  citing  the  principal  case.  Under  a  contract  to  transport  and  deliver  goods 
at  a  certain  place  by  a  certain  day,  without  any  exception,  the  obligation  is 
absolute,  and  a  defense  that  unavoidable  accidents  prevented  performance  is 
uitavaihkble:  Baldwin  v.  New  York  L.  I.  <6  T.  Co.^  3  Boew.  545;  Friot  v. 
Jlartshom,  44  N.  Y.  102,  both  citing  the  principal  case.  No  excuses  will 
lave  a  common  carrier  from  liability  for  damages  for  the  breach  of  a  special 
coQtract  to  deliver  at  a  given  time:  Ward  v.  New  York  Cent.  R.  R.  Co.,  47 
M  33,  citing  the  princi^ml  case.  A  contract  to  carry  a  passenger  to  his  des* 
tiaation,  when  the  carrier  engages  unconditionally,  is  binding,  and  a  per* 
forrnance  will  not  be  excused  by  inevitable  accident  or  other  unforeseen  con- 
tingency: Bonsteel  v.  VanderbUi,  21  Barb.  32,  citing  the  principal  case.  A 
I>arty  undertaking  to  tow  a  boat  from  one  place  to  another  is  bound  to  do  so, 
unless  prevented  by  causes  to  M'hich  at  least  gross  negligence  on  his  part  did 
iiot  contribute:  Wooden  v.  Austin,  51  Id.  12,  citing  the  principal  case.  Strict 
{HTformance  of  a  condition  precedent  in  a  contract  can  only  be  excused  by 
ciiiisent,  or  by  some  act  of  the  other  party:  I/ouell  v.  Kniekerboeher  L.  /.  Co., 
19  Abb.  Pr.  220;  S.  C,  3  Robt.  248;  Sherwood  v.  AgricnUural  Ins.  Co.,  10 
Hun,  595,  both  citing  the  principal  case.  And  a  party  who  has  failed  to  per- 
fonii  a  condition  precedent  can  not  bring  an  action  for  damages  based  on  the 
other  party's  failure  to  perform  his  part  of  the  contract,  nor  can  he  reoover 
on  a  quantum,  meruit  for  the  part  of  the  work  done  and  materials  furnished 
under  the  contract:  Chase  v.  Jlogan,  3  Abb.  Pr.,  N.  S.,  65;  S.  C,  sub  nom. 
Chojie  V.  Hatch,  4  Robt.  96,  citing  the  principal  case. 

When  the  law  creates  the  duty  or  charge,  it  more  freely  excuses  a  iailnrs 
tr  periorm  than  when  a  party  expressly  binds  himself  by  ocmtraot:  Whmlm 


151  DoBSON  V.  Pbabci.  [New  York, 


T.  OamneOkmi  M.  L.  L  Co.,  16  Hnn,  S21,  citing  fhe  prlaci|MJ  can.  And 
therefore,  if  the  law  creates  a  duty,  and  the  party  is  diaabled  to  perform  i^ 
without  any  defanlt  in  him»  and  he  has  no  remedy  over,  the  law  will  exonae 
him:  Watianu  v.  VamderbiU,  29  Barb.  497,  citing  the  principal  case.  But  it 
is  only  where  a  dnty  is  created  by  law  that  a  party  is  excused  from  perform- 
ing it»  if  performance  is  rendered  impossible  by  the  act  of  Qod,  and  not  when 
tha  duty  is  created  by  contract:  Owen  t.  Farmer^  J,  8,  Co.,  57  Id.  520} 
aead  y.  Spamlding,  25  N.  Y.  639,  both  citing  tha  principal  case. 

Wbbrb  Gommok  Carrier  has  Actuallt  Diutkbxd  Goods  at  Plaob 

07  Dbstination,  and  the  oompUint  is  only  of  a  late  delivery,  the  question  is 
simply  one  of  reasonable  diligence,  and  accident  or  misfortune  will  excuse 
him,  unless  he  has  expressly  contracted  to  deliver  the  goods  within  a  limiteti 
time:  Wibert  ▼.  Xew  York  dt  Erie  R,  R,  Cb.,  12  N.  Y.  251,  citing  the  prin- 
eipal  case.  What  is  a  reasonable  time  within  which  a  common  carrier  is 
bound  to  deUver  goods  depends  upon  the  circumstances  of  each  case:  Congfr 
y,  HtuUon  R,  R,  R,  Co.,  6  Duer,  379,  citing  the  principal  case. 

CoMPUUBORT  Patmknt,  What  Deemed  to  be  so  as  to  enable  the  payor  to 
recover  back  the  money  paid,  and  what  not:  See  the  note  to  Be/uon  v.  JUon* 
roe,  54  Am.  Deo.  716,  718,  where  other  cases  on  this  subject  are  collected.  An 
action  lies  to  recover  badk  money  paid  to  release  goods  wrongfully  detained; 
SchoUy  V.  JUun^ord,  60  N.  Y.  601 ;  Carew  v.  Rutherford,  106  Mam.  12,  both  dt- 
log  the  principal  case.  A  party  constrained  by  duress  of  his  person  or  goods  to 
pay  money  may  pay  it  relying  on  his  legal  remedy  to  gi^t  it  back  again:  Cam' 
merdal  Bank  qf  Rocheeter  v.  City  of  Rochester,  41  Barb.  342;  Coady  v.  Curry, 

8  Daly,  60;  Baldwin  v.  Liverpool  A  O,  W,  S,  Co.,  1 1  Hun,  325;  Stenton  v.  Jerome, 
54  K.  Y.  485;  Peyser  v.  Mayor  etc.  qfN.  T.,  70  Id.  501,  all  citing  the  principal 
case.  In  respect  to  all  personal  contracts,  or  claims  between  individuals,  the 
rule  is  well  settled  that  there  must  be  a  seizure  or  duress  of  the  person  or 
goods  to  constitute  such  an  involuntary  payment  that  the  money  can  be 
recovered  back:  Dewey  v.  Supervisors  of  Niagara  Co.,  2  Hun,  395;  S.  C,  4 
Thomp.  k  G.  609,  citing  the  principal  case.  A  party  who  voluntarily  pays 
money  on  a  street  sssessment  can  not  recover  it  back:  Sanclfortl  v.  Mayor  etc 
t(fN.  Y.,  12  Abb.  Pr.  27;  S.  C,  33  BarU  152;  S.  C,  20  How.  Pr.  303,  citing 
the  principal  case. 

The  pRiiroiPAL  oabe  is  DisnirainsHED  in  Hytamd  t.  PauL^  33  Barb.  245, 
and  in  Worth  v.  Edmonds.  52  Id.  44. 


DoBsoN  V.  Peaboe. 

[la  NkW  ToBK  (2  EXBHAX),  156.] 

Action  itpon  Judgment,  whether  brought  by  the  original  Judgment  creditor 
or  his  assignee,  may  be  defended  upon  the  ground  that  the  judgment  was 
fraudulently  obtained. 

Bquitt  has  Jurisdiction  to  Make  Decree  Restraining  Juboment  Cred- 
itor from  bringing  suits  upon  hia  judgment,  upon  the  ground  that  it  was 
fraudulently  obtained. 

Duly  Authenticatkd  Record  ov  Such  Decree,  rendered  in  a  court  of 
equity  of  another  state,  having  jurisdiction  of  the  parties,  is  a  conclusivs 
defense  against  the  prosecution  in  a  court  of  this  state,  of  a  suit  upon  the 
iudgment  referred  to  in  the  decree. 


DeeL  18541  Dobsoh  v.  Fbabcs.  10 

SnsB  Dkbxi  n  Covdjonmt  urov  PAStna  Etebtwhsbs  wad  in  cfwy 
fonin  wImts  tlie  Mme  matters  are  drawn  in  iaene;  not  indeed  aa  an  li* 
junction,  bnt  aa  a  Judgment  of  a  coort  in  another  atate. 

AmAL  from  a  judgment  of  the  New  York  saperior  court  ia 
byor  of  defendant,  in  an  action  on  a  judgment.  J.  N.  Olnej 
had  fonnerly  reoovered  a  judgment  against  the  defendant  in  the 
New  Tork  superior  oourt,  which  he  assigned  to  plaintiff,  who 
brought  this  action,  in  the  nature  of  debt,  upon  it.  The  defend* 
ant  pleaded  a  decree  by  a  court  of  equity  of  CJonnecticut,  setting 
isida  the  judgment  in  suit  as  fraudalent.  The  superior  court 
held  the  Connecticut  decree  to  be  admissible,  and  to  be  condn- 
BiTe  if  the  jury  should  find  that  Olney  appeared  in  the  suit  by 
his  authorized  attorney.  They  did  so  find,  and  judgment  haT* 
ing  been  rendered  for  defendant,  the  plaintiff  appealed.  For 
additional  facts,  and  for  account  of  two  earlier  trials,  see  1  Abh. 
Pr.97. 

E,  Terry  ^  for  the  appellant. 
Asa  CkHdj  for  the  respondent. 

By  Court,  Aixsir,  J.  A  judgment  rendered  by  a  court  of 
competent  jurisdiction  can  not  be  impeached  collaterally  for 
OTor  or  irregularity,  but  is  conclusiye  until  set  aside  or  reyersed 
by  the  same  court  or  some  other  court  having  appellate  jurisdio* 
tion:  Smith  y.  Lewis,  3  Johns.  157  [3  Am.  Dec.  469];  Homer  t. 
FlBh,  1  Pick.  435  [11  Am.  Dec.  218].  The  jurisdiction  of  a 
court  in  which  a  judgment  has  been  recoyered  is,  however, 
always  open  to  inquiiy,  and  if  it  has  exceeded  its  jurisdiction, 
or  has  not  acquired  jurisdiction  of  the  parties  by  the  due  service 
of  process  or  by  a  voluntaiy  appearance,  the  proceedings  are 
coram  nonjudice  and  the  judgment  void.  The  want  of  jurisdio* 
tion  has  always  been  held  to  be  a  valid  defense  to  an  action  upon 
the  judgment,  and  a  good  answer  to  it  when  set  up  for  any  pur- 
pose. 

So  fraud  and  imposition  invalidate  a  judgment,  as  they  do  all 
sets;  and  it  is  not  without  semblance  of  authority  that  it  has 
been  suggested  that  at  law  the  fraud  may  be  alleged,  whenever 
the  party  seeks  to  avail  himself  of  the  results  of  his  own  fraudu- 
lent conduct  by  setting  up  the  judgment,  the  fruits  of  his  fraud: 
See  per  Thompson,  C.  J.,  in  Borden  v.  FUch,  15  Johns.  121  [8 
Am.  Dec.  225],  and  cases  cited.  But  whether  this  be  so  or  not, 
it  iB  unquestionable  that  a  court  of  chancery  has  power  to  grant 
lelief  against  judgments  when  obtained  by  fraud.  Any  fact  which 
tlearly  proves  it  to  be  against  conscience  to  execute  a  judgment. 


154  DoBSON  V.  Pearce.  [New  York, 

and  of  which  the  injured  party  could  not  avail  himself  at  law, 
but  was  prevented  by  fraud  or  accident,  unmixed  with  any  fault 
or  negligence  in  himself  or  his  agents,  will  justify  an  inteifer* 
ence  by  a  court  of  equity:  Beigal  v.  Wood,  1  Johns.  Ch.  402; 
McDonald  v.  Neilson,  2  Cow.  189  [14  Am.  Dec.  431];  Duncan  t. 
Lynn,  3  Johns.  Ch.  351  [8  Am.  Dec.  513];  Marine  Insurance  Com- 
jjany  of  Alexandria  y.  Hodgson,  6  Cranoh,  206;  ShoUenJdrk  y. 
WJieeler,  3  Johns.  Ch.  275. 

Under  our  present  judiciary  system  the  functions  of  the 
courts  of  common  law  and  of  chancery  are  united  in  the  same 
court,  and  the  distinctions  between  actions  at  law  and  suite  in 
equity,  and  the  forms  of  all  such  actions  and  suits,  are  abol- 
i^ed,  and  the  defendant  may  set  forth  by  answer  as  many  de- 
fenses as  he  may  have,  whether  they  be  such  as  have  been  here- 
tofore denominated  legal  or  equitable,  or  both:  Code,  sees.  69, 
150.  The  code  also  authoiizes  afi&rmative  relief  to  be  given  to  a 
defendant  in  an  action  by  the  judgment:  Sec.  274.  The  intent 
of  the  legislature  is  very  clear  that  all  controversies  respecting 
the  subject-matter  of  the  litigation  should  be  determined  in  one 
action,  aud  the  provisions  are  adapted  to  give  effect  to  that  in- 
tent. Whether,  therefore,  fraud  or  imposition  in  the  recovery 
of  a  judgment  could  heretofore  have  been  alleged  against  it  col- 
latemll}'  at  law  or  not,  it  may  now  be  set  up  as  an  equitable  de- 
fense to  defeat  a  recovery  upon  it.  Under  tlie  head  of  equitable 
defenses  are  included  all  matters  which  would  before  have  au- 
thorized  an  application  to  the  court  of  chancery  for  relief  against 
a  legal  liability,  but  which,  at  law,  could  not  have  been  pleaded 
in  bar.  The  facts  alleged  by  way  of  defense  in  this  action  would 
have  been  good  caus^  for  relief  against  the  judgment  in  a 
court  of  chanceiy,  and  under  our  present  system  are  therefore 
proper  matters  of  defense;  and  there  was  no  necessity  or  pro- 
priety for  a  resort  to  a  separate  action  to  vacate  the  judgment. 
In  Connecticut,  although  law  and  equity  are  administered  by 
the  same  judges,  still  the  distinction  between  these  systems  is 
presen-ed,  and  justice  is  administered  under  the  head  of  com- 
mou-law  and  chancery  jurisdiction  by  distinct  and  appropriate 
forms  of  procedure;  and  hence,  as  it  was  at  least  doubtful 
whether  at  law  the  fraud  alleged  would  bar  a  recovery  upon  the 
judgment,  a  resort  to  the  chancery  powers,  of  the  court  of  that 
state  was  proper,  if  not  necessary. 

The  right  of  the  plaintiff  in  the  judgment  was  a  personal 
right  and  followed  his  person;  and,  aside  from  the  fact  that  he 
had  resorted  to  the  courts  of  Connecticut  to  enforce  his  claim 


Dec  1854]  DoBSON  v.  Pkabck.  IN 

andtsr  the  judgment,  the  courts  of  that  state,  haTing  obtMnad 
jurisdiction  of  his  person  bj  the  due  serrice  of  process  within 
the  state,  had  full  power  to  pronounce  upon  the  rights  of  the 
parties  in  respect  to  the  judgment  and  to  decree  concerning  it. 
It  necessarily  follows  that  the  decree  of  the  superior  court  of 
Coniiecticut,  sitting  as  a  court  of  chancery,  directly  upon  the 
question  of  fraud,  is  conclusive  upon  the  parties  to  that  litiga- 
tion, and  all  persons  claiming  under  them  with  notice  of  the  ad- 
judication. The  judgment  of  a  court  of  competent  jurisdiction 
upon  a  point  litigated  between  the  parties  is  conclusiYe  in  all 
subsequent  controYersies  where  the  same  point  comes  again  in 
question  between  the  same  parties:  WkUe  y.  CoaitwarOi,  6  N.  Y. 
137;  Embury  v.  Conner,  3  Id.  522  [63  Am.  Dec.  325].  In  the 
state  of  Connecticut  it  is  quite  clear  the  question  of  f  r>ud  would 
not  be  an  open  question  between  the  parties,  but  would  be  con- 
sidered entirely  settled  by  the  decree  of  the  court  of  that  state; 
and  as  full  faith  and  credit  are  to  be  given  by  each  state  to  the 
judicial  proceedings  of  every  other  state,  that  is,  the  same  credit, 
validity,  and  effect  as  they  would  have  in  the  state  in  which  they 
were  had,  the  parties  are  concluded  in  the  courts  of  this  state 
bj  the  judgment  of  the  court  in  Connecticut  direcUy  upon  the 
question  in  issue:  Hampton  v.  McConnel,  3  Wheat.  234.  The 
decree  of  the  court  of  chancery  of  the  state  of  Connecticut  as 
an  operative  decree,  so  far  as  it  enjoined  and  restrained  the  par- 
ties, had  and  has  no  extraterritorial  efficacy,  as  an  injunction 
does  not  affect  tbe  courts  of  this  state;  but  the  judgment  of  the 
court  upon  the  matters  litigated  is  conclusive  upon  the  parties 
everywhere  and  in  every  forum  where  the  same  matters  are 
drawn  in  question.  It  is  not  the  particular  relief  which  was 
granted  which  affects  the  parties  litigating  in  the  courts  of  this 
state;  but  it  is  the  adjudication  and  determination  of  the  facts 
by  that  court,  the  final  decision  that  the  judgment  was  procured 
by  fraud,  which  is  operative  here,  and  necessarily  prevents  the 
plaintiff  from  asserting  any  claim  under  it.  The  coui*t  acquired 
jurisdiction  of  the  parties  by  the  commencement  of  the  action 
and  the  service  of  process  upon  the  defendant  therein  and  his 
appearance  by  an  authorized  attorney;  and  the  withdrawal  of 
the  action  of  debt  upon  the  judgment  did  not  deprive  it  of 
jurisdiction  thus  acquired. 

The  judgment  of  the  superior  court  must  be  affirmed,  with 
costs. 

JoHHsoN,  J.     The  questions  in  this  cause  arise  upon  two  ex* 
ceptions  taken  at  the  trial.     The  first  was  taken  to  the  decisioa 


166  DoBSON  V.  PsABGE.  [New  Toik^ 

admitting  in  eridence  Che  record  of  a  decree  in  equity,  made  bj 
the  superior  court  of  judicature  of  the  state  of  Oonnecticut,  be- 
tween the  defendant  in  this  suit  and  one  Olney,  the  immediate 
assignor  to  the  phiintiff  of  the  judgment  now  sued  upon.  The 
second  was  to  the  instruction  of  the  court  to  the  jury  that  the 
record  of  the  proceedings,  finding,  and  decree  aforesaid,  giyen  in 
evidence  by  the  defendant  to  support  the  allegations  in  his  answer, 
was,  for  the  purposes  of  this  suit,  conclusive  evidence  upon  the 
plaintiff,  if  the  jury  found  that  Olney  appeared  in  that  cause  by 
his  authorized  attorney.  The  plaintiff  is  in  the  same  position 
which  Olney  would  have  occupied  had  he  been  plaintiff;  he 
is  the  immediate  assignee  of  Olney,  against  whom,  before  the 
assignment,  the  decree  was  pronounced;  and  if  it  be  material, 
he  bad  actual  notice  of  the  decree  when  the  assignment  was 
made  to  him,  and  giving  to  the  plaintiff's  objection  to  the  ad- 
mission of  the  record  the  broadest  effect,  the  flzst  question  is 
whether  the  defense  set  up  by  the  answer  was  available.  That 
defense  is  in  substance  that  the  judgment  sued  upon  was  fraud- 
ulently entered  up  after  assurances  on  behalf  of  the  plaintiff  in 
that  suit  to  the  defendant,  that  no  further  proceedings  should 
be  taken  in  it  without  notice  to  him,  whereby  he  was  induced 
not  to  take  steps  to  interpose  a  defense,  which,  in  point  of  fact» 
he  could  successfully  have  maintained. 

Belief  against  such  a  judgment  upon  these  facts  would  have 
been  within  the  power  of  a  court  of  equity  in  this  state,  upon  a 
bill  filed  for  that  purpose:  2  Stoiy's  Eq.  Jur.,  sees.  887,  896; 
Huggina  v.  King,  8  Barb.  616.  The  code,  section  69,  having 
abolished  the  distinction  between  actions  at  law  and  suits  in 
equity,  and  the  forms  of  all  such  actions  as  theretofore  existing, 
an  equitable  defense  to  a  civil  action  is  now  as  available  as  a 
legal  defense.  The  question  now  is.  Ought  the  plaintiff  to  re- 
cover? and  anything  which  shows  that  he  ought  not  is  available 
to  the  defendant,  whether  it  was  formerly  of  equitable  or  legal 
cognizance. 

The  next  question  is,  whether  the  record  of  the  decree  of  the 
superior  court  of  Connecticut  was  competent  evidence  upon  that 
issue.  Olney  actually  appeared  by  his  attorney  in  that  suit,  and 
was  heard  upon  its  merits.  He  was  therefore  before  that  court, 
and  it  had  jurisdiction  of  his  person  if  it  had  jurisdiction  of  the 
subject-matter  of  the  suit.  The  object  of  the  suit  was  to  re- 
strain Olney  from  prosecuting  a  suit  at  law  in  the  same  court 
upon  the  judgment  in  suit  here,  and  the  grounds  on  which  that 
relief  was  sought  were  the  same  which  are  set  up  as  a  defense 


Dec  1864]  Dobson  v.  JPkabcbl  1S7 

hoe.  The  juriadiotioii  to  xeeindn  snita  at  law  bdng  one  of  the 
finnlj  established  parts  of  the  authority  of  courts  of  equity^  and 
the  plaintifr  in  the  suit  which  was  enjoined  having  undertaken 
to  prosecute  that  suit  in  a  court  of  law  of  the  state  of  CJonnecti- 
cut,  the  only  conoeiTable  grounds  for  denying  the  equitable 
jniiadietion  which  was  exercised  in  the  case  are,  either  that  no 
court  of  equity  anywhere  had  power  to  restrain  a  suit  upon  a 
judgment  at  law  upon  such  grounds,  or  that  a  court  of  equiiy 
in  one  state  has  no  jurisdiction  to  restrain  such  a  suit  upon  a 
judgment  of  a  court  of  law  of  another  state.  The  first  of  these 
grounds  has  been  already  considered  and  found  unsound.  The 
other  rests  either  upon  some  ground  of  comity  between  states 
or  upon  the  force  of  the  constitution  and  laws  of  the  United 
States.  The  objection,  so  far  as  it  is  founded  upon  an  assumed 
violation  of  the  comity  which  exists  between  the  seyeral  states 
of  the  United  States,  does  not  reach  to  the  jurisdiction  of  the 
court.  The  rules  of  comity  may  be  a  restraint  upon  a  court  in 
the  exercise  of  an  authority  which  it  actually  possesses,  but  it 
is  self-imposed:  Bank  of  Augv^sta  v.  Earle,  13  Pet.  519.  The 
courts  of  each  state  must  judge  for  themselves  exclusively  how 
far  they  will  be  restrained,  and  in  what  cases  they  will  exercise 
their  power,  except  where  the  constitution  of  the  United  States 
and  the  laws  made  in  pursuance  of  it  prescribe  a  rule.  Where 
that  is  the  case,  the  question  ceases  to  be  one  of  comify  and  be- 
comes one  of  right. 

The  question  then  remains  to  be  considered  upon  the  consti- 
tution and  laws  of  the  United  States,  and  here  the  decisions 
permit  of  no  doubt.  Full  faith  and  credit  are  given  to  the 
judgments  of  a  state  court,  when  in  the  courts  of  another  state 
it  receives  the  same  faith  and  credit  to  which  it  was  entitled  in 
the  state  where  it  was  pronounced:  Hampion  v.  McConnel^  8 
Wheat  234. 

We  have  then  a  decree  of  the  superior  court  of  Connecticut 
in  a  cause  where  they  had  jurisdiction  of  the  subject-matter  and 
of  the  parties,  and  it  is  duly  authenticated  and  relevant  to  the 
issue  on  trial.    Its  admissibility  in  evidence  follows  of  course. 

By  the  record  of  that  decree  it  appears  that  the  very  matters 
in  issue  here  were  litigated  there,  and  were  decided  adversely  to 
Olney,  whom  the  plaintiff  represents.  The  determination  is 
necessarily  conclusive  upon  him  as  to  all  the  material  facts  there 
litigated  and  determined. 

The  judgment  should  be  afBrmed»  with  oosts. 

Judgment  accordingly. 


158  DoBSON  V.  Pearce.  [Ne^  York, 

JuDOMSNT  Obtaivkd  bt  Fraud,  whbn  Equitt  Ueixxteb  AAAIirST:  Se« 
Bank  qf  Tennessee  v.  Patterson^  47  Am.  Dec.  618,  note  622;  Stro/up  ▼.  8^%* 
wm,  46  Id.  380,  note  393;  Pearct  v.  Chastain,  Id.  423,  note  426. 

Validity  or  JuDOMEirr  or  Coubt  or  Competent  JnsiSDicnoif  may  be 
qaeetioned  on  the  gronnd  that  the  judgment  was  proonxed  through  frand, 
contrivance,  or  ooTin  of  any  description:  De  Busnere  v.  HoUadaift  4  Abbu  N. 
0.  124;  S.  C,  65  How.  Pr.  219;  Soaa  v.  Wood,  51  Id.  196;  PeopU  v.  Me- 
Ouhre,  2  Hun,  274;  S.  C,  4  Thomp.  &  C.  661;  AnonymouB  ▼.  Odpeke,  5  Hun, 
266;  Baher^$  WiU,  2  Bedf.  191;  State  of  Michigan  v.  Phcaiix  Bank,  33  N.  T. 
27;  llackUy  v.  Draper,  60  Id.  92;  Pttl  v.  Januaiy,  35  Ark.  341,  all  citing 
the  principal  case.  A  court  of  equity  can  set  aside  a  judgment  obtained  by 
fraud:  Buyden  v.  Heed,  56  III.  464;  Ogden  v.  Larrabce,  VJ  Id.  400;  Biggine  ▼. 
V.  Brockman,  63  Id.  320;  Nealis  v.  Dicks,  72  Ind.  380,  aU  oiting  the  principal 
case.  Any  fact  which  clearly  proves  it  to  be  against  conscience  to  execute  the 
judgment^  and  of  which  the  party  could  not  avail  himself  at  law,  having  been 
prevented  by  fraud  or  accident,  unmixed  with  any  fault  or  negligence  in  himself 
or  his  agent,  will  justify  interference  by  a  court  of  equity:  Methodist  E.  Church 
at  Harlem  v.  Mayor  etc,  qf  N.  T.,  65  How.  Tr.  60;  StUwell  v.  Carpenter,  59  X. 
Y.  423;  Smith  v.  Nelson,  62  Id.  289,  all  citing  the  principal  case.  But  in 
Rosa  V.  Wood,  70  Id.  11,  it  was  decided,  citing  the  principal  case,  that  tlie 
fraud  which  wiU  justify  equitable  interference  in  setting  aside  judgments 
and  decrees  must  be  actual  and  positive,  and  not  merely  constructive.  In 
Whittlesey  v.  Delaney,  73  Id.  674,  it  was  stated,  citing  the  principal  case,  that 
fraud  vitiates  a  judgment  as  well  as  even  the  most  solemn  transactions,  and 
any  one  affected  by  a  fraudulent  judgment  might  invoke  the  aid  of  a  court 
of  equity.  In  Oardner  v.  Tyler,  16  Abb.  Pr.  22;  S.  C,  25  How.  Pr.  220, 
the  principal  case  is  cited  in  support  of  the  proposition  that  the  record  of 
proceedings  in  the  district  court  of  the  United  States  does  not  estop  a  defend- 
ant, sued  on  a  decree  of  that  court  entered  against  him  on  a  bond  given  to 
secure  the  discharge  of  a  vessel,  from  showing  collaterally  and  affirmatively 
that  he  never  executed  the  bond  nor  authorized  its  execution. 

Judgments  of  Sister  States:  See  McJUton  v.  Love,  64  Am.  Dec.  449, 
note  456;  White  v.  Trofter,  53  Id.  112,  note  124;  Sherrard  v.  Kevins,  62  Id. 
608,  note  510;  Davis  v.  Smith,  48  Id.  279,  note  297»  where  other  cases  are 
collected.  The  principal  case  is  cited  in  Rice  v.  Ilarbeson,  63  K.  T.  603,  to 
the  point  that  the  courts  of  the  several  states  are  to  determine  how  far  and 
under  what  circumstances  the  rules  of  comity  which  exist  between  the  sev* 
eral  states  of  the  United  States  are  to  be  regarded. 

Power  of  Coqrt  of  Equity  to  Enjoin  JuDOWCNTt  See  Pollock  v.  OH- 
bert,  60  Am.  Dec.  732,  note  737,  where  other  cases  are  collected.  The  prin- 
cipal case  is  cited  in  Vail  v.  Knapp,  49  Barb.  309;  and  in  Dehon  v.  Potter, 
4  Allen,  651 ,  in  support  of  the  doctrine  that  a  oonrt  of  equity  has  power,  on 
a  proper  case  shown,  to  restrain  persons  within  its  jurisdiction  from  prosecut- 
ing suits  either  in  the  courts  of  its  own  state  or  of  other  states  or  of  foreign 
countries. 

Judgment  or  Court  not  having  Jubisdiotion  is  Void:  See  Horan  t. 
Wahrenberger,  68  Am.  Dec.  146,  note  149,  where  other  oases  are  collected. 
In  the  following  cases  the  principal  case  is  cited  as  authority  for  the  position 
that  the  jurisdiction  of  the  court  in  which  a  judgment  has  been  rendered  la 
always  open  to  inquiry,  and  if  it  appears  that  the  court  had  no  jurisdiction, 
the  judgment  Lb  void:  Aumnikk  B,  d:  O,  Co,  v.  New  Lamp  Chimney  Co,,  64 
Barb.  437;  People  v.  Smith,  13  Hun,  417;  Bolton  v.  Jacks,  6  Robt  200;  BoUer 
V.  Mayor  etc,  o/N.  T.,  40  Super.  Ct.  688;  HwU  v.  Hunt,  72  N.  T.  226.     A 


Dec  1854]  Dobsok  v.  Peabci.  169 

fndgi&ent  without  affording  the  party  against  whom  it  ia  randarad  an  oppor* 
tuiity  to  he  heard  ia  void:  Behrle  v,  Sherman^  10  Boaw.  806,  citing  the  prin- 
dpal  eaae.  It  waa  held  in  Baldwin  ▼.  Khnmel^  10  Ahh.  Pr.  302;  S.  C,  I 
Robt  1 16,  citing  the  principal  case,  that  in  an  action  on  a  jntlgmcnt,  endenoa 
that  the  defendant  waa  not  aerved  with  proceaa  ahowa  that  the  jadgment  waa 
void  The  principal  case  is  cited  in  Ferguson  v.  Cfxntffimi,  70  N.  T.  287»  in 
support  of  the  propoaition  that  in  an  action  an  a  jadgment  the  defendant 
may  set  up  that  he  was  not  aenred  with  prooeaa,  and  did  not  appear, 
aotwithatanding  recitala  in  the  record  that  the  conrt  had  aoqnired  Jnria* 
diction. 

WhCRB   CkvURT   DAS    AoQUTBED    JURISDICTION    OT  PABTin   AND    OV    SUB- 

JECT-MATTEH,  its  judgment  is  couclnaive  until  set  aside:  See  Ex  pctrie  AdamSf 
59  Am.  Dec.  234,  note  243;  Sheriff  y.  Snntk,  47  How.  Pr.  471;  Hunt  y.  IfwU,  0 
Hon,  623;  Kmnier  v.  Kitmier,  45  N.  Y.  642;  CAriafmoa  ▼.  RuneU,  6  Waa  307, 
all  citing  the  principal  case. 

Eight  of  Stranger  to  Jcdgubntto  IifPRAcn  It  Collatkrallt:  See  Fost 
T.  Morton,  50  Am.  Dec.  750,  note  754. 

Equitabls  Defenses  uat,  under  New  York  Code,  be  Set  xjt  to  aetiona 
itkw:  J/drsA  v.  Benson,  11  Abh.  Pr.  248;  S.  C,  19  How.  Pr.  423;  MeBwr- 
9ey  V.  WeHman^  42  Barb.  401;  Oarrity  v.  Ilaynes,  63  M.  599;  Webster  v. 
Bdmi,  9  Hon,  438;  Auburti  City  Bank  v.  Lfonard^  20  How.  Pr.  195;  Bates  y. 
Rotetrans,  23  Id.  103;  Carpenter  v.  OUley,  2  Lana.  455;  Xno  York  (7.  /. 
Co,  y.  National  P,  I.  Co.,  14  N.  Y.  90;  Despard  v.  Walbridgt,  15  Id.  378; 
Pkillipi  V.  Oorham,  17  Id.  275;  Cummintjn  v.  Morris,  25  Id.  C28;  Pitcher  ▼. 
Baaessy,  48  Id.  422;  Savage  t.  Allen,  54  Id.  463;  MandeviJUe  v.  Reynoids,  68 
Id.  545;  Stevens  v.  Mayor  tic.  of  N,  Y,,  84  LI.  305,  all  citing  the  principal 
eaas.  The  principal  caae  b  also  cited  in  Cramer  v.  Benton,  60  Barb.  227,  by 
jLstake,  iiiatead  of  Crary  v.  Goodman^  12  N.  Y.  267.  See  S.  C,  in  64  Baib. 
525,  where  the  error  is  referred  to  and  corrected.  The  same  ia  tme  under  the 
California  and  Iowa  codea:  See  Jaehson  ▼.  Lodge,  36  Col.  46,  and  Rogers  ▼. 
Qmn,  21  Iowa,  64,  both  citing  the  principal  caae  to  this  point.  And  all 
matters  are  considered  aa  eqni tabic  defenses  which  would  have  authorized  an 
application  to  the  court  of  chancery  for  relief  against  a  legal  liability,  but 
which  at  law  could  not  have  been  pleaded  in  bar:  Sheehan  ▼.  IlamiUonf  4 
Abb.  App.  Dec.  214;  S.  C,  3  Abb.  Pr.,  N.  S.,  200;  S.  C,  2  Keyea,  307,  cit- 
ing the  principal  case.  In  Launrenee  ▼.  Bank  of  the  Republic,  3  Bobt.  149,  It 
was  said,  citing  the  principal  case,  that  such  defenses  include  everything  for 
which  relief  must  formerly  have  been  aonght  in  a  court  of  equity.  The  conrta 
of  New  York,  aa  now  oonatituted,  apply  legal  and  equitable  rulea  and  maxima 
indiscriminately  iu  every  caae:  Cordon  v.  Tilui,  66  Barb.  279,  citing  the  prin- 
eipal  caae.  The  dirtinctiona  between  aetiona  at  law  and  auita  in  equity,  and 
the  forma  of  all  auch  aetiona  and  suite  have  been  abolished  by  the  New  York 
vAe:  Walter  v.  Loekwood,  23  Id.  235;  Mhrie  RaUway  Co.  v.  Ramsey,  45  K.  Y. 
649;  Arthur  v.  Homestead  F,  Ins.  Co.,  78  Id.  467,  all  citing  the  principal 
ease.  In  each  of  the  following  caaea  the  principal  caae  is  cited  in  support  of 
the  propoaition  that  it  waa  the  intention  of  the  Kew  York  oode  that  the  whole 
controveray  between  the  partiea  to  an  action  or  auit  ahould  be  aettled  in  ona 
Mtion,  and  that  each  of  them  ahould  have  auch  relief  aa  the  nature  of  the  oaaa 
ought  require:  ^anis  v.  Newns,  27  Barb.  501;  Curtis  v.  ^amef,  30  Id.  228) 
Amdty.  Williams,  16  How.  Pr.  245;  Dambman  v.  SehulUng,  4  Hun,  61;  S. 
0.,  6  Tbomp.  k  C.  252;  MeJIenry  v.  Ilasard,  45  N.  Y.  687. 

The  PBiNdPAL  OASE  u  CITED  in  Oarvey  v.  Carey,  4  Abb.  Fr.,  N.  S.,  101 1 
8.  G.,  85  How.  Pr.  283:  S.  C.  7  Robt.  287,  to  the  point  that  miaoondnot  oa 


160  Wkstsbtelt  i;.  Obbgo.  [New  Toik. 


the  part  of  arbitimton  and  a  mistake  in  aacertaining  the  amoant  of  the  awttrd 
may  be  set  up  as  a  defense  to  an  action  on  the  award;  and  in  8ander$  i,  Siait^ 
ii5  Ind.  328,  to  the  point  that  in  civil  proceedings  there  are  oases  when  rellel 
may  be-grsnted,  although  there  is  no  specific  remedy  provided  by  statBia. 


Westervblt  v.  Gbeqo. 

[13  New  Tobk  (3  Embhait),  90a.] 

Right  to  Lkqaot  can  not  bb  Impaibxd  by  Law  PaaaBD  amteb  Lboaot 

HAS  Vestkd  by  the  testator's  death. 
Statttts — such  as  New  York  married  woman's  act  of  1848,  seoUon  2,  abro* 

gating  a  husband's  marital  right  to  choses  in  action  of  his  wife— can  not 

affect  a  husband's  right  to  oontinne  the  prosecution  of  a  suit  for  one,  began 

before  the  act. 

Appeal  to  revise  a  surrogate's  order  by  which,  in  settling  an 
executor's  account,  he  directed  that  a  legacy  given  to  a  married 
woman  should  be  paid  to  her  husband.  The  grounds  of  objeo- 
tion  to  such  payment  appear  by  the  opinion. 

Nicholas  BUI,  jun. ,  for  the  appellant. 

Livingston  and  Livingston,  for  the  respondent. 

By  Court,  Edwabds,  J.  Before  inquiring  how  far  the  interest 
of  the  husband  in  his  wife's  legacy,  which  vested  before  the 
passage  of  the  act  for  the  more  effectual  protection  of  the  prop- 
erty of  married  women,  is  affected  by  it,  it  will  be  necessary  to 
determine  what  is  the  nature  and  extent  of  that  interest.  A 
legacy,  or  distributive  share,  accruing  to  the  wife,  is  regarded 
as  a  chose  in  action,  and,  as  far  as  the  rights  of  the  husband  are 
concerned,  it  stands  upon  the  same  footing  as  a  promissoiy 
note,  or  other  property  of  a  similar  character:  Garforth  v.  Brad- 
ley, 2  Yes.  sen.  675;  Schuyler  v.  Eoyle,  6  Johns.  Gh.  196;  2 
Kent's  Com.  137.  The  general  rule  of  the  common  law  is,  that 
the  husband  has  the  right  to  reduce  the  choses  in  action  of  the 
wife  into  possession,  but  that  until  he  does  so  they  do  not  vest 
in  him  as  his  own  property;  and  in  case  he  dies  in  the  life-time 
of  his  wife,  they  survive  to  her.  But  this  general  description 
does  not  give  an  adequate  idea  of  the  extent  of  the  husband's 
interest,  for  in  addition  to  his  right  to  reduce  them  into  posses- 
sion, he  may  assign  them  even  by  voluntary  assignment;  al- 
though in  that  case  the  wife's  right  of  survivorship  wiU  remain: 
Burnet  v.  Kinnaster,  2  Vem.  410;  MUford  v.  MUford,  9  Ves.  87; 
Jewson  V.  MouUon,  2  Atk.  420.  They  will  also  pass  under  a  gen- 
eral assignment  in  bankruptcy,  or  under  insolvent  laws,  sub* 


Dec  1854]  Wjbktekvjlt  v.  Giukkl  101 

)ed,  howeveTy  to  the  light  of  BmriTOiriiip  in  tin  wife:  Mi^bfd 
T.  ARtford,  9  Yes.  87;  Jeunon  y.  Ifimtem,  2  Atk.  490;  Pierce  t. 
Thamdy,  2  Sim.  167;  Fan  Epps  ▼.  F2m  DauMi,  4  Paige,  64  [25 
Am.  Dec.  516].  But  the  husband  may  cut  off  that  right  by  an 
assignment  for  a  valuable  consideration,  although  the  wife's  right 
to  /in  equitable  proyision  for  her  support  can  not  be  thus  taken 
away:  Caiaret  y.  Paschal,  3  P.  Wms.  197;  Bates  y.  Dandy,  2  Atk. 
206;  S.  C,  3  Buss.  65,  note;  Jewaan  y.  MoulUm,  2  Atk.  417;  MiU 
ford  y.  lfi{/brd,  9  Ves.  87;  Schuyler  y.  Hayle,  6  Johns.  Ch.  196; 
Sckiefdin  y.  Ilarvey,  6  Id.  178  [5  Am.  Deo.  206];  2  Kent's  Com. 
136.  In  the  case  of  Haner  y.  Marlin,  3  Buss.  65,  Lord  Lyndhurst 
says  that  "equity  considers  the  assignment  by  the  husband  as 
amounting  to  an  agreement  that  he  will  reduce  the  property  into 
poflsesaion;  it  likewise  considers  what  a  party  agrees  to  do  as  ac- 
tually done;  and  therefore,  where  the  husband  has  the  power  of 
reducing  the  property  into  possession,  his  assignment  of  tlie  chose 
in  action  of  the  wife  will  be  regarded  as  a  reduction  into  posses- 
fiion."  This  may  seem  to  be  rather  an  artificial  reason,  but  the  rule 
is  considered  as  well  settled  by  authority.  As  to  choses  in  action 
which  accrue  to  the  wife  before  the  marriage,  the  husband  must 
Bue  joinUy  with  the  wife;  but  it  is  said  that  he  may  or  may  not 
join  her  with  him  in  a  suit  upon  choses  in  action  which  accrue 
after  the  marriage.  In  Oarfcrth  y.  Bradley,  supra.  Lord  Hard- 
wicke  says  that  by  bringing  the  action  in  his  own  name  the 
husband  may  disagree  to  the  interest  of  the  wife,  and  that  a  re6oy- 
erj  in  his  own  name  is  equal  to  reducing  into  possession :  Richards 
T.  Bichardsi,  2  Bam.  &  Adol.  447;  Ckncy  on  Husb.  &  W.  4.  If 
the  husband  suiriyes  the  wife,  and  she  leayes  choses  in  action 
which  he  has  not  reduced  to  possession,  he  is  entitled  to  recoyer 
and  enjoy  them  as  his  own  by  acting  as  her  administrator.  He 
lias  this  right,  according  to  some,  jure  marUi,  and  irrespectiyo  of 
any  statute:  Wail  y.  Watt,  8  Yes.  jun.  244.  It  has  also  been  held 
that  the  authority  was  conferred  by  the  statute  81  Edw.  HE., 
which  directs  that  administration  be  granted  to  the  nearest  and 
most  lawful  friend:  Salk.  86.  By  others  it  has  been  thought  that 
the  husband  deriyes  his  right  from  the  statute  29  Car.  11.,  c.  8, 
Bees.  2,  5;  similar  statute,  1  B.  L.  814;  2  Id.  75;  Squib  y.  Wager, 
1  P.  Wms.  878;  Cart  y.  Bees,  Id.  881;  Whilaher  y.  Whilaker,  6 
Johns.  112;  2  Kenfs  Com.  185.  If  the  husband,  who  has  sur* 
viTed  his  wife,  dies  before  he  has  recoyered  the  choses  in  action, 
his  representatiyes  are  entitled  to  them:  Butler's  note,  804,  to 
Ck>.  lit,  Ub.  8;  ElliM  r.  Coains,  8  Atk.  526;  Whilaker  y.  Whiia^ 
her,  supra;  Beits  y.  Mtrnpton,  2  Bam.  &  Adol.  278.    And  in  this 


16S  Westeryelt  v.  Oregg.  [Ilew  York. 

state  there  is  an  express  statutory  provision  that  '*  if  the  hus- 
band  shall  die,  leaving  any  of  the  assets  of  his  wife  unadmin- 
istered,  they  shall  pass  to  his  executor  or  administrator  as  part 
of  his  personal  estate,  but  shall  be  liable  for  her  debts,  to  her 
creditors,  in  preference  to  the  creditors  of  the  husband."  And 
''if  letters  of  administration  in  the  estate  of  a  married  woman 
shall  be  granted  to  any  other  person  than  her  husband,  by  rea- 
son of  his  neglect,  refusal,  or  incompetence  to  take  the  same,  such 
administrator  shall  account  for  and  pay  over  the  assets  remain- 
ing in  his  hands  to  such  husband  or  his  personal  representa- 
tives:" 2R.  S.  70. 

It  is  apparent  from  these  rules  that  the  interest  of  the  hus- 
band in  the  choses  in  action  of  the  wife  which  have  not  been 
reduced  to  possession  is  of  a  peculiar  and  anomalous  nature. 
But  can  it  be  said  that  he  has  not  a  vested  right  of  a  valuable 
character  which  the  law  is  bound  to  protect?  The  counsel  for 
the  appellant  referred  us  in  his  argument  to  the  case  of  Clark 
V.  McCreary,  12  Smed.  &  M.  347,  which  was  decided  under  a 
statute  of  Mississippi,  and  presented  a  question  similar  to  that 
which  is  raised  here.  In  that  case  the  court  placed  their  opin- 
ion upon  the  ground  that  the  right  of  the  husband  to  reduce  hia 
wife's  choses  in  action  into  possession  was  not  a  vested  interest; 
that  is,  as  they  explain  it,  the  property  is  not  vested  in  possession; 
and  they  quote  a  definition  given  by  Chancellor  Kent,  that  "  an 
estate  is  vested  when  there  is  an  immediate  right  of  present  enjoy- 
ment, or  a  present  fixed  right  of  future  enjoyment:"  4  Kent's 
Com.  202.  They  further  say  that  "  the  husband's  interest  in  the 
wife's  choses  in  action  is  a  qualified  right,  upon  condition  that  he 
reduce  them  into  possession  during  coverture.  This  condition  is 
manifestly  a  condition  precedent,  and  it  is  indispensable  that 
the  condition  precedent  should  take  place  before  the  estate  can 
vest.  In  this  case  the  law  was  passed  before  the  condition  was 
performed,  and  intercepted  the  right  of  the  husband."  .  Now,  it) 
seems  to  me  that  the  whole  of  this  reasoning  is  founded  upon  a 
fallacy.  A  right  to  reduce  a  chose  in  action  to  possession  is  one 
thing,  and  a  right  to  the  property,  which  is  the  result  of  the 
process  by  which  the  chose  in  action  has  been  reduced  to  pos- 
session, is  another  and  a  different  thing.  But  they  are  both 
equally  vested  rights.  The  one  is  a  vested  right  to  obtain  the 
thing,  with  the  certainty  of  obtaining  it  by  resorting  to  the  neoes- 
saxy  proceedings,  unless  there  be  a  legal  defense,  and  the  other 
is  a  vested  right  to  the  thing  after  it  has  been  obtained.  This 
distinction  is  entirely  lost  sight  of  in  the  opinion  of  the  learned 


Dec  1864]  Westebyelt  v.  QBBoa  163 

oomt  in  the  case  last  cited.  Upon  the  argument  of  this  appeal, 
the  counsel  for  the  appellant  defined  the  intezeet  of  the  husband 
in  his  wife's  legacy  to  be  an  authority  to  collect  it.  I  do  not 
object  to  this  definition  if  \?e  add  the  words  "for  his  own  benefit" 
In  the  case  of  Gallego  v.  OaUego,  2  Brock.  286,  Marshall,  0.  J., 
said:  "  The  husband  has  no  interest  in  the  legacy  of  his  wife; 
he  has  only  a  power  to  make  it  his  by  reducing  it  to  possession." 
But  the  words  ''authority"  and  ''power/'  as  here  used,  are 
sjnoDymous  with  ' '  right."  This  right,  it  is  true,  is  personal,  and 
no  one  con  exercise  it  but  the  husband  himself  or  his  assigns, 
or  under  certain  circumstances  his  representatiyes.  It  is  not  a 
right  which  can  be  taken  in  execution:  Pricey.  Sesrions^  3  How. 
624.  Neither  will  a  court  of  equity  compel  a  husband  to  exer- 
cise it  in  favor  of  his  creditors:  OaUego  ▼.  OaUego^  2  Brock.  286. 
But  it  is  none  the  less  valuable  to  the  husband  on  that  account. 
It  is  a  right  of  a  peculiar  and  restricted  character,  but  it  is  fixed, 
certain,  and  vested,  and  this  case  shows  that  it  may  be  of  great 
pecuniaiy  value.  The  legacy  given  to  the  respondent's  wife 
amouDts  to  five  thousand  dollars.  At  the  time  that  these  pro- 
ceedings were  commenced  there  is  no  doubt  that  the  husband 
could  have  legally  assigned  his  right  to  reduce  the  legacy  into 
possession  for  a  valuable  consideration.  He  was  then  entitled 
to  receive  the  legacy  as  his  own  by  taking  the  necessary  legal 
proceedings,  and  he  will  now  be  entitled  to  receive  it,  unless 
the  right  which  he  then  had  has  been  legally  taken  away,  and 
if  that  right  has  been  taken  away  he  has  lost  a  vested  right  of 
the  value  of  the  legacy  in  question.  What,  then,  has  been  the 
effect  of  the  act  of  1848? 

The  constitution  of  this  state  declares  that  "  no  person  shall 
be  deprived  of  Kfe,  liberty,  or  property,  without  due  process  of 
law:"  CJonst.,  art.  1,  sec.  6.  Due  process  of  law  undoubtedly 
means  in  the  due  course  of  legal  proceedings,  according  to 
those  rules  and  forms  which  have  been  established  for  the  pro- 
tection of  private  rights.  Such  an  act  as  the  legislature  may, 
in  iho  uncontrolled  exercise  of  its  power,  think  fit  to  pass  is 
in  no  sense  tlie  process  of  law  designated  by  the  constitution. 
This  construction  has  heretofore  been  adopted:  Taylor  y.  Porter , 
4  Hill,  140;  and  it  is  so  obviously  sound  that  the  mere  state- 
ment of  it  is  sufficient.  Its  correctness  can  not  be  made  more 
apparent  by  argument  or  illustration. 

I  think  iiiat  the  right  of  the  respondent  to  recover  the  legacy 
of  his  wife,  which  existed  at  the  time  that  the  statute  in  refer- 
ence to  married  women  went  into  operation,  was  property  within 


164  Westebvelt  u  OBBoa  [New  Tod^, 

the  wiiMkwfny  of  tba  ooiiBtitation«  and  that  he  has  not  been  de- 
prived of  it  hj  the  statute. 
The  judgment  should  be  affirmed. 

Dekio,  J.  When  the  act  of  1848,  for  the  more  effectual  pro- 
tection of  the  property  of  married  women,  took  effect,  the  rights 
of  the  respondent,  William  Gregg,  respecting  the  legacy  be- 
queathed to  his  wife  by  tbe  will  of  her  father,  were  as  follows: 
He  was  entitled  to  prosecute  for  it,  and  when  recovered,  to  take 
the  money  to  his  own  use;  he  had  a  right  to  assign  it  for  a  valu- 
able consideration,  and  such  assignment  would  vest  it  in  the 
assignee,  and  would  cut  off  the  wife's  right  to  it  in  the  event  of 
her  surviving  him,  and  he  might  also  release  and  discharge  it. 
These  rights  were,  however,  subject  to  the  jurisdiction  of  the 
courts  to  compel  him  to  make  a  suitable  provision  for  her,  under 
the  head  of  what  is  called  the  wife's  equity.  In  the  event  of 
her  dying  before  him,  and  before  he  had  recovered  the  legacy, 
it  would  belong  to  him  absolutely;  and  should  he  afterwards 
die  leaving  the  money  uncollected,  his  executor  or  administrator 
would  be  entitled  to  collect  it  as  a  portion  of  his  assets  without 
taking  out  administration  on  her  estate.  But  should  he  die 
leaving  her  surviving,  without  having  reduced  the  legBLcy  to 
])Ossession,  and  without  having  assigned  or  released  it,  or  re- 
covered a  judgment  or  decree  in  his  sole  name  for  the  money, 
it  would  survive  to  her,  and  his  representatives  would  have  no 
interest  in  it:  2  Kent's  Com.  136,  et  seq.;  1  Koper  on  Husb. 
&  W.  227;  Schuyler  v.  ffoyle,  5  Johns.  Ch.  196;  2  R.  S.  75, 
sec.  29;  Roosevelt  v.  EUithorpe,  10  Paige,  415,  420;  Lockwood  v. 
Stockholm,  11  Id.  87,  91. 

The  single  question  in  this  cause  is,  whether  these  rights  of 
the  husband  to  the  legacy  in  question  were  taken  away  by  the 
act  of  the  legislature  referred  to.  When  that  act  was  passed  he 
was  prosecuting  in  the  joint  names  of  himself  and  his  wife,  to 
obtain  a  decree  of  the  surrogate  for  the  payment  of  the  legacy; 
and  but  for  the  statute  it  is  entirely  certain  that  he  would  have 
been  entitled  to  a  decree  which  would  have  enabled  him  to  re- 
cover the  money  and  appropriate  it  to  his  own  use. 

It  seems  to  me  to  be  impossible  so  to  construe  the  second 
section  of  this  statute  as  to  limit  its  provisions  to  property  to  be 
acquired  by  a  wife  then  married,  after  its  passage,  as  was  done 
in  Snyder  v.  Snyder,  3  Barb.  621.  The  section  relates  to  persona 
in  a  state  of  coverture  when  the  act  was  passed.  It  speaks  of 
the  real  and  personal  property  of  the  wife,  and  declares  that  it 
shall  be  her  sole  and  separate  property.    The  language  is  soffi* 


Dee.  1854.]  Webtxbtslt  v.  Obbool  165 

cienfiy  broad  to  embmos  the  propwiy  whidi  she  owned  at  the 
pesBftge  of  the  act.  Still,  wexe  it  not  for  the  oondodhig  wofds 
of  the  eeetion,  we  might  peihi^  >ppl7  ^  ^he  prorvisioii  the 
doctrine  of  Dask  v.  Van  Kleek,  7  Johns.  477  [5  Am.  Deo.  291], 
tnd  of  the  claae  of  caaee  whioh  hold  tiiat  geneial  words  in  a 
statute  should  be  oonstmed  proepeotxiHelj  when  a  different  in* 
teipretation  would  take  away  Tested  rights.  But  the  act  declares 
that  the  property  of  the  wife  shall  be  her  sole  and  separate  prop- 
erty, as  if  she  were  a  single  female,  except  so  far  as  the  same 
may  be  liable  for  the  debts  of  her  hnsband  theratofoie  contracted. 
This  last  expression  could  not  be  predicated  of  property  which 
might  be  acquired  by  or  be  given  to  the  wife  after  tibe  passage 
of  this  act,  for  all  such  property  would  be  completely  protected 
by  the  third  section.  Neither  can  the  provision  be  limited  to 
the  strictly  separate  property  of  women  then  married,  for  as  to 
BQch  property  there  would  be  no  need  of  such  a  statate;  and 
besides,  it  would  not,  ordinarily,  be  liable  for  the  debts  of  the 
husband.  I  am  therefore  constrained  to  believe  that  the  true 
meaning  of  the  section  is  that  all  property  which  the  wife  owned 
at  the  time  of  the  marriage,  and  that  all  such  as  she  had  acquired 
by  gift,  devise,  or  otherwise  during  the  coverture  but  before  the 
passing  of  the  act,  should  thereafter  be  deemed  to  be  vested  in 
her  as  though  she  were  a  feme  noie^  to  the  exclusion  of  any  title 
which  by  the  pre-existing  laws  the  husband  had  acquired  in  it 
by  virtue  of  the  marriage  relation,  saving  only  the  rights  of 
creditors.  We  are  to  inquire,  then,  whether  the  legislatme  were 
competent  to  enact  such  a  law. 

I  am  of  opinion  that  the  act,  in  its  application  to  this  ease,  is 
a  violation  of  the  constitution  of  this  state.  Among  the  limi- 
tations of  the  powers  of  government  contained  in  that  instru- 
ment is  the  one  which  declares  that  **  no  person  shall  be  de- 
prived of  life,  liberty,  or  property  without  due  process  of  law:" 
Const.,  art.  1,  sec.  6.  That  the  right  which  the  respondent  had 
to  this  legacy  the  instant  before  the  act  of  1848  took  effect  was 
property  in  the  justest  sense  of  that  term,  I  can  not  doubt.  An 
immediate  right  of  action  for  the  recovery  of  money  which 
when  recovered  is  to  belong  to  the  pirty  in  whom  the  right  of 
Mtion  exists,  subject  to  be  defeated  only  by  the  contingency 
that  a  person  in  being  may  die  before  judgment  can  be  obtained, 
is  a  valuable  pecuniary  interest,  which  deserves  protection 
equally  with  rights  which  are  absolute  and  unconditional.  Be« 
sides,  this  was  an  interest  which  the  respondent  might  sell,  and 
for  which  he  might  receive  the  consideration  to  his  own  use. 


166  Westervelt  v.  Oregg.  [New  York. 

This  properly  the  act,  if  Talid,  has  effectually  deprived  him  of. 
It  declares  it  shall  no  longer  belong  to  him,  but  shall  be  the 
property  of  his  wife,  as  though  she  were  a  single  female.  The 
act  does  not  fall  within  the  meaning  of  *'  due  process  of  law." 
That  term,  according  to  Lord  Coke,  means  being  brought  in  to 
answer,  according  to  the  *'  old  law  of  the  land:"  2  Inst.  50; 
ace  see  also  Taylor  ▼.  Porter,  4  Hill,  140  [40  Anu  Dec.  274], 
and  cases  cited  by  Bronson,  J.;  2  Eenfs  Com.  13. 

The  provision  was  designed  to  protect  the  citizen  against  all 
mere  acts  of  power,  whether  flowing  from  the  legislative  or  ex- 
ecutive branches  of  the  government.  It  does  iiot,  of  course, 
touch  the  right  of  the  state  to  appropriate  private  property  to 
public  use  upon  making  due  compensation,  which  is  fully  rec- 
ognized in  another  part  of  the  constitution;  but  no  power  in 
the  state  can  legally  confer  upon  one  person  or  class  of  persons 
the  property  of  another  person  or  class,  without  their  consent, 
whatever  motives  of  policy  may  exist  in  favor  of  such  transfer. 

I  have  intentionally  forborne  to  rely  upon  the  principle  men- 
tioned in  some  cases  of  a  supposed  implied  restriction  upon 
legislative  power,  arising  out  of  the  nature  of  free  institutions; 
first,  because  I  suppose  a  judgment  in  favor  of  the  respondent 
will  stand  firmly  upon  express  constitutional  provisions,  but 
principally  because,  as  at  present  advised,  I  am  not  prepared  to 
assent  to  the  doctrine  that  the  courts  can  limit  the  authority  of 
the  legislature  by  exceptions  which  are  not  found  in  the  consti- 
tution itself:  2  Kent's  Com.  340,  and  cases  cited  in  note  a; 
Taylor  v.  Porter,  supra;  Wilkinson  v.  Leland,  2  Pet.  657. 

The  constitutional  validity  of  the  statute  in  questaon  has  been 
several  times  under  consideration  in  the  supreme  court,  where 
views  in  their  result  similar  to  those  whidi  I  have  expressed 
have  generally  prevailed:  Snyder  v.  Snyder,  3  Barb.  621;  Holmes 
V.  Holmes,  4  Id.  296;  White  v.  White,  5  Id.  474;  Hurdv.  Cass, 
9  Id.  366. 

The  judgment  of  the  supreme  court  should  be  affirmed. 

All  the  judges  except  Buooles,  J.,  who  took  no  part  in  the 
decision,  concurred. 

Judgment  accordingly. 

RsTBospEcrivK  Law  WmcH  does  not  lurAiB  Vestzd  Bigbtb  is  Vaudi 
See  RawU  v.  Kennedy,  58  Am.  Dec  289,  note  296;  Wynne**  Xestee  ▼.  Wynm, 
Id.  66,  note  73,  wbere  other  cases  are  ooUeoted.  As  to  what  are  vested 
rights,  see  Baugher  v.  Nelaon,  52  Id.  694,  and  note  702,  where  other  cases  an 
referred  to. 


Deo.  1S54.]  Westebvelt  v.  Qrego.  167 

RiGBTS  or  Husband  otkr  Wnv's  P^opkbtt:  8m  Bmiei^  t.  Ch^kit  51 
Am.  Dec  236,  note  241,  where  other  cases  are  collected;  ArrimgUmy,  Screwt^ 
49  Id.  408,  note  409.  The  title  to  the  wife's  perMmal  piopeily  Tested  In  the 
husband  at  common  law:  MaiUrc/  Winne^  1  Laos.  510^  citing  the  principal  case. 
The  principal  case  is  also  cited  in  BuJer  v.  HuUe,  33  Barb.  266^  as  a  oass  in 
irhidi  the  rights  of  the  hnsband  to  the  wife's  choses  in  action  before  the  new 
New  York  act  of  ld48  are  briefly  ennmarated.  In  the  following  oases  the 
principal  case  is  cited  in  support  of  the  proposition  that  the  New  York  stat- 
ute of  1848,  for  the  protection  of  the  rights  of  married  women,  did  not  and 
ooald  not  coostitntionally  talce  from  the  husband  the  right  to  redooe  to  pos- 
session tlie  wife's  choses  in  action,  where  the  right  had  become  vested  by 
marriage  before  the  passage  of  the  act:  VaUanee  T.  Bauichf  8  Abb.  Pr.  371; 
S.  C,  28  Barb.  636;  S.  C,  17  How.  Pr.  246;  Savage  ▼.  aNeO,  42  Barb.  379; 
Brigga  v.  Milchdl,  60  Id.  312;  MaUer  qf  BeeiproeUg  Bemi,  22  N.  T.  16; 
WJuU  V.  Wager,  25  Id.  332;  Bamts  v.  Underwood,  47  Id.  356.  The  princi- 
pal case  is  dted  in  Ryder  v.  JIvUe,  24  Id.  374,  to  the  point  that  it  is  only  in 
the  event  of  the  hnsband's  dying,  leaving  the  wife  sorviving  him  without 
having  reduced  her  choses  in  action  to  possession,  and  without  having  m- 
signed  or  released  them,  or  recovered  a  judgment  or  decree  in  his  sole  name 
for  the  money,  that  they  would  survive  to  her,  and  his  representatives  have 
DO  interest  in  them;  and  in  Jaycox  v.  CaldweU,  37  How.  Pr.  245,  to  the  point 
that  if  the  wife  died  before  the  husband  had  reduced  her  personal  property 
into  possession  as  his  own  he  could  do  so  afterwards. 

LiOACT  TO  WiFs,  Which  Vests  in  Husbakd  by  the  common  law,  is  bis 
property  within  the  meaning  of  the  constitution:  MeCahiU  v.  I/amiUon,  20 
llun,  393,  citing  the  principal  case.  It  is  not  competent  for  the  legislature 
to  take  away  the  right  of  a  husband  to  a  legacy  bequeathed  to  his  wife  before 
the  passage  of  tho  act:  NorrU  v.  Bq/ea,  13  N.  Y.  288,  citing  the  principal 
case.  An  immediate  right  of  action  for  the  recovery  of  a  debt  is  property 
within  the  meaning  and  protection  of  the  constitution:  Berleyy.  Bampacher, 
6  Chier,  189,  citing  the  principal  case.  And  where  title  to  property  has  ones 
T»ted,  it  can  not  be  divested  by  the  enactment  of  a  subsequent  statute: 
Lnhr$  v.  Eimer,  13  Hun,  401;  Junction  R.  B.  Co.  v.  HarrU,  9  Ind.  186;  flol- 
land  V.  Moody,  12  LI.  172,  all  citing  the  principal  case. 

'*Dui  rROCESS  OF  Law,"  Meaning  or:  See  Embury  y,  Conner,  53  Am. 
Dec.  325,  note  337,  where  other  cases  are  collected.  "  jDne  process  of  law" 
means  in  the  due  course  of  legal  proceedings  according  to  those  rules  estab- 
lished for  the  protection  of  private  rights:  Boekwell  v.  bearing,  35  N.  Y. 
306;  CampbeU  v.  Evan$,  45  Id.  358;  Stuart  v.  Palmer,  74  Id.  191;  Bertholfv, 
O'lieiUy,  Id.  519;  Cohen  v.  WriglU,  22  Cal.  318;  FowUy,  Mann,  63  Iowa,  43; 
li^9  V.  City  of  Watertoum,  19  Wall.  122,  all  citing  the  principal  case.  Such 
in  act  as  the  legislature  may,  in  the  uncontrolled  exercise  of  its  power,  think 
fit  to  pass,  is  in  no  sense  the  process  of  law  designated  by  the  constitution: 
PfoffU  V.  Deyoe,  2  Thomp.  k  C.  149,  citing  the  principal  case.  Whatever  the 
fuDilameutal  law  of  a  state  has  established  as  a  rule  for  the  protection  of  pri- 
Tate  rights,  applicable  alike  to  all  its  citizens,  is  due  process  of  law:  MaUet 
qf  Broadway  Widening,  63  Barb.  576,  citing  the  principal  case.  The  prop- 
erty of  one  person  can  not  be  transferred  to  another  without  due  process  of 
bw:  People  v.  Toynbee,  20  Barb.  199;  S.  C,  11  How.  Pr.  322;  S.  C,  2  Ptark. 
Cr.  344,  539;  MaUer  o/Beebee,  20  Hun,  465,  both  citing  the  principal  case. 

The  pkincipal  cask  is  distinouished  in  Bieben  v.  WhUe,  43  Barb.  97| 
6.  C.  28  How.  Pr.  323;  Stwrgie  v.  Swing,  18  DL  186;  and  oritioised  in  2^0$ 
V.  Ewing,  9  Ind.  4a 


GASES  AT  LAW 

nr  THB 

SUPREME  COURT 

or 
NOBTH   CAROLINA. 


Lewib  V.  KsELINa. 

tl  Jon'tLAW,290.] 

Right  or  Nayiqatiof  a  Pabauount  to  Right  of  Fdhdio  in  a  lumgabU 
river. 

Btkamboat  on  Navigablb  Strkam  has  Right  to  Go  to  Bahx  when  nod 
and  where  it  is  neoeaaary  to  do  eo  for  the  purpose  of  taking  in  or  die- 
oharging  paaiengen  or  freight*  provided  she  does  no  nnneoeasary  damage 
to  aeinee  spread  in  her  way,  and  those  in  charge  of  her  act  without  wan* 
tonness  or  malice. 

Cass  for  negligently  running  into  and  injuring  a  seine.  The 
damage  for  which  the  action  was  brought  was  done  to  the 
plaintiffs'  seine  by  the  defendant's  steamboat  becoming  entan- 
gled in  it  in  consequence  of  the  boat's  having  put  into  the  bank 
to  take  on  board  a  passenger.  Verdict  for  the  plaintiflw.  The 
other  facts  appear  from  the  opinion. 

Barnes^  for  the  plaintiffs. 

Smith,  for  the  defendant. 

By  Court,  Peabson,  J.  The  case  presents  a  Tery  interesting 
question,  and  we  have  given  to  it  much  consideration,  with  a 
?iew,  if  possible,  to  "  mark  the  line"  dividing  the  right  of  navi- 
gation and  the  right  of  fishing.  Both  rights  exist,  not  as  pri- 
vate rights,  depending  on  grant  or  riparian  ownership,  but  as 
rights  in  common,  to  which  one  citizen  is  entitled  as  well  aa 
another.  The  right  of  navigation  is  paramount,  because  it  is  of 
most  importance  to  the  ''  public  weal."  The  difficulty  is  to  lay 
down  a  rule  by  which  to  allow  the  free  and  full  exercise  of  this 
paramount  right  in  such  a  way  as  to  leave  room  for  the  other 


Jiiiie»  1864.]  Lewis  v.  Ekeldni  m 

nghi  to  stuid  on» except  as  amere  mattorof  mdEBnuioe.  Unleaa 
the  line  can  be  marked  duitinctl7»  it  is  bettor  to  bafe  no  line  at 
all;  otherwisB  there  will  be  an  infinitpf  of  lawsoits  growing  out 
of  these  conflicting  interests. 

We  haire  concluded  that  the  line  made  by  law  is  a  very  broad 
one,  and  that,  in  fact,  the  fishing  inteiest  has  no  gronnd  to 
ftand  on  except  as  a  matter  of  snfferance.  The  ownership 
of  the  land  lying  near  the  waterconrse  confers  no  right,  for 
thai  stops  at  high-water  mark,  leaTing  the  water  and  the  beach 
between  high  and  low  water  mark  for  a  public  highway.  The 
state  has  not,  as  the  sorereign,  made  any  special  grant  of  the 
right  to  fish  to  the  plaintiffs,  so  they  stand  like  any  other  dtinn, 
and  haye  a  right  to  catch  as  many  fish  as  they  can,  like  the  rest 
of  us:  Collins  v.  Benbury,  5  Ired.  L.  119  [42  Am.  Dec.  155]. 
Note  the  distinction.  In  the  cases  cited  from  the  English  books 
the  right  of  fishing  is  specially  granted  l^y  the  crown. 

It  is  argued  that  it  ncTer  would  do  to  require  a  steamboat  or 
other  Yessel  to  stop  or  go  out  of  the  way  in  order  to  avoid  a  set  net 
or  seine,  because  if  obliged  to  stop  for  one,  they  may  be  obliged 
to  stop  for  a  thousand,  and  there  would  be  no  getting  along. 

But  it  is  contended  that  the  defendant  had  no  right  to  come 
to  the  bank  at  the  time  and  place  he  did,  and  is  therefore  bound 
to  pay  all  of  the  damage  that  resulted  from  the  fact  of  his  doing 
Bo.  Thus  the  question  is,  Had  the  defendant  a  right  to  come 
to  the  bank  at  the  time  and  place  he  did  ?  He  says  that  by  rea- 
son of  the  paramount  right  of  navigation  he  had  a  right  to 
oome  to  the  bank  at  any  time  and  at  any  place,  when  and  t^here 
there  was  a  bona  fide  necessity  for  him  to  do  so  in  the  pursuit  of 
his  vocation;  that  in  this  particular  instance,  without  any  wan- 
tonness or  malice,  he  did  only  so  much  as  his  business  required 
him  to  do,  and  took  pains  to  avoid  doing  any  unnecessary  dam- 
age to  the  plaintiffs. 

The  fact  that  the  defendant  acted  without  wantonness  ormal* 
ioe  is  conceded,  and  there  is  no  allegation  that  he  did  any  tm- 
neoessaiy  damage;  but  the  gravamen  of  the  plaintiffs  is  that  no 
Bkill  or  care  could  have  brought  the  boat  in  without  doing  dam- 
age to  the  seine,  and  therefore  it  was  in  contemplation  of  law 
negligence  and  wrongful  for  the  defendant  to  attempt  to  do  it. 
So  we  come  fairly  to  the  issue:  must  a  steamboat  stop  until  a 
>nne  can  be  drawn  out  of  the  way?  or  has  the  boat  a  right  to  go 
to  the  bank  at  any  time  and  at  any  place,  when  there  is  a  bona 
fiie  necessity  for  doing  so,  to  t^e  in  freight  or  passengers, 
doing  no  unnecessary  damagef 


170  Oyebton  v.  Sawyib.  [N.  Carolina, 

We  have  come  to  the  conclusion  that  this  is  the  only  line 
that  can  be  established.  A  boat  on  a  navigable  stieam  has  a 
right  to  ''  take  her  course'*  and  go  to  the  bank  when  and  where 
it  is  necessary  to  do  so— doing  no  unnecessary  damage  and  act^ 
ing  without  wantonness  or  malice — and  is  not  obliged  to  stop  or 
go  out  of  her  way  or  wait  upon  the  movements  of  those  who  are 
managing  a  seine  or  net,  which  they  are  permitted  to  use  by  the 
sufference  of  the  sovereign  and  not  as  a  right  conferred  by  grant. 
This  is  the  only  line  that  can  be  established,  plain  enough  for 
practical  purposes.  There  must  be  no  wantonness  or  malice — 
no  imnecessary  damage — but  a  bona  Jide  exercise  of  the  right  of 
navigation. 

There  is  error.     Venire  de  novo. 


Bight  or  Navxoatiob  is  Suferiok  to  Right  of  Fibhxby:  8m  Pt&t  v. 
Munn,  7  Am*  Dea  570;  Davis  v.  JerHn^  5  Joom  Ik  293|  dting  the  prind- 


Overton  v.  Sawyer 

[1  JoNBB'B  Law,  308.] 

Right  to  havb  Water  Flow  off  Laitd  through  Katubal  Drain  belongi 
to  the  owner  of  the  Iand»  without  the  acquiiition  of  the  eMement  by  pr^ 
scriptioD,  aud  he  may  lawfully  remove  an  embankment  ereoted  by  ao* 
other,  which  obfitructs  or  cuts  off  sach  flow. 

Case  tried  at  the  spring  term  of  the  Camden  superior  court 
The  facts  appear  from  the  opinion. 

Martin,  for  the  plaintiff. 

No  counsel  appeared  for  the  defendant. 

By  Court,  Peabson,  J.  Without  reference  to  the  acquisition 
of  the  easement  by  prescription,  the  defendant  had  a  right  to 
have  the  water  allowed  to  pass  off  of  his  land  through  the  natural 
drain;  and  when  the  plaintiff,  by  means  of  the  embankment 
aero3s  his  natural  drain,  obstructed  the  water  and  interfered 
with  this  right  of  defendant,  the  latter  had  a  cause  of  action 
against  the  former  for  causing  the  obstruction.  Instead  of 
bringing  an  action  he  removed  the  obstruction.  It  may  be  that 
Gliamberlain  might  have  maintained  an  action  against  him  for 
coming  upon  his  land,  but  we  can  see  no  ground  upon  which 
the  plaintiff  can  maintain  an  action  against  him  for  merely  un- 
doing that  which  the  plaintiff  ought  not  to  have  done.  If  a  man 
turns  his  hog  into  the  cornfield  of  a  neighbor,  and  the  latter 


June,  1854]  Melyin  v.  Easlbt.  171 

pulls  down  the  fence  and  drives  the  hog  out,  doing  no  nnnoeee 
fiaiy  damage,  can  he  be  sned  for  doing  so  upon  the  ground  that 
he  ought  to  have  let  the  hog  alone  and  brought  an  action  for 
the  trespaas?    There  is  no  error. 
Judgment  affirmed. 

LAjn>-owvxR  HAS  Right  to  hatb  Subfacb  Watbr  Flow  orr  hb  Uad 
throng  the  natanl  chaniwln,  and  if  another  obetracta  that  right  by  an  em- 
hinkment,  each  owner  has  a  cause  of  action  for  the  obstroction:  Skame  r. 
KamoM  dty,  8L  J,  d:  C.  B.  R,  R,  Co,,  71  ^lo.  249,  citing  the  principal  oasa. 


Melyin  v.  Eablet. 

[1  JonBi'i  Law,  888.] 

PionsBioirAL  Books  orJSooks  or  Sciekcx  arb  not  AnifranBLi  nf  Bri- 
DXXd,  although  experts  may  be  asked  their  Judgment  end  the  grounds 
of  it,  which  may,  in  some  degree,  be  founded  oo  books  as  a  part  of  their 
general  knowledge. 

Wheu  Counsel  in  Addsxssino  Jury  Makes  Statucxnts  tbom  Book  or 
SciXNCB,  which  he  holds  in  his  hand,  the  opposite  counsel  does  not  waive 
the  error  by  refraining  from  interrupting  him  at  the  time,  for  it  is  the 
duty  of  the  judge  to  correct  the  mistake  when  he  comes  to  charge  the  Jury. 

Fob  Jubob  to  Charob  Jurt  that  Book  or  Farribrt,  Rktbrrbd  to  bt 
CouNSKL,  in  addressing  them,  is  entitled  to  as  much  weight  as  the  testi* 
mony  of  an  expert  witness  in  the  science,  who  had  been  examined  in  the 
cause,  is  a  clear  violation  of  the  act  of  1796,  which  prohibits  the  judge 
from  expreesing  any  opinion  as  to  the  credibility  or  weight  of  the  testi* 
mony. 

Assuicpsrr  for  breach  of  warranty  of  the  soundness  of  a  horse. 
To  prove  the  unsoundness  of  the  horse,  the  plaintiff  introduced 
witnesses  who  testified  to  the  swelling  of  his  sheath,  and  his 
death.  An  expert  witness  for  defendant  then  testified  that  he 
thought  that  the  swelling  of  the  sheatii  was  not  such  a  disease 
as  would  permanently  impair  the  value  of  the  horse,  for  it  was 
only  a  temporary  disease.  Counsel  for  plaintiff,  in  his  address 
to  the  jury,  referred  to  a  book,  which  he  held  in  his  hand  but 
did  not  read,  as  stating  that  the  swelling  of  the  sheath  was  one 
of  the  symptoms  of  stone  in  the  bladder,  which,  he  contended, 
was  the  disease  of  which  the  horse  died.  No  objection  was 
taken  to  this  course.    The  other  facts  axe  stated  in  the  opinion* 

E.  G.  Haywood^  for  the  phdntifll 

D.  Reid,  for  the  defendant. 

By  Court,  Battle,  J.  We  have  no  hesitation  in  saying  thai 
the  defendant  is  entitled  to  a  venire  de  novo,  because  of  two 


ITS  Kkltxn  v.  Easlxi.  [N.  OnmiHiiiL 

erron  omniiiitled,  to  his  prejudioe,  hj  <he  oourt  The  book  os 
jhedifloniM  of  hones,  extraete  from  whidnrBregirenin  chaiy  to 
the  jury,  was  not  admissible  in  evidence,  and  yet  the  court  gave 
it  all  the  effect  of  such.  The  rule  is  that  professional  boohs,  or 
books  of  science,  e.  g.,  medical  books,  are  not  admissible  in 
evidence,  though  experts  may  be  asked  their  judgment  and  the 
grounds  of  it,  which  may  in  some  degree  be  founded  on  booloB, 
as  a  part  of  their  genend  knowledge:  Cottier  t.  Simjmon,  6 
Oar.  &  P.  78;  24  Eng.  Com.  L.  219;  1  Phill.  Ey.  761,  Cowen  A 
Hill's  notes.  The  reason  of  the  rule  is  obvious,  that  if  the 
authors  were  present  they  could  not  be  examined  without 
being  sworn  and  exposed  to  a  croos-examination.  Their 
declarations  or  statements,  whether  merely  verbal,  written,  or 
printed  and  published  in  books,  are  not  admissible.  But  it  is 
said  that  no  objection  was  made  when  the  plaintiff's  oounael 
referred  to  and  made  statements  from  the  book  which  he  held 
in  his  hand  but  did  not  read.  It  was  not  the  duty  of  the  op- 
posite counsel  to  interrupt  the  argument  of  the  plaintiff's  coun- 
sel by  stopping  him  to  make  his  objection  then,  because  the 
presiding  judge  was  not  bound  to  notice  the  error  at  that  time. 
This  cotuii  said,  in  the  case  of  State  v.  O'Neal,  7  lied.  2S1, 
that  "it  is  the  right  and  the  duty  of  the  presiding  judge,  if 
counsel  state  facts  as  proved  upon  which  no  evidence  has  been 
giiren,  to  correct  the  mistake,  and  he  may  do  it  at  the  moment, 
or  irait  until  he  charges  the  jury,  perhaps  the  most  approjiiiate 
time."  Here  the  judge  did  not  correct  the  mistake  at  the  time, 
nor  when  he  came  to  charge  the  jury.  On  the  contrary,  he  in 
effect  decided  that  the  book  was  admissible  in  evidence,  and 
charged  the  jury  upon  it  as  evidence.  In  dofing  this  he  erred; 
and  then  he  committed  another  error  in  saying  that  "  as  it  was 
an  American  edition  of  an  English  book  that  treated  of  the 
diseases  of  horses,  he  supposed  it  might  be  entitled  to  as  much 
authority  in  the  science  as  the  witness."  That  was  a  clear  viola- 
tion of  the  act  of  1796:  1  R.  S.,  c.  81,  sec.  136.  It  is  the  duty 
of  the  presiding  judge  to  decide  all  questions  arising  upon  the 
competency  of  testimony,  but  he  is  not  at  liberty  to  express  any 
opinion  as  to  its  credibility  or  weight:  See  Stale  v.  Cardwett^ 
Busb.  245,  and  the  cases  therein  cited. 
The  judgment  must  be  reversed,  and  a  venire  de  novo  awarded. 


pRorsasioMAL  Books  or  Books  or  Sciknos  abs  not  AniinsiBLa  ui  Bwh- 
unrcB:  Ht^finam  t.  OZidk,  77  N.  C  58,  citing  the  princii»l 


June,  1864.]  LorriN  v.  Com  .17B 

Doe  ex  dem.  Lofcdt  t;.  Cobb. 

(1  J<nni^  'Law,  Ml] 

tauaBum  or  Two  Tbacsb  of  Land  Aojomw  Om  or  Dmrim^  lor  Mvia 
yvut,  k  not  suoh  powwnion  of  tiie  latter  tract  as  will  gm  the  pvtf  ia 
poiMwfon  a  good  title  under  the  statute  of  limitatioDi,  although  the 
three  traota  were  oonveyed  by  one  deed,  aa  ■epanle  teaota  iqparately 
described. 

FUDIKO  HOOB  AND  CUTTIHO  TmBBB   TrEIB   UMUr   TbA0V    OV   ItAXm    BIIS- 

oeptible  of  other  modes  of  oae  and  enjoyment  are  not  evidence  of  soch  a 
poMsssioii  aa,  oontinned  for  aeren  years  under  color  of  tttle,  will  coaler  a 
good  title  under  the  statnte  of  limitations. 

Ejboimbnt.     The  facta  appear  from  the  opmion. 
Person  and  Oreen^  for  the  plaintiff. 
J.  W.  Bryan,  for  the  defendant. 

By  Court,  Battle,  J.  Upon  the  trial  three  objections  were 
taken  against  the  right  of  the  plaintiff  to  recover,  of  which  two 
only  have  been  urged  by  the  defendant's  counsel  in  the  argu- 
ment here.  The  proposition  that  because  the  defendant  and 
those  under  whom  he  claimed  had  been  in  possession  for  more 
than  thirty  years  of  the  adjoining  tracts  of  land  they  thereby 
Lad  possession  of  the  tract  in  question,  inasmuch  as  all  the 
tracts,  though  separate  and  separately  described,  had  been 
conveyed  by  one  deed,  has  been  properly  given  up.  It  can  not 
be  supported  upon  principle,  and  is  directiy  opposed  by  the 
authority  of  the  case  of  Carson  v.  Burnetii  1  Dev.  &  B.  646. 

The  objection  to  the  tiUe  of  the  trustees  of  the  universiiiy, 
under  whose  demise  the  verdict  for  the  plaintiff  was  taken,  is 
founded  upon  an  alleged  error  in  the  court,  in  leaving  the  ques- 
tion bf  escheat  to  the  jury  as  one  of  fact,  instead  of  deciding  it 
as  one  of  law.  But  by  looking  at  the  charge  in  connection 
with  the  evidence,  it  will  be  seen  that  no  such  error  as  is  sup- 
posed was  committed.  The  testimony  of  an  aged  witness  was 
that  Thomas  Box,  the  grantee  of  the  land  under  whom  the 
trustees  claimed,  "  had  left  the  state  about  the  period  of  the 
revolution,  and  had  never  since  been  heard  of;  that  he  had  no 
relations,  and  that  no  person  had  ever  come  forward  claiming 
to  be  his  heir.''  Surely  this  was  testimony  proper  to  be  sub* 
mitted  to  the  jury  upon  the  question  whether  the  said  Box  had 
died  without  heirs,  and  the  jury  were  instructed  that  if  they 
found  in  the  a£Sxmative,  then  his  land  had  escheated  to  the 
trustees  of  the  university.  There  was  no  question  of  heirship, 
nich  as  whether  oerftain  persons  were  not  the  haLn  at  law  of 


174  LoFTiN  V.  Cobb.  [N.  Carolina^ 

Thomas  Box,  the  grantee,  to  make  it  a  question  of  law  for  the 
court,  and  thus  bring  it  within  the  principle  of  Bradford  v. 
Erurin,  12  Ired.  L.  291.  The  charge  was,  in  effect,  that  if  the 
jury  should  find  that  Thomas  Box  had  died  leaving  no  relations, 
then  he  died  without  hetes,  and  his  lands  escheated  to  the 
trustees  of  the  university,  and  to  it  as  thus  understood  no  just 
exception  can  be  taken. 

The  last  objection  to  the  plaintiff's  recovery  is  the  one  mainly 
relied  on,  and  has  been  argued  with  zeal  and  ability  by  the  coun« 
sel  on  both  sides.  It  is,  that  supposing  the  plaintiff  lessor  had 
once  had  title,  the  defendant's  ancestor,  John  Cobb,  had  gained 
it  from  them  by  an  adverse  possession  for  more  than  seven  years 
under  color  of  title;  for  that  cutting  the  timber  off  the  land 
and  having  it  sawed  at  his  mill  and  feeding  his  hogs  upon  the 
land  constituted  such  possession  as  the  statute  of  limitations 
requires.  The  question  raised  by  the  objection  tlien  is  whether 
the  acts  specified,  continued  for  seven  years,  are  sufficient  as  a 
possession  to  make  good  a  defective  title.  The  question  we  do 
not  consider  an  open  one;  the  principle  having,  as  we  conceive, 
been  definitely  settled  by  repeated  adjudications  of  our  courts 
against  the  defendant.  The  first  case  in  which  it  was  discussed 
and  decided  was  Andrews  v.  Mulford,  1  Hayw.  311,  where  ibo 
court  say  that  a  person  relying  upon  a  possession  under  the 
statute  "  must  take  possession  with  such  circumstances  as  are 
capable  in  their  nature  of  notifying  mankind  that  he  is  upon 
the  land,  claiming  it  as  his  own,  as  in  person  or  by  his  tenant ; " 
and  they  held  that  a  claimant  did  not  acquire  possession  by  put- 
ting his  cattle  upon  the  land  to  range  upon  it.  "Cattle  may 
be  a  long  time  ranging  upon  land  without  its  being  publicly 
known  whose  they  are,  or  that  they  were  put  upon  the  land  by 
a  third  owner,  or  that  he  meant  to  claim  it;  but  if  a  man  settle 
upon  the  land  by  himself  or  tenants,  and  continues  that  pos- 
session, builds  a  house,  or  clears  the  land  and  cultivates  it,  his 
claim  then  becomes  notorious,  and  gives  fair  notice  to  the  ad- 
verse claimant  to  look  to  his  title."  The  same  principle  is 
clearly  stated  by  the  court  in  OrarU  v.  Wxnbomef  2  Id.  56.  The 
law  has  fixed  the  term  of  seven  years,  both  for  the  benefit  of 
the  prior  patentee  and  the  settler,  that  the  latter  might  not  be 
disturbed  after  that  time,  and  that  in  that  time  the  prior  pat- 
entee might  obtain  notice  of  the  adverse  claim  and  assert  his 
own  rights.  Hence  arises  the  necessity  that  the  possession  shou  Id 
be  notorious  and  public,  and  in  order  to  make  it  so  that  the  a  In- 
verse claimant  should  either  possess  it  in  person  or  by  his 


June,  1854.]  Loftin  v,  Cobb.  175 

Berrants,  or  tenants;  for  feeding  of  cattle  or  hogs,  or  building 
hog-penfi,  or  cutting  wood  from  off  the  land,  may  be  done  so 
secretly  as  that  the  neigbborhood  may  not  take  notice  of  it;  and 
if  they  should,  such  facts  do  not  prove  an  adverse  claim,  as  all 
these  are  but  acts  of  trespass.  Whereas,  when  a  settlement  is 
made  upon  the  land,  houses  erected,  lands  cleared  and  cultivated, 
and  the  party  continues  openly  in  possession,  such  acts  admit 
of  no  other  constructiou  than  this,  that  the  possessor  means  to 
claim  the  land  as  his  own.  In  order  to  make  this  notorious  in 
the  countiy,  he  must  also  continue  in  the  possession  for  seven 
jears.  Occasional  entries  upon  the  land  will  not  serve,  for 
they  may  be  either  not  observed,  or  if  observed  may  not  be 
oonsidered  as  the  assertion  of  rights;  and  from  this  view  of  the 
subject  arises  the  following  definition  of  a  possession  which  is 
calculated  to  give  a  title:  "A  possession  under  color  of  title, 
taken  by  a  man  himself,  his  servants,  slaves,  or  tenants,  and  by 
him  or  tliem  continued  for  seven  years  together." 

In  Green  v.  Uarman^  4  Dev.  158,  it  was  held  that  the  over- 
flowing  of  land  by  stopping  a  stream  below  was  not  a  possession 
which  would  perfect  a  defective  x^sper  title,  nor  would  the  cut- 
ting of  timber  trees  upon  the  land  have  that  effect.  In  dis- 
cussing the  latter  question,  the  coui*t  say:  ''It  is  not  entirely 
clear  of  dif&cultv.  There  is  much  land  in  the  state  of  which 
nearly  the  whole  value  consists  in  the  timber,  its  fertility  not 
being  sufficieut  to  induce  a  prudent  proprietor  to  erect  habita- 
tions or  clear  a  plantatiou  on  it.  In  such  cases  the  timber  is 
frequently  all  taken  off,  and  it  would  not  seem  easy  to  give  more 
positive  evidence  of  asserted  ownership  and  of  enjoyment.  On 
the  other  hand,  any  rule  that  could  be  laid  down  would  be  so 
wanting  in  precision  as  to  the  extent  to  which  the  trespasses 
should  be  carried  to  constitute  an  ouster  as  to  leave  the  whole 
subject  in  uncertainty.  It  is  safest  to  require  an  actual  occupa- 
tion, such  as  residence  or  cultivation;  something  to  make  it 
emphatically  the  party's  close  which  is  in  conformity  to  the  an- 
cient rule  of  the  common  law,  and  also  to  the  application  of  it 
to  our  situation,  as  early  made  in  this  state  in  the  cases  of  An- 
drews  v.  Mul/ord  and  Oranl  v.  Wxnbome."  The  court  then  go  on 
to  intimate  that  the  making  of  turpentine,  as  practiced  in  the 
eastern  part  of  the  state,  would  be  a  sufficient  possession,  as  be- 
ing an  operation  partaking  of  the  nature  of  cultivation.  "  It  can 
not  be  pursued  secretly,  and  does  not  consist  of  simple  acts  of 
^i^espass,  like  cutting  down  trees  and  carrying  them  away;  but 
nquiree  a  continual  attendance  on  the  land  for  a  consideTabl* 


176  LoFTiN  V,  Cobb.  [N.  Oarolina, 

portion  of  the  year,  and  from  year  to  year,  as  the  flame  treea 
are  worked  for  several  years  in  succession."  This  intimation 
was  carried  out  into  a  direct  decision  in  the  case  of  Bynum  t. 
Carter,  4  Ired.  L.  310.  The  principle  established  by  these  adjudi* 
cations  and  some  otjiers,  see  Burton  y.  Camdh^  1  Dey.  &  B. 
2,  and  OUchrisi  y.  McLaughlin,  7  Ired.  L.  310,  is  still  further 
fitrengthened  by  the  cases  to  which  we  shall  now  advert, 
which  are,  from  necessity,  exceptions  to  it.  In  Simpson  y. 
Blount,  3  Dey.  34,  and  I^edu}eU  y.  Eeddick,  1  Ired.  L.  56,  it  was 
decided  that  cutting  timber  and  making  shingles  in  a  swamp 
unfit  for  cultivation,  continuously  for  seven  years,  is  a  good 
possession  under  the  statute.  "It  is  exercising  that  dominion 
over  the  thing,  and  taking  that  use  and  profit,  which  it  la 
capable  of  yielding  in  its  present  state.  It  is  all  that  can 
be  done,  until  the  subject  shall  be  changed.  It  is  like  the 
case  stated  in  the  books,  of  cutting  rushes  from  a  marsh. 
This  is  sufficient,  though  it  might  appear  that  dikes  and  banks 
would  make  the  marsh  arable."  Again,  it  was  held  in  WiUiama 
T.  liucJuman,  1  Id.  535  [35  Am.  Dec.  760],  that,  as  to  a  stream 
not  navigable,  keeping  up  fish-traps  therein,  erecting  and  re- 
pairing dams  across  it,  and  using  it  every  year  during  the  en- 
tire fishing  season  for  the  purpose  of  catching  fish,  constitute 
AH  unequivocal  possession  thereof.  "  Possession  of  land  is  de- 
noted by  the  exercise  of  acts  of  dominion  over  it,  in  making  the 
ordinary  use,  and  taking  the  ordinary  profits  of  which  it  is  sus^ 
ceptible  in  its  present  state,  such  acts  to  be  so  repeated  as  to 
show  that  they  are  done  in  the  character  of  owner,  and  not  of 
occasional  trespasser." 

If  we  test  the  case  before  us  by  applying  to  it  the  principle 
thus  clearly  settled  by  a  series  of  decisions  running  through  a 
I>eriod  of  many  years,  we  shall  find  that  the  defendant's  claim 
of  title,  arising  from  possession,  can  not  be  sustained.  The  land 
is  not  swamp  land,  but  good  turpentine  land,  having  a  great 
number  of  pine-trees  upon  it  fit  for  making  turpentine.  The 
feeding  of  hogs  upon  it  and  cutting  of  timber  trees  from  it  was 
not  making  the  ordinary  use  and  taking  the  ordinaiy  profit  of 
which  it  was  susceptible  in  its  present  state,  and  did  not  there- 
fore show  that  the  acts  were  done  in  the  character  of  owner,  and 
not  of  an  occasional  trespasser.    The  judgment  must  be  affirmed. 

Judgment  affirmed. 

What  CoNSTiruTsa  Advsbsb  Possission:  See  RoyaU  v.  Len^e  qflAdt^  00 
A19.  Dec.  712,  note  716,  where  other  cases  are  collected;  Plume  v.  Seuxurd^ 
Id.  590,  note  604;  ArmBlrong  ▼.  Risteau,  69  Id.  115,  note  129.    The  prinoi- 


Aug.  18M.]  RiPPET  V.  Milleil  177 

pal  ene  ia  cited  in  Marri§  t.  Hii^et,  2  Jodm  L.  95,  and  in  ifoore  t.  Tktmp 

fOK,  69  N.  G.  121,  as  having  folly  stated  and  diacossad  the  qnastloQ  M  to 

what  oonstitntes  an  aofcoal  poaaoaaion  of  land  ao  M  to  anatain  an  aetka  of 

trespaaa.    In  BvereU  t.  Doehay,  7  Jonea  L.  392,  it  waa  decided,  citing  the 

priadpal  caaa^  that  cutting  aaw-loga  on  the  land  doea  not  amoont  to  tho  as- 

enaao  of  aneh  ownerahip  aa  will  ripen  intoa  title;  and  in BartleU  ▼.  Skn$mm§t 

i  Id.  296,  also  citing  the  principal  caae,  that  getting  raila  off  the  land  fran 

year  to  year  was  not  evidence  of  aoch  ownerahip.    In  WUUamg  v.  Waliace^  78 

N,  C.  357,  it  ia  cited  to  the  point  that  occadonal  entriea  on  the  land  are  not 

nificient  to  constitate  aoch  a  poaaaaaaon  aa  wiU  ripen  into  a  title.    The  prin- 

efpal  caae  is  also  cited  in  SiegaU  v.  ff%f,  59  Tez.  197,  to  the  point  that  tho 

ocoaaionai  use  of  land  for  timher  pnrpoaea  ia  not  of  itaelf  anoh  a 

n  win  ripen  into  »  tittob 


RiFPEY  V.   MTTiTilTO. 


[lJoni'aLAw,4T».] 

loia  nv  GBiMiivax  Cases,  that  Jobt  MUflT  bb  SAxnnnxD  BSTon  fia^ 
aovABUi  DovBT  of  the  gnilt  of  the  accnaed,  when  the  evidence  ia  oii^ 
eoraataatial,  doea  not  apply  in  civil  caaea.    Evidenoe  In  dvil  caaea  which* 
taken  aa  a  whole,  aatiafiea  the  minda  of  the  Jury  that  the  fact  ia  aa  thay 
find  it  ia  sufficient. 
Ooinrr  vor  Wiulpuixt  Kiixnro  Hossi  kat  bx  Joihbd  wzih  Ovb  warn 
Trsspabb  in  entering  upon  plaintiff'a  land  and  aetting  fire  to  hia  hoild* 
inga;  and  where  no  dedaration  la  filed,  anch  additional  count  will  bo 
conaidered  aa  made. 
Wbibb  Pabtt  WiLLTonxT  Ssn  Fan  to  aitd  Bvbns  Wheat  Baouaai 
TO  MACHnnB  to  be  threahed,  the  owner  of  the  machine  may,  in  an  aotta 
of  treapaaa,  recover  from  him  the  valne  of  the  wheat  deatnvyed. 
IniEiaT  MAT  BB  OiYXiT  AS  Pabt  ov  Dahaob,  in  an  action  of  trover  or 
treapaaa,  from  the  time  of  the  conversion  or  injury  complained  oL 

Tbxspass  quare  clau9um /regit.  The  trespasB  alleged  was  thai 
the  defendant's  intestate  entered  on  the  plaintiff's  land  in  tho 
night-time,  and  set  fire  to  his  machine-honae  containing  a  quan- 
tity  of  wheat,  cotton,  and  straw,  together  with  certain  machinery, 
and  at  the  same  time  killed  the  plaintiff's  horse.  A  part  of  the 
wheat  destroyed  was  the  property  of  other  persons,  which  had 
heen  brought  there  to  be  threshed.  The  evidence  was  circum- 
stantial. The  exceptions  referred  to  in  the  opinion  are:  2.  As 
this  action  was  brought  to  recover  damages  for  an  injury  to  real 
estate,  the  jury  could  not  find  the  value  of  the  horse  killed;  3. 
That  the  defendant  was  not  liable  for  the  wheat  which  belonged 
to  other  persons,  and  had  been  brought  to  the  plaintiff's  ma* 
chine  to  be  threshed;  4.  That  the  plaintiff  was  only  entitled  to 
recover  the  Talue  of  the  property  destroyed  by  the  fire,  without 
interest.    The  other  facts  are  stated  in  ttie  opinion. 

Am.  Dbo.  Yoc  LXn— U 


178  RippEY  V.  Miller.  [N.  Carolma^ 

Bynum  and  Lander,  for  the  plaintiff, 

Onion,  J.  Baxier,  and  OaUher,  for  the  defendant 

By  Oourt,  Nash,  0.  J.  No  decLiration  has  been  filed,  and  in 
Bnoh  case  it  is  the  practioe  of  the  court  to  consider  such  decla- 
ration filed  as  meets  the  facts  stated  in  the  case.  This  rule  is 
adopted  to  prevent  surprise  on  a  plaintiff  from  the  loose  man- 
ner in  which  the  pleadings  are  conducted  on  the  circuit.  The 
declarations  in  this  case  we  consider  as  having  several  counts, 
and  one  for  the  killing  of  the  horse.  The  first  objection  raised 
by  the  defendant  was,  that  as  this  is  a  case  of  circumstantial 
testimony,  the  jury  must  be  satisfied  beyond  a  reasonable  doubt 
of  the  guilt  of  the  intestate;  and  unless  the  facts  proved  pre- 
cluded evexy  other  hypothesis  except  that  of  his  guilt,  they 
must  find  for  the  defendant.  This  is  the  rule  in  capital  cases, 
and  adopted  in/avorem  vUob,  but  does  not  extend  to  misdemean- 
ors or  civil  suits.  The  point  was  before  the  court  at  June  term 
last,  at  Baleigh,  Neal  v.  Fespemian,  1  Jon^s  L.  446,  and  the 
principle  declared  substantially  as  stated  in  the  case  by  the  pre- 
siding judge.  Upon  no  controverted  fact  ought  a  jury  to  find 
it  established  unless  the  party  alleging  it  produces  proof  to 
satisfy  their  mind  that  it  is  so.  The  object  of  all  evidence  is  to 
satisfy  the  minds  upon  the  controverted  facts,  and  when  the 
txyers  are  so  satisfied  by  competent  and  legal  testimony  they 
ought  so  to  declare,  and  not  imtil  so  satisfied.  His  honor  stated 
the  rule  upon  this  subject  correctly. 

The  second  exception,  as  we  consider  the  declaration,  surely 
can  not  arise.  If  the  declaration  contained  but  one  count,  and 
that  for  the  trespass  to  the  freehold,  there  might  be  a  doubt 
whether  under  the  allegation  of  cdia  enormia  damages  could  be 
given  by  the  jury  for  the  killing  of  the  horse;  but  as  there  is  a 
separate  count  for  that  injury,  and  the  proper  action  for  redress- 
ing it  is  trespass  vi  et  armia,  and  as  every  count  is  considered  in 
law  as  a  separate  declaration,  there  surely  can  be  no  doubt  the 
evidence  was  properly  leceived,  nor  can  there  be  any  serious 
doubt  that  the  counts  can  be  joined:  1  Oh.  PI.  230.  There  is 
no  error  in  the  charge  upon  this  point. 

The  third  exception  was  properlyabandoned  by^e^efendant 
in  the  argument  here. 

The  fourth  exception  can  not  be  sustained,  and  the  jury  in  an 
action  of  trover  or  trespass  de  bonis  asportatia  may,  in  their  dis- 
ezetion,  give  interest  on  the  value  of  the  article  converted  or 
taken  away  or  destroyed,  from  the  time  of  the  conversion  or 


Aug.  1854.}  BiFPET  v.  Millbb.  179 

injuiyy  as  a  part  of  ihe  damages:  DevereuxY,  Burguin,'lllxed.li» 
490;  BO  as  to  make  the  trespasser  do  ftdl  justioe  hj  ehaiging 
bim  with  the  price  as  on  a  cash  sale. 
Judgment  a£Brmed. 

CiBcnMSTANTiAL  Btidbvos. — ^All  jncUdAl  evidenM  it  eith«  diraot  or  In- 
direct. Direct  evidence  is  tiutt  which  is  applied  to  the  f^t  to  be  proved  di* 
rectly,  and  witbont  the  aid  of  any  intervening  fact  or  process.  Indirect  evi- 
dence, or  as  it  is  more  commonly  called,  drctunstantial  evidence,  is  tliat  which 
is  applied  to  the  prindpal  fact  indirectly,  or  through  the  medinm  of  other 
facts,  by  eetabUshing  certain  ciroamstances  from  which  the  principal  fact  Is 
deduced  by  a  process  of  special  inference:  Barrill  on  ^ronmstantial  Bvidence^ 
i ;  Best  on  Presumptions,  12;  Wills  on  Circnmstantial  Evidence,  16.  "  When 
the  existence  of  any  fact  is  attested  by  witnesses  ss  having  come  under  the 
oo^xzance  of  their  senses,  or  ii  stated  in  documents,  the  genuineness  and 
veracity  of  which  there  seems  no  reason  to  question,  the  evidence  of  that  fact 
is  said  to  be  direct  or  positive.  By  circumstantial  evidence,  on  the  contrary, 
is  meant  that  the  existence  of  the  principal  fact  is  only  inferred  from  one  or 
more  circumstances,  which  have  been  established  directly:  Best  on  Pre* 
sumptions,  246.  Oilpin,  C.  J.,  in  charging  the  jury  in  the  case  of  8UUe  v. 
Ooldsbarongh,  1  Hoost.  Cr.  Gas.  315,  thus  defines  circumstantial  evidence: 
"  Circumstantial  or  presumptive  evidence  is,  where  some  facts  being  proved, 
another  fact  follows  as  a  natural  or  very  probable  condusion  from  the  facts 
actually  proved,  so  as  readily  to  gain  the  assent  of  the  mind  from  the  mere 
probability  of  its  having  actually  occurred.  It  is  the  inference  of  a  fact  from 
other  facts  proved,  and  the  fact  thus  inferred  and  assented  to  by  the  mind  Is 
laid  to  be  presumed,  that  ii  to  say,  it  is  taken  for  granted  until  the  contrary 
be  proved.  And  this  is  what  is  called  circnmstantial  or  presumptive  evidence: " 
See  1  Grim.  Law  Mag.  10.  Circumstantial  evidence  ia  so  called  because  it 
is  composed  of  circumstances  or  relatiTe  facts,  bearing  indirectly  upon  the 
fact  sought  to  be  proved.  The  probative  force  of  a  body  of  such  evidence  de- 
pends upon  considerations  of  the  number,  the  independence,  the  weight,  and 
the  consistency  of  these  component  circumstances. 

Circumstantial  evidence  is  of  two  kinds,  certain  and  uncertain.  It  is  certain 
when  the  existence  of  the  fact  in  dispute  ii  a  necessary  condition  for  the  exist- 
ence of  the  fact  attested.  It  is  uncertain  when  the  fact  in  dispute  is  a  natural 
eiTect  of  the  fact  attested,  but  may  likewise  have  been  caused  by  other  things:  1 
Qreenl.  Ev.,  sec.  13  a;  6  Lond.  Law  Mag.  373.  Direct  and  circumstantial  evi- 
dence are  not  different  in  their  nature.  For  as  Wharton  says:  "All  evidence 
consiBts  of  reason  and  fact  co-operating  as  co-ordinate  factors:**  1  Crim.  Law 
Mag.  10;  Wills  on  Circumstantial  Evidence,  16.  Circumstantial  evidence  is 
merely  direct  evidence  indirectly  applied.  And  direct  evidence,  when  doeely 
analyzed,  Ib  found  to  possess  the  inferential  quality:  Burrill  on  Circumstantial 
Evidence,  231.  Direct  and  circumstantial  evidence  are  not,  therefore,  in  any 
sense,  opposed  to  eadi  other.  In  fact,  they  are,  in  practice,  found  in  the  most 
intimate  connection  with  each  other.  And  the  very  strongest  evidence  is 
that  in  which  a  body  of  direct  evidence  is  sustained  throughout  by  numerous 
according  circumstances;  Wills  on  Circumstantial  Evidence,  32;  Burrill  on 
Circumstantial  Evidence,  229.  Direct  evidence  is  very  generally  admitted  to 
be  superior  to  indirect  evidence  as  a  means  of  judicial  proof.  And  where 
direct  evidence  of  a  fact  is  attainable,  indirect  evidence  is  regarded  as  second- 
ary. The  superiority  of  direct  over  circumstantiit  evidence  arises  from  the 
fact  that  the  former  always  proceeds  to  the  point  aimed  at  by  the  most  direel 


180  RiPFEY  V.  IbLLBB.  [N.  CSarolimk 

roate,  and  readMi  it  hy  stejM  inTolving  ibe  leart  po«ible  meitte]  aottoBi 
whilfl  the  latter  pniceeds  eiroaitonaly  by  &  Boooeerion  of  stepe,  eech  dependiiig 
on  direct  proof,  and  all  requiring  to  be  Btrictly  linked  together:  Bnrrfll  on 
Circnmstantial  Byidence,  224;  Willi  on  CSrcmnstantial  Evidence,  32;  3  Beo- 
tham  on  Judicial  EYidence,  249. 

It  must  be  admitted  that  there  eziste  in  the  minda  of  many  penona  a 
strong  prejudice  against  circnmstantial  evidence.  Fteqnently  persons  ez« 
amined  as  to  their  qualifications  to  serve  as  Jurors,  partiealariy  In  capital 
cases,  say  that  they  could  not  conscientionsly  find  an  accused  party  gufltj 
on  evidence  that  is  wholly  droumstantial.  The  ezistenoe  of  this  feelhig  is  no 
doubt  due  to  a  large  extent  to  the  strenuous  exertions  made  by  counsel  for 
the  accused,  in  almost  every  case  where  the  proof  of  guilt  depends  upon  cir- 
comstanttal  evidence,  to  throw  discredit  upon  this  species  of  evidence.  But 
there  is  no  doubt  another  reason,  which  is  thus  stated  by  a  writer  on  the  sub- 
ject in  the  London  Law  liagasine,  voL  fi,  p.  368:  "The  chief  error  with  re- 
gard to  the  delusiveness  of  circumstantial  evidence  lies  in  considerittg  it  as  a 
mode  of  reasoning,  or  proving  doubtful  points  peculiar  to  a  court  of  justice; 
whereas  it  is  nothing  else  than  the  common  course  of  settling  all  questions 
which  can  be  settled  by  argument,  employed,  whether  knowingly  or  unknow- 
ingly, by  all  mankind.  Objections  to  proof  by  circumstantial  evidence  must 
equally  apply  to  all  reasoning  whatever.  If  a  fact  can  not  be  proved  directly, 
that  is,  by  Uie  evidence  of  one  who  had  cognisance  of  it  through  his  senses^ 
it  must  be  established  by  way  of  inference  or  reasoning;  in  other  words,  by 
circumstantial  evidence."  If  men  would  stop  to  consider  the  fsct  that  in  the 
ordinary  affairs  of  every -day  life  they  are  continually  forming  judgments  on 
circumstantial  evidence  alone,  and  acting  upon  these  judgments  in  matters  of 
the  utmost  concern  to  them,  they  would  be  less  likely  to  decry  this  kind  of 
evi'Ience  when  acted  upon  in  the  administration  of  justice.  The  courts  have, 
however,  very  raroly  shared  in  or  enooumged  this  popular  projudice  against 
circumstantial  evidence.  In  a  legal  sense,  presumptive  evidence  is  not  re- 
garded as  inferior  to  direct  evidence:  Best  ou  Presumptions,  35.  The  two 
are  parts  of  one  system  of  means,  intended  to  aid,  and  not  to  thwart,  each 
other:  Burrill  on  Circumstantial  Evidence,  224.  Giroumstantial  evidence  is 
often  used  as  an  aid  to,  and  frequently  as  a  test  of,  direct  evidence:  Id.  226. 
It  is  admissible  in  both  civil  and  criminal  cases  in  the  absence  of  direct  evi- 
dence, and  is  often  the  only  means  by  which  a  fact  can  be  proved.  This  is 
particularly  the  case  in  criminal  trials  whero  the  act  to  be  proved  has  been 
done  in  secrecy.  If  circumstantial  evidence  wero  to  be  excluded  in  cases  of 
a  criminal  nature,  the  great  majority  of  criminals  would  go  unwhipped  of 
justice:  Burrill  on  Circumstantial  Evidence,  117;  Hex  t.  BurdeU^  4  Bam.  ft 
Aid.  95;  CommonweaUh  v.  Webster,  52  Am.  Dec.  711;  People  v.  Videto,  1 
Park.  Cr.  603;  8UUe  v.  OolcUborough,  1  Houst.  Cr.  Cas.  314.  In  the  Ust- 
mentioned  case,  Oilpin,  C.  J.,  charging  the  jury,  said:  " Ciroumstantial  or 
presumptive  evidence  is  receivable  in  both  civil  and  criminal  cases.  The  af- 
fairs and  business  of  the  world  could  not  well  be  carried  on  without  recognia- 
ing  the  admissibility  of  this  description  of  evidence.  In  criminal  matters  the 
necessity  of  admitting  it  is  indeed  much  more  manifest  than  in  civil  matters. 
Crime  usually  seeks  secrecy;  and  the  possibility  of  proving  the  offense  chaiged 
by  direct  or  positive  evidence  is  much  more  rare  and  difficult  in  criminal  cases 
than  in  civil  cases.*'  Circumstantial  evidence  may  be,  and  often  is,  as  strong 
and  as  conclusive  as  direct  and  positive  evidence:  Law  v.  Stale,  33  Tex.  87- 
And  it  is  not  error  to  chaige  a  jury  that  there  is  nothing  in  the  nature  of  cir- 
eumstantial  evidence  that  rendeA  it  less  reliable  than  other  classes  of  evideD0% 


Aug.  1854.]  RiFFXT  v.  Mnxm.  181 


vlien  this  rtatement  Is  aooompMiied  by  pnpflr  ggJimtinM,  aad  the  Jvy  b 
■k  the  nine  time  diarged  thail  they  most  fram  the  €fnd«M»  be  MonrfnMd  Id 
a  monl  certainty,  and  beyond  a  nMonable  doabl^  tba*  the  dsfendant  oom* 
Bitted  the  act  charged  against  bim:  PwpU  ▼.  Marrom,  60  CU.  MS. 

Bat  while  some  have  erred  in  too  moch  distrusting  drouDsfeHitisl  endsBot^ 
it  II  eqnally  tme  that  others  have  eired  in  oyerestiauittng  tbe  oondnsivwiaBB 
snd  reliability  of  that  spedes  of  eTidence.  The  error  on  this  side  of  the  qaes> 
tim  has  foond  expresnon  in  the  statement  that  etreonistsiioss  ean  not  Ue. 
In  one  seme  this  is  tme.  Bat  we  most  bear  in  mind  that  wbilseireiuiistsness 
h  themaelTes  can  not  lie,  those  who  give  them  can  and  often  do  lie;  and  fro> 
qsentiy  facts  themselvee  maybe  made  to  tie,  that  is,  to  present  a  false  appear- 
saee,  and  therefore  lead  to  a  false  condosion:  Best  on  Preanmptions,  2Sit 
Boiiill  on  Circomstantial  Bvidenoe,  234. 

ABTAXTAOn  AXD  DlSABTAKTAOSS  OF  GnCfUIOTAllTIAL  BnDBVCB.— It  It 

i^parent  from  what  has  been  already  said  that  both  direct  and  indireet  «▼!> 
deace  have  their  advantages  and  diawbacks.  Chief  Jnstioe  Shaw  sets  forth 
yery  dearly  the  advantages  and  disadvantages  of  each  species  of  evidence  in 
the  celebrated  case  of  Ccmm<mwea2th  v.  Web&ter,  52  Am.  Dec  724.  Some  of 
the  advantages  of  cireamstantial  evidence  are  also  thus  f oidbly  set  forth  by 
Wahrorth,  J.,  delivering  the  charge  to  the  jury  in  People  v.  ViddOf  1  Piarfc* 
Or.  003,  605:  "In  most  cases  of  conviction  npon  preaomptive  proof  or  dr* 
enmstantial  evidence,  there  are  many  different  witnesses  swearing  to  several 
distinct  drcomstances,  all  tending  to  the  same  result,  eaeh  of  whidi  droiim* 
■tanoes  is  a  necessary  link  in  the  chain  of  evidenoe  rsqaired  toprodnoe  a  con* 
viction  of  the  accused;  and  there  is  therefore  the  less  danger  of  perjury  in 
iodi  cases  in  consequence  of  the  number  of  perjured  witnesses  which  it  wy9l4 
be  necessary  for  the  procecution  to  produce  to  effect  an  unjust  conviction. 
For  if  one  perjured  witness  should  swear  to  a  fact  forming  only  one  link  in  a 
chain  of  circumstances,  the  rest  of  the  witnesses  being  honest,  he  will  be  in 
danger  of  detection  from  the  discrepancy  between  his  testimony  and  theirs; 
when  he  might  have  sworn  podtively,  but  falsdy  to  the  oommimion  of  the 
crime  by  tbe  accused,  without  the  posdbility  of  being  contradicted.  For  this 
leaaon,  although  from  the  imperfection  and  uncertainty  which  must  ever  exist 
ia  sll  human  tribunals,  I  have  no  doubt  that  there  have  been  cases  in  which 
innooent  persons  have  been  convicted  on  presumptive  proofs,  yet  from  my 
knowledge  of  criminal  jurisprudence,  both  from  reading  and  observation,  I 
have  no  hesitation  in  expressing  the  opinion  that  where  there  has  been  one 
unjust  conviction  upon  circurostantial  evidence  alone,  there  have  been  three 
imiooent  persons  condemned  upon  the  pontivetestimonyof  perjured  witnesses*" 
See  also  Best  on  Presumptions,  254;  Bnrrillon  Circumstantial  Evidence,  227; 
I  Stack.  Ev.  527;  3  Bentham  on  Judidal  Evidence,  251. 

Ih  Criminal  Gases. — ^But  while  circumstantial  evidenoe  is  admissible  ia 
dvU  cases,  it  is  in  f  he  character  of  a  means  of  detecting  and  punishing  crime 
that  it  assumes  its  greatest  importance:  Burrill  on  Circumstantial  Evidenoe, 
116.  Indeed,  it  often  happens  that  in  prosecutions  for  the  worst  spedes  ol 
erimes  this  evidenie  is  the  most  satisfactory  and  convindng  that  can  be  pro- 
dnoed:  People  v.  Videio,  1  Park.  Cr.  603;  The  Robert  Edwarde,  6  Wheat. 
187;  Best  on  Presumptions,  246.  The  fact  already  adverted  to,  that  crime  if 
generally  committed  in  secret,  where  there  is  no  witness  present  who  can  tes- 
tify directly  to  i'n  commission,  renders  it  absolntdy  necessary  to  resort  ts 
eircnmstantial  evidence  for  the  purpose  of  proving  the  guilt  of  the  aooosed. 
Ibexdudesnch  evidence  would  be  to  allow  a  large  part  of  thaorimss 
■Dtted  V*  vMiaiain  unpunished. 


182  BIPPET  V.  Miller.  [N.  Carolina^ 

AmOUMT  of  CmCUMSTANTXAL  EviBBNCS  NkCSSSART  TO  CoHBTiTUTA  PBB 

ICTMPnvx  Pboo7  can  never  be  reduced  to  a  formula  which  shall  be  applicable 
N>  all  cftset.  It  is  Impossible  to  fully  determine  in  advance  the  number  and 
quality  of  the  evidentiary  facta  necessary  to  constitute  such  proof  in  any  given 
case.  Every  case  submitted  to  a  jury  must  be  determined  upon  its  own  cir- 
lumstanres,  aud  the  jury  should  be  unfettered  by  any  arbitrary  rules.  The 
only  rulo  which  the  law  imposes  upon  them  is  that  the  evidence  must  be  suf- 
Bcient  to  satisfy  their  judgment  and  conscience.  It  has  sometimes  been  at- 
tempted to  establish  a  rule  that  the  amount  of  circumstantial  evidence  required 
to  justify  a  verdict  must  be  equal  to  the  testimony  of  at  least  one  witness 
swearing  directly  to  the  existence  of  the  fact  sought  to  be  proved.  But  no 
luoh  rule  of  evidence  is  recognized  by  the  courts:  Favlk  v.  StaUj  62  Ala.  415; 
iftdb/e  V.  StaU,  27  Id.  20;  BkAy  ▼.  Oarskaddon,  55  Iowa,  533;  StaU  v.  Cole- 
man, 22  La.  Ann.  455.  In  BMy  v.  Oankaddon^  aupro.  Beck,  J.,  delivering 
the  opinion  of  the  court,  said:  **The  plaintiff  asked  the  oourt  to  direct  the 
jury  that  in  order  to  legally  establish  a  conclusion  by  circumstantial  testimony 
the  facts  and  circumstances  must  at  least  have  the  force  and  effect,  and  pro- 
duce the  conviction  in  the  minds  of  the  jurors,  of  at  least  one  credible  witness 
testifying  positively  to  such  facts.  We  think  the  law  recognizes  oo  such  mle, 
and  establishes  no  such  measure  of  evidence  as  is  contemplated  in  this  instnio> 
tion.  We  think  the  preponderance  of  evidence  may  be  determined  by  less 
testimony  than  what  is  equal  in  force  and  effect  to  the  testimony  of  one  wit- 
ness touching  the  facts  which  the  circumstances  tend  to  establish.  Indeed, 
we  believe  that  direct  and  positive  testimony  is  usually  more  satisfactory  to 
all  minds  than  inferences  drawn  from  circumstances.  Bat  such  inferences 
will  tnm  the  scale  in  weighing  evidence  and  bring  conviction  to  the  mind.** 
But  while  no  practical  rule  can  belaid  down  for  determining  the  exact  amount 
of  circumstantial  evidence  that  in  necessary  to  constitute  proof  in  any  par* 
ticular  case,  the  law  has  established  what  must  be  the  effect  of  the  circum- 
stantial evidence  presented  in  a  criminal  case,  on  the  minds  of  the  jurors. 
And  the  rule  is,  that  to  warrant  a  conviction  for  a  crime  on  circumstantial 
evidence  the  jury  must  be  satisfied  to  a  moral  certainty,  and  beyond  a  reason- 
able doubt,  of  the  guilt  of  the  accused:  Faulk  v.  Siate,  52  Ala.  415;  AfiekU 
V.  StaU,  27  Id.  20;  People  v.  PadUiia,  42  Cal  535;  Beavert  v.  State,  58  Ind. 
530;  Law  v.  StaU,  33  Tex.  37;  Wills  on  Circumstantial  Evidence,  189;  Bur- 
rill  on  Circumstantial  Evidence,  198;  CommonweaUh  v.  WduUr,  52  Am.  Deo. 
730,  note  737.  In  Foudk  v.  StaU^  supra,  the  court  decided  that  the  true  test 
for  determining  the  propriety  of  a  conviction  on  circumstantial  evidence  ia 
not  whether  the  circumstances  proved  produce  as  full  conviction  of  guilt  aa 
the  positive  testimony  of  a  single  credible  witness,  but  whether  they  produce 
moral  conviction  to  the  exclusion  of  every  reasonable  doubt  See  also  People  v. 
Cronin,  34  Oal.  191.  In  StaU  v.  Hayden,  45  Iowa,  11,  it  was  held  that  where 
the  evidence  is  circumstantial  the  jury  need  not  be  satLsfied  beyond  a  reason- 
able doubt  of  every  link  in  the  chain  of  circumstances  necessary  to  establish 
the  defendant's  guilt;  that  it  is  a  reasonable  doubt  of  guilt  arising  from  a  con- 
sideration of  all  the  evidence  in  the  case  which  entitles  the  defendant  to  an 
acquittaL  To  justify  a  jury  in  convicting  the  accused,  the  circumstances 
proved  must  be  susceptible  of  explanation  upon  no  reasonable  hypothesis  oon- 
sistent  with  his  innocence:  United  States  v.  Martin,  2  McLean,  256;  United 
StaU$  V.  CoU,  5  Id.  513;  United  Stales  v.  Douglass,  2  Blatchf.  207;  PeopU  v. 
Dick,  82  OaL  213;  StaU  v.  Taylor,  1  Houst.  436;  State  v.  Ooldsborough,  Id. 
802;  SehusUr  t.  State,  29 Ind.  394;  WiUiams  v.  State,  41  Tex.  209;  Bamesy. 
BtatSf  Id.  842.    In  the  ease  of   Schuster  v.  StaU,  supr€t,  the  court  do- 


Aug.  1854.1  RiPPXT  v.  MiLUOL  188 


that  it  Is  not  enough  that  the  mystefy  of  the  crime  ou  aoi  be 
eolTed  from  the  eridenoe  ezoept  upon  the  sappoaitkMi  of  the  defead- 
ant's  gnUt.  Bat  in  Coken  ▼.  SiaU,  82  Ark.  228,  it  was  dedded  thei 
the  role  that  the  gailt  of  the  aocnsed  most  be  established  to  the  ezdoiiaa 
of  any  other  reasonable  hypothesis  applies  only  in  oases  depending  on 
dxcanurfcsntial  evidence,  but  does  not  apply  in  oases  where  the  eTidenee 
is  directb  If  the  jory  are  not  satisfied  of  the  defaid&nfs  gnilt  beyond  aO 
reasonable  donbt,  it  is  their  duty  to  aoqnit  him:  Hipp  ▼.  SltUe,  33  Am.  Deo. 
463;  People  t.  Phipp,  39  Oal.  326;  Smith  ▼.  Stale,  74  Hi.  144;  CoMmanweaiik 
T.  Goodwin,  14  Gray,  55.  Bat  tius  reasonable  doabt  most  spring  from  the 
evidence,  and  can  not  be  searched  for  outside  of  it:  SmUh  v.  SUUe,  etiprtL  In 
delivering  the  opinion  of  theconrt  in  Bamee  v.  State,  41  Tex.  344,  Moore,  J., 
said:  "To  justify  a  conviction  upon  cinmmstantial  evidence  alone,  the  facts 
relied  upon  must  be  absolutely  incompatible  with  the  innocence  of  the  accused, 
and  incapable  of  explanation  upon  any  other  ressonable  hypothesis.'*  But  in 
People  V.  Mvrray,  41  Gal.  66,  it  was  decided  that  an  instruction  embodying 
this  proportion  was  properly  refused.  Rhodes,  J.,  delivering  the  opinion  in 
that  case,  said:  *'  To  require  the  facts  to  be '  absolutely  incompatible '  with  the 
Innooenoe  of  the  accused,  ii  to  require  proof  of  his  guilt  beyond  the  possibility 
of  a  doubt.  The  law  requires  that  the  facts  shall  not  only  be  consistent  with 
the  guilt  of  the  accused,  but  inconsistent  with  any  other  rational  conclosioiL 
A  higher  degree  of  certainty  in  estabUshing  the  guilt  of  the  accused  by  means 
of  circumstantial  evidence  can  not  be  required  without  rendering  such  evidence 
valueless."  Gircumstantial  evidence  in  a  criminal  esse  to  justify  a  conviction 
need  not  be  so  conclusive  as  to  exclude  every  possibility  of  the  innocence  of  the 
accused:  Findley  v.  Stale,  36  Am.  Dec.  557;  Sumner  v.  State,  Id.  561;  Commoii- 
wealth  V.  Wtheter,  62  Id.  711,  note 737;  ^oiMer  v.  StaJte,  58Ga.  78.  It  Ii  suffi- 
cient  if  it  satisfies  the  minds  of  the  jury  to  a  moral  certainty  and  beyond  all  rea- 
sonable doubt.  But  the  jury  must  be  satisfied  that  the  accused  is  guilty  before 
they  can  convict  him.  And  it  is  error  to  instruct  them  that  they  are  not  bound 
to  acquit  the  defendant  because  they  are  not  entirely  satisfiedthat  he  and  no 
other  person  committed  the  alleged  offense:  People  v.  Brown,  59  Gal.  345| 
People  V.  Kerriek,  52  Id.  446.  Gampbell,  J.,  delivering  the  opinion  of  the 
eourt  in  People  v.  Lambert,  5  Mich.  367,  said:  "  Gircumstantial  evidence  of  a 
conclusive  nature  may  often  avail  where  direct  testimony  is  inaccessible. 
But  it  must  be  testimony  not  reasonably  capable  of  any  other  interpretation. 
It  must  be  testimony  from  which  nothing  but  guilt  can,  in  the  natnral  order 
of  things,  be  deduced." 

Bkasonablb  Doubt  Ain>  MobalGbrtaintt  are  terms  very  frequently  used 
by  courts  in  charging  juries  in  criminal  cases,  and  which  are  therefore  neces- 
sary to  be  clearly  understood.  Ghief  Justice  Shaw,  in  charging  the  jury  in 
' CommonweaUh  v.  Webster,  52  Am.  Dec.  730,  said:  "Then,  what  is  reasonable 
donbt?  It  is  a  term  often  used,  probably  well  understood,  but  not  easily  de- 
fined. It  is  not  mere  possible  doubt;  because  everything  relating  to  human 
affairs,  and  depending  on  moral  evidence,  is  open  to  some  possible  or  imagi- 
nary donbt.  It  is  that  state  of  the  case  which,  after  the  entire  comparison 
and  consideration  of  all  the  evidence,  leaves  the  minds  of  jurors  in  that  con- 
dition that  they  can  not  say  they  feel  an  abiding  conviction,  to  a  moral  cer- 
tainty, of  the  troth  of  the  charge."  This  explanation  of  the  meaning  of  the 
term  is  perhaps  as  good  as  any  that  can  be  given.  In  SmiUh  v.  StaU,  74 IIL 
144,  a  reasonable  doubt  wss  held  to  mean  in  law  a  substantial  and  well- 
foonded  donbt,  and  not  the  mere  possibility  of  a  doubt.  And  evidence  Ii 
sofficisot  to  remove  reasonable  donbt  when  it  ii  sufficient  to  oonvinoe  ths 


184  BiFFBT  V.  Mnxm.  [N.  Oudiaai 

)«dgiiMBt  of  oHfuifly  prudent  men  with  enehforae  that  they  woold,  witiiont 
hesitation,  act  upon  tliAt  oonviotioii  in  their  own  moet  important  oonoeme: 
McGregor  ▼.  SUOe^  16  Ind.  9;  Bradleff  T.  8uUe,  31  Id.  482;  JarrtU  ▼.  Siaie^ 
68  Id.  203;  Borrill  on  Circnmitantial  Evidence,  200.  Borrill  eays:  ''Monl 
oortainty  may  he  aaid  to  bear  the  eame  relation  to  moral  tubjecti,  or  mattet* 
relating  to  homan  condnet,  that  abeolate  certainty  does  to  mathematical  sab- 
Jeda.  It  is  a  state  of  impression  produced  by  facts,  in  which  a  reaaooable 
mind  feels  a  sort  of  coercion  or  neoessity  to  sot  in  aooordanoe  with  it:  Bnrrill 
on  Cironmstantial  BSyidence,  199.  Moral  certainty  is  that  state  of  the  judg- 
ment, grounded  upon  an  adequate  amount  of  appropriate  evidenoe,  which 
induces  a  man  of  sound  mind  to  act  without  hesitation  in  the  most  important 
ooDcems  of  human  life:  Wills  on  Circumstantial  Evidence,  189.  And  a  juror 
may  be  said  to  be  morally  certain  where  he  is  so  f  uUy  convinced  by  the  evidence 
of  the  truth  of  the  fact  sought  to  be  proved  that  he  would  venture  to  act  on 
his  conviction  in  matters  of  the  higheet  importance  to  his  own  interesto:  1 
Stark.  £v.  514;  Burrill  on  Circumstantial  Evidence,  200. 

Corpus  Dkucti,  Pboov  of,  bt  Cikcumstantial  Evidkmox. — Sir  Matthew 
Hale  declared  that  he  would  never  convict  any  person  of  murder  or  man- 
slaughter unless  the  fact  was  proved,  or  at  least  the  body  found:  •2  Hala 
P.  C.  290.  And  it  is  a  general  rule  of  evidenoe  that  a  dead  body  must  have 
been  discovered  and  seen,  so  that  its  existence  and  identity  can  be  directly 
testified  to  by  an  eye-witness.  But  to  this  rule  there  are  necessarily  some 
exceptions.  To  require  the  discovery  of  the  body  in  every  case  would  seri- 
ously interfere  with  the  administration  of  justice.  It  is  therefore  clearly 
settled  that  the  fact  of  death  may  be  inferred  from  such  strong  and  unequiv- 
ocal circumstantial  evidence  as  renders  it  morally  certain,  and  leaves  no 
room  for  reasonable  doubt:  Wills  on  Circumstantial  Evidenoe,  208;  Burrill 
on  Circumstantial  Evideuco,  678;  I^ex  v.  Hindmarsh^  2  Leach  C.  C.  669; 
United  States  v.  Oihertf  2  Sumn.  19;  Edmonds  v.  Stale^  34  Ark.  720;  Johnsom 
V.  CfmmonweaUk^  Ky.  Ct  App.,  Sept.  1883,  4  Crim.  Law  Mag.  902;  StaJte  T. 
WUliama^  7  Jones  L.  446;  CommmtoeaUJi  v.  Tork^  43  Am.  Dec  373.  Story. 
J.,  summing  up  the  case  at  the  trial  in  UnUed  States  v.  Ofbert^  2  Sumn.  27* 
said:  **  Before  I  proceed  to  the  facta  of  the  case,  it  seems  proper  to  take 
notice  of  several  cases  which  have  been  cited  at  the  bar  to  show  the  danger 
in  capital  cases  of  relying  on  presumptive  evidence  as  sufficient  proof  of  guilt. 
Those  cases  may  be  said  to  constitute  the  commonplaces  of  the  law  in  trials 
of  this  sort,  alwayp  resorted  to  to  create  doubta  in  the  minds  of  the  jury, 
and  to  shake  our  confidence  in  human  testimony.  If  these  cases  (some  of 
which  there  may  be  reason  to  doubt  whether  they  are  founded  in  truth  or  in 
fiction)  are  brought  to  eetablish  these  propositions  on  trials  on  indictmenta 
for  murder  (for  they  are  all  of  this  sort) — 1.  That  there  ought  to  be  no  oon-« 
▼iction  for  murder,  unless  the  murdered  body  is  actually  found;  2.  That  men 
have  been  convicted  of  murder  upon  false  testimony.  The  first  proposition 
oertainly  can  not  be  admitted  as  correct  in  point  of  common  reason  or  of  law. 
unless  courta  of  justice  are  to  establish  a  positive  rule  to  screen  persons  from 
punishment  who  may  be  guilty  of  the  most  flagitious  crimes.  In  the  cases 
of  murders  committed  on  the  high  seas  the  ]iK)dy  ia  rarely  if  ever  found;  and 
a  more  complete  encouragement  and  protection  for  the  worst  ofienses  of  this 
sort  could  not  be  invented  than  a  rule  of  this  strictness.  It  would  amount 
to  a  universal  condonation  of  all  murders  committed  on  the  high  seas.  In 
rsgard  to  the  second  proposition,  it  is  probable  that  in  some  few  instances, 
though  they  have  been  rare,  innocent  persons  have  been  convicted  upon  oir- 
ennstantial  evidence  of  offenses  which  they  never  committed.    The 


Aug.  1854]  BiPFBT  v.  Mnxm.  IW 


has  probably  Kmiatuiiei^  thovgli  petli^is  aoi  moM  ranlyt 
where  the  proofs  haTO  been  pontiTe  and  direct  from  witBenas  who  hKW  da- 
Jibentdy  sworn  fidaely  to  the  facte  oonrtitntuig  the  guilt  ol  ibe  pvty  ao- 
coied.  Bat  to  what  jnat  w>iifl1naion  doea  thia  tandT  Admitthig  the  trath 
of  •ach  caaoiy  are  we  thwi  to  abandon  all  oonfidcnoe  in  irirni  mfft*n  tiit?  eridanoe 
and  in  the  testimony  of  witDeaseat  Are  we  to  declare  that  no  homan  testimony 
to  cireamatancea  or  to  facte  ia  wmihy  of  belief,  or  can  fnmiah  a  just  f oonda* 
tknforaoomnetiimt  Thatwoaldbetosabrertthe  whole  foandatiooa  of  the 
admiiiiatntionof  paUio  jnatioe.''  Bat  while  it  is  eatehliahed  that  the  death 
of  the  penon  whAn  it  ia  chaiged  the  priaoner  haa  killed  may  be  proved  by 
etreomsteotial  evidence,  it  is  everywhere  held  to  be  BeeaaBaiy  to  prove  this 
laet  by  the  most  oonvincing  evidence  that  the  nature  of  the  case  will  admit 
eL  In  Am^A  V.  Commomaeo^fit,  21  Oratt.  809,  it waa decided  thattfaedertli 
of  the  psnon  chaxged  to  have  been  mordered  moat  be  proved  by  the  Moai 
flOgent  and  irreaistihle  evidence.  So  in  Jitdqfy.  Peopk,  18  N.  Y.  179,  it  waa 
decided  that  to  warrant  a  conviction  of  morder,  there  moat  be  direct  proof, 
dtber  of  the  death,  as  by  the  finding  and  identification  of  the  corpse,  or  of 
erioiinal  violence  adeqnato  to  prodaoe  death,  and  ezsrtad  in  such  amanner  aa 
to  Aceonnt  for  the  diaappeannce  of  the  body. 

A.  conviction  of  marder  ia  not  warranted  where  theve  ia  no  other  proof  of 
th»  eorpua  ddieU  than  the  uncorroborated  extrajudicial  confeedcn  of  the 
aocmaed:  &aie  v.  Oermon,  54  Mo.  526.  And  Greenleaf  says  that  without  the 
pRMf  of  the  eorpit9  ddicU  a  conviction  would  not  be  warranted,  althongh 
tlien  were  evidence  of  condact  on  the  part  of  the  prisoner  ezhihitiBg  aatia- 
iMtoiy  indications  of  his  guilt:  3  GreenL  £v.,  sec  131.  In  DtuU  y.StaUt 
83  Lid.  60;  S.  C,  3  Grim.  Law  Mag.  816,  it  was  held  that  the  unlawful  selling 
of  intoxicating  liquors  may  be  proved  by  circumstantial  evidence.  It  u 
also  a  neceeaary  step  in  the  esteblishment  of  the  corpus  deUcH^  in  oases  of 
hoDucide,  to  identify  the  body  when  discovered  aa  being  that  of  the  penon 
whose  death  ia  the  aubject  of  inquiry.  But  it  ia  not  necessary  that  the  re- 
aoaina  ahould  be  identified  by  direct  and  positive  evidence,  where  such  proof 
is  impracticable,  and  especially  if  such  identification  haa  been  rendered  impoa- 
aiUe  hy  the  act  of  the  party  occuaed:  Willa  on  Gircumatantial  Evidence,  213; 
Barrill  on  Ciroumstantial  Evidence,  681. 

CnbouiiBrAKCSs  Indicatiko  Guiur.— It  ia  of  coarae  impoasible  in  the 
hmite  of  a  note  to  discuss  all  the  cironwiitancea  which  tend  to  inculpate  a 
party  accused  of  crime.  But  a  brief  statement  of  the  most  common  drcum- 
•tanoes  of  tliat  nature  may  be  of  valae.  The  most  usual  species  of  inculps' 
tory  evidence  in  criminal  cases  are:  1.  Real  evidence;  that  is,  evidence 
derived  from  thinga;  2.  Evidenoe  derived  from  the  antecedent  conduct  or 
position  of  the  aconsed,  auch  as  peculiar  motives,  means,  or  facUities  of  com- 
mitting the  ofienae,  preparations  or  previous  attempte  to  commit  it,  declara- 
tiona  of  intention  or  previous  threate  to  commit  it;  3.  Evidence  derived 
from  aubeeqnent  conduct,  such  aa  a  audden  change  of  oiroumatancea,  ailsnce 
when  accused,  false  or  evaaive  statements,  suppression  or  eloignment  of  evi« 
deace,  fcnrgeiy  of  exculpatory  evidence,  flight  from  justice,  tampering  with 
oflicefa  of  justice,  and  evidences  of  fear;  4.  Gonfeosorial  evidenoe:  See 
Best  on  Preaumptiona,  294  et  acq.;  Burrill  on  Gircumstantial  Evidenoe,  252 
etieq.  In  Jfaiwa  v.  iS^ate,  46  AhL  89,  it  was  decided  that  the  escape  of  the 
aeonsed  from  custody  daring  his  trial  is  presumptive  evidenoe  of  his  guilt, 
which  may  be  given  againat  him  on  a  aeoond  trial  on  the  same  indictment 
And  in  Wmamu  v.  8UU€^  43  Tex.  182,  it  was  decided  that  when  the  guilt  ol 
a  delsndani  is  soQ|^i  to  be  establidied  by  eiicamatantial  testimony,  evidenoe 


186  RiFPET  V.  MiLLBB.  [N.  OaiolixiAi 

Ihat  he  endeaTored  to  escape  when  he  foand  himself  charged  with  the  ofienss 
is  admissible  as  tending  to  show  a  oonsciousness  of  guilt.  And  Appleton, 
C.  J.,  in  delivering  the  opinion  of  the  court  in  State  v.  Benner,  64  Me.  289, 
said:  "Falsehood  is  evidence  of  crime.  Every  falsehood  uttered  by  way  ol 
exculpation  becomes  an  article  of  circumstantial  evidence  of  greater  or  less 
inculpatory  force.  A  false  alibi  disproved  is  a  circumstance  indicative  of 
guilt."  Wills  oonciBely  enumerates  the  most  usual  circumstances  of  inculpa- 
tion in  the  following  extract:  *'If  it  be  proved  that  a  party  charged  with 
crime  has  been  placed  in  circumstances  which  commonly  operate  as  induce- 
ments to  commit  the  act  in  question;  that  he  has  so  far  yiMded  to  the  opera- 
tion of  those  inducements  as  to  have  manifested  the  disposition  to  commit 
the  particular  crime;  that  he  has  possessed  the  requisite  means  and  opportu- 
nities of  eflfecting  the  object  of  his  wishes;  that  recently  after  the  commis- 
sion of  the  act  he  has  become  possessed  of  the  fruits  or  other  consequential 
advantages  of  the  crime;  if  ho  be  identified  with  the  corpus  delicti  by  «ny 
conclusive  mechanical  circumstances,  as  by  the  impressions  of  his  footsteps, 
or  the  discovery  of  any  article  of  his  apparel  or  property  at  or  near  the 
scene  of  the  crime;  if  there  be  relevant  appearances  of  suspicion  connected 
with  his  conduct,  person,  or  dress,  and  such  as  he  might  reasonably  be  pre- 
sumed to  be  able,  if  innocent,  to  account  for,  but  which  nevertheless  he  can 
not  or  will  not  explain;  if,  being  put  upon  his  defense  recently  after  the  crime, 
under  strong  circumstances  of  adverse  presumption,  he  can  not  show  where  he 
was  at  the  time  of  its  commission;  if  he  attempt  to  evade  the  force  of  those  cir- 
cumstances of  presumption  by  false  or  incredible  pretenses,  or  by  endeavors  to 
evade  or  pervert  the  course  of  justice — the  recurrence  of  all  or  of  many  of  these 
cogent  circumstances,  inconsistent  with  the  supposition  of  his  innocence  and 
unopposed  by  facts  leading  to  a  counter-presumption,  naturally,  reasonably, 
and  satisfactorily  establishes  the  moral  certainty  of  his  guilt:  if  not  with  the 
same  kind  of  assurance  as  if  he  had  been  seen  to  commit  the  deed,  at  least 
with  all  the  assurance  which  the  nature  of  the  case  and  the  vast  majority  of 
human  actions  admit.  In  such  circumstances  we  are  justly  warranted  in 
adopting,  without  qualification  or  reserve,  the  conclusions  to  which,  '  by  a 
broad,  general,  and  comprehensive  view  of  the  facts,  and  not  relying  upon 
minute  circumstances  with  respect  to  which  there  may  be  some  source  of 
eiTor,'  the  mind  Lb  thus  naturally  and  inevitably  conducted,  and  in  regarding 
the  application  of  the  sanctions  q{  penal  law  as  a  mere  oorollaiy:  '*  Wills  on 
Circumstantial  Evidence,  276. 

Rules  roR  Presubiptivb  or  Ciboumstantial  Proov. — ^All  the  writers  on 
circumstantial  evidence  have  formulated  certain  rules  of  presumptive  proof 
of  more  or  less  practical  value  in  the  conduct  of  criminal  trials  where  the 
evidence  is  circumstantial.  Some  of  the  more  important  of  these  rules  are 
here  given:  1.  The  onus  of  proving  everything  essential  to  the  establishment 
of  the  chaigo  against  the  accused  lies  upon  the  prosecutor:  Best  on  Presump- 
tions, 267;  Burrillon  Circumstantial  Evidence,  728;  2.  There  must  be  clear 
and  unequivocal  proof  of  the  corpus  delicti:  Beet  on  Presumptions,  260;  Bur- 
rill  on  Circumstantial  Evidence,  734;  8.  The  evidence  against  the  aoouaed 
should  be  such  as  to  exclude  to  a  moral  certainty  every  hypothesis  but  that 
of  his  guilt  of  the  offense  imputed  to  him:  Best  on  Presumptions,  282;  Bur- 
rill  on  Circumstantial  Evidenoe,  737;  Commonwealth  v.  Webfier,  62  Am.  Dec. 
730;  4.  The  hjrpothesis  of  delinquency  should  flow  naturally  from  the  facts 
proved,  and  be  consistent  with  them  all:  Best  on  Presumptions,  287;  Com- 
momoeaUh  v.  Wdtsler,  52  Am.  Deo.  729;  6.  Presumptive  evidenoe  ought  never 
to  be  relied  on  when  direct  teatiniony  is  willfolly  withhelds  Best  on  Prasimip* 


Aug*  1864.]      BiFPST  V.  Miller.  187 


tiona,  289;  Bnirlll  on  droninitantial  Evidenoe,  790;  8.  In  oaiM  of  daal^  tt 
is  safer  to  acquit  than  to  oondenm:  Beet  on  Preeiimptione»  290;  Borrill  on 
Circamstantial  Evidence,  739;  Wills  on  Circamttantial  Evidenoe^  192;  7. 
The  eWdentiary  facte  mnst  all  be  proved,  and  the  existence  of  none  of  them 
can  be  preanmed:  Borrill  on  Circumstantial  Evidence,  733;  CcmmanweBUh  v. 
Webiier,  S2  Am.  Dec  729;  no  safe  conclnsion  can  be  deduced  from  circum- 
stantial evidence  if  it  be  left  reasonable  to  suppose  that  the  cironmstances 
themselves  did  not  transpire:  Wroth  v.  Nation^  33  Tex.  192;  where  droum- 
stances  are  relied  on  to  convict,  each  essentia]  independent  fact  mnst  be  estab- 
lished to  a  moral  certainty,  and  beyond  a  reasonable  doabt:  Sumner  v.  StaUf  36 
Am.  Dec.  561;  People  y.  Phipps^  39  CaL  326;  Cam^U\,  8taU,  10  Tex.  App. 
060;  8.  The  facts  alleged  as  the  basis  of  any  legal  inference  must  be  strictly 
and  indubitably  connected  with  theybctom  probandum, 

Ix  CrvTL  Cases  Msbs  Prkponderakcx  or  Evidsnck  is  generally  regarded 
as  sufficient  to  justify  a  jury  in  finding  a  verdict;  3  GreenL  Ev.,  sec  29. 
There  are,  however,  some  cases  in  which  it  has  been  held  that  where  a  crimi- 
nal act  is  charged  in  a  civil  action  it  mnst  be  established  beyond  a  reason* 
able  doubt  as  in  criminal  esses:  Thurtdl  v.  Beaunumtj  1  Bing.  339;  S.  C.,8 
Eng.  Com.  L.  531;  McConnettr,  Mttlwd  Ins,  Co.,  18  IlL  228;  ThayerY.  Boyle, 
80  Me.  475;  BtUman  v.  IIol>bB,  35  Id.  228;  WkUe  v.  Comatock,  6  Vt.  405; 
Brooks  V.  Clayes,  10  Id.  37;  BUser  v.  Hooper,  35  Id.  457;  D^teman  v.  Frte" 
nuuit  31  Wis.  235;  but  the  great  weight  of  authority  is  the  other  way:  ScoU 
V.  Home  Itu.  Co,,  1  Dill.  105;  JHunson  v.  Attoood,  30  Conn.  102;  State  v. 
Ooldsborough,  1  Houst.  Cr.  Cas.  316;  SchneU  v.  Toomer,  56  Oa.  168;  Wdeh 
▼.  Jugenheimer,  56  Iowa,  11;  S.  C,  41  Am.  Rep.  77>  overruling  Barton  v. 
Tkompeon^  46  Iowa,  30;  S.  C,  26  Am.  Rep.  131;  Kendig  v.  Overhtiker,  58 
Iowa,  195;  J?toa  Im.  Co.  v.  Johnson,  11  Bush,  687;  S.  C,  21  Am.  Rep.  223; 
Slofm  V.  GilbeH,  12  Bash,  51 ;  Wightman  v.  Western  M.  <Cr F.  Ins.  Co.f  Rob.  (Ls.) 
442;  Hqffman  v.  Western  M,  Jb  F.  Ins.  Co.,  I  La.  Ann.  216;  Schmidt  y.  Neio 
York  N.  M.  F,  Ins,  Co.,  I  Gray,  529;  Knoteles  v.  Scrilmer,  67  Mc  495;  FUU 
▼.  Buezell,  60  Id.  209;  S.  C,  11  Am.  Rep.  204;  SUioU  v.  Vtm  Buren,  33 
Mich.  49;  S.  C,  20  Am.  Rep.  G68;  Burr  v.  Wilson,  22  Minn.  206;  Walkins  v. 
Wallace,  19  Id.  57;  Bothschild  v.  American  C,  Ins,  Co,,  62  Mc  356;  Msom 
V.  Brawn,  25  N.  H.  122;  Kane  v.  Ilibemia  Ins.  Co.,  39  N.  J.  L.  697;  S.  C, 
23  Am.  Rep.  239,  reversing  38  N.  J.  L.  441;  S.  C,  20  Am.  Rep.  409;  JTtn- 
cade  V.  Bradshaw,  3  Hawks,  63;  Barfield  v.  Britt,  2  Jones  L.  41;  Jonu  v. 
Qrtwoes,  26  Ohio  St.  2;  S.  C,  20  Am.  Rep.  752;  Bradish  v.  Bliss,  35  Vt.  326; 
FFeiton  v.  Qraolin,  49  Id.  507;  Washington  N,  Ins.  Co,  v.  WUson,  7  Wis.  169; 
Blaeser  v.  AIUtoaukeeM,  M,  Ins.  Co.,  37  Id.  31;  S.  C,  19  Am.  Rep.  747. 

In  Kane  v.  Hibemia  Ins.  Co,,  39  K.  J.  L.  697;  S.  C,  23  Am.  Rep.  239, 
Depne,  J.,  delivering  the  opinion  of  the  court,  said:  '*  The  decision  on  this 
point  in  ThvrteU  v.  Beaumont  was  made  on  an  application  for  a  rule,  and 
without  much  consideration.  It  has  never  received  approval  in  the  English 
courts,  although  as  a  rule  of  evidence,  occasions  have  repeatedly  arisen  for  its 
adoption  and  application."  And  Barrows,  J.,  delivering  the  opinion  of  the 
court  in  SUu  v.  Btmea,eOUe.  209;  S.  a,  11  Am.  Rep.  204,  said:  «' We 
think  it  tinte  to  limit  the  application  of  a  rule  which  was  originally  adopted 
in/avorem  vitm  in  the  days  of  a  sanguinary  penal  code  to  cases  arising  on  the 
criminal  docket,  and  no  longer  to  suffer  it  to  obstruct  or  incumber  the  aotioo 
of  juries  in  civil  suits  sounding  only  in  damages."  Eastman,  J.,  delivering 
the  opinion  of  the  court  in  Folsom  v.  Brawn,  26  K.  H.  122,  said:  *'If  a  party 
Ixingi  a  suit  for  an  injury  sustained  by  a  charge  against  his  character,  and 
the  advoTM  party  relies  upon  its  truth  for  a  justification,  the  latter  ought  to 


188  State  v,  Babnett.  [N.  Carolinai 


I 


have  that  fact  tried  in  the  same  way  that  other  &cti  are  tried  In  dvH  oaaea." 
It  fleeme  to  he  eetahlished  hy  the  greater  weight  of  authority  that  In  all  dvfl 
eases  a  mere  preponderanoe  of  evidence  is  saffioient»  and  that  H  is  not  m 
sary  to  proTe  the  £aot  in  issae  beyond  a  reasonable  donht. 


State  v.  Babnett. 

[1  Joras's  Law,  689.] 

Rbokift  Givxir  bt  Constablb  to  Defendant  in  Btboutiov  iob  Monvt, 
purporting  to  have  been  received  by  him  in  f nil  of  the  judgment  in  his 
hands,  is  not  conclusive  against  him  in  an  action  on  his  bond,  but  he  may 
show  that  he  did  not  in  fact  receive  the  money,  and  that  he  was  unable 
to  make  it  by  reason  of  the  debtor's  insolvency. 

Debt  on  a  constable's  bond.  The  note  referred  to  in  the  opin- 
ion was  due  to  the  plaintiff  from  John  Deal^and  was  placed  in 
the  hands  of  defendant  Bamett  for  collection.  The  other  fiicta 
are  stated  in  the  opinion. 

Avery,  for  the  plaintiff. 

Bynum,  OaUher,  and  T.  B,  CddweU,  for  the  defendants. 

By  Court,  Nash,  0.  J.  We  do  not  concur  with  his  honor  in 
his  yiew  of  the  law  governing  this  cate.  The  action  is  upon  a 
constable's  bond.  The  defendant  Bamett  was  elected  a  consta- 
ble for  the  year  1844;  his  official  bond  to  which  the  defendant 
Taylor  is  a  party,  as  surety,  is  dated  the  thirty-first  of  January, 
1844,  and  his  office  expired  in  a  year  from  that  tinre,  to  wit,  at 
the  Januaiy  term  of  the  county  court  in  1845.  The  office  of 
constable  is  an  annual  one.  When  the  bond  was  put  into  the 
bands  of  Barnett  for  collection  does  not  distinctly  appear,  but  it 
must  have  been  after  the  thirty-first  of  January,  1844;  and  on 
the  seventh  of  March  following  the  warrant  issued,  and  judg- 
ment was  rendered  the  ninth  of  March,  two  days  thereafter^ 
and  on  the  twenty-third  of  April  a  fi.  fa.  issued.  During  the 
defendant's  official  year  of  1844  Deal  was  entirely  insolvent. 
Several  breaches  were  assigned:  1.  For  failure  to  use  due  dili- 
gence in  collecting  the  note;  2.  For  collecting  and  failing  to  pay 
over  on  demand;  and  3.  Failing  to  discharge  his  duiy  as  con- 
stable faithfully. 

For  tiie  first  hreaoh  assigned,  the  plaintiff  is  not  entitled  to 
recover  anything.  During  the  whole  of  the  year  1844  and  up  to 
1848,  Deal,  the  defendant  in  the  justice's  judgment,  was  in- 
solvent. A  constable  is  guilty  of  no  negligence  in  not  taking  out 
A  eapuiM  ad  satisfaciendum  against  an  insolvent  debtor:  Chmmof 


Aug.  1854]  State  v.  Babver  189 

T.  Oanroway,  8  Der.  438;  "  for  where  is  the  use  of  an  ezecntion 
at  the  expense-of  his  principal "  unless  the  Utter  specially  desires 
it:  State  ▼.  ffolcambe,  2  IrecL  211.  Under  the  act  of  1818,  B.  S., 
c.  24,  sec.  7,  constables  are  made  collecting  agents,  and  as  to 
them  the  rule  of  diligence  required  is  that  degree  of  Tigilance, 
attention,  and  care  which  a  pradent  person,  conversant  with 
business  of  that  description,  would  ordinarily  use.  Such  men  do 
not  ordinarily  sue  out  process,  or  run  themselves  to  the  expense 
of  bringing  suits,  obtaining  judgment,  and  issuing  execution 
against  paupers:  Mxthews  y.  Smith,  2  Der.  ft  B.  287;  MsKin^ 
der  Y.  LiUlejohn,  1  Ired.  66;  Morgan  y.  Home,  Busb.  25.  The 
insolvency  of  Deal  removes  from  the  constable  the  charge  of 
negligence,  and  is  an  answer  to  the  first  and  third  breaches  as- 
signed. As  to  the  second  breach,  there  is  no  pretense  that  the 
constable  ever  actually  received  the  money  due  from  Deal.  But 
the  plaintiff  relied  upon  the  receipt  given  by  Bamett  to  the 
debtor  Deal,  it  being  in  full  of  the  judgment.  Upon  this  point 
his  honor  instructed  the  jury  that  if  Bamett  after  obtaining 
the  judgment  gave  Deal  his  receipt  for  the  amount  thereof,  he, 
Barnett,  would  be  liable  to  Warlick  for  the  full  amount  of  the 
judgment "  on  his  official  bond,  and  that  he,  Bamett,  could 
not  be  heard  to  impeach  said  receipt'' because  of  the  alleged 
gambling  consideration;  for  he  had  by  his  own  act,  as  agent  of  the 
plaintiff,  Warlick,  acknowledged  the  payment  of  the  debt  of  Deal. 
In  this  there  is  error.  The  receipt  was  certainly  evidence  against 
the  defendant,  but  it  was  not  conclusive  evidence.  The  per- 
son giving  it  may  show  he  never  did  receive  the  money.  This 
is  the  rule  of  evidence  as  to  receipts  not  under  seal:  8  Stark. 
Ev.  1046;  Hargrave  &  Butler's  Oo.  Lit.  373,  note;  Lalotir  v. 
Bland,  2  Stark.  N.  P.  382.  A  mere  receipt,  not  under  seal,  can 
not  operate  as  an  estoppel,  but  is  mere  evidence  of  the  fact,  to 
be  left  to  the  jury  and  subject  to  be  rebutted  by  other  circum- 
stances of  the  case:  Benson  v.  Bennett,  1  Oamp.  394;  Bristoto 
V.  Iktman,  1  Esp.  172.  .  The  receipt  in  this  case  was  not  conclu- 
sive against  the  constable,  and  he  could  be  heard  to  prove  that 
in  fact  he  had  received  no  money — was  at  liberty  to  show  why 
and  for  what  he  had  given  it.  It  was  won  from  him  by  Deal  in 
gambling;  the  latter  acquired  no  properly  in  it,  and  Bamett 
having  returned  it  to  the  plaintiff,  the  defendant  in  it  is  still 
liable  to  the  plaintiff  under  it.  The  act  of  the  general  assem- 
bly makes  void  every  contract  to  pay,  deliver,  or  secure  money, 
or  other  thing  won  at  gaming:  E.  S.,  c.  51.  The  constable 
had  no  power  to  transfer  the  judgment  to  Deal;  the  latter 


190  Babfield  v.  Bbttt.  [N.  OarolinA. 

Acquired  no  right  to  it  by  haTing  won  it  rt  gambling,  or  hj 
Tirtue  of  the  receipt. 
Judgment  reyersed,  and  a  venire  de  novo. 


RSSIPTS  HAT  BB  EXPLAINBD  OB  COMTBADIOTBD  BT  PjJKILt  8m  Ooon  ▼. 

Knap,  59  Am.  Deo.  602,  note  605»  wh«re  other  oaiei  are  ooUeolady  (ySHen 
▼.  OUckrisi,  66  Id.  676,  note  679. 


Babfdsld  V.  Bbtrt. 

{2  JoMMM't  Law,  41.] 

Drnro  Dbolabationb  abb  not  fkb  Sb  Adxibbiblb  ik  Civil  Cabbs.  When 
they  oonstttnte  part  of  the  res  getUSt  or  are  against  intereati  or  the  like, 
they  are  admlasible,  iirespective  of  the  fact  that  the  deolarant  waa  under 
apprehenaion  of  death. 

Dnvo  Dbolakationb  arb  APMisaiBLB  only  whbbb  Dbath  or  Dbobasbd 
ia  the  anbjeot  of  the  ofaarge,  and  the  oiroiimatanoea  of  the  death  the  sub- 
ject of  the  declarations. 

Dting  Declarations  Iwadmisstblb. — ^Whbbb  Qnb  is  Subd  vob  Slakdbb 
in  aocoaing  plaintiff  of  secretly  poisoning  anotheri  defendant*  in  proving 
justification,  can  not  introduce  in  evidence  the  dying  declarations  of  the 
deceased,  charging  plaintiff  with  murdering  him  as  accused  by  de- 
fendant. 

Pbbpondbranob  or  Evidbkgb.— Im  Jusmrrnro  upob  Chabob  or  Slandeb, 
in  accusing  plaintiff  of  having  poisoned  another,  defendant  need  not  prove 
the  truth  of  the  accusation  beyond  a  reasonable  doubt;  a  preponderance 
of  evidence  is  all  that  is  necessary. 

Slander.  The  declaration  was  for  words  spoken,  charging 
plaintiff  with  murdering  Jacob  Britt  by  secretly  poisoning  him. 
At  the  trial  the  words  were  duly  proved,  and  defendant  pro- 
ceeded to  justify.  For  this  purpose  he  offered  in  evidence  the 
dying  declaration  of  Britt,  charging  plaintiff  as  accused  by  de- 
fendant. Plaintiff  objected  to  the  introduction  of  this  evidence, 
but  the  couit  admitted  it,  and  he  excepted.  Plaintiff  asked  the 
court  to  instruct  the  jury  that  to  establish  the  plea  of  justifica- 
tion, the  jury  should  have  the  same  cogency  of  proof  as  if  the 
plaintiff  were  on  trial  for  his  life  under  the  criminal  charge  of 
murder.  The  court  refused  to  do  this,  and  instructed  the  jury 
that  a  preponderance  of  evidence  was  sufficient.  Plaintiff  ex* 
oepted  to  this,  and  the  verdict  being  against  him,  appealed. 

J.  O,  Shepherd^  for  the  plaintiff. 

Window  and  Strange^  for  the  defendant 

By  Court,  Battle,  J.  Two  questions  are  presented  by  the 
bill  of  exceptions:   1.  Whether  in  the  issue  joined,  upon  the 


Dec.  1854]  Babfield  v.  Bbitt.  191 

plea  of  judtifioationy  the  .dying  declaxations  of  Jacob  Britt  could 
be  giyen  in  CTidence  by  the  defendant,  to  piOTC  the  tmth  of  the 
words  for  which  the  action  was  brought;  2.  Whether  his 
honor  was  right  in  refusing  to  instruct  the  jury  that  the  defendant 
must  sustain  his  plea  by  the  same  cogency  of  proof  as  would  be 
required  against  the  plaintiff,  were  he  on  trial  for  his  life,  under 
a  charge  of  murder;  but  on  the  contraiy,  saying  to  them  that  a 
preponderance  of  evidence,  as  in  a  cItU  case,  wap  all  that  was 
necessaiy. 

The  first  question  is  raised  by  the  plaintiff's  eaoepUonB  to  the 
admission  of  the  testimony,  and  we  think  the  exception  is  well 
founded.  The  reasons  by  which  his  honor's  decision  was  influ- 
enced are  not  stated,  and  we  do  not  know  that  he  felt  himself 
bound  by  the  case  of  MoFarlane  t.  Shaw,  2  Car.  L.  B.  102,  or 
whether  he  thought  the  issue  before  him  was  the  same  as  it  would 
have  been  had  the  plaintiff  been  on  trial  for  the  murder  of  Jacob 
Britt,  and  that  therefore  this  was  an  exception  to  the  general 
rule  that  dying  declarations  are  not  per  se  admissible  in  civil 
cases.  We  say  per  se,  because  where  dying  declarations  con- 
stitute part  of  the  res  gestcB,  or  come  within  the  exception  of 
declarations  against  interest,  or  the  like,  they  are  admissible,  as 
in  other  cases,  irrespective  of  the  fact  that  the  declarant  was 
under  the  apprehension  of  death:  1  Greenl.  Ev.,  sec,  166* 
Whether  the  decision  was  influenced  by  the  one  reason  or  the 
other,  or  by  both  combined,  we  are  satisfied  that  it  is  not  sup- 
ported by  principle,  while  it  is  opposed  by  the  whole  current  of 
the  recent  cases  in  England  and  in  this  country. 

The  case  of  McFarUme  v.  Shaw,  supra,  was  decided  by  the 
supreme  court  under  its  former  organization,  in  the  year  1815. 
The  action  was  by  a  father  for  the  seduction  of  his  daughter; 
the  defendant  pleaded  not  guilty,  and  on  the  trial  the  plaintiff, 
to  prove  the  seduction,  offered  to  show  that  after  all  hope  of 
life  was  gone,  his  daughter,  who  was  then  sick  in  childbed,  de- 
sired  that  the  defendant  might  be  sent  for;  and  upon  being  in- 
formed that  he  would  not  see  her,  exclaimed, ' '  1  am  going ;  he  will 
soon  go  to,  when  he  will  be  obliged  to  see  me,  and  will  not  dare 
to  deny  the  truth."  The  testimony  was  ol^ected  to,  but  received 
by  the  court;  and  the  case  came  before  the  supreme  court  on  a 
motion  for  a  new  trial.  The  court,  after  stating  that  such  testi- 
mony was  admissible  in  certain  criminal  cases,  in  which  life  was 
at  stake,  contended  that  though  they  had  no  precedent  to  guide 
them,  it  ought,  from  reason  and  analogy,  to  be  admitted  in  a 
case  like  the  one  before  them;  but  they  grounded  themselvei 


192  Babfibld  v.  Bbitt-  [N.  (Jarolina^ 

chiefly  on  the  dxcumBtanoea  ''  that  the  &ot  diacloBed  in  her  deo- 
laration  could  only  be  proven  by  herself;  she  was  the  injured 
party,  through  whom  the  cause  of  action  arose  to  the  father." 
The  court  then  say  further:  "We  give  no  opinion  how  far  the 
dying  declarations  of  an  indifferent  person  not  receiving  an  in- 
jury and  not  a  parly  to  the  transaction  would  be  evidence  in  a 
civil  case.  Our  decision  is  confined  to  the  state  of  facts  pre- 
sented in  thiacase."  It  is  manifest  that  the  court  labored  under 
the  impression,  which  then  generally  prevailed,  that  dying  dec- 
larations were  admissible  upon  the  general  principle  "that 
they  are  declarations  made  in  extremity,  when  the  party  is  at 
the  point  of  death,  and  when  every  hope  of  this  world  is  gone, 
when  eveiy  motive  to  falsehood  is  silenced,  and  the  mind  is  in* 
fluenoed  by  the  most  powerful  considerations  to  speak  the  truth; 
a  situation  so  solemn  and  so  awful  is  considered  by  the  law  aa 
creating  an  obligation  equal  to  that  which  is  imposed  by  a  posi- 
tive oath  in  a  court  of  justice."  If  the  admission  stood  upon 
this  general  principle  alone,  it  might  well  have  been  contended, 
as  it  was  contended,  that  dying  declarations  ought  to  be  ad- 
mitted in  all  cases,  civil  as  well  as  criminal.  But  another  ele- 
ment in  the  test  of  truth  was  overlooked  by  those  who  insisted 
upon  this  latitude  of  admission,  to  wit,  the  opportunity  of  con- 
fronting and  cross-examining  the  dedaiant.  The  privilege  of 
cross-examination  has  been  carefully  secured  to  the  party  to  be 
affected  by  them,  in  depositions  taken  before  magistrates,  and 
the  testimony  of  deceased  witnesses  on  a  former  trial.  The  im- 
portance of  preserving  it  has  no  doubt  restricted  the  admission 
of  dying  declarations  to  the 'criminal  cases  only  '^  where  the 
death  of  the  deceased  is  the  subject  of  the  charge  and  the  cir- 
cumstances of  the  death  the  subject  of  the  declarations."  Such 
declarations,  then,  are  admitted  **  upon  the  ground  of  the  pub- 
lic necessity  of  preserving  the  lives  of  the  community  by  bring- 
ing manslayers  to  justice.  For  it  often  happens  that  there  is 
no  third  person  present  to  be  an  eye-witness  to  the  &ct,  and  the 
usual  witness  in  other  cases  of  felony,  namely,  the  injured  party, 
is  himself  destroyed:"  1  Phill.  Ev.,  Cowen  ft  Hill's  notes,  610; 
1  Oreenl.  Ev.,  sec.  156,  and  the  cases  there  cited.  The  princi- 
ple of  admission,  being  thus  restricted,  necessarily  overrules  the 
case  of  McFarlane  v.  Shaw^  2  Car.  L.  B.  102,  and  shows  that  if 
the  issue  be,  as  in  this  case,  whether  the  plaintiff  murdered  the 
deceased,  the  dying  declarations  can  not  be  heard  because  such 
issue  is  joined  in  a  civil  case. 
As  the  plaintiff  is  entitled  to  a  venire  de  novo  for  the  error  in 


Dee.  1854]  Babixeld  v.  Bbttt.  It3 

admitting  improper  testimony,  we  might  abstein  irom  expiCMing 
an  opinion  npon  tlie  second  question;  bnt  as  that  question  may 
and  probably  will  be  raised  upon  the  next  trial,  we  will,  for  the 
guidance  of  the  parties,  state  now  the  Tiew  which  we  have  taken 
of  it.  We  think  his  honor  was  clearly  right  in  declining  to  give 
the  instruction  prayed:  "  That  to  sustain  the  plea  of  justification 
it  was  necessaiy  that  the  jury  should  haye  the  same  cogency  of 
proof  they  would  require  in  case  the  plaintiff  were  on  trial  for  his 
life."  To  such  an  instruction  the  case  of  Kmcade  y.  Bradshaw, 
3  Hawks,  63,  was  directly  opposed;  it  being  held  there  that  in  an 
action  for  slander,  in  charging  a  plaintiff  with  perjury,  the  de- 
fendant is  not  bound,  in  support  of  his  plea  of  justification,  to 
produce  such  eyidence  as  would  be  requisite  to  convict  the 
plaintiff  if  he  were  on  trial  for  the  ofBemse.  Taylor,  0.  J.,  in 
delivering  the  opinion  of  the  court,  concludes  the  aigument 
thus:  **  It  can  not,  therefore,  be  a  cotxect  rule  that  a  juiy  should 
require  the  same  strength  of  evidence  to  find  the  fact  contro- 
verted in  a  civil  case  which  they  would  require  to  find  a  man 
guilty  of  a  crime;  but  the  crime  of  perjury  stands  upon  peculiar 
grounds,  and  requires  more  evidence  to  produce  conviction  than 
crimes  in  general;  one  witness  is  not  sufficient,  because  then 
there  would  be  only  one  oath  against  another.  A  man  knowing 
another  to  have  committed  perjury  may  forbear  to  prosecute  him 
for  the  veiy  reason  that  there  is  but  one  witness  by  whom  the 
crime  can  be  proven.  Shall  he,  therefore,  be  deprived  of  his  jus- 
tification if  sued  in  an  action  of  slander,  although  he  might  be 
furnished  with  convincing  evidence  of  the  truth  of  the  words? 
Both  reason  and  authority  answer  in  the  negative."  The  au- 
thority relied  on  was  the  case  of  Begina  v.  Muscat^  10  Mod.  192, 
where  the  chief  justice,  Parker,  expressed  himself  in  similar 
terms. 

After  declining  to  give  the  instructions  prayed,  his  honor  told 
the  jury  "  that  a  preponderance  of  evidence,  as  in  a  civil  case, 
was  all  that  was  neoessaxy."  If  the  very  language  used  by  his 
honor  is  correctly  set  forth,  it  must  be  confessed  that  it  is  not 
vezy  perspicuous,  and  on  that  account  not  much  calculated  to 
enlighten  the  minds  of  the  jury.  The  case  on  trial  was  a  civil 
case,  and  it  could  afford  the  jury  very  little  assistance  to  make 
it  the  standard  of  itself.  But  we  suppose  that  the  words  "  any 
other  "  were  omitted  by  mistake  in  making  out  the  transcript, 
and  that  a  fair  interpretation  of  the  charge,  taken  in  connection 
vnth  the  refusal  to  give  that  which  was  asked,  is  that  the  party 
upon  whom  lay  the  onus  probandi  must  produce  such  a  prepon« 

Ail  nao.  Vol.  LXn— 13 


194  BuBTOK  V.  Patton.  [N.  Carolina, 

deranoe  of  testimony  as  must  satisfy  the  jury  of  the  truth  of  his 
allegation,  as  he  would  have  to  do  in  any  other  civil  case.  If 
this  be  the  meaning  of  the  charge,  it  is  directly  sustained  by  the 
case  of  Neal  v.  Fesperman,  1  Jones  L.  44G,  decided  at  the 
last  June  term.  In  that  case  the  court  say,  in  conclusion: 
"  How  far  infavorem  viUs  this  matter  is  to  be  extended  so  as  to 
require  the  court,  in  a  capital  case,  when  the  evidence  of  guilt 
is  direct,  to  charge  the  jury  that  they  must  be  satisfied  beyond  a 
rational  doubt,  that  is,  that  they  should  not  have  a  rational 
doubt  of  the  truth  of  the  evidence,  or  the  credibility  of  the  wit- 
nesses, we  are  not  now  to  say;  suffice  it,  in  civil  cases,  if  the  jury 
are  satisfied  from  the  evidence  that  an  allegation  is  true  in  fact, 
it  is  their  duty  so  to  find,  and  they  should  be  so  instructed." 
[t  is  unnecessary  to  pursue  the  discussion  further,  as  we  think 
we  have  said  enough  to  prevent  the  recurrence  of  an  error,  if 
any  yrss  committed  upon  the  second  point  made  in  the  case. 
For  the  error  committed  in  the  admission  of  improper  testimony 
there  must  be  a  venire  de  novo. 
Venire  de  novo. 

Admissiok  Of  Dting  Declarations  in  Axt  Casb  is  Exception  to  tha 
general  rule  of  evidence;  it  is  only  permitted  in  CMes  of  homicide,  and  the 
exception  stands  on  the  ground  of  the  public  necessity  of  preserving  the  livee 
of  the  community  by  bringing  manslayers  to  justice:  McDanid  v.  Stale^  47 
Am.  Dec.  03,  and  note. 

The  principal  case  is  cited  in  Stale  v.  Shelton,  2  Jones  L.  300,  whera 
the  court  decide  that  dying  declarations  must  be  restricted  to  the  act  of  kiU- 
ing,  and  the  circumstances  immediately  attending  the  act  and  forming  a  part 
of  the  re*  getta.    It  is  again  cited  in  Burton  v.  Marchf  6  Id.  413,  argwnda. 


Burton  v.  Patton. 

[2  Jovas'i  Law,  124.] 

Qcro  Wabbamto,  whxn  not  Too  Late.— Commissioners  appointed  by  the 
legislature  to  select  a  town  site,  and  lay  out  and  sell,  lots  thereon,  who 
have  performed  every  act  required  of  them,  and  are  /uncti  officio,  may 
be  proceeded  against  by  information  in  the  nature  of  a  quo  toorrojito, 
where  their  conviction  is  sought  for  the  purpose  of  invalidating  their 
acts,  where  such  acts  would  aflfect  the  general  administration  of  affairs 
in  the  community. 

Acts  op  Opficebs  de  Facto  are  as  Epfectual,  as  Far  as  Rights  of 
third  persons  or  the  public  are  concerned,  as  if  they  were  officers  dejure. 
This  ii  as  true  of  commissioners  who  have  but  a  single  duty  to  perform 
as  of  officers  of  a  more  permanent  character.  The  acts  of  such  officers 
must  stand  unimpeoched  until  they  have  been  proceeded  against  directly, 
and  convicted  of  usurpation  of  power. 


Dec  1854.]  Bukton  v.  Patton.  195 

Tms  is  a  proceeding  bj  information  in  the  nature  of  a  quo 
wwmmto  against  the  defendants,  charging  that  thej  have 
nsnrped  certain  powers,  and  without  authoritj  of  hiw  are  pro- 
ceeding to  hij  off  and  sell  town  lots  in  the  town  of  Marshall. 
The  court  below  dismissed  the  information,  and  plaintiff  ap- 
pealed. 

Merrimany  for  the  plaintiff. 

WUliams  and  Woodfin^  for  the  defendants. 

By  Court,  Battle,  J.  The  pleadings  in  this  case  exhibit  a 
defect  which  we  deem  it  not  improper  to  notice.  The  defense 
ought  to  have  been  made  by  way  of  plea,  instead  of  answer: 
Cole  on  Criminal  Information  and  Quo  Warranto,  204;  53  Law 
Lib.;  1  E.  S.,  c.  97,  sec.  1;  State  y.  Uardie,  1  Lred.  L.  42.  But 
the  counsel,  by  a  written  agreement,  filed  in  the  cause,  have 
waived  all  objections  on  account  of  this  defect,  and  have  referred 
the  matter  to  the  court,  to  be  decided  upon  its  merits  on  the  in- 
formation and  answer. 

We  are  to  take  the  answer,  then,  as  a  special  plea  in  bar;  and 
the  case  made  by  the  pleadings,  and  some  admissions  of  the 
parties,  is  this:  The  legislature,  by  an  act  passed  in  the  year 
1852,  chapter  17,  entitled  "An  act  to  appoint  commissioners  to 
locate  the  town  of  Marshall,"  appointed  "  Joseph  Cathey  of  the 
counly  of  Haywood,  William  Lescor  of  the  county  of  Caldwell, 
General  Alxey  Burgin  of  the  county  of  McDowell,  Leander  S. 
Cash  of  the  county  of  Henderson,  Colonel  George  Bower  of 
the  county  of  Ashe,  Francis  P.  Glass  of  the  county  of  Burke, 
and  Dr.  Columbus  Mills  of  the  county  of  Butherford,  com- 
missioners to  select  a  site  for  the  location  of  the  town  of  Mar- 
shall, in  the  county  of  Madison,  with  power  for  any  five  of  them 
to  act."  The  third  section  directed  these  commissioners  to  ob- 
tain by  donation  or  purchase  a  quantity  of  land,  not  less  than 
fifty  acres,  for  the  use  of  the  county,  and  to  take  the  deed  or 
deeds  therefor  to  the  county  of  Madison,  or  to  the  chairmau  of 
the  county  court,  for  the  use  of  the  county;  "and  to  file  with 
the  clerk  of  the  county  court  of  said  county  a  statement  of  their 
decision."  The  fourth  section  appointed  the  defendants  com- 
missioners to  lay  off  and  sell  the  lots  in  the  town  to  be  located 
on  the  lands  purchased  by  the  commissioners  hereinbefore 
named,  or  any  five  of  them,  and  to  take  the  bonds  for  the  pur- 
chase money,  and  file  them  with  the  clerk  of  the  county  court 
for  the  use  of  the  county.  By  the  fifth  section  any  three  of 
them  were  authorized  to  act;  and  any  one  or  more  of   them 


196  BuBTOK  V.  Patton.  [N.  Carolixui^ 

neglecting  or  refusing  to  perfonn  the  duties  enjoined  were 
made  liable  to  be  indicted,  and  upon  conviction,  to  be  fined  at 
the  discretion  of  the  court. 

After  the  seyenteenth  day  of  February,  1863,  the  defendauto 
^were  notified  that  an  instrument  of  writing  bearing  that  date 
was  filed  in  the  office  of  the  clerk  of  the  county  court  of  Madi- 
son, in  the  words  following,  to  wit:  ''The  undersigned  com- 
luissioners,  appointed  by  act  of  the  legislature  at  the  last 
eession,  having  proceeded  according  to  the  said  act,  as  ex- 
plained by  a  member  of  the  legislature,  to  an  examination  of 
all  the  locations  near  the  center  of  the  county  of  Madison,  after 
«  careful  examination,  and  a  patient  heoring  of  all  the  parties 
interested,  have  agreed  upon  a  location  for  the  town  of  Mar- 
shall on  the  lands  of  Z.  B.  Vance  and  Samuel  Chunn,  securing 
by  tiUe  bond  in  the  sum  of  five  thousand  dollars  fifty  acres 
from  Vance;  and  a  conyeyance  from  Chunn  for  a  tract  adjoining 
Vance  for  about  fifteen  to  twenty-five  acres,  which  will  be  more 
fully  undersix>od  by  a  reference  to  said  titie  papers,  all  of  which 
respectfully  reported  to  the  worshipful  court  of  pleas  and  quar- 
ter sessions  of  Madison  county,  and  those  whom  it  may  concern. 

"N.  B.  We  hereby  constitute  William  Williams,  esq.,  at- 
torney at  law,  our  agent  to  take  the  deeds  from  the  said  Vance, 

ox  to  have  the  same  properly  executed. 

**Wm.  a.  liENom. 

<<Alxet  Bubodc. 

"J.  Oathev. 

"F.  P.  Glass. 

"CM.  AVEBY." 

The  deed  from  Vance  was  subseqnentiy  taken  by  the  agent 
for  these  commissioners,  and  then  the  defendants  proceeded  to 
perform  the  duties  enjoined  by  the  act,  by  laying  off  and  sell- 
ing the  lots  on  the  land  purchased  by  the  commissioners  on  the 
French  Broad  river,  near  the  residence  of  Adolphus  E.  Baird, 
and  had  completed  all  that  was  requii^  of  them  before  the  in- 
formation against  them  was  filed. 

Two  objections  have  been  made  by  the  counsel  for  the  defend- 
ants against  this  proceeding,  for  which  it  is  contended  that  it 
ought  to  be  dismissed:  1.  That  the  defendants  were  not  in  the 
-exercise  of  any  office,  that  they  were  fundi  officio^  and  that 
therefore  an  information  in  the  nature  of  qtio  warranto  was  too 
late,  and  would  not  lie;  2.  That  the  persons  who  located  the 
town  of  Marshall  by  purchasing  lands,  taking  the  deed  therefor, 
mnd  filing  a  statement  of  their  decision  in  the  office  of  tha 


Dee.  1854]  Bubton  v.  Patton.  197 

dark  of  fbe  conntj  court  of  Madison,  were  commianoners  de 
/ado,  if  not  de  jure^  and  the  defendants  had  no  right  to  ques- 
tion their  authority;  bnt  were  bound  to  consider  tiieir  acts  asr 
Talid,  and  consequently  must  be  justified  for  haying  done  so 
until,  bj  a  proceeding  directly  against  such  commissioners,  it 
shall  be  adjudged  that  they  usurped  their  office  and  acted  witb^ 
out  authority  of  law. 

To  the  first  objection,  the  opinion  of  the  judges,  in  the  case  o£ 
Bex  T.  Harris,  6  Ad.  &E1.  475;  S.  C,  83Eng.  Com.  L.  117,  re- 
ferred  to  by  the  plaintiff's  counsel,  is  a  decisiTC  answer.    In 
that  case  littledale,  J.,  remarked  that  "there  haye  been  in* 
stances  in  which  an  information  has  issued  after  the  office.  • 
expired,  when  something  done  in  the  office  would  hare  affected 
the  general  administration  of  afiiEurs  in  the  borough.''    And 
Coleridge,  J.,  added:  "In  iter  v.  Aldermen  of  New  Badnor,  2j 
Keny.  498,  the  conviction  of  the  officer  de  facto  might  hayer 
become  necessaiy  as  evidence  to  invalidate  the  title  of  other 
members  of  the  corporation  claiming  through  him."    In  the 
present  case,  the  manifest  object  of  proceeding  against  the  de- 
fendants is  by  the  conviction  of  them  to  invalidate  the  acts  of 
those  who  are  going  on  to  erect  a  court-house  and  other  public 
buildings,  and  thus  to  fix  the  town  of  Marshall  upon  the  site. 
selected  by  the  commissioners  of  location.    With  that  view,  the^ 
information  does  not  come  too  late.    But  that  proposition  neces- 
sarily suggests  the  inquiry  whether  the  relator  has  selected  tha 
proper  persons  against  whom  to  proceed. 

And  this  brings  forward  for  consideration  the  second  objec- 
tion, which,  we  think,  is  as  decisive  against  the  plaintiff  as  tha 
first  is  for  him. 

In  the  case  of  Burke  v.  EUioU,  4  Ired.  L.  355  [42  Am.  Dee.  142f». 
it  was  decided  that  the  acts  of  the  officers  de  facto  are  as  effectual, . 
as  far  as  the  rights  of  third  persons  or  the  public  are  concerned, 
as  if  thev  were  officers  dejure.  In  delivering  the  opinion  of  tha 
court,  the  chief  justice,  Buffin,  veiy  ably  reviewed  the  whola 
subject,  and  showed  beyond  doubt  that  the  conclusion  arrived 
at  by  the  court  was  supported  as  strongly  by  authority,  English 
and  American,  as  by  reason  and  public  policy.  It  may  admit 
of  doubt,  say  the  court,  what  shall  constitute  an  officer  de  facia 
in  different  cases.  "  The  mere  assumption  of  the  officer  by  per^ 
forming  one  or  even  several  acts  appropriate  to  it^  without  any 
recognition  of  the  person  as  officer  by  the  appointing  power,. 
may  not  be  sufficient  to  constitute  him  an  officer  de  facto.  Ther» 
must  at  least  be  some  colorable  election  and  induction  into  office 


198  Burton  v,  Pattox.  [N.  Carolina. 

ab  origine;  or  bo  long  an  exercise  of  the  ofiSce  and  acquiescence 
therein  of  the  public  authorities  as  to  afTord  to  the  io dividual 
citizen  a  presumption  strong  that  the  party  was  duly  appointed, 
and  therefore,  that  every  person  might  compel  him,  for  the  legal 
fees,  to  do  his  business,  and  for  the  same  reason  was  bound  to 
submit  to  his  authority  as  the  officer  of  the  country.  A  public 
odicer  is  to  be  supposed  necessary  for  the  public  service,  and 
for  the  convenience  of  all  the  various  members  of  the  community, 
and  therefore,  that  it  will  be  duly  filled  by  the  public  authority. 
Where  one  is  found  actually  in  office,  and  openly  and  notori- 
ously exercising  its  functions  in  a  limited  district,  so  that  it 
must  be  known  to  those  whose  official  duty  it  is  to  see  that  the 
office  is  legally  filled,  and  also  that  it  is  not  illegally  usui*ped, 
and  when  this  goes  on  for  a  great  length  of  time,  or  for  a  period 
which  covers  much  of  the  time  for  which  the  office  may  be  law- 
fully conferred,  it  would  be  entrapping  the  citizen  and  betray- 
ing his  interests,  if,  when  ho  had  applied  to  the  officer  defacio  to 
do  his  business,  and  got  it  done,  as  he  supposed,  b}*  the  only 
person  who  could  do  it,  he  could  yet  be  told  that  all  that  was 
done  was  void  because  the  public  had  not  duly  appointed  that 
person  to  the  office  which  the  public  allowed  him  to  exercise." 
The  above  remarks  apply  more  particularly  to  officers  of  a 
greater  or  less  permanent  character.  But  they  may  be  applied 
with  equal  force  to  tliose  who,  like  the  commissioners  in  the 
present  case,  had  but  a  single  duty  to  perform.  Here  the  com- 
missioners were  appointed  by  the  highest  public  authority,  the 
legislature,  for  the  sole  purpose  of  locating  the  town  of  Marshall. 
In  doing  this,  they  were  required  to  select  a  site,  purchase  lands 
and  take  deeds  therefor,  and  file  with  the  clerk  of  the  county 
court  a  statement  of  their  decision.  Certain  persons,  professing 
to  act  under  the  authority  of  the  legislature,  and  some  of  whom 
were  without  question  duly  appointed,  proceeded  to  act  as  com- 
missioners, and  did  perform  the  duty  required  of  them  as  .such. 
The  defendants  were  notified  of  the  statement  of  the  decision  of 
these  persons,  professing  to  act  as  commissioners,  being  filed 
with  the  clerk  of  the  county  court,  which  was  to  be  their  au- 
thority for  proceeding  to  lay  off  and  sell  the  town  lots.  Could 
the  defendant  question  the  validity  of  the  act  of  these  persons 
whon  it  had  been  recognized  by  the  clerk  of  the  county  court? 
Were  they  bound  to  ilispute,  at  the  risk  of  being  indicted  and 
punished,  what  no  one  else  had  disputed?  Wo  think  not.  As 
to  them,  the  persons  professing  to  act  and  acting  as  commis- 
sioners must  be  regarded  as  such  de  /ado  if  not  de  jure.    The 


Dec.  1854.]  Burton  u  Patton.  199 

information  itself  attacks  the  defendants,  by  calling  in  question 
the  validity  of  the  power  of  the  commissioners  of  location.  The 
relator  ought  to  have  proceeded  directly  against  them  in  the  first 
instance,  and  until  that  be  done,  and  they  be  convicted  of  usur- 
pation of  power,  the  doings  of  the  defendants  must  stand  unim- 
peached.  In  coming  to  the  conclusion  that  the  information 
must  be  dismissed,  we  have  not,  as  will  be  seen,  noticed  the  pro- 
ceedings of  the  persons  professing  to  act  as  commissioners  on 
the  foiurteenth  day  of  January,  1854,  and  thereby  to  ratify  and 
confirm  the  location  first  made.  Whether  that  will  avail  any- 
thing in  an  information  against  the  commissioners  of  location 
is  not  for  us  to  say.  We  have  performed  our  duty  to  this  case 
when  we  declare  that  the  present  information  can  not  be  su8> 
iained,  and  that  the  judgment  dismissing  It  must  be  affirmed. 
Judgment  affirmed. 


Where  Tebh  of  OmcB  has  Expthed  bevorb  Quo  Warranto  ia  applied 
lew,  or  will  expire  before  trial,  the  application  will  be  denied:  PtopU  v.  Swan, 
£4  Am.  Dec.  33.  Thii  role  is  also  laid  down  in  the  note  to  People  v.  RenMelaer 
etc  n.  R,  Co,,  30  Id.  33,  at  page  4S.  The  acta  of  officers  dt  faclo  are  as 
valid  with  regard  to  third  persons  as  if  they  were  officers  dt  jure :  Pearee  v. 
StttcHns,  58  Id.  54,  and  cases  cited  in  note. 

The  fringipalcaee  is  ottbd  in  Commisnoners  ▼.  McDaniel,  7  Jon  as  L.  107, 
where  the  oonrt  hold  that  persons  entering  into  office  under  color  of  an  elec- 
tion, although  izregnlar,  are  thereby  constituted  officers  de  /acto,  and  theii 
«ficial  acts  haTe  fall  force  until  removed  by  a  writ  of  quo  teamuUo. 


CASES  IN  EQUITY 


IN  THS 


SUPREME  COURT 

ov 
NORTH   CAROLINA. 


Barnes  v.  Teaoub. 

[1  Joim'i  Equity,  97T.] 

Pabt  Pebvobmanos  op  Parol  Agbbehknt  to  Mctdallt  Bxohanob  Laxm 
does  not  dispense  witli  the  requirements  of  the  statate  of  frauds  so  as 
to  entitle  the  party  so  partly  performing  to  a  speoific  perfoimanoe. 

Defendant  Who  Admits  Parol  Agreement  fob  Sale  of  Lands  in  his 
Answer,  but  insists  that  it  is  void  by  the  statute  of  frauds,  is  entitled 
to  the  protection  of  such  statute,  and  no  decree  can  be  made  against 
him  merely  on  the  ground  of  such  confession. 

Plaintiff  alleged  in  bis  bill  that  be  bad  entered  into  a  parol 
agreement  witb  defendant,  by  wbich  tbej  were  to  exchange  two 
certain  tracts  of  land.  Plaintiff's  land  was  situated  in  Pickens 
district,  and  defendant's  in  Macon  county.  One  of  the  provis- 
ions of  their  agreement  was  that  defendant  was  to  surrender 
a  seventy-fiTe-doUar  judgment  which  he  held  against  plaintifi'. 
They  were  also  to  have  the  proper  written  conveyances  drawn 
up  as  soon  as  they  could  get  a  friend  to  do  the  writing;  for,  as 
the  bill  alleges,  they  were  illiterate,  and  could  not  do  it  them- 
selves. Upon  the  strength  of  this  agreement  plaintiff  removed 
to  the  land  in  Macon  county,  and  left  his  home  in  Pickens  dis- 
trict. Defendant  afterwards  procured  plaintiff's  land  in  Pick- 
ens district  to  be  sold  to  satisfy  the  above-mentioned  judgment, 
and  sold  the  land  in  Macon  to  defendant  Calhoun,  whom  plaint- 
iff alleges  to  have  had  notice  of  his  equity.  Plaintiff's  prayer  was 
for  specific  performance  and  general  relief.  Defendant  Teague 
admitted  the  contract,  but  relied  upon  the  statute  requiring  such 
contracts  or  agreements  to  be  in  writing.  Defendant  Calhono 
in  his  answer  denied  all  knowledge  of  plaintiff's  equilj. 

90O 


Aiq^  1864]  BiBifss  tf.  TiAcnnBL  SOI 

J.  W.  Woodfin^  for  the  pi 

JK  IT.  Tr<XK(/&iy  for  the  defendant. 

By  Cknut,  Nash,  O.  J.  By  the  English  courts  of  equity,  snd 
by  those  of  this  country,  the  statute  rsqniring  all  contracts  for 
the  sale  of  lands  or  any  inteiest  therein  to  be  in  writing,  and 
signed  by  the  pariy  to  be  charged  therewith,  is  held  to  be  one 
for  the  suppression  of  frauds  and  perjuries.  The  former  courts 
have  put  such  a  construction  upon  this  statute  as  in  their  judg- 
ment best  carries  out  the  intention  of  the  legislature.  Thus 
they  haye  decided  that  a  substantial  part  performance  of  a  parol 
contract  will  take  a  case  out  of  the  statute,  as  where  the  pur- 
ehaser  has  been  put  into  possession  of  the  bargained  premises 
upon  the  ground  that  it  would  be  a  fraud  in  the  party  refusing 
to  execute  it  under  such  circumstances.  Our  courts  have  refused 
to  follow  the  example  of  the  English  courts  in  this  particular. 
The  first  case  under  our  statute  was  that  of  EUis  t.  ElllSy  1  Dev. 
Eq.  180,  where  it  was  decided  that  our  statute  ought  to  receive 
the  same  construction  with  the  English  statute.  This  case  was, 
however,  reviewed  very  soon  thereafter,  and  the  decree  reversed : 
B.  G. ,  Id.  345.  The  doctrine  upon  this  point  has  ever  since  been 
considered  as  settled  in  this  state:  that  where  to  a  bill  for  the 
•pedfio  performance  of  a  parol  contract  the  defendant  denies  the 
eontmct  as  alleged  and  relies  on  the  statute,  no  parol  evidence 
can  be  received  even  upon  the  ground  of  part  performance.  This 
ease  presents  another  question,  which  though  not  an  open  one 
DOW  in  England  is  so  here,  whether  a  defendant  who  admits  a 
parol  contract  in  his  answer  can  protect  himself  against  its  exe- 
cution by  pleading  the  statute.  At  one  time  it  was  held  that  if 
a  bill  for  the  specific  performance  of  a  contract  stated  the  agree- 
ment generally,  without  specifying  whether  it  was  in  writing  or 
not,  as  that  general  statement  may  be  understood  of  an  agree- 
ment in  writing,  a  plea  in  the  nature  of  an  answer  would  be 
admitted:  Morison  v.  Toumour,  18  Ves.  182;  Whitchurch  v. 
Bevis,  2  Bro.  C.  C.  566;  Story's  Eq.  PI.,  sec.  762,  But  if  the  biU 
stated  the  agreement  to  be  in  writing,  and  seeks  only  the  execu- 
tion of  the  eontiact,  a  plea  that  there  is  no  such  agreement  in 
mting  will  not  be  received  without  an  answer:  Story's  Eq.  PI., 
aec.  762. 

It  is  now,  however,  settled  in  England  that  this  plea  extends 
as  well  to  the  discovery  as  to  the  performance  of  the  parol  agree- 
mfflit,  and  that  a  defendant  may,  while  he  admits  or  confesses 
the  parol  contract,  protect  himself  under  the  act  from  its  per- 


202  Brittain  v.  Qum.  [N.  Garolinai 

formanoe  br  pleading  the  statute:  Whiichurck  t.  Bevia,  supra; 
Cooper's  Eq.  PI.  25G;  Mitford's  Eq.  PI.  266-268,  where  the 
doctrine  is  examined;  Stoiy's  Eq.  PL,  sec.  763,  and  note.  The 
doctrine  is  thus  summed  up  as  follows:  "At  length  it  seems  to 
have  been  decided  that  although  a  parol  agreement  be  confessed 
by  the  defendant's  answer,  yet  if  he  insists  upon  the  protection 
of  the  statute,  no  decree  can  be  made  merely  on  the  ground  of 
that  confession."  Our  courts  having  discarded  the  construction 
of  the  English  courts  as  to  part  performance,  the  principle  as 
above  stated  is  freed  from  the  closing  condition,  and,  in  analogy 
with  the  previous  decisions,  we  have  no  hesitation  in  saying  that 
a  defendant  may  in  his  answer  admit  the  parol  contract  without 
depriving  himself  of  the  protection  of  the  statute  by  his  plea  or 
answer,  and  that  the  court  can  not,  under  such  a  state  of  things, 
decree  a  specific  performance. 

Here  the  bill  states  that  the  contract  was  by  parol,  and  the 
defendant,  admitting  it,  claims  the  benefit  of  the  statute;  the 
bill  must  be  dismissed,  with  costs. 

Decree  accordingly. 

Pakt  Perfobmancb  or  Obal  CoNraAcr  to  Exgbanok  Lands  ia  suffi- 
cient to  take  it  out  of  the  statute  of  frauds  and  warrant  specific  enforcement 
when  there  has  been  delivery  with  acts  of  ownership  on  both  sides:  Parrili 
V.  McKinley,  5S  Am.  Dec.  212.  As  to  when  a  court  of  equity  will  decree  a 
specific  performance  of  a  parol  agreement  within  the  statute  of  frauds,  upon 
the  pround  of  part  perfonnance,  see  Hoen  v.  Simmons,  52  Id.  291,  and  cases 
In  note;  Aday  y.EchoU,  Id.  225;  MeMahan  y.McMahan,  53  Id.  481;  Ckritty 
▼.  Barnhart,  53  Id.  538,  and  extensive  note;  HasUUm  v.  Pttteam,  54  Id.  158; 
Oangwer  v.  Fry,  55  Id.  578,  and  cases  cited  in  notes  to  aboTe 


Bbittain  v.  Quiet. 

[1  Jomts's  Equitt,  898.) 

Bulb  that  Pabtt  must  Establish  his  Dkbt  bt  Judgmxnt  before  he 
can  come  into  equity  is  confined  to  creditors  who  are  seeking  the  aid  of 
equity  in  the  collection  of  their  debts,  on  the  ground  of  imposing  on  an 
equitable  interest  the  liability  which  would  attach  at  law  on  a  similai 
legal  interests 

Rule  that  Pabtt  must  Establish  his  Dbbt  bt  Judgment  before  he  can 
go  into  equity  does  not  apply  to  a  case  where  a  surety  who  has  paid  the 
debt  of  his  principal  seeks  afterwards  to  that  extent  to  enjoin  the  col- 
lection of  a  judgment  obtained  against  him  by  his  said  principaL 

Scrstt  Who  has  Paid  Debt  of  his  Principal  mat,  ly  Equitt,  Exjoim 
an  execution  on  a  judgment  against  him  in  favor  of  said  principal,  to  the 
extent  of  the  amount  so  paid  as  surety,  although  the  money  was  not  paid 
ii&til  after  the  commencement  of  the  action  in  which  the  judgment 


Aug.  1854]  BRnTAiN  v.  Qum.  203 

K&dend,  and  oontaqiiently,  would  not  hmv  been  good  m  a  aet-off  al 
law,  if  it  appem  that  the  principal  haa  removod  from  tha  atate  laaTing 
no  property. 

Ths  case  was  heard  on  demnnmr.  The  opinion  states  the 
facts. 

(kniher  and  Caldwell,  for  the  plaintiff. 

Avery,  for  the  defendant. 

By  Court,  Pearson,  J.  In  1850  the  defendant  soed  the 
plaintiff  in  a^umpsU,  and  at  spring  term,  1853,  obtained  judg- 
ment for  one  hundred  and  ninety-eight  dollars,  for  which  execu- 
tion has  issued.  In  1841  the  plaintiff  became  the  surety  of  the 
defendant  to  one  Pearson,  for  one  hundred  and  seyenty-five 
dollars.  In  1850  Pearson  sued  for  the  debt  and  obtained  judg- 
ment, which  was  paid  off  by  the  plaintiff  in  December,  1852. 

The  prayer  is  to  enjoin  the  defendant  from  collecting  any 
more  than  the  difference  between  the  two  sums,  that  tlie  one 
sum  may  be  declared  to  be  a  discharge  of  the  other;  a  demurrer 
is  filed ;  upon  the  argument,  tbe  defendant's  counsel  put  the  case, 
on  the  objection  that  the  plaintiff  could  not  be  heard  in  this  court 
because  he  had  no  judgment  at  law  to  prove  his  debt.  From 
the  argument  in  this  case  and  several  others,  when  the  matter 
was  alluded  to  incidentally,  we  perceive  that  the  members  of  the 
profession  have  fallen  into  error  in  regard  to  the  extent  of  the 
rule  that  the  party  must  establish  his  debt  by  a  judgment  be- 
fore he  can  come  into  equity.  That  is  not  a  general  rule;  but  is  a 
rule  confined  to  cases  where  a  creditor  seeks  the  aid  of  a  court 
of  equity  in  the  collection  of  his  debt,  on  the  ground  of  impos- 
ing on  an  equitable  interest  the  liability  which  would  attach  at 
law  on  a  corresponding  legal  interest.  Inasmuch  as  the  right 
of  a  creditor  can  not  attach  to  a  legal  interest  until  he  takes 
>indgment,  and  in  most  cases  until  he  issues  execution,  so  no 
right  can  attach  to  an  equitable  interest  of  the  debtor  until  the 
creditor  has  taken  judgment  at  law,  and  in  most  cases  until  he 
has  issued  execution.  This  doctrine  is  treated  of  in  the  English 
works  under  the  head  of  equitable  fieri  facias  and  elegit,  and 
tbe  cases  in  our  reports  all  show  that  the  rule  is  confined  to 
creditors  who  are  seeking  the  aid  of  equity  in  the  collection  of 
their  debts,  having  no  other  ground  for  coming  into  equity  than 
the  fact  that  they  are  not  able  to  enforce  a  collection  at  law. 
Under  these  circumstances,  the  court  of  equity  will  not  give  re- 
lief until  the  debt  is  established  by  a  judgment;  and  in  most 
esses  not  until  the  fact  that  collection  can  not  be  enforced  at  law  is 


104  Bbtttain  t;.  Qnn&r.  [N.  CaroHa^ 

Mtabliidiecl  hy  baTing  an  execution  returned  nuHa  bona:  Bridget 
T.  Mcye^  Busb.  Eq.  173;  Bambavi  r.  Mayfield^  1  Hawks,  85;  Brown 
▼.  Lcmg,  1  Ired.  Eq.  192  [36  Am.  Dec.  43];  Dosier  ▼.  Doeier,  1 
Dev.  A  B.  Eq.  96;  Peoples  v.  Tatum,  1  Ired.  Eq.  414;  Donaldson 
Cape  Fear  Bank,  1  Dev.  Eq.  103  [18  Am.  Dec.  577]. 

A  perusal  of  these  cases,  notwithstanding  some  general  ex- 
pressions, will  show  clearly  that  the  rule  is  not  a  general  one, 
but  applies  only  to  particular  cases.  Our  case  shows  that  such 
a  rule  would  not  work  right  as  a  general  rule;  for  the  very 
ground  of  the  plaintiff's  equity  is  that  in  the  mean  time  (pending 
the  suits)  the  defendant  removed  to  the  state  of  Arkansas,  leav- 
ing no  estate  here,  so  that  the  plaintiff  has  no  remedy  against 
his  person  or  property,  unless  he  is  allowed  in  equiiy  to  retain 
of  the  fund  which  he  owes  the  defendant  the  amount  that  the 
defendant  owes  him,  so  as  to  consider  the  difference  between  the 
two  sums  as  the  amount  actually  due;  to  require  of  him  to  take  a 
judgment  at  law  before  he  can  come  into  this  court  would  be 
in  effect  to  deny  the  equity. 

Instances  where  the  issue  "  debt  or  no  debt"  has  been  passed 
upon  by  a  court  of  equity,  without  requiring  that  the  fact  of  the 
debt  should  be  first  fixed  by  a  judgment  at  law,  are  without  num- 
ber; as  when  an  executor  is  allowed  to  retain  out  of  a  legacy  m 
debt  due  by  the  legatee  to  the  testator:  Barnes  v.  Pearson,  6  Ired. 
Eq.  482;  or  a  mortgagee  to  insist  that  debts  other  than  that 
secured  shall  be  paid  before  redemption;  and  in  the  numerous 
cases  of  creditors'  bills  against  an  exeoutor  or  administrator. 

In  the  investigation  of  this  case  another  point  was  suggested. 
The  plaintiff  paid  the  money  in  December,  1852.  The  suit  was 
brought  in  1850,  though  the  judgment  was  not  taken  until 
spring,  1853;  could  the  plaintiff  have  had  the  benefit  of  this 
payment  as  a  set-off,  by  way  of  plea  since  the  last  continuance? 
It  would  seem  that  he  could  not,  for  a  set-off  must  exist  at  the 
time  the  original  action  is  commenced:  its  being  true  at  the 
time  of  the  plea  pleaded  will  not  suffice:  3fizell  v.  Moore,  7  Ired. 
L.  255. 

So  a  plea  since  the  last  continuance  would  not  be  applicable 
to  set-offs.  But  without  deciding  the  question  of  special  plead- 
ing, as  is  said  in  Smith  v.  Hayes,  1  Jones  Eq.  821,  decided  at 
this  term,  '*  apart  from  the  construction  that  equity  seeks  to 
avoid  a  multiplicity  of  suits,  and  that  to  receive  with  one  hand 
and  pay  back  with  the  other  is  not  only  useless,  but  can  be  of  no 
advantage  to  the  one,  and  may  put  the  other  party  to  inconven- 
ience and  probably  subject  him  to  loss,"  we  have  here  the 


Dec  1854.]  McQusn:  v.  McQusn.  SOS 

eq[uitable  ingrediant  that  the  defendant  has  ramoned  to  the 
state  of  ArkansaSy  leaving  no  property  in  this  state,  so  that 
unless  the  plaintiff  is  allowed  to  "  hold  on  "  by  \?ay  of  retainer 
to  the  fund  in  his  hand«  he  will  be  without  remedy.  This  equity 
as  between  the  parties,  that  is,  when  the  rights  of  third  persons 
do  not  intervene,  is  clear  and  well  settled,  both  upon  principle 
and  by  the  authorities.  . 

Injunction  continued  until   the   hearing.     Demurrer  over- 
ruled.   Defendant  I'eqnired  to  answer. 
Decree  accordingly. 

When  Cbxdttob  must  have  Judgment  and  ErEcmoN  Returned  Un- 
■ATisnxD  in  order  ta  niaintain  ft  bill  to  reach  aasets  of  debtor:  See  Unknown 
Jlein  V.  Kimbailf  58  Am.  Dec.  638,  and  the  cases  cited  in  the  note  thereto. 

Debt  or  Pemaivd,  to  be  Used  as  Set*off«  must  eziit  at  the  commenoiH 
ment  of  the  suit,  and  must  LaTe  at  that  time  belonged  to  the  defendants 
Smiih  V.  Ewer*  60  Am.  Dec.  73,  and  note. 


McQueen  v.  McQueen. 

[2Jojnn'i  Equitt,  16.] 

To  Origin ATK  Doctrine  of  Election,  Two  Thino«  are  Said  to  be  Es* 
gSNTiAi«:  1.  That  the  testator  shall  give  property  of  his  own;  and  2.  That 
he  shall  profess  to  give  also  the  property  of  his  legatee  or  devisee. 

Election — ^Valid  BEguEsr. — After  a  provnion  in  a  will  by  a  testator  direct- 
ing how  his  property  may  be  divided  among  all  his  childrtB,  lie  provides 
that  certain  property  which  part  of  said  children  (they  were  brothers  and 
sisters  of  the  lialf-blood)  were  expected  to  receive  from  their  maternal 
grandfather  should  be  divided  among  all  the  others  in  the  same  proper- 
tion  as  his  own  property.  He  then  provides  that  his  estate  is  not  to  b« 
distribated  for  two  years,  before  the  expiration  of  which,  bat  after  the 
testator'b  death,  the  grandfather  dies,  leaving  to  the  children  the  expected 
property:  Held^  that  to  such  a  disposition  the  equitable  doctrine  of  elec- 
tion applies,  also  that  the  provision  was  valid. 

When  Parties  Who  are  Required  to  Make  Election  are  Minors, 
the  court  will  refer  the  matter  to  a  master,  who,  after  an  inquiry,  will 
ascertain  the  value  of  the  interests,  and  direct  what  election  shall  be 
nuule. 

Bequest  or  Fabv,  Costditioned  vtoh  Patveict  or  One  Half  of  its  value, 
may  be  made,  and  if  the  devisee  is  of  lawful  age,  he  may  claim  it  upon 
paying  one  half  of  its  estimated  value.  If  he  is  a  minor,  the  court  will 
order  a  reference  to  a  master  to  see  if  it  would  be  to  his  advantage  to 
do  so. 

This  is  a  bill  filed  by  the  executors  of  Archibald  McQueen, 
ftsking  for  the  advice  and  direction  of  the  court  as  to  the  manner 
in  which  they  should  distribute  his  estate.     The  proyisions  of 


206  McQueen  v.  McQueen.         [N.  Carolinai 

the  irill  as  to  the  execution  of  which  they  required  the  direction 
of  the  court  are  subetantiallj  as  follow:  In  the  first  item  he 
directs  that  of  all  his  estate  not  afterwards  excepted,  his  daugh- 
ters shall  have  three  parts  and  his  sons  two  parts.  In  the  second 
item  he  provides  that  inasmuch  as  he  expects  five  of  his  chil- 
dren, naming  them  (they  were  children  of  his  second  and  third 
marriages)  to  "receive  property  from  their  grandfather,  "William 
McLeod,  it  is  my  wish  and  desire,  and  I  enjoin  it  as  a  last  re- 
quest, that  whatever  such  property  may  be,  it  shall  be  estimated 
in  the  proportion  of  three  and  two,  specified  in  the  above  article, 
BO  as  to  carry  out  this  my  division."  By  the  fifth  item  the  tes- 
tator provides  that  the  estate  is  not  to  be  distributed  until  iw<s 
years  from  the  probate  of  his  will,  when  it  is  to  be  set  apai't  to 
all  his  children,  both  adults  and  minors,  observing  the  propor- 
tions above  specified,  giving  to  the  adults  their  shares  in  sever- 
alty, and  leaving  to  the  minors  their  estate  as  tenants  in  com- 
mon, which  said  estate  is  to  be  managed  by  a  guardian.  In  a 
codicil  to  this  will  he  provided,  among  other  things,  that  it  was 
his  desire  that  the  Eingsboro'  tract  should  be  retained  as  the 
common  home  for  all  his  children,  but  if  they  should  leave  it, 
it  should  become  the  property  of  William  McLeod,  his  youngest 
son,  upon  his  paying  one  half  of  its  estimated  value,  to  be  dis* 
tributed  in  the  first-mentioned  proportion.  Before  the  tima 
specified  in  the  will  for  the  distribution  of  testator's  estate, 
William  McLeod,  the  grandfather  mentioned  in  the  will,  died, 
leaving  the  expected  property  to  the  five  children  nauied  by  tes- 
tator in  his  will.  Testator  Archibald  McQueen  was  married 
three  times;  by  his  first  wife  he  had  issue  two  children,  and  by 
his  second  and  third  wives,  sisters,  daughters  of  William 
McLeod,  he  had  five  children.  The  remaining  facts  appear  from 
the  opinion. 

Kelhj,  for  the  plaintiffs. 

_  • 

Banks,  for  the  defendant. 

By  Court,  Battle,  J.  The  difficulties  suggested  by  the  plead- 
ings, as  to  the  construction  of  the  will  and  codicil  of  the  plaint- 
iffs' testator,  do  not  arise  so  much  from  ascertaining  what  hia 
intention  is,  as  from  determining  whether  it  be  in  accordance  with 
law.  He  declares  in  terms  which  can  not  be  misunderstood 
that  all  his  property,  with  certain  specified  exceptions,  shall  b€ 
divided  between  all  his  children,  but  in  certain  proportions 
between  his  sons  and  daughters,  and  that  such  division  shall 
be  made  at  a  certain  time.    He  then,  after  expressing  the  ex« 


De&  1854]  McQueen  v.  McQxteen.  207 

pectafion  that  the  grandfather  of  his  children  by  his  hist  two 
wives  (who  were  sisters)  wonld  give  them  some  property,  declares 
in  anequivocal  language  that  such  property  is  to  be  taken  into 
the  account,  and  divided  among  all  the  children  in  the  propor- 
tion above  specified.    The  only  question  upon  this  part  of  the 
will  is,  whether  tlM  equitable  doctrine  of  election  applies,  and 
we  do  not  hesitate  te  say  that  it  does.     To  originate  this  doc- 
trine, two  things  are  said  to  be  essential:  1.  That  the  testator 
shall  give  property  of  his  own;  and  2.  That  be  shall  profess  to 
give  also  the  property  of  his  legatee  or  devisee:  Adams  Eq.  93; 
Wilson  V.  Amy,  1  Dev.  &  B.  Eq.  376.    The  present  case  would 
be  directly  within  the  rule  if  William  McLeod  had  died  in  the 
life>time  of  the  plaintiffs'  testator,  so  that  the  property  which 
he  bequeathed  to  his  grandchildren  had  become  theirs  in  the 
life-time  of  their  father.     Gin  it  make  any  difference  in  principle 
that  the  properly  was  not  acquired  by  the  five  younger  children 
of  the  testator  in  his  life>time,  though  it  did  become  theirs  prior 
to  the  time  fixed  upon  by  their  father  for  the  division  of  his 
estate  ?    The  counsel  for  the  younger  children  contend  that  it 
does  make  a  difference,  and  for  it  cites  the  case  of  Owen  v.  Owni, 
Busb.  Eq.  121.     The  argument  is,  that  the  testator  can  not  as- 
sume to  dispose  prospectively  of  property  which  may  or  may 
not  become  vested  in  his  legatees  or  devisees,  so  as  to  put  iLem 
to  an  election.    But  we  think  that  the  principle  upon  which  the 
doctrine  of  election  is  founded  will  apply  to  that  case  as  well  as 
any  other.    It  is  this,  "  That  one  who  takes  a  bounty  under  an 
instrument  is  under  an  obligation  to  give  effect  to  the  whole  in- 
strument; or  rather,  that  the  donor  intended  that  he  should  not 
enjoy  that  boimty  if  he  disappointed  that  bestowed  on  another 
in  the  same  instrument."    The  case  of  Oioen  v.  Owen,  supra, 
instead  of  militating  against,  rather  confirms  this  view.     The 
decision  was  that  as  a  period  for  the  division  of  his  property 
between  his  wife  and  children  was  fixed  by  the  testator,  the 
court  could  not  postpone  that  division  for  an  indefinite  perioc*. 
to  await  the  uncertainty  whether  one  of  the  children  should  get 
any  property  from  her  grandfather,  who  was  then  living.     The 
court  abstained,  indeed,  from  expressing  any  positive  opinion 
upon  the  effect  which  the  daughter's  getting  property  from  her 
grand&ther  might  have  produced;  but  from  the  manner  in  which 
they  expressed  themselves,  it  may  at  least  be  inferred  that  they 
thought  it  would  have  been  taken  into  account  had  she  received 
it  before  such  division  was  required  to  be  made. 
That  the  parties  who  are  required  to  elect  in  this  case  are  in* 


f08  Tuioijun  v.  GnxmL  [N.  QMnHaii^ 


fonts  will  not  prorant  an  eleotion  from  being  deoreed:  Boberlaan 
v.  Stevens,  1  Ired.  Eq.  247.  The  court  will  in  such  oaaee  xefer  it 
to  the  master  to  inquire  and  ascertain  the  value  of  both  interests » 
and  then  direct  what  election  shall  be  made:  Adams  Eq.  96; 
OreUon  v.  Edward^  1  Swans.  409. 

The  second  and  only  remaining  question  arises  upon  the 
codicil.  There  can  be  no  doubt  of  the  power  of  the  testator  to 
provide  for  the  disposition  of  his  Singsboro'  farm  in  the  manner 
specified.  It  is  admitted  by  all  the  parties  that  it  has  been 
abandoned,  and  will  never  be  occupied  again  as  a  common 
home.  Were  the  parties  all  adults,  there  could  be  no  question 
but  that  William  McLeod  McQueen  would  be  entitled  to  take 
the  farm  upon  paying  one  half  of  its  estimated  value  to  hia 
brothers  and  sisters,  in  the  proportion  mentioned.  But  as  mi- 
nors can  not  make  any  admission  to  their  prejudice,  a  reference 
must  be  made  to  ascertain  the  facts,  and  inquire  whether  it 
would  be  to  the  advantage  of  the  minors  to  occupy  the  farm  as 
a  common  home.  A  decretal  order  may  be  drawn  in  acoordanoe 
with  this  opinion,  and  the  cause  will  be  retained  for  further 
directions  upon  the  coming  in  of  the  report. 

Decree  accordingly. 


DocTBiNX  or  ELEcnoK  m  Fouvdxd  on  the  ftpparent  intaQt  of  tli»  testeter 
that  the  legatee  shall  aurrender  acme  right  in  exchange  for  the  legacy: 
Long  V.  M'ier,  46  Am.  Dec  61.  Election  can  not  arise  where  the  legatee 
had  no  interest  or  right  in  the  thing  devised  at  the  time  of  the  .ezecntion  of 
the  will:  Id.  **  To  originate  it  [election],  two  things  are  essential:  1.  That 
the  testator  shall  give  property  of  his  own;  and  2.  That  he  shall  profesa  to 
give  also  the  property  of  his  legatee  or  devisee:"  RcbbitM  v.  Windly^  3  Jones 
Eq.  288,  citing  the  principal  case.  It  is  again  cited  in  Hippin  v.  Banner^ 
2  Id.  454,  to  the  point  that  where  an  infant  has  an  election  to  make,  a  refer* 
ence  will  ba  had  to  the  master  to  see  which  one  should  be  seleoted. 


TuBNAGE  V.  Greene. 

[2  JOMSS'S  Equxtt,  6S.] 

Where  Present  Right  to  Whole  Provits  or  Certaik  Bank  Stock,  De- 
vised TO  Trustee,  as  well  as  the  absolute  ultimate  dominion  of  the  shares, 
is  devised  to  certain  legatees,  they  have  a  right  to  have  a  transfer  of  tfaa 
stock  made  to  them.  It  would  be  diffearent  if  from  the  nature  of  the  trust 
the  ownership  of  the  eutuis  que  iruU  was  not  immediate  and  abaolute,  or 
if  their  possession  would  defeat  or  endanger  a  legitimate,  ultimate  dia- 
tribution,  of  the  trust  property. 

Five  per  Cent  Comhission  will  not  be  Allowed  Trustee  for  simply 
receiving  and  paying  over  dividends  6t  stook  to  hia  ositeif  qiu  Unui. 


1854.]  TUBKAOE  tx.  OlUEDn.  209 


Bnajjns  Bvoja,  in  his  will,  ga^e  all  of  Ida  bank  atoek, 
describing  it,  to  his  friend  Charies  Gkeene,  to  be  hidd  in  truat 
for  the  use  and  benefit  of  his  serenl  heirs  (naming  them).  Hie 
directed  that  Greene  was  to  leceiye  the  dividends  aocndng  from 
said  stock  for  twenty  years,  and  not  to  sell»  dispose  of,  or  inter- 
fere with  in  any  way  the  original  stock,  onless  the  bank  ahoold 
sooner  suspend  or  wind  up  its  concerns,  in  which  erent  he  was 
to  receiye  both  principal  and  interest  and  pay  them  oyer  to  his 
heirs  as  directed.  He  directed  the  tmstee  to  receive  the  divi- 
dends as  above  mentioned  and  to  pay  them  over  as  soon  as 
flreceived.  Brile/s  administrator  with  the  will  annexed  con- 
veyed the  shares  to  Greene  as  directed  by  the  will,  and  they 
have  since  stood  in  his  name.  He  received  the 'dividends  and 
offered  to  pay  them  over  to  plaintiffs  (the  legatees),  deducting 
five  per  cent  commission.  Plaintiffs  pray  that  the  trustee  be  re* 
quired  to  assign  the  stock  directly  to  them,  and  that  he  be  made 
to  account  for  dividends  received  by  him  without  deducting 
commissions.  The  defendant's  answer  admitted  the  facts,  but 
claimed  the  commission. 

Bodman,  for  the  plaintifb. 

J,  B.  Batchelor,  cdiomey  general^  for  the  defendant. 

By  Court,  Battle,  J.  The  question  presented  by  the  plead* 
ings  is  fully  answered  by  the  case  of  Jasper  v.  Maxwdly  1  Dev. 
Eq.  359,  which  in  several  respects  is  veiymuch  like  the  present. 
In  that  case  one  Stephen  Outerbridge  bequeathed  as  follows: 
"Whereas  I  leave  fifty  shares  in  the  Bank  of  the  State  of  North 
Carolina  [naming  twenty-six  shares  in  other  banks],  it  is  my 
will  that  my  daughter  Sarah  M.  Fenner  shall  have  the  profits 
arising  therefrom  during  her  natural  life,  or  until  the  charters 
oi  Uic  said  bonks  may  expire.  I  do  therefore  by  these  presents 
leave  the  said  seventy-six  shares  in  trust  with  my  executors, 
and  I  do  hereby  authorize  them  to  take  charge  of  tiie  said  bank 
stock,  and  draw  the  dividends  as  they  shall  become  due  and 
payable,  and  the  'dividends  when  drawn  by  my  executors  shall 
be  paid  over  to  my  daughter,  the  said  Sarah  M.  Fenner,  for  her 
use  and  comfort.  Whenever  the  charters  of  the  said  banks 
shall  expire  (if  they  shxdl  not  again  be  renewed),  I  do  then  give 
and  bequeath  the  said  seventy-six  shares  to  my  said  daughter, 
to  her  and  her  heir  forever." 

Sarah  M.  Fenner,  the  daughter,  was  then  a  widow,  but  after- 
wards married  and  died;  and  her  husband  took  out  letters  of 
administration  upon  her  estate,  and  filed  a  bill  against  the  exeo- 

Am.  Dbo.  Voii.  XiXn— u 


210  TUBNAGK  V.  Qrxsnb.  [N.  Oarolinai 

atorato  have  the  bank  stock  transferred  to  himself.  The  court 
■aid:  "  The  bank  stock  is  bequeathed  to  the  executors  in  trust 
to  receive  the  dividends  as  declared,  and  pay  them  over  to  the 
testator's  daughter  during  her  life,  or  until  the  charters  expire, 
and  upon  that  event  (unless  the  charters  should  be  renewed), 
the  stock  itself  is  given  to  the  daughter.  In  her,  then,  are 
united  the  present  right  to  the  whole  profits,  and  the  absolute 
ultimate  dominion  which  gives  as  perfect  a  property  as  is  known 
to  the  law.  The  cestui  que  trust  can  call  for  the  legal  estate  at 
her  will.  It  is  not  like  the  case  of  a  bequest  in  trust  for  the 
maintenance  of  another.  There  the  trustee  must  retain  the 
property  in  order  to  provide  out  of  the  profits  for  the  support 
of  the  object  of  the  testator's  bounty.  He  must  keep  the  fund 
in  his  own  hands  lest  it  be  wasted.  But  here  the  fund  is  to  go 
(eventually)  directly  to  the  daughter,  and  in  the  mean  while  the 
whole  profits,  not  as  a  maintenance  to  be  provided  by  the  exeo* 
utor,  but  as  a  general  pecuniary  legacy."  These  remarks  are 
directly  applicable  to  the  case  before  us,  where  a  present  right 
to  the  whole  profits  as  well  as  the  absolute  ultimate  dominion 
of  the  bank  stock  are  given  to  the  legatees,  and  they  are  there- 
fore entitled  to  have  a  transfer  of  the  stock  made  to  them.  The 
rule  would  be  different,  and  the  cestui  que  trust  would  not  be 
entitled  to  call  for  the  legal  estate,  if  from  the  nature  of  the 
trust  their  ownership  were  not  immediate  and  absolute,  and  it 
would  defeat  or  put  it  into  their  power  to  defeat  or  en- 
danger a  legitimate,  ultimate  limitation  of  the  trust  property: 
Dick  V.  Pitch/ordy  1  Dev.  &  B.  Eq.  480;  BaOle  v.  Petway,  5  Ired. 
L.  576  [44  Am.  Dec.  59];  see  also  Hill  on  Trustees,  278;  1  Cm. 
Dig.,  tit.  12,  c.  4,  sec.  6. 

The  result  is,  that  all  the  plaintiffs  except  the  infants  are  en- 
titled to  a  decree  that  the  defendant  shall  transfer  to  them  the 
shares  of  the  bank  stock  given  to  them  under  the  will  of  the 
testator.  The  defendant  must  still  retain  the  shares  belonging 
to  the  infants  upon  the  trust  declared  for  them  in  the  will. 

It  is  proper  that  this  court  should  declare  that  it  would  not 
sanction  a  charge  by  the  trustee  of  five  per  cent  commissions 
for  simply  receiving  and  paying  over  the  dividends  of  the  stock* 

Decree  accordingly. 

CoMPKMaATiox  or  TBU8TSB8. — "  The  general  principle  prevaila  in  all  th» 
•tates  exoept  Delaware,  and  perhaps  Ohio  and  Illinois,  that  trostees  are  to 
have  a  reasonable  compensation  for  their  time,  trouble,  and  skill  in  managing 
the  fund  and  executing  the  trust,  although  there  is  some  diversity  in  th» 
manner  of  determining  the  amoont:'*  Perry  on  Trusts,  sec.  918.    In  this 


Dee.  1854]        Alkxanbxb  t§  Ross  v.  Fox.  Ill 


tion  the  author  cLtm  the  principal  ceee,  and  diecoMee  the  qneetloB  a* 
length.    See  alw  the  note  to  aJ6«m'«Ccue,  17  Am.  Dec.  266-274. 

Whin  Gisrvi  qub  Tairifr  mat  Call  fob  Lboal  Titlb:  See  Battle  t. 
fWwqf,  44  Am.  Deo.  59,  end  note.  An  act  of  the  Icgiilafcnie  tranaferring 
Ibe  lagd  title  of  a  mere  naked  trnstee,  and  reeting  it  in  the  eettm  que  inuip 
io  ft  caM  where  the  latter,  by  a  resort  to  the  proper  trihonal,  might  haTO  com- 
pelled radi  transfer^  Si  constitational  and  Talid:  B^fbrmedProLDmiek  Church 
T.  ifott,  S2  Id.  6131 


ALEXAin>EB   AND    BoSS   V.  FoX. 

p  Joasi't  Equitt,  106.] 

KucuvoBS  Wuo  Pat  LaoAaxs  wrrnocT  Takixo  RnrfmDnro  Bokob,  or 
rttaiaing  sufficieDt  money  in  their  bands  to  pay  the  dcbte  of  the  estate^ 
•ad  consequently  ha^e  to  use  their  own  funds  for  that  pnrpoee,  can  not^ 
•8  of  course,  come  into  equity  and  have  the  legatees  refund  the  amount 
to  advanced.  They  should  have  kept  regular  accounts,  and  have  taken 
care  to  have  retained  a  sufficient  amount  to  pay  such  debts.  There  are, 
however,  peculiar  circumstances  which  will  entitle  execntors  so  situated 
to  relief. 

KocvTOR  Fating  Leoact,  wnix  Entitlkd  to  haw  a  Past  THaBiov 
Rbfukdbd. — Where  the  executors'  petition  alleges  as  a  reason  why  they 
had  paid  certain  legacies  without  retaining  sufficient  funds  to  pay  the 
debts  of  the  estate,  that  their  testator  was  a  man  of  laige  estate;  that 
he  waa  a  prudent  business  man  who  kept  strict  account  of  his  meansi 
that  after  providing  for  the  payment  of  the  legacies  which  they  had  paid, 
be  had  set  apart  certain  land,  the  crop  thereon,  and  the  debts  due  htm, 
sa  a  fiuad  from  which  to  pay  his  debts,  an<l  declared  that  such  fund  would 
be  more  than  enough  for  that  purpose;  but  that  notwithstanding  a  care- 
ful management  of  the  fund,  owing  to  a  fall  in  the  price  of  cotton  and 
an  inability  to  collect  debts  due  the  estate,  the  fund  had  fallen  short— > 
they  are  entitled  to  have  the  legatees  forced  to  refund  sufficient  money 
to  pay  the  debts.  If  the  all^ations  of  the  bill  are  denied  by  the  an* 
swer,  the  matter  should  be  referred  to  a  master. 

This  is  a  proceeding  by  the  executors  of  the  estate  of  Stephen 
Fox,  against  the  heirs  of  said  estate  to  whom  they  had  paid  cer- 
tain legacies.     The  opinion  states  the  facts. 

Osborne  and  Boyden,  for  the  plaintiffs. 

Craige,  Wil^n,  and  Bipium,  for  the  defendants. 

By  Court,  Peabsok,  J.  If  an  executor  assents  to  the  legacies 
And  permits  the  prox>ert7  of  the  estate  to  pass  out  of  his  hands, 
without  taking  refunding  bonds,  or  i*etaining  funds  sufficient  for 
the  payment  of  the  debts,  and  is  afterwards  compelled  to  advance 
his  own  funds  to  discharge  them,  it  does  not  follow  as  of  coiu'se 
that  he  may  come  into  a  court  of  equity  to  have  the  amount  re- 
funded by  the  legatees,  on  the  ground  that  he  was  mistaken. 
For  it  waa  his  duty  to  keep  regular  accounts,  and  to  take  cara 


SIS  AUEZANDEB  Ss  BOBB  V  EOZ.       [N.  OuollD^ 

to  retain  UMets  enoogh  to  pay  the  debts,  and  to  allow  him  to 
recoyer  from  the  legatees  after  he  has  permitted  them  to  take 
the  property,  except  under  peculiar  circumstances,  would  be  to 
give  direct  encouragement  to  gross  carelessness  and  neglect  of 
duty,  to  say  nothing  of  the  unnecessaiy  litigation  to  which  the 
legatees  are  subjected,  and  the  fact  that  when  one  receives 
property  as  his  own  and  uses  it  as  such,  he  may  frequently  be 
subjected  to  much  inconvenience  by  requiring  him  to  account 
for  it  and  pay  it  back.  He  may  well  say  to  the  executor,  "  It 
was  your  business  to  keep  the  accounts;  and  I  have  a  right  to 
consider  what  you  paid  to  me  as  my  own: "  March  v.  ScarborOj  2 
Dev.  Eq.  538.  There  are,  however,  peculiar  circumstances  which 
will  entitle  an  executor  to  relief,  as  if  a  debt  of  which  he  had 
no  notice  should  be  established,  or  if  the  value  of  the  funds 
retained  to  pay  debts  should,  by  accident,  be  impaired,  or 
any  other  circumstances  which  rebut  the  presumption  that  the 
necessity  for  advancing  his  own  funds  originated  in  his  own 
.carelessness  and  loose  manner  of  keeping  the  accounts. 

The  circumstances  relied  on  by  the  plaintiff  as  entitling  them 
^to  relief  are:  the  testator  was  a  man  of  large  estate,  a  prudent 
business  man,  who  kept  strict  account  of  his  means;  by  his  will 
he  gives  his  negroes,  his  land,  except  two  tracts,  to  be  divided 
among  his  wife  and  children,  who,  at  the  time  of  his  death, 
*'Were  living  together  as  one  family  and  had  the  property  in  their 
-•occupation,  etc.;  the  testator  by  his  will  sets  apart  certain  prop- 
•erty  consisting  of  two  tracts  of  land,  his  crop  on  hand,  and  the 
^debts  due  to  him  for  the  payment  of  his  debts,  and  dechires  that 
lie  believes  that  there  will  be  a  surplus  of  this  fund  after  dis- 
charging all  of  his  debts,  and  directs  the  manner  in  which  this 
supposed  surplus  is  to  be  appropriated. 

The  plaintiffs  aver,  that,  acting  under  the  confident  belief  that 
tlie  testator  understood  the  condition  of  his  own  estate,  and  had 
not  deceived  them,  and  being  disposed  to  consult  the  wishes  of 
the  widow  and  children  in  regard  to  not  taking  the  plantation 
and  negroes  into  their  possession,  and  also  the  intention  of  the 
testator  as  manifested  by  his  setting  apart  a  fund  to  pay  his 
<lebts,  and  declaring  that  it  was  more  than  sufficient  for  that 
purpose,  they  allowed  the  widow  and  children  to  keep  the  prop- 
-erty  and  divide  it  among  themselves.  They  aver  further,  that 
they  took  into  their  possession  the  fund  set  apart  for  tKe  pay- 
ment of  debts,  and  proceeded  with  the  utmost  diligence  and 
economy  to  administer  it,  by  selling  the  real  estate  and  the  crop 
on  hand,  and  collecting  the  debts  due  the  estate;  but  by  reasoa 


Dee.  1854.]        Alxzandkb  Ss  Boss  v.  Fox«  21S 

of  A  fall  in  the  price  of  cotton,  and  their  inabiKij  to  coOect  many 
of  the  debts  due  the  testator,  who  was  a  practicing  physician,. 
many  outstanding  accounts  could  not  be  made  available,  and 
from  other  causes  the  amount  which  they  were  enabled  to  realize* 
from  the  fund  set  apart  for  the  payment  of  debts  turned  out  to- 
ho  insufficient  for  that  purpose,  and  they  were  forced  to  advance 
a  large  amount  out  of  their  own  funds. 

The  defendants  do  not  take  issue  upon  these  allegations,  ex* 
cept  that  in  regard  to  the  fund  set  apart  for  the  payment  of  debts; 
and  they  aver  that  the  fund  was  amply  suficient  if  it  had  been 
properly  administered,  and  that  the  plaintiffs  are  guilty  of  grosa 
negligence  and  mismanagement  in  regard  to  it,  especially  in  ref- 
erence to  the  collection  of  the  debts,  of  which  there  were  many 
small  ones  that  might  have  been  saved,  and  in  making  sale  of 
the  cotton  and  com  on  hand. 

The  averment  of  the  plaintiffs,  if  true,  certainly  makes  out  a 
case  which  entitles  them  to  relief,  and  the  only  matter  about 
vrhich  the  parties  are  at  issue  is  in  reference  to  the  administra- 
tion of  the  fund  set  apart  for  the  payment  of  the  debts;  if  thia 
fond  was  suficient  at  the  death  of  the  testator,  and  became- 
insufficient  afterwards,  by  the  negligence  or  mismanagement 
of  the  plaintiffs,  their  equity  is  fully  met. 

This  presents  a  question  which  we  can  not,  at  the  heariag,. 
effectually  deal  with,  and  there  must  be  a  reference  to  the  clerk 
to  acquire  and  impart  to  the  court  the  necessary  information  m 
rsgard  to  it:  Adams  Eq.  375-879. 

Ordered  accordingly. 


Lbgatsb  cam  not  is  Oompkllbd  to  Bimm  «o  KajcuToa  where  h«» 
■ntetaking  the  Yaliie  ol  the  aaaete,  volanturily  peld  them  their  legmeies,  ther* 
being  no  creditora  of  the  decedent,  bat  hie  estate  taming  out  inadeqoate  for 
the  payment  of  the  legaciee:  JOaoU  v.  ^00111011,  40  Am.  Deo.  704. 

Legatees  Who  have  been  Paid  theis  Leoacibs  are  Bonin>  to  Re* 
VUHD  a  ratable  part  tliereof,  if  debti  are  preaented  to  the  ezeentor  or  admin- 
latrator  more  than  cafficient  to  exhanet  the  leaidunm  after  each  legacies  hava 
been  paid:  Ttcknor  v.  JlarrU^  40  Am.  Dec  186»  and  eases  oolleoted  in  nota» 

Where  Aomixistrator  was  Compelled  bt  Judomeitt  of  court  to  pay 
over  the  assets  in  his  hands  to  the  next  of  kin,  not  being  aware  at  the  tima 
saeh  judgment  was  entered  against  him  of  an  outstanding  claim  upon  tha 
asaets,  which  he  was  compelled  afterwards  to  discharge  out  of  his  own  f anda^ 
a  court  of  equity  will  reliere  him,  although  he  took  no  refunding  bond:  Sic^k 
y.  WUUamt^  3  Jones  Eq.  13,  citing  the  principal  case.  Tlie  principal  case  i» 
also  cited  in  Dennett  v.  Cook,  63  K.  C.  227,  to  the  point  that  an  adminis* 
trator  can  not  call  upon  legatees  to  refund  logades  paid  to  them  by  faiii» 
unless  he  establiahea  the  existence  of  special  clrcnmetaacea  showii'g  that  ha 
was  in  no  delaalt  in  not  seeing  that  he  would  need  snch  funds  beiore  he  ha4 
paid  them. 


CASES 

IN  TBX 

SUPREME    COURT 

or 
OHIO. 


Keating  v.  Spink. 

[S  Obio  Btats,  105.] 

Act  Of  Statb  ''Pkotidixo  for  Collisction  or  Claims  AOAnrsT  StiaM' 
BOATS  AND  Other  Watkk-crapts,  and  aathorizing  proceedings  Againsl 
the  same  by  name,*'  is  a  valid  and  constitutional  onaotment. 

Pbockkdino  aoai:?st  Steamboat  or  OrnER  Water-craft  is  One  i:v  Rem } 
the  liability  is  upon  the  craft,  and  the  judgment  operates  alone  upon  it. 
The  seizure  of  the  thing  is  oonstniotive  notice  to  the  whole  world,  and 
no  other  is  required. 

Cases  to  Which  Water-craft  Act  or  February  26,  1840,  Extends  are 
those  of  which  admiralty  and  oominou*law  courts  have  concurrent  juris- 
diction, and  not  those  of  exclusive  admiralty  and  maritime  cognizance. 

Seizure  or  Thing  in  Controversy  by  One  Court  First  Aoquirino  Ju- 
RiSDicnoN  Withdraws  It  from  Power  or  Another;  and  no  other 
court  can  take  it  from  the  custody  of  the  law. 

Oourt  Havino  Vessel  in  Cu.stody  is  Competent  to  Recognize  and 
Enforce  Seamen's  Paramount  Lien  for  Wages;  and  a  state  court 
acquiring  such  jurisdiction  can  not  be  deprived  of  it  by  process  issuing 
upon  proceedings  instituted  in  admiralty  for  the  roooTery  of  seamcn'a 
wages. 

Bherifp  or  Other  State  Officer  Having  Vessel  in  Custody  under 
State  Law  must  not  Surrender  It  upon  Federal  Process;  for  if 
he  does  so,  he  is  liable  to  the  creditor  in  the  state  court. 

£rrob  to  the  common  pleas  of  Wood  county.  The  facts  are 
stated  in  the  opinion. 

Young  and  Waite,  for  the  plaintiff  in  error. 

Spink  and  Murray ^  for  the  defendant  in  error. 

By  Court,  Rakney,  J.  On  the  twentieth  of  July,  1849,  tht 
plaintiff  filed  his  claim  in  the  court  of  common  pleas  of  Wood 
county  against  the  steamboat  Julius  D.  Morton,  an  enrolled 

214 


De&  185&]  Ekatino  u  Spink.  215 

mI  of  more  than  twenty  tons  burden,  then  running  between  the 
port  of  Toledo,  in  this  state,  and  the  port  of  Buffido,  in  the 
state  of  New  York,  for  labor  performed  in  her  construction, 
under  the  act  of  February  26, 1840,  "  providing  for  the  collec- 
tion of  daims  against  steamboats  and  other  water-crafts,  and 
authorizing  proceedings  against  the  same  by  name:"  Ourwen's 
Stat.  503.  Upon  process  duly  issued,  she  was  on  tho  same 
day  seized  and  taken  into  possession  by  the  defendant,  then 
sheriff  of  the  county;  and  after  judgment  against  her,  and 
final  process  issued  for  her  sale,  was  duly  demanded  of  him  by 
his  successor  in  ofdce.  He  refused  to  deliver  her  up,  alleging 
as  the  reason  that  she  had  been  taken  from  his  possession  by 
the  marshal  of  the  United  States  for  the  district  of  Ohio,  upon 
proceedings  in  admiralty  instituted  in  the  district  court  on  the 
twenty-first  of  the  same  month  by  John  McEacham,  for  the  re- 
cover}* of  wages  claimed  to  be  due  him  as  first  mate  of  the  boat. 
This  fact  was  set  up  and  allowed  as  a  perfect  defense  to  the 
action  in  the  coiul  below,  and  its  sufficiency  for  that  purpose  is 
the  only  question  for  our  consideration.  It  involyes  considera- 
tions of  much  delicacy  and  importance,  as  it  concerns  a  very 
beneficial  remedy,  provided  by  the  laws  of  the  state,  the  exer- 
cise of  which  is  supposed  to  be  in  conflict  with  the  laws  of  the 
federal  government,  and  calculated  to  induce  a  conflict  between 
its  courts  and  those  of  the  state.  After  giving  the  subject  the 
careful  attention  it  seemed  to  demand,  we  are  unanimously  of 
opinion  the  defense  was  insufficient,  and  that  the  court  below 
erred  in  giving  it  effect. 

Until  1845  the  admiralty  jurisdiction  of  the  federal  courts 
bad  never  been  extended  to  the  waters  of  the  western  states.  It 
may  contribute  to  a  clearer  understanding  of  the  act  of  congress 
of  that  year,  "  extending  the  jurisdiction  of  the  district  courts 
to  certain  cases  upon  the  lakes  and  navigable  watera  connecting 
Uie  same,"  as  well  as  the  water-craft  law  of  the  state,  and  the 
necessity  of  its  enactment,  to  allude  briefly  to  the  course  of 
opinion  and  judicial  decision  before  and  since  that  time.  In 
the  second  section  of  the  third  article  of  the  constitution  of  the 
United  States  it  is  declared  that  **  the  judicial  power  shall  ex- 
tend to  all  cases  of  admiralty  and  maritime  jurisdiction."  For 
more  than  half  a  century  this  language  was  supposed  to  describe 
a  class  of  cases  over  which  the  British  coui't  of  admiralty  had 
jurisdiction  at  the  time  of  and  before  the  revolution.  What 
these  were  in  the  main  has  never  been  doubted.  Aside  from 
its  power  over  captures,  and  questions  of  prize  arising /ure  belli, 


216  Ksahno  v.  Spink.  [Ohio, 

its  oogmspuioe  of  contnots  was  eonftned  to  seamen's  wages,  bot- 
tomry bonds,  and  contracts  made  and  to  be  executed  on  the 
high  seas;  and  of  torts  and  offenses  done  and  committed  on 
the  high  seas  and  without  the  limits  of  anj  organized  county-^ 
the  one  depending  on  locality,  and  the  other,  the  nature  of  the 
contract,  and  both  arising  beyond  the  jurisdiction  of  the  com- 
mon-law courts.  The  assertion  of  more  extended  powers  led 
to  the  passage  of  the  memorable  statutes  of  the  thirteenth  and 
fifteenth  Richard  II.,  by  the  first  of  which  it  was  declared  that 
the  admiralty  must  ''  not  meddle  henceforth  of  anything  done 
within  the  realm,  but  only  of  a  thing  done  upon  the  sea; "  and 
by  the  last  it  was  still  more  specifically  ordered  that  of  *'  things 
done  within  the  bodies  of  counties,  by  land  or  water,  the 
admiral  shall  have  no  cognizance,  but  they  shall  be  tried  by  the 
law  of  the  land." 

It  was  eyidently  with  this  Tiew  of  the  extent  of  the  jurisdic- 
tion conferred  upon  the  federal  courts  that  the  celebrated 
authors  of  the  Federalist,  while  the  constitution  was  pending 
before  the  states  for  ratification,  a£Srmed  that  '*  the  most  bigoted 
idolizers  of  state  authority  had  not  thus  far  shown  a  disposition 
to  deny  the  national  judiciary  the  cognizance  of  maritime  causes. 
These  so  generally  depend  on  the  law  of  nations,  and  so  com* 
monly  affect  the  rights  of  foreigners,  that  they  fall  within  the 
considerations  which  are  relative  to  the  public  peace."  And  so 
Chief  Justice  Jay,  in  Ckuholm  t.  Oeorgia,  2  Dall.  419,  in  giving 
a  comprehensive  summary  of  the  judicial  powers  conferred  upon 
the  Union,  says  it  extends  '*  to  all  cases  of  admiralty  and  mari- 
time jurisdiction;  because,  as  the  seas  are  the  joint  property  of 
nations,  whose  rights  and  privileges  relative  thereto  are  regu- 
lated by  the  law  of  nations  and  treaties,  such  cases  necessarily 
belong  to  national  jurisdiction."  Chancellor  Kent,  in  the  last 
edition  of  his  Commentaries,  after  stating  that  it  is  not  in  the 
power  of  congress  to  enlarge  the  jurisdiction  beyond  what  was 
understood  and  intended  by  it  when  the  constitution  was 
adopted,  says  he  **  apprehends  it  may  be  fairly  doubted  whether 
the  constitution  of  the  United  States  meant  by  admiralty  and 
maritime  jurisdiction  anything  more  than  that  jurisdiction  which 
was  settled  and  in  practice,  in  this  country,  under  the  English 
jurisprudence,  when  the  constitution  was  made: "  1  Kent's  Com 
872. 

For  these  reasons,  so  eminently  proper  did  it  seem  to  be  that 
the  power  should  be  conferred  upon  the  Union,  that  almost  tbe 
only  remark  it  elicited  in  the  federal  convention  came  from  a 


Dee.  1853.]  Eeatinq  v.  Brum.  217 

higUy  intelligexit  member  fronr  PennsylTania  (Mr.  'Wilson), 
wbo  said:  '*  The  admiraltj  jurisdiction  ought  to  be  given  wholly 
to  the  national  goyemment,  as  it  related  to  cases  not  within  the 
jurisdiction  of  particular  states,  and  to  a  scene  in  which  contro- 
versies with  foreigners  would  be  most  likely  to  happen: ''  Madi' 
son  Papers^  799. 

The  same  views  evidently  controlled  the  early  decisions  of  the 
supreme  court  of  the  United  States.  In  the  case  of  the  Steam" 
boat  Thomas  Jej^^rson^  10  Wheat.  428,  the  claim  was  for  wages 
earned  on  a  voyage  from  a  point  in  Kentucky  up  the  Missouri 
river  and  back  again.  The  district  and  circuit  cotirts  dismissed 
the  libel,  and  the  supreme  court  affirmed  the  decree,  holding  that 
the  admiralty  had  no  jurisdiction  over  contracts  for  the  hire  of 
seamen  when  the  service  was  not  substantially  {)erformed  upon 
the  sea,  or  upon  water  within  the  ebb  and  flow  of  the  tide.  And 
in  the  steamboat  Orleans  v.  PhcxibuB,  11  Pet.  175,  it  was  held 
that  the  jurisdiction  of  courts  of  admiralty  over  contracts  is 
limited  to  those,  and  those  only,  which  are  maritime;  and  that 
they  had  no  jurisdiction  over  a  vessel,  although  one  terminus  of 
the  voyage  might  be  in  tide-water,  if  she  were  substantially 
employed  in  other  waters.  That  the  true  test  of  jurisdiction  is, 
whether  the  vessel  is  engaged,  substantially,  in  maritime  navi- 
gation, or  in  interior  navigation  and  trade,  not  on  tide-waters. 

But  in  Waring  v.  Clarke,  5  How.  441,  decided  in  1847,  a  ma- 
jority of  the  court,  for  the  first  time  in  direct  terms,  repudiated 
the  idea  that  the  grant  in  the  constitution  is  to  be  construed  as 
limiting  the  courts  of  the  Union  to  such  cases  only  as  were  en- 
tertained by  the  British  court  of  admiralty,  and  held  that  the 
jurisdiction  is  neither  to  be  limited  to,  nor  to  be  interpreted 
by,  what  were  cases  of  admiralty  jurisdiction  in  England  when 
the  constitution  was  adopted  by  the  states  of  the  Union.  The 
case  was  one  of  collision,  occurring  some  two  hundred  miles  up 
the  Mississippi  river,  within  the  limits  of  a  county,  and  in  the 
heart  of  the  state  of  Louisiana.  The  jurisdiction  was  maintained, 
although  it  v^as  admitted  it  would  not  have  been  in  England; 
upon  the  ground  that  it  would  have  been  there,  at  the  common 
law,  before  the  statutes  of  Richard,  and  because  the  vice-admi- 
ralty courts  in  the  colonies  had  exercised  an  equally  extensive 
jurisdiction  before  the  revolution.  It  was  still,  however,  con- 
fined to  tide-waters,  navigable  from  the  ocean;  and  a  volume  of 
testimony  was  taken  to  show  that  the  river  at  this  point  was 
slightly  influenced  by  the  tide. 

Mr.  Justice  Woodbury  delivered  a  very  elaborate  dissenting 


218  EsATiNa  V.  Spink.  [Ohio^ 

opinioiiy  In  wbioh  jnstioes  Daniel  and  Grrier  '^onenned.  After 
Btating  that  *'  the  controversy  was  not  in  England,  and  is  not 
here,  a  mere  straggle  between  salt  and  fresh  water,  sea  and 
lake,  tide  and  ordinary  current,  within  a  conntiy  and  without, 
as  a  technical  matter  only,"  he  proceeds  to  show  that  it  involved 
three  great  principles:  "  1.  The  abolition  of  the  trial  by  jury 
over  large  tracts  of  country;  2.  The  substitution  there  of  the 
civil  law  and  its  forms  for  the  common  law  and  statutes  of  the 
states;  3.  And  the  encroachment  widely  on  the  tribunals  of  the 
state  over  disputes  happening  there  between  its  own  citizens." 

Justice  Catron,  although  concurring  in  the  decision,  did  so 
upon  the  ground  that  the  proceeding  was  in  rem  to  enforce  a 
lien  upon  the  boat,  which  the  common-law  courts  were  incom- 
petent to  do;  and  stated  that  he  did  **  not  intend  to  be  com- 
mitted to  any  views  beyond  those  arising  on  the  precise  case  be- 
fore the  court." 

Another  step  confessedly  beyond  the  limits  of  the  English 
admiralty  was  taken  in  the  case  of  the  New  Jersey  Steam  Navir 
gation  Company  v.  Merchants'  Bank,  6  How.  344,  where  a  con- 
tract for  the  carriage  of  specie  from  New  York  to  Boston,  and 
lost  in  Long  Island  sound,  was  enforced  in  the  admiralty,  al- 
though the  contract  was  made  in  the  city  of  New  York,  and  to 
be  performed  in  the  city  of  Boston.  Justice  Daniel  dissented, 
and  his  opinion,  as  well  as  that  of  Justice  Woodbury  in  Waring  v. 
Clarke^  5  How.  441,  contains  a  very  able  exposition  of  the  views  of 
those  in  favor  of  a  more  limited  construction  of  the  constitutional 
grant.  Before  these  two  decisions  were  made,  and  with  the  unan- 
imous opinion  of  the  supreme  court,  thnce  expressed,  that  the 
jurisdiction  in  admiralty  was  confined  to  causes  arising  upon  the 
high  seas,  or  at  least  on  tide-water,  the  act  of  1846  was  passed. 
Judge  Story,  however,  in  the  case  of  the  Steamboat  Thomais 
Jefferson,  10  Wheat.  428,  had  intimated  the  opinion  that  congress 
might,  under  the  power  to  regulate  commerce  between  the  states, 
extend  the  summaiy  process  of  the  admiralty  to  cases  arising  on 
the  western  waters.  While  it  is  by  no  means  clear  what  power 
conferred  by  the  constitution  congress  supposed  they  were  invok- 
ing, it  looks  very  much  as  though  this  act  was  the  result  of  that 
suggestion.  It  does  not  in  terms  confer  admiralty  jurisdiction, 
but  it  is  an  act  to  extend  the  jurisdiction  of  the  district  courts  to 
"certain  cases "  arising  upon  the  lakes, and  navigable  waters 
counecting  them,  which  are  to  be  proceeded  in  and  decided  in 
the  same  manner  as  cases  arising  upon  the  high  seas  and  tide- 
Kraters  "  within  the  admiralty  and  maritime  jurisdiotion  of  the 


Dee.  18S8.]  Kiatino  v.  Spink.  219 

United  States."*  That  it  was  hy  congress  referred  to  the  power 
to  regulate  oommeroe  is  assumed  by  Justice  Woodburf  in  For- 
ing  Y.  Clarke^  6  How.  441,  and  by  Mr.  Webster  in  his  argument 
in  the  case  of  the  New  Jersey  Steam  Navigalion  Company  t.  Mer^- 
chanU^  Bank,  6  Id.  344,  in  which  he  represents  congress  as ' '  shiy- 
ering  and  trembling  "  under  the  decision  in  the  Steamboat  Thoma$ 
Jefenon,  10  Wheat.  428,  and  for  that  reason  **  pitched  the  power 
upon  a  wrong  location." 

But  in  the  case  of  the  Genesee  Chiefs.  FUshugh,  12  How.  443, 
it  was  held  that  the  act  did  not  rest  upon  that  power;  and  Chief 
Justice  Taney  yeary  conclusiyely  shows  that  if  it  did,  "  it  would  be 
unconstitutional,  and  could  confer  no  authority  on  the  district 
courts."  It  was  however  sustained  upon  the  admiralty  power, 
which  was  decided  not  to  be  limited  to  tide-waters,  but  to  extend 
to  all  public  navigable  lakes  and  rivers  where  commerce  is  car- 
ried on  between  different  states,  or  with  a  foreign  nation-  "  If 
the  water  was  navigable,  it  was  deemed  to  be  public;  and  if 
public,  was  regarded  as  within  the  legitimate  scope  of  the  ad- 
miralty jurisdiction  conferred  by  the  constitution."  Justice 
Daniel  again  dissented,  regarding  it  as  an  unwarrantable  exten- 
sion of  the  powers  of  the  federal  government,  not  by  an  amend- 
ment of  the  constitution,  '*  but  according  to  the  opinions  of  the 
judiciary,  entertained  upon  their  views  of  expediency  and  ne- 
cessity." 

It  is  thus  made  very  evident  that  this  jurisdiction  is  not 
now  what  it  was  in  England  when  the  constitution  was  adopted; 
it  is  not  what  it  was  supposed  to  be  by  eminent  statesmen  and 
jurists  of  that  period;  nor  what  the  supreme  court  of  the  United 
States  for  many  years  held  it  to  be.  It  has  been  extended  to  a 
large  class  of  contracts  made  and  to  be  executed  upon  land, 
and  within  the  limits  of  the  states;  to  torts  committed  infra 
corpus  commiUatus;  first  upon  tide-waters,  and  finally  upon  any 
navigable  waters,  whether  connected  with  foreign  commerce  or 
not.  The  courts  exercising  this  jurisdiction  are  no  longer  sub- 
jected tegthe  restraints  of  the  common-law  tribunals,  or  impeded 
by  prohibitions  from  them;  but  on  the  contrary,  we  are  now 
urged  to  annid  the  common-law  and  statutory  remedies  of  the 
state,  and  to  surrender  property  held  by  its  process  whenever 
and  as  often  as  it  shall  be  demanded  by  the  inferior  courts  of 
the  United  States.  The  question  assumes  an  importance,  and 
Ihe  necessity  of  a  clear  and  definite  boundary  to  this  jurisdiction 
b  much  more  imperatively  demanded  here  than  in  aiiy  other 
country.    An  extension  of  it  involves  not  only  an  encroiichment 


220  Keating  t;.  Spikk.  [Ohia 

upon  those  great  eafegnards  of  liberty  and  property — ^proceed* 
ings  according  to  the  course  of  the  common  law  and  the  jury 
trial — but  necessarily,  in  the  language  of  Justice  Woodbury, 
' '  an  encroachment  widely  on  the  tribunals  of  the  states.  *'  It  was 
not  simply  a  distribution  of  judicial  power  amongst  different 
courts  of  the  same  sovereignty,  but  involyes  an  encroachment 
by  a  government  of  limited  powers  upon  the  rights  of  other  sot* 
ereignties. 

While  all  will  admit  that  there  is  "  nothing  in  the  ebb  and 
flow  of  the  tide  that  makes  the.  waters  peculiarly  suitable  for 
admiralty  jurisdiction,''  and  that  very  strong  reasons  can  be 
given  in  favor  of  national  jurisdiction  over  those  laige  bodies  of 
fresh  water  which  separate  us  from  a  foreign  government,  stilly 
with  the  highest  respect  for  the  eminent  jurist  who  delivered 
the  opinion  in  the  case  of  the  Oenesee  Chief  y.  FUthugh,  12  How. 
443,  some  may  continue  to  doubt  (and  I  confess  myself  of  the 
number)  whether,  if  it  had  been  understood  when  the  constitu- 
tion was  adopted  to  extend  to  all  the  internal  navigable  waters  of 
the  country,  subjecting  suitors  to  be  drawn  from  the  local  tribu- 
nals to  great  distances  for  the  settlement  of  their  controversies, 
and  in  last  resort  to  the  seat  of  the  federal  government,  it  could 
have  been  truthfully  asserted  that  it  had  met  no  opposition;  and 
whether  embarking  the  general  government  in  such  extensive  in- 
ternal administration,  over  causes  civil  and  criminal,  is  not  to 
some  extent  a  departure  from  the  great  objects  for  which  it  was 
ci-eated,  and  calculated  to  embroil  it  in  collisions  and  contro- 
versies with  the  states  injurious  to  the  peace  and  security  of 
both. 

Assuming,  however,  as  we  do,  the  ultimate  settlement  of  the 
extent  of  this  jurisdiction  to  be  correct,  or  at  least  decisive  of 
the  right  of  the  district  court  to  entertain  the  proceedings  upon 
which  this  boat  was  taken  from  the  sheriff,  the  consequences 
now  claimed  to  follow  have  as  yet  received  no  countenance 
whatever  from  the  supreme  court  of  the  United  States  or  any 
state  tribunal.  These  consequences  are  said  to  be:  l.^That  the 
jurisdiction  in  admiralty  cases  is  exclusive  in  the  district  courts 
of  the  United  States,  and  that  all  state  laws  conferring  jurisdiction 
upon  the  state  courts  over  causes  that  might  be  prosecuted  in  ad- 
miralty, and  vessels  that  might  be  seized  there,  are  repugnant  to 
the  constitution  and  laws  of  the  United  States,  and  void;  but,  2. 
If  they  are  not  void,  vessels  taken  into  custody  under  process 
from  the  state  courts  may  be  lawfully  taken  from  the  officers  of 
the  law,  upon  proceedings  instituted  in  admiralty  for  the  recov« 


Sec.  ]85a]  Keahnq  v.  Spmx.  22i 

tTj  of  seamen's  wages.  So  far  as  ibe  first  of  ihese  positionfl  is 
^ODcernedy  as  well  as  the  further  objection  to  the  water-cmf t 
law,  thai  it  provides  for  no  notice  to  the  owner,  they  haye  been 
eettled  by  this  court  in  the  case  of  Thompson  ▼.  Steamboat  Juliu$ 
D.  2l<ni<m,  2  Ohio  St  26  [59  Am.  Dec.  658],  in  favor  of  the  va- 
lidity ( f  the  law. 

The  law  provides  that  steamboats  and  other  water-crafts  nari^ 
gating  the  waters  within  or  bordering  upon  this  state  shall  be 
liable  for  debts  contracted  on  account  thereof,  for  materials, 
supplies,  or  labor,  in  the  building,  repairing,  furnishing,  or 
equipping  the  same,  or  due  for  wharfage;  and  also  for  damages 
arising  out  of  any  contract  for  the  transportation  of  goods  or 
persons;  for  injuries  done  to  persons  or  property  by  the  craft; 
and  for  injuries  done  by  the  captain  or  mate  to  any  passenger 
or  hand  on  the  craft  at  the  time  the  injury  is  inflicted.  For 
any  of  these  causes  of  action,  proceedings  may  be  instituted 
against  the  craft  itself  which  is  seized  by  the  sheriff,  and  unless 
released  upon  bond,  is  held  in  custody  by  him  until  final  judg- 
ment; when,  if  judgment  is  against  the  croft,  it  may  be  sold  upon 
execution  to  satisfy  the  demand.  In  the  case  of  Jone$  v.  The 
Commerce,  14  Ohio,  408,  it  was  held  that  the  statute  only  estab- 
lished the  liability  of  the  craft,  but  fixed  no  lien  upon  it  prior  to 
its  seizure,  and  that  claims  against  it  were  to  be  satisfied  in  the 
order  of  actual  seisure  by  warrant.  And  in  that  case,  and 
the  case  of  the  Steamboat  Waverly  v.  Clements,  Id.  28,  it  was 
further  settled  that  a  purchaser  of  the  craft,  with  notice  of  a 
debt  or  liability  created  or  incurred  on  account  of  it  by  the  origi- 
nal owner,  takes  it  subject  to  such  debt  or  liability;  but  that  a 
judicial  sale  vests  in  the  purchaser  the  title,  divested  of  all  li*» 
Uhty  to  be  again  proceeded  against,  under  the  statute,  for  a 
claim  existing  at  the  time  of  sale.  In  Lewis  v.  Cleveland,  12  Id. 
341,  the  act  was  held  to  extend  to  the  recovery  of  seamen's 
wages;  and  in  Kellogg  v.  Brennan,  14  Id.  72,  and  Provost  v.  IFiZ- 
cor,  17  Id.  359,  it  was  determined  that  the  debts  and  liabilities 
of  the  craft,  arising  under  this  act,  covered  the  interest  of  a 
mortgagee,  and  were  to  be  preferred  in  the  distribution  of  the 
proceeds  of  the  sale  to  the  mortgage  money;  especially  as  it 
appeared  the  boat  was  run  for  the  joint  interest  of  the  mort- 
gagee and  owner.  But  it  has  never  been  held  that  specific  liens 
upon  the  craft,  existing  before  the  seizure,  and  independently  of 
the  statute,  would  not  be  respected  and  upheld.  It  can  not  be 
tor  a  moment  doubted  that  all  such  liens  founded  on  causes  of 
ftction,  whether  falling  within  the  act  or  not,  as  by  law  are  made 


222  Keatinq  v.  Spink.  [Ohio^ 

Buperior  to  the  debt  or  liability  for  which  the  craft  is  seized, 
would  be  preferred  in  the  distribution  of  the  proceeds  of  sale 
upon  proper  application  made  to  the  court  for  that  purpose. 

This  statute,  then,  as  stated  by  the  court  in  the  Canal  Boai 
Huron  y.  8imm(m8, 11  Ohio,  458,  **  treats  the  boat  as  a  person, 
and  makes  it  responsible  in  its  own  name  for  all  debts  contracted 
for  its  use,  and  for  all  injuries  committed  against  persons  or 
property  on  board,  by  her  officers  or  crew."  The  liability  ia 
upon  the  craft — the  proceeding  is  against  the  craft — ^and  the 
judgment  operates  alone  upon  the  craft.  Its  seizure  is  indis- 
pensable to  the  jurisdiction  of  the  court,  and  its  continued  cus- 
tody, unless  released  upon  bond  and  security,  indispensablj 
necessary  to  the  further  proceedings,  after  final  judgment. 

The  proceeding,  therefore,  is  strictly  and  technically  in  rem; 
it  is  pursued,  without  reference  to  the  owner,  to  enforce  a  lia- 
bility which  the  thing  itself  bas  incurred,  and  the  thing  itself 
is  condemned  to  make  reparation.  Possession  is  the  essential 
element  upon  which  the  jurisdiction  of  the  court  depends;  and 
as  this  possession  is  deemed  that  of  the  sovereignty  under  whose 
authority  the  court  sits,  if  any  question  can  be  regarded  as  set- 
tled by  the  unanimous  opinion  of  courts  and  jurists  it  is  this, 
that  '*  the  law  regards  the  seizure  of  the  thing  as  consti*uctiTe 
notice  to  the  whole  world : "  IloUingiioorth  v.  Barbour,  4  Pet.  476. 
Other  means  for  giving  notice  may  be  provided  at  the  discretion 
of  the  sovereign  power,  upon  the  observance  of  which  the  juris- 
diction may  or  may  not  depend;  but  where  they  are  not  pre- 
scribed, the  power  of  the  court  over  the  thing,  when  taken  into 
the  custody  of  the  law,  is  perfect  and  complete,  and  tbe  final 
disposition  of  it  binding  upon  the  world.  As  the  subjects  of 
liability  and  seizure,  described  in  this  statute,  are  so  uniformly 
attended  by  the  owner  or  master  representing  all  interests,  the 
legislature  has  regarded  tbe  seizure  and  taking  the  thing  into 
custody  as  effectual  notice  to  those  interested  of  the  pendency 
of  tbe  proceedings,  and  has  therefore  provided  for  no  other. 

If,  then,  tbe  state  government  had  the  power  to  give  author- 
ity to  her  courts  to  entertain  jurisdiction  of  tbe  causes  of  action 
specified  in  this  statute,  and  to  enforce  them  in  rem^  it  has  been 
effectually  done.  Juiisdiction  over  the  boat  in  this  case  was 
lawfully  acc^uired;  it  was  lawfully  taken  into  the  custody  of  the 
law,  and  tlie  plaintiff  bad  a  right  to  require  the  sheriff  to  keep 
it  in  custody  until  it  was  lawfully  disposed  of  after  final  judg- 
ment. That  tbe  state  government  had  this  power  is  perfectly 
clear,  unless  its  exercise  is  inconsistent  with  the  grants  of  power 


Dec  1863.]  Kbatino  v.  Smnc.  tSS 

to  the  federal  goremment,  to  be  exerdsed  by  the  oonrte  of  the 
Union.  The  argument  that  it  is  so  proceeds  upon  the  ground 
that  the  causes  for  which  the  proceeding  may  be  employed  are 
causes  of  admiralty  jurisdiction,  to  which  the  judicial  power  of 
the  United  States  is  extended,  and  over  which  exclusive  juris- 
diction has  been  conferred  by  congress  upon  the  district  courts. 
And  this,  it  is  claimed,  is  condusiTc  against  the  jurisdiction  of 
the  state  court,  and  demonstrates  the  illegality  of  the  seizure  of 
the  boat  in  the  first  instance.  But  if  the  state  court  had  juris- 
diction, and  the  original  seizure  was  lawful,  it  is  still  insisted  it 
is  a  jurisdiction  to  be  exercised  in  subordination  to  that  con- 
ferred upon  the  district  court,  and  can  not  be  permitted  to  with- 
hold any  property  liable  to  seizure  upon  the  process  of  that 
court  from  its  action,  inasmuch  as  it  is  dedaxed  in  the  sixth  ar- 
ticle of  the  constitution  of  the  United  States  that  "  this  consti- 
tution, and  the  laws  of  the  United  States  which  shall  be  made 
in  pursuance  thereof,  and  all  treaties  made,  or  which  shall  be 
made,  under  the  authority  of  the  United  States,  shall  be  the 
supreme  law  of  the  land;  and  the  judges  in  every  state  shall  be 
bound  thereby,  anything  in  the  constitution  or  law  of  any 
state  to  the  contrary  notwithstanding."  And  it  is  hence  inferred 
that  the  provision  gives  superior  efficacy  to  process  issued  from 
the  comrts  of  the  Union  over  that  of  the  state  courts  when  exer- 
cising a  concurrent  jurisdiction;  and  authorizes  them  to  with- 
draw property  taken  into  custody  and  held  by  the  latter  under 
state  laws;  and  especially  is  this  said  to  be  warranted  upon  pro- 
ceedings instituted  to  enforce  a  mariner's  paramount  lien  for 
wages. 

To  the  first  branch  of  this  argument  it  is  suffident  to  reply 
that  congress  (if  it  has  the  constitutional  power,  which  I  by  no 
means  concede)  has  not  attempted  to  confer  exdusive  jurisdic- 
tion upon  the  district  courts;  but  on  the  contrary,  has  expressly 
saved  the  common-law  and  statutory  remedies  of  the-'  states. 
By  the  act  of  1845  it  is  provided  that  there  shall  be  saved  *'  to 
Uie  parties  the  right  of  a  concurrent  remedy  at  the  common 
law,  when  it  is  competent  to  give  it;  and  any  concurrent  rem- 
edy which  maj  be  given  by  the  state  laws,  where  such  steamer 
or  other  vessel  is  employed  in  such  business  of  commerce  and 
navigation.''  Now,  it  is  quite  immaterial  whether  the  jurisdic- 
tion of  the  district  courts  over  vessels  employed  in  the  naviga- 
tion of  the  lakes  depends  upon  this  act  or  may  be  supported 
npon  the  assumption  that  the  act  of  1789  extended  to  all  the 
internal  navigable  waters  of  the  country.    In  dther  case,  con- 


2M  KxATiNO  V.  Sfikil  .  [Ohio^ 


gross  lias  positively  declared  that  eyeiy  suitor,  at  bis  election, 
shall  have  the  benefit  of  state  remedies;  and  has  thus  necessarily 
so  far  restricted  the  jurisdiction  and  powers  of  the  district 
courts  as  to  make  this  declaration  effectual.  But  without  this 
saTing,  the  jurisdiction  of  the  state  courts  could  not  be  doubt- 
ful. Without  turning  aside  to  inquire  whether  all  or  what  of 
the  cases  provided  for  in  the  state  law  are  such  as  would  be 
cognizable  in  admiralty  under  the  enlarged  views  now  enter- 
tained of  that  jurisdiction,  it  is  undeniable  that  all  of  them  are 
such  as  the  original  states  enforced  in  their  own  tribunals,  inde- 
pendent of  national  authority,  before  the  adoption  of  the  con- 
stitution of  the  United  States;  and  such  as  they  have  since 
constantly  entertained,  and  in  most  of  those  states  have  en- 
forced under  laws  in  no  material  respect  different  from  our 
own.  In  such  cases  the  concurrent  jurisdiction  of  the  state 
courts  was  admitted  in  Martin  v.  Hunter's  Lesnee,  1  Wheat.  304« 
As  evidence  of  the  prevailing  opinion  upon  this  subject,  and  as 
fully  expressing  our  own,  wb  copy  the  following  extract  from 
Mr.  Justice  Story's  Gommeutaries  on  the  Constitution.  He 
says:  "It  [the  admiralty  jurisdiction]  is  exclusive  in  all  mat- 
ters of  prize,  for  the  reason  that  at  the  common  law  this  ju- 
risdiction is  vested  in  the  courts  of  admiralty  to  the  exclusion 
of  the  courts  of  common  law.  But  in  cases  where  the  juris- 
diction of  the  courts  of  common  law  and  the  admiralty  are 
concurrent  (as  in  cases  of  possessory  suits,  mariners'  wages,  and 
marine  torts),  there  is  nothing  in  the  constitution  necessarily 
tending  to  the  conclusion  that  the  jurisdiction  was  intended  to 
be  exclusive;  and  there  is  little  ground,  upon  general  reasoning, 
to  contend  for  it.  The  reasonable  interpretation  to  the  con- 
stitution would  seem  to  be  that  it  conferred  in  the  national  judi- 
ciary the  admiralty  and  maritime  jurisdiction  exactly  according 
to  the  nature  and  extent  and  modifications  in  which  it  existed 
in  the  jurisprudence  of  the  common  law.  Where  the  juris- 
diction was  exclusive,  it  remained  so;  where  it  was  concuiw 
rent,  it  remained  so.  Hence  the  states  could  have  no  right 
to  create  courts  of  admiralty,  as  such,  or  to  confer  on  their 
own  courts  the  cognizance  of  such  cases  as  were  exclusively 
cognizable  in  admiralty  courts.  But  the  states  might  well  re- 
tain and  exercise  the  jurisdiction  in  cases  of  which  the  cogni- 
zance was  previously  concurrent  in  the  courts  of  common  law. 
This  latter  class  of  cases  can  be  no  more  deemed  cases  of  ad- 
miralty and  maritime  jurisdiction  than  cases  of  common-law 
jurisdiction:"  Stoic's  Const.,  sec.  1672,  note. 


Dm  185a]  KxAXOTQ  «.  Brans.  tSf 

Ooncnuxing  folly  in  ihese  iriewB,  ve  aira  brooght  tp  ihe 
undoubted  oondusion  that  the  state  had  full  pcmer  to  inyest  itfi 
oourtfl  with  jurisdiction  oyer  the  cases  described  in  the  watev- 
craft  law,  and  that  the  boat,  in  this  instance,  was  lawfully 
seized  and  taken  into  custody. 

If  the  state  court  had  rightful  jurisdiction  OTer  the  craft 
when  the  proceedings  were  commenced,  could  it  be  lawfully 
deprived  of  it  during  their  pendency  ?  A  few  very  obvious  con- 
siderations, it  seems  to  us,  furnish  a  sufficient  answer  to  the 
asserted  supremacy  of  the  proceedings  instituted  in  the  district 
court. 

The  constitution  of  the  United  States,  and  the  laws  made  in 
pursuance  thereof,  we  know,  and  are  happy  to  acknowledge, 
are  the  supreme  laws  of  the  land.  The  mistakft  consists  in 
supposing  them  the  only  supreme  laws  in  the  land.  Before  the 
constitution  of  the  United  States  was  adopted,  the  people  of  the 
several  states  were,  and  still  continue  to  be,  the  only  source  and 
fountain  of  sovereign  authority  which  our  theory  of  government 
acknowledges.  To  secure  their  happiness  and  safety,  they  had 
constituted  governments,  and  invested  them  with  the  exercise 
of  such  sovereign  authority  as  they  deemed  neeessaiy  for  the 
purpose.  Some  of  these  powers,  it  was  wisely  thought,  could 
be  best  exercised  by  a  government  extending  over  and  common 
to  them  all.  They  erected  such  a  government,  and  clothed  it 
with  certain  enumerated  and  clearly  defined  powers-Hirawn  in 
part  from  those  previously  conferred  upon  the  government  of 
the  confederation;  in  part  from  those  in  possession  of  the  state 
governments;  and  in  part,  perhaps,  from  those  until  then  un- 
delegated. It  is,  however,  entirely  immaterial  from  what  quar- 
ter they  were  taken.  It  is  enough  that  the  people  were  entirely 
competent  to  take  them  from  any  source  they  saw  proper,  and 
confer  them  upon  the  common  government  they  created. 

As  these  powers  were  to  be  exercised  in  the  name  and  by  the 
authority  of  the  sovereign  power  conferring  them,  by  the  con- 
sent of  all,  for  the  benefit  of  all,  their  supremacy  over  the  local 
institutions  of  the  states  necessarily  followed,  and  was  very 
appropriately  declared.  But  while  the  people  of  each  state 
adopting  or  afterward  acceding  to  that  constitution  were  thus 
willing  to  remove  evezy  impediment  to  the  uncontrolled  action 
of  the  government  created  by  it,  within  the  prescribed  limits, 
they  were  not  less  careful  to  confine  it  to  those  limits;  and 
hence,  in  the  tenth  amendment,  we  find  it  declared,  by  the 
same  high  authority,  that  "  the  powers  not  delegated  to  the 

▲m.  Dm.  Vol.  LXn— U 


226  KfiATmo  V.  Spink.  [Ohioi. 

TTnited  States  Vy  the  constitation,  nor  prohibited  by  it  to  th«- 
■tates,  are  reserved  to  the  states  respectively,  or  to  the  people.  ** 
Each  of  these  provisions  is  simply  declaratory  of  a  result  to- 
which  a  fair  construction  would  have  led  without  it,  and* 
neither,  therefore,  was  absolutely  necessary;  but  they  were- 
adopted  from  abundant  caution,  and  evince  the  great  solicitude* 
felt  to  make,  as  far  as  practicable,  a  clear  line  of  separation  be- 
tween the  powers  to  be  exercised  by  the  federal  government 
and  the  states  respectively,  and  to  avoid  collisions  in  their 
operations,  so  detrimental  to  the  permanency,  stabilitv«  and  use-^ 
fulness  of  each. 

The  powers  conferred  upon  the  federal  government,  although 
of  commanding  importance,  fell  very  far  short  of  the  necessitiee* 
of  a  complete  administration  of  civil  afGEurs.  To  meet  this  ne- 
cessity, it  became  necessary  to  leave  with,  or  afterward  confer 
upon,  the  state  governments  much  more  numerous  powers^ 
and  certainly  not  less  important  to  the  security  of  life,  lib- 
erty, and  property,  than  those  with  which  the  general  govern-- 
ment  was  invested.  These  powers  are  derived  from  the  same 
high  source,  delegated  in  the  same  manner  and  for  the  same 
great  object;  each  springing  directly  from  the  people,  and  rest- 
ing upon  the  sure  foundation  of  their  sovereignty,  is,  within  ite 
allotted  sphere  of  action,  equally  supreme  and  equally  armed  with 
ample  authority  for  the  execution  of  the  important  trusts. com- 
mitted to  its  care;  each  acting  through  its  judicial  department 
operates  directly  and  alone  upon  individuals,  and  each,  when 
acting  within  its  rightful  jurisdiction,  has  supreme  control  over 
all  the  persons  and  property  vdthin  the  territory  covered  by  ite 
authority.  If  the  courts  of  each  are  authorized  to  entertain  ju- 
risdiction over  the  same  class  of  cases,  it  then  depends  upon  the 
election  of  the  suitor  which  shall  be  employed;  but  let  it  be  the 
one  or  the  other,  so  soon  as  its  jurisdiction  has  attached  by  tak- 
ing either  persons  or  property  into  its  custody,  it  is  entitled  to 
proceed  to  final  judgment,  unmolested  by  the  other.  In  cases 
of  which  the  exclusive  cognizance  is  not  given  to  the  federal 
courts,  the  states  have  the  absolute  and  uncontrollable  right  to 
provide  such  remedies,  either  in  rem  or  in  personam,  as  to  them 
shall  seem  just  and  proper,  and  to  authorize  their  courts,  in  the 
exercise  of  the  sovereign  authority  with  which  they  are  invested^ 
to  seize  upon  and  take  into  their  custody  either  persons  or  prop- 
erty, as  the  nature  of  the  case  may  require.  If  the  proceeding 
is  in  rem,  the  possession  taken  becomes  that  of  the  sovereignty 
under  whose  authority  it  is  taken,  and  is  no  longer  that  of  the  i 


Dee.  1863.]  Keaxikq  v.  Sunk.  227 

owner.  And,  as  process  issued  from  the  oomis  of  the  Union 
spends  ita  whole  force  upon  indiyiduals,  or  property  in  the  pos- 
Beesion  of  indiTiduals,  it  necesaarilj  follows  thst  it  falls  short 
of  conferring  any  authority  whatever  for  interfering  with  the 
poasesaion  thus  acquired  of  a  sovereign  state.  However 
clearly  the  line  between  state  and  federal  powers  may  be  traced, 
still,  as  both  must  operate  upon  the  same  persons  and  prop- 
erty, nothing  short  of  the  absolute  supremacy  of  the  latter  over 
tha  former,  while  each  is  acting  strictly  within  its  constitutional 
limits,  could  justify  the  inference  here  attempted  to  be  sup- 
ported. 

It  is  xmpossible  to  foresee  all  the  disastrous  consequences  to 
which  BVLcL  a  principle  would  lead;  but  instances  will  very 
readily  occur.  Both  governments  may  lay  and  collect  taxes 
upon  the  same  property;  but  property  taken  by  the  state  for 
this  purpose  may  be  taken  from  it  by  officers  of  the  general  gov- 
ernment Both  may  punish  the  same  persons  for  crime;  but 
persons  imprisoned  for  infractions  of  state  laws  must  be  released 
to  answer  proceedings  instituted  against  them  in  the  federal 
courts.  As  a  general  thing,  residents  of  the  state  can  only 
prosecute  their  claims  in  the  state  courts;  but  after  judgment  in 
their  fiivor,  and  executions  levied  upon  property  for  their  satis- 
faction, the  property  may  be  taken  from  the  officers  of  the  law, 
apon  judgments  in  favor  of  non-residents,  subsequently  obtained 
in  the  federal  courts;  thus  establishing  a  practical  priority  in 
fsTor  of  non-residents  over  the  citizens  of  the  state.  A  con- 
Btniction  so  degrading  to  the  state  governments,  and  so  utterly 
destructive  of  their  ability  to  discharge  the  important  functions 
for  which  they  were  instituted,  we  feel  no  hesitation  in  saying 
finds  no  warrant  in  the  language,  history,  or  purposes  of  the 
constitution  of  the  United  States. 

As  yet,  neither  this  construction  nor  the  asserted  right  of  the 
admiralty  courts  to  seize  upon  property  held  by  the  process  of 
the  courts  of  common  law  has  received  any  considerable  sup- 
port from  judicial  determinations.  In  the  long  course  of  the 
British  admiralty  but  a  single  case.  The  Flora,  1  Hagg.  Adm. 
298,  is  found  where  such  interference  has  been  attempted;  and 
the  utmost  that  has  been  or  can  be  claimed  for  that  case  is  a 
tacit  recognition  of  the  power  arising  from  the  fact  that  it  was 
not  questioned  by  the  counsel  for  the  creditor  in  the  common- 
law  court.  But  the  report  gives  a  very  good  reason  why  it  was 
not  questioned,  and  why  the  creditor  preferred  a  sale  by  the 
marshal  instead  of  the  sheriff;  and  also  informs  us  that  by  aa 


Keahn o  V.  Sfink.  [Ohio, 

anderstanding  between  the  pariieB  the  vesflel  xemained  in  the 
actual  custody  and  poseession  of  the  sheriff's  officer,  so  that  the 
creditor  claimed  and  actually  obtained  the  satisfaction  of  his 
execution  after  the  claims  preferred  in  the  admiralty  court  were 
paid.  Under  these  circumstances,  this  case,  aside  from  its  en- 
tire want  of  applicability  to  tiie  rights  and  powers  of  courts 
acting  under  separate  and  independent  sovereignties,  can  cer- 
tainly be  regarded  as  of  very  little  value. 

The  only  cases  decided  in  this  countiy  which  have  been 
brought  to  our  notice  by  the  defendant's  counsel,  or  of  which 
we  have  any  knowledge  as  favoring  to  any  extent  his  position, 
are  Poland  v.  The  Sparlan,  Ware,  147 ;  Ceriain  Logs  of  MaJiogany, 
2  Sumn.  592;  and  WaU  v.  The  JSayal  Saaon,  2  Am.  Law  Beg.  324. 

None  of  these  cases  furnish  any  authority  for  the  action 
of  this  court.  .  They  were  all  decided  by  the  inferior  courts  of 
the  United  States,  and  the  positions  taken  and  Uie  reasons  as- 
signed are  entiUed  to  tiie  same  respectful  consideration  as 
though  they  had  been  advanced  at  the  bar:  no  more,  no  less. 
As  the  case  of  WaU  v.  The  Boyal  Saxony  supra,  in  the  district  court 
for  the  eastern  district  of  Pennsylvania,  was  decided  last — ^is  the 
most  nearly  in  point,  and  is  considered  with  much  the  most  abil- 
ity— ^I  shall  refer  at  any  length  only  to  that  case.  The  libel  was 
in  admiralty  for  seamen's  wages  and  supplies.  Before  the  pro- 
ceeding was  instituted  the  vessel  had  been  taken  into  custody 
upon  process  issued  by  the  supreme  court  of  Pennsylvania,  and 
proceedings  in  foreign  attachment  commenced  in  that  court 
against  her  owners..  An  application  being  made  to  the  district 
court  for  an  interlocutoiy  order  of  sale,  the  attachment  creditors 
intervened,  and  insisted  that,  pending  the  attachment  in  the 
state  court,  the  vessel  was  not  liable  to  arrest  upon  the  proceed- 
iDgs  commenced  in  the  district  court,  and  therefore  the  order  of 
sale  ought  not  to  be  made.  Judge  Kane  made  the  order,  not- 
withstanding the  objection,  and  commences  his  opinion  by 
affirming  that  ''  the  authority  of  the  courts  of  admiralty  to 
make  seizure  and  sale  of  vessels,  while  under  attachment  from 
the  courts  of  common  law,  has  not  hitherto  been  questioned  in 
England  or  this  country."  When  it  is  considered  that  he  is 
able  to  refer  only  to  the  case  of  The  Flora,  supra,  in  England, 
and  to  that  of  Poland  v.  The  Spartan,  supra,  in  which  it  is  ex- 
pressly stated  that  the  regularity  of  the  proceeding  was  not  ques- 
tioned by  the  attaching  creditors,  and  to  some  equivocal  dicta  in 
Certain  Logs  o/Mahogany,  supra,  it  must  be  deemed  a  very  slender 
foundation  upon  which  to  base  so  broad  an  assertion.    Indeedf 


Dee.  1858.]  Kxahnq  v.  SFonL 

the  xeenlt  of  liia  own  nttBoning  siripe  it  of  its  laiitnde,  and  eon* 
fines  it  to  proceedings  institated  to  enforce  a  right  to  or  lien 
upon  the  property  paramount  to  that  upon  which  it  is  held  in  the 
common-law  court,  and  which  such  court  may  be  incompetent  to 
notice  and  enforce.  He  considered  the  proceeding  in  attach- 
ment as  eesentially  in  perwnam^  and  the  writ  as  binding  only 
the  interest  of  the  defendant  in  the  property,  whatever  that 
might  be;  and  therefore  not  extending  to  the  paramount  lies 
or  interest  of  the  seamen  for  their  wages,  which  he  compares  to 
the  title  of  a  third  person  not  a  party  to  the  proceeding.  \7e 
need  not  stop  to  inquire  what  weight  is  due  to  most  of  these 
considerations.  The  proceeding  upon  which  this  boat  was  held 
was  undeniably  in  rem.  It  is  as  true  of  this  proceeding  as 
though  it  had  been  in  admiralty,  that  "  the  subject-matter  of 
the  controTcrsy  is  the  res  itself.  It  passes  into  the  custody  of 
the  court.  All  the  world  are  parties,  and  the  decree  concludes 
all  outstanding  interests,  because  all  are  represented."  The 
court,  having  Ihe  boat  in  custody,  had  full  power  to  recognize 
and  enforce  the  seamen's  paramount  lien,  if  he  saw  fit  to  ask  it, 
in  the  same  manner  and  to  the  same  e£fect  as  a  court  of  ad- 
miralty. What  more  could  the  district  court  have  done?  If 
the  material-man  had  seen  fit  to  commence  his  proceedings  in 
that  court  (as  he  might  have  done),  and  the  seaman  had  com- 
menced his  in  the  state  court  (as  he  also  might  have  done), 
would  it  have  authorized  the  sheriff  to  have  taken  the  boat  from 
the  custody  of  the  marshal?  It  certainly  would,  if  the  right 
depends  upon  the  paramount  lien;  but  I  presimie  such  an  ap- 
plication of  the  doctrine  would  be  at  once  repudiated.  If  the 
proceeding  of  the  material-man  had  been  instituted  in  the  dis- 
trict court,  it  would  have  compelled  the  seaman  to  present  his 
claim  there  before  the  proceeds  of  the  sale  were  distributed,  or 
lose  his  lien  upon  it. 

What  greater  hardship  in  requiring  him  to  do  the  same  tiling 
when  the  former  was  rightfully  and  legally  proceeding  in  the 
state  court?  The  state  had  the  right  to  provide  this  remedy 
for  both  the  claims.  She  had  done  so;  and  congress  had  pro- 
vided that  the  suitor,  at  his  election,  might  pursue  it.  Did  that 
body,  after  giving  the  right,  intend  that  it  should  be  defeated 
by  the  interference  of  their  own  courts,  invested  with  concur- 
rent jurisdiction,  which  owed  their  existence,  and  all  the  powera 
they  possessed,  to  their  sole  authority? 

The  suitor  was  not  a  tenant  at  will  in  the  state  court.  He 
had  a  perfect  right,  either  with  or  without  the  saving  in  the  act 


>30  Ceatino  v.  Spikk.  [Obia 

of  congresBy  to  proceed  there;  and  having  elected  to  do  bo,  there 
was  no  higher  law,  and  no  soTereignty  more  sorereign  than 
that  he  was  invoking  to  defeat  the  jurisdiction  the  court  had 
acquired.  The  whole  argument  in  favor  of  such  interference  is 
founded  on  a  mistake.  It  is  very  true  that  the  property  of  A. 
fan  not  be  taken  for  the  debt  of  B.  Constitutional  guaranties 
nnke  the  government  as  incompetent  to  do  this  as  the  humblest 
individual.  But  the  seaman  has  no  such  property  in  or  title  to 
the  vessel  on  which  his  wages  are  earned.  He  has  a  highly 
favored  claim,  which  gives  him  a  privileged  lien  upon  the  ves- 
sel and  its  proceeds,  with  the  right  to  have  it  converted  into 
money  for  his  payment.  He  could  not  sustain  an  action  of  re- 
plevin founded  upon  an  assertion  of  title  or  ownership  to  recover 
the  possession  from  the  owner,  much  less,  when  the  possession  of 
the  owner  has  passed  into  the  custody  of  the  law,  and  the  ves- 
sel is  in  process  of  being  converted  into  money  by  a  court  with 
perfect  ability  to  secure  him  all  his  just  rights,  can  he  be  per- 
mitted to  defeat  other  creditors  equally  meritorious,  by  inter- 
fering with  the  possession  upon  which  its  jurisdiction  depends. 
Such  a  course  would  not  only  be  without  right,  but  without 
excuse. 

This  view  of  the  subject  is  rendered  nearly  conclusive  by 
authorities  which  we  are  bound  to  respect.  Dawson  v.  Solcomb, 
1  Ohio,  275,  was  a  motion  to  amerce  a  sheriff  for  failing  to  pay 
over  money  made  on  execution.  He  answered  that  it  had  been 
attached  in  his  hands  as  the  property  of  the  judgment  creditor. 
The  court  held  the  defense  insufficient,  and  say:  ''While  the 
money  remains  in  the  hands  of  the  ofScer  it  is  in  the  custody  of 
the  law.  It  does  not  become  the  property  of  the  judgment 
creditor  till  it  is  paid  over,  and  consequently  it  is  not  liable  to 
be  attached  as  his.  The  writ  of  attachment  could  not  supersede 
the  execution  or  release  the  sheriff  from  a  literal  compliance  with 
its  command,  which  required  him  to  bring  the  money  into  court, 
so  that  it  might  be  subject  to  their  order.'' 

This  case  was  decided  upon  the  settled  common-law  principle 
that  property  in  the  custody  of  the  law  is  not  subject  to  seizure 
upon  legal  process.  The  doctrine  is  placed  upon  still  broader 
grounds  by  the  supreme  court  of  the  United  States  in  its  appli- 
cation to  the  respectiTC  action  of  the  state  and  federal  courts. 
Judge  Story,  in  his  Commentaries  on  the  Constitution,  lays  down 
the  general  proposition  that,  **  in  the  exercise  of  the  jurisdiction 
confided  respectively  to  the  state  courts  and  those  courts  of 
the  United  States  (where  the  latter  have  not  appellate  juiisdio- 


Dea  18fi&]  Kkatino  v.  Sfotk.  SSI 

tion),  it  18  plain  that  neither  can  have  any  tight  to  interfeie  irith 
or  control  the  operations  of  the  other:  '*  Story's  Const. ,  sec.  1767. 
The  same  principle  is  still  more  pointedly  stated  by  Justice  Mc- 
Lean in  Friffg  ▼.  Fenntylvaniat  16  Pet.  668.  He  says:  "The 
{K>wer8  which  belong  to  a  state  are  exercised  independently. 
In  its  sphere  of  sovereigniy  it  stands  on  an  equality  with  the 
federal  government,  and  is  not  subject  to  its  control.  It  would 
l>e  as  dangerous  as  humiliating  to  the  rights  of  a  state  to  hold 
that  its  legislative  powers  were  exercised  to  any  extent,  and 
under  any  circumstances,  subject  to  the  paramoimt  action  of 
•congress.  Such  a  doctrine  would  lead  to  serious  and  dangerous 
conflicts  of  power."  In  Hogan  v.  Lucas ^  10  Id.  400,  the  prop- 
-erty  was  first  levied  upon  by  the  sheriff,  and  after  being  deliv« 
-ered  to  a  claimant  upon  a  forthcoming  bond,  was  seized  in  exe- 
cution by  the  marshal.  The  court  say:  "Had  the  property 
remained  in  the  possession  of  the  sheriff,  under  the  first  levy, 
it  is  clear  the  marshal  could  not  have  taken  it  in  execution, 
for  the  property  could  not  be  subject  to  two  jurisdictions  at  the 
same  time.  The  first  levy,  whether  it  were  made  under  the 
federal  or  state  authority,  withdraws  the  property  from  the 
teach  of  the  process  of  the  other.  A  most  injudicious  conflict 
-of  jurisdiction  would  be  likely  often  to  arise  between  the  fed- 
•eral  and  state  courts  if  the  final  process  of  the  one  could  be  lev- 
ied on  property  which  had  been  taken  by  the  process  of  the 
other.  No  such  case  can  exist;  property  once  levied  on  remains 
in  the  custody  of  the  law,  and  it  is  not  liable  to  be  taken  by  an- 
other execution  in  the  hands  of  a  different  o£Scer,  and  especially 
by  an  o£Scer  acting  under  a  different  jurisdiction/' 

In  Peck  V.  Jenness^  7  How.  612,  the  property  was  attached 
upon  mesne  process  under  the  laws  of  New  Hampshire.  Pend- 
ing the  proceedings,  the  defendants  became  bankrupt,  and  were 
regularly  discharged  from  their  debts  by  the  district  court.  On 
the  petition  of  the  assignee  that  court  decreed  that  this  attach- 
ment was  not  a  lien  on  the  property  in  the  custody  of  the  sheriff, 
•and  ordered  him  to  deliver  it  up  to  the  assignee,  or  account  to 
him  for  its  value. 

The  question  was,  whether  this  was  a  sufficient  defense  to 
further  proceedings  in  the  state  court.  The  court,  affirming 
the  judgment  of  the  superior  court  of  the  state,  held  it  was  not; 
•and  after  adverting  to  the  fact  that  the  state  court  was  an  in- 
dependent tribunal,  not  deriving  its  authority  from  the  same 
sovereign,  and  as  regards  the  district  court  a  foreign  forum,  in 
-eveiy  way  its  equal,  uses  this  emphatic  language:   ''It  is  a 


m  KK411N0  p.  Smnc  [Ohio^ 

dooteine  too  long  •sfatbliahed  to  requixe  the  dtatkm  of  authori- 
ties,  that  whore  the  jurisdiction  of  the  court  and  the  right 
of  the  plaintiff  to  prosecute  his  suit  in  it  have  once  attached, 
that  right  can  not  be  arrested  or  taken  away  bj  proceedings  in 
another  court.  These  rules  haye  their  foundation  not  merely  in 
oomiiyy  but  neoessiij.  For  if  one  may  enjoin,  the  other  may 
retort  by  injunction,  and  thus  the  parties  be  without  remedy. 
Neither  can  one  take  property  from  the  custody  of  the  other  by 
replevin  or  any  other  process,  for  this  would  produce  a  conflict 
extremely  embarrassing  to  the  administration  of  justice." 

To  the  same  purpose,  and  no  less  explicit,  is  the  opinion  of 
liir.  Justice  Thompson,  in  the  case  of  the  Bobert  FuUon,  1  Paine, 
620.  In  that  case  the  ship  was  seized  and  taken  into  custody 
by  the  sheriff,  at  the  suit  of  certain  material-men,  upon  process 
issuing  from  a  state  court,  under  a  statute  yexy  similar  to  the 
hiw  of  this  state.  While  so  in  custody  other  material-men  in* 
stituted  proceedings  in  the  district  court,  under  which  she  was 
taken  from  the  sheriff  by  the  marshal.  The  judge  says:  "If 
the  sheriff  by  virtue  of  his  warrant  had  attached  and  taken  into 
his  possession  the  ship  on  the  tenth  of  May,  as  he  has  returned, 
it  is  iu  no  way  explained  how  the  Tnarshal  could,  the  day  after, 
sei^  and  take  into  his  possession  the  same  vessel  and  proceed 
to  sell  the  same  under  the  ordera  of  the  district  court.  The 
right  and  authority  of  the  sheriff  under  the  process  directed  to 
him  to  attach  the  vessel  can  not  be  questioned,  and  if  he  had 
BO  done,  the  ship  was  in  the  custody  of  the  law,  and  the  mar- 
shal could  have  had  no  authority  to  take  it  out  of  the  possession 
of  tbo  Bberiff.  If  he  found  the  vessel  held  by  the  sheriff  under 
his  attachment,  he  should  have  so  returned  to  the  district  court 
upon  his  process,  and  all  further  proceedings  of  the  district 
court  would  have  been  arrested,  and  no  conflict  of  jurisdiction 
could  have  arisen.  The  proceedings  were  in  rem^  and  the  sen- 
tence of  the  court  must  act  on  the  thing  itself,  and  could  not 
be  executed  unless  possession  of  it  was  taken.  It  is  the  neces- 
sary result  of  proceedings  in  rem  that  the  thing  in  litigation 
must  be  placed  in  the  custody  of  the  law.  It  must  be  in  the 
possession  or  under  the  control  of  the  court.  And  the  right  to 
mainiain  the  jurisdiction  must  attach  to  that  tribunal  which 
firet  exereises  it  and  takes  possession  of  the  thing  in  litigation. 
This  course  is  indispensable  in  order  to  avoid  a  clashing  of  juris- 
diction/' 

To  tuese  cases  in  the  federal  courts,  establishing  principles 
Which,  we  think,  must  control  the  one  at  bar,  we  should  not 


Dec.  1853.]  Keatino  v.  Sfink.  238 

omit  to  idd  flie  ease  of  Corryl  ▼.  Ifaybr,  2  Am.  Law  B^.  833, 
decided  by  the  sapreme  ootirt  of  PennsylTania,  sitting  at  tiin 
prtitt. 

The  action  was  xeplevin,  and  the  smt  was  brought  to  recover 
poaeeedon  of  the  bark  Bojal  Saxon — ^the  sabject  of  contro- 
Teray  in  the  diBtrict  oonrt  in  the  case  to  which  I  have  referred. 
The  phintiif  was  the  purchaser  under  the  proceedings  in  attach- 
ment in  the  state  court  and  the  defendant  under  those  of  the 
district  courL 

The  jurisdiction  of  the  state  court  and  its  right  to  retain  the 
possession  of  the  yeesel  against  the  process  of  the  district  court, 
as  well  as  the  title  of  the  plaintiff,  were  fully  sustained  in  a 
T6iy  able  opinion  by  Mr.  Justice  Woodward,  to  which  I  can  not 
do  more  than  refer  and  express  the  concurrence  of  this  court  in 
its  reasonings  and  conclusions. 

I  hare  thus,  at  much  greater  length  than  I  had  intended, 
stated  the  reasons  and  authorities  upon  which  we  rely  in  coming 
to  the  conclusion  that  the  defendant  was  wholly  unjustified  in 
Bonendering  the  boat  in  his  custody  to  the  marshal. 

We  regret  the  necessity  that  compels  us  to  afSrm  his  liability, 
as  he  probably  acted  under  a  mistake  as  to  his  duty.  But  he 
was  bound  to  know  his  duty;  and  whether  mistaken  or  not,  the 
plaintiff  lost  his  debt  by  his  failure  to  perform  it,  and  we  have 
no  right  to  deny  him  a  remedy.  The  sooner  ministerial  officers 
nnderstand,  the  better  it  will  be  for  them  that  the  law  places  at 
their  disposal  the  force  necessary  to  enable  them  to  execute 
process  in  their  hands  according  to  its  command,  and  that  they 
always  act  safely  when  they  act  under  the  direction  of  the  court 
from  which  it  issues,  and  neyer  without  it. 

But  if  we  could  deny  this  plaintiff  a  remedy,  we  should  still 
ha?e  no  right  (and  as  littie  inclination)  to  diminish  the  power 
of  the  state  to  discharge  one  of  the  most  sacred  of  its  obliga- 
tions by  doing  justice  to  the  suitors  in  its  courts. 

How  little  this  yeiy  beneficial  statute  would  be  worth  if  we 
yielded  to  this  interference  is  illustrated  by  this  case.  The 
record  informs  us  that  the  marshal,  at  the  request  of  the  parties, 
removed  the  boat  from  the  county  into  lake  Erie,  when  the 
claim  of  the  seaman  was  settled,  and  the  boat  delivered  to  the 
master,  who  neyer  afterward  suffered  it  to  come  within  the  lim- 
its of  the  counly  of  Wood.  There  can  be  yery  littie  doubt  that 
the  process  of  the  district  court  was  used  for  the  mere  purpose 
of  withdrawing  the  boat  from  the  reach  of  the  creditor  in  the 
liate  court.    If  so,  what  was  true  in  this  case  will  be  true  in 


234  Keatikq  v.  Spink.  [Ohlo^ 

eyery  other,  at  the  election  of  the  master  or  owner,  as  a  seaman 
may  always  be  found  with  a  claim,  real  or  pretended,  upon 
which  to  obtain  the  process.  We  must  hear  better  reasons 
than  we  hare  yet  heard,  or  can  imagine,  before  we  consent  thus 
to  place  an  honest  creditor  in  our  courts  at  the  mercy  of  his 
debtor. 

The  judgment  of  the  court  of  common  pleas  is  reversed,  and 
the  cause  remanded  for  further  proceedings. 

Stati  Statutb  Providiko  for  GoLLicnov  or  Claims  AOAnrsr  Stkam* 
BOATS*  etc.,  pronounced  not  unconstitational,  in  Thompton  ▼.  Steamboat  JvUtu 
D,  Mortm,  69  Am.  Deo.  658. 

Where  Jurisdiction  has  bebx  Acquired  ix  One  Court,  another  of 
concurrent  jurisdiction  will  not  take  it  away.  The  former  will  retain  it  for 
final  dispoeition:  Merrill  v.  Lake^  47  Am.  Dec.  377. 

The  principal  case  was  cited  in  Dwyer  ▼.  QarUmgK^  31  Ohio  St  168^ 
to  the  effect  that  the  court  first  obtaining  jurisdiction  has  the  power  to  settle 
rights,  in  exclusion  of  other  tribunals;  but  it  is  to  be  distinguished  from  those 
cases  where  the  first  court  has  no  power  to  give  the  relief  sought. 

Actions  in  State  Courts  against  Vessels.— 1.  Territorial  LimU  qf  Ju- 
risdiction of  Courts  qf  Admiralty, — It  will  appear  from  the  note  to  Caae  y. 
WoolUi/y  32  Am.  Dec.  65,  on  this  subject,  that  the  jurisdiction  in  admiralty 
depends,  not  upon  the  ebb  and  flow  of  the  tide,  but  upon  the  navigable  char- 
acter of  the  water;  that  if  the  water  is  navigable,  it  is  deemed  to  be  publio» 
and  if  public,  that  it  is  to  be  regarded  as  within  the  legitimate  scope  of 
the  admiralty  jurisdiction  conferred  by  the  constitution.  This  jurisdiction 
was  granted  to  the  district  courts  by  the  judiciary  act  of  1789:  1  Stat,  at 
Large,  sec.  9,  p.  73;  and  it  was  in  the  interpretation  of  the  power  here  granted 
that  the  supreme  court  of  the  United  States  limited  the  jurisdiction  in  the 
earlier  cases  to  the  high  seas  and  tide-waters.  These  decisions  of  the  supreme 
court  of  the  United  States,  holding  that  the  admiralty  jurisdiction  of  the 
United  States  courts  embraced  only  the  tide-waters  of  the  country,  virtually 
excluded  it  from  the  regions  watered  by  the  great  lakes  of  the  north,  and  by 
the  Mississippi  river  and  its  tributaries.  *'The  need,'*  says  Hughes,  J.,  in 
Stewart  v.  Potomac  Ferry  Co.,  12  Fed.  Rep.  299,  "of  this  jurisdiction  was, 
ir  consequence,  so  severely  felt  by  the  commerce  of  those  great  regions  that 
congress  found  it  necessary  to  pass  the  act  of  February  26,  1845:  6  Stat, 
at  Large,  726,  '  extending  the  jurisdiction  of  the  United  States  district  courts 
to  certain  cases  upon  the  lakes  and  the  navigable  waters  oonneoting  the  same.' 
This  law  virtually  erected  the  district  courts  of  the  United  States,  in  dis- 
tricts bordering  on  the  waters  named,  into  quasi  admiralty  courts.  It 
expressly  provided  that  the  practice  and  proceedings  in  rem  obtaining  in  ad- 
miralty courts  should  be  employed  in  the  district  courts  in  respect  to  vessels 
exceeding  a  certain  tonnage,  and  that  the  maritime  law  and  the  rules  of  de* 
cision  observed  in  admiralty  courts  should  be  applied  to  vessels  navigating 
the  lakes  and  waters  connecting  them.  This  act  of  congress  could,  of  course, 
have  no  operation  in  respect  to  vessels  navigating  interior  waters  other  than 
those  of  the  lakes  and  their  connecting  streams,  and  failed  to  reach  the  needs 
of  the  commerce  of  all  the  other  waters  of  the  Mississippi  valley.  This  de* 
feet  was  supplied  by  state  legislation;  all,  or  nearly  all,  of  the  states  pene* 
trated  or  bordered  by  those  other  waters  passing  laws  authorising  their  own 


Dec.  1853.]  Kkatino  v.  Spink.  235 

sonrto  to  adopt  and  employ,  to  a  greater  or  leee  ezteot,  the  praotiee  of  ad- 
miralty oonrtB,  and  to  deal  with  the  veeaels  navigating  them  according  to 
admiralty  ralea  of  decision.  While  theee  things  were  going  on,  the  views  of 
the  supreme  court  of  the  United  States,  in  respect  to  the  extent  of  admiralty 
jurisdiction,  underwent  a  change;  and  in  the  case  of  The  Oeneaee  Chi^,  12 
How.  457,  that  court  reconsidered  its  former  ruling,  and  held  that  navigabil* 
ity,  and  not  the  ebb  and  flow  of  the  tide,  was  the  test  of  the  preienoe  of  that 
Jurisdiction.  After  this  ruling,  it  followed,  as  a  logical  consequence,  that  the 
court  would  also  have  to  rule  that  the  admiralty  jurisdiction  extended  pro* 
prio  vigore  to  the  northern  lakes  and  to  the  rivers  of  the  Mississippi  valley; 
that  it  extended  there  by  virtue  of  the  constitution  of  the  Union,  and  not  by 
virtue  of  the  congressional  act  of  February  26,  1845,  supra^  or  of  the  statutes 
of  the  states  relating  to  vessels,  which  have  been  mentioned.  Moreover,  that 
this  jurisdiction  was  exclusively  in  the  courts  of  the  United  States,  and  that 
all  state  legislation  conferring  the  jurisdiction  upon  the  state  courts  was  un- 
constitutional. All  this,  accordingly,  that  court  has  subsequently  decided, 
as,  for  instance,  in  the  cases  of  Jackson  v.  Steamboat  Magnolia,  20  How.  206; 
The  Moiea  Taylor,  4  Wall  ill;  The  Hine  v.  Trevor,  Id.  555;  The  Beifast^ 
7  Id.  G24;  The  Eagle,  8  Id.  15;  Insurance  Co.  v.  Dunham,  11  Id.  1." 

The  constitutionality  of  the  act  of  February  26,  1845,  supra,  was  Involved 
la  the  case  of  The  Genesee  Chi^,  12  How.  457,  but  all  doubts  concemini;  it 
were  there  settled,  and  the  act  was  declared  to  be  consistent  with  the  consti- 
tution of  the  United  States.  Prior  to  that  decision  the  western  lakes  and 
navigable  rivers  of  the  United  States,  above  tide-water,  were  not  supposed, 
as  we  have  said,  to  be  waters  within  the  admiralty  and  maritime  jurisdic- 
tion of  the  federal  courts.  "And,'*  said  Clifford,  J.,  in  The  Be{fa8t,  7  WaU. 
639,  "  strange  as.  that  proposition  may  now  appear  to  one  familiar  with  the 
provision  contained  in  the  ninth  section  of  the  judiciary  act»  it  is  nevertheless 
true  that  the  rule  restricting  admiralty  jurisdiction  to  tide-waters  had  pre- 
vailed from  the  organization  of  the  judicial  system  to  that  date,  but  ths 
effect  of  that  decision  was  to  dispel  that  error  and  place  the  admiralty  juris- 
diction upon  its  true  constitutional  and  legs!  basis,  as  defined  in  the  consti- 
tution of  the  United  States  and  the  laws  of  congress.*'  See  Jackson  v. 
Steamboat  Magnolia,  20  How.  296;  Allen  v.  Newberry,  21  Id.  244;  and  The 
Iline  y.  Trevor,  4  Wall.  555,  approving  and  affirming  The  Qenesee  Chitf, 
supra.  In  Jackson  v.  Steamboat  Magnolia,  supra,  it  was  held  that  the 
admiralty  jurisdiction  of  the  courts  of  the  United  States  is  not  dependent 
upon  the  ebb  and  flow  of  the  tide,  and  that  it  is  not  defeated  because  the 
place  of  the  transaction  was  within  the  body  of  the  county  of  a  state;  and  in 
Insurance  Co.  v.  Dunham,  11  Wall.  25,  it  was  said  that  admiralty  jurisdic- 
tioD  "  extends  not  only  to  the  main  sea,  but  to  all  the  navigable  waters  of  ths 
United  States,  or  bordering  on  the  same,  whether  land-locked  or  open,  salt 
«r  fresh,  tide  or  no  tide."  It  is  evident  that  these  later  decisions  have  ob- 
literated all  distinctions  between  cases  based  on  tide. 

2.  Navigable  Waters,  and  Size  of  Vessels. — In  addition  to  what  is  said  in  ths 
note  to  Ccue  v.  WooUey,  32  Am.  Dec.  67,  we  may  say  that  navigable  waters 
have  been  thus  defined:  '*  The  test  by  which  to  determine  the  navigability 
oi  our  rivers  is  found  in  their  navigable  capacity.  Those  rivers  are  publio 
navigable  rivers  in  law  which  are  navigable  in  fact.  Rivers  are  navigable  in 
fact  when  they  are  used,  or  are  susceptible  of  being  used,  in  their  ordinary 
condition,  as  highways  for  commerce,  over  which  trade  and  travel  are  or  may 
be  conducted  in  the  ordinary  modes  of  trade  and  travel  on  water.  And  they 
constitute  navigable  waters  of  the  United  States  within  the  maaning  of  ths 


236  Keating  v.  Sfikk.  [Ohio. 

ftoti  of  ooogiMS,  in  oootiudistiiiotioii  from  HATigftbls  witafe  of  the  ttetiif 
when  they  form  in  their  Ardinaiy  condition,  by  themselTes  or  by  uniting 
with  other  watery  a  continued  highway  over  which  commerce  is  or  may  be 
carried  on  with  other  states  or  foreign  coantries,  in  the  coBtomary  modes  in 
which  commerce  is  oondacted  by  water: "  TKe  Daniel  Sail,  10  Wall.  563. 
'*  If,  howerer,  the  river  is  not  of  itself  a  highway  for  commerce  with  other 
states  or  foreign  conntries,  or  does  not  form  snch  a  highway  by  its  connection 
with  other  winters,  and  is  only  navigable  between  different  places  within  the 
state,  then  it  is  not  a  navigable  water  of  the  United  States,  bnt  only  a  navi- 
gable water  of  the  state,  and  the  acts  of  congresSp  5  Stat,  at  Lat^e,  904,  10 
Id.  61,  for  the  enrollment  and  license  of  vessels,  have  no  application,  as 
those  acts  only  require  such  enrollment  and  license  for  vessels  employed 
upon  the  navigable  waters  of  the  United  States:  '*  The  Jfantdlo,  11  Wall.  415. 
Apd  on  the  question  as  to  whether  the  canals  of  the  country  come  within  the 
admiralty  jurisdiction,  there  has  been  some  diversity  of  opinion  in  the 
decisions  of  the  courts;  but  the  better  opinion  seems  to  be  that  an  artificia] 
canal  opened  by  a  state  to  public  use  for  purposes  of  commerce,  and  while  !u 
tauct  used  as  a  highway  of  commerce  between  the  states,  or  between  foreign 
countries  and  the  United  States,  is  navigable  water  within  the  meaning  of 
that  term  as  used  to  define  and  limit  the  jarisdiction  of  courts  of  ad- 
miralty: The  Ober,  2  Hughes,  12;  The  Avon,  1  Brown  Adm.  170;  Afalonf/  v. 
City  of  Milwaukee,  1  Fed.  Rep.  611;  The  E,  M.  McChesney,  15  Blatchf.  183. 
By  section  9  of  the  judiciary  act  of  1789^  1  Stat,  at  Large,  77,  admiralty 
jurisdiction  is  given  over  vessels  of  ten  or  more  tons  burden;  and  by  act  of 
February  26,  1845,  5  Stat,  at  Laige,  726,  the  same  jurisdiction  is  given  over 
vessels  of  twenty  tons  burden  and  upwards;  but  the  true  criterion  by  which 
to  determine  whether  any  water-craft  or  vessel  is  subject  to  admiralty  juris- 
diction is  the  business  or  employment  for  which  it  is  intended,  or  is  sus- 
ceptible of  being  jased,  or  in  which  it  is  actnally  engaged,  rather  than  its 
size,  form,  capacity,  or  means  of  propulsion:  The  Oeneral  Com,  1  Brown 
Adm.  334,  and  casis  there  cited;  Ex  jxtrte  Easton,  95  U.  S.  74.  For  state- 
ment of  federal  statutory  acts  concerning  petty  crafts,  see  same  case. 

3.  Juriadiciion  of  Ditlrict  Courts  qf  the  United  States, — ^The  constitution  or- 
dains that  the  judicial  power  of  the  United  States  shall  extend  "  to  all  cases 
of  admiralty  and  maritime  jurisdiction: "  Sec.  2,  art.  3.  And  the  ninth  sec- 
tion of  the  judiciary  act  of  1789  provides  that  the  district  ooarts  of  the  United 
States  "  shall  have  exclasive  original  cognizance  of  all  civil  causes  of  admi- 
ralty and  maritime  jurisdiction,  •  •  •  saving  to  suitors  in  all  cases 
the  right  of  a  common-law  remedy,  where  the  common  law  is  competent  to 
give  it: "  See  U.  S.  R.  S. ,  sec.  563,  par.  8.  Kothing  is  here  said  about  a  con- 
current jurisdiction  in  a  state  court,  or  in  any  other  court;  and  the  exclusive 
original  cognizance,  the  saving  clause  excepted,  of  all  civil  causes  of  admi- 
ralty and  maritime  jarisdiction  thus  conferred  upon  the  district  courts  by  the 
very  terms  of  the  judiciary  act  has  been  sustained  by  many  decisions:  Ash' 
l>roohe  v.  The  Steamer  Chlden  Gatej  1  Newb.  296;  Keto  Jersey  Steam  Kaviga- 
ikm  Co,  V.  Merchants*  Bank,  6  How.  390;  The  Edith,  11  BUtchf.  451;  The 
ffine  V.  TVwor,  4  Wall.  555;  77te  Belfast,  7  Id.  624;  Leon  v.  Oaleerau,  11 
Id.  185;  Steamboat  Co,  v.  Chase,  16  Id.  522;  Edwards  v.  EUioU,  21  Id.  532. 

The  statute  is  silent  as  to  what  are  such  "  civil  causes,"  and  this  question 
it  left  to  be  determined  by  courts  in  exercising  the  jurisdiction,  and  explain- 
ing its  subject-matter.  The  best  guides  as  to  the  extent  of  the  admiralty 
jurisdiction  of  the  federal  courts  are  the  constitution  of  the  United  States, 
the  laws  of  congress,  and  the  decisions  of  the  supreme  coort  of  the  United 


Dec  1853.]  S^TiNa  v.  BvrsK.  S8T 

Statei:  Tht  B^faud^  7  WalL  636^  The  qnertlon  m  to  the  trua  limiti  of  ftd- 
minlty  jnrisdiotum  b  ezclostyely  a  judicial  qoostion,  and  no  state  law  or  act 
of  coagresB  can  make  it  broadflr  or  narrower  than  the  judicial  power  may  de- 
ftemine  those  limits  to  he:  The  Lottawama^  21  Id.  658;  The  Steamer  Si. 
Lawrence,  1  Black,  522.  Story,  J.,  in  De  Lavio  t.  Boil,  2  GalL  388,  467, 
nid  that  the  words  "  civil  causes  "  in  the  constitution  "  include  jurisdiction 
of  all  things  done  upon  or  relating  to  the  sea;  or  in  other  words,  all  trans- 
acdom  and  proceedings  relative  to  commerce  and  navigatioD,  and  to  damages 
sad  injories  upon  the  sea."  Referring  to  the  jurisdiction  in  '*  maritime  con- 
t>w:ts,"  bo  further  said,  p.  474:  '*A11  civilians  and  jurists  agree  that  in  this 
appellatirm  are  included,  among  other  things,  charter-parties,  affreightments, 
marine  hypothecations,  contracts  for  maritime  service  in  the  building,  re- 
pairing, supplying,  and  navigating  ships;  contracts  between  part  owners  of 
ahipe;  contracts  and  qucui  contracts  respecting  averages,  contributions,  and 
jettisons;  and  what  is  more  material  to  our  present  purpose,  policies  of  in- 
nuaoce.'*  Clifford,  J.,  in  TTie  B^cut^  supra,  gave  the  following  enu- 
meration of  civil  causes  of  admiralty  jurisdiction:  *'  The  principal  subjects  of 
■dmiralty  jurisdiction  are  maritime  contracts  and  maritime  torts,  including 
captures  jure  bdli,  and  seizures  on  water  for  municipal  and  revenue  forfeit- 
orea.  Contracts,  claims,  or  service,  purely  maritime,  and  touching  rights  and 
duties  appertaining  to  commerce  and  navigation,  are  cognixable  in  the  admi- 
ralty. Torts  or  injories  committed  on  navigable  waters,  of  a  civil  nature,  are 
also  cognizable  in  the  admiralty  courts;  jurisdiction  in  the  former  case  depends 
upon  the  nature  of  the  contract,  but  in  the  latter  it  depends  entirely  upon  lo- 
cality. Mistakes  need  not  be  made  if  these  rules  are  observed;  but  contracts 
to  be  performed  on  waters  not  navigable  are  not  maritime  any  more  than 
those  made  to  be  performed  on  land;  nor  are  torts  cognizable  in  the  admi- 
ralty, unless  committed  on  waters  within  the  admiralty  and  maritime  juris- 
diction, as  defined  by  law.*'  And  in  Ex  parte  Eastcri,  05  U.  S.  72,  this  same 
learned  admiralty  lawyer  said:  "  Wide  differences  of  opinion  have  existed 
as  to  the  extent  of  the  admiralty  jurisdiction,  but  it  may  now  be  said,  with- 
out fear  of  contradiction,  that  it  extends  to  all  contracts,  claims,  and  ser- 
Tioes  essentially  maritime,  among  which  are  bottomry  bonds,  contracts  of 
affreightment  and  contracts  for  the  conveyance  of  passengers,  pilotage  on 
the  high  seas,  wharfage,  agreements  of  consortship,  sui'veys  of  vessels  dam- 
aged by  the  perils  of  the  sea,  tlie  clainos  of  material -men  and  others  for  the 
repair  and  outfit  of  ships  belonging  to  foreign  nations  or  to  other  states,  and 
the  wages  of  mariners;  and  alpo  to  civil  marine  torts  and  injuries,  among 
which  are  assaults  or  other  personal  injuries,  collision,  spoliation,  and  tlam- 
Age,  illegal  seizures  or  other  depredations  on  property,  illegal  dispossession 
or  withholding  of  possession  from  the  owners  of  ships,  controversies  between 
the  part  owners  as  to  the  employment  of  ships,  municipal  seizures  of  shijis, 
sod  cases  of  salvage  and  marine  insurance."  Authorities  cited  in  explanation 
of  this  jurisdiction  in  particular  cases  will  be  found  in  CobenV  Admiralty, 
9-36;  Benedict's  Admiralty,  147-191.  But  the  jurisdiction  of  the  district 
courts  is  not  limited  to  the  particular  subjects  over  which  the  admiralty 
^oim^  of  the  parent  country  exerciMd  jurisdiction  when  our  constitution  was 
^opted.  The  jurisdiction  of  these  courts  does  not  extend  to  all  cases  which 
would  fall  within  such  jurisdiction,  according  to  the  civil  law  and  the  prac- 
tices and  usages  of  continental  Europe:  Ex  parU  EaaUm,  95  U.  S.  70.  The 
general  principle  that  underlies  all  cases  of  admiralty  jurisdiction  is  that  the 
jurisdiction  rests  upon  a  contract  essentially  maritime  in  its  nature,  whether 
ttpress  or  implied,  or  upon  the  locality  of  the  facts  or  occurrences  which  form 


t88  Keatinq  v.  Spink.  [Ohio^ 

the  aabjeot-matter  of  oontroTeny  between  the  parties.  No  case  not  present- 
ing one  or  the  other  of  these  features  comes  within  the  limits  of  this  jariadio- 
tion:  Insurance  Co,  y.  Dunham,  11  Wall.  1;  The  PlymatUh,  3  Id.  20.  There 
is  a  maritime  law  in  the  United  States,  and  this  law  is  one  and  the  same  in 
all  parts  of  the  country:  The  LaUawana^  21  Id.  658;  Meyer  v.  Meyett  1 
BUck,  522;  The  Bejfatt,  7  Wall.  624.  And  for  an  enumeration  of  particular 
Tessels  which  oome  within  the  jurisdiction  of  admiralty,  see  Cohen's  Admi- 
ralty, 9-23. 

4.  State  JtiHstftetum.— The  supreme  court,  in  speaking  of  the  acts  of  1789 
and  1845,  eupra,  says:  *'  These  laws  are  both  constitutional,  and  ought  there- 
fore  to  be  carried  into  execution.  The  jurisdiction,  under  both  laws,  is  con- 
fined to  vessels  enrolled  and  licensed  for  the  coasting  trade;  and  the  act  of 
1845  extends  only  to  such  vevels  when  they  are  engaged  in  commerce  between 
different  states  and  territories.  It  does  not  apply  to  yessels  engaged  in  the 
domestic  commerce  of  a  state,  nor  to  a  vessel  or  boats  not  enrolled  and 
licensed  for  the  coasting  trade  under  the  authority  of  congress:"  The  Oen* 
eeee  Chi^,  12  Uow.  45P;  Jones  v.  The  Coal  Bargee,  3  Wall.  jun.  50.  The 
acts  of  congress  providing  for  the  enrollment  and  license  of  vessels  only 
apply  to  vessels  employed  upon  the  navigable  waters  of  the  United 
States;  and  congress  has  not  prescribed  any  regulations  governing  com- 
merce between  the  states,  except  so  far  as  it  is  conducted  in  vessels  upon 
such  waters:  The  Monldlo,  11  Wall.  411.  The  "coasting  trade  "is  com- 
mercial intercourse  carried  on  between  different  districts  in  different  states, 
different  districts  in  the  same  state,  and  different  places  in  the  same  dis- 
trict, on  the  sea-coast  or  on  a  navigable  river:  Steamboat  Co,  v.  Livingston,  3 
Cow.  747;  the  phrase,  however,  can  not  be  applied  to  ferrying  across  a  river: 
United  States  v.  Steaniboat  Morrimm,  Newb.  241;  United  States  v.  Steam 
Fkrry'hoai  Wm,  Pope,  Id.  256.  But  there  is  undoubtedly  an  internal  commerce 
which  is  subject  to  the  control  of  the  states.  The  power  delegated  to  congress 
la  limited  to  commerce  '*  among  the  several  states,**  with  foreign  nations,  and 
with  the  Indian  tribes.  This  limitation  necessarily  excludes  from  federal  con- 
trol all  commerce  not  thus  designated,  and  of  course  that  commerce  which  is 
carried  on  entirely  within  the  limits  of  a  state,  and  does  not  extend  to  or 
affect  other  states:  Field,  J.,  in  7^  Daniel  Ball,  10  Wall.  565,  citing  Oib- 
bons  V.  Ogden,  9  Wheat.  194,  195;  see  also  The  Montello,  1 1  Wall.  41 1.  But 
if  a  vessel  is  engaged  in  commerce  between  the  states,  she  is,  however  limited 
that  commerce  may  be,  so  far  as  it  goes,  subject  to  the  legislation  of  congress: 
The  Daniel  Ball,  supra.  And  where  the  admiralty  jurisdiction  of  the  courts  of 
the  United  States  attaches  at  all,  it  does  so  to  the  exclusion  of  the  jurisdiction 
of  the  state  courts:  Ferry  Steamers  Norfolk  and  Union,  2  Hughes,  123.  The 
national  courts  alone  have  original  jurisdiction,  and  redress  must  be  had  there 
or  nowhere:  Jansen  v.  Briganline  Christina,  Bee  Adm.  20;  admiralty  juris- 
diction  being  exclusive  in  the  United  States  courts,  a  state  can  not  confer  it 
on  state  courts:  Stewart  v.  Potomac  Ferry  Co,,  12  Fed.  Rep.  206.  The  juris- 
diction in  admiralty  and  maritime  cases,  as  granted  by  the  constitution,  is  not 
to  be  understood  as  a  cession  of  the  waters  to  the  United  States  on  wliich  thess 
oases  may  arise.  The  general  jurisdiction  of  the  state  or««r  the  place,  subject 
to  this  particular  grant  of  judicial  power  to  the  United  States,  adheres  to  the 
territory,  which  is  a  part  of  the  state,  by  being  within  its  limits,  as  a  portion 
of  the  sovereignty  not  yet  given  away:  The  United  Stales  v.  Bevana,  3  Wheat. 
383.  The  clause  in  the  constitution  does  not  affect  the  jurisdiction  nor  the 
legislative  power  of  the  states  over  so  much  of  their  territory  as  lies  below 
high-water  mark,  save  that  they  parted  with  the  power  so  to  legislate  as  to 


Dec  186a]  Ebatinq  v.  Spink.  239 

•ooflict  with  the  admiralty  jariadiction  or  laws  of  the  United  State«: 
Smith  Y.  8UUe  qf  Maryland^  18  How.  70.  Each  state  owns  the  beds  of  all 
tida-watera  within  its  jnrisdictioii  unless  they  hare  been  granted  away;  but 
the  title  thus  held  is  subject  to  the  paramount  right  of  navigation,  the  regula* 
tioB  of  which  in  reapeot  to  foreign  and  interstate  oommeroe  has  been  granted 
to  the  United  States:  MeOrtady  v.  Firprnta,  94  U.  8.  891. 

There  are  numerous  decisions  showing  that  the  power  to  regulate  commerce 
with  foreign  nations  and  among  the  several  states  does  not  embrace  the 
purely  internal  commerce  of  a  state:  Oikbons  v.  Ogden,  9  Wheat.  1 ;  Brown 
f.  Stale  of  Maryland,  12  Id.  419;  Magturt  v.  Card^  21  How.  260;  MinU  ▼. 
P.  W.  is  B.  R.  R,  Co, J  2  Abb.  343;  StaU  of  Penngylvania  v.  W.  de  B,  Bridge 
Co.,  18  How.  432;  Oilman  ▼.  Philadelphia,  3  Wall.  713;  Corjidd  v.  CoryeU, 
4  Wash.  G.  G.  379;  (Tnited  States  y.  New  Bedford  Bridge,  1  Woodb.  k  M.  417; 
CommanweaUh  t.  CharUOown,  1  Pick.  179;  People  y.  Renetdaer  ^  Saratoga 
R.  R.  Co.,  16  Wend.  113;  SiUiman  v.  Hudson  River  Bridge  Co.,  4  Blatchf. 
83;  New  Jersey  Steam  Nav.  Co.  v.  Merchants'  Bank,  6  How.  344;  The 
Genesee  Chi^,  12  Id.  443.  Thus  it  has  been  held  that  a  steam-tug  employed 
in  turning  rafts  and  lumber  on  a  river  exclusively  within  the  state  is  not  lia- 
ble to  seizure  for  not  having  been  inspected:  77i«  Tug  Oconto,  5  Biss.  460; 
those  employed  in  harbor  service  and  within  the  body  of  a  county  being, 
liowever,  subject  to  admiralty  jurisdiction  where  there  is  a  collision  between 
them  when  employed  as  links  of  transportation  in  interstate  commerce:  Tlie 
Volunteer,  1  Brown  Adm.  159;  that  a  contract  of  affreightment  between  ports 
and  places  within  the  same  state  is  not  the  subject  of  admiralty  jurisdiction: 
Allen  V.  Newberry,  21  How.  244;  and  a  contract  for  supplies  furnished  to  a 
vessel  engaged  in  such  a  trade  is  subject  to  the  same  limitation:  Maguire  v. 
Card,  Id.  248.  Flat  boats  are  not  within  the  admiralty  jurisdiction:  Jones  v. 
The  Coal  Barges,  3  Wall.  jun.  53;  neither  are  rafts,  in  cases  where  the  right 
of  property  or  possession  sJone  is  concerned.  They  are  not  vehicles  intended 
for  the  navigation  of  the  sea  or  arms  of  the  sea.  They  are  not  recognized  as 
instruments  of  commerce  or  navigation.  They  are  piles  of  lumber,  and  nothing 
more:  Tome  v.  Four  Cribsof  Lumber,  Taney's  Dec  633;  Jones  v.  The  Coal  Barges, 
smpra;  Oastrtlv.A  Cypress  Rafi,2  Woods,  213;  A  Raft  of  Cypress  Logs,  1  Flipp. 
643;  so  coal-barges,  which  are  mere  open  chests  or  boxes  of  small  compara- 
tive value,  floated  by  the  stream  and  sold  for  lumber  at  the  end  of  the  voyage, 
are  not  within  the  maritime  jurisdiction:  Jones  v.  The  Coal  Barges,  svpra. 
A  amtract  for  building  a  vessel  is  not  a  maritime  contract,  because  niado  on 
land  and  to  be  performed  on  land:  Ferry  Co.  v.  Beers,  20  How.  401;  but  thia 
decision  is  not  to  be  extended  by  implication:  Insurance  Co.  v.  Dunham,  11 
Wall.  28.  By  some  of  the  earlier  decisions,  canal-boats,  though  upon  navi. 
gable  waters,  were  not  considered  subject  to  the  maritime  law:  Ann  Arbor, 
4  BUtchf.  206;  Buckley  v.  Brown,  3  Wall.  jun.  199;  but  by  later  ones  they 
may  be  libeled  in  admiralty:  The  E.  M.  MeChesney,  16  Bktchf.  183;  partic- 
ularly where  the  canal  itselif  is  in  fact  used  as  a  highway  of  commerce  between 
tlie  states  of  the  Union  and  between  foreign  countries:  MaJUmy  v.  The  City 
^f  Milwaukee,  1  Fed.  Rep.  611;  see  also  The  General  Cass,  1  Brown  Adm.  334; 
The  Avon,  Id.  170.  Taking  up  and  securing  rafts  afloat  in  public  navigable 
waters  is  not  a  salvage  service,  but  rather  in  the  nature  of  a  mere  finding:  Tome 
V.  Four  Cribs  of  Lumber,  Taney's  Deo.  633,  and  cases  cited.  A  dismantled 
steamboat  fitted  up  for  a  saloon  Is  not  a  subject  of  admiralty  jurisdiction: 
The  Hendrik  Hudson,  3  Ben.  419.  A  state  may  pass  ferry  laws:  Conway  v. 
Tai^s  Ex\,  1  Black,  603;  UniUd  States  v.  Steamboat  Morrison,  Newb.  241; 
United  States  v.  Steam  Ferry-boat  Wm.  Pope^  Id.  266;  but  they  are  under 


MO  Kkatino  t;.  Smnc.  [Ohio, 

the  oontrol  at  aongnn,  Oonmn^  y.  Taj^i  AV,  ngpra;  SlaU  </  Pom- 
ly^fojitoy.  IF%MlJiV  £Wc2^  Co..  13  How.  586;  U.  S.  B.  S.,  sect.  4309-4402. 
Admiralty  jarifdietioii  does  not  depend  npon  the  length  of  the  Toyage,  nor 
alwayi  upon  the  feet  that  a  reaiel  ahoold  be  engaged  in  intentate  oommeroe; 
ao  it  has  been  held  that  feny-boata,  though  propelled  by  ateam,  and  dengned 
for  the  tnuuportation  of  peraona  and  property  acroai  a  navigable  river  from 
one  state  to  another,  are  anbjeot  to  admiralty  jnriadiction:  Murray  v.  Ferry 
boat,  2  Fed.  Eep.  86;  SteambocU  Ckeeaeman  v.  Two  Ftrry-hoaU,  2  Bond,  363; 
contra:  Thaeheray  r.  The  Farmer,  Qilp.  524;  beoanae  the  statea  are  foreign 
to  each  other:  The  B^a$t,  7  WalL  624;  The  Kalorama,  10  Id.  £12;  Lever^ 
mg  v.  Bank  qf  Colwmhiti,  1  Cranch  C.  C.  152.  Bat  steamboata  mnniqg 
between  porta  and  plaoea  within  a  atate  are  ezclnaiYely  within  and  subject  to 
the  regulationa  and  control  of  that  state:  The  Seneca,  1  Bias.  371;  The  Steam 
Propelkr  Thomae  Swan,  6  Ben.  42;  UniUd  States  y.  Steamboat  Morrisom. 
Newb.  241 ;  United  States  v.  Steam  Ferryboat  Wm.  Pope,  Id.  256;  The  DoaM 
Bail,  Brown  Adm.  193;  S.  C,  10  WaU.  557;  The  Bright  Star,  1  Woolw. 
266;  Carpenter  v.  Schooner  Emma  Johnson,  1  Cliff.  633;  Moorev.  Am,  Trims, 
Co.,  24  How.  40;  Steamboat  Co,  r.  Livingston,  3  Cow.  713;  StaU  Tonnage 
Tax  Cases,  12  WalL  219;  United  States  y.  Dewitt,  9  Id.  41.  If,  however, 
from  the  usnal  course  of  the  voyage  between  two  porta  in  tlie  aame  atate  a 
part  of  the  navigation  of  the  veaael  is  upon  the  high  aeaa,  and  ont  of  the 
jurisdiction  of  any  particuUr  state,  admiralty  liaa  jurisdiction:  Carpenter  v. 
The  Schooner  Nmma  Johnson,  1  Cliff.  633;  Lord  v.  Steamship  Co.,  102  U.  8. 
541.  And  if  a  vessel  is  so  employed  as  to  be  an  instrument  for  tlie  convey* 
ance  of  articles  of  trade  from  one  state  to  another,  commerce  in  that  oom- 
modity  between  the  statea  has  commenced.  The  fact  that  several  different 
agencies  are  employed  in  transporting  the  commodity,  some  acting  entirely 
in  one  state,  and  some  acting  through  two  of  more  states,  does  not  affect  the 
character  of  the  transaction.  And  to  the  extent  to  which  each  agency  acts 
in  tliat  transportation,  it  is  subject  to  the  regulation  of  congress:  The  Darnel 
Ball,  10  WalL  557.  The  right  of  a  state  to  make  inspection  lawa  ia  aubject 
to  the  paramount  right  of  congress  to  regulate  commerce  with  foreign  nations 
and  among  the  several  states,  and  all  such  laws  are  subject  to  the  reviiion 
and  control  of  congress:  Oibbons  v.  Ogden,  9  Wheat.  1;  Edison  v.  Oarsa,  2 
Woods,  287;  Conway  v.  Taylor,  1  Black,  633;  Slaughter-house  Oases,  16  WalL 
63;  and  see  U.  S.  B.  8.,  sec.  4336.  But  a  small  open  boat  propelled  by  a 
steam-engine,  and  used  for  pleasure  only,  is  not  within  the  inspection  laws 
of  congress:  United  States  v.  The  MoUie,  2  Woods,  318;  and  a  ateamboal 
navigating  from  one  town  to  another  in  the  same  state,  engaged  exclusively 
in  domestic  commerce,  need  not  be  inspected:  The  Oconto^  5  Biss.  468;  OU- 
man  v.  Philadelphia,  3  WalL  713;  The  Bright  Star,  Wodw.  274;  Oibbons  v. 
Ogden,  9  Wheat  1;  The  Thomas  Swan,  6  Ben.  42;  The  Sylj^  4  Blatchf.  24. 
So  a  steamboat  employed  in  transporting  passengers  between  ports  of  the 
same  state  is  not  liable  to  the  penalty  for  not  having  the  hull  and  boilflrB  in* 
spected  under  the  act  of  congreas  of  August  80,  1852:  The  Seneca,  1  Bias. 
371.  Nor  is  a  steamer  employed  in  transporting  merehandiae  only:  The 
Propeller  Sun,  Id.  373. 

5.  ZAens  and  their  Enforcement, — The  general  maritine  lien  doea  not  attach 
to  vessels  engaged  in  internal  commerce:  Baymond  v.  The  Ellen  Stewart,  5 
McLean,  269;  but  only  to  veasels  in  a  foreign  port:  The  Stephen  Allen,  Blatcfaf. 
k  H.  Adm.  178;  The  Aurora,  1  Wheat.  96;  New  Jm'sey  Steam  Nov,  Co,  v.  Mer- 
chants* Bank,  6  How.  391;  and  for  thb  purpoaethe  atatea  are  deemed  foreign 
to  each  other:  The  Belfast,  7  WaU.  624;  The  Kalorama,  10  Id.  212;  Lesering 


Dw.  ISSa]  KBATmo  V.  Sfhtx.  S41 

▼.  Bmk  qf  Ceiumbk^  1  Gnnch  G.  C.  152.    State  IcgiilatioB  ew  aok  aff«et 
the  general  maritime  lien:  The  JiewrieUa,  Kewb.  288;  The  0lo6e,  2  Blatohf. 
427;  ^rtmsoa  y.  KhvUe^  1  How.  311;  7^  Chiuan^  1  Spngae,  89;  Dudley  r, 
7%e  Superior,  Kewb.  177;  ./amea  ▼.  SUamboal  Pawmee,  19  Ma  517;  SfseUm  v. 
2%e  T'roy,  3  Am.  Law Rc^.  622;  7%« /{on^an  r.  iStm^  lOMo.527;  The  Hari- 
tan  V.  Pollard^  Id.  583;  and  a  judicial  sale,  under  a  decree  in  admiralty  in  a 
proceeding  in  ran^  wiU  pan  title  to  a  vessel  free  of  maritime  liena»  whether 
general  or  itatatory:  The  Amdie,  6  WalL  18;  HiU ▼.  The  OoUUn  GoU,  6  Am. 
Law  Reg.  273;  and  the  general  maritime  lien  can  not  be  divested  by  state  stat- 
ate:  The  Tmaig  Mcchcmic^  2  Curt  410;  The  Steamer  JleurieUa^  Newb.  290t 
Finney  v.  Steamboat  FayeUe^  10  Mo.  612;  Jamee  v.  SteanAoat  Pawkee,  19  Ma 
617;  Maxwell  v.  The  Powell^  I  Woods,  103;  The  Bolivar,  Oloott,  474;  Ceriam 
Loga  of  Mahogany^  2  Sumn.  589;  Poland  v.  7^  Spartan^  1  Ware,  134;  on  a 
sabseqnent  seizure:  Ashbrook  v.  The  Steamer  Cfolden  Gate,  Newb.  296;  8.  G., 
6  Am.  Law  Reg.  148;  Poland  v.  The  Spartan,  1  Ware,  134;  Taylor  v.  Carrijl, 
20  How.  603.    Under  the  general  maritime  law  a  lien  on  a  domestio  vessel  is 
aot  implied:  The  Ctrcaerian,  11  Blatchf.  472;  The  B^aiA^  7  Waa  024;  The 
EdUhy  5  Ben.  436;  S.  C,  1 1  BUtchf.  451 ;  no  Uen  attaehing  without  a  speoial 
atatate:  Leonr.  Oalcerau,  11  Wall  192;  Edwards  v.  ElttoU,  21  Id.  656;  The 
Otcbe^  2  Blatchf.  427.    State  legislatures  have  power  to  create  liens  on  do- 
uiesdc  vessels,  founded  on  maritime  contracts;  77ie  Beffiut,  7  WalL  624;  The 
William  and  Emmeline,  Blatchf.  k  H.  Adm.  69;  but  they  can  not  ptrovide  for 
tlieir  onforcement  in  rem:  The  Moeea  Taylor,  4  Wall.  411;  The  Hme  v.  2Vesor, 
Id.  555;  The  Belfaat,  7  Id.  624;  Steamboat  y.  Chaee,  16  Id.  529;  or  give  any 
other  than  a  oonimou-Iaw  remedy:  The  Olcbe,  2  Blatchf.  427;  Tlie  Kalorama, 
10  Wall.  204;  The  UeljaH,  7  Id.  625;  and  if  the  statute  ahonld  provide  for  its 
enforcement  in  rem,  such  provision  would  be  unconstitutional  and  void:  The 
£dUh,  Leonv.  Galeerau,  The  BdfaU,  The  Mosee  Taytw,  The  Hint  v.  Treeor, 
Steamboat  Co.  v.  Chaee,  eupra.    The  lien  on  a  domestio  vessel  depends  on  the 
local  law,  The  General  Smith,  4  Wheat.  438;  The  St.  Jago  de  Cuba,  9  Id. 
409;  The  Belfast,  Leon  v.  Gaieerau,  supra,  by  which  it  is  governed:  The 
Alida,  Ahh,  Adm.  169;  Fox  v.  Holt,  4  Ben.  296;  Afaey  v.  De  Woif,  3  Woodb. 
h.  H  203;  Boylan  v.  The  Victory,  40  Mo.  244;  Duddington  v.  StewaH,  14 
Conn.  404;  I^rande  v.  Tht  JIarrtson,  1  Saw.  355;  its  existence  is  governed  by 
the  law  of  place:  The  Hilarity,  Blatchf.  &  H.  Adm.  92;  and  when  imposed  by 
law,  it  is  in  effect  an  clement  of  the  original  contract:  The  Kate  Tremaine,  5 
Bca.  CS;  77<«  JUeiggie  Hammond,  9  Wall.  450;  and  partakes  of  the  nature  of 
maritime  liens,  and  is  enforceable  tn  rem  in  the  United  States  courts:  The  Bob- 
en  Fulton,  1  Toine,  620;  The  Circaeeiofn,  12  Am.  Law  Beg.,  N.  S.,  291;  The 
Suamer  Jfemrielta,  Newb.  289;  The  Mary  Gratwick,  2  Saw.  344;  Zone  v.  The 
Tt^Unt,  4  W^ash.  453;  Tlte  Harrieon,  2  Abb.  86;  The  A  lido.  Abb.  Adm.  171 ; 
Tht  Kate  Tremaine,  5  Ben.  60;  The  Champion,  1  Brown  Adm.  527;  The  Bari- 
tony. SmUh,  10  Mo.  527;  A  New  Brig,  OUp.  474;  PhUlipe  v.  TheScattergood, 
Id  1 ;  The  Harvest,  Olcott,  274 ;  The  Belt,  3  Biss.  344;  The  Draco,  2  Sumn.  1 78. 
But  when  the  state  statute,  providing  for  the  collection  of  demands  against 
Uomestio  vessels,  does  not  confer  a  maritime  lien,  a  district  court  has  no  juris- 
diction to  enforce  the  liability  recognized  by  it:  The  Celestinf,  1  Bits.  1.    Con- 
^ncts  for  building  and  furnishing  materials  for  building  vessels  are  in  their 
nature  maritime,  and  state  statutes  may  create  liens  which  will  be  enforceable 
in  admiralty:   The  Kalorama^  10  Wall.  204;  Surp,  <f?  i?eiii.  of  the  ESdith,  11 
Blatchf.  466;  Cunningham  v.  HaU,  1  OiC  53;  The  CaUeto,  2  Ware,  29;  Ilk 
Antarctic,  1  Sprague,  207;  The  Harrieon,  2  Abb.  74;  for  materials  furnished i 
^y'a  Ship,  ft  Adm.,  sec.  90,  note  10;  and  in  favor  of  subdontraotor:  Firamde 
Ax.  Dao,  ^OL.  LXn— 16 


242  Keating  v.  Spink.  [Ohio^ 

T.  The  Haammm^  1  Saw.  373;  The  Circassian,  1  Ben.  128ii    ThalieD given  by* 

state  statute  applies  to  every  boat  navigating  the  waters  of  the  state  nn  con- 
tracts made  within  the  state:  Ashbrook  v.  The  Steamer  Golden  0(Ue,  Newb.  297 ; 
James  v.  Steamboat  Pawnee^  19  Mo.  517;  and  includes  ferry-boats:  Walker  v. 
Blackwell,  1  Wend.  557;  The  Joseph  K  Coffee,  Oloott,  405,  modifying  Birbeck 
V.  Ifoboken  Ferry-boats,  17  J'^hns.  54;  The  FarmerH*  Delight  v.  Lavfrenee,  5 
Wend.  564;  I/aneox  v.  Dunning^  6  Hill,  4G4.  Liens  depending  npon  state 
laws,  and  not  arising  ont  of  the  maritime  contract,  are  left  to  bo  enforoed  bj 
the  state  courts:  Maguire  v.  Card,  21  How.  250. 

6.  The  Common-law  Remedy, — Under  the  judiciary  act  of  1789  the  courts 
of  the  United  States  have  cognizance  of  all  civil  cases  of  admiralty  and  mari- 
time jurisdiction  exclusive  of  the  state  courts,  except  as  to  the  common-law 
remedy:  R.  S.,  sec.  711;  Ashhrook  v.  TVte  Steamer  Oolden  OaU,  Kewb.  296; 
New  Jersey  Steam  Navigation  Co.  v.  Merchants*  Bank,  6  How.  390;  Waring 
V.  Clarke,  5  Id.  44;  The  Hint  v.  Trevor,  4  Wall.  555;  The  Be{fast,  7  Id. 
624;  Leon  v.  Qalcerau,  11  Id.  185;  Steamboat  Co,  v.  Cltase,  16  Id.  522.  The 
common-law  remedy  existed  before  the  constitution  and  act  of  1789,  and  is 
by  the  latter  saved,  not  given:  Ashhrook  v.  The  Steamer  Oolden  Gate,  Newb. 
296;  New  Jersey  Steam  Navigation  Co,  v.  MerchamUf  Bank,  6  How.  390;  Waring 
v.Ctor£e,  5Id.  461;  The  Hinev,  Trevor,  4  Wall.  556;  LeonY,  Oaloerau,  11  Id. 
191;  The  Moses  Taylor,  4  Id.  431;  TAc  Belfast,  7  Id.  644.  The  constitutional 
clause  does  not  make  the  jurisdiction  of  common-law  courts  exclusive  in  such 
cases,  but  simply  permits  it  to  be  concurrent  with  that  of  the  district  courts 
of  the  United  States:  Waring  v.  Clarke,  5  How.  461;  The  New  Jersey  Steam 
Navigation  Co,  v.  Merchant^  Bank,  6  Id.  C90;  and  such  clause  only  saves  to  suit- 
ors the  right  of  a  oommon-law  remedy  where  the  common  law  is  competent  to 
give  it.  It  is  not  a  remedy  in  the  common-law  courts,  but  a  common-law 
remedy:  The  Moses  Taylor,  4  Wall.  431;  and  such  a  remedy  is  one  by  action 
at  common  law,  such  as  actions  of  debt,  aesumpsit,  case,  trespass,  trover,  etc., 
as  known  and  practiced  at  the  common  law.  Such  are  the  only  oommon-law 
remedies  known,  and  those  in  many  cases  are  proper  ones,  and  such  as  the 
common  law  is  competent  to  give;  and  such  a  remedy  is  not  a  proceeding  in 
rem,  or  against  a  vessel  itself,  for  courts  of  common  law  do  not  proceed  In 
rem,  and  therefore  a  proceeding  in  rem  can  not  be  a  common-law  remedy, 
neither  is  a  proceeding  by  bill  in  equity.  The  admiralty  and  maritime  juris- 
diction of  the  United  States  in  rem  is  exclusively  in  the  United  States  courts, 
and  there  is  no  concurrent  jurisdiction  in  rem  in  admiralty  cases  between  the 
oourtaof  the  United  States  and  of  the  several  states:  Ashbrook  v.  The  Steamer 
Oolden  Gate,  Newb.  296;  The  Mosea  Taylor,  4  Wall.  411;  T/ie  Iline  v.  Trevor, 
Id.  555;  The  Belfast,  7  Id.  624;  Steamboat  Co,  v.  Chase,  16  Id.  629.  A  proceed- 
ing in  rem,  as  used  in  the  admiralty  courto,  is  not  a  remedy  afforded  by  the 
common  law;  it  Is  a  proceeding  under  the  civil  law.  When  used  in  the  com- 
mon-law courts,  it  is  given  by  statute:  The  Moses  Taylor,  4  Id.  431.  *'  But 
the  common  law,'*  says  Mr.  Justice  Wells,  in  Aelibrook  v.  77ie  Steam€r  Golden 
QaU,  Newb.  296,  "  is  competent  to  give  a  remedy  in  many  cases  which  are 
cases  of  admiralty  and  maritime  jurisdiction.  Thus  a  material-man  may  pro- 
ceed in  admiralty  either  against  the  vessel  in  rem,  or  against  the  owners  in 
persofiam,  or  against  the  master  in  personam.  He  has  also  his  remedy  at  oom- 
mon  law,  which  would  be  an  action  of  debt  or  aemmptit  against  the  owners, 
or  a  like  action  against  the  master  for  the  value  of  the  supplies  furnished.  In 
some,  if  not  all,  cases  of  collision  where  a  party  injured  could  maintain  a  suit 
t»  rem  in  the  admiralty,  he  could  also  maintain  au  action  of  trespass  at  com- 
mon law:  Perdval  v.  Hickey,  18  Johns.  292.    So  an  action  of  trover  will 


bee  185a]  KsAxma  v.  Sfink.  243 

in  many  cases  of  a  wrongfnl  dispoosession  of  vessels,  although  there  Is  a  rem* 
edy  also  in  the  admiralty.  Why  are  suitors  not  suing  in  the  admiralty,  hat 
in  t'le  state,  courts  limited  to  a  common-law  remedy,  and  are  not  authorized 
to  proceed  In  remf  The  proceedings  against  ships  and  vessels  affect  the  dt- 
tzena  and  subjects  of  foreign  nations,  as  well  as  the  citixens  of  the  several 
states;  and  it  is  important  that  the  principles  and  rules  for  determining  rights 
and  injuries,  and  the  courts  to  administer  them,  should  be  those  known  to 
the  law  of  nations;  and  those  prindples  and  rules  should  be  uniform  through- 
out the  United  States;  so  also  of  the  remedies.  If  the  courts  and  ofiBcers, 
including  justices  of  the  peace  and  constables,  of  the  several  states  can  pro- 
coed  in  rem  against  the  vessels  of  other  states,  so  they  can  against  foreign 
sliips  and  vessels,  and  thus  ships  would  be  seized,  voyages  woald  be  broken 
up,  the  United  States  involved  in  diflSculties  and  reclamations  with  foreign 
nations;  a  multiplidty  of  laws,  rules,  and  proceedings  contradictoiy  and  in- 
consistent with  each  in  the  several  states  be  introduced;  and  thus  the  exclu- 
sive right  and  jurisdiction  of  the  United  States  over  our  foreign  relations  and 
over  the  commerce  and  navigation  of  the  United  States,  both  foreign  and 
domestic,  would  be  interfered  with  and  rendered  impracticable.  And  the 
states  themselves  would  soon  get  into  conflicts  of  jurisdiction  and  laws,  and 
rosort  to  laws  retaliatory  and  vexatious  upon  the  shipping  of  each  other,  as 
was  the  case  before  the  adoption  of  the  federal  constitution."  See  also  The 
IklfaU,  7  WalL  642,  643;  The  Oentral  Smith,  4  Wheat.  443. 

Again:  when  a  court  has  jurisdiction  to  proceed  in  rem^  and  docs  so 
proceed,  its  judgments  are  binding  and  oondusive  on  the  whole  world, 
and  this  is  so,  whether  the  tribunal  be  foreign  or  domestic;  not  so  with 
judgments  at  common  law:  they  bind. only  parties  and  privies:  The  Oen- 
tral Smith,  4  Wheat.  443;  The  Mary,  6  Oanch,  143.  We  have  seen  that 
states  can  not  give  their  courts  the  right  to  proceed  against  vessels  in 
rem  for  maritime  causes  of  action.  But  since  the  decision  of  the  supreme 
court  of  the  United  States  in  Steamboai  Co.  v.  Chtue,  16  Wall.  522,  com- 
nion-law  suits  are  maintainable  against  ships  of  commerce  for  causes  of 
action  arising  at  common  law.  A  state  has  power  to  annex  to  suits  for  such 
causes  of  action  auxiliary  remedies,  like  foreign  attachment,  for  the  purpose 
of  subjecting  property  of  non-residents  to  the  payment  of  debts  due  her  own 
citizens:  Pemwyer  v.  Neff,  95  U.  S.  723.  A  statute,  therefore,  which  gives  a 
right  to  attach  any  property  of  a  non-resident  to  satisfy  a  judgment  when  ob- 
tained is  valid;  and  under  such  a  law,  creating  a  remedy  by  attachment 
against  all  the  property  of  a  non-resident,  in  an  action  for  a  common -law  tort, 
already  pending,  a  ahip  may,  as  the  law  stands  at  present,  under  the  rulings 
of  the  supreme  court  of  the  United  States,  be  attached  as  part  of  the  estate  of 
the  owner  defendant:  Stewart  v.  Potomac  Ferry  Co.,  12  Fed.  Bep.  296.  But 
can  a  state  give  a  special  lien  upon  a  ship  for  a  cause  of  action  peculiarly  of 
admiralty  cognizance,  and  provide  a  remedy  by  attachment  for  its  enforce, 
ment  spedfioally  and  directly  against  the  particular  vessel  as  a  debtor  or 
offender?  Such  a  statute  was  pronouaced  invalid  in  Stewart  v.  Potomac  Ferry 
Co,,  Id.  307,  in  which  Hughes,  J.,  said:  '*  The  tendency  of  modem  jurispru- 
dence is  very  strongly  towards  a  departure  from  the  rigid  and  inelastic  tenets 
and  methods  of  the  common  law,  in  respect,  at  least,  to  the  instrument  and 
instrumentalities  of  trade  and  commerce;  and  I  think  the  time  is  not  far  dis- 
tant when  the  supreme  court  of  the  United  States  will  find  it  necessary  to 
hold  tliat  the  attachment  laws  of  states,  allowing  attachments  in  rem  to  b« 
served  on  the  general  estates  of  defendants  in  pending  suits,  shall  not  be  con- 
strued to  embrace,  in  suits  brought  for  causes  of  action  clearly  maritime. 


244  EsATiNa  v,  Spink.  [Ohlo^ 

■tetmboat^  ships  and  other  TeaseLi  Actually  engaged  in  thecanying  iiade  on 
the  public  naYigaUe  waten  of  the  United  States  ooyered  by  the  adminUty 
jurisdiction."  In  cases  like  ordinary  suits  at  common  law  between  resi- 
dents, the  defendant's  vessel  may  be  attached  under  a  geneial  attaohmanft 
law  to  secure  the  payment  of  any  judgment  obtained  against  him:  Leon  ▼• 
Ocdcerau,  11  Wall.  187;  SUamboat  Co.  v.  Chase,  16  Id.  522;  BrigCUyqfErie 
V.  Canfifld,  27  Mich.  479. 

The  common-law  remedies  being  inapplicable  to  enforce  a  maritime  lien  by 
a  proceeding  tn  rem,  the  consequence  is,  that  the  original  jurisdiction  to  enforce 
such  a  lien  by  that  mode  of  proceeding  is  exdusive  in  the  district  coorts.  So 
a  party  wishing  to  enforce  such  a  lien  may  proceed  in  rem  in  the  adminklty,  or 
he  may  bring  a  suit  in  penonam.  in  the  same  jurisdiction,  or  he  may  elect  not 
to  go  into  admiralty  at  all,  and  may  resort  to  his  common-law  remedy  in  the 
state  courts,  or  in  the  circuit  court  of  the  United  States,  if  he  can  make  proper 
partiea  to  give  that  court  jurisdiction  of  the  case;  but  such  a  lien  does  not  arise 
under  a  contract  to  build  a  ship,  or  under  a  contract  to  furnish  materials  for 
that  purpose:  The  Bef/ast,  7  Wall.  645;  Leon  v.  Oalcerau,  11  Id.  192;  Edwards 
r.  Elliott,  21  Id.  557;  Steamboat  Co,  y.  Chaae,  16  Id.  534,  where  the  systems  of 
pleading,  the  rules  of  practice,  and  the  rules  of  evidence  in  the  chosen  forum 
are  stated.  A  claimant  having  an  original  admiialty  lien,  who  has  proceeded 
under  a  state  law  in  a  state  court  to  enforce  it,  will  be  deemed  to  have  waived 
such  original  lien,  and  must  rely  solely  on  the  lien  acquired  by  the  seizure 
under  the  state  law:  Dudley  v.  Steamboat  Superior,  Newb.  176;  S.  C,  3  Am. 
Law  Keg.  C22.  But  a  previous  seizure  under  a  process  of  attachment  from 
a  state  court  can  not  prevent  the  admiralty  from  proceeding  tn  rem  to  enforce 
the  ])referrcd  liens  of  which  it  has  exclusive  jurisdiction:  Ceriam  Logs  qflfa- 
hogoity,  2  Sumn.  689;  Taylor  v.  Cdrryl,  24  How.  605. 

7.  Conflict  of  Jurisdiction. — In  Wisconsin  a  domestic  vessel  was  attached  by 
the  marshal  at  the  suit  of  adomestic  creditor.  A  county  aherifi^  without  snlunit- 
tlng  himself  to  the  jurisdiction  of  the  district  court,  answered  that  he  himaelf 
had  previously  attached  the  bame  vessel  by  virtue  of  state  process,  and  prayed 
the  same  to  be  surrendered  into  his  possession.    The  district  court  held  that  as 
the  statute  of  Wisconsin  for  the  collection  of  demands  against  domestic  boats 
and  vessels  conferred  no  lien,  it  had  no  jurisdiction  in  rem;  that  a  vessel 
might  be  seized  under  the  state  law,  and  from  that  time  the  state  conrt  and 
its  officers  would  have  exclusive  jurisdiction  and  control;  and  that  a  creditor 
could  not  in  that  court  obtain  any  control  of  the  property  or  share  in  the 
proceeds.    Miller,  J.,  said:  **It  is  clear  that  the  state  conrt  had  jurisdictiony 
full  and  complete,  of  the  proceeding  referred  to,  and  that  this  veeeel  was 
rightfully  and  legally  attached  by  the  sheriff  of  Racine  county  before  the 
filing  of  the  libel  or  the  service  of  tlie  monition  in  this  case.    If,  as  has  been 
shown,  the  state  law  had  created  a  lien,  whereby  this  conrt  can  acquire 
jurisdiction  by  admiralty  process  in  rem,  then  there  would  be  cononrrent 
jurisdiction  in  both  courts;  and  in  that  case  the  right  to  maintain  the  juris- 
diction must  attach  to  that  tribunal  which  first  exercises  it,  and  takes  pos- 
session of  the  thing  in  litigation.    In  order  to  avoid  a  clashing  of  jurisdiction, 
this  course  is  indispensable,  and  has  been  enforced  in  the  national  courts  in 
numerous  instances.    The  authority  of  the  sheriff  to  attach  and  right  to  hold 
this  vessel  by  virtue  of  the  process  in  his  hands  can  not  be  questioned.     This 
vessel  was  in  the  custody  of  the  law,  and  the  marshal  had  no  right  to  remove 
it  from  the  possession  of  the  sheriff!    In  such  cases  the  marshal  or  sheriff 
should  either  retain  the  process  until  the  first  case  is  disposed  of,  or  should 
rstum  it  not  served  on  account  of  a  previous  attachment  or  levy,  so  as  ts 


Dec.  185a]  Eeatino  t;.  SmnL  245 

aroid  oonflict  of  jnrlMlictigtL    The  proceeding  in  the  state  eottrt  k  In  the 
Batare  of  a  mit  in  rem,  and  the  necenery  result  of  such  ^mw4>eding  or  soil 
is  that  the  thing  in  litigation  is  in  the  costody  of  the  law.    It  most  neces- 
sarily be  in  the  posasasion  or  under  the  control  of  the  court,  and  the  court 
has  a  right  to  order  it  to  be  taken  into  the  custody  of  the  law:  The  Robert 
FdUm,  1  Paine,  020;   Jenntngt  ▼.  Carwn^  4  Cranch,  2;  Peek  t.  Jenneu,  7 
How.  612.    This  is  not  applicable,  howeyer,  to  the  ease  of  the  paramount 
right  of  a  libelant  to  enforce  a  maritime  lien  in  preferenoe  to  an  attachment 
or  execution  against  the  owner  of  a  vessel  for  a  simple  debt.     Goods  or 
Teasels  attached  or  levied  on,  in  pursuance  of  process  issued  from  a  court  of 
competent  jurisdiction,  are  thereby  reduced  into  the  custody  of  the  court 
for  tixe  purpose  of  being  proceeded  against  in  satisfaction  of  the  process,  or 
of  the  debt  or  demand  of  the  plaintiff  or  libelant,  and  can  not  be  taken  from 
the  possession  of  the  officer  making  such  attachment  or  lery  upon  process 
emanating  from  another  and  different  tribunal     In  all  cases  of  concurrent 
jurisdietioo  the  court  which  first  has  possession  of  the  subject  must  deter- 
mine it  conclnsiTely:  Smith  v.  Mclver,  9  Wheat.  532.    The  party  at  whose 
suit  property  is  attached  has  a  constitutional  and  legal  right  to  the  law  of 
the  court  issuing  the  process.    If  according  to  the  law  of  the  court  issuing 
the  process  the  property  attached  is  found  to  belong  to  the  defendant,  the 
plaintiff  claims  from  that  court  through  its  officer  satisfaction  of  his  demand 
oat  of  that  property.     A  court  of  another  goYemment  and  different  jurisdic- 
tion can  not  interpose  between  that  plaintiff  and  the  property  attached,  and 
transfer  the  legal  poesession,  or  vest  the  legal  titie  in  a  third  person,  or  as- 
same  the  exclusive  custody  or  disposition  of  the  property.     When  a  party 
issaes  his  process  and  attaches  property,  he  is  presumed  to  know  his  right  to 
do  so  according  to  the  law  of  the  court  in  which  he  becomes  a  suitor;   and 
that  court  is  bound  to  dispose  of  his  cause  according  to  its  law.    But  to  com- 
pel a  suitor  in  one  court  to  follow  the  property  attached  into  the  forum  of  a 
different  government,  and  there  contend  for  satisfaction  of  his  demand  ac- 
cording to  its  law  and  rulings,  would  be  a  grievance  and  an  abaae  not  to  be 
tolersted;  would  create  a  serious  conflict  of  jurisdiction  which  should  always 
be  avoided  by  well-regulated  courts  and  all  good  citizens.    Goods  and  chat- 
tels in  the  possession  of  a  defendant  are  liable  to  attachment  or  levy;  and 
when  attached  or  levied,  they  are  in  the  custody  of  the  law  and  control  of 
the  court,  and  must  there  remain,  either  in  substance  or  by  the  substitution 
of  a  bond  or  security  according  to  the  law  and  practice  of  tho  court,  until 
the  subject  be  concluaively  determined.    A  court  may  allow  subsequent  and 
additional  attachments  and  levies  on  the  same  property  by  its  own  officer, 
sod  may  permit  goods  attached  or  levied  on  by  one  officer  to  be  replevied  by 
another  officer,  for  it  still  retains  control  of  the  several  writs,  and  tho  cus- 
tody of  the  goods,  either  in  kind  or  by  the  substitution  of  a  bond  in  replevin 
npon  the  service  of  the  writ.    But  this  can  not  be  done  by  different  and  in- 
dependent courts.    Either  one  or  the  other  must  have  custody  of  the  goodss 
both  courts  can  not  have  it;  nor  can  the  officers  of  both  have  the  i)ossession 
of  them.    It  is  altogether  a  mistake  to  suppose  that  a  party  may  claim  goods 
b  the  custody  of  the  law,  and  tnasfer  them  into  the  custody  of  another 
eodrt,  on  the  plea  that  he  has  a  demand  against  them,  or  that  they  have 
bsen  wrongfully  taken  from  him.    He  must  submit  his  ease  to  the  considera- 
tion of  the  court  having  custody  of  the  goods,  o^  wait  until  a  final  disposition  be 
Bsde  of  them,  as  in  the  case  of  conflicting  executions:*'  The  CeleaLine,  1  Biss. 
1;  and  aee  The  Robert  FvUon^  1  Paine,  625;  and  rule  stated  and  cases  cited 
tn  Frseman  an  Exeoutions.  sec.  204.    We  do  not  understand  the  expNasionf 


246        Kkrwhacker  v.  Cleveland  etc  R  R.  Co.     [Ohkx 

used  In  T%e  Robert  FuUon  uid  The  Celeathie,  eupra^  to  mean  thftt  there  is  m 
ooncarrent  jariBdiction  in  rem  in  admiralty  cases  between  the  United  Statee 
oonrts  and  tlie  conrti  of  the  several  states.    If  this  is  what  is  meant»  they  are 
not  in  aooord  with  other  decisions  of  higher  authority  above  stated,  and  are 
not  law:  See  AMrook  ▼.  The  Steamer  GMen  OaUj  Nowb.  304.    But  obeerve 
the  words  need.    In  7^  Robert  FuUon,  eupra,  it  is  said:  '*  If  the  state  law  had 
created  a  lien  whereby  this  coort  can  acquire  jurisdiction  by  admiralty  pro- 
cess in  rem,  then  there  would  be  concurrent  jurisdiction  in  both  courts;"  thai 
in,  the  plaintiff  could,  at  common  law,  sue  and  attach  in  the  state  courts  or 
proceed  in  rem  in  the  admiralty.     And  this  would  be  concurrent  jurisdiction, 
for  that  is  "the  jurisdiction  of  several  different  tribunals,  each  authorised  to 
deal  with  the  same  subject-matter  at  the  choice  of  the  suitor:"  See  Rap.  & 
Law.  Law  Diet.  255.    So  in  both  cases,  it  is  said  that  *'the  proceeding  in  the 
state  court  is  in  the  nature  of  a  suit  in  rem."    Courts  and  legal  writers  have 
often  declared  attachment  to  be  somewhat  analogous  to  a  proceeding  in  rem^ 
or  quoH  such,  or  '*ln  the  nature  of"  that  form  of  action;  and  this  qualifica- 
tion would  seem  to  strip  the  words  of  the  meaning  which  might  be  imputed 
to  them,  viz.,  that  the  state  and  federal  courts  have  a  concurrent  jurisdiction 
in  rem.    The  proceedings  in  the  state  courts,  by  attachment,  etc.,  against  boats 
and  vessek  can  not  be  regarded  as  strictly  proceedings  in  rem.    They  are  pro- 
ceedings devised  for  suing  the  owners:  See  Aahbrook  v.  TTteSteamerOoldenGtUef 
Newb.  904;  and  the  prevailing  idea  of  attachment  is  this:  **If  the  defendant 
appears,  the  cause  becomes  mainly  a  suit  in  penonam,  with  the  added  incident 
that  the  property  attached  remains  liable,  under  the  control  of  the  courts  to 
answer  any  demand  which  may  be  established  against  the  defendant  by  the 
final  judgment  of  the  court.    But  if  there  is  no  appearance  of  the  defendant^ 
and  no  service  of  process  on  him,  the  case  becomes  in  its  essential  nature  a 
proceeding  in  rem,  the  only  effect  of  which  is  to  subject  the  property  attached 
to  the  payment  of  the  demand  which  the  court  may  find  to  be  due  to  the 
plaintiff:  Cooper  v.  Reynolds,  10  WalL  318;  Waples  on  Proceedings  in  Rem, 
sees.  580-605.    On  the  subject-matter  of  this  note,  see,  generally,  notes  to 
Flint  Ritw  SUamboal  Co,  v.  Foeter,  48  Am.  Dec.  272-274;  Teal  v.  Felton,  49 
Id.  358;  Pheips  v.  Brewer,  57  Id.  62;  Myer%  v.  Myers,  58  Id.  692;  BroadweR 
V.  Swigert,  45  Id.  59. 


EfiBWHACEEB   V.   CLEVELAND  ETO.  R.  R  Go. 

[3  Ohio  Btatx,  172.] 
BVSRT  PSBSON  MUST  80  UsE  HIS  OWN  PROPEBTT  AS  NOT  TO  InJUBB  TeEAT  OI 

HIS  Neiohbor. 

Reparation  must  bb  Made  bt  Pebson  Doiko  Lawtul  Thjho,  if  damage 
thereby  befall  another,  and  which  the  former  could  have  avoided  by  rea- 
sonable and  proper  care. 

As  General  Rule,  Action  is  Maintainable  in  All  Cases  where  Damage 
A0CR9BS  TO  Anothsti  by  the  negligence  or  improper  conduct  of  a  person 
in  the  exercise  of  his  peculiar  trade  or  business. 

Owners  ot  Domestio  Animals,  Such  as  Cattle,  Horses,  Hoos,  bto.,  are 
NOT  Prohibited  bt  Laws  ot  Ohio  from  Allowing  Them  to  Run  at 
Large  on  the  range  of  uncultivated  and  unincloeed  lands,  unless  they  aro 
known  to  be  breachy,  unruly,  or  dangerous.  The  common  law  of  Eng- 
land, requiring  the  owners  of  such  animals  to  keep  thenr.  on  their  own  Uiid% 


Dea  1854.]  Eerwhacker  v.  Clevklahd  sia  &  R  Oo.    247 

or  witUn  an  indorare,  ho nerv been  ia  lone  IbOUd}  H bdagMi  only 
inapplicable  to  the  drcomataaoeay  conditiont  and  nigea  of  tfaa  paople^ 
but  inconaiatent  with  the  legiriatinn  of  the  atata. 

OwKEB  or  CjoTut,  HoBSB,  H0Q8,  Ain>  OzHXE  Lnn  wocK  nr  Ono  a 
GuiLTT  OF  Ko  Uhlawvui.  Aor,  or  of  Oiimnav  of  OBinvAKr  Camm 
IN  Kebpuio  or  oaring  for  them,  by  allowing  anoh  ato^  to  ran  al 
large  on  the  range  of  nnindoeed  landa;  for  by  ao  doing  ha  doea  nothing 
more  than  that  which  haa  beenenatomaiy,  and  which  haa  beaBbyoommoo 
oonaent  done  generally  by  the  people  einoe  the  first  Mttlflment  ol  the 
state.  Bat  if  aoch  animala  are  dangeioaa  or  miaefaieroaa,  the  owner  ta 
bound  to  confine  them,  or  be  reapoonble  for  any  lo«  or  damage  other 
persona  may  suffer  thereby. 

Ta£BE  IS  No  Law  in  Ohio  RxQumivo  Airr  Pebbon  to  Fbvoi  oe  Imolosi  urn 
Gboukss.  The  owner  who  leavea  hia  knda  nnindoeed  takea  the  riak  ol 
intmsions  upon  them  from  the  animala  of  other  persona  running  at  large} 
and  the  owner  of  the  animals,  in  allowing  them  to  be  at  large,  takea  all 
the  risk  of  their  loss,  or  of  injury  to  tiiem,  by  nnairoidable  aecidanta 
arising  from  any  danger  into  which  they  may  wander. 

Right  of  Kaiiaoad  Compakt  to  Fbxb,  ExcLuann,  akd  UNMOLnrxo 
Use  OF  rra  Railboad  is  NoTHiiiO  Mobi  thah  Riobt  of  Evkrt  Otheb 
Land  Pbofrzetob  in  the  actual  occupancy  and  use  of  hia  landa,  and  doea 
not  exempt  it  from  the  duty  enjoined  by  law  upon  every  person  so  to  use 
his  own  property  as  not  to  do  any  unneoeasary  and  unavoidable  injury 
to  another. 

Railboad  Companies  in  Ohio  abb  not  Requibbd  bt  Law  to  Fxngb  thbib 
Roads.  But  when  they  leave  their  roads  open  and  unfenced,  they  take 
the  risk,  without  any  remedy  against  the  owner,  of  intrusions  from  ani- 
mals running  at  large,  as  do  other  proprietors  who  leave  their  knds  un- 
indoaed;  and  the  owner  of  the  animals,  in  allowing  them  to  run  at  largSi 
takes  the  risk  of  the  loss  or  injury  to  them  by  unavoidable  accident. 

Uabilitt  to  Make  Repabatiok  fob  Injukt  Caused  bt  Nbougbngb  Sebmi 
TO  Rest  upon  Obioinal  Mobal  Duty  enjoined  upon  every  person  at 
to  conduct  himself,  or  exercise  his  own  rights,  as  not  to  iojure  another, 
and  not  upon  the  consideration  of  any  redprocal  obligation. 

Mxbb  Fact  that  One  Febson  is  in  Wbono  does  not  in  Itself  Dischaboi 
Anotheb  from  the  observanoe  of  due  and  proper  oara  toward  him,  or  the 
duty  of  so  exercising  hia  own  righta  aa  not  to  injure  him  nnnaees* 
sarily. 

IVUBED    FaBTT,  in    CaSE    OF   NBOUOBNOE,   18   WRHOUT    ReMBDT    WHBBB 

Both  a&e  Mdtoallt  in  Fault.  Thii  ia  the  general  rule  eatablished 
by  both  English  and  American  decisions,  but  subject  to  the  following 
qualificationa:  1.  The  injured  party,  although  in  tike  fault  to  some  ex- 
tent, at  the  aame  time  may,  notwithstanding  thia,  be  entitled  to  repan^ 
tkm  in  damagea  for  an  injury  which  could  not  have  been  avoided  by 
ordinary  care  on  hia  part;  2.  When  the  negligence  of  tlie  defendant,  !■ 
a  suit  upon  anoh  ground  of  aotiony  ia  the  proximate  canae  of  the  injury, 
but  that  of  the  plaintiff  only  remote,  consisting  of  some  act  or  omission 
not  ooourring  at  the  time  of  the  injury,  the  action  for  reparation  is  maln- 
ttinable;  8.  Where  a  party  haa  in  hia  custody  or  control  dangerous  im- 
plementa  or  meaoa  of  injury,  and  negligently  uses  them  or  plaoea  them 
hi  a  situation  nnaale  to  othen,  and  another  person,  although  at  the  tiai 


248        KsBWHAcnsR  v.  Cleveland  Era  R  R  Co.     [01ii<\ 


in  tha  commiaaion  of  « tnspMi,  or  otherwise  somewhat  in  the  wrong* 
nstains  aa  injury,  he  may  be  entitled  to  redress;  4.  And  where  the 
pUintiff,  in  the  ordinary  ezerciae  of  hia  own  rights,  allowa  his  property 
to  be  in  an  exposed  and  liaardona  poaition,  and  it  beoomea  injured  by 
the  want  of  ordinaty  caro  and  cantion  on  the  part  of  the  defendant,  he 
^ia  entitled  to  reparation  for  the  reason  that,  although  by  allowing  his 
property  to  be  exposed  to  danger  he  took  upon  himself  the  risk  of  loss 
or  injury  by  mere  accident,  he  did  not  theteby  discharge  the  defendant 
from  the  dnty  of  observing  ordinary  care  and  pmdenoe,  or,  in  other 
words,  voluntarily  incur  the  risk  of  injuiy  by  the  negligence  of  another. 
It  is  Duty  of  Raiusoad  Gompant,  Aoiino  thsouor  its  Aobnts,  to  Usb 
AT  Least  Beasonablx  and  Ordikabt  Ca&s  and  Diligkncb  to  avoid 
all  unnecessary  injury  to  animals  found  accidentally  in  the  way  of  its 
train  upon  an  unindosed  road,  in  a  country  where  domestic  animals  are 
allowed  to  run  at  larRe. 

FiBST    AKD    PaRAMOITNT   Ob/ECT   OF   ATTBNTIOH    OF   AOKKTB   OF   RaILROAD 

Company  is  a  proper  regard  for  the  safety  of  the  persons  and  property  in 
their  charge  on  the  train.  In  this  they  are  held  to  a  high  degree  of  care 
and  diligence;  and  with  a  duo  regard  to  this  paramount  duty,  they  are 
bound  to  the  exercise  of  what,  in  that  peculiar  employment,  woald  be 
ordinary  and  reasonable  care  to  avoid  unnecessary  injuiy  to  animals  cas* 
nally  going  upon  their  unindosed  road;  and  the  company  is  liable  in 
damages  to  the  owner  for  any  injury  to  animals  arising  from  neglect  of 
such  care. 

Writ  of  error  to  the  court  of  coiniuon  pleas  of  Morrow 
county.  Trespass  on  the  case,  declared  on  by  plaintiff  in  error 
in  court  below  for  alleged  negligence  and  misconduct  of  defend- 
ant's agents  in  conducting  and  running  a  locomotiye  and  cars 
on  the  defendant's  railway  track,  whereby  six  hogs,  plaintiff's 
property,  were  killed.  Defendant  pleaded  the  general  issue. 
It  appeared  from  the  evidence  on  the  trial  of  the  cause  that 
plaintiff  resided  on  his  farm  in  Morrow  county;  that  defendant's 
railroad,  extending  from  Columbus  to  Cleyeland,  passed  through 
his  farm;  and  that  on  April  17,  1851,  a  train  of  cars,  managed 
by  defendant's  agents,  in  passing  upon  such  road  through  the 
said  farm,  ran  upon  plaintiff's  hogs,  which  had  wandered  off 
upon  the  railway  track,  and  killed  them.  Plaintiff  offered  evi- 
dence tending  to  prove  that  when  the  hogs  were  killed  the  train 
was  passing  at  the  usual  and  ordinary  speed;  that  from  the  sit- 
uation of  the  railroad  at  that  locality,  and  the  relative  situation 
and  locality  of  the  hogs  and  the  train  of  cars  on  the  railroad  at 
the  time  of  the  occurrence,  the  defendant's  agents  in  control  of 
the  train  could  easily  and  readily  have  so  checked  the  speed 
of  the  cars  as  to  have  permitted  the  plaintiff's  hogs  to  have  es- 
caped from  the  railroad  track  without  injury;  but  that  the  agents 
of  defendant  did  not  check  the  speed  of  the  train,  and  contin- 
ued to  run  the  same  with  unabated  speed,  by  reason  whereof 


Dec  1854.]  Eebwhackkb  v.  CLBVELAn>  Kra  R  &  Oa    249 


hoga  -were  unabld  to  escape,  and  were  killed.  Defendant, 
on  the  oontruyj  offered  evidence  tending  to  proye  that  when 
the  killing  oocnrred  the  agents  of  defendant  did  check  the 
speed  of  the  train,  which  was  at  the  time  running  at  its  usual 
and  ordinary  speed,  and  that  the  usual  signal  was  giyen  to  check 
up,  before  the  cars  ran  over  the  hogs.  The  nature  of  the  charge 
refused,  and  the  substance  of  the  ones  given,  appear  in  the 
opinion.  Nothing  is  said  in  the  case  inconsistent  with  the  sup- 
position that  the  hogs  were  not  killed  at  a  public  or  priTsta 
crossing. 

S,  J.  Zxrkwood  and  B.  Bums,  for  the  plaintiff  in  error. 

Finch  and  Olds,  and  H.  B.  Carrington^  for  the  defendant* 

By  Court,  Bastlet,  J.  A  maxim  of  the  law,  tested  bj  the 
wisdom  of  centuries,  exacts  of  every  person,  in  the  enjoyment  of 
his  property,  the  duty  of  so  using  his  own  as  not  to  injure  the 
property  of  his  neighbor.  It  is  in  accordance  with  this  principle 
that  it  has  been  held  that  though  a  person  do  a  lawful  thing, 
yet  if  any  damage  thereby  befalls  another,  which  he  could  have 
aToided  by  reasonable  and  proper  care,  he  shall  make  repara- 
tion. Hence  the  general  rule,  that  in  all  cases  where  damage 
accnies  to  another,  by  the  negligence  or  improper  conduct  of 
a  person  in  the  exercise  of  his  peculiar  trade  or  business,  an  ac- 
tion is  maintainable;  Shielis  v.  Blackbume,  1  H.  Black,  158; 
Moore  v.  ifor^^,  Cowp.  480;  BuUer  N.  P.  73;  Broom's  Legal 
Uazims,  248. 

How  far  this  doctrine  is  applicable  to  railroad  companies  in 
the  exercise  of  their  peculiar  business  is  the  question  presented 
in  the  case  before  us.  The  court  below  refused  to  charge  the 
jnry,  on  request,  that  if  they  found  from  the  evidence  that  the 
defendant's  agents  could,  in  the  use  of  ordinary  care,  have  easily 
and  safely  avoided  the  destruction  of  plaintiff's  property,  by 
checking  the  speed  of  the  train,  the  defendant  would  be  liable; 
bntonthe  contrary,  instructed  the  jury  that  as  the  hogs  were 
improperly  on  the  railroad,  the  defendant's  agents  were  not 
bound  to  check  the  ordinary  and  usual  speed  of  the  cars,  or  use 
any  means  or  caution  to  save  the  plaintiff's  property.  The  po- 
sition taken  by  the  court  below,  assuming  the  aninuds  to  have 
been  tmlawfully  on  the  railroad,  would  justify  not  only  a  wanton 
disregard  of  the  plaintiff's  property,  but  even  an  intentional  de- 
struction of  it  by  defendant's  agents,  providing  it  occur  while 
'Qi^ng  the  train  over  the  railroad  in  the  ordinary  way,  and  at 
the  uBoal  speed. 


250         Kerwhaceer  v.  Cleveland  Era  R  R  Oo.     [Ohio, 

Railroad  companies  have  become  important  and  useful  pablio 
agents,  affording  vast  facilities  for  trade  and  trayely  and  pro- 
ducing extensive  results  upon  the  social  condition,  as  well  as 
the  business  of  the  country.  But  while  it  is  important  that 
thej  be  fully  protected  in  the  appropriate  and  legitimate  exer- 
cise of  their  powers,  it  is  just  that  private  individuals  be  secured 
from  injuiy,  or  invasion  of  their  rights,  by  the  mode  or  manner 
in  which  railroad  companies  exercise  their  peculiar  functions. 
The  obligation  to  make  reparation  for  damage  done  to  another 
by  a  person  in  the  improper  manner  in  which  he  exercises  his 
own  appropriate  employment  often  requires  great  nicety  of  dis- 
crimination; and  the  application  of  this  injunction  to  railroad 
companies  in  their  peculiar  business,  so  widely  differing  from 
the  ordinary  pursuits  of  persons,  must  frequently  become  a  mat- 
ter of  no  inconsiderable  difficulty. 

It  is  claimed  on  the  part  of  the  defense  in  this  case:  1.  That 
it  is  the  duty  of  the  owner  of  domestic  animals  to  keep  them  on 
his  own  lands  or  within  his  own  inclosures;  and  that  if  they 
wander  from  his  own  lands  and  get  upon  the  uninclosed  lands 
of  his  neighbors,  they  will  be  unlawfully  there,  and  the  owner 
guilty  of  a  trespass;  2.  That  the  plaintiff  being  in  fault,  and 
guilty  of  an  unlawful  act  in  allowing  his  hogs  to  escape  from 
his  own  lands  and  get  upon  the  i-ailroad,  he  can  not  maintain 
an  action  for  the  value  of  the  animals  killed  by  the  defendant 
while  in  the  prosecution  of  its  lawful  business,  even  although 
the  agents  of  the  company  might  have  readily  and  safely  avoided 
injuiy  to  the  animals  by  the  exercise  of  ordinary  care  and  pru- 
dence in  the  management  of  the  train  of  cars. 

The  doctrine  that  the  owner  of  cattle,  hogs,  horses,  etc.,  is 
bound  to  keep  them  on  his  own  lands,  or  within  an  indosure, 
•and  that  he  becomes  a  wrong-doer  if  any  of  them  escape  or 
stray  off  upon  the  lands  of  another  person,  although  uninclosed, 
as  said  to  be  derived  from  the  common  law  of  England,  and  to 
be  in  (orce  in  this  state.  At  an  early  period  in  this  state  the 
common  law  of  England  and  the  statutes  of  that  country  of  a 
general  nature,  in  aid  of  the  common  law,  passed  prior  to  the 
fourth  year  of  King  James  I.,  were  adopted  by  legislative  enact- 
ment. But  this  act  was  repealed  by  the  general  assembly  of 
this  state  on  the  second  of  Januaiy,  1806,  since  which  time  the 
common  law  of  England  has  had  no  force  in  this  state  derived 
from  legislative  adoption.  But  having  been  adopted  in  the 
-original  states  of  the  Union  and  introduced  into  Ohio  at  an  early 
{>eriod,  the  common  law  has  continued  to  be  recognized  as  the 


Dea  1854.]  Eebwhackxr  v.  Glevkland  via  R  &  Ox    251 

rale  of  dedmon  in  onr  coxxria^  in  the  a1)eenoe  of  legislatiTe  en- 
actments,  so  far  as  its  rules  and  principles  appeared  to  be  based 
on  sound  reason,  and  applicable  to  our  condition  and  circum* 
stances.  The  common  law,  therefore,  has  no  force  in  Ohio, 
except  so  far  as  it  derives  authority  from  judicial  recognition  in 
the  practice  and  course  of  adjudication  in  our  courts;  and  this 
extends  no  further  than  it  illustrates  and  explains  the  rules  of 
right  and  justice  as  applicable  to  the  drcumstanoes  and  institu- 
tions of  the  people  of  the  state.  In  the  case  of  Sergeant  y.  Stein^ 
berger,  2  Ohio,  305  [15  Am.  Dec.  553],  the  supreme  court  held 
that  the  common  law,  so  far  as  it  related  to  the  subject  of  the 
estate  by  joint  tenancy,  would  not  be  recognized  in  Ohio,  upon 
the  ground  that  the  ju«  accrescendi  was  not  founded  in  principles 
of  natural  justice,  nor  in  any  reasons  of  policy  applicable  to  oux 
state  of  society  or  institutions;  but  on  the  contrary,  was  adverse 
to  the  understandings,  habits,  and  feelings  of  the  people. 

Admitting  the  rule  of  the  common  law  of  England  in  relation 
to  cattle  and  other  live-stock  running  at  large  to  be  such  as 
stated,  the  question  arises  whether  it  is  applicable  to  the  condi- 
tion  and  circumstances  of  the  people  of  this  state,  and  in  ac- 
cordance with  their  habits,  understandings,  and  necessities.  If 
this  be  the  law  in  Ohio  now,  it  has  been  so  since  the  first  settle- 
ment of  the  state;  and  every  person  who  has  allowed  his  stock 
to  run  at  large  and  go  upon  the  uninclosed  grounds  of  others 
has  been  a  wrong-doer,  and  liable  to  an  action  for  damages  by 
every  person  on  whose  lands  his  creatures  may  have  wandered. 
TVhat  has  been  the  actual  situation  of  affairs^  and  the  habits, 
understandings,  and  necessities  of  the  people  of  this  state  from 
its  first  settlement  up  to  the  present  period^  in  this  respectt 
Cattle,  hogs,  and  all  other  kinds  of  live-stock  not  known  to  be 
breachy  and  unruly  or  dangerous,  have  been  allowed  at  all 
times  and  in  all  parts  of  the  state  to  run  at  large  and  graze  on 
the  range  of  uncultivated  and  uninclosed  lands.  And  this  pre- 
vails not  only  throughout  the  country,  but  also  in  the  villages 
and  cities,  except  where  it  may  be,  to  a  limited  extent,  re- 
strained by  local  municipal  ordinances.  For  many  years,  in 
the  early  settled  jmrts  of  the  state,  the  people  were  unable,  and 
at  the  present  time  in  some  parts  of  the  state  they  are  yet  un- 
able, to  clear  and  inclose  more  ground  than  that  actually  needed 
for  cultivation.  And  there  is  not  at  this  time  inclosed  pasture- 
lands  sufficient  to  confine  the  one  half  of  the  live-stock  in  the  state. 
Even  a  statutory  enactment,  imposing  the  severest  criminal  pun- 
ishment for  permitting  these  animals  to  run  at  large,  could  not 


S6S        Eerwhackeb  v.  Glevelaiid  etc.  &  B.  Oa     [Ohia 

be  enforced  without  either  slaughtexing  or  driving  a  large  por- 
tion of  them  from  the  state.  It  has  been  the  habit  of  the  people 
to  inclose  their  grounds  for  the  purpose  of  cultivation,  and  to 
fence  against  the  animals  running  at  large.  And  it  has  been 
only  within  a  few  years,  and  that  only  in  the  better  improved 
parts  of  the  state,  that  uncultivated  pasture-grounds  have  been 
inclosed.  And  this  has  not  been  done  because  the  owners  con- 
sidered themselves  required  by  law  to  confine  their  stock  within 
inclosures,  but  for  their  own  convenience  and  advantage.  So 
that  it  has  been  the  general  custom  of  the  people  of  this  state, 
since  its  first  settlement,  to  allow  their  cattle,  hogs,  horses,  etc., 
to  run  at  large  and  range  upon  the  unindosed  lands  of  the 
neighborhood  in  which  they  are  kept;  and  it  has  never  been  un- 
derstood by  them  that  they  were  tort-feasors,  and  liable  in  dam- 
ages for  letting  their  stock  thus  run  at  large.  The  existence  or 
enforcement  of  such  a  law  would  have  greatly  retarded  the  set- 
tlement of  the  countiy,  and  have  been  against  the  policy  of 
both  the  general  and  the  state  governments. 

The  common  understanding  upon  which  the  people  of  this 
state  have  acted  since  its  first  settiement  has  been  that  the  owner 
of  land  was  obliged  to  inclose  it,  with  a  view  to  its  cultivation; 
that  without  a  lawful  fence  he  could  not,  as  a  general  thing, 
maintain  an  action  for  a  trespass  thereon  by  the  cattle  of  his 
neighbor  running  at  large,  and  that  to  leave  uncultivated  lands 
uninclosed  was  an  implied  license  to  catUe  and  other  stock  at 
large  to  traverse  and  graze  them.  Not  only,  therefore,  was 
this  alleged  rule  of  the  common  law  inapplicable  to  the  circum- 
stances and  condition  of  the  people  of  this  state,  but  inconsist- 
ent with  the  habits,  the  interests,  necessities,  and  understanding 
of  the  people. 

Besides  this,  the  legislation  of  the  state  has  put  at  rest  all 
question  as  to  the  existence  of  any  such  rule  in  Ohio.  The 
proviso  in  the  first  section  of  the  statute  in  relation  to  strays 
recognizes  the  fact  of  animals  being  allowed  to  run  at  large 
upon  the  range  of  uninclosed  lands,  in  the  following  language: 
"  Provided,  that  no  person  shall  be  allowed  to  take  up  any 
neat  cattle,  sheep,  or  hogs,  after  the  first  day  of  April  and  before 
the  first  day  of  November,  annually;  nor  shall  any  compensation 
or  fees  be  allowed  to  any  person  for  taking  up  any  stray  animal 
from  the  range  where  such  animal  usually  runs  at  large,"  etc.: 
Swan's  B.  S.  883. 

The  statute  regulating  inclosures  and  providing  against  treo* 
passing  animals,  see  Swan's  B.  S.  426,  fixes  the  requisites  of  a 


dkjc  1854]  Eebwhackeb  v.  Clkveland  Era  R  R  Ca    2(8 

iawfal  fenoe;  and  in  the  Borenih  section  proyides  the  lemedy^ 
Yihssk  Uie  owner  or  occupant  shall  feel  himself  aggrioTed  bj  the 
animals  of  another  person  which  run  at  large  brealdng  into  his 
inclosnie;  and  the  twelfth  section  of  the  same  statute  provides 
tliat  when  the  f ence-Tiewers  shall  ascertain  anj  animals  to  be 
habituallj  breachj  and  unruly,  notice  thereof  shall  be  given 
to  the  owner  or  keeper,  who  shall  be  required  thereafter,  un- 
der  a  penalty,  to  restrain  such  animals  from  running  at  laige,  etc. 

This  legislation  is  wholly  inconsistent  with  the  doctrine  that 
it  is  unlawful  for  the  owner  of  animals  to  allow  them  to  run  at 
huge,  and  that  he  is  liable  in  damages  for  a  trespass  in  case  they 
go  upon  the  uninclosed  grounds  of  another.  Why  the  provision 
to  lestrain  breachy  and  unruly  animals  from  running  at  large,  if 
it  were  the  law  of  the  state  that  the  owner  should  allow  none  of 
his  stock  to  be  at  laige,  whether  breachy  or  not?  And  why  the 
proTision  for  the  assessment  of  damages  for  injury  by  trespassing 
animals,  made  to  depend  upon  the  contingency  of  a  lawful 
fence?  If  the  owner  of  trespassing  animals  were  liable  in  dam- 
ages, whether  the  lands  of  the  injured  party  were  inclosed  or 
not,  the  provision  making  the  assessment  of  damages  to  depend 
on  the  existence  of  a  lawful  fence  would  seem  to  be  unnecessary, 
if  not  wholly  absurd. 

It  was  adjudged  by  the  supreme  court  of  Connecticut,  in  the 
case  of  Sludwell  v.  BUch,  U  Conn.  293,  that  the  rule  of  the 
English  common  law,  making  it  the  duty  of  the  owners  of  cattle 
to  restrain  them,  and  subjecting  him  to  liability  in  damages  for 
suffering  them  to  go  upon  the  lands  of  another,  whether  inclosed 
or  not,  does  not  prevail  in  that  state,  being  inconsistent  with 
the  situation  of  the  countiy  from  the  time  of  the  first  settlement 
of  the  state,  and  also  repugnant  to  the  legislative  enactments  of 
the  state  relating  to  that  subject.  On  the  contrary,  it  was  held 
that  the  owners  of  the  lands  were  obliged  to  inclose  them  by  a 
sufficient  fence  before  they  could  maintain  an  action  for  trespass 
done  thereon  by  the  cattie  of  another.  The  same  doctiinc  was 
laid  down  by  Judge  Swift,  see  1  Swift's  Dig.  525,  and  also 
recognized  in  the  case  of  Barnum  v.  Vandusen,  IG  Conn.  200. 

It  has  been  said  that  in  South  Carolina  a  sufficient  inclosure  was 
necessary  to  protect  the  planter  against  the  inroads  of  horses, 
cattle,  and  hogs,  whose  right  to  go  at  large  in  the  range  ia 
derived  from  the  common  law  of  South  Carolina:  Fripp  v.  IIa9eU, 
1  Strobh.  L.  176. 

It  was  held  by  the  supreme  court  of  the  state  of  Illinois,  in 
Uie  case  of  Seely  v.  Feien,  5  Qilm.  130,  that  the  common  law 


254        Kebwhackeb  v.  Cleveland  eic  R  K  Co.     [Ohio^ 

requiring  the  owner  of  cattle,  hogs,  etc.,  to  keep  them  on  hia 
own  land  has  never  been  in  force  in  niinoie;  that  there  is  no 
general  law  in  that  state  prohibiting  cattle  from  running  at  large; 
and  that  in  order  to  maintain  an  action  for  the  trespass  of  cattle 
on  laud,  the  owner  of  the  land  must  have  it  surrounded  by  a 
sufficient  fence.  The  subject  was  fully  investigated  in  this  case, 
and  the  ground  on  which  the  decision  is  placed  is  that  the 
common-law  rule  is  inapplicable  to  the  circumstances  and  con- 
dition of  the  people,  and  also  inconsistent  with  the  legislation 
of  the  state. 

It  is  true  that  the  contnuy  doctrine  has  been  held  in  a  number 
of  the  other  states,  but  the  grounds  upon  which  it  is  placed  do 
not  appear  to  have  any  real  practicable  application  to  the  con- 
dition of  things  in  this  state.  It  is  said  that  the  purpose  of 
fences,  in  the  view  of  the  common  law,  is  to  keep  the  owner's 
cattle  in,  and  not  the  cattle  of  others  out:  Tonaioanda  R,  B. 
Co.  V.  Manger,  5  Denio,  255  [49  Am.  Dec.  239].  The  reason 
of  a  law  should  never  rest  in  mere  abstraction,  without  any  appli- 
cation to  the  practical  affidrs  of  society;  and  it  is  a  maxim  that 
when  the  reason  of  a  law  ceases,  the  law  itself  ceases.  Fences 
have  two  sides  to  them,  and  the  real  and  practical  purpose  of 
fences  in  this  state  has  been  not  only  to  protect  the  inclosurea 
of  the  proprietor  from  the  intrusion  of  animals  without,  but 
also  to  confine  such  as  may  be  kept  within. 

If  an  action  for  damages  be  maintainable  for  every  instance 
in  which  the  cattle  and  other  live-stock  of  a  person  go  upon  the 
uninclosed  lands  of  another  without  express  license,  more  than 
nine  tenths  of  the  business  men  of  the  state  become,  for  this 
cause,  tort-feasors  every  day  of  the  year,  and  liable  to  suit  for 
damages.  It  will  not  do  to  say,  that  although  such  right  of 
action  existed,  yet  that  it  would  be  restrained  by  the  rule,  Be 
minimis  non  curat  lex.  This  would  be  a  refinement  resulting  in 
a  distinction  without  a  difierence.  As  there  can  be  no  wron^ 
without  a  remedy,  if  there  could  be  no  recovery  the  right  of 
action  in  reality  could  not  exist. 

This  doctrine  of  the  common  law  may  be  suitable  to  an  old 
and  highly  cultivated  country,  where  all  the  lands  except  the 
public  highways  and  commons  are  under  indoeure,  but  it  has 
no  suitable  and  proper  application  in  Ohio. 

There  is  no  law  in  Ohio,  therefore,  requiring  the  owner  of 
cattle,  horses,  hogs,  and  other  live-stock  to  keep  them  on  his 
own  land  or  within  an  inclosure,  and  when  he  allows  them  to 
he  at  large  on  the  range  of  uninclosed  lands,  he  can  not  be 


Dec  1854.]  Kcbwhackeb  v.  Cleveland  Era  IL  R  Co.    255 

aid  to  act  onlawfiilljy  or  to  be  guilty  of  an  omission  of  onli- 
Oiuy  care  in  the  keeping  or  charge  of  his  stook,  for  bj  so  doing 
he  does  nothing  more  than  that  which  has  been  customary,  anJ 
which  has  been  by  common  consent  done  generally  by  the  peo> 
pie  since  the  first  settlement  of  the  state.  It  is  true  that  ex- 
traordinaiy  diligence,  or  the  highest  degree  of  care  in  the  man- 
agement of  his  stock,  would  require  the  owner  to  confine  it  in 
stables,  or  within  sufficient  inclosures;  but  under  ordinary  cir- 
cumstances, all  that  can  be  required  of  a  person  in  the  manage- 
ment of  his  property  is  to  exercise  that  degree  of  care  and  dili- 
gence which  men  of  common  prudence,  or  in  other  words, 
which  men  in  general,  exercise  in  taking  care  of  their  own 
prpperiy. 

This  right,  however,  to  allow  animals  to  run  at  large  has  its 
qualifications.  The  owner  of  animals  known  to  be  mischievous 
or  dangerous  is  bound  to  confine  them;  and  if  he  omit  this  duty, 
he  is  responsible  for  any  loss  or  damage  which  any  other  person 
may  suffer  thereby.  And  whenever  the  owner  is  notified  of  the 
fact  that  any  of  his  creatures  at  lazge  have  become  troublesome 
by  meand  of  breachy,  unruly,  or  dangerous  habits,  it  is  his 
dniy  to  take  them  up  without  delay  and  confine  them.  And  the 
right  to  allow  animals  inoffensive  in  their  habits  to  run  at  large 
does  not  imply  a  right  in  the  owner  to  keep  his  creatures  upon 
another's  unindosed  lands  against  his  consent.  On  the  con- 
trary, the  owner  of  the  lands  may  drive  them  off  as  often  as 
they  intrude  upon  his  possessions,  using  no  unnecessary  vio- 
lence; or  he  may  at  any  time  exclude  them  permanently  by 
the  erection  of  a  fence  or  other  means  of  inclosure.  And 
although  there  is  no  law  in  this  state  requiring  any  person  to 
fence  or  inclose  his  grounds,  yet  the  owner  who  leaves  bis  lands 
unindosed  takes  the  risk  of  intrusions  upon  his  grounds  from 
the  animals  of  other  persons  running  at  large;  and  the  owner 
of  the  animals  in  allowing  them  to  be  at  large  takes  all  the  risk 
of  their  loss,  or  of  injury  to  them  by  unavoidable  accidents 
arising  from  any  danger  into  which  they  may  wander. 

Applying  the  views  here  expressed  to  the  case  under  consid- 
eration, upon  what  ground  does  the  plaintiff's  claim  to  repara- 
tion in  damages  rest?  Where  there  is  wanton,  malicious,  or 
intentional  injury  done  to  a  person,  there  is  usually  no  diffi- 
culty in  determining  the  liability  of  the  wrong-doer;  but  where 
a  party  suffering  loss  seeks  redress  upon  the  grdund  of  mere 
n^ligence,  or  the  omission  of  ordinary  care  on  the  part  of 
another  in  the  conduct  or  manner  of  prosecuting  his  lawful 


256        EjcBWHACKEft  V.  Cleyxland  Exa  &  &  Oa     [Qbio^ 

business,  there  are  often  difficulties  requiring  close  attention, 
and  sometimes  the  utmost  nicely  of  discrimination. 

Admitting  the  plaintiff's  right  to  allow  his  domestic  animals 
to  run  at  large  under  ordinoxy  circumstances,  it  is  claimed  that 
the  defendant,  haying  appropriated  its  railroad  track  to  the  ez- 
clusive  purpose  of  running  its  locomotives  and  tcains,  and  having 
the  undoubted  right  to  pass  over  its  road  unmolested,  at  usual 
railroad  speed,  the  plaintiff's  hogs  hod  no  right  to  be  on  the 
track,  and  were  wrongfully  there;  and  that  the  plaintiff,  in 
allowing  them  to  be  at  large  in  the  vicinity  of  the  railroad, 
where  danger  was  apparent,  was  in  fault;  and  that  the  injury, 
therefore,  having  been  caused,  in  part  at  least,  by  the  n^ligence 
of  the  plaintiff,  he  can  not  maintain  the  action. 

The  defendant's  right  to  the  exclusive  and  unmolested  use  of 
its  railroad  track  is  undeniable;  and  it  must  be  conceded  that 
the  plaintiff  had  no  right  to  have  his  hogs  on  the  track,  and  that 
they  were  there  improperly.  But  how  came  they  there?  If  the 
plaintiff  had  placed  tiiem  there,  or  knowing  them  to  be  there 
had  omitted  to  drive  them  off,  he  would  have  been,  perhaps, 
precluded  from  all  claim  to  compensation;  but  it  would  appear 
that,  in  the  exercise  of  the  ordinaiy  privilege  of  allowing  these 
animals  to  be  at  large,  by  the  plaintiff,  they  accidentally,  and 
without  his  knowledge,  wandered  upon  the  railroad  track.  The 
right  of  the  defendant  to  the  free,  exclusive,  and  unmolested 
use  of  its  railroad  is  nothing  more  than  the  right  of  every  other 
land  proprietor  in  the  actual  occupancy  and  use  of  his  lands, 
and  does  not  exempt  it  from  the  duty  enjoined  by  law  upon 
every  person  so  to  use  his  own  property  as  not  to  do  any  unnec- 
essary and  avoidable  injury  to  another.  Finding  the  animals 
upon  the  track,  it  was  the  right,  and  indeed  the  duty,  of  the 
agents  of  the  company  to  drive  them  off,  but  not  to  injure  or 
destroy  them  by  unnecessary  violence.  The  owner  of  a  free- 
hold estate  in  lands,  inclosed  by  a  lawful  fence,  has  the  right  to 
expel  trespassing  animals  which  have  broken  through  his  inclos- 
ure;  but  in  doing  so  he  would  become  liable  in  damages  to  the 
owner  of  the  animals,  if  they  be  injured  by  the  use  of  unneces- 
sary and  improper  means;  although  the  latter  would  be  bound 
to  make  reparation  for  the  injuiy  done  to  the  former  by  the  tres- 
passing animals.  It  is  not  pretended  that  the  railroad  of  the 
defendant  was  under  inclosure,  through  which  the  plaintiff's 
creatures  had  broken.  It  is  true,  there  is  no  law  in  Ohio 
requiring  railroad  companies  to  fence  their  roads.  But  wheu 
they  leave  their  roods  open  and  unfenced,  they  take  the  risk  of 


Dec.  1854.]  Kjcbwhacker  u  CLKVELAm)  sra  R  R  Go.    257 

intrusions  from  animals  running  at  large^  as  do  other  proprie- 
tors wlio  leaye  their  lands  nninclosed.  If  a  farmer  undertake  to 
cultivate  his  ground  in  com  without  inclosing  it,  he  would 
doubtless  be  troubled  by  the  destructiye  intrusions  of  cattle 
running  at  laige,  but  without  a  sufficient  fence  he  could  not 
maintain  an  action  against  the  owner  of  the  animals  for  the  tres- 
pass. Had  the  defendant  protected  its  railroad  by  a  sufficient 
fence  and  cattle-guards,  and  the  plaintiff's  animals  broken  over 
the  incloBure  and  gone  upon  the  railway  'track,  the  plaintiff 
would  no  doubt  have  been  liable  to  the  company  in  damages  for 
the  trespass  of  the  animals.  The  defendant  constructed  its 
railroad  with  a  knowledge  that  it  was  the  common  custom  of 
the  country  to  allow  domestic  animals  to  run  at  large  upon  the 
uninclosed  grounds  of  the  neighborhood;  and  without  the  pre- 
caution of  inclosing  its  railroad,  the  company  could  not  sustain 
an  action  against  the  owner  of  such  -  animals  at  large  as  might 
happen  to  wander  upon  the  track  of  the  road.  The  owner  of 
the  animals,  in  allowing  them  to  run  at  large,  takes  the  risk  of 
the  loss  or  injury  to  them  by  unavoidable  accident;  and  the  com- 
pany, in  leaving  its  road  unprotected  by  in  closure,  runs  the  risk 
of  the  occasional  intrusions  of  such  animals  upon  its  road,  with- 
out any  remedy  against  the  owner. 

The  question  in  the  case,  however,  is,  What  degree  of  care,  if 
any,  was  the  defendant  bound  to  use,  under  the  circumstances, 
to  avoid  injury  to  the  plaintiff's  property?  That  the  plaintiff 
was  in  the  exercise  of  the  highest  degree  of  care  over  this  prop- 
erty, can  not  be  fairly  claimed.  A  very  prudent  man  would  not 
allow  his  stock  to  run  at  large  in  the  immediate  vicinity  of  an 
uninclosed  railroad,  where  the  animals  might  accidentally  and 
without  his  knowledge  wander  off  upon  the  railroad  track.  The 
plaintiff,  therefore,  being  in  one  respect  in  fault,  it  is  claimed 
that  he  can  not  maintain  his  action,  even  although  the  defendant 
could  have  avoided  injury  to  the  animals  by  the  use  of  ordinary 
care  and  caution. 

It  is  true  that  a  party  in  an  action  for  negligence  can  not 
recover  damages  which  have  resulted  from  his  own  negligence 
and  want  of  care;  and  it  has  been  held  that  the  party  seeking 
the  redress  must  not  only  show  his  adversaiy  to  be  in  the  wrong, 
but  also  must  be  prepared  to  prove  that  no  negligence  of  his 
own  has  tended  to  increase  or  consummate  the  injury.  But  the 
doctrine  that  where  both  parties  are  in  fault  the  piirty  sustain- 
ing the  injury  can  not  recover,  is  subject  to  several  very  material 
qualifications.    An  effort  has  been  made,  however,  to  sustain 

Am.  Vma,  Vol.  LXn— 17 


268         KxRWHACKSR  V.  Cleveland  sra  R  R  Go.     [Ohio^ 

its  genenl  appUoation  upon  the  idea  of  a  mutuality  of  obliga- 
tion to  obserre  due  care  and  caution,  and  that  n^ligence  bj 
one  person  absolyes  another  from  the  duty  of  care  and  dili- 
gence toward  him.  In  the  case  of  Tbnawanda  /?.  R.  Co,  ▼. 
Munger,  5  Denio,  266  [49  Am.  Deo.  289],  the  court  said:  "  Neg- 
ligence is  a  yiolation  of  the  obligation  which  enjoins  care  and 
caution  in  what  we  do.  But  this  duty  is  relative,  and  where  it 
has  no  existence  between  particular  parties,  there  can  be  no  such 
thing  as  negligence  in  the  legal  sense  of  the  term.  A  man  is 
under  no  obligation  to  be  cautious  and  circumspect  toward  a 
wrong-doer."  This  idea,  however,  that  the  liability  in  damages 
for  negligence  depends  upon  any  mutuality  of  obligation,  is 
more  fanciful  than  real.  Puffendorf  places  the  right  to  repara- 
tion upon  the  ground  of  an  original  moral  duty,  in  language 
both  graphic  and  expressive,  as  will  appear  by  the  following 
extract : 

"  In  the  series  of  absolute  duties,  or  such  as  oblige  aU  men 
antecedently  to  any  human  institution,  this  seems  with  justice 
to  challenge  the  first  and  noblest  place,  that  no  man  hurt  another; 
and  in  case  of  any  hurt  or  damage  done  by  him,  he  &il  not  to 
make  reparation.  For  this  duty  is  not  only  the  widest  of  all  in 
its  extent,  comprehending  all  men,  on  the  bare  account  of  their 
being  men,  but  it  is  at  the  same  time  the  most  easy  of  all  to  be 
performed,  consisting,  for  the  most  part,  purely  in  a  negative 
abstinence  from  acting,  except  that  its  assistance  is  sometimes 
necessary  in  restraining  the  laws  and  passions,  when  they  fight 
and  struggle  against  reason,  amongst  which  rebellious  desires, 
that  boundless  regard  which  we  sometimes  show  to  our  own 

j  private  advantage,  seems  to  be  the  principal  and  the  ringleader. 

Besides,  it  is  the  most  necessary  of  human  duties,  inasmuch  as  a 
life  of  society  can  not  possibly  be  maintained  without  it.  For 
suppose  a  man  to  do  me  no  good,  and  not  so  much  as  to  trans- 
act with  me  in  the  common  offices  of  life,  yet  provided  he  do 

I  me  no  harm,  I  can  live  with  him  in  some  tolerable  comfort  and 

I  quiet.  ♦  ♦  ♦ 

"  It  is  beyond  doubt  that  he  who  oSeis  damage  to  another 
out  of  an  evil  design  is  bound  to  make  reparation,  and  that  to 
the  full  value  of  the  wrong  and  of  all  the  consequences  flowing 
from  it.  But  those  likewise  stand  responsible  who  commit  an 
act  of  trespass,  though  not  designedly,  yet  by  such  piece  of  neglect 
as  they  might  easily  have  avoided.  For  it  is  no  inconsiderable 
part  of  social  duty  to  manage  our  conversation  with  such  cau- 
tion and  prudence  that  it  do  not  become  terrible  or  pemioioiif 


Dec  1854]  Exrwhackeb  v.  Cleveland  Era  &  R  Oa    259 

to  others;  and  men  under  some  drcmnstancefl  and  relationa 
are  obliged  to  more  exact  and  watchful  diligence.  Indeed » 
the  slightest  default  in  this  point  is  sufficient  to  impose  a  neoes- 
Bitj  of  reparation,  unless  under  one  of  these  exceptions,  either 
that  the  nature  of  the  business  was  such  as  disdained  a  care  more 
nice  and  scrupulous,  or  that  the  party  who  receiyes  the  wrong 
is  no  less  in  fault  than  he  who  gives  it;  or  lastly,  that  some 
perturbation  of  mind  in  the  person,  or  some  extraordinary  cir- 
eomstances  in  the  affi&ir,  leaves  no  room,  for  accurate  and  con- 
siderate circumspection;  as,  suppose  a  soldier  in  the  heat  of  an 
engagement  should  hurt  his  next  man  with  his  arms  whilst  he 
brandishes  and  employs  them  against  the  enemy.  To  this  pur- 
pose the  story  in  .SSlion  is  remarkable.  A  young  man  traveling 
toward  Delphi,  as  he  defended  his  companion  from  the  robbers, 
happened  to  kill  him  by  an  unlucky  turn  of  his  weapon;  and, 
upon  application  to  the  oracle,  received  his  pardon  in  this  com- 
(ortaUe  answer: 

'  StriTing  to  save  yonr  baplen  frieod,  yoaVe  alalii; 
His  blood  may  purify,  bat  ne'er  can  stain.' 

"  But  in  cases  of  pure  chance,  where  the  hurtful  action  is  not 
mixed  with  any  fault  of  ours,  it  is  evident  wo  are  not  obliged 
to  reparation.  For  when  I  have  done  nothing  that  can  be 
fairly  laid  to  my  charge,  there  seems  to  be  no  reason  why  the 
nusfortune  and  the  damages  of  a  harm,  which  I  unwillingly 
caused,  should  rather  fall  on  roe  than  on  the  person  who  re- 
oeiyed  it:"  Puffendorf 's  Laws  of  Nature,  b.  3,  c.  1. 

Butherforth,  in  his  Institutes  of  Natural  Law,  p.  201,  gives 
the  origin  of  the  right  to  reparation  in  damages  in  the  following 
language:  ''As  the  law  of  nature  forbids  us  to  hurt  any  man,  it 
can  not  allow  any  act  of  ours  whereby  another  is  hurt  to  stand 
good,  or  to  obtain  any  effect.  But  the  law,  if  it  does  not  allow 
such  act  to  stand  good  or  to  obtain  any  effect,  must,  after  we 
have  done  it,  require  us  to  undo  it  again.  The  only  way  of 
undoing  it  again,  or  of  preventing  the  effect  of  it — that  is,  the 
only  way  of  satisfying  the  law — ^is  to  make  amends  for  what  any 
person  has  suffered  who  was  hurt  by  it,  or  to  make  reparation 
for  the  damages  which  such  person  has  sustained.  The  same 
law,  therefore,  which  guards  a  man  from  being  hurt  by  requir* 
ing  others  not  to  hurt  him,  gives  him  a  demand  upon  them, 
when  they  have  done  him  any  hurt,  to  undo  it  again,  or  gives 
him  a  right  to  demand  reparation  of  damages.  If  such  repara- 
tion be  refused,  the  law  gives  him  a  right  to  it,  and  allows  him 
to  support  this  right  by  all  such  means  as  are  necessary  for  that 


260  ESBWHACKEB  V.  CLEVELAND  ETC.  R  R  Oo.       [Ofaio^ 

purpose,  because  a  right  which  he  is  not  at  liberty  to  enforce  ox 
bring  into  execution  is,  in  effect,  no  right  at  all." 

It  would  seem  that  the  liability  to  make  reparation  for  an  in- 
jury rested,  not  upon  the  consideration  of  any  reciprocal  obli- 
gation, but  upon  an  original  moral  duiy  enjoined  upon  every 
person  so  to  conduct  himself,  or  exercise  his  own  rights,  as  not 
to  injure  another.  It  is  conceded  that  where  the  conduct  of 
the  party  complained  of  has  been  malicious,  or  his  negligence 
BO  wanton  and  gross  as  to  be  evidence  of  voluntary  injury,  the 
injured  party  is  entitled  to  redress,  although  there  has  been 
negligence  on  his  part:  Wynn  v.  Allard^  6  Watts  &  S.  624; 
Munroe  v.  Leach,  7  Met.  274;  Farwdl  v.  Boston  &  Worcester 
R.  B.  Co.,  4  Id.  49  [38  Am.  Dec.  339].  But  where  the  injury 
arises  neither  from  malice,  design,  nor  wimton  and  gross 
neglect,  but  simply  the  neglect  of  ordinary  care  and  caution, 
and  the  parties  are  mutually  in  fault,  the  negligence  of  both 
being  the  immediate  or  proximate  cause  of  the  injuiy,  it  would 
seem  that  a  recovery  is  fairly  denied  upon  the  ground  that  the 
injured  party  must  be  taken  to  have  brought  the  injury  upon 
himself.  For  the  parties  being  mutually  in  fault,  there  can  be 
no  apportionment  of  the  damages,  no  rule  existing  to  settle  in 
such  case  what  the  one  shall  pay  more  than  the  other. 

This  rule,  however,  that  where  both  parties  are  in  fault,  and 
the  negligence  of  each  a  proximate  cause  of  the  injuiy,  no 
action  will  lie,  has  been  chiefly  applied  to  cases  of  collision 
between  vessels,  carriages,  etc.,  passing  on  the  public  thorough- 
fares. 

The  mere  fact,  however,  that  one  person  is  in  the  wrong  does 
not  in  itself  discharge  another  from  the  observance  of  due  and 
proper  care  toward  him,  or  the  duty  of  so  exercising  his  own 
rights  as  not  to  injure  him  unnecessarily.  There  have  been 
numerous  adjudications,  both  in  England  and  in  this  country, 
where  parties  have  been  held  responsible  for  their  negligence, 
although  the  party  injured  was  at  the  time  of  the  occurrence 
culpable,  and  in  some  of  the  cases  in  the  actual  commission  of 
a  trespass. 

In  the  case  of  New  Haven  Steamboat  and  Transportation  Co, 
V.  VanderbUt,  16  Conn.  421,  the  supreme  court  of  Connecti-k 
cut  held  it  to  be  a  principle  of  law,  that  while  a  party,  on  the 
one  hand,  shall  not  recover  damages  for  an  injuiy  which  he  has 
brought  upoD  himself,  neither  shall  he,  on  the  other  hand,  be 
permitted  to  shield  himself  from  an  injuiy  which  he  has  done 
because  the  party  injured  was  in  the  wrong,  unless  such  wrong 


Dec.  1854.]  Eerwhacksb  v.  Clsteland  na  R  R.  Co.    261 

oontribated  to  produce  the  injuxj;  and  eyen  then  it  would  seem 
that  the  party  setting  up  such  a  defense  is  bound  to  use  com- 
mon and  ordinary  caution  to  be  in  the  right.  This  decision 
was  founded  on  the  authority  of  BuUerfield  t.  Forresier,  11  East, 
GO,  in  which  Lord  Ellenborough  said:  "A  party  is  not  to  cast 
himself  upon  an  obstruction  which  has  been  made  by  the  fault 
of  another,  and  avail  himself  of  it,  if  he  do  not  himself  use 
common  and  ordinary  caution  to  be  in  the  right.  In  cases  of 
persons  riding  upon  what  is  considered  to  be  tiie  wrong  side  of 
the  road,  that  would  not  authorize  another  purposely  to  ride 
up  against  them." 

In  the  case  of  Birge  y.  Cktrdiner,  19  Conn.  507,  where,  the  de- 
fendant having  set  up  a  gate  on  his  own  land,  by  the  side  of  a 
lane  through  which  the  plaintiff,  a  child  between  six  and  seven 
years  of  age,  with  other  children  of  the  same  neighborhood, 
were  accustomed  to  pass  from  their  places  of  residence  to  the 
highway,  the  plaintiff,  in  passing  along  such  lane,  without  the 
liberty  of  any  one,  put  his  hands  on  the  gate  and  shook  it,  in 
consequence  of  which  it  fell  on  him  and  broke  his  leg,  the  su- 
preme court  of  Connecticut  said:  "There  is  a  class  of  cases  in 
which  defendants  have  been  holden  responsible  for  their  mis- 
conduct, although  culpable  acts  of  trespass  by  the  plaintiffs 
produced  the  consequences;"  and  held  in  this  case  that  if  the 
defendant  was  guilty  of  negligence,  he  was  liable  for  the  injury, 
unless  the  plaintiff,  in  doing  what  he  did,  was  guilfy  of  negli- 
gence or  misbehavior,  or  of  the  want  of  proper  care  and  cau- 
tion; and  "that  in  determining  this  question  it  was  proper  to 
take  into  consideration  the  age  and  condition  of  the  plaintiff, 
etc. ;  and  that  the  fact  that  the  plaintiff  was  a  trespasser  in  the  act 
which  produced  the  injury  complained  of  would  not  necessarily 
preclude  him  from  a  recovery  against  a  party  guilty  of  negli- 
gence." This  decision  was  sustained  by  the  authority  of  Lynch 
V.  Nurdin,  1  Ad.  &  El.,  N.  S.,  35;  2  Steph.  N.  P.  1015,  which  was 
an  action  for  negligence  committed  by  iJie  defendant's  servant,  in 
leaving  his  cart  and  horse  standing  for  half  an  hour  in  an  open 
street,  and  while  there  the  plaintiff,  with  other  children,  got 
into  and  about  the  cart,  and  teased  the  horse,  which  moved, 
whereby  the  plaintiff  was  injured.  Lord  Denman,  C.  J.,  said: 
**  In  the  present  case  the  fact  appears  that  the  plaintiff  has  done 
wrong;  he  had  no  right  to  enter  the  cart,  and  abstaining  from 
doing  so,  he  would  have  escaped  the  mischief.  Certainly  he 
was  a  co-operating  cause  of  his  own  misfortune,  by  doing  an 
unlawful  act;  and  the  question  arises  whether  that  fact  alone 


162         Ejcrwhackeb  v.  Cleveland  etc.  R  R  Co.     [Ohio^ 

most  deprive  the  child  of  his  remedy.  The  legal  piopositioii 
that  one  who  has,  by  his  own  n^gligenoe,  contributed  to  the  in- 
jury of  which  he  complains  can  not  maintain  his  action  against 
another  in  respecit  of  it,  has  reoeiyed  some  qualifications.  In- 
deed, Lord  Ellenborough's  doctrine,  in  Buiterfidd  t.  Ibrrester^ 
which  has  been  generally  adopted  since,  would  not  set  up  the 
want  of  a  superior  degree  of  skill  or  care  as  a  bar  to  the  claim 
for  redress.  Ordinaxy  care  must  mean  that  degree  of  care  which 
may  reasonably  be  expected  from  a  person  in  the  plaintiff's  situ- 
ation/' 

The  same  doctrine  was  substantially  recognized  in  the  case  of 
'Jhaplin  y.  Hawes,  8  Car.  &  P.  654,  in  which  Best,  C.  J.,  re- 
marks: "If  the  plaintiff's  servant  had  such  a  clear  space  that 
he  might  easily  have  got  away,  then,  I  think,  he  would  have 
been  so  much  to  blame  as  to  prevent  the  plaintiff's  recovering. 
But  on  the  sudden,  a  man  may  not  be  sufficiently  self-possessed 
to  know  in  what  way  to  decide;  and  in  such  a  case,  I  think  the 
wrong-doer  is  the  party  who  is  to  be  answerable  for  the  mis- 
chief, though  it  might  have  been  prevented  by  the  other  party's 
acting  differently." 

In  the  case  of  Bird  v.  HoWrook,  4  Bing.  628;  S.  C,  13  Eng, 
Com.  L.  667,  it  was  held,  that  where  the  defendant,  who,  for  the 
protection  of  his  property,  some  of  which  had  been  stolen,  set  a 
spring-gun,  without  notice,  in  a  walled  garden,  at  a  distance  from 
his  house,  and  the  plaintiff,  having  climbed  over  the  wall  in  pur- 
suit of  a  stray  fowl,  was  shot,  he  (the  defendant)  was  liable  in 
damages,  although  the  plaintiff  brought  the  injury  upon  himself 
by  trespassing  upon  the  defendant's  inclosure. 

The  case  of  Vere  v.  Lord  Cawdor,  11  East,  568,  was  an  action 
of  trespass  for  shooting  and  killing  a  dog  of  the  plaintiff,  in 
which  it  was  held  that  a  plea  in  bar  constituted  no  justification 
which  set  forth  that  the  lord  of  the  manor  was  possessed  of  a 
close,  and  that  the  defendant,  as  his  game-keeper,  killed  the 
dog  when  running  after  hares  in  that  close  for  the  preservation 
of  hares,  the  plea  not  averring  that  it  was  necessary  to  kill  the 
dog  for  the  preservation  of  the  hares,  etc.  In  this  case  liord 
EUenborough,  C.  J.,  said:  "  The  question  is,  whether  the  plaint- 
iff's dog  incurred  the  penalty  of  death  for  running  after  a  hare 
in  another's  ground.  And  if  there  be  any  precedent  of  that 
sort  which  outrages  all  reason  and  sense,  it  is  of  no  authority 
to  govern  other  cases." 

The  same  doctrine  was  recognized  in  the  case  of  MarrioU  v. 
Slanley,  39  Eng.  Com.  L.  559;  also  in  the  case  of  Baiain  t« 


Dee.  1854.]  Eebwhackxb  v.  Clkteland  etc  R.  &  Oa    263 

iRi^idl,  38  Id.  252,  in  which  a  jury  retumed  a  yerdict  in  fayor 
of  the  plaintiff  for  two  hundred  and  fifty  pounds,  with  a  special 
finding,  on  inqniiy,  that  there  were  faults  on  both  sides ;  and  it  waa 
held  that  notwithstanding  this,  the  plaintiff  was  entitled  to  the  yer- 
diot,  as  there  might  be  faults  with  the  plaintiff  to  a  certain  extent, 
and  jet  not  to  such  an  extent  as  to  prevent  his  recoyering.  -  The 
same  subject  was  yeiy  fully  considered  in  the  case  of  Deane  y. 
Claykm,  2  Id.  183.  in  which  Dallas,  J.,  renuurks:  "  To  the  next 
class  of  dedsions  I  also  equally  accede;  namely,  those  which 
establish  that  you  shall  do  no  more  than  the  necessity  of  the 
case  requires,  when  the  excess  may  be  in  any  way  injurious  to 
another — a  principle  which  jiervades  eyery  part  of  the  law  of 
England,  criminal  as  well  as  civil,  and  indeed  belongs  to  all  law 
that  is  founded  on  reason  and  natural  equity." 

It  is  upon  this  ground  that  where  domestic  animals  even^ 
which  are  breachy  and  unruly,  break  into  the  lawful  incloeure 
of  another,  the  owner  of  such  inclosure,  although  he  has  a  right 
of  action  for  the  trespass,  and  has  the  right  to  expel  the  tres- 
passing animals  from  his  grounds,  and  that  quickly  and  with 
no  reiy  kind  treatment,  yet  in  so  doing  he  is  not  allowed  to  use 
nnnecessaiy  or  excessive  violence;  and  if  he  does,  and  the  ani- 
mals be  killed  or  injured  thereby,  he  will  be  liable  to  the  owner 
of  the  animal  in  damages.  This  is  in  strict  accordance  with  the 
decision  in  the  case  of  Vere  v.  Cawdor,  supra.  To  the  same  effect 
is  the  case  of  Mayor  of  Colchester  v.  Brooke,  63  Eng.  Com.  L. 
376,  cited  in  1  Smith's  Lead.  Cas.  312,  where  it  was  held  that 
although  the  plaintiff  was  chargeable  with  wrong  and  negligence 
in  placing  and  keeping  the  deposit  of  a  bed  of  oysters  in  the 
channel  of  a  navigable  stream,  which  created  a  public  nuisance, 
jet  the  defendant  was  not  justifiable  in  running  his  vessel  upon 
the  deposits,  greatly  injuring  the  oysters,  when  there  was  room 
to  pass  in  the  stream  without  it,  and  the  injury  could  have  been 
avoided  by  the  use  of  reasonable  care  and  diligence.  This  is 
only  carrying  out  the  rule  that  though  a  man  do  a  lawful  thing, 
yet  if  any  damage  thereby  be  done  to  another  which  he  could 
have  reasonably  and  properly  avoided,  he  will  be  held  liable. 
So  it  is  said,  if  a  man  lop  a  tree  on  his  own  ground,  and  the 
boughs  fall  upon  another's  premises  ispo  invUo,  and  do  an  in- 
jury, an  action  lies.  So  also  where  a  man,  in  building  his  own 
house,  lets  fall  a  piece  of  timber  on  his  neighbor's  house  and 
injures  it;  and  likewise,  where  a  party  so  negligently  constructed 
a  hay-rick  on  the  extremity  of  his  land  that  in  consequence  of 
its  spontaneous  ignition  his  neighbor's  hooaa  wh«  burned  down, 


264        ExBWHACKKB  V.  Clsveland  Bra  R  R  Oa     [Ohk^ 

an  aetion  has  been  sustained:  Vaughan  y.  Merdovef  8  Bing.  N.  0. 
468.  And  where  persons  haye  fhe  control  of  instruments  of  dan- 
ger, the  law,  out  of  regard  to  the  safety  of  the  communify,  requires 
them  to  be  kept  with  the  utmost  care ;  so  that  where  a  party,  being 
possessed  of  a  loaded  gun,  sent  a  young  girl  after  it,  with  direo- 
tions  to  take  the  priming  out,  which  was  accordingly  done,  but 
a  damage  was  done  to  the  child  of  another  person,  in  consequence 
of  the  girl  presenting  the  gun  at  him  and  drawing  the  trigger, 
when  the  gun  went  off,  the  party  was  held  liable  in  damages  to 
the  person  injured:  Dixon  y.  Bell^  6  Mau.  &  Sel.  198. 

Another  modification  of  the  rule,  that  the  concurrence  of  the 
plaintiff's  negligence  with  that  of  the  defendant  will  defeat  the 
claim  to  reparation,  is  that  where  the  plaintiff,  knowing  the 
danger,  yoluntarily  placed  his  properiy  in  an  exposed  and  haz- 
ardous position,  or  in  more  than  ordinary  danger,  from  the  law- 
ful acts  of  the  defendant:  Sedgw.  on  Dam.  471.  This  principle 
was  settled  by  the  supreme  court  of  New  York,  in  the  case  of 
Cook  y.  Ghamplain  Transportation  Company,  1  Denio,  99,  in 
which  it  was  held  that  where  a  person,  in  the  lawful  use  of  his 
own  property,  exposes  it  to  the  danger  of  accidental  injury  from 
the  lawful  acts  of  others,  he  does  not  thereby  lose  his  remedy 
for  an  injury  caused  by  the  culpable  negligence  of  such  other 
persons;  so  that  the  owner  of  hmd  on  the  shore  of  a  stream  or 
lake,  or  adjoining  the  track  of  a  railroad,  may  lawfully  build  on 
his  land,  though  the  situation  be  one  of  exposure  and  hazard, 
and  be  neyertheless  entitled  to  protection  against  the  negligent 
acts  of  persons  lawfully  passing  the  same  with  yessels  or  car- 
riages propelled  by  steam-engines,  by  which  such  buildings 
may  be  set  on  fire,  on  the  ground  that  the  owner  undertook  the 
risk  and  hazard  of  injury  by  mere  accident,  but  not  the  risk  of 
injury  by  negligence. 

But  there  is  yet  another  element  in  this  class  of  cases  which 
occasionally  has  an  important  bearing  upon  the  right  of  redress. 
The  negligence  of  the  injured  party,  to  preclude  him  from  a 
recovery,  must  be,  in  part  at  least,  an  immediate  or  proximate 
cause  of  the  injury.  To  this  effect  was  the  decision  of  the  case 
of  Davies  v.  Mann,  10  Mee.  &  W.  545.  "  The  plaintiff  hay- 
ing  fettered  the  fore  feet  of  an  ass  belonging  to  him,  turned 
it  into  a  public  highway;  and  at  the  time  in  question  the 
ass  was  grazing  on  the  off  side  of  a  road  about  eight  yards 
wide,  when  the  defendant's  wagon,  with  a  team  of  three  horses, 
coming  down  a  slight  descent  at  what  the  witness  termed  a 
'  smartish  pace,'  ran  against  the  ass,  knocked  it  down,  and  the 


Dea  1854]  Eeswhackeb  t;.  Cleyelamd  sic.  R  &  Ckx    265 


wheels  pusiiig  over  it,  it  died  soon  after.  The  ass  was  fettered 
at  the  time,  and  it  was  proved  that  the  diiyer  of  the  wagon  was 
some  little  distance  behind  the  horses.  The  learned  judge 
[Ersldne,  before  whom  the  case  was  tried  at  the  Worcester 
assizes]  told  the  jmy  that  '  though  the  act  of  the  plaintiff,  in 
leaving  the  donkey  on  the  highway  so  fettered  as  to  prevent  his 
getting  out  of  the  way  of  carriages  traveling  along  it,  might  be 
illegal,  still  if  the  proximate  cause  of  the  injury  was  attributable 
to  the  want  of  proper  conduct  on  the  part  of  the  driver  of  the 
wagon,  the  action  was  maintainable  against  the  defendant; '  and 
his  lordship  directed  them,  if  th^  thought  the  accident  might 
have  been  avoided  by  the  exercise  of  ordinary  care  on  the  part  of 
the  driver,  to  find  for  the  plaintiff." 

After  a  verdict  for  the  plaintiff,  on  a  motion  for  a  new  trial, 
which  came  before  the  exchequer.  Lord  Abinger  said:  "  I  am  of 
opinion  that  there  ought  to  be  no  rule  in  this  case.  The  de- 
fendant has  not  denied  that  the  ass  was  lawfully  in  the  highway, 
and  therefore  we  must  assume  it  to  have  been  lawfully  there. 
But  even  were  it  otherwise,  it  would  have  made  no  difference; 
for,  as  the  defendant  might,  by  the  exercise  of  proper  care,  have 
avoided  injuring  the  animal,  and  did  not,  he  is  liable  for  the 
consequences  of  his  negligence,  though  the  animal  may  have 
been  improperly  there.'' 

The  supreme  court  of  Vermont,  in  the  case  of  Drow  v. 
VermmU  Cenlral  B.  B.  Co.,  24  Yt.  488  [58  Am.  Dec.  191],  in 
which  this  doctrine  is  fully  sustained,  said:  "When  the  negli- 
gence of  the  defendant  is  proximate,  and  that  of  the  plaintiff 
remote,  the  action  can  then  well  be  sustained,  although  the 
plaintiff  is  not  entirely  without  fault.  This  seems  to  be  now 
settled  in  England  and  in  this  country.  Therefore,  if  there 
be  negligence  on  the  part  of  the  plaintiff,  yet  if,  at  the  time 
when  the  injury  was  committed,  it  might  have  been  avoided  by 
the  defendant  in  the  exercise  of  reasonable  care  and  prudence, 
an  action  will  lie  for  the  injury.  So  in  this  case,  if  the  plaint- 
iff were  guilty  of  negligence,  or  even  of  positive  wrong,  in 
placing  his  horse  in  the  highway,  the  defendants  were  bound  to 
the  exercise  of  reasonable  care  and  diligence  in  the  use  of  their 
road,  and  management  of  the  engine  and  train,  and  if  for  want 
of  that  care  the  injury  arose,  they  are  liable." 

From  a  review  of  the  decisions  on  this  subject,  both  in  Eng- 
land and  in  this  country,  the  following  conclusion  appears  fairly 
deducible:  That  the  general  rule  is,  that  where  the  parties  are 
mutually  in  fault,  or  in  other  words,  where  negligence  of  the 


266  EXBWHACKER  V.  CLEVELAND  ETC.  R  R.  Co.       [OluO. 

same  nature  in  each  party  has  co-operated  to  produce  the  in* 
jury,  the  party  sustaining  the  loss  is  without  remedy;  but  that 
this  rule  is  subject  to  the  following  qualifications:  1.  The  in- 
jured party,  although  in  the  fault  to  some  extent,  at  the  same  time 
may,  notwithstanding  this,  be  entitled  to  reparation  in  damages 
for  an  injury  which  could  not  haye  been  avoided  by  ordinary 
care  on  his  part;  2.  When  the  negligence  of  the  defendant  in 
a  suit  upon  such  ground  of  action  is  the  proximate  cause  of  the 
in juiy ,  but  that  of  the  plaintiff  only  remote,  consisting  of  some 
act  or  omission  not  occurring  at  the  time  of  the  injury,  the  ac- 
tion for  reparation  is  maintainable;  3.  Where  a  party  has  in 
his  custody  or  control  dangerous  implements,  or  means  of  in- 
jury, and  negligently  uses  them,  or  places  them  in  a  situation 
unsafe  to  others,  and  another  person,  although  at  the  time  even 
in  the  commission  of  a  trespass,  or  otherwise  somewhat  in  the 
wrong,  sustains  an  injury,  he  may  be  entitled  to  redress;  4. 
And  where  the  plaintiff,  in  the  ordinary  exercise  of  his  own 
rights,  allows  his  property  to  be  in  an  exposed  and  hazardous 
position,  and  it  becomes  injured  by  the  neglect  of  ordinary  care 
and  caution  on  the  part  of  the  defendant,  he  is  entitled  to  repa- 
ration for  the  reason  that,  although  by  allowing  his  property  to 
be  exposed  to  danger  he  took  upon  himself  the  risk  of  loss  or 
injury  by  mere  accident,  he  did  not  thereby  discharge  the  de- 
fendant from  the  duty  of  observing  ordinary  care  and  prudence, 
or  in  other  words,  voluntarily  incur  the  risk  of  injury  by  the 
negligence  of  another. 

The  application  of  these  rules,  which  appear  reasonable  and 
just,  removes  all  difficulty  in  the  disposition  of  the  case  before 
us.  The  act  of  the  plaintiff  allowing  his  hogs  to  be  at  large  in 
the  neighborhood  of  the  railroad,  where  they  were  exposed  to 
the  danger  of  getting  upon  the  railway  track  and  being  injured, 
was  only  a  remote  cause  of  the  injury;  and  in  the  voluntary  ex- 
posure of  his  property  to  danger  iu  the  exercise  of  his  lawful 
i-ights,  he  took  upon  himself  the  risk  of  injury  to  his  property 
by  mere  accident,  but  not  the  risk  of  injury  by  the  defendant's 
negligence.  And  the  defendant  was  chargeable  with  some  de- 
gree of  negligence  by  the  omission  to  have  its  railroad  inclosed 
by  suitable  fences  and  cattle-guards.  On  this  subject,  the  su- 
preme court  of  Vermont,  in  the  case  of  J\row  v.  Vermont  Cen- 
tral R,  B.  Co.,8upra,  say:  ''The  duty  of  maintaining  fences 
and  erecting  cattle-guards  for  such  purposes  is  imposed  on  the 
corporation,  not  only  as  a  matter  of  safety  in  the  use  of  their 
road  and  running  their  engines  thereon,  but  also  as  a  matter  of 


I>e&  1864.]  ExBWHACKKB  u  Glevklamd  etc.  R  R  Oa    287 

Mcniity  to  the  property  of  ihose  liTing  near  and  oontigaous  to 
the  road.  And  this  arises  from  the  consideration  that  thej  must 
know,  and  reasonably  erpeet,  that  without  such  precautions 
such  injuries  will  naturally  and  frequently  arise.  And  when, 
for  the  distance  mentioned  in  this  case,  no  precautions  of  that 
kind  were  used  upon  this  road,  and  in  a  pLice  so  public  and 
common,  we  think,  as  a  matter  of  law,  there  was  that  neglect 
which  will  render  the  corporation  liable  for  injuries  arising 
solely  from  that  cause." 

This  is  in  accordance  with  the  decision  of  the  same  court 
in  Qwimby  t.  Vermmi  Central  E.  E.  Co.,  23  Vt.  388,  in  which 
it  was  held:  "That  although  the  charter  of  the  companj 
made  no  provision  in  reference  to  the  obligation  to  maintAin 
fences  upon  the  line  of  the  road,  the  general  law  of  the  state, 
in  reference  to  the  obligation  of  adjoining  land-owners  to  main* 
tain  the  division  fences  between  them,  did  not  apply,  but  that 
the  obligation  to  maintain  the  fences  rested  primarily  upon  the 
company,  and  untQ  they  have  either  built  the  fences  or  paid  the 
land-owner  for  doing  it  a  sufficient  length  of  time  to  enable  him 
to  do  it,  the  mere  fact  that  cattle  get  upon  the  road  from  the 
land  adjoining  is  no  ground  for  imputing  negligence  to  the  own- 
ers  of  iJie  cattle."  So  also  the  case  of  the  Matter  of  Rensselaer 
di  Saratoga  E.  E,  Co.,  4  Paige,  563.  It  being  the  right  of  the 
owners  of  animals  in  this  state  to  let  them  be  at  large,  it  follows 
that  the  mere  fact  of  allowing  them  to  be  at  large,  generally,  can 
not  be  a  ground  of  imputing  negligence  to  the  owner.  But  when 
the  owner  allows  them  to  be  at  large  in  the  immediate  vicinity  of 
an  uninclosed  railroad,  where  they  will  be  liable  to  wander  upon 
the  railroad,  he  can  not  be  said  to  exercise  that  high  degree  of 
care  and  prudence  in  reference  to  his  own  interests  which  men  of 
more  than  ordinary  care  and  caution  take  of  their  own  property. 
And  admitting  the  plaintiff,  in  this  case,  to  have  been  charge- 
able in  some  degree  with  negligence  in  this  respect,  jet  the  de- 
fendant was  certainly  chargeable  with  negligence,  in  at  least  an 
equal  degree,  for  want  of  proper  care  in  inclosing  its  railroad 
with  fences  and  cattle-guards.  The  construction  of  the  railroad 
could  not  abridge  or  take  away  the  existing  right  of  persons  to 
allow  their  animals  to  be  at  large,  although  tiie  danger  which 
it  created  may  have  enjoined  more  care  and  prudence  on  the 
owners  of  animals  in  letting  them  be  at  large  in  the  immediate 
neighborhood  of  the  road.  But  the  company  having  constructed 
its  road  through  a  country  where  it  was  well  known  that  domestic 
animals  were  suffered  to  run  at  large,  and  where  the  custom  and 


S68         Kkrwhackeb  v.  Clkvelakd  ktc  R  R  Oa     [Ohio 

right  in  this  respect  must  be  unqiiestionaUey  the  consideration 
of  the  inevitable  exposure  of  the  road  while  uninclosed  to  such 
casualties  and  injuries  as  that  of  animals  running  at  large  get- 
ting upon  it,  enjoined  upon  the  company,  in  the  exercise  of  at 
least  some  degree  of  care  and  caution,  the  duty  of  inclosing  the 
road.  And  by  the  omission  of  this  the  defendant  was  at  least 
as  much  in  fault,  and  at  least  as  much  chargeable  with  negligence, 
as  the  plaintiff.  And  in  each  case,  that  is,  in  allowing  the  ani- 
mals to  be  at  large  by  the  plaintiff,  and  in  leaving  the  railroad 
UDindosed  by  the  defendant,  the  negligence  was  remote,  each 
only  remotely  or  consequently  contributing  to  cause  the  injuiy. 
If  tiiere  had  existed  no  other  negligence  than  this  on  either  side, 
and  the  loss  had  occurred  from  unavoidable  accident  in  running 
the  train  upon  the  hogs,  whon  the  agents  of  the  company  were  in 
the  full  exercise  of  due  care  and  caution  in  the  discharge  of  their 
duty,  the  plaintiff  would  probably  have  been  without  redress. 
The  turning-point  of  this  case,  therefore,  as  presented,  would 
seem  to  be,  not  whether  there  was  negligence  on  the  part  of  the 
plaintiff  in  allowing  his  hogs  to  be  at  large,  or  negligence  on  the 
part  of  the  defendant  in  omitting  to  inclose  its  road  by  fences 
and  cattle-guards,  but  whether  the  agents  of  the  defendant,  at 
the  time  of  the  occurrence,  exercised  reasonable  and  ordinary 
care  to  avoid  the  injury.  Having  left  its  road  uninclosed  and 
exposed  to  the  intrusion  of  the  animals  at  large  coming  upon 
the  track,  it  was  the  duty  of  the  company,  acting  through  its 
agents,  to  use  ordinary  and  reasonable  care  and  diligence  to 
avoid  all  unnecessary  injury  to  the  animals  found  accidentally  in 
the  way  of  its  train  upon  the  road. 

What  amounts  to  ordinary  care  on  the  part  of  the  agents  of 
the  company  depends  on  the  peculiar  nature  of  the  employment,  i 

and  the  circumstances  attending  the  transaction.     The  defend-  , 

ant's  agents  were  engaged  in  the  management  of  powerful  and 
dangerous  machinery,  moving  with  great  rapidity,  to  the  skill-  ' 

ful  and  safe  conduct  of  which  is  intrusted  not  merely  ^^roperty^ 
but  the  safety  of  human  beings  to  a  large  extent.  The  first  and 
paramount  object  of  the  attention  of  the  agents  of  the  company 
is  a  proper  regard  for  the  safety  of  the  persons  and  property 
in  their  charge  on  the  train.  The  plaintiff  had  no  right  to  ex- 
pect his  property,  under  the  circumstances,  to  be  protected* 
unless  it  could  be  done  consistently  with  the  higher  obligationt 
and  responsibilities  resting  on  the  agents  of  the  defendant.  lu 
this  particular  employment  a  higher  degree  of  skill  and  diligence 
IB  exacted  of  the  persons  engaged  than  that  which  is  requisite 


Dee.  1854]  Exrwhackkb  t;.  Glevxland  etc.  R  R  Oa    S69 

in  the  ordinary  pnrBoits  of  life.  For  ihe  protection  of  the  per- 
flone  and  property  of  indiyiduals  in  charge  of  the  agents  of  the 
defendant  on  the  train  of  cars,  the  company  vas  held  to  a  high 
di^^ree  of  care  and  diligence;  and  with  a  doe  regard  to  this  par- 
amount duty  they  were  bonnd  to  the  ezereiae  of  what,  in  that 
peculiar  employment,  would  be  ordinary  and  reasonable  care 
to  aToid  doing  any  unnecessary  injury  to  the  properly  of  the 
plaintiff  which  happened  acddentflJly  to  be  upon  the  railroad 
track.  The  court  of  common  pleas,  however,  in  this  case,  re- 
fused, upon  request,  to  charge  the  jury  that  the  agents  of  the 
defendant  were  held  to  the  exercise  of  ordinary  care  and  caution 
to  aToid  injury  to  the  plaintiff's  properiy  thus  upon  the  railroad; 
but  on  the  contrary,  charged  that  the  hogs,  being  unlawfully  on 
the  road,  the  defendant's  agents  were  not  required  to  check  the 
speed  of  the  train  and  avoid  injury  to  the  animals,  even  if  they 
could  easily  and  readily  have  done  so. 

This  ruling  of  the  court  of  common  pleas  is  in  direct  conflict 
with  the  doctrine  of  Lord  Ellenborough  in  the  case  of  Vere  t.  Gauh 
dor,  11  East,  568,  in  which  he  said  that  '*  the  idea  that  the  plaint- 
iff's dog  had  incurred  the  penalty  of  death  by  running  after  a  hare 
on  another's  ground  outrages  all  reason  and  sense; "  in  conflict 
with  the  doctrine  that  even  in  case  of  a  trespass  no  unnecessary 
and  excessive  violence  shall  be  used  to  the  injury  of  another — 
a  principle  which  Dallas,  J.,  said  *'  jiervades  every  part  of  the 
law  of  England,  criminal  as  well  as  civil,  and  indeed,  belongs 
to  all  laws  that  are  founded  on  reason  and  natural  equity; "  con* 
trary  to  the  human  spirit  of  our  laws  against  cruelty  to  animals; 
oontrary  to  the  doctrine  that  a  man,  in  the  exercise  of  his  lawful 
rights,  shall  use  reasonable  and  ordinary  care  to  avoid  in  juxy  to  an- 
other; and  contrary  to  the  whole  course  of  adjudication  in  England 
and  in  this  country  generally,  on  mere  questions  of  negligence. 

But  it  is  due  to  the  court  below  to  say  that  its  charge  to  the 
jury  was  in  strict  accordance  with  the  decisions  in  New  York, 
Pennsylvania,  and  perhaps  those  of  several  other  states,  in  cases 
of  suits  against  railroad  companies  upon  grounds  similar  to  that 
for  which  this  suit  was  brought;  but  the  decisions  in  those  states 
all  rest  upon  the  ground  that  it  is  unlawful  for  the  owners  of 
domestic  animals  to  allow  them  to  be  at  large;  and  that  when 
they  are  at  large,  and  happen  to  stray  upon  a  railroad,  the  per- 
sons in  charge  of  trains  on  it  are  absolved  from  the  duiy  of  using 
care  to  avoid  unnecessary  injury  to  them.  It  has  been  shown 
that  this  doctrine  has  no  application  in  this  state;  those  decis- 
ions, therefore,  are  of  no  authority  here.    We  recognize  the 


270         Eebwhacker  v.  Cleveland  etc  R.  R.  CSo.     [Ohia» 

maxim.  Sic  lUere  tuo  ut  alienum  non  lasdas,  as  a  principle  founded 
in  justice,  and  essential  to  the  peace,  order,  and  well-being  of  the 
oommunitj;  as  applicable  to  the  enjoyment  of  all  property,  and 
the  exercise  of  all  rights  incident  thereto;  to  the  protection  of 
which  the  weakest  are  entitled,  and  from  the  observance  of  which 
the  most  powerful  are  not  exempt. 

For  the  error  in  the  charge  of  the  court  below  to  the  jury,  the 
judgment  is  reversed,  and  the  cause  remanded  for  further  pro- 
ceedings. 

LlABILITT   rOR  ISJVKOS  BT    OB   TO    CaTTLB   TrESPASSIXO    ON    RAILWAY 

Tracks:  Tonawanda  R,  R,  Co.  y.  Munger,  49  Am.  Deo.  239,  and  the 
lengthy  note  to  the  eame  261,  oolleottng  and  commenting  on  many  authori- 
ties on  the  subject;  see  also  PerHns  v.  BouUm  R,  R,  Co,^  50  Id.  589;  Dan- 
war  V.  8mUh  Carolina  R^  R^  Co.,  55  Id.  678,  and  note  683;  Railroad  Com- 
pany ▼.  SHnner,  67  Id.  654;  TVoto  v.  Vermont  Central  R,  R.  Co..  58  Id.  191, 
and  note  thereto  198;  LouimfUle  and  FraanJtfort  R.  R.  Co.  v.  MilUm,  Id.  &I7, 
on  the  same  question.  These  eases  also  contain  the  doctrines  of  negligence 
applicable  to  them. 

Liability  or  PAasKiioBR  Cabbibbs:  MeSlroy  ▼.  Naehua  etc.  R.  R.  Corp,^ 
60  Am.  Dec.  795;  Cumberland  VaUey  R.  R.  Co.  y.  ffughee,  61  Id.  513;  Schop- 
man  y.  Roaton  etc.  R,  /?.,  55  Id.  41,  and  note  44;  Oalena  etc.  R.  7?.  Co.  y. 
LoomU,  56  Id.  47i;  Lit\field  v.  Old  Colony  R.  R.,  57  Id.  124,  and  note  129; 
Peters  v.  Ryland$,  69  Id.  746,  and  note  749.  These  cases  also  discuss  the 
doctrines  of  negligence  applicable  to  them. 

Fkkoimo  Railroads:  Tonawanda  R.  R.  Co,  y.  Mungert  49  Am.  Dec.  239, 
and  note  261;  Lateton  y.  Utehburg  R.  R.  Co.,  &i  Id.  753;  Railroad  Co.  y. 
Skinner,  67  Id.  654;  LoiUsville  and  Frankfort  R.  R.  Co.  y.  Milloti,  58  Id.  647; 
PerHna  y.  Eastern  R.  R.  Co.,  60  Id.  589;  WiUiama  y.  Mkhtgan  Central  R.  R. 
Co.,  65  Id.  59. 

OoBTRiBUTORY  Nbouokkcx  wiU  be  found  thoroughly  discussed  in  the  note 
to  Freer  y.  Cameron,  65  Am.  Dec.  666;  see  also  Williame  y.  Michigan  Centrai 
R.  R.  Co.,  Id.  69.  When  mutual  carelessness  is  destr active  of  the  right  to 
sue,  is  shown  in  BeaUy  v.  Oilmore,  Id.  614.  The  different  meanings  of  the 
term  "  negligence,"  in  relation  to  different  causes  of  action,  is  discussed  by 
the  court  in  Baltimore  ds  Susquehanna  R.  R,  Co.  y.  Woodruff,  59  Id.  72. 

Thx  doctrinbs  of  thb  principal  oasb,  concerning  the  relation  of  raihrasrs 
to  stock  running  at  large,  were  re>exainined  In  dfneinnati  etc.  R.  R.  Co.  y. 
Watereon,  4  Ohio  St.  431,  byRanney,  J.,  but  they  were  affirmed.  On  this  point 
the  main  case  was  cited  in  Cleveland  etc.  R.  R.  Co.  y.  Elliott,  Id.  477;  and  cited 
and  approyed  in  Central  Ohio  R.  R.  Co.  v.  Lawrence,  13  Id.  69.  It  was  cited 
in  Dayton  y.  Pease,  4  Id.  95,  to  the  point  that  re^Mndeat  superior  applies  to 
corporations;  and  in  Timmons  y.  Central  Ohio  R.  R.  Co.,  6  Id.  109,  its  rules 
as  to  oontributory  negligence  were  cited;  bnt  in  PendleUm  Street  R.  R.  Co, 
y.  Stallmann,  22  Id.  20,  they  were  explained.  The  main  ease  was  cited  in 
Drake  y.  Rogers,  13  Id.  36,  showing  how  far  the  common  law  is  recognised  in 
Ohio;  and  in  Marietta  4t  CindnnaU  R.  R.  Co.  y.  Stephenson,  24  Id.  56,  to 
the  point  that  only  such  anisaals  as  are  habitually  breaohy  or  unmly  are  to  be 
restrained  by  owners  upon  their  premises.  Bat  the  right  in  Ohio  to  allow 
animali  to  run  at  large  has  been  changed  by  stotatot  Sloan  y.  Hubbard,  84 
Id.  585,  citing  the  principal  case. 


Dee:  1864]  Palmkb  v.  Dooqk  271 

Palbceb  V.  DODOB. 

(4  Ohio  Sxazi.  91.] 

DoBOLimov  ov  PARTVERsntp  Works  Absoluts  Rkvooavion  ov  All  In- 
FUXD  AuTHOBiTT  ID  either  of  thepartoen  to  bind  the  otiiar  to  new  en- 
gagements, oontractB,  or  promisee,  made  to  or  with  penons  having  notice 
of  the  diaeolution,  although  springing  ont  of  or  foonded  upon  the  in- 
debtedness of  the  firm. 

No  PowxB  TO  Bind  Copabtnkb  to  Niw  IfiROAOUfKNTBt  Ooittbacts,  or 
Promises  can  bx  Ivfsbbmd  from  an  anthority  fci^en  by  one  partner  to 
the  other  to  settle,  liquidate^  and  doee  up  the  affairs  of  the  partnership. 

LiQUIDATIN-O  PARTKKR  UAB  No  FoWBR  TO  EXTEKB  TlMR  FOR   PATMRRT  OF 

Obuoatiozts  ov  VcRMy  to  Increase  their  amoonts,  or  to  obligate  the  firm 
to  persons  to  whom  it  was  not  bound  at  the  dissolution  of  the  part- 
nership. 

SVBETT  ON  PROMISSORT  NOTB  OlVEN  BT  OkB  OF  MbMBIRB    OF  DlSSOLTBP 

Partnership,  in  the  name  of  the  firm,  and  to  renew  a  debt  of  sneh  part- 
nerahip,  must  look  to  such  member  alone  for  indemnity,  as  he  eaa  not 
liold  the  other  for  it. 

Ebbob  to  the  district  court  for  Washington  county.  Attump' 
rnf.  The  nature  of  the  inBtructions  giren  and  refused,  as  well 
as  of  the  facts,  appear  from  the  opinion.  Judgment  for  plaint- 
iff was  given  in  the  court  below,  and  this  writ  was  sued  out  io 
i6Ter8e  that  judgment 

8.  F,  VtnUm,  and  A.  Nye  and  W,  8.  Nye,  for  the  plaintiff  in 
SRor. 

Ooddard^  and  WhitUeaeyand  Ibume,  for  the  defendant  in  error. 

By  Court,  BAimET,  J.  Short  and  Palmer  were  partners  in 
business  from  1836  to  June  28,  1841.  During  the  existence  of 
the  partnership  the  firm  borrowed  money  of  one  Sally  Dana, 
for  which  a  promissory  note  was  given  and  several  times  re- 
newed, and  which  remained  unpaid  at  the  time  the  partnership 
was  dissolved.  After  the  dissolution,  and  on  April  15,  1842, 
Short,  in  the  name  of  E.  Short  &  Co.,  with  the  defendant  in 
error  as  surety,  executed  a  new  note  to  Mrs.  Dana  for  the  prin- 
cipal and  interest  then  due,  payable  in  one  year.  It  was  proved 
that  the  agent  of  Mrs.  Dana  who  took  this  note  knew  the  part- 
nership was  dissolved,  and  it  was  further  shown  that  Dodge 
took  the  newspaper  in  which  the  notice  of  dissolution  was  pub- 
lished. This  note  was  once  renewed  by  the  same  parties,  and 
subsequently,  and  after  the  death  of  Short,  was  paid  off  by  the 
surely.  Dodge,  who  brought  this  action  to  recover  the  amount 
of  Palmer,  as  so  much  money  paid  for  the  use  of  the  firm. 

On  these  facts  the  counsel  for  Palmer  requested  the  court  to 


S7S  Pauceb  v.  Dodok  [Ohio, 

charge  the  juxy  that  E.  Short,  after  the  diasolutioni  had  no  aa« 
thority  to  give  said  notes  to  a  person  having  knowledge  of  the 
dissolution,  so  as  to  bind  the  late  firm  of  E.  Short  &  C!o. ;  and 
the  said  Dodge,  having  gone  security  on  the  note  given  after  the 
dissolution,  and  with  notice  of  it,  had  no  right  to  recover  from 
Palmer  the  money  paid  by  him  in  discharge  of  the  note.  The 
court  refused  to  give  these  instructions,  but  charged  the  jury 
that  Short,  after  the  dissolution,  could  not  give  a  note  in  the 
name  of  the  firm  so  as  to  bind  his  copartner  thereby;  but  if  Short, 
in  the  performance  of  his  agency  in  settling  up  the  business  of 
the  firm,  thought  it  necessaxy  for  the  interests  of  the  firm  to  re- 
new the  note,  and  in  good  faith  obtained  Dodge  as  security  for 
that  purpose,  he  (Dodge)  might  recover  from  Palmer  the  amount 
originally  loaned  to  the  firm,  with  six  per  cent  interest  thereon. 

As  no  claim  is  made  that  Palmer  came  under  any  direct  en- 
gagements to  Dodge,  or  that  he  ever  authorized  Short  to  execute 
this  particular  note,  or  afterwards  recognized  or  ratified  his  act, 
it  is  evident  the  case  must  depend  upon  the  authority  retained  by 
Short  as  a  member  of  the  dissolved  partnership,  or  upon  that 
specially  derived  from  the  agreement  of  dissolution.  We  have 
carefully  considered  the  case  in  both  these  aspects,  and  can  see 
no  sufficient  reason  why  the  instruction  asked  for  should  have 
been  refused.  Indeed,  it  seems  quite  impossible  to  justify  the 
refusal,  or  support  the  charge  as  given,  consistently  with  well- 
estabHshed  and  salutary  principles,  applicable  to  the  law  of 
partnerships. 

During  the  continuance  of  the  partnership  each  member  has 
the  undoubted  right  to  bind  his  associates  to  the  performance 
of  every  contract  he  may  make  in  the  name  of  the  firm,  within 
the  limits  allowed  by  the  articles  of  association ;  and  they  are 
equally  bound  to  third  persons,  having  no  notice  of  any  special 
limitation  of  his  power,  upon  all  contracts  within  the  scope 
and  objects  of  the  partnership,  although  he  may  have  over- 
stepped such  limitations.  In  such  cases  the  contracting  partner 
acts  for  himself,  and  as  the  authorized  agent  of  his  copartners. 
His  authority,  it  is  true,  need  not  necessarily  arise  from  the  ex* 
press  terms  of  the  partnership  agreement,  but  the  law  implies 
it  from  the  community  of  interest  and  joint  object  for  which  the 
association  is  formed;  and,  as  it  is  ordinarily  necessary  to  the 
p.itaiument  of  its  ends,  reasonably  infers  the  power  of  each  to 
act  for  all  as  within  the  understanding  and  contemplation  of 
the  parties.  They  are  supposed  to  have  reposed  this  confidence 
in  each  other,  and  however  much  it  may  be  abused,  in  behalf  oi 


Dec  ia54.]  Palmer  t;.  Dodchl  27> 

innooeiit  thud  peraons,  the  oonelusiTe  answer  is  OiMi  One  Ion 
mnst  fall  upon  those  who  have  giyen  the  afailily  to  do  the  wrong. 

This  oapacitj  continues  as  long  as  the  joint  operations  of  tlie 
firm  endure,  and  eontraets  aie  neoeesazy  to  aooomplish  its  por- 
poees.  For  the  protection  of  third  persons  it  may  continue 
longer. 

As  the  period  of  its  dissolution,  bj  the  agreement  of  the  parties, 
may  only  be  known  to  themeelTes,  the  law  exacts  not  only  that 
tiiey  should  hold  themselTes  out  no  longer  as  operating  joinUy, 
but  that  they  use  reasonable  diligence  to  adTise  others  of  the 
termination  of  their  prerious  connection.  As  to  those  who  ha^ 
proTiously  dealt  with  the  firm,  the  notice  mnst  be  actual;  as  to 
others,  public  notice  in  some  newspaper  circulating  in  the  neigh- 
borhood is  sufficient,  if  even  that  is  required. 

In  such  eases  the  other  partners  are  cluoged  for  their  negligence 
in  omitting  to  perform  a  duly  which  the  law  requires  at  their 
hands,  intended  to  protect  third  persons  against  the  unauthor* 
ized  acts  of  their  associates.  But  where  no  question  of  notice 
intervenes,  the  dissolution  works  an  absolute  and  unqualified 
roTocation  of  aU  power  and  authoriiy  in  either  of  the  parfcneni 
to  bind  the  others  to  any  new  engagement,  contract,  or  promise. 
In  the  language  of  Judge  Story:  "None  of  the  partners  can 
create  any  new  contracts  or  obligations  binding  upon  the  part- 
nership; none  of  them  can  buy,  or  sell,  or  pledge,  goods 
on  account  thereof;  none  of  them  can  indorse  or  transfer 
the  partnership  securities  to  third  persons,  or  in  any  other  way 
make  their  acts  the  acts  of  the  partnership.  In  short,  none  of 
tham  can  do  any  act,  or  make  any  disposition  of  the  partnership 
property  or  funds,  in  any  manner  inconsistent  with  the  primary 
duty,  now  incumbent  on  all  of  them,  of  winding  up  the  whole 
concerns  of  the  partnership:"  Story  on  Part.,  sec.  822. 

As  the  dissolution  finds  the  engagements  of  the  company 
they  must  remain  until  liquidated  and  paid,  unless  all  the  part- 
ners consent  to  come  under  new  engagements  or  otherwise 
change  their  character.  But  while  tiie  law  thus  efiectually 
rcTokes  the  implied  authority  of  each  partner  to  incur  new  obli- 
gations for  his  fellows,  it  leayes  upon  each  of  them  the  duty  and 
continues  to  each  the  right  of  doing  whatever  is  necessary  to 
collect  the  debts  due  to  the  partnership,  and  to  adjust,  settie, 
and  pay  its  debts.  "  For,"  as  stated  by  the  same  author,  ''all 
these  acts,  if  done  bona  fide^  are  for  the  advancement  and  con- 
■ammation  of  the  great  objects  and  duties  of  the  partners  upon 
the  dissolution,  to  wind  up  the  whole  partnership  concern  and 

Ail  Dk.  Vol.  LZn— 18 


274  Palmer  v.  Dodgb.  [Ohkb 

divide  the  suxplns,  if  any,  among  them,  after  all  debts  and 
ehazges  are-extingaished." 

This  right  of  each  of  the  partners  to  participate  in  the  settle- 
ment of  its  concerns  can  not  be  interfered  with  hy  his  copart- 
ners, without  subjecting  them  to  the  controlling  power  of  a 
court  of  equify;  but  it  may^  of  course,  be  Toluntaiily  relin- 
quished by  himself,  or  he  may,  if  he  sees  fit,  inyest  them  with 
more  extended  authority  than  the  law  will  imply  in  their  behalL 

Appended  to  the  notice  of  dissolution  signed  by  the  partners, 
and  published  in  this  case,  is  this  clause:  *'  The  remaining  un- 
settled business  of  the  firm  will  be  adjusted  by  E.  Short,  who  is 
hereby  authorized  to  close  all  business  transactions  of  the  late 
firm."  This  notice  is  good  evidence  of  the  agreement  of  the 
parties,  and  conclusive  in  favor  of  third  persons  who  have  dealt 
with  Short,  relying  upon  it.  -But  no  one  could  or  had  a  right 
to  iinderstand  it  as  authorizing  Short  to  do  more  than  to  adjust 
and  settle  the  unfinished  business,  and  close  up  the  transactions 
of  the  firm.  This  power  he  had  without  the  agreement;  it  added 
nothing  to  the  authority  which  the  law  gave,  and  took  nothing 
from  it.  Without  the  agreement,  Palmer  would  have  had  equal 
authoriiy ,  and  the  utmost  effect  that  can  be  given  to  the  stipula- 
tion would  be  to  consider  it  as  a  surrender  of  the  right  by  him, 
and  as  having  invested  Short  alone  with  the  power  before 
possessed  by  both. 

There  is  not  a  word  in  it  to  indicate  an  intention  to  confer 
upon  him  the  authoriiy  to  create  new  obligations.  He  is  there- 
fore remitted  to  his  power  as  a  partner,  and,  considered  in  that 
light,  it  is  vexy  clear  he  possessed  no  such  authority.  The 
elementaiy  books  and  adjudged  cases  speak  an  almost  uniform 
language  upon  the  subject. 

In  2  Bell's  Commentaries,  page  644,  it  is  said:  ''After  dissolu- 
tion, no  valid  draft,  acceptance,  or  indorsation  can  be  made  by 
the  firm;  and  it  is  no  authoriiy  to  do  so  if  any  one  partner  is,  in 
the  notice,  empowered  to  receive  and  pay  the  debts  of  the  com* 
pany.  The  indorsation,  draft,  or  acceptance  must  be  done  by 
all  the  partners,  or  by  one  specially  empowered  so  to  act  for 
them."  And  he  confines  the  power  to  ''  acts  of  administration 
which  are  necessaiy  for  winding  up  the  concern." 

Collyer  on  Partnerships,  in  section  641,  says:  "  Where  a  bona 
fide  dissolution  has  taken  place,  the  retiring  partners  are  not  to 
be  bound  by  instruments  negotiated  in  the  name  of  the  original 
firm  after  such  dissolution,  even  though  they  are  negotiated  bj 
a  partner  authorized  to  settle  the  partnership  concerns."    Ts 


Dec  1854.]  Falmsb  v.  Dooco.  275 

ttiOBame6ffect,8ee8E6iif8<]!om.,6ihed«,68;  BtcnyonPftrifSeo. 
822.  In  England,  Mel  ?.  StiUon,  8  Eap.  110,  is  the  leading 
case,  and  has  been  uniformly  followed  eyer  since.  In  that  case, 
a  promissoiy  note  due  to  the  firm  at  the  time  of  dissolution  was 
afterward  indorsed  in  the  name  of  the  firm  by  a  partner  who  had 
authority  to  settle  and  liquidate  the  partnership  effects,  of  which 
notice  had  been  giyen  in  the  Gasette;  suit  was  brought  by  the 
indorsee  to  charge  all  the  members  of  the  firm  as  indorsers  of 
the  note.  For  the  plaintiff,  it  was  insisted:  1.  Thai  if  the  note 
existed  before  the  dissolution,  a  partner  having  anthorily  to  sei- 
tie  and  liquidate  the  partnership  accounts  had  a  right  to  pat 
the  partnership  name  upon  it,  and  that  a  bonajide  holder  might 
resort  to  all  the  partners;  2.  That  if  the  indorsing  partner 
raised  money  by  sale  of  the  note,  and  applied  it  in  payment 
of  the  partnership  debts,  it  was  money  had  and  receiTed  to  the 
use  of  the  partners,  and  all  would  be  liable. 

Lord  Eenyon  most  emphatically  denied  both  of  these  proposi- 
tions, and  held  that  a  recoTcry  could  not  be  had  on  the  indorse- 
ment, or  on  the  money  counts,  against  any  but  the  indorsing 
partner.  He  says:  '*  To  contend  that  this  liability  to  be  bound 
by  the  acts  of  his  partner  extends  to  time  subsequent  to  the  dis- 
solution is,  in  his  mind,  a  mosif  monstrous  proposition.  A  man, 
in  that  case,  can  never  know  when  he  is  to  be  at  peace  and  re- 
tired from  all  concerns  of  the  jMurtnership/'  In  that  countxy, 
from  that  day  to  this,  there  has  been  a  constant  and  most  de- 
cided leaning  against  giving  affect  to  new  contracts,  notes,  or 
other  instruments  made  by  a  partner  for  the  firm  after  dissolution, 
as  will  be  seen  by  the  cases  of  Finder  v.  WUka,  1  Marsh.  248; 
S.  C,  6  Taunt.  612;  KUgaur  v.  Mnlysm,  1  H.  Black.  156. 

One  of  the  earlist  American  cases  is  that  of  Hockley  v.  Patrick 
ds  Edsiie,  8  Johns.  636.  Patrick  and  Hastie  were  partner^  in 
trade;  they  dissolved  their  partnership,  and  made  publication 
of  their  dissolution.  The  advertisement  requested  all  persons 
having  any  unsettled  business  with  the  firm  to  call  on  Hastie  for 
adjustment  of  the  same. 

Two  years  afterwards  the  plaintifb  exhibited  an  account  against 
the  firm  on  which  Hastie  indorsed  for  the  firm  an  acknowledg- 
ment that  it  was  due.  Suit  was  brought  on  this  account  against 
Patrick  &  Hastie,  and  the  question  was,  whether  the  acknowl- 
edgment was  sufScient  to  charge  the  defendant  Patrick.  The 
court  said:  '*  It  was  a  clear  case  that  Hastie  could  no  more 
bind  his  copartner  by  this  acknowledgment  than  he  could  do 
it  by  giving  a  promissoiy  note  in  the  name  of  the  &rmS 


t76  Palmer  v.  Dodqk.  [Ohks 

Martin  y.  WaUon  S  Co.,  1  McOord,  16,  is  another  American 
case  of  early  date.  In  that  case,  the  firm  of  Walton  &  Go.  had 
been  dissolved,  and  notice  given  by  advertisement  that  Walton, 
one  of  the  partners,  was  authorized  to  settle  the  concerns  of  the 
partnership.  At  the  time  of  the  dissolution  of  the  firm  it  was 
indebted  by  note  to  the  plaintiff.  After  the  dissolution  the 
note  then  in  question  was  given  by  Walton,  in  the  name  of  the 
firm,  as  a  renewal  note,  and  the  question  was,  whether  this  note 
was  binding  on  the  other  partners.  The  court  said:  **  There  is 
no  doubt  that  if  the  note  was  given  after  the  dissolution  of  the 
partnership,  and  the  plaintiff  had  notice  of  it,  the  firm  are  not 
bound.  An  authority  to  one  of  the  copartnership  to  aetUe  the 
affiurs,  receive  and  pay  the  .debts,  does  not  warrant  him  to  draw 
a  bill  or  give  a  promissory  note  in  the  partnership  name." 

In  Sanford  v.  Nicldea,  4  Johns.  227,  the  disability  of  a  part- 
ner after  dissolution  to  indorse  bills  given  before  the  dissolu- 
tion, even  if  he  had  authority  to  settle  the  partnership  affidrs, 
is  held  to  be  settled  law. 

This  question  again  came  up  at  a  much  later  period,  and  was 
elaborately  considered  by  the  supreme  court  of  New  York  in  the 
case  of  National  Bank  v.  N<yrion,  1  Hill  (N.T.),  672.  That  was  an 
action  in  awumpeU  against  the  defendants  as  makers  and  in- 
dorsers  of  a  promissory  note.  The  note  was  dated  in  Januaiy, 
1840,  and  puix>orted  to  have  been  indorsed  by  Seaman  & 
Norton  as  first  indorsers,  and  by  Henry  J.  Seaman  as  second 
indorser.  Seaman  &  Norton  was  the  name  of  the  former  firm, 
composed  of  Heniy  J.  Seaman  and  the  defendant  Norton. 
Both  indorsements  were  in  the  handwriting  of  Seaman.  The 
firm  was  dissolved  in  18S7,  and  notice  of  the  dissolution  was 
then  published.  The  advertisement  was  in  these  words,  viz. : 
"  The  copartnership  heretofore  existing  between  the  subscribers, 
under  the  firm  of  Seaman  &  Norton,  is  this  day  dissolved 
by  mutual  consent.  The  business  of  the  firm  will  be  settled  by 
Henry  J.  Seaman,  who  is  duly  authorized  to  sign  the  name  of 
the  firm  for  that  purpose." 

A  short  time  prior  to  the  dissolution,  the  National  Bank  had 
discounted  for  the  firm  of  Seaman  &  Norton  a  note  drawn 
by  the  same  makers  with  the  one  then  in  question,  and  in- 
dorsed by  the  firm.  That  note  was  held  by  the  bank  when  the 
dissolution  took  place.  It  had  been  renewed  from  time  to  time 
by  the  same  parties,  and  the  note  then  in  question  was  given  by 
way  of  renewal  for  the  balance  then  remaining  due  on  the  loan. 
The  question  was,  whether  the  partner  Norton  was  liable. 


Dec.  1854.]  Palmeb  v.  DoDai.  877 

The  comty  in  the  first  place,  lay  down  and  enforoe  the  doo- 
trine  as  settled  lair  that  one  partner,  after  diasolntion,  ean  not 
bind  the  others  even  by  the  renewal  of  a  partnership  note.  They 
then  proceed  to  say:  *'  The  note  in  question,  a  renewal  note, 
which  had  been  running  in  bank  before  the  dissolution,  was 
renewed  by  Seaman,  one  of  the  partners,  afterwards.  It  was  of 
couise  Toid  in  respect  to  Norton,  his  copartner,  unless  a  power 
of  renewal  was  expressly  delegated  at  the  time  of  the  dissolu- 
tion. The  plaintifiis  claim  that  such  power  was  delegated, 
and  base  themselves  on  the  clause  in  the  adyertisement  of  dia- 
fiolution,  declaring  that  the  business  of  the  firm  was  to  be  set- 
tled with  Seaman,  who  was  authoriaed  to  sign  the  name  of 
the  firm  for  that  purpose.  This  was  no  more  than  a  power  to 
liquidate  partnership  demands,  and  sanction  the  liquidation  by 
the  firm  name.  It  gave  no  more  power  to  renew  the  old  note 
than  io  give  one  {Niyable  in  chattels." 

The  court  reyiew  and  comment  upon  the  above-mentioned 
eases  of  Abd  v.  SuiUm,  8  Esp.  110;  IfoHtn  v.  Walton,  1  McCord, 
16;  and  Hacldey  v.  Patrick  d  Hagtie,  8  Johns.  586,  all  three  of 
which,  they  say,  were  in  point.  In  respect  to  them  they  use 
this  language:  "These  were  all  cases  of  express  authority  to 
settle  after  dissolution;  yet  the  first  holds  that  the  power  did 
not  extend  to  indorsing  a  partnership  note,  even  in  liquidation 
of  a  partnership  debt;  in  the  second  it  was  denied  to  be  a 
power  of  renewal;  and  in  the  third  a  power  of  adjustment  was 
denied  to  operate  as  an  authority  to  sign  an  account  stated. 
In  the  case  at  bar,  an  express  power  to  use  the  name  is  given,  but 
it  is  confined  to  the  purposes  of  adjustment  (settlement).  The 
words  did  not  work  an  extension  of  power  in  any  respect  be- 
yond the  form  of  doing  the  business. '^ 

The  same  question  came  before  the  supreme  court  of  Mawfla- 
ehnsetts  in  the  case  of  Parker  v.  MsComber,  18  Pick.  609.  j 

There  a  firm,  consisting  of  three  partners,  was  dissolved;  two  ! 

of  them  were  authorized  to  collect  the  debts  and  settle  the  J 

hosiness  of  the  partnership.  They  indorsed  a  note  due  to  the 
film  at  the  time  it  was  dissolved.  The  question  was,  whether 
the  other  partner  was  liable  as  indorser  of  the  note.  For  the 
plaintiff,  it  was  insisted  that  the  authority  given  to  the  two 
other  partners  raised  the  inference  that  it  was  intended  to  give 
them  power  to  negotiate  the  note  then  in  question.  The  court 
■aid  in  reply:  *'We  can  not  perceive  the  correctness  of  this 
inference.  Were  it  soimd,  each  partner  must  be  presumed  to 
know  of  all  the  negotiable  biUs  and  drafts  due  to  the  firm  and 


i 


278  Palmeb  v.  Dodok  [Ohio^ 

unindorsed  at  the  time  at  the  dissolution.  He  must  be  pre- 
sumed to  have  intended  to  give  authority  to  negotiate  them  in 
the  name  of  the  firm.  But  if  this  were  so,  the  general  rule  of 
taw  would  be  that  an  authority  to  settle  the  business  would  be,  of 
course,  an  authority  to  indorse  negotiable  securities;  but  the 
general  rule  is  clearly  the  other  way.'' 

This  question  arose  also  in  the  state  of  Maine,  in  the  case  of 
Perrin  v.  Keene^  19  Me.  357.  There  one  Weston,  a  partner 
having  authority  to  close  up  and  settle  the  afiEairs  of  a  partner- 
ship, settled  an  outstanding  account,  and  gave  three  notes  of 
the  firm  for  the  debt,  which  was  divided  into  installments. 
Eeene,  who  was  a  member  of  the  dissolved  firm,  resisted  pay- 
ment. The  court  said:  "  Weston  had  no  -right  to  sign  the 
notes  In  suit  in  the  name  of  the  firm,  unless  he  derived  it  from 
the  authority  given  to  him  to  settle  and  adjust  the  copartner- 
ship business.  This  does  not  give  him  any  power  to  make  new 
contracts,  or  to  create  new  liabilities  binding  on  the  firm.  No 
such  power  can  be  derived  from  the  agreement  that  Weston 
should  settle  and  close  up  the  business  of  the  firm.  The  notes, 
then,  wei-e  made  and  delivered  without  authority,  and  are  not 
valid  against  the  firm."  And  the  same  doctrine  is  most  ex- 
plicitly declared  in  Darling  v.  Marshy  22  Me.  184. 

And  finally,  the  supreme  court  of  the  United  States,  in  BeU  v. 
Morrison,  1  Pet.  351,  after  a  very  elaborate  examination  of  the 
subject,  thus  announce  the  result:  "The  light  in  which  wo 
are  disposed  to  consider  this  question  is,  that  after  a  dissolution 
of  a  partnership,  no  partner  can  create  a  cause  of  action  against 
the  other  partners,  except  by  a  new  authority  communicated  to 
him  for  that  purpose.  It  is  wholly  immaterial  what  is  the  con- 
sideration which  is  to  raise  such  cause  of  action,  whether  it  be  a 
supposed  pre-existing  debt  of  the  partnership,  or  any  auxiliary 
consideration  which  might  prove  beneficial  to  them.  Unless 
adopted  by  them,  they  are  not  bound  by  it." 

Further  illustrations  of  the  doctrine  may  be  found  in  MUcheU 
V.  Oslram,  2  Hill  (N.  Y.),  520;  Bootes  v.  WeUford,  4  Munf.  216 
[6  Am.  Dec.  510];  Maker  v.  TiLcker,  1  McCk>rd  Oh.  172;  Veale  v. 
Haaaan,  3  McCord,  278;  FoUm  v.  Powrie,  2  Desau.  40;  Martin 
V.  Kirk,  2  Humph.  529. 

In  opposition  to  this  prevailing  current  of  authority,  we  are 
referred  to  three  cases  decided  by  the  supreme  court  of  Pennsyl- 
vania: Davis  V.  Desaiupie,  5  Whart.  531;  Bowser  v.  Irvine,  8 
Watts  &  S.  347  [38  Am.  Dec.  768];  and  Broum  v.  Clark,  14  Pa. 
Bt.475.    In  the  first  of  these  cases  it  seems  to  have  been  held  that 


Dec  1854.]  Palmer  v.  Dodqs.  279 

• 

a  partner  authorized  to  close  up  theaflSGursof  adiasolTed  partner- 
ship  might  renew  a  note  drawn  by  the  firm,  or  even  borrow  mon^ 
on  the  credit  of  the  firm  to  pay  its  debts;  which,  if  bat  bonajlda 
and  faithfnlly  applied,  would  create  a  valid  claim  against  the 
other  members  of  the  firm,  although  the  creditor  had  knowledge 
of  the  dissolution.  It  may  well  be  doubted  whether  the  court 
intended,  in  the  two  latter  cases,  to  press  the  doctrine  so  far,  or 
to  approve  of  all  that  is  said  in  that  case.  Gibsottt  0.  J.,  in 
Hcfiiaer  y.  Irvine ^  mipra^  seems  to  consider  what  he  calls  the  ruling 
principle  of  that  case  to  have  been  an  affirmance  of  &e  author- 
ity of  the  partner  to  renew  the  eyidenoes  of  the  firm's  indebted- 
ness;  and  he  admits  that,  **  by  the  dissolution  of  the  partnership, 
tiie  power  which  each  had  to  bind  the  others  is  at  an  end,  ex- 
436pt  *  *  *  to  finish  what  remains  to  be  done  in  order  to  close 
its  concerns."  Even  to  this  extent  it  would  find  little  or  no  sup- 
port in  judicial  opinion  out  of  that  state,  although  it  might  not 
be  deemed  a  very  wide  departure  from  principle  when  the  obli- 
gations of  the  firm  were  not  materially  changed. 

The  case  called  for  an  application  of  the  doctrine  which  allows 
the  acts  and  acknowledgments  of  one  of  the  partners,  after  the 
dissolution,  to  take  a  contract  of  the  firm  out  of  the  operation  of 
the  statute  of  limitations.  This  doctrine,  originating,  as  Judge 
Story  says,  in  an  unreasoned  decision  of  Lord  Mansfield  in  WhU- 
comb  T.  WkiHng,  Dougl.  652,  in  which  his  lordship  "  dryly  and 
briefly"  said,  "  Payment  by  one  is  payment  for  all,  the  one  act- 
ing yirtually  as  the  agent  for  the  rest;  and  in  the  same  manner 
an  admission  by  one  is  an  admission  by  all,  and  the  law  raises  the 
promise  to  pay  when  the  debt  is  admitted  to  be  due"— has  been 
very  generaUy  repudiated  in  this  couniry,  and  so  far  as  I  am  ad- 
Tised,  uniformly  by  the  courts  of  this  state.  But  the  very  ground 
upon  which  this  controyersy  has  proceeded  affords  indubitable 
evidence  of  the  general  acquiescence  in  the  principle  which  denies 
the  power  of  one  partner  to  bind  the  firm  to  new  engagements; 
those  who  support  the  doctrine  insisting  that  the  acknowledg- 
ment is  a  mere  continuation  of  the  original  promise;  and  those 
who  oppose  it  regarding  it  as  a  new  contract  or  promise  spring- 
ing out  of  and  supported  by  the  original  consideration. 

We  see  nothing  to  relieve  this  case  from  the  operation  of  this 
aettled  principle.  If  we  admit  the  power  to  renew  the  obligations 
of  the  firm  without  increasing  or  materially  changing  its  liabili- 
ties,  or  the  right  of  the  unpaid  creditor  of  the  firm  to  resort  to 
liis  original  obligation,  it  does  not  help  the  defendant.  The 
note  to  which  he  was  a  pariy  was,  in  substance  and  legal  effect. 


fM  Talmbl  c  Dmk  [OUi^ 


eaediSfl;  iocleal  wiih 

othciB;  to 
Mid  to  it. 

Bat  the  cndiuir  of  the  firm  1mm  been  foEy  paicL;  mad  haw 
Dodge  beeocie  its  creditor  cow?  Hie  sazelj  eoald  not 
aelf  SQcH  wiih^OTit  tLe  sLaeent  cr  xeqpesc  cf  aH  its  ciemlKEs.  His 
does  not  cLuin  that  Pjiner  cto'  persocallT  requested  him  to 
•flscme  or  pay  any  of  izs  liabiliries;  and  Sfiort  has  no  power  to 
tnmte  the  relation  cf  dehtcr  and  creditor  Letweeu,  him  and 
Palmer.  He  became  the  surety  upon  a  cote  wiiich  Inaiid  Short 
alone,  at  the  request  cf  SLcrt.  and  is  diexefore 
and  must  loci:  to  him  alone  f cr  indocnity. 

He  stands  in  no  better  oDndidon,  certainlT. 
did  in  the  case  of  Bovrmcn  x.  E^.odget,  3  Met.  906,  who  in  a  snit 
against  both  of  the  partners  of  a  dcsolTed  psrtnerdixp  for  a 
partnership .  debt  became  the  bail  of  one  of  thton,  and  was 
obliged  to  pay  the  debt;  and  in  which  the  eoart  held  tiiat  ha 
eocld  recover  no  part  of  the  amoont  from  the  other  paitner. 

TTe  shonld  find  no  difficulty  in  holding  that  the  proof  of  the 
dissolution  was  sufficient  to  charge  Dodge,  in  the  ahaenee  of 
any  proof  on  his  part,  to  show  that  he  had  dealiDgs  with  the  firm 
before  its  disaolution*  But  this  question  is  wholly  immaterial, 
as  the  court,  in  effect,  took  it  from  the  jury,  and  charged  that 
Dodge  would  be  entitled  to  lecoTer  notwithstanding  he  had 
notice,  if  Short,  in  good  fidth,  thought  it  neoesBaiy  to  renew  the 
note,  and  procured  him  to  become  smety  on  iL  In  this  we 
think  they  erred;  and  the  judgment,  so  far  as  fte  amount  of 
this  note  entered  into  it,  must  be  rovecaedi 


Poims  or  PAsavm  arsk  'Damofucmm  or  Rbh:  See  aitiadNl  aotas  to 
Chnrdm  r.  (HtpittmU  6  Am.  Dea  674;  Torn  Kmrm  t.  i^iluu,  61  IdL  S3Ql 

diicuwDg  the  nbject  See  aleo*  to  the  euM  point»  Price  t.  3>MKf,  14  Id. 
81;  OraveM  ▼.  Merrp,  16  Id.  471;  OaOioU  ▼.  PlaaUre  ami  Mechmmia^  BoMk, 
95  Id.  256;  Mmmc  ▼.  Dondmm^  Id.  309,  and  caeee  Vdted  in  note  311;  Commer- 
ctalBoMhw.  Perry,  43  Id.  168;  note  to  Ewmpkria  r.  CtoitaM,  48  Id.  248} 
note  to  JBZBeott  T.  A"kfto(t,  Id.  656.  ThelorQeoittgeMBietovtfaat^  affeerdie- 
■oliition,  a  (ertoer  can  not  bind  the  firm  withont  exprem  nathori^.  He  oaa 
not  create  or  revive  a  debt  against  hia  late  partaen  witiiant  vMh  aatlioriif, 
either  bjr  note,  Woodworih  v.  Dawmer,  37  W.  Oil,  or  o«her«iM:  Ifana  a 
Tvrherl,  21  Id.  632,  and  caeee  cited  hiifra. 


1854]  SCHEFERUNG  U  HCVFMAV.  281 

Pabxkss's  Powxe  to  BmB  Fibm  ab  Suebtt:  Jfboi  r,  Sahb^,  10  Am.  Dm, 
908;  extended  note  to  N,  Y.  Fire  Ins,  Co.  ▼.  BetmeU,  13  Id.  115,  dtsiwing 
the  subject:  Andrews  ▼.  Planters*  Bank,  45  Id.  900. 

Trx  principal  case  was  oitsd  in  WtUon  t.  Fhrder,  20  Ohio  St  96; 
Oardner  v.  Cbnn,  34  Id.  192,  to  the  point  that  after  the  diaeolation  of  *  firm 
neither  partner  is  anthorind,  in  the  abaenoe  of  apeoial  anthorityy  to  ue  the 
■ameof  the  firm  in  creating  new  oontraeti  or  liabilitiee;  and  that  iHiera  there 
is  no  expram  authority,  the  Uw  doea  not  imply  it.  But  aa  to  thia  Uie  pria- 
eipal  oaaa  waa  distinguished  in  Feigley  t.  WMUaier,  22  Id.  614. 


SOHKFRRTiTNG    V.  HtTFFHAK. 

[4  Omo  BxAXB,  aa.) 

Waaaaam  Autehuptial  Coktbact,  Valid  whirs  Mad%  Am  bt  Wbigii 
HniBAHD  AoREBD,  for  a  Taluable  oonsideratian,  that  all  the  property  of 
the  intended  wile,  then  owned  "by  her,  aa  well  aa  tliat  which  they  n4ghl 
mutually  aoquirs  during  marriage,  should  be  absolutely  hen,  is  not  In- 
harmonious  with  the  poUey  of  our  laws,  and  will  be  enforeed  in  thia 
country. 

RSOPBHTY    BXLOirOINO    TO    WiTR    UNDXB    VaLID    FoBSION    AKTBITUPTIAL 

CoNTBAcr,  Madb  bt  Hkb  akd  heb  HuBBAKDy  oan  not  be  taken  on 
execution  in  this  country  to  satisfy  the  husband's  debts. 
OouBT  OP  Equxit  wnx^  BT  iBjuvonoxr,  Restrain  Crrditob  op  Husbaitd 
PBOM  Seluho,  under  execution,  the  wife's  property  belonging  to  her  by 
the  terms  of  a  valid  foreign  antenuptial  coatmot  made  by  the  hnsbaad 
and  wife. 

Bill  in  cfaanoery.    The  facts  are  stated  in  the  opinion. 

Oonover  and  Craighead,  for  the  complainant. 

21  /.  8.  SmUh,  and  Eiaynes  and  Edward,  for  the  defendant. 

ByCourtyExinioir,  J.  William  Huffinan  obtained  judgment  in 
flie  court  of  common  pleas  of  Montgomery  county  against  Henry 
Kunnecke  and  Henry  Scheferling  for  about  five  hundred  dollars, 
loaned  to  Eunnecke,  for  the  payment  of  which  money  Henry 
Scheferling  was,  in  fact,  but  surety.  An  execution  was  issued  on 
this  judgment,  and  the  sheriff  leyied  upon  yarious  articles  of 
personal  property,  consisting  of  horses,  cattle,  etc.,  as  the 
property  of  Heniy  Scheferling.  The  bill  in  this  case  was  filed 
by  Ernestine  Scheferling,  by  her  next  Mend,  against  her  hus- 
band, Henry  Scheferling,  William  Huffinan,  the  judgment  cred- 
itor, and  others,  claiming  that  the  property  thus  leyied  upon 
was  her  property,  and  not  that  of  her  husband,  and  praying 
that  the  court  might  so  decree,  and  enjoin  Huffinan  from  mak- 
ing sale  of  the  property. 

HuAnaa  aBswers,  denying  that  the  property  belonged  to  the 


SCHEFEBUNG  V.  HUFFlCAir.  [QhlO^ 

\,  and  oTaiTniDg  that  it  in  &ct  belonged  to  Henxy  Sohefer' 
Ixi^gf  and  was  liable  to  be  taken  in  execution  for  his  debts. 

.  Testimony  was  taken  in  the  case  on  both  sides,  and  on  th€ 
hearing  in  the  common  pleas  the  court  found  the  equity  in  the 
^^jxxjg^loiBaJit,  and  decreed  a  perpetual  injunction.     The  defend- 
i^t  Huffinan  appealed,  and  the  case  was  resenred  by  the  dis- 
trict court  of  Montgomery  for  the  decision  of  this  court. 

In  support  of  the  complainant's  exclusiye  claim  to  the  prop- 
erty leiied  upon,  she  introduced  and  proved  by  proper  evidence 
Uiat  in  the  year  1838  she  entered  into  an  antenuptial  contract 
^th  her  present  husband,  Henxy  Soheferling. 

This  contract  was  duly  entered  into  before  the  proper  court 
in  Germany,  and  was  valid  and  binding  in  that  country.  The 
question  of  its  validity  in  Germany  was,  by  agreement  of  coun- 
sel, submitted  to  the  German  consul  at  New  York,  who  decided 
that  this  was  a  legal  and  binding  contract  where  made.  The 
validity  and  interpretation  of  the  contracts  are  to  be  governed 
by  the  laws  of  the  country  where  made. 

When  this  contract  was  entered  into  Ernestine  was  a  vridow 
of  forty-two  years  of  age,  and  her  husband,  Henry  Soheferling, 
a  man  of  thirty-two.  She  had  property  to  the  amount  of  sev- 
eral thousand  dollars;  he  had  little  or  no  property.  She  was 
the  mother  of  five  children  by  her  first  husband. 

The  contract,  after  reciting  the  various  facts  making  it  lavrfnl 
to  marry,  has,  among  others,  the  following  provisions:  '*  In  re- 
gard to  our  property,  we  agree  as  follows:  1.  That  if  I,  Shefer- 
ling,  should  die  first,  my  affianced,  Ernestine,  shall  inherit  all  my 
property,  but  if  at  the  time  of  her  death  there  should  be  children 
or  descendants  living  from  this  marriage,  she  shall  not  deprive 
them  of  said  property;  2.  That  if  I,  Ernestine,  should  die  first, 
be,  Sherferling,  shall  receive  annually  for  his  support,  and  in  full 
satisfaction  for  all  claims  for  property  acquired  during  our  mar- 
riage :  a,  the  little  by-house  for  a  residence;  5,  the  use  of  the  piece 
of  land  on  which  the  by-house  stands;  c,  annually  twenty  him- 
ten  of  rye,  weighing  each  from  forty-eight  to  forty-nine  pounds; 

d,  two  himten  of  wheat,  each  from  fifty-three  to  fifty-four  pounds; 

e,  nine  himten  of  barley,  forty-two  pounds  each;  /,  twenly  pounds 
of  pealed  barley;  y,  twenty  pounds  of  groats.  If,  however,  he 
should  marry  again,  all  these  uses  shall  cease  from  the  day  of 
such  marriage,  and  in  that  case  he  shall  receive:  a,  one  hundred 
tbalers  if  we  should  have  been  married  five  years;  5,  two  hundred 
thalers  if  we  should  have  been  married  ten  years;  c,  four  hundred 
ihalers  if  we  should  have  been  married  fifteen  years,  and  no 


Dee.  1864]  Scheferuno  v.  Huffmak.  283 

more.  Besides  this,  he  shall  have  the  use  of  his  own  property, 
but  he  shall  not  depriye  the  children  which  we  may  haye  of  the 
same;  and  he  shall  haye  no  claim  whatsoever  upon  my  (Emes- 
tme's)  own  property,  nor  upon  that  which  we  may  acquire  dur- 
ing our  marriage.  Finally,  I,  Ernestine,  in  order  to  preyent 
contentions  between  my  children  of  the  two  marriages,  declare 
it  is  my  will  that  all  the  property  which  may  be  acquired  dur- 
ing the  continuanoe  of  this  marriage  shall,  after  my  demise,  be 
divided  in  equal  shares  between  my  children  of  the  first  and  this 
marriage.'' 

The  first  question  made  on  this  contract  is  to  determine  its 
proper  construction.  It  is  claimed  by  the  respondents  that  this 
contract  relates  only  to  a  disposition  of  the  property  at  the  time 
of  the  decease  of  either  or  both  the  parties;  that  the  contract 
relates  to  property  which  may  be  in  existence  at  the  time  of  the 
death  of  one  or  the  other  of  the  parties,  and  not  to  the  title  dur- 
ing marriage. 

We  think  such  is  not  the  proper  construction  of  this  agree- 
ment. It  is  provided  that  if  she  should  die  first  he  shall  re- 
ceive certain  things  in  full  satisfaction  for  all  claims  for  property 
acquired  during  marriage;  and  again,  if  she  should  die  first  and 
he  marry  again  he  should  receive  so  many  thalers,  but  should 
have  no  claim  whatsoever  on  her  (Ernestine's)  own  property,  nor 
upon  that  which  they  might  acquire  during  their  marriage.  It 
is  vexy  evident  from  this  contract  that  if  Heniy  Schef erling  had 
the  power  under  it  to  dispose  of  Ernestine's  own  property,  and 
the  property  acquired  during  marriage,  the  whole  object  of  the 
contract  would  be  defeated,  and  tiiere  might  be  nothing  left  of 
any  kind,  and  the  contract  might  as  weU  not  have  been  made. 
The  language  of  the  contract  gives  her,  in  equally  as  strong 
language,  the  control  and  disposition  of  the  property  ac- 
quired during  marriage  as  of  her  own  property;  and  for  his 
relinquishment  of  that  property,  if  she  should  die  first,  a  full 
satisfaction  was  provided  for  him  in  consideration  of  such  relin- 
quishment. But  in  construing  this  contract,  we  do  not  feel  it 
necessary  to  determine  to  whom  belongs  the  property  which  he 
might  acquire  during  marriage  with  her  own  means  exclusively. 

When  the  parties  came  to  this  country  he  had  little  or  no 
property.  She  had  several  thousand  dollars  in  money,  with 
which  were  purchased  real  estate  and  the  title;  to  take  that, 
Bcheferling  should  have  a  fee-simple  estate  in  an  undivided 
portion  of  the  land  after  the  death  of  Ernestine.  She  made  the 
contract;  she  had  the  money  and  took  the  deed,  according  to 


284  SCHEFERLINO  V.  HUFFMAN.  [Ohio, 

her  views  of  propriety  and  right;  her  money  pnrchaaed  all  the 
personal  property,  sach  as  household  fomitare  and  tamdng 
utensils,  etc. ;  and  if  his  labor  should,  to  a  certain  extent,  be 
mixed  up  in  some  of  the  products  of  Oke  farm  which  ha^e  been 
seized  in  execution,  it  is  veiy  eyident  that  her  own  money  and 
means  are  also  mixed  with  his  labor^  and  that  she  has  some  in* 
terest  in  these  articles,  which  are  proposed  to  be  sold  as  hie 
property. 

It  is  property  which  they  acquired  by  her  means  and  his  labor, 
and  which,  we  think,  upon  a  fiur  construction  of  this  contract, 
belongs  to  her  exclusiyely. 

It  ia,  however,  claimed  that  by  tiie  sale  of  the  by-house,  etc., 
in  Oermany,  and  Hhe  conduct  of  Hhe  parties  in  this  country,  it 
may  be  fairly  inferred  that  Hhej  had  abandoned  the  agreement. 
We  are  well  satisfied,  from  the  whole  of  Hhe  evidence,  that  the 
parties  intended  no  such  thing;  that  he  considered  her  the  owner 
of  all  the  property  by  virtue  of  the  original  contract,  and  con- 
sulted her,  and  indeed  was  wholly  governed  by  her,  in  all 
his  sales  and  purchases;  that  he  accoimted  to  her  for  all  the 
property  he  sold,  of  eveiy  kind,  and  that  she  furnished  the  money 
to  make  all  the  purchases. 

Nor  do  we  perceive  that  the  execution  of  this  contract  in  this 
country,  according  to  the  original  intention,  would  interfere  at 
all  with  the  policy  of  our  own  laws. 

Heniy  Scheferling,  when  he  entered  into  this  contract,  was 
capable  of  making  such  a  contract.  He  considered  that  he  had 
procured  a  su£Scient  consideration  for  agreeing  to  give  to  her  the 
whole  of  her  own  property,  and  all  the  property  which  they 
should  mutually  acquire  during  the  marriage. 

He  is  still  satisfied  with  that  contract,  and  no  good  reason  can 
be  assigned  why  such  contract  should  not  be  fcdly  earned  into 
execution  as  between  the  parties  themselves. 

Our  conclusion  is,  that  the  properly  levied  upon  belongs  to 
Ernestine. 

Decree  of  injunction  accordingly. 


That  Wnrs's  Riobts  wnx  bb  Qovebmid  bt  Law  or  Coxnmr  into  wUflh 
■he  intended  to  remove  at  the  time  of  the  marriige,  if  moh  removal  fa  after- 
warda  made,  eee  aathoritieB  cited  in  note  to  Ro¥ih  r.  RokA,  41  Am.  Daa» 
S28.  For  oonstnictiQn  of  contract  between  hoabaad  and  wife  under  the  lam 
of  Spain,  lee  Ldbbe's  Bein  v.  AbcU,  22  Id.  151, 


Dec  1854.]  Oraham  v.  DAvm.  SSI 

Graham  v.  Dayjb. 

{4  Ohio  Bzazb,  961.] 

Om OH  CAamwR  icat,  by  AaBsoixNT  with  Owhze  of  Qooss  iMnxmn^ 
TO  Hm,  80  Fab  Ribtbict  his  Comiion-law  Liabiutt  m  to  ezonar- 
ate  himself  from  losseB  arittng  from  cwuet  over  which  he  had  no  control, 
and  to  which  his  own  fault  or  negligence  has  in  no  way  oontribnted. 

Common  Cabbikb  oan  hot,  bt  Aobkxmiht  with  Owinoi  of  Goom  Ib- 

TBUSTBD   TO  HlM,   RSUBYB  HnfHKT.F    IBOM  RBBFONBIBQITr  fOT   lOBMa 

cansed  by  his  own  n^ligenoe  or  want  of  care  and  skilL 

CoMMOB  Cabbikb  »  Liabls  fob  Suohtbt  Nfolioxbob,  and  sach  negli- 
gence can  not,  byoontraet,  be  made  an  earoeption  to  theeairier's  liability. 

BuBBBN  OF  Pboof  IB  UPON  Cabbisb  in  action  against  him npon  abiUof  lad* 
ing  oontaiiiing  an  ezeeption  of  the  dangers  of  river  naTlgption^  and  in- 
eritabls  aooidflntB,  and  after  proof  of  non-delivery  of  the  goods,  to  show 
not  only  a  loss  within  the  terms  of  the  ezoeptum,  hat  also  that  proper 
care  and  skill  were  exerctaed  to  prsTent  it. 

Pabst  upob  Whom  Affxbmatitb  of  Imns  Dkvolyeb  is  bound  to  give  aU 
his  evidenoe  in  support  of  the  issne  in  the  first  instance;  and  he  can  only 
give  such  evidence  in  reply  as  tends  to  answer  the  new  matter  intto* 
dnoed  by  his  adversary. 

AvT  RsLAZAnoB  OF  RpLB  THAT  Aix  BvnuoraB  nr  Sunomt  of  Aitibma- 
TiVB  OF  Ibsitb  mnst  be  given  in  the  first  instance  is  bat  an  appeal  to  the 
sound  discretion  of  the  court  in  which  the  issue  is  tried,  and  is  not  r^ 
viewable  on  error. 

Ebbob  to  the  diBtrict  court  of  MnHkingnm  comity.  Auump' 
mi,  brought  by  W.  H.  Davis  &  Co.,  plaintiffs  below,  agamst  N. 
W.  Oraham  &  Co.,  defendants,  to  recover  damages  alleged  to 
have  been  sustained  by  Davis  &  Co.  in  consequence  of  the  loss 
of  a  quantity  of  merchandise  which  Graham  &  Co.,  as  common 
cairiers,  contracted  to  deliver.  It  appeared  that  the  goods  were 
shipped  on  the  steamboat  Dan  Convers,  which,  in  passing  down 
the  Ohio  river,  on  November  11, 1852,  and  near  Brunot's  island, 
touched  the  rocky  bottom  on  the  larboard  side  of  the  boat,  caus- 
ing her  to  sheer  to  the  right.  The  boat  was  then  in  a  narrow 
and  dangerous  channel,  but  the  pilot  straightened  her  and  got 
her  in  her  course  while  running  slowly,  still  keeping  the  engine 
in  motion.  At  this  time  the  steamboat  Michigan  was  seen,  ap* 
parently  waiting  at  the  foot  of  the  island  for  the  Dan  Convers 
to  pass.  The  Michigan  had  her  furnace  doors  open,  which 
Uinded  the  pilot  of  the  Dan  Convers,  and,  in  trying  to  avoid  a 
collision  with  the  Michigan,  the  effect  of  the  furnace  fires  upon 
his  vision  caused  him  to  sheer  still  farther  to  the  right  than  he 
otherwise  would  have  done.  In  doing  this,  the  Dan  Convers 
struck  a  snag,  and,  with  the  merchandise  on  board,  was  lost. 
There  was  a  conflict  of  evidence  as  to  what  should  have  been 


286  G&AHAH  V.  DAYia  [Obi<\ 

fhe  condaotof  fhe  pilot  at  the  wheel;  but  the  natuze  of  this  evi- 
dence and  the  other  &ct8  will  appear  from  the  opinion.  It  may 
be  added,  however,  that  the  case  went  by  appeal  to  the  district 
court  of  Muskingum,  where  phuntifb  recove:rod  a  judgment  for 
two  thousand  six  hundred  and  twenty  dollars  and  eighteen 
cents  damages,  and  one  hundred  and  ninety-four  dollars  and 
ninety-four  cents  costs;  and  this  petition  was  filed  to  reverse 
that  judgment. 

(7.  B.  Ooddard  and  E.  B.  Eastman,  for  the  plMnHfly  jjq  enor. 

JeweU  and  O'NeU,  for  the  defendants  in  error. 

By  Court,  BAinixr,  J.  That  the  plaintifBs  in  error  were  oom^ 
mon  carriers,  and  as  such  undertook  to  transport  the  goods  of 
the  defendants  from  Pittsbui^h  to  Zanesville,  and  that  they  were 
never  delivered  at  the  port  of  destination,  are  facts,  not  only 
BufSciently  averred  in  the  declaration,  but  weie  substantially  ad- 
mitted upon  the  trial.  The  bill  of  lading  certified  that  the  goods 
were  received  in  good  order  on  board  the  steamboat  Dan  Con- 
vers,  and  botmd  the  carriers  to  deliver  them  without  delay,  in 
like  good  order,  "  the  dangers  of  river  navigation,  fire,  and  un- 
avoidable accidents  excepted.'' 

The  deelaration  averred  that  they  were  not  prevented  from 
making  the  delivery  by  any  of  the  excepted  perils,  but  that  the 
goods  were  lost  by  the  careless  navigation  of  the  boat,  by  which 
she  was  snagged  and  sunk  at  the  foot  of  Brunot's  island,  in  the 
Ohio  river.  Upon  this  averment  the  parties  were  at  issue,  the 
plaintiffs  in  error  claiming  that  the  loss  was  occasioned  by  one  of 
the  excepted  dangers  of  the  navigation,  and  they  now  insist  that 
the  court  below  erred  in  casting  upon  them  the  burden  of  prov- 
ing  that  the  accident  happened  without  their  &ult,  while  the 
boat  was  being  navigated  with  the  highest  degree  of  care,  and  in 
rejecting  certain  evidence  offered  by  them. 

1.  The  question  presented  upon  the  first  point  arises  upon 
the  charge  in  which  the  jury  were  instructed  that  it  was  incum- 
bent upon  the  carriers,  not  only  to  show  that  the  loss  was  occa- 
sioned by  one  of  the  excepted  perils  mentioned  in  the  bill  ol 
hiding,  but  that  the  proper  degree  of  care  was  exercised  to  pre- 
vent  the  loss;  and,  after  stating  the  three  degrees  of  care  re- 
quired of  bailees  under  different  circumstances,  that  the  carriers 
were  bound  to  the  exercise  of  the  highest  of  these  degrees  of 
care,  and  responsible  for  the  slightest,  of  the  three  correspond- 
ing degrees  of  negligence. 
Counsel  for  the  plaintiffs  in  error  admit  that  it  was  incumbent 


Dec.  1854]  Qkaham  t^.  Dayis.  287 

upon  them  to  haye  ahoim  that  tlie  goods  ware  lost  bj  one  of 
the  exoepted  perilB,  bat  they  iueiBt  that  the  boiden  of  proof  -wns 
then  shifted  upon  the  owners,  and  they  were  bound  to  prove  neg- 
ligence before  the  carriers  oonld  be  charged.  We  think  this 
dividing  a  thing  in  its  nature  indiyisible. 

Either  the  loss  was  occasioned  by  a  peril  of  the  navigation, 
or  by  the  n^ligence  of  those  in  charge  of  the  boat.  It  must 
have  been  the  one  or  the  other,  and  conld  not  have  been  both. 
If  proper  care  conld  have  avoided  it,  it  was  not  a  peril  incident  to 
the  navigation;  if  such  care  conld  not,  it  was.  From  the  very 
natore  of  the  undertaking,  without  care  the  loss  vros  inevitable, 
and  with  care  it  might  be  unavoidable.  From  the  failure  to 
deliver  the  goods,  the  law  raised  the  presumption  of  n^ligence 
against  the  carriers— jprtma  facie  the  fault  veas  theirs — and  this 
presumption  could  only  be  rebutted  by  showing  that  they  were 
without  fault.  As  positive  care  was  indispensable  to  the  safely 
of  the  goods,  they  could  meet  and  overthrow  the  legal  pre- 
sumption of  negligence  in  no  other  way  than  by  showing  that 
such  care  was  exercised.  Proof  that  the  boat  was  snagged  fell 
short  of  proving  that  it  was  not  snagged  by  the  fault  of  those 
in  charge  of  it,  and  consequently  short  of  overcoming  the 
fprima  facie  case  of  the  plaintiffs  below.  To  do  this,  it  was  not 
enough  to  have  shown  that  the  loss  vras  occasioned  by  what 
might  or  might  not  have  been  a  danger  of  the  navigation; 
nothing  short  of  proof  that  it  was  the  one  and  not  the  other 
could  have  been  sufficient,  as  nothing  short  of  that  could  bring 
the  case  within  the  exception  provided  for  in  the  contract.  The 
defense  rested  wholly  upon  this  exception.  No  attempt  was 
made  to  bring  the  case  within  either  of  the  common-law  excep- 
tions to  the  carrier's  liability.  In  the  case  of  Davidion  v.  Oror 
ham^  2  Ohio  St.  181,  it  v^as  settied  by  this  court  that  the  carrier 
might,  in  this  manner,  limit  his  common-law  liability.  But  in 
adopting  so  important  a  principle,  the  court  very  carefully  con- 
sidered all  its  bearings,  and  endeavored  to  incorporate  it  into  the 
law  of  this  state  with  such  qualifications  and  restrictions  as 
seemed  to  be  necessary  to  make  it  safe  and  practicable. 

Very  strong  arguments  (thought  to  be  unanswerable  by  sev- 
eral eminent  judges  in  our  sister  states)  were  advanced  against 
any  relaxation  of  the  common-law  responsibility. 

It  was  said  that  the  highest  considerations  of  public  policy 
reqtured  the  carrier  to  become  an  insurer  of  the  goods  intrusted 
to  him  against  everything  but  the  act  of  CU>d  or  the  publio 
enemies.    That  he  took  upon  himself  a  public  employment,  and 


288  Obahax  u  Davis.  [Ohio, 

ought  not  to  be  permitted  to  diachaxge  himBelf  from  ihe  reepon- 
fiibUities  which  the  trying  test  of  time  and  experience  had  dam- 
onstrated  to  be  necessary  for  the  safety  of  the  pablic.  That  since 
the  introduction  of  steamboats  and  railroads  he  had  practically 
taken  exclusiye  possession  of  the  public  thorough&res  of  the 
country,  and  was  thus  enabled  to  impose  his  own  terms  upon  the 
owners  of  goods,  who  had  no  choice  but  to  employ  him.  That 
the  owner  seldom  accompanied  his  property,  and  in  case  of  loss 
or  injury,  however  gross  the  negligence  might  have  been,  was 
wholly  unable  to  prove  it  without  relying  upon  the  servants  of 
the  carrier,  who  would  always  be  found  too  ready  to  exculpate 
themselves  and  their  employer. 

That  these  considerations  were  entitled  to  much  weight  can 
not  be  doubted;  and  they  were  not  to  any  extent  lost  sight  of 
in  determining  that  the  parties  might  by  their  agreement,  to  a 
certain  extent,  restrict  the  liability  of  the  caxiier.  He  is  still 
regarded  as  exercising  a  public  employment,  and  incapable,  by 
any  act  of  his  own,  of  limiting  or  evading  the  responsibiliiy 
which  the  law  attaches  to  its  exercise. 

The  first  attempt  to  do  so,  by  general  notices  brought  home 
to  the  owner  of  the  goods,  was,  for  a  considerable  time,  sus- 
tained by  English  courts — ^with  the  frequent  expression  of  regret, 
however,  by  distinguished  judges,  that  it  had  ever  been  so 
held-^until  at  length  the  evil  was  remedied  by  an  act  of  par- 
liament. The  courts  of  this  country  very  generally  repudiated 
the  doctrine,  and  escaped  the  regrets  of  the  English  courts: 
EoUister  v.  Nowlen,  19  Wend.  285  [82  Am.  Dec.  466];  Cole  v. 
Goodwin,  Id.  251  [32  Anu  Dec.  470];  WeOa  v.  Steam  Nav.  Co., 
2  N.  T.  204;  New  Jersey  Steam  Nav.  Go.  v.  Mercha/nUf  Bank,  6 
How.  344;  Jones  v.  Voorhees,  10  Ohio,  145. 

The  implied  assent  of  the  owner  of  the  goods  to  the  terms 
prescribed  by  the  carrier,  upon  which  the  English  cases  are 
founded,  it  is  very  conclusively  shown  in  the  American  cases, 
can  not  be  fairly  assiuned,  since  the  carrier  is  bound  to  receive 
and  transport  all  goods  offered  for  the  purpose,  subject  to  all 
the  responsibilities  incident  to  his  employment;  and  the  owner 
may  be  quite  as  fairly  presumed  to  have  intended  to  insist  upon 
the  rights  he  undeniably  had  as  to  have  assented  to  a  qualifi- 
cation which  the  carrier  had  no  right  to  impose. 

But  a  very  different  question  was  presented  when  cases  arose 
in  which  the  owner  had  expressly  assented  to  such  qualifica- 
tion, and  made  it  a  part  of  the  contract  of  transportation. 

In  such  cases  the  very  obvious  conclusion  was  reached  that 


DecL  1854.]  Graham  v.  Davol  289 

tach  a  stipulation  warralid  when  it  only  aflbeted  fhe  ligfits  and 
interests  of  the  owner  of  the  goods.  Bo  much  of  the  responsi- 
bility of  the  carrier  as  was  designed  alone  for  his  security  might 
at  Lis  pleasure  be  renounced,  in  accordance  with  the  settled 
maxim  of  the  law,  QwUibet  poteti  renunciare  juri  pro  m  tn/ro- 
ducio. 

The  limit  to  this  power  was  equally  obvious.  The  common- 
law  exception  to  the  carrier's  liability  of  losses  arising  from  the 
act  of  God  was  well  settled  to  include  only  those  inevitable 
causes  of  loss  into  which  no  human  agenc^^  could  have  entered. 
•This  left  the  carrier  liable  as  an  insurer  from  many  losses  equally 
inevitable,  and  which  no  care  or  prudence  on  his  part  could 
have  prevented.  No  one  but  the  owner  of  the  goods  could  have 
any  interest  in  this  liability,  and  as  its  renunciation  had  no 
tendency  to  relax  the  vigilance  which  the  carrier  owed  to  others, 
the  owDer  was  at  liberty  to  surrender  it.  But  he  had  no  power 
to  stipulate  for  what  was  immoral  in  its  tendency,  or  to  take 
from  the  canuer  auj  of  the  motives  of  the  faithful  discharge  of 
his  public  duty,  and  consequently  could  not  relieve  him  from 
the  consequences  of  bis  own  negligence  or  carelessness. 

There  is  nothing  in  which  the  public  have  a  deeper  interest 
than  the  careful  and  prudent  management  of  public  convey- 
ances, and  no  higher  moral  obligation  than  rests  upon  those 
intrusted  with  the  control  of  dangerous  forces  to  discharge 
their  duties  with  care  and  skill.  Upon  it  the  safety  of  thousands 
of  lives  and  millions  of  property  daily  depends. 

Now  one  of  the  strongest  motives  for  the  faithful  i)erf ormance 
of  these  duties  is  found  in  the  pecuniary  responsibility  which 
the  carrier  incurs  for  the  failure.  It  induces  him  to  furnish 
safe  and  suitable  equipments,  and  to  employ  careful  and 
competent  agents.  A  contract,  therefore,  with  one  to  relieve 
him  of  any  part  of  this  responsibility  reaches  beyond  the  per- 
son with  whom  he  contracts,  and  affects  all  who  place  tiieix 
persons  or  property  in  his  custody.  It  is  immoral,  because  it 
diminishes  the  motives  for  the  performance  of  a  high  moral 
duty;  and  it  is  against  public  i>olicy,  because  it  takes  from  the 
public  a  part  of  the  security  they  would  otherwise  have. 

Nor  did  the  establishment  of  the  principle  that  the  carrier 
might  by  contract  restrict  his  conomon-law  liability  in  any  man- 
ner, or  to  any  extent,  change  the  rules  of  evidence  before  applica* 
ble  to  the  subject.  Before,  the  law  prima  facie  imposed  upon 
him  the  obligation  of  safety,  and  he  was  charged  upon  proof  of 
the  non-delivery  of  the  goods.    Bie  burden  of  proof  was  upon 

Am,  Dsa  Vol.  LXn— 19 


290  Qbahax  v.  Davi&  [Ohio^ 


him  to  bring  the  case  wifhin  one  of  tiie  excepted  perils:  Angell 
on  OarrierSy  sec.  202;  Siorjr  on  Bail.,  sec.  629.  And  it  was  not 
brought  within  the  exception  nntil  it  was  shown  that  care  and 
skill  could  not  haye  prsTcnted  the  loss:  2  Greenl.  Ey.,  sec.  219. 
We  know  not  where  this  role  of  evidence  has  been  doubted,  ex- 
cept in  a  diyided  opinion  of  the  supreme  court  of  the  United 
States  in  the  case  of  Clark  t.  BamweU,  12  How.  272.  The 
learned  judge  who  delivered  the  opinion  of  the  majority  was 
able  to  bring  to  his  support  only  the  single  nisi  prius  case  of 
Muddle  Y.  Stride,  9  Gar.  &  P.  380,  in  which  Lord  Denman  in- 
structed the  jury  that  in  passing  upon  all  the  evidence  before 
them,  they  must  be  able  to  see  clearly  that  the  carriers  were 
guilty  of  negligence  before  a  verdict  was  found  against  them. 

Judge  Nelson  very  properly  admits  that  it  was  incumbent  upon 
the  carriers  to  have  shown  a  loss  from  some  one  of  the  causes 
which,  by  the  general  rules  of  law  or  the  particular  stipulations  of 
the  parties,  would  have  furnished  an  excuse  for  the  non-perform- 
ance  of  the  contract;  and  that  if  reasonable  skill  and  attention 
(ould  have  avoided  it,  ''  it  is  not  deemed  to  be,  in  the  sense  of 
the  law,  such  a  loss  as  will  exempt  the  carrier  from  liability,  but 
iftther  a  loss  occasioned  by  his  negligence  and  inattention  to 
bis  duty."  But  he  foils  to  show  how,  in  the  nature  of  things, 
where  constant  care  was  indispensable,  the  loss  could  be  showif 
to  have  been  inevitable,  without  giving  prima  facie  proof  that 
such  care  was  exercised;  or  what  reason,  founded  in  public 
policy  or  intrinsic  justice,  could  be  given  for  relieving  the  car- 
rier, within  whose  knowledge  the  facts  so  peculiarly  lay,  and 
by  whose  agents  they  could  be  so  easily  established,  from  the 
necessity  of  making  such  proof,  and  casting  the  burden  of  prov- 
ing the  contrary  upon  the  owner  of  the  goods,  in  most  cases 
ignorant  of  the  facts  and  without  the  means  of  tnaVing  them 
appear. 

On  the  whole,  we  think  Mr.  Gre^nleaf  fully  justified,  upon 
principle  and  the  decided  weight  of  authority,  in  saying  that 
"  in  all  cases  of  loss  by  a  common  carrier  the  burden  of  proof  is 
on  ^™  to  show  that  the  loss  was  occasioned  by  the  act  of  God 
or  by  public  enemies.  And  if  the  acceptance  of  the  goods  was 
special,  the  burden  of  the  proof  is  still  on  the  carrier  to  show, 
not  only  that  the  cause  of  the  loss  was  within  the  terms  of  the 
exception,  but  also  that  there  was  on  his  part  no  negligence  or 
want  of  due  care:"  2  Greenl.  Ev.,  sec.  219. 

We  have  alluded  somewhat  at  length  to  the  effect  of  the  de» 
dsion  in  Davidson  v.  Orahamt  2  Ohio  St  181;  not  becaosaall  the 


Dee.  1861]  Graham  v.  DAVia  291 

qneetioiis  now  discussed  were  not  folly  considered  hy  the  court 
ftnd  explicitly  stated^  but  because  some  of  them  were  not  so 
directly  involved  as  in  the  present  case^  and  from  a  desire  to  be 
as  explicit  as  possible  upon  a  subject  so  highly  important  to  a 
state  whose  surplus  productions  must  all  find  a  market  through 
the  intervention  of  common  carriers. 

The  whole  may  be  summed  up  in  this:  The  carrier,  by  agree- 
ment with  the  owner,  may  exonerate  himself  from  responsibil- 
ity for  losses  arising  from  causes  over  which  he  has  no  control, 
and  to  which  his  own  fault  or  negligence  has  in  no  way  con- 
tributed. But  in  doing  so  he  does  not  cease  to  be  a  common 
carrier,  nor  in  any  manner  change  his  relation  to  the  public  as 
such;  and  he  can  only  excuse  himself  for  a  failure  to  deliver  the 
goods  intrusted  to  him  by  showing  that,  without  his  fault,  he 
has  been  prevented  by  some  one  of  the  causes  recognized  by 
law,  or  specifically  provided  for  in  the  contract. 

This  case  requires  very  little  to  be  added  as  to  the  degree  of 
care  exacted  of  the  common  carrier.  We  have  already  said  that 
he  is  not  at  liberty  to  stipulate  for  any  degree  of  negligence, 
and  that  a  loss  from  negligence  can  not  be  within  the  stipulated 
exceptions  to  his  liability.  Indeed,  in  the  carriage  of  passen- 
gers, and  perhaps  of  goods,  by  steam,  it  might  not  be  difficult 
to  place  it  upon  much  higher  grounds,  and  to  fully  justify  the 
remarks  of  Mr.  Justice  Grier  in  delivering  the  opinion  of  the 
court  in  the  case  of  Philadelphia  ^  Beading  R.  R.  Co.  v.  Derby ^ 
14  How.  468.  He  says:  "  Where  carriers  undertake  to  convey 
persons  by  the  powerful  but  dangerous  agency  of  steam,  pub- 
lic policy  and  safety  require  that  they  be  held  to  the  great- 
est possible  care  and  diligence;  and  whether  the  consideration 
for  such  transportation  be  pecuniaiy  or  otherwise,  the  personal 
safety  of  the  passengers  should  not  be  left  to  the  sport  of 
chance  or  the  negligence  of  careless  agents.  Any  negligence  in 
such  cases  may  well  deserve  the  epithet  of  gross."  But  it  is 
only  necessary  now  to  say  that  if  the  loss  was  occasioned  by  neg- 
ligence, whether  slight  or  gross,  it  was  not  within  what  was,  or 
could  have  been  made  by  contract,  an  exception  to  the  carrier*a 
liability. 

We  are  therefore  unanimous  in  the  opinion  that  the  district 
court  was  right  in  holding  that  the  burden  of  proof  was  upon 
the  carriers  to  show  that  there  was  no  negligence  or  want  of  care, 
and  that  if  the  loss  was  the  result  of  any  negligence  on  their 
part,  it  was  not  within  any  exception  provided  for  in  the  contract. 

2.  The  court  aie  not  unanimous  upon  the  second  question  pre- 


29S  OsAHAM  V.  Dayisl  [Oklo^ 

aented.  A  majority,  howeYer,  concur  in  holding  that  no  enxxr 
was  committed.  IVom  the  bill  of  exceptions  it  appears  that  the 
principal  controTcrsy  in  the  case  related  to  the  conduct  of  the 
pilot  at  the  wheel  at  the  time  the  accident  happened.  The  de- 
fendants below  gave  eyidenoe  to  show  the  situation  of  the  boat, 
the  surrounding  circumstances,  what  the  conduct  of  the  pilot 
was,  and  the  head  of  steam  under  which  he  was  running;  and 
then  called  seTeral  experienced  pilots,  who  expressed  the  opinion 
that  the  conduct  of  the  pilot  in  charge  of  the  boat  was  correct 
and  proper. 

Tho  plaintiffs  then  introduced  several  pilots,  who  expressed  a 
different  opinion,  and  thought  the  pilot  in  charge  should  have 
stopped  the  engine.  The  defendants  then  proposed  to  recall 
their  witnesses,  and  also  some  other  pilots  who  had  not  been 
examined,  and  to  prove  by  them  that,  in  their  opinion,  it  was 
not  the  duty  of  the  pilot  to  have  stopped  the  engine.  This  evi- 
dence, being  objected  to,  was  ruled  out. 

It  will  be  observed  that  all  these  witnesses  were  giving  opin- 
ions upon  exactly  the  same  circumstances.  No  attempt  was 
made  to  change  or  vary  them  in  the  least.  Under  the  circum- 
stances, the  defendants'  witnesses  were  of  opinion  that  the  pilot 
was  right  in  keeping  on  steam,  and  doing  just  as  he  did  do. 
With  a  view  to  the  same  circumstances,  the  plaintiffs'  witnesses 
were  of  a  different  opinion,  and  thought  he  should  have  shut 
the  steam  off.  Now,  what  could  have  been  accomplished  by  re- 
calling the  defendants'  witnesses,  other  than  a  repetition  of  the 
opinion  previously  expressed,  we  are  quite  unable  to  see.  It  is 
true,  they  might  have  said  expressly  that  the  pilot  should  not 
have  stopped  the  engine  (a  question  they  had  not  before  been 
asked),  but  in  the  end  it  would  amount  to  nothing  more  than 
an  opinion  that  he  should  have  done  as  he  did,  and  not  differ- 
ently. There  can  be  no  dispute  as  to  the  general  rule  of  evi- 
dence. 

The  party  upon  whom  the  afltenation  of  an  issue  devolves  is 
bound  to  give  all  his  evidence  in  support  of  the  issue  in  the  first 
instance;  and  he  can  only  give  such  evidence  in  reply  as  tends 
to  answer  the  new  matter  introduced  by  his  adversary.  In  this 
case  no  new  matter  was  introduced.  The  opinions  of  the  de- 
fendants' witnesses  were  simply  encountered  by  those  of  the 
plaintiffs'.  But  while  this  is  the  rule,  and  generally  to  be  ad- 
hered to,  I  am  very  far  from  saying  that  in  the  exercise  of  a 
sound  discretion  it  is  never  to  be  relaxed. 

Indeed,  veiy  few  cases  can  arise  in  which  a  court  would  be  jua* 


Dec  1854]  Obaham  v.  DATia 

tified  in  elooiiig  the  case  iintQ  all  tbe  eyidenoe  oflBBied  in  good 
fftith,  and  neoeesaiy  to  the  ends  of  Jnatioey  has  been  heard. 

And  it  is  Tezy  probable,  in  this  ease,  that  a  fuller  examination 
should  hftre  been  allowed.  But  this  must  always  be  an  appeal  to 
the  sonnd  discretion  of  the  oourt,  to  be  determined  with  a  Tie w  to 
all  the  circumstanceSy  and  however  determined^  is  not  review* 
able  on  error.  It  is  our  duty  to  see  that  the  roles  of  law  are  not 
infringed,  but  we  can  not  revise  the  mere  discretion  of  an  infe- 
rior tribonal. 

SwAiff,  J.  I  concur  in  the  opinion  that  the  bnrden  of  proof 
was  upon  the  carriers  to  show  that  there  was  no  negligence;  and 
that  if  the  loss  was  the  result  of  any  negligence,  it  was  not 
within  any  exception  provided  in  the  contract. 

But  in  thus  holding  and  requiring  proof  by  the  carrier  of  the 
cause  of  the  loss  and  of  care,  the  course  of  proof  in  the  case 
must  necessarily  be  thus:  the  plaintiff  first  proves  the  deliv- 
ery of  the  goods  to  the  carrier,  and  that  they  were  not  received 
by  the  plaintiff.  This  entitles  the  plaintiff  to  recover.  The 
carrier  must  then  prove  that  the  loss  arose  from  one  of  the 
exceptions  provided  for  by  the  contract,  and  that  the  servants 
of  the  carrier  were  in  the  due  exercise  of  care.  This  proof 
made  out  prima  facie  would  entitle  the  carrier  to  a  verdict. 

The  plaintiff  then  may  prove  any  fact  or  omission  of  duty  estab- 
lishing negligence.  If  this  fact  be  a  specific  one,  upon  which  the 
witnesses  of  the  carrier  were  not  examined,  such,  for  instance,  as 
that  the  engine  should  have  been  stopped,  it  is,  I  conceive,  the 
right  of  the  defendai^t  to  rebut  such  testimony;  for  the  specific 
fact,  and  omission  of  care,  upon  which  the  action  is  founded,  is 
then  for  the  the  first  time  disclosed  and  proved  by  the  said 
plaintiff. 

According  to  my  view  of  the  case,  under  the  rule  adopted  by 
the  majority  of  the  court  and  applied  in  this  case,  the  carrier  is 
first  required  to  make  out  a  prima  facie  case  of  care,  and  theu, 
when  the  plaintiff  proves  his  cause  of  action,  the  defendant  is  pre- 
cluded from  giving  evidence  in  his  defense;  for  how  can  he  antici- 
pate what  act  of  negligence  will  be  proved  against  him  ?  Surely 
he  is  not  to  come  prepared  with  witnesses  to  rebut  every  possible 
claim  of  neglect  that  may  be  alleged.  This  would  require  wit- 
nesses to  be  produced  at  perhaps  great  cost,  and  consume  the 
time  of  the  court  in  rebutting  claims  never  intended  to  be  made 
by  the  plaintiff. 

The  present  action  was  brought  to  recover  damages  on  account 
of  loss  of  goods  arising  from  the  servant  of  the  carrier  not  stop* 


S94  Graham  v.  Davis.  [Ohio^ 

ping  his  engine  under  oixcomBtancea  which  due  oare  demanded. 
The  ground  of  the  action  was  not  disclosed  by  the  pleadings  ox 
the  proof y  or  by  any  reference  to  it  in  the  examination  of  wit- 
nesses, until  the  pbuntiff  gave  in  his  rebutting  testimony.  I 
think  the  judgment  should  be  reversed. 

Thubxan,  0.  J.,  concurred  with  Swan,  J. 

Common  Cabbiebs  abr  Iksubbbs  or  Goods  aqainst  All  but  Aotb  of  Qob 
AND  Publio  Enemy,  in  abaenoe  of  any  qoalification  of  their  liability:  Ncrwajf 
Plains  Co.  v.  BosUm  ds  Maine  R,  R.  Co.^  01  Am.  Deo.  423»  and  note  thereto 
432,  collecting  caaea  in  thia  aeriea. 

How  Common  Cabbibb's  LiABiLirr  as  Insubxb  mat  bb  Modifibd:  Sea 
note  to  Nonoay  Plains  Co,  v,  Boston  Jt  Mams  R.  R.  Co,^  01  Am.  Dec.  423| 
containing  a  collection  of  caaea  on  the  aubject. 

BuBDBN  or  Pboop  as  to  Nboligbncb:  See  fnll  and  exhanative  note  to 
Van  Hem  v.  Taylor,  41  Am.  Doc.  281-290,  on  **  Perila  of  the  Sea."  On  the 
aame  aubject  in  railroad  caaea,  read  the  note  to  Burroughs  v.  HonsaUmic  R, 
R.  Co,f  38  Id.  70-79.  And  the  aaroe  topic,  with  reference  to  the  liability  ol 
warehonaemen,  will  be  found  treated  in  a  comprehenaiye  note  to  SckmkU  ▼. 
Bhod,  24  Id.  145-100. 

Tub  PBiNdPAL  CA8B  was  citbd  in  Wilsons  ▼.  HamOUm,  4  Ohio  St.  740, 
where  it  waa  aaid  that  the  court  had  gone  far  enough  in  allowing  a  carrier  to 
limit  his  responaibility  aa  an  inaurer  for  loaaea  occaaioned  without  hia  ^ult.  It 
was  also  cited  to  thia  point  in  Welsli  v.  PiUsburfjh  etc.  R.  R.  Co.^  10  Id.  70; 
U.  S.  Express  Co.  v.  Bachman,  2  Cin.  Super.  Ct.  255;  and  waa  approved  in 
Childs  y.  Little  Miami  R.  R.  Co.,  1  Id.  481.  That  a  common  carrier  can 
not  contract  againat  negligence,  the  principal  caae  waa  cited  in  U.  S,  Bxprem 
Co,  V.  Baehman,  2  Id.  255;  Welsh  v.  Pittsburgh  etc  R.  R.  Co.,  10  Ohio  St. 
75;  Cleveland  etc.  R.  R.  Co.  v.  Curran,  19  Id.  12;  Cincinnati  etc  R.  R.  Co.  ▼. 
Pontius  and  Richmond,  Id.  235;  U.  S.  Express  Co.  v.  Badiman,  28  Id. 
150;  Telegraph  Co.  v.  Oriswold,  37  Id.  311.  Aa  to  this  point  it  waa  also 
approved  and  followed  in  State  v.  Commissioturs  etc,  26  Id.  598.  The  prin- 
cipal caae  waa  cited  in  Fatman  <6  Co,  v.  CiTicinnati  etc  R.  R.  Co.,  2  Die- 
noy,  254;  U.  S.  Express  Co.  v.  Bachman,  2  Cin.  Super.  Ct.  257;  Railroad 
Co.  ▼.  BarreU,  36  Ohio  St.  453;  Railroad  Co.  v.  CampbeU,  Id.  658,  to  the 
proposition  that  burden  of  proof  is  on  the  carrier  claiming  inmiunity  under 
B^jecial  contract  to  show  absence  of  negligence  on  his  part;  and  waa  fol« 
lowed.  See  also  cases  above  cited,  concerning  contract  against  negligence^ 
to  the  same  eiTect.  The  doctrine  of  the  principal  case,  that  the  public  aro  in- 
terested in  the  performance  by  carriers  of  their  duties,  was  recognized  in  Fal' 
man  ^  Co,  v.  CindnnaU  etc.  R,  R.  Co.,  2  Disney,  254.  The  principal  caae 
waa  cited  in  Gaines  y.  Union  Trains.  ^  Ins.  Co.,  28  Ohio  St.  438,  ahowing 
that  special  notice  is  necessary  if  common  carrier  wishes  to  limit  hia  liability; 
tiiat  burden  of  proof  ia  on  carrier  to  show  loss  within  the  exception;  and  that 
ho  used  due  cara  to  prevent  it.  This  is  settled  law  in  Ohio.  It  was  cited  in 
the  some  case,  and  in  Railroad  Co,  v.  Barrett,  36  Id.  453,  showing  that  assent 
of  the  shipper  will  not  be  presumed;  and  in  Cincinnati  etc  R,  B.  Co.  v.  Pon- 
tius and  Richmond,  19  Id.  236,  to  the  point  that  the  bill  of  lading  ia  the 
written  contract  of  carriage,  and  can  not  be  oontradicted  by  parol.  The 
doctrine  of  the  principal  caae  concerning  the  introduction  of  evidence  waa 
cited  and  approved  in  Runyan  t.  Price,  19  Ohio  St  5;  Berrjf  v,  StatSt  31  Id. 
230;  JUehurin  v.  Stone,  37  Id.  59 


Dec.  1854]  Ford's  Lessee  i;.  Lanoeu  2M 

Fohd's  Lessee  v.  Langel. 

[4  Ono  SxAin.  464.] 
OBiam  OF  Hxnt  of  Ovb  Pbothcted  from  QrsRATioir  ov  Statovb  ov 
Ldiitatiovs  is  entitled  to  the  foil  benefit  of  that  proteotfam,  and  nay 
bring  a  euit  within  the  eama  timet  and  to  the  mm  efieol^  aa  though  na 
change  of  ownership  had  ooonrred,  and  •■  if  the  aoit  waa  pweoatad  in 
the  name  and  for  the  benefit  of  the  original  owner. 

AOOOa    GAV    KOT   BB   MaINTAIBBD    oh   DbMUB    of   HdBBABD   AMD  WiFB, 

after  the  statate  of  llmitationa  haa  mn  for  the  foil  period  against  the  has- 
band,  while  the  coverture  oontinaed. 

EjBomEST.    The  facts  are  stated  in  the  opinioiL 
John  T.  Brasee,  for  the  plaintiff. 
E.  H,  Hunter^  for  the  defendant. 

By  Court,  Rannst,  J.  It  appears  from  the  agreed  statement 
of  facts,  upon  which  this  cause  is  submitted  to  the  court,  that 
the  lands  in  controTersy  were  patented  to  the  heirs  of  John 
Dodgo,  on  the  twelfth  of  July,  1802.  These  heirs  were  five  in 
number,  one  of  whom,  Theodooiat  married  in  1812,  and  on  the 
twenty-third  of  September,  a.  d.  1860,  in  connection  with  her 
husband,  conyeyed  her  undiTided  interest  in  the  property  to  the 
lessor  of  the  plaintiff.  It  is  admitted  that  the  defendant  and 
those  under  whom  he  claims  have  been  in  the  exclusive  and 
uninterrupted  adverse  occupancy  of  the  premises  for  more  than 
twenty-one  years  prior  to  this  conveyance.  The  question  is, 
Does  the  act  for  the  limitation  of  actions  bar  a  recoveiy  t  On 
the  part  of  the  plaintiff,  it  is  insisted  that  it  does  not,  as  the 
said  Tbeodocia  was  during  all  that  period  a  feme  covert^  and 
exempted  from  its  operation.  While  the  defendant's  counsel 
admits  that  the  statute  did  not  run  against  her,  he  insists  that 
the  exception  in  that  act  affords  only  a  personal  privilege,  and 
is  only  operative  where  she  is  a  party  to  the  action,  and  can  not 
be  set  up  by  a  grantee  claiming  under  her.  But  if  this  objection 
should  not  prevail,  he  still  further  insists  that  such  grantee  can 
in  no  event  stand  upon  better  ground  than  would  the  husband 
and  wife  if  the  suit  were  brought  by  them;  and  that  in  such  case, 
the  bar  upon  the  husband's  right  of  possession  being  perfect,  no 
recovery  cotdd  be  had  upon  their  joint  demise — the  husband 
during  the  coverture  having  the  exclusive  right  of  possession, 
and  a  recovery  inuring  to  his  sole  benefit. 

Without  going  at  length  into  the  reasons  which  bring  us  to  the 
conclusion,  we  are  all  of  the  opinion  that  the  first  of  these  iK>si« 
tions  is  not  well  taken,  and  that  the  grantee  or  heir  of  one  pro- 


296  FoBD'8  LsssBB  V.  Lahoil.  [Ohia 

teoted  from  thQ  operation  of  the  staiaioxy  bar  is  entitled  to  the 
full  benefit  of  that  protection,  and  may  bring  a  suit  within  the 
same  time,  and  to  the  same  effect,  as  though  no  change  of  own« 
ership  had  occurred,  and  the  suit  was  prosecuted  in  the  name  and 
for  the  benefit  of  the  original  owner.  To  hold  otherwise  would 
be  to  depriye  infants,  insane  persons,  and/ernes  coveri  of  much  of 
the  benefit  the  statute  was  designed  to  afford,  and  would  be  utterly 
subversiye  of  the  well-established  principle  that  as  against  such 
persons  the  statute  does  not  begin  to  run  or  to  have  any  effect 
upon  their  interests  during  the  continuance  of  the  disability. 

Such  interests,  therefore,  pass  to  the  heir  or  purchaser  wholly 
unaffected  by  any  lapse  of  time  that  may  have  run,  while  the 
owner  was  without  the  provisions  of  the  statute. 

But  in  the  case  of  Thomp9(m*8  Lessee  v.  Oreen,  4  Ohio  St.  216, 
we  have  stated  our  reasons  fully  for  holding  that  an  action  can 
not  be  maintained,  on  the  demise  of  husband  and  wife,  after  the 
statute  has  run  for  the  full  period  against  the  husband  while  the 
coverture  continues.  It  would  hardly  be  supposed  that  their 
grantee  occupied  a  better  position,  and  that  case  is,  therefore, 
decisive  of  this. 

Judgment  must  be  entered  for  the  defendant. 


Grastbx  or  Hbib  of  Okb  Pboteotbd  bt  Statctx  or  LmRATiovs  n 
ftirrrnju)  to  Full  Benefit  of  That  Pbotbction:  See  Maeklot  v.  DtibreuUp 
43  Am.  Deo.  550;  and  extended  notes  to  WaUace  v.  Hcmrnim,  34  Id.  663; 
Moore  v,  Armstrong^  36  Id.  69,  the  latter  containing  a  fall  diBcnssion  of  lim- 
ItatioDS  of  actions.  As  to  limitations  in  equity,  see  Beeves  ▼.  Dougherty^ 
27  Id.  496,  and  note  discussing  the  subject  502. 

The  principal  case  was  cited  in  WhUermute  ▼•  Montgomery^  11  Ohio 
St.  442.  This  involved  a  construction  of  the  statute  of  limitations  in  eject- 
ment, and  the  doctrine  that  the  heir  or  grantee  of  one  protectbd  from  the 
statute  may  sue  within  the  same  time  as  if  no  change  of  ownership  had  oo- 
onrred  was  approved  and  followed. 


GASES 

Off  TBM 

SUPREME  COURT 

OF 

OBEGON. 


KoBIOH  V.  WlBTBBi 

p.  Obboob.  47.] 
IVWmXKT  1>BBfrOB  CAK  NOT  BB  GaBKISHSD. 

NoBTON  xeooveied  a  judgment  agauuit  Winter  &  Lattimer  in 
May,  1852,  and  procured  execution  to  be  issued  thereon  in  Janu- 
Bzy,  1863.  The  execution  contained  an  attachment  ch&uae, 
which  waa  eerred  upon  D.  H.  Lownsdale  as  garnishee.  He 
appeared  at  the  return  of  the  execution  and  made  the  following 
answer:  **  I  stand  indebted  to  the  above  defendants  on  a  judg- 
ment entered  against  me  on  the  twenty-ninth  of  October,  1861 , 
on  the  records  of  the  district  court  of  this  county,  for  the  amount 
of  one  thousand  four  hundred  dollars,  and  costs  of  suit.'* 

A.  Campbdl,  for  the  plaintiff. 

Chapman  and  WaU,  for  the  defendants. 

By  Ck>urt,  Wjujjams,  0.  J.  Is  Norton  entitled  to  a  judgment 
against  Lownsdale  upon  this  answer?  Section  42  of  the  prac- 
tice act  provides  that  in  certain  cases  a  garnishee  process  may 
be  serred  upon  a  person  who  has  ''  property,  rights,  and  cred- 
its" in  his  hands  belonging  to  defendant  in  execution. 

Section  43  provides  that  if  such  garnishee  shall  be  f oimd  in- 
debted to  the  said  defendant,  etc.,  judgment  shall  be  rendered 
against  him,  etc.,  and  **  such  judgment  shall  bind  all  such  prop- 
erty,  effects,  rights,  and  credits  in  the  hands  of  such  garnishee; 
and  the  payment  of  the  amount  of  the  judgment  by  such  gar- 
nishee shall  operate  as  a  conclusive  bar  to  the  right  of  any  such 
defendant  in  execution  to  recover  the  amount  paid  under  this 

process  against  any  such  garnishee.'' 

vn 


J98  Norton  v.  Winter.  [Oregon, 

While  the  oomprehensive  expression  of  "  property,  rights,  oi 
credits/'  if  standing  alone,  might  be  taken  to  include  judgments, 
we  think  it  is  repelled  by  the  subsequent  provisions  of  the  stat- 
ute for  the  protection  of  garnishees.  When  a  judgment  is  ren- 
dered against  a  person  as  garnishee,  the  payment  of  such  judg- 
ment, the  statute  says,  shall  operate  as  a  conclusiye  bar  to  the 
right  of  defendant  in  execution  "  to  reooTer  "  the  amount  so  paid 
against  such  garnishee. 

"  To  recoTcr,"  in  law,  is  to  ''  recover  anything,  or  the  value 
thereof,  by  judgment;  as  if  a  man  sue  for  any  land,  or  other 
thing,  movable  or  immovable,  and  have  a  verdict  or  judgment 
for  him:"  6  Jac.  Law  Diet,  401.  The  "right  to  recover," 
then,  as  expressed  in  the  statute,  simply  means  a  "right  to 
obtain  judgment."  The  process  of  garnishment  is  intended 
to  lay  hold  of  this  "  right  to  recover,"  or  right  to  obtain  judg* 
ment,  but  after  a  recovery,  as  in  this  case,  such  right  ceases  to 
exist,  and,  of  course,  can  not  be  t&ken  any  more  than  a  third 
person  can  take  a  right  to  sue  on  a  promissory  note  after  a  judg- 
ment therein  for  the  payee.  The  payment  spoken  of  in  the  stat- 
ute is  to  be  a  "  conclusive  bar,"  etc. 

A  "  bar,"  in  a  legal  sense,  is  a  plea  or  peremptoiy  exception 
of  a  defendant  sufficient  to  destroy  the  plaintiff's  action:  1 
Jac.  Law  Diet.  289. 

Would  it  not  be  absui'd  to  say  that  the  payment  of  Lownsdale 
to  Norton  would  destroy  the  action  of  Winter  &  Lattimer 
against  him,  when  such  action  was  ended  by  final  judgment  for 
the  plaintiffs? 

The  plain  effect  of  these  provisions  is  to  protect  the  garnishee 
from  a  second  judgment  for  money  paid  on  another  and  prior 
one,  or  in  other  words,  to  protect  him  from  two  judgments  for 
the  same  debt.  To  hold  that  the  defendant  in  one  judgment 
can,  therefore,  be  subjected  to  another  on  garnishee  process,  is 
to  hold  that  two  judgments  in  favor  of  different  persons  may 
be  rendered  and  remain  of  record  at  the  same  time  against  the 
same  person  for  the  same  demand;  that  executions  riay  issue  on 
such  judgments,  and  thus  the  garnishee  be  driven  to  the  trouble 
and  experse  of  a  suit  to  protect  himself  from  twice  paying  the 
same  debt. 

A  construction  of  the  statute  productive  of  such  a  result 
would  be  clearly  wrong.  In  the  case  of  Howell  v.  Freeman^  8 
Mass.  121,  Parsons,  G.  J.,  under  a  statute  similar  to  ours,  says: 
*'  It  is  the  design  of  the  statute,  and  manifestly  just,  that  the 
trustee  shall  not  be  twice  charged  for  the  same  credit,  once  by 


Jane,  1854.]  WAns  t;.  Wabd. 

the  attaching  creditor,  and  again  by  hia  prindpaL  The  eiedit, 
therefoie,  liable  to  ttiia  attachment,  mnat  be  so  situated  that 
if  it  be  taken  hj  the  attaching  creditor  the  tmstee  may  legally 
defend  himfielf  when  called  on  by  the  principal/'  The  tame 
doctrine  is  affirmed  in  Fremxdi  t.  Parker,  4  Id.  170;  Thomdike  t. 
I)eWo^,6  Tick.  119. 

Oamiahee  dischaiged.         

QunnoN  IUised  in  Pbihccpai*  Cask,  aitd  Quibtions  Imtiiutslt  Oov- 
FacrsD  THXBBWiTH,  are  disciused  in  lection  166  of  Freeman  on  Ezecutmna. 
The  anthor  oondadeahk  obeervationa  by  aaying:  "Therefore,  it  haa  been 
held  in  a  majority  of  the  atatea  that  a  debt  dne  by  judgment  ean  not  be 
reached  by  ganuahment."  To  enatain  thia  prineipla,  he  oiiaa  the  prine^al 
eaae,  together  with  a  large  number  of  othen  with  which  it  appears  to  be  is 
entire  liannony. 

JvnoiiBifT  Dkbtob  can  hot  bb  Oarsishsd  ur  AagAwsas:  TrowMJgt 
T.  ITeMM,  39  Am.  Dec  368. 


Watts  v.  Wabd. 

[1  0Baeov,88.J 
Ir  No  'BxwAXD  IS  Oivxbbd  fob  Fikduso  of  Lear  PBOPBBrT,  the  Smdm 

thereof  la  entitled  to  no  reward  or  remuneration. 
FufDKB  OF  Loot  Pbopebtt  can  not  bb  Allowbd  to  Judob  as  to  Horn 

Much  his  Dbmakd  for  tronble  and  ezpenae  in  finding  the  property  ahall 

be,  and  then  how  mnch  he  ought  to  use  the  property  to  aatisfy  snoh  de> 

mand. 
PniDBB  OF  Stray  Hobsbs  Which  Dib  whu^b  bbibo  Usbd  bt  Hm  in  the 

ordinary  oourae  of  hia  bnaineaa  ii  liable  to  the  owner  thereof  for  thalt 

value. 

Wabd,  while  crossing  ihe  plains,  lost  two  horses,  which  were 
found  by  Watts,  and  recognized  as  being  the  property  of  Ward. 
Watts  took  possession  of  the  horses  with  the  intention  (as  he 
claimed)  of  delivering  them  to  Ward  when  he  should  pay  him 
for  his  trouble.  Watts  and  his  party  used  the  horses  for  driv- 
ing cattle,  hunting  bufihloes,  and  in  a  variety  of  employments 
connected  with  their  position  as  emigrants  crossing  the  plains. 
Ho  also  allowed  another  emigrant  the  use  of  the  horses  for 
about  two  months.  The  horses  both  died  while  in  the  posses- 
sion of  Watts;  one  upon  the  journey,  azkd  the  other  the  follow- 
ing winter.  The  evidence  conflicted  as  to  whether  they  died 
from  sickness  or  hard  usage.  The  jury  were  instructed  sub- 
stantially that  Watts  had  a  right  to  use  the  horses  for  the  pur- 
pose of  bringing  them  to  Ward,  but  for  no  other  purpose  nor 
for  his  own  use.  They  returned 'a  verdict  for  Ward,  and  from 
a  judgment  thereon  Watts  appealed. 


860  Watts  v.  WAsa  [Oregoi^ 

Mi  Ohmn^  for  the  plaintiff  in  eiror. 
J.  MoOabe^  for  the  defendant  in  enor. 

By  Court,  WnxuMB,  0.  J.  The  instmotion  of  the  eourt,  it  is 
said,  Teas  erroneous.  No  doctrine  is  better  settled  at  common 
law  than  that  the  finder  of  lost  property  is  not  entitled  to  a  re- 
ward for  finding  it  if  there  be  no  promise  of  such  reward  by  the 
owner:  Bmetead  v.  Buck^  2  W.  Black.  1117;  NicJiohon  t.  Chap- 
man,  2  H.  Black.  254;  2  Kent's  Com.  356;  WerUtoorih  T.Day,  3 
Met.  852  [37  Am.  Dec.  145].  Some  of  the  authorities  maintain 
that  the  finder  of  lost  property  is  entitled  to  recoyer  from  the 
owner  thereof  his  necessary  and  reasonable  expenses  in  the  find- 
ing and  restoration  of  said  property:  Amory  v.  Flyn,  10  Johns. 
102  [6  Am.  Dec.  316];  2  Kent's  Com.  356.  Other  authorities 
seem  to  take  the  ground  that  the  finder  has  no  legal  right  to 
anything  from  the  owner  for  his  trouble  and  expense  in  finding 
lost  property.  Binstead  v.  Buck,  Nicholson  v.  Chapman,  supra, 
appear  to  stand  upon  this  principle.  Chief  Justice  Eyre,  speak- 
ing upon  this  subject  in  the  latter  case,  says:  ''Perhaps  it  is 
better  for  the  public  that  these  Toluntary  acts  of  benevolence 
from  one  man  to  another,  which  are  charities  and  moral  duties, 
but  not  legal  duties,  should  depend  altogether  for  their  reward 
upon  the  moral  duty  of  gratitude."  Chief  Justice  Shaw,  in 
Wentivorih  v.  Day^  supra,  says  that  **  the  finder  of  lost  property 
un  land  has  no  right  of  salvage  at  common  law."  Where  one 
person  gratuitously  performs  an  act  of  kindness  for  another,  the 
law,  as  a  general  rule,  does  not  recognize  the  right  to  a  compen- 
sation for  such  act. 

In  the  case  of  Bolmes  v.  !Dremper,  20  Johns.  28  [11  Am.  Dec. 
238] ,  it  was  held  that  the  plaintiff  was  not  entitled  to  any  recom- 
pense for  services  rendered  in  saving  defendant's  property  from 
fire,  because  such  services  were  entirely  voluntaiy,  and  without 
any  express  or  implied  promise  on  the  part  of  the  defendant  to  pay 
for  them.  No  person  is  bound  in  law  to  take  trouble  with  prop- 
erty which  he  finds;  and  if,  without  any  knowledge  of  the  owner's 
wishes,  he  does  incur  expense  on  account  of  such  property,  does 
he  not  in  doing  so  trust  the  liberality  of  the  owner  rather  than 
the  force  of  law  ?  for  it  may  be  that  such  owner  did  not  desire  to 
have  his  property  disturbed,  or  if  lost,  preferred  to  find  it  him- 
self. Much  of  the  stock  in  this  country  is  permitted  to  run  at 
large;  and  if  evezy  animal  lost,  or  appearing  to  be  lost,  can  be 
taken  up  and  the  owner  thereof  legally  charged  for  all  trouble 
and  expense  thereby  incurred,  the  business  of  finding  cattle 


Dea  1864.]  Moss  v.  Cullt.  801 

would  certainly  become  profiiaUey  and  penons  might  be  largely 
inyolyed  in  debt  withoat  their  knowledge  or  consent.  Where  a 
reward  is  offered  for  lost  property^  the  finder^  when  he  complies 
with  the  terms  of  the  offer,  has  a  right  to  retain  the  property  in 
bis  hands  until  the  promised  reward  is  paid  to  him:  Wentwarth 
y.  Day,  mtpra.  Persons  are  apt  to  offer  a  reward  if  they  wish  to 
pay  for  the  finding  of  lost  property.  All  the  anthorities  make  a 
difference  between  the  finding  of  property  lost  at  sea  and  the 
finding  of  property  lost  on  land.  Commercial  policy  allows  sal- 
via in  the  one  case  because  there  is  peril  in  the  finding,  and 
immediate  destraction  threatens  the  property.  In  the  other 
case  there  is  no  peril,  and  generally  no  danger  that  the  prop- 
erty will  be  destroyed.  But  if  it  be  admitted  that  the  owner  of 
lost  property  is  bound  to  remunerate  the  finder  for  his  trouble 
and  expense  in  the  finding,  it  is  certain  that  such  finder  can  not 
pay  himself  as  he  goes  along  by  using  the  property  for  that  pur- 
pose. He  can  not  be  permitted  to  judge  as  to  how  much  his 
demand  for  trouble  nnd  expense  shall  be,  and  then  as  to  how 
much  he  ought  to  use  the  property  to  satisfy  such  demand. 
The  owner  has  rights  in  these  matters,  and  must  be  consulted. 
Let  the  property,  when  found,  be  returned  to  the  owner,  and 
then  the  amount  and  mode  of  compensation,  if  any,  can  be  de- 
termined. Plaintiffs  in  this  case  haying  treated  and  used  the 
horses  as  their  own,  for  their  own  benefit  and  gain,  defendant 
had  a  right  to  charge  them  with  a  conyersion  of  the  prop- 
erty, and  maintain  his  suit  for  its  yalue. 
Judgment  affirmed. 

FiNDKR  ov  Propebtt  OP  Akotheb  has  No  Bight  to  Rbwaxd  moM 
Ownkr;  he  ia  only  entitled  to  be  paid  his  neceaaary  expensea  in  ita  proaerva- 
tioD:  Amory  y.  Fljfn,  6  Am.  Dec  316.  But  if  a  reward  haa  been  offered,  the 
finder  haa  a  right  to  aach  reward  upon  the  return  of  the  property:  Dedondt$ 
▼.  WHaon^  25  Id.  187.  The  finder  aoqnirea  a  lien  npon  the  property  to  the 
extent  of  the  reward,  and  he  may  retain  poaaeaaion  thereof  until  the  lien  ia 
tatisfied:  WetUworth  v.  I>a^,  37  Id.  145,  and  note.  A  number  of  queationa 
growing  out  of  the  finding  of  loat  articles  are  diacuaaed  in  Brandon  v.  HutUa- 
fUUBtmk,  IS  Id.  48,  and  note,  and  DeafoiMlef  y.  IFilion,  25  Id.  187,  and  note. 


Mo88  V.  Gtjllt. 

[1  Oxiooir,  147.] 

br  AonoH  upon  Fbomissobt  Non,  Allegation  in  GoMnjONT  that  the 
defendant  "made  hia  promiaaory  note  in  writing,  and  thereby  promiaed 
to  pay  to  the  plaintiff,"  etc.,  ia  a  aufficient  allegation  of  the  note'a  de- 
liyary  to  plaintiff  and  of  hia  ownerahip  of  it. 


802  Mobs  v.  Cuixt.  (Oregoa 

Tn  IftotB  axe  Btsted  in  the  opinion  of  the  oonrL 
A.  E.  WaUf  for  the  plaintiflf  in  error. 
A.  OampbeUf  for  the  defendant  in  enor. 

By  Oourtf  Dsadt,  J.  This  was  aaaotionat  hiwupon  a  pram* 
bnoiy  note  made  by  Mobs  to  Cully.  At  the  September  tenn,  ▲.  n. 
1861y  of  the  court  below,  jadgment.  on  demurrer  to  the  com- 
plainty  was  rendered  against  Moss  for  the  snm  of  three  thousand 
five  hundred  and  forty  dollars  and  City  cents. 

It  is  not  necessaiy  to  formally  pass  upon  any  of  the  errors 
assigned  except  the  fourth.  The  others  refer  to  the  sufKciencj 
of  the  summons;  and  the  party,  1^  appearing  to  it  and  pleading^ 
to  the  action,  has  confessed  that  it  answered  the  purpose  fof 
which  it  was  intended;  that  is,  to  bring  the  defendant  into  court. 

The  fourth  error  is,  that  the  complaint  does  not  show  that 
Oully  was  the  owner  of  the  note  sued  upon.  The  complaint 
alleges  that  Moss  **  made  his  promissory  note  in  writing,  and 
thereby  promised  to  pay  to  the  plaintiff,"  etc.  No  deliyery  is 
expressly  aTerred;  and  now  it  is  said  for  Moss  tha^,  delivery 
being  essential  to  the  plaintiff's  title,  it  must  be  expressly 
averred  or  fairly  implied  from  the  allegations  which  are  made. 
We  think  the  doctrine  is  correct,  and  that  the  case  is  clearly 
within  the  rule.  Although  delivery  be  essential  to  a  deed,  yet 
it  need  not  be  expressly  averred,  the  delivery  being  implied  in  the 
allegation  that  the  deed  was  made:  See  1  Ch.  PI. 

Here  the  allegation  is  that  the  party  ''  made  his  promissory 
note,  and  thereby  promised  to  pay  to  the  plaintiff."  How  could 
this  be  done  without  a  delivery  of  the  note  ?  and  if  it  was  done, 
what  doubt  could  be  raised  that  the  plaintiff  is  not  prima  J'acus 
the  owner  of  the  note,  and  entitled  to  sue  upon  it  f  Oounsel  have 
suggested  that  for  aught  that  appears  upon  the  face  of  the  corn- 
plaint  the  plaintiff  may  have  obtained  the  note  surreptitiously, 
by  mistake  or  fraud.  True  it  is,  all  this  and  more,  may  be; 
but  is  it  so  ?  If  it  is,  the  defendant  knows  it  and  can  plead  his 
own  defense.  The  plaintiff  states  his  own  case,  and  not  the  de- 
fendant's; nor  is  he  bound  to  anticipate  every  or  any  possible 
defense  that  may  be  made  and  negative  the  same.  The  oom* 
plaint  is  a  legal  statement  of  the  tacts  which  constitute  the 
plaintiff's  cause  of  action. 

Judgment  affirmed. 


OASEB 


SUPREME  COURT 


PENNSYLVANIA. 


Aqnew  v.  Johnson. 

[33  FimnxLTAiOA  Btaxb,  471.] 

OmEEAii  Bulb  is  that  Pubchasxb  vor  Yalom  of  Pbbmval  Pioram 
Tajos  Ko  Bsttkb  Title  than  his  YxirDOB. 

PaJCTT  hating  OvlT  QUAUflJCD  PkOPEBTT  in  Gk>OD6  CAN  NOT  PliXDOB  T&Bli 

Any  more  than  a  factor  can  pledge  the  goods  of  his  principal  for  his  own 
debt. 

PnaoH  TO  Wboh  Pkbsonal  Pbopxbtt  is  TBANanuBSD,  which  property 
had  been  in  the  mere  possession  of  another,  bat  not  nsed  for  the  purposes 
of  trade,  mast  take  it  at  the  hasard  of  a  demand  by  the  proper  owner. 
Bach  possessioo,  thoagh  indicative  of  title,  is  not  title. 

Owhbk's  Bight  to  Bkgotkb  Propibtt  Pleoobd  to  Thibd  Pibson  bt  Ovb 
HA  VINO  It  in  Hia  Possession. — A  party  made  a  contract  with  the  aathor 
of  a  copyrighted  historical  work  by  which  he  porohased  the  exdnslTe 
light  to  publish  the  same.  He  afterward  had  the  work  stereotyped,  and 
entered  into  a  contract  with  a  firm  of  bookifellers,  by  which  he  sold  them 
a  half -interest  in  the  stereotjrpe  plates,  sabject  to  his  contract  with  the 
•nthor.  This  party  and  the  booksellers  farther  agreed  that  the  latter 
were  not  to  dispose  of  the  books  withont  the  written  consent  of  the  for- 
mer, and  also  that  if  said  firm  of  booksellers  was  dissolved,  or  became 
incapable  of  performing  their  contract,  he  was  to  have  the  right  to  claim 
the  plates  apon  tendering  to  the  booksellers  the^imonnt  paid  him  therefor. 
Held,  that  the  party  had  as  much  right  to  recover  the  plates  from  a  third 
party  with  whom  they  had  been  pledged,  apon  making  the  stipulated 
tender,  as  he  had  from  the  booksellers  themselves. 

fuasTsww  CAN  NOT  Bbootxb  fOR  Intebruttion  to  his  Bctsinbss,  eta»  ia 
an  action  of  trover,  withoat  a  special  coant  or  avennent  In  the  dedaratlon 
tothaieflect. 

PuknmiT,  Samuel  Agnew,  entered  into  an  agreement  with 
Boodrieby  anthor  of  Goodrich's  Pictorial  Hifitories  of  the 
United  States,  England,  France,  and  Oreece»  1^  whioh  he  pur* 


804  Agnew  v.  Johnson.  [Penn. 

chased  the  ezclusiTe  right  to  publish  the  abore-named  work. 
This  was  in  February,  1842.  In  July,  1844,  Agnew  entered 
into  an  agreement  with  Sorin  &  Boll,  a  firm  of  booksellers,  by 
which  he  sold  them  pne  half  of  his  contract  for  publishing  the 
work,  and  one  half  of  the  plates  (he  had  the  work  stereoiyx)ed) 
of  the  work,  subject  to  his  contxact  with  Goodrich.  They  were 
to  pay  him  one  half  of  the  price  he  had  paid  for  the  plates,  and 
they  were  to  publish  the  work  at  their  own  risk  and  at  their 
own  expense.  They  were  not  to  dispose  of  the  books  without 
the  written  consent  of  Agnew,  and  in  case  of  the  dissolution  of 
the  firm,  or  of  Uieir  incapacity  to  perform  their  contract,  he  was 
to  have  the  plates  returned  to  him  upon  tendering  to  them  the 
amount  paid  him  for  their  one-half  share,  together  with  inter- 
est, in  satisfactory  notes  at  sixty  and  ninety  days.  By  a  subse- 
quent agreement,  made  in  October,  1846,  it  was  agreed  that  the 
plates  were  to  be  pledged  by  Sorin  &  Ball  to  Agnew  as  security 
for  the  performance  of  their  agreement  with  Goodrich;  and  in 
the  event  that  they  should  fail  in  their  agreement  with  Agnew, 
by  which  he  would  be  entitled  to  purchase  the  plates,  the  sum 
paid  should  be  pledged  as  security  for  the  payment  of  any 
arrears  which  might  be  due  on  account  of  the  copyright  money, 
lu  pursuance  of  the  above  contracts,  Sorin  &  Ball  paid  half  the 
price  of  the  plates,  and  published  the  histories.  Sorin  &  Ball 
failed  in  business  in  the  latter  part  of  1847,  and  in  August, 
1848,  Agnew  demanded  of  them  the  plates,  making  the  neces* 
eary  exhibition  of  notes  as  in  the  agreement  provided,  which  he 
was  to  hold  in  pledge.  This  was  an  action  of  trover,  brought 
by  Agnew  against  Lawrence  Johnson,  for  the  conversion  of  four 
sets  of  the  stereotype  plates  above  mentioned.  Johnson  pleaded 
the  general  issue.  At  the  trial  Johnson  claimed  the  plates  by 
virtue  of  a  pledge  thereof  made  to  him  by  Sorin  &  Ball  for 
money  lent  to  them,  which  money  defendant  claimed  was  used 
by  them  to  carry  on  their  business,  the  principal  part  of  which 
was  the  publication  of  these  histories.  Johnson  further  claimed 
that  the  money,  to  secure  which  the  plates  were  pledged,  was 
advanced  to  Sorin  &  Ball  before  the  agreement  of  August,  1846, 
and  was  part  of  the  money  paid  by  them  to  Agnew.  Among 
other  things,  the  court  charged  the  jury  that  "  Sorin  &  Ball  had 
a  right  to  transfer  to  the  extent  of  their  interest,  notwithstand- 
ing the  prohibition  in  the  contract  with  Agnew  of  1844,  to  any 
person  not  having  notice  of  the  nature  of  their  interest."  The 
court  left  it  to  the  jury  whether  Johnson  had  such  notice.  The 
jury  were  further  instructed  that  if  Johnson's  interest  aroGe  be- 


1854.]  AoNEW  t;.  JoHiraoN.  806 

foie  the  malring  of  the  agxeemeni  of  October,  ISM,  the  tender 
by  Agnew  was  not  good.  The  inBtmisiion  of  the  court  with  re- 
gard to  the  plaintiff's  right  to  recover  bat  one  half  of  the  value 
of  the  plates  will  be  understood  from  the  opinion.  The  court 
further  charged,  that  in  the  absence  of  a  special  avennent  or 
count  in  the  declaration  plaintiff  could  not  recover  for  inter- 
ruption to  his  business,  or  costs  and  trouble  in  obtaining  new 
plates,  but  that  the  measure  of  damages  was  the  value  of  the 
property  converted,  with  interest.  The  jury  found  for  plaintiff 
for  one  half  of  the  value  of  the  plates,  assessed  at  eight  hundred 
dollars. 


MUler  and  Joneg,  for  the  plaintiff  in  enor. 
Wain,  for  the  defendant  in  error. 

Bj  Court,  WooDWABD,  J.    All  the  material  questions  in  tUs 
case  were  decided  when  it  was  here  before.    That  Johnson  was 
not  a  purchaser  of  the  stereotype  plates  for  value  and  without 
notice — ^that  his  title  could  not  rise  higher  than  the  rights  of 
Serin  &  Ball— and  that  as  aminst  them  the  nlaintiff  had.  undev 
the  several  articles  of  agreement,  an  interest  as  part  owner  un* 
conditionally,  and  the  right  to  the  remaining  interest  in  the 
plates  on  pcorf  orming  the  conditions  specified  in  the  sgxeements, 
were  points  veiy  expressly  ruled  in  the  opinion  of  Mr.  Justice 
Lewis.    It  would  seem  to  follow  necessarily  from  these  prin- 
ciples that  the  plaintiff  had  the  same  right  to  recover  the  plates, 
or  their  value,  from  the  defendant  Johnson  as  he  would  have 
•had  from  Sorin  A  Ball;  yet  the  court  below  held  that  Agnew, 
though  he  had  performed  his  conditions,  could  recover  for  only 
half  of  the  plates.    The  error  consisted  in  supposing  that  Sorin 
&  Ball  had  any  transferable  interest  in  the  plates.    Though  they 
had  paid  half  their  cost,  and  were  entitled  to  the  possession  of 
the  plates  for  the  purpose  of  publishing  the  pictorial  histories 
mentioned  in  the  contracts,  they  had  not  the  jus  diaponendi  as 
•gainst  Agnew;  and  this,  not  because  they  had  pledged  their 
moiety  to  Agnew  as  security  for  arrears  of  copyright  money,  but 
because  they  held  them  as  tenants  in  common  with  him  for  the 
sole  purpose  of  publishing  works,  the  copyright  of  which  was 
in  another.   The  agreement  of  the  nineteenth  of  Februaiy ,  1842, 
established  the  relation  of  author  and  publisher  between  Good- 
rich and  Agnew,  and  Sorin  &  Ball  came  in  under  the  subsequent 
agreements  to  share  with  Agnew  the  benefits  and  advantages  of 
the  original  contract,  and  of  course  all  their  rights  were  sub- 
•enrient  to  it.    By  that  the  copyright  in  the  books  was  retained 

Am.  Dm.  Vol.  ZjXII'— 90 


806  Agnew  v.  Johnson.  [PeniL 

by  GkKKlrioli,  and  the  plates  were  prepared  in  Tiew  of  that  fact. 
They  could  be  used  only  under  the  contracts.  Their  whole 
value,  beyond  the  mere  price  of  the  metal,  consisted  in  their 
connection  with  the  copyright,  and  this  connection  was  estab- 
lished by  the  contracts  in  evidence.  Sorin  &  Ball  had  no 
vendible  interest  in  the  plates;  their  rights  were  limited  to  a 
use  of  them  for  the  purposes  set  out  in  the  contracts.  When, 
therefore,  they  undertook  to  transfer  them  to  Johnson,  whether 
by  way  of  sale  or  pledge,  they  so  misused  the  joint  property,  and  bo 
incapacitated  themselves  for  applying  it  to  the  purpose  for  which 
it  was  designed,  and  in  connection  with  which  it  had  acquired 
its  value,  that  Agnew  might,  on  tender  of  his  notes,  recover  its 
value.  An  event  had  then  happened  which  rendered  them 
"  unable  to  carry  on  their  part  of  their  engagement,''  and,  as  in 
case  of  the  death  of  either  of  them  or  of  a  dissolution  of  their 
firm,  Agnew  had,  according  to  the  agreements,  "  the  right  to 
claim  the  plates,  and  take  the  same  as  his  ovm  property,"  upon 
refunding  their  money,  with  ten  per  cent,  by  satisfactory  notes 
at  sixty  and  ninety  days  and  four  months,  for  equal  portions 
thereof.  If  the  tender  of  the  notes  were  proved  to  the  satisfac- 
tion of  the  jury,  they  should  have  been  instructed  that  the 
plaintiff  was  entitled  to  recover  the  full  value  of  the  plates,  with 
interest. 

As  to  notice:  if  Johnson  stood  as  a  purchaser  for  value,  in- 
stead of  a  mere  pledgor,  the  general  rule,  that  a  purchaser  of 
personal  property  takes  no  better  title  than  his  vendor,  would 
apply  to  him,  for  this  property  was  not  vrithin  any  of  the  ex-' 
ceptions  to  that  rule  which  were  very  well  stated  by  Mr.  Justice 
Bell  in  McMahon  v.  Sloan,  12  Pa.  St.  232. 

But  a  party  having  only  such  a  qualified  property  in  goods  as 
Bonn  &  Ball  had  in  these  stereotype  plates  can  not  pledge  them 
any  more  than  a  factor  can  pledge  the  goods  of  his  principal 
for  his  own  debt;  and  that  this  may  not  be  done  is  established 
by  a  train  of  decisions:  Palersan  v.  Huh,  2  Stra.  1178;  Daubigny 
V.  Duval,  5  T.  B.  604;  Skinner  v.  Dodge,  4  Hen.  &M.  432;  Ken" 
nedy  v.  Strong,  14  Johns.  128;  Van  Amrige  v.  Peabody,  1  Mason, 
140;  LausaaU  v.  IdppinooU,  6  Serg.  &  B.  886  [9  Am.  Dec.  440]. 
The  pledge  in  such  cases  is  wholly  void,  and  ttie  property  is  not 
divested  from  the  ovmer,  because  it  is  made  in  violation  of  the 
conditions  on  which  he  has  the  possession,  the  very  ground  on 
which  this  transfer  viras  void.  Mere  possession  of  personal  prop- 
erty which  is  not  used  for  purposes  of  trade,  though  indicative 
oi  title,  is  not  title,  and  the  person  to  whom  the  possession  is 


1854.]  Clabk  v.  Ecksteim.  807 

transferred  miut  take  ihe  hawrd  of  a  fleinand  hj  the  proper 
owner. 

It  is  not  neoeeaaiy  to  advert  to  the  eridence  of  notice,  or  to 
pass  upon  its  oondusiyeness,  because  we  think  the  defendant  ao- 
qoired  no  rights  whaterer  bj  the  transfer  from  Sorin  &  BalL 

There  was  no  error  in  the  instmotion  as  to  the  measnie  of 
damages. 

These  observations  dispose  of  all  the  assignments  of  error 
except  the  first,  and  we  find  no  bill  of  exceptions  to  sustain  tliat« 

The  judgment  is  rerersedt  and  a  venire  de  novo  awarded. 

PUBCBABBS  or  CkWDS  FROM   OnB  HATDTO  JIBITHSK  TfTUI  VQS  AUTBOB- 

iTT  TO  Sill  Aoquzbb  No  Tuls.  One  oaa  not,  gsiMnUy,  tnuiaf«r  a  better 
title  than  he  himeelf  has:  SaUtu  t.  SaUut,  32  Am.  Deo.  541,  and  note.  See 
•lao  the  note  to  WiUkmuT.  Merle,  25  Id.  fM. 

Thb  nuirciPAL  oass  is  omn  in  /onea  t.  Fcrlt  96  Ala.  46(K  to  the  point 
that  trover  may  be  maintained  againat  a  third  penon  to  whom  oae  who  ha* 
borrowed  |iw|wriy  from  the  owner  had  loaned  it. 


GliABX  V.  EOKBTJUN. 

[99  TmnmtLfAMU.  Szatb,  807.] 

IfAvrr  PaoDUUum  FaomasoRT  Nora  Whiob  Appxabs  upon  rb  Faob  to 
BAYS  BBBB  Ax/CBBBD  in  a  material  part  mnit  aoooont  for  anch  alteration 
hy  explanatory  oTidenoe;  and  if  no  aach  evidenoe  ia  addaoed,  it  would  be 
error  for  the  oonrt  to  leave  to  the  jury  the  question  whether  or  not  sneh 
alteration  preoeded  deliTery. 

OtrvB  18  UPON  Pabtt  Pboduoiko  PBOMI880RT  NoTB  which  appean  to  have 
been  altered  in  a  material  part  to  ahow  the  legality  of  the  inatrument. 

Wbbtbbb  or  not  Ihstrumbiit  Wbicb  Appbabs  to  batb  BBRV  Al/rBBXD 
baa  in  fact  been  altered  fa  lor  the  jury  to  determine, 

AssuMPsrr  upon  a  promissory  note.  The  opinion  is  snflSoiently 
explicit  without  stating  the  case. 

Claiy  and  Jonee^  for  the  defendant  in  error. 

By  Court,  Ebox,  J.  Where  a  promissory  note  dearly  shows 
upon  its  face  that  it  has  been  altered  in  some  material  part, 
such  as  its  date,  it  is  incumbent  upon  the  party  producing  it  to 
account  for  the  alteration;  and  if  no  explanatory  evidence  is 
giyen,  it  wotdd  be  error  in  the  court  to  refer  it  to  the  jury  as 
matter  of  fact  to  determine  whether  the  alteration  preceded  de- 
liTery or  otherwise.  The  onus  in  such  case  is  upon  the  party 
alleging  the  legality  of  the  instrument. 

But  the  preUminazy  question  whether  there  has  been  an 
alteration,  if  doubtful,  is  for  the  jury.    In  the  present  case,  the 


fl08  McFadden  v.  Commokwealth.  [PenBi 

last  figure  in  the  date  of  the  note  upon  which  the  suit  was 
brought  is  blotted,  and  there  appears  at  its  side  an  erasure, 
but  whether  it  was  the  date  or  the  blot  that  was  attempted 
to  be  zemoyed  was  properly  left  to  the  juxy  as  a  question  of 
fact. 
Judgment  aflhmed. 

Matsbial  Altbration  ov  Notb,  appearing  on  ita  face,  ia  preaamed  to 
have  been  made  after  ita  deliTery,  and  it  ia  for  the  payee  to  ezplidn  it:  WUmn 
▼.  Hendermm^  48  Am.  Deo.  716;  Inffiiah  r.  Braumant  41  Id.  96. 

AlTSBATION  ApPAMUVT  upon  FaCS  ov  ASSIONMXHT  IB  PaBBUMBD  TO  HAT! 

BSBN  Madb  beiorb  It  was  Sionbo,  and  the  onus  is  upon  the  party  alleging 
Ita  illegality:  North  Bimr  Meadow  Oo.  t.  akrtwtbmy  CAiirc4, 63  Am.  Deo.  85a 

QiTBsnoir  ov  AunBATiON  ov  Ixwoixnaxrm  is  ezteoalTely  diaonaaed  in  the 
leading  case  of  WoodwcHh  t.  Btmk  </  Ameriea^  10  Am.  Deo.  239,  and  the 

note  thereto. 

QfrBsnoN  ov  wbbcbbb  ob  not  Instbumbnt  has  bbbn  Alsbbed  n  vob 
Jvbt:  Beamtm  T.  i^Mawff,  49  Am.  Deo.  770* 


MoFaDDEN  V.   COMMONWEAIiTH. 

[38  PamnTLTAiriA  Statb,  U.] 

Pbisonbb  is  not  IK  Jbofabdt  until  thb  Jubobs  abb  Swobn  to  tiy  th» 
oanae. 

Mebb  Continuancb  ov  a  Cbhonal  Gasb  is  withfai  the  diaoretioa  of  the 
oonrt. 

DiscHABOB  OV  JuBT  AvnEB  Tbial  HAS  Bboun,  in  a  ca^dtal  oaaa»  la  not  a  ooa- 
tinoance  of  the  caoae,  bnt  an  end  of  it,  and  an  aoqnittal  of  the  priaoner^ 
nnleaa  done  with  Ida  oonaenti  or  reqtdred  by  some  ovenrhelming  neoea* 
aity. 

Tbial  of  Cbiminal  Casb  bobs  not  Bboin,  80  as  to  prohibit  tiie  oonrt  from 
continuing  or  diacharging  the  jnry,  until  a  fnU  jury  la  Impaneled  and 
sworn. 

CoMif  onwbalth  v.  Club,  3  Rawlb,  498,  explained  and  limited. 

JuBOB  MAT  bb  Challbngbd  for  cause  by  the  proeeouting  attorney  after  ha 
has  been  formally  paaaed  as  satisfactory,  provided  aneh  challenge  la  in- 
terposed before  the  juror  is  sworn  to  try  the  cause. 

Ihdiohcxnt  for  murder.  In  January,  18629  the  prisoner  waa 
brought  in  for  trialy  and  the  panel  was  exhausted  when  onlj 
eleven  jurors  were  chosen.  A  tales  de  comitaiu  was  then 
awarded,  and  was  returned  by  the  sheriff  in  the  afternoon  of 
the  same  day.  The  prosecution  then  asked  leave  to  challenge 
the  tenth  juror  previously  impaneled,  on  the  ground  of  his  mis- 
conduct at  a  previous  trial  in  quarreling  with  his  fellow-jurors, 
and  in  declaring  that  he  was  a  Tom  Paine  man,  and  would  as 
lief  swear  on  a  spelling-book  as  on  a  bible;  and  also  for  saying 


1864.]  MgFaddxn  v.  Commokwkalth:  800 

on  another  oecamon  ihat  he  had  izied  to  aeqnit  ereiy  one  the 
judge  "wished  conTieted.  Upon  due  proofs,  the  challenge  wae 
BOBtained.  After  aome  farther  proeeedinge  the  coort  difamBsed 
the  jnrors,  and  posiponed  the  case.  When  the  case  was  called 
at  the  next  term,  the  prisoner  pleaded  that  he  had  been  onoe 
in  jeopardy,  etc.  The  plea  waa  orermled.  A  trial  and  con« 
▼iction  followed.  A  writ  of  error  waa  sued  ovL  The  other 
facts  appear  from  the  opinion. 

Webster  and  PhtUips^  for  the  plaintiff  in  error. 

Bead,  diatrid  aUomey^  oonkti. 

By  Court,  Black,  0.  J.  The  defendant  waa  indicted  for  mnr- 
der,  and  bein^  found  guilly  of  murder  of  the  second  degree, 
was  sentenced  to  undergo  an  imprisonment  in  the  eastern  peni- 
tentiaiy. 

On  the  trial  in  the  court  of  oyer  and  terminer,  the  prisoner 
pleaded  that  he  had  once  before  been  in  jeopardy  of  life  for  the 
same  supposed  offense,  and  he  had  been  acquitted.  He  set  forth 
in  his  seyeral  pleas  the  particular  facta  as  follows:  He  had  been 
arraigned  before  the  same  court,  on  the  same  indictment,  at  a 
previous  term,  and  pleaded  not  guilty.  A  jury  was  thereupon 
called,  eleven  jurors  were  chosen,  and  all  the  rest  of  the  panel 
challenged  or  set  aside.  A  tales  was  awarded,  but  before  the 
selection  proceeded  any  further,  and  before  any  of  the  jurors 
were  sworn,  the  district  attorney  claimed  the  right  to  challenge 
(for  cause)  one  of  those  already  chosen.  The  court  permitted 
the  cause  to  be  shown,  and  sustained  the  challenge.  When  the 
twelfth  juror  was  called,  the  prisoner  refused  to  take  any  part 
in  the  selection;  and  the  court,  on  the  motion  of  the  district  attor- 
ney, dismissed  the  jurors,  and  postponed  the  trial  to  the  following 
term.  To  these  pleas  the  commonwealth  replied  that  no  one  of 
the  jurors  had  been  sworn  before  they  were  dismissed;  and 
therefore  the  prisoner  was  not  acquitted  or  in  jeopardy.  To 
which  replication  the  prisoner  demurred. 

The  judgment  of  the  court  on  the  demurrer  was  against  the 
prisoner,  who,  when  called  upon  to  plead  over,  stood  mute. 
The  plea  of  not  guilty  was  put  in  for  him,  and  the  trial  pro- 
ceeded, with  the  result  already  mentioned. 

If  it  can  be  legally  said  of  the  prisoner  that  the  proceedings 
at  the  first  term  after  the  indictment  was  found  placed  him  in 
jeopardy,  the  subsequent  conviction  was  wrong,  and  should  be 
reversed.  Neither  the  constitution  nor  the  rules  of  the  common 
law  will  permit  a  man  to  be  twice  tried  for  the  same  offense. 


810  McFaddek  v.  CoMMONvnsALTH.  [Penn. 

It  seems  unnecessaiy  to  say  that  the  mere  oontinnance  of  a 
cause  is  within  the  discretion  of  the  court.  Refusing  it  to  a 
prisoner  when  he  gives  good  reasons  for  it,  or  granting  it  to  the 
eommonwealth  without  any  reason  at  all,  is  neither  a  defense  to 
the  accused  party  when  he  comes  to  be  tried,  nor  a  legal  assign- 
ment of  error  in  this  court.  But  a  discharge  of  the  jury  in  a 
capital  case,  after  the  trial  has  begun,  is  not  a  continuance  of 
the  cause.  It  is  the  end  of  it.  And  for  all  purposes  of  future 
protection,  it  is  the  same  to  the  prisoner  as  an  acquittal,  unless 
it  was  done  with  his  own  consent  or  demanded  bj  some  otot- 
whelmin^  necessity;  such,  for  instance,  as  the  sickness  or  death 
of  a  juror. 

When  does  the  trial  begin?  Not  properly  until  the  jury  is 
charged  with  the  prisoner.  But  the  practice  of  formally  charg- 
ing the  jury  is  not  generally  obserred  in  the  courts  of  this  state, 
and  we  can  not  refuse  to  a  party  any  of  the  rights  which  he  would 
otherwise  have  merely  because  a  form  is  omitted  by  the  public 
officers.  We  must  therefore  hold  that  the  juiy  has  the  prisoner 
in  charge  when  a  full  jury  is  impaneled  and  all  the  jurors  are 
sworn.  Previous  to  this,  everything  that  is  done  is  merely  pre- 
liminary, and  up  to  this  point  the  court  may  postpone  the  trial 
as  lawfully  at  one  stage  of  the  proceedings  as  at  another. 

To  place  a  man  in  jeopardy,  he  must  be  in  peril  from  the  ver- 
dict of  a  particular  jury.  He  can  not  be  so  by  the  calling  of 
eleven,  for  they  can  give  no  verdict,  nor  is  he  endangered  by 
twelve  unless  they  are  sworn.  .  Until  they  have  taken  the  oath, 
they  are  not  jurors,  and  have  no  more  control  of  his  fate  than 
any  other  equal  number  of  citizens.  His  trial  can  not  begin 
until  the  tribunal  which  is  to  try  him  is  organized  and  qualified. 
If  he  is  in  jeopardy  at  any  earlier  period,  he  is  in  jeopardy  from 
the  hour  when  the  first  informal  accusation  was  made,  and  at 
every  step  of  the  subsequent  proceedings  against  him.  To  say 
this  would  be  to  assert  what  no  ingenuity  can  reconcile  with 
either  authority  or  reason. 

The  prisoner's  counsel  cite  CommonweaUh  v.  Clue,  3  Bawle, 
498,  and  rely  much  on  a  dictum  of  Chief  Justice  Gibson, 
who  says:  ''  In  the  legal  as  well  as  the  popular  sense,  he  [the 
prisoner]  is  in  jeopardy  the  moment  he  is  called  to  stand  on  his 
defense,  for  from  that  moment  every  movement  of  the  common- 
wealth is  an  attack  upon  his  life."  I  call  this  a  dichim,  because 
the  question  before  the  court  was  whether  a  prisoner  was  in 
jeopardy  whose  jury  had  been  discharged  without  giving  a  ver- 
dict after  they  were  sworn. 


18S4]  McFaddkn  v.  Oommonwxalth.  811 

It  "was  decided  in  the  aflBrmatiTe,  and  the  case  is  anthoriiyfof 
nothing  more.  But  allowing  this  expieamon  all  the  weight  to 
which  it  would  be  entitled  if  it  were  on  the  point  in  oontro- 
Tersy,  what  does  it  come  to  ?  At  what  moment  of  time  is  the 
prisoner  called  to  stand  on  his  defense?  Certainly  not  until 
the  commonwealth  is  ready  to  begin  the  assault.  The  judge 
was  using  a  figure  borrowed  from  the  battd;  and  the  phrase, 
**  jeopardy  of  life  or  limb  "  was  also  used  originally  with  refer- 
ence to  that  mode  of  trial.  In  judicial  combat  the  parties  took 
their  attitudes  of  attack  and  defense  when  the  judges  were  set, 
and,  all  preliminaries  being  adjusted,  the  actual  conflict  was  or- 
dered to  commence.  If  this  analogy  has  anything  in  it  worth 
noticing,  it  is  against  the  plaintiff  in  error.  This  decides  the 
whole  cause. 

Our  duty  is  done  when  we  determine  whether  the  facta  pleaded 
amount  to  a  defense.  But  the  challenge  of  a  juror  after  the 
district  attorney  had  waived  his  right  is  complained  of  by  the 
prisoner's  counsel  as  a  grieyous  wrong,  while  the  district  attor- 
ney  asserts,  with  equal  confidence,  that  it  is  a  great  right.  Both 
have  argued  it  fully,  and  asked  us  to  give  our  opinion.  We  will 
do  so. 

The  right  of  the  commonwealth  and  that  of  the  prisoner  to 
challenge  for  cause  stand  upon  the  same  ground.  One  is  as 
sacred  as  the  other.  It  can  not  be  exercised  after  the  juror  has 
lifted  up  his  right  hand  or  taken  the  book,  in  obedience  to  the 
directions  of  the  officer,  or  after  the  formula  of  the  affirmation 
has  been  commenced.  In  some  of  the  states  it  is  held  that 
the  juror  is  not  beyond  a  challenge  eyen  when  he  is  sworn. 
These  decisions  are  not  supported  by  reasons  satisfactory  to  us, 
and  are  opposed  by  certain  principles  which  are  well  settled  here. 
But  the  mere  passing  of  the  juror  oyer  to  the  court  or  the  other 
party  is  not  an  absolute  waiver  of  the  right  to  challenge,  if  good 
cause  be  shown  afterwards.  This  power  to  challenge  for  cause 
at  any  time  before  the  oath  is  tendered  might  be  abused.  If  the 
objection  to  a  juror  be  kept  back  at  the  regular  time  for  an  im- 
proi>er  reason,  or  for  motives  of  mere  caprice,  it  would  be  just 
enough  to  declare  the  right  wholly  waived,  and  the  discretionary 
power  to  do  so  ought  not  to  be  denied.  But  instances  of  such 
bad  faith  are  likely  to  be  very  rare;  and  submitting  a  cause  to  the 
determination  of  one  who  is  known  beforehand  to  be  partial,  cor- 
rupt, or  incompetent,  is  so  revolting  to  every  sense  of  right  that 
no  court  can  do  it  without  making  a  struggle  to  prevent  it.  When 
it  is  proved  against  a  juror  by  his  own  admission  that  he  grossly 


812  Mamdebson  v.  Lukem&  (Ttan. 


misbelunred  hirrMwIf  on  a  former  oecadon,  dedarixig  fliat  he  had 
tried  to  aeqait  eyeiy  one  whom  the  judge  desired  to  oonTiot,  and 
would  as  lief  swear  on  a  spelling-book  as  a  bible,  because  he 
was  a  Tom  Paine  man,  we  can  see  nothing  wrong  in  sustaining 
the  challenge.  It  would  destroy  all  confidence  in  the  administra- 
tion of  justioe  if  the  most  important  criminal  causes  should  ha^e 
to  be  submitted  to  men  who  avow  themselyee  reckless  of  both 
human  and  divine  laws.  There  is  no  stress  of  necessity  which 
driyes  us  to  that;  there  is  still  a  sufficient  number  of  ''good, 
true,  honest,  and  lawful  men"  for  jurors.  When  a  witness  ia 
objected  to  for  defect  of  religious  principle,  the  rule  is  to  let 
him  speak  for  himself,  and  if  he  professes  faith  enough  to  give 
a  religious  sanction  to  his  oath,  his  testimony  is  taken.  The 
courts  incline  against  the  total  exclusion  of  cTidence  on  such 
grounds,  because  it  seals  up  what  is  perhaps  the  only  source  of  in- 
formation. The  choice  is  veiy  often  between  a  doubtful  witness 
and  none.  It  is  therefore  safer  to  let  the  objections  go  to  his 
credit.  But  there  are  no  such  reasons  for  tenderness  in  the  case 
of  a  juror  where  the  worst  consequence  that  results  from  his  re* 
jection  is  that  his  place  will  be  filled  by  a  better  man.  To  be 
sure,  a  juror,  like  every  other  person  publicly  assailed,  ought  to 
be  heard  in  vindication  of  his  character,  and  I  suppose  an  ap- 
peal to  the  court  on  that  ground  would  hardly  ever  be  made  in 
vain.  But  in  this  case  the  court  decided  eitet  hearing  all  that 
was  offered,  and  they  decided  rightly. 
Judgment  affirmed. 

What  is  "  Jbopabdt,"  and  whbv  It  Bianra:  See  iUUe  v.  MeKee^  21  Am. 
Deo.  499,  and  extended  note  to  same  506;  StcUe  v.  Cooper,  25  Id.  490;  StaU 
r.  NorveU,  24  Id.  458;  MeGinrnt  v.  State,  49  Id.  697,  and  note  705;  SvUiift 
r.  State,  61  Id.  469;  DMey  v.  ComnumweaUh,  65  Id.  642;  Hutri  r.  SUUe^  69 
Id.  225,  and  reapeotiye  referenoea  to  each. 

CoKTiNUAHca  IN  Cbdonal  Gass  18  DiBoaBTiOHABT:  See  FMUeg  v.  StaU^ 
86  Am.  Deo.  657;  McKinney  v.  People,  43  Id.  65;  Sealy  t.  State,  44  Id.  641; 
McDaniel  t.  State,  47  Id.  93;  State  t.  HUdreth,  51  Id.  364.  . 

Objsotion  to  Jubob  must  bb  Madb,  aa  well  by  the  commonwealth  aa  by 
the  priaoner,  before  the  joxy  ib  impaneled,  or  at  least  before  the  jnrw  la  awoms 
ComnumweaUh  ▼.  Knapp,  20  Am.  Dea  684;  QUletpie  ▼.  SUUe,  89  U.  187| 
lee  note  to  Daeii  v.  AOen,  22  Id.  388. 


MaNDEBSON  V.  LUEENS. 

[28  PxmnTLTAXiA  Btatb,  81.] 

Devisb  was  Madb  to  Tbstatob's  Wits  durinq  Widowhood,  and  when- 
ever her  death  or  marriage  shoald  take  place,  the  property  waa  to  be 


1854]  Mandibson  v.  Luxens.  818 

• 

•qoAlIy  drrlded  among  his  ohildren  which  maj  than  be  aUve^  or  who 
woMj  have  left  Intimate  heira.  Two  of  the  ohildran  died  ioteatate,  and 
without  heirs,  and  the  widow  conveyed  her  interest  to  the  only  remain- 
ing child.  It  was  held  that  the  latter  had  an  absolate  title,  though  lus 
mother  was  yet  alive,  and  that  there  was  no  jnst  ground  to  fear  that  a 
claim  whioh  might  he  made  by  his  ohildren  in  the  event  of  lus  death  be- 
fore that  of  his  mother  woold  be  available  a^inst  one  acquiring  his  title. 
No  LnoTAnoH  wni.  bb  Deemed  Ezsoutobt  Dbtub  if  it  can  be  tnated 


Bbiate  will  hov  be  Ck>iiiintuED  as  Contivoebt  or  Dete amble  if  it  la  ai 
all  practicable  to  construe  it  as  vested  or  absolntei 

Word  ''whebeveb,"  Retebsiho  to  Time  wbbm  Pbopertt  u  to  bb 
Divided,  does  not  necessarily  make  the  estate  contingent. 

QuEsnoN  whetheb  Esxatb  m  VEgrED  ob  CovTuroEBT  ia  not  to  be  tasted 
by  the  oertainty  or  nneertainty  of  obtaining  aotnal  enjoyniait»  acr 
upon  the  defeasibility  or  indefessibillty  of  the  right  of  possession;  Isr 
many  estates  are  vested  without  possession  whioh  are  defeasible. 

EBXA.TB  13  Vested  if  thebb  u  PBEaairr  Eight  to  Futube  Possbbsioh, 
though  that  right  may  be  defeated  by  some  future  event,  oontingent  or 
certain. 

Ukpossessed  Bbtatb  18  Vbbtbd,  if  It  18  CEBTAiir  TO  Take  Effect  ia 
possession,  by  oontinaing  longer  than  the  precedent  estate.  Any  addi- 
tional contingency  destroys  its  vested  character. 

Assumpsit  by  plaintiff,  as  executor  of  Peter  Browne,  against 
Charles  Lukens,  to  recover  the  purchase  price  of  certain  real 
estate.  The  defense  was  an  alleged  defect  in  the  title,  the 
nature  of  which  appears  in  the  ^llabus  and  in  the  opinion. 

Campbell^  for  the  plaintiffs  in  error. 

Harding  J  for  the  defendant  in  error. 

By  Court,  Lowbib,  J.  The  plaintiflh'  right  of  action  de- 
pends upon  the  will  of  John  0.  Browne.  He  devised  all  his 
real  estate  to  his  wife  during  her  life  or  widowhood,  and  **  when- 
ever her  death  or  marriage  should  take  phuse,"  it  was  to  be 
equally  divided  among  his  children  ''  which  may  be  then  alive, 
or  who  may  have  left  Intimate  heirs."  Two  of  the  children 
died  intestate  and  without  issue,  and  then  the  widow  sold  her 
interest  to  the  only  remaining  son,  Peter,  who  afterwards  died 
leaving  issue,  his  mother  being  then  still  alive.  If  Peter  thus 
acquired  a  full  titie,  then  the  plaintiffs  claiming  under  him  have 
a  good  one;  and  it  appears  that  there  is  no  one  to  dispute  it 
except  the  children  of  Peter.  The  defendant,  having  made  a 
contract  of  purchase  from  the  plaintiffs,  refused  to  perform  it, 
fearing  that  a  claim  by  Peter's  children  would  be  available. 

Analyze  the  claim  in  question,  and  what  have  we?  A  devise 
lo  the  teatator'fl  children,  that  is,  his  heirs,  and  impliedly  to 


814  Mandsbson  u  Luxens.  (Teiiik 

• 

fheir  hein,  after  the  death  of  his  indow;  in  other  words,  m 
devise  of  a  life  estate,  with  remainder  to  his  heirs  at  law,  whidi 
is  necessarily  a  Tested  ranainder,  or  rather  a  reversion.  And 
Peter,  having  become  the  heir  of  the  two  who  died,  takes  the 
whole. 

It  is  signed  that  the  remainder  is  contingent  nntil  the  death 
of  the  widow.  Suppose  it  so,  if  yon  can.  Then  the  estate, 
until  then  vested  under  the  will,  would  vest  in  the  children 
themselves  as  an  inheritance,  and  thus  they  would  have  both  the 
vested  and  contingent  estates,  that  is,  the  whole  estate,  and 
both  would  descend  in  the  same  way  to  fbeir  heirs,  which  is  an 
absolute  estate. 

But  lest  this  may  be  doubted  as  a  rather  summaiy  solution  ol 
the  case,  we  shall  treat  it  more  in  detail  and  under  the  guidanoa 
of  other  principles. 

Ve  can  not  treat  the  expression  ''legitimate  heirs ''as  mean- 
ing **  issue  "  in  the  technical  sense;  for  we  are  sure  that  the  tes- 
tator had  no  thought  of  creating  an  estate  tail.  Nor  can  we 
substitute  the  word  *'  children"  in  the  English  sense,  which  ii 
never  equivalent  to  "  heirs,''  if  by  so  doing  we  should  give  to 
the  first  takers  only  a  life  estate,  with  an  executory  devise  to 
their  unborn  children;  for  nothing  was  farther  from  the  inten- 
tion of  the  testator  than  such  an  artificial  devise  as  this.  Be- 
sides, the  rule  that  no  limitation  will  be  deemed  an  executoiy 
devise  if  it  can  be  treated  as  a  remainder  is  too  peremptory  and 
too  valuable  to  allow  this.  We  can  not  allow  the  word  "  when- 
ever," referring  to  the  time  when  the  property  is  to  be  divided, 
to  make  the  devise  to  children  contingent;  for  that  word,  or  its 
synonyms,  almost  always  appears  where  a  vested  remainder  is 
created:  Kerlin's  Lessee  v.  BuU,  1  Dall.  175;  Jhime  v.  Stewart, 6 
Watts,  485.  Moreover,  the  rule  that  an  eetato  will  not  be  eon- 
fitrued  as  contingent  if  it  is  at  all  practicable  to  construe  it  as 
vested  is  quito  as  valuable  and  infiexible  as  the  one  just  cited. 

The  question  of  vested  or  contingent  is  not  to  be  tested  by 
the  certainty  or  uncertainly  of  obtaining  the  actual  enjoy- 
ment; for  that  would  make  the  character  of  the  estate  depend, 
not  upon  the  terms  of  its  creation,  but  on  the  form  of  the  result 
Neither  does  it  depend  upon  the  def easibilily  or  indefeasibility 
of  the  right  of  possession;  for  many  estates  are  vested  without 
possession  as  well  as  with,  which  are  yet  defeasible.  If  there  is 
a  present  right  to  a  future  possession,  though  that  rjght  may  be 
defeated  by  some  future  event,  contingent  or  certain,  there  is 
nevertheless  a  vested  estate.   An  unpossessed  estate  is  vested,  if 


1854.]  MAin>EBSON  V.  LUKENSi  815 

It  IB  oertain  to  take  effect  in  possession,  by  enduring  longer  than 
the  pieoedent  estate.  Any  additional  contingenqr  destroys  its 
▼ested  character;  bat  in  this  case  there  is  no  other. 

The  title  having  become  Tested  immediately  on  the  death  of  the 
testator,  we  can  not  construe  the  words  '*  who  should  have  left 
legitimate  heirs ''  so  as  to  diyest  it;  for  the  rule  that,  in  doubtful 
cases,  requires  an  estate  to  be  oonstmed,  if  possible,  as  absolute 
rather  than  defeasible  is  quite  as  important  as  any  that  we  have 
cited.  Besides  this,  it  is  plain  that  the  very  object  of  the  clause 
was  to  prerent  the  estate  of  the  deyisees  from  being  defeated 
by  thdr  death  during  the  precedent  estate. 

What,  then,  becomes  of  the  shares  of  the  two  who  died  first  t 
The  clause  intending  to  provide  for  this  is  absurd  in  its  literal 
sense,  because  it  gives  the  land  to  them  even  though  they  shotdd 
be  dead.  The  testator  did  not  mean  this,  but  something  that  it 
reasonable;  it  is  manifest  that  he  was  thinking  that  some  of  his 
children  might  die  before  his  wife,  and  that  if  they  should  have 
children,  these  children  ought  not  to  be  excluded  by  the  will, 
and  he  unnecessarily  inserts  a  clause  expressive  of  this  thought 
When  the  two  children  died  without  issue  their  brother  Peter 
inherited  their  shares,  and  thus,  with  the  devise  to  himself,  he 
became  entitled  to  the  whole  in  fee  simple. 

Judgment  reversed,  and  judgment  for  the  plaintiffs;  sum  due 
to  be  liquidated  under  the  direction  of  the  district  court. 


EflTATX  18  Absoluti,  whbk:  8m  Bvbqf  ▼.Bomctt,  40  Am.  Deo.  112,  sad  ex* 
tended  note  to  aaine  116;  TrumbeU  v.  Cfibbcm,  51  Id.  258;  Maeeh  ▼.  NoBtm^ 
52  Id.  41;  MaMJmg  y.  Seeti,  SA  Id.  29S. 

BsTAn  AfisoLnn,  but  DsrxAsniJi  oh  GoHTuroBxror:  Sea  Lowrp  t. 
0*Bfyan^  57  Am.  Dec.  727. 

Ldotatioii  Ovxb,  whxk  Goon  ab  Eutuvromr  Dsvni:  8m  Jaek$on  ▼.  Bku^ 
•Aan,  3  Am.  Deo.  485;  Cudwcrih  t.  Thomptaih  4  Id.  617;  Jaekstm  t.  StaaU,  6 
Id.  376;  Andenon  t.  Jaekmm,  8  Id.  330;  DtUd  v.  King,  0  Id.  407;  Itoach  v. 
MartmU  Le$9ee,  27  Id.  763,  and  note;  Burbank  v.  WkUne^,  35  Id.  312;  BeU 
▼.  Seamnum,  41  Id.  706;  De  Baq§  v.  Btmn,  44  Id.  201. 

Ldoxation  Ovxb,  whxh  Void  as  Bxbouiort  Dbviss:  Sea  Bmrba/iUt  ▼.  WkU' 
n^,  35  Am.  Dao.  312;  B^  v.  Scammtm,  41  Id.  706;  Shepherd  ▼.  Shtpherdy  40 
Id.  41;  Duwwbng  ▼.  IFAmia,  49  Id.  139. 

If  Dbvisb  can  Takb  Bmnr  as  Remaindbb,  it  ahall  naver  ba  oonatnied 
an  executory  daviae:  Booieh  t.  MairM9  Lesaee,  27  Am.  Dao.  746. 

VBBnD  EszATB  IK  BBiiADn>BR  18  Gbxatid,  whbh:  See  Doe  t.  Pranod,  4 
Am.  Dec  249;  Oudmorthr.  Thampmm,  Id.  617;  Jaciaon  r,  MerriU, 6  Id.  2lZi 
DMlr.  King,  9  Id.  407;  JM7  v.  BtiU,  20  Id.  86;  LewU  r.  OUribame,  26  Id. 
S70;  Heetrd  v.  HcfUm,  43  Id.  650;  FMeg  v.  (TOmcr,  46  Id.  249;  BeniOeg  v. 
Img^  47  Id.  523;  Dwmbig  v.  Wherrin,4A Id.  139;  Spnm  ▼.  Moon,  Id.428| 
Otsieg  V.  (kake^.  Id.  714;  Bv^wrd  v.  iToSiMam  00  Id.  223. 


316  Ldtgoln  v.  Wright.  [Penzt 

Co:mKOKRT  RmiiHBiBS:  See  Rkhofdrnm  r.  NoffeM,  8  Am.  Deai  24;  Simip 
w^Findlay,  19 Id. 632; Sajfward  v. Sai^wardy^lL  191, and nlmBoat m note 
to  Buffard  v.  HoOimtm,  60  Id.  234. 

Thb  fbincxpal  oasi  was  oitkd  in  PoMa'  iljveai.  SO  Fk  8k  172»  to  the 
point  that  the  deviae  there  in  queetion  paoed  a  fee  teil  in  the  real  eetnte,  end 
■n  absolute  interest  in  the  personal  property;  in  Womraih  ▼.  McCornUekf  51 
Id.  607,  a  oaae  ahnost  indistingaishaUe  from  tJio  main  one,  and  in  MeOiiP§Ap' 
peal,  61  Id.  £0,  to  therole  that  thewonhi  '*or  their  heura"  import  a  limitation 
to  whoever  might  legally  repraaent  a  decaaaed  legatee^  and  if  nndispoaed  of  in 
any  way  by  him,  the  bequest  would  paaa  in  administration  as  his  property  at 
the  time  at  which  it  would  have  passed  into  his  actual  possession  haid  he  lived, 
and  that  it  was  vested  so  as  to  enable  the  remaindermen  to  assign  it,  whioh 
In  this  case  both  did  before  the  deoeaseof  the  first  taker;  and  in  jMaaMan'a 
MiUUe,  4  Pliiin.  244,  to  the  point  as  to  what  will  make  nlagaoyor  a  devise  eon- 
^ngAttt^  qnoting  tlie  observations  of  the  main 


LiNOOLN  V.  WbIOHI. 

[38  Vemmbtlwamul  SsAza,  T6.1 

Wmnm  u  vo*  DiSQUALinnD  bt  Intebist  in  Qunmnr  at  lann;  bat 

only  by  an  interest  in  the  action. 
PnoMisn  BT  Okx  not  Liablb  does  not  add  to  his  liability;  bat  a  promise 

made  may  be  competent  evidence  from  wliich  to  infer  a  liability  on  the 

part  of  the  promisor. 
PuBuoATioN  nr  Nbwbpapbb  18  voT  OoMFRBBrr  Evidxnob  chat  Pabst  bad 

NonoB  of  the  facts  stated  in  suoh  puUioation.  tliongh  he  la  shown  to 

have  been  a  subscriber,  and  in  the  liabit  of  reading  the  paper. 
Pbbson  mat  bb  Legal  and  Rboistxbbd  Ownbb  ov  Vxssbl  without  bkoto 

Liablb  for  supplies  ordered  by  her  master. 
Pbbson  is  Rbsponsiblb  fob  Sufpubs  Fubhihhbd  Vbsbbl  nr  Hb  has  Pos> 

BBSSiON  and  control,  with  the  right  to  direct  her  destination  and  receive 

her  earnings,  whether  he  has  the  legal  title  or  not 

JUDOB    NBBD   NOT  InSTBUCT  JoBT  ON  HlSTQBT  OB    ObTBOT  OV  LaW.      It  Is 

sufficient  that  he  statea  tlie  law  itself. 
Cbbtivigatb  ov  Rboistbt  ov  Ybssbl  is  bot  OoMraiBBT  BvnHDroB  to  prove 
or  disprove  its  ownership  by  any  partionlar  person;  but  the  oath  of  a  party 
made  to  procure  such  registry  is  evidence  against  him  of  thefaets  therelB 
stated. 


Assumpsit  by  Caldwell  &  Co.  and  Wright  &  Co.,  against 
coin  &  Beynolds,  to  recover  for  goods  famished  for  the  use  of 
the  steamship  Constitution.  The  defendants  and  Captain  Loper 
buik  and  owned  the  yessel  in  1850.  In  June  of  that  year  th^ 
agreed  to  sell  her  to  Howard  &  Co.,  or  to  Captain  Bissell,  for 
seyentj-five  thousand  dollars,  and  executed  a  bill  of  sale,  which 
ihey,  however,  retained  as  security  for  the  purchase  monej. 
Bissell  soon  afterwards  took  command  of  the  vessel,  directed 
repairs  and  alterations,  selected  officers,  and  shipped  a  crew. 


1854.]  LiKOOLN  V.  Wbioht.  817 

By  the  third  of  July  aerenty  thousand  dollan  of  the  pmehaM 
money  had  been  paid.  The  goods  saed  for  were  ordered  bj 
Captain  Bissell  on  June  25th  and  27th»  and  were  charged 
to  steamship  Constitution  and  owners.  On  Jane  11  th  Cap- 
tain Loper  had  made  oath  at  the  cnstom-honse  that  he  and  lin- 
cohi  &  Beynolds  were  owners,  and  the  tooooI  was  registered 
accordingly.  On  July  3d  Beynolds  made  oath  that  he  and 
Lincoln  were  the  owners,  and  procureda  registEy  in  their  names. 
Later,  on  the  same  day,  Bissell  made  oath  that  Howard  &  Co. 
were  the  owners,  and  the  registiy  was  changed  to  their  names. 
The  other  facts,  together  with  the  various  olqections  taken,  and 
rulings  made  upon  the  admission  of  eTideaoe,  appear  from  the 
opinion.  The  credits  were  found  for  the  plaintifls.  Tiincoln 
A  Beynolds  prosecuted  writs  of  error. 

Wain,  for  the  plaintifTs  in  error. 

Ouyler,  for  the  defendants  in  error. 

By  Court,  Black,  C.  J.  These  suits  were  brought  for  sup- 
plies to  the  steamship  Constitution.  The  tosboI  was  built,  and 
for  a  time  owned,  by  the  defendants.  The  defense  is,  that  they 
were  not  owners  at  the  time  the  supplies  were  furnished.  There 
was  some  eyidence  of  a  sale  previously.  But  on  the  contrary,  it 
was  proved  that  Mr.  Beynolds,  one  of  the  defendants,  after- 
wards made  oath  that  he  and  Mr.  Lincoln,  the  other  defendant, 
were  still  her  true  and  sole  owners,  and  on  that  oath  had  her 
registered  in  their  names.  Later  still  he  swore,  in  a  proceeding 
against  the  purchaser,  that  he  and  Lincoln  were  liable  for  the 
debts  of  the  ship.  On  this  and  other  evidence  the  juxy  found 
for  the  plaintiff  in  both  cases.  It  is  vexy  jpossible  that  if  evexy 
point  on  which  the  ruling  of  the  court  below  is  complained  of 
had  been  decided  in  favor  of  the  plaintiffs  in  error,  the  verdict 
would  have  been  the  sakne.  Nevertheless,  we  must  reverse  this 
judgment,  if  there  be  error  in  the  record;  for  the  defendants  are 
entitled,  of  common  right,  to  a  fair  trial,  on  legal  evidence,  and 
vrith  correct  instructions.  We4diaU  therefore  consider  the  errors 
assigned. 

Several  persons  who  had  claims  against  the  vessel  were  per- 
mitted to  testify  that  they  called  on  the  defendants  after  the  ves- 
sel went  to  sea,  and  were  told  that  their  bills  would  be  paid,  etc. 
This  was  right.  The  witnesses,  having  no  interest  in  the  record, 
though  they  had  in  the  question,  were  competent.  On  the 
effect  of  the  evidence  itself,  the  judge  made  the  proper  comment 
when  he  said  that  the  defendants'  declaration  was  not 


818  LiKOOLN  V.  Wright.  [Pqdii. 

as  a  promise  if  thoj  were  not  oiiginall j  liable,  bat  that  it  was 
some  eTidence  of  their  origimil  liability.  When  a  man  Bays,  *'  I 
pay  those  bills/'  meaning  a  particular  class  of  debts,  a  creditor 
who  brings  suit  on  one  of  them  has  a  dear  right  to  prove  that 
such  words  were  spoken,  for  it  is  an  admission  by  the  party  that 
he  owes  the  debts.  It  is  true  that  snch  acknowledgments  are 
sometimes  made  by  mistake,  or  in  ignorance,  and  when  that  ia 
shown  th^  amount  to  nothing.  But  there  was  other  eyidenos 
here  which  tended  strongly  to  show  that  there  was  no  mistako 
about  ii 

After  the  date  of  the  alleged  sale  to  Oaptain  Bissell,  and  before 
the  plaintiflfs  sold  the  goods,  the  vessel  went  down  the  Delaware 
on  a  trial  trip.  The  local  reporter  of  the  Public  Ledger  was  on 
board,  and  was  told  by  the  captain  that  he  owned  the  vessel. 
That  fact,  together  with  a  full  account  of  the  trip,  was  pub- 
lished in  the  paper.  But  when  the  paper  was  ofGered  in  evl* 
dence,  as  showing  notice  to  the  plaintiffis  of  the  sale,  it  was 
rejected.  Generally,  a  man  can  only  be  said  to  have  notice  ol 
a  fact  when  it  is  actually  communicated  to  him  in  such  a  way 
that  his  mind  could  and  did  take  cognizance  of  it.  There  are, 
however,  some  things  which  the  law  presumes  to  be  known  to 
all  persons  interested,  however  ignorant  they  may  be  in  realitf . 
For  instance,  no  man  can  deny  that  he  knows  of  a  deed  which 
has  been  duly  recorded.  But  the  statement  of  a  fact  in  a  pub- 
lic paper  is  either  actual  notice  or  else  no  notice  at  all.  There 
is  no  rule  of  law  which  gives  it  the  e£Eect  of  constructive  notice. 
It  must  therefore  be  proved  that  he  read  it.  Otherwise,  it  is  no 
stronger  than  proof  that  the  fact  was  orally  and  publicly  uttered 
at  a  place  where  he  was  not  present.  To  show  that  he  was  in 
the  habit  of  reading  the  paper  which  contained  it  does  not  help 
the  matter.  If  he  must  be  presumed  to  know  every  fact  which 
happens  to  be  published  in  a  daily  paper  merely  because  he  is 
a  subscriber,  or  an  habitual  purchaser  of  it,  he  can  make  him- 
self safe  only  by  ceasing  to  take  it,  or  else  by  reading  every  word 
in  it.  To  do  one  would  be  a  heavy  burden  upon  a  man  of  busi- 
ness, and  the  other  wotdd  be  a  serious  privation.  The  law  puts 
no  citizen  to  a  choice  of  such  evils.  By  these  remarks  we  are 
not  to  be  understood  as  deciding  that  if  the  plaintiffs  had  read 
the  article  the  defendants  would  thereby  have  been  relieved 
from  their  liability.  If  they  were  the  real  owners  of  the  ship, 
or  retained  a  substantial  interest  in  and  control  over  her,  order- 
ing the  supplies,  and  directing  the  work  upon  her  down  to  the 
moment  of  her  departure  from  the  port,  the  loose  assertion  of 


1864]  LiNCX>LN  V.  Wbight.  819 

* 

a  anxd  pezBon  that  she  had  been  sold,  wheUwr  made  aaJij  oi 
in  print,  would  not  affeet  the  Bghte  eren  of  peiwms  to  whom  it 
was  commnnicated. 

A  person  may  be  the  l^gal  owner  of  a  Tease!,  and  lunra  her 
registered  in  his  name,  without  being  liable  for  sopplies  on  the 
order  of  the  master.  But  the  possession,  control,  and  manage* 
ment  of  her,  the  right  to  direct  her  destination  and  receiTe  her 
earnings,  will  fix  his  responsibiliiy,  whether  he  has  the  l^gal 
title  or  not.  This  was  subetantiall j  what  the  court  below  said, 
in  language  perfectly  free  from  yagueness  or  ambigniigr.  The 
exception  to  that  part  of  the  charge  is  wholly  unsusiained. 

The  judge  was  requested,  and  refused,  to  charge  that  the  only 
object  of  the  register  is  to  entitle  the  yessel  to  the  benefits  of  an 
American  bottom.  This  refusal  was  right,  because,  in  the  first 
place,  the  proposition  is  not  strictly  true.  Though  it  be  the 
ultimate  and  main  object  of  the  register  to  fix  the  national  char- 
acter of  the  yessel,  and  though  she  loses  nothing  else  by  being 
transferred  to  a  foreigner,  there  are  other  incidental  but  useful 
purposes  accomplished  by  it.  For  instance,  it  furnishes  a  record 
of  her  dimensions  and  age;  and  in  the  case  of  a  steamer,  it  pre- 
Tents  her  from  going  to  sea  under  the  protection  of  the  goyem* 
ment  without  haTing  first  complied  with  the  act  of  congress  for 
the  better  security  of  the  Utcs  of  passengers.  But  supposing 
the  proposition  to  be  true,  it  had  nothing  to  do  with  the  cause. 
A  judge  is  bound  to  instruct  the  jury  on  the  law  itself,  and  not 
on  its  history,  object,  or  purpose.  He  does  his  duty  by  saying 
what  the  law  is,  without  an  exposition  of  its  reasons.  Budi  an 
exposition  would  have  been  especially  unnecessary  in  this  case. 
One  of  the  defendants  swore  that  he  and  the  other  defendant, 
his  partner,  were  the  owners;  and  we  will  not  beUcTe  that  the 
Terity  of  that  oath  was  in  any  manner  dependent  on  the  object 
of  the  law  which  required  him  to  make  it,  or  upon  anything  else 
beside  the  real  facts  of  the  case. 

A  Tessel  may  be  sold,  and  because  the  Tcndor  retains  the  legal 
title  as  security  for  the  purchase  money,  he  has  her  registered  in 
his  own  name;  a  mortgagee  may  do  the  same  thing  while  the 
mortgagor  keeps  the  possession;  or  an  unconditional  sale  may 
be  made  and  the  register  be  left  unchanged.  For  these  reasons 
a  certificate  of  the  register  is  no  CTidence  in  fsTor  of  the  person 
therein  named  as  owner,  nor  in  actions  between  other  parties.  It 
will  not  establish  an  insurable  interest  in  the  registered  owner  as 
against  an  underwriter,  nor  will  it  dispzoTe  such  interest  in  the 
assured,  where  the  poUcy  has  been  taken  for  the  benefit  of  other 


rso  Lincoln  v.  Wright.  [Bena 

penons.  Neither  would  it  be  any  defense  whateim,  ia  an  action 
for  supplies,  against  one  for  whose  profit  the  ship  was  naTigated, 
to  show  that  she  is  registered  in  another  name.  But  all  this  does 
not  preyent  us  from  saying  that  a  man's  declaration  on  oath  is 
some  oTidence  against  him  of  the  fact  therein  asserted;  it  is  not 
conclusive,  certainly.  The  defendants  were  permitted  to  show,  if 
they  could,  that  they  had  no  actual  interest  in  the  ship;  but  the 
juiy  did  not  think  they  succeeded,  and  if  they  were  wronged  in 
this,  we  can  not  help  it. 

The  only  remaining  error  not  already  notioed,  either  directly 
or  indirectly,  is  assigned  to  that  part  of  the  charge  in  which  the 
judge  said  that  a  deliyeiy  of  the  goods  on  board  the  vessel  by 
the  orders  of  the  defendants  would  be  such  a  delivery  as  would 
make  them  liable.  This  is  so  palpably  and  self-evidently  right 
that  we  find  it  quite  as  impossible  to  say  anything  in  favor  of  it 
as  to  make  an  argument  against  it.  It  must  pass,  therefore, 
without  any  comment. 

We  indorse  it  in  blank. 

Judgment  affirmed. 

Thkbb  must  bb  Lboal  Intbbbst  vx  Evxnt  or  Snir  to  DnQVAUFT  Wh^ 
VBSS:  See  note  to  Riddle  ▼.  Dixon^  44  Am.  Deo.  210,  contftimng  collected 
CMe«;  Brown  t.  O'Brien^  Id.  254;  Matten  y.  Varner^a  JElc'rs,  50  Id.  114; 
Coduran  v.  JWO,  Id.  186;  BaOey  y.  Shaw,  55  Id.  241;  Poe  y.  Darrak,  56  Id. 
196;  Slaughter  v.  Cunninghamf  60  Id.  463.  Witneai  haying  duuged  himself 
M  interested,  on  his  votr  dire,  may  in  the  same  way  disohaige  or  balance  his 
interest,  and  restore  his  competency:  Tarleton  y.  Johnson,  Id.  515.  Parties 
to  actions  may  now  testify  in  civil  salts  like  other  witnesses:  OowUi  y.  Bacom, 
56  Id.  371. 

Ownbr's  Liabiutt  vob  SupFLiBa  Okdbbbd  bt  Mastbb:  See  BeifnoUU  v. 
Toppan,  8  Am.  Bee.  110;  Ward  v.  Oreen,  16  Id.  437;  Ihifr,  Boffard,  39  Id. 
73,  and  note  76;  McLeUan  v.  Cox,  58  Id.  736. 

Enrollmbnt  or  Rbgistrt  of  Vessel  does  not  make  owner  liable  for  sea- 
man's wages  when  the  vessel  is  let  on  shares:  OUe»  y.  VigormuB,  68  Am.  Dec. 
704;  the  object  of  the  registry  act  is  to  regulate  and  establish  the  natioiial 
character  of  the  vessel:  Begley  v.  Morgan^  35  Id.  188. 

The  prinoipal  oabb  is  cited,  with  others,  in  CHading  y.  Oeorge,  3  Grant 
Gas.  292,  to  the  point  that  the  owner  of  a  vessel  is  liable  for  supplies  ordered  by 
the  master  in  a  home  port,  unless  it  be  shown  that  the  master  had  no  author 
ity  to  order  them,  and  that  the  parties  furnishing  them  had  knowledge  of  his 
want  of  authority. 

Infebbkob  or  NoncB  Arisibo  from  Newbtaper  Artioleb  or  Pubugatiob 
vox  Required  or  Authorized  bt  Law. — 1.  D^nitione  qf  Notice, — Notice,  in 
legal  proceedings,  embraces  a  knowledge  of  circumstances  that  ought  to  induce 
suspicion  of  belief  as  well  as  direct  information  of  the  fact:  Pringle  v.  PhU- 
lips,  5  Sandf.  165;  and  means  a  written  notice:  but  see  Lee  y.  Browning,  56 
Mo.  403;  Gilbert  v.  Columbia  Turnpike  Co,,  3  Johns.  Gas.  108;  Pearson  ▼. 
Lov^of/,  53  Barb.  407.  When  a  statute  requires  service  of  a  notice  upon  an 
individual,  it  means  personal  service,  unless  some  other  service  is  specified  ot 


1854.]  LiNGOLN  v.  Wbio&t.  821 

liidieAftea:  ftaOftun  T.  ^cfer,  18  Id.  383.  Good  nolioe  to  ft  porchtM  b  tfaal 
which  is  sufficient  to  pat  him  upon  inqidry;  that  is,  whore  a  man  has  suffi- 
cient infonnation  to  lead  him  to  a  fact,  he  shall  he  deemed  ooKninat  of  its 
Parber  t.  ^one,  4  Wis.  16.  Whaterer  is  sufficient  to  make  it  }iU  daty  to 
tnqaire  as  to  tlie  rights  of  others  is  eonsidered  legsl  notioe  to  him  of  tliose 
rights:  TutOt  ▼.  Jaekmm^  21  Am.  Deo.  306;  Lamoid  ▼.  StkmuM^  6  Wis.  447. 
Notioe  means  knowledge:  Fern  Meirt  t.  MUckdl^  2  WalL  Jon.  817;  and 
"  notioe  and  knowledge"  mean  not  merely  ezptess  notice,  hot  knowledge,  or 
the  means  of  knowledge,  to  which  the  party  wiUfnUy  slrats  hiM  eyes:  Maf  t. 
Chapman,  16  Mee.  k  W.  361.  But  it  has  heen  ssid  that  the  term  '^nottfied," 
as  generally  need  in  legal  proceedings,  imports  a  formal  notioe  given  hy  order 
of  the  oonrt  or  according  to  law,  and  not  mere  knowledge  on  the  part  of  the 
person  notified:  Poiwim^B  Appeal,  31  Conn.  384.  The  term  "dae  notice **  Is 
not  snsoeptihle  of  a  fixed  definition,  and  mast  he  constmed  in  eadi  case  by 
its  cireamstanoes:  Zrotorence  ▼.  Bcmman,  1  MoAlL,  419.  WhatcTcr  is  saffi- 
cient  to  pat  a  party  on  inqoiry,  that  is,  whaterer  has  reasonable  certainty  as 
to  time,  place,  ciroomstances,  and  persons,  is,  in  equity,  held  to  be  good 
notioe  to  bind  liim:  Bo9voeU  t.  Cfoodwk^,  31  Conn.  84.  And  In  law  it  Is  said 
that  direct  and  positive  knowledge,  and  that  knowledge  inferred  from  fscts 
which  shonld  induce  inquiry,  differ  not  in  kind,  hut  only  in  the  character  of 
proof;  both  are  actual  notioe,  and  actual  notice  is  a  question  for  the  jury: 
Mcuitenon  ▼•  WettL  End  R.  R.  Co.,  5  Mo.  App.  64. 

2.  Sufideneif^  eU,,  qf  Ntwtpaper  Notices  is  a  question  which  very  often 
arises  in  cases  of  dissolution  of  partnership.  Kotioe  of  the  dissdlntlon  of  a 
partnership  given  in  a  newspaper  printed  in  the  city  or  county  where  the 
partnership  business  is  carried  on  is  of  itself  notioe  to  all  persons  who  hate 
bad  no  previous  dealing  with  the  partnership.  But  as  to  persons  who  hare 
had  such  previous  dealing,  it  ie  not  sufficient.  It  must  be  shown  that  actual 
notioe  of  the  dissolution  was  communicated  to  the  party  in  some  way  or 
other:  WaUdneon  v.  Bank  qf  Pewneylvania,  34  Am.  Dec.  521;  MowaU  r.  HoW' 
Ittnd,  3  Day,  353;  Laneing  v.  Oaine,  3  Am.  Dec  422;  Keicham  v.  Clark,  6  Id. 
107;  Shaffer  y.  Snyder,  7  i^rg.  k  R.  503;  Oraves  v.  Merry,  16  Am.  Dec. 
471;  Femoa  y.  Manhattan  Co,,  17  Wend.  528;  8.  C,  22  Id.  183;  Shurldi  v. 
TUeon,  2  McLean,  458;  Simonde  v.  Strtmg,  24  Vt.  642;  Hutehins  ▼.  Bank  of 
Tennaeee,  27  Tenn.  419.  With  respect  to  persons  who  have  had  previous 
dealings  with  the  partnership,  it  has  been  held  that  notioe  of  the  dissolutioB 
published  in  a  gasette  taken  by  such  persons  is  sufficient.  It  being  tanta* 
mount  to  express  or  actual  notice:  Bank  qfSomth  CaroUna  y.  Humphreya,  1 
MoCord,  389.  It  seems,  however,  that  one  of  the  clerks  of  the  bank  bad 
actually  read  the  notioe  of  dissolution  which  the  paper  contained.  But  the 
preponderance  of  authorities  is  the  other  way,  and  proof  that  such  persons 
simply  take  a  newspaper  in  which  notioe  of  the  dissolution  is  published  is 
held  not  to  amount  to  actual  notice:  Femon  v.  Manhattan  Co.,  22  Wend. 
183;  S.  C,  17  Id.  528;  Little  y.  Clarke,  36  Pa.  St.  114;  ffutehme  v.  Bank  q/ 
Teimee&ee,  27  Tenn.  419;  Beilly  v.  Smith,  16  L*.  Ann.  31;  Bank  qf  the  Com- 
monwealth T.  Mudgett,  44  K.  Y.  519;  S.  C,  45  Barb.  664.  So  a  common 
csrrier,  who  has  limited  his  responsibility,  and  published  notice  thereof,  can 
not  fix  notioe  of  the  same  on  a  plaintiff  by  simply  proving  that  complainant 
baa  taken  a  newspaper  for  three  years,  in  which  the  notioe  had  been  ad« 
yerUsed  once  a  week:  Rowley  y.  Home,  3  ffing.  2.  In  King  v.  Patereon  S 
Hudeon  Riiver  R.  R,  Co,,  it  Is  said  that  an  advertisement  m  a  gasette  droulat* 
Bg  daily  In  the  vicinity  of  men  of  Iswiness  ia  presumptive  evidence  of  notice, 
to  ba  o>veioome,  nevertheless,  by  poaithre  proof  to  the  coptngy ;  and  In  Femoii 
Am.  Die  ▼ob.LZn— U 


822  liiNOOLN  V.  Wright.  [Penn, 

T.  Mamhattan  Co,,  22  Wend.  183,  that  if  there  are  no  circamstanoet  from  which 
a  diffnreat  oonoliuion  may  he  drawn,  the  jury  may  he  anthoriaed  to  presume 
that  the  party  by  whom  the  paper  was  ta^en  had  read  its  oontenta  and  had 
aetnal  notice  thereof.  But  it  can  not  he  intended  that  a  party  reads  all  the 
contents  of  any  newspaper  he  may  chance  to  take:  Rowley  v.  Home^  3  Bing.  2^ 
He  is  not  to  he  charged  with  notice  of  an  adTertasement  in  a  newspaper 
merely  beoanse  he  is  a  sahscriher  to  the  paper:  Watkhu  t.  Peck,  40  Am.  Dec 
166;  RHUy  t.  Smith,  16  La.  Ann.  81.  It  woold  he  preposterous  to  charge  a 
party  with  notice  of  everything  which  is  inserted  in  a  newspaper  taken  by 
himself:  Clark  v.  Bieier,  14  Id.  48;  Vernon  v.  ManhaUan  Co.,  22  Wend.  183. 
ii  notice  of  the  dissolution  of  a  partnership  published  in  a  newspaper,  though 
not  per  ee  sufficient  to  show  either  that  the  dissolution  took  place  on  a  cer- 
tain  day  prior  to  the  publication,  or  that  parties  dealing  wiUi  the  firm  and 
others  had  notice  of  the  dissolution  on  that  day,  is,  however,  admissible  in 
evidence  as  a  circumstance  tending  to  show  those  facts,  and  if  followed  up 
with  other  evidence,  may  sufficiently  charge  the  parties  with  notice:  Bojfd  v. 
McCcmn,  10  Md.  122;  Femon  t.  ManhaUan  Co,,  22  Wend.  183.  The  £aet  ai, 
that  as  to  those  who  have  had  dealings  with  the  firm  the  publication  of  a 
notice  of  dissolution  will  be  received  in  evidence  and  left  to  the  jury,  who 
must  determine  from  all  the  circumstances  of  the  case  whether  the  parties  had 
notice:  Shurlds  v.  TiUon,  2  McLean,  458,  reviewing  several  cases;  Vermm  v. 
ManhaUan  Co,,  22  Wend.  183;  Clark  v.  Bicker,  14  La.  Ann. 48;  Chraoa  v.  Merry, 
6  Cow.  705,  reviewing  a  number  of  cases;  Butehku  v.  Bank  of  Tennessee,  27 
Tenn.  420;  Lyon  v.  Johneon,  28  Conn.  5.  An  advertisement  in  a  oommon 
newspaper  is  not  even  admissible  in  evidence  without  proof  that  the  par^  took 
•the  paper:  Shurlds  v.  TiUon,  2  McLean,  458;  but  if  such  proof  is  given,  and 
coupled  with  further  evidence  that  the  party  has  read  the  advertiBement  or 
notice  in  question,  he  is  charged  with  actual  notice:  Htttekme  v.  Bank  of 
Tennessee,  Lyon  v.  Johnson,  Boyd  v.  McCann,  supra;  Tichbums  v.  IFiilte^ 
1  Stra.  145;  Waikins  v.  Peck,  40  Am.  Dec.  156.  It  is  at  least  sufficient  to  put 
him  upon  inquiry:  Young  v.  Tibbitts,  32  Wis.  83;  Clark  v.  EMoer,  14  La. 
Ann.  48. 

It  is  undoubtedly  true  that  civil  rights  may  sometimes  be  affected  by  in- 
formation derived  from  other  than  official  souroes.  Commonly,  however,  soeh 
results  follow  only  when  the  official  notice  Ib  constructive:  CommonweaUh  v. 
MarUn,  130  Mass.  467.  "A  notice,"  says  Sergeant,  J.,  in  WaOemson  v.  Bamk 
qf  Pennsylvania,  34  Am.  Dea  521, ' '  in  a  newspaper  is,  at  the  best,  but  an  unoer- 
tain  method  of  communicating  the  knowledge  of  a  fact,  since  the  par^  to  be 
affiscted  may  never  see  the  paper,  or  if  he  does,  may  not  read  all  the  adver- 
tisements; but  still  it  Ib  sometimes  the  only  practicable  mode,  and  is,  there- 
fore, either  allowed  by  the  principles  of  the  oommon  law,  or  directed  by  aol 
of  assembly  in  particular  instances.  But  where  a  firm  has  had  previous  deal* 
ings  with  others,  it  can  know  such  persons,  and  may  send  them  spedfio  notioe, 
which  is  the  best  and  most  certain  mode.  This,  I  presume.  Is  the  reason  of 
the  distlnctton.  Ko  particular  mode,  however,  is  prescribed  by  law  for  oom- 
municating  notice,  even  to  persons  having  previous  dealings;  it  is  sufficient  if 
in  any  way  actual  knowledge  is  traced  home  to  the  party.  Merely  taking  a 
newspaper  in  which  such  advertisement  ui  contained  is  not  sufficient.  It  is 
very  possible— perhaps  nothing  is  more  common — for  persons  to  take  news- 
papers without  reading  all  the  advertisements  they  contain,  even  if  the]r 
peruse  their  other  contents.  Our  newspaj^iBrs  are  not  of  any  accredited  char- 
acter, universally  recognized  as  the  anthentio  depository  of  ooenrrencos  la 
tommeroial  or  other  affikir^;  th^  are  a  medlqr  <rf  nawib  politlos,  literataf^ 


1864]      Pknhstlvania  Railboad  Ca  v.  Aspsll.  828 

tnde  nolioea,  and  ▼arioiu  oilier  mutten,  which  wan»  peroM  for  one  poipoM 
and  aooie  for  Another;  and  it  would  bo  going  a  gnat  wmj  to  aay  that  every 
one  who  takes  a  newapaper  should  be  visited  with  a  knowledge  of  the  oon- 
tents  of  all  the  notices  contained  in  it  from  day  to  day.  The  case  of  Venum 
r.  ManhaUan  Cbi,  17  Wend.  524,  was  very  like  the  present.  The  notice 
was  pabliahed  in  two  of  the  newspapen  printed  in  the  city  of  Kew  York,  one 
of  which  was  regularly  delivered  at  the  banking-house  of  the  pIaintl£Es,  yet  It 
was  held  not  to  be  sufficient  evidence  of  the  dissolution  of  the  firm  to  which 
the  defendant  had  belonged,  and  with  which  the  plaintl£b  had  had  previous 
dealing.  The  court  say  that  if  actual  notice  reached  them  in  any  form  it 
would  be  sufficient,  but  the  mere  taking  of  a  newspaper  filled  with  notiosa 
will  not  make  a  ease  for  the  jury." 


PEEnmLYANiA  Railboad  Gompant  v.  Abpell. 

[98  PaHiran.TAaiA  Stavi,  U7.] 

Pniaoirs  to  Whom  Manaosmsnt  of  Railboad  is  Imtbustbd  must  Rxsb- 

oiSB  the  strictest  vigilance. 
Kailboads  asb  Akswerable  fob  Evebt  Ihjubt  caused  by  defects  in  roads* 

can,  or  engines,  or  by  any  negligence,  however  slight,  of  the  company  or 

its  agents. 
CosTBiBUTOBT  Kboliot. — Railroad  company  is  not  liable  to  a  passenger  for 

an  injury  which  he  might  have  avoided  by  ordinary  attention  to  his  own 

safety,  though  the  negligence  of  their  agents  also  contributed  to  the  aed- 

dent. 
Pabsxnoxb  Nbouobhtlt  Cabbixd  bbtohd  hib  Station  may  recover  from 

the  nulruad  company  compensation  for  the  inconvenience,  loss  of  time, 

and  labor  of  traveling  back. 
PAimroBK  Who  Jincn  vbom  RnvinNO  Tbain  to  Avom  Buiro  Cabbibd 

bbtonb  bis  Plaob  of  destinatioo  can  not  recover  for  Injuries  thereby 

suffered. 
AnvouNGBMBNT  OF  Namb  OF  STATION  BEFOBB  Cabs  Stop,  by  the  couduotoT 

of  a  railroad  train,  does  not  indicate  any  negligence  or  want  of  diligence 

on  his  part,  nor  afford  any  justification  for  a  passenger's  jumping  oi! 

while  the  train  is  in  motion. 

AonoH  by  Aspell  ix)  recover  judgment  for  injuries  suffered  by 
alighting  from  cars  while  in  motion.  He  reooyered  judgment. 
The  railroad  company  sued  out  a  writ  of  error.  The  facts  are 
stated  in  the  opinion. 

W.  Darlingion,  for  the  plaintiffs  in  error. 
LewtBg  for  the  defendant  in  error. 

By  Court,  Blaos,  C.  J.  The  plaintiff  below  was  a  passenger 
in  the  defendants'  oars  from  Philadelphia  to  Morgan's  Oomer. 
The  train  should  have  stopped  at  the  latter  place,  but  some  de« 
feet  in  the  bell-rope  prerented  the  conductor  from  Tna-TnTig  the 
proper  signal  to  the  engineer,  who  therefore  went  past,  though 


824  Pemnstlyanu  Bailroab  Oo.  v.  Asfxll.      [Pbdii. 

at  a  speed  somewhat  slackened  on  account  of  the  switehea 
which  wexe  there  to  be  crossed.  The  plaintiff  seeing  himself 
about  to  be  carried  on.  Jumped  from  the  platform  of  the  car 
and  was  seriously  hurt  in  the  foot.  He  brought  this  action, 
and  the  jury,  with  the  approbation  of  the  court,  gaye  him  one 
thousand  five  hundred  dollars  in  damages. 

Persons  to  whom  the  management  of  a  railroad  is  intrusted 
are  bound  to  exercise  the  strictest  yigilance.  They  must  carry 
the  passengers  to  their  respective  places  of  destination  and  set 
them  down  safely,  if  human  care  and  foresight  can  do  it.  They 
are  responsible  for  every  injuiy  caused  by  defects  in  the  road,  the 
cars,  or  the  engines,  or  by  any  species  of  negligence,  however 
slight,  which  they  or  their  agents  may  be  guilty  of.  But  thej 
are  answerable  only  for  the  direct  and  immediate  oonsequencee 
of  errors  committed  by  themselves.  They  are  not  insurers 
against  the  perils  to  which  a  passenger  may  expose  himself  by 
his  own  rashness  or  folly.  One  who  inflicts  a  wound  upon  his 
own  body  must  abide  the  suffering  and  the  loss,  whether  he  does 
it  in  or  out  of  a  i-ailroad  car.  It  has  been  a  rule  of  law  from  time 
immemorial,  and  is  not  likely  to  be  changed  in  all  time  to  come, 
that  there  can  be  no  recovery  for  an  injury  caused  by  the  mutual 
default  of  both  parties.  When  it  can  be  shown  Uiat  it  would 
not  have  happened  except  for  the  culpable  negligence  of  the  party 
injured  concurring  with  that  of  the  other  party,  no  action  can 
be  maintained. 

A  railroad  company  is  not  liable  to  a  passenger  for  an  acei- 
dent  which  the  passenger  might  have  prevented  by  ordinaiy 
attention  to  his  own  safety,  even  though  the  agents  in  chaige 
of  the  train  are  also  remiss  in  their  duty. 

From  these  principles,  it  follows  vexy  clearly  that  if  a  passen* 
ger  is  negligently  carried  beyond  the  station  where  he  intended 
to  stop,  and  where  he  had  a  right  to  be  let  off,  he  can  recover 
compensation  for  the  inconvenience,  the  loss  of  time,  and  the 
labor  of  traveling  back;  because  these  are  the  direct  conse* 
quences  of  the  wrong  done  to  him.  But  if  he  is  foolhardy 
enough  to  jump  off  without  waiting  for  the  train  to  stop,  he 
does  it  at  his  own  risk,  because  this  is  gross  imprudence,  for 
which  he  can  blame  nobody  but  himself.  If  there  be  any  man 
who  does  not  know  that  such  leaps  are  extremely  dangerous, 
especially  when  taken  in  the  dark,  his  friends  should  see  that 
he  does  not  travel  by  railroad. 

It  is  true  that  a  person  is  not  chargeable  with  neglect  of  hia 
own  safety  when  he  exposes  himself  to  one  danger  by  ticying  to 


1854.]         FfeKHSnYANIA  TlAn.HaAD  Ox  U  ASFXLL.  US 

ftToid  ftnoUier.  In  snob  «  case  the  imthor  of  the  origiiud  peril 
is  answerable  for  all  that  follows.  On  this  principle  we  decided 
last  year,  at  Pittsboigh^  that  the  owners  of  a  steamboat,  which 
was  endangered  by  a  pile  of  iron  wrongfully  left  on  the  wharf, 
and  to  get  dear  of  it  was  backed  out  into  the  stream,  where  she 
was  stmck  by  a  coal-boat  and  sunk,  had  a  good  cause  of  action 
against  the  city  corporation,  whose  duty  it  was  to  ha^e  removed 
the  iron:  PUtaimrgh  Ciiy  t.  Cfrier,  23  Pa.  Bt  66.  If,  therefore, 
a  person  should  leap  from  the  car  under  the  influence  of  a  well- 
grounded  fear  that  a  fatal  collision  is  about  to  take  place,  his 
olaim  against  the  company  for  the  injury  he  may  suffer  will  be 
as  good  as  if  the  same  mischief  had  been  done  by  the  appre- 
hended collision  itself.  When  the  n^ligence  of  the  agents 
puts  a  passenger  in  such  a  situation  that  the  danger  of  remaining 
on  the  cars  is  apparently  as  great  as  would  be  encountered  in 
jumping  off,  the  right  to  compensation  is  not  lost  by  doing  the 
latter;  and  this  rule  holds  good  eyen  where  the  eyent  has  shown 
that  he  might  hare  remained  inside  with  more  safety.  Such  was 
the  dedsion  in  8toke8  r.  SaUonstaU,  18  Pet.  181,  so  much  relied  on 
by  the  defendant  in  error.  A  passenger  in  a  stage-coach,  see- 
ing the  driyer  drunk,  the  horses  mismanaged,  and  the  coach 
about  to  upset,  jumped  out,  and  was  thereby  much  hurt.  The 
court  held  the  proprietors  of  the  line  responsible,  because  the 
misconduct  of  their  servant  had  reduced  the  passenger  to  the 
alternative  of  a  dangerous  leap  or  remaining  at  great  peril. 
But  did  the  plaintiff  in  the  present  case  suffer  the  injury  he 
complains  of  by  attempting  to  avoid  another  with  which  he  was 
threatened?  Certainly  not.  He  was  in  no  possible  danger  of 
anything  worse  than  being  carried  on  to  a  place  where  he  did 
not  choose  to  go.  That  might  have  been  inconvenient;  but  to 
save  himself  from  a  mere  inconvenience  by  an  act  which  put  his 
life  in  jeopardy  was  inexcusable  rashness. 

Thus  far  I  have  considered  the  case  without  reference  to  cer- 
tain facts  disclosed  in  the  evidence,  which  tend  to  diminish  the 
culpability  of  the  defendants'  agents,  while  they  aggravate  (if 
anything  can  aggravate)  the  folly  of  the  plaintiff.  When  he  was 
about  to  jump,  the  conductor  and  the  brakeman  entreated  him 
not  to  do  it,  warned  him  of  the  danger,  and  assured  him  that 
the  train  should  be  stopped  and  backed  to  the  station.  If  he 
had  heeded  them,  he  would  have  been  safely  let  down  at  the 
place  he  desired  to  stop  at  in  less  than  a  minute  and  a  half. 
Instead  of  this,  he  took  a  leap  which  promised  him  nothing 
but  death;  for  it  was  made  in  the  darkness  of  midnight,  against 


826  PKKKSTLYANIA  BaIL&OAD  (3o.  V.  ASFBLL.        [PoUL 

A  wood-pile  dose  to  the  track,  and  from  a  oar  going  protiably  at 
the  full  xate  of  ten  miles  an  hour. 

Though  these  facts  were  nnoontradicted,  and  though  the 
court  expressed  the  opinion  that  no  injury  would  have  hap- 
pened to  the  plaintiff  but  for  his  own  imprudenoe,  the  jury 
were  ncTertheless  instructed  that  the  defendants  were  bound 
to  compensate  him  in  damages.  The  learned  judge  held  that 
the  cases  of  mutual  neglect  did  not  apply,  because  this  action 
was  on  a  contract.  Now,  a  party  who  Tiolates  a  contract  is  not 
liable  any  more  than  one  who  commits  a  tort  for  damages  which 
do  not  necessarily  or  immediately  result  from  his  own  act  or 
omission.  In  neither  case  is  he  answerable  for  the  evil  conse- 
quences which  may  be  superadded  by  the  default,  negligence, 
or  indiscretion  of  the  injured  party. 

There  is  no  form  of  action  known  to  the  law  (and  the  wit  of 
man  can  not  invent  one)  in  which  the  plaintiff  will  be  allowed 
to  recover  for  an  act  not  done  or  caused  by  the  defendant,  but 
by  himself. 

When  the  train  approached  Morgan's  Oomer  some  one  (prob- 
ably the  conductor)  announced  it.  Much  stress  was  hdd  on 
this  fact.  The  court  said,  in  substance,  that  to  make  such  an 
announcement  before  the  train  actually  stopped  was  a  want  of 
diligence,  whereby  the  plaintiff  was  thrown  into  a  position  of 
danger;  and  though  he  was  warned  not  to  jump,  yet  having 
done  so,  he  could  make  the  company  pay  him  for  the  hurt  he 
received. 

We  think  this  totally  wrong.  It  is  not  carelessness  in  a  con- 
ductor to  notify  passengers  of  their  approach  to  the  station  at 
which  they  mean  to  get  off,  so  that  they  may  prepare  to  leave 
with  as  little  delay  as  possible  when  the  train  stops.  And  we 
can  not  see  why  such  a  notice  should  put  any  man  of  common 
discretion  in  peril.  It  is  scarcely  possible  that  the  plaintiff  could 
have  imderstood  the  mere  announcement  of  Morgan's  Comer 
as  an  order  that  he  should  leap  without  waiting  for  a  halt.  If 
he  did  make  that  absurd  mistake,  it  was  amply  corrected  by  the 
earnest  warnings  which  he  afterwards  received. 

The  remark  of  the  court  that  life  and  limb  should  not  be 
weighed  against  time  is  most  true;  and  the  plaintiff  should  have 
thought  of  it  when  he  set  his  own  life  on  the  hazard  of  such  a 
leap  for  the  sake  of  getting  to  the  ground  a  few  seconds  earlier. 
Locomotives  are  not  the  only  things  that  may  go  off  too  fast; 
and  raUroad  accidents  are  not  always  produced  by  the  miscon- 
duct of  agents.    A  large  proportion  of  them  is  caused  by  the 


1864.]       Pennstlyania  Railboad  Go.  v.  Aspkll.  827 

reekleBsnofis  of  passengerB.  This  is  a  great  evil,  which  ire  ironld 
not  inllingly  encourage  by  allowing  a  premium  on  it  to  be  ex- 
torted from  companies.  Howeyer  bad  the  behavior  of  those 
companies  may  sometimes  be,  it  would  not  be  corrected  by  mak- 
ing them  pay  for  faults  not  their  own. 

The  court  should  have  instructed  the  jury  that  the  eridenoe, 
taken  altogether  (or  even  excluding  that  for  the  defense),  left 
the  plaintiff  without  the  shade  of  a  case. 

Judgment  reyersed,  and  vernre/acias  de  ncvo  awarded. 

PA38XNOEB  CARRIERS,  ANB  BULB  QoVKRinHO  THKB  RnrOHSOnnr:  8m 

note  U>  Wcart  v.  BanUariaetc,  Canal  Co,,  35  Am.  Dea  198,  ezt«naively  diaoiui- 
ing  the  genenl  rale  governing  the  liability  of  master  for  tort  of  aenrMit;  note 
to  ComaumweaUh  v.  Power,  4 1  Id.  480,  stating  role  for  stopping  train  at  station 
to  which  ticket  mns;  disoossion  of  the  snbjoct  in  Laing  v.  Colder^  49  Id.  638} 
McEhny  t.  Ncuhua  ttc.  R,  R.  Cwrp,^  50  Id.  794;  Gumberland  V.  R.  R,  Oa. 
V.  Hughu,  51  Id.  513;  Peters  v.  RyUmds,  59  Id.  746.  See  liability  of  nOlraad 
oompanies  for  negligenoe,  u^/m. 

What  Axouvts  to  Neguobncx  has  berk  Said  to  be  Quxanox  of  Lawi 
Jltrring  v.  WUmin0<m  etc,  R.  R.  Co,,  51  Am.  Dec.  395;  but  see  reference  in 
note  to  lAnfiM  v.  Old  CoUmy  R.  /?.,  57  Id.  129,  showing  it  to  hare  been  held 
n  qaestion  of  fact;  Danner  ▼.  Somth  Carolina  R,  R,  Co.,  55  Id.  678,  where  it  is 
■aid  that  negligence  can  not  be  defined  by  ndes  ol  evidence,  but  must  be  in* 
f erred  from  all  the  dronmstances;  and  Trow  v.  Vermoni  Central  R,  R,  Co,^  58 
Id.  191,  where  it  is  said  that  negligence  is  a  mixed  qaestion  of  law  and  fkct, 
upon  which  it  is  the  duty  of  the  court  to  specifically  instruct  the  jury. 

Term  "Neouoenoe"  is  Dkhked  in  Baltimore  S  Sttsquehamna R.  R.  Co,  ▼. 
Woodrnf,  59  Am.  Dea  72. 

Liability  ov  BAiLaoAD  Companies  eob  NEOUODroBs  MeBl/ray  ▼•  Nadma 
etc,  R.  R,  Corp.,  50  Am.  Dec.  794;  Keeffon  ▼.  WeMtem  R,  R.  Corp,^  59  Id.  476, 
and  note  477;  on  master's  liability  for  injuries  resnltliig  from  negligence  of 
fellow-servants:  P^Ltn  ▼.  RyUuids^  Id.  746.  See  passenger  carriers,  and  rule 
governing  their  responsibility,  sttpm. 

Neouoenob  in  Givino  Signals  ov  Wabhxno:  See  Qalaia  S  Chicago  U.  R. 
R.  Co.  y.  LoomJU,  56  Am.  Dec  471;  Ln^iM  r.  Old  Cotoiy  R.  R,,  57  Id.  124. 

Contributort  Keguoence:  See  Laimg  t.  Colder,  49  Am.  Dea  533;  refer- 
ences in  note  to  Herring  v.  WUnUngtcn  etc  R.  R.  Co.,  51  Id.  398;  note  showing 
that  contributory  negligenoe  bars  right  of  recovery  for  injury:  Mount  Vernon  v. 
DtuoucheU,  54  Id.  4C9;  Wimame  v.  Michigan  Central  R,  R,  Co.,  55  Id.  59, 
and  note  65.  See  also  an  extended  note  on  the  genenl  principles  of  law 
relative  to  contributory  negligence:  Freer  v.  Cameron,  Id.  666,  678;  refer- 
ences in  note  to  Catena  A  CJiicago  U,  R,  R,  Co,  v.  Loomie,  56  Id.  474. 

Mutual  Keouoengb:  See  Trow  v.  Vermonl  Central  R,  R,  Co,,  58  Am  Dea 
191,  and  note  thereto  199,  on  recovery  for  injuries  where  both  p1ainti£F  and 
defendant  have  been  guilty  of  n^ligenoa 

Keguoence,  Proximate  and  Remote:  See  note  to  Thoma$  v.  Wineheeter, 
57  Am.  Dea  461,  on  liability  of  remote  wrong-doer  for  damages  caused  by 
wrongful  act  or  negligence,  and  Trow  v.  Vermont  Central  R,  R,  Co,,  58  Id.  191. 

The  principal  case  was  cited  in  Penmjfivania  R,  R.  Co,  v.  KUgore^  33 
Pk.  St.  296,  but  distinguished  from  it.    It  was  said  in  Laeiawtmna  4 


828  Cake's  Apfxai..  [Pemi. 

BUomAmg  AL  I?.  Ob.  t.  OkmewUh^  52  Id.  S90,  thaft  the  vlawB  flortertiiiMd  lii 

that  caae  did  iiot^  or  at  least  were  not  intended  to,  infringe  on  the  principles 
of  the  main  ease.  The  principal  caae  waa  alao  cited  in  Meier  v.  PeJinaylvamn 
J?.  B,  Co,t  64  Id.  230,  to  the  point  that  paeaenger  caniera  are  not  inanrerv 
againat  all  aooidenta;  bat  that  the  ali^teat  neglect  against  which  hnman 
pmdence  and  foresight  may  guard,  and  by  which  hurt  or  loaa  ia  oooaaiooed» 
will  render  them  liable  in  damagea* 


Cake's  Appbal. 

[90  PaSMBlLTAWA  BE41B,  IBS.] 

MoBTGAOi  GiVKr  TOB  BxBiDUB  OF  PuBGHAgB  MoiTXT,  bearing  even  data 
with  the  conveyance  to  the  mortgagor,  has  precedence  over  the  lien  of 
Judgments  recovered  against  him  prior  to  snch  conveyance.  Therefore,  % 
sale  under  such  judgment  does  not  divest  the  mortgage  Hen. 

JusoMSNT  LiXR  Entsred  aoainbt  OwNKi  OF  Equitt  attaches  alao  to 
the  legal  title  as  soon  as  he  acquires  it,  and  takes  precedence  over  ft 
Judgment  entered  some  days  after  such  acquisition,  though  its  oooaidesa- 
tion  was  money  used  in  paying  for  the  land. 

Apfbal  from  an  order  distributing  the  proceeds  of  a  sheriff's 
sale  of  real  estate  of  S.  M.  Eepner.  This  realty  was,  first,  a  farm ; 
second,  lot  5  in  the  town  of  Binggold;  third,  lot  6  in  the  same 
town.  The  farm  was  bargained  for  October  23, 1860,  at  which 
time  two  hundred  dollars  were  paid;  three  thousand  eight  hun- 
dred dollars  were  to  be  paid  April  1, 1851,  when  the  deed  was  to 
be  made.  The  balance  of  four  thousand  five  hundred  dollars 
was  to  be  secured  by  mortgage.  April  1, 1851,  judgment  was 
entered  against  Kepner  in  favor  of  N.  Hertzel  for  two  hundred 
and  seTcn  dollars  and  fifty-seven  cents.  August  1,  1861,  the 
deed  was  made  to  Eepner,  and  simultaneously  he  executed  a 
mortgage  to  his  vendor  Bock  for  the  four  thousand  five  hundred 
dollars  of  the  purchase  money.  For  the  three  thousand  eight 
hundred  dollars  a  check  was  given,  but  not  paid  at  the  bank.  Ou 
the  sixth  of  the  same  month  Eepner  borrowed  two  thousand 
dollars  of  H.  L.  Cake,  and  with  other  borrowed  money  took  up 
his  three-thousand-eight-hundred-dollar  check,  giving  Cake  a 
mortgage  for  the  amount  borrowed  of  him.  February  14, 1862, 
judgment  was  recovered  against  Eepner  in  favor  of  John  Moser, 
underwhich  the  farm  was  sold,  September4, 1852,  to  Cake  for  two 
thousand  one  hundred  and  fifty  dollars.  In  November,  1860, 
Eepner,  under  an  agreement  with  the  owners,  took  possession  of 
lot  5,  and  afterwards  built  six  houses  thereon,  completing  them 
in  June,  1851.  December  16,  1851,  he  received  a  deed  for  lot  & 
and  also  lot  6,  and  gave  judgment  to  the  vendors  for  four  hun- 


1854]  Cake's  Appeal.  829 

died  and  sefventy-iime  doDan.  This^was  all  for  pmchase  mon^ 
exoept  fifty  dollars.  Lot  5  was  afterwards  sold  at  ahfiiiff 's  sale 
f OS  one  thousand  seten  hundred  and  eighly  dollars,  and  lot  6  for 
one  hundred  and  forfy  dollars.  Between  NoTember,  1850»  and 
December  16, 18B1,  diyers  other  creditors  of  Kepner  obtained 
judgment  against  him,  all  of  whom  claimed  that  they  had  liens, 
subordinate  only  to  so  much  of  the  judgment  for  four  hundred 
and  seTeniy-nine  dollars  as  was  given  for  purchase  money.  As 
to  the  proceeds  of  the  farm,  the  auditor  held  that  the  mortgage 
thereon  was  the  first  lien;  that  it  was  not  displaced  by  the  sale; 
and  that  the  proceeds  should  be  applied  to  the  judgments 
entered  before  the  legal  title  was  acquired,  in  the  order  of  Iheir 
priority.  With  respect  to  lots  6  and  6,  the  auditor  decided  in 
favor  of  the  payment  of  the  judgment  of  vendors,  out  of  the 
proceeds  of  lot  6,  so  far  only  as  it  was  for  purchase  moiDey,  and 
that  the  whole  judgment  was  a  lien  on  lot  6. 

Oumming,  for  the  appellant. 

Campbell  and  Loeser,  for  the  respondents. 

By  Court,  Ehox,  J.  This  case  is  free  from  difficulty. 
A  mortgage  given  for  the  residue  of  the  purchase  money  due 
upon  a  tract  of  land,  bearing  even  date  with  the  conveyance  of 
the  legal  title,  and  duly  recorded,  has  priority  of  lien  over 
judgments  obtained  against  the  holder  of  the  equitable  interest 
anterior  to  the  conveyance,  and  therefore  a  sale  upon  a  judgment 
entered  subsequently  to  the  mortgage  does  not  divest  its  lien. 

So  much  of  Huntadnger's  judgment  as  was  for  purchase 
money  was  clearly  entitled  to  priority  in  the  distribution  of  the 
proceeds  arising  from  the  sale  of  lot  No.  6,  and  the  residue  was 
the  first  lien  upon  lot  No.  6.  The  auditor  was,  therefore,  right 
in  paying  the  whole  of  this  judgment. 

The  judgment  of  H.  L.  Cake  ei  aL  was  last  in  order  of  time, 
and  although  its  consideration  was  Tised  in  paying  a  portion  of 
the  purchase  money,  it  was  not  entered  until  eight  days  after 
the  delivery  of  the  deed,  and  the  unity  of  the  legal  and  equi- 
table  interest  had  extended  the  lien  of  all  prior  judgments  over 
the  whole  estate. 

Decree  affirmed. 

JUDOMSIVT  LiSN  IS  PaKAMOUIIT  TO  JUVIOB  MOBTOAOS  LlIM:     TtopfM  y. 

JNeAardMMi,  68  Am.  Dee.  338.    For  varioai  other  matters  reUting  to  Jadg- 
ment  liens,  see  Lffon  v.  McO%feify  45  Id.  675;  note  to  Bttehan  v.  Smnner,  47 
Id.  319;  note  to  AgrieuUund  Bank  v.  Pofien,  Id.  S2|  Rodgen  v.  MeOUm^^ 
Adm*r9,  47  Id.  715;  HaningUm  v.  Sharp,  48  Id.  366;  Fonfiy  ▼.  TempleUm 
iOId.M3. 


890  Billings  v.  Russell.  [P 

Thb  pbivoipal  oasb  was  cited  in  Eekeri  ▼.  Leiois,  4  PhiU.  423,  to  th« 
point  that  a  mortgage,  prior  to  all  other  liens,  ia  not  diveated  by  a  sheriff  *a 
sale,  but  will  bind  property  in  the  hands  of  the  sheriff's  vendee.  If  it  Is  junior, 
howeTer,  to  otlier  liens,  the  judicial  sale  will  divest  the  mortgage  lien.  And 
further,  it  is  there  held  that  a  mortgage  lien  on  an  eqnitable  titla^  after- 
wards united  to  the  legal  title,  attaches  to  the  whole. 


BiLLmGS  V.  Russell. 

[38  PnnwTLTAmA  Statk,  189.] 
JUDOMBHT  OF  JxnmQK  OF  PeACE  CAN  NOT  BE  CoLLATKBALLT  ATTAOKKS^  fOT 

irregularity,  where  he  had  jurisdiction  of  the  subject-matter. 
JuDOMEKT  IK  ATTACHMENT  IS  NOT  RENDERED  VoiD  by  irregularities  in  the 

affidavit  or  bond.    Only  the  defendant  can  complain  of  these  irregn- 

larities,  and  he  can  be  redressed  only  by  cerliofurL 
Writ  Regular  on  its  Face  Protects  a  ministerial  officer  in  its  exeontioii. 

TBE8PA88  by  F.  Russell  agaiust  Billings  to  recover  for  a  hoiae 
Bold,  in  a  suit  brouglit  by  Billings  against  A.  BusselL  PlaintifF 
recovered  judgment.  Defendant  prosecuted  a  writ  of  error. 
The  facts  appear  from  the  opinion. 

Ccme^  for  the  plaintiff  in  error. 

Ryar^  and  Jesaup,  for  the  defendant  in  error. 

By  Court,  Black,  C.  J.  This  was  trespass  for  taking  the  plaini- 
ifT's  horse  on  an  execution  against  another  person.  Evidence 
was  given  to  support  and  to  contradict  the  allegation  thai  the 
horse  had  been  sold  by  the  present  plaintiff  to  the  defendant 
in  the  execution.  But  the  court  took  all  the  evidence  on  that 
point  away  from  the  jury,  and  directed  a  verdict  in  favor  of  the 
plaiutiff,  on  the  sole  gi*ound  that  the  execution  was  void.  It 
was  issued  by  a  justice  of  the  peace  upon  a  judgment  in  attach- 
ment under  the  act  of  1842.  The  affidavit  was  irregular,  and 
so  was  the  bond;  and  although  the  plaintiff  appeared  at  the 
I'eturu-day  of  the  attachment  and  made  no  objection,  the  court 
held  that  the  judgment  and  execution  gave  no  title  to  property 
sold  under  them. 

It  is  a  rule,  to  which  there  is  no  exception,  that  when  a  judg- 
ment is  given  by  a  court  or  judge  having  jurisdiction  of  the  sub- 
ject-matter, its  regularity  can  not  be  inquired  into  in  a  collateral 
proceeding.  If  the  justice  was  wrong  in  issuing  this  attachment, 
and  if  the  defendant  did  not  waive  the  error  by  appealing,  still 
nobody  but  the  defendant  himself  had  a  right  to  complain  of  it. 
and  even  he  could  get  redress  only  by  certiorari  His  acquies- 
cence in  the  judgment,  without  taking  any  steps  to  rererse  it^ 


1854]  BnuNGB  v.  Russell.  881 

made  it  as  good  and  Talid  as  if  oil  the  preraquiaites  of  the  law 
had  been  complied  with.  A  ministeria}  o£Eioer  may  not  be  aoed 
as  a  trespasser  for  simply  obeying  the  command  of  a  writ  rega- 
]ar  on  the  face  of  it.  And  even  where  the  action  is  against  the 
plaintiff^  he  is  protected  by  the  judgment  itself,  without  proving 
that  he  obtained  it  legally.  It  would  be  impossible  to  adminis- 
ter the  law  at  all  upon  any  principle  which  would  permit  a  title 
to  property  acquired  under  a  judgment  and  execution  to  be 
defeated  by  showing  a  defect  in  the  original  process. 

It  is  said  that  this  proceeding  is  in  derogation  of  the  common 
law.  So  is  the  whole  ciyil  jurisdiction  of  justices  and  aldermen. 
But  still  their  judgments  are  condusiTey  however  erroneouBi 
until  set  aside. 

There  is  no  difference  in  this  respect  between  a  tribunal  created 
by  statute  and  a  common-law  court.  A  sentence,  judgment,  or 
decree  pronounced  by  either,  upon  a  subject  within  its  jurisdio- 
tion,  is  definitive  and  binding  on  all  other  courts,  excepting  only 
those  before  whom  it  comes  by  appeal  or  writ  of  error. 

The  same  question  was  before  this  court  in  Burford  v.  Ca8$edy, 
decided  at  September  term,  1848,  for  the  western  district.  A 
justice  granted  an  attachment  and  gave  judgment,  without  tak- 
ing a  legal  bond.  When  an  execution  came  to  be  issued,  the 
constable  presumed  to  disobey  it,  and  gave  the  mistake  of  the 
justice  as  one  of  his  reasons.  When  he  made  this  defense  on 
the  scire  faciaa  against  him,  the  court  told  him,  what  we  now 
repeat  to  the  present  plaintiff,  that  he  had  no  authority  to  erect 
himself  into  a  court  of  errors  and  pick  flaws  in  the  justice's  rec- 
ord. The  judgment  was  a  matter  which  concerned  not  him,  but 
another  person  who  had  seen  fit  (perhaps  for  very  good  reasons) 
to  acquiesce  in  it.  If  that  case  had  been  reported,  the  present 
one  would  never  have  come  here. 

Judgment  reversed,  and  vervire  faciaa  de  novo  awarded. 


CoNCLUsivsKms  OF  JuDomENTB  07  Jusnois  or  Pkaox:  See  Ludwiek  v. 
Fair,  47  Am.  Deo.  333;  Spear  t.  Carter,  48  Id.  688;  Upson  v.  Horn,  49  Id. 
633;  Wtnehuier  v.  Beardm,  51  Id.  702;  Rodger*  v.  Evans,  52  Id.  390;  Peopk 
T.  Skinner,  54  Id.  432;  florany,  Wahraiberger,  58  Id.  145;  Oumey  v.  TS^fU,  Id. 
777;  see  alao TTomcrv.  Suae  Bank  (if  Indiana,  48  Id.  355;  Bordenr.  State,6i 
Id.  217;  Kenney  v.  Oreer,  Id.  439,  and  note  448;  Beyndda  v.  Stantbury,  65 
Id.  459;  SekuUz  v.  Schultz,  60  Id.  335. 

CoLLATKBAL  ASSAULTS  OK  JuDGHSNTS:  See  WiU  V,  RwHy,  51  Am.  Dea 
701;  notes  to  Bodgers  ▼.  Evans,  52  Id.  392;  Borden  ▼.  State,  54  Id.  217i  and 
note  243;  Harrison  v.  Pender,  57  Id.  573,  and  citatioDs  in  note  574. 

BimaKNCB  BJBTwxKN  Ebbob  and  Wabt  or  JiTBiSDionoir  Shown  s  See 
dtkint  ▼.  Kimum,  32  Am.  Deo.  534;  MiOerY.  Bnnkerhqf,  47  Id.  242. 


I 


of 

»  U.  52;  Break  T.  fffiiiiii  j^M  Id.  2SS;  AMk  ▼.  V«ri,  fi3  U. 
ISa,  asJ  Bote  9S;  ^/en  t.  /"^jm^,  M  LL  ^1;  .^^oic  ▼.  J/cSUEip;  a6  Id.  SaO; 
TWifidMT.Anr.^LLSI;  0>.fr»aT.  Jrsiia^,Id.S2»;  rafEooBT.iM^, 
»Id.51S;  OvacyT.  r«/%s  li.  777;  SjpvywT.  Ardlv<  »  Id. 


Greek  v.  Kelluii. 

m  ST  CouiK  OF  Trrxji  vfaen  it  ■  made  under  a  teM  ^tfe;  aad  not 
pretended,  claim  to  tide. 
As  mnwEM  brntcDBBS  rrox  Laitd,  the  firrt  in  poaeMM  k  bert  in  nghi. 
Dbbbdob  sas  Good  PooBSSioir  agactst  Etektbddt  bvt  tlie  tr«e  cnraer. 

0KATCTS  OV  LnaXA710!rs   CAS   BS  ToiXXD  09LT  BT  BsnOT  ST  OWKSB;    HI 

entry  bj  one  having  no  title  can  not  have  thii  affaeL 

TBBPA88  by  Lather  EeUnm  agamst  J.  F.  Qieen.  Hie  plmintiff 
elaimed  under  the  statute  of  limitatioiiB.  His  fitther  entered  in 
1810,  and  continued  in  pcifinfiriion  imtil  his  death,  aboat  seven 
jeaiB  before  the  triaL  The  hmds  in  conUroverajr  seemed  to  be 
part  of  lands  covered  by  awarmniin  the  name  of  Jonathan  Kes- 
bitt,  under  whom  neither  party  showed  title.  The  defendant 
ebtimed  under  Dr.  Hose,  who  was  the  owner  of  the  surfeys  im- 
mediately east  of  the  land  embraced  in  Nesbitfs  warrant.  It 
appeared  that  as  early  as  1810  a  survey  had  been  made  for  Dr. 
Rose,  which  ran  over  six  rods  upon  the  Nesbitt  tract;  and  another 
surrey  was  run  in  the  same  place  in  1812.  The  defendant  had 
trespassed  on  the  six  rods  in  controTersy,  and  conceded  that 
these  six  rods  were  within  the  Nesbitt  survey.  Judgment  for 
plaintiff. 

W.  and  W.  H,  Jeuup^  for  the  plaintiff  in  error. 

BenUey  and  FUch,  for  the  defendant  in  error. 


1854.]  Gbanr  v.  Kklluh 

Bf  Oonrl,  Woodwabd,  J.  The  aiigfiiiiieiit  of  the  phiittilf  in 
error  rests  on  the  aflsomption  that  ]B[ella]n'fl  poMonmon  iras 
withoat  Golor  of  title;  and  if  this  foundation  be  taken  away, 
the  aignment  falls  into  rains.  Long  before  there  was  any  pos- 
eeasion  of  the  Barnes  and  Montgomery  warrants,  as  early  as 
1808,  aooording  to  the  defendant's  testimony,  Lather  Kellam, 
the  elder,  went  into  possession  of  the  Nesbitt  sorr^  and  made 
an  improrement  claiming  to  the  eastern  line,  which  is  admitted 
to  be  the  true,  original  boundary  between  the  Nesbitt  and  the 
Barnes  i|nd  Montgomery  sorreys,  and  exercised  acts  of  ownership 
quite  op  to  that  line  hj  taking  fire-wood  and  carrying  on  sugar* 
works.  What  was  this  bat  color  of  title?  Such  acts  indicate 
clearly  the  bona  Jides  of  his  claim  to  the  Nesbitt  sorrey,  and  the 
complete  disseisin  of  all  other  claimants  from  every  part  of  the 
traci  **  To  giye  color  of  title,"  said  Chief  Jastice  Gibson,  in 
MbCall  T.  Nedy,  8  Watts,  72, ''  woold  seem  not  to  require  the 
aid  of  a  written  conyeyance  or  a  recoTery  by  process  and  judg- 
ment, for  the  latter  would  require  it  to  be  the  better  title.  I 
would  say  that  an  entry  is  by  color  of  title  when  it  is  made  un« 
der  a  bona  fide^  and  not  pretended,  claim  to  a  title  existing  in 
another.  It  is  impossible  to  say,  therefore,  that  a  disseisor 
claiming  to  be  the  true  owner  of  a  surrey,  as  he  may  in  fact  be 
without  being  named  in  the  warrant,  does  not  enter  by  color  of 
title."  And  if  such  an  entry  and  claim  be  color  of  title,  then, 
aooording  to  all  the  cases  the  constructiTe  possession  is  co-ex« 
ieneiTe  with  the  color,  and  twenty-one  years  of  such  occupancy 
gives  title  eren  as  against  the  real  owner.  But  as  against  a  sub- 
eequent  intruder  there  can  be  no  question  that  Kellum's  pos» 
seasion  was  co-extensiTe  with  the  lines  of  the  Nesbitt  surrey: 
Hoey  T.  Furman,  1  Pa.  Si  295  [44  Am.  Deo.  129] ;  Bishop  t.  Lee^ 
8  Id.  217.  Why  should  not  an  actual  possession,  though 
wrongful  as  to  ilie  legal  owner,  be  protected  from  the  trespass 
of  one  haying  no  right? 

An  intruder  into  unoccupied  lands  is  not  an  outlaw.  If  he  en- 
ter peaceably,  he  has  a  right  to  remain  peaceably  until  expelled 
by  the  owner,  or  some  one  who  can  show  a  superior  right  of  pos- 
session, and  his  possession  is  so  far  an  object  of  the  law's  regard 
that  time  will  mature  it  into  a  perfect  title.  As  between  intruders, 
the  first  in  possession  is  best  in  right  Bose  and  his  alienee  had 
no  title  or  color  of  title  to  Jonathan  Nesbitt,  and  no  possession, 
tor  the  jury  have  found  Kellum's  possession  to  hsTS  extended 
toihe  east  line,  the  »Amii^j^  boundary  of  the  tract.    The  en- 


884  Qbjsbn  v.  Exlluh  [Poim. 

try  of  Bose,  then,  whether  to  sorrey  or  to  take  timber,  was  a 
breaking  of  Eellum's  dose,  for  which  an  action  liea.    _ 

Bat»  again :  according  to  the  meager  and  defective  etatements 
of  the  pai>er-bookB»  we  find  old  Lather  Eellum  sued  in  1822,  as 
a  mortgagor  of  the  NesUtt  tract;  that  he  confessed  a  judgment 
on  which  a  sheriff's  sale  of  the  tract  was  made  to  John  Jameson, 
who  afterwards  oonyeyed  one  hundred  and  six  acres  and  forty 
perches,  part  of  the  tract,*  to  Adrian  Bosh,  who  oonyeyed  the 
same  to  him,  Eellum.  Here  was  color  of  title  according  to  the 
most  commonly  received  ideas  of  the  phrase,  and  furthq^  evi- 
dence that  his  entry  from  the  first  had  been  under  a  bona  Jide 
claim  to  the  Nesbitt  survey.  That  the  one  hundred  and  six 
acres  embrace  the  land  in  dispute  must  be  inferred  from  the  evi- 
dence having  been  admitted  without  objection. 

The  assumption,  then,  that  Eellum  was  a  mere  squatter,  with- 
out color  of  title,  insufficient,  if  well  founded,  to  justify  tiie 
entry  of  a  subsequent  intruder,  is  utterly  baseless.  The  plaint- 
iff below  holds  the  land  in  controversy  by  a  descent  cast — ^his 
ancestor  entered  in  1808,  and  occupied  under  color  of  title. 
According  to  the  oldest  principles  of  the  common  law,  a  dis- 
seisor has  a  good  possession  against  evei^body  but  the  true 
owner,  and  his  heir  is  in  by  a  better  right  than  himself;  and 
according  to  the  modem  doctrine,  by  which  the  statute  of  limita- 
tions is  administered  in  Pennsylvania,  his  title  was  perfected 
long  ago,  even  as  against  the  original  owner.  The  entry  of 
Bose  to  survey  at  any  time  during  the  running  of  the  statute  did 
not  toll  it,  for  it  is  the  entry  of  the  owner  alone  that  can  have  this 
effect,  and  Bose  had  not  the  shadow  of  titie  to  the  Nesbitt  survey. 

On  the  whole,  we  think  there  was  no  error  in  the  instructions 
given,  and  the  judgment  is  affirmed. 


Color  or  Tttlb,  what  it  is  and  what  may  give  it:  See  Tate  v.  Sauthmrdp  14 
Am.  Deo.  678,  and  extended  note  thereto  580,  discnning  the  labjeot;  Wal^ 
•on  V.  Oreggj  36  Id.  176;  Conytrs  v.  Kenan,  48  Id.  226;  Beverly  v.  Bmrhe^  64 
Id.  851;  Ingram  v.  LiUle,  58  Id.  540. 

P088IS8ION  la  Pbima  Fagib  Evidbkcx  or  TiTLB:  See  TuUU  v.  Jaehan,  21 
Am.  Dea  906^  and  note  815;  and  ia  eaffident  to  maintain  ejectment;  fftOd^ 
inBon  Y.  Periey,  60  Id.  578,  and  oases  dted;  Wtnam  v.  Ohriity,  Id.  597,  and 
oases  cited  599.  See  also  the  note  to  Phme  v.  Seward,  60  Id.  601,  for  a  dia* 
ovssion  of  the  subject  of  possession  as  evidence  of  title. 

Statutb  or  LnaxATiova  is  Tollxd  bt  Owmot's  BMTBTt  IngeraoU  v. 
Lewie,  51  Am.  Deo.  536;  bat  it  nrast  be  aooompanied  by  an  ezpUdt  dsdaia- 
tion  or  aot  ol  notorions  dominion:  Id.;  AUemae  v.  OampbeU,  34  Id.  494;  and 
bo  made  within  the  atatetocy  potiod.  or  Ids  right  is  barrsdi  Beverig  v.  Bmiet 
54  Id.  861. 


1854.]  FiSHEB  V.  Seltzxb.  885 

Tbm  raxxctFAL  om  n  gird,  with  otiion»  in  StikaH  t.  WUHanu  VaUeif 
R,  R,  Co.,  80  Fft.  Si  20S&,  to  tbow  that  the  oommon-Uw  dktinotion  between 
the  ri^t  of  poewton  and  the  right  of  property,  m  deoMnti  of  title,  is  yery 
much  diaregaided  by  na,  and  ao  iar  ae  oonoerm  the  operation  of  t£e  etatnte 
of  li]nitationa»  ia  altogether  loat  light  of  . 


KUi'^: 


V.  SSSUBBBB. 

BiDDXB  AT  Shebitf's  Saui  MAT  WITHDRAW  ms  BiD  at  any  time  beloffo  the 
pwperly  ia  etrock  off  tohlta,  aod  can  not  bedeprlTedof  thie  right  by  any 
oonditiona  preiorlbed  by  the  eheiift  Where  hie  Ud  !■  withdrawn  before 
its  aooeptance,  the  bidder  can  not  be  made  anawerable  for  the  ooeti  of  a 
lecond  sale. 


AonoH  by  Fisher,  late  sheriff,  to  zeoover  from  Seltaser  the  dif- 
ference between  the  amount  bid  at  a  sale  of  property  and  the 
amount  realized  at  a  second  sale,  with  costs,  etc.  The  sheriff, 
before  the  sale,  had  prescribed  certain  rules  or  conditions,  among 
which  were  that  "  no  person  shall  retract  his  or  her  bid,''  and 
that  if  a  bidder  failed  to  comply  with  all  conditions  of  the  sale 
"  he  shall  paj  all  costs  and  chaxgee."  At  the  sale  Seltser  bid 
seyen  thousand  dollars,  under  the  belief  that  the  property  was 
to  be  sold  free  of  a  certain  mortgage  for  six  thousand  dollars. 
DiscoTering  his  error,  he  retracted  his  bid  before  it  was  accepted; 
but  the  sheriff,  denying  this  right  of  retraction,  knocked  down 
the  property  to  him.  He  refused  to  take  it.  On  a  resale  it 
brought  only  one  thousand  five  hundred  dollars.  Judgment  was 
entered  for  plaintiff  for  the  costs  of  the  second  sale  only. 
Plaintiff  prosecuted  a  writ  of  error. 

By  Court,  Lxwis,  J.  Mutuality  is  so  essential  to  the  yaUdity 
of  contracts  not  under  seal  that  they  can  not  exist  without  it. 
A  bid  at  auction,  before  the  hanuner  falls,  is  like  an  offer 
before  acceptance.  In  such  a  case  fliere  is  no  contract,  and  the 
bid'  may  be  withdrawn  without  liability  or  injury  to  any  one. 
The  brief  interval  between  the  bid  and  its  aoceptiuioe  is  the  rea- 
sonable time  which  the  law  allows  for  inquiry,  oonsideiation, 
correction  of  mistakes,  and  retraction.  This  privilege  ia  of  vital 
importance  in  sheriffs'  sales,  where  the  rule  of  caveat  emptor 
operates  with  all  its  vigor.  It  is  necessary,  in  order  that  bid^^ 
dezs  may  not  be  entrapped  into  liabilities  never  intended. 
Without  it,  prudent  persons  would  be  discouraged  from  attend- 
ing these  sales.  It  is  the  policy  of  the  law  to  promote  compe- 
tition, and  thus  to  produce  the  highest  and  best  price  which  can 


i 


886  McGasket  v.  Obaft.  [Bnm. 

be  obtained.  The  interests  of  debtors  and  ereditom  aie  ihna 
promoted.  By  the  opposite  course,  a  creditor  might  occasion- 
ally  gaih  an  advantage,  but  an  innocent  man  would  suffer  un- 
justly, and  the  general  result  would  be  disastrous.  A  bidder 
at  sheriff's  sale  has  a  right  to  withdraw  his  bid  at  any  time  be- 
fore the  property  is  struck  down  to  him,  and  the  sheriff  has  no 
authoniy  to  prescribe  conditions  which  deprive  him  of  that 
right.  Where  the  bid  is  thus  withdrawn  before  acceptance, 
there  is  no  contract,  and  such  a  bidder  can  not  in  any  sense  be 
regarded  as  a  ''  purchaser.''  He  is,  therefore,  not  liable  for ''  the 
costs  and  charges  "  of  a  second  sale.  Where  there  has  been  no 
sale,  there  can  be  no  resale. 

The  judgment  ought  not  to  have  been  in  favor  of  the  plaint* 
iff,  even  for  ''  the  costs  and  charges  "  of  the  second  sale;  but  as 
the  defendant  does  not  complain,  we  do  not  disturb  it. 

Judgment  affirmed. 

BropiB  AoQiriRXs  No  Propkbtt  BEfoai  his  Bid  is  Paid:  iTordei^T.  Iftil- 
•ofi,  41  Am.  Deo.  439.  ParohMer  at  exeoutioii  sale  miut  pay  hia  bid  at  oooe^ 
or  it  may  be  disregarded  and  the  property  resold:  Id,  iDur^ford  ▼.  Degruffa^ 
13  Id.  2^,  and  cases  cited  in  note  thereto  287.  Sheriff's  deed  oonyeying 
land  without  payment  of  the  purchase  money  is  void;  and  so  of  a  oonveyanoa 
of  personalty  sold  on  ezecation:  See  citations  in  note  to  Okapmam  t.  JSTcv^ 
wood,  44  Id.  738. 


MoGaseet  V-  Graff. 

[28  PXHHITLTAIOA  SlATB»  821.] 

D10LA.BATIONB  or  Co-ooKSPnukTOB  mat  bs  Proved  when  nttered  la  farthsf 

ance  of  the  common  design. 
Erbob  is  nbvxb  Pbesumed. 
Whibb  Pubohasb  is  Inteotbd  with  Legal  Fbaud,  the  pnrchaser  la  entitled 

to  hold  the  property  until  reimbursed  the  purchase  money. 
Whebe  Pttbohase  is  Intected  with  Actual  Fbaud,  the  purchaser  la  not 

entitled  to  hold  the  property  until  repsid  the  purchase  price,    Hia  titb 

may  be  treated  as  absolutely  Toid. 

Ejbotment  bj  Oraff  against  McOaskey.  The  latter  was  a 
lessee  of  B.  A.  Evans,  and  the  former  was  assignee  of  John  M. 
Downey.  Evans  had  purchased  the  property  at  a  sheriff's  sale, 
under  a  judgment  against  Downey,  and  it  was  claimed  that  his 
purchase  was  void  for  actual  fraud.  Evans  had  paid  to  the 
sheriff  four  thousand  four  hundred  and  fifty  dollars,  which  sum 
had  been  distributed  in  the  i>ayment  of  divers  liens  against 
Downey.  The  plaintiff,  Ghraff,  had  judgment  The  other  bets 
appear  in  the  opinion. 


1854.]  McCaskst  v.  Grait.  887 

E.  and  T.  B.  I^rankUn,  lot  the  plalxitiff  in  enor. 

Fordney^  Fnuer,  Stevens,  and  IXhnaber,  for  the  dgfendani  in 

error. 

By  Court,  Black,  G.  J.  It  is  not  denied  that  the  title  bj 
which  the  plaintiff  below  claims  the  land  was  originally  good. 
But  the  defendant  asserts  that  it  passed  to  him  by  a  sheriff's 
sale;  and  so  it  did,  if  his  purchase  was  an  honest  one.  This 
was  the  matter  of  fact  contested  before  the  jury. 

The  plaintiff  offered  one  Barefoot  as  a  witness,  to  whom  the 
defendant  objected  on  the  ground  of  interest.  It  was  not  as- 
serted that  he  had  a  direct  interest  in  the  record,  or  that  the  judg- 
ment  in  this  case  could  be  used  as  evidence  for  or  against  him  in 
any  future  suit  to  which  he  might  become  a  party.  But  it  was 
shown  that  he  was  a  creditor  of  Jane  Downey,  and  that  Jane 
was  the  surety  for  John  Downey  for  a  debt  which  John  would  be 
able  to  pay  if  bis  assignee  recovered  in  this  case;  otherwise  Jane 
would  be  compelled  to  pay  the  debt,  and  her  property  would  be 
^o  far  exhausted  that  the  witness's  debt  would  probably  not  be 
realized.  If  his  character  did  not  put  him  above  the  suspicion  of 
being  influenced  by  a  mercenary  motive  in  giving  his  testimony, 
the  relation  he  bore  to  the  subject  was  a  fair  argument  to  the  jury 
against  his  credibility.  But  it  was  entirely  too  remote  an  inter- 
est to  exclude  him. 

Robert  Evans  was  the  purchaser  at  sheriff's  sale,  and  seems 
to  have  defended  the  cause  as  the  real  party.  The  defendants 
on  record  were  probably  his  tenants.  Certainly  they  hold  from 
him  in  some  way. 

It  is  charged  that  he  got  the  property  knocked  off  to  him  at 
an  under-price  by  falsely  giving  out  that  he  was  buying  it  for 
the  family  of  the  defendant  in  the  execution,  and  by  fraudulently 
pretending  that  the  purchaser  would  take  it  charged  with  certain 
liens  which  he  knew  the  sale  would  divest.  There  is  some  evi- 
dence from  his  own  mouth  that  this  trick  was  practiced  (if  prac- 
ticed at  all)  by  him  and  his  brother  Walter  together,  and  for 
their  joint  benefit. 

Under  these  circumstances,  it  was  not  error  to  admit  evidence 
of  a  statement  made  by  Walter,  which  prevented  bidders  from 
going  to  the  sale,  or  his  declarations  afterwards  concerning  the 
purchase,  its  purpose  and  object.  The  words  of  a  co-conspirator, 
as  weU  as  his  acts,  can  always  be  proved  when  uttered  in  further* 
ance  of  the  common  design.  His  subsequent  admissions  were 
rightly  reeeived  for  another  reason,  namely,  because  if  he  and 

▲m.  Dm,  Vol.  LXn— ^ 


888  McCaseet  t;.  Oraff.  [Peon. 

Robert  bought  the  properly  together  (as  Bobert  had  said)  ha 
was  a  party  in  interest. 

Walter  was  himself  offered  as  a  witness  in  faTor  of  his  brother. 
The  bill  of  exceptions  contains  but  this:  **  Walter  G.  Evans  ob- 
jected to  bj  plaintiff,  Mr.  Stevens  disallowed  on  account  of 
interest.''  The  presumption  is  that  the  court  was  right.  We 
make  eveiy  intendment  in  favor  of  a  judgment.  It  was  the 
business  of  the  court  to  find  and  decide'  ttie  fact  of  interest  or  no 
interest,  and  we  can  not  suppose  thej  did  so  on  insufficient 
evidence  when  the  bill  of  exceptions  does  not  show  it '  This 
alone  would  decide  that  the  judgment  could  not  be  reversed  on 
that  ground.  But  from  what  I  have  said  before,  our  opinion 
will  be  readily  inferred  that  the  witness  had  such  an  interest  as 
would  render  him  incompetent.  The  defendant  has  probably 
lost  nothing  by  leaving  his  bill  imperfect. 

But  the  great  point  in  this  cause,  which  really  goes  to  the 
root  of  it,  is  raised  by  that  part  of  the  charge  in  which  the  jury 
were  instructed  to  find  an  unconditional  verdict  for  the  plaintiff, 
if  they  believed  there  was  actual  fraud  in  the  defendant's  pur- 
chase. The  defendant  thinks  he  has  a  right  to  hold  the  land 
until  he  is  reimbursed  what  it  cost  him,  no  matter  how  fraudu- 
lent his  conduct  was. 

In  the  case  of  a  purchase  honest  in  itself,  but  forbidden  by  a 
rule  of  policy,  the  legal  fraud  can  not  be  taken  advantage  of 
without  a  tender  of  the  purchase  money.  Thus  an  attorney  who 
buys  a  title  on  which  he  has  been  consulted,  without  the  consent 
of  his  client,  may  hold  it  until  he  is  reimbursed  what  he  paid 
for  it:  Cleavinger  v.  Beimar,  8  Watts  &  S.  486.  The  same  rule 
applies  to  all  sales  which  are  unobjectionable  except  for  the  fidu- 
ciary relation  borne  by  the  purchaser  to  the  other  claimant. 

It  is  also  true  that  where  a  party  goes  into  chancery  to  be  re- 
lieved against  a  hard  bargain  which  has  been  extorted  from  his 
folly,  his  weakness,  or  his  necessities,  but  which  he  made  with 
his  eyes  open  and  without  being  influenced  by  any  positive  de- 
ception of  the  other  party,  the  relief  will  not  be  given  until  he 
who  seeks  it  surrenders  all  the  advantage  he  has  derived  from 
the  agreement.  He  must  do  equity  before  he  can  ask  it.  Thus, 
one  in  remainder  sold  an  estate  which  was  to  fall  in  upon  the 
death  of  the  tenant  in  tail,  turned  of  fifty  and  not  likely  to 
marry,  for  a  sum  not  greater  than  a  single  yearns  purchase.  Ix>rd 
Hardwicke  declared  it  a  catching  bargain  against  a  necessitous 
and  improvident  heir,  and  set  it  aside,  but  decreed  the  plaintiff 
to  pay  back  the  sum  he  had  received:  Bamardition  v.  LmgoodU 


1854]  McCasket  u  Graff.  889 

S  Atk.  188.  Where  one  ihonsand  iK>tindB  had  been  asogned  to 
an  attorney  for  fees  by  a  weak  and  intemperate  woman,  there 
being  no  proof  of  deception,  the  attorney  was  allowed  his  just 
claim,  and  no  more:  Pawlei  v.  Bishop  of  Lincoln,  Id.  296.  A 
defendant  in  an  execution,  driven  to  the  wall  by  the  oppressive 
rigor  of  his  creditor,  and  seeing  his  property  about  to  be  sold 
at  an  enormous  sacrifice,  consented  to  give  a  bond  and  mort- 
gage for  his  own  debt  and  that  of  his  insolvent  son  besides. 
It  was  decreed  that  the  bond  and  mortgage  should  stand  for  the 
amount  of  the  execution  only:  BoseveU  v.  FuJUon,  2  Cow.  138. 
The  asdgnment  of  a  sailor's  share  of  prize-money  at  a  great 
nnder-value  was  set  aside  ujion  paying  the  sum  actually  received 
by  the  assignor:  Harrison  v.  Hogg,  2  Yes.  jun.  823.  A  deed  was 
ordered  to  be  canceled  on  account  of  the  grantor's  mental  im* 
bedlity;  but  the  master  was  directed  to  take  an  account  between 
the  parties,  and  allow  certain  advances  made  by  the  grantee: 
Harding  v.  Handy,  11  Wheat.  103.  In  none  of  these  cases  was 
there  any  actual  fraud.  They  were  all  hard  bargains:  hard,  not 
because  they  were  procured  by  deception,  but  on  account  of  the 
gross  disparity  between  the  thing  given  and  the  price  paid.  The 
last  mentioned  might  seem  at  first  blush  to  lie  outside  of  the 
rule;  but  the  weakness  of  the  grantor  does  not  seem  to  have 
been  imposed  upon;  and  though  the  court  speaks  of  the  gran- 
tee's conduct  as  improper,  it  is  not  pronotmced  to  be  fraudulent. 
The  contracts  were  all  sound  in  law.  It  required  the  intervention 
of  a  chancellor  to  dissolve  them,  and  he  could  do  it  only  upon 
terms  which  would  place  all  parties  in  their  original  condition. 
But  we  thought  it  was  settled  in  Pennsylvania,  if  not  in  every 
other  civilized  state,  that  a  title  procured  by  meanis  of  an  actual 
fraud,  or  a  plain  and  positive  deception,  was  tainted  through 
and  through,  destitute  of  all  validity,  and  utterly  void  in  law  as 
well  as  in  equity.  Certainly  it  has  been  so  decided  very  often 
here  and  elsewhere;  and  though  we  have  examined  all  the  cases 
cited  on  the  argument,  from  books  within  our  reach,  we  have 
found  none  in  which  the  proposition  is  denied  by  any  court. 
Gilbert  v.  Hofftnan,  2  Watts,  66  [26  Am.  Dec.  103],  ruled  the 
very  point  now  before  us  in  a  case  precisely  like  this;  Jackson 
V.  SummerviUe,  13  Pa.  St.  359,  decides  the  principle  with  equal 
clearness.  In  Riddle  v.  Murphy,  7  Serg.  &  B.  230,  the  court, 
speaking  of  one  who  had  purchased  at  a  sheriff's  sale  under  a 
fraudulent  judgment  to  which  he  was  himself  a  party,  said:  **  In 
his  character  of  purchaser  he  could  not  claim  to  be  reimbursedi 
for  if  the  sale  was  fraudulent,  it  was  a  nullity." 


840  McCasksy  v.  Qrawf.  [Pena 

To  say  that  a  Yoid  title  can  stand  as  seourity  for  purchase 
money,  adTances,  or  anything  else,  is  a  contradiction  in  terms. 
It  falls  like  an  empty  sack,  because  it  has  nothing  to  support  it 
and  can  not  support  itself.  The  proposition  that  one  who  is 
detected  in  a  cheat  by  which  he  has  acquired  no  title  shall  nev- 
ertheless be  placed  on  the  footing  of  one, who  has  a  good  title, 
unless  the  money  he  expended  in  the  perpetration  of  the  fraud 
be  paid  to  him  by  the  injured  party,  shocks  our  sense  of  right 
as  much  as  it  violates  the  analogies  of  the  law.  I  am  content, 
however,  to  leave  the  justice  of  the  rule  to  the  ample  vindication 
of  it  given  by  Chief  Justice  Kent  in  Sands  v.  Oodwise,  4  Johns. 
697  [4  Am.  Dec.  305]. 

We  are  of  opinion  that  if  the  plaintiff  was  entitled  to  recover 
at  all,  it  was  on  the  ground  of  fraud — not  fraud  by  construction 
of  law,  but  actual  fraud — and  therefore  he  was  not  bound  to 
tender  the  purchase  money  before  trial,  nor  take  a  conditional 
verdict  by  which  he  would  be  compelled  to  pay  it  afterwards. 

There  being  no  error  in  the  charge,  nor  in  the  ruling  of  evi- 
dence in  or  out,  the  verdict  is  of  course  conclusive  on  the  fiicts, 
and  the  judgment  must  be  affirmed. 

Judgment  affirmed. 

LowBiE,  J.,  dissented. 

lis  E3TAJILISHKD  Ck>NSPiiucT  IN  Fju.(7DULSNT  DssiOK,  the  decUratioiu  of 
one  conspirator  are  evidence  against  the  others:  StotfdU  ▼.  Farmers*  and  Jfer- 
ehanW  Bank,  47  Am.  Dec.  85.  Bead  the  note  to  People  ▼.  Fiaher,  28  Id.  607* 
on  *' Conspiracies  to  Control  Wages  or  Workmen,"  and  the  sahdivinon  "Con- 
spiracies to  Cheat  and  Defraud,"  of  the  note  to  People  ▼.  Biehards,  61  Id. 
85,  on  ''Conspiracy." 

DiSTiNOTiow  Dramt?  bxtwben  ACTC7AL  Fbaud  AND  Leoal  Fraitd:  See 
Fleming  v.  Toumsend^  50  Am.  Dec.  325. 

Fraudulent  CoNy£YA>TE8  are  Void:  Fleming  v.  TWnsend,  50  Am.  Dea 
818;  Trimble  v.  Turner,  53  Id.  90.  As  to  when  the  rale  in  caoeo  at  law,  that 
party  must  lose  all  advantages  gained  by  fraud  as  well  aa  the  money  whiob 
may  have  been  paid  by  him,  does  not  apply,  see  White  v.  TroUer^  Id.  112; 
and  as  to  when  property  fraudulently  conveyed  may  be  levied  upon  aa  aawti 
in  hands  of  administrator,  see  Kefnt  v.  Lycn,  56  Id.  404. 

The  principal  case  was  cited  in  Peterson  v.  Speer,'  29  Pa.  St.  491,  to 
the  point  that  the  least  degree  of  concert  or  collusion  between  parties  to  an 
ille£^  transaction  makes  the  act  of  one  the  act  of  all,  and  the  acts  and  dec- 
larations of  one  may  be  given  in  evidence  to  affect  the  others;  and  in  Seylar 
V.  Carson^  09  Id.  86,  that  if  defendant  is  guilty  of  fraud  in  the  purchase  of 
property,  then,  whether  the  sale  was  absolutely  or  relatively  void,  it  is  not 
necessary  for  plaintiff  to  pay  or  tender  him  the  parohaae  money  whidi  he  paid 
for  the  property  before  bringing  suit  for  its  reooveiry. 


1864]  PoBTEB  V.  Seilkb.  Ml 

POBTEB  V.  SeILEB. 

[38  PnnnTx.YA]nA  8xats»  4M.} 

Cavbe  will  hot  bs  Rkvzbakd  BI0AU8S  Judos  Exfrbsssd  Opinioh  m 
to  which  of  the  witnesses  was  most  entitled  to  credit,  if  he  also  told  the 
jury  that  they  were  the  sole  judges  of  the  credibility  of  the  witnesses. 

Iv  AcnoN  TO  RicoTSB  TOR  Injubus  Istucted  on  PLAiirniT  while  en- 
deavoring to  take  a  horse  and  carriage  from  the  poMossion  of  defendanti 
it  is  competent  to  show  that  the  pkuntifTs  endeavor  was  anthoriaed  by 
the  owner  of  such  horse  and  carriage. 

ViNDicnvK  Dauaoxs  mat  bb  QrvBir  fob  Wantoh  and  Untboyokbd  At« 
TACK  with  a  deadly  weapon. 

BviDXNcx  OF  €k)0D  AND  Pbacxablb  CoABAonB  09  Dbibndant  ooght  not 
to  be  received  in  a  civil  action  against  him  to  recover  damages  for  an  in- 
juiy  inflicted  on  plaintiff  with  a  knife. 

Btidxncb  op  Chabacteb  18  NOT  Admissiblb  nr  Grvn.  AonoNB»  except 
when  the  character  of  one  of  the  parties  Is  in  issue. 

ReCOBD  op  J0DOHBNT  IN  CbIMINAL  CaBB,  WHBN  RiCBIVXD  WITHOUT  OB- 
JECTION, is  competent  evidence  against  the  party  who  oflRsred  it  to  prove 
that  he  was  guilty  of  the  crime  of  which  such  record  shows  him  to  have 
been  convicted. 

Trespass  vi  et  armis,  by  Dr.  C.  Seiler  against  Porter,  for  per- 
sonal injuries  inflicted  with  a  knife.  H.  Seiler  and  the  defend- 
ant Porter,  in  September,  1850,  were  on  the  road  with  a  horse 
and  carriage,  and  were  stopped  by  the  plaintiff,  when  an  affray 
took  place,  in  which  he  sustained  the  injures  complained  of. 
The  plaintiff,  against  the  objection  of  the  defendant,  proved 
that  the  horse  and  buggy  were  hitched  up  without  the  consent 
of  their  owner,  and  that,  by  the  owner's  authority,  the  plaintiff 
went  to  take  them  from  the  defendant  and  H.  Seiler.  It  also 
appeared  that  when  the  plaintiff  took  the  horse  by  the  bridle 
he  told  defendant  he  was  sent  for  the  horse  and  buggy,  and 
that  defendant  and  H.  Seiler  must  get  out  and  walk.  The  other 
facts  appear  in  the  opinion.  Verdict  for  plaintiff  for  two  thou- 
sand dollars. 

Porter,  for  the  plaintiff  in  error. 

McAllister  and  Bawn,  for  the  defendant  in  error. 

By  Court,  Knox,  J.  This  was  an  action  of  trespass  in  et  arrms, 
brought  by  Christian  Seiler  against  Henry  Porter,  to  recover  dam- 
ages for  an  alleged  assault  and  batteiy.  The  declaration  charges 
the  assault  and  battery  to  have  been  committed  by  injuries  in- 
flicted with  a  knife  of  the  defendant  upon  the  person  of  the 
plaintiff. 

The  plea  was  "  not  guilty,''  to  which  was  added,  after  the  evi- 
dence had  closed,  '*  son  assault  demesne."    The  verdict  was  for 


842  PoBTEB  V.  Seileb.  [Pena 

two  ihoasand  dollars,  upon  which  judgment  was  rendered  in 
the  common  pleas  of  Dauphin  county. 

In  this  court  six  errors  are  assigned:  one  to  the  admission  of 
eyidence  offered  by  the  plaintiff;  one  to  the  rejection  of  eridence 
offered  by  the  defendant;  and  four  to  the  instructions  given  by 
the  court  to  the  jury  in  the  general  charge.  But  little  need  be 
said  as  to  the  first,  third,  fourth,  and  sixth  assignments  of 
error. 

Nothing  can  be  clearer  than  that  it  was  not  only  competent 
but  important  for  the  plaintiff  to  show  that  he  was  authorized 
by  the  owner  of  the  horse  to  take  it  from  the  possession  of  the 
owner's  son  and  the  defendant,  otherwise  he  would  have  occu- 
pied the  yery  unfavorable  position  of  being  injured  in  attempt- 
ing by  force  and  without  right  to  take  possession  of  a  horse  and 
carriage  then  in  the  actual  custody  of  others. 

The  remark  as  to  which  of  the  witnesses  was  entitled  to  the 
most  credit,  preceded  and  followed  as  it  was  by  the  explicit  dec- 
laration that  the  jury  were  the  sole  judges  alike  of  the  correct- 
ness and  credibility  of  the  witnesses,  calls  for  no  interference 
from  us.  The  same  may  be  said  as  to  that  part  of  the  charge  in 
which  the  jury  were  told  that  it  was  for  them  to  determine  to 
what  extent  the  defendant  was  injured,  or  whether  he  feigned 
greater  suffering  than  he  endured.  Surely  it  requires  no  argu- 
ment to  prove  that  we  can  not  reverse  an  important  cause  upon 
such  grounds  as  these.  As  to  the  damages,  the  jury  were  in- 
structed that  if  they  believed  the  attack  was  wanton  and  un- 
provoked, and  with  a  deadly  weapon,  they  could  give  exemplary 
or  even  vindictive  damages,  if  necessary  to  repress  the  practice  of 
carrying  and  using  deadly  or  dangerous  weapons.  The  objection 
urged  against  this  part  of  the  charge  is,  that  there  was  no  evi- 
dence that  any  such  practice  existed  in  the  community  where  the 
injury  was  inflicted  and  the  cause  tried.  Grant  it.  Yet  the  di- 
rection was  correct  without  the  reason.  If  the  attack  was  wan- 
ton and  unprovoked,  and  with  a  deadly  weapon,  it  was  a  case 
for  vindictive  damages,  whether  there  was  such  a  practice  or  not, 
and  whether  it  would  repress  it  or  not. 

The  addition  could  not  injure  the  defendant,  but  might  benefit 
him,  for  the  jury  might  infer  that  unless  it  was  necessary  to  re- 
press the  practice  spoken  of,  vindictive  damages  should  not  be 
given.     So  far  the  case  is  free  from  difficulty. 

There  remain,  however,  to  be  noticed  somewhat  more  in  de- 
tail, the  second  and  fifth  assignments  of  error.  The  defendant 
offered  upon  the  trial  to  show  his  general  character,  that  it 


1854.]  FoBTEB  V.  Sehjeb.  848 

nnifozmlj  goody  and  that  he  waa  zepoted  to  be  a  peaceable  and 
orderly  peraon,  for  the  pnipose  of  rebatting  any  inference  of 
malice.  This  was  objected  to  and  rejected.  The  qnestion  thus 
presented  is  by  no  means  a  new  one.  Many  cases  in  which  the 
principle  is  involved  are  to  be  found  in  the  English  rejiortSi 
and  in  those  of  the  different  states  of  this  Union.  The  decisions 
have  not  been  in  entire  conformity  with  each  other,  but  the 
weight  of  authority  is  largely  in  favor  of  the  rule  as  pronounced 
by  the  court  below:  Attorney  Oeneral  v.  Bowman^  2  Bos.  & 
Pul.  632,  note  a,  is  the  leading  English  case.  This  was  an  in* 
formation  against  the  defendant  for  keeping  false  weights.  It 
was  proposed  to  give  evidence  of  his  genconl  good  character,  but 
it  was  held  to  be  inadmissible.  Chief  Baron  Eyre  obserying 
that  *'  the  offense  imputed  is  not  in  the  shape  of  a  crime."  It 
would  be  contrary  to  the  true  line  of  distinction  to  admit  it, 
which  is  this,  that  in  a  direct  prosecution  for  a  crime  such  evi* 
deuce  is  admissible,  but  where  the  prosecution  is  not  directly 
for  the  crime,  but  for  the  penalty,  it  is  not.  In  Ooodrighi  v.  Hicka, 
died  in  Bull.  N.  P.  296,  which  was  an  action  of  ejectment  by 
an  heir  at  law,  to  set  aside  a  will  for  fraud  and  imposition  com- 
mitted by  the  defendant,  it  was  held  that  witnesses  could  not 
be  examined  as  to  defendant's  good  character.  Humphrey  v. 
Humphrey,  7  Conn.  117,  was  an  issue  upon  the  adulteiy  of  the 
wife,  and  the  proof,  merely  presumptive  evidence  of  her  good 
character,  was  refused.  Woodruff  v.  WhiUelaey,  1  Kirby,  60, 
trover  for  goods,  where  fraud  upon  creditors  by  a  colorable 
bill  of  sale  was  in  question,  and  the  evidence  circumstantial, 
the  general  character  of  the  parties  to  the  bill  for  honesty  was 
refused.  In  Fowler  v.  JEHna  Fire  Ina.  Co.,  6  Cow.  678,  where  a 
fraudulent  valuation  of  loss  at  a  fire  was  imputed  to  plaintifbi 
which  involved  moral  perjury  at  least,  it  was  ruled  that  evidence 
of  his  good  character  was  improperly  received. 

Oough  V.  St.  John,  16  Wend.  646,  was  an  action  on  the  case 
for  a  false  and  fraudulent  representation  as  to  the  solvency  of 
another.  Upon  the  trial,  evidence  was  received  that  the  de- 
fendant sustained  a  good  character  for  honesly  and  fair  deal- 
ing. The  judges  of  the  supreme  court  were  unanimously  of 
opinion  that  this  evidence  was  inadmissible;  admitting  that  the 
contrary  had  been  decided  in  Buan  v.  Perry,  8  Cai.  120,  but 
overruling  it  in  terms. 

In  Oivena  v.  Bradley,  8  Bibb.  196  [6  Am.  Dec.  646],  evidence 
of  the  plaintiff's  character  was  refused,  although  the  action  was 
assault  and  batteiy;  and  in  Bogera  v.  Lamb,  8  Blackf.  166, 


844  FoBTBR  t;.  Sxam.  [Penit 

which  WM  a  mm  for  nudicioiiB  proseeniiony  it  was  held  that  the 
defendant's  chameter  wbm  not  in  iasae,  and  that  he  oould  not 
call  witnooDon  to  support  it.  In  our  own  state,  eridence  of  the 
defendant's  good  character  was  rejected  in  Nash  t.  CHUoewn^  6 
Seig.  k  B.  852»  although  fraud  was  imputed  to  him  by  the 
evidence  given  by  the  plaintiflb.  And  in  Anderson  r.  Long^  10 
Id.  55,  the  plaintiff  was  refused  permission  to  show  his  good 
duuracter  for  honesty,  although  the  defense  was  that  he  had 
fraudulently  obtained  the  bond  upon  which  the  suit  was  brought. 

The  principles  upon  which  these  decisions  rest  are:  1.  That 
in  civil  suits  evidence  of  the  character  of  the  parties,  except 
where  the  character  is  directly  at  issue,  is  not  admissible; 
2.  That  putting  character  in  issue  is  a  technical  expression, 
which  does  not  mean  dmply  that  the  character  may  be  affected 
by  the  result,  but  that  it  is  of  particular  importance  in  the  suit 
itself,  as  the  character  of  the  plaintiff  in  an  action  of  slander, 
or  that  of  a  woman  in  an  action  on  the  case  for  seduction.  The 
remark  of  Professor  Oreenleaf ,  in  his  treatise  on  evidence,  vol.  1, 
sec.  54,  that  **  generally  in  actions  of  tort,  wherever  the  defendant 
is  charged  with  fraud  from  mere  circumstances,  evidence  of  his 
general  good  character  is  admissible  to  repel  it,"  is  not  sustained 
by  any  authority  which  I  can  find,  save  Ruan  v.  Perry ^  3  Gai. 
120,  and  this  is  expressly  overruled  in  Oough  v.  St.  John,  16 
Wend.  646.  It  is  admitted  that  the  defendant's  good  character 
would  have  been  legitimate  evidence  in  his  favor  upon  the  trial 
of  an  indictment  for  the  assault  and  battery  with  which  he  was 
charged,  and  it  is  somewhat  difficult  to  perceive  why  it  should  be 
received  in  the  one  case  and  excluded  in  the  other;  but  such, 
as  we  have  shown,  is  the  well-settled  rule  of  law,  and  unless  it 
is  manifestly  vnrong,  ought  not  to  be  disturbed.  It  does  not 
follow  because  it  is  not  in  consonance  with  the  rule  in  criminal 
evidence  that  it  is  therefore  clearly  wrong.  To  exclude  evidence 
of  character  in  all  civil  actions  where  character  is  not  directly 
in  issue  makes  the  result  depend  rather  upon  the  character  of 
the  circumstances  attendant  upon  the  transaction  than  upon  that 
of  the  parties  or  either  of  them. 

In  the  very  able  argument  made  by  the  counsel  for  the  plaint- 
iff in  error,  it  is  contended  that  where  the  action  is  to  recover 
damages  for  an  injury  committed  against  the  person  by  force, 
alleging  a  malicious  intention  upon  the  part  of  the  defendant, 
and  where  the  evidence  is  conflicting,  character  should  be  re- 
ceived. There  is  no  such  distinction  or  exception  as  this  to  be 
found  in  any  of  the  authoritative  cases.    It  is  not  the  conse- 


1864]  BOBTBB  V.  SSILEB.  M§ 

quenoes  to  le  apprehended  from  the  resolt  that  pats  fhe  char- 
acter in  issne,  bat  the  nature  of  the  iasne  itself.  To  nse  the 
language  of  Jnatice  Daggett,  in  Humphrey  y.  Humphrey,  7 
GoDn.  116:  '^GaaeeB  charging  cmelty,  and  even  forgery,  are 
often  agitated  in  saits  by  indiTidnala;  and  the  result  not  unfre- 
quentlj  affects  the  properly  and  reputation  of  the  party  deeply; 
yet  no  individual  has  been  permitted  to  attempt  to  repel  the 
proof  by  showing  a  good  reputation."  It  would  be  no  rule  at 
fell  if  it  were  to  be  enforced  or  set  aside,  according  to  the  extent 
of  the  disaster  to  be  apprehended  from  an  unfavorable  result. 

Again:  were  we  to  determine  that  whenever  the  evidence  im- 
puted a  criminal  act  to  the  defendant  for  which  he  might  be 
indicted  he  should  have  the  advantage  of  his  good  character, 
we  should  be  utterly  disregarding  the  rule  of  stare  deciais;  which 
ought  never  to  be  done,  except  where  an  adherence  to  the  beaten 
trsck  is  certain  to  produce  the  most  mischievous  results.  There 
was  no  error  committed  in  rejecting  evidence  of  the  defendant's 
good  character. 

An  indictment  was  preferred  in  the  quarter  sessions  of  Dau* 
phin  county  against  the  defendant,  for  an  assault  and  battery, 
with  an  intent  to  commit  murder.  He  was  fotmd  guilty  upon 
the  duurge  of  assault  and  battery,  but  not  guilty  of  the  in- 
tent to  kill«  The  sentence  was  to  pay  a  fine  of  one  hundred 
dollars  and  costs.  This  record  was  offered  in  evidence  by  the 
defendant,  and  received  without  objection.  The  learned  judge 
instructed  the  jury  that  **  this  record,  when  given  in  evidence 
by  the  defendant,  was  strong  evidence  that  an  assault  and  bat- 
teiy  was  committed; "  and  further,  that  he  *'  did  not  consider  it 
by  any  means  conclusive  that  Porter  did  not  stab  Seller,  for  it 
would  be  the  duty  of  the  jury  to  acquit  on  the  first  two  counts, 
if  they  believed  the  knife  was  drawn  and  used  after  the  fight 
commenced  and  the  blood  became  heated,  as  killing  in  such 
cases  would  not  have  amounted  to  murder,  but  would  at  most 
have  been  manslaughter.  Yet  that  by  no  means  shelters  the 
defendant  from  his  civil  responsibility  for  the  injury  done. "  It  is 
assigned  for  error  that  the  court  erred  in  charging  that  the  rec- 
ord was  strong  evidence  *'  that  an  assault  and  battery  was  com- 
mitted;'' that  '*  it  was  not  conclusive  that  Porter  did  not  stab 
Seiler; "  and  in  further  charging,  "  yet  that  by  no  means  shelters 
the  defendant  from  his  civil  responsibility  for  the  injury  done." 

It  must  be  remembered  that  this  record  was  offered  by  the  de- 
fendant, and,  as  appears  from  what  was  said  by  the  judge,  for 
the  double  purpose  of  showing  the  punishment  already  received. 


846  PoBTEB  V.  Seileb.  [Penn. 

and  of  cIiq[«OTiiig  the  intention  to  kill.  It  oertainly  eonld  not 
have  been  offered  bj  the  plaintiff  for  any  pnipose;  bat  when 
Toluntarilj  given  by  the  defendant,  and  admitted  without  ob- 
jection by  the  plaintiff,  and  without  its  effect  being  restricted  in 
any  manner,  was  it  not  eyidence  that  the  assault  and  battery  had 
been  committed  f  It  was  offered  and  receiyed  generally,  and  it 
contained  the  verdict  of  guilty  of  an  assault  and  batteiy,  with  the 
sentence  of  the  court  thereupon;  and  if  evidence  to  disprove  the 
intention  to  kill,  it  was  evidence  to  verify  the  assault  Had  it 
been  offered  speciaUy  in  mitigation  of  damages  hj  the  defend* 
ant,  I  will  not  say  that  it  should  have  been  allowed  any  other 
effect;  but  from  the  course  pursued,  it  would  seem  that  both 
parties  were  willing  that  it  should  be  received  for  all  that  ap- 
peared upon  its  face-— the  plaintiff,  because  it  a£Srmed  the  as- 
sault; and  the  defendant,  because  it  negatived  the  intent  to  kilL 
In  JIbses  v.  Bradley,  3  Whart.  274,  a  similar  record,  when  offered 
by  the  defendant,  was  permitted  to  be  used  as  evidence  that  an 
assault  had  been  committed;  and  in  Wecherly  v.  The  Luiheran 
Congregation,  3  Bawle,  172,  a  plaintiff  who  produced  a  record  be- 
tween himself  and  another  party  as  the  foundation  of  his  action 
was  held  to  be  bound  by  all  that  appeared  upon  the  record. 
The  judge  was  right  in  saying  that  an  acquittal  upon  the  two 
first  counts  in  the  indictment  did  not  conclusively  disprove  the 
stabbing,  for  the  reason  given  in  the  charge.  A  misconstruc- 
tion is  placed  upon  the  last  clause  in  the  assignment  of  error. 
Its  true  meaning  is  simply  that  the  absence  of  the  intention  to 
kill  by  no  means  shelters  the  defendant  from  his  civil  responsi- 
bility  for  the  injury  done. 

Upon  a  somewhat  careful  examination  of  this  case,  we  are 
satisfied  that  it  was  fairly  and  legally  tried;  that  no  evidence 
was  received  which  should  have  been  rejected,  and  none  rejected 
which  should  have  been  received;  and  that  the  charge  to  the 
jury  contained  a  correct  exposition  of  the  law,  and  a  fair  state- 
ment of  the  facts. 

Judgment  affirmed. 

Lewis,  J.,  dissented  as  to  the  effect  allowed  to  be  given  to  the 
record  of  conviction  and  sentence,  alleging  that  such  a  record 
was  not  legal  evidence  for  the  defendant  where  the  plaintiff 
claims  no  more  than  compensation  for  the  injury  snstainedj 
but  where  he  claims  vindictive  or  exemplary  damages,  it  is 
proper  evidence  for  the  purpose  of  showing  how  much  the  de- 
fendant has  already  suffered  for  punishment,  and  as  an  example 
to  others;  and  that  giving  it  in  evidence,  on  the  part  of  the  de* 


1864]  WlLSOH  V.  McOULLOUQEU  847 

fcmdant,  for  such  purpose,  mm  not  an  aflmimnon  of  the  jortioe 
of  the  conTiction* 

Black,  0.  J.,  oonouzed  "with  laswiB,  J. 


Foft  VABiomi  Matzibs  ooHOEBHnio  Lrasmuonovi,  m6  Pmekattd  t.  UnHed 
Siates^  48  Am.  Dea  375,  and  extended  note  thereto  S76;  on  the  adminl- 
bility  of  aflSdentfl  of  jaron  that  they  miaimdentood  inetmotions:  8hdUm  t. 
HamOUm^  57  Id.  140;  8taU  ▼.  Hdmm^  Id.  289;  HolUda^  t.  Bkeem,  Id.  028, 
and  caaes  cited  in  note  to  aame  831. 

AixowAiiCB  or  ViVDicmrx  ob  Ezsmtlabt  Dakaosb:  See  the  aabhead  of 
note  on  the  sabject  of  '*  Exemplary  Damagea  for  Act  PnniahaWe  Criminatty," 
Auatin  v.  WiUtn^  50  Am.  Deo.  770;  Fleet  ▼.  HoUenhemp,  58  Id.  583;  Corwim  ▼. 
WaUcn,  59  Id.  285,  and  referenoe  to  other  oaaea  288;  Beach  ▼.  Hemeoek^  Id. 
373;  see  also  extended  note  to  Oorey  ▼.  BeriMre  B.  B,  Ch,,  48  Id.  819;  Hat* 
rwem  ▼.  BerUeff^  47  Id.  578. 

Etidbiiob  op  Ghakaoisb  nr  Civil AonoHS!  Seeeoctvided  note  to  O'^^yaa 
▼.  (y Bryan,  53  Am.  Deo.  133. 

Etidutcb  or  Chabacteb  in  Criminal  Gassi:  See  McDamkd  t.  8taU^  47 
Am.  Deo.  93;  Tumey  ▼.  State,  Id.  74;  Bngtemati  r,  Staie^  58  Id.  494;  8taU  ▼. 
Chandler,  Id.  599;  Commonwealth  ▼.  Webeter,  Id.  711,  and  oaaea  cited  in  note 
to  aame  738;  extended  note  to  C Bryan  r.  C Bryan,  53  Id.  134. 

Rkosd  or  Fobmeb  Conviotion,  when  admlwrible  in  oTldence  to  prore  iaot 
of  each  conviction:  Commonwealth  v.  MePite,  50  Am.  Dec  727;  BoUiamm  v. 
WOeon,  52  Id.  77;  Corwm  v.  IVaUon,  59  Id.  285. 

Tn  nuNdPAL  CASK  WAS  CITED  in  Leckey  v.  Bloeer,  24  Pa.  St.  407>  to  tiie 
point  that  in  a  civil  action  for  aaeault  and  battery  general  obaimcter  la  no 
defense  against  direct  evidence  on  the  part  of  the  plainti£ 


Wilson  v.  McGullouoh. 

pS  PaMailLVAWA  8TATS,  410.] 

BiTBDUf  cxr  Plunmio  Aotdal  Notios  or  Dbbd  ob  Inbtbvmint  AmoriHO 
Trlb  to  land,  so  as  to  a£foct  a  mortgagee,  is  upon  the  person  sseinrting 
that  snch  notice  existed. 

NonCX    TO    SiNGLl    COBFOBATOB    IB    NOT  KOTIOB    TO   COBPOBATION  nnleSi 

communicated  to  its  board  of  directors. 

KonCB    TO    COBPOBATION    EXISTB    WHIN    GlVBN   TO    PABnOULAB   OmOXB 

having  charge  of  the  bnsinesi  to  which  it  relates. 
KoncB  TO  Bank  is  not  iNrsBBiD  rsoM  Kotigb  to  its  Cashikb  when  it 

is  in  respect  to  a  matter  ootside  of  the  ordinaiy  bosinesi  of  the  bank,  in 

regard  to  whioh  an  attoniey  had  been  employed  to  act  for  the  bank,  and 

the  caahier  never  having  communicated  to  the  board  of  Uualeea  the 

matters  of  which  he  had  notice. 
Whatevkb   Puts  Pabtt  on   Inquibt  Amounts    to  Kotiob,   provided 

knowledge  of  the  requislto  fact  woold  be  obtained  by  the  exercise  of 

ordinary  diligence. 
Nones  or  EzurrENCB  or  Deed  is  not  Intbbbxd  raoM  Pboop  or  Gbnbbai 

Bbpobt  in  the  neighborhood  that  the  land  had  been  sold,  and  the 


848  Wilson  u  McCullottoh.  [Psna 

nonkaitioB  of  raeh  report  to  defendtnts  nor  firom  an  intinwtion  by  one 
not  interested  in  the  land  that  another  title  la  oatrtanding;  nor,  gener 
ally,  from  information  given  by  a  penon  not  interested  in  the  property. 
PvBOHiflB  WITH  NonoB  OF  SiOEBT  Tbus*  most  be  made  oot  by  dear  proof 
of  aotoal  notice,  or  of  fjaote  which  pat  the  party  npon  such  inqniry  as  if 
poTsned  with  ordinary  diligence  woold  have  led  him  to  the  knowledge 
of  BQoh  tmst* 

Ejxctmxnt  by  Wilson  and  oiheirs  against  MoOullough  and 
others.  The  case  had  been  before  the  oourt  on  two  preTiooa 
oooasions,  and  is  reported  in  19  Pa.  St.  77,  and  in  21  Id. 
486.  Various  legal  propositions  were  settled  on  the  two  for- 
mer appeals.  The  remaining  question  was  whether  the  Harris- 
burg  Bank  had,  when  it  took  the  mortgi^  on  which  defend- 
ants' title  rested,  actual  notice  of  a  certain  marriage  settlement 
under  which  plaintiffs  claimed.  The  defendants  recoTered 
judgment.    The  facts  sufficiently  appear  in  the  opinion. 

Bonham  and  WiUiameon^  and  Hepburn  and  Moore^  for  the 
plaintiffJB  in  error. 

Biddle  and  Wails,  and  MUer,  for  the  defendants  in  error. 

By  Court,  Woodwabd,  J.  The  validify  of  the  marriage  articles 
having  been  established  when  the  case  was  here  in  1852, 19  Pb. 
St.  77,  the  great  question  on  the  last  trial  of  the  cause  waa^ 
whether  the  bank  had  notice  of  them  when  the  mortgage  of  the 
twelfth  of  December,  1821,  was  taken.  The  bank  was  a  mort- 
gagee without  constructive  notice,  for  the  articles  were  not 
recorded  until  some  months  after  the  mortgage  was  duly  exe- 
cuted and  recorded.  Had  the  bank  actual  notice  ?  The  plaint- 
iffs held  the  affirmative  of  this  question,  and  the  burden  of 
proof  was  on  them.  The  evidence  produced  and  relied  on  by 
them  was  that  of  General  Forster,  the  cashier  of  the  bank  in 
1821.  He  described  the  negotiations  which  led  to  the  loan  to 
Wilson  and  wife,  and  proved  the  letters  addressed  by  him  to 
Mr.  Clark,  as  attorney  of  the  bank,  and  then  added:  *'  I  heard 
articles  of  marriage  settlement  between  James  Wilson  and  wife 
talked  of  very  frequently  in  bank  and  out  of  bank.  It  was  be- 
fore the  mortgage  Tv^as  taken,* and  while  they  were  negotiating 
for  the  loan.  When  spoken  of  in  bank,  it  was  before  the  board 
of  directors,  but  whether  in  session  or  individually  I  can  not 
say.  I  did  not  know  the  terms — it  was  spoken  of  as  such  a 
thing  existing.  The  board  did  not  seem  to  regard  it  as  of  much 
importance  in  the  transaction  with  Wilson  and  wife."  On  his 
cross-examination  he  stated:  "  I  never  heard  whether  it  was  in 
regard  to  real  or  personal  estate,  or  anything  about  it,  and  di4 


18S4]  Wnsov  V.  MoCcjLLOXTGH.  849 

not  know  who  ihe  trustees  were.  I  merely  heard  there  was  such 
a  thing.  I  can  not  tell  how  I  acquired  the  knowledge— it  most 
have  been  from  some  of  the  directors  or  before  the  board.  I 
perhaps  said  on  a  former  trial  I  got  the  information  from  Jacob 
M.  Haldeman.  I  saj  now,  from  him  or  the  president  of  the  bank. 
Mr.  Elder,  the  president  of  the  bank,  was  a  lawyer.  *  *  *  I  had 
no  written  communication  with  Clark  and  Wilson  other  than 
what  is  contained  in  the  letter-book.  I  never  mentioned  to 
Mr.  Clark  the  existence  of  the  marriage  settlement.  I  never 
spoke  of  it  that  I  recollect,  either  to  him  or  James  Wilson." 

The  defendants  then  proved  by  Peter  Keller  and  Jacob  M. 
Haldeman,  the  only  two  surviving  directors  of  1821,  that  they 
had  no  knowledge  of  the  marriage  settlement  when  the  loan 
was  made  to  Wilson  and  wife;  and  Mr.  Haldeman  fixed  the  time 
when  he  first  heard  of  it  seven  or  eight  years  afterward,  when 
he  went  to  Carlisle  to  attend  the  sale  of  this  property  on  the 
mortgage. 

**  Mr.  Forster  was  then  along;  no  sale  vTas  made  at  that  time. 
I  can  not  say  what  year  that  was — that  was  the  first  I  ever  heard 
of  this  thing;  I  heard  Oeneral  Alexander  speak  of  it  at  that  time. 
General  Forster  was  present."  Oeneral  Forster,  being  recalled 
by  the  plaintiffs,  stated:  "  I  heard  of  this  marriage  settlement 
before  and  after  the  mortgage  was  executed.  I  got  my  informa- 
tion at  Harrisburg,  all  that  I  got.  I  did  attend  sheriff's 
sale  of  this  property  with  Mr.  Haldeman.  I  don't  remember 
anything  about  the  conversation  with  Mr.  Alexander,  spqken  of 
by  Mr.  Haldeman." 

The  court  was  called  on  to  say  that,  if  the  jury  believed  Gen- 
eral Forster,  the  bank,  and  aU  claiming  under  it,  were  affected 
with  notice  of  the  marriage  articles;  but  the  learned  judge  laid 
down  with  commendable  brevity  and  precision  the  law  as  to 
notice  of  an  unrecorded  deed,  and  referred  all  the  evidence  to 

9 

the  jury  for  them  to  decide  whether  such  notice  had  been  proved 
or  not.  Herein  there  was  no  error  of  which  the  plaintiffs  have 
reason  to  complain.  We  are  of  opinion  that  the  court  might 
have  assumed  higher  ground,  and  ruled  that  General  Forster's 
testimony,  taken  without  any  allowances  on  account  of  age, 
infirmities  of  memory,  or  of  conflicting  proofs,  failed  to  prove 
such  notice  to  the  bank  of  the  marriage  settlement  as  would  en- 
title that  instrument  to  preference*  over  the  mortgage. 

The  mortgagee  here  was  a  bank  governed  by  a  president  and 
directors,  and  to  affect  the  corporation  with  notice,  it  must  b« 
t»ought  home  to  them,  for  it  is  the  president  and  direotors  in 


860  Wilson  v,  MoCullouoh.  [Peon. 

the  aggregate  with  whom  stzangers  hare  to  do,  and  by  whom 
all  corporate  acts  are  to  be  performed.  Hence  notice  to  a  single 
corporator  is  not  notice  to  the  corporation  unless  communi- 
cated  to  the  board:  Bank  of  PiUsburgh  ▼.  Whitehead,  10  Watts, 
402  [86  Am.  Dec.  186] ;  Custer  t.  TamfMns  Couniy  Bank,  9  Pa.  St. 
27.  Whereaby-law,  or  the  course  and  usage  of  business,  have  de- 
volved certain  duties  on  a  particular  officer  of  the  bank,  notice 
to  him  of  matters  relating  to  the  routine  of  business  intrusted 
to  his  charge  is  notice  to  the  bank,  for  the  law  presumes  the 
directors  to  have  employed  a  faithful  agent,  who  will  communi- 
cate to  them  what  is  communicated  to  him,  and  if  he  do  not, 
the  responsibility  is  on  his  employers. 

But  in  the  negotiation  of  a  loan  of  a  character  and  upon  a 
security  so  much  out  of  the  course  of  ordinary  bank  accommo- 
dations as  that  made  to  Wilson  and  wife,  and  especially  when 
an  attorney  has  been  employed  to  act  for  the  bank,  notice  of  an 
unrecorded  deed  communicated  to  the  cashier  could  scarcely  be 
considered  notice  to  the  bank.  The  correspondence  of  Mr. 
Forster  shows  that  the  board  was  deliberating  and  acting  in  re- 
gard to  this  loan,  and  that  he  sent  such  instructions,  and  such 
only,  to  the  attorney  as  the  board  directed.  The  transactions 
did  not  fall  within  the  circle  of  his  ordinary  duties  as  cashier, 
but  was  peculiar  and  extraordinary,  and  he  did  not  communi- 
cate to  the  board  what  he  says  he  heard  about  the  marriage 
articles.  Under  these  circumstances,  had  he  received  full  and 
explicit  notice  of  the  articles,  it  might  be  well  doubted  whether 
it  could,  in  reason  or  law,  be  treated  as  notice  to  the  bank. 
But  he  never  received  such  notice.  He  heard  a  marriage  settle- 
ment spoken  of,  but  who  were  the  trustees,  what  was  settled, 
whether  real  or  personal  estate,  and  on  what  terms,  and  when 
made,  he  did  not  hear.  Was  this  notice  of  the  conveyance 
which  had  been  made  of  the  particular  premises  described  in 
the  mortgage?  Obviously  it  was  not.  Nor  was  it  sufficient  to 
put  the  bank  on  inquiry.  For  of  whom  could  they  inquire  f  If 
of  the  grantors,  the  conveyance  v^as  denied,  for  the  mortgage 
made  by  them  was  a  solemn  assertion  of  their  ownership 
of  the  premises.  Indeed,  it  is  fair  presumption  from  the  trans- 
actions, especially  from  Mrs.  Wilson's  joining  in  the  mori^jage, 
that  all  proper  inquiries  were  made  in  that  quarter,  and  that 
the  title  was  represented  as  in  her.  Of  the  trustees  the  bank 
could  not  inquire,  for  even  Mr.  Forster  had  not  heard  them 
mentioned.  Nor  was  any  person  in  possession  of  the  premises 
under  a  title  inconsistent  with  that  of  the  mortgagors.    The 


1864]  WnsoN  v.  McCulloitoh.  861 

pablio  negister  mm  aeazdied  in  vain,  and  no  dew  whatever  was 
fozniahed  to  Mr.  Foister  by  which  he  or  the  dixectois  ooold 
come  to  a  knowledge  of  the  truth.  Whatever  pats  a  partj 
on  inquiry  amounts  to  notice,  provided  it  would  lead  to  the 
knowledge  of  the  requisite  fact  by  the  exercise  of  ordinary 
diligence  and  understanding;  but  evidence  that  it  ma  generally 
reported  in  the  neighborhood  that  a  person  had  sold  land  to  an- 
other, and  that  the  report  was  communicated  to  the  defendant,  is 
not  sufBcient:  Jacques  v.  Weeks,  7  Watts,  267;  Epley  v.  WUherow, 
Id.  167;  Hood  v.  FahnesU)ck,  1  Pa.  St.  470  [44  Am.  Deo.  147]. 
And  an  intimation  by  one  not  interested  in  land  that  another 
title  is  outstanding  is  not  notice  to  a  purchaser:  MUler  v. 
Gresson,  5  Watts  &  S.  284.  It  is  a  settled  principle,  said  Chief 
Justice  Gibson,  in  Kerns  v.  Swope,  2  Watts,  78,  that  the  vague 
reports  of  strangers,  or  information  given  by  a  person  not  in- 
terested in  the  property,  are  insufficient  to  affect  a  purchaser 
with  notice.  Now  a  mortgagee,  as  well  as  a  purchaser,  is 
within  the  recording  acts,  and  equally  entitled  to  notice  of 
previous  conveyances;  and  if  these  rules  be  applied,  it  is  evident 
from  the  testimony  of  General  Forster  that  no  person  in  interest 
ever  gave  him  notice  of  the  marriage  articles,  wd  that  vague 
rumor,  which  was  all  he  had,  never  furnished  him  vrith  such 
hots  as  would  have  enabled  the  bank,  with  the  use  of  ordinary 
diligence  and  understanding,  to  discover  their  relation  to  this 
land. 

In  equity,  a  purchase  with  notice  of  a  secret  trust  is  regarded 
as  a  fraud,  and  therefore  it  must  be  made  out  by  clear  proof  of 
aetual  notice.  My  opinion  is,  said  Duncan,  J.,  in  PeMes  v. 
Beading,  8  Serg.  &  B.  496,  that  in  such  a  case  * '  the  notice  should 
be  actual,  circumstantial  in  the  transaction,"  and  *'  by  the  party 
in  interest."  "  It  must  be  proved  that  he  knew  exactly  the  state 
of  the  party  having  the  equity,  and  knovring  that,  acquired  the 
legal  estate.  Nothing  short  of  this,  which  is  actual  fraud,  will 
pospone  his  legal  title;  and  the  fraud  must  be  very  clearly 
proved." 

This  is  a  pretty  strong  statement  of  the  rule,  and  must  be 
taken  vrith  the  modification  settled  in  subsequent  oases,  already 
referred  to,  that  what  is  sufficient  to  lead  to  the  fact  is  notice  of 
the  fact;  but  where,  as  in  this  case,  neither  the  special  agent  and 
attorney  of  the  corporation,  nor  any  officer  of  it  having  the  busi- 
ness in  charge,  ever  heard  an  intimation  of  the  secret  trust,  and 
the  cashier  heard  only  such  vague  rumors  as  General  Forster  de- 
scribes, there  is  not  the  least  difficulty  in  saying  that  there  was 


852  Enabb  v.  Drake.  [Penn. 

neither  actual  notice  nor  its  equivalent,  and  the  court  might 
very  properly  have  taken  the  case  from  the  jury  and  ruled  it 
against  the  plaintiffs  on  this  point.  Of  course  they  were  not 
injured  when,  instead  of  doing  this,  the  court  submitted  the 
question  to  the  jury. 

The  four  propositions  of  the  plaintiffs  in  regard  to  the  validity 
of  the  judgment  on  the  mortgage  are  in  direct  conflict  with  the 
ruling  of  this  court  when  the  cause  was  last  here,  and  therefore 
they  were  all  properly  negatived. 

It  is  not  necessary  to  notice  the  answer  of  the  court  to  the 
defendants'  first  point.  As  the  decisive  point  in  the  cause 
might  have  been  ruled  by  the  court,  and  was  found  by  the  juiy 
against  the  plaintiffs,  this  alleged  error  is  wholly  unimportant 

In  the  other  answers  of  the  court,  and  in  admitting  the  dep- 
osition  of  Peter  Keller,  there  was  no  error. 

The  judgment  is  afiirmed. 

Actual  Noticb,  What  is:  See  Lodge  y.  SimotUont  23  Am.  Deo.  86,  and 
extended  note  thereto,  on  "  Notice  from  Circumstances  Patting  One  on  In* 
quiry,"  47;  Booth  v.  Bamum^  Id.  339;  and  that  burden  of  proof  is  generally 
on  the  party  holding  the  affirmative,  see  Bowser  v.  BliiSy  43  Id.  93. 

As  TO  WHEN  Notice  to  Offickb  or  Agent  of  Cobpobation  Aivboxb  Ooa- 
PORATiON,  see  an  extended  discussion  of  that  subject  in  note  to  Bamk  ^ 
Pittsburgh  v.  Whitehead,  36  Am.  Deo.  188;  Commercial  Btudey.  Ovnningham^ 
35  Id.  322. 

NoTicB  TO  Cashier  of  Bank:  See  subdivision  of  note  to  Batik  qf  Pitts- 
burgh  v.  Whitehead,  36  Am.  Dec.  108. 

Party  has  Constructive  Notice  of  Prior  Title,  when:  See  Price  ▼. 
McDonald,  54  Am.  Dec.  657,  and  references  in  note  667;  and  when  not:  Sea 
Rogers  v.  WiUy,  56  Id.  491.  Actual  possession  under  unregistered  deed  M 
notice  of  possessor's  title:  See  McLaughUn  v.  Shepherd,  52  Id.  646,  and  cit»> 
tions  in  note  649. 


Knabb  v.  Dbaeb. 

[23  PXNIISTLTASIA  BTATJB,  489.] 

Proceeds  of  Sale  of  Exempt  Property  are  not  Exempt  from  ExacoTioii« 

JUDOMENT  IN  TRESPASS  FOR  LeVYINO  ON   PROPERTY  EXEUPT  FROM  EXEOV- 

tion  is  not  exempt,  but  may  be  attached. 

Cass  stated.  Kuabb  had  recovered  judgment  against  Bobison 
for  two  hundred  dollars  in  an  action  of  trespass  for  seizing  upon 
and  selling  property  exempt  from  execution.  The  goods  sold 
were  worth  one  hundred  and  forty  dollars;  the  balance  of  the 
judgment  was  for  exemplary  damages.  Drake  and  Co.  garnished 
Bobison,  and  the  question  was,  whether  the  judgment  was  sob* 
ject  to  execution.    The  lower  court  held  that  it  was. 


1854.]  Knabb  v.  Drake.  8S3 

BtuitaleWf  for  the  plaintiff  in  error. 
PleasarUa,  for  the  defendant  in  error. 

By  Ooorty  LxwiSy  J.  The  exemption  laws  an  intended  to  pro- 
vide for  the  comfort  of  the  debtor's  family,  as  well  as  for  his 
own  comfort;  and  therefore  in  no  instance,  eicept  in  the  single 
case  of  an  impossibility  to  set  off  real  estate  of  the  proper  Talue 
without  prejudice  to  the  whole,  is  the  debtor  allowed  to  take  the 
money  in  lieu  of  the  articles  exempt.  If  the  debtor  sells  the 
property  exempt  from  execution,  it  is  clear  that  the  money  in 
the  hands  of  the  purchaser  is  liable  to  attachment.  The  reco veiy 
of  damages  in  a  action  of  trespass  for  taking  it  in  execntion 
transfers  the  right  of  property,  and  has  the  effect  of  a  sale.  The 
damages  secured  by  the  judgment  must  therefore  be  liable  to 
attachment.  The  legislature  never  intended  to  intrust  the 
debtor  with  money  which  he  may  misapply  or  squander  away 
without  providing  for  the  objects  secured  by  the  exemption  law. 
If  he  purchases  other  articles  exempt  from  execution,  with  other 
funds  or  on  credit,  those  articles  are  of  course  exempt  from  ex- 
ecution. If,  in  addition  to  this,  he  may  retain  the  proceeds  of 
articles  formerly  held,  he  will  enjoy  a  double  exemption,  which 
is  more  than  the  act  of  assembly  contemplates  or  allows.  In 
this  case  the  damages  include  more  than  the  value  of  the  prop- 
erty. More  than  half  the  sum  recovered  was  given  for  punish- 
ment of  the  trespass,  or  as  exemplary  damages.  This  is  ad« 
mitted  in  the  case  stated.  This  part  of  the  damages  is  clearly 
not  exempt  from  attachment.  In  an  action  of  trespass  for  seis- 
ing property  exempt  from  such  seizure,  it  will  rarely  happen  that 
the  mere  value  of  the  property  will  be  given.  In  such  a  case 
the  jury  will  generally  give  exemplary  damages.  If  we  add  any- 
thing to  the  statute,  we  should  involve  ourselves  in  inextricable 
difficulties;  the  only  safe  course  is  to  adhere  to  the  terms  of  the 
law.  Where  a  statute  is  in  derogation  of  common-law  rights,  it 
ought  to  receive  a  strict  construction.  In  the  case  before  us, 
neither  the  letter  nor  the  meaning  of  the  exemption  law  pre- 
cludes the  creditors  from  attaching  the  money  rec^yvered  by  the 
debtor. 

Judgment  affirmed. 

Tax  FBiNCiPAL  CASK  WAS  CITED  in  Hcmley  y.  O^Donald,  30  Pa.  St.  282, 
to  the  point  that  it  was  meant  for  a  humane  conatruction  of  the  three-handred- 
dollar-ezemption  law  when  it  waa  said,  in  the  main  case,  that  it  exempted 
only  specific  articles  of  property,  such  as  the  officer  should  set  out  to  the 
debtor  upon  appraisement,  and  not  the  money  into  which  these  articles  might 
chance  to  be  converted.  **  The  court  had  in  mind  the  image  of  a  spendthrift 
▲m.  Deo.  Voi^  LXU-^ 


864  WiNSLOw,  Lanier  Sd  Co.  v.  Leonabd.         [Penn. 

hnsbftiid  and  Catber,  who,  if  permitted  to  oonvert  the  property  set  ttpeit^ 
might  depiiTe  his  family  of  the  comforts  and  benefits  which  the  law  intended 
to  aeoare  to  them."  /n  Sfycm'f  Estate,  4  Phila.  228,  it  waa  oited  to  the  point 
that  nothing  will  be  preanmed  that  ia  not  proTed  in  fnrthenmce  of  a  daim 
which  ii  in  derogation  of  common-law  right. 


WiNSLOw,  Lanieb  &  Co.  V.  Lbonabd. 

[M  FXHmTLTABIA  SzAxa,  14.] 

TlTLi  TO  Goods  Sold  mat  Vest  in  V endbs,  even  while  the  vendor  haa  aneli 
remaining  control  over  the  goods  as  entitles  him  to  alien  for  unpaid  por- 
ohase  money,  or  to  the  right  of  stoppage  m  transUUf  or  to  the  right  of  re- 
scinding the  sale  if  there  be  no  oooaaion  for  the  exercise  of  these  rights. 

MXASUBINO  AND    SeTTINO  ApART  €toOD8  ABB    MOT  ESSBMTXAL  TO   PBBTBCt 

Salb,  except  when  it  is  necessary  in  order  to  define  the  sabject-matter. 

That  Babqain  is  in  Words  of  Either  Past  or  Pbbsent  Tucb  does  not 
conolasively  evidence  a  perfect  sale,  for  the  sale  is  not  perfect  if  the  ven- 
dor did  not  then  own  the  article  contracted  for,  or  if  it  was  not  then 
mannfactnred  or  in  existence,  or  not  yet  selected  out  of  a  lot  of  similar 
articles. 

Mbrelt  SpEcmoATioN  OF  Goods  Sold,  and  not  Dbuvert,  is  snffidenl  to 
vest  title  in  the  vendee,  as  between  the  vendor  and  vendee. 

Vbbtino  or  Title  to  Goods  Sold  Depends  upon  Intbntion  of  Pabtibi^ 
except  where  the  vendor  has  no  title,  or  the  snbject-matter  has  not  been 
spedfled. 

Dbutbrt,  Weighing,  and  Sbtting  Aside  Goods  are  only  circnmatanosa 
from  which  the  intention  of  the  parties  to  the  sale,  aa  to  the  vesting  id 
title,  may  be  inferred  as  a  matter  of  fact. 

Title  does  not  Vest  in  Vendee  under  Contract  in  Words,  "We  hava 
this  day  sold  four  hundred  tons  of  pig-metal,  now  at  our  landing,  or  that 
will  soon  be  delivered  there,'*  in  the  absence  of  evidence  that  thore  was  a 
defined  lot  of  metal  in  the  intention  of  the  parties. 

Wbxre  Same  Thing  is  Sold  to  Two  Different  Persons  by  oontnMts 
equally  valid,  and  the  second  vendee  is  without  notice  of  the  first  sale, 
he  who  first  obtains  possession  is  entitled  to  the  property. 

BsFLEviN  by  WinsloWy  Lanier  &  Oo.  to  recoTer  eighty-two 
tons  of  pig-metal.  D.  B.  Long  &  Co.  entered  into  a  written 
agreement  with  the  plaintiffs,  in  the  words:  '*  We  have  this  day 
sold  to  Winslow,  Lanier  &  Co.  four  hundred  tons  of  pig-metal^ 
now  at  our  landing  at  Washington  furnace  [Clarion  county, 
Pennsylyania],  or  that  will  soon  be  deliyered  there;  and  we 
hereby  direct  Mr.  McClure  [clerk  at  the  furnace]  to  give  them 
possession  thereof,  or  such  agent  as  they  may  send  therefor.  ** 
It  appeared  in  evidence  that  this  contract  was  made  in  pay- 
ment of  a  debt  due  the  plaintiffs  from  one  of  the  members  of 
the  firm  of  D.  B.  Long  &  Co.,  the  other  partners  consenting  to 
the  agreement.     The  plaintiffis  sought  to  recover  in  this  action. 


1864.]         WiNSLOW,  liAimsR  Ss  Go.  t;.  Lionabol  866 


ling  under  this  contraot,  esghty-twotozui  of  pig*XDetal  whieh 
came  from  the  Washington  fnmaoe  into  the  defendants'  posses- 
sion, who  held  it  as  bailee  of  John  Brenneman.  After  the  making 
of  this  contract  the  plaintiffs  sent  an  agent  to  the  furnace  to  take 
possession  of  the  metal,  but  before  he  reached  there  the  metal 
in  oontroTersy  was  in  conrse  of  transportation  to  Pittsburgh  for 
D.  B.  Long  &  Go.  Brenneman  testified  that  after  the  date  of 
the  agreement  with  the  plaintiffs,  but  before  he  knew  of  it,  and 
while  the  metal  was  on  its  way  to  D.  B.  Long  &  Co.,  part  of  the 
metal  was  sold  to  him,  and  he  was  to  receiTe  forty  tons  more^ 
with  whieh  he  was  to  pay  a  debt  due  to  himself  firom  D.  B.  Long 
&  Co.  and  to  pay  other  creditors  of  this  firm,  among  whom  was 
one  Thomas  Bolton.  Brenneman  deliTered  the  metal  in  con* 
irorersy,  after  its  transfer  to  him,  to  the  defendant  Leonard,  as 
his  bailee,  and  the  latter  haTing  refused  to  deliver  it  to  these 
plaintiffs,  they  brought  this  action.  The  verdict  was  for  the 
plaintifis  for  forty-two  tons,  that  is,  for  all  the  metal  except  the 
forty  tons  intended  to  pay  the  debt  due  Brenneman.  The  de- 
fendants complained  that  the  evidence  was  insufficient  to  show 
a  complete  sale  by  D.  B.  Long  k  Co.  to  the  plaintifEs,  so  as  to 
vest  title  in  them,  and  that  the  court  erred  in  refusing  to  give 
proper  instructions  on  this  point.  The  phuntiffs  complained 
that  the  court  erred  in  instructing  that  if  the  transfer  to  Bren- 
neman, so  far  as  respected  his  claim  to  forty  tons  in  his  own 
right,  was  for  a  bona  Jide  debt,  and  without  notice  of  the  prior 
sale  to  the  plaintiffs,  he  was  entitled  to  hold  the  said  forty  tons. 

Knox,  for  the  plaintiflJB. 

Woods  and  Hampton,  for  the  defendant. 

By  Court,  Lowbis,  J.  To  maintain  replevin,  the  plain tiflh 
must  show  that  the  title  had  vested  in  them.  Have  they  done 
so?  That  there  ia  much  confusion  of  ideas,  and  many  conflict- 
ing decisions  as  to  the  vesting  of  the  title  on  a  sale  of  personal 
property  is  readily  discoverable;  and  much  of  this  arises  from 
the  misleading  influence  of  unsuitable  analogies.  We  shall  re- 
fer to  some  of  them  here,  in  order  that  we  may  show  the  pro- 
priety of  setting  such  decisions  aside,  or  using  them  cautiously. 

The  class  of  cases  which  have  tended  most  powerfully  to  em- 
barrass this  question  are  those  wherein  the  real  question  was 
not.  Has  the  title  vested  in  the  vendee  f  but.  Has  it  so  absolutely 
vested  as  to  take  away  the  lien  of  the  vendor  for  unpaid  pur- 
chase money,  or  his  right  to  stop  intranaiiu  t — ^yet  to  this  dass 
belong  most  of  the  older  cases  which  are  usually  referred  to  as 


858  WiNSLOW,  Lanieb  Ss  Go.  v.  Leonabb.         [Penn. 

leading  eftsee  in  the  present  qnestioQ,  though  they  have  nothing 
to  do  with  it;  for  it  is  very  plain  that  the  title  may  vest,  e^en 
while  the  vendor  has  such  remaining  control  over  the  goods  as 
entitles  him  to  arrest  their  full  deliyery  in  default  of  payment, 
or  on  the  failure  of  the  vendee.  A  perfect  sale  implies  specific 
articles,  and  it  passes  the  title  to  them;  but  the  vendor  has  a 
lien  until  the  conditions  of  sale  are  performed,  or  until  full  de- 
livery. The  principle  that  so  long  sas  anything  remains  to  be 
done  to  ascertain  the  price,  quantity,  or  quality  of  the  thing 
sold  the  title  does  not  pass,  has  its  origin  almost  entirely  in  the 
sense  of  justice  that  protects  unpaid  vendors  against  the  fraud 
or  failure  of  their  vendees;  and  very  slight  circumstances  show- 
ing any  remaining  control  in  the  vendor  will  be  allowed  to  pre- 
vail in  such  cases.  The  meaning  is,  that  so  long  as  any  of  these 
things  remain  to  be  done,  an  unpaid  vendor  who  is  in  danger 
of  losing  the  price  may  rescind  the  sale:  Young  v.  Brander,  8 
Bast,  10;  Wkiiehouse  v.  Frost,  12  Id.  6U;  WaUaoe  v.  Breeds, 
13  Id.  622;  White  v.  ShvM&wonh,  5  Taunt  176;  Busk  y.  Davis, 
2  Mau.  &  Bel.  897;  Howes  v.  Waison,  2  Bam.  &  Oress.  540; 
WUkins  V.  Bromhead,  6  Man.  &  G.  963;  LackingUm  v.  Aihertorit 

7  Id.  360;  Ward  v.  Shaw,  7  Wend.  404;  Buckley  v.  ISimiss, 
17  Id.  504;  Young  v.  Austin,  6  Pick.  280;  Biddie  v.  Vamum, 
90  Id.  280;  Eeed  v.  Q)(on,  10  Id.  522;  McDonald  v.  ffewiU, 
15  Johns.  349  [8  Am.  Dec.  241].  And  the  same  sense  of  justice 
operates  in  favor  of  a  purchaser  who  has  paid,  and  thus  reversea 
the  result  when  the  other  circumstances  are  the  same:  Maoom^ 
her  V.  Parker,  13  Pick.  175;  Whipjple  v.  Thayer,  16  Id.  25  [26 
Am.  Dec.  626];  WHkes  v.  Ferris,  5  Johns.  335;  Smyth  v.  Craig, 

8  Watts  &  S.  14. 

It  is  perfectly  legitimate  to  point  to  the  want  of  measuring 
and  setting  apurt  as  evidence,  in  the  very  nature  of  the  transao- 
tion,  that  it  was  not  intended  as  a  perfect  sale;  but  this  is  not 
essential  to  such  a  sale,  and  therefore  not  conclusive  one  way  or 
the  other,  except  when  it  is  necessary  in  order  to  define  the 
subject-matter.  Articles  are  very  often  transferred  without  any 
sort  of  measurement,  and  on  the  trial  for  their  value  the  want 
of  it  is  supplied  by  approximate  estimation:  Dennis  v.  Alexander, 
8  Pa.  St.  50;  ScoU  v.  Wells,  6  Watts  &  8.  357. 

The  cases  of  delivery  under  the  English  statute  of  frauds  an 
quite  as  unsuitable  analogies;  for  in  those  cases  delivexyis  neces- 
eary  to  the  validity  of  the  contract,  rather  than  to  the  passing 
of  the  title.  That  the  contract  may  be  valid  without  writings 
there  must  be  an  unconditional  delivery  of  the  thing  sold: 


1854.]         WmsLOw,  Lanieb  &  Oo.  v.  Lbonabd.  857 

Hpu  ▼.  BvdciUi^  2  Bam.  &  Cress.  611;  bat  if  the  contmct  be  in 
writing,  or  otherwise  valid,  delivezy  is  not  at  all  neoessazy  to  its 
perfect  or  executed  character. 

That  the  bargain  is  by  words  in  past  or  present  time  is  not 
conclusiTe  evidence  of  a  perfect  sale;  for  if  it  appear  in  the  con- 
tract, or  ab  extra,  that  the  vendor  did  not  then  own  the  article 
contracted  for,  or  that  it  was  not  then  in  existence,  or  not  yet 
mannfactuied,  or  not  selected  out  of  a  lot  of  similar  articles, 
then  the  snbject-matter  of  the  contract  remains  undefined  and 
onspecified,  at  least  to  some  degree,  and  it  is  incompatible  with 
the  very  nature  of  things  to  call  it  a  perfect  sale:  Andrews  y. 
Dieterich,  U  Wend.  81;  Bailey  t.  Ogden,  8  Johns.  899  [3  Am.  Deo. 
509];  Bapelye  t.  Mackie,  6  Cow.  250;  Outwaier  y.  Dodge,  7  Id. 
85;  Pritchett  v.  Jones,  4  Bawle,  260;  Jenkins  y.  Eichdberger,  4 
Watts,  121  [28  Am.  Dec.  691];  Eagle  y.  Eichelberger,  6  Id.  29; 
Mwcldow  y.  Mangles,  1  Taunt.  818.  There  can  be  no  doubt  that 
a  man  may  sell  any  kind  of  articles  in  bulk,  so  as  to  pass  the 
title:  Clark  y.  BaJc&r,  6  Met.  452;  Sands  y.  Taylor,  5  Johns.  895 
[4  Am.  Dec.  874];  Eawes  y.  Waison,  2  Bam.  k  Cress.  640.  He 
may  pass  the  title  to  an  absent  or  a  present  thing  without  de- 
liyery;  for,  as  between  yendor  and  yendee,  it  is  specification, 
and  not  deliyery,  that  is  necessary  to  the  yesting  of  the  title: 
Shaw  y.  Levy,  17  Serg.  &  R.  99;  Hazard  y.  Hamlin,  5  Watts,  201. 
This  is,  and  always  has  been,  the  law,  except  in  cases  where 
other  forms  haye  been  prescribed  by  statute. 

Where  the  lawful  form  of  contracting  is  pursued,  the  yesting 
of  the  title  always  depends  upon  the  intention  of  the  parties,  to  be 
deriyed  from  the  contract  and  its  circumstances;  and  actual 
deliyery,  weighing,  and  setting  aside  the  goods  are  only  circum- 
stances from  which  the  intention  may  be  inferred  as  matter  of 
fact:  Sumner  y.  Hamlet,  12  Pick.  76;  Riddle  y.  Vamum,  20  Id. 
280;  Smyth  y.  Craig,  8  Watts  &  S.  14.  And  this  is  the  principle 
of  numerous  cases  wherein  the  title  has  been  held  to  yest  eyen 
where  there  has  been  no  measurement:  Macomher  y.  Parker,  13 
Pick.  175;  Clark  y.  Baker,  supra;  Sands  r,  Taylor,  supra;  Chap* 
lin  y.  Sogers,  1  East,  192;  HawesY.  Watson,  supra;  Scott  y.  Wells, 
6  Watts  &  S.  857;  Pleasants  y.  Pendleton,  6  Band.  478  [18  Am. 
Dec.  726];  Shindler  y.  Houston,  1  Denio,  48;  Valpy  y.  Gibson,  4 
Com.  B.  864.  Of  course  the  intention  must  beine£Eectual  where 
the  yendor  has  no  title;  and  it  can  not  be  inferred,  unless  it 
appears  that  the  contract  has  a  distinct  subject-matter,  defined 
by  itself,  and  not  merely  as  one  of  a  class. 

Let  us  apply  these  principles  to  the  present  case.    The  words 


858  WiNSLOw,  Lanieb  Sb  Co.  v.  Leonabb.         [PeniL 

in  the  contiact,  **  we  have  this  day  sold/'  would  seem  to  iiidi« 
cate  a  perfect  sale,  and  iiot  merely  a  contract  to  sell  and  there- 
fore a  vested  title  to  specific  metal.  But  the  metal  is  described 
as  **  now  at  our  landing,  or  that  will  soon  be  delivered  there." 
This  raises  a  doubt  whether  any  specific  metal  was  sold,  and  seems 
to  indicate  only  a  contract  to  sell.  It  does  not  as  yet  appear 
that  there  was  any  at  the  landing,  or  where  it  was  to  come  from. 
For  aught  that  appears,  any  four  hundred  tons  will  answer  the  de- 
scription. It  may  be  that  the  vendors  had  not  any  or  so  much  on 
hand.  If  they  had  any,  and  it  had  been  stolen  or  destroyed  an 
hour  after  the  contract,  we  have  as  yet  no  evidence  that  would 
throw  the  loss  on  the  vendees.  We  discover  no  definition  of 
the  subject-matter  except  as  pig-metal.  The  true  reading  of 
the  contract  would  therefore  seem  to  be,  **  We  have  bargained 
with  Winslow,  Lanier  &  Co.  to  deliver  to  them  at  our  landing 
four  hundred  tons  of  pig-metal."  Still  we  do  not  say  that  there 
can  be  no  evidence  that  there  was  a  defined  lot  of  metal  in  the  in- 
tention of  the  parties.  We  see  none  on  this  record.  And  espe- 
cially we  do  not  see  how  this  metal,  which  was  on  its  way  to  Pitts- 
burgh, can,  without  other  evidence,  be  embraced  by  the  contract. 

It  follows,  therefore,  that  the  evidence  does  not  show  a  pass- 
ing of  the  title  from  D.  B.  Long  &  Co.  to  Winslow,  Lanier  A, 
Co.;  and  the  court,  when  requested,  ought  so  to  have  instructed 
the  jury.  It  follows,  further,  that  any  one  of  the  firm  of  D.  B. 
Long  &  Co.  could  transfer  the  metal  to  Brenneman,  subject 
to  answer  in  damages  to  Winslow,  Lanier  &  Co.,  if  that  act 
should  occasion  a  breach  of  the  contract  with  them. 

The  other  points  raised  we  may  dispose  of  briefly.  As  to 
Brenneman's  title  the  learned  judge  charged  that  where  the 
same  thing  is  sold  to  two  different  persons  by  contracts  equally 
valid,  and  the  second  vendee  is  without  notice  of  the  first  sale, 
he  who  first  obtains  possession  is  entitled  to  the  property;  and 
this  is  correct:  Lanfear  v.  Sumner^  17  Mass.  110;  Lamb  v.  Du- 
rant,  12  Id.  64  [7  Am.  Dec.  31];  Shaw  v.  Levy,  17  Serg.  &  B.  99; 
Fletcher  v.  Howard,  2  Aik.  116  [16  Am.  Dec.  686];  JeweU  v.  JUn- 
coln,  14  Me.  116.  We  do  not  see  how  the  delivery  to  Brenneman 
oould,  of  itself,  avail  Bolton  and  others  as  against  the  sale  to  these 
plaintiffs;  but  if  the  plaintiffs  have  no  title,  that  transaction  may 
have  become  good  as  against  Long  &  Co.  by  subsequent  circum* 
stances.    All  the  other  points  of  the  cause  were  rightly  decided. 

Judgment  reversed  and  a  new  trial  awarded. 

Lxwis,  J.,  dissented  from  so  much  of  the  opinion  as  ralatei 
to  the  plaintiffs'  title  to  the  property  under  the  transfer. 


1854.]  Eyaks  t;.  Dbayo.  869 


Deutebt  n  xov  Burtial  to  PxBnor  Sale  ab  tmrwwa  Pi 
TBiBSio:  See  Origin  t.  CkMy  68  Am.  Dee.  85;  Donlqr  t.  Jeeetor,  00  Id. 
f42,  and  note  dting  prior  oaaes;  lee  Shaddtm  t.  JTnottp  Id.  58. 

SpBcmoATiOH  ow  Axncuu  Sold  is  KQUiTAUDrf  lo  IterrxBr:  8ae 
OoUer  T.  OpdoH  53  Am.  Dee.  618,  end  oaeee  cited  in  the  note  020;  lee  abo 
WmSamtr.  AOm,  51  Id.  709;  SaUman  y.  MUU,  Id.  630;  BrmkrT.  Andeg^ 
Id.  406;  note  to  SMndltr  t.  H<mtUm^  48  Id.  336;  ^ooteii  t.  BidwO^  47  Id. 
886;  Co9tar  y.  Dooief,  46  Id.  311.  On  e  eeoond  trial  of  the  principal  caee 
•Yidenoe  waa  fnrnished  that  the  eighty-two  tone  of  metal  in  oontroYeny  weie 
contemplated  by  the  parttee  in  making  the  lale,  and  aoomdingly  it  wae  held 
that  the  title  had  paaeed  to  the  plaintJAT  in  the  repIcYin  eoit:  Leomaar^B  JBs^n 
T.IFwM&no,  2 Giant's Oae.  149.  Jji Penn9yl9anialLB.0a.T.HughatZ9VaLHt, 
aS^f  the  principal  caee  waa  dted  to  the  point  that  until  spedficatioii  of  the 
property  add  the  title  does  not  peas  to  the  porohaser.  In  BochetUr  Oil  6b. 
Y.  Hvighe^j  66  Id.  326,  it  was  held,  where  one  porohased  four  bargea  of  ofl  at 
a  certain  nte  per  barrel,  and  the  bargee  were  partially  filled,  when  they  and 
their  contents  were  horned,  that  the  property  in  the  oU  had  not  passed  Ni 
the  parchaser,  citing  the  prindpal  caee. 

DisnironoN  Bsrwnir  Dsuyxbt  to  Pifls  Tnui  ahb  Aotual  Deuyxbt 
SuoH  AA  TO  DnrmoT  VxinN>B'B  Ijbv:  See  Arnold  t.  Ddcmo^  50  Am.  Deo. 
754,  and  note. 

Bulky  AaxiOLa,  CoMsiBVonYB  Dblivsbt  o7,  SumcmrT  lo  Vam 
Trlb:  See  Van  BnaU  y.  Pike,  45  Am.  Dec  126L 

MxBK  GosTBAOT  TO  Skll  dois  NOT  PAiB  TiTLK:  See  Jamki(if$  T.  Chgtt 
66  Am.  Deo.  476.  In  Beii^t  Appeal,  64  Pk.  St.  165,  the  principal  caee  ii 
cited  as  clearly  marking  the  distinction  between  a  contract  to  purchase  at  a 
fntore  time  and  a  perfect  sale  where  eYcrything  is  done  bat  dellYciy. 

Thjb  fbinoipal  GA8B  IS  GiTBD  in  Niehoi$on  y.  Toyfer,  31  Pa.  St  130,  to 
the  point  that  the  Yesting  of  title  in  a  sale  depends  upon  the  intention  of  the 
parties,  to  be  drawn  from  the  contract  and  its  ciroometances;  in  People's 
Bank  y.  Oankfft  92  Id.  527»  to  the  point  that  aa  between  two  Ycndees,  to 
whom  the  property  has  been  sold  for  a  Yalnable  consideration,  each  haYing 
no  notice  of  the  dalm  of  the  other,  the  one  first  obtaining  poassasion  has  the 
right  of  property;  and  in  White  y.  Wdeh^  38  Id.  480^  481,  it  ii  dted  upon  the 
ri^t  of  the  Ysndor  to  detain  the  gooda  add,  or  to  stop  them  in  fitwirfftf, 
when  the  Ysndee  la  In  failing  drenmstsncea. 


Eyans  v.  Dbayo. 

[94  PaaasniYjunA  Szim,  AOl] 
HmmaBB  oah  BaoonB  utoh  Imisawan  xnttaak  Seal  made  between 

htm  and  others  for  the  poipose  of  defrandlng  his  wife  oat  of  her  Interasl 

in  real  estate  owned  by  hiuL 
Oblmobs  nr  FbAUDUUMT  Bond  gak  hot  Shuld  TsEMSKLrEB  wmou  Lu,- 

VUTT  by  allei^ng  thdr  own  frand. 

FlBTT   TO   QBLIOAnOH    MaDB   VOB   FBAUDULBIT   P0SPOU   MAT   ElOQITIB 

IBBBBOH  if  he  needs  no  aid  from  the  frand  to  make  ont  his  esse,  bat  has 
a  petf eet  oanse  of  action  withont  itb 


OorwuMt  hf  Oliver  Evans  to  recoyer  from  Michaftl  Dravo 
upon  an  agreement  under  seal,  whereby  Dravo,  together  with 


S60  Evans  v.  Dbavo.  [Pena 

fhxee  oiherBy  bonnd  themselTes  joinfly  and  seyeially  to  pay  the 
plaintiff  two  thousand  dollars.  This  payment,  as  was  stated  in 
the  agreement,  was  made  for  a  certain  parcel  of  land  which  the 
plaintiff,  at  the  request  of  the  parties  to  the  obligation,  had  sold 
to  B.  B.  Qilpin  on  the  day  previous  to  the  date  of  the  agree- 
ment for  fiye  hundred  dollars,  although  the  land  was  valued  bj 
the  plaintiff  at  two  thousand  five  hundred  dollars.  The  defend* 
ant  offered  evidence  that  the  plaintiff  had  induced  him  and  the 
other  obligors  in  the  bond  to  execute  the  instrument  for  the 
purpose  of  procuring  Mrs.  Bvans,  the  plaintiff's  wife,  to  exe- 
cute the  deed  for  the  lot,  which  was  the  property  of  the  has- 
band;  and  that  Evans  agreed,  at  the  time  of  the  execution  of 
the  instrument,  that  he  would  not  hold  the  obligors  bound  bj 
it,  but  would  deliver  it  up  to  them  upon  the  execution  of  the 
deed.  This  evidence  was  objected  to  as  inadmissible,  since  it 
disclosed  fraud  to  be  committed  upon  a  third  person,  the  wife. 
This  objection  was  overruled.  There  was  testimony  that  the  lot 
was  worth  two  thousand  five  hundred  dollars.  The  jury  were 
instructed  that  if  the  plaintiff  procured  the  bond  merely  for  the 
purpose  of  procuring  his  wife's  signature,  and  agreed  not  to  en- 
force it,  but  to  deliver  it  up  or  cancel  it,  the  verdict  should  be 
for  the  defendant;  and  the  verdict  was  for  the  defendant.  The 
plaintiff  brought  error,  the  instruction  and  the  admission  of 
evidence  being  excepted  to. 

Williams,  for  the  plaintiff  in  error. 

Stanton  and  Shaler^  for  the  defendant  in  error. 

By  Oourt,  Woodwabd,  J.  The  important  question  in  this  case 
raised  both  upon  the  bills  of  exception  to  evidence  and  the 
charge  of  the  court  is,  whether  a  husband  can  recover  in  a  cove- 
nant made  between  him  and  others  for  the  purpose  of  defraud- 
ing his  wife  out  of  her  interest  in  real  estate  owned  by  him;  or 
in  other  words,  whether  obligors  in  a  fraudulent  bond  can  shield 
themselves  from  liability  by  alleging  their  own  fraud. 

This  obligation  does  not  belong  to  the  class  of  contracts  for- 
bidden by  statute  or  public  policy.  It  is  simply  a  covenant 
for  the  sale  and  purchase  of  land.  The  defendant  and  his  co- 
obligors  recite  that  Evans  had,  at  their  instance  and  request, 
bargained  and  sold  a  lot  to  Bichard  B.  Gilpin,  for  a  rolling-mill, 
at  five  hundred  dollars,  which  he  valued  at  two  thousand  five 
hundred  dollars;  and  Evans  having  remitted  two  thousand  dol- 
lars from  the  price,  they  bind  themselves,  on  the  delivery  of 
the  deed  to  Gilpin,  to  pay  the  said  sum  of  two  thousand  doUara. 


18M.]  Evans  v.  D&Ava  861 

The  eridenoe  diseloaes  the  fact  that  the  real  and  tme  oonddeFa- 
tion  of  the  bond  was  to  moTe  from  Mrs.  Erans.  Her  husband 
-was  already  bound  to  conyej  his  title  to  Oilpin  for  fiye  hundred 
dollars,  a  price  at  which  he  had  been  induced  to  sell  by  the 
speculatiye  adTantages  of  a  rolling-mill  in  his  neighborhood; 
bat  his  wife,  not  as  sensibly  affected  by  the  prospect  of  those 
advantages  as  her  husband,  refused  to  join  in  a  deed  unless  two 
thousand  five  hundred  dollars,  the  price  they  had  been  offered 
for  the  lot,  should  be  secured  to  them.  This  was  what  brought 
the  bond  into  existence.  On  the  deliTeiy  of  it  to  her  husband, 
Mrs.  Evans  executed  and  acknowledged  the  deed  to  GKlpin. 
The  seals  import  a  consideration;  but  a  &ir,  valuable,  and  ample 
consideration  is  expressed  visibly  on  the  face  of  the  instrument 
and  explained  fully  in  the  proofs.  A  covenant  founded  on  such 
a  consideration  contravenes  no  rule  of  law  or  morals. 

On  the  instrument,  thus  lawful  and  valid,  Evans  brought  this 
suit.  The  defendant  pleaded  non  eti  facbim^  but  that  put  in 
issue  nothing  but  the  execution  of  the  instrument,  which  being 
duly  proved  or  admitted  on  the  trial,  this  plea  was  answered. 
He  pleaded,  also,  non  inf regit  converUicnem,  a  plea  which  left  the 
onus  still  on  him;  for  the  covenant  being  for  payment  of  money, 
it  was  not  for  the  plaintiff  to  show  it  had  not  been  paid,  but  for 
the  defendant  to  show  it  had  been.  The  plea,  though  in  form  a 
negation,  was  in  fact  an  affirmation,  and  there  was  no  evidence 
to  sustain  it. 

It  was  lavrful,  however,  for  the  defendant,  under  our  blended 
system  of  law  and  equity,  to  set  up  any  facts  in  defense  which, 
though  not  amounting  to  payment,  would  excuse  non-payment 
— anything  which  would  show  that  in  good  conscience  he  ought 
not  to  be  called  on  to  perform  his  covenant.  The  facts  relied 
on  for  this  purpose  are  described  in  the  defendant's  affidavit, 
and  they  are,  in  substance,  that  this  bond  was  got  up  to  induce 
Mrs.  Evans  to  sign  the  deed  to  Gilpin,  but  as  soon  as  she  had 
done  it,  and  the  deed  should  be  delivered,  the  bond  was  to  be 
canceled  or  delivered  to  the  obligors — was  not  to  be  paid. 

At  law  notjiing  but  payment  would  discharge  the  bond;  and 
if  the  defendant  is  relieved  l^  the  facts  alleged,  it  must  be  by 
the  interposition  of  equity.  The  plaintiff  needs  no  aid  from 
equity — ^he  stands  on  his  legal  rights;  his  action  is  according  to 
strict  law  to  compel  performance  of  the  covenant,  or  compensate 
himself  in  damages  for  its  breach.  The  defendant  is  in  the  pos- 
tnne  of  a  parfy  in  a  court  of  equity  asking  that  the  plaintiff  shall 
be  restrained  from  asserting  his  legal  remedies,  and  that  the 


862  Eyans  v.  Dravo.  {Tfeauu 

bond  shall  be  canceled  according  to  ihe  seeret  agreement. 
Would  a  chancellor  listen  to  a  party  seeking  relief  from  the  con- 
sequences of  his  own  fraud  ?  Neyer.  He  would  tell  him  that  he 
who  hath  committed  iniquity  shall  not  have  equity;  that  as  he 
made  his  bed,  so  shall  he  lie;  that  who  seeks  equity  must  do 
equity;  and  that  no  man  shall  be  received  to  allc^  his  own 
turpitude.  The  maxim  of  the  common  law  is  to  the  same  effect. 
Ex  dolo  malo  non  oritur  actio.  And  no  man,  said  Lord  Mansfield. 
Montefiori  v.  Montefiorif  1  W.  Black.  864,  shall  set  up  his  own 
iniquity  as  a  defense  any  more  than  as  a  cause  of  action. 

But  it  is  insisted  that  the  plaintiff  was  in  pari  ddido,  and  that 
the  maxims  apply  to  him  and  his  action  as  well  as  to  the  de- 
fendant. 

That  he  was  party  to  the  fraud  practiced  on  his  wife  is  not  to 
be  doubted,  since  the  Terdict  has  established  it;  but  if  he  needs 
no  assistance  from  the  fraud  to  make  out  his  case,  if  he  haye  a 
perfect  cause  of  action  without  it,  it  is  apprehended  these  max- 
ims do  not  apply  to  him.  **  The  test,"  says  Judge  Duncan,  in 
Swan  y.  ScoU^  11  Serg.  &  B.  164,  **  whether  a  demand  connected 
with  an  illegal  transaction  is  capable  of  being  enforced  at  law 
is  whether  tiie  plaintiff  requires  the  aid  of  the  illegal  transaction 
to  establish  his  case.  If  the  plaintiff  can  not  open  his  case  with- 
out  showing  that  he  has  broken  the  law,  the  court  will  not  assist 
him,  whatever  his  claim  in  justice  may  be  upon  the  defendant." 
But  we  have  seen  that  this  plaintiff  could  not  only  open  but 
prove  his  case  without  showing  any  infntction  of  law.  The 
fraud  contemplated  consisted,  not  in  making  the  bond,  but  in 
the  use  that  was  to  be  made  of  it.  It  was  lawful  and  fair  for 
Mrs.  Evans  to  demand  a  full  price  for  the  land  in  which  she  had 
an  interest,  and  for  the  defendant  to  bind  himself  to  pay  it;  bat 
the  agreement  between  the  husband  and  the  obligors,  that  the 
bond,  when  fairly  made  on  this  consideration,  should  not  bepaidi 
but  should  be  given  up  and  canceled,  was  a  gross  fraud  and  impo- 
sition on  Mrs.  Evans.  There,  just  in  that  point,  was  the  wrong; 
for  though  the  bond,  being  a  chattel,  was  the  exclusive  pro|  • 
erty  of  the  husband,  yet  a  married  wonum  has  an  interest  in  her 
husband's  chattels — contingent,  to  be  sure,  but  still  such  as  may 
be  defrauded.  He  may  give  away  or  squander  his  personal 
property,  or  it  may  be  seised  by  creditors,  but  he  may  also  die 
first,  when  his  wife's  interest  vests  in  possession.  A  creditor 
has  but  a  contingent  interest  in  his  debtor's  goods,  and  yet  he 
may  be  defrauded  in  respect  of  that  interest.  Mrs.  Evans  was 
in  no  way  a  party  to  the  fraud — she  was  its  victim — and  we  have 


1864]  BVAIIB  V.  Dravo. 

DO  doubt  ber  iniorasty  fhou^h  oontingent,  wab  sueh  as  migbt  be 
defrauded.  Bat  what  need  has  her  hnsband's  action  of  Buppori 
from  that  part  of  the  transaction  ?  ObTiousl j  none  whateyer. 
And  yet  the  root  of  the  defense  is  in  it.  Without  it  the  phiint- 
iif  has  a  perfect  case;  without  it  the  defendant  has  not  a  shadow 
of  defense.  Then,  according  to  the  test  of  Judge  Duncan,  the 
plaintiff  is  unaffected  bj  the  fraud*  though  a  party  to  it,  while 
upon  the  nmxims,  both  of  law  and  equity,  the  defense  should 
have  been  excluded.  There  is  nothing  noTel  in  this  principle. 
We  apply  it  continually  to  voluntazy  conyeyances,  and  to  con- 
tracts made  to  defraud  creditors,  which,  though  void  as  to  them, 
are  good  and  bindiiig  as  between  the  immediate  parties:  Hartley 
Y.  M^AnuUy,  4  Teates,  95  [2  Am.  Dec.  396];  SeichaH  t.  Oastator, 
6  Binn.  112  [6  Am.  Dec.  402];  and  the  cases  collected  by  Hare 
and  Wallace,  in  1  Smith's  Lead.  Cas.  59,  note. 

The  husband,  were  he  the  obligor,  could  no  more  avoid  the 
contract  than  the  defendant  can.  In  KUlinger  t.  Beidenhaur,  6 
Seig.  ft  B.  635,  a  mortgage  given  to  defeat  a  wife's  right  of 
dower  was  held  fraudulent  and  Toid  as  to  that  right  and  the 
right  of  creditors;  but  the  mortgagor  could  not  set  up  the  fraud, 
which  is  irrevocable,  it  was  said,  by  him  who  commits  it  and 
those  who  claim  under  him. 

In  England  they  apply  this  principle  to  contracts  which  are 
violative  of  statute  law.  Thus,  in  Doe  v.  Boberis,  2  Bam.  &  Aid. 
967,  where  a  conveyance  was  made  to  give  the  plaintiflBs  a  col- 
orable right  to  kill  game,  the  titie  deeds  and  the  possession 
being  retained  l^  the  grantor,  the  plaintiff  was  permitted  to 
recover  in  ejectment,  on  the  principle  that  no  man  shall  be 
permitted  to  allege  his  own  fraud  to  avoid  his  own  deed.  This 
case  was  cited  and  approved  in  the  recent  case  of  PhiUpotis  v. 
PhSBpcUs^  1  Eng.  L.  k  Eq.  889,  which  was  covenant  for  arrears 
of  four  annuities,  granted  by  indenture,  on  which  the  action  was 
brought.  The  defendant  pleaded  that  the  indenture  was  fraud- 
ulently and  coUusively  made,  contraxy  to  an  act  of  parliament, 
for  the  purpose  of  multiplying  voices,  and  of  splitting  the  inter- 
est in  divers  houses  and  limds  in  order  to  enable  parties  to  vote 
in  several  counties  for  members  of  parliament,  and  under  a  secret 
trust  that  no  estate  or  interest  should  pass  beneficially  to  the 
plaintiff— a  defense,  in  this  point,  vexy  like  the  present;  but,  said 
Jervis,  0.  J.,  'Mt  is  difficult  to  distinguish  this  case  from  Doe  v. 
Bxiiberi»t  2  Bam.  &  Aid.  867,  which  shows  that  it  is  poesiUe  that 
rach  a  deed,  though  bad  as  regards  the  law  of  parliament*  may 
yet  be  binding  between  parties;  as  some  deeds  are  void  as  against 


864  Evans  v.  Drayo.  [Penn. 

• 

creditors,  though  binding  between  i]ie  parties."  And  Maule,  J.» 
in  recognizing  the  same  principle,  remarked,  pointedly:  ''It  is 
the  defendants,  and  not  the  plaintiff,  who  seek  to  set  np  the  fraud 
to  which  their  testator  has  been  a  party,  and  I  think  it  is  not  com- 
petent for  a  defendant  to  set  up  his  own  fraud."  For  further 
illustrations  of  the  principle,  I  refer  to  Howes  t.  Leader^  Cn>. 
Jac.  270;  Brookbavh  y.  BrooldHmk,  1  Eq.  Oa.  Abr.  168;  Frankiin 
y,  Thomehury^  1  Vem.  182;  Faikney  t.  Beynous,  4  Burr.  2069; 
Petrie  ▼.  Hannayy  3  T.  R.  418;  Drinkwater  v.  Drinhtoater,  4  Mass. 
854;  Church  t.  Church,  4  Teates,  280;  LesU^pies  v.  Ingraham,  5 
Pa.  St.  82. 

This  is  sufficient,  I  suppose,  to  show  that  the  principle  we 
apply  here  is  not  new,  and  that  it  stands  well  on  authority.  I 
think  it  is  equally  clear  in  reason.  Truth  and  fair  dealing  are 
rules  of  uniyersal  obligation.  Courts  of  justice  will  not  help 
parties  to  consummate  frauds,  and  when  parties  employ  legal 
instruments  of  an  obligatory  character  for  covinous  and  deceit- 
ful purposes,  it  is  sound  reason,  as  well  as  sheer  justice,  to  leave 
him  bound  who  has  bound  himself.  If  a  plaintiff  who  has  been 
party  to  a  fraud  has,  in  order  to  show  consideration,  or  for 
other  purposes  of  his  action,  to  go  beyond  the  instrument  sued 
on,  and  unravel  the  transaction  on  which  it  was  founded,  he 
can  not  have  the  assistance  of  courts,  either  of  equity  or  law;  but 
where  the  defendant  has  given  the  plaintiff  a  perfect  cause  of  action 
by  an  instrument  unimpeachable  in  itself,  courts  are  bound  to 
sustain  it,  because  they  are  not  at  liberty  to  presume  it  fraudu- 
lent, and  the  law  forbids  a  confederate  to  prove  it  fraudulent. 
The  rule  is  calculated  to  make  men  honest  in  their  dealing^,  not 
only  as  between  themselves,  but  in  respect  of  the  absent,  the 
dependent,  and  the  ignorant,  and  we  think  this  a  fitting  case  to 
which  to  apply  it.  I  do  not  say  the  rule  is  applicable  to  con- 
tracts forbidden  by  statute,  or  which  are  contra  bonos  mores. 
They  stand  on  their  own  ground,  which  it  is  not  necessary  now 
to  examine.  Nor  is  it  necessary  to  pass  upon  the  question  of 
evidence  raised  on  the  record.  We  are  of  the  opinion  that  the 
court  ought  to  have  excluded  the  defense;  or  having  admitted 
it,  ought  to  have  instructed  the  jury  that  the  plaintiff  was  en- 
titled to  recover. 

The  judgment  is  reversed,  and  a  venire  denovo  awarded. 


Tbb  PBnroiPAL  case  u  citkd  to  the  point  that  when  the  parties  are  <»  jmH 
Mkto  the  law  will  leave  them  bound  as  it  iiuda  them,  iu  BlyaUme  v.  Biftkmsp 
61  Pa.  St  374;  Ileraliey  y.  WeUitig,  60  Id.  245;  WiUiams'  Adm'x  t.  WiUimmi^ 
U  Id.  314;  Miner's  Appeals,  30  Id.  4d2;  in  Bredin*s  Appeal,  02  Id.  246,  to 


1854.]  Ydbbhellsb's  Appeal.  865 

the  point  that  obligors  in  wa  instmment  under  teal  out  not  shield  themaelTes 
by  alleging  their  own  fraud;  and  in  HendHckKm  t.  Evans^  25  Id.  444,  and 
in  MiUimore  ▼.  MiUimore^  40  Id.  156,  to  the  point  that  it  Is  no  defense  for 
one  to  set  np  his  own  fraud.  In  Ilendriekatm  t.  Sham,  supra,  counsel  at- 
tempted to  overthrow  the  doctrine  of  the  principal  case,  but  were  unitionsss 
lul,  the  conrt  affiiming  the  principle  here  maintained.  In  Lotudal^B  EstaU, 
29  Id.  415,  the  principal  case  is  cited  to  the  point  that  a  wife  has  an  interest 
in  her  husband's  chattels  during  coverture  that  may  be  defrauded,  though  it 
is  contingent.  But  Pringle  ▼.  Pringle,  60  Id.  285,  distingniiheB  the  principal 
esse  as  no  authority  against  the  liberty  of  the  husband  to  dispose  of  his  ohai- 
teb  witliont  his  wiife's  consent. 


iDiH:i:ri 


JLEB'B  Appeal. 


pA  ^MKwnLfAMU^BtAsm,  105.] 

TmuasASMR  at  Sals,  uvi>eb  Vbhdob's  Judqmsnt  iob  Pubcbasb  Morar 
of  land  held  b^  vendee  under  articles  of  agreement,  whether  he  be  the 
vendor  himself  or  a  stranger,  takes  the  whole  legal  and  equitable  estate, 
and  the  proceeds  go  to  the  vendor  to  the  extent  of  the  unpaid  purchase 
money,  without  regard  to  the  date  of  his  judgment. 

JUDGMXIIT   VOB    PUBGHASX    MOHBT    OV    LaND    SoLD    UVDBB   AbTIOLBS    Of 

AaaMEMKsn  gives  vendor  no  right  to  the  proceeds  of  a  sale  of  the  land 
under  a  judgment  against  hii  vendee,  for  the  purchaser  at  such  sale  so- 
quires  only  the  vendee's  equitable  interesty  and  holds  subject  to  the  pur- 
chase money  due  the  vendor,  whose  remedy  is  against  the  land. 

OkI  of  Two  JUIK9MEKT  PbBTOBS,  WhO  HAS  JUDOMXKT  AOAINffT  Co-DEBTOB, 

which  ii  entered  upon  the  same  day  as  the  judgment  against  both  of 
them,  can  not  claim,  as  against  his  judgment  creditor,  any  part  of  the 
proceeds  of  the  sale  of  the  land  of  his  co-debtor  under  the  judgment 
against  both  of  them;  for  though  the  liens  are  of  equal  priority  as  to  time, 
the  equity  of  the  creditor  ii  superior  to  that  of  the  debtor. 

Thib  is  an  appeal  from  the  decree  of  the  lower  court  con- 
firming an  auditor's  report  concerning  the  distribution  of  the 
proceeds  of  a  sheriff's  sale  of  the  land  of  Christian  Pack.  Bj 
articles  of  agreement,  G.  E.  Warner  and  Jacob  Painter  sold  to 
Michael  O'Neil  a  certain  lot  of  land  for  eight  hundred  and  fifty 
dollars,  to  be  paid  in  eight  years  from  the  date  of  the  agree- 
ment, whereupon  a  deed  was  to  be  made.  Shortly  before  the 
end  of  the  eight  years  O'Neil  sold  the  land  to  Christian  Pack 
for  four  thousand  dollars.  This  sale  was  also  by  articles  of 
agreement,  which  provided  that  the  last  installment  of  the 
original  purchase  price  of  eight  hundred  and  fifty  dollars  was 
to  be  paid  to  Warner  and  Painter  according  to  the  original  agree- 
ment between  them  and  O'Neil.  When  all  the  consideration 
money  was  paid  Pack  was  to  receive  a  deed.  As  part  of  the 
purchase  money,  Pack  paid  O'Neil  one  thousand  five  hundred 


866  Yibbhslleb's  Appeal.  Peon. 

dollars;  and  as  seoorily  for  a  further  part,  gaTe  him  a  judgment 
for  six  hundred  and  eighty-three  dollars  and  forty  cents,  which 
was  entered  September  8, 1862.  One  Swartz  entered  a  judg- 
ment against  Pack  for  three  hundred  dollars  on  October  7, 
1852.  Geyer  &  Baxter  entered  a  judgment  against  Pack  and 
Henry  Yierheller  for  one  thousand  and  three  dollars  and  thir- 
teen cents  on  November  2, 1852;  and  on  the  same  day  Henry 
Yierheller  entered  a  judgment  against  Pack  for  one  thousand 
four  hundred  dollars.  This  judgment  was  afterwards  assigned 
to  Philip  Yierheller,  the  appellant.  Pack's  interest  in  the 
land  was  sold  under  a  vend.  ex.  issued  upon  Oeyer  &  Baxter's 
judgment.  Philip  Yierheller  became  the  purchaser  at  the  sale 
for  the  sum  of  one  thousand  two  hundred  and  fifty  dollars,  and 
the  money  was  brought  into  court  and  an  auditor  was  appointed, 
on  motion,  to  report  upon  the  distribution  of  the  proceeds. 
His  report  was  against  allowing  any  part  of  the  proceeds  to 
O'Neills  judgment,  and  in  favor  of  Geyer  &  Baxter,  as  against 
the  judgment  in  the  hands  of  Philip  Yierheller.  Yierheller 
excepted  to  the  confirmation  of  this  report,  on  the  grounds: 
1.  That  O'Neills  judgment  should  have  been  satisfied;  2.  That 
Swartz's  judgment  should  have  been  satisfied;  8.  That  the  bal« 
ance  should  have  been  distributed  pro  rata  between  the  judg- 
ments of  Geyer  &  Baxter  and  Philip  YiexheUer* 

Shannon  and  Eogers^  for  the  appellant. 

Shaler  and  Stanion^  for  the  appellees. 

By  Court,  Liwis,  J.  Tn  Aviwaier  ▼.  MaOiiUt  9  Seig.  &  B. 
897,  and  McMuUen  ▼.  Wenner,  16  Id.  18,  it  was  held  that  judg- 
ments against  vendors  and  yendees  under  articles  of  agreement 
bind  the  interests  of  each  judgment  debtor,  and  nothing  beyond. 
So  that  on  a  sale  of  the  intei'est  of  the  vendor  on  a  judgment 
against  him,  the  purchaser  at  sheriff's  sale  takes  precisely  his 
title  subject  to  the  equitable  estate  of  the  vendee,  and  the  pro- 
ceeds of  the  sale  are  distributed  among  the  lien  creditors  of  the 
vendor  according  to  their  priority.  In  like  manner,  on  a  sale 
of  the  vendee's  interest  the  purchaser  at  sheriff's  sale  takes  the 
equitable  title  subject  to  the  payment  of  the  unpaid  purchase 
money.  The  exception  to  this  rule  is  where  the  vendor  obtains 
judgment  for  the  purchase  money,  and  sells  the  land  hj  means  of 
process  issued  upon  it.  In  such  a  case  it  has  been  held  that  he 
*'muBt  be  considered  as  selling  all  that  estate  in  the  land,, 
whatever  it  may  be,  which  he  agreed  to  sell  and  convey  to  the  de- 
fendant : "  I/yvey.  Jones,  4  Watts,  471 ;  Eovhadh  v.  JStby,  7  Pa.  St 


1864.]  YlXRHELLEBfS  APPEAL.  867 


81.  As  this  WB8  ihe  whole  l^gal  and  e^tiitaUe  esfaite,  it  neoM- 
BarOj  followed  that  the  vendor  was  entitled  to  be  paid  out  of  the 
piooeedSy  not  by  virtae  of  the  supposed  lien  of  his  judgment 
(for  it  was  immaterial  whether  this  was  prior  or  snbseqnent  to 
other  jad^iments  against  the  vendee),  bat  hj  virtue  of  his  para- 
mount title  as  owner  of  the  land.  Any  other  principle  of  dis- 
tribution would  leave  him  without  remedy  for  his  money.  It 
was  thought,  in  Wtbon  v.  8toxe,  10  Watts,  486,  and  in  Ikty  r. 
Lawrie,  5  Id.  417,  that  this  eflEeet  was  produced  only  in  cases 
where  the  vendor  himself  was  the  purchaser  at  the  shraifF's  sale. 
But  this  was  contrary  to  the  previous  decision  of  the  very  point 
in  Lave  v.  Jones,  supra,  and  is  at  variance  with  the  dodzine  of 
the  subsequent  case  of  Eorbach  v.  BUey,  supra.  Neither  the  title 
of  the  sheriff's  vendee  nor  the  course  of  distribution  can  depend 
upon  the  previous  claims  of  the  person  who  happens  to  become 
the  purchaser.  Such  an  uncertainty  with  regard  to  the  title  to 
be  obtained  at  the  sheriff's  sale  would  destroy  competition  and 
lead  to  a  great  sacrifice  of  property  to  the  injury  of  all  persons 
interested  in  the  proceedings,  except  the  vendor,  and  would  give 
him  such  unfair  advantages  over  others  as  could  not  be  tolerated. 
The  principle  must  therefore  be  considered  settled,  that  where 
the  sale  takes  place  on  the  vendor's  judgment  for  purchase 
money,  the  purchaser,  whether  he  be  the  vendor  himself,  or  a 
stranger,  takes  the  whole  legal  and  equitable  estate,  and  the 
proceeds  go  to  the  vendor  to  the  extent  of  the  unpaid  purchase 
money,  without  any  regard  whatever  to  the'  date  of  his  judg- 
ment. By  virtue  of  his  title,  he  is,  to  the  extent  of  the  unpaid 
purchase  money,  the  owner  of  the  whole  estate.  As  against  his 
claim,  there  is  no  estate  on  which  his  judgment  can  attach  itself 
as  a  lien.  The  debt  daimed  under  his  contract  of  sale  and  that 
for  which  his  judgment  is  obtained  are  one  and  the  same.  The 
lien  of  his  judgment  debt,  if  any  were  held  to  exist,  would  be  a 
lien  subject  to  a  prior  lien  for  the  same  debt.  This  would  be  an 
absurdity,  as  well  as  a  mischievous  impossibility.  That  he  can 
not  thus  separate  his  claim  for  the  purchase  money  from  his 
title  to  the  land  is  manifest  from  the  principle  that  he  may  be 
stripped  of  bpth  by  a  lien  against  himself.  A  judgment  or  a 
mortgage  against  the  vendor,  whether  prior  or  subsequent  to  the 
entry  of  his  judgment  for  the  purchase  money,  would  carry  his 
judgment  along  with  it.  A  conveyance  of  the  land  would  have 
the  same  effect. 

On  the  other  hand,  if  the-vendor's  judgment  for  the  purchase 
money  was  recognized  as  an  independent  lien  upon  the  vendee's 


368  Vierheller's  Appeal.  [Peim, 

interest,  the  purchaser's  title  at  sheiiff 's  sale  would  depend,  not 
upon  the  interest  put  up  for  sale,  but  upon  the  amount  of  pur- 
chase money  bid  at  the  sale.  If  the  purchaser  happened  to  bid 
enough  to  pay  off  the  judgment,  this  payment  would  be  a  satis- 
faction, pro  tarUo,  of  the  purchase  money,  and  if  the  judgment 
were  taken  for  the  whole,  the  sheriff's  vendee  would  take  a  clear 
title.  If  he  bought  for  less,  his  title  would  be  bound  for  the 
residue.  The  difficulties  in  the  way  of  treating  a  judgment  for 
the  purchase  money  as  an  independent  lien  on  the  equitable 
estate,  and  the  mischiefs  inevitably  flowing  from  such  a  lien, 
have  very  properly  induced  the  court  to  treat  it,  so  far  as  re- 
gards the  land  contracted  to  be  sold,  merely  as  a  remedy  for  the 
enforcement  of  the  vendor's  claims,  and  not  as  adding  anything 
to  his  rights  in  the  land.  The  remedies  are  cumulatiTe,  but  it  is 
impossible  that  the  rights  should  be  so,  where  the  vendor  had 
previously  all  of  these  that  could  exist  in  the  land:  Love  v. 
Jones,  Horbach  v.  Biley,  supra.  In  the  case  before  us  the  sale 
was  not  made  by  virtue  of  the  vendor's  judgment.  As  his  title 
can  not  be  taken  from  him  without  his  consent,  there  is  no  ground 
for  holding  that  the  purchaser  at  sheriff's  sale  acquired  it  by 
his  purchase  under  a  stranger's  judgment  against  his  vendee. 
A  judgment  is  a  lien  on  eveiy  interest  which  the  debtor  had, 
and  a  sale  under  it  can  pass  no  more.  A  sheriff's  sale  may 
discharge  liens,  but  it  can  pass  no  estates  except  those  which  the 
debtor  himself  might  dispose  of.  The  purchaser  at  sheriff's 
sale  in  this  case  took  the  interest  of  Christian  Pack  in  the  prem- 
ises, and  holds  subject  to  the  purchase  money  payable  to  O'Nei] 
and  to  Warner  and  Painter.  Their  remedy  is  against  the  land. 
The  proceeds  of  the  sale  were,  therefore,  properly  withheld  from 
them. 

From  the  fact  stated  in  the  auditor's  report,  we  regard  the 
judgment  in  favor  of  Swartz  as  extinguished  by  the  substitution 
of  another  in  lieu  of  it,  under  an  agreement  vdth  the  equitable 
owner  that  it  was  to  be  satisfied. 

Where  one  of  two  judgment  debtors  has  a  judgment  against 
the  other,  and  both  judgments  are  entered  on  tiie  same  day,  and 
the  land  of  one  is  sold  by  the  sheriff,  the  other  can  not  claim 
any  part  of  the  proceeds  against  his  own  judgment  creditor. 
The  liens  are  of  equal  prioriiy  as  to  time,  but  the  equity  of  the 
creditor  is  superior  to  that  of  the  debtor. 

Decree  affirmed. 

The  prikoipal  cask  is  citkd  in  PiUaburgh  etc  R.  B.  Co,  v.  Jcnei,  59  B%» 
Bt.  437;  Heraey  v.  TSirbeU,  27  Id.  426,  to  the  point  that » sal*  under  vendar'i 


1854.]  Stephenson  v.  Dickson.  MB 

Jndgmgpt  for  theparoha—  mongy  of  land  Boid  qndgr  Ttieie>  of  agi—iueat  oo«« 
▼eyB  the  whole  l^gal  and  equitable  eatate,  and  the  vendor  takea  hk  pnroliaaa 
money  ontof  the  proceeds  of  the  aale  before  all  othera:  Zeigkf^M  Appeal^  69  LL 
473.  In  Stephai*$  Executor^i  Appeal,  38  Id.  13,  it  ia  cited  to  the  point  that 
before  conveyance  a  vendor  haa  a  lien  by  virtne  of  the  title;  after  it,  he  haa  no 
lien,  except  it  be  by  judgment  or  mortgage.  In  DiMa  Append^  33  Id.  407» 
the  principal  eaae  ia  distinguished,  and  it  ia  thera  held  that  thongh  »  aale  by 
a  vendor  under  hia  judgment  for  the  purcfaaae  money  will  nnite  the  legal  and 
equitable  title  in  the  purchaser,  thia  will  not  happen  when  the  land  ia  aold 
by  an  administrator  of  the  vendee  under  order  of  ooiirt.  In  auoh  eaae  the 
vendor's  title  remains  undisturbed.  The  principal  caae  is  cited  in  Fiaker^g 
Appeal^  Id.  296;  BradUy  v.  O'DormOl,  32  Id.  282;  Zeigkf^a  Appeal,  69  Id. 
473,  to  the  point  that  a  sale  under  a  judgment  against  the  vendee  paasea 
only  his  interest,  leaving  the  title  of  the  vendor  unaffected.  In  8otider*a 
Appeal,  SI  Id.  502,  it  is  cited  to  the  point  that  when  money  ia  paid  tnto 
court  on  a  judgment  and  referred  to  an  auditor  for  distributiony  he  haa  juria- 
dietion  to  dadd^t  between  the  righta  of  different  olaimanta  to  the  piooeeda. 


Stephenson  v.  Dioeboh. 

[24  PanmLTAazA  Sxaxi^  148.] 

To  Fix  Lukutt  or  Ikdobsbb,  Protvst  is  UvnkoissabTi  and  whatlMr  it  la 
made  on  the  day  of  the  demand,  the  succeeding  day,  or  not  at  all,  ia  ioa- 
mnteriaL 

LiABiLiTT  or  Ikdobseb  or  Pbohissobt  Kotb  is  Fixsd  when  demand  ia 
made  upon  the  maker  at  the  place  fixed  for  payment,  upon  the  laat  day 
of  grace,  and  due  notice  of  non-payment  is  given  to  the  Indoraer. 

NoncB  TO  Indobseb  or  Pbohissobt  Noib  Datbd  the  day  after  the  da> 
mand,  and  stating  that  the  note  had  been  "  thia  day  proteated  for  non- 
payment, demand  for  payment  having  been  first  duly  made  and  pajrment 
refused,"  is  a  sufficient  notice  of  demand  and  refusal  of  payment,  and  ia 
not  calculated  to  mislead  the  indoraer  as  to  the  time  when  the  demand 
made, 

or  Demaud  and  Non-patmxnt  to  Iitdobsbb  mxtst  bi  Sbnt,  aa  a 
general  rule,  aa  early  as  the  first  mail  succeeding  the  day  of  the  demandt 

Nones  or  Dkiiand  and  Non-fatmbnt  to  Indobsbb  ia  sufficient  if  sent  by 
the  next  mail  after  the  first  mail  succeeding  the  day  of  the  demand,  if  the 
firat  mail  doaes  at  so  early  an  hour  that  it  ia  impracticable  to  forward  a 
letter  by  it.  When  the  mail  closes  at  two  or  three  o'clock  in  the  morn- 
ing, this  ia  too  early  to  render  mailing  the  notice  practicable. 

Ivdobsbb  is  Ehtitled  to  Okb  Dat  ArrsB  Hb  Rbcbivbs  Konoi  within 
which  to  tranamit  the  same  to  hia  prior  indoraer. 

Absumpsit  hj  Dickson  &  HcCljmond  against  StephensoBy  as 
indoner  of  a  note  of  Lilford,  of  -which  Stephenson  -was  the 
payee.  The  note  was  negotiated  to  Dickson  &  MoOlymondy 
who  indorsed  it  to  Williams  &  Oo.  Upon  its  maturity,  Septem- 
ber 1, 18629  it  ^c^  presented  for  payment,  and  protested  by  a 
notary  at  the  request  of  the  latter  firm.    The  notary  sent  hf 

An.  Dao.  Tol.  LXn— M 


870  Stephenson  u  Dickson.  [Pena 

mail  two  notioes  of  the  demand  for  payment  and  protest  to 
Dickson  &  McCljmond,  who  procured  one  of  them  to  be  served 
on  Stephenson  on  the  third  or  fourth  of  September.  The  party 
who  served  the  notice  said  that  he  thought  he  served  it  on  the 
third  of  September.  The  verdict  was  for  the  plaintiff,  and  the 
defendant  brought  error.  The  case  is  otherwise  sufficiently 
stated  in  the  opinion. 

Taylor,  for  the  pkintiff  in  error. 

MoOuffiUy  for  the  defendants  in  error. 

By  Court,  Enox,  J.  All  that  is  requited  to  make  absolute  the 
liability  of  an  indorsee  upon  a  promissory  note  is  that  demand 
should  be  made  upon  the  maker  at  the  place  fixed  for  payment 
upon  the  last  day  of  grace;  and  that  due  notice  should  be  given 
of  non-payment  to  the  indorser.  A  protest  is  an  unneoessaiy 
act,  and  whether  made  on  the  day  of  the  demand,  the  sucoeed- 
ing  day,  or  not  made  at  all,  is  wholly  immaterial. 

It  is  conceded  that  the  demand  for  payment  was  made  at  the 
proper  time  and  place;  but  it  is  contended  upon  behalf  of  the 
defendant  below,  and  plaintiff  in  error,  that  the  notice  was 
insufficient  to  charge  him  as  indorser:  1.  Because  it  was  calcu- 
lated to  mislead  him  as  to  the  time  when  the  demand  had  been 
made;  2.  Because  it  was  not  forwarded  to  him  in  due  time. 

The  notice  was  dated  on  the  second  day  of  September,  which 
was  the  day  after  the  demand  had  been  made.  In  it  the  indorser 
was  informed  that  the  note  had  been  ''  this  day  protested  for 
non-payment,  demand  for  payment  having  been  first  duly  made 
by  me  at  the  Bank  of  Pittsburgh,  and  payment  refused — ^the 
holder  looks  to  you  for  payment  thereof."  Had  the  notice  stated 
that  the  demand  was  made  on  the  second  day  of  September,  the 
oases  of  EUing  v.  Schuylkill  Bank,  2  Pa.  St.  365,  and  of  Bansam 
V.  Mack,  2  Hill  (N.  Y.),  688  [88  Am.  Dec.  602],  would  have  been 
in  point;  but  instead  of  this  being  so,  the  defendant  was  notified 
that  the  demand  was  ''  duly  made,"  which  was  in  accordance 
with  the  truth,  as  it  had  been  made  on  the  first  day  of  Septem- 
ber. What  was  said  in  the  notice  in  respect  to  the  protest  can 
not  vaxy  the  case,  for  it  was  a  gratuitous  act  alike  to  make  the 
protest  and  to  give  notice  thereof  to  the  indorser. 

On  the  day  succeeding  the  demand,  at  nine  o'clock  ▲.  m.,  the 
notary  deposited  in  the  mail  at  Pittsburgh  a  notice  of  non-pay- 
ment, directed  to  Dickson  &  McOlymond,  the  last  indorsers,  at 
New  Oastle,  Pennsylvania,  inclosing  a  copy  for  the  first  in« 
doner,  Jodah  Stephenson,  who  resided  at  the  same  place,  and 


1854.]  SrsFHENSON  V.  Dickson:  871 

who  receiYed  his  copy,  as  the  witness  thought,  on  the  third, 
'  bat  at  all  events  not  later  than  the  fourth,  of  September. 

It  was  in  evidence  that  at  the  time  the  notice  was  sent  there 
was  but  one  mail  a  day  between  Pittsburgh  and  New  Castle, 
which  left  the  office  between  seven  and  eight  o'clock  ▲.  m. 
The  postmaster  at  Pittsburgh  testified  that  the  mail  was  closed 
before  seven  o'clock  ▲.  m.  ;  and  the  notary  stated  that,  upon  in* 
quiring  of  the  postmaster,  he  was  inf onned  that  the  mail  for  New 
Castle  closed  at  twelve  o'clock  at  night.  Sometimes,  however, 
letters  were  placed  in  the  mail  at  two  or  three  o'clock  in  the 
morning. 

The  court  of  common  pleas  instructed  the  jury  that  if  they 
believed  the  "  testimony  of  the  notaiy  as  to  the  time  of  the 
closing  of  the  mail,  the  depositing  of  the  notice  at  nine  o'clock 
A.  M.  of  the  second  of  September  was  in  time.  But  if  the  mail 
of  the  second  did  not  close  till  seven  o'clock  a,  m.,  it  was  too 
late."  And  **  if  the  letter  containing  the  notice  axrived  in  New 
Castle  on  the  second  of  September,  service  of  the  notice  would 
do  on  the  third,  but  not  on  the  fourth;  but  if  it  did  not  arrive 
until  the  third,  service  on  the  fourth  would  be  sufficient." 

Clearly  the  plaintiff  in  error  has  no  cause  to  complain  of  this 
instruction.  True,  as  a  general  rule,  the  notice  must  be  sent 
as  early  as  the  first  mail  succeeding  the  day  of  the  demand;  but 
if  the  mail  closes  at  so  early  an  hour  that  it  is  impracticable  to 
forward  a  letter  by  it,  one  sent  by  the  next  mail  is  in  time.  As 
the  jury  have  found  that  the  mail  which  left  Pittsburgh  for 
New  Castie  between  seven  and  eight  o  clock  on  the  morning  of 
the  second  of  September  closed  as  early  as  two  or  three  o'clock 
of  the  same  morning,  it  was  not  a  practicable  thing  for  a  letter 
to  be  mailed  on  that  morning  so  as  to  go  by  that  mail;  and 
hence  it  follows  that  one  placed  in  the  office  in  time  for  the 
next  mail  was  sufficient.  Leaving  Pittsburgh  at  eight  o'clock 
on  the  morning  of  the  third,  the  letter  containing  notice  of  the 
non-payment  of  the  note  would  reach  Dickson  &  McClymond 
at  New  Castie  on  the  same  day  in  the  evening,  and  whether 
they  gave  notice  to  Stephenson  that  evening  or  the  next  morn- 
ing was  unimportant,  as  in  either  case  it  was  in  time.  An  in- 
dorser  is  entitied  to  one  day  after  he  receive  notice  to  transmit 
the  same  to  his  prior  indorser. 

The  authorities  sustaining  the  rules  laid  down  by  the  learned 
judge  who  presided  in  the  common  pleas  are  so  numerous  an4 
uniform  that  it  is  unnecessary  to  quote  them. 

Judgment  affirmed. 


372      Commonwealth  v.  Fittsbubgh  sra  R.  R  C!o.  [Peoa 

NoTiGB  or  Dishonor  ov  F^MisaoRT  Note  is  SumoiXRT  when  it  Ap- 
pears, or  can  be  reasonably  inferred  therefrom,  that  it  has  been  daly  presented 
(or  payment  and  has  been  dishonored:  SUmghUm  ▼.  Swan^  80  Am.  Deo.  006; 
and  see  B^ng  ▼.  SehMylinU  Bank,  44  Id.  205,  and  cases  dted  in  the  note207| 
and  vice  verm:  HoMom  ▼.  Maekt  88  Id.  602. 

Notice  to  Indobsxb,  whbk  should  be  Mailed:  See  Burgett  ▼.  Trea* 
land,  59  Am.  Dec.  406;  Batuom  ▼.  Mack,  38  Id.  002,  and  note  607-616;  Beel^ 
wUh  V.  Smith,  Id.  290,  and  cases  cited  in  the  note. 

What  Fixes  Liabiutt  or  Indobser:  See  Jone9  ▼.  BMnmm^  54  Am. 
Deo.  212,  and  cases  cited  in  the  note  217. 

PROTEffr  ON  Inland  Bill  is  Unnboessart:  Stratehndge  ▼•  Bobmaomt  50 
Am.  Dec  420;  see  note  to  Dupriy.  Biehard,  43  Id.  219. 


Commonwealth  v.  PrrrsBUBGH  Era  R.  IL  Co. 

f34  PamsTLTAiriA  Stats,  159.] 

Tbbm  "Irreparable  Damage,"  to  Prevent  Which  Injunction  mat 

IssTTE,  includes  wrongs  of  a  repeated  and  continuing  character,  or  which 

oooaaion  damages  which  are  estimable  only  by  conjeotnre,  and  not  by  sny 

aoonrate  standard. 
WkERE  Right  Invaded,  for  Protection  or  Which  Injunction  is  Sought 

Is  secured  by  statute  or  by  contract,  there  is  generally  no  qneatioD  of  tha 

amount  of  damage,  but  simply  of  the  right. 
No  Question  or  Damage  is  Raised  upon  Application  for  Injunotiov 

when  railway  companies  or  individuals  exceed  their  statutory  powers  ia 

dealing  with  other  people's  property,  but  simply  a  question  of  the  inva^ 

sion  of  a  right. 
Railway  Companies  must  Btand  upon  Strict  Construction  of  their 

chartered  privileges. 
Detects  or  Bill  Which  are  Amendable  are  not  available  on  motioii  for 

a  preliminary  inlunction. 


Bill  in  equity  in  the  supreme  court,  and  motion  for  a 
inary  injunction.  It  was  charged  in  the  bill  that  the  defendanta 
were  partially  filling  up  one  of  the  locks  of  the  state  canal  at 
its  outlet  at  Pittsburgh,  and  erecting  an  arch  over  the  canal  so 
as  to  entirely  obstruct  the  use  of  it.  To  prevent  this  work  an 
injunction  was  prayed.  The  allegations  of  the  bill  were  ad- 
mitted by  the  defense;  and  they  added  that  they  were  pursuing 
the  work  in  the  construction  of  their  railroad,  and  set  up  as  an 
excuse  that  the  portion  of  the  canal  where  the  work  waa  going 
on  had  never  been  of  any  valuable  use  to  the  atatea  bat  for  manj 
years  had  remained  uttwly  abandoned. 

Boplam  and  MoOandleUf  for  the  p]aintiflf> 

WUkinM,  for  the  defendant. 


1864]    Oo]ai0iiwxALTH  tx.  Futsbuboh  sra  R  R  Ck>.     378 

By  Oonrt,  Lowbb,  J.  The  boldnees  of  this  act  seems  almost 
like  a  stodied  test  of  the  Tigilanoe  of  the  canal  commissioneESy 
and  of  the  eiBcienqy  of  the  remedies  which  the  state  has  pco- 
▼ided  for  the  preventioii  of  injuries.  It  is  hoped  that  the  equity 
lemed  jy  being  somewhat  nnnsual  and  peremptory  in  its  ohaiacter, 
will  not  be  applied  to  an  act  which  doee  so  little  real  injury. 

But  writs  of  capias,  replcTin,  foreign  and  domestic  attach- 
ment,  estrepement,  prohibition,  and  habeas  corpus  are  quite  as 
efficient  and  peremptory  in  their  form,  and  most  of  them  are 
much  more  easily  obtained,  and  yet  they  are  common-law 
writs.  And  esirepement  applies  to  many  of  the  same  cases  as 
injunction,  and  may  issue  without  bail.  And  so  it  is,  or  once 
was,  with  the  prohibition:  Jacob  HaJVs  Case,  1  Mod.  76;  Bex  ▼• 
Bettertm,  5  Id.  142;  S.  C,  Skin.  626-629;  Ufor^s  Case,  11  Go. 
48;  1  Boll.  Abr.  86, 100;  Drwry  y.  Keni,  Hob.  86;  CJu^pman  r. 
Bamaby,  2  Bulst.  279;  2  Go.  InHt.  145,  299.  In  most  of  the 
eases,  moreoTer,  in  which  we  bear  this  objection  to  the  injunc- 
tion, the  common  law  allows  more  speedy  remedy,  for  it  permits 
the  injured  party  to  redress  himself  by  driying  off  the  wrong* 
doer.  It  is  conducive  to  social  order  for  gOTemment  to  furnish 
an  equiyalent  judicial  remedy. 

The  argument  that  there  is  no  "irreparaVe  damage''  would 
not  be  so  often  used  by  wrong-doers,  if  they  would  take  the 
trouble  to  obserye  that  the  word  "irreparable"  is  ayeiy  un* 
happily  chosen  one  used  in  expressing  the  rule  that  an  injunction 
may  issue  to  prevent  wrongs  of  a  repeated  and  continning 
character,  or  which  occasion  damages  which  are  estimable  only 
by  conjecture,  and  not  by  any  accurate  standard:  Storer  y.  Oreai 
WetUem  Ry  Co.,  8  Ry.  Cas.  106;  North  Union  Ry  Co,  y.  BoUon 
df  FresUm  Ry  Co.,  Id.  845;  BigbyY.  Great  Western B'y  Co., ^  Id. 
186;  Addely  y.  Dixon,  1  Sim.  &  Si  607;  Coidson  y.  Whiie,  8  Atk. 
21;  Livingston  y.  LivingsUm,  6  Johns.  Ch.  501  [10  Am.  Dec.  863]; 
Boston  Water  Power  Co.  y.  Boston  A  W.  B.  B.  Co.,  16  Pick.  625; 
Jarden  y.  Fhiladeiphia,  W.  d  B.  B.  B.  Co. ,  8  Whart.  513.  As  this 
argument  is  generally  presented,  it  seems  to  be  supposed  that 
injunctions  can  apply  only  to  very  great  injuries;  and  it  would 
follow  that  he  who  has  not  much  property  to  be  injured  can  not 
have  this  protection  for  the  little  he  has. 

Besides  this,  when  the  right  invaded  is  secured  by  statute-or 
fay  contract,  there  is  generally  no  question  of  the  amount  of 
damage,  but  simply  of  the  right.  He  who  grants  a  right  can 
not  take  it  away,  even  on  giving  a  better,  without  a  new  agree- 
ment for  the  purpose:  Dickenson  v.  Grand  Junction  Canal  Co.^ 


874      Commonwealth  v.  Pittsburou  Era  R  R  C!o.  [Fena 

19  Eng.  L.  &  Eq.  287;  Boston  Water  Power  Co.  t.  Boston  d  W. 
B,  B,  Go.^  Bupra;  Sanbin  t.  Emhisson,  4  Sim.  13;  Livingston  y. 
Mayor  etc.  of  New  York,  S  Wend.  99  [22  Am.  Deo.  622];  Barrow 
T.  Bichard,  8  Paige,  351  [35  Am.  Dec.  713];  Wmiams  v.  Wmiams, 
S  Swanst.  253.  And  such  was  our  decision  in  the  late  case  <rf 
Western  Saving  Ihind  Oo.  r.  Philadelphia,  31  Pa.  St.  175. 

And  so  it  is  when  public  rights  are  invaded.  In  the  case 
of  Attorney  General  ▼.  Cohoes  Co.,  6  Paige,  133  [29  Am.  Dec 
755],  there  was  an  offer  to  tap  the  state  canal  for  a  mill  purpose, 
and  it  was  stopped  bj  injunction,  without  any  regard  to  eTidence 
tending  to  disprove  damage.  And  in  Downing  t.  McFadden,  18 
Pa.  St.  334,  we  justified  the  keepers  of  the  public  works  in 
abating  a  house  tiiat  encroached  upon  the  embankment  of  the 
railroad,  though  a  juiy  had  found  that  it  did  no  injury.  And 
when  railway  companies  or  individuals  exceed  their  statutoiy 
powers  in  dealing  with  other  people's  property,  no  question  of 
damage  is  raised  when  an  injunction  is  applied  for;  but  simply 
one  of  the  invasion  of  a  right:  Biver  Dun  Nav.  Go,  v.  North  Mid- 
land Ry  Co.,  1  By.  Cas.  135;  Friswin  v.  Lewis,  4  Myl.  &  Cr. 
254.  And  railway  companies  will  not  be  allowed  to  exerdse 
their  discretion  capriciously:  London  d  B.  Ky  Co.  v.  Orand 
Junction  Canal  Co.,  1  By.  Cas.  238;  but  the  court  will  supervise 
their  discretion,  as  in  seeing  that  they  shall  not  take  more  land 
than  is  needed,  nor  take  lioid  merely  in  order  to  get  earth  for 
embankments:  WiM  v.  Manchester  d:  L.  Ry  Co.,  Id.  576;  S.  0., 
4  Myl.  k  Cr.  116;  and  that  they  do  not  unnecessarily  affect  a 
mill-race  by  too  small  an  arch  over  it:  Coats  y.  Clarence  Ry  Co., 
1  Buss.  &  M.  181;  Manser  v.  Northern  d  Eastern  Counties  Ry 
Co.,  2  By.  Cas.  380. 

Bailway  companies  must  stanu  upon  a  strict  construction  of 
their  chartered  privileges:  Pennsylvania  B.  B.  Co.  v.  CawA 
Commissioners,  21  Pa.  St.  22;  Oray  v.  Liverpool  db  B.  B.  B.  Co., 
9  Beav.  391;  BarreU  v.  Stockton  d  D.  Ry  Co.,  2  Man.  &  G.  134; 
Parker  v.  Oreai  Western  Ry  Co.,  7  Id.  253;  TTefeft  v.  Manchester 
d  L.  Ry  Co.,  1  By.  Cas.  576;  Begina  v.  Birmingham  d  G.  Ry 
Co.,  3  Id,  153;  Mayor  etc.  of  Liverpool  v.  Chorley  W.  W.  Co.,  21 
Eng.  L.  &  Eq.  620.  With  the  immense  powers  that  are  freely 
and  loosely  given  to  them,  this  much  restraint  is  essential  to 
the  protection  of  private  rights:  Biver  Dun  Nav.  Co.  v.  North 
Midland  Ry  Co.,  1  By.  Cas.  154;  Kemp  v.  Lofndond  B.  Ry  Co., 
Id.  504;  BeU  v.  ffuU  d  8.  Ry  Co.,lA.  636;  WM  v.  Mmchester 
d  L.  Ry  Co.,  4  Myl.  k  Cr.  120. 

If  they  step  one  inch  f^eyond  their  chartered  prxvileges  to  the 


1864.]    CoMMOinnBALTH  V.  PmsBUBOH  Era  R  R  Go.     375 

prejudice  of  otheniy  or  of  the  stockholders,  or  o£Ebr  to  do  anj 
act  without  the  prescribed  preliminaiy  steps,  they  are  liable  to 
be  enjoined,  irrespectiTe  of  the  amount  of  damage.    They  shall 
not  take  soil  or  land  without  payment  or  security:  Innocenl  t. 
North  Midland  Ry  Co.,  1  By.  Gas.  242;  Eyde  v.  Greai  Western 
B^y  Co.,  Id.  277;  Jones  y.  Oreai  Western  Ry  Co.,  Id.  684;  E»e- 
ier  S  CredUon  Ry  Co.  v.  Butter,  5  Id.  211;  nor  divide  a  planta- 
tion by  their  road,  without  making  a  good  road  or  bridge  com- 
munication between  the  parts:  Sanderson  v.  Cokermouth  S  W. 
Ry  Co.,  11  Beay.  497;  nor  evade  their  duties  or  contracts  zebk 
tive  to  stations  for  stopping:  Bi^fliy  v.  Great  Western  Ry  Co.,  4 
By.  Cas.  176;  Petre  y.  Easiem  Counties  Ry  Co.,  3  Id.  867;  Got' 
don  ▼.  CheUenham  A  Greai  IFesIsm  XJ.  Ry  Co.,  2  Id.  800;  nor 
seriously  injure  the  access  to  a  wharf  without  making  a  new 
one:  Bett  y.  Butt  d:  SeJby  Ry  Co.,  6  Mee.  A.  W.  699;  S.  0.,  2 
Ry.  Cas.  279;  1  Id.  616;  nor  injure,  divert,  and  encroach  upon 
public  or  private  roads  unless  in  case  of  clear  necessity,  and 
then  a  perfect  substitute  must  first  be  provided:  Spencer  y.  Zkm- 
don  db  B.  Ry  Co.,  1  Id.  169;  Attorney  General  v.  London  d  3. 
Ry  Co.,  Id.  283;  S.  C,  9  Sim.  78;  Eegina  v.  London  S  B.  Ry 
Co.,  Id.  317;  Attorney  General  v.  Great  Northern  Ry  Co.,  3  Eng. 
L.  Sl  Eq.  263;  and  the  dissent  of  one  out  of  many  tenants  in 
common  of  land  or  easement  will  stay  their  hand  until  compen- 
sation be  made:  Simple  v.  London  S  B.  Ry  Co.,  1  By.  Cas.  120; 
Barnard  v.  WaUis,  2  Id.  162;  S.  C,  1  Cr.  4  Ph.  85;  Durham  i 
Sunderland  Ry  Co.  v.  Wawon,  2  By.  Cas.  395;  Durham  d:  Sander- 
land  Ry  Co.  v.  Wawn,  3  Beav.  119.     Damage  or  no  damage  to 
others,  they  must  obey  their  charter,  and  that  was  our  decision 
in  the  late  case  of  Mdnderson  v.  Commercial  Bank,  2S  Pa.  St. 
379.     This  will  be  the  order,  even  if  the  plaintiff's  tide  be 
doubtful,  if  the  duty  be  plain:    Universities  of  Oxford  etc.  v. 
lUchardson,  6  Yes.  703;  Byron  v.  Jonhston,  2  Meriv.  29;  and 
they  may  be  enjoined  from  commencing  their  road  without  suffi- 
cient capital:  Blakemore  v.  Glamorganshire  Canal  Navigation  Co., 
1  Myl.  &  E.  154;  Lee  v.  MUner,  2  Mee.  &  W.  824.     Such  at 
least  is  the  practice  elsewhere,  and  it  may  be  well  for  us  to  learn 
by  the  experience  of  others. 

In  the  light  of  these  principles,  the  question  before  us  is  very 
easily  decided.  The  matter  complained  of  is  an  invasion  of  a 
public  highway,  and  it  must  be  enjoined  against.  The  defend- 
ants are  not  allowed  the  excuse  that  this  part  of  the  canal  in 
practically  abandoned;  for  no  neglect  is  chargeable  against  the 
state;  its  officers  are  insisting  on  its  rights,  and  it  is  the  merest 


S76     OoioiDSWSALTH  u  PiTxaBsaBGH  na  R  R  Oa  [Fbob. 

fliBpontetj  in  fhe  defendants  to  set  up  their  ^iews  of  tlie  need  of 
tbe  canal  against  the  state  which  thought  fit  to  make  it,  and 
against  the  pnblio  officers  who  are  intrusted  with  its  custody. 
We  set  aside  the  objections  founded  on  the  defects  of  the  bill, 
because  these,  being  all  amendable,  go  for  nothing  at  this  stage  ! 

of  the  case. 

It  is  therefore  ordered  that  an  injunction  issue  to  prohibit  the 
defendants  from  proceeding  with  the  work  complained  of  in  such 
a  manner  as  in  any  way  to  prejudice  or  interfere  with  the  zighta 
of  the  plaintiff,  and  until  the  further  order  of  the  court. 

Liwis,  C.  J.,  dissented. 


Basd  or  Bquitt  JuBODionoK  ovxa  GBAvmni  iHJUsuuumi  vo 
Tbhpass:  See  Bracken  ▼.  PrmUm^  44  Am.  Deo.  412,  and  the  cases  dtad  ia 
the  note  424. 

Ikjunotion  is  Qsantid  to  Kssnunr  CoiraTASTLT  RicnsBnTo  Tbbb- 
PA88B8:  Whitfield  ▼.  Bogen,  59  Am.  Deo.  244;  Braeien  ▼.  Plr«itof^  44  Id. 
412;  Seudder  ▼.  TntUom  DeL  F.  Oo.^  23  Id.  756;  SodOifr.  MorrU  Oamd  Oa, 
21  Id.  41.  The  prinoipel  oaae  is  eited  to  this  efieot  in  iSRtoioaH's  ^jipeoi;  50 
Pft.8t.  422. 

IV JUKOnOKS  TO  PaKVKNT  PUBUO  OB  PSITATI NUISABCB,  WHEN  GbASTEDI 

Wki^ld  ▼.  Rogers,  50  Am.  Deo.  244;  Ex  parte  Martm^  58  Id.  321;  White  t. 
Flarmigain,  54  Id.  668;  People  ▼.  (%  qfSt  Louts,  48  Id.  339;  Lyon  r.  Hwmit 
46  Id.  216. 

Ibbbpabablb  Damaos. — ^The  prinoipsl  oaae  is  dted  sad  sffinned  npon  tbs 
qnestion  of  irreparable  damage,  in  Warren  e<c  B'f  Oo,  ▼.  Cflarion  Land  Oo^ 
54  Pa.  St.  39;  Unangtt'i  Appeal,  55  Id.  138. 

Injunction  is  G&aktsd  upon  iNFRoraxxENT  ov  Statdtobt  Bight,  with« 
oat  going  into  the  question  of  (he  resulting  damages.  The  principal  cans 
is  oited  to  this  effect  in  Hunier^i  Appeal,  40  Fa.  St  198;  to  the  same  effeo* 
In  case  of  a  breach  of  contract  right,  in  Clark  ▼.  Jfarim,  49  Id.  298. 

Railway  Ck>MPANiB9  abs  Hbld  Stbiotlt  to  theoi  Obabtkbsd  Pbiti- 
LBOis.  The  principal  case  is  oited  to  this  point  in  Attorney  General  ▼.  BaU^ 
road  Companiee,  35  Wis.  541;  BaUmore  etc.  B.  B.  Co.  v.  Distriet  qf  CoUm- 
Ija,  3  MoArthnr,  134;  Veechampe  ▼.  Seeond  and  TkirdJStreet  etc  B.  B.  Co.,  t 
Phila.280. 


GASES 


SUPREME   COURT 

OF 

BHODE  ISLAND. 


EaGAJX  V.  PbOVIDENOE  &  WOBCESKEB  R.  R.   Oa 

[S  Bbobib  Imuxd,  88.] 

PujiTivi  Damages  Will  jtot  bb  Allowed,  as  AOAnnR*  Phihgipal,  tinleM 
he  participated  in  the  wrongful  act  of  hia  agent,  expreMly  or  impliedly 
aatliorizing  or  approving  it,  either  hef ore  or  after  it  wai  committed,  eo 
that  he  heoomes  paTtioep%  ertmtni«  of  hie  agent's  act.  ' 

Gasb  to  recoTer  damages  for  mjuiies  leceiTed  by  the  plaintiif 
in  being  expelled  from  the  defendants'  cars.  The  plaintiff,  after 
giying  his  ticket  to  the  conductor  in  the  first-class  car,  entered 
a  second-class  car.  In  that  car  a  ticket  was  demanded  of  him, 
and  his  statement  that  he  had  just  surrendered  his  ticket  in  the 
first-class  car  was  not  believed  by  the  officer  whose  duty  it  was 
to  collect  tickets  in  the  second-class  car.  The  plaintiff  was  then 
ejected  from  the  cars  at  the  next  stopping-place,  the  servants  of 
the  defendants  employing  force  sufficient  to  overcome  the  resist- 
ance offered  by  the  plaintiff.  The  verdict  was  for  the  plaintiff, 
but  he  appealed  upon  exceptions  to  the  instructions  given  as  to 
the  rule  of  damages.  The  charge  excepted  to  appears  in  the 
opinion. 

Blahe  and  ThursUm^  for  the  plaintiff. 

Pnyne^  for  the  defendants. 

By  Court,  Bratton,  J.  The  plaintiff  in  this  case  moves  that 
the  verdict  rendered  by  the  jury  be  set  aside  and  a  new  trial 
granted,  because  the  judge  at  the  trial  instructed  the  juiy  "  that 
if  the  acts  of  the  agent  of  the  defendants  complained  of  by  the 
plaintiff  in  his  declaration  were  done  and  committed  l^  said 
agent  in  tbe  line  of  his  duty,  and  within  the  scope  of  his  au- 


878  HaOAN  v.  PlU>VIDENGE  ETC.  R  R  C!o.  [R  I. 

thoriiy  and  coarse  of  employment,  still  the  defendants  might 
not  be  liable  to  the  some  extent  as  the  agent  would  be  pemon- 
aUy  liable." 

The  exceptions  to  the  change  of  the  court  are  not  yeiy  clearly 
stated  in  the  plaintiff's  motion,  nor  is  it  made  to  appear  in  fihe 
exceptions  filed,  as  it  always  should  be,  what  was  tiie  distinct 
charge  given  by  the  court  to  the  jury  to  which  exception  is 
made.  We  understand,  however,  that  the  evidence  In  the  case 
was  not  such  as  to  show  any  participation  of  the  principal  in 
the  wrongful  act  of  the  agent;  and  that  the  jury  were  instructed 
that  punitive  or  vindictive  damages,  or  smart-money,  were  not 
to  be  allowed,  as  against  the  principal,  unless  the  principal  par- 
ticipated in  the  wrongful  act  of  the  agent,  expressly  or  im- 
pliedly, by  his  conduct,  authorizing  it,  or  approving  it,  either 
before  or  after  it  was  committed.  And  that  they  were  in- 
structed that  all  damages  for  actual  injury — ^loss  of  time,  pain 
of  body — ^money  paid  for  employment  of  physician,  or  injury  to 
the  feelings  of  the  defendant,  might  be  allowed. 

We  think  the  charge  was  right.  Whatever  may  be  the  rule  of 
damages  in  cases  of  a  direct  prosecution  against  the  wrongs- 
doer,  we  think  there  can  be  no  doubt  of  the  soundness  of  the 
ruling  of  the  judge  at  the  trial,  as  applicable  to  a  case  like  the 
one  in  question,  where  a  principal  is  sought  to  be  made 
for  the  act  of  his  servant  or  agent. 

In  cases  where  punitive  or  exemplaiy  damages  have  been 
sessed,  it  has  been  done  upon  evidence  of  such  willfulnesB^ 
recklessness,  or  wickedness  on  the  part  of  the  party  at  fault  as 
amounted  to  criminality,  which  for  the  good  of  society  and 
warning  to  the  individual  ought  to  be  punished.  If  in  such 
cases,  or  in  any  case  of  a  civil  nature,  it  is  the  policy  of  the 
law  to  visit  upon  the  offender  such  exemplaiy  damages  as  will 
operate  as  punishment  and  teach  the  lesson  of  caution  to  pre- 
vent a  repetition  of  criminality;  yet  we  do  not  see  how  such 
damages  can  be  allowed,  where  the  principal  is  prosecuted  for 
the  tortious  act  of  his  servant,  unless  there  is  proof  in  flie  cause 
to  implicate  the  principal  and  make  him  pariiceps  criminia  of 
bis  agent's  act.  No  man  should  be  punished  for  that  of  which 
he  is  not  guilty. 

Cases  may  arise  in  which  the  principal  is  deeply  involved  in 
the  servant's  guilt  or  fault— cases  in  which  the  conduct  of  the 
principal  in  reference  to  the  act  of  his  agent  is  such  as  to 
amount  to  a  ratification.  In  all  such  cases  the  principal  is 
partioeps  critniniBt  if  not  the  principal  offender;  and  whatever 


Sept.  1854.]  Hagak  v.  Providence  etc.  R.  R  Oa  379 

damages  xniglit  properly  be  Tisited  upon  him  who  commits  ihe 
act  might  be  very  properly  inflicted  upon  one*  who  thus  crimi- 
nally participates  in  it. 

But  where  the  proof  does  not  implicate  the  principal,  and 
however  wicked  the  servant  may  have  been  the  principal  neither 
expressly  nor  impliedly  authorizes  or  ratifies  the  act,  and  the 
criminality  of  it  is  as  much  against  him  as  against  any  other 
member  of  society,  we  think  it  is  quite  enough  that  he  shall  be 
liable  in  compensatory  damages  for  the  injury  sustained  in 
eonsequenoe  of  the  wrongful  aot  of  a  person  acting  as  his  ser- 
vant. • 

Motion  for  new  trial  refused. 

BxxMFiABT  Damaois,  LusnjTT  OF  Pbhtoifal  OB  Mabibb  nr,  iob  Act 
OF  Aavrr  ob  Sxbvaht. — ^Exemplary  damages  ajre,  in  geaeral,  reooverabla 
when  an  act  is  not  only  tortious,  but  also  fraudulent,  malicions,  wanton,  will- 
fal,  mischievous,  insulting,  grossly  negligent,  or  acoompained  with  some  other 
quality  of  a  liko  kind  which  makes  the  act  at  least  qwui  criminal.  In  some 
states  exemplary  damages  may  be  recovered  for  acts  punishable  criminallys 
See  note  to  Austin  v.  WiUon,  50  Am.  Deo.  l^-TI^*  As  between  principal 
and  agent  and  master  and  servant,  however,  there  is  considerable  authority 
for  the  proposition  that  the  principal  or  master  is  never  liable  for  the  willfnl, 
wanton,  or  malicions  act  of  the  agent  or  servant,  since  such  an  act  will  of  neoea- 
atty  be  beyond  the  scope  of  the  agent's  or  servant's  authority:  See  Riehmand 
Titmjpike  Go.  v.  VanderbiU,  1  HiU,  480;  Mali  v.  Lwd,  39  N.  T.  381;  WrigJU 
V.  WUcox,  19  Wend.  343;  see  Penngylvania  Co,  v.  Toomqf,  91  Fa.  St  256; 
Redfield  on  Railways,  508,  note;  and  note  to  Ware  v.  Baralaria  Jt  L,  Carnal 
Co.f  35  Am.  Dec.  192  et  seq.  Cases  holding  to  this  effect  are  based  upon  the 
leading  case  of  McManus  v.  CrieheUy  1  East,  106,*  which  declared  that  the  mas« 
ier  was  not  liable  in  trespass  for  the  willful  act  of  his  servant.  This  esse  may, 
however,  be  shown  not  to  be  authority  to  the  eff'ect  that  the  servant's  motive  or 
intention  exercises  a  controlling  influence  over  the  master's  liability:  Wood's 
Master  and  Servant,  sec  303;  Redfield  on  Railways,  606  note;  see  note  to  Wam 
T.  Barataria  A  L,  Carnal  Co.,  35  Am.  Deo.  198  et  seq.  And  the  better  au- 
thority now  is,  that  no  matter  what  the  motive  of  the  servant  may  be,  if  he  is 
acting  in  the  course  of  his  employment  and  in  furtherance  of  his  master's 
business,  and  commits  a  tortious  act,  the  master  will  be  liable  for  the  wrong 
done,  at  least  for  the  actual  damages:  See  note  to  Wart  v.  Baraiaria  A  L,  Canal 
Co.9  Id.  198;  1  Sutherland  on  Damages,  752;  Philadelphia  etc.  R.  R.  Co,  v. 
Derby,  14  How.  468;  Hofwe  v.  Neunnarch,  12  Allen,  49;  Borden  v.  Fekh,  109 
Mass.  154;  Levi  v.  Brooks,  121  Id.  501;  Wallace  v.  Merrimack  etc.  Co.,  134 
Id.  95;  S.  C,  15  Bep.  372;  Weed  v.  Pdnama  B.  Co.,  17  K.  Y.  362;  Pennsyl- 
wemia  B.  B.  Co.  v.  rotufioer,  42  Fk.  St.  365;  Pauenger  B.  B.  Co.  v.  Toung,  21 
Ohio  St.  518, 524, 526.  In  the  last  case  it  is  said  that  the  willfulness  or  wrong- 
fnl  motive  of  the  servant  is  not  to  excuse  the  master  per  se.  In  Crqfi  v.  AH- 
son,  4  Bam.  &  Aid.  690,  it  is  held  that  where  a  servant  wantonly,  and  not  in 
order  to  execute  his  master's  orders*  strikes  another's  horses,  and  thereby  pro- 
duces an  aocident,  the  master  is  not  liable;  but  where,  in  the  course  of  his 
employment,  he  so  strikes,  though  injndioionsly,  the  master  is  liable.  So  fof 
a  wrongful  ejection  from  an  omnibos,  the  naster  will  be  liable:  Seifmomr  v. 
OiwmsoMl,  6  H.  &  N.  869. 


880  Hagan  t;.  Providence  Era  R  R  Oa  \K  L 

The  effiMt,  howerer,  of  the  doetrine  of  wfllf nln«H  and  wuttonneHy  as  affeH- 
lag  tliA  qoMtioii  wheUier  an  act  k  wlthixi  the  aoope  of  the  ageDt'a  authority, 
b  aeen  in  the  case  of  I§aae$  ▼.  Third  Avenue  IPy,  47  N.  Y.  122,  where  the 
co&daotor  of  a  street-raUroad  oar,  having  thrown  from  the  platform  a  lady 
who  desired  to  alight,  hot  who  ref  osed  to  do  so  nntil  the  car  had  come  to  a 
full  stop,  this  wss  held  to  be  a  wanton,  willfal  trespasa,  without  the  scope  of 
his  anthority ,  and  the  company  therefore  were  held  not  UaMe.  But  latar  cases 
in  this  state  seem  to  have  overthrown  thb  doctrine:  See  note  to  ITore  t.  Aor- 
oUuria  di  L.  Canal  Co.^  35  Am.  Dec  200,  201.  In  Bannde  v.  Deiawan  etc  B. 
J?.  Co.,  5  Thomp.  &  C.  475;  SchnUse  v.  Third  Atfenne  H.  B,  Cb.,  46  N.  Y. 
Super.  Ct.  211,  it  is  held  that  a  railroad  company  will  be  liable  in  com] 
tory  damages  when  the  conductor  or  other  employee  pushes  or  throws  » 
lengpr  or  trespasser  from  the  train  while  it  is  in  motion,  adding  the  proriao^ 
if  the  employee  acts  neither  willfully  and  malidonsly,  nor  with  »  riew  to 
efifect  some  purpose  of  his  own.  But  in  Eqffman  v.  New  York  Central  etc*  B, 
B.  Co.,  Id.  526;  S.  0.,  affirmed  on  appeal,  87  N.  Y.  25;  S.  C,  41  Am.  Bep. 
837,  it  is  held  that  removing  a  trespasser  from  the  plattorm  of  a  car  is  within 
the  scope  of  the  employment  of  a  conductor  or  brakemen,  whether  expreasty 
authorised  or  not,  and  if  he  acts  ill^^ly  or  recklessly  in  performing  this  dniy, 
the  company  is  liable.  The  willfulness  of  the  act  can  not  determine  whether 
it  is  within  the  scope  of  the  authority  granted,  for  the  servant  may  disobey 
or  deviate  from  the  express  orders  of  his  master  and  yet  his  act  be  within 
the  scope  of  his  authority:  Philadelphia  etc,  B,  B.  Co.  v.  Derfty,  14  How.  468; 
Higgma  v.  Watervliet  T.  Co.,  46  N.  Y.  231;  Cosgrove  v.  Ogden,  49  K.  Y.  266; 
see  note  to  Ware  v.  Barataria  ^  L.  Canal  Co.,  35  Am.  Dec  108.  Still,  in  a 
case  where  the  evidence  showed  that  the  defendant  acted  with  due  care  and 
prudence,  and  that  had  his  directions  to  his  workmen  been  followed  the  injury 
would  not  have  occurred,  it  was  error  to  instruct  that  exemplary  damages 
might  be  given:  Morford  v.  Woodtoorth,  7  Ind.  83. 

Granting  that  a  master  or  principal  is  liable  for  wHlful,  malicions,  or  insnlt- 
Ing  acts  of  his  servant  or  agent  if  they  are  performed  within  the  scope  of  his 
authority,  or  that  the  superior  may  become  responsible  for  such  acts  of  his 
representative,  will  he  be  liable  in  exemplary  damages  for  such  acts,  and 
when  ?  This  question  we  purpose  discussing  in  this  note  Three  classes  of 
cases  are  found:  1.  Those  holding  that  the  superior  is  never  liable  for  acts 
such  as  are  the  basis  of  exemplary  damages.  These  canes  we  have  j ust  noticed, 
and  found  the  manifest  weight  of  authority  in  favor  of  holding  the  master 
responsible  to  some  extent  whenever  the  act  is  either  expressly  or  impliedly 
authorized,  within  the  scope  of  the  agent's  or  servant's  authority,  irrespective 
of  the  motive  or  attendant  circumstances  which  surround  the  d^d.  2.  Those 
cases  holding  that  the  superior,  master,  or  principal,  especially  when  a  oor- 
poration,  and  more  especially  when  a  railroad  corporation,  is  liable  in  exem* 
plary  damages  for  all  acts  of  his  servants  or  agents  within  the  scope  of  tho 
employment  which  are  of  the  character  of  those  for  which  exemplaiy  dnoi- 
ages  are  granted,  when  the  immediate  wrong-doer  is  sued;  and  that  the  sups* 
rior  is  so  liable,  whether  or  not  he  previously  expressly  authorised  or  subas* 
quently  ratified  the  act.  3.  Those  holding  that  the  superior  is  liable  in 
compensatory  damages  for  all  acts  of  the  servant  or  agent  within  the  scope  ol 
the  employment,  whether  malicious,  willful,  etc,  or  not,  and  in  exemplary 
damages,  whenever  he  has  previously  authorised  or  subsequently  ratified  an 
aol  for  which  such  damages  would  be  awarded,  had  he  himself  committed  it. 

LiASiUTT  or  CoBPORATioKS.— Most  of  the  cases  which  have  been  deeidsd 
upon  the  liability  of  a  master  in  exemplary  damages  for  his  servant's  aot 


Sept  1864.]  Hagah  v.  VBorwmcK  na  R  R  Ckx  881 


been  oMes  where  *  oorponitioii  oocn^ed  tlie  rebtkm  of  matter.  BmoBdenlA 
nifty  have  been  originally  felt  aa  to  the  liability  of  the  corporation  for  other 
than  negligent  acta.  Bat  it  ianow  well  acttled  that  a  cofpomtion  iaaa  mepoa- 
nUe  aa  an  indi^idnal  for  the  wranga  it  oommita:  AUxemder  t.  J2e{/%^  74  Mow 
495;  and  ia  liable  for  the  wiUfol  or  wanton  torta  of  its  agenta  or  aerranta  to 
the  aame  extent  aa  a  natural  peraon:  LatnmtUle  ete.  J?.  B.  Co,  t.  Makimfff  7 
Boah,  235;  SherUi^  t.  StOiiip^  8  Id.  147;  Tohdo  tU,  R.  B.  Co.  r.  Hmrmom. 
47  HL  298;  Ckkago  tie,  B.  B.  Co.  t.  IHdtmm,  83  Id.  161;  Chicago  He,  B.  B. 
Co.  T.  Fiexmam^  9  lU.  App.  290;  American  Eseprtm  Co.  t.  PaUermm^  78  Ind. 
430,434;  GoddardY.  Grand  TnnkB'y,  67 Uo. 202^  223;  Moorer.FUMwg 
B.  B.  Co.^  4  Gray,  465;  Coleman  v.  If.  T.  SN.  E.  B.  B\  Co.,  108  Masa.  180| 
Panenger  B.  B.  Co.  t.  Tomng,  21  Ohio  St.  518,  524-5;  Pennw^vania  B.  B. 
Co.  V.  Vamdwer,  42  Pa.  St.  365.  In  fact,  aa  oorporatlona  act  only  throng 
their  offioeta  and  agenta,  and  are  preaent  in  their  peraon,  the  corporation  itaalf 
oiay  be  aaid  to  commit  the  tort  which  ia  actoally  committed  at  the  handa  of 
■ome  individoal  employee:  SeeBedfieldonBailway8,508et8eq.;  Ooddardr» 
Orand  Tnmk  H'y,  67  Me.  202,  228.  So  corporationa  are  not  exempt  tnm 
pnnitory  damagea  in  a  proper  caae,  hot  are  liable  like  a  natural  peraon:  Bittgef 
MJg.  Co.  ▼.  Hoteffodt,  88  III.  459;  Perkim  v.  J/wmwH  eie.  B.  B.  Co.,  55  Mow 
201;  Trwfen  v.  JTanaoa  Padjic  B'y,  83  Id.  421;  CaldweU  v.  New  Jersey  etc. 
Co.,  47  N.  T.  282;  Htdey  t.  MclOe  etc.  B.  A  Co.,  7  Baxt.  239.  In  fact,  aa 
we  ahall  aee,  there  ia  coneiderable  authority  in  favor  of  a  greater  liability  for 
exemplary  damagea  In  the  caae  of  corporationa  than  in  the  case  of  natnral 
persona,  when  it  ii  aonght  to  hold  them  liable  for  an  employee'a  act. 

AuTHOBirm  Holdivo  Mastbb  or  Principal  Lubls  ik  Ezsmplabt 
Damaqxs,  whkthxr  Servant's  or  Agent's  Act  Authorizxd  or  Batitixd  ob 
NOT. — ^In  many  states  it  is  held  that  when  the  act  of  the  agent  or  servant  ia 
wQlfiil,  malidoos,  grossly  negligent,  etc.,  but  still  within  the  scope  of  his  an* 
thority,  the  snperior  will  be  liable  in  exemplary  damagea  (or  in  those  statea 
where  Booh  damages  are  not  allowed,  the  willfulness  or  wantonness  of  the  act 
will  enhance  the  damages),  the  same  aa  if  he  had  committed  the  act  himself,  and 
although  the  act  waa  not  otberwise  authorized  than  by  the  general  authority 
of  the  agent  or  aervant,  and  was  not  subsequently  ratified :  Qatway  v.  AiUaUa 
tie.  B.  B.  Co.,  68  Ckt.  216;  Chicago  v.  Parks,  18  III  460;  lUinoiB  Central  B. 
R.  Co.  ▼.  Hammer,  72  Id.  353;  Wahash  etc.  B*y  Co.  v.  Beetor,  104  Id.  298| 
JeffereonviUe  B.  B.  Co.  v.  Boger$,  38  Ind.  116;  S.  C,  10  Am.  Rep.  103;  Amer* 
iean  Bxpreu  Co.  v.  PaJUeraon,  73  Ind.  430,  434;  JacoM  AdmW  v.  LouievilU 
etc  B.  B.  Co.,  10  Bush,  263;  LouieviOe  etc.  B.  B.  v.  Smith,  2  Duval,  556| 
Anoter  ▼.  Lane,  3  Mete.  (Ky.)  311;  Goddard  v.  Grand  Trunk  B*y,  57  Me.  202, 
223;  HtmBon  v.  Ewropean  A  N.  A.  B.  B.  Co,,  62  Id.  84;  Havcee  v.  KnowUe^ 
114  Maaa.  618;  Leei  v.  Brooks,  121  Id.  601;  BaUhnare  etc.  B.  B.  Co.  v.  Blocker^ 
27  Md.  277;  Baltimore  etc.  B.  B.  Co.  v.  Boone,  46  Id.  344;  VickOmrg  etc.  B.  B, 
Co.  V.  Pulton,  31  Miss.  156;  New  Orleans  etc  B.  B.  Co.  v.  Hurst,  36  Id.  660i 
New  Orleans  etc  B.  B.  Co.  v.  BaiUey,  40  Id.  395;  New  Orleans  etc  B.  B.  Co, 
V.  Burke,  53  Id.  200;  Chicago  etc  B.  B.  Co.  v.  Seurr,  59  Id.  456;  Quigley  t. 
Central  PaxSfie  B.  B.  Co.,  11  Nev.  364. 365;  Hopkins  v.  Atlantic  etc  B.  B.  Co.^ 
86K.  H.  9;  JSeUnop  t.  Boston  di  Maine  B.  B.,  49  Id.  358;  Atlantie  di  Greai 
Wettem  Co.  t.  Dunn,  19  Ohio  St.  162;  NashvUU  etc  B.  B.  Co.  v.  Stames,  9 
Heisk.  62;  LauisvUle  eU.  B.  B.  Co.  v.  OarreU,  8  Lea,  438;  S.  C,  41  Am.  Bep. 
MO;  Allen  r.  Camden  etc  Ferry  Co.,  30  Alb.  L.  J.  476;  see  Bedfield  on 
Baflways,  508  et  acq.  Still,  if  the  servant  be  discharged  aa  soon  as  his  tor* 
tioos  act  ia  known,  thia  may  go  in  mitigation  of  damagea:  Ocwway  v.  Atlantm 
dc  B.  B.  G».«  68  Oa.  216.    In  moat  of  theae  casea  the  aoperior  ii  a  corpora- 


1 


888  Haqan  v.  Providsncb  etc.  R  R  Co  [R  I 

Hon,  geneially  *  railroad  corporation,  and  many  of  them  make  a  diatinotioa 
between  the  case  where  the  superior  is  a  natoral  person  and  where  a  oorpora- 
tioii  occupies  that  relation,  visiting  upon  the  corporation  a  severer  liabilitj 
Ihan  that  which  might  attach  to  the  natural  person.  These  authorities  would 
perhaps  admit  that  in  the  case  of  a  natural  person  the  superior  should  not  be 
held  liable  beyond  compensatory  or  actual  damsges  for  any  act  of  the  servant 
or  agent,  of  whatever  nature;  that  the  agent's  motive  or  the  aggravating  dr* 
eumstances  should  not  be  allowed  to  enhance  the  damages  or  furnish  a  ground 
for  awarding  exemplary  damages,  except  when  the  superior  has  oxpreasly 
authorized  such  an  act  on  the  part  of  his  representative,  or  has  subsequently, 
impliedly  or  coustmctively,  ratified  it.  But  the  case  of  corporations,  and 
especially  of  railroad  corporations,  is  different.  A  corporation  acting  only  by 
means  of  its  agents  may  be  looked  upon  as  practically  directly  responaible 
for  the  aggravating  conduct  of  its  agents.  And  it  is  also  urged,  on  the  ground 
of  expediency,  that  railroad  corporations  and  those  of  a  public  nature  should 
be  mulcted  in  exemplary  damages  in  a  proper  case,  so  that  they  may  exert 
even  greater  care  in  the  selection  of  their  servants  within  whose  power  and 
discretion  the  publio  are  placed. 

Ooddard  v.  Grand  Trunk  R*y,  67  Me.  202,  is  a  case  often  cited  by  author- 
ities taking  the  foregoing  view.  In  that  case  it  was  said,  per  Walton,  J. ,  pp. 
223,  224:  **  We  confess  that  it  seems  to  us  that  there  Is  no  class  of  cases 
where  the  doctrine  of  exemplary  damages  can  be  more  beneficially  applied 
than  to  railroad  corporations  in  their  capacity  of  conuion  carriers  of  paasen* 
gers;  and  it  might  as  well  not  be  applied  to  them  at  all  as  to  limit  its  i^pti- 
cation  to  cases  where  the  servant  is  directly  or  i^ipliedly  commanded  by  the 
corporation  to  maltreat  and  insult  a  passenger,  or  to  cases  where  such  an  act 
is  directly  or  impliedly  ratified;  for  no  such  cases  will  ever  occur.  A  corpo- 
ration ia  an  imaginary  being.  It  has  no  mind  but  the  mind  of  its  servants! 
it  has  no  voice  but  the  voice  of  its  servants;  and  it  has  no  hands  with  which 
to  act  but  the  hands  of  its  servants.  AU  its  schemes  of  mischief  as  well  as 
its  schemes  of  public  enterprise  are  conceived  by  human  minds  and  executed 
by  human  hands;  and  these  minds  and  hands  are  its  servants'  minds  and  hands. 
All  attempts,  therefore,  to  distinguish  between  the  guilt  of  the  servant  and  the 
guilt  of  the  corporation,  or  the  malice  of  the  servant  and  the  malice  of  the  cor- 
poration, or  the  punishment  of  the  servant  and  the  punishment  of  the  corpo- 
ration, is  sheer  nonsense,  and  only  tends  to  confuse  the  mind  and  confound  the 
judgment.  Neither  guilt,  malice,  nor  suffering  \a  predicable  of  this  ideal  exist- 
ence called  a  corporation.  And  yet,  under  cover  of  its  name  and  authority 
there  is,  in  fact,  as  much  wickedness,  and  as  much  that  is  deserving  of  punish- 
ment, as  can  be  found  anywhere  else.  And  since  these  ideal  existences  oan 
neither  be  hung,  imprisoned,  whipped,  or  put  in  the  stocks — since,  in  fact,  no 
corrective  infiuence  can  be  brought  to  bear  upon  them  except  that  of  peouni« 
ary  loss — ^it  does  seem  to  us  that  the  doctrine  of  exemplary  damages  is  more 
bcmeficial  in  its  application  to  them  than  in  its  application  to  natural  personsL 
If  those  who  are  in  the  habit  of  thinking  that  it  is  a  terrible  hardship  to  pun- 
ish an  innocent  corporation  for  the  wickedness  of  its  agents  and  servants  will 
for  a  moment  reflect  upon  the  absurdity  of  their  own  thoughts,  their  anxiety 
will  be  cured.  CSareful  engineen  can  be  selected  who  will  not  run  their 
trains  into  open  draws;  and  careful  baggagemen  oan  be  secured  who  will 
not  handle  and  smash  trunks  and  bandboxes  as  Is  now  the  universal  cnstomi 
and  conducton  and  brakemen  can  be  had  who  will  not  assault  and  insult  pas* 
sengers;  and  If  the  courts  will  only  let  the  verdicts  of  upright  and  intelligenft 
Juries  alone,  and  let  the  doctrine  of  exemplary  damages  have  its  legitimate 


Sept  1854.]  Haoan  v.  Provibencs  etc.  R  R  Co  383 

inflnenoey  we  predict  these  great  and  growing  eyiU  will  be  rerj  much  lee- 
aened,  if  not  entirely  eared.  There  ii  bat  one  valnerable  point  about  theee 
ideal  eziatenoea  called  corporations;  and  that  is  the  pocket  of  the  moneyed 
power  that  is  concealed  behind  them,  and  if  that  is  reached,  they  will  wince. 
When  it  is  thoroaghly  onderstood  that  it  is  not  pn^taUe  to  employ  carelesa 
and  indifferent  agente,  or  reckless  and  insolTent  senrants,  better  men  will 
take  their  places,  and  not  before."  Yet  this  was  a  case  where  there  was 
really  a  ratificatien  of  the  act  complained  of.  A  brakeman  employed  on  a  rail- 
way passenger  train  assanlted  and  grossly  insalted  a  passenger  thereon,  and 
the  company  retained  the  servant  in  their  senrioe  after  his  misconduct  was 
known;  and  it  was  held  that  the  company  was  liable  for  exemplary  damages. 
Retention  of  the  servant  in  the  employment  under  such  circumstances  is,  as 
will  appear  farther  on,  evidence  of  a  ratification  of  the  servant's  acts.  Still 
the  undoubted  authority  of  the  cases  above  cited  is  that  the  coipomtion  is 
responsible  without  special  authorization  or  any  ratification.  Some  anthori- 
ties  say  that  a  railroad  company  is  responsible  for  exemplary  damages  for  the 
act  of  a  servant  or  agent  within  the  scope  of  his  authority  whenever  the  ser- 
▼ant  would  haye  been  so  responsible  if  sued  as  principal:  QaMwajf  v,  AtlaiUa 
tie,  B,  R,  Co,,  68  €hk  216;  others,  that  a  corporation  is  liable  to  exemplary 
damages  for  tortious  acts  of  its  agents  or  servants  within  the  scope  of  their 
authority  in  all  cases  where  natural  persons  acting  for  themselves,  if  guilty  of 
like  tortious  acts,  would  be  liable  to  such  damages:  Atlantic  S  Oreat  WuU 
era  Co.  T.  Dwm,  19  Ohio  St.  162;  and  in  New  Orleans  etc.  B.  B,  Co.  v.  Bai- 
ley, 40  Miss.  305,  it  is  said  in  general  terms  that  a  principal  is  liable  to  the  same 
extent  as  if  he  were  the  wrong-doer  in  a  case  where  the  agent  acts  within  the 
■cope  of  his  authority;  but  the  principal  in  that  case  was  a  railroad  company. 
A  distinction  is  maintained  by  some  authorities  in  the  case  of  street-rail- 
itiad  companies,  which  are  held  liable  only  for  the  negligence  or  incapacity  of 
tiieir  employees,  not  for  their  willful  or  malicious  trespasses:  See  McKeon  t. 
CitisoM*  B.  Co,  42  Mo.  79;  LouUvUU  etc  B.  B.  v.  SmUh,  2  Duval,  666. 

BxamjUs  of  AcU  mthin  Scope. — ^An  assault  committted  by  a  conductor  oi 
bzakeman  upon  a  passenger  will  subject  the  company  to  punitiTe  damages 
without  any  other  authority  or  ratification  than  that  of  employing  such  a 
servant,  and  investing  him  with  power  and  discretion  over  the  public:  Hanmm 
T.  ^ropeofi  As  N.A.B.B.  Co.,  62  Me.  84;  Chicago  ele.  B.  B.  Co.  v.  Flexman, 
9  111.  App.  250.  So  in  Sherley  v.  Billings,  8  Bush,  147,  where  a  passenger 
was  assaulted  by  an  employee  of  the  owners  of  a  steamboat,  the  company 
were  liable.  And  in  awarding  compensatory  damages  the  jury  were  allowed 
to  consider  the  mental  sufferings  of  the  plaintiff.  So  where  there  has  been  a 
malioioas,  wanton,  and  wrongful  expulsion  of  a  passenger  from  a  railway 
train  by  the  conductor,  it  will  warrant  the  recoveiy  of  exemplary  damages, 
or  compensation  for  injury  to  feelings:  Jeffenonville  B,  B.  Co,  v.  Bogers,  88 
Ind.  116;  S.  C,  10  Am.  Bep.  103;  Louisville  tU.  B.  B.  Co.  v.  QatrtU,  8  Lea, 
438;  8. 0.,  41  Am.  Bep.  640;  AUen  v.  Camden  eU.  Ferry  Co.,  30  Alb.  L.  J.  476. 
Bet  in  case  of  a  wrongful  ejection,  if  no  more  force  is  used  than  is  necessary  for 
that  purpose,  compensatory  damages  only  can  be  recovered:  Quigley  v.  Cen- 
irtd  Padifi^  B.  B.  Co.,  11  Nev.  364,  365.  And  if  the  ejection  is  rightful,  no 
damages  at  all  oould  be  recovered  in  such  a  case:  Parker  v.  Long  Island  B» 
B.  Co.,  13  Hun,  319.  It  is  the  duty  of  a  conductor  to  protect  his  passengers 
from  injury  and  insult,  and  If  there  has  been  a  willful  refusal  or  failure  to 
Interpose,  the  company  will  be  liable  for  exemplary  damages:  New  (Means 
Mc  B.  B.  Co,  T.  Bwrhs^  53  Miss.  200.  So  where  property  is  dettn^yed  by  the 
negUgenoe  or  willful  and  wanton  misohlef  of  the  company's  agsatit 


884  Haoan  v.  Pbovidi&ncs  sra  R.  K  Oo.  [R  L 

Vichburg  etc  B.  R,  Oo,  t.  PcUUm,  31  Id.  156.    For  false  impriiooiiMnA^  es^ 

•mplary  damages  were  awarded  in  American  Exprtm  Oo,  ▼.  PaUermm^  73 
Ind.  430,  434.    Bat  see  Oalveston  eie,  B^y  Oo,  ▼.  Danahoe,  66  Tex.  162. 

Tartioua  Act  mu9i  be  WcaUon^  WUl/nl,  etc,  and  within  Scope  of  A^UhoirH^. 
That  the  act  must  be  wanton,  wilUiil,  eto.,  b  necessary  as  the  Tery  basis  of 
awarding  exemplary  damages  in  any  case.  "  So  this  mast  be  tnxe  in  this  case, 
and  the  act  mast  be  within  the  agent's  authority.  It  mast  be  within  the 
scope  of  his  aathority,  and  willful  or  wanton: "  Tdtedo  etc.  R,  B.  Co.  v.  Har- 
mon,  47  HI.  298;  Chicago  etc  B,  B,  Co.  v.  Diehaon,  63  Id.  151;  JefersonpiiU  B. 
R.  Co.  y.  Rogere,  38  Ind.  116;  S.  O.,  10  Am.  Rep.  103.  There  must  be  wanton- 
ness or  mischief  causing  additional  bodily  or  mental  damage:  JTawe^v.  KwnoU^t 
114  Mass.  518;  see  Leri  y.  Brooke,  121  Id.  501;  force  or  malice:  Baltimore  etc 
B.  B.  Go.  V.  Blocher,  27  Md.  277;  Baltimore  etc  B.  B.  Co.  v.  ^ooiie,  45  Id. 
344;  gross  negligence  or  willful  and  wanton  mischief:  Vichingrg  etc  B.  B.  Ch, 
V.  PaUon,  81  Miss.  156;  gross  carelessness:  Hopkins  v.  Atlantic  etc  B.  B.  Ocp 
36  N.  H.  9;  a  wrongful  and  careless  act:  LouiavUle  etc.  B.  B.  Co.  v.  Oarrett,  8 
Lea,  438;  S.  C,  41  Am.  Eep.  640.  The  motire  must  be  bad,  the  intention  qtiad 
criminal:  Jacobe*  AdmW  y.  LouigviUe  etc.  B.  B.  Co.,  10  Bush,  263.  But  wfaea 
none  of  these  qualifications  of  the  act  appear,  compensatory  damages  only  are 
to  be  awarded:  Belknap  v.  Botton  A  Maine  B,  B.,  49  N.  H.  358;  Qiugleg  y.  Ooh 
tral  Pacific  B.  B.,  11  Nev.  364, 365;  Chicago  etc.  B.  B.  Co.  v.  Parke,  18  111.  460f 
LouiavUle  etc.  B.  B.  v.  Smith,  2  Duval,  556;  Moody  v.  McDonald,  4  Oal.  297. 
In  niinoiB  Central  B.  B.  Co.  v.  Hammer,  72  111.  353,  it  is  held  that  a  priTato 
corporation  is  not  liable  to  punitive  damages  merely  for  gross  n^ligenoa  of 
its  servants.  A  willful  or  wanton  injury  inflicted  by  a  servant  whilst  in  tiia 
employment  of  the  company,  and  engaged  in  carrying  on  the  business  of  th* 
company,  would  subject  it  to  such  damages.  *'  With  its  servants,  a  mem 
omission  of  duty,  although  grossly  negligent,  should  not  be  sufficient,  but 
some  intention  to  inflict  the  injury,  or  a  reckless,  wanton  disregard  for  tha 
safety  of  others,  should  appear  to  warrant  punitive  damages."  See  alto  Hen* 
dricke  v.  Sixth  Avenue  B.  B.  Co.,  44  N.  Y.  Super.  Ct.  8. 

In  New  OrUane  etc  R.  R.  Co.  v.  Hurst,  36  Miss.  660,  punitive  damagss 
were  allowed  where  the  company's  agent  conveyed  the  plaintiff  to  a  point  a 
hundred  yards  beyond  his  destination,  and  then  compelling  him  to  leave  tlie 
cars  contrary  to  his  request  that  they  should  back  the  cars  to  the  station. 
The  court  refused  to  grant  a  new  trial  on  the  ground  of  excessive  damagei^ 
which  were  assessed  at  four  thousand  five  huudred  dollars;  but  held  that  the 
jury  were  authorized  in  assessing  damages  to  inflict  proper  punishment  for 
the  disregard  of  public  duty.  This  case  carries  the  principle  of  exemplary 
damages  rather  far;  but  in  another  and  later  case  in  Mississippi  it  is  held  that 
in  the  absence  of  recklessness,  willfulness,  and  insalt^  a  railroad  company  is 
not  liable  to  a  passenger  for  exemplary  damages,  and  if  the  conductor,  oon> 
fused  by  unusual  occurrences,  passes  a  station,  and,  courteously  explaining  to 
a  passenger  for  this  place,  gives  him  a  free  return  ticket,  the  company  is  liable 
for  compensatory  damages  only:  Chicago  etc  R.  R.  Co.  v.  Scttrr,  69  Id.  456. 
And  in  this  latter  case  the  court  say:  **The  dicta  in  New  Orleans  R.  P  Ca. 
V.  Bailey,  40  Miss.  395,  that  any  negligence  of  a  railroad  company  operating  by 
steam  is  'gross,'  and  in  Memphis  R.  R,  Co.  v.  Oreen,  52  Id.  779,  that  puni- 
tive damages  may  be  inflicted  upon  a  common  carrier  for  mere  omission  of 
duty,  are  incorrect,  because  they  fail  to  preserve  the  distinction  between 
lessness  or  thoughtlessness  and  intentional  or  reckless  injury.  For  any  di 
liction  of  duty,  he,  the  common  carrier,  is  to  be  dealt  with,  as  to  the  measura 
of  damages,  like  other  men.  The  powers  of  common  carriers  ovbt  the 


6ept  1854.J  Hagan  v.  Pbovidence  etc.  R  R  Oa  885 


mid  property  oominitted  to  their  oostody  is  Tory  greet,  end  henoe  tiie  lev 
Impoeee  upon  tbem  the  severest  exactions  end  a  degree  of  reipoosibility  «•• 
known  to  other  calliDgs  of  life.  Bat  though  these  ezactioos  are  more  nnmei^ 
one  and  stringenty  a  non-peifonnanoe  of  them  faringe  to  the  deUnqnent  joet 
that  which  a  default  of  dnty  brings  to  all  men,  that  is  to  aay,  foil  oompenaa- 
tion  for  thoughtlessness  and  carekissuoes,  exemplary  punishment  fbrreoUese- 
ness,  willfulness,  or  insult." 

The  case  of  NashvUle  etc,  B.  R.  Co,  y.  Stomes,  0  Helsk.  62,  periiape  goes 
farther  than  any  other  in  holding  a  purely  wanton  act  to  be  within  the  aoope 
«f  the  agent's  authority.  In  fact,  in  that  oaae,  it  was  held  that  because  of 
the  absolute  necessity  for  more  stringent  rulea  in  the  proteetiun  of  life  and 
property  against  the  perils  of  the  steam-engine,  with  its  capacity  for  mischief, 
the  common-law  rule,  that  the  master  is  not  liable  for  the  tortious  acts  of  his 
servant  committed  without  the  scope  of  his  employment,  does  not  apply  ta> 
railroad  companies;  and  therefore,  when  for  purposes  of  sport  or  malice  the 
agent  of  a  railroad  company  wantonly  uses  his  engine  to  another's  injury,  the 
eompany  is  liabla  While  acting  with  instruments  the  company  has  placed  in 
his  bands  the  agent  is  acting  instead  of  the  corporation;  and  his  acts  bind  it, 
whether  done  negligently  or  cantionaly,  heedlessly  or  purposely.  But  the 
company*  will  be  liable  in  compensatory  damages  only  unless  it  knew  of  the 
reckless  character  of  the  agent,  and  still  retained  him  in  its  employment. 

AuTUORiTiKS  Holding  Principal  or  BiAsmt  kbtsb  Liabui  in  Ezbv* 
rUkSY  Damaois  unless  he  haspre  viously  authorized  the  tortious  act  of  his  agent 
or  servant,  or  subsequently  ratified  it.    ^fhis  is  the  authority  of  the  principal 
ease,  and  the  courts  of  many  states  have  adopted  this  rule.    These  decisiont 
hold  that  the  principal  is  liable  in  compensatory  damages  for  the  tortious  net 
of  the  agent,  tiiough  willful,  if  within  the  scope  of  the  authority,  but  make  « 
prior  authorization  or  subsequent  ratification  an  essential  prerequisite  to  the 
recovery  of  exemplary  damages  against  the  principal:  7\umer  v.  North  Bemeh 
€U,  R.R,  Co,  34  Gal.  694,  citing  the  principal  case;  KUne  v.  CentreU  Pacific  A 
R.  Co.,  37  Id.  400;  Wardrobe  v.  California  Stage  Co.,  7  Id.  118;  Higgine  v. 
WaiervUei  T.  Co.,  46  N.  Y.  23;  HUlv.  New  OrltanM etc.  R.  R.  Co.,  11  La.  Ann. 
292;  McKean,  v.  CUwentf  R.  Co.,  42  Mo.  79  (in  the  case  of  street-railroads); 
Perking  v.  Miasauri  etc  R.  R.  Co.,  56  Id.  201;  Traoere  v.  Kantae  Padfic  RTy, 
03  Id«  421;  Cleghom  v.  N.  Y.  etc,  R.  R.  Co.,  66  K.  Y.  47;  AOegheny  Valley 
R,  R.  V.  McLain,  91  Pa  St.  442;  Ifaye  v.  Houaton  etc.  R.  R.  Co.,  46  Tex. 
272;  Galveston  etc.  R'y  Co,  v.  Donafiue,  56  Id.  162;  Houston  etc.  R*y  Co.  v. 
Cowaer,  57  Id.  293;  Milwaukee  etc.  R,  R,  Co.  v.  Fmney,  10  Wis.  388;  Craher 
V.  Chicago  etc.  R.  R.  Co.,  36  Id.  657;  Bas$  v.  Chicago  etc.  R.  R.  Co.,  Id.  463; 
S.  €.,  39  Id.  636;  S.  C,  42  Id.  654;  AmiabU  Nancy,  3  Wheat.  546.     So  for 
the  wrongful  ejection  from  a  car,  these  cases  hold  that  the  company  would 
be  liable  in  compensatory  damages  only  in  the  absence  of  authorization  or  rat- 
ification: Milwaukee  etc  R.  R.  Co.  v.  Finney,  10  Wis.  388;  IUggins  v.  Water- 
Hiet  T.  Co.,  46  N.  Y.  23.     In  AmiabU  Nancy,  3  Wheat  546,  it  is  held  that 
on  an  illegal  seizure  of  a  vessel  on  the  seas  by  a  privateer  the  original  wrong- 
doers may  be  made  responsible  beyond  the  loss  actually  sustained  in  a  case 
of  gross  and  wanton  outrage;  but  the  owners  of  the  privateer  are  not  bound 
to  the  extent  of  vindictive  damages.     Street  railroad  companies  are  not  re- 
sponsible for  the  crimes  of  an  employee,  nor  liable  for  his  act  of  willful  and 
malicious  trespass.    They  are  answerable  only  for  hia  negligence,  or  inca- 
pacity, or  unakillfulness  in  the  performance  of  the  duties  assigned  to  him: 
McKeon  v.  Citiiena'  R.  Co.,  42  Mo.  79;  see  LouisvUle  etc.  R.  R.  v.  Smith,  2 
Duval,  556.    In  Ackerson  v.  Erie  R.  R.  Co.,  32  N.  J.  L.  264,  it  is  held  that  a 

Ax.  Dso.  Yoi^  LXn— 25 


886  Haqan  v.  Providence  etc  R  R  Ga  [R  I. 

nilroftd  compuiy  ii  not  liable  in  pnnltiye  damages  for  the  failnre  of  an  agetti 
lo  perform  a  da^. 

Reamnu/ar  Tku  JhiZe.— Notwithstanding  the  forcible  language  osed  la 
Ooddard  t.  Orand  TVitnl;  IPy,  67  Me.  202,  223,  in  favor  of  holding  corpora- 
tiona,  especially  railroad  corporations,  to  a  liability  to  exemplary  damagea 
irrespective  of  authorization  or  ratification,  provided  the  act  be  witliin  tho 
scope  of  the  agent's  authority,  there  are  weighty  arguments  in  favor  of  the 
rule  sustained  by  the  cases  above  cited.  This  side  of  the  argument  is  well 
sustained  by  Ryan,  C.  J.,  in  OraUr  v.  Chicago  etc.  IVy  Co.^  36  Wis.  676. 
The  learned  judge,  after  adverting  to  the  case  of  Ooddard  v.  Grand  Trunk 
R*y,  mprct,  says:  "We  think  that  in  justice  there  ought  to  be  a  di£breDce  in  the 
rule  of  damages  against  principals  for  torts  actually  committed  by  agents  in 
cases  where  the  principal  Is  and  in  cases  where  the  principal  is  not  a  party 
to  the  malice  of  the  agent.  In  the  former  class  of  eases,  the  damagea  go  njxm 
the  malice  of  the  principal — malice  ooumion  to  principal  and  agent.  In  the 
latter  class  of  cases,  the  recovery  is  for  the  act  of  the  prindpal  through  the 
agent — ^in  malice  of  the  agent  not  shared  by  the  principal;  the  principal  being 
responsible  for  the  act  but  not  for  the  motive  of  the  agent.  In  the  former 
class,  the  malice  of  the  principal  is  actual;  in  the  latter,  it  must  at  moat  bo 
constructive.  And  we  are  inclined  to  think  that  the  justice  of  the  rule  ac- 
cords with  public  policy.  Responsibility  for  compensatory  damages  will  bo 
a  sufficient  admonition  to  carrier  corporations  to  select  competent  and  trust- 
worthy officers.  And  responsibility  for  exemplary  damages  in  cases  of  rati- 
fication will  be  an  admonition  to  prompt  dismissal  of  offending  offioera  aa 
their  retention  might  well  be  held  evidence  of  ratification."  The  rule  is 
thuasUted  in  Cleyhom  v.  N,  T.  tie.  B.  R.  Co,,  56  N.  Y.  47:  '*For  injuries 
by  the  negligence  of  a  servant  while  engaged  in  the  business  of  the  master, 
within  the  scope  of  his  employment,  the  latter  is  liable  for  compensatory 
damages;  but  for  such  negligence,  however  gross  or  culpable,  he  is  not  liable 
to  be  punished  in  punitive  damages,  unless  he  is  also  chargeable  with  gross 
misconduct;  such  misconduct  may  be  established  by  showing  that  the  act  of 
the  servant  was  authorized  or  ratified,  or  that  the  master  employed  or  re- 
tained the  servant  knowing  that  he  was  incompetent,  or  from  had  habits 
unfit  for  the  position  he  occupied."    Per  Church,  C.  J. 

If  the  master  is  innocent  and  blameless — ^that  is,  if  it  does  not  appear  that 
he  lias  been  careless  in  the  employment  of  his  servant,  knowing  his  inca- 
pacity, or  drunkenness,  CUghom  v.  N.  T,  etc,  R,  R.  Co.,  56  N.  Y.  47,  and 
after  the  tortious  act  dismisses  him,  in  no  way  ratifying  the  act,  and  having 
formerly  in  no  way  authorized  the  act,  either  expressly  or  impliedly,  exoept 
by  the  general  authority  or  discretion  which  he  gives  his  agent,  it  may  very 
naturally  be  asked,  How  can  he  be  deserving  of  punishment  ?  If  he  has  to  pay 
compensatory  damages  for  the  act  of  his  agent,  that  is,  to  oompensate  the 
Injured  party  to  the  extent  that  his  agent  is  authorized  to  represent  him,  how 
is  it  just  to  force  him  to  pay  for  the  injury  caused  by  motives  and  acts  in 
which  the  agent  is  not  authorized  to  represent  him,  and  can  not  be  so  author- 
ized except  by  particular  authorization  or  ratification  T  But  it  is  urged  that 
this  is  well  enough  in  the  case  of  natural,  individual  masters  or  principals,  but 
in  the  instance  of  artificial  or  corporate  superiors  another  principle  intervenes 
—that  of  expediency.  And  it  is  as  well  to  place  upon  publio  corporations  a 
severer  responsibility  for  their  agents*  acts  as  it  is  to  burden  common  car- 
riers with  a  stricter  liability  than  ordinary  bailees.  Secondly,  corporationa 
act  only  through  agents,  for  which  reason  the  act  of  an  employee  may  be 
sonsidered  to  a  great  extent  the  direct  act  of  the  oorporation,  for  which  ii  is 


Sepi  1854]  Hagak  u  Providence  etc.  R  &  C!a  887 

Gable  as  an  original  tort-feaaor.  Aa  to  the  qneation  of  ezpedianoy,  ooarta 
will  DO  doabt  rary,  though  if  tho  more  atringent  liability  be  adopted,  it  may 
b^  well  to  abolish,  with  reepeet  to  pablio  oorporatioiia,  tiie  doctrine  of  aoope 
of  anthority,  aa  waa  done  in  the  caae  of  Na$hvi[U  ttc  R,  R,  Co*  v.  fitomet,  9 
Qeisk.  62,  and  aimplify  mattera  by  holding  the  company  liable,  oompenaato- 
rily,  for  every  act  of  an  agent  whOe  on  duty,  and  ezemplarily  when  the  act 
preaenta  featarea  of  a  proper  natore.  The  aecond  argnment  ia  met  by  the 
distinction  taken  in  late  Tezaa  caaea,  Hay9  t.  Hwu^Lon  tic,  R.  R.  Co,,  46  Tex. 
272;  JlouaUm  etc  R*y  Co,  v.  Cow$er^  67  Id.  293,  where  it  ia  held  that  ezem- 
(liary  damagea  are  allowed  only  when  the  willful  act,  omiaaion,  or  groaa  neg- 
ligence ia  of  the  defendant;  and  that  a  corporation  will  be  thna  liable  for  the 
willfnl  act  of  one  representing  It  in  Its  corporate  capacity  aa  a  corporate  offi- 
cer, bat  not  ao  for  the  act  of  a  mere  ordinary  servant  or  agent.  So  aa  in  the 
case  of  an  ordinary  principal  or  master,  the  corporation  will  be  liable  for 
carclessnesa  in  the  aelootion  of  employees,  or  for  fadlure  in  the  eatabliahment 
oC  appropriate  regulations,  or  for  aothoriaation  or  ratification  of  the  willfnl  or 
wanton  act  of  an  inferior  employee;  for  all  theae  acta  will  be  the  acta  -of  Its 
managing  officers,  who  are,  practically,  dnring  their  term  of  office,  the  corpo- 
ration. It  ia  not  oonductora  and  brakemen  who  are  the  corporation  in  ita 
acta  and  deeds,  but  their  employers;  that  ia,  the  auperintendent  and  other 
ooDtroUing  officiala.  By  this  distinction  the  abenrdityof  aaying  that  the 
corporation  unlawfully  and  malicioualy  casta  the  passenger  from  the  moving 
train  ia  removed,  and  yet  the  corporation  will  be  liable,  ezemplarily,  for  aach 
an  act  if  really  responsible  therefor;  that  is,  if  its  managing  ^cera  have  an- 
thorixed  or  ratified  the  act,  or  if  they  have  been  careleaa  in  the  employment 
of  their  servants,  or  otherwise  at  fault.  The  premises  that  the  defendant 
master  should  be  at  fault  before  be  is  punished  by  punitory  damages  is  cer- 
tainly just,  and  applies  equally  to  corporationa,  notwithstanding  they  ars 
"artificial."  The  question  of  expediency  in  tisiting  corporations  of  a  public 
oature  with  a  aeverer  liability  is  certainly  partly  answered  in  the  extract,  sapra, 
from  the  opinion  of  Ryan,  C.  J.,  in  Cnther  v.  Chicago  etc.  Ky  Co,,  36  Wis. 
676. 

RETX5Tioir  or  Sebvakt  m  EMrLOYUxnr,  Evidxhob  of  RxTiFiCATioif. 
The  auUioritiea  are  generally  willing  to  accept  slight  evidence  of  ratification, 
so  aa  to  make  the  principal  liable  in  exemplary  damages:  PtrkiM  v.  MxBtofwri 
€te,  R.  R.  Co.,  56  Mo.  201;  Travers  v.  KatMOM  Pacific  Railway,  63  Id.  421; 
CoalUr  y.  Chicago  etc.  Railway  Co.,  36  Wia.  676.  And  it  is  held  that  if  the 
servant  be  retained  in  his  employment,  after  the  act  has  been  committed  and 
the  master  has  become  cognizant  of  the  fact,  this  will  furnish  evidence  of 
ratification  of  the  willful,  wanton,  and  malicious,  or  grossly  negligent  act: 
Oatway  v.  Atlanta  etc,  R.  R.  Co.,  68  Oa.  216;  New  OrkoM  etc  R,  R.  Co,, 
T.  Burke,  63  Miss.  200;  Perhms  v.  Miesauari  etc  R,  R,  Co,,  66  Mo.  201;  Trc^ 
vert  V.  Kansas  Padjle  Railway,  63  Id.  421;  but  see  Edelmann  v.  8t,  Louis 
Traw/er  Co.,  3  Mo.  App.  603;  Cleghom  v.  New  York  eU,  R,  R,  Co,,  66  N. 
V.  47;  Nashville  etc  R.  R.  Co,  v.  Stames,  9  Heisk.  62;  Craker  v.  Chicago 
etc.  Railway  Co,,  36  Wis.  676;  Bass  v.  Chicago  eU,  Railway  Co,,  42  Id.  664. 
Retention  of  an  employee  after  the  tortious  act  ia  evidence  of  ratification  for 
the  jury:  Bass  v.  Chicago  etc  Railway  Co,,  supra.  Notice  to  the  con- 
ductor of  the  brakeman'a  act  is  notice  to  the  company:  Id.  A  verified  com- 
pUdnt  duly  aerved  in  an  action  against  the  company  for  the  misconduct  of  ita 
wrvant  ia  notice  of  such  misconduct,  and  if  the  aervant  is  still  retained  and 
promoted,  this  is  evidence  of  ratification:  Id.  Where  otherwise  the  com- 
pany would  be  held  liaVile  for  exemplary  damagea,  the  discharge  of  the  a•^ 


886  Haoan  v.  PfiovmKNCS  sra  R  R  Ca  [R  L 

▼ant  may  go  in  mttigatioii  of  damaget:  Oatwa^  ▼.  Atlanta  etc  fi.  J2.  Co.,  SP 
Ga.  210.  When  *  penon  is  innocent  of  the  eomminion  of  a  wrongful  met, 
and  beoomee  liable  only  in  ooneeqnenoe  of  hie  sabeeqaent  approval  of  it*  he 
Will  be  liable  in  compenaatory  damages  only:  AroHiiitk  t.  Temple^  11  BL 
App.  39;  see  note  to  MerrUU  v.  Tar^f  Ma»uifaeturmg  Co.,  27  Am.  Deo. 
688. 

For  m  Own  Gbom  NBOuauroB,  nra,  Cobpokatiov  u  Lublb  zm  £x- 
■MFLaRT  Damaoeb. — ^Where  the  gross  negligenoe  is  not  that  of  some  inferior 
employee  but  of  the  oorpoiation  itself — that  is*  of  its  managing  officials — 
there  is  no  doubt  that  the  corporation  will  be  liable  in  the  same  way  as  a  nat- 
anl  person  is  liable  for  his  own  act  of  a  like  nature.  Tliat  tlie  corporation 
may  be  direetly  liable  for  the  acts  of  its  principal  or  managing  agents,  see 
Ma^B  V.  HoutUm  ale.  R*p  Oo.^  46  Tex.  272;  H<mdtm  tte.  IPy  Co.  y.  Cawter, 
67  Id.  203.  And  althoagh  iheaathorities  in  general  terms  attribate  the  neg- 
ligenoe to  the  corporation,  it  is  really  that  of  the  managing  official  who  has 
omitted  to  perform  his  duty.  Thus  exemplary  damages  may  be  awarded 
where  personal  injuries  have  been  received  throogh  the  failure  of  a  railroad 
company  to  keep  a  bridge  in  repair,  end  where  the  n^Ugsnce  was  gross: 
.S<mthitA'^crtkAlab€aMR.R.Co.r.McLmdoii,e3A}a.2^  So  for  negligenoe 
in  managing  a  railroad  which  resulted  in  a  person's  death,  the  negligence  con- 
sisting in  not  running  slowly  through  a  narrow  cut  with  sloping  sides:  Jfar- 
phy  y.  New  York  etc  R.  R.  Co.,  29  Conn.  496.  So  for  employing  incompetent^ 
drunken,  or  reckless  servants,  knowing  them  to  be  such,  or  retaining  them 
after  knowing  this  fact:  IlUmis  Central  R.  R.  Co.  v.  Hammer,  72  111.  353; 
NatibmUt  etc  R.  R.  Co.  v.  Stamee^  9  Heisk.  52.  Evidence  that  the  employee 
who  caused  the  injury  was  intoxicated  at  the  time,  and  that  the  company^ 
agent  knew  of  hie  intemperate  habits,  is  admissible  on  the  question  of  ex- 
•mplary  damages:  Cleghem  v.  New  York  etc  R.  R.  Co.,  56  N.  Y.  47.  In  fact, 
the  company  itself,  i.  e.,  its  managing  officials,  are  chargeable  with  gross  neg- 
ligence when  it  authorises  or  ratifies,  by  retaining  incompetent  servants  in  its 
employment,  a  malicious,  wanton,  or  grossly  negligent  act:  Id.;  and  see  su- 
pra, "Retention  of  Servant,"  etc. 

Individual  Liabiutt  or  Natural  Mastbb  or  Principal. — ^In  a  work 
on  negligenoe  it  is  said  that  "in  any  case  where  exemplary  damages  may  be 
recoverable  against  the  servant^  they  should  be  allowed  against  the  master, 
if  it  appears  that  he  hsd  reasonable  notice  of  the  negligent  habits  of  the  ser- 
vant, or  if  he  left  the  servant  without  control  or  supervisicm  in  the  work:** 
Sherman  ft  Bedfield  on  Neg.,  sec.  600.  "This  doctrine,"  says  Mr.  Suth- 
erland,  "  is  obviously  sound;  but  it  is  based  on  an  actual  fault  of  the  master, 
not  solely  on  that  of  the  servant;  the  conclusion  of  liability  does  not  result 
purely  from  the  identity  of  master  and  servant:*'  1  Sutherland  on  Dam- 
ages, 751.  So  in  the  case  where  the  master  previously  authorises  or  subse- 
quently ratifies  the  tortious  act  of  his  servant,  the  doctrine  of  the  master's 
Uabiiity  rests  on  an  actual  fault  of  the  master.  Where  a  passenger  has  been 
injured  in  consequence  of  the  gross  n^ligence  of  a  stage-coach  proprietor  in 
employing  a  known  drunken  driver,  he  may  recover  exemplary  damages: 
Frink  v.  Coe,  4  O.  Greene,  555;  S.  C,  61  Am.  Dec.  141. 

Owners  or  Nkwspapkrs,  Liabilitt  for  Editor's  Act  or  Libel.— In 
Bruct  V.  Reed,  17  Rep.  347,  it  is  said  that  the  liability  of  the  owner  of  a 
newspaper  for  the  acts  of  an  agent,  to  whose  discretion  he  has  committed  the 
paper  or  a  department  of  it,  and  over 'vvhom  he  does  not  exeroiae  supervision, 
is  broader  than  the  ordinary  liability  of  a  master  for  the  acts  of  his  servant; 
and  evidence  tending  to  show  malice,  recklessness,  or  carelessness  in  the  com* 


Sept  1854.]  Haoan  v.  Providence  Era  IL  R  Ckx  889 

pontion  or  publication  of  a  libel  by  such  an  agent  may  be  given  by  the  plaint- 
iff to  enhance  the  damages  recoverable  in  an  action  against  the  owner  of  the 
p  kper  based  npon  each  a  libel.  In  such  a  case  pnnitiTe  damages  are  recover- 
able, notwithstanding  the  owner  had  no  personal  knowledge  of  the  libel  be- 
fore it  was  published,  and  afterwards  did  what  was  reasonable  to  make 
amends  and  reparation,  thongfa  these  facts  are  evidence  in  mitigation  of  dam« 


SHERXvr,  fOR  Act  ot  Dkputt. — A  sheriff,  being  leg»Uy  answerable  for  the 
eondnet  of  his  deputy,  may  be  held  liable  in  exemplary  dimiffiis  for  the  ag- 
gravated ndaoandoot  of  his  depnty:  HoKard  v.  Imrad^  1  Biniu  240;  S.  Ct  3 
Am.  Dec  438. 

MU2?IGIFAL     CoRPOBATlONSy    ExUfTLA&T     DaMAGBS     MOT     EkCOVUULBLI 

AOAiirsT. — It  is  nearly,  if  not  qoite,  settled  that  as  against  municipal  cor- 
porations exemplary  damages  can  not  be  recovered:  See  Field  on  Damages, 
tec.  60.  In  Chicago  v.  LumgUm^  62  111.  256,  it  is  said,  in  general  terms,  that 
▼indictive  or  punitive  damages  are  not  recoverable  against  a  munleipal  cor- 
poration. That  was  a  case  of  n^ligenoe  of  officials  in  allowing  streets  and 
ddewalks  to  remain  oat  of  repair;  and  in  WiUnn  v.  Wheeling^  10  W.  Va.  323, 
it  is  said  that  such  damages  can  not  be  recovered  from  a  city  for  injuries 
received  from  its  streets  being  out  of  repair.  In  a  later  case,  in  Illinois,  it  is 
aaid  that  no  exemplary  damages  will  be  allowed  against  a  municipal  corpora- 
tioo  unless  the  negligence  is  so  gross  as  to  be  willful  But  the  judgment  in 
that  case  was  that  the  verdict  rendered  was  excessive:  Chicago  v.  KvUy^  60 
III  475.  In  Parsons  v.  Lindmy,  26  Kan.  426,  it  is  said  that  a  municipal  cor- 
pcMation  is  not  so  liable  when  the  negligeuoe  ii  not  gross. 

IxBTRuanoss  ookokrmiko  ExxMPLaRT  Damaou.— To  justify  instructioDs 
oonoeming  exemplary  damages,  there  should  be  evidence  tending  to  show 
that  the  act  was  willfnl  or  intentional:  Eddmann  v,  St,  Loui$  Tran^tr  Co,,  3 
Mo.  App.  503;  Chicago  etc  JR.  R,  Co.  v.  Jarrttt,  50  Miss.  470;  Chicago  etc 
B.  i?.  V.  Scurry  Id.  456.  Exemplary  damages  may  be  awarded  in  the  discre- 
tion of  the  jury,  but  the  plaintiff  is  not  entitled  to  them  as  matter  of  right, 
and  it  is  error  to  instruct  to  this  effect:  Wabash  etc.  JPy  Co.  v.  Stctor,  104 
nt  296.  Still,  in  instructing  a  jury,  the  rule  of  exemplary  damages  should  be 
stated  with  its  restrictions  and  limitations,  and  it  should  not  be  leife  wholly 
to  the  discretion  of  the  jury:  Clcghom  v.  New  York ttc.  R.  R.  Co.,  56  N.  Y.  40. 
Bat  an  instruction  where  the  judge  states  the  facts  necessary  to  justify  such 
damages  is  not  erroneous:  CaldweU  v.  New  Jersey  etc.  Co.,  47  N.  Y.  208.  In 
Utsdricks  v.  ^aetk  Avenue  R,  R.  Co.,  44  N.  Y.  Super.  Ct.  8»  it  was  held 
that  the  court  should  have  charged  the  jury,  on  the  request  of  the  defendant, 
that  the  case  was  not  one  in  which  punitive  or  exemplary  damages  might  b« 
awarded. 

EzucpiJkRT  Damaoxb:  See  note  to  AusUnY.  Wilson,  50  Am.  Do*).  767-775; 
and  see  th.«  mbject  of  this  note  adverted  to  in  the  note  to  MerriUs  v.  Tatr\f 
Mfg.  Co.,  27  Id.  688;  see  also  Borer  on  Bailways,  860-872. 

LiABiLiTr  OF  Cabsikb  fOR  WiLLTVL  AcT  OF  SxBTANT:  Seeooteto  Wart 
V.  Barataria  it  L.  Carnal  Co.,  86  Am.  Dec  201;  for  negligCDoa  of  employees t 
GSkmoaterr.  MadisondtJ.  R.  R.  Co..  61  Id.  101. 


CASES  IN  EQUITY 


COURT  OF  APPEALS 

ov 
SOUTH  CAROLINA. 


Habbebs  V.  Gadsden. 

[6  RiOHABlMOll'S  EQUTTT.  284.] 
^KNDBB    IS     EkTITLED    TO    SpSCIFIO    PERFORMANCE,  WITH    ABATSMKIIT    Ib 

price,  where  a  vendor  of  land  misdescribee  it  u  to  quality  in  the 
agreement. 

Bill  for  specifio  perf ormanoe.  The  case  is  soffioieiitly  stated 
in  the  opinion. 

Blagraih,  for  the  appellant. 

By  Court,  Wardlaw,  Chancellor.  Defendant,  being  owner  of 
a  parcel  of  unimproved  land  in  the  upper  wards  of  the  city  of 
Charleston,  procured  the  same  to  be  divided  into  building-lots 
by  the  city  surveyor,  and  afterwards  sold  a  large  number  of 
these  lots  at  public  auction,  according  to  the  representations 
thereof  on  the  plat  of  said  surveyor.  At  this  sale  pkintiff  bid 
ofif  for  six  hundred  and  fifty  dollars  lot  No.  112,  at  the  comer 
of  Spring  and  Chestnut  streets,  which  was  represented  on  the 
plat  to  consist  of  highland  and  marsh  in  nearly  equal  portions, 
whereas,  in  fact,  it  is  all  marsh  land,  and  less  valuable  than  it 
xvould  have  been  if  a  large  portion  of  it  were  highland. 

Plaintiff,  by  this  bill,  seeks  to  compel  the  defendant  to 
specific  performance  of  this  contract  of  sale,  with  proper  abate- 
ment in  the  price  for  defendant's  misdescription  of  the  lot. 
Defendant,  in  his  answer,  admits  the  contract  and  the  represen- 
tation, offers  to  convey  the  lot  to  the  plaintiff  for  the  price  bid, 
or  to  rescind  the  contract,  and  insists  that  the  plaintiff  should 
be  left  to  his  remedy  at  law,  and  that  the  court  should  not 
undertake  to  enforce  a  modified  contract  into  which  the  parties 
QeTer  entered. 


Jaa  1854.]  HARWtRa  v.  Oabsdev.  891 

Where  the  vendor  is  incapable  of  making  a  complete  title  to 
all  the  property  sold,  or  in  the  agreement  to  sell  has  mia- 
desdibed  it  in  important  particulars^  the  court  will  not  hear 
from  him  the  objection  that  although  he  has  part  he  has  not 
the  whole  estate  as  described  and  sold,  but  will  compel  him,  if 
the  purchaser  so  chooses,  to  execute  so  much  of  the  contract  as 
he  is  able,  with  abatement  in  the  price:  Story's  Eq.  Jnr.,  sec. 
797;  Ilarthck  y.  BuUer,  10  Yes.  815;  MOligan  t.  Cooke,  16  Id.  1; 
Thomas  y.  Dering,  1  Keen,  729.  In  Oraham  y.  Oliver ,  cited  in 
a  note  to  this  last  case,  Lord  Langdale  remarks  that  this  par- 
tial performance  is  somewhat  incorrectly  called  a  specific  per* 
formance;  and  he  says  in  the  principal  case,  in  substance,  that 
there  pjre  great  difficulties  in  the  exercise  of  the  jurisdiction  in 
cases  which  are  not  yeiy  clear  and  simple.  The  cy-preg  execu- 
tion of  contracts  given  in  these  cases  is,  in  fact,  the  execution 
of  new  contracts  which  the  parties  did  not  enter  into,  in  which 
there  is  no  mutuality,  and  in  which  it  is  frequenUy  dif- 
ficult to  ascertain  the  just  price.  It  is  more  easy  to  compute 
a  just  compensation  where  it  is  to  be  given  for  defect  in  the 
quantity  or  quality  of  the  land  sold  than  where  given  for 
deficiency  in  the  vendor's  interest,  where  reversioners  or  others 
may  be  prejudiced  by  partial  alienation. 

In  the  present  case  there  can  be  no  great  difficulty  in  adjust- 
ing the  proper  abatement;  and  the  general  rule  allowing  option 
to  the  purchaser  to  have  execution  pro  tanio  must  be  followed. 

It  is  ordered  and  decreed  that  it  be  referred  to  one  of  the 
masters  to  ascertain  and  report  what  abatement  should  be  made 
from  the  price  bid  by  the  plaintiff  on  account  of  defendant's 
misdescription  of  the  quality  of  the  lot;  and  that  upon  plaintiff's 
paying  and  securing  to  be  paid  the  balance  of  the  purchase 
money,  according  to  the  terms  of  the  contract,  defendant  execute 
to  plaintiff  a  conveyance  in  fee,  with  general  warranty,  of  the 
lot  in  question.    Let  defendant  pay  the  costs. 

The  defendant  appealed,  because  the  plaintiff  made  no  case 
which  entitied  him  to  the  relief  he  asked,  and  which  was  decreed 
by  the  court. 

We  concur  in  the  decreOi  which  is  hereby  affirmed,  and  the 
appeal  dismissed. 

JoBHerrov,  DmaiMp  and  Wabdlaw,  chancellors,  concurred* 

Appeal  dismissed. 

VSKDXB  BSTITLSD  TO  SpSODIO  PXBIOBMAKCE,  WITH  AbATEMMMT  09  FmUMt 

»)Mii  8m  WaiUmgr.  Kkmard,  dO  Am.  Deo.  216,  and  note. 


891  Sdoson  v.  WATia  (B.  Ourolinak 

Simpson  t;.  Watts. 

(6  BlffllAMMOrt  iQUIRt  804.] 

Lb4Tb  01  CouBT  18  Nkousakt  bxforb  Fiuno  Bill  ov  Bsmir,  or  a  bill 
in  th*  natoro  of  «  bill  of  review,  and  such  leave  ia  obtainable  only  apoo 
showing,  by  affidavit  or  otherwise,  to  the  satisfaction  of  the  oonri,  thait 
since  the  decree  the  applicant  has  discovered  new  matter,  which  oonld  not 
be  produced  before,  and  which  might  probably  have  caused  a  different 
result. 

Nbwlt  DifloovsRKD  Mattxr,  to  Warraut  Bill  of  Bkvdew,  or  a  lull  In 
the  nature  of  a  biU  of  review,  must  be  so  material  as  to  entitle  the 
iwtitioner  to  a  decree,  or  to  render  a  decree  in  his  favor  very  probable; 
and  tlie  petitioner  must  show,  not  only  that  it  came  to  his  knowledge 
after  the  fit  time  for  using  it,  bat  also  that,  with  reasonable  diligenoo,  he 
coald  not  have  known  it  in  time. 

Nbw  Mattkb  WHicn  mxrklt  Gon  to  Rxduoh  AiioiriiT  or  Dsc&kb  im- 
peached for  frand,  where  each  decree  most  be  overthrown  altogether  to 
entitle  the  complainant  to  relief,  is  not  snffioient  foondation  for  a  bill  of 
review. 

Appeal  from  a  decree  refusing  leave  to  file  a  bill  of  rsTiew,  or 
a  bill  in  the  nature  of  a  bill  of  review.  The  opinion  states 
the  ease. 

Irby  and  Sullivan,  for  appellant. 

Young t  Perry,  Bobo,  and  Henderson,  contra. 

By  Court,  Wabdlaw,  Chancellor.  This  is  an  appeal  from  the 
refusal  of  Chancellor  Dargan  to  grant  leave  to  the  plaintiff  to 
file  a  bill  of  review,  or  a  bill  in  the  nature  of  a  bill  of  review, 
of  a  decree  of  Chancellor  Johnston  in  1851.  The  original  bill 
was  filed  in  1842,  by  the  plaintiff,  against  William  F.  Downs, 
Sarah  Downs,  and  others,  to  set  aside  for  fraud  a  decree  ob- 
tained by  Sarah  Downs  against  William  F.  Downs  in  1839,  for 
fifteen  thousand  three  hundred  and  seventeen  dollars  and  ten 
cents.  The  defendants  answered,  denying  the  fraud,  and  died 
before  the  hearing,  viz. :  Sarah  Downs,  April  24, 1844,  and  Will- 
iam F.  Downs,  September  11, 1847;  and  the  bill  was  revived 
against  their  representatives.  The  claim  of  the  plaintiff,  aa 
creditor  of  William  F.  Downs,  by  judgment  at  the  filing  of  the 
bill,  was  overpaid  on  October  23,  1847,  and  his  other  unsatis- 
fied claims  as  assignee  of  the  subsequent  judgments  of  the 
Commercial  Bank,  and  of  himself  as  partner  in  the  factory  of 
Simpson  &  Downs,  amount  to  six  thousand  three  hundred  and 
seventy-six  dollars  and  fifty-one  cents,  with  interest  from  July 
1,  1862.  The  whole  fund,  subject  to  distribution  among  the 
ei«ditors  of  William  F.  Downs,  is  four  thousand  five  hundred 


Iia7>  1854]  SiMFSOK  v.  Watk 

and  forty-one  dollars  and  eighty  oenta,  with  intereel  from  Jtdy 
1,1852. 

The  decree  of  Sarah  Downs  against  William  F.  Downs  was 
loanlled  on  a  claim  that  he  had  received  the  rents  and  profits  of 
certain  land  and  negroes  devised  to  her  for  life,  with  remainder 
to  him.  In  his  answer  to  her  hill  he  admitted  his  liability;  and 
the  amoont  of  his  indebtedness  was  ascertained  and  reported  by 
Ihe  commissioners  on  the  testimony  of  two  respectable  witnesses. 
This  decree  was  assailed  by  the  plaintiff  on  various  grounds, 
BQch  as  that  defendant  was  not  technically  tmstee  of  his  mother; 
that  the  relation  between  them  and  their  condnct  to  each  other 
implied  gift  of  the  profits  on  her  part,  and  that  the  amount  of 
the  account  was  so  enormous  as  to  demonstrate  fraud.  All  of 
these  grounds  were  overruled  by  the  decree  of  1851. 

The  application  for  review  of  Chancellor  Johnston's  decree 
proceeds  entirely  on  the  ground  that  William  F.  Downs  was 
changed  in  the  commissioner's  report,  which  was  the  basis  of 
the  decree  in  Sarah  Downs  against  William  F.  Downs,  with  rent 
for  more  land  than  was  included  within  the  premises  devised  to 
Sarah  Downs  for  life. 

The  affidavit  of  the  plaintiff  alleges  that  William  F.  Downs 
was  charged  with  rent  on  two  hundred  cultivated  acres  of  land 
devised  to  Sarah  Dovms  for  life;  whereas  the  whole  arable  land 
of  the  plantation  did  not  exceed  one  half  of  this  siun  of  acres; 
and  that  of  the  portion  in  actual  cultivation,  for  which  rent  was 
charged,  sixteen  acres  belonged  to  William  F.  Downs  himself; 
and  that  plaintiff,  until  after  the  decree,  supposed  that  the 
whole  arable  land  belonged  to  the  parcel  of  land  devised  to 
Sarah  Dovms  for  life,  and  discovered  the  contrary  by  coming 
into  possession  of  certain  conveyances  to  William  F.  Downs, 
from  the  distributees  of  Lydall  and  Mildred  Allen  in  1818, 
1827,  and  1887.  I  infer  from  the  names  of  these  grantors, 
although  the  &ct  is  not  definitely  stated  in  the  commissioner's 
report,  that  these  grantors  were  the  daughter  Mildred,  with  her 
husband  Lydall  and  diildren,  of  the  testator  Jonathan  Downs. 

The  plaintiff  appeals  from  the  decree  dismissing  his  petition, 
on  the  ground  that  his  affidavit  set  forth  newly  discovered  evi- 
dence, material,  important,  and  not  cumulative,  which  he  could 
not  have  produced  before  the  decree  of  1851  by  any  possible 
dilififence. 

A  bill  of  review,  or  a  bill  in  the  nature  of  a  bill  of  review,  can 
not  be  filed  without  the  previous  leave  of  the  court.  To  obtain 
saeh  leave,  the  appheant  must  satisfy  the  court,  by  his  affidavit 


894  Simpson  v.  WATia  [S.  Oarolhiak 

or  otherwiae,  that  new  matter,  which  might  probably  haTe  ooca- 
sioned  a  different  determination,  has  been  newly  discoyered  by 
him,  which  could  not  be  produced  for  use  when  the  decree  waa 
made:  3  Darnell's  Ch.  Pr.  1688;  Mitf.  PI.  94.  It  must  be  shown 
that  the  new  matter  is  so  material  that  it  would  entitle  the  peti- 
tioner to  a  decreCi  or  at  least  would  raise  a  question  of  such  diffi- 
culty as  to  make  a  determination  in  his  fayor  yeiy  probable: 
8  Daniell's  Ch.  Pr.  1734;  Story's  Eq.  PL  414;  Ord  y.  Nod,  6  Madd. 
127.  It  is  not  enougl\  that  the  new  matter  came  to  the  knowledge 
of  the  parly  after  the  fit  time  for  use  of  it,  but  he  must  show  that 
he  could  not  haye  acquired  knowledge  of  the  fact  in  time  for 
effectiye  use  by  the  exercise  of  reasonable  diligence.  Lord 
Eldon,  in  Young  y.  Keighly,  16  Yes.  850,  says  the  question  al- 
ways is  not  what  the  petitioner  knew,  but  what,  using  reason- 
able diligence,  he  might  have  known. 

On  the  present  application,  the  plaintiff  fails  in  seyeral  partic- 
ulars. In  the  first  place,  he  does  not  exhibit  new  matter  which 
would  probably  produce  a  reyersal  of  the  decree  of  1861.  All  of 
the  important  elements  of  fraud  in  the  decree  of  Sarah  Downs 
against  William  F.  Downs  were  considered  and  oyermled  in  the 
decree  of  1851.  The  whole  effect  of  his  additional  testimony  is 
to  show  that  the  decree  of  Sarah  Downs  against  William  F. 
Downs  is  for  tco  large  an  amount;  but  unless  theexcessiye  sum  of 
rents  on  arable  lands,  allowed  in  this  decree,  would  serye  to  reduce 
the  sum  recovered  about  three  fourths,  or  to  annul  it  altogether 
on  the  ground  of  express  fraud,  the  plaintiff  could  not  be  profited 
by  his  alleged  new  matter.  It  is  conceded  that  the  plaintiff  could 
not  reach  the  assets  in  controyersy  by  simple  abatement  of  the 
judgment  for  rents  allowed  to  Sax&h  Downs  for  lands  not  be^ 
longing  to  her  for  life;  and  relief  to  the  plaintiff  must  depend 
on  setting  aside  the  judgment  altogether.  But  after  the  prin- 
cipal groimds  of  express  and  annulling  fraud  haye  been  oyer- 
mled, it  would  be  too  strong  an  exercise  of  discretion  to  hold 
tliat  the  decree  should  be  yoid  for  the  whole  because  part  of 
the  aggregate  was  disputable.  It  is  not  suggested,  nor  is  there 
room  for  supposing,  that  the  witnesses  examined  before  the  com- 
missioner to  fix  the  yaluo  of  the  rent  were  suborned  to  pexjuiy 
by  Sarah  or  William  Downs,  or  that  their  oyer-estimate  of  the 
land  in  cultivation  proceeded  from  other  motive  than  honest  mis- 
take. It  may  be  true  that  if  William  F.  Downs,  knowing  the 
extent  of  his  mother's  land  and  of  his  own,  permitted  the  wit- 
nesses to  testify  jn  mistake  of  the  extent  of  the  respective  tracts 
of  his  mother  and  himself,  his  silence,  when  he  should  have 


May,  1864.]  Sdcfson  v.  Wattb.  895 

spoken,  might  have  oonstitated  feand  on  his  part  But  there  ia 
no  proof  of  any  complicity  in  any  supposed  &aud  of  Sarah 
Downs  and  the  witnesses.  The  portion  of  land  in  cultivation 
probably  supposed  to  belong  to  Sarah  Downs'  estate,  which  in 
fact  belonged  to  William  F.  Downs,  is  only  sixteen  acres,  by  esti- 
mate, and  it  lay  so  near  the  boundary  between  these  proprietors 
that  all  parties,  including  William  F.  Downs,  might  have  been 
honestly  mistaken  as  to  the  inclusion  of  this  portion  in  one  or 
the  other  of  the  tracts.  If  the  witnesses  were  honestly  mistaken 
in  their  estimate  of  the  land  in  cultivation,  and  not  misled  bj 
suggestion  or  concealment  on  the  part  of  William  F.  Downs, 
the  decree  of  Sarah  against  William  Downs  might  be  liable  to 
abatement,  but  surely  not  to  entire  vacation.  We  do  not  per* 
ceive  that  the  new  matter  suggested  by  the  petitioner  would 
have  probably  produced  a  determination  that  the  decree  of  1839 
was  absolutely  fraudulent  and  utterly  void;  and  for  the  reasons 
suggested,  mere  abatement  of  the  sum  recovered  would  not 
profit  the  petitioner. 

Again:  the  additional  matter  suggested  by  the  petitioner  can 
hardly  be  considered  as  newly  discovered.  The  subject  of  con- 
troversy in  the  suit  was  in  this  particular  the  excessive  allow- 
ance of  rents.  It  was  admitted  on  the  trial  that  William  F. 
Downs  owned  land  adjoining  the  portion  devised  to  his  mother 
for  her  life.  The  tract  devised  to  the  mother  was  specified  by 
the  number  of  acres  in  the  will  of  Jonathan  Downs.  The  inter- 
est of  the  plaintiff  required  him  to  ascertain  the  limits  of  the 
tracts  devised  to  Sarah  Downs,  but  he  had  no  concern  in  the 
limits  or  mode  of  acquisition  of  William  F.  Downs's  land,  except 
as  this  contiguous  tract  defines  the  lands  of  Sarah  Downs.  It 
made  no  difference  to  him  whether  William  F.  Downs  acquired 
his  own  land  by  purchase  or  descent,  except  as  the  mode  or 
instrument  of  acquisition  might  limit  the  extent  of  the  mother's 
lands;  and  it  is  an  abuse  of  speech  to  say  that  petitioner  newly 
discovered  the  extent  of  Mrs.  Downs's  lands  because  he  more 
accurately  ascertained  the  extent  of  Mr.  Downs's  lands.  It  does 
not  appear,  although  the  attention  of  plaintiff's  counsel  was 
directed  to  the  point  on  the  trial,  as  is  apparent  from  the  admis- 
sion in  evidence  of  the  contiguity  of  the  tracts,  that  the  plaintiff 
made  any  effort  by  survey  or  otherwise  to  settle  the  boundaries 
of  the  tmcts  known  to  be  adjoining  of  Sarah  and  William  F. 
Dovms.  The  discovery  of  the  conveyances  to  William  F.  Downs 
in  this  case  is  not  of  equal  importance  to  the  recuperation  of  the 
Ull  of  sale  of  the  vendor  in  Einaan  v.  FioheU,  2  Hill  Ch.  861, 


S96  Presley  v.  DAVia  [S.  Carolina, 

where  reriew  on  this  account  was  refased.  In  Ex  parte  Vander- 
9mis9en,  5  Bich.  Eq.  619  [60  Am.  Dec.  102],  a  bill  of  reyiew  was 
allowed  where  the  evidence  might  have  been  produced  at  the 
original  trial,  if  the  counsel  had  been  very  astute  and  diligent; 
but  there  the  new  evidence  was  in  a  foreign  language,  it  was  de- 
cisiye  of  the  case,  and  the  apparent  negligence  of  counsel  was 
excused  by  the  change  of  their  members.  The  case  itself  may 
be  liable  to  some  criticism.  It  at  least  admonishes  us  of  the  dif- 
ficuliy  of  laying  down  inflexible  rules  as  to  rehearings  and  bills 
of  review. 

I  have  to  a  great  extent  anticipated  the  strongest  objection 
to  review  in  this  case,  that  the  petitioner  has  not  shown  the  ex- 
ercise of  due  diligence  in  procuring  the  new  teetiinony.  The 
evidence  alleged  to  be  newly  discovered  is  of  a  fact  directly  in 
issue  in  the  former  trial — ^is  in  its  nature  merely  cumulative  of 
the  actual  evidence  then  used,  and  it  might  easily  have 'been 
then  brought  to  light  by  proper  diligence.  No  attempt  was 
made  at  or  before  the  trial  to  obtain  from  the  heirs  or  repre- 
sentatives of  Jonathan,  Sarah,  or  William  F.  Downs  the  deeds 
or  plats  exhibiting  the  titles  of  the  respective  parties.  The  same 
witnesses  who  now  give  testimony  of  error  in  the  estimates  of 
the  cultivated  lands  were  examined  on  the  original  trial  on  the 
part  of  the  plaintiff,  and  might  then  have  been  constrained  by 
searching  examination  to  give  all  the  information  which  they 
now  in  some  sort  volunteer. 

We  are  of  opinion  that  the  petition  of  plaintiff  was  properly 
refused  under  the  droumstances  of  this  case. 

It  is  therefore  ordered  and  decreed  that  the  appeal  be  dis- 
missed. 

Johnston,  DxtnxiNi  and  Dabo^n,  chancellors,  concurred. 
Appeal  dismissed. 

Bills  of  Rsvncw  are  Disoussxd  at  length  In  the  note  to  Brewer  v.  Bowen, 
10  Am.  Deo.  100;  see  also  Harma  y.  8poit$,  43  Id.  132;  Jamee  ▼.  FItk,  47 
Id.  Ill;  De  Lauu  v.  Meek,  60  Id.  491;  Bos  parU  Fwim-Milw,  00  Id.  10& 


Pbesley  V.  Dayib. 

[7  BtOBABDtOX'a  Bquitt,  lOS.] 

Obandghildrbn  ojlv  not  Take  qndkb  Will  as  <*  Childbin»''  when  than 

are  children. 
WoBDs  of  Sdbvivobsbip  in  Will  Rxfib  to  Datb  of  T^mtatob's  DsAm, 

wharavor  a  gift  takes  effect  in  potBeasion  immediabaly  ttpoa  tiM  dealhi 

nnlesB  some  other  time  is  indicated  by  the  wilL 


Not.  1854.]  Pbbblkt  v.  Davb.  807 

Words  of  Sitkytvobskip  iv  Will  Rslatb  to  Pbuod  of  DirmoN  or  Ev- 
JOTMKNT,  where  the  period  of  enjoyment  ii  postponed  by  interpoeing  a 
life  estate  or  other  particalar  interest,  or  where  a  fatore  period  U  by  the 
will  fixed  for  a  division. 

tnQXATioN  Over  aiteb  Dbath  or  Fan  Takxb  without  Ibbux  is  void  for 
lemoteness,  nnless  there  is  something  in  the  will  to  restrict  the  term 
'*  death  without  issue "  to  lives  in  beings  and  twen^-ooe  years  there- 
after. 

TuM  *'  Survivors,"  in  Will,  R»triois  "  Dnivo  without  lasui  **  to  lives 
in  being,  and  twenty-one  years  thereafter,  where  a  benefit  to  persons  in 
life  not  transmissible  to  heirs  and  representatives  is  plainly  intended,  bnt 
the  words  '*  remainder  of  the  aforesaid  chUdreii "  are  not  equivalent  to 
tiie  term  ''survivofs.** 

^'DnNO  without  Isrur  '*  is  Tistator'b  hOB-roa  is  meant  where  a  testa- 
tor directs  his  estate  to  be  equally  divided  among  his  childrsn,  and  that 
"if  any  should  die,"  etc.,  without  issue,  then  their  portions  are  to  be 
equally  divided  among  the  remainder  of  the  aforesaid  children,  otherwise 
the  limitation  over  is  void  for  remoteness. 

FaTHKR  18  BouKi>  TO  MAINTAIN  MiNOR  Childrxn  ntoM  HD  Oinr  Bbtati, 
if  able,  though  tiiey  have  separate  estate. 

Fathxr  can  not  bu  Allowxd  roB  Pabt  MAiVTBirAKOB  out  of  his  4diild^ 
property. 

Btatutk  of  Limttatiokb  does  not  Apply  to  Tbchnioal  CoNTiNuiiro 
Trusts,  as  in  a  case  between  administrators  and  distributees. 

Appeal  from  a  decree  agarnst  the  appellant  as  admixiistrator. 
The  case  appears  from  the  opinion. 

Thomaonf  for  tiie  appellant. 

Arthur,  contra. 


By  Court,  WABDLAWy  Chancellor.  ThomaB  B.  DaTis  died  in- 
testate in  Febmary^  1886,  poBflesBed  at  his  death  of  some  estate, 
and  leaving  as  the  distributees  of  this  estate  four  brothers,  one 
sister,  and  four  children  of  a  sister,  Martha  Presley,  who  pre- 
deceased him.  Three  of  these  children,  on  March  80, 1853,  cited 
Peter  Davis,  administrator  of  the  intestate,  to  account  before 
the  ordinary  for  his  administration  of  the  estate;  and  afterwards 
they  obtained  from  the  ordinary  a  decree  in  their  behalf  for  a 
spedfic  sum  of  money.  From  this  decree  the  administrator 
appealed  to  the  court  of  equity;  and  the  chancellor  on  circuit, 
after  a  hearing,  ordered  that  "  the  appeal  be  dismissed,  and  that 
the  decree  of  the  ordinary  be  confirmed  and  become  the  decree 
of  this  court."  The  ^inistrator  now  brings  his  case  before 
the  court  of  appeals  on  the  grounds  presented  to  the  circuit 
court,  with  an  additional  ground. 

In  the  first  of  these  grounds  it  is  assumed  that  the  estate  of 
Thomas  E.  Davis  was  acquired  under  the  will  of  his  father. 


898  Pbeslet  v.  DAvm.  [S.  Carolina, 

Jamee  DaTis;  and  it  is  msisted  that  under  the  ninth  clause  of 
this  will,  the  legacy  to  the  intestate  was  limited  oyer,  on  the  con- 
tingency which  has  happened  of  his  dying  without  issue,  to  the 
children  of  testator  surviving  that  event  in  exclusion  of  grand- 
children. No  proof  is  reported  to  us  that  the  estate  of  the  in- 
testate was  thus  acquired;  but  as  the  chancellor  thinks  he  may 
have  decided  the  case  on  concession  of  the  appellant's  statement 
in  this  particular,  we  too  will  admit  the  hypothesis  for  the  pur- 
poses of  this  appeal.  James  Davis,  in  the  first  clause  of  his  will, 
directs  that  his  debts  be  paid;  and  in  the  seven  following  clauses 
gives  to  his  six  children  (including  Martha  Presley,  who  was  living 
at  the  execution  of  the  will  and  at  the  death  of  the  testator)  and  to 
a  grandchild  each  one  shilling,  in  addition  to  advancements  of 
specified  values;  and  in  the  ninth  clause  makes  this  further  dis- 
position: *'  My  will  is  that  the  residue,  if  any,  be  equally  di- 
vided among  all  the  aforesaid  children,  and  those  who  have 
received  a  greater  portion  than  others  of  my  children  must  pay 
back  unto  those  tiiat  lack  till  their  portions  are  made  equal. 
Also,  if  any  of  the  aforesaid  children  should  die  or  make  their 
exit  without  lawful  issue,  then  their  portions  are  to  be  equally 
divided  among  the  remainder  of  the  aforesaid  children." 

The  appellant  argues  that  the  limitation  over  here  is  equiva- 
lent to  a  bequest  to  the  children  of  testator  surviving  any  child 
who  died  without  issue;  and  that  grandchildren  can  not  take 
as  children  where  there  are  persons  exactly  fulfilling  the  descrip- 
tion of  children.  The  latter  proposition  is  sustained  by  author- 
ity :  Ruff  V.  Rutherford^  Bail.  Eq.  7;  Maihis  v.  JSammond,  6  Rich. 
Eq.  121,  398;  the  former  can  not  be  conceded. 

The  first  obstacle  to  the  construction  of  this  clause,  for  which 
appellant  contends,  is  that  the  epoch  to  which  the  supposed 
words  of  survivorship  refer  may  not  be  the  death  of  the  first 
takers  of  the  estate.  It  is  the  established  doctrine  that  wherever 
the  gift  takes  effect  in  possession  immediately  on  testator's  death, 
words  of  survivorship  refer  to  the  date  of  testator's  death,  and 
are  intended  to  provide  for  the  contingency  of  the  death  of  the 
objects  of  his  bounty  in  his  life-time,  unless  some  other  point 
of  time  be  indicated  by  the  will.  If  the  enjoyment  be  postponed 
by  the  interposition  of  a  particular  interest,  such  as  a  life  estate, 
or  by  fixing  a  future  period  for  division,  such  as  the  attainment 
of  the  l^atee  to  full  age,  then  words  of  survivorship  more  nat- 
urally relate  to  the  period  of  division  and  enjoyment:  2  Jarm. 
on  Wills,  450,  632;  Schoppert  v.  GiUam,  6  Rich.  Eq.  88;  Home  v. 
Pillana,  2  Myl.  &  E.  15;  S.  0.,  7  Eng.  Oh.    In  the  present  case. 


NoY.  1854]  Presley  v.  DAVia  899 


the  whole  estate  of  testator,  except  seren  sbilliiigBy  is  disposed 
of  by  the  clause  in  question,  with  manifest  purpose  of  immediate 
enjoyment  by  the  legatees,  and  without  any  intimation  in  the 
context  that  the  testator  meant  to  provide  against  the  death  of 
his  legatees  occurring  after  his  own.    We  adjudge  that  the  death 
of  the  testator  is  the  period  to  which  this  clause  of  the  will  relates. 
Granted  that  the  death  of  the  children  seyerally  is  the  date  to 
which  the  terms  of  this  clause  relate,  the  appellant  next  enooun- 
ters  difficulty  in  maintaining  that  there  are  any  terms  in  the 
clause  equivalent  to  survivors,  and  sufficient  to  avoid  the  rule 
against  perpetuities.     A  limitation  over  after  the  death  of  the 
first  taker  without  issue  is  void  for  remoteness,  as  the  extinc- 
tion of  issue  may  occur  in  a  remote  generation,  and  there  must 
be  something  in  the  bequest  or  context  to  restrict  the  phrase  of 
death  without  issue  to  lives  in  being,  and  twenty-one  years  after- 
wards.   It  is  settled,  after  much  controversy,  that  the  term  '*  sur- 
vivors "  has  this  restrictive  operation,  where  benefit  to  persons  in 
life,  not  transmissible  to  heirs  and  representatives,  is  plainly  in- 
tended.   The  vice  of  remoteness  is  not  escaped  where  the  gift 
over  is  to  persons  in  being  by  name,  or  to  survivors  and  their 
heirs  and  representatives;  for  in  these  cases  the  heirs  and  repre- 
sentatives would  be  entitled  to  take  at  whatever  time  the  issue 
of  the  first  taker  might  fail:  Mdssey  v.  Hudaon^  2  Meriv.  130; 
Stevens  v.  Patteraon,  Bail.  Eq.  42.   In  many  cases  where  the  very 
term  "survivors"  has  been  used,  it  has  been  interpreted  as 
synonymous  with  others,  and  consequently  insufficient  to  tie  up 
the  generality  of  the  phrase  *'  death  without  issue."    Here  the 
words  are  **  the  remainder  of  the  aforesaid  children,"  which  are 
not  equivalent  to  ''  the  survivors  of  my  children,"  but  naturally 
means  the  rest,  "  the  others  of  my  children."    In  Biick  v.  Cox,  5 
Rich.  604,  where  a  testator  bequeathed  certain  personal  estate  to 
be  equally  divided  between  his  sons  Harmon  and  Peter,  and  fur- 
ther provided,  *'  if  either  of  my  two  sons  should  die  without  law- 
ful issue,  that  my  other  son  shall  have  his  part  of  my  property," 
the  court  of  errors  unanimously  decided  tliat  the  limitation  over 
was  void  for  remoteness.    This  case  affirmed  the  previous  case 
of  Shephard  v.  SJiepfiard,  2  Rich.  Eq.  142,  where  there  was  a 
bequest  to  three  children  of  testator  by  name,  but  in  case  of  the 
death  of  either,  his  share  to  go  to  the  others,  to  be  equally  di- 
vided between  them;  and  the  gift  over  was  held  to  be  void  for 
remoteness,  and  identical  with  the  case  of  a  limitation  over  to 
B.  if  A,  should  die  without  issue.     Again :  to  adopt  the  construc- 
tion which  the  appellant  urges  would  be  attended  with  the  con- 


400  Preslet  t;.  Davi&  [S.  Carolina, 


eequenoe  of  dkinlieritiiig  the  issue  of  testator's  danghiarylfarttia 
Presley.  And  conrts  in  the  interpretation  of  instniments  of  gift 
seek  to  aToid  such  a  consequence,  and  adopt  a  eonstruotioii  at- 
tended with  it  only  when  compelled  by  established  roles  and 
principles:  Packham  v.  Oregory^  4  Hare,  896;  8. 0. ,  80  Eng.  Oh. ; 
Evans  v.  Oodbold^  6  Rich.  Eq.  26.  In  the  present  instance,  there 
is  no  authority  which  authorizes,  much  less  compels,  us  to  hold 
«<  remainder  of  the  aforesaid  children"  as  synonymous  with 
*'  survivors  of  the  said  children: "  Shaw  y.  Mon^elt,  Id.  240.. 

The  second  ground  of  appeal  is,  that  the  ordinary  should  have 
allowed  credit  to  the  administrator  for  the  sums  expended  by 
the  fiather  of  the  complaining  distributees  in  their  maintenanoe, 
because  their  father,  Lewis  Presley,  was  not  of  ability  to  main- 
tain them  without  the  employment  of  their  shares  for  this  end. 
There  is  no  proof  of  any  fact  upon  which  this  pzoposition  oould 
be  plausibly  rested.  It  does  not  appear  that  Lewis  Preelej 
was  not  of  ability  to  maintain  his  children,  nor  that  he  sets  up 
any  claim  for  their  maintenance;  nor  that  he  received  their 
shares,  or  made  any  settlement  with  the  administrator  in  their 
behalf.  The  whole  sum  of  the  evidence  is,  that  he  was  a  pur- 
chaser at  the  administrator's  sale,  probably  to  the  extent  of  his 
children's  share,  and  that,  like  other  purchasers,  he  gave  his  note 
with  sureties  for  his  purchases,  and  that  this  note  has  not  been 
paid.  But  if  the  &ther  were  now  claiming  for  the  past  main- 
tenance of  his  children,  his  claim  would  be  rejected.  A  father 
is  bound  to  maintain  his  infant  children  from  his  own  estate, 
however  ample  may  be  their  separate  resources,  and  no  allow- 
ance for  this  purpose  will  be  made  to  him  out  of  their  estate.  If 
he  be  unable  to  maintain  them,  the  court  may  order  maintenance 
out  of  their  own  property,  upon  his  petition  for  this  purpoee; 
the  first  point  of  inquiry  being  his  ability  to  maintain  them 
suitably  from  his  own  estate.  But  his  past  maintenance  of 
them  creates  no  debt  from  them  to  him.  The  doctrine  and 
practice  of  the  court  on  this  point  were  first  explicitly  declared 
by  Lord  Thurlow,  and  although  somewhat  discredited  by  Lord 
Eldon  on  a  mistaken  supposition  of  change  of  procedure,  have 
been  firmly  re-established  by  recent  decisions.  Lord  Gotten- 
ham,  in  a  recent  case.  Ex  parte  Bond,  2  Myl.  &  E.  439;  S.  C, 
7  Eng.  Oh.,  says:  ''  To  allow  for  past  maintenance,  and  to  treat 
as  a  debt  the  expenditure  which  the  law  imposed  upon  the  father 
as  a  duty,  would  be  to  act  against  a  settled  rule  of  the  court.  The 
court  might,  if  a  special  case  were  made,  direct  an  inquiry," 
etc. :  Simon  v.  Barber,  Taml.  22;  12  Eng.  Ch. ;  ffughea  v.  Hughe^ 


Nov.  1864]  FftESLET  V.  DAVia  40i 

1  Bro.  0.  0.  887;  ma  y.  Chapman,  2  Id.  281;  Andreum  t.  Par- 
tington, 3  Id.  60;  McPherson  on  InfaDcy,  145,  219.  Here  it  is 
not  the  father,  but  an  administrator,  without  privilj  with  him, 
who  sets  up  this  untenable  claim. 

The  third  ground  of  appeal  is,  that  the  applicants  to  the  ordi- 
naiy  for  account  were  barred  bj  the  statute  of  limitations.  The 
eldest  of  them  was  near  thirty  years  of  age,  the  second  about 
twenty-fiye,  and  the  third  about  twenty-three,  when  the  pro- 
ceedings for  account  were  instituted.  The  statute  is  inappUca- 
Ue  to  teclinical  and  continuing  trusts,  as  in  this  case,  between 
an  administrator  and  distributees;  and  there  is  no  proof  here  of 
any  act,  such  as  a  settlement  of  his  accounts,  by  which  the  ad- 
ministrator  purported  to  execute  his  trust,  throw  off  his  fidu- 
dazy  character,  and  place  himself  in  the  position  of  a  stranger 
to  the  beneficiaries:  BrockingUm  t.  Camlin,  4  Strobh.  Eq.  189. 
This  ground  is  not  sustained. 

In  addition  to  these  grounds,  which  were  presented  to  the  cir- 
cuit court,  the  appellant  further  insists  here  that  the  court  of 
^uity  has  no  authority,  under  the  act  of  1839,  to  enforce  by  its 
process  of  execution  the  decree  of  the  ordinary.  Whatever  maj 
be  the  proper  procedure  for  executing  the  judgment  of  the 
ordinary,  and  without  meaning  to  disparage  the  right  of  the 
distributees  to  the  processes  of  this  couirt  against  the  adminis- 
trator, it  is  sufScient  reply  to  this  ground  of  appeal  that  the  cir- 
cuit decree  does  not  prescribe  any  particular  mode  of  execution, 
and  leaves  the  distributees  to  proceed  as  they  may  be  advised. 

The  only  error  in  the  ordinary's  decree  as  presented  to  us, 
which  I  perceive,  is  one  in  favor  of  appellant,  in  allowing  in  his 
behalf  one  third  of  the  share  of  the  children  of  Martha  Presley 
to  their  father,  Lewis  Presley;  whereas,  as  their  mother  pre- 
deceased her  intestate  brother,  the  children  were  the  distribu- 
tees under  the  statute,  in  exclusion  of  the  father. 

It  is  ordered  and  decreed  that  the  circuit  deoree  be  afSrmed, 
and  that  the  appeal  be  dismissed. 

JoHNSTOTi,  DuNXZN,  and  Daboan,  chancellors,  oonourred. 
Decree  aflSrmed. 

LnoTATiON  OVKB  OH  I>iATB  WRHOVT  IflsUB:  See  BeU  V.  Bcammen^  41 
Am.  Deo.  706;  Shepard  v.  Shepard,  46  Id.  41;  Downing  v.  Wkerrint  40  Id. 
139;  SpruUl  v.  JUone,  Id.  428;  SchuUz  v.  SchuUsi,  60  Id.  335,  and  notea. 

Pabxnt'b  Bight  to  Claim  yob  CmLD's  Maintknancs  out  of  hie  eetele:  See 
tile  note  to  OuUm  v,  ChtJUm^t  AdnCr^  57  Am.  Deo.  226,  dieconing  thie  tabjeot. 

What  Tbustb  aks  ob  abb  kot  wimnr  Statutb  of  Lzmitasiohs:  Set 
McDowdl  Y.  OoUUmiih,  61  Am.  Deo.  305,  and  note. 
Am.  Dm  Tol.  LZn— M 


CASES  m  EQUITY 

IN  THfl 

COURT  OF  ERRORS 

OF 

86UTH    CAROLINA. 


GxniMiNGS  V.  Coleman. 

[7  BiOHABDaoir^  Bqytitt,  809.] 
DlLITSBT  Of  GhATRLS  TO  PUBCHASKB  AT  AdMINISIKASIOV   SaLB  li  MlA- 

dent,  if  the  purohaBer,  after  the  hid,  takes  poeaeesion  withont  a  treapaM. 
ADitiimTRATOB  Purchasing  Chattels  at  Aduikistratiok  Salb  haa  the 
l^gal  title  already,  and  is  not  hound  to  give  farther  aeonii^,  beyond  his 
administration  bond,  for  his  pnrchaae. 

OOVSUMMATION    OF    TiTLB    OF    PUBOHABEB    AT    ADUOnBTBATOE'S    SAI.B    lO 

chattels  porchased,  after  he  has  made  a  gift  of  them,  inar8a»  by  way  of 

estoppel,  to  his  donee. 
WomDa  iif  Statutb  must  bi  0>N8TBun>  in  Populab  Sdibb,  as  a  general 

mle. 
'*PimcHA8XB"  IN  Statutb  Making  Pabol  Qifts  Void  ab  to  CBBDnoBa* 

PuBOHASERS,  AND  MoBTOAGEBS,  withoot  soffideot  change  of 

means  a  parohaser  for  money  or  other  valoable  conaideratioo. 
Whbthsb  Husband  is  "  Purchaseb  "  of  Wifb'b  Chattels  before 

riage,  within  the  meaning  of  a  statute  making  parol  gifts  without  deltT* 

ery,  void  as  to  "pnrohasers,"  qiuare, 
8UB8BQUBNT  PuBOHASEB  WITH  NoTiOB  OF  QiFT  whloh  the  statate  makea 

Toid  as  to  pnrohasers  for  want  of  saffident  change  of  poassasioii  oan  boI^ 

avdd  SQch  gift. 
Defendant  can  not  Avail  Himself  of  Definbb  not  Plbadbd  Ib  his  an- 
swer, in  an  equity  suit,  though  the  defense  appears  in  proof. 
Plba  of  Bona  Fide  Pubohaseb  fob  Value,  without  Nonoi.  must  ael 

forth  the  various  requisites  of  the  defense  with  convenient  oertala^,  and 

must  explidtly  deny  notice  of  the  plaintiff's  daim  befofe  ezeontion  of 

the  oonveyaaoe  and  payment. 

AmAL  from  a  decree  for  the  delivery  of  certain  alavee  to  tlM 
complainants.  It  appeared  that  the  slaves  were  formerly  the 
property  of  the  plaintifb' father;  that  Malinda  Boyd,  the  mothcf 


Not.  1862.]  OcTioaNGS  v.  CohtMAXL  403 

of  tho  plaintiffti,  adminiBtered  upon  her  huBband'B  estate  oon- 
jointlj  with  the  defendant,  and  that  at  a  eale  of  property  of  the 
estate  the  plaintiffs'  mother  bid  off  the  slaTes  in  qneetion,  and 
immediately  after  the  bidding  made  a  parol  gift  of  them  to  the 
plaintiffs,  Ihen  infants  of  tender  years  Hying  with  their  mother. 
There  was  no  eyidence  of  delivery  of  the  slaves  to  the  plaintiffs' 
mother,  except  that  she  took  possession  of  them  at  the  time  of 
her  bid.  The  sale-bill  for  them  was  afterwards  retomed^  and 
the  mother  continued  in  possession.  It  was  claimed  that  the 
gift  was  void  because  the  mother  was  indebted  at  the  time,  and 
because  the  plaintiffs  were  living  with  their  mother  at  the  time, 
and  there  was  no  proof  of  actual  delivery  to  them  and  oontin- 
aed  possession  by  them  after  the  gift.  After  the  gift  the  mother 
inteimarried  with  one  Keith,  who  became  indebted  to  the  de- 
fendant and  gave  him  a  mortgage  on  the  slaves.  Keith  died, 
and  the  defendant  administered  on  his  estate.  The  slaves  were 
sold  as  part  of  the  estate  to  pay  the  defendant's  mortgage,  and 
he  became  the  purchaser.  Other  facts  appear  from  the  opinion. 
The  chancellor  in  the  court  below  decreed  in  favor  of  the  com« 
plainants,  holding,  among  other  things,  that  the  mother's  taking 
possession  of  the  slaves,  without  trespass,  was  a  sufficient  de- 
liveiy;  that  as  administratrix  the  legal  estate  was  in  her,  and 
that  the  subsequent  return  of  the  sale-bill  and  her  oontinned 
possession  consummated  her  title,  and  inured  by  way  of  estop- 
pel to  her  donees,  and  that  the  gift  was,  under  the  oiioom* 
ilanoee,  valid  against  the  defendant.    The  defendant  appealed. 

Eammond  and  Bwohanan^  for  the  appellant. 

BcyUUm,  covUra. 

By  Oourt,  Wabdlaw,  Ohanoellor.  Upon  examination  of  the 
answer  in  this  case,  it  appears  that  the  defenses  pleaded  atet 
that  no  gift  was  made  to  the  female  plaintiffs  by  Malinda  Boyd, 
afterwards  the  wife  of  John  Keith;  that  the  donor  had  no  Ic^ 
estate  in  the  chattels  at  the  time  of  the  gift;  that  the  gift  is 
void  from  the  indebtedness  of  the  donor  at  the  time  of  gift; 
that  the  gift  is  void  under  the  act  of  1882,  6  Btat  488,  as  to  the 
defendant,  a  subsequent  creditor  of  the  donor,  inasmuch  as 
the  donees  lived  wilh  the  donor,  and  had  no  actual  possession 
of  the  chattels  given;  that  the  defendant  is  a  subsequent  cred- 
itor and  mortgagee,  without  notice  of  the  gift,  of  John  Keith, 
afterwards  husband  of  the  donor;  and  that  if  notice  be  fixed 
upon  him  he,  as  administrator  of  John. Keith,  is  entitled  to  ad- 
Biinister  the  chattels  given,  as  assets  of  his  intestate,  in  behalf 


M4  CuMMiNGS  V.  OousMAX.  [S.  Guoliii% 

of  creditors  of  Keith,  who  had  no  notioe  of  the  gift  We  an 
satisfied  with  the  oondnsions  of  the  chancellor  as  to  all  of  these 
grounds  of  defense,  and  we  consider  it  neceesaxj  to  add  little 
to  his  reasoning.  It  is  well,  however,  to  say  that  no  indebted- 
ness whatsoeyer  of  the  donor,  at  the  time  of  the  gift,  or  isabse- 
quently,  is  proved,  unless  we  assume,  in  the  absence  of  egress 
proof,  that  she  and  defendant  joined  in  one  administration 
bond.  It  is  the  usual  but  not  the  neceesaxj  course  of  proceed- 
ing that  joint  administrators  give  a  single  bond.  The  defend- 
ant was  no  creditor  of  Malinda  Boyd  unless  he  was  surety 
upon  her  administration  bond.  If  she  gave  a  separate  bond  for 
her  administration  of  the  estate  of  Samuel  Boyd,  to  which  bond 
the  defendant  was  no  surety,  she  never  incurred  debt  to  her  co- 
administrator; and  supposing  that  she  committed  a  detxxaiavii  in 
giving  away  the  estate,  she  incurred  a  debt  to  herself,  which 
was  extinguished  by  the  concurrence  of  the  characters  of  debtor 
and  creditor,  and  she  could  be  made  responsible  on  her  bond 
as  administratrix,  and  not  otherwise. 

The  discussion  in  this  court  has  been  principally  concerning 
the  truth  of  the  proposition  that  by  marriage  a  husband  becomes 
purchaser  for  valuable  consideration  of  the  wife's  chattels  in 
possession,  in  the  sense  in  which  the  term  **  purchaser'*  is  used 
in  the  act  of  1832.  A  general  rule  in  the  interpretation  of  stat- 
utes is  to  define  the  words  employed  by  the  legislature  in  their 
popular  sense.  It  was  argued  before  us  that  the  term  ''  pur- 
chaser," in  the  act  of  1832,  must  be  understood  in  the  technical 
sense  of  one  who  acquires  estate  by  any  other  mode  than  by 
descent.  This  distinction  between  purchase  and  descent  is  ap* 
plicable  to  real  estate  only,  for  personal  property  is  never  ac- 
quired by  descent;  and  if  applied  to  personally,  this  definition 
of  purchase  would  lead  to  the  absurdity  that  a  subsequent  volun- 
tary donee  might  set  aside  a  previous  gift  by  his  donor.  "  Pur- 
chaser," in  the  act  of  1832,  must  mean  one  who  buys  the  chattel 
for  money  or  other  valuable  consideration.  Whether  the  hus- 
band is  a  purchaser  in  this  popular  sense,  under  the  act  of 
1882,  is  a  question  upon  which  we  have  attained  no  conclusion; 
and  we  reserve  the  decision  of  it  imtil  it  may  be  presented  by 
proper  pleadings.  In  the  present  case  the  question  is  not  pre* 
sented  by  the  pleadings.  It  is  true  that  the  marriage  of  Keith 
with  the  donor  and  his  subsequent  possession  of  the  slaves,  the 
subject  of  gift,  are  stated  in  the  answer;  and  this  statement 
might  be  considered  as  sufficient  allegation  that  the  husband 
was  a  purchaser;  but  the  material,  integral  portioii  of  this  de- 


Sm.  1862.]  CumnNQS  v.  OouncAir.  405 

fanse,  that  iSb»  hiubftnd  pordiMed  without  notioey  is  altogether 
omitted.  This  omission  aooomits  for  the  &ot  that  defendaai^s 
daim  as  mortgagee  of  thehushand  in  the  chamoter  of  purchaser 
from  the  dcmor  was  not  argued  on  the  dronit,  nor  oonsidered 
hy  the  chancellor.  The  point  that  a  husband  is  a  pnrchassr 
imder  the  act  of  1832  is  yerj  Tsgaelyy  if  at  all»  suggested  in  the 
grounds  of  appeal.  In  the  third  gromid  of  appeal,  which  is 
the  only  one  containing  any  hint  of  the  point,  the  last  words, 
"  Babseqnent  purchasers,"  more  naturally  refer  to  the  purohas- 
tts  under  the  sale  for  foreclosure  than  to  a  single  purchaser,  the 
hufihand. 

If  Keith  had  notice^  before  marriage,  of  the  gift  made  by  his 
wife  while  Malinda  Boyd,  the  gift  was  no  fraud  upon  his  marital 
rights;  on  the  contrary,  it  would  be  a  fraud  in  him  to  purchase 
the  chattels  with  the  view  of  avoiding  the  gift.  Where  one  has 
notice  of  an  instrument  of  conyeyance  Toid  for  incompleteness 
of  execution — for  example,  of  a  devise  of  lands  without  attesting 
witnesses — ^he  may  safely,  notwithstanding  notice,  treat  the  in* 
Btrument  as  legally  invalid,  and,  in  disregard  of  it,  may  make  a 
contract  concerning  the  subject.  Not  so  of  an  instrument  com- 
plete in  itself,  but  declared  void  by  the  legislature,  from  con- 
siderations  of  policy,  as  to  particular  classes  of  persons.  Now 
ft  parol  gift  of  a  chattel,  although  the  donee  may  not  have  actual 
snd  separate  possession,  is  as  complete  and  valid  since  the  act 
of  1832  as  before,  so  far  as  concerns  the  parties,  volunteers 
claiming  under  them,  and  all  other  persons  except  subsequent 
ereditors,  purchasers,  and  mortgagees,  who  may  avoid  the  gift. 
One  who  credits  a  donor  in  possession  of  a  chattel,  looking  to 
the  chattel  for  payment,  or  buys  or  becomes  mortgagee  of  the 
chattel,  after  notice  of  a  gift  of  it,  commits  a  fraud  upon  the 
donee,  and  deserves  no  favor  in  a  court  of  equiiy.  The  want  of 
notice  of  the  gift  to  the  husband,  Keith,  is  an  essential  part 
of  the  defendant's  defense;  and  of  course  should  have  been 
ftlleged  in  the  answer.  Besides  answering  the  plaintiff's  case  as 
made  by  the  bill,  a  defendant  must  state  to  the  court  in  the 
answer  all  the  circumstances  of  which  he  intends  to  avail  him- 
self by  way  of  defense;  for  it  is  a  rule  that  a  defendant  is  bound 
to  apprise  a  plaintiff  by  his  answer  of  the  nature  of  the  case  he 
intends  to  set  up,  and  that,  too,  in  a  clear  and  tmambiguous 
manner;  and  a  defendant  can  not  avail  himself  of  any  matter  in 
defense  which  is  not  stated  in  his  answer,  even  though  it  should 
appear  in  his  evidence:  Daniell's  Ch.  Pr.  814,  992;  Stanley  v. 
Bobinam,  1  Buss.  &  Myl.  527;  3.  0.,  5  Eng.  Ch.;  Harriaan  v. 


406  GuMKiNGS  V.  GoLEMAN.  [S.  OarolinA. 


BcrwOl,  10  ffim.  880;  S.  C,  6  Eng.  Oh. ;  Smiih  v.  Olarhe,  12  Yes. 
477.  A  plea  of  pnichaaer  for  valiiable  consideration  without  noUoe 
iDOfit  set  forth  the  Tarions  requisites  of  the  defense  with  such 
eonvenient  certainty  as  to  form  a  definite  issue  when  traTersed, 
and  must  not  rest  in  intendment,  or  in  general  terms  and  alle- 
gations: 2  White  k  Tudor's  Lead..Cas.,pt.l,  116;  Story^s  Eq. 
PI.  806.  Amongst  other  things,  such  plea  must  deny  notice  of 
the  plaintiff's  title  or  claim,  previously  to  the  execution  of  the 
deed  and  payment  of  the  purchase  money:  Daniell's  Ch.  Pr.  777. 
As  Chancellor  Harper  remarks,  in  Oheanui  y.  Strong^  2  Hill  Ch. 
150,  *'  When  the  want  of  notice  is  relied  upon  as  a  defense,  the 
defendant  is  required  to  deny  the  notice  explicitly  on  oath." 

It  is  scarcely  ever  safe  to  allow  deviations  from  the  regnlai 
procedure  of  the  court;  and  where  the  general  justice  of  the  case 
is  so  clearly  against  a  defendant  as  in  the  present  instance, 
there  is  special  propriety  in  restricting  him  to  the  defenses  he 
has  regularly  stated. 

It  is  ordered  and  decreed  that  the  decree  be  affirmed  and  the 
appeal  be  dismissed. 

Johnston,  Dunkdi,  and  Daboan,  chancellors,  and  O^xaix, 
Wabdlaw,  Fbost,  and  Withkbs,  JJ.,  concurred. 


WoBDS  IN  Statutb,  HOW  GoNSXRUSD:  See  Janea  ▼.  t/onef,  86  Am.  Deo.  728| 
Carpenier  v.  State,  34  Id.  116;  Budener  ▼.  lUal  EstaU  Bank,  41  Id.  106;  SiaU 
r.  Baltimore  etc  B,  B.  Co.,  38  Id.  317;  Faven  ▼.  Olaee,  68  Id.  272. 

Bona  Fidn  Pubghabxe,  defense  of,  how  set  up:  See  Baynard  ▼.  Ncrrit,  46 
Am.  Deo.  647;  Johmon  ▼.  Tovimin,  62  Id.  212;  Byen  t.  IhwUr,  64  Id.  271. 

PcBOHASSB  WTTH  NonoB  OF  VoLUNTABT  CoNYSTANOs»  whether  pTotsoted 
Againat  it:  See  Lewie  t.  Lcve,  88  Am.  Deo.  161;  I^reeman  y.  Eaiman^  40  Id. 
444;  i/eux  y.  AntMony,  62  Id.  274. 


CASES  AT  LAW 

ni  TBM 

COURT  OF  APPEALS 

Of 

SOUTH   OABOLINiL. 


Dill  v.  South  Gabolina  Railboad  Ga 

[7  BioBAaDMnri  Law,  ub.] 

BAn.iiaiP  Compant'b  Liabujtt  risfiotino  Passxnosb^  Baqoaob  n 
That  or  Commom  Cabbtick,  and  is  only  excnaed  by  aoi  of  God  or  of  ih« 
enemiat  of  the  ooontry. 

Baooaos  Chicks  arb  Evidbncb  of  DKLrnotT  of  Bagoaob  to  RiiutOAB 
CoMPAiTT  imdng  them;  and  as  a  trunk  is  the  osnal  means  of  ooBvoyiug 
baggage,  a  check  is  evidence  of  the  delivery  of  a  trunk,  the  bniden  ol 
proof  being  on  the  railroad  company  to  show  that  the  baggage  delirersd 
was  not  a  trunk. 

PAMsiroiB  IS  KOT  GoMFKTBKT  WiTNBn  TO  Pbotb  VALim  OF  Cownom 
OF  Trunk  delivered  by  him  to  a  railroad  company  for  transportatian  as 
baggage. 

MiAKniB  OF  Damaorb  for  Loss  of  BAoaAOR  bt  Bailroad  Oompabt,  la 
the  absence  of  proof  as  t9  the  contents  and  value  thereof,  is  the  value  d 
the  articles  which  the  Jury  in  its  judgment  think  such  baggage  did  or 
might  fairly  contain. 

AonoH  against  a  railroad  company  to  recoyer  the  valne  of 
baggage  alleged  to  have  been  lost  or  not  delivered  to  the  plaint- 
iff, a  passenger  on  such  company's  road.  On  the  trial,  plaintiil 
offered  in  evidence  a  baggage  check,  such  as  is  ordinarily  given 
to  passengers  by  the  company  as  a  receipt  for  baggage.  The 
remaining  facts  are  stated  in  the  opinion. 

Connor,  for  the  appellants. 

James  SimoM,  conira. 

By  Court,  O'Nxaix,  J.    Althougli  the  groiinds  of  appeal  do  not 

question  the  general  liabiliiy  of  the  defendants,  yet  it  is  difficult 

to  consider  appropriately  the  questions  made  by  them  without 

itating  it.    The  defendants  are,  in  respect  to  the  baggage  of 

un 


408  Dill  v.  Soxtth  Cabolina  R.  R.  Oo.  [S.  Garolina^ 

paaaengers,  oommon  carriers,  and  liable  for  the  same,  unleM 
excused  by  the  act  of  Gk>d  or  the  enemies  of  the  countxy:  Story 
on  Bail.,  sec.  509;  Camden  A  Amboy  B.  B.  Co.  t.  Burhe,  18 
Wend.  611  [28  Am.  Dee.  488]. 

It  is  necessary,  howeyer,  to  fix  them  with  this  liability  that  it 
should  be  shown  that  the  plaintiif' s  baggage  was  deUrered  to 
them.  Their  check,  found  in  his  possession,  is  the  eridence  of 
that  fact.  They  themselves  have  so  made  it,  and  it  stands  in  the 
place  of  a  bill  of  lading.  What  was  deliyered  under  it  is  the 
difficuliy.  Was  it  a  trunk  or  some  other  thing?  The  plainti£F 
claims  tiiat  it  was  a  trunk  delivered;  this  is  the  usual  means  of 
a  traveler's  conveyance  of  his  baggage.  Search  was  made  for 
such  an  article  at  the  plaintiff's  request.  This  was,  I  think,  all 
the  plaintiff  could  show,  and  the  burden  was  on  the  defendants 
to  show  that  he  did  not  deliver  to  them  a  trunk,  but  some  other 
articles. 

The  next  question  which  arises  is,  What  were  the  contents  and 
value  of  the  trunk?   To  show  this,  the  plaintiff  was  offered  as  a 
witness.     In  support  of  this,  1  Greenl.  Ev.,  sec.  348-9,  were 
eited.    It  is  true,  in  section  848  a  very  imposing  case  is  men* 
tioned,  where  a  shipmaster  received  a  trunk  of  goods,  broke  it 
open,  and  rifled  it  of  its  contents.     On  these  facts  appearing 
aliunde,  it  was  held  that  the  plaintiff  might  testify  to  its  con- 
tents.    So  in  Ohio,  in  Mad  Biver  d  Lake  Erie  B.  B.  Co.  v.  FSd- 
km,  20  Ohio,  819,  for  the  baggage  of  the  wife,  it  was  held  that 
as  from  necessity  the  husband  might  testify  to  the  value  of  his 
baggage  lost,  so  his  wife  might  give  evidence  of  her  own  per- 
sonal baggage  lost  when  the  husband  was  not  in  company. 
These  are  exceptions  allowed  by  tribunals  in  other  states  to  the 
rule  that  a  party  can  not  testify  in  his  own  case.     No  such 
exceptions  have  ever  been  allowed  in  this  state:  Carrie  v.  Calder, 
6  Kich.  L.  198.     Here  a  party  merely  nominal,  or  a  merchant, 
shop-keeper,  or  mechanic  keeping  books,  or  a  party  offered 
against  his  own  interest,  have  been  allowed  to  testify.     Beyond 
this  we  liave  not  ventured  to  go.     Some  of  the  exceptions  men- 
tioned and  allowed  in  1  Greenl.  Ev.,  sec.  849,  such  as  the  loss 
of  a  deed,  have  been  expressly  denied  in  this  state.     We  do  not 
think  it  would  be  wise  to  extend  the  exceptions  beyond  those 
already  allowed.     Hence  it  becomes  necessary  to  inquire  how 
the  value  of  the  article  can  be  fixed?    I  know  of  no  better  rule 
than  that  stated  by  Garrow,  B.,  in  BuUer  v.  Basing,  2  Car.  ft  P. 
618;  S.  0.,  12  Eng.  Com.  L.  287,  288,  in  bis  instructions  to  the 
jury  "  to  give  damages  proportioned  to  the  value  of  the  articles 


Jan.  1854]  Nettles  u  Sottth  Caboldta  R  R  Ox  409 

which  you,  in  your  jadgment,  think  the  box  did  and  might  iaiziy 
eontain/'    This  was  the  oonrse  adopted  by  the  recorder  in  thbi 


The  railroad  company  in  general  adopt  as  a  role  that  the 
party  claiming  for  a  loss  mnst  show  the  Talue  of  the  thing  lost. 
Ordinarily  this  is  done  by  the  party's  affidavit;  if  this  be  regarded 
as  fixing  too  high  a  value,  the  burden  is  on  them  to  show  that  it 
was  of  lees  value,  or  to  run  the  chances  of  a  jury  agreeing  with 
them  or  their  adversary.  In  some  cases,  where  a  description  of 
the  article  can  be  given,  the  jury  have  a  very  proper  measure  of 
damages  in  their  Imowledge  of  its  value.  In  other  oases,  it  may 
be  very' much  conjectural,  but  it  is  not  to  be  supposed  the  com- 
pany would  suffer  them  to  go  beyond  the  plaintiff's  own  valua- 
tion by  withholding  his  affidavit.  If  they  do,  it  will  be  their 
own  folly,  and  they  will  have  no  right  to  complain. 

The  motion  is  dismissed. 

Wabdlaw,  WmnrxB,  Glovib,  and  Musbo,  JJ.,  concurred. 
Motion  dismissed. 

LiABiLiTT  OF  CoMHON  Caxbikr  vob  Bagoaob  OF  pABSBNOXR:  Soe  Woodi 
V.  Z>Mtfi,  56  Am.  Beo.  483,  mnd  note  487,  where  bther  cases  are  collected. 

Baqoaob  Chicks  as  Evidxncs  of  Djojvzbt  of  Baooaob  to  Cabbixe: 
Bee  Qcvernor  v.  WUier.%  50  Am.  Deo.  100,  note. 

OwKSK  OF  Trunk  Lost  by  Cabbikb  is  held  to  be  a  competent  witness  to 
pfove  its  contents:  See  PeixolU  v.  McLaugkUm^  4t1  Am.  Dec  503;  Dibhh  v. 
Broum,  56  Id.  460,  and  cases  collected  in  note  470. 


Nettles  v.  South  Gabolina  Railboad  Go. 

[7  BtcHABDioir'fl  Law,  190.] 

Ckuofoir  Cabbixbs  abb  Bound  to  Deliver  Gk>0DS  withik  BKASomLBUi 
TncB,  and  on  failnre  to  do  ao,  in  the  absence  of  proof  of  diligence,  they 
are  liable  for  damages  occasioned  by  the  delay. 

Hbabubb  of  Dauaobs  fob  CoMMOir  Cabbibb's  Failvbb  to  Dbuvbb 
Goods  within  Reasonablb  Timb  is  the  valae  of  the  goods  at  the  time 
and  place  where  they  should  have  been  delivered,  together  with  any  rea- 
sonable loss  or  expense  directly  occasioned  by  the  delay,  less  the  value 
of  the  goods  according  to  their  condition  at  the  time  and  place  of  actual 
delivery  or  tender. 

DoOTBDra  OF  Tbohnioal  Abandonmbnt  18  HOT  Applioablb  to  Couifoif 
Cabbibbs. 

AoxiOH  against  a  common  oarrier  for  damages,  for  failure  to 
deliver  within  a  proper  time  certain  goods  which  defendants 
undertook  to  carry  for  plaintiff.    The  goods  were  delivered  to 


410        Nettles  t;.  South  Cabouna  R  IL  Co.  [S.  Carolina, 

the  defendants  for  carriage  about  the  twelfth  of  May,  but  did 
not  reach  their  destination  for  several  months,  and  no  tender 
was  made  of  them  by  defendants  nntil  the  following  September. 
The  remaining  facts  are  stated  in  the  opinion* 

PeHgrewy  for  the  appellants. 

Mowfy,  conlra. 

By  Court,  Wabdlaw,  J.  The  defendants  were  hy  the  contract, 
which,  as  common  carriers,  they  made  with  the  plaintiff,  boond 
to  deliver  the  goods  in  Camden,  within  a  reasonable  time: 
Eaphad  t.  Pickford^  6  Man.  ft  G.  551.  After  the  expiration  of 
the  reasonable  time,  without  disproof  of  negligence  on  their  part, 
they  became  answerable  for  the  wrong  of  non-deliyery;  and  if 
nothing  more  had  appeared,  the  measure  of  damages  would  have 
been  the  value  of  the  goods  at  the  place  where  they  should  have 
been  delivered,  together  with  any  reasonable  loss  and  expenses 
which  had  been  directly  occasioned  by  the  wrong:  Slack  v. 
Baxendale,  1  Exch.  410. 

But  mere  nonfeasance  on  the  part  of  the  defendants,  without 
any  wrongful  act  of  interference,  did  not  amount  to  a  conversion. 
The  goods,  even  after  'great  delay  in  the  carriage  of  them,  be- 
longed to  the  plaintiff.  When  they  were  tendered  to  him,  he 
should  have  accepted  them;  and  thereliythe  extreme  measure 
of  damages  would  have  been  reduced  by  deduction  therefrom  of 
the  value  of  the  goods,  according  to  their  condition  at  the  time 
and  place  of  tender.  The  doctrine  of  technical  abandonment  is 
not  applicable  to  common  carriers  as  it  is  to  insurers,  however 
plain  it  may  be  that  often  without  either  loss  or  conversion  of 
the  goods  carriers  may  be  liable  for  the  whole  value  and  some- 
times for  more. 

In  this  case  the  defendants  do  not  complain  of  the  instruc- 
tions which  were  given  to  the  jury,  but  of  the  amount  of  the  ver- 
dict, which  is  supposed  to  be  conjectural  and  excessive.  It  would 
have  been  more  satiBfactory  if  by  accepting  the  goods  the 
plaintiff  had  enabled  himself  to  show  exactly  the  deterioration 
they  had  sustained.  But  long  before  the  tender,  his  right  of 
action  had  been  complete,  and  no  subsequent  tender  or  accept- 
ance could  have  discharged  it:  Bowman  v.  TeaU^  28  Wend.  806 
[35  Am.  Dec.  562].  The  evidence  shows  that  the  goods,  if  de- 
livered according  to  contract,  would,  at  the  place  of  destination, 
have  been  worth  one  hundred  and  tweniy  dollars;  that  the 
plaintiff  had  incurred  expenses  in  sending  for  them;  that  by  the 
detention  of  them,  they  must  have  been  greatly  injured;  t^A 


Jan.  1854.]  Bbabiobd  v.  South  Oabolina  R  R  Oo.       411 

that,  after  being  refoaed  by  the  pkiniiff,  tliej  were  by  the  de- 
fendants taken  back  to  the  point  from  whioh  they  started. 
Under  these  Giicomstanoee,  the  yerdiot  for  one  hundred  doUars, 
if  not  exactly  right,  is  so  nearly  so  that  no  interference  of  this 
conrt  would  be  justifiable. 
The  motion  is  dismissed. 

(^NxAix,  Wrhebs,  WnrnoMt  Quotem,  and  IfoxaOi  JJ.»  oon* 
curred. 

Motion  dismissed. 

CoMMOK  CAaaiiM,  WITH  Bisraov  to  Tim  of  Dnjvnnr,  sie  bonkl  to 
«iaediMclilig«iioe:Seei\inoMT.  J7<ifft4r»28Ain.  Dee.  681,  sadoeaae  ooQeeied 
in  note  523. 

MxAsnas  or  Damagjb  fob  Failubi  n  Commoh  Cabiuxb  to  Dium 
Goods  within  reaaonable  time  is  the  difference  between  price  when  goodi 
ibonld  have  arrived  «t  their  destination  and  the  price  when  they  did  actually 
vriTe:  Peel  ▼.  Cfkkago  A  Narth-westem  R.  R.  Co.,  20  Wit.  606,  oiting  the 
principal 


Bradford  v.  South  Carolina  Railroad  Co. 

Luaiurr  or  Railboad  Companies  is  That  or  Joint  Cont&aotobs,  where 
aevenJ  oompaniee  enter  into  an  arrangement  to  carry  freight  orer  all 
their  lines  for  one  throngh-fare  in  soUdo,  payable  at  the  temUmuM,  and 
pledge  themselvee  coUeotiTely  to  give  satisfaction,  so  as  to  evidence  by 
this  and  other  acts  an  intention  to  contract  collectively;  and  one  of  the 
companies  is  liable  in  a  suit  for  damage  to  freight,  though  the  injury  did 
not  occur  on  its  road. 

Whsthbr  Contract  is  Joint  ob  Sbtxral  u  Pbopeblt  Qvbstion  itrn 
Jubt,  where  it  depends,  not  only  on  the  construction  of  sevetal  written 
instruments,  but  also  upon  oral  evidence. 

Aotioh  for  damages  against  railroad  company  for  injury  to 
goods  deliTered  for  transportation.    The  opinion  states  the  case* 

Petigru  and  Fetigrew,  for  the  appellants. 
Fressley,  Hayne^  and  Memminger,  contra. 

By  Ooart,  Withbbs,  J.  By  a  paper  called  an  advertisement, 
issued  from  the  office  and  by  authority  of  the  South  Carolina 
Railroad  Company  at  Charleston,  and  bearing  the  double  dates 
of  October  22  and  I^ovember  2, 1849,  published  in  one  or  more 
newspapers  under  the  head,  '*  Freight  on  cotton  from  Chatta- 
nooga, Tennessee,  to  Charleston,  South  Carolina,''  notice  was 
given  as  follows:  "  By  a  recent  arrangement  between  the  South 
Osxolina,  the  Oeorgia,  and  Western  k  Atlantic  railroads,  a 


412     Bbadfobd  n.  South  Gabouka  R  R  Oa  [S.  Carolina^ 

fluoiigli-iielDBl  for  fraiglit  on  eotton  has  been  made  from  Ohai- 
taoooga,  TennooDee,  to  Chaileaton,  Soatli  Oaiolina»  at  the  rate 
of  sixty-fiTe  cents  per  one  hondred  poonds.  It  is  highly  neoe»« 
saiy,  in  order  to  insore  eoneetnees  in  the  tnmsaction  of  this 
busineaBy  that  the  agent  of  the  South  Oarolina  railroad  at  Ham- 
bmig  ahonld  be  a^vare  of  the  number  of  bales  and  marks  of  each 
shipment.  Shippers  are  therefore  earnestly  requested  to  take 
duplicate  receipts;  one  of  which  must  in  all  cases  be  forwarded, 
per  mail,  to  the  abore-named  agent,  in  order  to  fiziesponsifaility 
on  this  company.  With  these  precautions,  the  business  can  and 
will  be  transacted  mutually  satisCactoiy  to  all  concerned.  The 
roads  pledge  themaelTes  to  give  all  practicable  dispatch  to  cot- 
ton intrusted  to  thtoi  for  transportation." 

Subsequent  to  this  notice,  and,  the  evidence  leaves  no  room  to 
question,  in  pursuance  of  it,  receipts  or  contracts  of  affimghi- 
ment  were  executed  and  delivered  to  shippers  of  lots  of  cotton, 
dated  for  the  most  part  at  the  transportation  department,  Chat- 
tanooga depot,  of  the  Western  &  Atlantic  Bailroad  Oompany — 
some  at  Dalton  by  persons  who  subscribed  them  as  *'  agents," 
without  more.  The  bales  were  described  therein,  as  usual  in 
such  transactions:  in  some  the  order  and  condition  were  stated 
to  be  good;  in  others  nothing  was  stated  on  that  subject;  in  one, 
that  the  cotton  was  wet — all  acknowledging  consignment  to  the 
parties  in  Charleston  who  are  litigant  with  the  South  Carolina 
Bailroad  Company  in  these  cases. 

Much  of  this  cotton  was  found  seriously  damaged  upon  its 
arrival  in  Charleston,  precisely  when,  where,  or  how  is  not 
conclusively  ascertained,  but  there  is  good  ground  to  believe 
before  it  reached  the  custody  of  the  said  railroad  company. 
These  actions  involve  in  the  aggregate  heavy  reclamation  de- 
manded of  that  company  and  fixed  upon  it  by  the  verdicts  ren- 
dered. The  liability  is  charged  in  the  dedarations,  first,  as 
against  a  resident  copartner,  the  other  two  railroad  copartners 
being  beyond  this  jurisdiction;  second,  as  against  a  resident 
joint  contractor.  The  claimants  have  abandoned  the  ground  of 
partnership,  and  rest  their  cases  upon  that  of  joint  contract  on 
the  part  of  the  three  roads. 

This  court  has  not  adjudged  the  question  of  partnership, 
since  it  has  not  been  fully  discussed,  but  has  considered  the 
position  of  joint  contract  as  that  relied  on  by  the  appellees,  and 
it  is  found  to  be  one  upon  which  the  cases  can  be  decided. 

The  course  of  dealing  among  the  three  roads,  touching  the  busi- 
ness growing  out  of  the  "  arrangement"  already  set  forth, 


Jan.  1864.]  Bbadiobd  v.  South  Cabouna  R  &  Ox       41S 

Urns:  Expenses  ZQBting  on  the  oottcm  lecdTed  at  Chattanooga  for 
transportation  to  Charleston  were  paid  at  the  former  place  bj 
the  Western  &  Atlantic  railroad,  which  terminated  at  Atlanta; 
at  that  point  the  (Georgia  nilroad  took  custody,  and  gave  credit 
to  the  other  road  for  expenses  paid  and  freight  earned  bj  it; 
that  is,  some  proportion  of  the  sixty-five  cents  per  hundred  for 
the  entire  transit.  At  Hamburg  the  South  Carolina  railroad 
took  custody,  and  entered  a  like  credit  to  the  Western  &  At- 
lantic and  the  Oeorgia  roads;  and  haying  transported  the  cotton 
to  Charleston,  receiTcd  the  entire  freight,  holding  a  duplicate 
bill  of  affreightment,  and  debited  shippers  or  their  consignees 
with  the  aggregate  exj>enses,  including  (it  is  presumed)  the 
porterage  by  drays  necessary  between  Augusta  and  Hamburg.  It 
has  not  appeared  in  what  several  proportions  the  entire  freight 
was  partitioned  among  the  three  roads,  nor  whether  there  was  a 
secret  contract  among  them  as  to  the  contingencies  of  the  busi- 
ness. A  statement  on  the  part  of  appellants  represents  a  witness 
to  have  said  that  the  companies  were  not  liable  to  each  other 
for  profits  or  losses.  It  is  in  evidence  that  the  South  Carolina 
railroad  company  did  account  here  for  what  is  called  ''short 
delivery,"  but  whether  such  reimbursement  was  paid  out  of  the 
aggregate  sum  of  freight,  its  own  share  included,  or  whether  it 
was  entered  as  a  debit  to  one  or  other  road,  and  as  an  offset  to 
its  share  of  freight,  accordingly  as  the  loss  was  attributed  to  a 
particular  one,  has  not  been  made  to  appear. 

If  the  case  rested  exclusively  upon  the  receipts  executed  at 
Chattanooga,  the  joint  contract  among  the  three  roads  would 
not  be  established.  That  evidence  alone  would  import  no  mors 
than  that  the  Western  &  Atiantic  road  had  undertaken  to  de- 
liver the  specified  goods,  upon  the  responsibilities  of  the  law  of 
common  carriers,  at  Charleston.  That  the  agency  of  others  was 
indispensable  would  not  dictate  a  contrary  conclusion,  even 
although  the  furthpr  fact  should  be  added  that  an  entire  freight 
for  the  whole  line  of  transit  should  be  receivable  in  solido,  by 
the  South  Carolina  company,  and  be  divisible  among  those  en- 
gaged in  the  transportation  as  several,  and  not  joint,  earnings. 

The  case  would  become  stronger  to  warrant  the  inference  of  a 
joint  undertaking,  a  joint  interest,  and  therefore  a  joint  liabil- 
ity, if  not  a  partnership  quoad  hoc^  if  we  add  the  consideration, 
supposed  to  be  suffidentiy  potent  and  notorious  to  be  fairly 
mtroduced,  to  wit,  that  the  upper  railroad  in  the  autumn  of 
1849  was  in  such  degree  forwarded,  though  incomplete,  as  to 
covet  the  business  of  transportation  for  the  cotton  produoen  im 


414     Beadford  v.  South  Oabouha  R  R.  C!a  [S.  Oarjlioa^ 

flie  ndghboring  r^ons  of  ATahama  and  Tennessee;  that  there 
was  an  interest  common  to  the  three  roads  in  tempting  the  cot- 
ton of  those  regions  through  the  channel  of  the  Tennessee  river 
and  otherwise  to  the  line  of  transportation  over  their  roads,  in- 
stead of  other  channels  which  would  lead  the  produce  to  the 
gulf  of  Mexico;  that  Charleston  and  the  South  Carolina  Bailroad 
Company,  having  long  earnestly  sought  the  object  in  question, 
even  to  that  degree  which  led  to  latge  pecuniary  contributions, 
had  the  greatest  interest  to  secure,  by  some  effectual  arrange- 
ment at  the  lerminus  d  quo,  the  starting-point,  the  progress  of 
cotton  to  itself,  and  thus  to  Charleston,  against  the  competitioa 
for  its  diversion  to  some  other  point,  at  Atlanta^  and  also  at 
Augusta.  It  may  be  that  these  considerations  would  be  insuffi- 
cient to  stamp  the  contracts  of  affreightment  at  Chattanooga  as 
the  contracts  jointly  of  the  three  roads.  It  might  still  be  a  case 
wherein  the  Westam  k  Atlantic  railroad  undertook  to  carry 
and  cause  to  be  carried  between  the  specified  termini;  that  the 
consequent  liability  attached  to  that  party  only;  that  it  would 
be  governed  by  the  maxim  reapondeai  superior,  and  would  be 
the  counterpart  of  the  case  of  Muachamp  v.  Lancaster  d  Preston 
Junction  BaUway  Company,  8  Mee.  &  W.  421.  It  might  still 
be  that  the  Western  &  Atlantic  road  would,  in  fact  and  in 
law,  be  the  contracting  party,  and  the  others  should  be  reckoned 
servants  or  agents  under  them. 

But  when  we  advert  to  the  "advertisement"  of  the  South 
Carolina  Bailroad  Company,  when  we  remember  that  the  other 
two  roads,  though  not  parties,  expressly  and  in  writing,  made 
public,  thereto,  yet  eystematioally  acted  in  conformity  there- 
with, that  the  cars  of  the  Oeorgia  road  received  the  cotton  at 
the  terminus  d  qu>o  and  thus  secured  it  against  diversion  at 
Atlanta,  and  the  South  Carolina  road  received  the  same  at 
Hamburg  or  Augusta,  and  thus  secured  it  against  diversion 
there — that  all  this  was  done  by  virtue  of  the  original  contract 
of  afieightment,  without  further  stipulation  with  shipper  or 
consignee — the  preceding  considerations  acquire  weight  and 
substance;  they  furnish  obvious,  strong,  and  adequate  motives 
to  lead  the  managers  of  the  three  railroads  into  a  joint  under- 
standing and  assumption  of  liability  for  the  particular  business 
specified  in  the  advertisement.  Connected  with  the  practical 
execution  of  the  business  accordingly,  they  tend  to  show  that  the 
other  two  roads  stipulated,  as  the  advertisement  discloses,  origi- 
nally or  ratified  subsequently.  These  views  acquire  the  greater 
force  when  they  are  urged  by  strangers  to  the  contracting  parties^ 


Jaa  1864.]  Bbabfobd  v.  Soxtth  Oabouna  R  R  Oow       415 

bj  third  penons.  For  there  is  equal  reason  to  gire  each  the  same 
adTantage  of  such  a  position  when  the  inquiry  is  as  to  a  joint 
liabiHtj  in  character  of  joint  contnioton  as  when  the  inquiry 
conoems  partnership  touching  the  tights  of  strangers.  To  such, 
partnership  is  but  joint  liability. 

Let  us  now  resort  more  particularly  to  the  terms  of  the  ad- 
Tertisement.    It  announces  an  arrangement  between  the  three 
lailroads,  resulting  in  a  through  ticket  for  cotton,  at  a  rate  in 
iolido,  from  Chattanooga  to  Charleston.    It  may  be  conceded 
that  a  through-ticket,  in  and  of  itself,  would  not  create  a  joint 
liability  further  than  an  obligation  on  each  of  seTCial  indepen- 
dent  carriers  to  transport  the  subject-matter  to  which  it  applied 
over  the  entire  line  of  transit,  for  a  compensation  already  paid 
or  promised  for  the  whole  line.    It  was  then  required  that  in 
all  cases  a  duplicate  receipt  must  be  forwarded  by  mail  to  the 
agent  of  the  South  Carolina  Railroad  Company  at  Hamburg, 
and    the   important    words   were    added,    "in    order    to   fix 
req[>onBibility  on  this  company."     It  seems  incontrovertible 
that  when  the  duplicate  was  forwarded  the  contemplated  re- 
sponsibility was  fixed.     The  Georgia  road  needed  no  such  advice 
or  paper  from  a  shipper  because  (as  already  stated)  the  cotton 
was  on  board  its  cars  from  the  first.    What  kind  and  degree  of 
responsibility  was  to  ensue  upon  the  remitting  by  mail  the 
duplicate  receipt?    Was  it  that  of  a  common  carrier  only  when 
he  received  the  cotton  ?    That  begins  only  upon  the  receipt  of 
goods  or  the  acknowledgment  of  it.    But  this  was  expressly 
acknowledged  to  begin  before.     Was  it  the  responsibility  of  a 
mere  forwarding  agent,  tendered  in  that  distinct  character  by 
the  party  who  was  also  to  be  the  carrier?    Was  it  a  mere 
scheme  to  supersede  the  occasion  of  an  intermediate  consignee 
or  forwarding  agent  at  Augusta  or  Hamburg  ?    If  so,  the  shipper 
should  have  had  the  right  to  countermand  at  Augusta,  to  divert 
his  cotton  to  Savannah,  or  sell  or  otherwise  dispose  of  it  in 
Augusta  or  elsewhere.    How  would  that  have  answered  the  ends 
and  the  interests  of  the  South  Carolina  railroad  and  of  Charles- 
ton?   How  would  the  South  Carolina  railroad  have  received  in 
Charleston  the  freight  already  earned  and  expenses  advanced  ? 
Yet  that  was  the  course  of  the  business.    The  freight  in  soUdo 
became  payable  when  the  cotton  was  delivered  in  Charleston, 
not  before.    Suppose  the  party  here  charged  had  acknowledged 
responsibility  to  be  fixed  when  the  duplicate  receipt  was  for* 
warded  by  mail,  and  when  the  cotton  was  received,  and  aooord* 
ing  to  its  condition.    Is  it  not  palpable  that  its  transit  to 


416     Bradford  v.  South  Carolina  R  R  Go.  [S.  Garolina^ 

Oharleston  would  not  be  secnred — ^that  the  grand  object  would 
be  liable  to  be  frustrated  f  If  shippezs  were  to  understand  that 
one  of  the  Georgia  roads  was  exclusiyelj  an  establishment  of 
the  state  of  G^oi^,  and  therefore  not  amenable  to  action  at  Iaw» 
quite  beyond  the  powers  of  judgment  and  execution  (and  this 
has  been  said  at  bar  to  have  been  the  condition  of  things  in 
1849),  and  that  they  were  to  run  all  the  hazards  of  loss  and 
inadequate  responsibility  by  porterage  on  drays  between  the 
Georgia  and  South  Carolina  railroads — ^before  any  carrier  had 
incuired  an  adequate  and  enforceable  liability — ^they  might, 
indeed,  haTC  hesitated  to  place  a  lot  of  cotton  on  a  journey 
from  Chattanooga  to  Charleston.  It  does  apx>ear  most  reason- 
able that  the  "responsibility"  intended  by  the  company,  and 
justly  understood  by  others  to  be  intended  by  them,  waa 
beyond  that  of  a  mere  forwarding  agent  before  the  cotton  actu- 
ally came  to  its  hands.  Before  that  period  it  is  not  easy  to 
understand  what  other  kind  of  responsibility  than  that  of  m 
carrier  could  or  should  have  been  fixed  on  the  company  by 
virtue  of  the  advertisement.  It  is  not  an  unreasonable  source 
of  a  rule  of  construction  that  one  contracting  party  intended ' 
and  knew  that  the  other  should  and  did  understand  him  in  s 
particular  sense. 

The  practical  construction  of  a  contract  by  the  acts  of  a  party 
sought  to  be  charged  opens  a  fair  source  of  light  upon  the  just 
interpretation.  For  short  deliveiy  the  South  Carolina  railioad 
responded,  in  cases,  it  is  presumed,  where  the  default  was  not 
in  that  company's  road.  This  was  argued  to  have  arisen  from 
the  receipt  of  the  entii^  freight  as  a  correlative  duty.  It  is  not 
perceived  why  reimbursement  for  any  other  species  of  injory 
should  not  be  estimated  as  of  the  same  and  equal  obligation. 
Indeed,  something  more  than  only  such  responsibility  seems  to 
have  been  within  the  purview  and  natural  scope  of  the  words 
of  the  advertisement.  They  are:  "With  these  precautions  the 
business  can  and  will  be  transacted  mutually  satisfactory  to  all 
concerned.  The  roads  pledge  themselves  to  give  all  practicable 
dispatch  to  cotton  intrusted  to  them  for  transportation."  The 
"business"  was  an  entire  transit  over  the  whole  line.  The 
pledge  for  "  all  practicable  dispatch  "  was  by  the  "  roads,"  not 
by  each  separately,  and  it  was  for  cotton  intrusted  to  "  them  " — 
it  is  not  said  to  them  separately  and  successively.  If  the  cotton 
ever  was  intrusted  to  the  roads  collectively,  it  was  only  when 
received  at  the  upper  terminus.  If  the  pledge  of  the  roads  for 
all  practicable  dispatch  shall  have  its  natural  meaning,  it  is  a 


y 


JaiL  1864]  Ij^BADFORD  V.  SouTH  Cabouka  R  R  Oa       417 

pledge  of  all  for  the  dispatch  of  each;  and  the  same  may  be 
said  as  to  the  pledge  that  the  business  should  be  tzanaacted  in 
a  manner  matnallj  satis&otoiy.  Sach  Tiews  axe  not  weakened 
by  attribating  another  and  ooncozring  object  in  rigidly  ezaofe- 
ing  the  duplicate  reoeipt»  as  for  ezample,  that  the  SouUi  Caro- 
lina railroad  should  have  conyenient  specifications  of  the  cotton 
to  facilitate  its  transportation  from  the  depot  at  Augusta  to 
that  at  Hamburg;  and  a  notice  of  the  quantity  coming  forward 
in  conyenient  time  to  enable  the  company  to  provide  the  motiTC 
power  and  cars  requisite  for  proper  expedition.  The  early  re- 
ceipt of  the  duplicate  might  well  subsenre  these  and  such  ends 
while  it  should  also  fix  the  full  liabilily  of  a  carrier. 

That  a  joint  liability  for  all  that  was  undertaken  should  haye 
been  intended  by  these  railroad  companies  is  most  reasonably  to  be 
inferred  from  terms  that  do  not  repel  such  construction,  because 
it  was  a  serious  obstacle  toa  shipper  at  Ghattanooga  to  find  him- 
self groping  in  the  dark  among  three  distinct  carriers,  with  an 
inconvenient  land  porterage  interposed,  to  fix  the  responsibility 
for  default  upon  the  real  malfeasor  the  more  securely  concealed 
from  him,  as  well  from  the  length  of  the  line  of  tnmsportation 
through  two  states  as  from  the  want  of  agents  to  look  after  his 
interests,  or  the  expense  and  complication  which  would  result 
from  their  procuration — the  more  especially  in  a  business  as 
yet  new  and  unadjusted  by  experience.  The  obstacle  would 
have  been  the  greater  if  it  be  that  one  of  the  three  hands  who 
were  to  have  custody  of  his  cotton  pertained  to  a  gOTcm- 
ment  to  which  insecurity  is  attributed  as  to  ordinaiy  modes  of 
enforcing  responsibility.  The  contract,  as  it  has  been  inter- 
preted, was  apt,  and  perhaps  indispensable,  to  remove  such 
obstacle  to  a  cherished  and  tempting  adventure;  and  though 
the  spirit  may  have  been  bold  and  the  confidence  inter  sese 
strong  that  animated  the  railroads  in  such  an  undertaking,  yet 
the  prize  was  glittering,  and  they  were  eager  to  clutch  it. 
However  shockingly  unjust  it  certainly  is  to  demand  of  one 
party  a  response  for  the  misdeeds  of  another,  or  to  lay  on  him 
the  weight  of  another's  contract,  yet  the  previous  inquiry  here 
is.  Did  the  party  sued  enter  the  league  with  others  named  as 
confederates?  and  was  that  league  lawful?  And  whenever  he 
must  say.  In  hcecfasdera  veni,  the  shock  to  the  moral  sentiment 
vanishes,  and  the  plain  duty  of  a  court  remains  to  enforce  the 
covenant,  whatsoever  the  consequences. 

That  this  was  a  question  for  the  jury  must  by  this  time  be 

abundantly  manifest.     It  did  not  rest  exclusively  or  mainly  on 
Am.  dxo.  Vol..  Lzn— arr 


418  KntEWOOD  v.  Gordon.        ,  [S.  Oarolina^ 

ihe  oontnet  of  afieighiment,  nor  upon  any  one  or  sereral 
written  inetmments  with  no  ambiguitieB  snitable  to  open  the 
door  to  oral  testunony,  but  upon  this  latter  kind  of  testimony 
as  well.  Reasons  may  be  found  in  MiL9champ  y.  Lancaster  S 
PtesUm  Junction  BaHway  Company^  8  Mee.  &  W.  421,  to  Tin* 
dicate  the  course  on  circuit  in  ti^dng  the  sense  of  the  juiy, 
which  can  not  be  disturbed  if  there  be  reasonable  eyidenoe  to 
support  it,  though  the  question  be  doubtful. 

If,  when  viewed  as  between  themselyes,  the  South  Oarolina 
railroad  has  not  made  the  joint  contract  with  the  Georgia 
roads,  which  the  jury  has  found,  as  between  the  parties  here 
litigant,  or  if  one  or  both  the  Geoigia  roads  have  entailed 
by  their  misdeeds  a  burden  on  the  exchequer  of  this  defendant, 
we  fail  to  perceive  any  plausible  or  reputable  ground  upon 
which  the  real  wrong-doer  shaU  refuse  to  assume  his  own  proper 
burden.  That  matter,  however,  we  are  not  at  liberty  to  dis- 
cuss. 

It  is  adjudged  that  in  each  of  these  cases  the  motion  be  di»* 
■lissei 

O'NsiLZi,  Wabdlaw,  Glovxb,  and  Muxbo,  JJ.|  oonourred. 

Motion  dismissed. 

SSVUUL  CABftTlM  UmTINO  TO  COMPLKTB  LiVl  OF  TaAHBPOBCATIOH  «bA 

Qtnry  goods  for  one  through-freight  are  each  liable  for  damagee  for  any  ii 
to  goods  reoeived  for  carriage:  See  HaH  v.  RmmAatrS  8.B»R.  Ox» 
Deo.  400,  note^  and  oases  theie  oolleoted. 


ElBKWOOD  V.  GrOBDON. 

[7  BlOBABMOV^  L4W,  474.] 

Iwt  n  Paonm  Tbdunal  to  Dbtkbmzhi  Quisnoini  of  Faot,  hat  the  Jndga 
is  not  thereby  preelnded  from  expressing  to  the  Jniy  his  opinion  on  the 
weight  and  effect  of  evidence. 

TiST  or  TsaTAinBNTABT  Cafaoitt  is  not  always  capacity  enough  to  make  a 
oontract^  for  this  sometimes  requires  a  higher  degree  of  capacity  than  to 
make  a  will;  where  the  testator  knows  his  estate,  the  object  of  his  af« 
feotions,  and  to  whom  he  wishes  to  give  his  property,  he  has  snflloiaat 
capacity  to  make  a  will. 

TttTATOR's  ExTRSM B  Old  Aob  Is  not  of  itself  sa£Boient  to  render  him  inooss- 
petent  to  make  a  wilL 

Mu  Omissioh  ot  Cnnj)  by  Tbstatob  is  not  of  itself  snfllelflnt  to  impsaoll 
his  capacity  to  make  a  will. 

Appeal  from  a  decision  admitting  a  will  to  probate.    The  tes- 
tator, a  man  of  eighty  years  of  age,  was  taken  siok,  and  thvet 


May,  1854.]  KiBXWOOD  v.  Gordon.  419 

days  before  his  death,  at  his  xequest,  his  attorn^  was  sent  for, 
and  he  gave  to  him  iiistmctiona  for  prepazing  Us  will,  whioh» 
on  being  written,  was  read  to  him,  assented  to,  and  duly  exe- 
cuted. The  testator  made  no  proyision  for  his  married  daugh« 
ter.  The  attending  physician  testified  that  he  thought  the  tes- 
tator was  perfectly  competent  to  make  a  will;  that  he  was  some 
times  in  a  stupor,  which  was  probably  produced  by  an  anodyne, 
which,  however,  had  not  been  administered  the  night  before  the 
day  of  making  the  will;  that  there  was  slight  wandering  of  the 
mind,  but  when  aroused  he  understood  and  answered  intelligi- 
bly. Other  testimony  showed  conversations  with  the  testator 
regarding  the  will,  and  intelligent  answers  given  by  him. 
Against  this  there  was  the  evidence  of  the  testator's  married 
daughter  and  her  husband  (the  contestants),  who  were  casual 
visitors,  to  the  effect  that  they  thought  his  mind  was  wrong, 
and  also  the  testimony  of  four  physicians  who  had  not  seen  de- 
ceased in  his  illness,  and  some  of  whom  had  never  seen  him, 
who  stated  the  effect  of  pneumonia  to  be  to  produce  stupor  and 
derangement  of  mind;  and  they  expressed  an  opinion  that  an  old 
man,  like  the  testator,  laboring  under  pneumonia,  could  not 
have  mind  enough  to  make  a  will.  The  presiding  judge  said  to 
the  jury  that  there  was  no  evidence  of  insanity,  lunacy,  or  want 
of  capacity,  or  of  undue  influence,  sufficient  to  destroy  the  will 
before  or  at  its  execution;  and  also  that  he  attached  very  little 
consequence  to  speculative  opinions,  such  as  had  been  expressed 
by  the  four  physicians  who  had  testified,  as  most  men  were 
liable  to  be  mistaken  in  speculative  opinions;  but  that  he  relied 
with  much  more  confidence  on  the  opinion  of  the  intelligent  at- 
tending physician.  The  jury  found  for  the  will.  The  remain- 
ing facts  are  stated  in  the  opinion. 

Thomson  and  WUaon^  for  the  appellants. 

Mi^Oowen,  conira. 

By  Court,  Glovxb,  J.  All  the  grounds  of  the  appellantlB  ino* 
tion  except  the  last  suggest  error  in  the  charge  of  the  presid- 
ing judge,  which,  it  has  been  insisted  in  argument,  was  too 
direct  and  imperative.  The  oxganization  of  the  court  makes  it 
proper  that  the  powers  and  duties  of  the  judge  and  the  jury 
should  be  kept  distinct,  and  that  questions  of  law  and  fact 
should  be  submitted  to  the  appropriate  tribunal.  This  court 
has  acted  on  the  maxim.  Ad  qucBsticnem  legis,  req)ondent  judices; 
ad  quoBstionem/acii,  respondenijuratores.  To  preserve  the  latter 
branch  of  the  maxim,  it  will  hardly  be  contended  that  a  judge 


420  EntKwooD  V.  OosDOH.  [S.  Ourolina^ 

■hall  simply  reeapitnlate  the  eridence  and  play  the  part  of  a 
meie  antomatcm^  and  not  direct  the  attention  of  the  jury  to  the 
reloTancy  and  sofieiency  of  the  evidence.  Where  &otB  haye 
impressed  his  mind  with  the  trath  and  justice  of  a  cause,  it  is 
his  duty  to  call  the  attention  of  the  jnxy  to  them,  and  show  their 
connection  and  their  snfSdency  to  prove  the  issues  presented, 
leaving  the  juryfree  to  pass  upon  thenu  His  experience  should 
]ight  their  path,  and  lead  them  to  a  correct  condnsion,  not  con- 
trolled by  his  opinion,  but  by  the  evidence.  It  is  diJBScult  to 
suggest,  aprioriy  a  general  rule  by  which  a  judge's  charge  upon 
the  facts  in  all  cases  that  may  arise  shall  be  governed.  With- 
out evidence  he  may  withdraw  a  case  from  the  jury;  and  shall 
he  be  restrained  from  commenting  freely  on  the  evidence,  and 
indicating  to  {be  jury  the  force  and  effect  of  certain  &cts  which 
have  been  proved  f  He  must  instruct  £he  jury  on  the  facts,  not 
control  their  verdict;  enlighten  their  understandings,  not  in- 
flame their  passions;  and,  above  all,  the  discharge  of  judicial 
duties  demands  impartiality. 

Is  it  a  violation  of  any  of  these  duties  that  the  presiding  judge 
instructed  the  jury  as  his  report  informs  usf  In  reviewing  the 
evidence,  he  rcKfened  to  the  prominent  fikcts,  and  expressed  his 
opinion  freely  respecting  their  effect  upon  the  issues  involved; 
but  he  says,  "  This  was  my  mere  opinion  and  advice;  the  jury 
were  left  at  liberty,  if  they  chose  so  to  do,  to  find  against  the 
wiU." 

This  tribunal  can  not  say,  in  the  language  of  counsd,  that 
the  presiding  judge  molded  the  verdict,  or  exercised  an  influ- 
ence which  the  circumstances  and  justice  of  the  case  did  not 
require.  The  evidence  no  doubt  strongly  impressed  the  mind 
of  the  judge,  and  certainly  warrants  the  conclusion  of  the  jury. 

It  is  objected  that  the  test  of  testamentary  capadiy  fumished 
by  the  judge  was  error,  and  may  have  misled  the  jury:  "  I  said 
to  the  jury  that  the  test,  '  capacity  enough  to  make  a  contract,' 
was  not  always  the  true  rule;  for  sometimes  it  might  be  that  a 
higher  degree  of  capacity  to  make  a  contract  would  be  required 
than  to  make  a  will.  In  making  a  will,  if  the  testator  had  ca- 
pacity enough  to  know  his  estate,  the  object  of  his  affections, 
and  to  whom  he  wished  to  give  it,  that  would  be  enough." 

These  views  are  well  sustained  by  authority.  In  Ccmstock  v. 
Hadlymef  8  Cbnn.  254,  the  language  of  the  court  is:  '*  He  may 
not  have  sufficient  strength  of  memory  and  vigor  of  intellect  to 
make  and  digest  all  the  parts  of  a  contract,  and  yet  be  compe- 
tent to  direct  the  disposition  of  his  property  by  will."    Lord 


Mbj,  1864.]  KntKWOQD  «.  QovDom.  411 

Kenyon  Bays,  Cfreenwood  ▼.  Oreenwood,  8  Ourt.  Eoo.,  i^.  S: 
"  I  take  it,  a  mind  and  memozy  oompeient  to  diqpon  of  prop- 
erty when  it  is  a  little  explained  perhaps  may  stand  thus: 
having  that  d«gzee  of  zeeoUeetion  ahont  him  that  would  enable 
him  to  look  abont  the  proper^  he  had  to  dispose  of.  If  he  had 
a  power  of  summing  np  his  mind  so  as  to  know  what  his  prop- 
erly was,  and  who  those  persons  were  that  then  were  the  objects 
of  his  bounty,  then  he  was  competent  to  make  a  will." 

The  testamentary  capacity  was  proyed  by  the  attending 
physician,  the  counsel  who  prepared  the  instructions  and  wrote 
the  will,  and  the  subscribing  witnesses.  Against  this  proof  the 
eridence  of  William  Oordan  and  wife,  casual  visitors,  is  relied 
upon,  supported  by  the  opinions  of  four  physicians  who  did  not 
see  the  testator  in  his  last  illness.  When  the  presiding  judge 
expressed  greater  confidence  in  the  opinion  formed  by  the  at- 
tending physician,  who  had  watched  the  progress  of  the  disease, 
than  in  the  opinions  of  those  who  were  not  present  and  reasoned 
from  the  nature  of  the  disease,  he  only  pointed  out  the  compara- 
ttre  Talue  of  the  eridence  before  it  went  into  the  scales  which 
the  jury  held. 

The  extreme  age  of  the  testator  did  not  render  him  incompe- 
tent to  make  a  will.  It  may  raise  some  doubt  of  capacity,  but 
no  further  than  to  excite  yigilance:  Kinleside  y.  Harrison,  3 
Phill.  461;  OHffiihB  r.  Bobim,  8  Madd.  192. 

The  provisionB  of  the  will  may  be  looked  to,  and  where,  as  in 
Dew  y.  Clark,  8  Add.  Ecc.  79,  tiie  disinheriting  of  his  daughter 
WS8  the  ofEspring  of  the  morbid  delusion  which  dethroned  the  tes- 
tator's reason,  it  was  relied  upon  as  an  important  circumstance. 
She  was  his  only  child,  and  the  property  was  giyen  to  strangers. 
"It  is  quite  impossible,"  says  8ir  John  Nichol,  "  to  disoonneet 
the  daughter  from  the  subject-mattei  of  the  will; "  but  he  by  no 
means  makes  the  contents  of  the  will  the  substantiye  ground  of 
his  judgment.  **  The  mere  omission  of  a  child"  could  not  of 
itself  impeach  the  capacity. 

We  can  not  condude  from  the  report  that  the  jury  was  not 
left  to  deliberate  and  decide  upon  the  facts  of  this  case;  and  hay- 
ing the  concurring  opinion  of  the  judge  and  the  jury  sustaining 
the  will,  and  the  weight  of  eyidence  supporting  that  opinion, 
the  appellants  can  take  nothing  by  their  motion. 

Motion  dismiseed. 

O'NxALL,  Wabdl4W,  WrTHSBs,  WmxHSB,  and  Mmroo^JfJ^^uxm- 
eoned. 

If otion  dismissed. 


4SS  LuTHBB  t;.  Abnold.  [S.  CSaroIiiUk 

JuDOili  Oimov  UPON  FAon  mat  ut  ScTHMnmED  to  Jubt,  if  they  are  at 
the  eame  time  informed  that  they  are  to  judge  of  the  facte:  See  P0U9  ▼. 
Houae^  60  Am.  Deo.  329,  and  oases  oolleoted  in  note  360. 

Testamimtabt  CUpaoitt,  What  Covarrrnm:  See  Terry  t.  Bf^lngUm^ 
06  Am.  Deo.  423,  and  note  citing  prior  casee  429;  Addington  ▼.  IFStem,  61 
Id.  81,  and  note  84. 

DniNHjauTnffo  Child  is  ov  No  Weight,  farther  than  as  a  curoamstaiioa 
to  be  considered  with  other  oTidence  to  prove  want  of  testamentary  oapaoityi 
See  Addknifkm  ▼.  WUmm,  61  Am.  Dec  81. 


LuTHEB  V.  Abnold. 

[8  RTOHAaneoali  Law,  94.] 

TniAiiT  nr  OomoH  mat  Distraiv  vob  Rxrt,  where  he  has  leased  to  his 
co-tenant. 

DlOLAHATION  IN  'BxnJfTlS  MUST  AlLIGI  THAT  Ck>OM  TaUDT  ASM  T^hMimt' 

ov's  PBOPKBT7,  and  that  they  were  taken  out  of  liis 


BsPLBmr  for  goods  alleged  tobaTO  been  taken  from  plaintifrB 
poBsession,  which  were  the  property  of  plaintiff  and  of  certain 
other  persons.  Defendant  avowed  the  taking  of  the  goods  by  dis- 
tress for  rent  due  by  plaintiff,  under  a  lease  by  him  to  plaintiff 
of  his  interest  in  properly  in  which  plaintiff  and  himself  wefe 
tenants  in  common. 

Spann^  for  the  motion. 

Moragne^  contra* 

By  Court,  WrrHEBs,  J.  The  leading  question  in  this  case  is. 
Can  one  tenant  in  common  become  the  landlord  of  another  bj 
way  of  lease,  and  exercise  the  right  of  distress?  Without  re- 
sorting to  authority  more  remote,  we  find  in  Cro.  Jac.  611,  the 
case  of  Sndgar  y.  ffenston,  which  adjudged  the  question  in  the 
afiSumatiye.  Those  parties  were  tenants  in  common  for  a  term 
of  years,  and  Henston  assigned  to  Snelgar,  and  distrained, 
"  and  it  was  demurred,"  says  the  book,  "whether  one  tenant  in 
common  may  destrain  upon  the  other,  and  adjudged  that  it 
might  be,  where  he  comes  in  under  the  lessee;  and  the  distress 
may  be  taken  in  any  part  of  the  land;  wherefore  the  defendant 
had  retom,"  etc. 

This  case  is  dted  by  seyeral  authors  of  respectable  authority, 
treating  upon  the  subject  to  which  it  refers,  and  we  are  not  at 
liberty  to  discard  it  when  there  does  not  occur  any  reason  to 
say  (it  being  clear  that  one  tenant  in  common  may  assign  to  an- 
ether  any  interest  he  has  on  stipulated  terms)  that  the  assignor 


Not.  1864]      Luther  u  Abvolix  428 

beaiing  the  relation  of  landlord  shall  be  debaned  the  moat  mate- 
rial incident  belonging  to  that  character.  The  right  of  distreaa 
was  afBrmed  in  this  case,  notwithsanding  the  whole  term  of  the 
avowant  had  been  tiansferred  ^7  l^un  to  his  co-tenants,  which 
left  no  reversion  in  the  grantor.  In  the  present  state  of  the 
law,  as  represented  bj  1  Piatt  on  Leases,  1-20,  this  might  be  a 
veiy  serioos  objection  to  the  right  of  distress — or  rather  to  the 
proposition  that  a  lease  could  arise  out  of  such  a  transaction; 
or  rent,  within  the  meaning  of  statutes  regulating  the  relations 
of  landlord  and  tenant;  and  this,  too,  whether  the  contract  be 
in  writing  and  strictly  formal,  or  bj  parol.  Such  diffloully, 
however,  does  not  enter  into  our  present  case,  for  the  whole 
term  here  was  not  granted,  and  therefore  a  reversion  remained, 
which  is  enough  to  answer  the  most  stringent  definition  of  a 
lease,  so  far  as  that  element  of  one  is  required. 

We  think,  then,  there  was  error  in  the  ruling  upon  circuit  thai 
there  was  not  the  relation  of  landlord  and  tenant  between  these 
parties,  and  the  right  of  distress  incident  thereto. 

The  plaintiff  in  replevin  has  declared  for  a  parcel  of  goods 
which  he  alleges  to  be  the  properly  of  others,  nor  does  he 
allege  the  same  to  have  been  taken  out  of  his  possession. 
Now,  although  this  is  not  good  cause  of  demurrer,  seeing  that 
the  plaintiff  has  averred  the  taking  of  other  goods,  the  property 
whereof  is  alleged  to  be  in  himself,  yet  as  the  matter  now  stands, 
he  declares  for  damages  for  the  unlawful  taking  of  another^s 
goods,  which  is  inadmissible — ^the  more  palpably  when  he  re- 
plevies them.  He  may  not  vrage  this  contest  for  the  benefit  of 
a  stranger,  who  has  his  own  apt  remedy  provided  a  wrong  has 
been  visited  upon  him.  The  plaintiff  must  therefore  amend  hj 
averring  that  the  goods  alleged  to  be  those  of  Jordan  and  Brog^ 
den  are  his  own,  or  that  they  were  taken  from  his  possession. 
The  one  or  the  other  is  obviously  necessary,  since  this  action  is 
in  the  nature  of  trespass,  and  it  can  be  no  trespass  upon  him 
to  take  another's  goods  unless  his  possession  has  been  unlaw* 
fully  violated. 

(VNsAXx,  Wabdliw,  WHEnoB,  Glovbe,  and  Muaao,  JJ.,  con- 
curred. 

Motion  granted. 

Lncaamom  ow  Paonarr  nr  Bansfm,  Suffuiuuiur  evt  See  AMstv. 
Ommb.  48  AuL  Dm.  006,  aofea 


OASES 


SUPREME  COURT 


ov 
TENNESBBE 


LouiBViLLB  &  Nashville  Railroad  Oo.  dl  Ooubr 

GOUBT  OF  DaYIDSOK. 

[1  flVMSDy  687.] 

OovRBUonoir  ov  Railboad  thbouoh  Countt,  althoD^^  it  ezteiicb  throngh 
other  oonntiM  or  ttates,  is  a  "connty  parpoBOy"  within  the  puriew  of 
the  Tennessee  oonstitation  empowering  the  legislfttnre  to  anthoriae  tiM 
aoTeral  counties  of  the  state  to  impose  taxes  for  oonnty  pnrposea. 

To  Ck>NSTiTUTB  Imfsovsmknt  '*  Town  ob  Gountt  Pubposb,"  for  which 
inhabitants  may  be  tazedi  it  need  not  be  entirely  within  the  bordecs  of 
the  town  or  connty. 

ScATuna  wiTHor  Limitb  ov  ComiriTUTioy  abb  Comiiututiohal  aitd  Bp* 
nBcnvB,  and  the  jndiciaiy  or  the  ezecatiTe  department  can  not  inqnira 
whether  the  legislators  has  yiolated  the  genins  of  the  goremmeot,  Mr  tha 
general  principles  of  liberty,  and  the  rights  of  man,  Mr  whether  their  acta 
are  wise  and  expedient  or  not. 

OoawiTUTioNALnT  OF  LsoisiATivx  Acxs  BHOVLD  ut  Dboidkd  wlth  eveiy 
presumption  in  favor  of  their  validity,  which  presumption  should  be  ov«i^ 
oome  only  when  the  oontraxy  is  dear. 

Act  RxrxBBiiro  to  Votb  ot  Pxoplb  ov  Couxtt  QunrnoK  ov  Quwrnmamm 
OB  No  Subsgbiftion  by  county  to  stock  of  railroad  company  is  not  ia 
conflict  with  the  Tennessee  constitution. 

iMQlBLAXXSBEf  ImTBUSTKD  BT  Ck)liai'lTUT10H  WIXH  SKLBOnOK  OV  MODB  AHD 

Mannbb  of  Imposino  Dbbt  ob  Tax  upon  a  county,  may  refer  the  ques- 
tion of  imposing  the  tax  to  the  people  of  the  county. 

CoMtrriTUTioNAL  Pboyisiov  Which  Fobbum  Pbivatb  Pbopbbtt  to  bb 
Takbb  fob  Pubuo  Usb  is  not  involTed  in  a  question  conosniing  tax* 
ation. 

MnrisxBBiAL  Duty  Dbtolvbd  ufoh  Ooubt  Oomfosbd  of  Sbybral  Jub> 
TIOBS  may  be  performed  by  the  quorum  court;  there  need  not  be  prsasnl 
a  number  sufficient  to  transact  any  county  business. 

Nbw  Powbb  Oiyen  to  ob  Duty  Rbqitibed  of  Coubt  Composbd  of  Sbt* 
BBAL  JnsnoKS  may  be  performed  by  any  number  which  may  oonstitato 
B  legal  court,  when  no  particular  number  of  justices  is  made 

4M 


Dee.  1854]  Louisvillb  etc  R  R.  Co.  u  Ooubtt  Or.      4S6 

fisrr  PBOPoaiifo  Tsbms  ov  Cosmuor  om  not  be  beaid  to  object  to  them. 

Qbhsb  roB  EuKnoir,  not  Snroia  akd  Poarnra*  but  di  Altxbhaiitb» 
doee  not  neoeaaarily  inTalidate  the  proceedinge;  m  where  a  proporitJoa  i« 
mbmitted  to  the  ▼oten  of  a  ooanty  that  a  mbeorlptloii  be  made  to  a  rail- 
road, provided  it  be  located  aa  ^[Meified  oq  or  before  a  certain  date*  other- 
wiee  the  nbecription  to  be  made  to  another  raikoad,  both  roads  to  paw 
throoi^  the  eoimtj. 

06inran8  abb  PounoALy  Aoobboatb  GoBf0Eano8a»  capable  off  ezerdaiag 
each  powen  aa  they  may  be  veeted  with  by  the  legiilatnre,and  are  eome- 
timee  called  qmtsi  corporationt. 

AvT  Body  ow  Pkbbonb  Cafablb  ov  Aororo  ab  Qvb  Mav,  and  in  a  tingle 
name  fixed  by  Uw,  having  raccecsion,  la  in  eome  eenae  a  corporation. 

ObVBTIBS  IK  TB!finbBKB  ABB  GlOVHBD  WITH  POWBBS  ABD  AlTBIBUTBi  OF 

OoBPOBATiONB  to  aanffiBient  extent  to  be  able  to  act  and  contract,  io  be- 
come debtor  and  creditor,  to  aa  to  rabject  all  penone  and  property 
within  their  limite  to  taxation  in  any  mode  that  may  be  preecribed  by  the 
Icgialatiire. 

LniSLATUBB   MAT   AOTHOBIIB   OOUBTT    WmOK    HA8   BboOMB    PaBTT   TO 

CoBTBACT  to  change  the  terms  of  the  contract  upon  the  consent  of  the 
other  party. 

BiATcn  Bmpowbbivo  Oovbtt,  as  Cobfobatiok,  to  Taxb  Stock  ib  Bail- 
BOAD,  and  then  distribute  it  among  the  people  in  the  proportions  they 
may  pay  the  tax  levied  for  that  porpose,  is  not  nnconstitotionaL 

OOBSTBUCnOM  OF  BaILBOAD  THBOUOH  Ck>UNTT  IS  *'Coubtt  PcmposB,** 
within  provisions  of  Tenneasee  constitution,  notwithstanding  the  stock  in 
the  rsilroad  sabscribed  for  by  the  connty  be  distributed  among  the  peo- 
ple In  the  proportions  in  which  they  pay  the  tax  levied  for  this  purpose, 
for  it  is  not  the  stock  as  an  investment  which  is  contemplated  by  the 
coostitation,  bat  the  road  in  which  the  stock  is  held. 

QOBRTOB    OB  EliBCnOK    RxFBBBKD  TO  DkCISION    OF  MaJOBITT  OF  VOTBBS 

OF  CouBTT  is  decided  by  majority  of  the  votes  polled.  Votera  not  attend- 
ing election  are  presomed  to  concur  with  the  majority  of  those  attending. 

Gabbs  abb  Authobitt  only  to  Bxtbkt  of  Point  in  Judombnt,  i.  e ,  the 
q[nestion  raised  by  the  facts  before  the  court;  the  generality  of  the  Ian* 
guage  used  in  the  opinion  is  always  to  be  restricted  to  this;  and  the  rea- 
soning, illustrations,  or  references  contained  therein  are  not  authority  or 
precedent. 

Fact  that  in  Onb  Pbeginot  No  ELBonoN  was  Opbnbd  and  Held  does 
not  of  itself  invalidate  a  county  election.  To  efibct  this,  it  must  appear 
that  the  general  result  of  the  election  was  chsaged  by  it;  and  the  bur- 
den of  showing  this  lies  upon  those  who  contest  the  general  return  of  the 
sheriff. 

BaruBN  OF  Shbbiff  as  to  RxsmiT  of  Countt  Election  is  presumed  oor^ 
rect  until  the  contrary  clearly  appears. 

If  Facts  Btatbd  bt  Pabtt  in  ms  Plbadings  oab  not  Avail  Hm,  It  is  to 
be  presumed  that  none  sufficient  exiet»  and  the  legal  result  must  follow. 

Fact  that  Two  Oihbb  Days  wbbb  Sbt  fob  Elbcteon,  which  was  post- 
poned until  a  third  day,  if  an  irregularity,  is  not  sufficient  to  Invalidaia 
the  final  election,  which  was  the  only  one  actually  held. 

OOBTIBTANTS  OF   ELECTION  CAN    NOT   TaKB  AdYANTAOB  OF   IBBBQULABITF 

oonmitted  by  themselveBi 


426         LomsviLLB  ETO.  R  R  Co.  v.  OotTNTT  Or.      \TeaaL 

Thess  cases,  from  the  ooiinties  of  Davidson,  Smnner,  and 
White,  involve  similar  questions  arising  under  several  statatev 
authorizing  and  regulating  subscriptions  by  counties  to  rail« 
roads.  Writs  of  mandamus  were  issued  by  the  circuit  court  to 
the  county  courts  of  Davidson  and  Sumner  counties,  and  the 
county  courts  appealed.  The  case  from  White  county  was  a  bill 
filed  by  Eli  Sims  and  others,  seeking  to  enjoin  the  collection  of 
a  tax  levied  by  the  county  court  of  tiiat  county  for  the  payment 
of  the  county  subscription  to  the  defendant,  the  South-Westem 
Bailroad  Company.  The  bill  was  dismissed,  and  an  appeal 
taken.  All  these  cases,  involving  questions  under  the  same 
statutes,  were  argued  and  considered  together.  The  Apinion 
states  the  facts. 

Meigs,  WiUiam  Thompson,  Ouild,  Cooper^  and  N.  &  Braum^ 
for  the  Louisville  &  Nashville  Bailroad  Company, 

MdrshaU  and  Bradford,  for  the  county  court  of  Bumner. 

E,  A.  Keeble  and  MoEwen,  tot  the  county  court  of  Davidaom 

Colms,  for  the  South-Westem  Bailroad  Company. 

Jf.  Jf.  Brien  and  Washburn,  for  Eli  Sims  et  cL 

Bj  Court,  Gabuthebs,  J.  The  leading  questions  in  these  caaea 
are  the  same,  differing  only  in  details  and  mode  of  proceeding. 
We  will  consider  them  together,  pointing  out  the  differences  so 
far  as  may  be  necessaiy.  They  all  originated  under  the  acts  of 
1851-2,  authorizing  county  subscriptions  of  stock  in  certain 
railroads.  In  each  case  the  constitutionality  of  those  acts  is 
brought  in  question.  In  the  two  first  the  proceeding  is  by 
petition  to  the  circuit  court  for  writs  of  mandamus  to  compel 
the  county  courts  and  their  chairman  to  perform  the  duties  re- 
quired of  them  in  the  statutes;  and  in  the  other,  by  bill  in 
equity  filed  by  the  tax-payers  of  White  county,  to  enjoin  the 
collection  of  the  tax  imposed. 

In  cases  of  so  much  importance,  involving,  as  these  do,  more 
than  a  million  of  dollars,  and  many  millions  more,  perhaps,  de- 
pending on  the  principles  now  to  be  settled  in  this  state,  it  is 
gratifying  to  be  able  to  announce  that  the  court  concur  in  every 
material  proposition  embraced  in  the  record  and  the  azgnmenta. 
This  is  their  unanimous  opinion. 

It  is  gratifying  also  to  be  able  to  say  that  the  oases  have  been 
argued  on  both  sides  with  that  ability  and  seal  which  their  great 
importance,  the  large  amount  involved,  and  the  expectation  of 
the  oonmiunity  demand.    By  this  thorough  examination  and 


Dec  1854.]  Louisvillk  etc.  ELK  Co.  v.  Ck>UNTT  Or.       427 

masterlj  aigomentaiioii  on  the  part  of  coii2i8el»  the  court  has 
been  much  aided  in  its  deUbetationB,  and  feel  greatly  indebted 
to  it  for  the  eatiafiactoiy  condnnona  at  which  they  have  been 
able  to  aniye. 

The  high  and  vital  powers  claimed  by  the  legislature  for  itself 
and  the  counties  in  these  acts  are  well  calculated  to  excite  the 
deepest  anziely  and  solicitude  in  the  minds  of  the  people.  It  is 
not  surprising,  then,  nor  is  it  to  be  deprecated  while  circum- 
scribed by  law,  that  much  excitement  has  existed,  and  the  pow- 
ers of  the  gOYemment  subjected  to  the  strictest  scrutiny  and 
sererest  tests;  this  comports  well  with  the  genius  of  our  people, 
and  it  is  not  unfavorable  to  the  stability  of  their  institutions. 
The  people  are,  as  they  should  ever  be,  jealous  of  doubtful,  but 
most  obedient  to  legitimate,  power.  They  will  contest  it  as  their 
lathers  did,  when  unauthorized,  or  even  dubious,  by  legal  and 
orderly  means,  but  submit  to  it  cheerfully,  hard  as  it  may  seem 
to  them  to  operate  in  any  particular  instance,  when  declared  in 
the  mode  prescribed  in  their  system  of  government  to  be  within 
its  prescribed  limits.  And  it  is  most  happy  for  the  country  that . 
they  are  so  deeply  imbued  with  this  law-abiding  spirit,  as  with- 
out it  anarchy  and  confusion  would  very  soon  supplant  law  and 
order  in  a  popular  government  like  ours,  where  all  men  have  to 
look  to  the  law,  and  not  to  the  bayonet,  for  the  protection  and 
safety  of  their  persons  and  property.  Freemen  are  well  aware 
that  their  only  safety  is  in  the  sanctity  of  their  own  laws,  and 
all  defend,  appeal  to,  and  stand  by  them  when  settled,  and  as 
settled,  by  the  tribunals  constituted  for  the  purpose,  except  law- 
lees  mobs  and  reckless  malfactors.  The  suggestion,  then,  that 
any  constitutional  law,  no  matter  how  inexpedient  or  onerous, 
might  be  disobeyed  or  resisted  by  the  people,  while  in  force, 
must  be  regarded  as  out  of  place  and  inapplicable.  But  if  it 
were  otherwise,  it  could  not  have  the  weight  of  a  feather  with 
any  one  worthy  of  judicial  position.  These  considerations  may 
be  mooted  in  tiie  legislature,  but  not  in  the  courts. 

The  people  of  this  state  met  in  convention,  by  their  repre- 
sentatives, in  1884,  for  the  purpose  of  forming  a  new  constitu- 
tion, or  amending  and  altering  the  old  one  adopted  in  1796,  at 
the  birth  of  the  state.  Not  content  silently  to  intrust  the  cause 
of  internal  improvements  to  the  legislature,  under  the  ample 
powers  devolved  upon  it  for  that  and  all  other  purposes  con- 
nected with  their  well-being  and  prosperity,  they  expressly  en- 
joined this  duty  upon  that  body  in  section  9  of  article  11  of 
that  instrument,  in  these  emphatic  words:  "A  well-regulated 


428  LouisyiLLB  Bra  R  R  Oo.  v.  Countt  Or.      [Teim. 

ByBtem  of  internal  unproyements  is  calculated  to  develop  the 
resonrceB  of  the  state,  and  promote  the  happinees  and  prosper- 
ily  of  her  citizens;  therefore  it  ongfat  to  be  encouraged  by  the 
general  assembly/' 

At  the  first  session  after  the  ratification  of  the  constitution  by 
the  people  in  1836  the  turnpike  system  was  adopted,  by  which 
the  state  was  embarked  in  the  cause  to  the  extent  of  two  fifths 
of  the  stock  necessary  to  build  any  road  in  which  the  citizens 
would  subscribe  and  secure  the  other  three  fifths.  In  1837  the 
aid  of  the  state  was  extended  to  one  half ,  to  be  paid,  in  both 
cases,  by  the  issuance  of  her  bonds.  A  bank  of  the  state  was 
created  to  constitute  a  part  of  the  system,  and  to  aid  the  cause  of 
education,  which  was  likewise  made  a  prominent  object  of  the 
convention,  as  appears  in  section  10  of  the  same  article.  This 
system  of  improvement  received  a  severe  shock  in  the  great  re- 
vulsion of  the  commercial  world,  which  occurred  about  the 
time  it  went  into  effect,  and  was  arrested  by  the  legislature  in 
1839.  Boads  enough,  however,  had  been  built  or  commenced 
in  the  mean  time  to  demonstrate  their  effects  upon  the  prosper- 
ity of  the  counties  and  sections  through  which  they  passed. 
Provision  was  at  the  same  time  made  to  aid  in  the  construction 
of  certain  railroads,  which  resulted  in  discouraging  failures. 
From  this  time  for  several  years  the  spirit  of  internal  improve- 
ment slumbered,  and  the  constitutional  injunction  remained 
unheeded  until  1851,  when  the  people  became  fully  aroused 
again  on  this  subject  by  the  spirit  which  actuated  their  conven- 
tion, and  gave  birth  to  the  constitutional  mandate  copied  above. 
A  new  era  in  the  cause  of  improvement  had,  however,  by  this 
time  been  ushered  in,  and  its  benefits  fully  tested  by  our  sister 
states  in  the  adoption  of  railroads  for  or  in  addition  to  turn- 
pikes and  canals. 

This  system  had  proved  itself  to  be  as  much  superior  to  the 
former  as  that  was  to  the  common  dirt  roads,  with  tiieir  wooden 
causeways  and  melting  embankments,  which  had  preceded  it 
It  was  discovered  that  wherever  a  good  system  of  railroads  had 
been  adopted,  prosperity  had  crowned  the  efforts  of  the  people 
in  every  branch  of  business,  and  comparative  darkness  and 
inertia  seemed  to  be  settling  down  upon  evexy  section  in  which 
it  had  been  neglected.  This  contrast,  becoming  stronger  and 
more  glaring  evexy  year,  at  length  aroused  the  state  pride,  and 
waked  up  the  slumbering  energies  of  our  people  to  a  sense  of 
their  interest.  This,  in  1851,  resulted  in  the  election  of  a  gen* 
OTsl  assembly  which  made  a  bold  movement  to  leoover  the 


Dec  1854.]  LomsYiLLS  btc.  R  R  Oo.  v.  Ooxtntt  Or.       429 

ground  which  had  been  lost,  and  oyertake,  if  possible,  in  their 
career  of  prosperity,  those  states  hy  which  Tennessee  had  been 
so  far  outstripped.  Her  younger  as  well  as  elder  sisters  were 
looking  back  upon  her  in  their  rapid  march,  and  jeering  her 
snpineness  and  apathy. 

The  acts  now  under  consideration  constitute  a  part  of  the  sys- 
tem then  adopted.  It  was  proTided  that  the  bonds  of  the  state 
should  be  loaned  to  the  Tarious  companies  then  chartered,  to  the 
extent  of  eight  thousand  dollars  per  mile,  upon  the  procurement 
of  stock  sufficient  from  individuals  and  other  sources  to  com- 
plete the  roads  with  that  assistance.  To  this  extent  the  aid  of 
the  credit  of  the  whole  state  was  given.  But  it  was  thought  rea- 
sonable that  the  particular  counties  through  which  such  roads 
might  pass,  in  consequence  of  the  peculiar  and  local  advantages 
to  them  in  their  property  and  business,  in  addition  to  and  above 
the  general  benefit  to  the  whole  people,  should  contribute  as  a 
local  community  a  sum  commensurate  with  such  extra  benefit, 
to  be  determined  by  themselves.  To  cany  out  that  view,  which 
seemed  to  be  reasonable  and  just,  these  acts  were  passed.  The 
first  provision,  by  which  a  debt  to  be  paid  by  all  the  people  of 
the  state  is  created,  is  based  upon  the  consideration  that  the 
benefits  of  the  system  will  be  difiused  throughout  the  whole,  and 
certainly  all  are  interested  in  the  prosperity  of  any  part  of  a 
community.  The  second  provision  goes  upon  the  very  reason- 
able conclusion  that  if  such  improvements  be  a  blessing,  those 
who  are  nearest  to  them  are  the  largest  participants;  that  is,  the 
benefits  dmved  are,  as  a  general  rule,  in  proportion  to  the  prox- 
imity to  them.  If  this  be  bo,  if  the  legislature  were  right  in 
this  conclusion,  it  is  difficult  to  controvert,  successfully,  the 
justice  and  equity  of  this  regulation,  if  it  had  the  power  under 
the  constitution  to  make  it.  But  we  are  not  to  be  understood 
as  intimating  that  we  have  any  power  to  base  our  action  upon 
the  inexpediency,  injustice,  or  impolicy  of  the  enactments  of 
that  body,  if  they  be  not  in  oonffict  with  the  supreme  law.  And 
whether  these  acts  are  forbidden  by  that  law  is  a  grave  and  im- 
portant inquiry,  upon  which  we  will  now  enter. 

The  general  statute  passed  January  22, 1852,  chapter  117, 
which  is  made  applicable  to  all  the  counties  of  the  state,  and 
under  which  the  counties  of  Sunmer  and  White  proceeded,  is 
in  substance  as  follows :  Section  1  makes  it  lawful  for  any  county 
court,  through  their  chairman,  to  subscribe  for  stock  in  any 
railroad  which  may  pass  through  its  county  or  be  contiguous 
thereto.     Section  2  forbids  such  subscription  until  the  appro- 


430          Louisville  etc.  R.  R  Ck>.  v.  Countt  Or.      [Tenn. 

bation  of  a  majority  of  '*  the  legal  voters  of  the  county''  is  ob- 
tained, by  an  election  to  be  ordered  by  said  conrti  and  to  be  held 
by  the  sheriff,  after  giving  at  least  thirty  days'  notice  in  writ- 
ing,  at  all  the  places  of  holding  elections  in  the  county,  '*  which 
adyertisement  shall  specify  the  amount  of  stock  proposed, 
and  when  payable/'  "And  if  a  majority  of  the  votes  polled 
be  Ifor  subscription,'  the  chairman  of  tiie  county  court  shall 
cany  into  effect  the  will  of  the  majority,  and  shall  subscribe  the 
amount  of  said  stock  so  voted  for."  If  the  vote  be  adverse, 
then  the  question  is  not  again  to  be  propounded  within  six 
months,  and  not  then  without  a  concurrence  of  a  majority  of  all 
the  justices  of  such  county.  Section  8  makes  it  the  duty  of  the 
county  court  to  order  such  election,  upon  the  application,  in 
writing,  of  a  majority  of  the  commissioners  of  such  road;  or  if 
organized,  by  the  board.  *'  Said  elections  shall  be  held  and 
conducted  as  the  county  court  shall  direct."  Section  4  pro- 
vides that  such  moneys  shall  be  expended  within  the  county,  or 
as  near  thereto  as  practicable,  if  the  charter  and  existing  obliga* 
tions  of  said  company  will  permit.  Section  6:  That  when  such 
stock  is  taken,  it  shall  be  the  duty  of  the  county  court  to  levy 
the  necessary  taxes  for  that  special  purpose.  Section  6  makes 
provision  for  the  collection  of  the  tax.  Section  7  prescribes  the 
duty  of  the  clerk  in  making  out  a  tax-list.  Section  8  prohibits 
the  collection  of  more  than  thirty-three  and  one  third  per  cent 
of  such  subscription  in  any  one  year;  requires  it  to  be  paid  to 
the  treasurer  of  the  company  as  it  may  be  collected;  the  col- 
lector to  give  the  tax-payer  a  certificate  of  the  amount  paid  by 
him,  ''which  may  be  traded,  assigned,  or  transferred,"  and 
**  shall  be  receivable  in  payment  of  freight  or  passage"  on  said 
road.  Said  certificate  to  be  countersigned  by  the  clerk  of  the 
county  court,  and  shall  entitle  the  holder  to  receive  a  certificate 
of  stock  in  such  road,  and  to  become  a  stockholder  when  the 
amount  of  one  or  more  shares  may  be  presented.  Section  9 
provides  that  upon  the  subscription  of  the  stock  so  voted  by  the 
people,  the  county  court  may  appoint  a  proxy  to  represent  it  in 
all  the  proceedings  of  the  board.  Sections  10  and  11  provide 
for  settlements,  etc.,  with  the  tax  collector,  and  prescribe  cer- 
tain duties  to  the  clerk.  Section  12:  If  no  railroad  fund  be  in 
hand  at  the  making  of  any  unexpected  call  by  the  company,  the 
county  court  is  to  issue  ''  county  warrants,"  at  interest,  to  the 
board,  which  shall  be  redeemed  at  the  county  treasury  at  such 
time  as  may  be  agreed  upon.  Section  13  extends  the  privileges 
of  the  act  to  incorporated  cities  and  towns.    Section  14:  **  Be 


DecL  1854.]  Louisvillb  Bia  R  R  Co.  v.  Ooxtstt  Or.      481 

it  enacted  that  the  oixcmt  courts  of  the  state  shall  haTC  powei 
to  issue  a  writ  of  mamdamuM  to  compel  said  county  courts  to 
oany  into  effect  the  proTisions  of  this  act,  so  &r  as  is  inemn- 
bent  on  said  county  courts  so  to  do."  Section  16  fixes  the  fees 
of  the  collector  and  clerk,  and  requires  the  court  to  add  to  the 
amount  of  stock  voted  and  subscribed  a  sum  sufficient  to  cover 
such  expenses  of  collection. 

The  petitioner  or  relator  is  a  corporate  body,  made  so  by  an 
act  of  the  legislature  of  Eentud^;  and  hj  an  act  of  the  general 
assembly  of  Tennessee  of  1861  a  right  of  way  is  gnmted  to  it 
through  this  state,  so  as  to  connect  the  cities  of  Louisville  and 
Nashville,  with  sundry  limitations  and  conditions,  all  of  which 
have  been  accepted. 

At  the  June  term,  1862,  of  Sumner  county  court,  the  board  of 
said  corporation,  by  its  president,  L.  L.  Shreve,  petitioned  said 
court  in  writing  to  order  a  vote  of  the  people  on  the  question  of 
subscribing  three  hundred  thousand  dollars  of  stock  in  said 
road,  upon  the  terms  prescribed  by  the  act  of  assembly.  The 
petition  was  granted,  and  the  court,  consisting  of  three  justices 
only  present,  made  the  order  following:  ''Ordered,  that  the 
sheriff  and  his  deputies  shall  advertise  for  at  least  thirty  days, 
and  open  the  polls  for  said  legal  voters,  and  hold  an  election 
upon  Saturday,  the  twenty-fourth  of  July,  1862, :  t  the  various 
election  grounds  of  the  civil  districts  of  Sumner  county,  sub- 
mitting the  following  propositions  to  said  legal  voters,  which 
shall  be  embraced  in  said  advertisements,  to  wit:  that  the 
county  court  of  Sumner  shall  subscribe  stock  to  the  amount  of 
three  hundred  thousand  dollars,  payable  in  five  equal  annual 
installments  from  the  first  day  of  January  next,  in  the  Louisville 
ft  Nashville  Railroad  Company,  agreeably  to  the  provisions  of 
said  act,  upon  the  following  conditions:  that  said  railroad  com- 
pany shall  permanenUy  locate  said  railroad,  so  as  to  make  the 
town  of  Gallatin  apoint  on  the  Bame,by  the  first  day  of  Septem- 
ber next.  If  said  company  shall  fiul  to  make  said  location  by 
the  first  of  Septtoiber,  1862,  and  by  writing  notify  the  chairman 
of  the  county  court  of  said  location,  then  the  county  court  shall 
subscribe  the  said  sum  of  three  hundred  thousand  dollars  of  stock 
in  the  Nashville  ft  Cincinnati  Railroad  Company.  .In  either 
case  of  the  subscription  of  said  stock,  the  money  so  subscribed 
shall  be  expended  in  the  county  of  Sumner,  agreeably  to  the  act. 
The  sheriff  shall  hold  said  election  under  the  law  governing 
elections  for  governor,  members  of  congress,  and  the  general 
assembly." 


#82         LouisviLLB  ETC.  B.  R  Oa  v.  Oommr  Or.      [Tenn. 

The  list  of  Toters  was  to  be  reported  to  the  next  court,  and  if 
it  appeared  from  the  report  to  the  sheriff  that  a  majority  was 
for  subscription^  the  chairman  was  to  subscribe  for  the  stock 
according  to  the  order.  It  appears  from  the  minutes  of  the 
court  that  a  petition  had  also  been  made  by  the  conmussioners 
of  the  Nashville  and  Cincinnati  road  at  the  same  time  and  of  the 
same  tenor  of  the  other.  Judges  to  hold  the  election  at  each 
precinct  were  appointed  by  the  court.  The  certificate  of  the 
sheriff  was  produced  to  the  quorum  court  at  August  term,  by 
which  it  apx>eared  that  he  had  held  the  election  as  required  by 
the  order  of  June  term,  and  that  there  were  one  thousand  one 
hundred  and  tweniy-eight  affirmative  and  one  thousand  and 
twenty-two  negative  votes — ^majority,  one  hundred  and  six.  The 
conditions  set  forth  in  the  order  of  the  court  of  June  term  were 
complied  with  by  the  board  of  the  Louisville  &  Nashville 
company,  in  the  time  required,  and  George  A.  Wylej  as  chair- 
man made  the  subscription.  All  of  which,  with  the  correspond- 
ence, was  reported  to  the  August  term,  and  entered  upon  the 
minutes,  and  his  action  was  ratified  and  confirmed  by  the  court. 
The  said  Wyley  is  then  appointed  proxy  for  said  county  to  act 
for  it  in  the  board. 

On  the  thirtieth  of  December,  1868,  the  legislature  passed  a 
special  amendatory  act  to  authorize  the  county  of  Sumner  to 
issue  her  bonds,  in  payment  of  her  subscription  of  three  hundred 
thousand  dollars,  at  not  less  than  ten  nor  more  than  twenty 
years,  at  six  per  cent  interest,  provided  the  company  would  re- 
ceive them  in  payment,  and  the  people  should  vote  for  the 
change  in  the  mode  of  payment  thus  prescribed.  In  this  event 
it  is  made  the  duty  of  the  chairman  of  the  court  to  sign  and  de- 
liver the  bonds.  An  election  was  ordered  by  the  court,  which 
resulted  in  a  majority  for  the  change. 

Application  was  then  made  to  the  chairman,  James  P.  Taylor, 
for  the  bonds,  and  refused.  Thereupon  this  petition  was  filed 
in  the  circuit  court  for  a  mandamus  against  said  chairman  and 
the  justices  of  the  peace  of  Sumner  county,  commanding  the 
former  to  issue  the  bonds,  or  that  the  county  court  be  compelled 
to  levy  a  tax  to  pay  the  subscription.  Process  was  served  on 
all  the  justices.  A  minority  of  them  answer,  consenting  to  the 
prayer  of  the  petition,  and  a  majority  concur  with  the  chairman 
against  it,  and  in  the  assignment  of  causes  against  the  issuance 
of  the  writ  of  mandamus.  The  writ  was  awarded  by  his  honor, 
the  circuit  judge,  and  an  appeal  in  error  to  this  court. 

The  first  and  most  prominent  in  the  order  in  which  we  will 


Dec  1854]  LomsviLLB  etc.  R  R  Ck>.  v.  Ooohtt  Or.       488 

consider  ihem  is  that  the  said  acts  of  1862  and  1868  are  unooii* 
stitational — 1.  Because  they  delegate  a  power  inTolving  taxation 
to  the  counties  for  an  object  not  local.  Whatever  doubts  may 
exist  upon  the  abstract  question  of  the  authority  of  the  law- 
making department  to  delegate  any  portion  of  its  power  to  the 
subordinate  civil  divisions  of  the  state,  or  town  corporations, 
such  doubts  can  not  arise  here,  because  this  authority  is  expressly 
given  in  our  constitution  in  specified  cases,  as  to  local  matters 
generally.  By  article  11,  section  8,  the  legislature  ''have  a 
right  to  vest  such  powers  in  the  courts  of  justice  with  regard  to 
private  and  local  affiurs  as  may  be  deemed  expedient."  2.  As 
to  the  taxing  power,  the  most  important  and  delicate  of  all 
the  legislative  powers,  article  2,  section  29,  confers  upon  the 
legislature  **  the  power  to  authorize  the  sevend  counties  and 
incorporated  towns  in  this  state  to  impose  taxes  for  county  and 
corporation  purposes  respectively,  in  such  manner  as  shall  be 
prescribed  by  law." 

It  is  not,  nor  can  it  be,  controverted  that  this  last  section  fully 
covers  and  sustains  the  act  in  question,  if  the  railroad  be  prop- 
erly a  *'  county  purpose."  But  it  is  insisted  in  the  argument 
that  it  is  not  so  in  the  sense  of  the  constitution.  It  is  no  ea^y 
matter  to  affix  a  clear  and  definite  meaning  to  this  phrase.  It 
is  less  difficult  to  state  cases  which  do,  and  others  which  do  not, 
fall  within  it  than  to  draw  any  exact  or  palpable  line  between 
them. 

There  would  be  no  diversity  of  opinion  on  the  proposition 
that  court-houses,  jails,  poor-houses,  and  common  roads  and 
bridges  by  which  they  are  made  accessible  to  the  people,  are 
"  county  purposes,"  and  that  hotels,  mercantile,  trading,  bank- 
ing, and  manufacturing  establishments,  would  not  be,  although 
they  may  be  highly  necessary  for  the  comfort  and  prosperity 
of  the  people  at  large.  These  are,  as  they  should  be,  left  to 
private  and  voluntary  enterprise,  and  can  not,  in  any  just  sense, 
be  regarded  as  public  or  county  purposes.  Nor  is  there  any 
necessity  that  it  should  be  otherwise,  because  the  prospect  of 
gain  will  always  attract  sufficient  private  capital  into  those  chan- 
nels. Such  enterprises  will  generally  advance  with  the  wants 
and  demands  of  the  community,  independent  of  public  aid.  No 
authority  exists,  then,  for  the  delegation  of  power  to  counties 
and  cor}>orations  to  levy  taxes  for  such  purposes;  and  &a  act  to 
that  efiect,  as  well  as  any  action  under  it,  would  be  nugatory. 
We  had  a  case  before  us  at  the  present  term.  Cook  S  Steadman 
V.  Sumner  eic.  Co.^  1  Sneed,  698.  in  which  the  question  wan 

▲m.  Dm.  Vol.  LXn-^ 


434         Louisville  etc  R  R  Co.  v.  Countt  Or.      [Tenn 

as  to  the  power  of  a  town  corporation  to  issue  their  bonds,  and 
levy  taxes  for  stock  in  a  woolen  and  cotton  factory  within  their 
limits;  and  were  prepared  to  decide  that  this  was  not  a  corpora- 
tion purpose  within  the  meaning  of  the  constitution,  and  there- 
fore an  act  of  assembly  giving  them  the  power  would  have  been 
void;  but  as  the  action  in  that  case  was  without  any  statute 
specially  conferring  the  power,  it  was  only  necessary  to  decide 
that  by  the  general  corporate  powers  of  the  town  corporation 
debts  could  not  be  contracted,  or  taxes  levied  for  such  purposes, 
and  consequently  the  bonds  were  void,  and  could  not  be  forced 
upon  the  contractors,  who  had  specially  agreed  to  take  them  in 
payment. 

But  the  question  recurs,  Is  a  railroad  a  "  county  purpose"? 
If  this  question  can  not  be  answered  in  the  affirmative,  the  act 
of  1852  is  unauthorized  by  the  constitution,  the  whole  proceed- 
ing is  a  nullity,  and  the  mandamus  must  be  refused. 

One  of  the  first  wants,  next  to  the  necessary  means  of  subsist- 
ence, in  any  community,  is  some  mode  of  reaching  each  other 
for  social  or  business  intercourse,  and  mutual  assistance  and 
advantage.  Wild  animals  have  their  trails^  the  Indian  his  path, 
and  the  white  man  his  roads  and  bridges.  These  are  indispen- 
sable in  the  rudest  organizations  of  society,  for  both  private  and 
public  purposes.  The  tiller  of  the  soil  needs  them  to  go  to  the 
mechanic  for  his  tools,  and  the  mechanic  to  go  to  the  farmer  for 
his  supplies,  and  both  to  reach  the  trader  and  the  merchant  for 
purchase,  barter,  and  exchange,  find  all  together  must  have  them 
to  pass  to  and  from  places  set  apart  for  public  business  or  wor- 
ship. As  society  advances  in  civilization  and  wealth,  its  necessi- 
ties in  this  regard  continue  to  increase,  and  greater  and  still 
greater  facilities  for  intercourse  of  this  kind  are  demanded. 
Roads  which  would  suffice  for  a  population  of  hundreds,  concen- 
trated at  a  few  points,  and  making  but  a  small  amount  for  mar- 
ket, would  not  answer  for  thousands,  covering  the  whole  face  of 
the  country,  and  rolling  up  millions  of  produce  for  transporta- 
tion. The  advance  may  be,  and  generally  is,  gradual  in  this» 
as  in  most  other  things;  but  it  is  as  steady  and  sure  as  any  other 
kind  of  improvement  which  results  from  the  wants  and  urgent 
necessities  of  a  people.  So  the  common  dirt  road  for  wagons  is 
superseded  by  turnpikes,  and  these  again  by  the  railroad.  They 
are  all  designed  for  the  same  purpose,  the  passage  of  persons  on 
business  or  pleasure  and  the  transportation  of  property.  They 
are  for  the  use  and  benefit  of  the  people  locally  and  generally. 
Blessings  innumerable,  prosperity  unexampled,  have  marked 


Dec  1854.]  Louisville  etc  R  R  Co.  u  Ctounrr  Or.      435 

{he  progxess  of  this  master  improyement  of  the  age.  Activity, 
indastiy^  enterprise,  and  wealth  seem  to  spring  up  as  if  by  en« 
chantment  wherever  the  iron  track  has  been  hiid  or  the  locomo- 
tiye  moved.  Bat  like  most  other  temporal  benefits,  it  has  to  be 
purchased  ''  at'a  great  price.''  Individuals  who  have  the  spirit 
to  do  it  are  not  often  sufficient  for  the  task,  and  eveiywhere  it 
has  been  found  necessary,  by  some  means,  to  command  the  aid 
of  corporations,  counties,  states,  whole  communities.  Such  is 
the  system  adopted  in  our  state,  of  which  the  act  under  consid- 
eration is  a  part.  The  state  subscribed  eight  thousand  dollars 
per  mile  (now  ten  thousand  dollars,  by  act  of  the  last  legisla- 
ture), the  counties  on  the  line  of  the  roads,  and  individuals, 
both  natural  and  artificial,  eveiywhere,  as  much  as  they  choose, 
no  more^no  coercion  except  to  enforce  such  engagements  as 
they  may  voluntarily  make. 

Here,  then,  is  a  road  to  pass  through  the  county  of  Sumner, 
touching  her  seat  of  justice,  bringing  to  the  doors  of  her  citizens 
all  the^  necessaries  and  luxuries  both  of  the  north  and  south, 
transporting  all  their  surplus  productions  to  the  best  markets, 
and  her  people  wherever  interest,  business,  or  pleasure  may 
call;  and  all  this  with  that  great  dispatch  which  steam  alone  can 
impart  to  matter,  and  before  which  space  dwindles  into  a  point, 
and  the  people  of  distant  states  are  brought  into  daily  commu* 
nication. 

If,  then,  an  ordinary  dirt  road,  or  less  common  turnpike 
road,  is  a  "  county  purpose,"  and  a  proper  subject  of  county 
taxation,  as  well  as  bridges  over  their  streams,  because  they  are 
local  benefits  to  the  people,  coupled  with  an  advantage  to  the 
public  generally,  having  occasion  to  pass  over  them,  how  can  it 
be  said  that  a  railroad  is  not,  which  answers  all  these  purposes 
BO  much  better,  and  produces  a  state  of  prosperity  of  which  they 
are  entirely  incapable?  Both  are  roads  in  the  county,  and  we 
can  not  argue  that  because  one  is  better,  and  more  costly  if  you 
please,  than  the  other,  the  building  of  it  shall  not  be  regarded 
as  a  county  purpose.  Nor  can  the  fact  that  it  runs  into  or 
through  oUier  counties  or  states,  or  is  owned  or  managed  in 
whole  or  in  part  by  others,  deprive  it  of  this  character.  This 
objection  has  never  been  urged,  and  could  not  be  successfully,  to 
a  dirt  or  turnpike  road,  and  applies  with  still  less  force  to  this. 
The  length  and  magnitude  of  the  work  can  only  increase  the 
local  advantage  to  every  point  it  may  pass.  It  is  the  thing,  and 
its  objects  and  purposes,  which  defines  its  character  in  this  re« 
ipect,  and  not  its  extent  and  magnitude. 


436  Louisville  etc.  R  R  C!o.  u  Countt  Or.      [Tenn. 

But  this  is  not  a  qiiestion  of  the  first  impressioiii  though  we 
have  thus  far  considered  it  in  that  light.  The  same  question » 
in  principle,  came  up  and  was  decided  by  this  court  in  the  case 
of  Nichol  T.  Mayor  and  Aldermen  of  NashviUe^  9  Humph.  252. 
It  was  there  determined  that  an  act  of  the  legishtture  authoris- 
ing the  corporation  of  Nashville  to  take  half  a  million  of  stock 
in  the  Nashville  &  Chattanooga  railroad,  and  issue  bonds,  and 
levy  taxes  to  pay  for  the  same,  was  sustained  by  the  clause  of 
the  constitution  now  under  consideration,  because  that  was  a 
''corporation  purpose."  The  road  had  its  termination  at  or 
near  the  limits  of  the  corporation.  The  reason  given,  among 
others,  was  that  it  tended  largely  to  promote  the  business  and 
prosperity  of  the  city.  Now,  if  that  was  a  corporation  purpose, 
is  this  not  a  county  purpose  ?  Is  not  this  the  strongest  case  ? 
This  road  passes  through  the  whole  county,  as  well  as  the  cor- 
poration of  the  seat  of  justice  in  the  center.  The  same  question 
has  often  been  up  in  other  states,  and  it  is  believed  that  there 
is  but  little,  if  any,  conflict  in  the  decisions.  The  question 
should  be  regarded  by  the  courts  as  settled  and  forever  put  to 
rest.  Some  of  the  cases,  however,  have  gone  farther  than  we 
would  be  willing  to  go,  or  than  this  case  requires. 

The  common  argument,  that  the  power  of  a  county  or  town 
corporation  is  confined  to  their  limits,  has  been  everywhere  met, 
and  refuted  or  exploded.  And  the  kindred  argument,  that  to 
constitute  a  town  or  county  purpose  the  improvement  or  object 
for  which  the  people  are  taxed  must  be  entirely  vnthin  their 
borders,  has  sufiered  the  same  fate:  Talbot  v.  Deni^  9  B.  Mon. 
626;  Shawv.  Dennis,  5  Gilm.  405;  CommonweaJUk  v.  McWUliams, 
11  Pa.  St.  70;  Tucker  v.  Thicker,  4  N.  T.  419;  Goddin  v.  Crump, 
8  Leigh,  120. 

It  is  however  contended,  secondly,  that,  if  this  be  a  county 
purpose,  still  these  acts  are  in  conflict  with  the  constitution,  be- 
cause they  are  not  final  and  obligatory,  but  depend  for  their 
vitality  upon  the  vote  of  the  people;  and  that  this  is  a  transfer 
of  legislative  power  to  the  people  which  is  contrary  to  our  re- 
publican system  of  government,  as  set  up  in  the  constitution,  as 
well  as  its  genius  and  cardinal  principles. 

TVith  these  latter  tests,  it  may  be  remarked,  we  have  nothing 
to  do,  except  so  far  as  they  may  tend  to  illuminate  what  is  vnit- 
ten  in  the  constitution.  If  the  construction  and  administration 
of  our  laws,  supreme  or  subordinate,  were  to  be  govemed  by 
the  opinions  of  judges  as  to  the  genius  or  general  principles  of 
republicanism,  demooraqy^  or  liberty,  there  would  be  no  eer- 


Dee  1854.]  Louisyille  etc.  R  R  Co.  v.  Ooumtt  Or.      437 

tamty  in  Che  law;  no  fixed  roles  of  decision.    These  are  prox>ef 
guides  for  the  legislature  where  the  constitution  is  silent,  but 
not  for  the  courts.    It  is  not  for  the  judiciary  or  the  executive 
department  to  inquire  whether  the   legislature  has  violated 
the  genius  of  the  gOTemment  or  the  general  principles  of 
liberty,  and  the  rights  of  man,  or  whether  their  acts  are  wise 
and  expedient  or  not,  but  only  whether  it  has  transcended 
the  limits  prescribed  for  it  in  the  constitution.    By  these  alone 
is  the  power  of  that  body  bounded;  that  is  the  touchstone 
by  which  all  its  acts  are  to  be  tested;  there  is  no  other.     It 
would  be  a  yiolation  of  first  principles,  as  well  as  their  oaths  of 
office,  for  the  courts  to  erect  any  other  standard.     There  is  no 
*'  higher  law "  than  the  constitution  known  in  our  system  of 
goyemment.     If  that  does  not  conflict  with  or  forbid  an  act  of 
the  l^^lature,  to  which  all  the  law-making  power  is  confided^ 
there  is  no  correction,  no  matter  how  unwise  or  oppressive,  but 
by  the  action  of  the  people  at  their  next  election.     The  courts, 
in  attempting  to  obstruct  or  failing  to  enforce  such  a  law,  would 
be  guilty  of  usurpation  of  power,  and  treading  on  forbidden 
ground.     It  would  result  in  a  ruinous  confiict  of  authority, 
obliterate  the  boundaries  of  power,  and  mar,  if  not  destroy,  the 
harmony  of  that  beautiful  and  well-balanced  system  of  govern- 
ment with  which  we  are  blessed  beyond  all  other  ages  or  coun- 
tries.  No  temporary  evils,  be  they  ever  so  oppressive,  would  com- 
pensate for  the  introduction  of  a  principle  fraught  with  so  much 
danger  into  our  jurisprudence.     Then,  if  we  were  of  the  opin- 
ion that  the  act  in  question  was  of  the  most  unwise,  unjust,  op- 
pressive, and  ruinous  character,  and  yet  was  not  forbidden  by 
the  organic  law,  but  fell  within  the  scope  of  legitimate  legisla- 
tive action,  we  could  not  arrest,  but  would  be  solemnly  bound 
to  enforce  it.     For  the  consequences  we  are  not  responsible. 
We  have  no  more  power  to  repeal  or  disregard  than  to  make 
law;   our  functions  only  extend  to  their  construction  and  en- 
forcement   But  on  the  other  hand,  it  has  become  an  axiom 
in  our  jurisprudence,  now  nowhere  disputed,  and  eveiywbere 
adopted  and  acted  upon,  that  the  courts  have  power,  and  it  is 
their  duty,  to  pass  upon  the  constitutionality  of  an  act  of  the 
legislature,  and  declare  it  nugatory  if  there  be  an  irreconcilable 
confiict;  yet  the  rule  is,  as  generally  recognized,  that  it  would 
be  inconsistent  with  that  comity  and  confidence  which  should 
ever  subsist  between  co-ordinate  departments  of  the  same  gov« 
emment,  and  the  high  respect  due  both  to  the  intelligence  and 
honesfy  of  the  people's  chosen  representatives,  not  to  decide 


438         Louisville  etc.  R  R  Co.  u  Couktt  Or.      [Tenn. 

upon  their  acts  wiih  every  presiimption  in  &Tor  of  their  valid- 
ity, which  should  be  overcome  only  by  the  clearest  convictions 
of  judgment,  after  the  most  grave  and  mature  examination  and 
profound  reflection:  HyUon  v.  Uniied  Slates,  8  Dall.  171;  Cooper 
V.  Td/air,  4  Id.  14;  Fletcher  v.  Peck,  6  Cranch,  87;  Adams  v. 
Uowe,  U  Mass.  345  [7  Am.  Deo.  216];  G(mm<mweaUh  v.  MoWilU 
tarns,  11  Pa.  St.  70;  City  of  Louimlle  v.  EyaU,  2  B.  Mon.  178 
(3G  Am.  Dec.  694];  City  of  Lexington  v.  McQuillan,  9  Dana,  514 
[35  Am.  Dec.  159]. 

The  admitted  theory  of  our  government  is,  that  all  power  of 
every  kind  is  derived  from  the  people  as  the  natural  source  or 
fountain.  In  every  government,  no  matter  by  what  name  called, 
or  whether  vested  in  one  or  many  persons,  these  powers  are 
naturally  divided  into  three  classes:  the  legislative,  the  law- 
making; judicial,  the  law-expounding;  and  executive,  the  law- 
enforcing.  These  three  departments  embrace  all  the  powers  of 
government.  They  were,  in  the  construction  of  our  system  by 
the  people,  wisely  vested  in  these  distinct  co-ordinate  depart- 
ments above  enumerated,  and  to  be  exercised  by  different  pei^- 
Bons  or  bodies  of  men.  Their  union  is  tyranny;  their  separation 
the  only  guaranty  of  liberty.  The  boundary  lines  between  them 
were  as  distinctly  marked  as  the  nature  of  the  case  would  admit. 
Each  was  made  sovereign  in  its  sphere,  but  powerless  beyond  it. 
They  are  all  agents  of  the  people,  and  the  constitution  their 
power  of  attorney.  All  acts  beyond  this  are  nugatory  and  void; 
but  within  it,  binding  upon  all,  whether  right  or  wrong,  politio 
or  impolitic.  No  relief  can  be  obtained  if  the  charter  is  not 
transcended.  Partial  evil  must  be  endured  for  the  general  good. 
The  harmony  of  the  system  must  be  maintained.  The  judiciary, 
with  all  others,  must  submit  to  the  commands  of  the  legislature, 
so  long  as  it  revolves  in  its  legitimate  orbit,  no  matter  what  the 
consequences  may  be.  The  liability  to  abuse  is  incident  to  all 
grants  of  power;  and  yet,  if  on  this  account  no  power  were  dele- 
gated to  agents,  all  government  would  be  at  end,  and  the  law- 
less rule  of  the  strongest  would  succeed  to  the  harmony  and 
order  of  regular  government.  The  basis  upon  which  the  whole 
American  fabric  has  been  erected  is  that  the  people,  being  in 
possession  of  all  power,  have  the  right  to  partition  it  out  as  they 
think  most  conducive  to  their  happiness,  in  the  form  of  written 
constitutions,  by  which  all  invested  with  power  shall  be  effect- 
ually controlled.  This  is  the  supreme  and  paramount  law  before 
which  all  must  bow  with  reverence.  Over  its  barriers,  even  the 
legislature,  with  its  mighty  powers  for  good  and  evil,  can  not 


Dea  1854]  LomsviLLE  etc  R  R  Go.  v.  Cottntt  Or.      439 

pMS.  This  limitation  would  be  worse  than  useless  if  there  were 
no  power  in  the  state  to  decide  upon  their  acts  and  to  bring 
them  to  the  test,  whenever  any  controyersy  arises  on  the  sub- 
ject. This  delicate  and  important  duty  has  been  necessarily 
derolyed  upon  the  judiciary.  How  could  it  be  otherwise  ?  The 
judges  are  appointed  and  sworn  to  administer  the  law,  ai  d  of 
necessity  they  must  dedde  what  the  law  is.  In  doing  this,  they 
are  obliged  to  look  first  to  the  supreme  law  to  determine  upon 
any  conflict  with  it  that  may  be  alleged.  This  necessarily  in- 
Tolres  the  right  to  declare  an  act  of  the  legislature  void  wherever 
such  conflict  is  found  clearly  to  exist:  Fletcher  y.  Peck,  6  Cranch, 
87.  But  wheve,  in  the  best  judgment  of  the  court,  there  is 
no  collision,  what  then  ?  Are  the  courts  to  look  out  some  other 
standard,  erect  some  ideal  test,  such  as  their  own  opinions  of 
right  and  wrong,  justice  or  injustice,  or  the  general  principles 
of  a  free  government,  might  suggest,  and  by  that  annul  a  solemn 
act  of  the  law-making  power  ?  The  absurdity  to  which  such  a 
doctrine  leads  must  at  once  condemn  it  with  all  right-thinking 
men.  There  are,  however,  two  standards  to  which  we  must 
refer  to  try  the  validity  of  legislation — the  constitution  of  the 
United  States,  and  that  of  our  own  state.  The  people  have 
wisely  parceled  out  their  power  to  two  distinct  governments: 
the  one  general  and  national,  the  other  state  and  local.  They 
both,  in  fill  their  departments,  operate  upon  the  same  people, 
and  are  concurrent  and  friendly,  and  not  foreign  or  hostile  to 
each  other;  both  supreme  and  sovereign  in  the  respective  spheres 
assigned  to  them  by  the  real  and  original  sovereign  power  rest- 
ing in  the  people,  for  whose  benefit  and  happiness  they  were 
created,  and  by  whose  voice  they  are  subject  at  any  time  to  be 
changed  or  remodeled.  The  first,  however,  is  more  strictly  lim- 
ited in  its  action.  It  is  confined  to  the  powers  expressly  given 
and  those  fairly  incidental  thereto,  such  as  are  necessary  to  carry 
out  and  make  effectual  those  expressly  granted.  The  other  (but 
I  refer  particularly  to  the  legislative  power  of  each)  is  only  cir- 
enmscribed  by  the  limitations  and  interdicts  of  the  two  consti* 
tutions.  The  inquiry  in  the  one  case  is.  Where  is  the  authority 
in  the  charter?  not.  Is  it  forbidden?  And  in  the  other.  Is  it 
forbidden  ?  Where  is  the  prohibition  ?  This  is  clearly  indicated 
by  the  articles  granting  the  power  in  the  two  instruments:  ''All 
legislative  powers  herein  granted  shall  be  vested  in  a  congress  of 
the  United  States,  which  shall  consist  of  a  senate  and  house  of 
representatives:''  Const.  U.  S.,  art.  1,  sec.  1.  *'  The  legislative 
anthorily  of  this  state  shall  be  vested  in  a  general  assembly^ 


440          LouisviLLB  Eic  B.  R  Co.  V,  CoxTiiTT  Or.      [Temi. 

which  shall  consbi  of  a  soDate  and  hoose  of  representatiTeSy 
both  dependent  on  the  people:"  Consi  Tenn.,  art  2,  sec.  3. 

Then  the  only  l^fislatiye  powers  of  congress  are  those  speci- 
fic in  the  instmment— *'  herein  granted" — ^but  no  others;  but 
those  of  the  general  assembly  of  the  state  are  general,  extending 
to  all  powers  of  goYemment  properly  denominated  legislative; 
falling  under  that  class  of  powers  according  to  the  accepted 
meaning  of  the  words  used,  not  that  which  is  **  herein  granted," 
but  the  ''legislative  authority  of  the  state/'  all  the  law-making 
power. 

But  still,  the  past  experience  and  sound  forecast  of  the 
people  were  too  great  to  leave  this  immense  grant  of  powev  with- 
out limitations  and  restrictions.  These  are  carefully  and  em- 
phatically prescribed  in  both  constitutions.  A  specimen  of 
these  may  be  found  in  the  constitution  of  the  United  States: 
"No  state  shall  *  *  *  coin  money,  emit  bills  of  credit, 
make  anything  but  gold  and  silver  coin  a  tender  in  payment  of 
debts,  pass  any  bill  of  attainder,  ex  posi/acto  law,  or  law  impair- 
ing the  obligation  of  contracts,  or  grant  any  title  of  nobility:" 
Art.  10,  sec.  1.  And  in  the  constitution  of  Tennessee,  article  1, 
many  of  them  are  set  forth.  In  these  and  other  clauses  we  find 
guards  and  limitations  upon  legislative  power  in  the  funda- 
mental law.  These,  as  it  must  be  presumed,  were  regarded  as 
sufficient  checks  on  the  power  granted,  and  no  other  can  be 
added  but  by  the  same  authority.  Were  it  not  for  these  restric- 
tions, the  legislature  of  Tennessee  would  be  as  omnipotent  as 
the  parliament  of  Great  Britain  is  assumed  to  be  by  the  great 
oommentator;  and  the  same  would  or  might  be  the  case,  if  there 
were  no  power  in  the  state  to  hold  it  to  its  orbit  and  enforce  the 
checks  and  balances  of  the  constitution.  And  these  or  worse 
consequences  might  follow  if  this  restraining  power,  not  so 
direcUy  under  the  control  of  those  upon  whom  all  power  acts^ 
were  allowed  to  be  governed  in  their  action  by  arbitrary  rules 
established  by  itself,  instead  of  the  written  constitution  estab- 
lished by  the  people.  The  one  would  be  as  fluctuating  as  the 
opinions  and  prejudices  of  men,  but  the  other  is  fixed  and 
stable.  In  this  lies  the  great  advantage  of  a  written  constitu- 
tion— a  settied,  unbending,  supreme  law. 

Under  the  guidance  of  these  general  rules  and  fixed  prin- 
ciples, we  approach  the  question  before  us.  Is  the  act  of  1852 
forbidden  by  any  clause  in  the  constitution  of  the  United 
States  or  that  of  the  state  of  Tennessee  because  of  the  refer* 
snce  made  to  the  people? 


Dee.  1854}  Lottisville  sic  KKCo.  v.  Ooumtt  Or.      441 

The  qnestioii  of  the  oonstitationfility  of  a  general  act  cf  the 
legialAtarey  which  ia  made  in  terms  to  depend  for  its  yitality  in 
OTery  respect  as  a  condition  upon  a  vote  of  the  people  in  its 
CaTor,  has  been  rerj  much  agitated  in  the  huit  few  years,  and 
in  the  courts  of  oar  sister  states  conflicting  decisions  have  been 
made  upon  it.  That  it  is  a  question  of  difficult  solution  is  fully 
evinced  by  the  fiict  that  the  first  legal  minds  at  the  bench  and 
ttie  bar  of  .the  nation  differ  in  their  opinions.  The  inherent 
diffictdty  of  the  question,  as  well  as  the  great  diversify  of  opin- 
ion upon  it  and  its  high  importance,  all  suggest  the  propriety 
of  refraining  from  the  expression  of  any  opinion  upon  the  ab- 
stract question  until  a  case  necessarily  involving  it  is  presented 
and  argued  before  us,  which  we  do  not  consider  these  cases 
to  do. 

The  writer  of  this  opinion,  however,  would  say  for  himself, 
that  he  is  not  able  to  see  anything  in  the  constitution  which 
would  invalidate  an  act  of  the  legislature  on  account  of  such  a 
condition.  It  is  easy  to  see  many  objections  to  it  on  the  score 
of  expediency:  that  it  would  be  troublesome  to  the  people; 
might  be  resorted  to  by  the  members  for  the  purpose  of  avoiding 
responsibiliiy  to  their  constituents;  protract  the  enactment  of 
proper  laws,  and  unnecessarily  agitate  the  people.  And  on  the 
other  hand,  it  might  save  ihem  from  some  hasty,  crude,  and 
unacceptable  legislation;  yet  that  does  not  prove  anything  upon 
the  question  of  constitutionality;  but  these  considerations 
would  prevent  this  course  being  often,  if  ever,  adopted  in  legis- 
lation. It  is  difficult  to  see,  when  it  is  admitted,  as  it  is  by 
every  one,  that  the  legislation  of  congress  or  the  general  as- 
sembly may  be,  as  it  has  often  been,  conditional;  their  acts 
made  to  depend  upon  conditions  whether  they  are  to  go  into 
effect  or  not;  that  in  a  republican  government  this  particular 
condition,  the  sanction  of  the  people,  would  be,  by  implica- 
tion, against  the  constitution.  It  would  seem  that,  in  a  popu- 
lar government,  if  any  condition  could  be  tolerated  under  the 
constitution,  it  would  be  this;  and  that  in  making  any  great 
diange  in  the  policy  of  a  state,  it  would  not  be  incompatible  with 
our  institutions  to  suspend  the  same  until  the  sanction  of  those 
upon  whom  it  was  to  operate  should  be  obtained  to  the  distinct 
measore  proposed,  as  well  after  it  has  been  matured  by  the 
legislature  by  a  vote  of  the  people,  as  before  by  instructions. 
It  is  true,  the  power  to  make  laws  has  been  surrendered  by  the 
people,  and  vested  in  the  legislature,  so  that  no  law  can  be 
made  by  or  emanate  from  them;  but  this  does  not  prove  that  it 


442         Louisville  etc.  R  R  Co.  v.  Coumtt  Or.      [Temi. 

would  be  an  infringement  of  the  constitation  for  their  repm- 
«entatiyes  to  call  for  and  defer  to  their  opinions  on  the  subject 
of  a  new  law,  fully  matured  by  them  in  all  its  parts,  before  it 
fihali  go  into  effect.  But  this  question  is  left  open,  and  no 
opinion  given  upon  it  by  the  court,  as  before  stated^  as  we  do 
not  consider  that  this  case  requires  it. 

But  in  the  case  under  consideration  the  court  is  of  the  unani- 
mous opinion,  and  so  decide,  that  the  reference  to  the  people  of 
the  question  of  subscription  or  no  subscription  of  stock  does 
not  invalidate  the  act  by  bringing  it  in  conflict  with  the  consti- 
tution. 

This  is  a  general  law,  perfect,  finished,  and  unoonditionaL  It 
is  not  made  to  depend  for  its  Titalily  upon  the  Tote  of  the  people, 
or  any  other  future  contingency.  Whether  Sumner  or  any  other 
county  act  imder  it  or  not,  it  is  stiU  the  law  of  the  land,  addressing 
itself  to  all  the  counties  of  the  state  until  repealed  by  the  author- 
ity which  gave  it  being.  True,  it  will  only  operate  in  its  vigor 
where  and  when  the  state  of  things  provided  for  should  trans- 
pire. But  this  is  the  case  with  all  laws,  criminal  and  civiL 
Every  statute  must  apply  to  some  future  state  of  things,  and 
their  enforcement  must  depend  upon  the  happening  of  the 
things  contemplated — ^the  action  of  others.  The  law  against 
murder  and  larceny  would  remain  dead  upon  the  statute>book 
if  no  one  would  perpetrate  the  crimes  against  which  they  are 
directed. 

But  again:  this  act  provides  for  the  creation  of  a  county  debt 
for  stock  in  a  road,  and  a  tax  to  meet  it,  and  this  is  suspended 
on  a  vote  of  the  people,  and  not  the  action  of  the  court.  The 
legislature,  it  is  admitted,  could  do  this,  or  it  could  empower 
the  court  or  a  corporation  to  do  it,  but  can  not  leave  it  to  the 
people!  What  says  the  constitution?  *'  The  general  assembly 
shall  have  power  to  authorize  the  several  counties  and  incorpo- 
rated towns  in  this  state  to  impose  taxes  for  county  and  corpo- 
ration purposes  respectively,  in  such  manner  as  shall  be  pre- 
flcribed  by  law:"  Art.  2,  sec.  29.  By  another  section,  the 
**  legislature  is  authorized  to  vest  power  over  private  and  local 
mffiEurs  in  the  courts  of  justice:"  Art.  11,  sec.  8.  But  here,  in 
relation  to  the  very  delicate  subject  of  taxation,  the  authority 
to  impose  taxes  for  county  purposes  (and  we  have  seen  that  this 
IS  such  purpose)  is  to  be  communicated  to  the  *'  coxmties,"  not 
to  the  courts,  nor  to  the  justices,  nor  to  the  officers.  And  how 
shall  this  power  be  exercised — ^by  what  agency  or  instrumen-^ 
tality  ?  By  the  county  courts  or  circuit  courts,  or  by  representa* 


Dee.  1854.]  LomsviiXE  etc.  R  R  Co.  t;.  Oountt  Or.      443 

tiTeB  from  each  civil  district  selected  for  that  purpose  in  conven- 
tioiiy  or  by  the  people  ?  No.  The  mode  of  doing  it  is  left  to  the 
general  assembly.  The  authoriiy  is  to  be  exercised  liy  the 
"counties"  in  "  such  manner  as  shall  be  prescribed  by  law.*' 
The  legislature,  then,  have  by  the  constitution  the  xmequiTOcal 
power  to  determine  and  direct  how  and  in  what  manner  these 
taxes  may  be  imposed  by  the  counties  upon  themselves,  as  well 
as  to  what  extent  and  for  what  purpose.  That  the  county 
court  may  have  been  empowered  to  act  for  the  coimiy  on  this 
subject  is  no  objection  to  the  different  mode  or  agency  adopted 
in  ihe  act.  It  may  certainly  be  said,  with  great  safety,  that  as 
the  legislature  was  expressly  intrusted  with  the  selection  of  the 
mode  and  manner  of  imposing  the  debt  and  the  tax  upon  the 
county,  it  could  not  have  adopted  a  plan  more  unexceptionable 
than  to  refer  the  question  directly  to  the  tax-payers  themselves. 
It  was  reasonable  and  just,  the  constitution  permitting  it,  that 
it  should  be  left  to  the  people  of  the  county  to  decide  for  them- 
selves, in  view  of  the  burdens  it  would  impose  upon  them  on  the 
one  band  and  the  advantages  on  the  other,  whether  they  would 
go  into  it  or  not.  The  people  might  weU  consider  that  although 
the  debt  proposed  woidd  be  heavy  and  the  taxes  onerous  for 
some  years,  yet  their  lands  would  be  greatly  enhanced  in  price, 
their  facilities  in  trade  and  business,  in  transportation  of  their 
surplus  produce,  and  intercourse  with  the  rest  of  the  world, 
would  amply  compensate  them.  The  objection  to  this  mode  of 
deciding  the  matter,  even  if  we  were  at  liberty  to  decide  upon 
grounds  of  expediency,  which  we  have  seen  we  are  not,  that  the 
people,  are  liable  to  be,  and  were  in  this  instance,  misled  by  pa- 
rades, barbecues,  and  torchlight  processions,  got  up  by  the  friends 
of  the  measure,  and  backed  by  eloquent  speeches,  by  which  the 
voters  were  gulled,  deceived,  and  carried  away,  can  not  be  for  a 
moment  entertained.  It  is  striking  at  the  foundation  of  our  in- 
stitutions, and  would  annul  all  popular  elections.  It  is  a  funda- 
mental principle  in  an  elective,  popular  government  that  the 
people  are  capable  of  self-government,  and  may  be  safely  trusted 
with  their  own  interests.  Besides,  this  was  a  matter  among 
themselves  and  others,  and  others  interested  in  their  action  cau 
not  be  affected  by  it;  they  can  not  be  allowed  to  take  advantage 
of  their  own  vnrong  in  a  contest  with  others.  This  is  not  a 
controversy  between  the  affirmative  and  negative  voters,  but  be- 
tween a  corporation  and  the  whole  county,  bound  by  a  vote  oi 
the  majority.  This  is  a  government  of  majorities;  it  can  not 
be  otherwise. 


444         Louisville  Era  R  R  Co.  v.  Couktt  Or.      [Temi. 

Yarious  other  clauses  of  the  constitaiion  ha^e  been  inferred 
to  in  argument,  but  as  we  think  they  have  no  application,  and 
are  not  seriously  pressed,  they  need  only  be  noticed  very  briefly. 
The  clause  which  forbids  private  property  to  be  taken  for  public 
use,  article  1,  section  21,  has  no  application,  because  that  rests 
upon  the  doctrine  of  eminent  domain,  and  this  upon  the  right 
and  power  of  taxation. 

They  are  entirely  distinct,  and  in  every  respect  dissimilar. 
The  former  is  when  something  beyond  a  mere  equal  share  of  the 
public  burdens  is  taken  from  the  citi^n,  and  therefore  he  must 
be  paid  by  that  public  to  whose  use  it  is  applied.  It  is  made 
a  debt  against  the  community  of  which  he  is  a  member.  But 
this  debt,  as  well  as  others  which  are  contracted  for  the  general 
good,  can  only  be  paid  by  taxation.  The  amount  necessary  for 
this  and  all  other  public  purposes  must  be  raised  by  exactions 
upon  all  in  some  form  of  taxation.  In  relation  to  this,  the  idea 
of  refunding  or  compensation  can  not  be  conceived.  It  would 
be  simply  and  palpably  absurd.  Here  no  man's  property  is 
taken,  but  a  tax  imposed. 

The  clause  against  partial  and  private  laws  is  also  cited: 
Const.,  art.  11,  sec.  7.  This  is,  if  possible,  still  more  remote  and 
inapplicable.  To  prove  this,  it  will  be  only  necessary  to  read  it 
in  connection  with  section  29  of  article  2.  But  these  objections 
are  but  little  relied  upon,  and  need  not  be  further  noticed. 

Secondly.  It  is  contended  that  even  if  the  act  of  assembly 
be  constitutional  in  all  respects,  yet  upon  various  grounds  the 
proceeding  in  this  case  is  void,  because  its  provisions  were  not 
pursued,  and  the  conditions  prescribed  to  render  the  subscrip- 
tion obligatory  upon  the  county  have  not  been  performed. 

1.  The  various  acts  to  be  performed,  and  orders  made  by  the 
county  court  under  the  provisions  of  the  act,  were  done  and  per- 
formed in  this  case  by  the  quorum  court,  when  only  three  justices 
were  present.  It  is  insisted  that  the  act,  in  the  use  of  the  words 
•*  county  court,"  in  reference  to  the  subject  of  taxation,  must  and 
did  require  a  number  to  be  present  sufficient  to  levy  taxes,  or  at 
least  to  appropriate  county  money.  The  argument  goes  farther, 
and  insists  that  wherever  that  court  is  simply  designated  by 
name  without  more,  in  an  act  of  assembly  requiring  duties  to  be 
performed  or  powers  exercised,  a  number  sufficient  to  transact 
any  county  business  must  be  present.  We  can  not  yield  to  the 
force  of  this  objection.  No  power  to  levy  a  tax,  appropriate 
money,  or  contract  a  debt  is  conferred  by  this  act.  All  this  is 
referred  to  the  people.    The  court  has  no  discretionary,  quam 


ec  1854.]  Louisville  etc  R  R  Co.  v.  Countt  Or.       44S 

IcgislatiYe,  or  judicial  power  given  to  it  in  any  part  of  this  act. 
It  is  merely  ministerial  or  instnunental,  in  eveiy  duty  required 
of  it.  It  is  to  receiye  and  file  the  petition  of  the  railroad  di- 
rectory or  commissioners,  to  order  and  make  regulations  for 
elections,  receive  the  return  of  the  sheriff,  and  through  their 
chairman  subscribe  the  stock  and  levy  and  have  collected  the 
railroad  tax.  No  discretion  is  anywhere  given;  that  seems  to  be 
studiously  avoided  by  the  legislature.  The  intention  evidently 
was  to  commit  the  whole  matter  to  the  people,  and  provide  that 
their  edict  in  relation  to  it  should  be  subjected  to  no  intermedi- 
ate obstructions,  but  be  fairly  and  fully  carried  out  by  the  use  of 
the  agencies  designated.  It  can  not  be  doubted  but  that  it 
would  have  been  as  competent  for  the  legislatiire  to  have  ap- 
pointed any  other  county  officers  to  have  performed  these  acts 
as  well  as  to  the  justices  of  a  county  court.  But  these  were 
thought  most  appropriate  and  suitable.  Yet  the  duties  required 
were  all  ministerial.  The  coiirt  are  to  act  under  the  mandate  of 
the  law  in  carrying  out  the  will  of  the  people  with  no  more  dis- 
cretion than  a  sheriff  or  any  other  ministerial  officer  has  in  the 
execution  of  a  writ  or  any  other  duty  assigned  to  him  by  law. 
Then  there  can  be  no  reason  arising  out  of  the  nature  of  the 
duty  to  be  performed  which  would  require  any  particular  num* 
ber,  provided  there  shall  be  as  many  as  shall  constitute  a  legal 
court. 

The  county  court,  as  well  as  all  other  inferior  courts,  is  the 
creature  of  the  legislature.  The  constitution  provides  that  the 
judicial  power  of  this  state  shall  be  vested  in  one  supreme  court, 
aud  in  such  inferior  courts  as  the  legislature  from  time  to  time 
may  ordain  and  establish,  and  the  judges  thereof,  and  in  justices 
of  the  peace:  Art.  6,  sec.  1.  And  by  section  3  courts  may  be 
established  to  be  held  by  justices  of  the  peace. 

The  legislature  of  1835,  the  first  after  the  adoption  of  the 
present  constitution,  did  establish  a  county  court  to  be  held  by 
justices  of  the  peace,  and  assigned  to  it  its  jurisdiction.  That  and 
subsequent  acts  prescribed  the  number  of  justices  necessary  for 
the  exercise  of  certain  specified  functions.  Three  are  required 
to  constitute  a  court  for  ordinary  business;  without  that  niunber 
there  can  be  no  court;  but  to  lay  off  roads,  appropriate  sums  of 
money  larger  than  fifty  dollars,  and  some  other  things,  require 
a  greater  number;  and  to  levy  taxes,  a  still  greater.  In  either 
and  in  every  case  the  tribunal  is  denominated  a  "  county  court." 
We  take  the  correct  rule  to  be,  in  all  cases  where  no  particu- 
lar number  is  specially  required  to  constitute  the  coiurt,  that 


446         Louisville  etc.  K.  R  Co.  u  Couimr  Or.      [Tena 

the  duty  may  be  performed  by  three.  The  legislature,  being  the 
creator,  can  certainly  shape  the  creature  as  it  chooses.  Then, 
when  a  new  power  is  given  to  or  duty  reqtiired  of  the  '*  county 
court,"  and  no  particular  number  of  justices  are  specified,  any 
number  which  may  constitute  a  legal  court  can  perform  it.  This 
conclusion  is  strengthened  by  the  fact  that  in  cases  where  more 
was  required,  it  so  provided  in  the  acts.  Here,  then,  was  a  new 
duty  required  of  that  tribunal,  without  any  designation  of  the 
number  which  should  compose  it;  consequently,  if  the  acts 
were  done  by  the  county  court,  whether  composed  at  the  time  of 
three  or  fifty  members,  the  law  is  complied  with,  and  the  action 
is  valid,  and  binding  upon  all  concerned. 

2.  The  vote  of  the  people  was  taken  before  the  location  of  the 
road.  The  act  makes  no  such  prerequisite.  True,  it  says  the 
question  of  taking  stock  in  *'  any  road  which  passes  through  or 
contiguous  to  any  county  "  may  be  put  to  the  people.  But  it 
also  provides  that  the  commissioners  for  any  road  may  apply  to 
the  court  to  take  the  vote  and  it  shall  be  ordered.  Now,  this 
must  be  previous  to  the  location,  because  the  organization  of  the 
company  has  not  taken  place  by  the  election  of  directors  and 
officers.  Such  could  not  have  been  the  intention  of  the  law,  be- 
cause the  particular  location  of  a  road  often  depends  upon  the 
prospect  of  the  aid  to  be  obtained  at  different  points  from  in- 
dividuals or  corporations.  But  again :  if  this  were  an  objection, 
it  was  obviated  by  a  condition  in  the  order  for  the  election  re- 
quiring the  road  to  pass  through  the  county  and  make  Gallatin 
a  point.  And  this  was  ordered  by  the  board  of  directors,  and 
was  officially  communicated  before  the  subscription  was  made. 

3.  The  condition  in  the  order  by  which  Gallatin  was  made  a 
point  was  a  fraud  upon  the  stockholders,  as  it  was  out  of  the 
direct  ix>ute,  and  operated  as  a  bribe  upon  that  portion  of  the 
voters.  The  stockholders  were  represented  by  the  directors,  who 
accepted  the  terms  upon  a  full  knowledge  of  the  facts;  aud  the 
party  who  proposed  the  terms  can  not  be  heard  to  object  to 
them.  So  far  as  these  objections  relate  to  the  influence  of  this 
condition  upon  the  voters  in  the  vicinity  of  Gallatin,  it  can  have 
no  effect,  as  the  same  objection  would  apply  to  the  condition 
requiring  the  road  to  pass  through  the  county,  as  that  had  an 
influence  on  all  the  voters.  But  there  was  no  concealment  or 
mistake  of  the  facts  upon  this  point,  as  the  conditions  were  all 
published  and  canvassed  before  the  people. 

4.  The  stock  is  made  payable  in  five  installments  in  the  order, 
had  the  act  contemplates  but  three.   This  objection  would  seem 


Dec.  1854.]  Louisville  etc.  R  R  Co.  v.  CJounty  Or.       ♦♦T 

to  be  made  under  a  mistake  as  to  the  proyisions  of  the  act.  In 
the  eighth  section  it  is  proyided  that  not  more  than  ono  tbir  J- 
of  the  stock  voted  and  subscribed  shall  be  required  in  auy  one 
year.  It  nowhere  prohibits  more  installments  and  a  less  amount. 
This  is  more  fiayorable  to  the  taz^pajers,  and  can  not  be  an  avail- 
able objection.  If  it  were  a  departure  from  the  act,  it  would 
not  lie  in  the  mouth  of  the  party  benefited  by  it  to  complain, 
and  more  particularly  when  it  was  fixed  by  the  vote  of  that  party 
as  a  term  of  the  contract. 

5.  The  election  was  carried  by  fraud,  bribery,  etc.  These 
grave  charges  are  not  proved,  and  can  not  be  presumed  to  be  true. 
The  stump-speakers  may  have  colored  too  highly  the  advantage 
of  the  road,  misrepresented  the  law,  and  made  promises  which 
could  not  be  fulfilled.  But  if  this  were  so,  it  was  a  case  of  the 
voters  acting  upon  themselves:  the  relator  is  not  implicated;  the 
rights  of  the  company  can  not  be  affected  by  it.  If  objections  of 
this  kind  could  prevail  against  a  popular  decision,  what  election 
could  stand?    Would  not  the  government  be  without  officers? 

G.  The  order  of  the  court  upon  which  the  people  voted  waa 
not  single  and  positive,  but  in  the  alternative  as  to  two  roads; 
that  is,  it  proposed  that  three  hundred  thousand  dollars  sLoulJ 
be  subscribed  in  the  Nashville  &  Louisville  road,  provided  the 
board  of  directors  located  it  permanently  through  Sumner,  and 
made  Gallatin  a  point,  on  or  before  the  first  of  September,  1852; 
and  if  not,  then  to  be  subscribed  in  the  Nashville  Sc  Cincin- 
nati road.  By  this,  it  is  insisted,  the  friends  of  both  roads  were 
brought  together,  when,  perhaps,  neither  alone  could  have  so- 
cured  a  majority. 

Here,  again,  the  argument  is  at  fault,  because  if  this  were  cal- 
culated to  unite  the  friends  of  both,  it  would  at  the  same  time 
bring  the  enemies  of  each  together,  and  drive  off  many  who 
might  vote  for  one  because  it  would  pass  near  them,  and  be- 
cause of  this  uncertainty,  array  themselves  against  the  entire 
proposition.  But  independent  of  this  consideration,  we  can  see 
nothing  in  this  to  invalidate  the  proceedings.  The  great  object 
was  to  have  a  railroad  traversing  their  county,  and  there  was 
nothing  improper  in  presenting  to  them  two  chances  for  it — ^a 
first  and  second  choice. 

There  are  many  other  ingenious  objections  taken  to  this  pro- 
ceeding under  the  act  of  1852,  and  pressed  upon  us  with  much 
force  and  cogency  of  reasoning,  which  it  would  be  a  useless 
consumption  of  time  to  notice  in  detail,  as  we  have  given  to 
them  severally  and  collectively  the  most  mature  consideration. 


44»8         LoTTisyiLLE  ETC.  R  E.  Co.  v.  CoumT  Or.      [Tenn. 

of  ^hioh  we  are  capable,  and  consider  ihem  unoivailing  and  in- 
sufficient  to  resist  this  application. 

Thirdly.  But  it  is  further  insisted  that  if  the  act  of  1852  be 
not  repugnant  to  the  constitationy  and  the  proceedings  under  it 
subject  to  no  fatal  objection,  yet  the  changes  made  by  Uie  amend- 
atory act  of  1853>  under  whidi  this  demand  is  made,  are  such  as 
to  annul  the  subscription  and  render  the  whole  proceeding  Toid« 
Let  us  examine  it.  This  act  refers  to  the  proceedings  under  the 
former  act,  ratifies  and  confirms  them,  declares  the  subscrip- 
tion of  the  stock  Talid  and  binding  upon  the  county,  but  pro- 
vides a  different  mode  of  paying  for  the  stock;  that  is,  by  the 
issuance  of  the  county  bonds,  payable  at  not  less  than  ten  or 
more  than  twenty  years,  at  an  interest  of  six  per  cent,  to  be 
signed  by  the  chairman,  provided  a  majority  of  the  people  vote 
for  the  change,  and  the  board  of  directors  for  the  road  will  agree 
to  it  by  receiving  them  in  payment.  The  question  was  sub- 
mitted to  the  voters  and  carried  in  favor  of  the  bonds,  and  the 
company  agreed  to  receive  them. 

It  is  unnecessary  to  look  to  the  effect  of  an  affirmatory  act 
upon  a  proceeding  or  contract  which  was  void  at  the  time  it  oc- 
curred, as  we  have  already  shown  thiit  this  is  not  such  a  case. 

In  what  light  is  this  transaction  to  be  considered?  Is  it  not 
a  contract?  A  proposition  was  made  by  the  railroad  company 
to  the  people  of  Sumner  county,  through  their  couniy  court  as 
an  instrument,  to  subscribe  for  a  certain  amount  of  stock  to 
build  that  part  of  the  road  which  passed  through  their  borders; 
they  accepted  the  proposition,  and  the  contract  was  dosed  by 
the  subscription.  All  this  was  done,  as  we  have  said,  in  sub- 
stantial conformity  to  the  law,  so  as  to  bind  both  parties.  The 
contract  is  closed.  The  couniy  is  bound  for  the  money,  and 
the  corporation  for  the  stockr  Afterwards,  by  this  act,  the  legis- 
lature, under  whose  authority  the  contract  was  made,  empower 
the  parties  to  change  it,  if  they  choose,  in  relation  to  the  time 
and  mode  of  payment,  and  some  other  particulars.  The  same 
parties  who  made  the  contract,  the  people  on  the  one  side  and 
the  board  of  directors  for  the  road  upon  the  other,  agree  to  it. 
Whose  rights  are  affected ?  What  rule  of  law  forbids  it?  The 
parties  to  any  contract  may  surely  change,  impair,  or  even 
destroy  it  by  mutual  consent.  13ie  legislature  can  not  act 
retrospectively  upon  a  contract  so  as  to  impair  its  obligation 
or  affect  vested  rights;  but  the  parties  to  it  may,  when  no  other 
rights  but  their  own  have  arisen  under  it. 

How  hi  the  power  of  the  legislature  would  extend  to  change 


Dea  1854.]  LoiTisviLLS  xic  &  &  Co.  u  Oouhtt  ur.       440 

and  modify  the  terms  upon  which  the  stock  was  taken,  by  the 
vote  of  the  people,  without  the  consent  of  the  parties,  need  not 
be  investigated,  as  that  is  not  attempted  here.  This  state  of 
the  case  would  produce  the  necessity  of  examining  those  clauses 
of  the  constitution  which  forbid  the  enactment  of  retrospective 
laws  and  preserve  the  obligation  of  contracts  and  the  sanctity 
of  vested  rights.  Upon  the  assumption  of  this  hypothesis, 
many  of  the  objections  taken  are  argued  and  made  to  rest;  and 
to  this  they  are  indebted  for  their  apparent  pertinency  and 
force.  They  are  also  predicated  upon  the  imfounded  assump- 
tion that  the  county  court,  and  not  the  people  of  the  county,  is 
the  contracting  party  on  the  one  side.  And  here  several  points 
in  the  argument  may  be  briefly  noticed,  which  might,  perhaps, 
liave  been  more  appropriately  considered  before. 

1.  Counties  are  not  corporations,  but  civil  and  political 
divisions  of  the  state.  For  some  purposes  ihey  are  merely  civil 
divisions,  but  for  others  they  certainly  are  corporations.  They 
are,  therefore,  sometimes  called  qiLosi  corporations.  They  are 
political,  aggregate  corporations,  capable  of  exerci^sing  such 
powers  as  they  may  be  vested  with  by  legislature:  Angell  & 
Ames  on  Corp.  17,  24;  United  States  Bank  v.  Planters'  Bank,  9 
Wheat.  907;  Bonaparte  v.  Camden  db  Amboy  R.  B.  Go.^  1  Baldw. 
222.  Any  body  of  persons  capable  of  acting  as  one  man,  and 
in  a  single  name  fixed  by  law,  having  succession,  is  in  some 
sense  a  corporation.  Without  going  into  all  the  ramifica- 
tions of  this  subject  to  be  found  in  tiie  books,  it  is  sufficient 
to  say  that  the  counties  in  our  state  are  clothed  with  the 
powers  and  attributes  of  corporations  to  a  sufficient  extent  to 
be  able  to  act  and  contract;  to  become  debtor  and  creditor,  so 
as  to  subject  all  the  persons  and  property  within  their  limits  to 
taxation  in  any  mode  that  may  be  prescribed  by  the  legislature. 
And  whether  this  be  by  the  action  of  the  county  court  or  a 
vote  of  the  people,  or  any  other  agency,  can  make  no  difference. 
The  legislative  power  is  not  restricted  or  confined  in  this  par- 
ticular, except  as  to  purpose,  not  as  to  mode.  The  only 
inquiry  upon  this  point  is.  What  saith  the  law? 

2.  If  the  county  should  take  the  stock  as  a  corporation,  it 
most  own  it  as  such,  and  can  not  distribute  it  among  the  people, 
and  in  the  proportions  they  may  pay  the  tax.  Why  not?  Cer* 
tainly  nothing  could  be  more  just.  It  is  a  debt  against  all,  and 
for  which  all  are  bound  as  an  aggregate  mass;  but  as  the  debt  is 
discharged,  the  thing  for  which  it  was  contracted  is  distributed 
to  each  in  proportion  to  what  he  may  pay.    He  who  pays  nuMil 

Am.  Dxo.  Vox..  LXn— 99 


460          LouisviLLK  ETC.  R  R  Co.  v.  County  Or.       [Tena 

money  is  to  own  most  stock.  No  provision  could  be  more  just 
and  equitable.  It  would  iu  some  respects  operate  unjustly  to 
retain  the  stock  when  paid  for  as  a  county  fund  to  very  many 
who  had  borne  the  burden  of  it.  The  population  of  a  county  is 
constantly  fluctuating.  One  man  who  had  paid  a  part  of  the 
tax  removes,  and  another  who  paid  none  of  it  comes  into  the 
county;  in  which  case  the  one  who  had  contributed  nothing 
would  have  all  the  advantages  of  the  fund,  which  might  relieve 
him  from  county  taxes,  as  well  as  the  road  which  was  built  by 
it;  and  the  other,  who  had  paid  and  toiled  for  the  benefit,  would 
be  entirely  deprived  of  it.  The  distribution  of  the  stock  avoids 
this  injustice,  as  it  becomes  properly  and  goes  with  the  owner. 
If  there  were*  no  other  reason,  this  would  be  sufficient  to  sus- 
tain the  propriety  of  this  provision  of  the  statute.  And  as  to 
the  discretionary  power  of  the  legislature  to  order  it,  the  one 
way  or  the  other,  there  can  be  no  question. 

But  it  is  said  it  can  not  be  a  county  purpose,  as  required  by 
the  constitution,  unless  the  stock  belongs  to  the  county  as  a 
corporation.  It  is  not  the  stock  as  an  investment  to  which  ref- 
erence is  made  in  this  clause,  but  the  road  in  which  the  stock  is 
held.  If  this  were  not  so,  the  people  might  be  taxed  to  raise  a 
fund  to  take  stock  in  a  steamboat  or  factory,  or  California  min- 
ing company,  provided  the  authorities  should  allow  it  to  be 
done.  But  the  constitution  protects  people  from  taxation  for 
speculating  enterprises;  it  can  only  be  done  for  some  local  im- 
provement or  benefit;  the  thing  to  be  done,  with  the  taxes  raised, 
must  in  itself  be  a  "  county  purpose."  The  compensation  to 
the  payer  of  the  taxes  may  be  in  the  local  benefits  alone  to  him 
and  his  neighbors,  or  to  tJiis  may  be  added  stock  in  the  improve- 
ment to  the  extent  of  his  contribution,  as  in  this  case. 

8.  But  it  is  here  objected  that  the  result  of  this  proceeding, 
disguise  it  as  you  may,  is  to  make  a  citizen  take  stock,  whether 
be  will  or  not;  -and  that  is  oppression.  That  is  to  say,  if  we 
understand  the  argument,  that  although  it  might  be  lawful  to 
tax  the  citizen  to  build  a  road,  if  that  is  the  end  of  it,  yet,  if  you 
make  him  the  owner  of  stock  in  it  to  the  extent  of  his  contribu- 
tion in  taxes,  and  return  to  him  any  part  of  the  outlay  in  tolls  or 
profits,  it  becomes  unlawful  and  oppressive.  It  is  very  true  that 
no  man  can  be  forced  to  enter  into  a  contract  for  stock  in  a  road 
or  for  any  other  purpose  without  his  consent;  it  is  of  the  essence  of 
a  binding  contract  that  the  party  freely  assented  to  it.  But  this  is 
not  a  contract  with  the  individual  citizen,  but  with  the  community, 
the  aggr^j^te  corporation  or  body  politic  of  which  he  is  a  mem- 


I 


Dec.  1854.]  Louisville  etc.  R  R  Co.  v.  Couimr  Or.       451 

ber,  and  by  the  legally  expressed  will  and  lawful  engagements 
of  which  he  is  bound.  The  consent  of  such  bodies  is  to  be 
given  in  such  manner  as  may  be  prescribed  by  law.  Here  it 
was  to  be  done  by  the  community  to  be  bound  itself,  and  to  be 
ascertained  by  the  Tote  of  a  majority.  A  majority  gave  this  con- 
sent, and  entered  into  the  engagement.  Shall  not  the  minority 
be  bound  by  it,  and  incur  equal  nasponsibilities,  as  well  as  par- 
ticipate equally  in  any  advantages  that  may  result  ?  Can  the 
minorify  complain  of  oppression  by  the  majority  when  the  lat- 
ter take  the  same  burdens  upon  themselves?  It  is  the  very 
first  principle  of  all  republican  governments  and  every  free 
society  or  organization  of  men  that  majorities  must  rule  and 
control:  Kyd,  422;  Angell  &  Ames  on  Corp.  896,  897;  Case  of 
8L  Mary's  Churchy  7  Serg.  &  B.  617.  This  principle  is  only 
limited  by  positive  reguhitions:  Id.  Has  it  ever  been  thought 
that  any  contract  or  lawful  imposition  of  taxes  or  other  burdens 
could  be  repudiated  by  the  minority  because  it  did  not  meet 
their  approbation  ?  In  every  community  or  society  consisting 
of  many  there  must  be  some  mode  of  concentrating  the  power 
of  action  into  a  single  will  or  purpose.  In  a  despotism  this  is 
in  one  individual;  in  an  aristocracy,  in  a  few;  and  in  a  democ- 
racy, or  republic,  in  all.  But  in  each  and  all  the  result  is  the 
same;  one  purpose  in  action  to  which  all  must  submit,  or  there 
is  an  end  to  all  government  and  order.  Happily,  under  our 
institutions  the  principle  is  held  sacred  that  none  are  bound 
unless  a  majority  agree  to  it,  but  then  all,  every  individual 
equally,  whether  he  approve  of  the  decision  or  not.  'Perhaps 
there  never  was  a  tax  laid  by  the  legislature,  either  state  or 
national,  by  the  county  court,  or  oven  by  the  people,  where  the 
power  to  do  so  is  by  law  vested  in  them,  which  met  the  appro- 
bation of  every  tax-payer.  A  very  honest  di£Eerence  of  opinion 
may  exist  as  to  the  tax,  or  the  object  to  be  accomplished  by  it; 

^^  and  to  produce  action,  some  mode  of  settling  the  question  must 

be  resorted  to.  In  this  case  it  was  made  to  depend  upon  the 
result  of  a  popular  election;  the  voice  of  the  majority  has  been 

l'  heard,  and  must  be  obeyed  by  all.    If  the  decision  be  wrong, 

or  the  burden  great,  it  is  better  to  endure  it  than  to  abandon  a 
sacred  principle  which  underlies  all  our  institutions.  By  an 
abandonment  of  this,  if  it  were  in  our  power  to  do  so,  tho  par- 
tial evils  of  a  temporary  wrong  would  be  but  as  the  weight  of  a 
feather  to  those  which  would  follow.  If  the  first  principles  of 
our  system  are  abandoned,  the  whole  fabric  must  fall  to  the 
ground,  and  great  would  be  that  fall. 


\ 


452  Louisville  etc.  R.  R  Co.  v.  C!ounty  Or.      [Tenn. 

The  DaTidson  coimtj  case  presents  some  different  questions. 
The  act  under  which  it  proceeded  was  different  from  the  other 
in  a  few  particulars.  It  was  passed  at  the  same  session,  act  of 
1852,  c.  191,  sees.  12-20,  and  only  applied  to  a  few  counties, 
including  Davidson.  We  will  only  notice  a  few  of  the  points 
made  in  this  case,  and  none  which  are  the  same  in  both  cases. 

1.  The  other  act  required  a  majority  of  the  "  votes  polled'' 
to  be  for  the  tax,  but  this  is  in  these  words:  "Provided,  that 
neither  of  the  said  county  courts  shall  so  take  stock  until  the 
question  of  the  taking  of  the  same  shall  first  have  been  sub- 
mitted to  the  voters  of  the  county  which  it  is  proposed  shall 
subscribe  stock,  and  a  majority  of  such  voters  shall  have  de- 
cided in  favor  of  taking  ihe  stock  proposed."  Again,  in  seo- 
tion  14:  "  That  whenever  the  majority  of  the  voters  of  either  of 
the  above-named  counties-shaU  decide  in  favor  of  the  proposi- 
tion that  the  county  shall  take  stock  as  proposed,  it  shall  be  the 
duty  of  the  county  court,"  eio.  The  question  made  is,  whether 
the  act  requires  a  majority -of  all  the  legal  voters  residing  in  the 
county  at  the  time  of  the  election,  or  only  a  majority  of  those 
who  may  attend  the  polls  and  actually  vote.  We  are  referred 
to  the  latest  state  and  county  elections  to  show  the  number  of 
voters  in  the  county,  and  then  to  the  vote  on  this  question,  to 
prove  that  the  number  of  affirmative  voters  falls  very  far  short 
of  a  majority  of  the  legal  voters  in  the  county,  though  they  ex- 
ceed by  several  hundred  the  negative  votes.  How  can  we  know 
how  many  legal  voters  there  are  in  a  county  at  any  given  time? 
We  can  not  judicially  know  it.  If  it  were  proved  that  the  vote 
was  much  larger  in  the  last  preceding  political  election,  or  by 
the  last  census,  by  the  official  returns,  or  the  examination  of  the 
witnesses,  it  would  only  be  a  circumstance,  certainly  not  con- 
clusive, that  such  vras  the  case  at  the  time  of  this  election.  But 
we  put  our  decision  of  that  question  upon  a  more  fixed  and 
stable  ground.  When  a  question  or  an  election  is  put  to  the  peo- 
ple and  is  made  to  depend  on  the  vote  of  a  majority,  there  can 
be  no  other  test  of  the  number  entitled  to  vote  but  the  ballot- 
box.  If,  in  fact,  there  be  some  or  many  who  do  not  attend  and 
exercise  the  privilege  of  voting,  it  must  be  presumed  that  they 
concur  with  the  majority  who  do  attend — ^if  indeed  they  can  be 
known  at  all  to  have  an  existence.  Certainly  it  would  be  com- 
petent for  the  legislature  to  prescribe  a  different  rule.  But  when 
they  simply  refer  a  question  to  the  decision  of  a  majority  of  the 
"  voters  of  a  county,"  it  can  not  be  understood  that  they  mean 
anything  more  than  those  who  see  fit  to  exercise  the  piivileite. 


Dec  1854.]  Loukvillb  etc.  R  R  Co.  v,  Countt  Or.       453 

Oroat  inconvenience  wonld  result  from  the  opposite  role.  Sup- 
pose the  Yote  should  be  very  close,  one»  two,  or  a  dozen  major- 
ity, one  way  or  the  other,  how  could  the  fact  be  ascertained  but 
by  the  box  of  the  exact  number  entitled  to  vote  ?  It  can  not  be 
presumed  that  this  or  any  other  question  submitted  to  the  peo- 
ple was  intended  to  be  involved  in  such  embarrassment.  When- 
ever it  is  so  intended  by  the  law,  it  will  be  expressed,  and  some 
convenient  mode  prescribed  to  settle  any  controversy  that  may 
arise;  they  might  say,  to  be  sure,  that  a  number  equal  to  a  ma- 
jority of  those  who  voted  at  the  last  election  for  governor,  or 
for  electors  for  president,  or  prescribe  any  other  arbitrary  test. 
Though  this  might  not  be  the  true  test  of  the  number  then 
in  the  county,  yet  it  would  be  a  sufficient  approximation  to  cer- 
tainty to  answer  the  purpose.  This  or  any  other  prescribed 
test  would  be  binding,  though  arbitrary  and  of  doubtful  expe- 
diency. But  as  none  such  or  any  is  given  by  the  legislature, 
we  tidce  it  for  granted,  and  so  construe  their  language,  that  it 
was  only  intended  to  look  to  the  ballot-box  for  the  "  voters  of 
the  county,"  and  from  that  allow  no  appeal:  Angell  Sc  Ames  on 
Corp.  398,  399. 

2.  The  respondents  say  there  was  at  least  one  civil  district  in 
the  county  in  which  there  was  no  election  held,  and  the  polls  not 
opened.  This,  it  is  contended,  renders  the  election  void,  ac- 
cording to  the  decision  of  this  court  in  Marshall  v.  Kerns,  2 
8 wan,  68.  We  do  not  understand  the  principle  settled  in  that 
case  to  go  so  far.  It  is  an  old,  familiar  rule,  that  cases  are  only 
authority  to  the  extent  of  the  point  in  judgment — the  question 
raised  by  the  &ct8  before  the  court.  The  record  in  that  case 
showed  that  two  men  were  candidates  for  the  office  of  circuit  court 
clerk  of  Campbell;  that  the  majority  was  three  votes  only;  and 
that  at  one  precinct  there  were  at  least  twenty  voters  present  de- 
siring to  vote,  and  the  polls  not  being  open,  they  were  deprived 
of  their  privilege.  Under  that  state  of  facts,  the  election  was 
declared  void,  because  it  was  impossible  to  know  whether  the 
successful  candidate  would  have  been  elected  upon  a  full  ex- 
pression of  choice  by  all  who  desired  and  were  entitled  to  a 
voice  in  the  election.  It  appeared  that  voters  enough  were  de- 
prived of  the  right,  and  that  against  their  will,  to  have  changed 
the  result.  But  suppose  the  majority  had  been  twenty-one,  and 
only  twenfy  attended  the  unopened  ballot-box;  or  that  all  who 
had  attended  there  had,  in  fact,  gone  to  another,  where  they 
did,  or  might  have,  exercised  their  franchise;  or  it  did  not 
appear  that  any  one  attended,  or  if  any,  not  enough  to  have 


454         LouisviLT^  ETC.  R  R  Oa  v.  Countt  Or.      \Tetak 

changed  ihe  result  if  all  had  voted  one  way-— could  it  be  sncoeas- 
fullj  insisted  that  the  principle  of  that  case  authoritatively  ap- 
plied, and  would  annul  such  an  election?  Certainly  not.  Such 
an  effect,  we  think,  could  only  be  produced  by  express  statu- 
iorj  provision.  The  ground  of  that  decision  was,  that  the  facts 
which  appeared  in  the  record  showed  that,  but  for  this  fault  of 
the  sheriff,  the  result  might  have  been  different.  What  would 
be  the  effect  in  a  case  where  a  sufficient  number  attended  to 
change  the  result,  and  might  have  gone  from  that  to  another 
district  in  time  to  vote,  if  they  desired  to  do  so,  but  did  not,  we 
need  not  now  say,  as  the  case  of  Marshall  v.  Kerns,  supra,  does 
not  present  that  state  of  facts,  nor  does  this. 

It  may  not  be  out  of  place  here  to  remark,  as  the  subject 
seems  to  be  so  often  and  by  so  many  misunderstood,  that  the 
generality  of  the  language  used  in  an  opinion  is  always  to  be 
restricted  to  the  case  before  the  court,  and  it  is  only  authority 
to  that  extent.  The  reasoning,  illustrations,  or  references  con- 
tained in  the  opinion  of  a  court  are  not  authority,  not  precedent, 
but  only  the  points  in  judgment  arising  in  the  particular  case 
before  the  court.  The  reason  of  this  is  manifest.  The  members 
of  a  court  may  often  agr^  in  a  decision — the  final  result  in  a  case 
— but  differ  widely  as  to  the  reasons  and  principles  conducting 
their  minds  to  the  same  conclusion.  It  is,  then,  the  conclusion 
only,  and  not  the  process  by  which  it  is  reached,  which  is  the 
opinion  of  the  court  and  authority  in  other  cases.  The  law  is 
thus  far  settled,  but  no  farther.  The  reasoning  adopted,  the 
analogies  and  illustration  presented,  in  real  or  supposed  cases, 
in  an  opinion,  may  be  used  as  argument  in  other  cases,  but  not 
as  authority.  In  these  the  whole  court  may  concur,  or  they 
may  not.  So  of  the  principle  concurred  in  and  laid  down  as 
governing  the  point  in  judgment,  so  far  as  it  goes  or  seems  to 
go  beyond  the  case  under  consideration.  If  this  were  not  so, 
the  writer  of  an  opinion  would  be  under  the  necessify  in  each 
case,  though  his  mind  is  concentrated  upon  the  case  in  hand, 
and  the  principles  announced  directed  to  that,  to  protract  and 
uselessly  incumber  his  opinion  with  all  the  restrictions,  excep- 
tions, limitations,  and  qualifications  which  every  variety  of  facts 
and  change  of  phase  in  cases  might  render  necessary. 

The  case  now  before  us,  to  which  it  is  insisted  we  diouldapplj 
the  principle  of  Marshall  v.  Kerns,  supra,  is  thus  stated  in  the 
answer;  and  it  is  a  rule  of  pleading  that  if  the  facts  as  stated 
by  a  party  can  not  avail  him,  it  is  to  be  presumed  that  none 
sufficient  exist,  and  the  legal  r^ult  must  follow.    "And  in  at 


Dea  1854.]  Loxtisvillb  Era  R  R  Ck>.  v.  CSouimr  Or.      455 

least  one  preoinot  no  election  whatever  was  opened  and  held.'' 
This  is  all  that  is  set  forth;  no  other  fact  is  stated.  If  that  be 
admHted  by  the  demurrer  to  be  trae»  it  can  not  have  the  effect 
claimed,  beoause,  if  there  were  no  other  reason,  it  does  not  fol* 
low  from  that  alone  that  the  general  result  of  the  contest  was 
affected  by  it.  The  burden  of  showing  this  lies  upon  those  who 
contest  the  general  return  of  the  sheriff,  which  must  stand  and  be 
regarded  as  sufficient  eyidenoe  of  the  result  of  the  election  un« 
til  the  contrary  is  clearly  made  out  by  the  contestants.  Then 
there  is  nothing  in  this  objection  fatal  to  the  proceeding. 

It  is  also  urged  that  the  county  court  set  two  other  days  for 
the  election,  previous  to  the  one  on  which  it  was  held,  and  disap- 
pointed the  same  by  countermanding  orders  for  fraudulent  pur- 
poses, and  by  which  the  people  were  confused  and  deceived.  If 
this  was  an  irregularity,  it  was  not  sufficient  to  invalidate  the 
final  election,  which  was  in  fact  the  only  one  actually  held.  It 
is,  however,  difficult  to  perceive  how  this  could  have  had  the 
effect  attributed  to  it.  It  gave  more  time  for  consideration  and 
debate,  and  more  general  notice  to  the  people.  The  agitation 
produced  by  these  failures  and  disappointments,  and  the  increas- 
ing excitement  on  both  sides,  was  surely  calculated  to  elicit  all 
the  arguments  as  well  against  as  for  the  proposition,  and  bring 
out  a  fuller  expression  of  the  popular  voice.  But  if  this  were 
not  so,  yet  it  was  the  action  of  the  contestants,  that  is,  the  county 
court,  in  which  every  justice  of  the  county  might  have  been 
present;  and  they  can  not  be  permitted  to  object  to  their  own 
proceedings,  their  own  wrong,  if  it  were  wrong.  The  election 
was  carried,  it  is  said,  by  illegal  votes.  That  was  a  case  for  con« 
test,  and  can  not  be  taken  advantage  of  in  this  mode. 

There  are  other  grounds  of  defense  suggested  by  the  ingenuity 
of  the  learned  and  able  counsel,  both  in  the  answer  and  briefs, 
which  would  receive  and  are  entitled  to  our  notice  and  observa- 
tion, if  it  were  not  that  this  opinion  has  already  been  so  much, 
and  perhaps  unnecessarily,  protracted.  They  have  all  been  con- 
sidered, and  according  to  the  best  judgment  we  have  been  able 
to  form,  present  no  sufficient  answer  to  the  petition  for  the  writ 
of  mandamus. 

The  judgment  of  his  honor  the  circuit  judge  is  therefore 
affirmed  in  both  cases. 

The  bill  filed  by  Sims  and  others  to  enjoin  the  collection  of 
the  taxes  levied  by  the  county  court  of  White,  under  a  proceed- 
ing in  that  county  by  virtue  of  the  same  act  under  which  the 
county  of  Sumner  acted,  will  be  dismissed,  as  was  decreed  by 
his  honor  the  chancellor. 


456         Louisville  etc.  R  B.  Oo.  u  Oonimr  Or.      [Temi. 

OoiraiTTUTXOVALITT  OF    StATUTXS  AuTOORIZXNO  SlTBSORIFTTOSB  OR  BONA- 

TI0V8  TO  Railroad  Companies:  See  SharpUae  v.  Mayor  of  PhUadelphia,  59 
Am.  Deo.  759,  and  Dote  782  et  seq.  The  principal  case  is  cited  on  this  point 
as  one  of  many  casea  1a  Yarioua  states  which  hold  that  such  laws  are  not  at 
rarianoe  with  the  oonstitittion  of  the  state  wherein  the  question  is  raised,  in 
TakoU  y.  Toumghip  of  Pine  Cfrove,  1  Flipp.  188. 

Railboai>9  ars  Pubuo  PuBPoess:  See  SJkarpleim  ▼.  Mayor  qf  PhSadeJU 
phia,  59  Am.  Dec  759,  and  note  790.  The  principal  case  is  cited  in  Johnton 
▼.  County  qf  Stark,  24  111.  89,  to  the  point  that  the  construction  of  a  railroad 
through  a  county  is  a  county  purpose. 

DlSTINCTIOV  BETWBKN    RlOHT  OF    EmINSNT  DoXAIN  AND  TAXATION:   See 

Sharpleu  v.  Mayor  qf  PkUadelphia,  60  Am.  Dec  759;  People  ▼.  Mayor  qf 
Brooklyn,  55  Id.  266»  and  note  285. 

AS.SBS8USNT  TOR    PUBUO    ImPROYBMXNTS    KAY  BB   MaDB    AcOOBDINO   TO 

Benefits  Conferred:  See  Nichols  v.  City  of  Bridgeport,  60  Am.  Dec  836; 
People  V.  Mayor  of  Brooklyn,  55  Id.  266,  and  note  285  et  seq. 

Act  Directing  IssuANtns  of  Stock  to  Thosb  Who  Pat  Tax,  in  the 
proportions  in  which  they  contribute  the  money  with  which  it  is  purchased, 
is  valid,  and  not  liable  to  constitutional  objection.  The  principal  case  is  cited 
to  this  effect  in  Luetu  v.  Board  qf  CommisiUmere,  44  Ind.  543. 

JUDIOIART  MAT    DECLARE  STATUTES  UNCONSTITUTIONAL:  Boeton  Y.   Oum* 

tnins,  60  Am.  Dec  717;  Sharpleu  v.  Mayor  qf  PhUadelpMa,  59  Id.  759,  and 
cases  cited  in  the  note  788;  Baugher  v.  Nelson,  52  Id.  694. 

Leoislatiys  Act  Presumed  to  be  Constitutional:  See  Boston  ▼.  0^- 
mms,  60  Am.  Dec.  717;  Wright  ▼.  Wright's  Lessee,  56  Id.  723;  WhUer  ▼. 
Jones,  54  Id.  379,  and  note;  see  also  Sharpless  v.  Mayor  of  Philadelphia,  59 
Id.  759. 

Legislature,  Judiciary,  and  Exxcutivb  can  not  Exercise  Powers 
Belonoiko  to  One  Another:  See  Sharpless  v.  Mayor  qf  Philadelphia,  59 
Am.  Dec.  759,  and  cases  cited  in  the  note  789;  Wright  v.  Wright*s  Lessee,  50 
Id.  723;  see  also  Moor  v.  Veaane,  52  Id.  655. 

Party  not  to  be  Hbard  against  Terms  of  Contract  which  he  has  pro* 
posed:  See  Fcamoe  ▼.  Burke,  55  Am.  Dec.  519,  and  note  527. 

Opinions  as  Authority:  See  James  v.  Patten,  55  Am.  Dec  376,  and  note 
884.  In  Lucas  v.  Board  qf  Corkmissumers,  44  Ind.  541,  the  principal  case  is 
cited  to  the  point  that  the  language  of  an  opinion  is  to  be  restricted  to  the 
case  before  the  court. 

CONSTITUnONALITT  OF  SUBMITTING  LaW  TO  AOOBFTANGB  OF  InHABITANTB 

of  district  to  be  affected  thereby;  as  in  the  case  of  amendments  to  muuicipal 
charters:  See  note  to  CommonweaUh  v.  CuUen,  53  Am.  Dec  472;  Bario  y. 
Ilimrod,  59  Id.  506.    See  also  Santo  v.  Stajte,  63  Id.,  and  note 

Law  Submitted  to  Majority  of  Legal  Voters  of  Municipal  Corpora- 
tion will  be  accepted  or  rejected  by  the  majority  of  those  voting  at  the  elec- 
tion: See  note  to  CommonweaUh  v.  CuUen,  53  Am.  Dec  472.,  The  principal 
ease  is  cited  to  this  point  in  St.  Joseph  TownsMp  ▼.  Rogers,  16  WalL  664. 
All  Toters  absenting  themselves  from  the  election  are  presumed  to  assent  to 
the  expressed  will  of  the  majority  of  those  voting  unless  the  law  providing 
for  the  election  otherwise  declares.  To  this  point  the  principal  case  is  dted 
bi  State  V.  Swift,  69  Ind.  531,  542. 

Certifioatb  of  Election  is  Only  Prima  Facie  Evidence  of  matters  con* 
tained  therein:  See  People  v.  Van  Cleve,  53  Am.  Dec.  69,  and  note;  Bust  ▼. 
Oott,  18  Id.  497. 


Dec  1854.]     Cobb,  Welsh  fc  Oo.  v.  Johnbok.  457 

EuBonoH  ON  DmsBSirT  Dat  tbom  That  SracntiED;  See  Bremer  ▼.  Davie, 
49  Am.  Deo.  708. 

MXBX  IbBBOULABITZIS  IK  EUBOnON   HOT  AFnOTmO    UlffllfATB   RnuLY 

do  not  invalidate  election;  See  People  ▼.  Cook,  59  Am.  Dea  451,  and  note 
472;  innegalarities  at  to  notioe  of  election:  See  note  to  People  y.  Peek,  27  Id. 
HO.  A  faOure  by  sheriflF  to  have  polls  opened  at  one  preoinot  does  not  in- 
Talidate.  To  have  that  effect,  it  most  appear  aleo  by  the  facte  that  each  fail- 
ure did  or  might  have  affected  the  geneial  reralt  of  the  contest.  The  prin- 
dpal  caM  is  cited  on  this  point*  in  Lc^foffeUe  etc  R,  B,  Co,  ▼.  Oeiger,  34  Ind. 
832. 

Facts  must  bb  Plbadkd  to  me  Avahablb:  See  Fidd  ▼.  Ma/yor  qf  AVw 
Toeii,  57  Am.  Dec.  435,  and  note  442. 

PuBUO  Oo&POKATiONS,  What  ARE:  See  TarmotUh  ▼.  North  TarmouJtht  50 
Am.  Deo.  060,  and  caeee  cited  in  the  note  071;  JUoyrf  ▼.  Mayor,  56  Id.  347. 


Cobb,  Welsh  &  Go.  v.  Johnson. 

[3  BXBD.  7S.] 
0BOLABATIOHS    OF  AOKKT   ARK    NOT    EyiDBNOS    AOAmST    PRIKOIPAL    Ooless 

they  are  directly  connected  with  and  made  a  part  of  the  transactions  of 
the  agency;  and  if  made  at  a  time  snheeqnent  to  the  act,  they  are  inad- 
missible. 

Tbovxb  for  the  conversion  and  loss  of  a  slave.  There  was  also 
a  count  in  case.    The  opinion  states  the  case. 

Henry  and  Shackleford,  for  the  plaintiffs  in  error. 

Bobby  for  the  defendant  in  error. 

Bj  Court,  Cabuthsbs,  J.  This  action  is  brought  to  recover 
the  value  of  a  slave  hired  to  the  defendants  bj  the  plaintifT, 
on  the  ground  of  conversion.  It  is  specified  in  the  bond  for 
the  hire  that  the  boy  is  to  be  "  kept  out  of  all  dangerous  places 
whereby  life  or  limb  may  be  endangered."  He  was  put  to  work 
at  an  ore-bank,  and  while  digging  ore  was  killed  by  the  falling  in 
of  the  bank  above  him.  Whether  it  was  a  violation  of  the  cov* 
enant  to  put  him  at  that  place  would  depend  upon  the  proof 
as  to  the  nature  and  character  of  the  employment,  and  whether 
it  should  be  regarded  as  a  "dangerous  place."  The  fact,  of 
itself,  that  the  negro  lost  his  life  there  would  not  be  sufficient, 
perhaps,  to  make  out  the  breach.  This  would  depend  upon 
the  proof  of  those  acquainted  with  such  places  and  the  nature 
of  the  employment.  But  we  give  no  opinion  now  upon  this 
point:  it  would  be  a  question  for  the  juiy. 

But  a  question  of  evidence  is  raised  upon  which  the  case 
muBt  turn  at  present.    Perkins  was  th^  manager  and  agent  of 


458  SoOTT  u  Hix.  [Tena 

defendants  at  the  iron-works  where  the  boy  was  placed.  He 
made  certain  statements  and  declarations,  as  to  the  facts  and 
circumstances  of  the  death,  on  the  day  after  it  occurred,  which 
were  allowed  to  be  proved  on  the  trial  against  the  defendants. 
The  objection  to  this  eyidence  was  ovemiled  by  the  court,  and 
-exceptions  taken.  In  this  we  think  there  is  manifest  error. 
Perkins  was  a  competent  witness  for  either  party,  and  could 
have  been  introduced  if  his  eyidence  was  desired. 

The  declaration  of  an  agent  is  not  evidence  against  his  prin- 
cipal, unless  they  are  directly  connected  with  and  made  a  part 
of  the  transactions  of  the  agency.  If  they  be  at  a  time  subse- 
quent to  the  act,  or  unconnected  with  it,  they  are  hearsay,  and 
therefore  inadmissible.  To  make  the  statements  of  Perkins 
competent,  they  must  have  been  made  at  the  time  the  thing 
under  investigation  occurred,  so  as  to  constitute  a  part  of  it. 
This  is  what  is  meant  by  the  res  gefdcB:  1  Qreenl.  Ev.  113, 114; 
Nelson  v.  State,  2  Swan,  260;  I^rou8dale,  Gov.  etc.,  v.  Phillips,  Id. 
884. 

In  the  case  under  consideration,  the  thing  to  be  ascertained 
was  the  manner  in  which,  and  the  character  of  the  place  at 
which,  the  slave  Westley  was  killed.  To  show  this,  the  agent 
Perkins  made  statements  on  the  next  day  after  the  event.  It  is 
evident  from  the  bare  statement  of  the  facts  that  the  rule  above 
laid  down  must  exclude  these  declarations.  They  can  not  in 
any  sense  be  incorporated  into  and  constitute  a  part  of  the  event 
which  transpired  the  day  before.  They  are  not,  then,  a  part  of 
the  res  gesUe,  and  should  have  been  excluded. 

For  Uiis  error  the  judgment  will  be  reversed  and  a  new  trial 
granted. 

Declabations  or  Aoxnt  ari  not  Adhthbtbls  imleM  thej  fonn  a  pui 
of  the  re»  gesUs:  See  InnU  ▼.  Steamer  SetuUor,  64  Am.  Dea  305,  and 
oases  cited  in  the  note  908;  Moore  v.  BeUie,  53  Id.  77 1»  and  note  diacaieiDg 
the  Bubjeot  773-778;  Cunmngham  ▼.  Cochran,  52  Id.  230,  and  note  232. 
They  are  not  admiasible  as  part  of  the  res  geeim  when  not  made  by  the  agent 
in  the  discharge  of  his  duties  as  such:  Maieer  ▼.  Brawn,  Id.  308;  and  they 
will  not  bind  the  principal  under  any  oironmstanoes  until  the  agency  is  fiisl 
dearly  established:  ManhaU  v.  Honey,  59  Id.  02. 


SoOTT  V.  HtX, 

[aSXBBD,  192.] 

'Win's  Intibbst  vx  Pkbsonal  Pbopebtt  kevb&  Biduoed  to  P4 

by  husband  can  not  be  sold  by  him  so  as  to  bind  her»  even  though  sba 


Dee.  1854.]  Scott  v.  Htx.  469 

dgn  ftod  acknowledge  the  iaetnimMit  piirporUng  to  oonrey  tbat  intereei 
with  all  the  solenmitiM  required  by  law  for  the  conTeyanoe  of  her  rea) 
eatate. 
tJLW  D0I8  FOT  Imply  Wabsabtt  of  Txtlb  to  Pbbsoh^l  Propkbtt  not  ia 
▼endor's  poeeeision  at  the  time  of  aale^  and  claimed  by  another. 

Bill  filed  by  oomplainant  agamat  the  defendant  D.  D.  Hiz» 
as  ezecntor  of  William  Hix,  deceased,  and  against  John  G.» 
Charles  T.,  and  Maiy  Philpot,  legatees  under  the  will.  Thi 
opinion  states  the  case. 

Whitesidea  and  Davidson,  for  the  complainant. 

Cooper,  Waener,  and  T.  H.  Coldwdl,  for  the  respondent. 

By  Court,  Oabuthebs,  J.  William  Hix,  by  his  will  of  1888| 
bequeathed  to  his  wife  certain  slayes  and  other  property  foi 
life,  and  at  her  death  remainder  to  be  divided  among  his  chil- 
dren, so  as  to  make  all  equal. 

His  daughter  Mary  mairied  John  T.  Philpot,  and  Bebecca, 
Charles  Philpot.  In  the  year  1840  Charles  bought  of  John  T. 
the  remainder  interest  of  his  wife,  Maiy,  in  the  said  property, 
and  took  their  joint  deed  for  the  same,  which  was,  upon  ac- 
knowledgment and  privy  examination,  registered.  On  the  third 
day  of  August,  1842,  the  said  Charles  sold  the  same  interest  to 
eomplainant,  who,  after  the  death  of  Mrs.  Hix,  filed  this  biU 
against  the  executors,  his  vendor,  the  said  John  T.,  and  hia 
wife,  Maiy,  and  the  other  legatees,  setting  up  his  rights  as  pur> 
chaser  of  the  interest  of  John  T.  and  Maiy,  his  wife,  and  ask- 
ing for  an  account. 

Whereupon  the  said  Maiy  filed  her  cross-bill,  demanding  that 
her  rights  be  protected  in  said  property,  and  that  the  same  be 
settled  upon  her  for  her  own  separate  use. 

Her  rights  are  clear,  as  this  is  property  never  reduced  to  pos- 
session by  her  husband;  and  no  sale  by  him  could  afiSdct  her 
title,  even  if  she  signed  and  acknowledged  the  deed  according 
to  all  the  solemnities  required  by  law  for  the  conveyance  of  her 
real  estate,  as  she  did  in  this  case;  yet,  being  under  coverture, 
it  is  not  binding  upon  her  in  a  case  like  this.  This  is  not  seri- 
ously contended  for  in  the  argument. 

But  secondly,  it  is  insisted  that  the  complainant  is  entitled 
to  a  decree  over  against  his  vendor,  Charles  f  hilpot,  upon  the 
ground  that  the  law  implies  a  warranty  of  title  in  personalty, 
although  the  deed  does  not  contain  it.  And  as  all  the  parties 
are  before  the  court,  complete  justice  should  be  done. 

This  proposition  can  not  be  sustained  for  several  reasons:  1. 
The  law  does  not  imply  a  warranty  of  title  to  personal  property 


400  SooTT  V.  Hdl  [Tena 

not  in  poflsession  of  fhe  vendor  at  the  time  of  the  sale,  bnt^hich 
is  out  of  his  possession,  and  claimed  by  another;  as  in  the  case 
before  us.  In  such  cases  the  warraniy  must  be  express:  it  can 
not  be  implied.  The  vendor  may,  in  a  proper  case,  be  made 
liable  for  fraud,  but  the  action  must  be  upon  that  ground,  not 
upon  a  contract  of  warranty  implied.  2.  The  facts  in  this  case 
show  that  there  was  no  intention  to  warrant  by  Philpot,  nor 
any  such  understanding  on  the  part  of  Scott:  it  was  an  adven- 
ture for  speculation,  with  a  risk  of  title  and  all  other  conse- 
quences; th&t  it  has  turned  out  unfortunately  can  not  change 
the  law.  3.  There  are  no  charges  in  the  bill  to  authorize  any 
relief  against  Charles  Philpot,  even  if  the  facts  would  justify  it, 
which,  as  we  have  seea,  they  do  not. 

We  can  not  act  upon  the  question  of  morals  and  good  faith 
on  which  counsel  have  commented,  but  are  confined  to  the  rules 
of  law,  which  may  not  be  so  refined  in  eveiy  case. 

The  decree  of  the  chancellor  will  be  affirmed. 


Husband's  Right  oveb  Wite*s  Psbsonalty. — Wife's  ohoaes  in  action  do 
not  become  the  husband'B  property,  at  common  law,  nntil  they  are  redaced  to 
poeseasion,  but  over  her  personalty  in  general  he  has  absolute  control:  See 
Burleigh  v.  Coffin,  53  Am.  Dec.  236,  and  oases  cited  in  the  note  241.  A 
wife's  reversionary  interest  in  personalty  is  not  subject  to  execution  for  the 
husband's  debts:  Sale  y.  Saunders^  57  Id.  157. 

Impued  Warrantt  07  TiTLB  ON  Sale  07  Chattsl. — ^The  civil  law  an- 
nexed to  every  sale  of  a  chattel  an  implied  warranty  of  the  vendor's  title: 
Dig.  21,  2, 1;  2  Bla.  Ck)m.  451;  2  Kent's  Com.  478;  Story  on  Sales,  sec.  367,  o. 
A  distinction  seems  to  have  been  taken,  however,  between  executory  con- 
tracts of  sale  and  contracts  of  exchange  on  the  one  hand,  and  present  exe- 
cuted contracts  of  sale  on  the  other,  as  to  the  extent  of  this  warranty.  In 
oases  of  the  former  class,  it  was  an  absolute  warranty  of  ownership,  which 
was  broken  immediately  if  the  vendor  had  not  the  title,  and  the  vendee 
oould  recover  back  the  purchase  money  without  eTiction  or  disturbance  of 
possession;  but  in  cases  of  the  latter  class,  the  warranty  seems  to  have  been 
merely  a  warranty  of  the  vendee's  possession  and  enjoyment,  requiring  dis 
tnrbance  of  such  possession  or  enjoyment  to  constitute  a  breach:  Story  on 
Sales,  sec.  367,  c 

English  Dootrikb. — ^The  doctrine  of  the  common  law  upon  this  subject 
has  been  a  subject  of  much  controversy.  According  to  the  earlier  authorities, 
it  seems  to  have  been  considered  that  in  the  abeonce  of  declarations  or  con- 
duct amounting  to  an  express  warranty,  the  prevailing  rule  of  the  law  of  sale, 
both  as  to  the  title  and  as  to  quality,  was  eaveai  emptor.  Thus  it  is  laid  down 
in  Noy's  Maxims,  c.  42,  that  if  one  sells  another  man's  chattel,  and  the 
true  owner  takes  it  from  the  purchaser,  the  vendor  may  nevertheless  recover 
the  price,  and  that  the  buyer  is  understood  to  assume  the  risk  of  the  title:  2 
Benjamin  on  Sales,  sec.  949.  So  it  was  said  in  Go.  lit.  102,  a:  **  By  the  civil 
law  every  man  is  bound  to  warrant  the  thing  that  he  selleth  or  conveyeth,  albeit 
there  be  no  express  warranty;  but  the  common  law  bindeth  him  not,  unless 
there  be  a  warranty  either  in  deed  or  in  law;  for  eaoeed  emptor,"  This  favor- 


Dec.  1854.]  Scon  v.  Hul  461 

Ite  xnftzim  of  the  oommon  law  indicates  that  our  rode  hat  ahrewd  anoeston 
regarded  a  haigain  as  a  sort  of  a  hattle  of  wits,  in  which  each  of  the  parties 
was  allowed  to  get  the  better  of  the  other  if  he  could  without  actual  fraud, 
tLe  law  being  on  the  side  of  the  sharper  trader:  the  loser  was  always  in  the 
wrong.  The  purchaser  who  bought  without  investigating  bis  vendor's  title, 
or  requiring  an  express  warranty,  was  regarded  as  rightly  punished  for  bis 
improvidence  by  the  loss  of  his  purchase,  if  there  was  no  fraud.  This  rule 
was  less  severe  and  unjust  than  it  might  seem  at  first  view,  when  it  is  remem- 
bered that  the  commonest  prudence  was  sufficient  to  protect  the  purchaser, 
since  by  purchasing  in  market  overt  ho  might  obtain  a  good  title  against  all 
the  world.  A  warranty  of  title  was  uunecessury  where  tlie  sale  gave  an  abso- 
lute title,  though  tho  vendor  had  none. 

lAter  English  authorities  adopted  substantially  the  rule  of  the  civil  law, 
and  a  warranty  of  title  was  held  to  be  implied  in  every  sale  of  a  chattel  which 
the  vendor  sold  as  his  own:  2  Bla.  Com.  451.  Still  more  recently  tho  whole 
doctrine  has  undergone  elaborate  discussion  in  the  English  courts,  and 
although  in  some  well-considered  cases  there  has  been  an  avowed  rejection  of 
the  implied  warranty  of  titlo  in  sales  of  personalty,  it  has  been  attended  with 
so  many  reservations  and  exceptions  as  to  amount  to  a  practical  adoption  of 
the  civil-law  rule.  Of  these  later  cases  the  most  prominent  is  Morley  v. 
AtUnboroughy  3  Exch.  500;  S.  C.»  13  Jur.  282;  18  L.  J.,  Exch.,  148,. in  which 
the  learned  Baron  Parke  carefully  reWews  the  authorities,  and  announces 
their  result  to  bo  1*  that  there  is,  by  the  law  of  England,  no  warranty  of  title 
in  tho  actual  contract  of  sale,  any  more  than  there  is  of  quality.  The  rule  of 
caveat  emptor  applies  to  both;  but  if  the  vendor  knew  that  ho  had  no  title, 
and  couoealed  that  fact,  he  was  always  held  responsible  to  the  purchaser  as 
for  a  fraud,  in  the  same  way  ihat  he  is  if  he  knew  of  the  defective  quality. " 
Or,  as  stated  elsewhere  in  the  same  opinion:  '*  It  would  seem  that  there  is  no 
implied  warranty  of  title  on  the  sale  of  goods,  and  that  if  there  Im  no  fraud,  a 
vendor  is  not  liable  for  a  bad  title,  unless  there  is  an  express  warranty,  or  an 
equivalent  to  it  by  declarations  or  conduct;  and  tho  question  in  each  case, 
where  there  is  no  warranty  in  express  terms,  will  be  whether  there  are  such 
circumstances  as  will  bo  equivalent  to  such  a  warranty."  But  an  examina* 
tion  of  the  opinion  as  a  whole  shows  that  while  it  tiius  professedly  rejects 
tiie  doctrine  of  implied  warranty,  the  learned  judge  who  delivered  it  concedes 
that  the  doctrine  does  obtain  in  executory  contracts  of  sale  and  purchase  of 
unascertained  chattels,  so  as  to  bind  the  vendor  to  transfer  a  good  title.  He 
concedes  also  that,  as  laid  down  in  Medina  v.  SUAtglitoUy  1  Salk.  210;  S.  C, 
1  Ld.  Kaym.  593,  where  a  vendor  in  possession  sells  a  chattel,  affirming  it  to 
bo  his  own,  he  impliedly  warrants  the  titlo,  and  that  such  affirmance  of  own- 
ership may  be  presumed  from  his  conduct.  He  seems  to  follow  Mr.  Justice 
Bullcr  in  Pasley  v.  Freeman^  3  T.  K.  57,  in  holding,  further,  that  the  same 
rule  applies  where  the  vendor  is  out  of  possession  at  the  time  of  tho  sale.  In 
accordance  with  the  principle  that  a  warranty  of  title  may  be  inferred  from 
the  declarations  and  conduct  of  the  vendor  at  the  time  of  the  sale.  Baron 
I*arko  declares  that  such  a  warranty  will  be  inferred  where  the  sale  is  made 
in  a  shop  professedly  devoted  to  such  traffic*  because  tho  vendor  in  such  a 
case  is  presumed  to  sell  the  goods  *'  as  his  own.** 

Baron  Parke*s  opinion  in  this  case  of  Morley  y»Attenboraugh,  3  Exch.  500,  is 
not  authoritative  on  this  question,  nearly  all  that  is  stated  therein  respecting 
implied  warranties  of  title  being  mere  obiter  dicta.  That  was  a  case  of  a  sals 
of  an  unredeemed  pledge  by  a  pawnbroker,  and  it  is  conceded  on  all  hands 
that  the  doctrine  of  implied  warranty  of  title  does  not  apply  to  soch  • 


462  Scott  v.  Hul  [Tena 

■ale,  beoaDse  It  li  dearly  a  sale  of  the  pawnee^  intereit  only,  aad  the  char- 
acter of  the  sale  notifies  the  purchaser  that  he  most  take  the  risk  of  the 
goodness  of  the  pledgor's  title.  Bat  admitting  all  that  is  said  in  the  opinion 
to  be  directly  and  positiyely  adjudicated,  it  does  not  militate  very  strongly 
against  the  doctrine  of  implied  warranty  of  title.  The  rule  of  catfeat  empUn'f 
with  the  exceptions  stated  by  the  lesjned  baron,  is  shorn  of  most  of  Its 
wamlDg  and  menace  to  purchasers  with  respect  to  defects  in  title.  If  a  war- 
ranty of  title  may  1)e  inferred,  witiiout  express  words  of  warranty,  from  the 
vendor's  conduct  at  the  time  of  sale,  tantamount  to  an  affirmation  of  title,  there 
is  no  reason  why  it  may  not  be  inftsrred  from  the  mere  fact  of  sale,  especially 
where  the  vendor  U  in  possession,  unless  the  sale  is  made  under  such  circum- 
stances as  to  negative  the  idea  of  a  warranty.  A  sale  without  such  nega- 
tiving circumstances  is  a  most  emphatic  assertion  of  title.  The  right  of 
alienation  is  the  most  exalted  prerogative  of  ownership.  One  may  enjoy 
property  without  owning  it  or  having  any  control  of  the  title;  but  he  can 
not  sell  it  unless  he  owns  it  or  represents  the  owner.  If  there  is  nothing  to 
show  the  contrary,  the  mere  offer  to  sell  an  article  is,  as  stated  in  the  ancient 
ease  of  VApoitrt  v.  L'Plau&iert  referred  to  by  Lee,  C.  J.,  in  Ifytdl  v.  RowUt^ 
1  Ves.  sen,  351,  '*  sufficient  evidence  of  offering  to  sell  as  owner;'*  and  this,  as  is 
conceded  in  Moriey  v.  AUenborcugh^  3  Exch.  600,  ia  enough  to  raise  a  presump- 
tion of  warranty  of  title.  The  doctrine  laid  down  by  Baron  Parke,  it  seems 
to  ua,  when  carried  to  its  legitimate  conclusion,  and  interpreted  in  the  light 
of  the  earlier  decisions,  is  simply  this:  that  while  a  warranty  of  title  is  not 
to  be  annexed,  as  an  inevitable  implication  of  law,  to  the  mere  act  of  selling 
a  chattel,  yet  such  a  sale  is  evidence  from  which  a  warranty  may  be  inferred, 
in  the  absence  of  circumstances  slowing  the  contrary.  In  other  words,  the 
warranty  may  be  implied  from  the  sale  as  matter  of  evidence,  but  not  as  mat- 
ter of  law. 

The  doctrine  baldly  stated  in  Moriey  t,  AUenbaraught  tupra,  that  *' there  is 
no  implied  warranty  of  title  on  the  sale  of  goods,*'  has  not  been  accepted  in 
England  as  settling  the  law  against  such  warranty.  In  Shna  v.  ManyaUf  1 7  Q. 
B.  291;  S.  C,  20  L.  J.,  Q.  B.,  454,  Lord  Chief  Justice  Campbell  says  that 
the  exceptions  stated  by  Baron  Parke  are  so  numerous  as  **to  wellnigh  eat 
up  the  rule;  '*  and  clearly  intimates  his  opinion  to  be,  that  unless  there  is 
something  to  indicate  the  contrary,  a  warranty  of  title  ought  to  be  implied 
from  the  sale  of  a  chattel.  It  was  not  necessary  to  go  so  far  in  that  case, 
however,  as  there  were  other  circumstances  from  which  an  express  warranty 
could  be  inferred,  bringing  the  case  within  one  of  the  many  exceptions  stated 
by  Baron  Parke.  In  the  subsequent  case  of  Eichholz  v.  Banister,  17  C.  B., 
N.  S.,  708;  S.  C,  34  L.  J.,  C.  P.,  105,  the  subject  was  elaborately  discussed 
in  the  court  of  common  pleas,  and  it  was  held,  in  accordance  with  another  of 
the  exceptions  stated  by  Baron  Parke,  that  on  a  sale  of  specific  merchandise 
in  a  jobbing  warehouse  a  warranty  of  title  was  implied,  and  that  the  pur- 
chaser, having  been  compelled  to  surrender  the  goods  to  one  from  whom  they 
had  been  stolen,  could  recover  back  the  price.  Erie,  C.  J.,  who  delivered  the 
principal  opinion,  said:  "I  decide  in  accordance  with  the  current  of  authori- 
ties, ^at  if  the  vendor  of  a  chattel,  at  the  time  of  the  sale,  either  by  words 
affirm  that  he  is  the  owner,  or  by  his  conduct  gives  the  purchaser  to  under- 
stand that  he  is  such  owner,  then  it  forms  part  of  the  contract^  and  if  it  turns 
out  in  fact  that  he  is  not  the  owner,  the  consideration  fails,  and  the  consid- 
eration so  paid  can  be  recovered  back.'*  And  farther  on  he  says:  "In  all 
ordinary  sales  the  party  who  undertakes  to  sell  exerdses  thereby  the  strongest 
act  of  dominion  over  the  chattel  which  he  proposea  to  sell,  and  would,  there- 


Dec  1864]  Soott  v.  Hix  46^ 

fore,  M  I  think,  commonly  lead  the  porchMer  to  belieye  that  he  wm  the 
owner  of  the  ohatteL  In  almoet  all  ordinary  tranuctions  in  modem  timc» 
the  vendor,  in  consideration  of  the  purchaser  paying  the  price,  is  understood 
to  affirm  that  he  is  the  owner  of  the  article  sold.'* 

Mr.  Benjamin,  after  reviewing  the  cases,  says:  "  On  the  whole,  it  is  8ul>- 
mitted  that,  since  the  decision  in  EkhkoU  ▼.  Bamater,  the  rule  is  substan- 
tially altered.  The  exceptions  have  become  the  rule,  and  the  old  rule  has 
dwindled  into  the  exception,  by  reason,  as  Lord  Campbell  said,  '  of  having 
been  wellnigh  eaten  away.'  The  rule  at  present  would  seem  to  be  stated 
more  in  accord  with  the  recent  decisions,  if  put  in  terms  like  the  following: 
A  sale  of  personal  chattels  implies  an  affirmation  by  the  vendor  that  the 
diattel  in  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 
■old:"  2  Benjamin  on  Sales,  sec.  961. 

In  Canaba,  also,  this  question  of  implied  warranty  of  title  in  sales  of 
chattels  is  in  an  unsettled  condition.  In  Semen  v.  (yDmiohue^  9  U.  0.  G.  P. 
208,  Draper,  G.  J.,  expressed  a  decided  opinion  in  favor  of  the  implication 
of  a  warranty  in  such  sales,  though  the  point  was  not  necessarily  involved  in 
the  case,  and  therefore  was  not  directly  adjudicated.  The  learned  cliief 
Justice  says:  *'  Notwithstanding  the  case  of  Moriey  v.  Aitenbcrough,  and  par- 
ticularly after  the  case  of  8%m»  v.  MarryaU,  I  should  have  great  hesitation  in 
holding  that  where  a  man  having  a  chattel  in  his  possession  sells  and  delivers 
it  to  another  for  value,  there  is  not^  from  the  very  nature  of  the  transaction, 
an  implied  undertaking  that  he  has  a  right  to  selL  Possession  is  a  clear 
kidicmm  of  property,  and  a  purchaser  ought,  in  the  absence  of  any  circum- 
stance to  create  doubt,  to  be  able  to  rely  upon  it  without  further  inquiry,  for 
it  is  within  the  vendor's  knowledge  when  and  bow  he  came  by  the  possession^ 
and  in  acquiring  it  he  may  fairly  be  assumed  to  have  relied  on  the  responsi- 
bility of  his  immediate  vendor.  *  *  *  The  strong  inclination  of  my  own 
opinion  is  to  hold  that  where  a  man  sells  a  chattel  as  his  own,  which  is  at  the 
time  of  sale  in  his  actual  possession,  and  delivers  it  to  the  purchaser  from 
whom  it  is  taken  by  the  right  owned,  the  vendor  is  to  be  treated  as  impliedly 
warranting  that  he  has  a  right  to  seU,  and  is  therefore  bound  to  compen 
sate  his  vendee  for  the  loss.'* 

In  a  later  case  in  the  same  court  Mr.  Chief  Justice  Hagarty  seems,  on  the 
other  hand,  to  accept  without  question  the  doctrine,  or  rather  the  dicta,  of 
Mwley  V.  AUenboraugh:  JohntUm  v.  Barker,  20  U.  C.  C.  P.  231.  But  in  a 
still  later  case  in  the  court  of  queen's  bench,  Broumy.  Coekbum,  37  U.  C.  Q.  B. 
592,  the  court  manifested  a  strong  inclination  in  favor  of  the  implication  of 
a  warranty  of  title  in  all  sales  of  chattels  where  the  facts  do  not  show  a  mere 
intent  to  pass  the  vendor's  interest.  The  case  was  put,  however,  upon  the 
ground  that  it  was  within  one  of  the  exceptions  in  MorUy  v.  AUenborough, 
admitting  the  rule  there  laid  down  to  be  sound. 

AMBRTflATf  BooTBiNE. — ^In  America  the  authorities  are  uniform  to  the  point 
that  on  a  sale  of  chattels  in  the  vendor's  possession,  at  a  fair  price,  there  is 
always  an  implied  warranty  of  title,  unless  the  circumstances  are  such  as  to 
show  that  the  vendor  was  not  selling  as  owner,  or  that  he  intended  only  to 
transfer  his  own  interest,  or  that  the  purchaser  was  to  take  the  risk  of  the 
title:  2  Benjamin  on  Sales,  sec.  948,  note;  Story  on  Sales,  sec.  367;  1  Parsons 
on  Cont  673;  2  Kent's  Com.  478;  Biddle  on  Warranties,  sec.  239;  Difreeu  v. 
Tnmper,  3  Am.  Dec.  329;  S.  C,  1  Johns.  274;  OhUm  v.  Woods,  3  Am.  Deo. 
740;  a  a.  Hard.  631:  Dorsey  v.  Jacknum^  7  Am.  Dec  611;  S.  C,  1  Serg.  4 


M4  SOOTT  V.  Hre.  [Tena 

R.  42;  JZWfwn  ▼•  5 ri|0iAiMi»  6  Am.  Dec  109|  S.  GL,  10  MiM.  208;  Perby  r. 
^afe/i,34Aiii.  I>eo.66;aO.,23Piok.280;  C%aiiefaorT.  fPivV^Mt  80  Am.  Deo. 
490;  S.  0.,  4  B.  Mon.  201;  8Ue  ▼.  Hopkma,  51  Am.  Deo.  116;  S.  C,  12  Smed. 
k  M.  209;  ^orftm  v.  Fdherty,  54  Am.  Deo.  603;  8. 0.,  8  G.  Gfeene,  827;  Aidb 
V.  DiUahuniy,  8  Port.  184;  VFiSiamMm  ▼.  SamrnoM,  34  Ala.  601;  Ift&r  ▼. 
Van  Tassel,  24  Oal.  458;  Orosg  t.  JTtcrtfii,  41  Id.  Ill;  Lmea  ▼.  iSmt^A,  4  FU. 
47;  /btfwett  ▼.  OAom,  82  DL  411;  JTorrif  ▼.  Thompmm,  85  Id.  16;  ManhaU 
▼.  Z>uJbe^  51  Ind.  62;  Hale  y.  Bmith,  6  GreenL  416;  Butler  y.  TVcJ^  13  Id. 
302;  ThunUm  v.  SpraU,  52  Id.  202;  MoMee  ▼.  Qwrdner,  2  Har.  &  G.  176; 
Dcrr  V.  iPVsA«r,  1  Cuah.  273;  Proton  v.  Pteroe,  97  Mass.  46;  ShaUueh  y.  Green^ 
104  Mass.  42;  ir«n<  v.  SwieU,  31  Mioh.  18;  Davie  y.  ^ye,  7  Minn.  414;  Bob'  j 

kuon  y.  i?tce,  20  Mo.  229;  Maiheny  y.  ifoMm,  73  Id.  677;  S.  C,  30  Am.  Bep. 
541;  Drydm  y.  Kellogg,  2  Mo.  App.  87;  Xon^  ▼.  HiclangboUom,  2a  Miss.  772; 
Storm  V.  SmUh,  43  Id.  497;  HeemuMce  y.  Fmioy,  6  Johns.  5;  VMeard  y. 
/o/ifuon,  19  Id.  78,  79;  McCoy  y.  ^rtcAer,  3  Barb.  323;  Dresssr  y.  ^om- 
worO,  9  Id.  619;  BuHy.  Dewey,  40  TX.Y.  283;  ifcOi^  y.  AiM,  02  Id.  331; 
Inge  v.  Bond,  3  Hawks,  101,  103;  Boyd  y.  JSopst,  2  DalL  01;  i?«leMe  y.  Sum- 
mere,  3  Yeates,  534;  MeCabe  y.  JTorvAeflki,  1  Watts  ft  8.  513;  IF%itail«r  y. 
Eaetwich,  75  Pa.  St.  229;  People e  Bank  y.  JTurte,  11  Week.  Notes,  225;  QoMn 
V.  Qrdham,  5  Humph.  480;  7V;^i^  y.  Farie,  Id.  343;  C%artto»  t.  Lay,  Id.  496; 
Shorman  y.  CAainpJam  e<e.  Ca,  31  Vt.  162;  Patee  y.  Petton,  48  Id.  182; 
Bymeide  y.  Burdetl,  15  W.  Va.  702;  CotUgan  y.  JTowIsm^  22  Wis.  74»  81. 
See  also  cases  cited  in  Mr.  Lawson's  note  in  21  Fed.  Eep.  467.  The  doctriao 
is  stated  in  some  of  these  esses  in  yery  general  terms;  as,  that  the  law  annerei 
an  implied  warranty  of  title  to  every  sale  of  chattels,  but  it  is  usnally  laid  down 
with  the  qualifications  aboye  mentioned,  that  the  sale  must  be  for  a  fair  price, 
and  that  the  yendor  most  be  in  possession  to  raise  the  warranty.  The  re- 
quirement that  the  price  shall  be  fair  or  "  soond  "  imports,  we  apprehend,  no 
more  than  this:  that  if  the  price  is  grossly  inadequate,  this  of  itsell  is  aaffiaisnl 
to  put  the  purchaser  upon  inquiiy  as  to  the  goodness  of  the  yendor's  titia. 
Unless  the  deficiency  in  price  should  be  so  glaring  as  to  haye  this  effiwt,  it 
would  not  preclude  the  warranty. 

That  the  vendor  must  be  in  possession  to  raise  the  implication  of  warranty 
of  title  is  unquestionably  the  prevailing  rule  in  America,  as  will  be  seen  upon 
examining  the  cases  above  cited.  This  is  in  aooord  with  the  distinction  taken 
in  Medina  v.  StougJUon,  Ld.  Baym.  593,  between  cases  where  the  yendor  has 
possession  at  the  time  of  sale  and  those  where  he  has  it  not.  The  warranty 
in  the  former  class  of  cases  is  said  to  be  a  presumption  of  law  arising  from 
the  possession  and  the  sale:  Miller  v.  Van  Taeeel,  24  CaL  458.  *'The  poe- 
session  of  chattels,"  say  the  court  in  Boyd  y.  Bopet,  2  Dall.  91,  "  is  a  strong 
inducement  to  believe  that  the  possessor  is  the  owner;  and  the  act  of  selling 
them  is  such  an  affirmation  of  property  that  on  that  circumstance  alooe,  if  the 
fact  should  turn  out  otherwise,  the  value  can  be  teoovered.**  If  the  vendor 
hoa  not  the  possession,  the  American  doctrine  is  that  there  ii  no  implied  war^ 
ranty  of  title,  and  the  rule  is  oaxfeat  emptor:  Huntingdon  v.  HaU,  58  Am.  Deo. 
765;  S.  C,  36  Me.  601;  Lackey  v.  Stouder,  2  Ind.  376;  Long  v.  Hiekmgbot- 
torn,  28  Miss.  772;  Storm  v.  SmiUi,  43  Id.  497;  McCoy  y.  .4rteAer,  3  Barb.  323; 
Edick  V.  CHm,  10  Id.  445;  SeranJton  v.  Clourk,  30  N.  Y.  220,  224;  Bymmde  v. 
Burdett,  15  W.  Va.  702.  But  even  if  the  vendor  ii  out  of  possession,  an  affirma- 
tion of  ownership  at  the  time  of  the  sale,  it  seems,  i»  sufficient  to  found  the 
warranty:  Huntingdon  v.  Hall,  57  Am.  Dec  765;  &  C,  36  Me.  501;  Bymeide 
V.  DurdeU,  16  W.  Va.  702. 

Although  this  distinction  between  cases  where  the  vendor  is  in  possciasion 
and  those  where  he  is  not  is  apparently  fiimly  established  in  the  United 


Dec.  1854]  Scxyir  v.  Hdl  466 

States*  it  iMiiia  to  ns  to  be  not  ftltpgttlMr  wtiifielQvy.  It  !■  nndonbtodlj 
true  that  poMeMum  ia  an  indieimm  m  evidenoe  of  owiMnhip»  bat  eridaiioa 
that  a  thing  ia  ao  b  not  neoeaaarily  oYidenoe  of  a  wamntj  that  it  ia  ao. 
Proof  of  title,  howeTor  atroog,  can  nevor  raiae  a  wamntj  of  titla.  Tba 
office  of  a  wairantj  of  titles  indeed,  la  to  diapenae  with  proof  of  it.  If  I 
apply  to  the  apparent  owner  of  a  chattel  to  purohaae  it,  and  being  donbtfnl  aa 
to  the  title,  question  him  concerning  it,  and  he  therenpon  exhibits  his  proofs 
of  ownership,  and  bids  me  examine  them  for  myself,  howeyer  satisfactory  those 
proofs  may  be,  they  afford  no  presumption  of  a  warranty.  In  fact,  the  conduct 
of  the  vendor  shows  that  he  does  not  intend  to  warrant  the  title.  On  tlie 
other  hand,  if,  when  questioned  oonceniingthe  title,  he  shows  no  OTidenoe  of 
it,  but  merely  says:  "  You  may  rest  easy  on  that  soore;  the  property  is  mine,'* 
this  clearly  imports  a  warranty.  It  is  obviously  calcnlated  and  intended  to 
prevent  any  examination  of  the  endenoe  of  title.  When  a  purohaaer  of  a 
chattel  reliee  upon  the  vendor^B  assertion  of  ownership,  and  it  ia  intended  thail 
he  should  do  so,  he  is  jrelying  upon  a  warranty.  But  if  he  relies  upon  the  Ten* 
dor's  possession  as  evidence  of  ownership,  there  can  be  no  pretense  that  he  ia 
trusting  to  a  warranty.  The  evidence,  indeed,  so  far  as  it  goes,  dispenses 
with  the  necessity  of  any  warranty.  It  is  the  assertion  of  title,  and  not  the 
evidence  of  it,  which  annexes  a  warranty  to  a  sale. 

There  is  sound  reason,  therefore,  in  what  is  said  by  Mr.  Juatioe  Buller  in 
Paslep  V.  Freeman^  3  T.  R.  68,  to  the  effect  that  an  affirmation  of  a  title  to  a 
chattel  by  a  vendor,  at  the  time  of  sale,  ia  a  warranty,  whether  the  vendor  ia 
in  or  out  of  possession;  and  that  if  there  is  any  difference,  the  warranty  ought 
to  be  deemed  stronger  in  the  latter  case  than  in  the  former,  because  the  pur- 
chaaer  clearly  relies  upon  that  alone,  whereas  if  the  vendor  is  in  possession, 
there  is  an  evidence  of  title  which  the  purohaaer  may  trust  rather  than  tiie 
vendor's  assertion.  And  the  rule  would  be  the  same  where,  as  in  the  United 
States,  the  mere  fact  of  selling,  in  the  absence  of  oountervailing  ciroumatanoea, 
ia  regarded  as  an  assertion  of  title  sufficient  to  import  a  warranty.  If,  how- 
ever, the  article  should  at  the  time  of  sale  be  known  to  both  parties  to  be  in 
the  adverse  possession  of  a  third  person,  the  case  would  be  different.  In  that 
case,  without  some  other  affirmation  of  title  than  the  mere  act  of  selling,  the 
reasonable  inference  would  be  that  the  vendor  merely  intended  to  sell  his 
interest,  his  right  to  reclaim  the  article,  if  any  he  had.  Certainly  it  is  not 
required  that  the  vendor  should  be  in  actual  personal  possession  to  raise  an 
implication  of  warranty  of  title  on  a  sale  of  a  chattel  Constructive  possession 
ia  Btiflicient.  If  the  article  is  at  the  time  in  the  possession  of  a  servant  oi 
agent  of  the  vendor,  or  of  a  tenant  in  common  with  him,  it  is  enough:  //uii^ 
ingdm  v.  HaU,  28  Am.  Dec.  765;  S.  0.,  3d  Me.  601;  ShaUuck  v.  Green,  104 
Mass.  42,  In  the  absence  of  any  evidence  upon  the  subject,  the  presumption 
is  that  the  vendor  had  possession  at  the  time  of  the  sale,  as  well  as  that  tha 
tale  was  for  a  fair  prioe:  Long  v.  HickinghGUom,  28  Mies.  772. 

pRBSOMPTiov  OF  Wabbaktt  ov  Tnxx  NOT  Imdisputablb  OB  Ihvabi* 
ABUL— Though  it  is  said  in  ift^^v.  Kan  ^OMe^,  24  CaL  468,  as  already  sUted, 
and  in  many  other  oases,  that  the  implied  warranty  of  title  in  sales  of  chatteli 
is  an  implication  or  presumption  of  law,  it  is  not  to  be  understood  to  be  an  in- 
disputable or  oondusive  presumption.  This  is  appsrent  from  the  statement 
of  the  doctrine  of  the  cases  in  England  and  America  already  given.  The  pre- 
sumption of  warranty  of  title  is  annexed  by  law  to  a  sale  of  personalty  only 
where  there  is  nothing  in  the  circumstances  of  the  case  to  rebut  that  prssump* 
tion.    The  warranty  Ib  implied  only  where  good  faith  requirea  that  it  should 

tw:  McCoy  v.  Artcher,  3  Barb.  323;  JJynuide  v.  Burdeti^  16  W.  Va.  70& 
Am.  Pso.  Vox..  LZII— W 


466  Scott  v.  Hdl  [Tena 


Sayi  FurlMr,  J.,  in  McOoi^  r,  ArUher^  mtpra:  ''Th«  mudm  with  n^ard  to 
sales  inJtdeB  tenandOf  and  if  there  be  no  express  oontraet  of  warranty,  general 
ndee  of  implication  should  be  adopted  with  this  maxim  constantly  in  /lew. 
A  warranty  should  only  be  implied  when  good  faith  requires  it." 

The  implication  of  warranty  of  title  is  rebutted  where  it  is  shown  that  the 
▼endor  expressly  refused  to  warranty  and  that  the  purchaser  agreed  to  tak« 
the  risk  of  the  goodness  of  the  title:  Miller  y.  Van  Taud^  24  CaL  458.  And 
generally  where  the  facts  are  equally  known  to  both  parties,  and  the  sale  it 
made  under  circumstances  indicating  that  the  vendor  intends  only  to  transfer 
his  interest:  Hopkui$  v.  ChrmneU,  28  Barb.  583.  Thus  where  the  plainti£( 
baring  equal  knowledge  with  the  defendant  of  the  facts  of  the  case,  bought 
of  the  latter  his  bargain  as  purchaser  at  a  sheriff's  sale,  it  was  held  that  there 
waa  no  implied  warranty  of  the  debtor's  title  to  the  property,  and  that  the 
plaintiff  could-  not  recover  back  the  purchase  money  on  failure  of  the  title: 
Chapman  y.  SpeOer,  14  Q.  B.  621;  8.  C,  19  L.  J.,  Q.  B.,  241;  14  Jur.  632. 
And  where  the  vendor  expressly  transfers  simply  his  interest,  there  is  clearly 
no  implication  of  warranty  of  title,  as  in  case  of  an  assignment  by  a  mort- 
gagee of  all  his  interest  in  a  chattel  mortgage  and  in  the  property  covered 
thereby:  Jcnea  ▼.  Ilugg^ord,  3  Met.  515.  So  where  a  pledgee  transfers  "  all 
his  righti  title,  and  interest  in  and  nnder**  the  written  contract  of  pledge, 
though  the  original  contract  recites  that  the  goods  are  the  property  of  the 
pledgor:  First  National  Bank  v.  MasaaehusetU  etc.  Co,^  123  Mass.  830.  In  all 
such  cases,  as  well  as  in  others  to  be  hereafter  mentioned,  the  nature  of  the 
transaction  gives  the  purchaser  notice  that  the  title  is  at  his  risk.  It  was 
held,  however,  in  Drener  v.  Ainaworth^  0  Barb.  626,  clearly  contrary  to  the 
doctrine  of  some  of  these  decisions,  that  there  was  an  implied  warranty  of  title 
available  against  a  prior  levy  upon  the  property,  although  the  purchaser  knew 
of  the  levy  when  he  made  the  purchase;  and  that  he  had  a  right  to  rely  upon 
the  warranty,  notwithstanding  his  knowledge  of  the  existing  incumbrance. 

Whxrb  Salb  is  Madk  in  Official,  Fiduciabt,  ob  RxpRKSByTATivi 
CSapacitt,  no  warranty  of  title  is  implied,  as  in  the  case  of  sherifib'  sales,  ex- 
eontors'or  administrators'  sales,  and  guardians'  sales,  but  the  rule  is  eaveaJt  emp- 
tor: Freeman  on  Executions,  sec.  352;  McOIiee  v.  EUiSt  14  Am.  Deo.  131,  note; 
Lang*$  Heir$  v.  Wariugt  60  Id.  533,  and  note;  WoHhy  v.  Johnwn,  52  Id,  399; 
Rich  V.  DiOahunty,  8  Port.  134;  Neal  v.  QUlaspy,  50  Ind.  431;  Harrison  v. 
Shanks,  13  Bush,  620;  Mockhos  v.  Gardner,  2  Har.  &  G.  176;  Storm  v.  Smiih, 
43  Miss.  497;  Sparks  v.  Mesnck,  65  N.  C.  440;  Hicks  v.  Stunner,  71  Id.  538; 
Bathort  v.  WhiaUr,  3  Watts,  490;  Bofnnson  v.  Cooper,  1  Hill  (S.  C),  186; 
Davis  V.  Hunt,  2  Bail.  412;  Thayer's  Creditors  v.  Shsr{lf,  2  Bay,  69;  Her- 
hemont  v.  Sharp,  2  McCord,  264;  Tates  v.  Bond,  Id.  382;  The  Monte  AU 
Ugre,  9  Wheat.  616.  So  in  case  of  a  sale  by  a  sheriff  who  has  been  fully 
indemnified:  Stone  v.  Pointer,  5  Munf.  287.  In  all  judicial  sales  of  the  prop- 
erty of  debtors  or  decedents  the  nature  of  the  sale  notifies  the  purchaser  thai 
the  officer  making  the  sale  is  a  mere  instrument  of  the  law,  and  that  he  un- 
dertakes no  more  than  to  sell  such  title  as  the  debtor  or  decedent  has  in  the 
particular  property.  The  same  rule  applies  to  a  sale  by  a  mortgagee  under 
and  by  virtue  of  a  chattel  mortgage:  Sheppard  v.  E!arles,  13  Hun,  051;  and 
to  a  sale  by  a  pawnbroker  of  a  forfeited  pledge:  MoHey  v.  Attei^oroMgh,  S 
lExoh.  500;  S.  C,  13  Jur.  282;  S.  C,  18  L.  J.,  Exch.,  148.  The  same  rula 
applies  where  one  sells  as  agent  for  a  third  person,  and  the  purchaser  knew* 
that  he  so  sells:  Irwin  v.  Thompson,  27  Kan.  643. 

Whrhxb  Wabrantt  of  Titlb  Imfubd  WHXic  Salb  Bvidxkobd  it 
WaniHO.— The  prevailing  doctrine  is,  that  a  warranty  of  iitla  will  ba  ian* 


Dee.  1854]  Soon  v.  Hn.  467 

plied  on  a  Mia  of  a  ohaifeel  la  poawlon,  alllMMigh  a  Mil  of  mIo  Ii  giren, 
Maled  or  oot  ■eded,  in  whioh  no  wmmniy  it  ocpMied:  MiQer  r.  Vtm  Tamd^ 
24  GaL  408;  Xon^  ▼.  JSTidb'ji^ftottom,  28  Mim.  772;  ShaUuek  y.  (Trwa,  104 
Mms.  42;  Trigg  ▼.  Farit,  6  Humph.  843;  ITortf  t.  Coviih  1  Head,  608.  In 
Trigg  t.  .Fbiit,  mproi  It  is  said  that  the  wainntj  doae  not  ''enlarge  the 
writiiig;  it  arieee  by  operation  of  law  from  the  aot  or  faot  of  sale  itself.'* 
The  same  mle  holds  where  the  Tendor  transfers  to  the  porehaaer  the  bill  of 
sale  under  wliich  he  himself  holds,  as  a  mnniment  of  title^  or  a  symbolioal 
deliveiy,  or  as  a  mere  incident  of  the  transaction:  ShcUhidt  ▼.  Cfrten,  104 
Mass.  42.  As  a  written 'bill  of  sale  does  not  prednde  an  implied  wamntj 
of  title,  neither  will  it  prevent  the  rebattal  of  sneh  warranty  by  parolt 
MiUerr.ranTaa$d,24C9L45S. 

Contrary  to  the  doctrine  held  in  the  for^gomg  cases,  it  is  decided  in  Spark$ 
r,  Mewkk^  85  N.  C.  442,  that  where  there  is  a  written  bill  of  sale  which  con- 
tains no  warranty,  none  can  be  implied  or  proved,  as  that  would  be  to  add  to 
the  writing  by  paroL  Where  it  is  sought  to  prove  a  warranty  not  expressed 
in  the  writing,  this  is  no  doabt  tme;  hot  an  implied  warranty  does  not  re- 
quire to  be  proved  at  all,  by  parol  or  otherwise;  and  hence,  to  allow  such  a 
warranty  does  not  "add  to  the  writing  by  parol."  The  warranty  arises  by 
operation  of  law,  and  is  not  a  matter  of  proof.  It  may  be  rebutted  by  parol 
proof  that  the  circumstances  were  such  as  to  forbid  any  implication  of  war- 
ranty of  title;  but  this  does  not  affect  the  writing,  either  by  way  of  enlarge- 
ment or  restriction,  since  the  warranty  ia  not  expressed  in  the  writing. 

WiJuuinT  or  Ttflb  Imflixd  in  Ezohangb  or  Ciiattxls— Pathbitt  or 
Chattxlb. — It  has  sometimes  been  made  a  question  whether  the  doctrine  of 
implied  warranty  of  titie  applies  where  there  ia  an  exchange  of  chattels  rather 
than  a  sale.  It  is  clear,  however,  that  there  is  no  room  for  any  distinction 
upon  that  point  An  exchange  is  merely  a  double  sale,  each  of  the  parties 
buying  of  the  other,  and  selling  to  him;  or  rather  a  sale  is  merely  a  unilateral 
exchange,  an  uncompleted  exchange.  To  complete  it,  theoretiodly,  requires 
tlie  vendor  to  purchase  some  other  valuable  commodity  with  the  consider- 
ation which  he  receives.  And  as  there  is  no  difference  in  principle  between 
an  exchange  and  a  sale,  none  is  made  in  fact  on  the  point  now  under  discus- 
•ion.  A  warranty  of  titie  is  implied  in  an  exchange  or  barter,  as  well  as  in  a 
sale,  unless  there  is  something  in  the  facts  of  the  particular  case  to  exclude 
the  presumption  of  warranty:  Hvni  v.  SaekeU,  31  Mich.  18;  PaUe  v.  PtUon^ 
48  Vt.  182;  BymMe  v.  BurdeU^  16  W.  Va  702.  The  same  rule  applies  also 
where  personal  property  is  made  use  of  in  payment  or  settiement  of  a  prece- 
dent debt  or  controversy:  Oaylar  v.  C7<>pef,  16  Fed.  Bep.  40  (Louisiana). 

DocTRiHB  or  Impuxd  Wa&bantt  of  Tttls  Applies  also  to  Sales  of 
Chosbs  in  Action.  There  is  no  doubt  that  an  implied  warranty  of  titie  arises 
on  a  sale  of  a  security  or  choee  in  action,  as  well  as  upon  a  sale  of  any  other 
tiling  in  possession:  2  Benjamin  on  Sales,  sec.  965,  note;  Bagd  v.  Andermm^ 
3  Am.  Dec  762;  Stoamey  v.  Parker^  50  Pa.  St.  450;  Flynn  v.  Allen,  67  Id. 
482;  Baker  v.  Amot,  67  N.  T.  448.  And  the  import  of  the  warranty  in  such 
a  case  is  said  to  be  that  the  chose  in  action  is  genuine,  and  not  spurious,  false, 
or  counterfeit,  although  we  do  not  see  how  such  a  warranty  is  to  be  deemed 
a  warranty  of  titie;  however  that  may  be,  the  warranty  unquestionably  ex« 
ists.  Says  Mr.  Justice  Sharswood,  in  F^n  v.  Aden,  57  P^  St.  482:  "The 
doctrine  that  the  vendor  of  chattels  in  possession  impliedly  warrants  the 
title  extends  to  choses  in  action:  BUcJae  v.  Summer$,  3  Yeates,  531;  Cham' 
ley  V.  DaOee^  8  Watts  A  S.  361;  Swanzey  v.  Parlaer,  50  Pa.  St.  450.  As  ia 
liie  sals  of  other  things»  he  undertakes,  not  for  their  quality,  that  they  are 


4p6a  P&rrcHRT  v.  Sxatel  [Tenn. 

TCtUy  worth  tiM  ttumtj  the j  npraaent^  bat  tint  thaf  ine  what  thaf  purport 
to  be;  in  other  wordft,  he  warzaats  the  gennineneMiol  the  obim  upon  them: 
Lifons  ▼.  Divetbkf  22  Pa.  St.  186.  Erery  oUigee  or  holder  of  an  obligation 
who  aasigos  it  to  another,  especially  if  he  doeaaofor  aTalaable  oonBideratiott» 
impliedly,  at  leaat,  thereby 'engages  that  it  is  gemdne^  and  binding  upon  the 
obligor,  unless  he  disdoses  fully  and  truly  to  the  aangnee  in  treating  for  the 
assignment  all  the  fscts  and  oircumstanoes  connected  with  the  execution  and 
delivery  of  the  obligafcion,  and  after  being  thus  advised  the  assignee  agrees  ta 
take  it  at  his  own  risk." 

Thin  prinoqile  applies  to  a  sale  of  a  note,  or  bill  without  indorsement^  so  as 
to  import  a  warrant  of  the  genuineness,  not  only  of  the  instrument  itself, 
but  of  the  indorsements  upon  it:  Swanzey  v.  Parker,  50  Pa^  St.  441;  Chambers 
.  Union  NaUomU  Bank,  78  Id.  206.  So  to  a  oase  of  a  sale  of  a  bond  or  bonds: 
ItUehie  ▼.  Smtmers,  3  Yates,  631;  Porter  y.  Brighi,  82  Pa.  St.  441;  DonaUUon 
V,  Newman^  9  Mo.  App.  235;  Uiiey  ▼.  DondUbon,  04  U.  S.  20.  So  it  applies 
to  a  sale  of  aoooonts,  so  as  to  import  a  warranty  that  they  are  what  they  pur- 
|>ort  to  be,  genuine  aocounts  due  and  owing:  CfUehriet  v.  HUUard^  53  V t.  502. 
So  on  a  sale  of  stock  in  a  corporation  there  is  an  implied  warranty  of  title  to  it, 
and  that  it  is  genuine  stock  of  the  oorporation  named:  State  v.  Kort^t  Lomnama 
etcR  B.  Co.,  34  Ia.  Ann.  047;  Peopie*e  Bank  v.  Ktart^  11  Week.  Notes, 
225.  But  there  is  no  warranty  that  such  stock  is  not  part  of  a  fraudulent 
overwissue:  Peopf^e  Bank  ▼.  Kurtz,  mtpra;  nor  is  there  any  implied  warranty 
of  the  solvenoy  of  the  corporation,  or  of  its  title  to  its  property:  Stale  ▼.  North 
LomaioMa  eie»  B,  B,  Co,,  supra.  In  case  of  a  contract  for  a  sale  of  stock  on 
time,  under  a  statute  authorizing  sudi  sales,  there  is  no  warranty  that  the 
vendor  owns  the  8tock,H)r  any  stock,  at  the  time,  and  there  is  notlidng  to  pre- 
.  dude  a  delivery  of  watered  stock  in  fulfillment  of  the  contract,  in  the  abeenoe 
'  of  fraud  or  express  warranty:  Currie  v.  WkUe,  6  Abb.  Pr.,  N.  S.,  352. 

In  case  of  a  sale  of  a  patent  right  there  is  an  implied  waxrsnty  of  its  gen- 
>  uineness,  and  of  the  vendor's  right  to  sell:  Daret  v.  Btoekwa^,  10  Barb.  402^ 
^  471.  But  there  is  no  warranty  of  the  novelty  of  the  invention:  8mUh  v. 
^Neak,  2  Com.  B.,  N.  S.,  67;  S.  C,  26  L.  J.,  C.  P.,  143. 


^, ,  Pbitohett  V.  State. 

[2  Bhxxd,  286.] 

Lost  Goods  abb  vot  Stjbjkct  ov  Laboiwt,  for  there  must  be  trei^aM  la 
taking  them  from  the  actual  or  constructive  possession  of  some  one. 

OWKIS  IS  IN  GONBTBUGnVE    POSSSSSION  OF    PaOFEBTT  80  THAT  It  18  VO* 

LoBT,  and  is  the  subject  of  larceny,  when  he  knows  where  the  property  is 

so  that  he  would  be  able  to  recover  the  actual  possession  when  he  desired 

if  it  were  not  removed  by  the  thief. 
"Waxoh  Lift  with  Watohsmtth  fob  Rspaib  n  in  Gonstbuoiitb  Poesis- 

8ION  OF  OwNKB,  and  the  subject  of  larosny,  though  thrown  upon  the 

pavement  by  an  explosion  of  gunpowder. 
^Pabtt  Going  to  Trial  upon  Othkb  Issubs,  withoijt  Ihvokino  AonoB 

OF  OouBT  UPON  DxMUBBEBS  to  Other  defenssa,  is  hold  to  have  waived 

such  defenses,  and  the  failure  of  the  court  to  deoide  upon  tiM  demurrsra 

furnishes  no  ground  for  reversal. 
JTo  Jbopabdt  Occurs  upon  Quashing  of  Dxtwrifi  LnnonanVt  thM|^ 

a  jury  be  sworn  and  discharged  thereon* 


Dea  1854]  Pbuchett  v.  Statv.  469 


JoovLim  OcniTiMAsnuf  bctwemi  JuaoR  nr  CuimAL  CUra  m  Br* 
BSAirsBR,  Jb  the  pwonce  of  tlie  offieer  in  i&aige  of  Jiuy,  iqpon  »  nallw 
not  oonneoted  with  the  oaee  on  trial,  li  no  gnonnd  for  n  nmr  tribL 

InuDTianffv  for  laroeny*    The  opinioik  statsB  the  cms. 

lobster,  JSurf,  iSTiane,  aru2  Vaughn,  for  the  plaintiff  in  enor. 

8need,  attorney  general,  for  the  state* 

By  Court,  Oabitchkbs,  J.  Indictment  for  etealii^  a  watol» 
worth  eighty  dollars — conTiotion*  Motion  for  a  new  trial  OTer- 
ruled  in  criminal  court  of  Davidson,  and  appeal  in  error  to  this 
wourt.  The  case,  as  made  out  by  the  proof  is,  that  a  man  by 
the  name  of  Stimple  left  his  watch  with  a  silveramith  named 
Wagoner,  on  Market  street,  to  be  repaired;  that  on  the  occasion 
of  an  outbreak  of  fire  in  the  shop  of  the  smith,  by  the  explosion 
of  gunpowder,  the  window  in  which  it  hung  with  other  watcher 
was  blown  out  upon  the  pavement,  and  that  it  was  taken  by  the 
defendant,  either  from  the  window  or  the  pavement,  with  the 
intent  to  appropriate  the  same  to  his  own  use,  and  deprive  the 
owner  thereof. 

The  only  question  upon  the  merits  is,  whether  the  taking: 
under  these  circumstances  constitutes  the  crime  of  larceny.  It 
is  contended  that  if  the  watch  was  upon  the  pavement  it  wae 
lost,  and  therefore  not  the  subject  of  larceny,  so  as  to  make  ont 
this  ofifense,  as  the  law  requires  that  there  should  be  a  trespaae 
in  tlio  taking,  and  that  this  can  not  be  where  there  is  no  posses* 
siou  iu  the  owner,  either  actual  or  constructive.  This  is  cer- 
tainly the  well-settled  law  of  this  state,  and  would  necessarily 
result  i/i  the  acquittal  of  the  defendant,  if  the  first  assumption^ 
that  the  property  was  lost  in  the  sense  of  the  law  as  expounded 
in  our  cases,  can  be  maintained.  The  law  is  very  correctly 
stated  by  his  honor  the  criminal  judge,  in  his  charge  in  this 
case,  upon  the  point  in  controversy. 

The  English  courts  in  some  cases,  as  well  as  those  of  several 
of  our  sister  states,  have  gone  farther,  and  ruled  that  in  a  case 
of  finding  lost  property,  if  the  owner  be  known,  or  could  be  as- 
certained, and  the  finder,  instead  of  restoring  it,  converts  it  to 
his  own  use,  he  is  guiliy  of  larceny:  Whart  Cr.  L.  564;  SUUe 
V.  WegUm,  9  Conn.  527  [26  Am.  Dec.  46].  But  we  have  not  gone 
so  far  in  this  state,  but  have  uniformly  held  that  to  eonstitate  thia 
crime  there  must  be  a  trespass  in  the  taking,  and  this  can  not  be 
unless  the  goods  were,  at  the  time  they  were  taken,  in  the  actual 
or  constructive  possession  of  some  one.  Lost  goods,  therefore, 
are  not  the  subject  of  larceny:  Parier  v.  Stale,  Mart  &  Y.  227; 
Laun-enoe  v.  State,  1  Humph.  228  [84  Am.  Dec.  644]. 


470  Pbitchett  u  Statb.  [Tena 

This  being  ihe  settled  law  of  onr  state,  the  only  diffioolty  is 
in  applying  it  to  the  facts  of  each  particnlar  ease.  This  diffi- 
culty arises  from  the  want  of  a  correct  and  nniform  nnderstand- 
ing  of  the  meaning  of  the  terms  ''lost"  and  '* constractiTe 
possession/' 

It  Was  decided  in  Lawrefnoe  t.  SUd^  supra,  that  where  a  man  un- 
intentionally left  his  pocket-book  in  a  barber's  shop,  where  it  was 
stolen  by  the  barber  after  he  left,  it  was  not  lost,  but  still  in  his 
constructive  possession,  if  he  recollected  after  he  missed  it  that 
he  had  left  it  at  that  place.  The  defendant  in  that  case  relied 
upon  the  defetise  that  the  money  was  lost.  In  the  case  of 
Moran  v.  State,  at  the  present  term,  we  held  that  where  the 
prosecutor,  who  had  been  engaged  in  a  job  of  work  on  his  own 
farm  with  defendant,  and  sent  his  coat  by  a  young  man,  who  was 
also  with  them,  to  his  house,  while  he  returned  another  away, 
and  his  pocket-book  with  his  money  fell  out  of  the  pocket  of  the 
coat  on  the  way  and  was  picked  up  the  defendant,  who  was  with 
him,  without  the  knowledge  of  the  boy,  and  appropriated  to  his 
own  use,  it  was  larceny. 

The  general  rule  seems  to  be  that  if  the  owner  knows  where 
the  property  is,  so  that  he  would  be  able  to  recover  the  actual 
possession  when  he  desired,  if  it  had  not  been  removed  by  the 
thief,  then  he  is  in  the  constructive  possession,  the  property  is 
not  lost,  and  is  the  subject  of  larceny.  He  need  not  know  the 
exact  spot  where  it  is,  or  the  particular  place  in  a  house  or  field 
or  road,  but  it  is  sufficient  if  he  knows  it  well  enough  to  be  able 
to  regain  it,  if  not  disturbed,  when  he  desires  to  do  so. 

In  the  case  under  consideration  the  watch  had  been  left  with 
the  smith  for  rejMur,  he  knew  where  it  was,  and  the  fact  that  it 
had  been  thrown  out  upon  the  pavement  did  not  change  the 
possession  any  more  than  if  it  had  fallen  upon  the  floor  of  the 
shop  and  [had  been]  taken  from  there. 

The  circumstances  all  go  to  show  that  the  defendant  obtained 
the  possession  of  the  watch  fraudulently  and  with  a  felonious 
intent,  either  from  the  window  or  the  pavement.  It  was  found 
in  his  possession;  he  gave  a  false  account  of  the  manner  in 
which  he  got  it,  saying  he  purchased  it  from  Wagoner  three 
weeks  before  the  fire.  This  is  disproved  by  Wagoner  and  others; 
the  watch  was  hanging  in  the  window  down  to  the  time  of  the 
fire. 

There  are  other  grounds  of  error  presented  for  a  new  trial. 

1.  There  was  a  plea  of  former  acquittal  for  the  same  offense, 
to  which  there  was  a  demurrer  by  the  state,  and  the  same  never 


Dee.  1854.]  FBircHnT  v.  Stats.  471 

disposed  of  1)y  tlie  oonrt.  We  haye  held  in  sereial  oaees  at  the 
present  term»  both  oiTil  and  oriminal»  that  where  parties  go  to 
trial  upon  other  issues,  withont  inyoking  the  action  of  the  court, 
upon  demnrrers  to  the  other  defenses  it  shall  be  regarded  as 
a  waiyer,  and  therefore  no  ground  for  reyersal.  But  if  this 
were  not  so  in  this  case,  we  can  see  from  the  record  there  is  no 
ground  for  the  plea  of  former  acquittal.  It  seems  that  a  juiy 
was  sworn  to  try  the  defendant  for  the  same  offense  upon  an- 
other indictment,  and  it  appearing  that  the  same  was  defectiye 
for  want  of  a  prosecutor,  and  perhaps  in  other  respects,  the  same 
was  quashed  upon  motion  of  defendant's  counsel  and  the  jury 
discharged.  The  present  indictment  was  then  found.  The  dis- 
charge of  the  jury  in  the  first  case  resulted  from  the  successful 
motion  of  defendant  to  quash  the  indictment  under  which  he  had 
then  been  put  upon  his  trial.  He  was  never  in  jeopardy  on 
that  charge,  as  it  was  not  good  in  law,  but  liable  to  be  quashed 
at  any  time. 

2.  It  appears  by  offidayits  made  on  the  motion  for  a  new  trial 
that  a  Mr.  Sumner  asked  one  of  the  juiy>  John  Taylor,  just  be- 
fore the  meeting  of  the  court  on  Wednesday  morning,  while  the 
case  was  pending,  and  in  the  presence  of  the  officer  in  charge 
of  the  jiiry,  what  had  become  of  a  certain  young  lady,  to  which 
he  replied  that  "  he  did  not  know,  and  that  she  was  too  young  for 
him."  It  appears  by  the  affidavits  of  the  said  Sumner,  Taylor, 
and  the  officer,  that  this  was  all  that  was  said,  and  that  the  con- 
versation was  jocular,  and  in  ignorance  on  the  part  of  Sumner 
that  Taylor  was  on  the  jury.  There  was  nothing  in  this  au- 
thorizing the  granting  of  a  new  trial;  no  case  has  gone  so  for. 

3.  The  evidence  preponderates  against  the  verdict.  We  do 
not  think  so;  but  on  tiie  contrary,  consider  that  it  makes  out  a 
dear  case  of  guilt  by  circumstantial  evidence. 

The  judgment,  then,  will  be  affirmed  and  the  sentence  exe- 
euted. 


No  Jeopardt  Ococtrs  ox  Defictivk  iKDioncxNT:  See  note  to  8uUe  v.  Jfe* 
ITee,  21  Am.  Dec.  605,  and  anthoritiee  died  in  the  note  to  Roberts  y.  Staie^ 
68  Id.  637;  McOinnU  ▼.  8laU,  49  Id.  705.  The  prindiMa  omo  ui  cited  to  this 
point  in  Joy  v.  State,  14  Ind.  147. 

Larciny  by  Findxb  or  Lost  Goods:  See  note  to  S^ate  v.  ffomes,  57  Am. 
Dec.  283,  which  diBcaflses  the  subject  of  Uroeny  generally. 

CoxA'ERSATioxs  OF  JaBORfi  AS  Gbouvd  pob  Niw  Tbial:  See  Nelnu  y.JStaie^ 
53  Am.  Dea  94,  and  note  102;  note  to  Hilton  v.  SotUhwick,  35  Id.  255. 

Objection  to  Rejbction  or  Pleas  is  Waived  by  going  to  trial  on  thoae 
remaining  and  taking  no  ezoeptiona  to  the  roling  of  the  court  below:  Swqford 
V.  IVhippU,  54  Am.  Doc.  49a 


472  Fhuxifs  v.  Dxvjb.  [Texuv 

P&HiLips  v.  Bayjb. 

BUBBTIlfl  OT  OUABDIAB  ASI  HOT  LlABLB  V0&  WOKK  AMD  LaBOB  DoKX  BT 

Wa&ds  for  gnardian. 

OUABDIAK  18  NOT   LlABLE    FOB  WORK  AND  LaBOB  OF  WaBD8  DO  bill  filed 

for  a  settlement  of  the  guardianship  accounts. 

Btidbncb  of  Work  and  Labor  of  Wards  is  CoMFKnurr,  on  bill  for  settle* 
moot  of  goardianship  accounts,  to  show  that  the  credits  clairoed  by  the 
guardian  for  disbursements  should  not  be  allowed*  they  having  been  paid 
and  discharged  by  such  work  and  labor. 

Guardian  Who  Expends  Mori  than  Intxbkst  and  Pbofitb  of  Ward's 
EsTATX  without  the  sanction  of  a  chancery  oourt  is  liable  for  the  princi- 
pal sum  of  the  ward's  estate  at  all  events. 

Bill  against  defendant,  as  complainants'  guardian,  and  hia 
Boreties  for  a  settlement  of  the  guardianship  accounts,  and  to 
enforce  an  account  for  the  labor  and  services  of  the  complainants, 
alleged  to  have  been  reudered  to  the  defendant  during  the 
guardianship.  Eeference  was  ordered  to  a  master,  with  direc- 
tions to  take  an  account  of  the  amoimt  of  the  estate  and  the 
Talue  of  the  alleged  services.  From  the  report  of  the  master  it 
appeared  that  the  estate  amounted,  in  the  guardian's  report,  to 
two  hundred  and  twenty-nine  dollars  and  sixty-one  cents;  that 
on  his  final  settlement  with  the  clerk  of  the  county  court  he 
was  allowed  credits  which  left  a  balance  of  thirty-eight  dollars 
and  twenty-three  cents,  which  with  interest  amounted  to  fifty- 
three  dollars,  and  this  was  admitted  to  be  due  the  complainants. 
The  value  of  the  services  of  the  wards  was  estimated  at  four 
hundred  and  eighty  dollars.  The  sum  of  this  latter  amount 
and  the  fifty-three  dollars,  admitted  to  be  due,  was  decreed 
against  the  defendants,  who  appealed.  The  other  facts  appeal 
in  the  opinion. 

O.  H,  WiUiams,  sen.,  and  WrigJU^  for  the  oomplainants. 

8hrew8berry,  for  the  defendants. 

By  Court,  Cabuthebs,  J.  The  complainants  file  this  bill  for 
a  settlement  with  the  defendant,  as  their  guardian,  appointed  in 
1887.  They  are  his  grandchildren.  In  his  first  report,  March, 
1839,  to  the  clerk  of  the  county  court,  he  shows  that  he  had  in 
his  hands  two  hundred  and  twenty-nine  dollars  and  sixty-one 
cents,  and  in  that  and  subsequent  reports  and  settlements  with 
the  clerk  he  presented  and  was  allowed  charges  for  clothes, 
provisions,  schooling,  etc.,  by  which  very  nearly  the  whole 
amount  in  his  hands  was  exhausted.  Against  these  charges  a 
olaim  was  made  by  the  complainants  for  services  for  a  much 


April,  1856.]  Philups  v.  Davis.  478 

larger  amount,  and  upon  reference,  a  balance  ^ras  reported  in 
fheir  fayor  of  fire  hundred  and  thirty-three  dollars  and  ten  cents, 
for  which  a  decree  was  giyen  against  the  guardian  and  his  sure- 
ties, and  an  appeal  to  this  court. 

The  sureties  of  the  guardian  can  not  be  made  liable  for  an 
account  for  work  and  labor  against  their  principal,  nor  can  the 
latter  in  this  proceeding,  and  the  decree  on  that  basis  is  erro- 
neous. But  certainly  it  was  competent  for  the  wards  to  show 
that  the  credits  claimed  by  the  guardian  for  disbursements 
should  not  be  allowed,  because  they  had  been  paid  and  dis- 
charged by  work  and  labor,  or  otherwise,  and  if  so,  should  not 
operate  as  a  discharge  as  to  the  funds  in  his  hands  as  guardian. 
To  this  extent  such  adverse  claim  may  be  considered,  and  for 
that  purpose,  and  no  other,  allowed  in  the  settlement.  The 
proof  in  this  case  puts  it  beyond  all  doubt  that  a  just  compen- 
sation of  complainants  for  their  services  would  more  than  dis- 
charge the  account  of  defendant  for  his  outlay  for  them,  and 
leaye  the  amount  originally  received  into  his  hands  for  them 
untouched.  It  was  a  small  pittance,  and  being  aware  of  their 
poverty,  under  the  guidance,  control,  and  management  of  a  kind 
and  industrious  mother,  they  were  enabled  by  their  own  toil 
and  hers  to  live  without  any  encroachment  upon  it.  The  mother 
had  full  confidence  in  the  defendant,  her  father,  and  from  the 
death  of  her  husband  submitted  everything  to  his  control  and 
management,  and  taught  her  children  to  reverence  and  obey 
him.  According  to  the  proof,  he  received  their  labor  on  his 
farm  for  seven  or  eight  years;  even  the  little  girls  aided  in  pick- 
ing out  his  cotton.  In  the  face  of  this  proof,  can  he  be  per- 
mitted to  charge  the  family  for  every  little  item  of  food  and 
raiment  he  furnished  them  ?  No  court  of  conscience  could  per- 
mit it.  After  allowing  his  account  as  made  out  by  himself,  and 
placing  a  low  estimate  on  the  services  rendered  by  his  grand- 
children by  disinterested  witnesses,  well  acquainted  with  all  the 
circumstances,  his  claim  is  more  than  liquidated.  In  one  of  his 
settlements  with  the  clerk  of  the  county  court  he  received  a 
credit  of  twenty-five  dollars  for  that  amount  paid  for  schooling, 
and  afterwards  admitted  it  to  be  incorrect,  but  still  permitted  it 
to  remain  on  the  record. 

It  is  proved  that  he  has  permitted  his  wards  to  grow  uj) 
without  having  them  taught  even  to  read  or  write,  and  now 
desires  to  turn  them  out  upon  the  world  penniless  as  well  as 
ignorant,  after  having  occupied  the  position  of  father  to  them 
from  their  infancy.     It  would  have  been  supposed  that  tbeir 


474  Phillifs  u  DAvra.  [TeniL 

near  idatioiiahip  and  destitate  orphanage  wonld  haTe  guaran- 
teed to  them  better  treatment.  If  he  had  bound  them  oat  to 
good  men^  which  it  was  his  duty  to  do,  if  their  estate  was  not 
sufficient  to  support  them,  and  he  was  not  willing  to  raise  them 
up  in  the  right  way  himself,  thej  would  at  least  have  been  plainly 
educated,  and  receiyed  something  for  their  kbor  at  the  ter- 
mination of  their  apprenticeship.  But  independent  of  this  yiew, 
the  law  does  not  permit  a  guardian  to  expend  mt>re  than  the 
interests  and  profits  of  his  ward's  estate,  without  the  sanction 
of  a  chanceiy  court.  So  he  would  be  liable  for  the  principal  in 
his  hands,  at  all  eyents,  and  without  any  adyerse  daim  on  their 
part. 

In  this  case,  however,  under  all  the  circumstances,  if  we  can 
do  no  more,  we  can  make  the  defendant  account  for  the  said 
amount  of  two  hundred  and  tweniy-nine  dollars  and  sixiy-one 
cents,  with  interest  at  annual  rates  from  the  time  he  receiyed  it 
up  to  this  time,  and  a  decree  will  be  rendered  for  that  amount, 
with  all  costs  against  the  guardian  and  his  sureties,  after  it  is 
ascertained  and  reported  by  the  master,  for  which  %  reference 
will  now  be  made. 

GuAKDiAR  BxpiKDnro  Mori  than  IimBiarT  or  Ikcomx  or  Ward^  Braibi 
SMDOto  ditwiMMiig  thif  mibjwt,  VOiard  r.  Sohert,  48  Am.  Dm.  6S7-iia 


CASES 

IN  THI 

SUPREME    COURT 

or 

TEXAS. 


HiLLTABD  V.   GbABTBEB'S  ADMIMI8TRA.T0R. 

(UTblai,  90A.] 

MxABUUB  OP  Rkooyxbt  ih  Case  of  Pabt  Pskpobmahci  of  Contraot  fob 
Work  axd  Labor  aooeptad  by  th«  employer  ii  the  contract  price  le« 
the  reaeonable  and  hir  amoant  paid  by  him  for  completing  the  job,  and 
any  damage  he  haa  sostained  by  non-fulfillment  of  the  contract. 

Bmflotei  is  not  Liablb  fob  FnuT  Valub  of  Usblbss  Matbbiaib  Ob* 
DBREi>  AND  Spoilkd  bt  Hik,  bnt  only  their  firat  i«lne  le«  their  praaent 
▼alae,  when  they  are  retained  by  the  employer. 

AcnoN  for  work  and  labor  bj  the  plaintiff's  intestate,  who 
had  agreed  to  build  a  gin-honee,  ranning-gear,  ootton-prees,  and 
grist-mill  for  the  defendant  for  a  certain  price.  The  work  was 
abandoned  before  its  completion,  and  the  defendant  employed 
another  mechanic  to  finish  it.  A  demurrer  to  the  petition  was 
overruled.  Certain  receipts  for  payments,  indorsed  on  a  dupli- 
cate copy  of  the  contract,  produced  from  the  possession  of  the 
plaintiff's  intestate,  and  purporting  to  be  signed  by  him,  and  an 
order  for  twenty-five  dollars  drawn  by  him  on  the  defendant, 
were  offered  in  evidence  by  the  defendant,  but  on  objection, 
although  it  does  not  appear  when  made,  were  rejected.  The 
court  does  not  state  upon  what  grounds  they  should  have  been 
admitted.  Certain  useless  irons  ordered  by  the  employee,  and 
materials  cut  up  and  spoiled  by  him,  were  retained  by  the  de- 
fendant, and  evidence  of  their  first  value  was  given  bja  witneoa. 
The  charge  to  the  juiy  sufficientiy  appears  in  the  opinioii.  The 
plaintiff  had  a  verdict,  and  the  defendant  appealed. 

N.  n.  Mwnger,  for  the  appellant 

J.  H.  Bob$on.  for  the  appellee. 

475 


476  HiLLTABD  t;.  CSbabtrse's  Abm'b.  [Teza% 

Bj  Courts  Heicphill,  0.  J.  Yarions  errors  haye  been  assigned 
which  it  is  not  necessary  to  recapitulate,  as  the  points  m&terial 
to  be  considered  will  be  noticed  without  reference  to  the  order 
in  which  thej  haye  been  assigned. 

The  first  assignment  is  error  in  oyerroling  the  demurrer.  Thi» 
does  not  require  special  notice.  The  principal  ground  on  which 
the  demurrer  rests  is  the  supposed  entireiy  of  the  contract  and 
the  want  of  legal  claim  against  the  defendant  fzom  a  perform-^ 
ance  which  is  only  partial.  This  view  was,  howeyer,  not  urged 
in  the  argument.  It  was,  in  effect,  conceded  that  the  plaintifP 
had  a  good  cause  of  action,  and  that  he  was  entitled  to  payment 
tor  the  work  done  by  him,  though  but  a  partial  performance  of 
the  contract^  but  the  measure  of  his  recoyeiy,  or  the  criterion 
by  which  to  ascertain  its  amount,  is  the  subject  of  controyersj 
between  the  parties. 

The  court  in  its  chaige  instructed  the  juiy  that  the  plaintiff 
was  entitled  to  recover,  for  the  work  actually  performed,  what 
it  was  worth  at  the  rate  he  was  to  receive  for  the  entire  work*, 
had  ho  completed  the  job  according  to  this  contract  with  th» 
defendant.  The  defendant  contends,  and  prayed  the  jury  b» 
BO  instructed,  that  the  measure  of  plaintiff's  recovery  was  th» 
amount  of  the  contract,  less  the  reasonable  and  fair  amount  de* 
fendant'had  to  pay  for  completing  the  job.  And  we  are  of 
opinion  that  the  rule  as  contended  for  by  defendant  was  the 
true  criterion  by  which  the  rights  of  parties  should  have  beeu 
adjusted. 

The  presumption  is,  that  the  defendant  has  suffered  damages 
from  the  failure  of  the  plaintiff  to  perform  the  contract.  He 
was  not  at  liberty,  however,  to  reject  the  work  done  and  refuse 
to  make  any  payment.  He  had  already  accepted  the  work  as 
it  progressed.  It  was  beneficial  to  him,  and  be  was  liable  for 
its  value.  But  for  what  more  was  he  liable?  Had  the  plaintiff 
completed  the  contract,  he  could  not  have  demanded  more  thaa 
the  conventional  price  fixed  upon  the  work.  Had  the  plaintiff^ 
when  disabled  by  sickness,  employed  another  to  fini'ih  the  job» 
he  could  not  have  recovered  more  than  the  price  originally 
agreed  upon  by  the  contract.  It  would  have  been  immaterial  to 
the  defendant  whether  such  subcontract  would  have  been  to 
the  detriment  of  the  plaintiff  or  not — whether  it  would  have 
diminished  or  absorbed  all  the  profits  arising  from  the  work 
already  done.  Had  such  been  the  fact,  it  would  have  formed 
no  ground  to  increase  the  charges  as  against  the  defendant,  or 
Vo  vaiy  or  enlarge  the  amount  to  be  paid  by  him. 


t854]  HiLLTABD  t;,  GkABTBSx's  Adm^  477 

Does  ihe  fact  that  the  defendant  was  himself  oompelled  to 
•employ  a  workman  to  finish  the  job  vaiy  or  enlaxge  his  li»- 
liilities,  so  far  as  the  plaintiff  is  to  be  affected  ?  We  think  not. 
Whether  he  or  the  plaintiff  employ  another  workman,  the  nlti- 
mate  liability  of  the  defendant  is  the  same;  and  that  is  for  no 
more  than  he  originally  agreed  to  pay  for  the  entire  work. 

The  subject  of  entire  contracts  for  service  in  part  performed 
received  a  thorough  inyestigation  in  the  case  of  BriUon  t.  2lir- 
ner,  6  N.  H.  481  [26  Am.  Dec.  713].  And  in  cases  analogous  to 
the  present,  the  rule,  as  laid  down  by  that  court,  is  to  the  effect 
that  in  case  a  contract  is  broken  by  the  fault  of  the  parly  em- 
ployed, after  part  performance  has  been  received,  the  employer  is 
entitled,  if  he  so  elect,  to  put  the  breach  of  the  contract  in  defense 
for  the  purpose  of  reducing  the  damages  or  showing  that  noth- 
ing is  due;  and  the  benefit  for  which  he  is  liable  to  be  charged, 
in  that  case,  is  the  amount  of  value  received,  if  any»  beyond  the 
amount  of  damage;  and  the  implied  promise  which  the  law  wiU 
raise  is  to  pay  such  amount  of  the  stipulated  price  as  remains 
after  deducting  what  it  cost  to  procure  a  completion  of  the  whole 
eervice,  and  also  any  damage  which  has  been  sustained  by  reason 
of  the  non-fulfillment  of  the  contract. 

The  damage  in  cases  of  the  character  of  the  one  before  the 
court  would  he,  generally,  only  the  amoui^t  paid  for  the  com- 
pletion of  the  job;  and  the  defendant  is  not  entitled  to,  nor  does 
he  by  the  instruction  ask  for,  more  than  he  was  fairly  and  reason- 
ably compelled  to  pay. 

The  other  errors  are  of  minor  character,  and  will  be  disposed 
of  very  briefly.  We  are  of  opinion  that  the  receipts  were  admis- 
fiible  in  evidence,  and  that  the  order  for  twenty-five  dollars 
should  not  have  been  rejected.  The  useless  irons,  and  lumber 
cut  up  and  spoiled,  are  not  to  be  allowed  to  the  defendant  at 
their  full  value  as  estimated  by  the  witness.  If  retained  by  de- 
fendant, they  may  be  useful  for  some  purpose,  though  not  for 
the  mill  or  gin,  and  their  value  should  be  allowed  the  plaintiff. 

Judgment  reversed  and  cause  remanded. 

Reversed  and  remanded. 


MiAsirBs  ov  RioovEET  IK  Cabm  or  Past  PnooBMAirosov  Spmial  Bcild- 
DTG  Cosmuor:  See  JieKinneif  v.  Sprimgtr^  54  Am.  Deo.  470;  Qka»on  ▼. 
Smiiht  57  Id.  62,  and  notes  to  these  cases  oolleoting  prior  decisions  In  this 
series.  The  principal  case  was  cited  in  (Toncolef  College  y.  McHvgh^  21  Tex. 
259,  to  the  point  that  if  worit  contracted  to  be  done  was  considerably  advaaoed 
•towards  a  oompletioo,  and  there  was  no  complaint  that  it  was  not  in  aooord» 
with  the  oontract  so  lar  aa  it  was  completed,  then  the  role  that  the  eoii 


478  BosB  t;.  Houston.  {TexBB^ 

ployee  is  entitled  to  veoorer  the  oontnuit  prioe,  le«  what  It  would  take  to 
eomplete  the  Job^  would  be  oorreot,  m  being  the  most  direet  wiy  of  eetimating 
the  value  of  the  aenrioea  rendered*  On  the  apportionment  of  entire  oontraoti^ 
9B6PaUermmY.0affe,M  Am.  Deo. 96;  AtfeAtnaoii  y.  WeUnore,  Id.  Z!fl i  MUUr 
r.  Ooddard,  Id.  638;  WnuUad  y.  Seid,  67  Id.  671;  Coe  r.  Smiih,  68  Id.  618; 
Harmon  r.  Salmon  FaJU  Mfg.  Oo.^  Id.  718.  The  principal  oaae  waa  cited  in 
CarrUv.  Wekh,  26  Tex.  149,  to  the  point  that  the  doctrine  of  the  earlier  deda* 
iona,  to  tlie  effoot  that  where  building  and  analogoua  oontraota  are  entire 
performance  by  tlie  employee  is  »  condition  preoedenti  and  he  has  no  remedy 
nntQ  he  has  fully  performed  his  part,  is  not  now  the  recQgniaed  doctrine  in 
Texas;  and  in  I£oUi$  y.  Cftapnum,  86  Id.  6,  it  is  dted,  among  others,  as  set- 
tling the  question  of  the  apportlonability  of  contracts. 


Ross  V.  HOXJBTON. 

[UTms,a9A.] 

BiTAiun  Pbopkktt  of  Husband  ob  Wnrx  kued  hot  mm  Pubibtkd  ur 
Spboix  or  kind  to  maintain  its  character  as  such,  in  Texas.  It  will  re- 
main separate  property,  although  it  has  undergone  mutations  and  changes* 
so  long  as  it  can  be  clearly  and  indisputably  traced  and  identified. 

PBomssoRT  NoTB  IS  SxpARATi  Pbopkbtt  OF  WiFB  when  given  by  the 
maker  to  a  third  person,  who  had  knowledge  of  the  wife's  rights.  In  ex- 
change for  one  executed  to  the  husband  and  wife,  in  payment  of  the  pur- 
chase price  of  land  acquired  by  the  wife  by  inheritance. 

AonoN  on  a  promissoiy  note  by  Houston  against  the  maker. 
A  petition  in  intervention  was  filed  by  Mrs.  Boee,  who  alleged 
that  certain  land,  acquired  by  her  by  inheritance  from  her 
father,  was  conveyed  by  her  and  her  husband  to  the  defendant* 
who  executed  to  them  his  note  for  the  purchase  price;  and  that 
the  plaintiff  and  the  husband,  to  defraud  the  intervenor  of  her 
rights,  surrendered  the  note  to  the  defendant,  and  received  in 
exchange  the  note  in  suit,  made  payable  to  the  plaintiff,  who 
knew  that  the  consideration  was  the  intervener's  separate  prop- 
erty. The  intervenor  claimed  the  note  sued  upon,  and  prayed 
judgment  for  its  amount,  but  the  court  sustained  a  general  de- 
murrer to  the  petition,  and  gave  judgment  for  the  plaintiff. 

TT.  A.  Leigh,  for  the  plaintiff  in  error. 

Yoakum  and  Branch,  for  the  defendant  in  error. 

By  Court,  Whsxleb,  J.  The  question  to  be  determined  is, 
whether  the  note  given  for  the  purchase  money  of  the  wife'i 
separate  property  was  also  the  separate  property  of  the  wife. 
And  this  question,  it  is  conceived,  has  been  settled  by  the  re- 
peated decisions  of  this  court.  It  has  been  decided  not  only 
that  property  received  in  exchange  for  the  separate  property  of 


1864.]  BosB  V.  Houston.  479 

one  of  the  parties  to  the  nuptial  contract  remaiiui  aepaiate  prop- 
erty; but  that  property  purchased  with  money  which  was  ob- 
tained upon  the  sale  of  the  separate  property  of  either  husband 
or  wife  also  remains  separate  property:  Love  t.  Boberison,  7  Tex. 
6  [56  Am.  Dec.  41];  UcMyre  t.  Chappell,  4  Id.  187.  The  con- 
sequence is,  that  to  maintain  the  character  of  separate  property 
it  is  not  necessary  that  the  property  of  either  husband  or  wife 
should  be  preserved  in  specie  or  in  kind.  It  may  undergo  mu- 
tations and  changes,  and  still  remain  separate  property;  and 
so  long  as  it  can  be  clearly  and  indisputably  traced  and  iden- 
tified, its  distinctive  character  will  remain. 

If  the  averments  of  the  petition  of  the  intervenor  be  true-^ 
as  for  the  purpose  of  considering  their  legal  sufficiency  on  de- 
murrer they  are  to  be  taken  to  be— the  note  sued  on  was  the 
separate  property  of  the  party  intervening;  and  this  was  known 
to  the  plaintiff  when  he  obtained  it.  Such  knowledge,  brought 
home  to  the  plaintiff  by  proof,  would  enable  her  to  assert  her 
title  as  against  him.  It  would  perhaps  be  otherwise  if  he  was 
a  bona  fide  purchaser  or  indorsee  without  notice  of  the  wife's 
ownership.  But  here  his  knowledge  of  her  rights  is  expressly 
charged  and  averred.  The  averments  of  the  petition  appear  to 
us  sufficient  to  enable  the  party  intervening  to  maintain  her 
action;  and  we  are  of  opinion  that  the  court  erred  in  sustaining 
the  demurrer. 

The  judgment  is  therefore  reversed  and  the  cause  remanded. 

Reversed  and  remanded. 


SiFABATK  PBOPBBTV  Of    HUSBAlin  OB  WlTl    NBBD    HOV    Bl    PbBBBBVBB 

Off  Spboib  OB  Kind  to  mainUun  its  character  as  such  and  prevent  its  becom- 
ing oommiinity  property:  Xooe  v.  Robertson,  56  Am.  Dea  41,  and  note;  Dt^ 
poM  ▼.  Ma^  49  Id.  88;  hat  see  Stucesahn  of  Packwood,  43  Id.  230;  the  lan- 
guage of  the  principal  case  on  this  point  is  quoted  in  Peck  y.  Vandenberg,  30 
GaL  88.  The  separate  property  of  the  wife  remains  such,  whatever  changes 
it  may  undergOt  >o  long  as  it  can  be  clearly  traced:  WiUianu  v.  Turner,  50 
Tex.  143;  Hall  v.  Hall,  52  Id.  299;  so  property  purchased  with  money  which 
vested  in  the  husband  as  his  separate  estate  remains  such:  Oliver  v.  Robert' 
son,  41  Id.  425;  and  a  promissory  note  given  a  wife  in  payment  for  lands  of 
her  separate  estate  is  her  separate  property,  and  parties  having  notice  of  her 
rights  would  acquire  no  valid  title  to  the  note  through  the  unanthorized  aot 
of  her  husband:  HamiUon  v.  Brooka,  51  Id.  145;  but  if  property  has  not  been 
preserved  in  specie  or  kind,  but  has  undergone  mutations  and  changes,  it  is 
indispensable,  to  maintain  its  separate  character,  that  it  be  dearly  and  indis- 
putably traced  and  identified:  Chapman  v.  AUa^  16  Id*  288.  The  principal 
died  to  the  foregoing  pdnts. 


480  BoBoraoK  u  MgDokaldl  Ilhn^ 

ROBIKSON   V.  MoDONALD. 

[UTnAS,885.] 

YuTDBB  OF  GbionnnTT  ItAim  is  Entitled  to  All  of  SuBTimro  Hus* 
bavdVi  JimKMtn  thkbbih,  nnd^r  a  sale  by  the  latter,  together  with 
danuiges  for  breMh  of  oontraot  to  convey  the  whole.  Sneh  interert  wfl!, 
in  gmunlf  be  one  half;  altfaoagh  it  seems  that  the  vendee  is  entitled  to 
the  benefit  of  any  oredite  in  favor  of  the  hnsband  for  payment  of  oom« 
mnnity  debts,  and  shoold  have  the  whole  of  the  tract  allotted  to  him,  if 
upon  the  partition  of  the  community  property  it  does  not  exceed  the 
moiety  to  which  the  hnsband  is  entitled,  and  the  rights  of  other  oo-ten« 
^  ants  be  not  injnrionsly  affected  thereby. 

Tbnant  in  Gomkon  Who  Makbs  Impbovbmbi tb  on  Land,  believing  him- 
self the  sole  owner,  dionld,  it  seems,  on  partition,  be  allotted  that  por- 
tion of  the  land  on  which  the  improvements  are,  or  be  oompenaated 
therefor  if  such  allotment  can  not  be  made  with  due  regard  to  the  rights 
of  his  co-tenants. 

VlNDXB  MAT  EnFOBCB    PeBFOSMANOB,   IN    BiSTBICT  COTTBT,   OF    CONTBAOl 

TO  CoNVBT  CoMmrNiTT  Land,  in  Texas,  as  against  the  vendor's  widow 
and  heirs,  althongh  the  vendor  has  since  died,  and  the  succession  and 
administration  of  his  estate  is  still  open  in  the  coonty  conrt,  and  the 
vendee  has  been  appointed  administrator.  The  vendee's  claim  is  not  a 
money  demand  which  must  be  presented  to  and  allowed  by  an  adminis- 
trator, or  which  the  vendee,  being  himself  administrator,  must  file. 

SpBGono  pexf ormanoe  of  a  contract  for  the  sale  of  land,  againsi 
the  widow  and  heirs  of  William  McDonald.  The  petition,  at 
amended,  alleged  that  McDonald  had  executed  hia  bond  to 
convey  to  the  plaintiff  certain  lands  purchased  and  paid  for  by 
McDonald,  but  deeded  to  his  then  wife,  Finetta  McDonald, 
who  paid  no  part  of  the  purchase  price.  It  was  further  alleged 
that  McDonald  had  afterwards  died,  that  the  plaintiff  had  been 
appointed  his  administrator,  and  that  valuable  improY^nenta 
of  a  permanent  character  had  been  made  on  the  land  by  the 
plaintiff.  The  children  of  McDonald's  first  wife  alleged  that 
the  land  was  sold  to  the  plaintiff  after  their  mother's  death. 
The  evidence  showed  that  the  property  was  community;  that 
the  sale  to  the  plaintiff  was  made  by  the  deceased  after  the 
death  of  his  first  wife;  and  that  the  plaintiff  had  made  perma- 
nent improvements  of  a  certain  value.  The  court  dismissed  the 
petition,  for  the  reasons  stated  in  the  opinion 

Yoakum  and  Branchy  for  the  appellant. 

W.  A.  Leigh,  for  the  appellees^ 

By  Court,  Hxkphill,  C.  J.  The  defandants  in  error  uge 
that  the  bond  constituted  a  money  demand  against  the  estate, 
and  redress  for  its  breach  should  have  been  sought  in  the  pro* 


1354.]  BOBINSOK  V.  McDONALDi  481 

bate,  and  not  in  the  district,  oourt  The  plaintiff  ocmtenda  that 
he  was  entitled  to  relief  in  the  district  court,  and  ahonld  have 
had  a  decree  for  a  moieiy  of  the  land,  with  damages  for  the  Talue 
of  the  other  moiety,  or  that  damages  for  the  whole  should  ha^a 
been  allowed.  That  the  plaintiff  is  entitled  to  all  the  interest 
which  the  deceased  yendor  had  in  the  land,  or  could  have  legally 
or  equitably  claimed,  is  not  to  be  questioned.  For  aught  that 
appears,  this  would  be  one  half,  inasmuch  as  he  is  entitled  to 
one  half  of  the  communiiy  generally,  the  children  of  the  wife 
being  entitled  to  the  other  half.  No  inquiry  was  made  as  to  the 
existence  of  debts  at  the  dissolution  of  the  community  by  the 
death  of  the  wife,  or  whether  any  of  these  were  paid  by  the  sur- 
yiving  husband,  and  what  credits,  if  any,  he  was  entitled  to  for 
such  payments,  and  how  much  on  equitable  principles  his  share 
of  the  community  might  be  increased  to  reimburse  him  for  such 
expenditures.  These  equities  were  not  the  subject  of  examina- 
tion, and  there  were  probably  no  facts  to  raise  such  claims  on 
Che  part  of  the  suryiving  husband  or  his  yendee.  The  record, 
then,  shows  a  case  in  which  the  surriving  husband,  and  through 
him  his  yendee,  is  entitled  to  one  half  of  the  tract  of  land  in 
oontroyersy ;  and  on  partition  he  would,  on  equitable  principles, 
be  entitled  to  that  portion  on  which  he  had  made  his  improye- 
ments,  or  if  that  with  due  regard  to  the  rights  of  others  coidd 
not  be  assigned  to  him,  then  to  compensation  for  such  improye- 
ments. 

Should  it  be  ascertained  on  the  partition  of  the  community 
property  that  the  whole  of  this  tract  would  not  exceed  the 
moiety  or  share  to  which  the  husband  is  entitled,  then,  if  the 
rights  of  the  other  co-tenants  be  not  injuriously  affected,  the 
whole  should  be  assigned  to  the  husband,  or  to  the  yendee  repre- 
senting his  rights:  2  Story's  Eq.  Jur.,  sees.  666,  657.  At  all 
eyents,  the  yendee  has  a  claim  on  the  one  half  of  the  tract.  His 
right  to  that  can  not  be  resisted  on  any  matter  apparent  on  the 
record,  or  which  was  in  contemplation  of  the  parties  to  the  suit; 
and  his  prayer  for  title,  to  that  extent,  should  haye  been  granted. 

But  he  is  entitled,  not  only  to  the  interest  which  the  deceased, 
as  part  ewner  of  the  community,  had  in  the  tract  of  land,  but 
to  damages  for  the  breach  of  coyenant  to  conyey  good  title  to 
the  whole  of  the  land.  This,  as  we  haye  seen,  must  be  specific- 
ally enforced,  so  far  as  the  yendor  had  title,  and  for  the  deficiency 
— that  is,  for  the  remaining  half — ^he  must  be  compensated  in 
damages. 

The  facta  that  the  property  belonged  to  the  community,  and 

Am.  Deo.  Vol— LXII  31. 


482  Robinson  v.  McDonald.  [Texany 

that  the  saooession  of  McDoiuild  is  Btill  opeiii  are  stated  in  the 
judgment  as  grounds  for  the  dismissal  of  the  petition.  There 
is  probably  some  mistake  in  the  entry.  The  dismiflsal  of  the 
petition  is  not  warranted  by  the  facts  as  stated.  That  the  land 
belonged  to  the  community  could  not  depriye  the  yendee  of  the 
right  or  extent  of  interest  which  the  yendee  had  at  the  time  of 
the  sale^  either  legally  or  equitably,  in  the  land.  Whether  the 
succession  of  McDonald  was  open  or  not  is  a  fact  which  could 
not  materially  affect  the  rights  of  the  plaintiff.  He  claims  under 
a  sale  made  before  McDonald's  death,  and  for  a  specific  perform- 
ance of  a  contract. for  title;  and  to  this  he  is  entitled,  at  least  in 
part.  He  is  not  claiming  (at  least  not  wholly)  as  a  creditor,  but 
as  a  purchaser  prior  to  the  death  of  the  yendor. 

From  suggestions  in  the  arguments,  it  may  be  inferred  that 
the  action  of  the  court  below  was  based  on  the  opinion  that  the 
plaintiff  must  prosecute  his  redress  in  the  couniy  court.  But  this 
claim  is  not  properly  cognizable  in  that  court.  It  is  not  a  money 
demand,  at  least  not  exdusiyely  so,  and  is  not  to  be  included  in 
that  class  of  claims  which  must  be  presented  to  and  allowed  by 
an  administrator,  or  which,  as  the  plaintiff  is  himself  the  ad* 
ministrator,  must  be  filed  under  article  1242  of  the  digest. 

It  is  ordered,  adjudged,  and  decreed  that  the  judgment  of 
the  court  below  be  reyersed  and  the  cause  remanded  for  a  new 
trial. 

Beyersed  and  remanded. 

Rkpaihh  bt  Go-tbnamt. — ^At  the  oommon  law,  a  tenant  in  oonunon  or  Joial 
tenant  of  a  house  or  mill  who  desired  an  unwilling  oo-tenant  to  assist  him  in 
making  necessary  repairs  might  have  a  writ  de  reparaHone  fadenda  for  that 
purpose:  Co.  Lit  64  b;  Id.  200  b;  2  Story's  Eq.  Jur.,  sec.  1235;  4  Kent's 
Com.  370;  1  Washb.  Real  Prop.  421;  Freeman  on  Cotenancy  and  Partitioii, 
see.  261;  bat  it  appears  that  this  writ  was  confined  to  the  case  where  a  hoose 
or  mill  fell  into  decay:  Bowks'  Case,  11  Co.  82  b;  Carver  t.  MUler,  4  Mass. 
659;  Loring  v.  BcLcan,  Id.  676,  576;  and  it  lay  against  a  co-tenant,  and  not 
against  a  reversioner:  Carver  v.  Miller,  ntpra.  The  theory  of  the  common 
law  was  that  the  owners  of  mills  and  houses  were  bound  pro  bono  ptihUeo 
to  maintain  them,  they  being  for  the  habitation  and  use  of  men.  It  was 
doubted,  however,  by  Parsons,  C.  J.,  in  the  case  last  cited,  whether  this 
doctrine,  as  applied  to  the  repair  of  mills,  had  any  foroe  in  this  countty, 
especially  since  the  provincial  statute  of  7  Anne,  c  1,  re-enacted  by  the  Mass. 
Stat  1795,  c.  74,  providing  that  if  a  part  owner  will  repair  against  the  consent 
of  his  co-tenants,  he  shall  look  to  the  profits  only  for  reimbursement  Koi> 
withstanding  the  dicta  to  the  contrary,  in  Doane  v.  Badger^  12  Mass.  651 
Coffin  V.  HtaJth,  6  Met  76,  80;  and  Mun^ord  ▼.  Brown,  6  Cow.  476;  S.  C, 
16  Am.  Dec.  640,  it  seems  clear  from  the  thorough  investigation  of  the  quae- 
tion  in  Calvert  v.  Aldrich,  99  Mass.  74,  that  the  writ  de  reparaUone  was  a 
process  confined  to  compel  repairs  to  be  made  under  order  of  eouri,  and  ooold 


1854.]  BoBiNSON  V.  McDoNAUX  488 

not  be  oroag^t  to  reoorer  a  pfroportion  of  the  ezpenae  of  repaln  alraady 
made  by  a  oo-tenaot.  The  oonrt  here  regarda  the  writ  aa  obsolete,  and  holda 
that  a  tenant  in  common,  who  makes  necenary  repairs  npon  the  oommoa 
property  without  the  consent  of  his  oo-tenant,  can  not  maintain  an  action  at 
law  against  the  latter  for  contribution.  In  Doant  v.  Badger^  wpra,  Jackson, 
J.,  was  of  the  opinion  that  the  action  on  the  case  was  a  substitute  for  the 
writ;  but  in  this  case,  as  well  as  in  Muatford  v.  Brown^  mipn^  it  was  held 
that  a  tenant  in  common  was  not  liable  for  repairs  made  by  a  co-tenant,  with- 
out a  previous  request  and  a  refusal  to  join.  The  liability  of  a  co-tenant  for 
repairs  made  without  his  assent  seems  to  be  denied  by  other  cases:  See  KidU 
der  V.  Bia^ord,  16  Vt.  160;  S.  C,  42  Am.  Dec  501;  and  see  Stevens  ▼.  Thomp- 
•on,  17  N.  H.  103;  but  is  maintained  by  the  following:  Denman  y.  Prinee^  40 
Barb.  213;  Fowler  y.  Fowler^  50  Conn.  256;  S.  C,  17  Rep.  235;  McDearman 
▼.  McClure^  31  Ark.  550;  the  last  case  holding  that  where  one  tenant  in  oom* 
mon,  on  the  refusal  of  the  others  to  join  him,  makes  necessary  repairs  for  the 
benefit  and  preservation  of  the  joint  property,  he  may  maintain  a  bill  in 
equity  against  his  co-tenants  for  contribution;  and  it  has  even  been  held  that 
when  houses  situated  upon  joint  property  are  idling  to  decay,  a  tenant  who 
makes  reparation  is  not  only  entitled  to  contribution,  but  has  a  lien  on  the 
interestB  of  his  co-tenants,  especially  if  they  refuse,  or  being  under  disability 
are  unable  to  consent,  to  bear  their  share  of  the  expense:  Alexander  v.  ElU- 
tan,  70  Ky.  148.  The  correctness  of  the  ruling  of  these  latter  cases,  particn- 
larly  the  one  in  Kentucky,  with  reference  to  the  lien  acquired,  it  seems  to  us, 
may  well  be  doubted:  See  Freeman  on  Cotenancy  and  Partition,  seo.  261.  It 
is  held,  on  the  other  hand,  that  where  a  tenant  in  common  with  minors,  who 
had  no  guardian  at  law,  made  necessary  and  v^Juable  repairs,  in  which  tb* 
maternal  guardian  of  the  minors  acquieeced,  such  tenant  is  not  entitled  to  the 
exclusive  possession  of  the  premises  until  reimbursed  for  the  amount  expended 
by  him  in  making  the  repairs:  Young  v.  Oammd,  4  G.  Greene,  207.  The 
assent  of  a  co-owner  to  necessary  repairs  may  be  presumed  under  peculiar 
circumstances,  and  from  a  prior  course  of  dealing  between  the  parties:  Haven 
v.  Mehlgarten,  10  111.  01.  While,  as  seen  from  the  above,  the  cases  are  at 
variance  on  the  question  whether  a  co-tenant  may  recover  from  his  fellow- 
tenants  a  proportion  of  the  cost  of  repairs  made  by  him,  if  an  action  or  bill 
for  an  accounting  for  rents  and  profits  be  brought  against  him,  the  decisi<»a 
are  unanimous  ou  the  proposition  that  he  is  entitled  to  a  proper  allowance  for 
necessary  repairs:  Anderaon  v.  OrMe,  1  Ashm.  136;  Dech*8  Appeal,  57  Pa. 
St.  467;  Hannan  v.  Othom,  4  Paige,  336, 343;  Qoodenow  v.  Ewer,  16  Cal.  461| 
but  whether  this  doctrine  extends  to  repairs  other  than  those  which  are  abso- 
lutely necessary  for  the  preservation  and  economical  use  of  the  property  is 
questionable. 

Improvkmbhts  bt  Co-tenant,  Bight  to  Contbibution  vob.— A  co- 
tenant  can  not  recover  from  his  feUow-tenants  a  share  of  the  expense 
incurred  by  him  in  making  improvements  upon  the  common  property, 
in  the  absence  of  an  express  assent  on  their  part,  or  of  such  circum- 
stances or  dealings  between  the  parties  as  will  convince  the  court  that 
an  understanding  existed  to  the  effect  that  the  expenses  were  to  ^e  re- 
paid: Freeman  on  Cotenancy  and  Partition,  sec.  262; .  1  Washb.  Real 
Pkop.  421;  Crtat  v.  Jack,  3  Watts.  238;  S.  Q,  27  Am.  Deo.  353;  LmtwOie  v. 
Menard,  1  Gilm.  30;  S.  C,  41  Am.  Dec.  161;  Thuraton  v.  Diehmmm,  2  Rich. 
Eq.  317;  S.  C,  46  Am.  Dec  56;  Becnel  v.  Beenel,  23  La.  Ann.  150;  Sueced^ 
don  qf  Morgan  v.  Morgan,  Id.  502;  Bayley  v.  Denny,  26  Id.  257;  Converm 
V.  Ferre,  11  Mass.  325;  Taylor  v.  Baldwin,  10  Barb.  582;  fUeeem  ▼.  Tkomp* 


484  BoBiKSOK  V.  McDonald.  [Texas. 

«ofs  17  K.  H.  108;  DeUet  y.  WkUner,  Gheves  Eq.  213;  Stan  r.  Mmmm,  23 
Iowa,  380;  Bamamrt  v.  Da;iri»^  66  G*.  504;  Walter  t.  Ortenwoodt  29  Hinn. 
67;  S.  0.,  12  N.  W.  Bap.  145;  but  ne  Ptrey  ▼.  MUlawian,  6  Mart,  N.  8.,  616; 
8.  C,  17  Am.  Dee.  196.  If  a  co-tenant  aQthoricei,  aflaents  to^  or  aoqnieeoes 
in  improvements,  he  is,  of  coaru,  clearly  chaigeable  with  hie  proportion  of 
the  coet:  BaM  y.  Jaclaon^  98  IlL  78;  PreHike  t.  Janmn,  79  N.  T.  478; 
489;  8.  C,  9  Bep.  449;  and  where  oo-tenants  agree  to  make  "necessary  im- 
proTements,*'  they  are  such  as  are  proper,  fit,  and  adiyted  to  the  accomplish* 
ment  of  the  object  in  view:  Heed  ▼.  JaneB^  8  Wis.  421.  Whether  in  any 
case  the  claim  for  contribution  extends  beyond  the  personal  responsibility  of 
the  co-tenant,  in  the  absence  of  an  express  contract  to  that  effect,  is  to  be 
doubted.  The  right  to  a  lien  upon  the  premises  for  advances,  except  by  ex- 
press agreement,  was  denied  in  Taylor  v.  Baldwin^  10  Barb.  582;  but  in  Boiird 
¥•  Jckckaonf  98  IlL  78,  the  doctrine  was  affirmed  that  where  a  tenant  in  common, 
with  the  express  assent  of  his  oo-tenaat,  improves  the  conmion  property,  he 
thereby  acquires  a  lien  on  the  interest  of  the  latter  for  a  proportionate  shars 
of  the  post  of  the  improvements,  which  lien  waa  an  accession  to  the  interest 
of  the  former,  and  inured  to  the  benefit  of  a  trustee  under  a  deed  of  trust 
given  by  him  on  the  property.  Where  two  joint  tenants  agree  that  one 
shall  erect  improvements  on  their  property,  and  have  a  lien  on  the  intereat  ol 
the  other  for  the  money  so  expended,  the  agreement,  with  the  actual  erectiao 
of  the  improvements  by  the  one  and  the  acquiescence  by  the  other,  constitutes 
mtok  a  lien  as  will  be  enforced  in  equity;  but  the  lien  is  not  valid  as  against 
a  creditor  of  the  latter  who  has  caused  his  interest  to  be  attached,  or  a  pur> 
ehaser  under  such  attachment,  whether  the  creditor  or  the  puzchaser  had 
aotioe  of  the  lien  or  not:  Houston  v.  MeCluney,  8  W.  Va.  135. 

Allowakcb  fob  Ibcfbovements  in  AonoN  vob  Aooount. — "Improva- 
mentB  made  by  one  co-tenant,  independent  of  any  agreement  so  to  do,  may 
•ometimes  be  proper  matter  to  be  considered  in  taking  an  account:"  Free- 
man on  Cotenancy  and  Partition,  sec.  279;  Jh^ffhers  v.  Xetois*  £x*rs,  7  Leigfa^ 
720;  S.  C,  30  Am.  Dec  513;  Cooper  v.  Cooper,  1  Stock.  Ch.  566;  Nelton  v. 
Leake,  25  Miss.  199.  "  But  under  what  circumstances,  and  to  what  extent, 
improvements  may  be  considered  in  taking  an  account  between  co-tenants, 
can  not  be  stated  with  desirable  precision.  It  is  probable,  however,  that 
they  will  not  be  made  a  subject  of  compensation  unless  they  are  of  a  usual 
character,  and  are  necessary  for  the  ordinary  and  economical  use  of  the  prop- 
arty:"  Freeman  on  Cotenancy  and  Partition,  sec  279.  In  the  corresponding 
case  of  repairs,  it  seems  clear,  as  stated  above,  that  an  allowance  will  only  be 
made  for  such  as  are  really  necessary  for  the  preservation  and  enjoyment  of 
the  property.  A  co-tenant,  however,  is  not  to  be  charged  with  rents  and 
profits  of  improvements  made  by  him:  NeUoiC§  Heirt  v.  Clay'e  Heira,  7  J* 
J.  Marsh.  138;  S.  C,  23  Am.  Dec  387;  ThompBtm  v.  BotUck,  McMulL  Eq. 
75;  Holt  4k  Carr  v.  Bobineon,  Id.  475;  Anndy  v.  De  Sauature^  17  8.  C.  388; 
NeU  V.  Shackelford,  45  Tex.  119,  133. 

Allotment  or  or  Allowance  for  Imfbovbmxnts  on  Pastition. — ^While 
a  co-tenant  will  not  be  compelled  to  pay  a  proportionate  ahare  of  the  expense 
of  making  improvements  which  he  did  not  authorize,  if  the  lands  are  sought 
to  be  partitioned,  that  portion  upon  which  they  are  made  should,  if  practicable, 
and  possible  without  injustice  to  the  co-tenants,  be  assigned  to  the  tenant  wha 
has  made  them,  without  regard  to  the  increased  value  of  the  lands  due  to  the 
Improvements;  and  if  this  can  not  be  done,  he  should  be  compensated  by  an 
Increased  quantity  of  land,  or  in  some  other  way;  or  if  the  lands  are  sold,  he 
li  entitled  to  the  actual  increase  of  price  caused  by  the  improvenMnti.   Theaa 


1854.]  Robinson  v,  McDonald.  .  485 

propositioiui  are  established  by  the  following  anthoritiea:  IVeeman  on  CoteB> 
anoy  and  Partition,  sees.  509,  610;  1  Story's  Eq.  Jar.*  see.  655;  Sanden  t. 
J?o6eHMm,  57  Ala.  465;  Drenman  y.  Waiktr,  21  AA.  SS»i  Stale  r.Scto^  96  Ctd. 
102;  Lauvalle  y,  Menard,  1  Gilm.  39;  S.  C,  41  Am.  Deo.  160;  Hawey  t. 
CMngt,  13  III.  95;  S.  C,  54  Am.  Deo.  427;  Dean  y.  C^Meara,  47  111.  120; 
Kvrto  y.  HUmer,  55  Id.  514;  JfoAoncy  y.  Mahoney,  65  Id.  406;  WUton  ▼. 
ToBtweU,  86  Id.  31;  MartmdaJU  v.  Alexander,  26  Ind.  106;  Patrick  ▼.  Mar* 
ehaO,  2  Bibb,  40;  S.  C,  4  Am.  Deo.  670;  Hares  Devisees  t.  Hawking  Heirs, 
t  Bibb,  602,  510;  Bespass  y.  Breeienridg^s  Heirs,  2  A.  K.  Marsh.  581;  TfttiU 
ers  y.  Thompson,  4  T.  B.  Mon.  323;  ^omA  ▼.  Archer,  7  Dana,  176,  177; 
Brookfield  v.WiUiams,  1  Oreen  Ch.  341;  Ohert  t.  06ere,  1  Halst  Ch.  397; 
Dtmghaday  v.  CroweU,  3  Stock.  Ch.  201;  HaU  y.  Piddoek,  21  N.  J.  Eq.  311; 
llVtm  y.  NeedJiam,  3  Paige,  545;  8.  C,  24  Am.  Deo.  246;  St.  FeUx  y.  RaMn^ 
8  Edw.  Ch.  323,  324;  CMUtn  y.  CofiH«i»,  3  Sandf.  Ch.  64»  60;  HUcheoek  y. 
Skinner,  Hoff.  Ch.  21,  28;  Oreen  y.  PtOnam,  1  Barb.  500;  Pope  v.  Whitehead^ 
68  N.  C.  191;  CoZ^ett  y.  Henderson,  80  Id.  337;  WilUman  v.  Holmes,  4  Rich. 
Bq.  476;  Broyles  y.  Waddd,  11  Heisk.  32;  /^eeeet  y.  i?ee«M,  Id.  669;  Swan  y. 
Asan,  8  Price,  518;  Wood  y.  Wood,  16  Grant  Ch.  471;  Biehn  y.  ^teAn,  18  Id. 
487;  Hovey  y.  ^cf^TiMm,  Id.  498;  bat  see  NelstnCs  Heirs  y.  Claj^s  Heirs,  7  J. 
J.  Manh.  138;  S.  C,  23  Am.  Dec  387;  Hancock  y.  Day,  1  McMnlL  Eq.  69; 
8.  C,  86  Am.  Dec.  393.  The  principad  case  is  cited  to  this  effect  in  NeU  y. 
Shacieelford,  45  Tex.  133;  Taney  y.  Batte,  48  Id.  58»  82;  and  see  Clemens  y. 
Laey,  61  Id.  162.  So  where  two  tenants  in  common  of  land  made  a  joint 
mortgage  thereof,  and  one  of  them  afterwards  released  his  interest  to  the 
mortgagee,  who  made  improyements  npon  part  of  the  land  with  the  knowl- 
edge of  the  mortgagor,  on  a  bill  to  redeem,  by  the  assignee  of  the  latter,  the 
oeart  ordered  that  portion  to  be  assigned  to  him  on  which  no  improyements 
had  been  made:  Crc^  y.  Crafts,  13  Gray,  360.  And  where  the  owner  in  fee 
of  one  half  of  a  mill  property  executed  a  deed  of  tmst  thereon  to  secnre  debts 
owing  to  two  persons  seyerally,  one  of  the  creditors  being  the  owner  of  the 
other  half,  and  who,  after  the  execution  of  the  deed  of  trust,  went  into  poa 
session,  run  the  mill,  and  made  yaluable  improyements  thereon,  it  was  held, 
OB  a  bill  by  the  other  creditor  to  foreclose  the  deed,  that  it  was  but  equitable 
that,  so  far  as  the  price  which  it  might  bring  at  the  sale  should  be  enhanced 
by  the  improyements,  the  party  making  them  should  be  refunded:  Oardner 
y.  Deiderichs,  41  Dl.  171.  In  Maine  the  question  under  consideration  is  reg- 
idated  by  the  following  statute:  "  When  one  of  the  tenants  in  common,  l^ 
mutual  consent,  has  had  the  exdusiye  possession  of  a  part  of  the  estate,  and 
made  improyements  thereon,  his  share  shall  be  assigned  from  or  including 
such  part;  and  the  yalue  of  the  improyements  made  by  a  tenant  in  common 
shall  be  considered,  and  the  assignment  of  shares  be  made  in  conformity 
therewith: "  R.  S.,  c  88,  sec.  16.  The  construction  put  upon  this  statute  isp 
that  if  the  tenant  in  common  has  exclnsiye  possession  of  a  part  of  the  prem- 
lass  by  mutual  consent,  and  has  made  improyements  thereon,  his  share  should 
be  assigned  from  such  part  or  including  it;  but  if  the  possession  was  with- 
oat  consent,  he  is  neyertheless  entitled  to  the  benefit  of  the  improyements, 
bot  can  not  daim  to  haye  his  share  set  apart  so  as  to  include  them:  AUen  r. 
HdO,  50  Me.  253;  Beed  y.  Beed,  68  Id.  568.  In  the  early  South  Carolina 
•aae  of  ^oiioodk  y.  Day,  1  McMnlL  Eq.  69;  8.  C.,S6  Am.  Deo.  293,  the  right 
cf  a  oo-tenant  to  compensation  for  improyements  was  denied  in  a  suit  for 
partition.  Becent  decisions  of  the  same  court  hold  that  if  improyements  are 
made  nnder  the  ''honest  conyiction''  of  exdusiye  ownershipi  the  partim- 
prayed  shooldt  if  possible,  be  assigned  to  the  tenant  making  them,  witfaoal 


486  BoBiKSON  V.  McDonald  (Teza^ 

referenoe  to  their  value;  or  if  the  knd  is  sold,  he  Bhoold  have  to  mnch  of  tho 
proceeda  aa  were  dne  to  the  improyementa,  in  addition  to  hia  otherwiae  mp- 
propriate  share:  Scaife  y.  Tkonuon^  16  8.  C.  337;  Annely  y.  De  Samuure,  17 
Id.  389. 

In  Alabama,  compenaation  for  improvements  can  not  be  made  beyond  the 
rente  charged  against  the  co-tenant  making  them:  Ormond  v.  Martin,  37  Ala, 
508,  606;  Norton  v.  SUdge,  29  Id.  478,  498.  But  the  general  rale  nndoabt- 
edly  is,  that  an  assent  on  the  part  of  the  co-tenants  need  not  be  shown,  nor  ia  It 
neoeaaaiy  to  show  a  previous  request  and  refusal:  Freeman  on  Cotenancy  and 
Fkurtition,  sec.  510;  Oreen  v.  Putnam,  1  Barb.  500;  MariindaU  v.  Alexander, 
^  26  Ind.  105;  Drennan  v.  IValher,  21  Ark.  639;  HaU  v.  Piddock,  21  N.  J.  Eq. 
311.  A  correct  summary  of  the  law,  we  conceive,  on  this  subject,  ia  that  made 
by  the  supreme  court  of  New  York  in  <?reen  v.  Putnam,  1  Barb.  600:  "  Where 
one  tenant  in  common  laya  out  money  in  improvementa  on  the  estate,  although 
the  money  so  expended  does  not,  in  atrictnessy  constitute  a  lien  on  the  eatatd^ 
yet  a  court  of  equity  will  not  grant  a  partition  without  first  directing  an  ac- 
count and  a  suitable  compensation;  or  else  in  the  partition  it  will  assign  to 
such  tenant  in  common  that  part  of  the  premises  on  which  the  improvements 
have  been  made.  To  entitle  the  tenant  in  common  to  an  allowance  on  a  psjv 
tition  in  equity,  for  the  improvementa  made  on  the  premises,  it  does  not 
appear  to  be  necessary  for  him  to  show  the  assent  of  his  co-tenanta  to  such 
improvements,  or  a  promise  on  their  part  to  contribute  their  ahare  of  the 
expense;  nor  is  it  necessary  for  them  to  show  a  previous  request  to  join  in 
the  improvements,  and  arefusaL"  "The  only  good  faith  required  in  such 
Improvementa  is  that  they  should  be  made  honestly  for  the  purpose  of  im- 
proving the  property,  and  not  for  embarrassing  hia  co-tenants,  or  incumber- 
ing their  estate,  or  hindering  partition.  And  the  fact  that  the  tenant  making 
such  improvements  knows  that  an  undiyided  share  in  the  land  ia  held  by  an- 
other is  no  bar  to  equiUble  partition:'*  HaU  v.  Piddock,  21  N.  J.  Eq.  311; 
but  compare  the  remarks  in  NtUon^e  Hetrs  v.  Clay*§  IfeirSp  7  J.  J.  Marsh. 
138;  S.  C,  36  Am.  Dec.  293.  The  case  of  ScoU  v.  Owmeeif,  48  N.  Y.  106, 
however,  tends  very  strongly  to  impair  the  authority  of  Oreen  v.  Putnam,  1 
Barb.  500.  A  tenant  in  common  of  a  reversion  had,  by  an  arrangement  with 
the  tenant  for  life,  erected  buildings  considerably  enhancing  the  value  of  the 
property,  and  had,  before  the  death  of  the  tenant  for  life,  reoeived  rents  suffi- 
cient to  repay  him  the  original  outlay  with  interest.  In  a  subsequent  action 
for  partition,  in  which  compensation  for  these  improvements  was  claimed 
from  the  co-tenanta,  Leonard,  C,  said:  '* There  was  no  consent,  mistake,  or 
other  equitable  ground  in  this  case  for  relieving  a  party  who  made  hia  invest- 
ment with  full  knowledge  of  the  facts,  voluntarily,  and  without  any  induce- 
ments offered  by  other  co-tenanta.  Had  the  appellants  offered  to  share  their 
rents,  upon  being  paid  a  due  proportion  of  the  value  of  the  improvements, 
after  the  termination  of  the  life  estate,  it  might  have  afforded  a  better  ground 
to  chdm  compensation.  The  appellants  are  not  within  the  reason  of  any  of  the 
adjudged  cases,  where  relief  has  been  granted  in  partition  for  money  expended 
in  improvementa  by  one  of  several  tenants  in  common.  If  the  land  has  been 
really  enhanced  in  value  by  the  improvementa,  the  appellants  are  in  better 
plight  than  atrangers,  as  they  will  receive  their  pro  raia  share  of  the  increased 
proceeds  of  the  sale.  The  owner  can  not  be  called  upon  to  afford  indemnity  or 
compensation  for  money  expended  by  a  stranger  for  improvementa,  if  he  had 
full  knowledge  of  the  risk  he  was  encountering  when  they  were  made." 

If  the  value  of  improvements  is  to  be  computed,  the  prooess  is  to  allow, 
Bot  their  oost,  but  the  value  they  impart  to  the  premises:  nreoman  on  OotsA« 


1854]  Jones  v.  Holudat.  487 

•ncy  and  F^urtttkn,  mo.  610;  Moore  v.  IfiSiaiMoii,  10  BIbh.  Bq.  828;  and 
a  claim  for  nse  and  oocnpation  may  bo  aet  off  agabist  rq^ain  and  improro- 
ments  made:  Freeman  on  Cotenancy  and  Partition,  aeo.  610;  Tetudah  ▼. 
Sandenon^  33  Beay.  634;  Sowoh  v.  Seed,  19  HL  21, 28.  For  a  caae  in  whioh 
the  subject  of  improvements  was  dismissed  from  consideration  in  maVing 
partition,  for  the  reason  that  their  cost  and  relative  valne  ooald  not  be  asosr- 
tftined,  owing  to  the  volantaiy  commingling  of  aocoonts,  see  Ccumpbell  ▼. 
Campbell,  21  Mioh.  488.  Buildings  rightfully  erected  up<Hi  the  common  prop> 
crty  by  one  of  the  tenants  in  poaBession  for  his  own  use,  after  a  oo-tenant  has 
filed  Ms  petition  for  a  division,  can  not  be  apprsased  by  the  commissioners  in 
estimating  the  value  of  the  entire  property,  and  thereby  give  to  the  petitioner 
a  share:  Pareona  v.  Cqpekmd,  88  Me.  637. 

Thx  psingipal  cask  u  citbd,  in  addition  to  NeU  v.  8hache(ford,  46  Teoc. 
183;  Taney  v.  Baite,  48  Id.  68,  82;  Cflemene  v.  Lacy,  61  Id.  162,  as  above,  in 
Johneon  v.  Harrieon,  48  Id.  262,  to  the  point  that  if  nothing  more  than  a 
■ale  of  community  land  by  a  surviving  husband  is  shown,  the  wife's  heirs  are 
entitled  to  one  half.  See  also  Taney  v.  BaUe,  Id.  67,  66.  But  if  after  filing 
by  the  surviving  husband  of  the  inventory  required  by  statute  he  is  about 
to  waste  the  common  property,  though  the  heirs  may  apply  to  the  court  for 
protection,  their  failure  to  do  this  can  work  no  forfeiture  of  their  rights  to 
property  sold  illegally  by  the  husband  before  the  inventory  was  filed:  Ofj/m 
V.  West  Ford,  60  Id.  606,  distinguishing  the  principal  case.  The  statute  re- 
quiring the  presentation  of  claims  against  the  estates  of  decessed  persons  to 
tiie  administrator  before  suits  can  be  brought  upon  them  is  not  applicable  to 
a  contract  to  convey  land,  or  for  the  recovery  of  damages  on  the  breach  of 
■noh  a  contract:  BvBion  v.  Campbell,  26  Id.  666,  citing  the  principal 
to  this  point. 


Jones  v.  Holliday. 

[U  Tblab,  413.] 
CONBIBBBATIQH   Of   COHTBAOT   HOT   UNDKB    SkAL   MUST   U  AyBBBBD  Aim 

Pbotkd  if  the  oontraot,  as  set  forth  or  desoribed,  does  not  of  itself  aflbid 
evidence  of  a  consideration,  as  in  the  case  of  n^pytiable  paper,  and  eon- 
tracts  expressing  or  adndtting  a  consideration  in  writing. 

O0N8U>EBATIOH  FOB  ACOIFTANCB  07  OrDEB  BT  PRINCIPAL  ON  AOINT  MUVf 

BB  Atxbbed  and  Fbovbd,  in  an  action  on  the  acceptance,  when  the 
order  accepted  was  to  deliver  to  a  third  person  a  certain  amount  of  cot- 
ton by  a  certain  day;  although  it  seems  that  the  request  of  the  principal 
was  a  sufficient  consideration  for  the  undertaking  of  the  agent. 

AonoN  by  HoUiday  against  Jones  on  the  acceptance  of  the  fol- 
lowing order,  alleging  that  it  was  given  for  a  valuable  considera- 
tion: ''Mr.  Jesse  Jones.  Please  deliver  to  Mr.  Holliday  fifteen 
bales  of  cotton,  weighing  five  hundred  pounds  each,  by  the  first  of 
November,  and  oblige  Bandolph  Foster.  September  26, 1861. 
Accepted.  J.  Jones."  The  defendant  demurred  to  the  petition 
because  it  did  not  allege  in  what  the  consideration  consisted, 
but  the  demurrer  was  overruled.  The  defendant  also  answered, 
%vening  that  he  was  but  the  agent  of  Foster,  to  whom  the  cot- 


488  Jones  v.  Holudat.  [Texafl^ 

ton  belonged,  and  who  was  fhe  party  really  interested,  and  that 
the  order  was  without  consideration.  Foster  was  permitted  to 
become  a  parly  defendant  against  the  plaintiff's  objection,  and 
adopted  the  answer  of  his  co-defendant.  The  order  and  proof  of 
the  value  of  cotton  at  the  time  was  the  only  evidence  introduced. 
The  court  was  requested  to  instruct  the  jury  that  the  order  did 
not,  of  itself,  import  a  consideration,  and  that  a  consideration 
must  be  averred  and  proved  in  order  that  the  plaintiff  might  re- 
cover, but  the  instruction  was  refused.  A  verdict  and  judgment 
for  the  plaintiff  was  given  against  the  defendant  Jones,  a  new 
trial  was  refused,  and  the  defendants  appealed. 

Jones  and  BaUinger,  for  the  appellants. 

N.  H,  Munger,  for  the  appellee. 

By  Court,  Wheeleb,  J.  The  question  is,  whether,  to  entitle 
the  plaintiff  to  recover,  it  was  necessary  for  him  to  aver  and 
prove  a  consideration  for  the  order  on  which  the  suit  was  brought. 
A  consideration  is  essential  to  the  validity  of  a  simple  contract, 
whether  it  be  verbal  or  in  writing.  This  rule  applies  to  all  con- 
tracts not  under  seal,  with  the  exception  of  bills  of  exchange  and 
negotiable  notes,  after  they  have  been  negotiated  and  passed  into 
the  hands  of  an  innocent  indorsee :  2  Kent's  Com. ,  5th  ed. ,  464.  In 
contracts  under  seal,  a  consideration  is  implied  in  the  solemnity 
of  the  instrument.  And  bills  of  exchange  and  promissory  notes 
are  of  themselves  prima  facie  evidence  of  a  consideration,  and 
in  this  respect  are  distinguished  from  all  other  parol  contracts: 
MandeviUe  Yi  Welch,  5  Wheat.  277.  As  to  all  other  contracts,  if 
the  consideration  be  not  expressed  or  admitted  in  the  writing, 
it  must  be  proved:  Arms  v.  Ashley,  4  Pick.  71 ;  Tingley  v.  Cutler, 
7  Conn.  291.  All  contracts  are  by  the  law  distinguished  into 
agreements  by  specialty  and  agreements  by  parol.  If  they  be 
merely  written  and  not  specialties,  they  are  parol  contracts,  and 
a  consideration  must  be  proved:  Bonn  v.  Eughes,  7  T.  B.  850, 
note  a;  People  v.  SJuiU,  9  Cow.  778;  Burnet  v.  Bisoo,  4  Johns. 
235;  Thacher  v.  IXnsmore,  5  Mass.  801  [4  Am.  Deo.  61];  Brown 
V.  Adams,  1  Stew.  51  [18  Am.  Dec.  86];  Beverleys  v.  Holmes,  4 
Munf.  96. 

It  has  been  held  that  an  admission  in  a  contract  in  writing 
that  it  was  made  for  a  valuable  consideration  is  prima/aoie  evi- 
dence of  a  sufficient  consideration  to  support  it:  WyaU  v.  JSi&I^ 
16  Me.  894. 

In  the  present  case,  however,  the  writing  contains  no  such 
admission.    Had  it  been  expressed  to  be  for  value  received,  thai 


1854]  Jones  v.  Holudat.  489 

might  htufe  been  held,  as  an  admission,  sufficient  eridenoe  of  a 

consideration  to  support  the  judgment. 

The  acceptance  of  the  order  was  an  admission  on  the  part  of 
Jones  that  he  had  in  his  possession  the  cotton  of  Foster;  and 
as  between  them  was  a  sufficient  consideration  for  the  under- 
taking of  Jones,  at  the  request  of  Foster,  to  deliyer  the  cotton. 
But  as  between  the  plaintiff  Stolliday  and  the  defendants^  we 
see  nothing  in  the  case  to  take  the  contract  sued  on  out  of  the 
general  rule  applicable  to  parol  contracts,  that  the  consideratioii 
must  be  averred  and  proved. 

In  declaring  upon  such  a  contract,  the  rule  under  the  com- 
mon-law system  of  pleading  is  that  the  consideration  upon 
which  it  is  founded  must  be  stated,  and  must  appear  to  be 
legally  sufficient  to  support  the  promise  for  the  breach  of  which 
the  action  is  brought.  The  declaration  must  disclose  a  con- 
sideration, or  the  promise  will  appear  to  be  a  nudum  pactum^ 
and  the  declaration  will  consequently  be  insufficient:  1  Oh. 
PI.  821;  Douglass  y.  Davis,  2  McCord,  218;  Powell  y.  Brown, 
8  Johns.  100;  Burnet  y.  Bisco,  4  Id.  285;  Bailey  y.  Freeman, 
Id.  280.  On  principle,  the  same  specialty  would  seem  to 
be  required  by  the  rules  of  pleading  which  we  have  adopted. 
Where  the  contract  affords  of  itself  evidence  of  a  consideration^ 
it  will  be  sufficient  to  set  it  out  or  describe  it  in  the  petition; 
for  then  the  petition  will  disclose  in  the  contract  itself  a  suffi- 
cient consideration  prima/acie  to  support  the  action,  and  will 
consequently  be  sufficient  without  any  other  statement  of  a  con- 
sideration. But  where  the  contract  does  not  afford  such  evi- 
dence, t^  e  consideration  must  be  stated.  The  application  of 
these  principles  to  the  present  case  would  have  required  the 
court  to  sustain  the  demurrer  to  the  petition  and  to  have 
awarded  a  new  trial  on  account  of  the  insufficiency  of  the  evi- 
dence. 

We  think  it  was  proper  to  permit  Foster  to  become  a  party 
defendant.  He  was  a  party  in  interest,  and  therefore  properly 
a  party  to  the  suit.  That  the  plaintiff  was  not  required  to  join 
him  as  a  defendant  in  the  suit  did  not  deprive  him  of  the  right, 
if  he  saw  proper,  to  become  a  party.  But  for  the  reasons  before 
stated,  we  are  of  opinion  that  the  judgment  be  reversed  and  the 
eaose  remanded. 

Beversed  and  remanded. 


OONSIDKBATIOK  OW    OONTRAOT  NOT    Vm>VtL  SkAL  HVBV  BS  FBOVBD:    Ccok 

T.  BratUeif,  18  Am.  Deo.  79;  Bean  ▼.  Burbankt  33  Id.  681;  bat  a  promiie  in 
writing,  for  yalae  reoeived,  to  pay  money,  imports  a  ooneideratum:  Jfeiforrii 


49S  Fowler  v.  Stoneuil  [Texas^ 

wagons,  mnlefii,  and  horses,  are  to  be  worked  by  fhe  said  Benja- 
min H.  Halstead,  during  the  time  herein  specified,  for  the  pay* 
ment  of  the  sums  of  money  and  the  interest  annually;  provided^ 
nevertheless,  that  the  said  Benjamin  H.  Halstead  shidl  punc- 
tually pay,  at  the  periods  aboye  specified,  to  George  Stoneum, 
his  heirs,  executors,  administrators,  or  assigns,  the  several  suma 
of  money  respectiyely  above  mentioned,  with  interest  as  afore- 
said, and  shall  confine  the  property,  while  in  his  employ,  to  the 
county  of  Montgomery;  but  should  he  not  comply  with  the  first 
of  these  requisitions,  then  George  Stoneum,  and  in  his  absence 
his  agent,  shall  sell  so  much  of  the  property,  at  public  or  pri- 
vate sale,  as  may  be  considered  best  by  them,  as  will  meet  the 
payments  according  to  this  indenture.  And  should  he  attempt 
to  remove  the  property  from  the  county  of  Montgomeiy ,  George 
Stoneum,  or  his  agents,  in  his  absence,  are  to  take  the  property 
into  their  immediate  possession,  by  virtue  of  this  indenture,  and 
the  titles  to  the  same  said  property  shall  be  absolute  in  Geoige 
Stoneum,  his  heirs  or  assigns,  by  virtue  of  the  aforesaid  bill  of 
sale/'  The  defendants  Fowler  and  Olepper  alleged  in  their 
original  and  amended  answers  that  the  transactions  between 
Halstead  and  Stoneum  were  without  consideration,  and  made 
for  the  purpose  of  defrauding  Halstead'e  creditors,  and  that  the 
defendauts  purchased  the  slaves  from  Halstead  for  a  valuable 
consideration;  but  it  appeared  that  they  had  notice  at  the  time 
of  the  conveyance  from  Halstead  to  Stoneum,  which  they  alleged, 
if  of  any  validity,  was  only  so  as  a  mortgage.  By  the  amended 
answer,  filed  May  28, 1849,  it  was  alleged  that  the  plaintiff,  on 
May  SO,  1847,  wrongftilly  and  forcibly  dispossessed  the  defend- 
ants of  the  slaves,  and  they  asked  that  if  the  instrument  in  ques- 
tion be  held  to  be  a  mortgage,  that  the  hire  of  the  slaves  be  de- 
ducted from  the  amount  due  thereon,  and  if  nothing  be  due, 
that  they  have  judgment  therefor.  The  defendants  also,  by  a 
plea  in  reconvention,  filed  November,  1849,  asked  damages  for 
an  alleged  trespass  committed  by  the  plaintiff  in  dispossessing 
them  of  the  slaves,  on  June  1, 1847.  The  court  adjudged  the 
answer,  in  so  far  as  it  sought  to  impeach  the  plaintiff's  title  on 
the  ground  that  it  was  procured  to  defraud  the  creditors  of 
Halstead,  and  it  was  further  held,  as  set  forth  in  the  bill  of  ex« 
ceptions,  that  **  all  and  every  part  of  amended  answer  of  the  de- 
fendants Fowler  and  Clepper,  filed  on  the  twenty-eighth  of 
May,  1848,  which  avers  a  trespass  on  the  part  of  the  plaintiff, 
in  taking  the  negroes  in  controversy,  be  stricken  out  and  dis- 
allowed."    Certain  evidence  offered  by  the  defendants,  and 


1854.]  Fowler  v.  Stonxuk  498 

rejected,  sufficiently  appears  in  the  opinion.    The  plaintiff  had 
a  Yerdict  and  judgment,  and  the  defendants  appealed. 

J.  Sayles,  B.  C.  Fnxnkiin^  and  H.N.andlL  M.  PoUer,  forthe 
appellants. 

P.  W.  Oray,  for  the  appellee. 

Bj  Court,  Whiklbb,  J.  The  reoord  presents  a  multiplioitj 
-of  rulings  and  exceptions,  which  have  been  assigned  as  error. 
But  the  yiew  we  entertain  of  the  principal  questions  in  the  case, 
which  involve  the  merits  of  the  controvert,  and  on  which  its 
ultimate  decision  must  depend,  will  dispense  with  the  necessiiy 
of  considering  all  these  various  rulings  which  relate  to  questions 
of  practice  and  the  admissibility  of  evidence,  and  will  become 
immaterial  bj  our  judgment  on  the  merits. 

The  rulings  of  the  court  which  it  is  deemed  material  to  con- 
aider  are:  1.  The  striking  put  of  certain  portions  of  the  defend- 
ants answer;  2.  The  rejection  of  evidence  offered  by  the  de- 
fendants; and  8.  The  refusal  of  instructions  asked  by  them. 

1.  The  proprieiy  of  the  ruling  on  the  sufficiency  of  the 
answer  depends  upon  the  inquiiy  whether  it  was  competent  for 
the  defendants,  being,  as  appears  by  their  answer,  purchasers 
with  notice  of  the  alleged  fraudulent  conveyance  from  Halst^ead 
to  Stoneum,  to  avoid  that  conveyance,  on  the  ground  that  it  was 
made  to  defraud  creditors.  This  involves  an  inquiry  as  to  the 
true  construction  of  the  second  section  of  the  act  to  prevent 
frauds  and  fraudulent  conveyances:  Earths  Dig.,  art.  1462. 
This  statute  embraces  the  substance  of  the  second  section  of 
the  statute  of  18  Eliz. ,  c.  6,  and  27  Eliz. ,  c.  4.  It  is  proper,  there- 
fore, to  consult  the  decisions  of  the  English  and  American  courts 
upon  the  construction  of  those  statutes,  in  determining  upon 
the  construction  to  be  given  to  our  statute  upon  the  same  sub- 
ject. By  the  statute  of  13  Elisabeth,  gifts  of  goods  and  chattels 
made  to  defraud  creditors  were  rendered  void  as  against  the 
persons  defrauded  thereby.  The  statute  of  27  Elizabeth  was 
made  to  prevent  fraudulent  conveyances  of  hmds  to  defeat  sub- 
sequent purchasers:  Roberts  on  Fraudulent  Conveyances,  c.  1, 
sec.  1,  notes  a,  b;  2  Kent's  Oonu  440.  Our  statute  embraces 
both  objects.  It  declares  that  "  every  gift,  grant,  or  convey- 
ance of  lands,  slaves,  tenements,  hereditaments,  goods,  or  chat- 
tels," etc.,  made  "to  delay,  hinder,  and  defraud  creditors  of 
their  just  and  lawful  actions,  suits,  debts,"  etc. ,  "  or  to  defraud 
or  to  deceive  those  who  shall  purchase  the  same  lands,  slaves," 
oto.,  "  shall  be  deemed  and  taken  only  as  against  the  person  oi 


\ 


494  FowLEB  V.  Stoxsum .  [Tezasi 

persons/'  etc.,  **  whose  debts,  suits,  demands,  estates,  intexests," 
shall  or  may  be  thereby  ''disturbed,  hindered,  delayed,  or  de* 
frauded,  to  be  clearly  and  utterly  void.'' 

The  statute  thus  protects  the  rights  of  creditors  and  subse- 
quent purchasers,  as  fully  and  effectually,  and  very  nearly  in 
the  same  terms,  as  they  were  protected  by  the  statutes  of  IS  and 
27  Elizabeth;  and  it  extends  its  protection  to  subsequent  pur- 
chasers of  slaves  as  well  as  of  lands.  In  reference  to  the  con- 
struction of  the  statute  of  27  Elizabeth,  Judge  Story  says:  ''  It 
was  for  a  long  period  of  time  a  much  litigated  question  in  Eng« 
land  whether  the  effect  of  the  statute  was  to  avoid  all  voluntary 
conveyances  (that  is,  all  such  as  were  made  merely  in  consideration 
of  natural  love  and  affection,  or  were  mere  gifts),  although  made 
bona  fide  in  favor  of  all  subsequent  purchasers,  with  or  without 
notice;  or  whether  it  applied  only  to  conveyances  made  with  a 
fraudulent  intent  and  to  purchasers  without  notice.  After  no 
inconsiderable  diversity  of  judicial  opinion,''  he  adds,  "  the  doc- 
trine has,  at  length,  been  established  in  England  (whether  in 
conformity  with  the  language  or  intent  of  the  statute  is  exceed- 
ingly questionable),  that  all  such  conveyances  are  void  as  to  sub- 
sequent purchasers  with  or  without  notice,  although  the  original 
conveyance  was  bona  fide  and  without  the  slightest  admixture  of 
intentional  fraud;  upon  the  ground  that  the  statute  in  every 
such  case  infers  fraud,  and  will  not  suffer  the  presumption  to 
be  gainsaid.  The  doctrine,  however,  has  been  admitted  to  be 
full  of  difficulties,  and  it  has  been  confirmed  rather  upon  the 
pressure  of  authorities  and  the  vast  extent  to  which  tities  have 
been  acquired  and  held  under  it  than  upon  any  notion  that  it 
has  a  finn  foundation  in  reason  and  a  just  construction  of  the 
statute.  The  rule  stare  decisis  has  been  applied  to  give  repose 
and  security  to  tities  fairly  acquired  upon  the  faith  of  judicial 
decisions.  In  America,"  he  adds, ''  a  like  diversity  of  judicial 
opinion  has  been  exhibited.  Chancellor  Kent  has  held  the  Eng- 
lish doctrine  obligatory  as  the  true  result  of  the  authorities. 
But  at  the  same  time,  he  is  strongly  inclined  to  the  opinion 
that  where  the  purchaser  has  had  actual  (and  not  merely  con- 
structive) notice,  it  ought  not  to  prevail:"  1  Story's  Eq.  Jur., 
sees.  426, 427. 

Since  the  case  in  which  Chancellor  Kent  delivered  the  opin- 
ion referred  to  by  Judge  Story,  the  English  doctrine  has  not 
been  followed  to  that  extent  in  New  York.  It  was  there  opposed 
by  the  opinion  of  Chief  Justice  Spencer,  the  doctrine  of  whose 
opinion  has  since  been  asserted  in  the  supreme  court  of  thai 


1864.]  FowLEB  V.  Stoneuil  495 

state:  Verplanky.  Sterry,  12  Johns.  686-659;  Jackmni  t.  !Rnm,A 
Cow.  608,  604  [16  Am.  Deo.  406];  Seward  y.  Jackmm,  8  Id.  406. 
Tho  supreme  court  of  the  United  States,  in  the  case  of  Gaihcari 
▼.  Bobinson,  6  Pet.  264,  declined  to  adopt  the  then  received  Eng^ 
iish  construction  of  the  statute.  The  court  (Ohief  Justice  Mar- 
shall deUvering  their  opinion)  held  that  the  received  construe* 
tion  of  statutes  in  England  at  the  time  thej  were  adopted  and 
admitted  to  operate  in  this  country,  and  up  to  the  time  of  our 
separation  from  Enghmd,  might  veiy  properly  be  considered  as 
accompanying  the  statutes  themselves  and  forming  an  integral 
part  of  them;  but  that,  however  they  might  respect  subsequent 
decisions,  the  court  did  not  admit  their  absolute  authority. 
They  therefore  adopted  the  construction  of  the  statute  which 
prevailed  at  the  American  revolution,  which,  they  held,  went 
thus  far:  that  ''a  subsequent  sale,  without  notice,  by  a  person 
who  had  made  a  settlement,  not  on  a  valuable  consideration, 
was  presumptive  evidence  of  fraud,  which  threw  on  the  party 
claiming  under  the  settlement  the  burden  of  proving  that  it  was 
mHde  bma  Jide: "  Id.,  280,  281. 

It  seems  that  the  rigorous  doctrine  at  that  time  understood  to 
be  the  established  construction  at  Westminster  hall,  and  as 
stated  in  the  text  quoted  from  Story,  has  been  since  relaxed  br 
the  English  courts:  2  Kent's  Com.,  5th  ed.,  241,  note  c.  And  it 
is  believed  that  this  doctrine,  that  a  subsequent  sale  for  a  valu- 
able consideration,  by  a  person  who  had  made  a  voluntazy  con- 
veyance, is  conclusive  evidence  that  the  former  conveyance  vtbb 
fraudulent,  and  void  even  as  to  purchasers  with  notice,  has  not 
been  adopted  generally  by  the  American  courts;  but  that  the 
better  American  doctrine  is  that  such  subsequent  sale  is  only 
prima  facie  evidence,  which  may  be  rebutted  by  showing  that 
the  former  conveyance  was  made  in  good  faith,  and  not  inten- 
tionaUy  to  defraud:  4  Id.  464,  note  d;  2  Id.  440-442,  and  notes; 
Tiayn^s  Case,  1  Smith's  Lead.  Cas.  8&>  and  Am.  notes;  1  Story's 
Eq.  Jur.,  sec.  7;  and  this  accords  with  the  doctrines  maintained 
by  this  court  in  the  case  of  Bryan  v.  Kellon,  1  Tex.  416. 

In  the  conflict  of  judicial  opinion,  we  feel  free  to  adopt  that 
construction  which  seems  to  us  best  to  comport  veith  the  true 
intent  and  meaning  of  the  statute.  For  whatever  force  there 
may  be  in  the  reason  assigned  for  adhering,  in  England,  to 
their  received  construction  of  the  statute,  that  to  depart  from 
it  would  be  to  unsettle  the  rights  of  property  and  disturb  the 
repose^  of  society,  that  reason  has  no  application  here. 

We  have  not  the  same  reason  to  adhere  to  any  particular 


400  Fowler  hl  Sionxuil  [TezM^ 


ooime  of  dedsions  which  has  constrained  the  TgngliA  oonrtB  to 
apply  to  their  decisions  the  maxim  store  deciBU. 

But  it  is  nnneoeesaiy,  at  present,  to  enter  opon  a  review  of 
the  decisions,  in  order  to  ascertain  what  is  the  better  opinion 
upon  the  oonstmction  of  the  statute,  or  what  should  be  held  to 
be  its  effect  upon  voluntary  conveyances,  generally,  in  reference 
to  subsequent  purchasers.  We  are  at  present  only  concerned 
with  the  question  whether  a  conveyance  intended  to  defraud 
creditors  is  to  be  held  to  be  void,  under  the  statute  as  to  subse- 
quent purchasers  with  actual  notice  of  the  prior  fraudulent  con- 
veyance. Upon  this  question  the  English  doctrine,  and  that  of 
some  of  the  American  courts,  seems  to  be,  that  such  a  conveyance 
is  void  as  to  subsequent  bona  fide  purchasers,  that  is  (it  is  said), 
purchasers  strictly  and  properly  so  called,  whether  with  or  with- 
out notice:  1  Story's  Eq.  Jur.,  sec.  483,  note  2;  Ikoyne^s  due,  1 
Smith's  Lead.  Gas.  33,  and  Am.  notes;  4  Eenf  s  Oom.  4€8.  But 
this  doctrine  as  to  purchasers  with  notice  appears  to  be  founded 
on  the  supposition  that  a  conveyance  made  intentionally  to  de- 
fraud is,  to  all  intents  and  purposes,  absolutely  void,  and  oonae* 
quently  a  nullity.  This  being  assumed,  it  follows,  of  course, 
that  it  is  immaterial  whether  the  subsequent  purchaser  had  notice 
of  it  or  not;  for  if  he  knew  of  its  existence,  he  also  knew,  it  may 
be  said,  that  it  was  void,  and  no  one  is  obliged  to  respect  a  thing 
which  is,  to  every  intent  and  as  to  all  persons,  utterly  and  abso- 
lutely void.  But  this  is  not  the  case  of  [with]  a  fraudulent  con- 
veyance. It  is  valid  and  binding  as  between  the  parties  and 
their  l^gal  representatives.  "Although  voluntary  conveyances 
are,  or  may  be,  void  as  to  existing  creditors,  they  are  perfect 
and  effectual  as  between  the  parties,  and  can  not  be  set  aside 
by  the  grantor,  if  he  should  become  dissatisfied  vrith  the  trans- 
action. It  is  his  own  folly  to  have  made  such  a  conveyance. 
They  are  not  only  valid  to  to  the  grantor,  but  also  as  to  his 
heirs  and  all  other  persons  claiming  under  him  in  privity  of 
estate,  with  notice  of  the  fraud.  A  conveyance  of  this  sort 
(it  has  been  said  with  great  truth  and  force)  is  void  only  as 
against  creditors;  and  then  only  to  the  extent  in  which  it  may 
be  necessary  to  deal  with  the  conveyed  estate  for  their  satisfac- 
tion. To  this  extent,  and  to  this  only,  it  is  treated  as  if  it  had 
not  been  made.  To  every  other  purpose  it  is  good.  Satisfy  the 
creditor,  and  the  conveyance  stands : "  1  Story's  Eq.  Jur. ,  sec.  371 ; 
Curtis  V.  Pricey  12  Yes.  103.  Such  a  conveyance  vests  in  the 
grantee  a  good  and  perfect  title,  defeasible  only  at  the  instance 
of  the  person  to  whose  prejudice  it  has  operated.    ''  It  is  now 


1854.]  FowLEB  V.  Stonsuil  497 

the  settled  Amexiean  doctrine  that  a  bona  fide  porchaaer  for  a 
valuable  consideration  is  protected,  under  tiie  statutes  of  18  and 
27  Elizabeth,  as  adopted  in  this  country,  whether  he  purchases 
from  a  fraudulent  grantor  or  a  fraudulent  grantee:^'  4  Kent's 
Com.  464.  But  if  the  conyeyance  was  absolutely  void,  the 
fraudulent  grantee  could  convey  no  title,  for  none  would  vest 
in  him,  and  the  fraudulent  grantor  could  reclaim  his  property, 
notwithstanding  the  conveyance. 

That  such  a  conveyance  is  not  absolutely  void,  but  is  valid 
and  effectual  to  vest  a  title  in  the  grantee,  and  the  distinction 
between  things  void  and  voidable  only,  are  very  dearly  and  for- 
cibly illustrated  by  Chief  Justice  Spencer  in  the  case  of  Ander* 
9on  V.  Roberts,  18  Johns.  516, 627,  628  [9  Am.  Deo.  236].  "  In 
my  judgment,"  he  said,  "the  error  of  those  who  assert  that  a 
fraudulent  grantee,  under  the  thirteenth  of  Elizabeth,  takes 
no  estate  because  the  deed  is  declared  to  be  utterly  void,  con- 
sists in  not  correctly  discriminating  between  a  deed  which  is 
an  absolute  nullity,  and  one  which  is  voidable  only.  No  deed 
can  be  pronounced  in  a  legal  sense  utterly  void  which  is  valia 
as  to  some  persons  but  may  be  avoided  at  the  election  of  others. 
In  Lilly's  Abr.  807,  Bac.  Abr.,  tit.  Void  and  Voidable,  we  have 
the  true  distinction:  A  thing  is  void  which  is  done  against  law, 
at  the  very  time  of  doing  it,  and  where  no  person  is  bound  by  the 
act;  but  a  thing  is  voidable  whioh  is  done  by  a  person  who  ought 
not  to  have  done  it,  but  who,  nevertheless,  can  not  avoid  it  him* 
self  after  it  is  done.  Bacon  classes  under  the  head  of  acts  whioh 
are  absolutely  void  to  all  purposes  the  bond  of  a/eme  covert,  an 
infant,  and  a  person  non  compos  merUis,  after  an  office  found  and 
bonds  given  for  the  performance  of  illegal  acts.  He  considers 
a  fraudulent  gift  void  as  to  some  persons  only,  and  says  it  is 
good  as  to  the  donor  and  void  as  to  the  creditors.  Whenever 
the  act  done  takes  effect  as  to  some  purposes,  and  is  void  as  to 
persons  who  have  an  interest  in  impeaching  it,  the  act  is  not  a 
nullity,  and  therefore  in  a  legal  sense  is  not  utterly  void,  but 
merely  voidable.  Another  test  of  a  void  act  or  deed  is,  that 
every  stranger  may  take  advantage  of  it,  but  not  of  a  voidable 
one:  HumphresUm's  Case,  2  Leon.  218;  Yin.  Abr.,  tit.  Void  and 
Voidable,  A,  11.  Again,  a  thing  may  be  void  in  several  degrees: 
1.  Void  as  if  never  done  to  all  purposes,  so  as  all  persons  may 
take  advantage  thereof;  2.  Void  to  some  purposes  only;  8.  So 
void  by  operation  of  law  that  he  that  will  have  the  benefit  of  ii 
BDay  make  it  good:  Via.  Abr.,  tit.  Void  and  Voidable,  A,  18.  In 
Prig  V.  Adams,  2  Salk.  674,  the  defendant  justified  as  an  officer. 

IK.  Pao.  Vol.  LZU-«3 


498  Fowler  u  Stoneum.  [Texaa^ 

under  a  oa.  m.,  on  a  judgment  in  the  common  pleas,  upon  a  yer- 
diot  of  6  8. ,  for  a  cause  of  action  arising  at  Bristol.  The  plaintiff 
replied  the  private  act  of  parliament  for  erecting  the  court  of 
conscience  in  Bristol,  wherein  was  a  clause  that  if  any  person 
bring  such  action  in  any  of  the  courts  at  Westminster, 
and  it  appeared  upon  trial  to  be  under  40  8.,  no  judgment 
should  be  entered  for  the  plaintiff,  and  that  if  it  be  entered,  it 
shall  be  void.  Upon  demurrer  the  question  was  whether  the 
judgment  was  so  far  void  that  the  pariy  should  take  advantage 
of  it  in  this  collateral  action.  The  court  held  that  it  was  not 
void,  but  voidable  only  by  plea  or  writ  of  error.  Upon  au- 
thority, therefore,  I  insist  that  the  expressions  in  the  statutes  of 
18  and  27  Elizabeth,  that  conveyances  in  contravention  of  those 
statutes  shall  be  deemed  utterly  void,  etc.,  must  necessarily  be 
construed  as  voidable  by  the  parly  aggrieved.'' 

It  has  been,  I  apprehend,  from  not  keeping  in  view  this  dis- 
tinction between  a  deed  which  is  void  and  one  which  is  void- 
able only  that  the  opinion  has  prevailed  to  some  extent  that  a 
conveyance  that  is  fraudulent,  and  therefore  declared  to  be  ut- 
terly void  by  the  statute,  is  sb  even  as  to  a  subsequent  purchaser 
with  notice.  It  is  difficult  to  conceive  of  any  other  principle 
on  which  such  an  opinion  could  ever  have  obtained.  There  is 
nothing  in  the  language  of  the  statute,  nor  is  there  any  general 
principle  of  law,  which  would  seem  to  sanction  such  a  doctrine. 
On  the  contrary,  the  language  and  declared  object  of  the  stat- 
ute would  naturally  lead  to  the  conclusion  that  it  was  intended 
to  afford  protection  only  to  creditors  and  bona  fide  purchasers, 
and  such  is  the  language  generally  of  the  books.  But  how  can 
one  be  said  to  be  a  purchaser  in  good  faith  who  purchases 
knowingly  and  intentionaUy  to  defeat  the  previously  acquired 
title  of  another?  In  Sanger  v.  Eastwood^  19  Wend.  615,  it  v^as 
said  by  the  supreme  court  of  New  York  that  a  purchaser  with 
notice  can  not  claim  to  be  a  purchaser  in  good  faith.  **  Olear 
[actual]  notice  of  a  prior  claim,"  it  was  said,  "  is  considered  |)er 
Be  evidence  of  rnaUi  fde^.*'  Proof  of  such  a  fact  ought  rather 
to  predjudice  than  advance  the  claims  of  a  purchaser.  The  gen- 
eral principle  of  law  unquestionably  is,  that  a  purchaser  vritb 
notice  takes  the  estate  of  his  grantor,  and  no  more.  He  ac- 
quires only  such  title  as  the  latter  had  to  convey,  and  he  can 
stand  in  no  better  condition  in  a  court  of  equity.  An  innocent 
purchaser  viithout  notice  is  protected,  upon  a  different  princi- 
ple, from  the  supposed  nullity  of  Vtud  gnuitor's  prior  oonTej* 


1864.]  FowLEB  V.  Stonextic  499 

But  the  dootrine  that  the  purchaser  with  notice  can  avoid  the 
prior  oonyeyance  is  not  uniYeraally  admitted.  There  is  high 
authority  opposed  to  it.  The  supreme  court  of  Pennsylvania, 
in  the  case  of  Faster  y.  Walton,  6  Watts»  478,  determined  the 
eontrary  on  principle  and  upon  reasons  which  seem  unanswer- 
able. They  decided  that  although  a  conveyance  of  hind  may 
be  fraudulent  and  void  as  to  creditors  by  virtue  of  the  statute 
of  13  Elizabeth,  yet  under  that  statute  none  but  creditors  can 
avoid  the  deed,  and  that  the  statute  of  27  Elizabeth  does  not 
a£ford  a  protection  to  a  purchaser  with  notice  of  such  prior  con* 
veyance.  That  was  an  action  of  ejectment,  in  which  both  par- 
ties claimed  under  deeds  from  one  Begister;  Walton  by  a  sub- 
sequent conveyance,  but  with  a  knowledge  of  the  prior  deed  to 
the  plaintiff  Begister,  which  he  sought  to  avoid  on  the  ground 
that  it  was  made  to  defraud  creditors.  On  the  construction  of 
the  statute  of  27  Elizabeth,  as  to  its  application  to  such  a  case, 
the  court  said:  **  If  at  the  time  he  [the  defendant]  bought  the 
land  of  Begister,  or  even  before  he  paid  his  money  for  it,  he 
was  apprised,  as  the  evidence  would  seem  to  show  he  was  fully, 
of  the  prerious  conveyance  of  the  land  by  Begister  to  the 
plaintiff,  then,  according  to  the  construction  put  on  this  latter 
statute,  and  the  principles  laid  down  by  this  court  in  Lancaster 
V.  Dolan,  1  Bawle,  246  [18  Am.  Dec.  625],  the  defendant  has  no 
claim  to  protection  under  it  as  a  purchaser."  This  case  was  de- 
cided after  a  very  able  and  full  discussion  of  the  construction 
which  ought  to  be  given  to  this  statute^  and  is  now  considered 
as  having  settled  the  law  on  this  point  in  Pennsylvania.  The 
chief  justice,  in  delivering  the  opinion  of  the  court  in  it,  shows 
by  a  course  of  reasoning,  and  by  language  that  can  not  be  re- 
sisted or  easily  forgotten,  the  injustice  and  inquity  that  would 
necessarily  follow  from  permitting  a  voluntary  grantor  to  defeat 
his  own  conveyance  by  making  a  subsequent  sale  of  the  hmd, 
because  he  is  paid  for  it.  He  says:  ''  It  is  admitted  that  a  vol- 
untary conveyance  is  good  between  the  parties,  and  it  is  a  com- 
mon principle  of  equity  that  an  assignee  with  notice  must  abide 
by  the  case  of  the  assignor.  But  the  pretended  equity  of  a  sub- 
sequent purchaser  with  notice,  even  as  against  a  volunteer, 
would  spring  from  an  act,  the  consequence  and  design  of  which 
would  be  to  enable  the  donor  to  cheat  the  donee.  The  purchase 
would  be  an  act  of  collusion,  and  all  the  fraud  would  be  on  the 
side  of  the  purchaser: "  Id.  **  It  the  defendant  in  the  present 
case  had  notice  of  the  plaintiff's  conveyance  at  the  time  he 
bought,  or  before  he  paid  his  money,  there  seems  to  be  no  oir* 


600  FOWLEB  V.  SXONSXJIC.  [TezM^ 

cumstanoe  which  he  can  lay  hold  of  that  would  seem  to  relieve 
him  from  the  imputation  of  fraud,  which  is  so  clearly  shown 
here  by  the  chief  justice  to  exist  in  such  a  case  on  the  side  of 
the  subsequent  purchaser.  It  certainly  can  not  be  considered  a 
sufficient  apology  and  justification  for  him,  having  full  notice, 
that  he  purchased  because  the  plaintiff  had  joined  with  B^gister 
in  taking  a  conveyance  from  the  latter  for  the  purpose  of  de- 
frauding his  creditors.  It  is  only  the  party  who  is  likely  to  be 
injured  by  such  conveyance  that  can  claim  to  have  it  annulled; 
but  if  he  does  not  choose  to  stir  in  the  matter,  why  should  any 
other  be  permitted  to  interfere?  Surely  no  good  can  result 
from  it.  The  peace  and  well-being  of  the  commtmity  is  not 
affected  by  the  act,  so  as  to  make  it  a  public  offense;  and  there- 
fore, to  permit  a  person  who  has  no  concern  in  the  matter  to 
take  the  land  from  the  party  to  whom  it  has  been  conveyed  by 
the  most  solemn,  willful,  and  deliberate  act  of  the  owner,  and 
in  effect,  against  the  will  of  the  grantee,  to  give  it  back  in  whole 
or  in  part  again  to  the  grantor,  by  paying  him  its  full  or  half 
value,  would  be  introducing  a  very  extraordinary  principle  into 
our  jurisprudence  for  regulating  and  transferring  the  rights  of 
individuals.  If  such  an  interference  were  sanctioned,  it  would 
be  productive  of  a  new  source  and  continued  state  of  strife  and 
litigation.  Besides,  the  deed  from  Begister  to  the  plaintiff 
being  admitted  by  the  court  below,  and  by  every  one,  to  be  per- 
fectly good  and  binding,  as  between  the  parties  to  it,  to  permit 
the  grantor,  by  selling  the  land  to  one  with  notice,  to  set  it  aside, 
would  involve  the  strange  anomalism  of  enabling  him  to  do  by 
indirect  means  what  he  is  prohibited  from  effecting  directly.  It 
may  also  be  remarked  that  to  permit  this  to  be  done  would  be 
in  contradiction  of  every  principle  of  public  policy  which  makes 
the  act  of  the  fraudulent  grantor  binding  upon  him,  so  far  as 
he  or  his  representatives  are  concerned,  with  a  view  to  deter 
from  and  discourage  such  fraudulent  acts.  But  if  he  can  sell 
the  land  to  whom  he  pleases,  he  is,  in  effect,  the  owner  of  it  still, 
and  has  forfeited  or  lost  nothing  by  his  fraudulent  conduct.  The 
law,  however,  has  no  such  regard  for  him  as  to  enable  him, 
either  directly  or  indirectly,  to  annul  his  own  conveyance, 
though  fraudulent,  with  a  view  to  promote  his  interest,  and  it 
is  only  where  he  has  afterwards  sold  and  conveyed  the  land  to 
an  innocent  purchaser  without  notice  for  a  valuable  considera- 
tion, that  the  law  will  interpose  and  set  the  voluntaxy  or  fraudu- 
lent conveyance  aside,  in  order  to  prevent  a  loss  from  falling  on 
such  innocent  purchaser.    It  is  therefore  out  of  regard  to  this 


1854.]  Fowler  v.  Stoneuh.  501 

latter,  and  not  the  grantor,  that  the  law  deals  thus  with  the 
fraudulent  oouTeyance:''  FfMier  v.  WaUon,  5  Watta,  380,  881. 

To  this  reason  there  is  no  answer  in  any  authority  to  whieh 
we  have  had  reference;  and  it  seems  to  us  that  to  admit  the  op» 
posite  doctrine  would  be  to  hold  out  a  powerful  motiye  and  in- 
ducement to  the  practicing  of  those  frauds  which  it  was  the  ob- 
ject and  intention  of  the  statute  to  preyent,  and  would  thus  defeat 
the  great  piurj^ses  of  public  policy  in  which  it  had  its  origin. 

We  therefore  conclude  that  the  defendants,  being  purchasers 
with  actual  notice  of  the  prior  conyeyance,  are  not  protected  by 
the  statute,  and  that  the  court  did  not  err  in  adjudging  the 
answer,  in  so  far  as  it  sought  to  ayoid  that  conyeyance  on  the 
ground  that  it  was  fraudulent  as  to  creditors,  insufficient. 

The  question  we  haye  now  been  considering  was  decided  by 
this  court  in  the  case  of  McClenny  y.  Floyd,  10  Tex.  159.  That 
case,  howeyer,  was  decided  without  argument  upon  this  point, 
and  at  a  time  when  the  pressure  of  business  afforded  little  op- 
portunity to  examine  the  authorities.  It  has  been  fully  argued 
in  the  present  case,  and  its  importance,  and  the  attention  be- 
stowed upon  it  by  counsel,  haye  seemed  to  require  a  more  crit- 
ical examination,  which  has  resulted  in  confirming  us  in  our 
former  opinion. 

In  the  case  referred  to,  the  conyeyance  from  McOlenny  was 
treated  as  fraudulent.  But  it  was  immaterial,  as  to  the  parties 
then  before  the  court,  whether  it  was  fraudulent  or  merely  yol- 
untary.  In  either  case  it  was  binding  and  effectual  to  pass  the 
title  as  between  the  parties,  as  the  authorities  to  which  we  haye 
referred  abundantly  show. 

2.  The  principal  question  before  the  jury  upon  the  issues  in 
the  present  case  was  as  to  the  character  of  the  instrument  of 
the  twelfth  of  June,  1844,  whether  it  was  a  mortgage  or  not. 
The  court  held  that  it  was  not  upon  its  face  a  mortgage.  If 
it  was  not  a  mortgage  on  its  face,  but  was  in  form  a  condi- 
tional or  an  absolute  sale,  it  is  too  well  settled  to  admit  of  a 
question  that  parol  eyidence  was  admissible  to  show  that  it 
was  in  fact  intended  as  a  security  for  a  subsisting  indebted- 
ness on  the  part  of  the  grantor,  and  was  consequently  in  sub- 
stance a,  mortgage.  How,  then,  it  can  be  supposed  that  the 
eyidence  offered  to  proye  such  indebtedness  was  irreleyant,  or 
what  good  reason  there  could  be  for  the  exclusion  of  eyidence 
by  which  it  was  proposed  to  show  that  at  the  date  of  the  instru- 
ment there  was  a  settlement  of  accounts  between  the  parties, 
and  an  ascertained  antecedent  indebtedness  on  the  part  of  the 


602  FowLEE  V.  Stonbux.  [Tezaff, 

maker  of  the  identical  sum  stipalated  hy  the  instrument  to  be 
paid  by  him,  it  is  not  easy  to  perceive.  This  was  proposing  to 
prove  tiie  fact  which  is  universally  admitted  to  be  the  principal 
test  to  determine  whether  the  instrument  was  a  mortgage  or 
not:  Stamper  v.  Johnson^  3  Tex.  1;  Stephens  v.  Sherrod,  6  Id.  294 
[56  Am.  Dec.  776],  and  authorities  there  cited.  If  this  testi- 
mony had  been  admitted,  it  is  scarcely  possible  to  conceive  that 
any  mind  could  have  resisted  the  conclusion  that  the  instru« 
ment  was  really  given  and  intended  as  a  security  for  the  pay- 
ment  of  money,  and  was  necessarily  a  mortgage.  It  would 
seem,  therefore,  that  there  was  error  in  excluding  the  evidence. 

But  the  ruling  upon  this  question  becomes  unimportant,  in 
the  view  we  entertain  of  the  remaining  question,  upon  the  true 
import  and  character  of  the  instrument  itself. 

8.  It  remains  to  inquire  whether  the  ruling,  upon  instruc- 
tions asked  by  the  defendants,  that  the  instrument  of  the 
twelfth  of  June,  1844,  was  not,  on  its  face  and  in  effect,  a  mort- 
gage, was  correct.  And  to  determine  this  question,  it  is  essen- 
tial to  ascertain  what  was  the  true  character  of  the  instrument, 
and  if  in  our  legal  nomenclature  it  has  a  place  and  name,  to 
ascertain  what  is  its  distinctive  character  and  appropriate  name. 

It  may  be  the  most  convenient  method  of  arriving  at  a  satis- 
factory conclusion  on  this  point  in  the  first  place  to  see  what  it 
is  not.  We  may  premise  that  it  must  be  either  an  absolute  or 
conditional  bill  of  sale,  a  contract  to  sell  or  convey,  or  a  mort- 
gage. Our  legal  vocabulaiy  affords  no  other  specific  designa- 
tion by  which  it  may  be  supposed  to  be  appropriately  charac- 
terized. 

It  has  not  been,  nor  can  it  be  pretended  that  it  is,  an  absolute 
bill  of  sale.  Its  terms  and  several  stipulated  conditions  import 
the  contrary.  It  is  not  a  conditional  sale,  for  it  does  not  presently 
pass  the  tiUe;  whereas  a  conditional  sale  passes  the  title  to  the 
vendee  in  the  first  instance,  with  the  reservation  to  the  vendor 
of  a  right  to  repurchase  the  property  at  a  fixed  price  and  speci- 
fied time:  Conway'a Ex'ra  v.  Alexander,  7  Oranch,  218;  LuckeUa  v. 
Ibwnsend,  3  Tex.  119  [49  Am.  Dec.  723];  Thompson  v.  Chumney, 
8  Id.  389.  It  is  not  a  bill  of  sale,  absolute  or  conditional,  from 
the  plaintiff  to  Halstead;  for  it  does  not  pass,  or  profess  to 
pass,  the  titie  to  the  latter.  On  the  contrary,  it  declares  that 
the  titie  is,  and  is  to  remain,  in  the  former.  Neither  is  it  by  its 
terms,  or  in  form,  a  sale  from  Halstead  to  the  plaintiff;  for 
it  declares  that  the  titie  theretofore  had  been  and  was  in  the 
latter.    Not  being  a  conveyance  in  form,  it  can  not  be  made 


1854.]  FowLXB  V.  Stoneuk  608 

Bach  by  extrinaio  evidence.  Parol  eyidence  is  admiBsible  to 
Bhow  that  a  deed  or  bill  of  sale,  absolute  or  conditional  on  its 
face,  is  a  mortgage,  bat  not  e  oonverw:  Kunkle  t.  Wolferd)erger, 
6  Watts,  130.  If  an  instrument  does  not  contain  the  essential 
requisites  of  a  conyeyance,  valid  and  effectual  in  itself,  to  pass 
the  title,  it  can  not  be  made  so  by  extrinsic  evidence.  In  fine, 
it  evidently  is  not,  in  form  or  substance,  either  an  absolute  or  con- 
ditional sale.  It  does  not  purport  to  be  a  sale,  or  pass  or  profess 
per  Be  to  pass  the  title;  and  therefore  it  is  not,  and  can  not  be, 
a  conditional  sale.  In  form  it  is  a  contract  on  the  part  of  the 
plaintiff  to  convey  the  property  to  Halstead,  upon  the  per- 
formance of  certain  conditions  or  stipulations  thereafter  to  be 
performed  by  the  latter.  But  so  regarded,  being  an  executory 
contract  for  the  sale  of  slaves,  it  would  seem  to  be  subject  to 
the  objection  that  it  comes  within  the  operation  of  the  first  seo* 
tion  of  the  statute  of  frauds,  and  was  not  obligatory  upon  the 
plaintiff  because  not  signed  by  him.  But  that  this  is  not  really 
and  truly  the  character  of  the  instrument,  in  fact  and  in  sub- 
stance, will  be  apparent  by  attending  to  one  or  two  of  ite  stipu- 
lations and  provisions.  It  stipulates  for  the  payment  by 
Halstead  to  Stoneum  of  a  sum  of  money  in  annual  installments; 
and  it  further  stipulates  that  the  negroes  shall  remain  in  the 
possession  of  Halstead  during  the  time  specified  for  the  pay* 
ment  of  the  money;  but  should  he  (Halstead)  fail  punctually  to 
pay  Stoneum,  his  heirs,  executors,  administrators,  or  assigns, 
the  several  sums  of  money  therein  specified,  then  Stoneum,  and 
in  his  absence  his  agents,  shall  sell  so  much  of  the  property, 
at  public  or  private  sale,  at  their  option,  as  will  meet  the  pay- 
ments, according  to  the  tenor  of  the  instrument.  And  it  is 
further  stipulated  that  should  any  of  the  negroes  die  in  the 
mean  time,  the  loss  shall  be  Halstead's. 

These  stipulations,  it  seems  to  us,  fix  the  character  of  the  in- 
strument beyond  a  reasonable  doubt.  It  is  impossible  to  be- 
lieve that  any  sane  man  would  stipulate  for  the  privilege  of 
selling  his  own  property  to  pay  a  debt  due  himself  from  an- 
other. It  is  not  to  be  supposed  that  any  man  in  his  senses 
(and  it  is  not  pretended  that  the  plaintiff  was  insane)  would 
become  a  party  to  such  an  agreement.  It  admits  of  no  rational 
interpretation  upon  any  other  supposition  than  that  the  title  to 
the  property,  notwithstanding  the  declarations  in  the  instru- 
ment to  the  contrary,  was  in  fact  in  Halstead  within  the  mutual, 
though  private,  understanding  and  knowledge  of  the  parties, 
and  tiiat  the  real  intention  of  the  instrument  was  to  give  a  lien 


604  FowLKB  fK  Stonxum.  [Teza% 

upon  it  to  soonre  the  payment  of  a  debt  due  by  him  to  Stonenm. 
It  is  plainly  inconcoBtent  with  any  other  sapposition.  If  it  had 
been  a  conditional  aale  from  Stonenm  to  Halstead,  or  a  contract 
to  sell  upon  conditions  to  be  performed  by  the  latter,  upon 
breach  or  failure  of  the  conditions  the  former  would  hare  been 
entitled  to  his  property  absolutely  discharged  of  the  conditions; 
and  there  would  have  been  no  reason  or  propriety  in  his  stipu- 
lating himsftlf  to  perform  the  condition  of  which  he  alone  could 
require  the  performance  by  the  sale  of  his  own  property.  And 
the  further  stipulation  that  in  case  of  the  death  of  any  of  the 
negroes  the  loss  should  be  Halstead's  is  inconsistent  with  the 
idea  that  they  were  the  property  of  Stonenm.  There  doubtiess 
was,  for  some  reason  known  to  the  parties,  but  which  they  haye 
not  disclosed  by  the  instrument,  a  secret  trust  and  confidence 
subsisting  between  them,  and  a  mutual  understanding  that  the 
property,  though  really  Halstead's,  should  be  held  out  to  the  world 
as  belonging  to  Stoneum,  and  hence  they  resorted  to  the  con- 
triyance  of  this  noTel  instrument  to  avoid  a  disclosure  of  the 
true  state  of  the  case.  But  the  instrument  itself  furnishes  in- 
disputable evidence  of  its  real  character,  notwithstanding  the 
efforts  of  the  parties,  by  their  recitals  and  declarations  to  con- 
ceal it.  It  evidentiy  was  in  fact  and  substance  a  mere  security; 
and  the  law  is,  that  where  the  instrument  is  in  substance  a  secu- 
rity for  the  payment  of  money,  no  management  or  contrivance 
of  the  parties,  no  form  or  expression  in  the  instrument,  will  avail 
to  change  its  real  character  and  effect. 

We  can  entertain  no  doubt  of  the  real  character  of  the  present 
instrument.  But  if  it  were  doubtful  whether  the  parties  in- 
tended a  mortgage  or  a  conditional  sale,  a  court  of  equity  would 
incline  to  consider  the  transaction  a  mortgage  as  more  benign  in 
its  operation. 

Applying,  therefore,  to  this  instrument  the  established  rules 
of  construction  applicable  in  such  a  case  to  ascertain  whether 
it  is  a  mortgage  er  not,  which  have  been  too  often  considered  by 
this  court,  and  are  too  familiar  to  require  repetition  here,  we 
conclude  that  it  must  be  held  by  its  stipulations  and  provisions 
to  be  in  effect  and  on  its  face  a  mortgage,  and  that  the  court 
erred  in  refusing  so  to  instruct  the  jury. 

The  petition  was  framed  with  a  double  aspect:  asserting  a  title 
to  the  property  absolutely  under  the  contract,  as  a  conditional  sale 
dischajrged  of  its  conditions;  and  in  the  alternative,  as  a  mortgage. 
The  recovery  was  upon  the  former  aspect  of  the  case.  This,  in 
the  view  we  have  taken,  was  error.    But  the  plaintiff  was  enti- 


1854]  FowLKB  V.  SrroKEUiL  SOS 

tied  to  maintain  lusaction,  in  the  other  aspect  of  thecaae,  for  the 
foreclosure  of  the  mortgage;  and  under  the  prayer  for  gen- 
eral relief,  the  appropriate  relief  might  have  been  administered. 
But  for  the  better  presentation  of  the  merits  of  his  case,  it  may 
become  necessary  for  the  plaintiff  to  amend  his  petition.  It 
contains  no  ayerment  of  the  value  of  the  property.  And  though 
the  court  refused  to  entertain  the  demurrer  because  the  defend- 
ant had  answered  to  the  merits,  the  omission  of  the  ayerment 
might  have  become  embarrassing  to  the  plaintiff  on  the  trial. 
Tins  court  has  often  held  that  exceptions  to  the  legal  sufficiency 
of  the  petition  in  the  due  order  of  pleading  should,  in  general, 
precede  the  answer  to  the  merits.  But  we  have  neyer  decided 
that  exceptions  which  go  to  the  merits  and  foundation  of  the 
action  can  not  be  entertained  after  an  answer  to  the  merits.  It 
would  be  idle  to  compel  a  defendant  to  proceed  to  trial  and 
drive  him  to  his  motion,  in  arrest  of  judgment,  upon  a  petition 
BO  defective  as  that  judgment  could  not  be  rendered  upon  it. 

The  ruling  of  the  court  upon  the  plea  in  reconvention  was  cor- 
rect, for  the  reason  that  the  matters  pleaded  were,  at  the  time 
of  pleading  them,  barred  by  the  statute  of  limitations.  No 
damages  were  claimed  for  the  alleged  trespass  complained  of  in 
the  amended  answer  filed  on  the  twenty-eighth  of  May,  1849, 
and  referred  to  by  that  date  in  the  bill  of  exceptions;  but  hire 
only  was  claimed  for  the  use  of  the  property  after  it  came  into 
the  possession  of  the  plaintiff,  and  the  ruling  of  the  court  did 
not  deprive  the  defendants  of  the  benefit  of  the  claim  for  hire. 
The  reference  in  the  bill  of  exception,  therefore,  to  this  amended 
answer  was  doubtless  a  mistake.  It  should  have  been  to  the  plea 
in  reconvention,  filed  in  November,  1849;  which  for  the  reason 
before  stated,  was  rightly  adjudged  insufficient. 

There  are  other  questions  presented  by  the  record,  the  consid- 
eration of  which,  however,  may  be  dispensed  with,  as  their  de- 
termination is  not  essential  to  the  present  disposition  and  ulti- 
mate decision  of  the  case.  The  judgment  is  reversed  and  the 
cause  remanded  for  further  proceedings. 

Beversed  and  remanded. 


COKVBTAKOES  MaDB  TO  DBrBAUD  CaSDrTOBfl  OB   SUBSIQUBNT  PUBCHAB- 

ABM  VOT  Vom,  bnt  voidable  only  at  th«  inttmoe  of  the  party  iggrieyedi 
MeOee  v.  CampbeU,  22  Am.  Deo.  783;  Oriental  Bank  ▼.  FIcuJanM^  37  Id.  140. 
snd  note;  8coU  ▼.  PurceU^  39  Id.  453.  They  are  good  between  the  parties: 
Note  to  Bo^  y.  Barclay,  34  Id.  765;  Norria  v.  Norris'$  Adm'r,  35  Id.  138; 
NkhoU  V.  PaiUn,  36  Id.  713;  Babcoch  y.  Booth,  38  Id.  578;  ScoU  y.  Pureell, 
89  Id.  453;  Coltraine  y.  Cauaey,  42  Id.  168;  McCUnny  y.  McClenny,  49  Id.  738; 
Choteau  V.  /ofiet,  50  Id.  460;  Meitx  v.  Antfumy,  52 Id.  274;  BrUt  v.  AyUtt^  Id. 


606  DuNLAP's  Adm'b  v.  Wbiqht.  [Texaa, 

282.  And  bona  fidt  pnrchaaera  without  notice  get  good  titles:  WinkUmd  t. 
Cwmct,  32  Id.  320;  S\o\ft  y.  HMridge,  36  Id.  85;  SooU  r.  PirroeS,  39  Id.  403; 
Oholeau  y.  Jones,  50  Id.  460;  Hardy  y.  Broddus,  35  Tex.  685;  Sydnor  v.  Both 
trtSt  13  Id.  622,  the  Texas  cases  citing  the  principal  case.  If,  while  the  goy- 
emment  is  content,  a  periect  title  or  patent  regularly  issued  by  competent 
authority,  and  which  has  passed  into  the  hands  of  an  innocent  purchaser, 
may  be  impeached  for  fraud  by  a  junior  claimant  without  any  prior  equity,  a 
different  rule,  it  would  seem,  must  apply  in  the  case  of  a  grant  by  the  ffur* 
emment  from  that  which  obtains  in  the  case  of  individuals:  JohaMUm  y.  SmUh^ 
21  Id.  729,  citing  the  principal  case  to  this  point  The  construction  by  the 
principal  case  of  the  first  clause  of  the  second  section  of  the  act  to  preyent 
frauds  and  fraudulent  conveyances  was  approved  in  ChrtaMu  v.  Sneed,  22  Id. 
574-577,  in  construing  the  clause  of  the  same  section  relating  to  loans  of 
goods,  chattels,  or  slaves^ 

SUBSIQUBNT    PUBOHASSB   OB   CbKDITOB    WITH    NOTICS    OV    JTbAUBULXHT 

CoNVETAKGi  OAH  NOT  AyoiD  It:  Lewi$  v.  CeuUeman,  27  Tex.  419;  Lehm* 
berg  v.  BtberMUf  51  Id.  462,  both  citing  the  principal  case;  see  also  Lewis  r. 
Lav^s  Heirtj  38  Am.  Dec  161. 

Pabol  EyiDKNCB  IS  Admissiblb  to  Show  Dbbd  Absolutb  on  Faob  was 
Intended  as  Sboubitt,  and  is  therefore  a  mortgage:  Sevari  v.  Service^  34 
Am.  Dec  211,  and  note  collecting  prior  cases;  NichoU  t.  Beynolde,  36  Id.  238; 
Moore  v.  Madden,  46  Id.  298;  HaU  v.  SavUl,  54  Id.  485.  A  trassactian  wiU 
be  declared  to  be  a  mortgage  rather  than  a  conditional  sale:  Ikarrdpeeed  v. 
Ourmingham,  50  Id.  190,  and  note. 

Exceptions  Going  to  Substance  and  Fottndation  of  Action  mat  bi 
Entbbtained  aftbb  Answeb  to  Mebits:  Oliver  v.  Chapman,  15  Tex.  402; 
BarUey  v.  TarranJt  County,  53  Id.  253;  WaJtetm  v.  Loop,  12  Id.  13;  LeamUi  r. 
Oooch,  Id.  98,  all  citing  the  principal  case. 


DuNLAP^s  Administratob  v.  Wright. 

[11  Tkzab,  607.] 

Two  OB  MoBE  Writings  must  be  Deemed  One  Instbumbnt,  and  ai 
forming  but  parts  of  the  same  contract,  when  they  are  executed  oon- 
temporaneoufJy  between  the  same  parties,  and  with  reference  to  the  same 
subject-matter. 

Obantob  has  Superiob  Right  to  Land  until  Pubohabb  Monet  is  Paiis 
or  the  mortgage  given  therefor  is  foreclosed,  where,  simultaneously  with 
the  conveyance,  such  mortgage  is  executed;  and  especially,  if  the  grantor 
is  in  possession  after  the  vendee  has  made  default,  he  can  not  be  turned 
out  of  possession  by  process  of  ejectment  or  trespass  to  try  titk^  althoo^ 
the  debt  and  mortgage  are  barred  by  the  statute  of  limitatioiia. 

Tbbspass  to  try  title.    The  opinion  states  the  &cts. 

B.  Hughes,  Phillips  and  PhiUipe^  and  LnUe  and  Stodhdal^  fof 
the  appellant. 

J.  N.  Mitchell  and  A,  8,  Cunningham,  for  the  appelleea. 

By  Court,  Hemphill,  0.  J.    This  is  an  action  of  trespass  to 
bey  title,  brought  on  the  twenly-fourth  of  Februazy,  18i7,  bj 


1854]  DuNLAF^s  Adm'b  V,  Wbiqht.  sot 

Wilkins  Hunt,  administrator  of  Alexander  Dunlap,  deoeased, 
against  John  D.  Wright  Margaret  T.  Wright,  wife  of  the  de- 
fendant, sabeequently  intervened  and  became  a  party  defendant. 
The  allegations  of  the  petition  are  in  the  usual  form.  The  land 
is  described  as  Ijing  in  the  cotmty  of  Yictoria,  on  the  west  side 
of  the  Gkiadalupe  riyer,  adjoining  the  lines  of  the  town  tract  on 
the  upper  side,  and  as  containing  a  full  league,  fronting  on  the 
river  at  least  two  miles  and  a  half,  and  running  back  with 
parallel  lines  so  as  to  include  the  quantity  of  a  league,  being  the 
same  land  surveyed  by  James  Kerr  in  1880  for  Margaret  Trudeau, 
now  Margaret  Wright.  There  is  a  prayer  for  damages,  and  for 
a  writ  of  possession.  The  yerdict  and  judgment  were  for  defend- 
ants, and  motion  for  new  trial  being  oveiruled,  the  plaintiff 
appealed. 

Several  points  of  importance  are  presented  in  the  cause.    It 
will  not  be  essential,  however,  to  discuss  but  one;  for  that  has 
such  controlling  force  that  if  decided  in  favor  of  defendants 
the  judgment  must  be  affirmed — although  all  others  might  be 
admitted  or  decided  for  the  plaintiff— and  that  is  whether  under 
the  facts  of  this  case,  the  purchase  money  being  unpaid,  the 
plaintiff  has  any  such  titie  as  will  support  the  action.    It  may 
be  admitted,  for  instance,  that  Margaret  Wright,  the  vendor,  had 
competent  authority  and  lawful  right  to  sell;  that  Alexander 
Dunlap  was  the  sole  vendee,  Bichard  O.  Dunlap  having  no 
interest;  that  the  sale  had  not  been  rescinded  by  either  verbal 
or  written  agreement,  or  by  any  one  authorized  to  make  such 
rescission;  yet,  notwithstanding  these  admissions,  the  question 
would  still  be  whether  the  plaintiff,  not  having  paid  the  pur- 
chase money,  has  such  title  as  would  in  an  action  of  trespass  to 
try  the  titl^,  authorize  him  to  recover  the  land  and  the  posses- 
sion from  the  defendants,  its  original  owners  and  vendors.    The 
character  of  the  plaintiff's  title  will  depend  on  the  facts  and 
circumstances  accompanying  and  forming  a  part  of  the  transac- 
tion of  purchase  and  Bale  between  the  parties.     The  deed  of 
conveyance  from  Margaret  Wright  was  executed  on  the  fifteenth 
of  December,  1837;  for  although  it  is  mitten  eighteen  hundred 
and  thirty-six  in  this  transcript,  yet  that  is  obviously  a  mistake, 
as  is  conclusively  shown  by  the  recitals  in  the  bond  and  mort- 
gage to  secure  the  purchase  money  given  on  the  day  of  the  sale. 
They  are  both  dated  on  the  fifteenth  of  Decemb^,  1837;  and 
they  both  recited  the  fact  of  the  purchase  having  been  made 
that  day.    The  bond,  in  substance,  so  far  as  this  league  is 
affected,  promises  to  pay  Margaret  Wright,  on  the  first  day  of 


SOS  DunlapIb  Adm^b  t;.  Wbioht.  {Tszao^ 

Ibroh  fhan  next  ensuing,  two  ihonsind  doUaxB,  and  to  pay  the 
additional  smn  of  two  thonBand  four  hnndxed  and  twenty-eight 
dollars  in  two  years  from  the  date,  provided  Maigaret  Wright  pro- 
cured a  good  and  valid  title  for  said  league  to  the  said  Alexander, 
his  heirs,  etc.,  within  two  years,  from  the  proper  authorities  of 
either  the  Mexican  or  Texan  goyemment.  The  mortgage  is 
given  to  secure  the  payment  of  this  bond.  It  does  not  vary  the 
oonditions  of  payment.  The  obligation  of  the  vendor  to  produce 
a  good  title  before  the  last  payment  is  somewhat  difEerently 
expressed,  she  being  required,  within  the  two  years,  to  produce 
a  regular  chain  of  titles  which  will  be  a  valid  title  and  paramount 
to  all  other  claima 

What  is  the  effect  of  the  simultaneous  execution  of  the  con- 
veyance, bond,  and  mortgage?  Unquestionably,  to  make  them 
all  parts  of  the  same  design;  to  constitute  thmn  in  effeet  but 
one  act,  and  require  them  to  be  construed  as  but  one  and  the 
same  agreement.  It  is  a  familiar  principle  that  two  or  more 
writings  executed  contemporaneously  between  the  same  parties, 
and  in  reference  to  the  same  subject-matter,  must  be  deemed 
one  instrument  and  as  forming  but  parts  of  the  same  contract: 
Howards  v.  Davis,  6  Tex.  181;  McDoweU  v.  HaU,  2  Bibb,  610; 
HoJbrook  v.  Finney,  4  Mass.  666  [3  Am.  Dec.  243];  SUno  v.  Tiffl^ 
16  Johns.  458  [8  Am.  Dec.  266];  Jackaon  Y.McKenny,  8  Wend. 
283  [20  Am.  Dec.  690];  Diaingham  v.  EstiU,  8  Dana,  21;  Kerr  v. 
GUmore,  6  Watts,  406;  McDowell  v.  Simpson,  8  Id.  188  [27  Am. 
Dec.  338];  Jackson  v.  Dunsbagh,  1  Johns.  Oas.  91;  Cornell  v. 
Jbdd,  2  Denio,  130;  Jackson  v.  DetoUl,  6  Cow.  816;  4  Phill.  Ev. 
1421. 

In  the  case  of  Eolbrook  v.  Finney,  4  Mass.  666  [8  Am.  Dec.  243], 
it  was  held  that  where  a  deed  was  given  by  a  vendor  who  takes  back 
at  the  same  time  a  mortgage  to  secure  the  payment  of  the  pur- 
chase money,  they  must  both  be  considered  as  part  of  one  and  the 
same  contract,  as  taking  effect  at  the  same  instant,  and  as  con- 
stituting but  one  act.  In  Stow  v.  Tiffl,  16  Johns.  468,  the  character 
of  the  transaction,  where  a  deed  is  given  and  a  mortgage  is  taken 
back  to  secure  the  purchase  money,  is  described  as  follows,  vis. : 
that  the  bargainor  sells  the  land  to  the  bargainee  on  condition 
that  he  pays  the  price  at  a  stipulated  time,  and  if  he  does  not, 
that  the  bargainor  shall  be  reseised  of  it  free  from  the  mort- 
gage; and  whether  this  contract  is  contained  in  one  and  the 
same  instrument,  as  it  may  well  be,  or  in  distinct  instruments 
executed  at  the  same  time,  can  make  no  possible  difference;  thi.4 
although  courts  of  equity  have  relieved  the  mortgagor  from  th# 


1864]  DuKuup^s  Adm'b  v.  Wright.  S09 

Aoddent  of  non-pajment  at  the  stipulated  period,  and  that  ooorte 
of  law  hare  oonsideied  the  interest  of  the  mortgagor  as  liable 
to  be  sold  on  ezeoation,  yet  this  does  not  interfere  with  the 
question  how  the  oontraot  is  to  be  considered  between  the  origi- 
nal parties  when  the  equity  of  redemption  is  gone  and  forfeited, 
etc. 

The  cases  of  Eolbrook  t.  Fismey,  4  Mass;  669;  8iaw  t.  Tifft^ 
16  Johns.  468;  and  Jackson  t.  DewiU,  6  Oow.  816,  were  actions 
to  recoTcr  dower  by  widows  whose  husbands  had  purchased 
lands,  but  had  given  mortgages  to  secure  the  purchase  money 
simultaneously  with  the  conveyances.  It  is  a  principle  of  the 
common  law  that  where  the  husband  has  seisin,  although  the 
land  abide  in  him  but  a  moment,  yet  the  wife  shall  be  en- 
dowed; as  where  &ther  and  son  were  joint  tenants  and  were 
both  hanged  in  one  cart,  yet,  because  the  son  died  last,  his  wife 
was  entitled  to  dower.  The  seisin,  though  but  for  a  moment, 
was  for  the  benefit  of  the  survivor:  Broughton  v.  Randall ,  Cro. 
Eliz.  608;  TaJtem  v.  Chaplin,  2  H.  Black.  184.  Yet,  notwithstand- 
ing this  principle,  it  was  held  in  the  above  cases  that  the  seisin 
was  but  instantaneous;  that  it  was  parted  with  by  the  mortgage  at 
the  very  instant  it  was  received;  and  that  consequently  the  wives 
were  not  entitled  to  dower. 

The  decisions  in  New  York  have,  in  our  courts,  increased  an* 
thoriiy ,  from  the  fact  that  in  that  state  the  mortgage  is  regarded 
but  a  mere  security  for  the  debt;  that  the  mortgagor  is  the 
owner  against  all  the  world,  subject  to  the  lien  of  the  mortgagee: 
BUchcock  V.  Harrington,  6  Johns.  290  [6  Am.  Dec.  229];  Stow 
V.  Ti0,  16  Id.  461-466;  Astor  v.  Hoyl,  6  Wend.  616. 

The  effect  of  the  principles  in  these  cases  is,  that  although 
the  vendor's  deed  may  be  absolute,  yet  if  a  mortgage  for  the 
purchase  money  be  given  back  at  the  same  time,  the  fee  will 
substantially  remain  in  the  vendor.  The  sale  will  be  but  con- 
ditional, the  ultimate  right  of  the  fee  depending  upon  the  per- 
formance or  non-performance  of  the  conditions.  If  the  purchase 
money  be  paid,  if  the  mortgage  be  satisfied,  the  seisin  will  be 
regarded  as  having  been  in  the  vendee  ab  inUio,  or  from  the  date 
of  the  purchase.  If  not  paid,  the  vendor  will,  in  the  language 
of  Stow  V.  nffi,  tupra,  be  reseised,  free  of  the  mortgage.  Li 
the  case  of  Eaurarda  v.  Davis,  6  Tex.  181,  we  held  that  until 
payment  the  vendor  had  the  best  right  or  superior  title  to  the 
laattd;  that  if  the  contract  were  executory,  in  default  of  payment 
he  might  consider  the  purchase  as  abandoned,  and  treat  the 
property  as  his  own;  if  executed,  and  with  a  mortgage  oontem* 


510  Dunlaf's  Adm^  v.  Wbioht.  [Teza^ 

pozaneouB  with  the  deed,  he  would  in  eflEect  hold  the  estate  in 
his  previous  right,  subject  to  be  divested  on  payment,  and  with 
such  relief  to  the  vendee  as  maybe  afforded  on  the  special  terms 
of  the  contract,  or  under  proceedings  to  foreclose  the  mortgage. 

In  the  case  before  us,  the  vendee  went  into  and  remained  in 
possession  until  January,  1889,  when  he  left  the  place,  and  the 
defendants  took,  and  for  aught  that  appears  have  ever  since  re- 
tained, possession.  We  have  held  in  various  cases  that  a  mort- 
gage is  but  an  incident  of  the  debt,  and  if,  on  the  debt -being 
barred,  the  mortgage  security  is  lost,  the  effect  of  judgment  in 
this  case,  for  the  plaintiff,  would  be  to  eject  the  original  owners 
out  of  possession  held  by  them  for  many  years,  and  to  admit  to 
possession  a  vendee  who  by  his  acts  has  evinced  an  intention  to 
abandon  the  contract,  who  has  not  paid  or  offered  to  pay  a  fius 
thing  of  the  purchase  money,  who  pledged  the  land  at  the 
instant  of  the  purchase,  or,  in  the  language  of  the  cases,  condi- 
tionally revested  the  fee;  and  this  de&ulting  vendee  being  in- 
ducted into  possession,  the  vendor  is  to  be  left  vnthout  the 
shadow  of  redress,  his  bond  and  mortgage  having  been  barred 
by  limitation.  Such  consequences  are  too  monstrous  to  be  tol- 
erated.   They  are  sanctioned  by  no  principle  of  law  or  justice. 

Whatever  may  be  the  effects  of  an  ordinary  mortgage  to  se- 
cure  the  loan  of  money  or  the  rights  of  parties  thereto,  yet  where 
it  is  to  secure  the  payment  of  the  purchase  money,  and  is  exe- 
cuted simultaneously  with  the  conveyance,  the  vendor  has,  until 
the  money  is  paid  or  the  mortgage  foreclosed,  the  superior  right 
to  the  land;  and  especially  if  in  possession  after  the  vendee  has 
made  default,  he  can  not  be  turned  out  of  possession  by  process 
of  ejectment  or  trespass  to  try  title.  The  tendency  of  decisions 
in  this  state  has  been  to  support  the  rights  of  the  vendor  to  the 
land,  as  against  a  defaulting  vendee  who  has  not  paid  or  offered 
to  pay  the  purchase  money;  and  these  decisions  we  believe  to  be 
supported  on  principles  of  law  too  solid  to  be  shaken  or  dis- 
turbed: Brouming  v.  Estea,  8  Tex.  462  [49  Am.  Dec.  760];  White- 
man  V.  OasUeberry'a  Heirs,  8  Id.  441;  Estea  v.  Brouming,  11  Id. 
287. 

This  is  not  a  suit  for  specific  performance.  It  is  not  one  in 
which  the  plaintiff  shows  equity,  and  if  in  default  gives  some 
reasonable  excuse,  and  on  offering  to  do  equity  calls  on  the 
court  to  enforce  his  rights.  It  is  based  on  a  supposed  mere 
naked  l^gal  right;  and  we  have  seen  that,  without  performanoo 
on  his  part,  the  Tendor  and  not  the  vendee  has  the  superiot 
title,  and»  at  least,  if  in  is  entitled  to  retain  possession. 


1854]  DuNLAF^s  Abm*r  v.  Wright.  611 


Had  {his  been  a  proceeding  for  speoifio  performanfie,  the 
plaintiff,  before  he  could  have  been  entitled  to  relief,  must  have 
shown  equities  which  are  not  apparent;  at  least,  they  are  not  to 
be  found  in  the  voluminous  evidence  taken  in  the  cause.  The 
intestate,  though  in  possession  for  more  than  one  year,  totally 
biled  to  make  the  first  payment,  which  was  due  in  less  than 
three  months  from  the  sale;  and  though  he  lived  some  three 
years  afterwards,  yet  he  neither  paid  nor  tendered  payment.  It 
may  be  said  that  he  was  not  bound  to  make  the  last  payment, 
inasmuch  as  the  vendor  did  not,  within  the  two  years,  produce 
a  valid  title.  That  may  be;  but  as  he  had  made  default  in  the 
first  payment,  the  presumption  was  that  he  had  abandoned  the 
contract,  and  she  was  not  bound  to  take  further  measures  to 
have  it  carried  into  execution.  He  had  not  made  the  first  pay- 
ment, and  she  was  under  no  obligation  to  prove  to  him  that  he 
ought  to  make  the  last.  Had  she  been  bound,  under  the  cir- 
eumstances,  to  exhibit  a  valid  title,  and  refused,  the  effect  would 
be  to  relieve  the  vendee  from  obligation,  but  not  to  give  him  the 
land.  He  can  not  claim  that  under  such  condition  he  was  ex- 
cused from  payment;  and  that  she  was  bound  even  after,  by 
limitation,  her  rights  to  enforce  payment  were  barred,  and  that 
then,  without  payment,  he  could  claim  the  properly  as  his  own. 

The  plaintiff  now  manifests  a  willingness  to  take  the  land, 
with  all  the  defects  of  title.  Had  he  done  this  at  an  earlier 
period,  accompanied  with  an  offer  to  perform  his  stipulations, 
his  rights  would  have  presented  themselves  in  a  very  different 
aspect  from  that  in  which  they  can  now  be  regarded. 

It  is  not  necessaiy  to  comment  specially  on  the  pleadings  of 
defendants.  They  extend  through  a  series  of  years.  They  set 
up  the  proper  defenses,  but  in  addition  they  advance  preten- 
sions fully  as  much  if  not  more  preposterous  than  those  of  the 
plaintiff.  He  claims  the  land  without  paying  for  it,  and  they, 
in  their  last  plea,  claim  judgment  for  both  money  and  land. 

Judgment  affirmed, 

LiPSOOifB,  J.,  did  not  sit  in  this  case. 


Ddtirxnt  WRimros  Mm  bb  Taken  as  One  IxisTEUifiirr,  wlm  «zs* 
mted  at  the  same  time  and  with  reference  to  the  same  rabjeot-matteri  Simmg 
V.  Bame$f  34  Am.  Deo.  684,  and  prior  caaes  in  note;  8tepken$  v.  Shavwif  55 
Id.  777;  also  ColweU  v.  Wooda^  27  Id.  845.  The  principal  omo  has  been  dted 
to  thia  point  in  Sppinger  v.  McOreal^  31  Tex.  150;  Ta^  v.  Budghu,  49 
U.  246;  De  Bruhl  v.  Maas,  54  Id.  473;  Saunden  v.  HartweO,  61  Id.  688. 

Obaktob  has  Sufbuob  Right  to  Land  Convbtbd  until  PuBOHAfia 
MovBT  n  Pato,  when  a  mortgage  therefor  ia  ezeooted  simiiltMMoaBly  with 


612  West  v.  Baobt.  [Texa^ 

ihe  con^yanoe:  Pratt  v.  Tudor,  14  Tex.  40;  Robartmm*9  Adm^  t«  Paid,  16 
Id.  476;  BaUeurd  v.  Anier$on,  IS  Id.  385;  Baker  y.  (Pepper,  26  Id.  634;  if<M- 
roe  V.  Buchanan,  27  Id.  245;  £!ppinger  v.  McOrtal,  31  Id.  150;  Cannon  t. 
McDankl,  46  Id.  313;  ifcwteriOfi  ▼.  CoAen,  Id.  523;  PUachH  r,  AiuUrwu,  49 
Id.  3;  BurgesB  v.  JftZZtcan,  50  Id.  401;  Webder  y.  Mann,  52  Id.  425;  i/o/e  y. 
Baker,  60  Id.  219;  and  lee  Daro^  y.  Trammdl,  27  Id.  133;  or  where  the  deed 
resenres  a  lien:  Baker  y.  Ramey,  27  Id.  50;  PfUm  y.  CZnuenCs^  46  Id.  123; 
llaU  y.  falser,  nipra;  although  the  claim  for  pnrchaae  money  be  barred  by 
the  statute  of  limitations:  PUscJiki  y.  Anderson,  tupra.  But  while  it  is  true 
that  a  grantor  who  retains  a  lieu  for  his  purchase  money  has  a  superior  right 
to  the  land,  as  against  his  yendee,  until  the  purchase  money  is  paid,  this  is  only 
true  where  the  lien  is  retained  and  perpetuated:  Boffero  y.  Ch-een,  35  Id.  735. 
And  where  an  absolute  deed  has  been  made,  the  grantor  has  parted  with  his 
title,  and  he  has  nothing  but  his  implied  lien:  Pitochki  y.  Anderson,  supra; 
Baker  v,  Gompton,  52  Id.  261;  and  if  there  is  no  eyidence  to  fully  explain  the 
difference  in  the  dates  of  tiie  deed  and  a  mort;gage  to  secure  the  purchase 
money,  the  rule  of  the  principal  case  will  not  i^ply  so  as  to  preyent  the  deed 
from  oonyeying  the  le^  title:  MtUer  y.  Sogers,  40  Id.  412.  The  principal 
case  has  been  cited,  quoted,  approved,  and  distinguished  upon  the  foregoing 
points.  In  Byler  y.  Johnson,  45  Id.  519,  it  was  held  that  the  principal  case 
was  no  authority  for  the  position  that  by  virtue  of  his  lien  a  vendor  retains 
such  ownership  as  would  enable  him,  notwithstanding  his  oonye3raDoe,  to 
maintain  a  suit  for  possession;  and  in  King  v.  Young  Men's  Ast^n,  1  Woods, 
391,  it  was  explained  as  not  being  contrary  to  the  doctrine  that  where  a  lien 
is  reserved,  and  the  original  purchaser  has  sold  the  land  to  a  third  person, 
and  the  deed  has  been  duly  recorded,  or  made  known  to  the  original  grantor, 
tho  latter  can  not  turn  such  third  person  out  of  posscsdott  or  lyringnlA  bi^ 
rights,  without  legal  process. 


West  v.  Bagby. 

[la  Texas.  84.] 
TlVAL  JUDOMSNT  IS    AWA&D    OF    JUDICIAL   CONSXQUBHCBB   whioh    the    Uw 

attaches  to  the  facts,  and  which  determines  the  subject-matter  of  the 

controversy  between  the  parties. 
•Obdib  that  Suit  bk  Dismissed  is  Such  Final  Obdxb  •■  will  anthori»  its 

consideration  by  the  supreme  court. 
DvoREK  THAT  DISMISSAL  OF  SuiT  Bs  ENTERED  AS  KoNSUXT  ii  equivalent  to  a 

decree  that  the  plaintiff  be  nonsuited  in  the  case,  and  is  such  a  final 

judgment  as  is  required  before  submission  of  the  cause  to  the  supreme 

court. 

Ebbob  from  Bed  River.  Motion  to  diBinifls  the  writ  of  error. 
The  opinion  states  the  case. 

MorriU  and  Dickson,  for  the  plaintiff  in  error. 

John  T,  Mills,  for  the  defendant  in  error. 

By  Oourt,  Hemphill,  0.  J.  In  this  case  there  is  a  motion  to 
dismiss  the  writ  for  the  want  of  a  final  judgment.  The  entiy 
is  that  the  case  be  dismissed,  but  because  the  jury  fee  hath  not 


1854.1  Aysbt  v.  Aysbt.  51S 

been  paid  ihe  same  is  entered  as  a  nonsuit.  It  is  therefore 
considered  by  the  court  that  the  defendant  have  and  reoorer  of 
the  plaintiff  all  costs,  etc. 

This  is  rather  a  meager  entry  of  a  final  judgment;  but  under 
the  rules  laid  down  in  Hanks  v.  Thompson,  5  Tex.  6^  it  is  suffi- 
oient.  A  final  judgment  is  there  defined  to  be  the  aimxd  of  the 
judicial  consequences  which  the  law  attaches  to  the  facts,  and 
determines  the  subject-matter  of  controTcrsy  between  the  par- 
ties; and  it  is  stated  that  an  order  or  decree  that  the  plaintiff 
should  be  nonsuit  in  the  case,  or  that  the  plaintiff's  suit  be  dis- 
missed for  the  want  of  prosecution,  is  such  a  final  order  or  de- 
cree as  is  subject  to  revision  in  the  supreme  court.  Tested  by 
these  principles,  the  order  that  the  suit  be  dismissed  has  such 
finality  as  would  authorisse  its  consideration  in  this  court;  and 
the  decree  that  this  dismissal  be  entered  as  a  nonsuit  is  equi7»> 
lent  to  a  decree  that  the  plaintiff  be  nonsuited  in  the  case,  and 
is,  therefore,  such  a  final  judgment  as  the  statute  requires  be- 
fore submission  of  the  cause  to  the  supreme  court.  There  is  no 
error  in  the  judgment,  and  it  is  ordered  that  the  same  be 
affirmed. 

Judgment  affirmed. 

FiKAL  JuDOMBHT,  What  d:  See  WtUksms  t.  JFMf,  00  Am.  Dm.  426» 
■oie  427»  whece  this  rabjeot  is  discnssed  at  length. 


AyEBT  V.  AVEBT. 

[13  TKXAt,  S4.] 

Wbxbx,  bt  Law  o?  Stats  wherk  Pabtiks  Mabbt,  Slavs  of  Wits  B» 
COMBS  Pbopbrtt  07  HtTSBANB  on  marriage,  and  they  afterwards  remoTe 
to  another  state  in  which  there  is  no  legal  impediment  to  the  wife's  hold- 
ing separate  property,  and  the  husband  there  conveys  to  the  wife  an- 
other slave  in  exchange  for  the  one  owned  by  her  prior  to  her  marriage^ 
and  thereafter  the  husband  and  wife  remove  to  Tetas,  where  he  dies, 
the  wife  will  be  entitled  to  the  slave  so  received  by  her  from  her  hus- 
band, as  against  his  legal  representative.  The  conveyance  of  the  slave 
to  her  can  only  be  impeached  by  an  antecedent  creditor  of  the  husband. 

VxBDicT  IS  Sufficient  to  Sustain  Afpbopriatk  Judgment,  if  any  un- 
certainty that  may  exist  therein  can  be  explained  by  reference  to  tha 
record;  and  therefore  in  an  action  for  the  recovery  of  a  slave,  a  verdiel 
in  these  words,  **  We,  the  jury,  find  for  the  plaintiff,  with  eighty  dollars 
damages  and  costs  of  suit,"  is  sufficient  to  support  a  judgment  for  tha 
slave,  and  damages  and  costs  of  suit. 

Wbebs  Particular  Piece  of  Propertt  is  Sued  for  in  Specie,  and  not 

in  the  alternative  of  damages,  and  the  property  sued  for  is  sequi 
▲m.  Dsc.  Yol.  LXn— 88 


S14  AvEBT  V.  Avert.  p^ezaiy 

for  the  poipoM  of  kMping  it  wiUdn  the  jnrisdietioB  of  tlio  ooiirt»  a  tw- 

diot  for  the  plaintiff  ii  snffioleDt,  without  MMMiiig  the  Talne  of  tha 

property. 
Dbpositioh,  17  OaraoraD  to,  oak  vot  aa  £aA2>  0  BriDaivaB  when  the 

deposition  and  the  oommiasion  nnder  which  it  was  taken  have,  aol 

been  returned  in  oonformity  to  the  statote. 
iMFBOPxa  BanBonoH  ov  Btidbvcb  Whigb  cn>uu>  vot  hati  LfFLumaiD 

FivDiKO  of  the  jury  ii  not  a  ground  lor  revarring  the  Jndgment  in  the 

enpreme  ooort. 

Ebbob  from  Cherokee.    The  opinion  states  the  ease. 

8.  P.  Donley t  for  the  plaintiff  in  error. 

Hendenon  andJoneSf  and  J.  O.  BvereU,  far  the  defendant  in 
error. 

By  Oourt,  LmooMB,  J.  This  suit  was  brought  by  the  defend- 
ant in  error  against  Arery,  one  of  the  plaintiff  in  error,  to  re- 
ooYer  a  negro  slave.  After  Biohard  Ayery  had  been  discharged 
from  the  administration  on  the  estate  of  James  S.  Ayeiy,  Oreen 
was  appointed  administrator  of  the  said  estate,  and  on  his  ap- 
plication was  permitted  to  be  made  a  parly  defendant.  The 
defense  set  np  was,  that  the  slave  sued  for  was  a  part  of  the 
property  appertaining  to  the  estate  of  the  said  James  S.  Ayery, 
deceased,  and  not  the  separate  property  of  the  widow,  the 
plaintiff  in  suit  The  material  &cts  are,  that  James  S.  Ayeiy 
intermarried  with  the  plaintiff,  in  the  state  of  Ctoorgia,  and  by 
his  marriage  became  the  owner  of  a  certain  slave,  the  property 
of  his  wife  at  the  time  of  his  marriage;  that  he  always  called 
the  slave  so  acquired  the  property  of  his  wife;  and  becoming  a 
good  deal  embarrassed,  he  ran  the  said  slave  to  the  state  of 
Louisiana,  declaring  that  he  ran  the  slave  off  to  prevent  his  be- 
ing sold  for  his  debts,  and  that  as  he  was  his  wife's  negro,  he 
never  should  be  sold  for  his  debts;  that  he  afterwards  paid  his 
debts  in  Georgia,  and  was  in  a  prosperous  condition  in  Lou- 
isiana, and  was  out  of  debt;  that  under  these  circumstanoee, 
whilst  in  the  state  of  Louisiana,  he  proposed  to  his  wife  that 
he  would  exchange  one  of  his  own  slaves  for  one  that  would 
suit  his  wife  better  than  the  one  he  had  acquired  by  his  mar- 
riage with  her,  and  that  he  would  have  the  bill  of  sale  for  the 
one  received  in  exchange  in  the  name  of  his  wife,  in  the  place 
of  the  one  he  had  always  called  her  slave;  that  the  exchange 
was  accordingly  made,  and  the  bill  of  sale  for  the  slave  received 
in  exchange  was  made  to  his  wife,  the  plaintiff  in  the  suit;  and 
this  slave  so  received  in  exchange  is  the  same  now  in  contro- 
versy- 


1854.]  AvXET  V.  AvXET.  615 

James  S.  Ayery  afterwards  xnored  withhis  tamilj  to  this  state, 
bringing  the  slaye,  together  with  his  slaves,  with  him,  and  died 
in  Cherokee  county.  His  widow,  the  plaintiff  in  this  suit,  was 
appointed  administratrix,  and  Richard  Aveiy,  the  defendant  in 
the  suit,  was  appointed  administrator  of  his  estate.  In  the  first 
inyentory  and  appraisement  returned  to  the  court,  the  slaye  in 
question  was  not  included  with  the  slayes  belonging  to  the  es- 
tate. The  plaintiff  resigned  her  administration,  and  Richard 
Avery  proceeded  with  the  settlement  of  the  estate,  and  made  an 
additional  return  of  appraisement,  in  which  the  slave  sued  for 
was  appraised  and  returned  as  the  property  of  the  estate  of 
James  S.  Avery,  deceased.  The  administrator  subsequently  de* 
clared  that  he  had  become  satisfied  that  the  slave  was  the  sep- 
arate property  of  the  widow,  and  did  not  belong  to  the  estate  of 
his  intestate;  but  alleged  that  he  could  not  deliver  him  up  to 
the  widow  without  an  order  of  court.  The  slave  was  subse- 
quently delivered  up  to  the  plaintiff,  under  an  order  of  the  pro- 
bate court,  but  was  afterwards  taken  from  her  by  the  defendant, 
and  suit  was  brought;  and  on  a  writ  of  sequestration,  sued  out 
at  the  instance  of  the  plaintiff,  the  slave  was  taken  into  the  cus- 
tody of  the  sheriff  and  kept  by  him,  neither  of  the  parties 
offering  to  replevy  him.  In  the  defendant's  answer  it  is  al- 
leged that  the  slave  belonged  to  the  community  property,  and 
the  estate  was  insolvent.  It  was  in  proof  that  by  the  laws  of 
the  state  of  Ctoorgia  the  property  of  the  wife  at  the  time  of 
marriage  becomes  the  property  of  the  husband.  There  was  a 
verdict  and  judgment  for  the  plaintiff,  to  reverse  which  a  writ 
of  error  was  taken  to  this  court. 

Among  other  matters  of  errors  assigned,  it  is  alleged  that  the 
evidence  does  not  support  the  verdict  of  the  jury;  and  secondly, 
that  the  verdict  does  not  authorize  the  judgment  rendered  bj 
the  court  below. 

It  may  be  admitted  that  by  the  laws  of  Ctoorgia  a  wife  is  in* 
capable  of  holding,  in  her  own  right,  separate  property;  and 
that  the  property  owned  by  her  at  the  time  of  marriage  becomes 
the  property  of  the  husbuid;  and  that  so  far  as  relates  to  the 
slave  owned  by  the  plaintiff  %t  the  time  of  her  marriage,  it  was 
the  properiy  of  the  husband,  and  he  was  tmder  no  l^gal  obliga- 
tion to  compensate  the  wife  for  such  slave;  yet  after  his  removal 
to  the  state  of  Louisiana,  where  there  was  no  l^gal  impediment 
to  the  wife's  holding  separate  property,  it  was  but  natural  that 
he  should  carry  out  the  long  and  continually  cherished  object 
of  either  securing  the  property  that  he  had  received  from  her  at 


616  Ayxbt  v.  Avsbt.  [Texafl^ 

{heir  mazriage,  or  make  her  a  suitable  oompensation  for  the  same; 
and  the  conyejance  he  caused  to  be  made  to  her  of  the  slave 
sued  for,  Chough  not  supported  by  a  strictly  legal  consideration, 
rested  upon  what  was  regarded  by  him  as  a  meritorious  moral 
obligation,  to  which  none  but  a  creditor  could  oppose  any  legal 
objection.  In  this  case  no  creditor  is  resisting  the  daim  of  the 
plainti£f,  and  although  in  the  answer  it  is  alleged  that  the  estate 
is  insolvent,  yet  the  allegation  is  not  sustained  by  the  evidence. 
If,  however,  it  had  been  made  so  as  to  appear,  it  is  the  antecedent 
creditor,  and  not  the  legal  representative,  that  should  impeach 
the  conveyance.  In  Damey  v.  Smiih,  4  Tex.  411,  an  intimation 
was  thrown  out  that  the  administrator,  for  the  benefit  of  cred- 
itors, could  perhaps  impeach  the  consideration  of  a  voluntary 
conveyance*  We  are  satisfied  now  that  it  can  only  be  done  by  a 
creditor.  If  we  are  correct  in  the  views  we  have  expressed,  the 
evidence  fully  sustains  the  verdict  of  the  jury. 

We  will  next  inquire  whether  the  finding  of  the  jury  is  suffi- 
cient to  authorize  the  judgment  of  the  court.  The  verdict  of 
the  jury  is  as  follows,  i.  e,:  **  We,  the  jury,  find  for  the  plaintiff, 
with  eighty  dollars  damages  and  Qosts  of  suit.''  On  this  verdict 
the  following  judgment  was  rendered:  ''It  is  therefore  con- 
sidered, adjudged,  and  decreed  by  the  court  that  the  plaintiff, 
Mary  Avery,  have  and  recover  the  negro  boy  John,  described  in 
her,  plaintiff's,  petition;  and  it  appearing  to  the  satisfaction  of 
the  court  that  the  said  boy  John  is  now  in  the  possession  of 
Joseph  F.  Henry,  sheriff  of  the  county  of  Cherokee,  it  is  ordered 
by  the  court  that  the  said  Joseph  F.  Henry,  sheriff  as  aforesaid, 
deliver  to  the  said  Maiy  Avery  the  possession  of  the  said  boy 
John,  and  also  to  pay  over  to  the  plaintiff  the  amount  of  the 
hire  of  the  said  boy  John,  now  in  his  possession.  It  is  further 
ordered  and  adjudged  by  the  court  that  the  plaintiff,  Mary 
Avery,  have  and  recover  judgment  against  Bichard  J.  Avery, 
defendant,  for  the  sum  of  eighty  dollars,  less  the  sum  of  twenty- 
four  dollars,  paid  by  the  sheriff  for  hire  of  said  boy — ^the  amount 
of  her  damage  as  found  by  the  jury,  and  all  costs  up  to  the 
fourth  day  of  the  present  term  of  this  court  to  be  taxed,  for 
which  execution  may  issue."  The  verdict  is  not  as  perfect  in 
form  as  it  should  have  been;  but  it  has  been  uniformly  decided 
by  this  court  that  if  by  a  reference  to  the  record  any  uncer^ 
tainty  in  the  verdict  can  be  explained,  it  will  be  sufficient  to 
sustain  the  appropriate  judgment.  The  language  of  the  verdict, 
*'  We  find  for  the  plaintiff,"  is  substantially  a  finding  the  matter 
in  controversy  in  the  suit  in  her  favor;  and  it  is  only  necessary 


1854]  AVIBT  U  AVKBT.  517 

to  look  to  the  petition  for  the  asoeriainznenty  with  oertainty,  the 
meaning  of  the  verdict.  It  is  objected  that  the  jniy  onght  to 
have  found  the  value  of  the  slave  sued  for.  In  many  cases  it  is 
essential  to  the  interest  of  the  parties  that  this  should  be  done. 
If  the  properly  sued  for  was  beyond  the  reach  of  the  jurisdiction 
of  the  court,  at  the  time  of  the  verdict  and  judgment,  nothing 
but  compensation  for  it  could  be  obtained,  and  the  amount  of 
that  compensation  should  be  determined  by  the  juxy.  This 
would  be  necessary  to  the  interest  of  both  plaintiff  and  defend- 
ant; but  where  but  one  partictdar  piece  of  property  is  sued  for, 
and  that  is  sued  for  in  specie,  and  not  in  the  alternative  of  dam- 
ages,  if  the  plaintiff  establishes  his  right  to  the  property,  ample 
and  complete  justice  can  only  be  awarded  by  a  judgment  for  the 
restitution  of  the  property  so  claimed.  In  this  case  the  prayer 
of  the  petition  was  for  the  specific  property;  and  to  secure  this 
object  the  plaintiff  had  procured  a  sequestration  of  it,  for  the 
puipose  of  keeping  it  within  the  jurisdiction  of  the  court.  Un- 
der such  circumstances,  the  necessity  of  assessing  its  value  is 
not  perceived.  The  fact  that  the  property  sued  for  was  under 
the  control  of  the  court  was,  doubtless,  the  reason  why  the  ver- 
dict was  so  found,  it  being  sufficient  on  which  to  base  a  judg- 
ment in  accordance  with  the  prayer  of  the  petition.  The  case 
of  Blakely  v.  Duncan,  4  Tex.  184,  was  altogether  different  from 
this  case.  In  that  the  suit  was  for  several  slaves,  and  the  jury 
assessed  their  value  in  the  aggregate,  and  the  judgment  was  in 
the  alternative,  for  the  negroes  or  the  value  so  assessed;  and  in 
that  case  it  did  not  appear  that  the  slaves  were  under  the  con- 
trol of  the  court.  The  authority  of  that  case  is  not  disturbed 
by  our  opinion  in  this. 

There  was  evidence  by  deposition  returned  under  a  commission 
taken  out  by  the  plaintiff,  read  in  evidence,  though  objected  to 
by  the  defendant  The  commission  and  deposition  were  not 
returned  in  conformity  to  the  statute,  and  the  court  erred  in 
overruling  the  objection  made  to  their  being  read  in  evidence; 
and  for  this  error  the  judgment  would  be  reversed,  if  we  be- 
lieved that  the  evidence  could  possibly  have  had  any  influence 
with  the  juxy  in  their  finding;  but  we  believe  that  such  was  its 
immateriality  that  it  could  not  by  any  construction  that  it  is 
reasonable  to  suppose  the  jury  could  have  put  upon  it  had  any 
influence  in  their  finding;  hence  we  believe  that  although  the 
judge  erred,  it  is  no  ground  for  a  reversal  of  the  judgment,  but 
that  it  ought  to  be  affirmed,  which  is  the  judgment  of  the  oourb 

Judgment  affirmed. 


518  Able  v.  Chandleb  [Tezu^ 

Tten  PBnroiPAL  case  n  oited  in  ffuni  r,  BtUterwarth^  21  Tex.  189,  md  lii 
Hart  ▼.  Rustf  46  Id.  574,  to  the  point  that  an  executor  or  administrator  can  not 
imp^afsh  for  f rand  the  deed  of  his  testator  or  intestate,  but  if  such  deed  is  to  be 
■et  anide,  it  must  be  by  the  creditors;  and  in  Pearce  ▼.  Bell,  21  Id.  691,  to  the 
point  that  if  a  rerdict^  deficient  in  not  expressly  finding  one  of  the  issues  in 
the  esse,  can  be  explained  by  a  reference  to  the  record,  it  will  be  suffident 
to  sustain  the  appropriate  judgment.  In  lAule  v.  Birdwellt  Id.  609,  it  wm 
said  that  it  was  on  the  title  acquired  by  the  wife  in  Tionisiana  that  her  right 
was  maintained  in  the  principal  case. . 

Kbbobs  not  Pbbjctdigial  ABi  NOT  GBOirND  roB  BsvxBaaL:  See  Johutm 
▼.  Jeimkiff$f  60  Am.  Dec  323,  note  330,  where  other  cases  are  collected. 

Dkpobitiom,  vrosN  Inoompeteht  Eyidbnob:  See  Powers  t.  Skfpard,  6S  Am. 
Dee.  168,  note  109. 


Able  v.  Ohakdleb. 

{12  Tkzas,  88.] 

i  )iiniiBTBAT0B  OF  EsxATE  CAN  NOT  BiND  It  bt  HI8  Wabbamtt,  ot  reodsr  H 
xesponaible  in  damages  for  frauds  or  torts  committed  by  him;  but,  in  hii 
dealings  with  third  persons  in  respeet  to  the  estate,  he  is  bound  to  aet 
fairly  and  honestly,  and  the  estate  can  not  be  permitted  to  derive  unjust 
and  unconscientious  advantage  by  means  of  his  unauthorized  fraudulent 
conduct. 

^4uui  AND  Fbaudulsnt  Rbfbbsbktations  Madb  bt  Administbatob,  at 
Salb  of  Pbopbbtt  of  the  estate  of  his  intestate,  as  to  the  character  and 
soundness  of  the  property,  by  which  the  buyer  is  misled  to  his  injury, 
entitle  the  latter  to  a  rescission  of  the  oontraot,  or  to  an  abatement  of  the 
price  agreed  to  be  paid. 

Obmbbal  Denial  in  Action  on  Notb  Bbquibbb  Pbodvotion  of  Note, 
although  it  does  not  put  the  plaintiff  upon  proof  of  its  execution;  but  the 
plea  of  the  general  denial  in  such  an  action  precludes  the  plaintiff  from 
taking  judgment  by  default,  or  for  want  of  an  answer. 

Appeal  from  Cherokee.  The  action  was  upon  a  sealed  note. 
The  defendant  interposed  a  general  denial,  and  pleas  impeach* 
ing  the  consideration  of  the  note.  The  pleas  allegod  that  the 
note  in  suit  was  given  for  the  purchase  price  of  a  slave  sold  by 
the  plaintiff  as  the  administrator  of  one  Griffin;  that  at  the  sale 
the  plaintiff,  with  intent  to  cheat  and  defraud  the  defendant, 
falsely  and  fraudulently  represented  that  the  slave  was  well  dis- 
posed, trustworthy,  and  obedient,  and  falsely  and  fraudulently 
represented  and  warranted  him  to  be  sound  in  body  and  mind; 
that  the  defendant  relied  on  said  representations,  and  was 
thereby  deceived  and  induced  to  make  the  purchase  and  give 
the  note  sued  on;  that  the  negro  was  evilly  disposed  and  un- 
sound in  body.  The  defendant  excepted  to  the  sufficiency  of 
the  answer,  on  the  ground  that  there  could  be  no  binding  war* 
ranty  made  by  the  plaintiff  as  administrator.    The  court  sua- 


1854]  Abu  v.  Ohandueb.  519 

fauned  the  ezoeptioni  Btaiiok  ant  the  answer,  and  ga^e  judgment 
for  the  plaintiff  as  for  the  want  of  an  answer.  The  defendant 
appealed.    . 

8hank8,  Bonner  and  Bonner,  and  Hendermm  and  Jones,  tor  the 
appellant. 

Donley  and  Anderson,  for  the  appellee. 

By  Oourty  WhxkliB}  J.  The  questions  presented  by  the 
record  in  this  case  are  settled  I7  the  previous  adjudications  of 
this  court. 

It  is  true  that  the  plaintiff,  in  his  representative  character, 
could  not  bind  the  estate  by  his  warranty:  Lynch  t.  Baxier,  i 
Tex.  431  [61  Am.  Dec.  786].  And  so  much  of  the  answer  as  set 
up  and  relied  on  his  alleged  wazraniy  was  rightly  stricken  out. 
But  it  is  also  true  that,  though  the  administrator  of  an  estate 
can  not  bind  the  estate  by  his  warranty,  or  render  it  responsible 
in  damages  for  fnuds  or  torts,  committed  I7  him,  yet  in  his 
dealings  with  third  persons,  in  respect  to  the  estate,  he  is  not, 
by  his  representative  character,  absolved  from  the  universal  ob- 
ligation to  observe  the  dictates  of  natural  justice  and  common 
honesty,  which  require  that  he  shall  act  fairly  and  not  fraud- 
ulently. Nor  can  the  estate  which  he  represents  be  permitted 
to  derive  an  unjust  and  unconscientious  advantage,  to  the  injury 
of  those  with  whom  its  l«gal  representative  contracts,  by  means 
of  his  unauthorized  fraudulent  conduct :  CrayUm  v.  Mimger,  9  Id. 
286.  If  the  averments  of  the  answer  were  true,  they  entitied  the 
defendant,  if  not  to  a  rescission  of  the  contract  hj  reason  of  his 
not  having  asked  a  rescission  with  appropriate  averments,  at  least 
to  an  abatement  of  the  price  contracted  to  be  paid  for  the  negro, 
in  BO  far  as  his  value  was  diminished  by  reason  of  the  vices  and 
unsoundness  concealed  by  the  false  and  fraudulent  representa- 
tions of  the  plaintiff.  To  that  extent  the  averments  of  the 
answer  were  a  defense  to  the  action;  and  the  court  erred  in  sus- 
taining the  exceptions  to  the  entire  answer. 

The  court  also  erred  in  rendering  judgment  for  the  want  of 
an  answer,  and  without  the  intervention  of  a  jury,  when  the  de» 
fendant  had  answered  by  a  general  denial.  Though  the  general 
denial  did  not  put  the  plaintiff  upon  proof  of  the  execution  of 
the  note,  it  required  its  production:  Maiossy  v.  IVosh,  9  Tex.  610, 
618;  and  it  precluded  the  pUi^itiff  from  taking  judgment  by  de- 
fault for  the  want  of  an  answor.  The  judgment  is  reversed  and 
the  cause  remanded. 

Beversed  and  remanded. 


StO  Ablxs  v.  Uiluol  [Tezu^ 

RjUHivfUM  m  AnmnanLivoBfl  oak  vo*  Bnm  BRAm  mr  Wambaxtt  of 
the  property  lold,  Imt  mfty  bind  themaelTcs  persooAlly:  See  ITortAy  ▼.  Joht^ 
mm,  52  Am.  Beo.  309,  note  407;  Stiead  ▼.  CoUman^  56  Id.  112;  MerriU  t. 
HarrU,  57  Id.  359;  aee  elso  i?avw  v.  I^rmch^  37  Id.  36,  note  37. 

Gekxbal  Dkkul  Don  vox  Pur  PLAurrurv  Suing  on  Notb  to  Pboov  of  its 
ezeoution,  bat  it  reqairee  the  pi  eduction  of  the  note,  and  preolndes  tbo 
plaintiff  from  taking  judgment  by  default  for  want  of  an  answer:  Kimiard  ▼• 
fferloek,  20  Tez.  48;  Bedwelir.  Thomprnm,  26  Id.  246,  both  dtingthe  princi- 
pel  case. 

Pabtt  Suino  on  Notb  must  Pbodugs  It  in  Eyidbnob:  Daitu  ▼.  ManhaU^ 
25  Tez.  372;  SmUh  v.  Wood,  87  Id.  620,  both  citing  the  principal  case. 

The  pbinoipal  gasb  is  ottsd  in  Suttace  ▼.  Jahm,  38  CaL  23,  to  the  poinl 
that  an  action  that  is  founded  upon  malf eaaanoe  or  mlwfftManre,  or  for  a  tor^ 
can  not  be  maintained  against  an  administrator  as  such;  and  in  Walion  ▼• 
Beager,  20  Tez.  110^  it  is  said  that  the  false  representations  reUered  agafaul 
In  the  principal  case  were  concerning  the  particular  qualities  of  a  bUto,  whish 
no  one  but  an  owner  oould  reasonably  have  the  means  of  knowing. 


AbLES  t;.  MiLLEB. 

[la  teus,  109.] 

Deposition  or  Witnbsb  Pboperlt  Taken,  on  Gbound  or  ma  not  Bxcm 
Bjbodsnt  of  the  ooonty  in  which  the  suit  was  instituted,  is  admissible  in 
evidence,  notwithstanding  the  faot  that  the  witness  had  moved  into  thai 
oounty  before  the  triaL 

Appeal  from  Cherokee.    The  opinion  states  the  case, 

8hanls8t  and  Bonner  and  Bonner ,  for  the  appellants. 

Donley  and  Anderson,  for  Che  appellee. 

By  Court,  Lepsoohb,  J.  The  first  and  main  objection  relied 
on  by  the  appellants  to  the  judgment  of  the  court  below  is  to  the 
ruling  of  the  court  in  admitting  as  evidence  the  deposition  of 
a  witness,  taken  properly,  on  the  ground  of  his  not  being  a  resi- 
dent citizen  of  the  county  where  the  suit  was  instituted  and  tried, 
but  who  had  before  the  trial  moved  into  that  county.  It  was 
admitted  on  the  ground,  supported  by  the  affidavit  of  the  plaint- 
iff' s  counsel,  that  the  plaintiff  was  absent  from  the  state,  and 
that  the  witness,  when  deposition  was  offered,  was  absent  from 
the  county.  There  is  no  objection  to  the  deposition  being  prop- 
erly taken,  and  the  only  objection  is  to  its  admissibility.  The 
witness  haying  become  a  citizen  of  the  county  where  the  suitwaa 
tried,  we  believe  the  objection  is  not  available.  If  legally  taken, 
it  was  adnussible.  It  would  be  unreasonable  to  require  a  party 
to  keep  his  eye  on  the  witness  after  his  testimony  had  been 
taken,  and  to  make  it  his  duty  to  put  the  witness  under  subposna 


1864]  Cablik  v.  Hudson.  btl 

ihould  lie  more  into  ike  county.  It  is  not  a  case  of  testimonj 
taken  de  bene  ewe,  under  the  statute,  of  an  infirm  witness,  or 
one  about  to  leave  the  country. 

The  appellants  further  object  that  the  aflGLdavit  of  the  counsel 
was  not  sufficient,  that  it  ought  to  have  been  made  by  the  party 
himself;  and  we  are  referred  to  the  case  of  Oivens  y.  Jhylor,  Hart 
S  Co»,  6  Tex.  315.  That  was  altogether  a  different  question. 
In  that  case  it  was  decided  that  under  the  statute.  Hart.  Dig., 
art.  50,  the  affidavit  to  put  in  issue  and  controvert  the  answer  of 
a  garnishee  must  be  made  by  the  party  himself,  and  not  by  his 
counsel. 

We  see  no  ground  of  error  in  the  charge  of  the  judge  to  the 
jury  that  appellants  can  complain  of.  If  the  judge  erred  at  all, 
it  was  in  the  appellants*  favor.  The  court  did  not  err  in  over* 
ruling  the  motion  for  a  new  trial,  and  the  judgment  is  affirmed. 

Judgment  affirmed. 

Dbfosition  or  Witniss  RBsmmo  ik  Tows  whxbs  Tbial  Tajees  Plaos 
b  admissible,  if  taken  to  be  naed  in  a  town  more  than  ten  miles  distant,  and 
the  case  is  continued  to  the  next  teim  at  the  place  where  the  witness  reddesx 
Fwnmocrth  ▼.  Chaae^  61  Am.  Dea  206,  note  210.  An  objection  to  the  read- 
ing of  the  deposition  of  a  witness  on  the  ground  that  he  was  out  of  the  limits 
of  the  county  ought  to  be  sustained:  Stafford  v.  JTIn^,  30  Tex.  276,  citing  the 
principal  case. 

Tnx  PBINCIFAL  CABB  IS  CITED  in  LcbdeWs  AdriCr  ▼.  Fowler^  33  Tez.  360» 
to  the  point  that  a  deposition  taken  when  the  witness  was  competent  to  tes- 
tify may  be  read  at  the  trial,  though  the  witness  be  rendered  incompetent  at 
the  time  of  the  trial.  It  is  also  distinguished  in  AUbrigJU  ▼.  Oorle^,  64  Id. 
t78. 


GaBUN  V.  HiTDSON. 

[13  Tbxas,  903.] 

Iirjuircrnoir  will  kot  be  Gbantxd  to  Rbstraik  Sals  oir  ExBOVxioir  cf 
land  which  the  judgment  debtor  has  conveyed  to  the  party  petitioning 
for  the  injunction. 

Whxbb  Pbbbon  not  Pabtt  to  Reoobd  Obtaikb  iNJtnronoN  to  Rbstraiit 
Salb  on  execution,  and  the  injunction  is  dissolved,  it  is  error  for  the 
court  to  render  judgment  against  him  and  his  sureties  for  the  amount  of 
the  original  judgment.  The  statute  authorizing  the  oonrt  to  award 
damages  for  the  delay  caused  by  suing  out  sn  injunction,  oo  the  dissolu- 
tion thereof,  has  reference  to  injunctions  to  restrain  the  collection  of 
BDoney,  obtained  by  the  judgment  debtor,  or  some  one  who  is  a  party  to 
the  judgment. 

ApfBAL  from  Harrison.    Carlin  filed  a  petition  in  the  distiiot 
•oiirty  alleging  that  he  had  porohased  a  certain  tract  of  hind 


622  Oabuk  v.  Hudson.  [Tezu^ 

from  one  Ford,  and  gave  hiB  note  for  the  purchase  money;  that 
three  days  after  his  title  deeds  were  recorded  the  appellees  caused 
an  execution,  issued  on  a  judgment  obtained  by  them  against 
Ford,  to  be  levied  on  the  land;  that  great  injury  wotdd  be 
done  to  him  in  case  of  the  sale  of  his  land  by  virtue  of  this  exe» 
oution.  And  he  prayed  an  injunction,  which  was  granted. 
The  defendants  in  the  injunction  demurred  to  the  petition, 
answered  that  the  alleged  purchase  was  fraudulent  and  void  as 
to  them,  and  moved  that  the  injunction  be  dissolved  and  the 
petition  dismissed.  The  motion  was  granted,  and  the  court 
rendered  judgment  against  the  plaintiff  in  the  injunction  and 
his  sureties  for  the  amount  of  the  original  judgment  against 
Ford. 

Clough  and  Lane^  for  the  appellant, 

C,  M,  Adams,  for  the  appellees. 

By  Court,  Whbelbr,  J.  The  cases  in  which  injunctions  ave 
granted  to  restrain  the  alienation  of  property  are  those  where 
it  is  indispensable  to  secure  the  enjoyment  of  specific  property, 
or  to  preserve  the  title  to  such  property,  or  to  prevent  frauds, 
or  gross  and  irremediable  injustice  in  respect  to  such  property: 
2  Story's  Eq.  Jur.,  c.  23.  The  present  manifestly  does  not 
come  within  that  description  of  cases.  The  proposed  sale  of 
the  land  as  the  property  of  Ford  could  not  operate  to  dispossess 
the  plaintiff,  or  deprive  him  of  its  enjoyment,  or  to  defeat  his 
title,  or  embarrass  him  in  the  prosecution  of  his  legal  remedies 
for  any  injury  to  his  title  or  possession,  if  indeed  the  property 
were  his  by  a  fair  and  bonajide  purchase  made  before  any  lien 
had  attached  or  any  right  had  accrued  to  the  plaintiffs  in  ez^ 
cution  by  reason  of  the  judgment.  They,  by  virtue  of  their 
execution,  could  only  sell  the  title  or  interest  of  Ford  in  the 
land,  whatever  that  might  be.  If  he  had  none,  the  sale  could 
not  work  any  irreparable  injury  to  the  real  owner.  And  to 
permit  the  execution  of  judgments  to  be  enjoined  for  such 
causes  would  be  to  enable  judgment  debtors,  l^  fraudulent 
transfers  of  property,  to  embarrass  the  collection  of  debts  by 
imposing  upon  their  creditors  the  necessity  of  almost  intermina- 
ble litigation  and  delay.  The  present  was  not  a  proper  occa- 
sion for  the  court  to  interpose  its  preventive  and  protective 
authority  by  injunction:  JETeTuZersan  v.  JferriQ,  12  Tex.  1;  Cam^ 
eron  v.  White,  3  Id.  162.  The  injunction  was  improvidently 
awarded.  And  as  the  threatened  sale  was  the  only  injury  com- 
of,  and  the  obtaining  of  an  injunction  the  sole  purpose 


1854]  Oabun  v.  Hudsov.  528 

of  fhe  suity  the  petition  was  rightly  dismisaed  for  the  want  of 
equity. 

But  the  court  went  fiirther^  and  gave  judgment  against  the 
plaintiff  in  the  injunction  and  his  sureties  for  the  amount  of 
the  judgment  against  Ford.  This  might  have  been  proper,  if 
Ford  had  been  plaintiff  in  the  injunction,  or  if  the  plaintiff  had 
been  a  party  to  the  judgment.  But  he  had  in  no  way  become 
a  party  thereto;  and  surely  his  attempt  to  restrain  the  sale  of 
the  land  did  not  authorize  the  making  him  a  party  to  the  judg- 
ment against  Ford,  or  the  award  of  judgment  ag^unst  him  and 
his  sureties  for  the  amount  of  that  judgment,  or  for  any  amount, 
without  averment  and  proof  by  the  plaintiff  in  execution  of  the 
damages  occasioned  by  the  suing  out  of  the  injunction.  The 
statute  authorizing  the  court  to  award  damages  for  delay  on  the 
dissolution  of  an  injunction,  Hart.  Dig.,  art.  1602,  has  inference 
to  injunctions  to  restrain  the  collection  of  money  obtained  by  the 
judgment  debtor,  or  some  one  who  is  a  party  to  the  judgment. 

It  was  competent  for  the  plaintiffs  in  execution  to  have 
pleaded  to  the  petition  for  injunction  the  damages  sustained 
by  reason  of  the  improper  suing  out  of  the  injunction,  or  they 
may  have  an  action  on  the  bond  for  the  injury  thus  occasioned; 
but  they  can  only  recover  upon  proof  of  the  damages  they  have 
sustained  by  reason  of  the  injunction:  Mammonda  v.  B^cher,  10 
Tex.  271. 

Because,  therefore,  the  court  erred  in  giving  judgment  against 
the  appellant  and  his  sureties  for  the  amount  of  the  judgment, 
on  dissolving  the  injunction  and  dismissing  the  case  the  judg- 
ment must  be  reversed,  and  such  judgment  be  here  rendered  as 
the  court  below  ought  to  have  rendered;  which  is,  that  the  case 
be  dismissed. 

Beversed  and  reformed. 

Injungtioms  to  Prkvxnt  Clouding  or  Titles  bt  Bxioutiov  Sausb.— TIm 
dootrine  of  the  principal  case,  that  an  injunotion  will  not  be  iasued  to  reatrain 
the  aale,  upon  ezeoatdon,  of  real  estate  which  the  jadgment  debtor  has  aold 
to  »  third  perKm,  who  is  the  tme  owner,  is  certainly  different  from  that 
adopted  in  generaL  It  seems  to  ns  to  be  a  very  pertinent  illnstration  of  the 
laet  of  the  unwillingness  of  American  ooorta  to  use  the  remedy  of  injonotion. 
If  a  said  upon  execution  will  dond  the  title  of  the  real  owner,  certainly,  upoo 
principle,  an  injunotion  should  issue  to  prevent  such  sale.  In  8  Pomeroy's 
Eq.  Jur.,  sees.  1345,  1398»  1399,  it  is  said  that  the  preventing  and  re- 
noving  clouds  from  title  are  governed  by  the  same  rules.  In  Freeman 
on  Ezeoatioos,  sea  438^  the  following  language  is  used:  ''Where  a  sale 
which  is  threatened  to  be  made  under  exeontion  will  if  made  doud  the 
title  of  the  true  owner,  he  may,  by  application  to  equi^,  prevent  the  sals 
from  being  madei  dting  Bwdd  v.  Long,  18  Fla.  288;  JfcPUe  v.  Pen,  61  Ho. 


624  Sabtain  v.  Hamiltok.  [T^zaa^ 

63;  MerehaM  Bank  ▼.  JftNUU,  Id.  845;  OaBey  r.  TrmMeea^  6  Pbige,  282^ 
Tear  v.  Mathews,  Wright,  371;  5'«>«  ▼.  Ondenionk,  14  N.  Y.  9;  Bemmei  t. 
MeFaddoi,  61  IlL  334.    The  cmm  of  fTortl  v.  OaidweU^  4  Minn.  294;  Miml^ 
gomery  v.  -^<«»»  9  Id.  103;  Arvutrong  v.  Sa^ford,  7  Id.  49;  ZVaJbe  ▼.  Jtme*,  2? 
Mo.  428;  JTuAn  v.  McNeil.  47  Id.  389,  seem  to  be  in  conflict  with  the  general 
rale.     Where  ft  sale,  if  made,  would  create  a  title  under  which  the  purchaser 
oonld,  in  ejectment,  recover  against  the  tme  owner,  nnleae  the  latter  placed 
hia  own  title  in  evidence^  or  by  some  other  means  established  the  iiiTnlidit^ 
of  the  porchaser'a  title,  then  saoh  sale  ia  a  dead  on  the  title  of  the  tme  owner. 
Henoe,  if  an  ezecntion  against  a  person  who  had  once  been  the  owner  of  the 
property  be  levied  upon  it,  and  it  be  no  longer  liable  to  levy  and  sale  nnder 
tach  execntion,  the  present  owner  of  the  property  may,  in  equity,  prvrent 
hia  title,  from  being  clouded  by  saoh  aale:  fiadeif  ▼.  Huffgimt  15  CoL  127; 
Shtgland  v.  Lewis,  25  Id.  337;  Bach  ▼.  Goodrich,  9  Bob.  (La.)  891;  I>ouMmg 
Y,  Mann,  43  AU.  266;  Martin  v.  Heweit,  44  Id.  418;  Kcff  CUy  O,  L.  Co,  ▼. 
MunaeU,  19  Iowa,  305;  ShaUuek  v.  Canon,  2  CaL  688;  Pettii  v.  Shepherd,  i 
Paige,  493;  Norton  v.  Beaver,  5  Ohio,  178;  Bank  4if  U,  8.  v.  Schaia,  2  Id. 
471;  MeCuUoch  v.  HoUmgrnoorih,  27  Ind.  115.    Bat  if  the  title  to  be  crsftted 
t^y  a  sale  is  each  that  iU  invalidity  can  be  determined  from  inspection,  or 
that  the  trae  owner  need  offer  no  evidence  to  protect  himself  from  it,  then  it 
is  not  a  cload  on  his  title,  and  the  sale  will  not  be  enjoined:  Meloy  v.  IMmak- 
^y,  16  Wis.  209;  Moore  v.  Cord,  Id.  213;  Scott  ▼.  Onderdank,  14  N.  Y  9- 
piOeg  ▼.  ^«W«M,  15  CaL  127;  OambU  ▼.  St.  Ixmie^  12  Mo.  617."    In  WkU^ 
0ian  ▼.  Wma,  51  Tex.  421,  426,  Bonner,  A.  J.,  after  quoting  the  second  of 
the  above  propositiona  laid  down  by  Mr.  Freeman,  says:  •«  This  seems  to  be 
the  rule  adopted  in  aevend  of  the  aUtea  of  the  Union.    This  coart,  however 
has  not  gone  to  this  extent,  bat  has  adopted  a  more  limited  role;**  qnottnff 
fg^^  and  approving  the  principal  case.    So  also  in  Whitman  v.  WUUs,  LdL 
429*  432,  the  same  judge  uses  the  following  Ungaage:  "  The  appellant  has 
^Yijioed  much  seal  in  the  effort  to  protect  hia  title  to  the  land  levied  upon; 
but  under  the  decision  of  thia  court  in  Cariin  v.  Hudwn,  12  Id.  202,  and 
the  9bo^  case  of  WhUiman  v.  Willie,  he  has  not  shown  such  an  infringe- 
gi^t  of  his  legal  right  as  would  authinriae  the  interposition  of  a  eoort  of 
eqoi^  ^y  *^  extraordinary  remedy  of  injunction."    The  rule  laid  down  by 
^le  principal  case  stands,  therefore,  aa  the  law  of  Texas. 

Xbx  PBinciPAL  CASE  WAS  ovBBBULED  in  Ckodt  V.  OoUUhwoite,  34  Tex.  llOi 
ug  to  the  point  that  the  statute  authorizing  the  court  to  award  damages  on  ' 
the  dtflsolution  of  an  injunction  has  reference  to  injunctions  to  restiuin  the 
ooUection  of  mouey  obtained  by  the  judgment  debtor,  or  some  one  who  is  a 
party  to  the  judgment;  but  Oa^  v.  Chldthwaite  was  in  turn  overruled  in 
Ofifin  V.  Chadwick,  44  Id.  411,  and  the  principal  case  affirmed;  see  also  the 
principal  case  approved  on  this  point  in  F^ergueon  v.  EerHng,  49  Id.  130- 
ScaUf'T,  Tompkins^  61  Id.  479. 


Sabtain  v.  HamttiTqw, 

[UTBXAi.219.] 

2MBSOV  s^^  ^'  PoasBSsoB  OP  Land  in  Qood  Faith,  though  Awabb  or 
Opposing  Claim,  if  he  entered  in  full  confidence  of  the  validly  of 
jijf  titlo;  but  if  he  ia  cognisant  of  the  claim  of  another,  he  most  luMrt 
i^ngoiiable  and  strong  grounds  to  believe  in  the  soundness  of  his  Ofwa 
title,  otherwise  he  can  not  claim  to  be  a  holder  in  good  faith. 


1854.]  Sabtain  v.  Haioltov.  5f6 

MI8TAXI  IH  BOUNDABT  IB  NOT  FoVNDATIOV  VOB  POSBBOOV  XV  QOOD  FaXTB, 

where  the  party  claiming  to  have  made  the  mistake  failed  to  employ  the 
legal  means  of  infonnation  at  to  his  limits  after  he  had  notice  of  an  ad- 
verse claim  to  the  land. 

Appeal  from  Busk.  The  suit  was  brought  to  recover  certain 
lands  claimed  by  the  plaintiff  under  a  patent  to  one  O'Hair. 
The  defendant  claimed  under  a  survey  to  one  Elizabeth  Jones. 
The  defendant  contended  in  this  court  only  for  his  right  to  com- 
pensation for  his  improvements.  The  court  charged  the  juzy 
that  if  the  defendant  took  the  advice  of  counsel  as  to  the  legality 
of  the  survey  of  Elizabeth  Jones,  and  was  advised  that  it  was 
good,  but  instead  of  settling  on  the  survey  of  Jones  settled  on 
land  claimed  by  the  plaintiff,  and  there  made  improvements; 
and  if  he  was  notified  by  the  plaintiff  at  or  before  his  settle- 
ment that  the  land  belonged  to  plaintiff,  and  not  to  make  im- 
provements, for  the  plaintiff  was  not  able  to  pay  and  would  not 
pay  for  such  improvements — ^then  the  defendant  was  not  a  set- 
tler in  good  f aithy  and  could  not  claim  anything  for  his  improve- 
ments on  that  ground.    The  other  facts  appear  from  the  opinion. 

8.  P.  Bdttinggwarth,  tor  the  appellant. 
Armstrong  and  PUner,  for  the  appellee. 

By  Court,  Hkhfhux,  0.  J.  The  instmotion  aaked  for  by 
defendant  does  not  embrace  any  very  intelligible  proposition, 
and  on  that  ground  it  might  have  been  rejected  by  the  court; 
but  it  may  have  meant,  that  if  defendant  believed  the  land  on 
which  he  settled  to  be  within  the  survey  of  Mrs.  Jones,  and  not 
in  that  of  the  plaintiff,  he  is  entitled  to  compensation  for  his 
improvements;  and  if  such  was  the  proposition,  it  will  be  seen 
that  there  was  no  error  in  its  refusal  by  the  court. 

The  suggestion  of  improvements  by  defendant,  and  his  claim 
to  them,  is  founded  upon  the  statutes  allowing  compensation  for 
permanent  and  valuable  improvements  to  possessors  who  hold 
in  good  faith.  It  becomes  important,  then,  to  ascertain  what 
is  a  settlement  in  good  faith;  and  as  this  is  not  defined  by  stat- 
ute, we  must  refer  to  other  sources  for  its  definition. 

In  the  Instituies  qfAs8o  d>  Manuel^  1  White,  92,  good  faith  is 
aaid  to  consist  in  the  possessor's  believing  that  the  person  fron 
whom  he  received  the  thing  had  a  right  to  alien  or  transfer  it. 
By  the  civil  code  of  Louisiana,  article  495,  a  banajide  possessor 
is  described  to  be  one  who  possesses  as  owner  by  virtue  of  an 
act  sufficient  in  terms  to  transfer  property,  the  defects  of  which 
he  was  ignorant  of;  he  ceases  to  be  a  b(ma  Jide  possessor  from 


626  Sabtadt  v.  Hamilton.  [Texas^ 

the  moment  these  defects  are  made  known  to  him  or  are  declared 
to  him  by  a  suit  for  the  recovexy  of  the  same  by  the  proprietor. 

Mr.  Sedgwick,  in  his  learned  treatise  on  the  measure  of  dam« 
ages,  defines  a  bona  fide  possessor  to  be  one  who  not  only  sup- 
poses himself  to  be  the  true  owner  of  the  land,  but  who  is  igno- 
rant that  his  title  is  contested  by  any  person  claiming  a  better 
right  to  it:  Sedgwick  on  Dam.,  2d  ed.,  126. 

This  definition  is  supported  by  the  authority  to  which  he  re- 
fers, viz.,  Bright  y.  Boyd^  1  Stozy,  478;  but  if  it  be  construed  to 
restrict  the  quality  of  good  faith  to  cases  only  where  the  tenant 
is  ignorant  that  his  title  is  contested  by  one  who  claims  the  land 
under  a  better  right,  I  apprehend  that  it  does  not  embrace  all 
the  elements  which  may  constitute  good  faith,  and  that  it  would 
fail  to  secure  rights  which  our  statutes  intended  to  protect.  No 
doubt  the  definition,  so  far  as  it  goes,  is  sound,  and  that  a  pos- 
sessor holds  in  good  faith  who  is  justifiably  ignorant  of  the 
rights  of  the  true  owner.  But  he  may  also  have  good  faith 
where  he  makes  an  innocent  mistake  in  point  of  law;  for  in- 
stance, as  to  the  construction  of  a  demise,  the  due  execution  of 
a  power,  and  the  like,  where,  though  aware  of  the  opposing 
claim,  he  may  have  entered  in  full  confidence  of  the  validity  of 
his  title:  Adams  on  Eq.  886,  referring  to  Bull.  N.  P.  88.  Of 
course,  when  the  tenant  is  cognizant  of  the  claims  of  another, 
he  must  have  reasonable  and  strong  grounds  to  believe  in  the 
soundness  of  his  own  title,  otherwise  he  can  not  claim  as  a 
holder  in  good  faith. 

Let  us  now  recur  to  the  circumstances  under  which  the  de- 
fendant claims  for  his  improvements.  He  does  not  claim  on 
the  ground  of  nullity  or  defect  of  plaintiff's  title,  but  on  a  mis- 
take of  boundary.  Now,  this  is  a  mistake  for  which  the  defend* 
ant  can  set  up  no  sufficient  justification.  It  was  one  in  no 
degree  induced  by  the  acts  or  silence  of  the  plaintiff.  He  prob- 
ably had  notice  of  the  plaintiff's  claim  at  the  time  of  his  entry. 
If  not,  he  had  such  notice  shortly  afterwards,  and  should  have 
immediately  employed  a  surveyor  to  ascertain  and  fix  the 
boundaries  of  his  survey.  This  he  did  not  do,  or  rather,  it 
seems  that  at  some  time  during  the  controversy,  not  specified 
in  the  record,  a  surveyor  was  called  in  at  the  instance  of  the 
defendant,  who  from  his  examinations  came  to  the  conclusion 
that  the  defendant  had  no  claims  to  the  land  on  which  the  im- 
provements were  made;  that  they  were  not  covered  by  his  sur- 
vey. The  mistake  of  the  defendant  as  to  his  boundary  vms  one 
which  did  not  require  the  aid  of  any  court  for  its  correction. 


1864]  Sabtain  v.  Hamilton.  627 


Sb  lineB  ooold  be  ascertained  without  inToUng  ji 
authority  or  its  powers  of  construction  to  settle  his  rights. 
And  if  he  failed  to  employ  the  legal  means  of  information  as 
to  his  limits,  and  intruded  upon  the  land  of  another,  he  must 
pay  the  penalty  of  his  own  folly,  and  can  not  justly  claim,  under 
such  circumstances,  that  he  is  holding  in  good  faith;  and  more 
especially  where  the  surveyor,  whose  services  he  secures,  re- 
ported  directly  against  his  claim. 

No  substantial  objection,  with  reference  to  the  oiroumstancea 
of  this  case,  is  perceived  to  the  charge  of  the  court  in  relation 
to  improvements  made  after  notice  that  the  plaintiff  would  not 
and  could  not  pay  for  them. 

Had  there  been  no  such  notice,  it  might  have  been  veiy  plausi- 
bly urged  that  the  defendant  would  have  been  entitled,  on  the 
ground  that  the  plaintiff  suffered  the  improvements  to  be  made 
without  notice  of  his  title. 

The  question  in  relation  to  the  rights  of  tenants  to  be  com- 
pensated for  their  improvements,  and  whether  some  portions  of 
our  statutes  on  the  sujbject  are  or  are  not  obnoxious  to  the  pro- 
visions of  the  constitution,  is  of  veiy  great  importance;  but  it 
had  not  been  argued  with  such  elaborate  research,  either  in  this 
or  any  other  case  before  the  court,  as  would  justify  a  full  decis- 
ion on  the  subject. 

We  are  of  opinion  that  there  is  no  error  in  the  judgment,  and 
that  the  same  be  afBrmed. 

Judgment  afBrmed. 

Statuts  or  LDOTATiomi  Fouiibkd  oir  Mibtaxb  nr  BouimABT.— The  qiies- 
feioii  whether  a  perty  can  acquire  a  title  by  advene  poeeeMion  to  lancbi  held  by 
him  by  mistake  frequently  ariaee;  and  the  rule  is  well  eettled  that  where  the 
owner  of  lands,  through  ignorance,  inadvertence,  or  mistake,  takes  and  holds 
possession  beyond  his  true  line,  but  with  no  intention  of  claiming  further 
than  his  actual  boundaries,  such  possession  is  not  adverse  and  will  not  sup* 
port  a  plea  of  the  statute  of  limitations:  Brovm  ▼.  CoekeriU,  83  Ala.  38| 
Lincoln  v.  Edgecombe  31  Me.  34d;  Wcrctater  v.  Lord^  56  Id.  265;  Daw  v.  J/ic- 
Kenney,  64  Id.  138;  Ron  ▼.  OoMj  5  Id.  204;  Brown  v.  (7ay,  3  Id.  126;  8t^ 
Louis  UniversUi/  v.  JkfcOtine^  28  Mo.  481;  KnowUon  v..  SmUh,  36  Id.  507; 
Thoma$  v.  Babb,  45  Id.  384;  Kineaid  v.  Domuy,  47  Id.  337;  Tanm  v.  Kel- 
logg, 49  Id.  118;  IIoux  ▼.  BaUeen,  68  Id.  84;  Orube  v.  WelU,  34  lowa^  148; 
Shhmer  ▼.  Cravtford,  54  Id.  119;  Comegy%  v.  CarUyt  3  Watts,  280;  RMnnm 
T.  JKnne,  70  N.  Y.  147;  RiUy  v.  Chriffin,  16  Ga.  141;  S.  C,  60  Am.  Bea  726| 
Howard  v.  Beedpt  29  Ga.  152;  snd  this  rule  is  equally  applicable  to  the  pub* 
lie  using  a  way  supposed  to  be  on  a  certain  line,  but  which,  through  mistake, 
is  not  really  upon  it:  Slate  ▼.  Welplon,  34  lowa^  144.  As  was  succinctly 
stated  in  St.  Louis  UniversUy  ▼.  MeOune,  supra:  "  If  the  plaintJAEs  erected 
their  fence  accidentally  upon  the  defendant's  land,  through  mistake  or  igno- 
ruioe  of  the  correct  line  separating  the  tracts,  and  without  intending  to  daia 


528  Sabiain  v.  Hamilton.  [Tezafl, 


beyond  iheir  trae  line,  then  Uieline  of  oocnpationtlnnr  taken,  and  the  poa 
Bion  that  foUowed,  it  did  not  work  a  diaKisin."    The  foUowini^  oaaaa,  w] 


Bion  ina«  iouuww«,  » «*»«  ««•  ^w.-.  -  ..^.-w^..^       •«.»  .w.w^.«0       ■ « ■*  w^hile 

recognizing  tho  foregoing  rule,  seem  to  place  some  atreas  upon  the  £aet 

that  a  small  portion  only  of  the  land  was  inclosed  by  niiatake:  GUekriai  r. 

McLaughlin,  7  Ired.  L.  310;  Dm  ex  dan.  Green  ▼.  Harmon,  4  Dev.  I*.  158; 

CaUa  ▼.  BvOer,  3  Humph.  447.    The  basis  of  the  rnle  is  that  there  waa  no 

intention  to  daim  beyond  the  true  boandaries.     "  Indeed,*'  aaya  BCr.  Axigell, 

*'  that  it  is  the  intention  to  claim  title  which  makes  the  poaaeaaicm  of  the 

holder  of  the  land  adyersCi  is  the  doctrine  upon  which  the  disaeiain  in  evearj 

ease  can  proceed:**  Angell  on  limitations,  sec  390.    If,  then,  a  person,  while 

npon  his  own  land,  by  mistake  takes  and  holds  poasoasion  beyond  hia  troe  line^ 

or  by  mistake  takes  and  holds  possesnon  of  an  entirely  different  pieoe  of  land 

from  that  embraced  within  the  terms  of  his  deed,  but  with  an  intention  to 

claim  title  to  the  land  occupied,  then,  although  the  line  ia  fixed  by  miatake, 

the  holding  is  adverse,  and  will  work  a  disseisin:  Tamm  ▼.  Kellogg,  49  Ma 

118;  HamUUm  ▼.  iresf,  63  Id.  03;  Walbrmin  ▼.  BaHen,  68  Id.  164;  AhSoU  t. 

AbboU,  51  Me.  575,  584;  HUehingM  ▼.  Marrimm,  72  Id.  331;  Bieter  ▼.  mb- 

laird,  73  Id.  105;  Doe  tx  dan.  Mode  v.  Long,  64  N.  a  433;  Btmot  t.  BidweO, 

43  Mich.  542;  BumeU  v.  Moloney,  39  Vt.  579,  582. 

*'A  distinction  has  been  maintained,**  says  the  supreme  ooortof  liiisBoari  in 
ffamiUon  ▼.  WeH,  mtpra,  **  throughout  the  decisiona  of  this  court,  on  the  anb- 
ject  of  adverse  possession,  in  cases  of  unasoertained  boandariea,  between  the 
cafidB  where  possession  of  land,  belonging  to  one  of  two  cotemunooa  proprie- 
tors, has  been  taken  and  held  by  the  other  in  ignorance  of  the  tme  diviaion 
line,  but  with  the  intention  of  only  cUdndng  the  land  up  to  the  tme  line,  wher. 
ever  it  might  be,  and  the  case  where  such  proprietor,  in  ignoranoeof  the  tme  line, 
but  dainung  a  division  wall  or  f  enoe,  erected  by  himself  or  others,  to  be  the  tme 
line,  has  taken  and  held  possession,  claiming  the  land  aa  hia  own  np  to  aach 
vrall  or  fence.    In  the  former  case,  the  possession  will  not  be  adverse  to  the 
true  owner;  in  the  latter,  it  will  be."    So  Danforth,  J.,  in  Bicker  v.  Hibbard, 
itipra,  in  commenting  upon  Worcester  v.  Lord,  56  Me.  265,  and  Dow  ▼.  Mc' 
jCenney,  64  Id.  138,  cited  eupra,  says:  '*  That  these  two  caaea  axe  oorreotly  de- 
cided, we  have  no  doubt    But  the  prineiples  involved  are  not  applicable  to 
the  case  at  bar.    In  thoae  oases,  which  grew  out  of  a  disputed  boundary  line, 
the  occupation  was  beyond  the  line  from  ignorance  of  or  a  mistake  aa  to  its 
^rae  location,  and  what  is  material,  not  with  any  intention  to  claim  title  to 
^y  land  not  covered  by  the  deed.    That  this  intention  ia  a  necessary  ele* 
inent  to  make  an  adverse  possession  is  held  by  all  the  authorities.    In  the 
^^gji0  at  bar  there  was  indeed  a  mistake.    The  deed  described  one  lot,  while 
the  grantee  toek  possession  of  another  and  different  one.    Whether  the  mis- 
take was  in  the  deed  or  in  taking  possession  does  not  appear,  and  perhaps 
It  is  ^^^  material.    The  trae  question  is,  whether  Starbird,  when  he  took 
possession  of  that  lot,  intended  to  hold  it  as  his  own  and  against  all  persona. 
Xbe  intention  is  the  test,  and  not  the  mistake.    It  is  not  unusual  for  an  ad- 
^^rso  possession  to  begin  under  a  mistske  as  to  the  title;  perhaps  it  is  ao  in 
moat  oases  where  the  party  is  honest.    If  he  goes  into  possession,  fuUy  believ- 
Iq2  be  has  a  good  title,  and  intending  to  hold  under  that  title,  surely  auoh  a 
claim  would  not  be  rendered  invalid  by  a  discovery  alter  twenty  years  that 
the  title  was  not  good."    Although,  the  case  of  French  v.  Pearce,  8  Conn.  439; 
S.  C.»  21  Am.  Dec.  680,  has  been  much  criticised  aa  being  contradictory  of  the 
g^t  M^eight  of  authority  upon  this  question,  it  would  seem,  from  a  careful . 
oonsideJ^*^?**.*^'  the  facts  and  of  the  language  of  the  court,  bearing  in  ndnd  the 
loregoi'^S  ^^^^^on,  that  adifferentconclusion  was  not  intended  to  be  reached. 


1854]  Sabtain  v.  RMXXLToa.  629 

and  that  the  oase  ia  reoonoilable  with  the  deoiakma  above  cited.  Inaooarate 
expreesions  have,  however,  been  need  in  some  of  the  oaiea.  Thus  in  Ba»$  ▼. 
Oould,  5  Me.  204,  it  ia  said:  "A  diaaeiain  oaa  not  be  oommitited  by  mistakes 
Brown  ▼.  Oay,  3  Me.  126;  becaose  the  intention  of  the  possmsor  to  claim  ad* 
Tersely  is  an  essential  ingredient  in  a  disseiun;  and  for  the  same  reason  mere 
mistake  will  not  constitate  an  abandonment  of  possession:"  see  also  BUey  v. 
Origin^  16  Oa.  141,  145;  8.  GL,  60  Am.  Dec.  726,  727;  whereas  it  is  shown 
above  that  an  adverse  possession  may  begin  and  continue  under  a  mistake. 
It  must  be  observed,  in  this  connectioQ,  that  where  a  mistake  is  made  as  to 
the  boundaries,  and  a  party  asserts  a  claim  to  the  lands  as  inooneotly  defined, 
his  possession  is  deemed  adverse  to  the  extent  only  of  his  actual  close: 
McKirmey  v.  Kenny^  1  A.  K.  Marsh.  460;  Smith  v.  Marrow^  5  litt  210; 
Hunter  v.  Chrisman,  6  B.  Mon.  463;  Jaekaon  v.  Woodrmf^  1  Oow.  276;  /odb- 
Bon  V.  Xoyd,  Id.  286;  Crary  v.  Goodman^  22  N.  Y.  170,  172, 175;  Proprkton 
qfEnJieldy,  Day,  7  N.  H.  457;  Hole  v.  OUdden,  10  Id.  307.  As  to  the  effect 
of  mistake  upon  boundaries  established  by  parol  agreement  or  by  acquiescence^ 
see  Brewer  v.  Boston  etc.  B.  B.,  39  Am.  Dec  694;  CroweU  v.  Maughs,  43  Id. 
62;  Knight  v.  Coieman^  49  Id.  147,  and  prior  cases  in  this  series  in  the  notes 
thereto. 

PossEssoBs  IN  Good  Faith,  as  Entitlkd  to  Ck>MPKKaATiox  vob  Im- 
FKOVEMKNTS. — ^Thc  principal  case  was  cited  in  Houtton  v.  Sneed,  15  Tex.  310, 
as  sanctioning  the  definition  of  Mr.  Sedgwick  that  '*a  bonajide  possessor 
waa  one  m  ho  not  only  supposes  himself  to  be  the  true  owner  of  the  land,  but 
who  is  ignorant  that  his  title  is  contested  by  any  person  claiming  a  better 
right,**  and  as  intimating  that  the  rule  ought,  in  a  proper  case,  to  be  extended 
further  in  support  of  the  right  to  recover  compensation  for  improvements 
made  in  good  faith;  and  in  Dom  v.  Dimham,  24  Id.  380,  it  was  cited  as  quot- 
ing the  above  definition  with  approbation,  but  intimating  that  notice  of  an 
adverse  claim  would  not  necessarily  destroy  the  good  faith  of  the  possesskxi, 
and  ss  saying  that  the  person  aware  of  the  claim  of  another  must  have  reason- 
able and  strong  grounds  to  believe  in  the  soundness  of  his  own  title,  otherwise 
he  can  not  claim  to  be  a  possessor  in  good  faith.  It  waa  further  said  that  the 
definition,  with  the  qualification  subjoined  in  the  principal  case,  waa  perhapa 
as  accurate  an  expression  of  "  good  faith,"  aa  employed  in  the  statute,  aa  can  be 
given.  Where  the  def endanta  had  no  title  or  color  of  title  to  land"  covered 
by  the  plaintiff's  patent,  or  claimed  none,  and  knew  or  were  informed  that  the 
field  they  were  purchasing  ran  over  upon  the  land  of  the  plaintiff,  they  must 
be  regarded  aa  mere  trespassers,  and  aa  such  entitled  to  no  compensation  for 
their  improvements:  NeAUi  v.  WaJUert^  38  Id.  579;  and  a  claim  for  improva- 
ments  made  in  good  faith  will  not  be  sustained  by  proof  of  nustake  aa  to  the 
boundary  line  of  the  land  claimed,  unless  carelessness  be  excluded:  Id.  576; 
the  first  citing  and  the  last  quoting  the  principal  case  to  these  points.  So  the 
principal  case  was  referred  to,  among  others,  in  Thompmm  t.  Comatockt  59  Id. 
820,  aa  fuxnishing  a  safe  guide  to  the  court  in  framing  ita  charge,  so  aa  to  pre- 
sent fairly  the  question  of  good  faith  aa  raised  in  the  pleadings,  in  a  case 
where,  to  an  action  in  trespass  to  try  title,  the  value  of  certain  improvements 
made  in  good  faith  is  set  up.  See  further,  on  this  question,  Davis  v. 
48  Am.  Deo.  276,  and  prior  cases  in  note;  JS^^srs  ▼.  FowUr^  54  Id.  271( 
A3L  Dae.  ToL.  LXn— M 


\ 


S80  Glafp  v.  Nelson.  [Tena^ 

CiiAFP  V.  Nelson.  .  • 

[19  TlBAS.  S70.] 

IjamsB  aw  Cbattil  icat,  without  Makiko  Dsmaitd,  ILmreAnr  Aonov 
for  Its  reeoTwy,  where  the  time  for  the  loan  hea  expired* 

Appeal  from  Houston.    The  opinion  states  the  facts. 

O,  F.  MoorSt  for  the  appellant. 

8.  A,  MUler,  for  the  appellee. 

By  Conrt,  HxKPHiLLy  0.  J.  This  is  an  action  for  the  reooYerj 
of  specific  chattels  which  the  plaintiff  alleged  he  had  loaned  for 
a  day  or  two  to  the  def endant,  and  which  the  said  defendant, 
although  the  time  for  the  loan  had  expired,  had  failed  and  re- 
fused to  deliyer  or  return  to  the  plaintiff. 

The  defendant  demurred,  on  the  ground  that  there  was  no 
allegation  in  the  petition  that  demand  had  been  made  of  the 
property  sued  for.  The  demurrer  was  sustained,  and  the 
plaintiff  appealed. 

We  are  of  opinion  that  the  judgment  sustaining  the  demurrer 
was  erroneous.  The  plaintiff's  allegations  about  the  loan  or 
the  time  for  which  it  was  made  are  not  very  definite  and  pre* 
cise,  but  they  are  sufficiently  definite  to  authorize  proof  of  the 
facts.  He  alleges  property  in  himself  about  ten  days  before  the 
commencement  of  suit,  and  that  he  had  made  a  loan  for  a  day 
or  two,  the  term  for  which  had  expired.  The  phrase  **  a  day  or 
two"  is  rather  indefinite;  but  I  presume  a  jury,  with  the  &icts 
before  them,  would  have  but  little  diffictdiy  in  determining 
whether  the  property  had  been  detained  longer  than  a  day  or 
two  or  not.  Whether  a  demand  should  be  made,  in  cases  of 
bailment,  previous  to  suit,  depends  upon  the  stiptdations  as  to 
time  for  the  return  of  the  property.  The  return  must  be  made 
at  the  time  contemplated  in  the  contract.  If  the  property  be 
detained  beyond  that  period,  no  demand  would  be  necessary  in 
order  to  sustain  an  action  for  its  recovery.  It  is  not  one  of  the 
obligations  of  the  lender  that  he  shall  at  the  expiration  of  the 
loan  go  after  and  bring  back  his  property,  but  it  is  the  duty  of 
the  borrower  to  restore  it  according  to  his  stiptdations.  If  no 
time  is  fixed  for  the  return,  then  a  demand  might  be  necessary 
as  a  prerequisite  to  the  action.  In  this  case  it  is  averred  thai 
the  time  for  the  loan  had  ei^ired.  If  such  were  the  fact,  and 
the  demurrer  admits  its  truth,  it  was  the  duty  of  the  defendant 
to  have  restored  the  property,  and  he  can  not  justify  its  deten« 
tion  on  the  ground  that  no  demand  was  made  for  its  restoration; 


1854]  Olabk  v.  Goss.  681 


Stozy  on  Bail.,  sees.  257,  259.    Judgment  refcned  and  oanaa 
remanded. 
Berezsed  and  remanded. 


Glabk  t;.  Gobs. 

[13Tbxas,8M.] 

Wbkrb  Nkw  Couvty  is  EBacrxo  wimisr  Lncns  aw  Old  Oin,  the  Mithor- 
ity  and  right  of  the  officers  of  the  old  oovnty  to  exeroiM  the  fimotloiui 
of  office  within  the  territory  erected  into  the  new  ooontj  oontiniie  nntil 
the  new  county  has  been  actoally  organised. 

Pabtt  Sexkiko  to  Ikyalidati  Locatiov  akd  Subtxt  Made  bt  Subtbtob 
or  Old  County,  on  the  ground  that  at  the  time  saoh  location  and  snrrey 
were  made  the  land  lay  within  a  new  ooonty  erected  out  of  the  old  one, 
must  not  only  show  that  at  the  time  the  organimtion  of  the  new  county 
was  proTided  for  by  law,  but  also  that  the  organisation  had  been  aefenany 
effected. 

Failu&b  or  SuBVETOB  TO  Transtxr  FiiLO-vofZB  or  ScTBTXT  from  the  rec- 
ords of  an  old  county  to  those  of  a  new  one  erected  out  of  it  csn  not  affect 
the  rights  of  the  party  for  whom  the  survey  was  made. 

Appeal  from  Harrison.  Trespass  to  try  title  brought  by  the  ap- 
pellees against  the  appellant.  The  act  of  congress  of  the  repubUo 
providing  for  the  organization  of  Harrison  county  out  of  a  portion 
of  Shelby  county  was  passed  on  the  twenty-fifth  of  January,  1839, 
A  surveyor  for  Harrison  county  was  elected  in  December,  1839, 
but  did  not  qualify  until  several  months  after.  The  survey  under 
which  the  plaintiffs  claimed  was  made  by  a  deputy  surveyor  of 
Shelby  county  on  the  first  of  December,  1839,  and  was  returned 
to  the  office  of  the  surveyor  of  that  county  in  January,  1840. 
It  was  placed  in  a  pigeon-hole  there,  and  seems  to  have  been 
overlooked.  It  was  afterwards  approved  by  a  subsequent  sur- 
veyor of  Shelby  county,  and  the  field-notes  were  then  trans- 
ferred to  Harrison  county  and  properly  recorded.  In  1841  the 
party  under  whom  the  defendant  claimed  had  the  land  located 
and  surveyed  by  the  surveyor  of  Harrison  county,  and  in  1846 
obtained  a  patent.    Other  facts  appear  from  the  opinion. 

Clough  and  Lane^  for  the  appellant. 
Hendermm  and  Jones^  for  the  appeUees. 

By  Court,  Wheelkb,  J.  The  principal  and  essential  inquiry 
in  this  case  was  as  to  the  validity  of  the  plaintiffs'  title.  If  the 
plaintiffs  by  legal  and  competent  evidence  have  shown  the 
right  in  th^nselves,  they  were  entitled  to  recover,  and  the  judg- 
ment must  be  affirmed;  otherwise  it  must  be  reversed.    The 


63S  Olabk  v.  0088.  [TeaoM^ 

only  question,  therefore,  which  it  is  inat4ffia1  to  notice  is  the 
competency  and  sufficiency  of  the  plaintiffB*  eTidence  to  estaUiah 
in  themselyes  a  Talid  subBisting  title. 

There  is  no  question  that  the  plaintifBsi'  location  and  surrey 
were  prior  in  point  of  time  to  the  defendant's,  and  if  Talid,  must 
give  them  the  superior  and  better  title.  But  it  is  contended 
that  the  survey  was  invalid,  because  made  by  a  surveyor  of 
Shelby  county  after  the  passage  of  the  act  establishing  and  pro- 
viding for  the  organization  of  the  new  county  of  Harrison, 
which  embraced  within  its  limits  that  part  of  the  old  county  of 
Shelby  in  which  the  land  was  situated.  And  in  support  of  the 
objection,  we  are  referred  by  counsel  for  the  appellant  to  the 
case  of  Linn  v.  ScoU,  8  Tex.  67.  To  this  it  is  answered  by 
counsel  for  the  appellee  that  the  new  county  of  Harrison  was 
not  organized  at  the  date  of  the  plaintiflTs'  survey,  and  conse- 
quently that  the  territoiy  remained  within  and  subject  to  the 
jurisdiction  of  the  county  of  Shelby.  And  the  case  of  (fShea 
V.  Tvoohigy  9  Id.  836,  is  relied  on  as  maintaining  the  authority 
of  the  surveyor  of  the  latter  county  to  make  the  survey  in  ques- 
tion. 

The  proposition  is  undoubtedly  true  that  a  surveyor  could 
hot  legally  make  a  survey  beyond  the  limits  of  the  county  or 
district  in  which  he  wias  appointed  and  empowered  to  exercise 
his  employment  or  office.  And  this  principle  is  maintained  by 
the  case  of  Linn  v.  Scott ^  8  Tex.  67;  and  see  Peacock  v.  Ham* 
mond,  6  Id.  544.  But  in  that  case  the  question  in  the  present, 
as  to  the  authority  or  right  of  the  officers  of  the  old  county  to 
continue  to  exercise  the  functions  of  office  over  the  territoiy 
erected  into  a  new  county  within  the  limits  of  the  old  one 
until  the  organization  in  fact  of  the  new  county,  did  not  arise 
and  was  not  considered.  That  question  arose  and  was  first  de- 
termined in  the  case  cited  by  counsel  for  the  appellee,  (fShea  v. 
TuDohig,  9  Id.  836,  which  decides  that  until  the  new  county  is 
actually  organized  the  territoiy  remains  subject  to  the  jurisdio* 
tion  of  the  old  county — a  principle  the  correctness  of  which, 
though  the  question  were  a  new  one,  we  could  not  hesitate  to 
recognize.  Otherwise  we  must  admit  the  anomaly  and  absurd- 
ity of  a  community  of  persons  within  the  state,  entitled  to  all 
the  benefits  conferred  by  civil  government  and  all  the  rights 
and  privileges  secured  by  the  constitution  and  laws,  and  yet  by 
law  deprived  of  those  benefits  and  rights;  neither  amenable  to 
the  law  nor  enjoying  its  protection;  disfranchised,  and  in  e£foot 
expatriated.    An  act  intended  to  have  such  e&ct,  or  which  re- 


18M.]  CSlabk  v.  Qossl 

qnired  to  be  flo  oonstroed  as  to  gire  it  siioh  efbefcy  wmld  be  a 
nullity.  The  case  of  (fShea  t.  Ihoohig,  supra,  is  (leeisiTe  of  the 
present  qnestion,  and  rightly  so,  on  principle.  The  offioers  of 
the  county  of  Shelby  were  not  precluded  from  exercising  the 
functions  of  their  offices  in  all  the  extent  of  their  former  juris- 
diction until  the  new  jurisdiction  became  operatiTe  by  its  com- 
plete organization. 

It  does  not  appear  when  the  counij  of  Haxrison  was  in  fact 
oxganized.  The  connij  surreyor,  it  seems,  was  not  qualified  to 
enter  Upon  the  discharge  of  the  duties  of  his  oflke  until  some 
months  after  this  survey  was  made.  He  then  respected  the  sur- 
yeys  of  the  same,  and  eyen  a  later  date  than  the  present,  made 
by  the  counij  surveyor  of  Shelby  county,  his  predecessor  in 
office,  within  the  same  jurisdictional  limits.  And  it  does  not 
appear  that  the  legality  of  those  surveys  was  ever  questioned, 
except  in  this  instance;  first  by  his  successor  in  office  (and  now 
by  those  who  claim  under  him),  who  at  the  time  was  seeking  to 
appropriate  to  himself  the  land  embraced  within  the  survey. 
But  for  the  disposition  of  the  present  question,  it  will  suffice  to 
say  that  it  devolved  on  the  party  impeaching  the  title  to  make 
good  his  objection;  and  if  the  survey  was  not  in  fact  made  until 
after  the  organization  of  Harrison  county,  the  defendant  should 
have  made  proof  of  that  fact.  We  conclude,  therefore,  that  this 
objection  to  the  plaintiffs'  title  can  not  be  maintained. 

There  are  other  views  of  the  case,  presented  by  the  record  and 
urged  with  much  apparent  reason  on  behalf  of  the  api)ellees,  in 
support  of  this  conclusion.  But  as  the  view  already  presented 
is  conclusive  of  the  question,  it  is  unnecessaiy  to  pursue  the 
inquiry  upon  those  points. 

The  objection  that  the  plaintiifH  had  abandoned  their  survey, 
and  that  the  party  making  the  location  and  survey  under  which 
the  defendant  claims  wasnot  affected  with  notice  of  their  elder 
survey,  can  not  be  maintained.  The  field-notes  and  a  plat  of 
the  survey  were  duly  returned  to  the  proper  office  in  Shelby 
county,  the  plat  was  recorded,  and  the  lines  of  the  survey  were 
plainly  marked,  so  that  the  subsequent  locator  had,  or  if  he  had 
used  due  circumspection  and  care  might  have  had,  information 
that  the  land  had  been  surveyed  and  severed  from  the  public 
domain.  The  failure  promptly  to  transfer  the  field-notes  to  the 
records  of  Harrison  county  is  satisfactorily  accounted  for  by 
the  witnesses.  It  was  in  consequence  of  no  fault  or  neglect  on 
the  part  of  the  plaintiffs,  but  was  the  result  of  an  oversight  com- 
mitted by  the  officer,  which,  under  the  circumstances,  can  not  be 


684  Duty  v.  Orahax.  [Tex•^ 

justly  held  to  affect  their  right.  Their  title  to  fhe  land  in  quee- 
tion  seems  clear  and  indisputable.  The  verdict  and  judgment 
were  fully  warranted  by  the  eTidenoe,  and  it  is  unnecessary  to 
revise  the  rulings  of  the  court  upon  other  and  immaterial 
matters.  The  judgment  is  affirmed. 
Judgment  affirmed. 

Until  Nbw  Comrnr  u  Aotitallt  Oboaitiibd  by  the  eleotioii  and  qiuJifioft* 
itOB  of  the  Decenary  officers,  the  old  offioen  are  preramed  to  have  jariadio- 
tion:  IfUKmv.  CateAiii9«,4ITez.iWIs  ^efomv.  iStole,  lTe(S.  App^ 
citing  the  principal 


Duty  t;.  Gbaham. 

[la  TaxAM,  437.] 

MoBTOAOB  I8»  zxr  TiXAS,  Mbbk  SBCUSIT7  TOR  PATicaNT  OF  DtBT,  and  the 
mortgagor  i»  regarded  as  the  real  owner  of  the  land  and  entitled  to  ita 
possession. 

MOBTQAGXK  CAS  VOT,  IN  TSXAS,  MAINTAIN  AOHON  OF  EJMTMSNT  OT  tTOSpaSS 

to  try  title,  against  the  mortgagor,  on  the  mortgage. 
Whsrx  Dxbt  Secured  by  Mortoaor  is  Barrsp  by  the  statate  of  limita- 
tions, the  creditor  has  no  remedy  left  upon  the  mortgage. 

Appeal  from  Bed  river.    Trespass  to  tiy  title.    The  facts  ai6 
stated  in  the  opinion. 

Pecure  and  Bverta,  for  the  appellant. 

A.  Morrill,  for  the  appellee. 

By  Court,  Hemphill,  C.  J.  The  subject-matter  of  this  con* 
troversy  has  already  been  three  times  before  this  court,  and  as 
often  decided  against  the  present  appellee.  He  has  a  note 
against  John  J.  Yining,  deceased,  secured  by  mortgage  on  the 
tract  of  land  which  he  has  recovered  in  this  controversy,  and 
the  substance  of  the  former  decision  in  relation  to  this  note  and 
mortgage  was,  that  inasmuch  as  they  had  not  been  presented  in 
the  time  prescribed  by  law,  under  the  act  of  1840,  to  the  ad- 
ministrator, no  suit  could  be  maintained  upon  them,  nor  judg- 
ment had  for  their  recovery,  or  for  the  foreclosure  of  the  mort- 
gage; that  all  moneyed  claims  were  required  to  be  presented 
under  the  seventh  section  of  the  act  of  1840,  and  that  a  failure  was 
a  bar  to  recovery,  and  that  a  debt  secured  by  mortgage  on  specific 
property  formed  no  exception  to  the  general  rule,  and  was  con- 
sequently barred  if  not  presented  within  the  time  prescribed  by 
statute;  and  that  it  was  barred  not  only  as  against  the  adminis- 
trator, but  as  against  the  heirs  and  creditors  of  the  estate. 


1854]  Durr  v.  Orahail  685 

But  it  is  contended  by  the  appellee  that,  notwithsbrnding  the 
debt  is  barred,  and  that  with  this  bar  his  remedy  by  statute  is 
goue,  yet  he  is  entitled  to  the  land  itself  under  an  action  of 
ejectment,  or  an  action  of  trespass  to  tiy  the  title. 

Whether  an  action  by  the  mortgagee  to  recoTer  possession  of 
the  land  would  lie  in  this  state  must  depend  (if  it  be  not  ex- 
cluded by  implication  under  our  statute)  upon  the  character  of 
right  or  title  under  which  he  holds.  If  his  right  be  superior  to 
that  of  the  mortgagor,  then,  on  default  of  the  latter,  he  might 
recover  and  hold  possession,  at  least  until  payment  out  of  the 
rents.  But  if  the  mortgagor  have  the  superior  right  or  title, 
he  should  be  entitled  to  possession  unless  there  were  some 
special  stipulation  to  the  contrary. 

We  will  attempt  now,  by  a  surrey  of  the  authorities,  to  ascer- 
tain which  has  the  better  title;  and  we  will  perceiye  in  this 
inquiry  that  there  has  been  the  greatest  contrariefy  of  views  on 
the  subject  between  courts  of  law  and  courts  of  equity;  and 
eyen  these  have  sometimes  not  been  consistent  with  themselyes. 
The  conflict  of  opinions  and  views  has  finally  terminated  in  gir- 
ing  a  vast  superiority,  at  least  in  equiiy,  to  the  right  of  the 
mortgagor  oyer  that  of  the  mortgagee. 

It  seems  that  at  law,  upon  the  execution  of  a  mortgage,  the 
legal  estate  vests  in  the  mortgagee,  subject  to  defeasance  upon 
performance  of  conditions.  Technically  speaking,  the  mort- 
gagor has  a  mere  tenancy,  and  is  subject  to  be  put  out  at  any 
time,  even  before  default,  by  the  mortgagee.  But  eren  under 
the  seyere  rules  of  the  common  law,  the  mortgagor  has  some 
rights.  He  is  not  subject  to  the  payment  of  rents,  and  can 
lease,  sell,  and  deal  with  the  land  as  owner  so  long  as  he  re- 
mains in  possession,  persons  under  him  taking  subject  to  the 
rights  of  the  mortgagee.  But  when  we  ascend  to  the  views  en- 
tertained of  mortgages  in  courts  of  equity,  we  find  an  almost 
complete  change  of  principles.  The  estate  of  the  mortgagor,  so 
narrow  and  precarious  at  common  law,  is  by  equity  enlarged  to 
tbo  real  ownership  of  the  fee.  The  mortgage,  instead  of  being 
a  conveyance  of  the  land,  subject  to  defeasance,  is  held  to  be 
but  a  chattel  interest,  a  mere  security  for  the  debt.  The  estate 
of  the  mortgagor  is  in  equity  tantamount  to  that  of  the  mort- 
gagee, and  is  descendible  by  inheritance,  devisable  by  will,  and 
alienable  by  deed:  4  Kent's  Com.  160.  It  is  vendible  on  an 
execution  at  law,  and  chargeable  with  the  dower  of  the  wife, 
where  that  estate  is  known;  whereas  the  estate  of  the  mortgagee 
is  not  the  subject  of  execution  before  foreclosure  (at  least  before 


1 
I 

IW  Dorr  v.  Gkahax.  [T^aam, 

mslbej),  fhouQ^  there  has  been  debult  and  {ha  nuxrigage  is  tor-  , 

feited:  Id.  161, 162.    In  eqnify,  the  debt  is  oonsidered  the  prin-  f 

eipal,  and  the  mortgage  only  tiie  inoidenty  and  the  disdiaige  or  | 

forgiveness  of  the  debt  at  any  time  before  fordoBore  eztin- 
goiflhes  the  mortgage,  and  no  reoonTOjanee  is  neoeesary  to  | 

leatore  title  to  the  mortgagor.  * 

'^An  assignment  of  the  debt  by  deed,  by  uriting  simply,  or 
by  parol,  is  said  to  draw  the  land  after  it  as  a  ooneeqnenoe  and 
as  being  appurtenant  to  the  debt.  The  one  is  regarded  as  the 
principal,  the  other  the  acoessoiy,  and  amne  prino^pale  trahU  ad 
86  aocenorium.  The  assignment  of  the  interest  of  the  mort- 
gagee in  the  land,  without  an  assignment  of  the  debt,  is  con- 
sidered to  be  without  meaning  or  use.  This  is  the  general 
hmguage  of  the  courts  of  law  as  well  as  of  the  courts  of 
equity;  and  the  common  sense  of  the  parties,  the  spirit  of  the 
mortgage  contract,  and  the  reason  and  policy  of  the  thing, 
would  seem  to  be  with  the  doctrine:''  4  Eenfs  Com.  162. 

It  seems,  then,  that  in  equity  the  debt  is  the  principal  thing. 
The  land  is  but  an  incident  of  the  debt,  and  the  mortgagor, 
notwithstanding  the  terms  of  the  oonyeyance,  remains  the  real 
owner  of  the  fee.  Why,  under  such  circumstancee,  and  such 
rights  in  the  mortgagor,  the  mortgagee  should  have  been  enti- 
tled to  oust  the  mortgagor,  and  take  possession,  is  not  rery 
easily  to  be  perceived,  especially  when  such  possession  does  not 
give  him  the  land,  but  he  is  accountable  for  the  rents  and  prof- 
its. There  might  be  some  reason  to  permit  such  right  to  be 
enforced  at  law,  where,  in  equity,  he  is  entitled  to  a  correspond- 
ing, and  in  fact  still  higher,  right  under  a  decree  of  strict  fore- 
closure, by  which  the  land  is  secured  to  him  in  absolute  prop- 
erty; or  where  there  are  separate  jurisdictions,  the  mortgagee 
may  have  some  sort  of  pretense  to  resort  to  both  to  enforce  his 
rights.  But  is  there  any  sujScient  reason  why  such  an  accumu- 
lation of  suits  should  be  tolerated  under  our  system  of  juris* 
prudence,  in  which  equity  and  law  are  incorporated  with  each 
other?  and  under  our  code  of  procedure,  which  abhors  a  multi- 
plicity of  suits  between  the  same  parties  relative  substantially 
to  the  same  subject-matter?  and  especially  where  the  new  action, 
proposed  in  augmentation  of  other  remedies,  is  one  of  a  most 
oppressive  character,  by  which  the  real  owner  of  the  land  is  to 
be  dispossessed  for  the  benefit  of  one  who  has  but  an  unfair  in- 
terest or  title  to  the  land  ?  Could  it  be  x>erinitted  for  a  moment, 
in  this  state,  that  a  mortgagee  should  simultaneously  institute 
three  different  suits  for  the  recovery  of  the  same  debt — one  on 


1864]  Dorr  v.  Orahail  5S7 

ibe  note  or  bondy ftnother  to  fozeolose  the  mortgage^  aadatlixrcl 
to  reooTer  pooooonion  of  the  land  itself  ?  Althongh  it  seeme  that 
this  tripartite  diyision  of  the  debtor  to  respond  to  the  thrioe- 
repeated  exactions  of  the  creditor  is  suffered  in  other  states  in 
which  the  jurisdictions  of  law  and  of  equity  are  still  preserved 
separate  and  distinct.  Such  an  attempt  will,  perhaps,  never  be 
made;  but  if  so,  it  would  certainly  end  in  defeat,  and  in  mulct- 
ing the  plaintiff  with  costs  in  two  of  the  suits.  In  fact,  under 
our  procedure,  there  can  be  no  pretense  that  any  other  remedy 
than  that  prescribed  by  statute  is  necessaiy  to  do  justice  to  the 
mortgagee.  It  affords  all  the  redress  which  can  be  extracted 
from  either  the  property  mortgaged  or  any  other  property  of 
the  mortgagor.  True,  it  does  not  award  to  him  the  land.  No 
such  thing  as  strict  foreclosure  is  known  (and  that  is  one  evi- 
dence that  the  legislature  intended  that  the  mortgagee  should 
not  have  the  land,  and  consequently  that  he  should  not  recover 
it  in  ejectment),  but  it  gives  him  judgment  for  his  debt,  and  for 
the  sale  of  the  property  mortgaged,  if  the  same  can  be  found; 
and  if  the  proceeds  be  insufficient,  or  if  the  property  can  not  be 
found,  then  he  is  to  have  further  execution  against  the  defend- 
ant for  the  balance,  or  the  whole  of  the  debt,  as  the  case  may 
be:  Hart.  Dig.,  art.  773.  The  form  of  the  judgment  shows  that 
there  is  no  necessiiy  for  a  separate  suit  on  the  bond  or  note. 
They,  with  the  mortgage,  constitute  but  one  cause  of  action;  and 
if  there  be  no  note  or  bond,  the  judgment  is  still  the  same,  viz., 
for  the  debt  and  for  the  foreclosure  of  the  mortgage;  and  this 
judgment  would  be  given  (being  prescribed  by  the  statute)  with- 
out any  express  covenant  for  the  payment  of  money  being  in- 
serted in  the  mortgage.  It  thus  appears  that  eveiy  judgment 
rendered  on  a  mortgage  in  this  state  is  equivalent  to  a  judgment 
at  law  on  the  bond,  and  of  foreclosure  in  courts  of  equity,  and 
is  co-extensive  in  its  operations  with  both  of  those  judgments. 
In  fact,  the  terms  of  our  statutes  on  the  foreclosure  of  mort- 
gages are  such  as  might  be  fairly  held  to  exclude  the  hypoth- 
esis that  an  action  could  be  maintained  for  the  land  itself.  They 
speak  of  suits  being  instituted  for  the  enforcement  of  specific 
liens  on  property,  and  they  prescribe  judgments  which  subject 
not  only  the  properly  under  mortgage,  but  all  the  property  of 
the  defendant,  to  the  satisfaction  of  the  debt;  and  it  is  a  rea- 
sonable conclusion  that  if  the  legislature  intended  there  should 
be  any  further  or  other  remedy  for  the  enforcement  of  **  spe- 
cific liens,"  some  intimation  of  an  intention  to  that  effect  would 
have  been  given.    The  universal  construction  has  been,  so  far 


\ 


688  Duty  v.  Orahax.  [Tezaa, 

V 

as  I  have  any  knowledge,  that  there  is  no  other  remedy;  and  m 

the  prasent  is  believed  to  be  the  only  instance  in  which  any  other  f 

was  ever  attempted. 

In  New  York,  it  seems  that  by  statute  the  action  of  ejectment 
by  a  mortgagee  or  his  assigns  has  been  abolished,  an  alteration 
in  the  law  which  is  commended  by  Chancellor  Kent  in  his  Ck)m- 
mentaries  as  a  desirable  improvement,  that  action  not  being  a 
final  remedy,  but  vexatious,  terminating  in  a  litigious  matter  of 
account  and  deterioration  of  the  premises:  4  Kent's  Com.  156, 
note.  It  appears  also  that  by  statute  in  the  same  state,  the 
mortgagee  is  in  effect  inhibited  from  pursuing  his  remedies 
simultaneously  in  both  courts:  Id.  184. 

But  there  seems  no  necessity  for  special  provision  to  that 
effect,  by  statute,  in  this  state.  There  is  but  one  jurisdiction  in 
which  to  bring  suits,  and  as  a  matter  of  course,  it  would  not  per- 
mit a  multiplicity  about  the  same  subject-matter.  Nor  does 
there  api>ear  any  positive  necessity  to  abolish  the  remedy  by 
ejectment,  where  in  fact  it  has  never  been  introduced  in  practice, 
and  the  law  affords  a  remedy  so  ample,  comprehensive,  and  per- 
fect as  to  legitimately  exclude  the  idea  that  any  other  mode  of 
redress  would  have  been  intended  or  allowed. 

But  whether  an  action  of  trespass  to  try  title  could  be  main* 
tained  in  any  case,  it  certainly  could  not  be  permitted  after  the 
debt,  the  principal  to  which  the  mortgage  was  but  an  incident, 
is  barred  and  lost.  The  lien  by  the  mortgage  on  the  land  was 
but  an  incident  to  the  debt,  and  when  the  principal  falls,  the 
incident  must  fall  with  it.  The  debtor,  to  secure  the  appellee 
against  loss,  had  hypothecated  this  tract  of  land,  and  the  law 
had  provided  most  energetic  and  ample  remedies  to  enforce  the 
lien  thus  given.  But  the  time  within  which  the  law  would 
afford  its  aid  was  limited,  and  the  appellee,  having  ffuled  to  avail 
himself  of  these  aids  in  the  time  prescribed,  can  not  justly 
ascribe  his  loss  to  any  other  cause  than  his  own  laches,  nor  can 
he  require  the  courts  to  introduce  and  adopt  new  and  unusual 
remedies  for  his  relief. 

It  is  not  necessaiy  to  again  discuss  the  policy  of  our  statutes 
in  requiring  all  claims  to  be  presented  to  Qie  administrator 
before  suit  can  be  brought,  nor  to  show  that  mortgage  debts  are 
included  in  the  general  designation  of  money  claims.  These  have 
been  sufficiently  considered  in  the  previous  decisions  relative  to 
this  controversy:  Ordham  v.  Vtning,  1  Tex.  639;  S.  C,  2  Id.  433. 

It  is  ordered,  adjudged,  and  decreed  that  the  judgment  be 
reversed,  and  that  judgment  be  rendered  for  appeUant. 

Reversed  and  reformed. 


1854.]  Cabtkb  i;.  State.  689 

MORTGAGB  0  MbBB  SiCUKITT  VOR  PATinENT  ov  DiMx  8m  BttrlsB  T. 
Cruger,  58  Am.  Dec.  102;  Oodeffroy  v.  CaldweU^  56  Id.  860,  note  362,  where 
other  oases  are  collected.  It  is  but  an  incident  to  the  debt:  Spragvt  ▼.  /re- 
Icoid^  36  Tex.  656,  citing  the  principal  case. 

MoRTOAOOB  ov  LA2iD  IS  CoNSiDXRED  THB  OwKXB,  snbject  Only  to  the 
lien  of  the  mortgage:  HaU  ▼.  SaotU^  54  Am.  Dec.  485,  note  489. 

MOBTGAOSB    CAN    NOT    MaIHTAIIT    ActION    OV    TRIWPAIW    TO    TbT  TiTLB 

against  the  mortgagor  on  the  mortgage:  Maim  ▼.  Falcon^  25  Tex.  276;  MUh 
▼.  Traylor,  30  Id.  11;  Mwdand  v.  BamhaH,  44  Id.  283;  BlaciweU  ▼.  Bar* 
neU,  52  Id.  332,  all  citing  the  principal  case. 

Patm£nt  or  DsBT  Secured  bt  Mobtgagx  Extinouisbm  Mobtoaob 
without  any  release  from  the  mortgagee:  SubleU  ▼.  McKiannty^  19  Tex.  445; 
Perhins  v.  Stemt,  23  Id.  563,  both  citing  the  principal  case. 

Ir  Dbbt  Seourkd  bt  Mobtoaob  is  Barbed  bt  Statutb  ov  LmiTATioirs, 
the  creditor  is  left  without  any  remedy  on  the  mortgage:  Blaehwdl  ▼.  Bar* 
neU,  52  Tex.  332,  citing  the  principal  case;  contra:  8park$  ▼.  /Hoo»  MoAlL 
502,  citing  the  principal  case;  Btuh  ▼.  Cooper,  59  Am.  Dec.  270;  OnUn  v. 
Pome,  50  Id.  807,  note  810;  Heyer  v.  Pruyn,  34  Id.  355,  note  350;  Belknap 
V.  Oleaaon,  27  Id.  721,  note  727. 

Thx  PBiNdPAL  OASB  IS  CITED  In  TayloT  ▼.  HudghiB,  42  Tex.  246,  to  the 
point  that  a  mortgage  is  sufficient  to  enable  the  mortgagee  to  maintain  a  suit 
and  obtain  a  judgment  for  his  debt,  with  a  decree  of  foreclosure  on  the  land 
mortgaged;  in  Cannon  y.  McDanid,  46  Id.  309,  to  the  point  that  an  assignee 
of  a  note  secured  by  a  lien  may  enforce  the  lien,  as  well  as  the  payee,  because 
the  lien  is  an  incident  that  follows  the  note;  and  in  Morrow  v.  Morgan^  48 
Id.  308,  to  the  point  that  a  stipulation  in  a  mor^ge  for  possession  by  the 
mortgagor  is  unnecessary,  as  the  law  implies  it  in  the  absence  of  a  stipnlatioD 
to  the  contrary. 


Gaeteb  i\  State. 

[12  TaxAB.  600.] 

Wbkbb  Oboukd  Relied  on  for  Reversal  ov  Judombnt  ik  CBmniAi. 
Case  is  that  it  does  not  appear  from  the  record  that  the  indictment  was 
returned  into  court  by  the  grand  jury,  the  fact  that  there  was  no  such 
record  in  the  court  below  must  be  made  to  appear  from  the  transcript; 
for  where  all  the  proceedings  in  the  case  are  not  shown  by  the  transcript, 
and  the  error  complained  of  does  not  afi&rmatively  appear,  the  proceed- 
ings will  be  presumed  to  have  been  regular. 

Absence  ov  Known  Cause  ob  Appabent  Motive  vob  Commission  op  Hom- 
iciDE  can  not  be  considered  evidence  to  support  the  plea  of  insanity. 

EvEBT  Man  is  Pbesumed  to  be  Sane  until  Contbabt  Appeabs. 

Voluntabt  and  Intentional  Dbunkbnnbss  is  nettheb  Excuse  vob  nob 
Extenuation  or  Cbimb. 

If  Pebson  Suffebino  undbb  Dbubium  Tbxmbns  is  so  Fab  Insanb  as  to 
be  irresponsible,  the  law  does  not  punish  him  for  any  crime  he  may  oom- 
mit  while  in  that' state. 

Capaoitt  of  Accused  to  Distinguish  between  Right  and  Wbono  as  to 
the  particuUr  act  with  which  he  is  charged  is  the  test  by  which,  in  eases 
of  partial  insanity,  the  jury  are  to  ascertain  whether  or  not  he  is  so  far 
insane  as  to  be  irresponsible. 


540  Oabtkb  v.  State.  [Tbxm^ 

Appeal  from  Panola.  Indictment  for  mnxder.  The  prisoner 
had  been  drinking  to  excess  for  seyexaldays  prior  to  the  killing, 
and  more  or  less  for  seyend  weeks  before.  The  prisoner  was  a 
quiet,  peaceable  man  when  sober,  but  troublesome  and  quarrel- 
some when  drunk.  The  prisoner  and  the  deoaaaed  were  near 
neighbors,  and  were  always  supposed  to  have  been  friendly. 
The  jury  found  the  accused  guilty  of  murder  in  the  second  de- 
gree, and  he  was  sentenced  to  confinement  in  the  penitentiary  for 
three  years.    Other  &cts  appear  from  the  opinion. 

M.  D,  Sogers^  8.  M.  Hyde^  and  L.  D.  Evans,  for  the  appel- 
lant. 

Thomas  J.  Jennings^  otiomey  general^  for  the  state. 

By  Court,  Wheblbb,  J.  The  ground  relied  on  for  a  reveraal 
of  the  judgment,  in  the  brief  furnished  the  court  by  counsel  for 
the  appellant,  is  that  it  does  not  appear  by  the  record  that  the 
indictment  was  returned  into  court  by  the  grand  jury. 

The  record  in  this  court  is  a  transcript  of  the  indictment  and 
the  proceedings  thereon  had  at  the  trial.  It  does  not  purport 
to  contain,  nor  need  it  contain,  a  transcript  of  the  record  of  all 
the  proceedings  had  in  the  district  court  anterior  to  the  trial. 
The  absence  in  the  record  of  the  eyidence  of  the  bringing  into 
court  of  the  indictment  by  the  grand  jury,  therefore,  does  not 
disprove  the  existence  of  such  record  evidence  in  the  court 
below.  If  there  was  not  such  record,  the  fact  should  have  been 
made  to  appear  by  the  transcript.  Where  all  the  proceedings 
in  the  case  are  not  shown  by  the  transcript,  and  the  error  com- 
plained of  does  not  affirmatively  appear,  regularity  in  the 
proceedings  will  be  presumed:  English  v.  State,  4  Tex.  125. 
The  objection,  it  is  conceived,  is  not  supported  by  the  record. 
The  trial  was  at  the  same  term  at  which  the  indictment  was 
found,  and  in  the  statement  of  facts  it  is  said  the  indictment 
was  returned  into  court  by  the  grand  jury.  There  can  be  littie 
doubt,  therefore,  that  the  fact  did  appear  by  the  record.  If  the 
entry  had  not  been  made  at  the  proper  time,  the  omission  might 
have  been  supplied  by  an  amendment  of  the  record  in  this  re- 
spect at  any  time  during  the  term,  before  the  grand  jury  were 
discharged.  And  if  there  was  such  omission,  this  fact  may 
accoimt  for  the  failure  properly  to  reserve  the  point  for  review. 

It  is  unnecessary  to  determine  how  far  the  objection,  if  sup- 
ported by  the  record,  could  avail  the  defendant,  where  the  in- 
dletment  appears  to  have  been  filed  as  a  record  of  the  court  at 
the  proper  time;  especially  after  the  defendant  has  pleaded  to  the 


1864]  Gaktbr  v.  State.  Ml 

indictmant.  We  hsre  not  access  to  the  anthoiitieB  on  this  sab- 
ject  cited  by  oounsel.  Bat  in  the  case  of  State  t.  Olarkson, 
3  Ala.  378,  it  was  decided  by  the  sapreme  court  of  Alabama 
that  ''an  indictment,  fonnd  among  the  files  of  the  court,  and 
recognized  as  an  authentic  paper,  proTCs  itself,  when  the  question 
of  authentidiy  is  raised  on  an  issue  to  a  plea  to  the  same  indict- 
ment." The  court  said:  "  The  fact  to  be  proTcd,  or  rather  dis- 
proved, was  the  authenticity  of  the  indictment  as  a  record  of  the 
court.  There  always  is,  and  necessarily  must  be,  a  period  in 
the  progress  of  eyeiy  prosecution  when  the  indictment  is  «i 
fieri,  and  we  are  not  aware  that  any  entiy  made  upon  it,  or  upon 
the  minutes  made  by  the  clerk,  is  necessaiy  to  give  it  effect  as  a 
record.  Indeed,  the  very  fact  of  pleading  to  it  admits  its  gen- 
uineness as  a  record:"  Id.  It  howeyer  is  unnecessary  in  the 
present  case  to  determine  that  question. 

The  defense  was,  that  at  the  time  of  committing  the  homi* 
dde  the  accused  was  insane,  occasioned  by  the  excessiye  use  of 
ardent  spirits.  The  court  gave  instructions  to  the  jury  upon 
the  law  applicable  to  this  defense,  which  were  not,  and  are  not 
now,  complained  of.  But  it  has  been  insisted  in  oral  argument 
at  the  bar  that  certain  legal  principles,  of  which  the  accused 
should  have  had  the  benefit,  were  omitted;  and  that  upon  a  proper 
view  of  the  whole  law  upon  the  subject  the  jury  would  have 
been  warranted  by  the  evidence  in  acquitting,  or  at  least  in  im- 
posing a  milder  punishment.  We  have  attentively  considered 
the  charge  of  the  court  and  the  evidence,  and  are  unable  to  con- 
cur with  counsel  in  the  view  they  have  taken  of  the  case. 

It  is  unnecessaiy  to  review  the  charge  of  the  court,  as  there  ii 
no  part  of  it  applicable  to  this  defense  which  is  complained  of 
as  erroneous.  Nor  is  it  necessary  to  review  the  evidence.  It 
may,  however,  be  observed  that  the  principal  if  not  the  only 
evidence  in  the  case  to  support  the  plea  of  insanity  is  to  be  found 
in  the  facts  and  immediate  drcumstances  attending  the  killing. 
There  is  no  other  evidence  in  the  case  from  which  the  conclu- 
sion may  be  drawn  that  the  accused  was  bereft  of  reason  than 
that  which  is  to  be  found  in  the  fact  of  killing,  under  the  circum- 
stances. That  was  such  as  to  afford  conclusive  evidence  of 
malice;  but  not  of  insanity.  In  a  certain  sense,  though  cer- 
tainly not  in  a  legal  sense,  eveiy  unnecessary  or  unlawful  homi- 
cide may  be  said  to  be  an  insane  act.  But  to  derive  the  evi« 
dence  which  is  to  acquit  on  the  plea  of  insanity  from  that 
eouroe  alone,  if  not  equally  as  irrational  as  the  act  may  be  sup- 
posed to  be,  would  at  least  be  of  extremely  dangerous  con- 


MS  Gabikr  v.  Stahl  [Teza% 


seqnenoe.  For  flie  more  canflelMBy  nTiiiatnnJ,  and  ii 
the  homidde,  the  more  deserying  of  condign  pnniwhment,  the 
more  froitfol  would  it  be  in  the  evidence  which  would  screen 
from  punishment.  It  is  manifest,  therefore,  that  the  absence 
of  any  known  cause  or  apparent  motive  for  the  commission  of  a 
homicide  can  never  be  considered  evidence  to  support  the  plea 
of  insaniij.  Every  man  is  presumed  to  be  sane  until  the  con- 
traiy  ap}>ear8.  Insaniiy  is  an  exception  to  the  general  rule;  and 
before  any  man  can  claim  the  benefit  of  the  exception,  he  must 
prove  that  he  is  within  it.  It  has  been  laid  down  as  the  law, 
upon  great  authority  and  consideration,  "that  before  a  plea 
of  insanity  should  be  allowed,  undoubted  evidence  should  be  ad- 
duced that  the  accused  was  of  diseased  mind,  and  that  at  the 
time  he  committed  the  act  he  was  not  conscious  of  right  and 
wrong.  This  opinion  related  to  every  case  in  which  a  party 
was  charged  with  an  illegal  act  and  the  plea  of  insanity  was  set 
up.  Every  person  was  supposed  to  know  what  law  was,  and 
therefore  nothing  could  justify  a  wrong  act  until  it  was  clearly 
proved  that  the  party  did  not  know  right  from  wrong.  If  that 
was  not  satisfactorily  proved,  the  accused  was  liable  to  punish- 
ment:" Whart.  Grim.  L.  13. 

It  is  also  to  be  remarked  that  it  appears  from  the  evidence 
that  the  accused  was  perfectiy  conscious  of  what  he  was  about 
to  do;  and  he  does  not  appear  to  have  even  fancied  that  he  was 
acting  upon  provocation,  or  was  constrained  to  act  in  necessary 
self-defense.  He  does  not  appear  to  have  labored  under  any 
delusion,  but  to  have  had,  or  believed  he  had— and  it  would 
seem  not  wholly  without  reason — cause  of  ill-will  towards  the 
deceased  for  being  the  friend  of  his  enemy.  There  does  not 
seem,  therefore,  to  have  been  an  entire  absence  of  the  usual 
notice  which  incites  to  wicked,  malicious,  and  revengeful 
acts. 

But  without  attempting  to  trace  the  act  to  the  secret  motive 
which  prompted  it,  or  to  find  the  real  or  any  adequate  cause  for  its 
commission  (which  is  unnecessaiy),  it  is  further  to  be  observed 
upon  the  evidence  (and  it  is  a  very  material  fact,  where  the  plea 
of  insanity  is  set  up,  alleged  to  have  arisen  from  the  cause  to 
which  it  is  ascribed  in  this  case)  that  the  accused,  shortiy  be- 
fore starting  out  with  his  gun  upon  an  avowed  errand  of  death, 
indulged  in  such  potations  as  were  calculated,  in  his  excited 
state,  to  incite  to  those  acts  of  desperation  which  are  not  unfre- 
quentiy  the  fruits  of  the  madness  and  frenzy  occasioned  by  a 
sudden  fit  of  drunkenness,  and  for  which,  when  voluntary  and 


1854]  Oabtbb  v.  STAra.  548 

intentioiial,  the  law  makes  no  allowanoey  and  admits  no  exten* 
nation  of  crime. 

The  law,  as  applicable  to  this  defense  and  to  the  facts  no- 
ticed,  is  presented  with  clearness  and  distinctness  by  Mr. 
Justice  Curtis,  in  deliyering  the  charge  of  the  court  to  the  jury 
in  the  case  of  United  States  v.  McOlue,  1  Curt.  1,  2  Law  Ikbg., 
No.  4,  where  the  defense  was  the  same  as  in  the  present  case. 
The  judge  is  reported  to  have  said:  "It  is  not  denied  on  the 
part  of  .the  government  that  the  prisoner  had  drank  intemper- 
atelj  of  ardent  spirits  during  some  days  before  the  occurrence. 
But  it  is  insisted  that  he  had  continued  to  drink  down  to  a  short 
time  before  the  homicide,  and  that  when  he  struck  the  blow,  it 
was  in  a  fit  of  drunken  madness.  And  this  renders  it  necessary 
to  instruct  you  on  the  state  of  &ots  which  the  prosecutor  asserts 


"Although  delirium  trejnena  is  the  result  of  intemperance,  and 
therefore  in  some  sense  is  voluntarily  brought  on,  yet  it  is  dis- 
tinguishable, and  by  the  law  is  distinguished,  from  that  madness 
which  sometimes  accompanies  drunkenness.  If  a  person  suffer- 
ing under  delirium  tremens  is  so  far  insane  as  to  render  him  ir- 
responsible, the  law  does  not  punish  him  for  any  crime  he  may 
commit.  But  if  a  person  commits  a  crime  when  intoxicated, 
tinder  the  immediate  influence  of  liquor,  the  law  does  punish 
him,  however  mad  he  may  have  been.  It  is  no  excuse,  but 
rather  an  aggravation  of  his  offense,  that  he  first  deprived  him- 
self of  reason  before  he  did  the  act.  There  would  be  no  security 
for  life  or  property  if  men  could  commit  crimes  with  impunity, 
provided  they  would  first  make  themselves  drunk  enough  to 
cease  to  be  reasonable  beings.  And  therefore  it  is  a  very  ma- 
terial inquiry  in  this  case  whether  this  homicide  was  committed 
while  the  prisoner  was  suffering  under  that  marked  disease  of 
delirium  tremens  or  in  a  fit  of  drunkenness.  If  the  prisoner 
while  sane  made  himself  intoxicated,  and  while  intoxicated  com- 
mitted a  murder  by  reason  of  insanity,  which  was  one  of  the 
consequences  of  that  intoxication,  then  he  is  responsible  in 
point  of  law,  and  must  be  punished.  This  is  as  clearly  the  law 
of  the  land  as  the  other  rule  which  exempts  from  punishment 
acts  done  under  delirium  tremens" 

The  judge  further  observed  that  it  was  incumbent  on  the 
prisoner  to  satisfy  the  jury  that  he  was  insane  when  he  struck 
the  blow;  for  the  law  presumes  every  man  sane  until  the  con- 
trary is  proved;  and  that  if  the  jury  were  convinced  that  the 
prisoner  was  insane  to  such  an  extent  as  to  render  him  irreqpon* 


544  Carteb  v.  State.  [Texas, 

fiible»  they  would  acquit  bim  unless  they  were  also  oonrinoed 
that  his  insanity  was  produced  by  intoxication  and  accompanied 
that  state,  in  which  case  they  would  find  him  guilty. 

In  the  course  of  the  charge  it  was  obsenred  **  that  this  defense 
<)f  insanity  is  to  be  tested  and  goyemed  by  principles  of  law» 
and  not  by  any  loose  general  notions  which  may  be  afloat  in  the 
communiiy,  or  even  the  speculations  of  men  of  science."  Of 
the  kind  and  degree  of  insanity  which  exempts  from  punish* 
ment,  it  was  said:  **  Clearly  it  is  not  eyery  kind  and  degree  of 
insanity  which  is  sufficient.  There  are,  undoubtedly,  persons 
of  great  general  ability,  filling  important  stations  in  life,  who 
upon  some  one  subject  are  insane.  And  there  are  others  whose 
minds  are  such  that  the  conclusions  of  their  reason  and  the 
result  of  their  judgment  are  very  far  from  being  right.  And 
others  whose  passions  are  so  strong,  or  whose  conscience,  reason, 
and  judgment  are  so  weak  or  perverted,  that  they  may  in  some 
sense  be  denominated  insane.  But  it  is  not  the  business  of  the 
law  to  inquire  into  these  peculiarities,  but  solely  whether  the 
person  accused  was  capable  of  having,  and  did  have,  a  criminal 
intent.  If  he  had,  it  punishes  him;  if  not,  it  holds  him  dispun- 
ishable. And  it  supplies  a  test  by  which  the  jury  is  to  ascer- 
tain whether  the  accused  be  so  far  insane  as  to  be  irresponsible. 
That  test  is  the  capacity  to  distinguish  between  right  and  wrong 
as  to  the  particular  act  with  which  he  is  charged." 

Tested  by  these  principles,  it  is  very  evident  that  the -appel- 
lant has  no  cause  to  complain  that  the  crime  of  which  he  was 
convicted,  as  it  is  exhibited  by  the  evidence,  was  not  regarded 
with  more  leniency  by  the  court  and  jury  who  passed  upon  his 
case.  Without  dwelling  to  review  the  charge  given,  it  may 
safely  be  affirmed  that  it  was  not  imperfect  by  the  omission  of 
any  principle  of  law  which  the  accused  can,  with  reason,  invoke 
in  extenuation  of  his  crime. 

It  is  understood  that  the  ai'gument  questioned  the  correct- 
ness of  the  charge,  upon  the  distinctions  in  the  degrees  of  homi- 
cide, maintaining  that  it  is  too  brpa^  and  comprehensive  in  its 
definition  of  the  crime  of  murder,  including  in  the  definitioii 
homicide,  which  should  be  held  to  be  manslaughter  only.  It 
is  not  proposed  to  state  the  argument,  as  from  memory  we 
might  not  be  enabled  to  do  it  justice.  But  in  relation  to  the 
charge  of  the  court  as  respects  the  constituents,  degrees,  and 
definition  of  the  crime  of  murder,  it  will  suffice  to  say  that  it  is 
substantially  the  same  as  that  passed  upon  by  this  court,  in  the 
case  of  Jordan  v.  State,  10  Tex.  479,  and  is,  it  is  conoeived« 


ISM.]  CONNELL  V.  Chandleb.  646 

coneoi.  We  know  of  no  authoriij  or  adjndioftiaoii  to  the  oon- 
traiy. 

We  see  no  reason  to  apprehend  that  a  leas  mercsifnl  dispensa- 
tion of  punishment  was  meted  oat  to  the«ppellant  than  the  law 
and  facts  of  the  case  warranted,  and  are  of  opinion  that  the 
judgment  be  affirmed. 

Judgment  affirmed. 

iNBAimT  AS  Dkfenbk  IS  Gbiminal  PBOSBOunoHSt  See  McAUuier  ▼. 
Stale,  52  Am.  Dec.  180,  note  184,  where  other  oMes  are  collected.  A  man 
mast  havemiffioient  capacity  and  reason  to  enable  him  to  diatingniah  between 
right  and  wrong  as  to  the  partioular  act  he  is  then  doing  in  order  to  make 
him  liable  to  punishment:  Tharwu  y.  State,  40  Tex.  63;  WM  ▼.  Stale^  6  Tex. 
App.  G08;  Warren  v.  State,  9  Id.  633,  all  dting  the  principal  case. 

Ths  fbincifal  cask  is  oitkd  in  Loggim  ▼.  State,  8  Tex.  App.  440,  to  the 
point  that  an  indictment  found  among  the  files  of  the  court,  and  recognijBed 
as  an  authentic  paper,  proves  itself  when  the  question  of  its  authenticity  Is 
raised  on  an  issue  on  a  plea  to  the  same  indictment.  And  in  Wem  ▼.  State^ 
1  Id.  40,  the  court  called  attention  to  the  fact  that  in  the  principal  case  ths 
effect  of  Tolnntaiy  drunkenness  was  only  discnsaed,  but  not  decided. 


CONKEIiL    V.   ChAITOLEB. 

[lSTaxAS,6.] 

ADMnnaKBATOB  OAN  NOT  Imfxach  IirrBSTATB's  Dun,  oo  the  groond  tei 
it  was  made  with  intent  to  defraud  creditors. 

AfpbaIi  from'  TraTis.    The  opinion  states  the  ease. 
Oldham^  and  Marshall  and  Terrell,  for  the  appellant. 
F.  W.  Chandler,  for  the  appellee. 

By  Court,  Lifsooxb,  J.  The  only  question  in  this  case  is  on 
the  right  of  the  administrator  of  Mitchison  to  impeach  the  deed» 
procured  by  the  intestate  for  the  negro  girl  sued  for,  to  his  chil* 
dren,  on  the  ground  of  fraud  against  creditors. 

In  the  case  of  Dancey  y.  Smith,  6  Tex.  411,  a  strong  intima- 
tion,  as  an  obiter,  was  thrown  out  that  an  administrator  could 
do  so  for  the  benefit  of  creditors;  it  was  a  question  not  pre- 
sented by  the  case,  and  subsequent  reflection  satisfied  us  that  it 
was  erroneous,  and  that  the  fraud  of  the  intestate  could  not 
be  set  up  by  his  administrator;  and  we  so  ruled,  on  mattkre  con- 
sideration, in  the  case  of  Cdbb,  AdmW,  v.  Norwood,  AdttCx,  11 
Id.  556;  and  again  in  the  case  of  Avery  v.  Avery,  12  Tex.  64 
[ante,  p.  513],  decided  at  Tyler  last  term.  The  question  must 
therefore  be  regarded  as  settled  in  this  court. 

AM.  Dso.  Vol.  LZU— 95 


546  Lee  v.  Eikqsburt.  [Teza^ 


In  ibis  oaae  the  administiator  was  allowed  by  fhe  court  below 
to  impeach  a  deed  procured,  by  his  intestate  to  be  made,  convey- 
ing a  negro  woman  to  his  minor  children;  the  administrator 
alleging  that  his  intestate  had .  so  procured  the  deed  to  be  made 
with  the  intent  to  defraud  his  creditors.  This  could  only  be 
done  by  a  creditor  by  a  direct  proceeding  for  that  purpose,  and 
not  through  the  agency  of  the  administrator.  The  administrator 
can  not  be  permitted  to  do  what  his  intestate  could  not  have 
done  himself;  and  he  could  never  have  impeached  the  right  of 
the  children  on  the  ground  of  his  own  fraud.  The  judgment  ia 
reversed  and  the  cause  remanded. 

Reversed  and  remanded. 

Personal  Rxpbesbktativis,  wubtukb  mat  Impbaoh  DwcEsmsr^s  Deed 
FOR  Fraud  as  to  Crkditors. — On  the  one  side,  it  It  maintained  that  sn 
ezecntor  or  adminiBtrator  can  not  impeach  the  deeds,  sales,  or  assignments  of 
his  decedent,  on  the  ground  that  they  were  made  to  defirand  creditors:  Mar* 
tin  ▼.  Martin,  18  Am.  Dec  675;  CoUraine  ▼.  Caumy,  42  Id.  168;  see  the 
principal  case  cited  to  this  e£foct  in  H%ni  v.  BtOUrworih,  21  Tex.  139;  Hari 
▼.  Rnai,  46  Id.  674;  creditors  only  of  a  grantor  can  attach  a  transfer  of  prop- 
erty to  a  third  person  on  the  ground  of  fraud:  Kid  v.  MUcheU,  0  Am.  Dee. 
702;  McClenney  v.  McCUmney,  49  Id.  788;  and  as  to  such  conveyanceiB  being 
good  between  the  parties,  see  Under  v.  Stoneum,  ante,  p.  490,  and  note;  bat 
on  the  other  side,  the  view  is  held  that  such  transfers  may  be  impeached  by  an 
executor  or  administrator,  at  least  when  it  is  necessary  to  pay  the  deoedenira 
^^VtSL  Note  to  Bhffing  v.  HandUy,  14  Id.  167;  StewaH  ▼.  Kearney^  31  Id.  482| 
Babeock  ▼•  BoUh,  38  Id.  578,  and  note. 


Lee  v.  Kinosbxtbt. 

•  [IS  Tnufl,  68.] 

JunoMxines  or  Ck)URTS  of  Competent  Jurisdigtiok  can  not  bb  iMnAOHBD 
Collasxballt;  they  are  revisable  only  in  an  appellate  court. 

JuDGMXNT  IS  Conclusive  upon  Point  Es8Bntiallt  InvoIiVbd,  althongli 
issue  be  not  taken  thereon. 

Judomxnt  or  Foreclosure  against  Husband  and  Witb  ConolusxvxIiT 
Settles  that  the  property  was  not  within  the  homestead  exemption  al 
the  time  of  rendition,  unless  fraud  is  alleged. 

JuDoicENT  or  Foreclosure  mat  be  Rendered  although  Propebtt  mat 
HAVE  BEEN  HOMESTEAD  at  the  time  of  giving  the  mortgage,  or  at  some 
other  time;  the  husband  and  wife  may  have  created  the  morl^^age  upcn 
the  homestead  in  the  manner  prescribed  by  law,  the  property  may  bava 
ceased  to  be  a  homestead  at  the  time  of  the  rendition  of  the  judgment,  or 
It  may  have  become  a  homestead  after  the  giving  of  the  mortgage. 

Judgment  is  Presumed  to  be  Supported  bt  Contents  op  DocuMBim» 
which  the  statement  of  facts  shows  were  in  evidence  before  the  oourli 
but  the  copying  of  which  into  the  record  was  directed  to  be  omitted* 


1854.]  Lb  v.  Einqsbubt.  647 

Tbbspami  to  try  title.  One  half  of  the  lot  in  dispate  had  been 
conyeyed  to  the  plaintiff  Eingsbuiy,  in  Deoember,  1861,  by  the 
defendants  Lee  and  wife^- who,  in  1852,  brought  an  action 
against  the  plaintiff  to  redeem,  claiming  that  the  deed  was  a 
mortgage.  The  facts  were  admitted,  and  a  judgment  of  fore* 
closure  rendered  in  June,  1868,  under  which  the  half-lot  was 
sold  in  the  following  August  to  the  plaintiff,  and  on  the  return 
of  the  order  of  Bale  execution  was  issued  and  levied  on  the  entire 
lot,  which  was  also  sold  to  the  plaintiff.  The  defendants,  in 
addition  to  the  general  denial,  pleaded  specially  that  the  land 
was  the  separate  property  of  the  wife,  and  her  homestead  at  the 
date  of  the  execution  of  the  deed  to  the  plaintiff,  and  the  decree 
of  the  court  declaring  such  conyeyance  a  mortgage  was  illegal 
and  Toid.  A  demurrer  to  the  special  plea  was  sustained.  Cer- 
tain evidence  proposed  by  the  defendants,  and  rejected,  suffi- 
ciently appears  in  the  opinion. 

D.  C,  Vanderlipf  and  L  A.  and  O.  W.  PfH9dkal,  for  the  appellanta. 

Biichner  and  Leigh^  for  the  appellee. 

By  Court,  Wheeleb,  J.  The  errors  assigned,  which  it  is 
material  to  consider,  are:  1.  The  ruling  of  the  court  sustaining 
the  demurrer  to  the  answer;  2.  The  rejection  of  evidence  pro- 
posed by  the  defendant;  and  8.  Insufficiency  of  the  evidence  to 
support  the  verdict. 

The  answer  of  the  defendants  sought  to  bring  again  in  litiga- . 
tion  in  this  suit  matters  which  had  been  finally  adjudicated  and 
determined  in  a  former  suit  between  the  same  parties.  It  is  an 
elementary  principle  which  does  not  require  the  support  of  ar- 
gument or  authority,  that  the  judgments  of  a  court  of  competent 
jurisdiction  are  revisable  only  in  an  api>ellate  court,  and  can  not 
be  impeached  collaterally.  Every  matter  adjudicated  becomes  a 
part  of  the  record,  which  imports  absolute  verity.  So  long  as 
the  judgment  remains  in  force,  it  is  in  itself  evidence  of  the  right 
of  the  plaintiff  to  the  thing  adjudged,  and  gives  him  a  right 
to  process  to  execute  the  judgment:  Voorhees  v.  United  Stales 
Bank-  10  Pet.  449;  Yatea  v.  Eausian,  8  Tex.  447.  It  is  not 
necessary  to  the  conclusiveness  of  the  former  judgment  that 
issue  should  have  been  taken  upon  the  predse  point  which  it  is 
proposed  to  controvert  in  the  collateral  action.  It  is  sufficient 
if  that  point  was  essential  to  the  former  judgment:  1  Ghreenl. 
Ev.,  sec.  584.  The  judgment  which  the  answer  proposed  to 
impeach  conclusively  settled  that  the  lot  upon  which  it  adju- 
dicated a  foreclosure  of  the  mortgage  was  not  within  the  home- 


648  Lbb  v.  KsrosBUBT.  [Texai^ 

stead  exemption  ui  tbe  time  of  its  rendition.  Thai  qneationy 
therefore,  it  waa  not  competent  for  the  defendant  to  faring  ag«in 
into  litigation  in  this  aotion,  unless  it  had  been  proposed  to  im- 
peach that  judgment  on  the  ground  of  fraud,  which  is  not 
ETcrred  or  pretended  in  respect  to  the  judgment.  But  eyen  if 
it  had  been  competent  to  impeach  the  decree  of  f orecIoBure  bj 
ETerring  that  at  the  time  of  its  rendition  the  lot  iras  the  home- 
stead of  the  defendants,  the  answer  does  not  contain  that  arer- 
ment.  The  allegation  is,  that  the  lot  was  the  separate  proper^ 
of  the  wife,  and  her  homestead  at  the  date  of  the  execution  of 
the  deed  which  was  adjudged  a  mortgage,  and  on  which  the  de- 
cree of  foreclosure  was  rendered.  It  will  not  be  denied  that  the 
wife  may  alienate  her  separate  property,  and  that  the  husband, 
with  the  concurrence  of  his  wife,  in  the  forms  prescribed  bylaw, 
may  create  a  mortgage  upon  the  homestead,  has  been  hereto- 
fore decided:  8amp9on  v.  WiUiamson,  6  Tex.  102  [65  Am.  Deo. 
762].  It  is  immaterial,  therefore,  that  the  lot  in  question  may 
have  been  the  homestead  at  the  time  of  the  giving  of  the  mort- 
gage. That  it  was  not  such  at  the  time  of  the  rendition  of 
the  judgment  of  foreclosure  was  oondusiyely  established,  as  re- 
spects the  matters  in  controyeray  in  this  suit,  by  the  judgment 
itself.  The  answer,  therefore,  proposing  to  bring  again  into 
litigation  that  question,  was  manifestly  insufficient,  and  the  de> 
murrer  was  rightly  sustained. 

The  eyidence  proposed  to  proye  that  the  lot  in  question  had 
been  set  apart  to  the  defendant  as  a  homestead  by  the  county 
court  was  rightly  rejected  for  the  same  reason.  Its  only  effect, 
if  admitted,  would  haye  been  either  to  establish  the  immaterial 
fact  that  the  lot  had  been  the  homestead  at  some  other  time,  or 
to  impeach  the  judgment  by  proving  that  it  was  such  at  the  time 
of  its  rendition.  The  lattcor,  as  we  have  seen,  it  was  not  compe- 
tent for  the  defendant  to  do;  and  the  former  was  an  immaterial 
matter.  It  does  not  appear  whether  this  action  of  the  probate 
court,  which  it  was  proposed  to  prove,  was  before  or  after  the 
rendition  of  the  judgment.  If  before,  its  effect  was  defeated  by 
the  lot  having  ceased  to  be  a  homestead  at  the  time  of  the  ren- 
dition of  the  judgment;  which  is  thereby  condusively  deter- 
mined; if  afterwards,  it  can  not  be  pretended  that  it  could  have 
the  effect  to  defeat  the  judgment  decreeing  a  foreclosure  of  the 
mortgage.  The  evidence  proposed,  therefore,  was  clearly  inad- 
missible, as  being  either  immaterial  and  irrelevant,  or  incom- 
petent to  prove  any  material  issuable  fact  in  support  of  the 
defense.    It  was  inadmiBsible  for  the  further  reason  that  the 


1864]  Lbb  u  Kingsbubt.  B49 

demiiner  to  the  answer  having  been  Bosttmed,  there  mM  no 
answer  in,  and  oonseqnently  no  ayerment  t/}  lay  the  foundation 
for  the  admission  of  the  eyidenoe. 

The  remaining  objection  to  the  judgment  is  that  the  evidence 
was  not  sufficient  to  warrant  the  yerdiot,  and  entitle  the  plaint- 
iff to  a  recorexy.  This  objection  is  not  tenable.  The  ground 
of  the  objection  is  that  the  judgment  and  execution  under 
which  the  premises  were  sold  are  not  embraced  in  the  statement 
of  facts.  The  statement  of  facts,  howeyer,  shows  that  both 
were  in  evidence  before  the  court.  It  states  that  the  plaintiff 
gave  in  evidence  the  decree,  and  the  sheriff's  deed,  "  made  un- 
der an  order  of  sale  and  execution  regularly  issued  from  said 
court  upon  the  judgment  in  case  No.  801,^  etc.  It  is  evident, 
therefore,  that  the  judgment  and  execution  were  before  the 
court  And  the  clerk  is  directed  by  the  parties,  in  the  state- 
ment of  facts  signed  by  their  attorneys,  to  omit  copying  them 
into  the  record;  for  the  reason,  doubtless,  that  no  question  was 
made  upon  them,  and  it  was  proposed  to  avoid  incumbering  the 
record  needlessly  by  their  insertion.  The  objection,  therefore, 
is  not  well  taken  in  point  of  fact.  It  is  enough  for  the  plaint- 
iff's case  that  the  evidence  was  before  the  court.  Every  intend- 
ment is  in  favor  of  the  judgment;  and  if  any  advantage  was  to 
be  derived  by  the  defendant  from  an  inspection  of  the  instru- 
ments of  evidence  by  this  court,  he  should  not  have  concurred 
in  instructing  the  clerk  to  omit  them,  but  should  have  had  them 
inserted  in  tixe  record. 

Finally,  it  may  be  observed  that  it  abundantly  aiypears  h^ 
the  statement  of  facts  that  the  defense  of  the  homestead  exemp- 
tion, sought  to  be  introduced  by  the  defendants  in  the  court  be- 
low, and  insisted  on  in  argument  in  this  court,  v?aa  without  any 
foundation  in  fact.  It  is  fully  proved  beyond  a  question  that 
the  lot  in  controvercfy  had  ceased  to  be  the  homestead  of  the 
defendants  long  before  the  rendition  of  the  judgment  foreclos- 
ing the  mortgage,  in  June,  1853,  and  the  sale  under  execution 
in  pursuance  thereof,  in  August  of  the  same  year.  If,  therefore, 
the  ruling  of  the  court  in  the  matters  complained  of  had  been 
in  favor  of  the  defendants,  the  final  result,  upon  the  merits  of 
the  case,  must  have  been  the  same.    The  judgment  is  affirmed. 

Judgment  aflbmed. 

JcrDoxBMT  or  OouBir  or  Oomfkhdit  JuBisDicnoH  oav  hot  bs  Collatkbc 
AU.T  Aracebd:  See  Doe  ex  dem,  SmUh  r.  Tmpper^  43  Am.  Deo.  48S| 
B^ikmriamd  v.  De  Xeoa,  46  Id.  100;  Lynch  v.  B€aeier,  61  Id.  7S6;  Beed  t. 
FoMpMn,  06  Id.  138;  ITAite  v.  ifm^X  67  Id.  627;  A^Aiite  v.  £dk«te,  00  Id. 


650  JoNis  V.  State.  (Tezaa^ 


935,  And  notM  to  these  oMei;  oompwre  Homer  t.  Doe  ox  dem,  Siaie  Bamk^ 
48  Id.  355;  Vom  r.  Morion,  60  Id.  750;  Fitzhugh  r.  Cfmier,  61  Id.  728;  CaU- 
i0etf  ▼.  WcUtera,  65  Id.  592,  and  notei  thereto;  althoagh  the  jndgme&t  be 
erroneouB,  it  can  not  be  impeached  in  a  oollatend  manner:  Burford  v.  Somn- 
field,  38  Tex.  45,  referring  to  the  principal  case  on  this  point* 

JuDOMKNT  or  Court  or  Coicfetxnt  Jorisdiotiok  m  Ck)KCLUsivx,  not 
only  as  to  subject-matter  determined,  but  as  to  erery  other  matter  which 
the  parties  might  have  litigated  and  have  had  decided:  EnUnay  t.  Conner, 
63  Am.  Dec  325,  and  note;  Wihon  v.  Str^  61  Id.  138;  and  see  MoAff  y. 
WaU,  55  Id.  71.  The  principal  case  was  cited  to  this  point  in  NiekoU  v. 
DtbrtU,  61  Tex.  541.  It  is  not  neoessary  to  the  condnsiveness  of  the  former 
Judgment  that  inane  should  have  been  taken  npon  the  precise  point  which  it 
Is  proposed  to  controvert  in  the  collateral  action;  it  is  sufficient  if  the  point 
was  essential  to  the  former  judgment:  Oldham  t.  Mdver,  49  Id.  572.  So 
in  a  suit  against  a  husband  and  wife  for  the  foreclosure  of  a  mortgage  exe- 
cuted by  them,  if  a  decree  be  rendered  against  the  husband  alone  the  wife  is 
concluded  by  the  proceedings  from  setting  up  a  claim  to  the  same  property: 
Wtbh  V.  Mallard,  27  Id.  85;  and  where  a  pftrty  brought  suit  to  foreclose  a 
mortgage,  recovered  judgment,  and  purchased  the  property  at  sheriff's  sale, 
and  then  sued  io  ejectment  to  recover  possession,  it  is  too  late  for  the  defend* 
ant  to  plead  that  the  property  was  his  homestead  at  the  time  the  judgment 
of  foreclosure  was  rendered:  ChUaon  v.  Beeve$,  29  Id.  281;  and  where,  also^  a 
mortgagee,  being  sued  for  a  foreclosure,  pleaded  his  homestead  exemption, 
and  there  was  a  judgment  of  foreclosure,  ordering  the  property  to  be  sold,  in 
a  suit  by  the  purchaser  at  such  sale  against  the  mortgagee  to  recover  the 
property  the  mortgagee  is  concluded  by  the  judgment  of  foredosnre  from 
again  pleading  his  homestead  exemption:  Tadloek  v.  £lede8,  20  Id.  791.  In 
the  foregoing  Texas  decisions  the  principal  case  has  been  varloasly  cited, 
quoted,  and  followed. 

MoRTOAOB  ox  Homestead  mat  be  Cbbated  bt  Husband,  with  Goivour- 
RBNOB  or  Wife,  in  the  forms  prescribed  by  law.  The  principal  case  is 
quoted  on  this  proposition  in  Jordan  v.  Peak,  38  Tex.  441;  see  also  Sampson 
V.  WilliamBon,  55  Am.  Dec.  762;  and  in  Stewart  v.  Mo/ebey,  16  Tex.  68,  it  is 
approved  on  the  point  that  where  a  husband  and  wife  executed  a  mortgage 
on  the  homestead,  ineffectual  as  to  the  wife,  and  afterwards  the  homestead 
was  abandoned  and  another  acquired,  the  mortgage  oould  be  enforoed,  the 
debt  not  being  barred  by  the  statute  of  limitations. 


Jones  v.  State. 

(UTSSAa,  168.1 
JfTMSt  IN  GhAROINO  JuBT,  MAT  CaLL  THEIR  ATTBHTION  TO  ^VIDBHCB  Off 

Pabtioulab  Fact  or  Faotb,  if  controverted,  for  the  purpose  of  directing 
them  to  the  rules  of  law  that  must  govern  them  in  arriving  at  the  truth, 
and  if  uncontroverted,  for  the  application  of  the  law  to  the  fact.  All 
that  is  required  of  the  judge  is  that  he  should  neither  decide  nor  endeavor 
to  influence  the  jury  in  their  decision  on  the  facto. 
JuBT  must  Dbtbrminb  What  Witnesses  are  Entitled  to  Moav  In- 
viiUBNOB  when  the  testimony  is  conflicting;  and  this  they  may  do  froii 
varions  considerations:  the  manner,  expression,  and  intelligenoe,  and  who 


1864]  Jones  v.  State.  651 

an  likely  to  be  best  informed,  from  their  eitoatioii  and  intelligienoe.  The 
propoaitton  that  if  the  witneeaes  before  the  Jury  are  eqnal  in  erediUlity 
the  greater  number  mn«t  prevail  ii  nnaoond. 

Immoral  ob  Ukchastb  CHABAonB  ov  WrrNxaa.— The  Jniy  baa  the  soto 
right  to  respond  to  the  question  how  far  the  want  of  obaatity  would  im« 
pair  the  credibility  of  a  witness. 

DiOLA&aTiORs  OB  ADMiasioirs  abb  Evidbngb  AOAum  AoouBED,  bat  not  ia 
hUi  own  favor;  although  all  that  the  accused  said  at  the  time  of  making 
the  alleged  confession  is  to  be  received  to  qualify  or  explain  it. 

CoHVBSSiON  ov  Pabty  Aoousbd  of  Fblont  should  bb  Kbcbivbd  with  Vbbt 
Gbbat  GAunoKy  and  a  jmy  should  hesitate  to  convict  npcm  such  oonlea- 
dCUf  unless  corroborated  by  other  circumstances;  but  a  Judge  can  not  be 
called  npcm  to  so  instruct  the  Jury,  unless  the  facts  in  evidence  make  the 
charge  applicable. 

JUBT  SHOULD  BB  InSTBUOTBD  TO  PASS  ON  GaSB  OV  OVB  OB  MOBB  OF  SbT- 

BBAL  DEFBKDAKTd  who  are  Jointly  indicted  and  put  on  trial  together, 
before  the  other  defendant  or  defendants  have  opened  their  defense,  so 
that  the  latter  may  not  be  deprived  of  the  evidence  of  co-defendants  who 
are  not  inculpated  by  the  evidence  of  the  state,  where  there  is  little  or  no 
evidence  against  such  defendants,  and  they  are  willing  to  be  tried  on  the 
evidence  of  the  prosecution. 

VbBDICT    will    BB    SbT    AsIDB    on    OBOUND   THAT  JUBT    I>BANX   AbDBHT 

Spibits,  of  their  own  procurement,  after  retiring  to  deliberate. 
Vbbdict  is  not  Vitiatkd  bt  Fact  that  Jubt  Bbgamb  Sbpabatbd  while 

the  bailiff  was  conducting  them  through  a  crowd,  it  not  appearing  that 

the  jury  had  conversed  with  other  persons. 
GoNVicriON  FOB  HiOHiB  Offinbb  oah  not  bb  Susxainbd  after  a  conviotioii 

for  an  inferior  one 
MuBDBB  IN  Second  Diobxb  Adiots  of  Aoobssabibs  befobi  Fact,  as  it  can 

only  be  committed  with  malice. 

Appeal  from  a  judgment  on  a  ooimotion  of  the  appellants  on 
a  charge  of  murder  in  the  first  degree.  The  opinion  states  the 
ease. 

John  Taylor  and  J.  G.  MoDonald,  for  the  appellants. 

Thomas  J.  Jennings^  ailomey  general^  for  the  appellee. 

By  Oourt,  Lipsoomb,  J.  This  is  an  appeal  from  a  judgment 
on  a  conyiction  of  the  appellants,  on  a  charge  of  murder  in  the 
first  degree;  the  first-named  appellant  as  principal,  and  the 
second  as  accessary  before  the  fact.  The  trial  and  conTiction 
was  at  the  last  tenn  of  the  district  court  for  Madison  county. 
There  had  been  a  trial  at  the  preceding  term  of  the  court,  and 
the  appellants  had  been  found  guilty  of  murder  in  the  second 
degree;  the  first  named  as  principal,  and  the  last  named  as 
aocessazy  before  the  &ct.  The  verdict  was  set  aside  and  a  new 
trial  awarded,  which  new  trial  resulted  as  above  stated,  in  the 
eomviotion  of  both  of  mnrder  in  the  first  degree.    A  motum 


662  Jones  v.  State.  [Texasp 

WB8  made  for  the  discharge  of  Nancy  Jones,  on  the  ground  that 
she  was  indicted  as  accessary  before  the  fact  to  the  principal^ 
George  Jones,  and  both  having  been  found  guilty  of  murder  in 
the  second  degree,  the  accessaxy  could  not  be  punished,  because 
there  could  be  no  accessaiy  before  the  fact  to  murder  in  the 
second  degree.  There  was  also  a  motion  made  for  a  new  trial, 
on  Tazious  grounds.    Both  motions  were  overruled. 

The  overruling  these  motions,  with  various  other  grounds, 
have  been  assigned  for  error.  Such  of  them  as  are  considered 
as  presenting  any  question  of  law  will  receive  our  most  delib- 
erate attention  and  thorough  investigation;  others  that  we  re- 
gard as  merely  questions  of  practice  will  be  disposed  of  in  a 
more  cursory  manner,  and  with  these  we  vrill  begin,  leaving  the 
most  important  to  be  last  discussed. 

On  the  charge  that  the  judge  assumed  the  province  of  direct- 
ing the  jury  as  to  what  had  been  proved,  and  thereby  intrenched 
upon  the  province  of  the  jury,  we  will  say  but  little,  because  on 
looking  into  the  record  we  do  not  believe  the  charge  is  sus- 
tained. Whilst  we  are  at  all  times  bound  to  sustain  the  right 
of  the  jury  to  decide  on  facts  given  in  evidence,  yet  we  are  fully 
aware  that  it  oftentimes  occurs  that  in  charging  on  the  law 
the  judge  is  more  distinct,  and  can  be  better  understood,  by  call- 
ing their  attention  to  the  evidence  of  a  particular  fact  or  facts, 
if  it  is  a  controverted  one,  for  the  purpose  of  directing  the  jury 
to  the  rules  of  law  that  must  govern  them  in  arriving  at  the 
truth,  and  if  uncontroverted,  for  the  application  of  the  law  to 
the  &ct.  All  that  is  required  of  the  judge  is  that  he  should 
neither  decide  upon  the  facts  nor  endeavor  to  influence  the 
jury  in  their  decision  on  the  facts;  and  there  is  nothing  in 
the  record  from  which  it  can  be  inferred  that  the  province  of 
the  jury  was  attempted  to  be  invaded. 

The  counsel  for  the  appellants  put  an  abstract  proposition  to 
the  judge  in  asking  his  instruction  to  the  jury,  that  suppos- 
ing the  witnesses  equal  before  the  jury  in  credibility,  the 
greater  number  must  prevail.  This  proposition  is  an  abstract 
one,  because  the  record  does  not  show  the  witnesses  to  be  in 
this  category.  But  the  proposition  is  unsound,  because  it  fixea 
an  arbitraiy  rule  for  the  government  of  the  jury  in  deciding  on 
the  weight  of  evidence  when  the  credibility  of  Oxe  witnesses  has 
not  been  impeached,  and  they  have  all,  Iherefore,  gone  before 
the  jury  as  equal.  Now,  in  such  cases,  the  jury  giving  weight 
to  testimony  so  conflicting  must  determine  which  is  entitled  to 
most  influence,  and  this  they  may  do  from  various  considem^ 


1854.]  Jones  v.  State.  558 

tions:  the  manner,  ezpreBaion,  inteUigenoe,  and  which  is  lilcely 
to  be  best  informed,  from  his  situation  and  inteUigenoe.  The 
role  asked  by  the  appellants  may  have  received  the  sanction  of 
respectable  authority,  but  we  believe  it  is  ^oo  arbitnuy,  and  looks 
like  substitating  a  physicial  weight  for  the  moral  influence  by 
which  the  jury  should  be  governed. 

We  do  not  believe  the  judge  erred  in  refusing  to  charge  the 
jury  that  the  immoral  character  of  a  witness  destroyed  or  in- 
validated her  testimony.  All  the  witnesses  who  testified  to  the 
character  of  the  witness  being  bad  limited  her  bad  character  to 
the  general  reputation  of  a  want  of  chastity.  This  is  certainly  a 
great  want  of  morality  in  a  man,  or  woman  either,  but  it  did  not 
render  her  infamous  in  the  legal  sense  of  the  term  ''  infamous;  ** 
and  all  the  witnesses  said  they  knew  nothing  against  her  charac- 
ter for  truthfulness;  therefore  she  was  clearly  a  competent  wit- 
ness. How  far  the  want  of  chastity  would  impair  her  credit 
was  a  question  to  which  the  jury  had  the  right,  and  sole  right, 
to  respond. 

The  appellants  asked  the  court  to  charge  the  jury,  in  effect, 
that  if  a  confession  of  the  accused  was  proved  to  have  been 
made  at  one  time  by  one  witness  of  the  state,  and  proved  to 
have  been  denied  at  another  time  by  another  witness  for  the 
state,  one  would  destroy  the  other,  and  had  both  to  be  taken 
together.  If  this  rule  could  be  sustained,  it  would  allow  the 
accused  to  make  evidence  in  his  own  defense.  The  rule  is, 
that  a  person's  declarations  or  admissions  shall  be  evidence^ 
against  himself,  but  not  in  his  own  favor.  There  is,  however, 
a  qualification  to  this  rule,  and  that  is  that  the  confessions  are 
not  to  be  cut  up,  and  a  part  only  received,  and  that  part  against 
the  accused;  but  that  all  that  the  party  said  at  the  time  of  mak- 
ing the  alleged  confession,  to  qualify  or  explain  it,  is  to  be  re- 
ceived. It  does  not  extend  to  what  he  may  have  said  at  another 
time. 

It  has  been  said  in  argument  that  the  judge  had  refused  to 
charge  the  jury  that  the  confession  of  aparty  accused  of  a  felony 
should  be  received  with  veiy  great  caution,  and  that  a  jury 
should  hesitate  to  convict  upon  such  confession  unless  corrobo- 
rated by  other  circumstances.  This  is  certainlya  iQgal  principle 
of  evidence,  founded  on  sound  philosophy  and  the  purest  hu- 
manity. But  the  judge  could  not  be  called  to  give  this  charge, 
unless  the  &cts  in  evidence  made  such  charge  applicable. 
Under  the  influence  of  the  rule  regolating  confessions,  it  would 
ttot  be  legal  to  convict  on  the  naked  confession  of  the  parly  ao- 


\ 


6M  Jones  v.  State.  [Toza^ 

ouaed  of  an  offense,  unless  such  offense  had  been  pzoved  to  haTe 
been  oommitted  by  some  person.  So  if  a  man  confesses  that  he 
had  murdered  A. ,  it  must  be  proved  that  A.  t\iad  been  destroyed. 
Or,  in  the  language  of  the  law,  the  corpiiBddicli  must  be  proved. 
The  judge  in  this  case  may  well  have  refused  to  give  the  chazge, 
because  it  was  not  at  all  applicable  to  the  facts  and  drcumstances 
by  which  it  was  corroborated  and  surrounded.  In  this  case 
there  is  no  doubt  of  the  life  of  the  man  being  destroyed,  and 
prima  facie  it  was  felonious  killing.  There  was  no  evidence  of 
surprise,  fright,  or  any  inducement  held  out  to  make  the  con- 
fession; such  circumstances  would  have  been  proper  to  be  con- 
sidered by  the  jury,  and  if  any  of  them  had  been  in  evidence, 
the  refusal  of  the  court  to  give  the  charge  would  have  been  error. 
We  will  now  proceed  to  the  investigation  of  what  we  regard 
as  the  most  important  objections  to  the  afiSrmance  of  the  judg- 
ment in  the  case.  It  appears  from  the  record  that  there  was  a 
third  person  indicted  and  put  on  trial  with  the  appellants,  who 
was  acquitted.  After  the  attorney  for  the  state  had  closed  his 
testimony  for  the  prosecution,  it  was  proposed  that  the  jury 
should  take  the  case  of  the  party  who  was  afterwards  acquitted 
by  the  verdict,  and  acquit  her,  so  that  she  might  be  made  a 
competent  witness  for  her  co-defendants,  the  present  appel- 
lants. This  motion  was  predicated  on  the  ground  that  the  state 
had  offered  no  testimony  that  had  inculpated  her.  The  motion 
was  overruled.  It  may  here  be  remarked  that  the  statement  of 
facts  does  not  show  any  evidence  against  Eissiana  Jones,  who 
was  acquitted.  The  appellants,  after  conviction,  sought  to  set 
aside  the  verdict,  and  have  a  new  trial,  on  the  affidavit  of  this 
acquitted  party;  and  they  urged  it  on  the  ground  of  newly  dis- 
covered evidence,  contending  that  in  principle  it  was  not  to  be 
distLnguished,  because  the  evidence  had  only  become  compe- 
tent by  the  verdict  of  acquittal.  It  seems  to  be  settled,  on  well- 
considered  authority,  that  this  was  not  (?)  a  good  ground  for  a  new 
trial:  1  Arch.  Crim.  Law,  668;  People  v.  Vermilyea,  7  Oow.  869. 
Chief  Justice  Savage,  in  giving  the  opinion  overruling  the  mo- 
tion for  a  new  trial  in  the  case  cited  from  Oowen,  adds:  ''  The 
proper  course  was,  if  the  testimony  against  Davis  was  slight,  to 
have  the  jury  pass  on  his  case,  and  then  introduce  him  as  a  wit- 
ness on  behalf  of  his  co-defendants.  We  believe  that  the  motion 
for  a  new  trial  on  the  ground  of  newly  discovered  evidence 
was  properly  overruled,  according  to  adjudged  cases,  because  it 
was  not  newly  discovered,  but  only  incompetent,  as  the  parties 
must  have  been  aware,  of  its  importance  before  they  went  to 


1854]  Jovss  V.  State.  556 

txiaL  If,  howerer,  the  partidB  had  neglected  to  offer  to  ha^e 
the  jury  pass  on  the  ease,  where  little  or  no  evidence  was  offered 
by  the  proseontion,  we  would,  perhaps,  have  felt  anthorized  to 
grant  a  new  trial,  not  on  the  ground  of  newly  discovered  evi- 
dence, bat  on  the  ground  that  important  evidence  was  now 
within  their  power  to  produce  that  the  rules  of  law  had  put  be- 
yond their  reach  on  the  former  trial."  We  believe  that  the  rule 
laid  down  by  Chief  Justice  Savage  is  too  technical  to  be  strin- 
gently applied  in  a  capital  case;  but  we  agree  that  it  would  be 
more  regular  to  pursue  the  course  indicated  by  him.  In  this 
case,  however,  we  have  no  difiSculiy,  even  upon  the  most  strin- 
gent rule,  because  the  appellants  did  ask  to  have  the  benefit  of 
the  evidence  by  a  trial  and  acquittal  of  their  co-defendant,  and 
it  was  refused  by  the  court  below.  In  our  opinion,  in  all  cases 
where  two  or  more  are  jointly  indicted  and  put  on  their  trial  to- 
gether, and  there  is  little  or  no  evidence  against  one  or  more  of 
the  defendants,  and  such  defendants  are  vrilling  to  be  tried  on 
the  evidence  of  the  prosecution,  the  jury  should  be  instructed 
to  pass  on  their  case  before  the  other  defendant  or  defendants 
have  opened  their  defense,  so  that  they  may  not  be  deprived  of 
the  evidence  of  co-defendants  who  are  not  inculpated  by  the 
evidence  of  the  state.  There  was  error  in  the  court  refusing  to 
permit  the  jury  first  to  pass  on  the  case  of  Eissiana  Jones  before 
the  appellants  opened  their  evidence. 

The  misconduct  of  the  jury  is  assigned  as  a  ground  for  re- 
versing the  judgment*  It  appears  from  the  affidavit  of  the 
bailiff  that  at  the  request  of  the  jury  he  had  twice  taken  to 
them  whisky,  and  that  they  drank  it;  that  this  was  after  they 
had  received  the  charge  of  the  court  and  retired  to  consider  of 
their  verdict;  and  that  they  had  once  separated  whilst  he  was 
conducting  them  through  tiie  crowd,  after  they  had  taken  their 
supper.  The  course  of  judicial  decision  upon  the  question  as 
to  what  kind  of  misconduct  on  the  part  of  the  jury  shall  be  suf- 
ficient to  vitiate  their  verdict  has  been  far  from  uniform;  per- 
haps no  question  has  presented  so  great  a  diversity  of  opinion. 
In  England  the  jury  was  subject  to  the  most  rigid  iron  rule 
that  thqr  should  be  kept  together  vrithout  any  refreshment 
whatever,  neither  meat  nor  drink,  nor  fire,  until  they  had 
agreed;  and  the  bailiff  was  sworn,  further,  not  to  permit  them  to 
bespoken  to  by  any  one,  nor  to  speak  to  them  himself  but  toask 
them  if  they  had  agreed.  In  civil  cases  the  rule  was  not  so 
stringent,  and  it  did  not  vitiate  their  verdict  if  it  was  proved 
that  they  had  separated,  or  taken  refreshment,  or  spoken  to  any 


566  JOKU  V.  9TATB.  (Tezaa^ 

xme,  if  it  was  pzored  tbat  it  had  not  influenced  their  Tordict;  and 
this  seems  to  be  the  most  uniform  luleof  decision  in  most  of  the 
states,  each  of  them,  howeyer,  showing  a  diversity  of  decision 
at  different  times.  In  the  state  of  New  York  it  seems  that  the 
drinking  of  ardent  spirits  faj  the  juxy,  where  it  was  not  furnished 
by  the  successful  party,  and  they  did  not  drink  to  excess,  af- 
forded no  ground  for  setting  aside  their  verdict.  In  the  case  of 
People  Y.  Douglass^  a  capital  case,  4  Oow.  26  [15  Am.  Deo.  832], 
two  of  the  jurors  separated  from  their  feUows  and  from  their 
officer,  and  ate,  and  drank  spirituous  liquors,  and  oonYersed 
with  by-standers  on  the  subject  of  the  trialj  the  jurors  knew  they 
were  disregarding  the  insiaructions  of  the  court,  and  for  this 
irregularity  their  rerdict  was  set  aside.  This  is  the  Terdon  of 
the  case  given  by  Mr.  Justice  Brown. 

In  the  case  of  Bmni  ▼.  Ibwler,  7  Oow.  562,  the  jurors  were 
not  allowed  to  separate,  but  were  permitted  to  leaye  the  court- 
room accompanied  by  an  officer.  One  of  the  number  separated 
from  the  officer  and  drank  brandy,  and  for  this  cause  the  ver- 
dict was  set  aside.  In  the  case  of  WUaon  v.  Abrahams,  1  Hill 
(N.  Y.),  207,  Bronson,  J.,  commenting  upon  the  foregoing 
cases,  said:  '*  The  case  of  BrarU  v.  Ibwler  can  not,  I  think,  be 
supported.  The  mere  fact  that  some  of  the  jurors,  'of  their  own 
head,'  drink  spirituous  liquors  in  the  course  of  a  cause,  if,  as 
was  admitted  in  that  case,  there  '  has  been  no  mischief,'  can  not 
be  a  sufficient  ground  for  setting  aside  the  verdict.  There  is  no 
authority,  ancient  or  modem,  so  &r  as  I  have  observed,  which 
gckes  far  enough  to  uphold  such  a  doctrine."  He  then  contends 
that  the  case  of  People  v.  Douglass,  9upra,  did  not  rest  upon  the 
mere  fact  of  the  jurors  drinking  spirits,  but  upon  all  the  irreg- 
ularities taken  together,  such  as  separating  and  talking  to  by- 
standers about  the  case.  He  must  conclude  that  in  New  York 
at  this  time  the  mere  fact  of  the  jury  drinking  spirits  at  their 
own  procurement  is  not  sufficient  per  ae  to  set  the  verdict  aside. 
Mr.  Wa^erman,  in  his  notes  to  Archbold's  Oriminal  Law,  in  re- 
marking on  the  cases  cited  from  New  York,  says,  page  637:'  '*  In 
The  State  v.  Prescoti,  7  N.  H.  287,  the  superior  court  of  New  Hamp- 
shire did  not  seem  prepared  to  follow  the  New  York  decisions  of 
People  V.  Douglass  and  Brant  v.  Ibtoler,  even  in  a  capital  case. 
Nor  were  they  followed  in  Massachusetts,  in  GomnumweaUh  v. 
Boby,  12  Pick.  610, 616, 620,  which  was  also  a  capital  case."  In 
the  state  of  Tennessee,  in  the  case  of  Stone  v.  State,  4  Humph. 
97,  it  was  decided  that  a  new  trial  will  not  be  granted  upon 
flie  affidavit  that  the  jury  drank  ardent  spirits  at  their  meals, 


1854.]  Jones  v.  9catk.  ft57 


the  pPDgiooD  of  the  trial,  without  proof  that  they  were 
thereby  disqualified  from  duly  coDsidering  the  ease.  In  the^sub- 
sequent  case  of  Hogshetid  y.  State,  6  Id.  69,  the  point  was  made 
of  one  of  the  jurors  drinking  ardent  spirits,  among  other  grounds, 
for  setting  aside  the  Terdict;  and  Judge  Beese,  who  deliyered 
the  opinion  of  the  supreme  court  granting  a  new  trial,  expressly 
declares  that  it  is  not  granted  on  the  ground  of  his  drinking 
spirits,  but  on  that  of  the  juror's  mental  imbecility.  This  case 
must  be  regarded  as  then  reafSrming  the  doctrine  of  Stone  y. 
State,  supra.  We  haye  found  but  two  cases  where  the  yerdict 
was  held  to  be  yidous  upon  the  ground  that  the  jurors,  or  part 
of  them,  had  drank  ardent  spirits;  those  are  the  cases  of  Peo* 
pie  y.  DougUuB,  4  Cow.  26  [16  Am.  Dec.  882],  and  Brani  y.  Ibwler, 
7  Id.  662.  These  cases,  it  seems,  were  oyerruled  by  the  case 
of  Wil9on  y.  Abrahams,  1  Hill  (N.  Y.),  207,  though  Mr.  Justice 
Bronson  thinks  that  the  first  of  these  did  not  rest  upon  the  fact 
of  ardent  spirits  being  drank  1^  the  jury;  but  according  to  our 
reading,  it  was  expressly  rested  upon  that  ground,  as  the  judges 
say  that  the  other  grounds  were  not  sufBoient. 

The  weight  of  authority  seems  to  be  against  ^M^lrfng  the  sin* 
gle  fact  of  the  jury  drinking  ardent  spirits  per  se  a  snffident 
ground  for  setting  aside  the  yerdict.  It  is  treated  as  any  other 
act  of  misconduct:  that  if  furnished  by  a  party,  or  if  it  has  had 
an  influence  on  the  jury  in  finding  their  yerdict,  it  would  be 
grounds  for  setting  it  aside.  We  howeyer,  with  due  respect  for 
the  judges  who  haye  maintained  this  doctrine,  are  constrained 
to  depart  from  their  opinions;  and  we  belieye  that  the  view  they 
haye  taken  of  the  efiect  of  ardent  spirits  on  the  feelings,  and  also 
on  the  mind,  has  been  superficial,  and  not  at  all  philosophicoL 
Eyery  day's  experience  must  satisfy  us  that  it  is  impossible  to  lay 
downa  rule  as  to  how  much  can  be  drank  without  impairing  the 
qualification  of  a  juror  for  discharging  the  trust  confided  in 
him.  Its  effects  have  been  well  described  by  Scotland's  most 
popular  bard; 

**  Inspiring  bold  John  Bnrkjooni, 
Wh«t  dangen  thoa  oMut  make  u  loonU 
Wi'  tippennyt  we  fear  nae  eyil; 
Wi'  usque  bae,  well  face  the  deviL" 

Tes,  it  is  but  too  true  that  it  will  make  a  man  bold  and  reck- 
less, not  only  of  consequences  personally,  but  also  of  the  rights 
of  those  whose  lives,  and  most  valuable  interests,  property,  and 
ceputation,  are  at  stake;  and  its  effect  is  so  yeiy  different  on  dif- 
ferent men  that  it  would  be  dangerous  in  the  extreme  to  attempt 


658  JoHBB  V.  Stats.  [Texaa^ 

to  lay  down  any  role  bgrirludh  it  oould  or  should  be  detennined 
whetiier  a  juror  had  dnnk  too  much  or  not;  and  the  only  safe 
rule  is  to  exclude  it  entirely. 

The  rule  laid  down  in  the  two  oyermled  cases  in  New  York  is 
founded  in  wisdom  and  a  careful  regard  to  the  pure  and  impar- 
tial administration  of  the  legal  righte  of  parties,  and  we  adopt 
it  as  the  law  of  this  court. 

We  have  discussed  this  subject  on  the  ground  of  misconduct 
of  the  jury.  We  have  done  so  because  this  is  the  only  one  we 
conceive  was  established  by  the  record.  There  does  not  appear 
to  have  been  such  a  separation  of  the  jury,  or  conversing  with 
others,  as  would  vitiate  the  verdict.  We  are  aware  of  the  diffi- 
cidty,  in  the  present  condition  of  our  country,  of  keeping  the 
jury  entirely  secluded;  hence  the  propriety  of  a  relaxation  of 
the  rigor  of  the  ancient  rules  upon  this  subject.  That  the  jury 
should  be  kept  to  themselves  as  far  as  practicable,  and  that 
they  should  not  be  permitted  to  separate  without  the  consent 
of  the  court,  can  not  be  doubted;  but  whether  they  should  be 
permitted  so  to  separate,  and  under  what  circumstances,  must 
be,  in  a  great  measure,  left  to  the  discretion  of  the  judge  presid- 
ing: See  Smith  v.  Thompson,  1  Cow.  221,  and  note  thereto. 
Where  the  jury,  or  any  number  of  them,  have  separated  without 
the  consent  of  the  court,  we  believe  the  following  rules,  laid 
down  by.  Judge  Green  in  Ernes  v.  Staie,  8  Humph.  597,  are 
correct,  and  should  be  observed:  1.  That  the  fact  of  the  separa- 
tion having  been  established  by  the  prisoner,  the  possibility 
that  the  juror  has  been  tampered  with  and  has  received  other 
impressions  than  those  derived  from  the  testimony  in  court 
exists,  and  prima  facie  the  verdict  is  vicious;  but,  2.  This 
separation  may  be  explained  by  the  prosecution  showing  that 
the  juror  had  no  communication  with  other  persons,  or  that 
such  communication  was  upon  subjects  foreign  to  the  trial,  and 
that  in  fact  no  impressions  other  than  those  drawn  from  the 
testimony  were  made  upon  his  mind;  but,  8.  In  the  absence 
of  such  explanation,  the  mere  fact  of  separation  is  sufficient 
ground  for  a  new  trial."  We  believe  that  the  same  rules  will 
apply  in  civil  cases. 

It  is  believed  to  be  proper  on  this  occasion  to  notice  with 
reprehension  what  we  regard  as  culpable  negligence  in  this 
case  whilst  before  the  court  below.  It  is  certainly  the  duty  of 
the  prosecuting  attorney  and  the  judge  to  see  that  some  discreet, 
prudent  man  shall  take  charge  of  the  jury,  and  not  an  ignorant 
youth  of  seventeen  years  of  age,  as  bailiff  in  a  capital  case. 


1854]  JONXS  V.  SXATS.  5Sft 

The  bailiff  should  be  specially  sworn  for  the  oocaaion,  and  prop- 
erly instmoted  in  his  duties:  that  he  should  not  permit  ihem  to 
separate  vdthout  the  consent  of  the  court,  if  in  his  power  to  pre- 
sent it;  that  he  should  not  permit  them  to  take  food  without 
the  consent  of  the  court;  that,  as  far  as  was  in  his  power,  he 
would  prevent  their  conversing  with  any  person  not  belonging 
to  their  body,  and  should  not  permit  their  drinking  ardent 
spirits. 

The  next  question  to  discuss  is  an  important  one,  and 
presented  for  the  first  time  in  this  court,  and  we  beUeve  but 
seldom  in  any  court.  It  is,  whether  the  appellants,  after  having 
been  put  upon  their  trial  for  murder,  and  found  gnilfy  in  the 
second  degree,  and  a  new  trial  granted,  can  be  legally  convicted 
on  the  second  trial  of  murder  in  the  first  degree. 

This  question  has  not  often  been  adjudicated.  Mr.  Wharton, 
in  his  American  Oriminal  Law,  a  work  of  great  merit,  and  re- 
garded as  high  authority,  lays  down  the  doctrine  to  be  that 
where  there  are  different  counts  in  an  indictment,  presenting 
distinct  offenses,  a  conviction  of  an  inferior  offense  presented 
in  one  count,  an  acquittal  on  the  other  counts,  and  a  new  trial, 
the  prisoner  can  not  be  convicted  of  the  higher  offense  charged 
in  the  counts  on  which  he  had  been  acquitted;  but  if  the  same 
oouut  embraces  two  offenses  of  different  grades,  and  there  is  a 
conviction  of  the  inferior  offense,  and  a  new  trial,  the  new  trial 
will  again  open  the  whole  case  to  the  court,  and  the  prisoner 
may  be  convicted,  on  the  second  trial,  of  the  higher  offense;  and 
he  cites  the  case  of  Morris  v.  SicUe,  1  Blackf .  87,  and  the  opinion  - 
of  Mr.  Justice  Orier,  in  the  circuit  court  of  the  United  States  at 
Philadelphia,  reported  in  6  Pennsylvania  Law  Journal,  22.  We 
have  no  access  to  the  case  cited  from  Blackford,  but  the  case 
decided  in  Philadelphia  shows  the  decided  opinion  of  the  court 
in  support  of  the  rule  laid  down  by  Mr.  Wharton.  Several  per« 
sons  had  been  tried  for  murder  and  convicted  of  manslaughter, 
and  a  motion  made  by  them  for  a  new  trial.  The  judge  eamestiy 
cautions  them  to  consider  well  before  they  asked  for  a  new  trial, 
assuring  them,  if  a  new  trial  should  be  granted,  on  the  second 
trial  the  jury  might  find  them  guilty  of  murder,  and  their  lives 
might  be  forfeited.  The  question  is  not  discussed  by  either  Mr. 
Wharton  or  Judge  Orier.  The  rule  is  only  laid  down  by  them; 
it  seems  to  them  to  be  unquestionable. 

On  the  other  side  is  the  deliberate  opinion,  more  than  once 
cspreesed,  of  the  supreme  court  of  Tennessee,  and  the  opinion 
of  the  supreme  court  of  Mississippi,  that  the  conviction  for 


\ 


500  Jones  v  Stahb.  [Tezaa^ 


the  higher  offaoM  after  a  oonTiciion  of  an  inferior  one  ean  not 
be  sustained.  It  would  seem  that  the  latfcer  doctrine  is  best 
sustained  on  principle.  The  finding  of  not  guilty  of  the  higher 
o£fense  is»  so  far,  a  discharge  of  the  prisoner,  a  discharge  of  the 
offense;  and  it  would  not  be  supposed  for  a  moment  that  he 
would  be  dissatisfied  or  aggrieved  thereby,  and  we  have  no  au- 
thority for  trying  him  again  for  the  offense.  If  he  should, 
under  a  hardly  conceiTable  infatuation,  ask  for  it,  the  courts 
would  say.  You  have  been  acquitted;  we  can  not  try  you 
again  for  that  offense.  But  for  the  offense  of  which  he  is 
found  guilty  he  has  a  right  to  ask  for  a  new  trial.  The  courts, 
on  a  proper  case,  ought  to  grant  it;  and  can  try  him  again  for 
the  offense  of  which  he  had  been  convicted,  but  for  no  other. 

The  affirmative  of  the  proposition  claims  strength  from  the 
supposed  entirety  of  the  verdict,  that  it  could  not  be  set  aside  in 
part  and  stand  in  part.  This  argument  was  held  to  be  unsound 
in  the  case  of  King  v.  Matebey,  6  T.  B.  688,  where  all  the 
judges  held  that  a  verdict  acquitting  some  of  the  prisoners  and 
convicting  others  could  be  set  aside  as  to  those  convicted  with- 
out setting  it  aside  as  to  those  acquitted;  and  the  same  argu- 
ment was  met  by  Judge  Qreen,  and  with  his  usual  ability 
abolished:  CampbeU  v.  Staie,  9  Yerg.  883  [80  Am.  Deo.  417]; 
and  the  judge  insists  that  in  principle  Una  is  not  difflBrent  from 
setting  aside  the  verdict  so  far  as  it  convicted,  without  disturb- 
ing that  part  of  it  that  acquitted.  The  same  doctrine  was 
reaffirmed  by  the  same  distinguished  judge  in  the  case  of 
Slaughter  v.  State^  6  Humph.  410*  The  same  doctrine  was  sus- 
tained by  the  supreme  court  of  Mississippi,  in  a  well-written 
opinion  of  Judge  Fisher,  in  the  case  of  Hurt  v.  Staie,  Living- 
ston's Magazine  for  April,  1864  [since  reported  in  26  Miss. 
878;  S.  C,  69  Am.  Dec.  226].  The  result  of  our  investiga- 
tion is,  that  both  on  principle  and  the  authority  of  adjudged 
cases,  the  appellants,  after  having  been  acquitted  of  mwcder  in 
the  first  degree  and  found  guilty  of  murder  in  the  second  de- 
gree, could  not  be  legally  tried  and  convicted  of  murder  in  the 
first  degree,  and  that  the  verdict  so  finding  them  can  not  stand 
as  the  basis  of  a  judgment  and  execution  thereofi. 

One  more  nov^l  and  important  question  remains  to  be  diih 
cussed  and  decided.  The  indictment  in  this  case  charges  the 
appellant  George  Jones  with  murder,  as  principal,  and  Nancy 
Jones,  the  other  appellant,  as  accessary  thereto  before  the  fact. 
The  principal  being  acquitted  of  murder  in  the  first  degree, 
Nancy  Jones,  indicted  as  accessary,  claims  to  be  discharged  on 


1854]  JONBB  V.  Stati.  561 

ihe  assamption  that  there  can  be  no  aooeeauiee  before  the  faoi 
to  murder  in  the  eeoond  degree. 

This  propoBition  is  attempted  to  be  snstained  on  the  ground 
of  analogy  to  a  finding  the  principal  in  an  indictment  for  mur- 
der not  guilty  of  murder,  but  guilty  of  manslaughter;  which, 
it  is  admitted,  would  discharge  an  accessary  before  the  &ct; 
there  being  no  such  offense  known  to  the  law  as  accessaiy  before 
the  fact  to  manslaughter.  The  analogy  is  not  perceived.  The 
offense  of  manslaughter,  from  its  l^gal  character,  excludes  the 
possibility  of  an  accessary  before  the  fact  as  an  element  of  its 
composition.  It  is  committed  suddenly,  without  reflection,  in 
heat  of  passion,  and  without  malice  expressed  or  implied,  and 
repels  the  supposition  that  the  homicide  was  the  result  of  pre- 
meditation, concert,  or  aid,  all  of  which  would  be  eyidences  of 
malice.  Now,  if  the  homicide  had  been  committed  without  any 
of  these  indicia  of  malice,  it  could  not  be  murder  in  the  second 
degree.  To  constitute  this  offense,  then,  there  must  be  malice, 
and  if  malice,  it  would  admit  of  complicity.  The  appellants 
seem  to  confound  murder  in  the  second  degree  with  manslaughter 
because  the  statute  defines  what  kind  of  eyidence  of  malice  con- 
stitutes murder  in  the  first  degree.  The  statute,  howeyer,  only 
designates  such  kind  of  murder  as  would  be  accompanied  by  the 
dearest  and  most  express  malice,  making  murder  with  any  other 
malice  of  the  second  degree.  One  might  encourage  and  coun- 
sel another  to  commit  some  violent  outrage  on  the  person  of  a 
third  person,  mayhem  or  the  like,  not  to  kill;  but  in  the  exeou« 
tion  of  this  design,  a  homicide  might  be  committed.  This  would 
be  murder  in  the  second  degree,  under  the  statute,  because  it  is 
not  embraced  in  the  statute  classification  of  the  evidences  of 
malice  to  make  it  murder  in  the  first  degree.  But  it  being  mur- 
der, it  falls  under  the  second  degree.  Murder  in  the  first  degree, 
under  our  statute,  is  "  committed  by  poison,  starving,  torture, 
or  other  premeditated  and  deliberate  killing,  or  committed  in  the 
perpetration,  or  in  the  attempt  at  the  perpetration,  of  arson,  rape, 
robbery,  or  burglary : "  Hart.  Dig. ,  art.  2516.  Now,  such  killing 
as  is  described  in  the  statute  cited  as  constituting  the  first  degree 
of  murder  would  be,  at  common  law,  murder  with  express 
malice,  leaving  for  the  second  class  all  murders  with  implied 
malice  not  so  designated;  as  would  be  the  case  if  there  was  a 
preconcerted  act  to  commit  some  other  felony,  but  not  to  kill, 
and  the  killing  ensued  in  the  attempt.  The  conclusion  that  we 
arrive  at  is,  that  as  murder  in  the  second  degree  can  only  be 
committed  with  malice,  that  it  admits  of  accessaries,  and  there 

Am.  Dbo,  Vol.  IiXII-46 


\ 


662  Jones  v.  State. 

WM  no  error  in  refosing  to  diflohaige  the  appellant  Nan<7  Jones. 
But  tor  the  errors  before  stated,  the  judgment  is  rererBed  and 
the  cause  remanded. 
Reversed  and  remanded. 

Ohabos  LI  PKRnon.T  UKOBnonovABUi  Ohit  when  It  Sen  Fobsb  Law 
Appuoabli  to  Cass,  withoat  OTprwiiing  or  intimating  any  opinion  m  to  tlie 
weight  of  the  evidence  or  the  credibility  of  statements  made  by  the  par^ 
accused,  or  by  the  witnesses:  Jiiee  v.  Stale^  3  Tex.  App.  455;  St^pkem§  t. 
Staie,  10  Id.  124.  Where  the  ooort  aasames  that  an  important  aUegation  ia 
the  indictment  had  been  proved,  it  is  a  charge  on  the  weight  of  the  evidcnoa^ 
and  objectionable:  Searqf  t.  SUUe^  I  Id.  443.  The  principal  case  is  cited  to 
the  foregoing  points. 

ImiORAL  Charactkb  ov  WiTinBBB  A8  Gbouhd  vob  Imfsaghing  ma  Tnn- 
hony:  See  StaU  t.  8hidd9,  63  Am.  Deo.  147»  and  prior  casss  in  notsa.  Hm 
principal  case  is  cited  to  the  point  that  a  witness  can  not  be  impeached  fay  an 
inquiry  into  his  moral  character*  in  TVese  t.  HwUtngdUnh  23  How.  12;  at  com- 
mon law  the  inquiry  into  his  general  character  was  limited  to  the  questioa 
of  his  reputation  for  truth:  Fletcher  v.  SUOe^  49  Ind.  133. 

CoifnsBioNs  OB  Dbculbatioms  of  Aocubkd,  wHiir  Admxbbiblb  di  En- 
DBNoa. — ^As  to  the  admissibility  of  confessions  against  the  accused,  see  SMS 
T.  Orank^  23  Am.  Dec.  1179  and  prior  cases  in  note;  SiaU  ▼.  Soper^  33  Id. 
665;  StaU  y.  Phelpg,  34  Id.  672;  Fhidle^v.  SUUe^  86  Id.  557;  CarroU  v.  StaU^ 
58  Id.  282.  The  declarations  of  the  accused  in  his  own  fayor  are  generallj 
inadmissible:  SUUe  ▼.  HUdrelh,  51  Id.  369;  although  when  this  confession  is 
giren  in  evidence,  the  whole,  as  well  that  part  which  makes  for  him  as  thai 
which  is  against  him,  must  be  taken  together  and  go  to  the  jury:  Brown  t. 
ChmmomoeaUh,  33  Id.  263. 

CoNTSSSiON  ov  AoousxD,  HOW  TO  Bi  Rbqakdbd  bt  Jubt:  See  ^ower  t. 
State^  32  Am.  Deo.  325;  part  of  the  confession  may  be  disregarded:  Id. ;  Brown 
T.  ComnumweaUh,  33  Id.  263.  The  uncorroborated  confession  of  a  prisoner, 
when  proved  by  legal  testimony,  and  when  the  corpus  delicU  is  otherwise 
established,  is  sufficient  to  warrant  his  conviction  of  the  offense  confessed, 
though  the  punishment  be  death:  State  v.  Ovild^  18  Id.  404. 

Jubt  should  bk  Instbuotsd  to  Pass  on  Gasb  of  Okb  ob  Mobx  or  Sbt- 
bbal  Defkndants,  Jointly  Indicted  and  Put  on  Tbial  Tooethbb,  before 
the  other  defendant  or  defendants  have  opened  their  defense,  so  that  the  latter 
may  not  be  deprived  of  the  evidence  of  co-defendants  who  are  not  inculpated 
by  the  evidence  of  the  state,  where  there  is  little  or  no  evidence  against  such 
defendants,  and  they  are  willing  to  be  tried  on  the  evidence  of  the  prosecu- 
tion. The  principal  case  is  quoted  on  this  point,  in  Byhee  v.  SttUe^  36  Tex. 
374;  and  cited  in  Bucker  v.  State^  7  Tex.  App.  557;  but  in  LyUs  v.  State,  41 
Tex.  181,  it  is  distinguished  as  a  decision  rendered  before  the  adoption  of  the 
code,  in  holding  that  where  there  was  evidence  tending  to  implicate  two  of 
three  defendants  the  court  did  not  err  in  refusing  to  direct  the  jury  to  pass 
upon  the  case  of  such  defendants,  with  a  view  of  using  them  as  witnesses  for 
the  other  defendant  in  the  event  of  their  being  acquitted. 

Dbinkino  ov  Intoxigatino  Liquobs  bt  Jubt,  wtuETHBB  Yitiatm 
VxBDicr:  See  People  v.  Douglass,  15  Am.  Dec.  332;  note  to  ffiUtm  t.  SouA' 
wick,  35  Id.  257.  The  principal  case  is  cited  in  Lyles  v.  SUUe,  41  Tex.  ISl* 
as  quoting  the  remarks  of  Chief  Justice  Savage  in  People  v.  Fenni/yea,  7 
Cow.  369,  on  this  point;  and  in  Daicis  v.  State,  35  Ind.  501,  its  language  ia 


1854.]  Jones  v.  State.  668 

regard  to  tlM  qm  of  intoadoathig  llqnon  by  the  Jozy  It  quoted;  eo  alio  fai 
March  ▼.  State^  44  Tex.  83,  it  le  dted  m  reftowlng  the  nde  in  eome  of  the 
■tatee  on  this  sabjeot,  and  as  finally  adopting  that  laid  down  In  PeopU  t. 
IhugUutf  tupra.  The  oomment  in  tiie  Utter  oaae  wai  madein  obaerring  that 
thortiy  after  the  dedaion  the  qneetion  wai  regnUted  by  the  code. 

Sbparatiov  ov  Just  in  Cbiminal  Gias,  whxthxb  VmATn  Vkbdiots 
Bee  Peiffer  t.  CommanwedUht  53  Am.  Deo.  606|  and  note  ooUeoting  prior 
eases  in  this  series;  BoberU  y.  Staie^  68  Id.  028.  In  JRsWy  ▼.  Staie,  I  Tsx. 
App.  274,  275;  Davi$  y,  fftate,  8  Id.  101,  the  qnotatUm  of  the  principal  oaae 
from  Hinu  ▼.  State,  8  Hnmph.  697,  is  again  quoted. 

CONTIOnON  OV  HlOHXB  OnrKNSX  mot  SuBXAIKABLI  AITBR  OomviOTiOH  ov 

LvTEBiOB  Onb:  Note  to  BoberU  r.  SkUe^  68  Am.  Deo.  644;  Hwri  ▼.  States 
69  Id.  225,  and  note.  Where  one  is  indicted  for  mnrder  in  the  first  degree^ 
bnt  is  foond  gnllty  of  mnrder  in  the  seoond  degree^  and  a  new  trial  is 
granted,  he  can  not  be  again  tried  for  mnrder  in  the  first  degree:  Cheek  t. 
State^  4  Tex.  App.  448;  JState  ▼.  Bddeih  83  Wis.  124;  a  oonyiction  of  mnrder 
in  the  second  degree  is  equivalent  to  an  acquittal  of  mnrder  in  the  first  de- 
gree. This  fact  is  Judicially  known  to  the  court  below,  and  the  charge  should 
be  construed  with  reference  to  the  case  as  it  then  stood  before  the  coort: 
Baier  ▼.  Staie^  4  Tex.  App.  232.  The  only  efleot  of  a  new  trial  in  a  criminal 
case,  whether  granted, by  the  court  below  or  resulting  from  a  rerersal  of 
the  judgment  of  the  lower  courts  is  to  subject  the  party  to  a  trial  for  the 
offense  of  which  he  has  been  conricted,  and  the  verdict  of  acquittal  of  the 
other  offenses  charged  remains  unaffected:  Ex  parte  Bradkiy,  48  Ind.  533. 
Where  there  were  two  counts  in  an  indictment  for  distinct  offenses,  the  legal 
effect  of  a  verdict  of  guilty  upon  the  second  count  only  is  to  put  the  first 
count  as  completely  out  of  the  indictment  and  case  as  though  such  count  had 
never  been  found  by  the  grand  Jury:  Lagg  v.  PeopU^  8  IlL  App.  103.  The 
principal  case  was  cited  to  the  foregoing  points  in  tlie  above  eases,  except 
those  from  the  American  Decisions. 

Thb  pbzkoipal  OAsn  was  obitioisbd  in  AiBmeon  v.  BUOe^  20  Tex.  63^  in 
what  it  said  of  express  malice  being  the  test  whether  or  not  the  offense  was 
murder  in  the  first  degree  Any  such  distinction  was  wholly  unnecessary, 
for  the  question  was  wheUier  or  not  there  could  be  an  accessary  before  the 
fact  in  murder  of  the  second  degree,  and  it  was  held  that  as  malice  was  a 
necessary  ingredient  in  mnrder  of  both  degreesi  there  might  and  ooold  ba 
before  the  fact  in  mnrder  of  the  aeeond  degree. 


OASES 


SUPREME  COURT 


OF 

YBBHONI. 


Buck  v,  Albbb. 

Oomnucf  OamnormD  with  and  GBownra  ImaauATSLT  €ict  ov  IuiMai 
Aor  will  not  be  enforoed  by  a  oonrt  of  justice;  bat  if  it  be  imeomwioted 
with  the  illegal  aot»  and  fonnded  on  a  new  ooiisideratioii»  it  maj  be  en- 
foroed* 

OOVTRAOT  ZS  80  OONirSOnBD  WISH  iT.f.lOilf.   AOT  THAT   BlOOTKET  OAK  HOff 

m  Had  thkbbov,  whenever  it  ii  neoeMary  for  the  plaintiff  to  prove  aoeh 
eontraet  in  order  to  reoorer;  bat  if  the  rifl^t  oan  be  eilabliahed  withoot 
saoh  proo^  the  plaintiff  may  recover. 

AssuMPBiT.    The  opinion  stated  the  facts. 

,  for  the  defendant. 
H.  E.  Beardsley,  for  the  plaintiff. 

By  Oonrt,  Isham,  J.  The  fact  is  found  in  this  ease  that  one 
Michael  Eirk  was  the  owner  of  a  qnantitj  of  spiritaoiu  liquor, 
and  that  on  the  second  day  of  Febmaiy,  1860,  he  transferred 
the  same  to  the  defendant  to  be  sold.  Its  avails  were  to  be 
applied  to  pay  the  debt  dne  from  Mr.  Eirk  to  Mr.  Albee,  then 
the  claim  due  Messrs.  Barlow  &  Eeyes,  and  the  surplus  was  to 
be  held  subject  to  the  order  of  Mr.  Eirk. 

The  contract  under  which  the  plaintiff  claims  the  money  for 
which  this  suit  is  brought  was  made  the  next  day  after  the 
transfer  of  the  liquor  to  the  defendant,  and  while  it  was  in  his 
hands.  The  plaintiff  and  defendant,  Mr.  Eirk  and  Mr.  Barlow, 
were  present,  and  parties  to  that  arrangement;  in  which  it  was 
agreed  that  the  defendant  should  proceed  and  sell  the  liquor, 
and  apply  the  avails  in  payment  of  the  debts  before  mentioned, 


Jan.  1864]  Buck  v.  Albxi.  665 

and  the  balanoe  wem  to  be  paid  to  the  plaintifF  on  the  claim  for 
which  he  \ra8  liable  as  surety  for  Mr.  Eirk.  This  axrangement 
gave  the  plaintiff  an  interest  in  the  liquor  before  its  sale,  as 
mnch  so  as  that  of  the  other  parties  to  that  contract.  The 
liqnor  was  afterwards  sold  under  that  arrangement  and  the 
money  was  received  by  the  defendant.  The  question  arises, 
whether  this  was  a  contract  of  that  illegal  character  which  will 
prevent  the  plaintiff  from  recovering  the  money  received  by  the 
defendant  on  that  sale. 

The  sale  of  the  liquor  by  the  defendant  was  made  without 
license;  and  by  the  act  of  1816,  which  was  in  force  at  that  time, 
the  sale  was  obviously  illegal  and 'void.  If  a  suit  had  been 
brought  against  the  purchaser  of  the  liquor  for  the  price,  it 
could  not  have  been  sustained;  for  the  law  will  not  lend  its  aid 
to  enforce  such  a  contract,  but  will  leave  the  parties  in  the  situ- 
ation in  which  they  have  placed  themselves.  In  2  Kent's  Com. 
688,  the  rule  is  given,  *^  that  if  the  contract  grows  immediately 
out  of  or  is  connected  with  an  illegal  act,  a  court  of  justice  will 
not  enforce  it;  but  if  it  be  unconnected  with  the  illegal  act, 
and  founded  on  a  new  consideration,  it  may  be  enforced/'  In 
the  application  of  this  rule,  it  may  be  observed  that  in  all  cases 
where  it  is  necessary  to  prove  that  illegal  contract  and  sale,  to 
enable  the  plaintiff  to  recover,  then  the  contract  is  so  connected 
with  the  illegal  act  that  a  recovery  can  not  be  had.  But  if  the 
right  can  be  established  without  such  proof,  the  plaintiff  may 
recover;  for  the  claim  is  unconnected  with  the  sale,  and  rests  on 
a  new  consideration.  In  Story  on  Oontracts,  146,  it  is  said  that 
"  if  an  act,  in  violation  of  either  statute  or  common  law,  be  already 
committed,  and  a  subsequent  agreement  be  entered  into,  which, 
though  founded  thereupon,  constituted  no  part  of  the  original 
inducement,  or  consideration  therefor,  such  an  agreement  is 
valid."  If  the  money  arising  from  the  sale  of  this  liquor  had 
been  received  by  the  defendant,  and  the  plaintiff  had  afterwards 
obtained  an  order  for  the  payment  of  the  same  to  him,  and  the 
defendant  had  agreed  to  pay  it,  the  action  could  be  sustained, 
as  the  plaintiff  in  no  sense  would  be  a  party  to  the  illegal  con- 
tract of  sale.  The  knowledge  that  the  money  in  the  defendant's 
hands  arose  from  an  illegal  transaction  would  make  no  difference; 
for  in  such  case  it  would  be  sufficient  to  prove  the  money  in 
his  hands  and  the  agreement  to  pay  the  same  to  the  plaintiff, 
without  showing  the  contract  or  arrangement  under  which  the 
defendant  received  it.  It  is  said  in  Story  on  Oontracts,  146, 147, 
that "  this  rule,  and  the  distinction  which  is  made,  will  be  found 


666  Buck  v.  Albes.  [VennaQ^ 


to  form  the  prinoiple  which  lies  at  the  root  of  many  apparent 
contradictory  cases,  and  to  offer  the  best  solution  to  the  Tarious 
and  opposing  decisions:''  Armgtrong  v.  Jbler,  11  Wheat.  258. 

It  is  expressly  stated  in  the  case  that  before  the  liquor  was 
sold,  and  while  it  was  in  the  defendant's  hands,  the  plaintiff  and 
the  other  parties  in  interest  agreed  that  the  defendant  should 
proceed  and  sell  the  liquor.  When  the  defendant  was  selling 
it  he  was  not  only  acting  for  his  own  interest,  but  for  the  plaint- 
iff and  the  other  party  also.  The  plaintiff  as  much  directed  the 
sale  as  the  others,  who  were  equally  interested  with  him,  and 
was  as  directly  concerned  in  the  violation  of  the  statute  as  was 
the  defendant  himself.  To  sustain  this  action,  it  will  be  neces- 
sary for  the  plaintiff  to  proTe  the  contract  under  which  the 
liquor  came  into  the  defendant's  hands,  the  mutual  arrange- 
ment for  the  sale  of  it,  the  illegal  sale  itself,  and  the  re- 
ceipt of  the  money  by  the  defendant.  It  is  .through  that 
contract  and  sale  that  the  plaintiff  derives  his  title.  If  the 
plaintiff  is  allowed  to  recover,  it  is  not  upon  a  mere  receipt  of 
the  money  by  the  defendant  and  a  subsequent  agreement  to  pay 
the  same  to  the  plaintiff,  for  no  such  subsequent  agreement 
has  been  made;  but  it  must  rest  upon  a  direct  adjudication 
of  the  court  sustaining  that  illegal  contract  and  sale.  The 
court  can  no  more  enforce  that  contract,  or  see  to  the  distribu- 
tion of  the  proceeds  of  that  sale  between  these  parties,  than  they 
can  enforce  any  ill^fal  contract,  or  see  to  the  distribution  of 
money  between  parties  which  has  arisen  from  any  other  illegal 
adventure.  The  remarks  of  Justice  Baldwin,  in  the  case  of 
Balte  V.  Coleman^  4  Pet.  184,  are  appropriate  and  emphatic:  "  If 
either  has  sustained  a  loss  by  the  bad  faith  of  the  pariioqM 
criminis,  it  is  but  a  just  infliction  for  premeditated  fraud.  He 
must  not  expect  that  a  judicial  tribunal  will  exert  its  powers  to 
shift  the  loss  from  one  to  another,  or  to  equalize  the  benefits  or 
burdens  which  may  have  resulted  from  the  violation  of  every 
principle  of  morals  and  of  law." 

The  charge  of  the  court,  therefore,  we  think,  was  incorrect  in 
saying  that  "  if  the  defendant  agreed  with  the  plaintiff  and  Mr. 
Eirk  to  sell  the  liquor,  and  pay  the  balance  to  the  plaintiff,  af tei 
paying  his  own  claims  and  the  debt  due  to  Barlow  &  Eeyes, 
the  plaintiff  would  be  entitled  to  recover,  although  the  defend- 
ant sold  the  liquor  in  violation  of  law,  and  without  a  license, 
and  although  it  was  expected  by  the  plaintiff  and  Mr.  Eirk 
that  he  would  so  sell  the  same  when  they  entered  into  the  agree- 
ment with  him."    This  charge  will  enable  the  plaintiff  to  re- 


Feb.  1864.]  Ktmbat«t«  v.  Rutland  etc.  R  R  Oa  567 

cover,  and  reap  the  benefit  of  a  sale  made  by  hia  procnrement 
and  directions,  and  in  direct  violation  of  the  statate.    The  law 
will  suBtain  no  such  action. 
The  judgment  must  be  reyersed,  and  the  case  remanded. 


This  Cass  again  Cams  bkfobi  thb  Supkxmb  Coitrt,  and  is  reported  in  27 
Vt.  190.  In  that  ease  it  appeared  that  the  defendant  was  lioensed  to  sell 
liqnor  for  medicinal,  chemical,  and  mechanical  purposes,  and  on  this  showings 
It  was  decided  that  the  liquor  was  properly  plaoed  in  his  hands  for  sale  for 
those  objects;  and  as  the  jury  found  by  their  verdict  that  there  was  no  agree- 
ment or  understanding  between  the  defendant  and  the  other  parties  in  In- 
terest  that  the  liquor  was  to  be  sold  by  the  defendant  for  other  purpoass 
than  those  for  which  he  was  licensed,  it  was  held  that  the  plaintiff  oould  re- 
cover from  the  defendant  his  portion  of  the  availB  of  the  sale  by  the  defend- 
ant. In  rendering  the  dedaion,  the  court  said:  '*  The  oohrt,  in  this  case,  an 
not  called  upon  to  enforce  an  illegal  contract,  or  to  see  to  the  distribution  of 
the  proceeds  of  an  illegal  sale  to  which  the  plaintiff  was  in  any  respect  a 
party.  In  this  respect  the  case  differs  from  the  one  as  reported  in  26  Y%, 
184." 

Illioal  CJontbaois,  NorENroBOBD  BT  OouBXB,  WHBf :  See  Hunt  y.  Turner^ 
60  Am.  Dea  167,  note  172;  Penom  v.  Janet,  68  Id.  476,  note  481;  Wood' 
fnan  ▼.  Hubbard,  67  Id.  310,  note  319;  Jame$  y.  Fidcrod,  65  Id.  743,  note  765| 
Dial  V.  Hair,  64  Id.  179;  Comstoek  v.  Draper,  63  Id.  78;  Ohio  L.  L  A  T.  Co. 
y.  Merchanit?  /.  A  T.  Co,,  Id.  742,  note  770,  where  other  cases  are  ooUeoted. 
The  principal  case  Ib  cited  in  Central  B.  U.  P,  R.  B.  Go,  y.  WetUm  U.  T.  Cb., 
I  McCrary ,  665,  to  the  point  that  parties  to  a  contract  which  is  against  publio 
policy  or  eofUra  bonos  mores,  being  in  pari  deUdo,  haye  no  standing  in  court 
for  legal  or  equitable  reliel 


KlMBATJi  V.   RXTTLAND    EXa   R  R   Go. 

[96  yoMoar.  M7.] 

Railway  Compamt  Undkktakino  to  Cabby  Liys-avoox  for  suoh  penoos 
as  choose  to  employ  it  assumes  the  relation  of  a  common  carrier,  with  tiie 
duties  and  obligations  growing  out  of  that  relation,  whether  the  trans- 
portation of  cattle  be  its  principal  employment  or  merely  incidental  and 
subordinate. 

OOMMOK   CaBBISB  MAY  BY  EZFBISS  GONTBAOT  80  VaBY  Ain>  ChANOB  mS 

Rblation  to  the  owner  of  the  property  carried  as  to  beoome  a  private 
carrier,  and  in  that  event  his  liability  for  loss  or  damage  is  measured  by 
the  specific  provisions  of  his  contract. 

Common  Cabbibb  can  not  by  Gbnbbal  KoncB  Limit  hib  Liabiuty,  al- 
though the  existence  and  oontents  of  the  notioe  are  brought  home  to  the 
party  dealing  with  him. 

Whibb  Railway  Compaky,  iob  Omar  Hibb,  Opibbs  to  Assumb  Rb- 
flPOiiBiBiLiTY  OF  CoMMON  Cabbibb,  and  for  a  less  hire  offers  to  furnish 
the  neoesaary  means  of  transportation  to  the  owner,  who  may  thereby 
beoome  his  own  carrier,  the  owner  who  chooses  to  pay  the  lower  rate  la 
bound  by  his  election,  and  can  not  hold  the  company  liable  as  a  o^  vtnam 


S68  EnfBALL  V.  RuTLAMD  XTC.  R  R  Oo.    [YermoDl^ 

flwrlir.  Whether  in  eooh  a  oue  there  ezieto  a  ipedal  agreemMift  he* 
iween  the  pertiei,  by  whioh  the  company'a  liaUlity  ie  limited,  is  a  qoee^ 
tion  of  law,  to  be  determined  by  the  ooart. 
f»A»»fwft  Who  has  bt  Spsoial  Goutbaot  Liiutbd  his  Lzabouet  io  as  to 
become  a  priTate  oairier,  can  not  be  declared  against  as  a  oommon  csrrier. 
He  can  only  be  held  liable  on  his  contraetb 

Oabb  against  the  defendants  as  common  oairien.  The  ftusta 
aie  stated  in  the  opinion. 

Parker  and  NvoholBon^  for  the  plaintifll 

E.  N,  Briggs^  for  the  defendants. 

By  Ck>urt,  Isham,  J.  The  declaration  in  this  case  is  in  the 
usual  form  against  common  carriers;  in  which  it  is  aTsrred  that 
the  defendants  received  of  the  plaintiff  several  head  of  cattle,  to 
be  safely  conveyed  by  railway  from  Brandon,  in  this  state,  to 
Cambridge,  in  the  state  of  Massachusetts.  The  question  arises, 
whether,  upon  the  facts  stated  in  the  exceptions,  the  declaration 
is  sustained  by  proof  that  the  cattle  were  transported  by  the 
defendants  as  common  carriers,  or  whether  a  special  contract 
was  made  creatiiig  other  liabilities  than  those  upon  which  the 
plaintiff  has  declared. 

From  the  ticket  which  was  delivered  to  the  plaintiff,  as  well 
as  from  the  published  tariff  of  freight,  which  is  made  part  of 
the  case,  we  perceive  that  this  railroad  company  have  adopted 
two  different  methods,  with  different  rates  of  compensation,  for 
the  transportation  of  live-stock  over  this  road.  In  the  first 
place,  they  have  assumed  the  duties  and  responsibilities  of  com- 
mon carriers;  for  they  distinctly  say  that  on  the  payment  of 
twenty-five  per  cent  advance  upon  tariff  rates  they  will  safely 
transport  and  deliver  properly  of  this  character  at  its  place  of 
destination,  or  the  station  where  way-billed.  In  the  next  place, 
if  the  owner  wishes  the  transportation  effected  at  a  less  re- 
muneration, they  as  distinctly  state  that  on  the  payment  of 
tariff  rates  they  will  furnish  for  that  purpose  the  use  of  theii 
road,  provide  suitable  cars,  and  sufficient  motive  power,  so  that 
the  stock  may  be  transported  at  the  owner's  risk,  and  on  his 
own  responsibiliiiy.  In  short,  for  a  given  reward  they  proffer 
to  become  his  carrier;  for  a  less  reward  they  proffer  to  furnish 
the  necessary  means  that  the  owner  may  be  his  own  carrier. 
Thus  in  each  case  the  defendants  have  graduated  their  rate  of 
compensation  to  the  degree  of  risk  they  have  assumed;  and 
either  mode  of  transportation  may  be  adopted  at  the  option  of 
the  owner  of  the  stock. 


Feb.  1854.]  Ktmratj,  v.  Rutland  etc.  R  IL  Go.  669 

If  the  owner  requeafasi  his  catUe  to  be  transported  by  ibe  de-' 
fendants  as  common  carriers,  be  bas  only  to  pay  a  reasonable 
compensation  for  that  purpose,  and  refose  to  enter  into  any 
special  contract  for  their  carriage  on  any  other  terms.  In  thai 
event  they  are  responsible  for  their  safe  carriage  and  deliyety. 
It  was  BO  held  by  Parke,  B.,  in  Carr  y.  Lancashire  Bailway 
Company,  14  Eng.  L.  &  Eq.  840.  It  is  immaterial  whether 
transportation  of  cattle  is  regarded  as  their  principal  employ- 
ment, or  whether  it  is  incidental  and  subordinate;  the  fact  that 
they  hare  undertaken  such  transportation  for  hire,  and  for  sach 
persons  as  choose  to  employ  them,  establishes  their  relation  as 
common  carriers,  and  with  it  the  duties  and  obUgations  which 
grow  out  of  it.  These  general  principles  have  been  frequently 
applied  to  railroad  corporations  in  England  and  in  this  country, 
and  they  have  clearly  the  right  to  exercise  that  corporate  franchise 
where  they  have  power  under  their  charter  to  transport  both 
'* persons  and  property:''  Charter  Act,  1843,  sec.  1;  1  Smith's 
Lead.  Gas.  260,  268;  Angell  on  Carriers,  sees.  78,  109;  Waif, 
on  Railways,  809,  and  note  g;  Palmer  y.  Orand  Junction  B.  B. 
Co.,  4  Mee.  &  W.  749. 

We  are  satisfied  that  the  defendants  would  be  liable  as  com- 
mon carriers,  and  that  this  case  should  have  been  submitted  to 
the  jury  on  this  declaration,  unless  a  different  relation  exists, 
and  different  liabiUties  have  been  incurred,  by  some  express 
contract  or  agreement  made  between  these  parties. 

The  right  of  these  defendants,  as  common  carriers,  to  make  an 
express  agreement,  and  thereby  change  their  relation,  and  sub- 
ject themselTes  to  different  liabilities,  is  clearly  sustained  by 
authorities,  both  English  and  American.  It  is  unnecessary  to 
refer  to  all  the  cases  in  England  in  which  this  subject  has  been 
considered;  it  is  sufficient  to  notice  the  late  case  of  Carr  v.  Lan- 
cathire  BafUway  Company,  14  Eng.  L.  &  Eq.  840,  where  the 
various  cases  are  considered,  and  in  which  Baron  Parke  o1>> 
served  that  "  before  railways  were  in  use,  the  articles  conveyed 
were  of  a  different  description  from  what  they  are  now.  Sheep 
and  other  live  animals  are  now  carried  upon  railways.  Con- 
tracts, therefore,  are  now  made  with  reference  to  the  new  state 
of  things,  and  it  is  very  reasonable  that  carriers  should  be 
allowed  to  make  agreements  for  the  purpose  of  protecting  them- 
selves against  the  new  risks  to  which  they  are  in  modem  times 
exposed.  The  rapid  motion  and  noise  of  the  engine,  with  various 
other  matters,  are  apt  to  alarm  them,  and  cause  them  to  do  in- 
jorifis  to  themselves.    It  is  reasonable,  therefore,  that  carrien 


670  Kimball  i\  Bittland  Era  R  R  Go.    [Vermont, 

should  protect  themselTea  against  loss  by  making  special  con- 
tracts." The  authorities  in  this  country  are  quite  uniform  in 
adopting  the  same  view  of  the  subject.  In  the  case  of  New  Jer» 
Bey  Steam  Navigaiion  Co.  y.  Merchants*  Bank,  6  How.  344,  the 
court  remarked  that  *'  a  question  has  been  made  whether  it  is 
competent  for  the  carrier  to  restrict  his  obligation  OTcn  by  a 
special  agreement;  but  we  are  unable  to  peroeive  any  well- 
founded  objection  to  the  restriction,  or  any  stronger  reasons 
forbidding  it  than  exist  in  the  case  of  any  insurer  of  goods.  But 
it  by  no  means  follows  that  he  can  do  so  by  any  act  of  his  own. 
He  has  public  duties  to  perform,  from  which  he  should  not  be 
permitted  to  exonerate  himself  without  the  assent  of  the  parties 
concerned.  This  is  not  to  be  implied  or  inferred  from  a  general 
notice  to  the  public  limiting  his  obligation."  In  the  cases  of 
Eollister  v.  Nowlen,  19  Wend.  240  [32  Am.  Dec.  455];  CideY. 
Goodwin,  Id.  272  [32  Am.  Dec.  470];  and  €fould  v.  EtU,  2  Hill 
(N.  Y),  623,  it  was  held  in  New  York  that  a  carrier  could  not 
limit  his  liability,  either  by  notice,  though  brought  to  the  knowl- 
edge of  the  parfy,  or  by  a  special  agreement;  and  this  doctrine 
is  also  sustained  by  Messrs.  Hare  and  Wallace  in  Uieir  notes 
to  the  case  of  Coggs  ▼.  Bernard,  1  Smith's  Lead.  Cas.  280.  But 
since  the  decision  in  New  Jersey  Steam  NavigaHon  Co.  t.  Jfer- 
chaids*  Bank,  6  How.  344,  the  courts  in  that  state,  in  the  case  of 
Parsons  t.  Montieth,  13  Barb.  368,  and  Moore  y.  jEhxms,  14  Id. 
624,  have  receded  from  the  doctrine  of  those  former  cases,  so 
far  as  it  respects  the  competency  of  a  carrier  to  make  a  special 
agreement,  and  have  adopted  the  views  of  the  United  States 
supreme  court  as  expressed  in  6  Howard.  The  rule  is  re- 
garded, therefore,  not  only  sound  in  principle,  but  sustained 
by  authority,  that  a  common  carrier  may,  by  an  express  contract 
or  agreement  with  the  owner,  so  vary  and  change  his  relation 
as  to  become  a  private  carrier.  In  that  event  his  liability  in  the 
transportation  of  that  properly  is  measured  by  the  speoifio  pro- 
visions of  his  contract;  but  a  general  notice  to  the  public,  limit* 
ing  his  obligation  as  such  carrier,  will  afford  no  evidence  of  such 
contract,  either  express  or  implied,  though  the  existence  and 
contents  of  that  notice  are  brought  home  to  the  actual  knowl- 
edge of  the  party.  The  implication  is  as  strong  that  the  owner 
intended  to  insist  upon  his  rights  and  the  duties  of  the  oanier 
as  it  is  that  he  assented  to  their  qualification. 

Was  such  an  express  contract,  or  agreement,  made  in  this  case 
in  relation  to  the  transportation  of  these  cattle?  It  is  necessary 
to  determine  this  question,  for  it  is  purely  one  of  law.    It  was 


Feb.  1854.]  Ktmbatj.  v.  Rutland  etc.  R  R  Oa  071 

80  treated  hj  the  county  court  when  they  ruled  that  '*  if  the 
jury  found  all  the  facts  to  be  true  which  the  evidence  tended  to 
prove,  their  verdict  should  be  for  the  defendants."  This  ques- 
tion was  held  to  be  one  of  law  merely  in  the  late  case  in  the 
English  courts  of  York,  NetocasUe  &  Berwick  Bailvoay  Go.  v. 
Crisp,  23  L.  J.  125,  Law  Register  for  August,  1854.  In  that 
case  the  question  arose  wheUier  the  defendants  were  common 
carriers,  or  whether  the  cattle  were  received  under  a  special  con- 
tract, on  the  terms  contained  in  a  ticket  which  was  delivered  to 
the  owner  of  the  cattle.  The  matter  was  submitted  to  the  jury. 
Exceptions  being  taken,  the  court  of  common  bench  observed 
that  **  the  judge  who  tried  the  case  was  guilty  of  a  misdirection 
in  leaving  it  to  the  jury  to  say  whether  the  defendants  were 
common  carriers  of  cattle  for  hire,  or  whether  they  were  re- 
ceived under  a  special  contract;  and  that  he  ought  to  have  told 
the  jury  that  there  was  either  a  special  contract  or  no  contract 
at  all."  There  was  no  error,  therefore,  in  this  case,  in  the  dis- 
position of  that  question  by  the  court,  as  a  matter  of  law.  We 
are  satisfied,  also,  that  the  court  were  correct  in  ruling  that  an 
express  contract  was  made  by  the  parties  for  the  transportation 
of  these  cattle. 

Whether  the  defendants  woidd  have  been  liable  as  common 
carriers  if  they  had  refused  to  transport  these  cattle  except  on 
the  terms  of  an  agreement  exonerating  them  from  all  liability, 
or  restricting  their  common-law  responsibility,  we  are  not  called 
upon  definitely  to  decide.  It  can  not  be  said  in  truth  that  a  vol- 
untary contract  was  made,  where  the  terms  are  imposed  by  one 
and  the  other  has  no  power  to  repel  them.  In  Noyes'  Maxims, 
chapter  43,  page  110,  it  is  said  that  '*  if  a  carrier  refuse  to  cany 
unless  a  promise  were  made  to  him  that  he  shall  not  be  charged, 
with  any  such  misdemeanor,  that  promise  is  void;"  and  tiiis 
doctrine  is  approved  of  by  Chief  Justice  Best  in  Newborn-^,  Just, 
2  Car.  &  P.  76,  and  in  the  notes  of  Messrs.  Hare  and  Wallace, 
1  Smith's  Lead  Oas.  279.  These  defendants,  however,  did  not 
refuse,  on  the  payment  of  tweniy-five  per  cent  advance  on  tariff 
rates,  to  receive  and  transport  these  cattle  as  common  carriers, 
and  at  their  risk;  and  that  reward  must  be  considered  as  reason- 
able, as  no  suggestions  are  made  to  the  contrary.  It  is  for  the 
benefit  and  advantage  of  owners  of  live-stock  that  a  special 
agreement  may  be  made  that  on  the  payment  of  a  less  sum 
they  may  become  their  own  carriers,  and  have  furnished  for 
ihem  the  necessary  means  for  that  purpose. 

When  this  plaintiff,  therefore,  chose  not  to  pay  the  required 


572  Kimball  v.  Rutland  etc.  R.  R  Co.    [Vermont^ 

oompenaation  to  have  his  cattle  transported  by  the  defendants 
as  common  carriers  and  at  their  risk,  bnt  elected  to  pay  the 
lower  rate,  it  is  reasonable  that  he  should  be  bound  by  his  own 
election.  In  addition  to  this,  the  plaintiff  states  that  he  made 
a  contract  for  the  use  of  a  car,  and  was  to  have  the  same  piiTi- 
leges  as  others  had,  agreeable  to  the  freight  tariff.  For  that 
privilege  only  did  he  make  application,  and  for  that  only  did  he 
pay.  It  would  be  unreasonable,  therefore,  that  the  plaintiff 
should  now  hold  the  defendants  responsible  as  common  carriers, 
and  charge  them  with  a  risk  and  responsibility  which  they  were 
not  requested  to  assume,  and  for  which  they  were  never  paid. 
We  think  the  matter  very  clear  that  a  special  contract  was  made 
in  respect  to  the  transportation  of  these  cattle;  under  which  the 
defendants,  in  the  exercise  of  reasonable  care,  were  to  furnish 
the  plaintiff  with  a  suitable  car  and  other  necessary  means  for 
transportation ;  and  the  plaintiff  was  to  assume  the  risk  and  gen- 
eral responsibility  of  their  transportation. 

The  remaining  question  arises  whether,  if  that  special  con- 
tract has  been  broken,  and  damages  thereby  sustained  in  the 
transportation  of  the  cattle,  a  recovery  can  be  had  in  this  case 
under  this  declaration.  In  actions  on  the  case  in  form  ex  ddicto^ 
where  the  obligation  of  the  defendant  consists  in  the  observance 
of  some  particular  duty,  the  declaration  must  state  the  nature 
of  that  duty;  and  where  the  duty  arises  from  some  particular 
relation  or  character  in  which  the  defendant  stands,  that  rela- 
tion or  character  should  be  stated;  and  if  in  either  of  these  par- 
ticulars the  duty  or  relation  as  stated  is  different  from  that 
which  is  proved,  the  variance  is  fatal:  IGh.  PI.  369.  The  defend- 
ants are  charged  in  the  declaration  as  common  carriers,  upon 
whom  the  law  casts  the  duty  of  safely  transporting,  and  deliver- 
ing the  property  at  its  place  of  destination,  unless  prevented  by 
the  act  of  Ood,  the  public  enemies,  or  the  fault  of  the  party 
complaining.  For  that  reason  the  liability  arising  from  the  re- 
lation of  common  carriers  can  not  be  changed  by  any  act  of 
their  own.  Under  the  express  contract  which  is  proved  in  this 
case  the  defendants  were  not  common  carriers,  but  were  pro  hoc 
vice  private  carriers  merely.  Their  obligations  and  duties  arose 
from  contract,  and  therefore  may  be  modified  by  contract.  In 
the  case  from  6  Howard,  Justice  Nelson  observed  that  "the 
owner,  by  entering  into  a  contract,  virtually  agrees  that  in  that 
particular  transaction  the  carrier  is  not  to  be  regarded  as  in  the 
exercise  of  his  public  employment,  but  as  a  private  person,  who 
incurs  no  responsibility  beyond  that  of  an  ordinary  bailee  for 


FeK  1854]  KnfRALL  v.  Rdtlahd  sia  R  R  Oa  67S 

hire,  and  answerable  only  for  miscondnct  or  negligenoe/'  The 
Bame  doctrine  is  sustained  in  fhe  case  of  Parsons  v.  Monteaih,  18 
Barb.  868;  Moore  v.  Evans,  14  Id.  624;  Angell  on  Carriers,  sees. 
46,  64,  69.  It  is  quite  obTious  in  this  case  that  the  duties  and 
relation  assumed  by  the  defendants  under  this  contract  are  dif- 
ferent, and  vaiy  from  that  with  which  they  are  charged  in  this 
declaration,  llie  terms  of  the  agreement  do  not  simply  affect 
the  damages  to  be  recoyered,  or  create  obligations  consistent 
with  the  relation  of  common  earners,  as  was  the  case  of  Clark  t, 
Oray,  6  East,  664,  but  they  extend  to  the  obligation  of  the  con- 
tract itself.  Their  relation  is  changed  from  that  of  common 
carriers  to  private  earners;  and  where  such  is  the  effect  of 
their  special  agreement,  they  are  not  liable  as  common  earners; 
neither  can  they  be  declared  against  as  such.  It  is  possible  that 
there  has  been  a  breach  of  that  express  contract;  and  the  plaint- 
iff is,  perhaps,  entitled  to  damages  for  the  injuries  he  has  sus- 
tained; but  the  action  should  have  been  brought  on  that  con- 
tract, or  for  a  breach  of  duty  arising  out  of  it,  and  not  on  the 
duiy  and  obligation  imposed  on  common  carriers.  ^This  matter 
has  been  directly  decided  in  the  cases  of  Shaw  y.  York  A  Midland 
BaUway  Go.,  66  Eng.  Com.  L.  847,  and  AuMn,  y.  Mamchesier 
etc.  BaUway  Co.,  6  Eng.  L.  &  Eq.  829.  In  the  last  case  Pat- 
terson, J.,  remarked  that  "  if  the  declaration  is  founded  upon 
the  liability  of  the  defendants  at  common  law,  it  is  disproyed, 
as  the  eyidence  shows  they  were  liable,  not  as  common  carriers, 
but  under  a  special  contract;"  and  for  that  reason  he  observed: 
''  I  am  of  opinion  that  there  is  a  variance,  and  that  the  rule 
must  be  discharged. '*  In  this  opinion  Coleridge,  Wightman, 
and  Earle,  JJ.,  agreed.  For  the  same  reason,  therefore,  we 
think  the  judgment  of  the  county  court  in  this  case  must  be 
affirmed. 

Comiov  CABBixa'B  Powxb  to  Luot  bib  Llabiutt  bt  Notiob:  Sea 
Farmenf  etc  Bank  v.  OhampUUn  T.  Co.,  66  Am.  Deo.  68,  note  84,  where  other 
caaee  are  ooUeoted;  Moset  y.  Botton  A  M.  B.  B.,  56  Id.  222,  note  233,  where 
other  oeaee  are  ooUected;  Camden  A  A.  B.  B.  Co.  ▼.  BakUu^f,  Id.  481,  note 
486,  where  other  oaaes  are  oolleoted.  The  prindpal  case  Is  cited  in  Bluma^' 
thai  ▼.  Braknerd,  38  Vt.  410,  and  in  Jvdion  v.  Wextem  B.  B,  Corp.,  6  Allen, 
492,  to  the  point  that  a  general  notice  to  the  public  by  a  common  carrier,  par- 
porting  to  limit  hia  obligationa,  afforda  no  evidence  of  a  apeoial  contract  to 
that  (^eot,  even  though  ite  exiatence  and  content!  be  brought  home  to  the 
enatomcr. 

POWKB  OF  Ck)MM0K  GaBBIXB  TO  LuOT  HIS   LlABIUTT  BT  SfBGIAL  CoXf- 

nucT:  See  Camden  de  A.  B.  R.  Co.v.  Baida^f,  66  Am.  Deo.  481,  note  484| 
Whituides  ▼.  ThurikUl,  51  Id.  128^  note  130;  Sager  v.  Portamauth  etc.  B.  B. 
Co.,  50  Id.  659,  note  666,  where  other  caaee  are  collected.    The  principal 


674  MoDANnELS  v.  Bobinson.  [Yennoni 

to  otted  in  Aprfrv  T.  ^Mo  Forib  Ccn^raZ  i?.  A  Co.,  98  Mam.  248,  to  the  p^ 
a  coDtract  between  the  ahipper  of  cattle  and  a  railroad  company,  by  which  it 
is  agreed  that  the  former,  for  a  reduced  rate  of  fare,  may  transport  the  cattle 
on  the  company's  can,  under  his  own  rapervision,  at  his  own  risk  as  to  any 
loss  or  injury  to  them  resulting  from  the  construction  of  the  cars  or  the 
manner  in  which  the  cattle  are  disposed  in  them,  is  a  valid  and  binding  con- 
tmct. 

Thi  pbinoifal  oasb  18  oiTBD  in  MeMUlan  Y.Niekigan 8.  A  N.  L  R.  A  Co,, 
16  Mich.  Ill,  to  the  point  that  the  owner  of  goods  can  insist  on  a  common  car> 
rier's  receiving  them  under  all  the  risks  and  responsibilities  which  the  law 
annexes  to  his  employment.  It  is  also  cited  in  Ohio  etc,  ffy  Co,  v.  Selbjft  47 
Ind.  485,  as  a  case  in  which  it  Ib  held  that  a  common  carrier  may  be  exempted 
from  liability  for  a  loss  occasioned  by  ordinazy  negligence;  and  in  BaUroad 
Oo,  ▼.  Loeiwoodt  17  WalL  867,  as  a  case  favc»ing  the  New  York  doctrine  cm 
this  point. 


MoDaniels  v.  Robinson. 

p6  YasicoiT,  818.] 
ESLATION  OV  GUIST  IS  CbE^TBD  BT  PBBa0N*8  PUTTDrO  HI8  HOBflB  AT  IhV, 

and  that  relation  is  extended  to  all  his  goods  left  at  the  inn  by  his  taking 
a  room  and  taking  some  of  his  meals  there,  and  lodging  there  a  part  of  the 
time. 

Whbbb  Pbbsok  Takes  Room  at  Ikn  and  leaves  his  eflfects  there,  and  makes 
the  inn  his  principal  abiding-place,  he  does  not  cease  to  be  a  guest  merely 
because  he  is  occasionally  absent  from  the  inn  and  somettmes  takes  his 
meals  elsewhere. 

Ajtkb  Quest  has  Givsn  up  his  Room  at  Ikv  and  closed  his  eonnectioa 
therewith,  the  landlord  b  only  liable  as  a  common  bailee  for  the  guests 
baggage  left  behind  at  the  inn.  ^ 

Pabtiss  beiko  Made  Wititesses  bt  Law  or  Vxemokt  abb  Wixnbssbs  ta 
every  point  material  to  the  detennination  of  the  case. 

Loss  OF  QooDs  While  at  Iss  is  Presumfttve  Eyidbnob  of  Nbouobncb 
on  the  part  of  the  innkeeper,  or  of  his  servants,  but  he  may,  if  he  can, 
repel  this  presumption  and  show  that  the  loss  did  not  happen  throng 
negligence,  but  was  occasioned  by  inevitable  casualty  or  superior  force. 

brKKEEPEB     OAK     NOT     BE     EXONEBATED    FBOM    LoSS    OF    OUEST'S    GoODi 

merely  upon  presumption,  nor  without  proof  of  ciroumstsnoes  ordinarily 
attending  the  breaking  of  a  house  securely  fastened.  He  is  bound  to 
prove  the  mode  in  which  the  goods  were  taken  from  him,  and  that  it  was 
without  any  fault  or  negligence  on  his  part. 
Dbuyebt  and  Aooeptanob  of  €k>oi>s  abb  Suffioibrt  Considebaxiob 
for  any  undertaking  in  regard  to  them. 

WhBBE  New  GoNTBAOT  is  Ck>NSI8TBNT  with  Ck>llTIirCANOB  OF  FOBMBB  QrBv 

and  only  provides  a  new  mode  of  discharging  such  former  one^  it  has  ■■ 
effect  unless  or  untU  it  is  performed. 

Absumpsit.    The  opinion  states  the  case. 

2>.  Kellogg  and  E,  EdgerUm^  for  the  plaintiff. 

0.  L.  Shqfter  and  D.  BoberUf  for  the  defendant. 


FeK  1854]  McDakhcls  v.  BoBimov.  57S 

By  Court,  BxDTnaj),  0.  J.  The  first  qnestion  ariaixig  in  this 
case  is  in  r^fard  to  the  plaintiff  being  a  gnest  of  defendant  at 
the  time  he  deposited  the  four  thousand  dollars  in  gold  with 
him  to  keep.  The  plaintiff's  testimony  tended  to  show  he  came 
to  Bennington  on  business,  on  the  twenty-sixth  of  Febmaxy, 
and  put  his  horse  into  defendant's  stable,  he  being  a  common 
innkeeper,  leading  his  wagon,  harness,  and  buflUo  skins  in 
defendant's  custody,  where  they  remained  without  interruption 
till  the  sixth  of  March,  the  money  being  lost  on  the  night  of  the 
fifth  of  March.  The  plaintiff  took  a  room,  became  a  guest  in 
the  strictest  sense,  and  continued  to  lodge  and  board  constantly 
at  defendant's  inn  till  Saturday,  the  first  day  of  March,  after 
break&st,  when  he  went  to  his  brother's,  in  the  Ticiniiy,  and 
remained  over  Sunday.  On  Monday  he  returned  to  the  inn  and 
dined  there,  occupying  the  same  room  as  before.  Monday 
night  he  took  tea,  lodged  with  his  brother,  and  took  breakfast 
the  next  morning.  The  plaintiff  then  returned  to  defendant's 
inn,  occupying  the  same  room  continuously,  night  and  day,  till 
Wednesday  eyening  about  half-past  five  o'dock.  In  the  course 
of  the  day,  Wednesday,  he  received  the  four  thousand  dollars 
in  gold,  being  two  hundred  double-eagles,  and  delivered  them 
to  the  defendant  in  a  shot-bag  in  plaintiff's  room.  Defendant 
said  at  the  time  of  receiving  the  money  he  did  not  like  to  be 
accountable  for  so  much  money.  Thereupon  plaintiff  took  it, 
wrapped  it  in  a  newspaper  and  handed  it  back  to  defendant, 
saying  there  was  no  danger,  and  requesting  him  at  the  time  to 
put  it  in  the  tick  of  the  straw-bed  in  which  he,  defendant,  slept, 
and  there  to  keep  it  through  the  night,  and  not  to  let  any  one 
know  it,  plaintiff  saying  he  was  going  to  his  brother's  and 
should  not  be  back  until  the  next  morning,  when  he  did,  in  fact, 
return,  and  remained  in  defendant's  inn  through  the  day,  taking 
dinner  and  tea.  Nothing  was  said  about  plaintiff  giving  up  the 
room,  which  the  plaintiff  continued  to  occupy  every  day,  more 
or  less,  during  the  whole  time,  except  Sunday,  and  had  fires 
built  by  defendant.  Just  before  plaintiff  left  defendant's  inn, 
on  the  evening  of  the  fifth  of  March,  and  after  he  had  delivered 
the  money  to  defendant,  and  told  him  to  keep  it,  he  called  de- 
fendant, and  told  him  his  house  was  more  exposed  to  fire  than 
that  of  Dr.  Swiff  s,  which  was  near.  **  He  wished  him  to  take 
the  money  over  to  Dr.  Swift  and  let  him  keep  it  through  the 
night,"  which  defendant  promised  to  do  "right  away,"  or 
"presently."  The  money  was  not  then  in  the  immediate  view 
of  the  parties,  but  in  an  adjoining  room,  some  ten  feet  distant, 


S76  McDakhcls  v.  Bobiksok.  [Yiermoiil^ 

where  defendant  had  placed  it.  About  nine  o'doek  in  the 
evening  defendant  took  the  money  to  Dr.  Swift's  honee,  but 
seeing  no  signs  of  the  doctor  being  up,  or  at  home,  and  siq^poe- 
ing  he  might  have  been  called  away,  carried  the  money  back  to 
his  own  house.  There  was  no  evidence  tending  to  show  thai 
defendant  or  plaintiff  expected  anything  was  to  be  paid  for 
keeping  the  money  or  canying  it  to  Dr.  Swift.  The  de- 
fendant's testimony  tended  to  show  that  plaintiff  staid  less  at 
defendant's  house  than  above  stated,  and  that  on  Sunday  he 
wrote  defendant  to  bring  his  clothes  and  papers  at  the  room 
the  next  morning  to  plaintiff's  brother,  which  defendant  did 
accordingly.  The  defendant  notified  the  plaintiff  early  on  the 
morning  of  the  sixth  of  the  loss  of  the  money,  and  that  it  had 
been  stolen,  and  gave  evidence  tending  to  show  that  it  was  lost 
by  a  burglarious  entry  of  the  house  from  without,  but  what  such 
evidence  was  is  not  stated.  There  were  a  number  of  boarders 
and  lodgers  in  the  defendant's  house  at  the  time.  Nothing  is 
stated  in  the  case  to  show  that  any  one  in  particular  knew  the 
time  or  the  manner  of  the  money  being  taken,  or  that  any  one 
heard  any  disturbance  about  the  house  during  the  night,  or  that 
any  marks  of  violence  were  found  upon  the  house.  This  is  a 
brief  statement  of  the  leading  &cts;  others  will  appear  more 
fully  in  the  course  of  the  opinion. 

1.  In  regard  to  the  question  how  fiir  the  plaintiff  can  be  re- 
garded as  a  guest  of  defendant,  at  the  time  the  money  was  put 
into  the  defendant's  hands,  and  up  to  the  time  of  the  loss,  the 
cases  are  not  very  clear.  The  case  of  York  v.  OrindsUme^  1  Salk. 
868,  has  been  understood  by  most  of  the  elementary  writers  as 
deciding,  by  a  divided  court,  that  one  by  leaving  his  horse  at 
an  bxn  becomes  a  guest.  And  such  is  virtually  this  decision, 
inasmuch  as  defendant's  lien  as  innkeeper  is  recognized,  in 
regard  to  a  horse  left  at  his  stable  by  a  traveler  who  did  not 
himself  put  up  at  the  inn.  And  such  lien  does  not  exist  as  to 
horses  put  at  the  stable  of  an  innkeeper,  even  by  those  who  are 
not  travelers  and  guests.  And  so  this  case  is  perhaps  justly 
regarded,  by  judges  and  elementary  writers,  as  settling  the  point 
that  one  becomes  a  guest,  as  to  all  the  property  which  the  inn- 
keeper consents  to  take  into  his  keeping,  by  leaving  his  horse, 
from  which  profit  is  derived,  although  the  same  relation  is  not 
created  by  leaving  a  dead  thing,  as  a  trunk,  from  which  no  profit 
arises,  as  is  intimated,  although  not  decided,  in  OeUey  v.  Clerk, 
Oro.  Jac.  188.  But  that  point  has  since  been  regarded  as  settled 
by  this  case,  although  the  case  was  adjourned  for  advisement. 


VeK  1864]  HcDanisls  v.  BoBimoN.  S77 

*'  being  a  new  case."  In  1  Smith'B  Lead.  Gas.  60»  in  the  note 
of  that  learned  and  accurate  writer  to  Ccdye^s  Cmc,  8  Oo.  32,  it  is 
said:  ''  If  a  traveler  leaves  his  horse  at  an  inn,  and  lodge  else- 
where, he  is,  for  the  purpose  of  this  rule,  to  be  deemed  a  guest." 
And  8  Bac.  Abr.,  tit.  Inns  and  Innkeepers,  o.  6,  p.  666,  takes 
the  same  view  of  the  law,  referring  to  this  and  other  cases.  And 
Mr.  Chitty,  in  his  treatise  upon  contracts,  p.  476,  says:  ''A 
person  may  be  a  guest,  though  he  merely  leave  a  horse  at  the 
inn,  and  himself  lodge  elsewhere."  And  I  can  not  find  that  the 
doctrine  of  this  case  of  York  v.  Orindekme,  supra,  to  the  extent 
above  laid  down,  has  ever  been  questioned  in  England.  It  is 
eqiially  well  settled,  too,  that  one  becomes  a  guest  by  going  to 
an  inn  for  mere  temporary  refreshment,  either  food  or  drink: 
Bennett  v.  Melhr,  5  T.  B.  273.  This  last  case  is  certainly  going 
the  full  length  of  the  most  temporary  stay,  and  must  still  be 
regarded  as  altogether  sound.  So  too,  the  length  of  time  one 
remains  at  the  inn  is  not  important,  if  he  remain  there  in  the 
transitoiy  character  of  a  guest:  3  Bac.  Abr.,  tdri  supra;  Chit. 
Cont.  476,  and  notes.  It  is  unquestionable  that  an  innkeeper 
may  receive  goods  as  a  common  bailee,  to  keep  with  or  without 
reward,  and  thus  stipulate  to  be  excused  from  the  increased 
responsibility  of  an  innkeeper,  or  he  may  consent  to  assume 
this  increased  responsibility  toward  one  who  is  not  strictly  a 
guest,  for  things  deposited  with  him:  WxUiama  v.  Cfesse,  3  Bing. 
N.  C.  849;  S.  C,  32  Eng.  Com.  L.  353.  In  other  words,  he  may 
increase  or  restrict  his  general  responsibility  by  special  contract, 
as  is  held  in  regard  to  common  carriers:  Farmers^  and  Mechanic^ 
Banhy,  Champlain  Transportaiion  Co.,  23  Yt.  186  [56  Am.  Dec. 
68].  But  a  mere  notice  to  guests  that  the  innkeeper  will  not  hold 
himself  responsible  for  goods,  unless  expressly  assented  to  by 
guests,  will  probably  not  have  this  eflfect,  except,  perhaps,  under 
special  circumstances,  as  in  regard  to  being  notified  of  extraor- 
dinary amounts  of  money,  and  other  valuable  goods,  so  that 
they  may  be  kept  with  proportionate  care,  as  is  held  in  regard 
to  carriers  in  the  last  case,  and  for  similar  reasons. 

The  same  rule  in  regard  to  what  is  necessary  to  create  the 
relation  of  guest  has  been  adopted  in  some  well-considered  cases 
in  this  country:  Mason  v.  Thompson,  9  Pick.  280  [20  Am.  Dec. 
471],  where  it  is  held  that  an  innkeeper  becomes  liable  for  the 
safe-keeping  and  return  of  a  chaise  and  hartBSS,  left  in  his  cus- 
tody by  a  traveler  who  put  his  horse  at  the  inn,  and  himself 
pot  up  with  a  friend.    And  to  the  extent  of  the  horse  and 

equipage,  certainly,  we  think,  it  must  be  regarded  as  fully  set- 
in.  l>Ba  Vol.  Lxn— st 


578  McDanisls  v.  Bobinson.  [Vefmont, 

tied  by  authority,  both  in  England  and  this  oonntry,  that  the 
innkeeper  is  liable  as  such  where  the  horse  of  a  ttayeler  is  put 
at  the  inn,  although  the  owner  or  traveler  himself  puts  up  at 
another  place:  Feet  y.  McOraw,  26  Wend.  653.  And  the  cases 
of  OHnneU  t.  Coot,  8  Hill  (N.  Y.),  485  [88  Am.  Dec.  663]; 
Thickstun  t.  Howard,  8  Blackf.  585;  Bu)kman  y.  Thomas,  16 
Ala.  666,  which  are  often  referred  to  as  denying  that  the  rela- 
tion of  guest  is  thereby  created,  so  as  to  impose  the  increased 
responsibility  of  innkeeper,  certainly  do  not  decide  that  point, 
since  it  was  not  iuYolyed  in  the  cases,  although  such  an  opinion 
is  there  intimated.  All  that  is  there  decided  is,  that  the  horse 
of  one  not  a  traveler  put  at  an  inn  created  only  the  ordinary 
liability  of  a  bailee,  for  compensation,  on  the  part  of  the  inn- 
keeper. And  this  is  altogether  consistent  with  the  cases  of 
Mason  y.  Thompson,  supra,  and  York  y.  Orindstone,  1  Salk.  888. 

It  is  observable  that  no  case  has  yet  arisen  where  a  traveler 
putting  his  horse  at  an  inn  has  left  other  goods  than  such  as 
pertain  to  the  horse  and  carriage.  But  upon  principle,  if  the 
relation  of  guest  is  thereby  created,  and  the  host  consents  to 
take  other  portions  of  the  traveler's  necessary  luggage,  like  his 
overcoat,  which  it  is  most  common  to  leave  with  the  horse,  but 
usually  within  the  inn,  or  even  one's  trunk  or  money,  if  put 
into  the  custody  of  the  proper  servant  or  agent  at  the  bar,  while 
the  innkeeper  retains  the  horse,  from  which  he  derives  profit,  it 
is  difficult  to  see  why  he  should  not  be  held  liable  to  the  full 
extent  as  innkeeper  for  all  that  he  thus  accepts.  And  many 
judges  thus  lay  down  the  rule,  which  seems  but  a  fair  corollary 
from  the  cases.  But  as  no  case  has  gone  that  length,  and  this 
case  does  not  now  seem  to  involve  that  naked  point,  we  do  not 
intend  here  to  decide  it. 

This  case,  on  the  evidence  put  in  by  the  plaintiff,  seems  to 
present,  in  the  first  instance,  the  relation  of  guest  in  the  strict- 
est sense.  And  we  do  not  think  it  necessary  to  continue  that 
relation  that  the  plaintiff  should  have  continued  his  dwelling, 
for  the  time  even,  within  the  inn.  The  relation  of  guest  was 
clearly  created  by  putting  the  horse  at  the  ixm,  and  it  was  un* 
deniably  extended  to  all  the  plaintiff's  goods  left  at  the  inn  by 
his  taking  a  room,  and  taking  some  of  his  meals  at  the  inn,  and 
lodging  there  a  portion  of  the  time.  This  matter  seems  to  be 
perfectly  settled  by  the  custom  in  the  cities.  It  is  there  con- 
sidered that  taking  a  room  is  the  decisive  act  to  create  the  re- 
lation. That  being  done,  the  guest  is  charged  as  such  for 
meals  and  lodging,  whether  he  take  them  at  the  inn  or  with 


Fek  1854]  MgDaniels  v.  Robinson.  579 

friendsy  as  any  one  may  know  who  has  had  experience  in  such 
matters.  And  this  seems  to  us  well  enough.  One  in  so  ex- 
tensive a  city  as  New  York  might  find  it  convenient  to  have  a 
room  for  his  parcels,  and  to  take  his  dinner  at  a  down-town 
hotel,  while  he  might  choose  to  have  his  lodging  and  most  of 
his  personal  apparel  and  baggage  at  an  up-town  house.  And 
it  would  certainly  be  unreasonable  if  one  chose  to  be  at  this  ex- 
pense that  he  should  not  have  the  same  security  for  his  goods 
left  at  the  one  hotel  as  the  other.  Or  if  one  took  lodgings  at  a 
hotel,  and  should  subsequently  find  it  more  comfortable  to 
lodge  with  a  friend,  and  for  any  reason  should  not  choose  at 
once  to  give  up  his  room,  and  break  up  his  connection  with  the 
hotel,  it  would  certainly  sound  very  strange  that  he  should  not 
have  the  same  security  for  his  goods  as  if  he  made  the  hotel  his 
constant  abiding-place  for  the  time.  He  would  certainly  be 
bound  ordinarily  to  pay  tiU  he  gave  up  his  room,  and  in  all  the 
books,  pay,  or  ihe  right  to  charge,  is  made  the  criterion  of  the 
inkeeper's  liability.  But  after  one  has  given  up  his  room,  and 
closed  his  connection  with  the  hotel,  then  indeed  it  is  generally 
understood,  and  no  doubt  correctly,  that  for  any  baggage  left 
at  the  inn  the  landlord  is  only  liable  as  a  common  bailee.  And 
it  was  toward  this  point  that  the  defendant's  testimony  was  ad- 
dressed, and  which,  if  made  out,  would  probably  have  been 
sufficient  to  excuse  the  defendant  as  to  his  increased  responsi- 
bility for  the  personal  goods  of  the  plaintiff;  certainly,  unless 
this  responsibility  can  be  predicatec^  merely  of  the  horse  remain* 
ing  at  the  inn,  which  has  not  yet  been  regarded  as  settled. 
This  is  not  the  view  taken  of  the  law  upon  this  point  by  the 
court  below,  and  in  that  there  was  error. 

In  the  view  we  here  take  of  the  case,  the  testimony  of  the 
plaintiff  to  his  purpose  of  returning  to  defendant's  house  on  the 
morning  of  the  sixth  was  important,  and  should  have  been  re- 
ceived. The  parties  being  made  witnesses,  as  the  law  now  stands, 
are  witnesses  to  every  point  material  to  the  determination  of  the 
ease.  And  the  plaintiff  saying  to  defendant,  when  he  left  the 
evening  before,  he  should  not  return  till  morning,  was  equiva- 
lent to  saying  he  should  then  return,  and  his  bona  fide  piurpose 
of  then  returning  seems  to  be  very  significant  upon  the  point  of 
the  continuance  of  the  relation  of  guest,  so  far  as  it  depended 
upon  the  intention  and  expectation  of  the  plaintiff. 

2.  In  regard  to  the  general  liability  of  an  innkeeper,  it  is  sur- 
prising that  the  law  should  still  be  so  indeterminate.  But  the 
eases  axe  fewer  and  less  decisive  upon  this  important  subject 


\ 


580  McDandeui  v.  Bobdibon.  {YeimaBi^ 

than  mighi  hate  been  expected.  Even  the  absurd  didum  in 
Newton  y.  IHgg,  1  Show.  269,  wheze  Eyzee,  J.,  says  **  they  [inn- 
keepers] may  detain  the  person  of  the  guest  who  eats/'  has  been 
constantly  quoted  to  establish  the  existence  of  such  a  right  in 
the  landlord,  and  without  much  examination  (although  the 
point  decided  in  the  case  is  whether  an  innkeeper  may  become 
a  bankrupt),  until  the  comparatively  recent  case  of  Sunbolf  y. 
Alford,  3  Mee.  &  W.  247,  where  Lord  Abinger  says: "  I  would  be 
sorry  to  have  it  thought  I  entertain  any  doubt  in  this  case,  or 
required  any  authority  to  support  tiie  judgment  I  propose  to 
give*' — that  no  such  right  to  detain  the  person  of  the  guest  can 
be  for  a  moment  tolerated  in  a  free  country.  So,  too,  we  find 
numerous  creditable  judges,  and  some  decisions,  carrying  the 
liability  of  an  innkeeper  to  the  full  extent  of  a  common  carrier, 
and  thus  making  him  an  insurer  against  all  losses  not  caused  by 
the  act  of  God  or  the  public  enemy.  But  such  is  clearly  not  the 
general  course  of  the  decisions  in  Westminister  hall,  and  that 
extreme  responsibility  was  expressly  repudiated  by  this  court: 
MerriU  y.  Claghorn,  23  Vt.  177. 

It  is  there  held  that  an  innkeeper  is  not  liable  for  loss  of  goods 
of  the  guest  by  fire  from  without,  the  probable  act  of  an  incen- 
diary, and  without  any  fault  or  negligence  on  his  part,  or  on  the 
part  of  any  inmate  of  the  house.  But  we  have  never  intimated 
that  we  were  prepared  to  put  the  liability  of  an  innkeeper  upon 
the  same  ground  as  that  of  other  bailees.  On  the  contrary,  we 
regard  it  as  well  settled  that  the  liability  of  an  innkeeper  is  more 
severe  than  that  of  any  other  bailee,  with  the  single  exception  of 
common  carriers.  In  Richmond  v.  Smiik^  8  Bam.  &  Cress.  9;  S. 
G. ,  16  Eng.  Com.  L.  144,  Lord  Tenterden  says,  in  regard  to  goods 
stolen  from  the  custody  of  an  innkeeper:  "  The  situation  of  an 
innkeeper  is  precisely  analogous  to  that  of  a  carrier.'*  This  may 
be  too  strongly  expressed,  if  applied  to  all  cases  of  goods  taken 
from  the  custody  of  an  innkeeper.  For  it  may  be  done  by  supe- 
rior force,  and  without  his  fault,  and  still  not  the  force  of  a  pub- 
lic enemy,  which  is  necessary  to  be  shown  to  excuse  a  carrier. 
But  in  regard  to  goods  stolen  from  the  custody  of  an  innkeeper, 
and  no  evidence  to  show  how  it  was  done,  or  by  whom,  the  liabil- 
ity is  the  same  as  that  of  the  carrier.  The  innkeeper  is  bound  to 
keep  his  house  safe  from  the  intrusion  of  thieves,  day  and  night, 
and  if  they  are  allowed  to  gain  access  to  the  house,  and  especially 
without  the  use  of  such  force  as  will  show  its  marks  upon  the  house, 
it  is  &irly  presumable  that  it  was  either  by  the  negligence  or  con* 
nivance  of  the  host,  and  such  is  the  judgment  of  the  law  thereoa. 


FeK  1854.]  McDaniels  u  BoBorsov.  681 

Perhftps  the  role  of  law  as  applicable  to  suoh  a  eaae  ia  better 
expressed  bj  Mr.  Jtistioe  Bailey,  in  this  same  oaose:  ''It  ap- 
pears to  me  that  an  innkeeper's  liability  very  closely  resembles 
that  of  a  carrier.  He  is  primflfade  liable  for  any  loss  not  occa- 
sioned by  the  act  of  Ood  or  the  the  king's  enemies/'  And  Mr. 
Justice  Story  lays  down  the  rule  in  regard  to  this  liability  as 
correctly  as  it  can  well  be  stated,  in  his  work  on  bailments,  sec- 
tion 472:  ''But  innkeepers  are  not  responsible  to  the  same 
extent  as  common  carriers.  The  loss  of  goods  while  at  an  inn 
will  be  presomptive  eyidence  of  negligence  on  the  part  of  the 
innkeeper  or  his  domestics.  Bat  he  may,  if  he  can,  repel  the 
presumption,  and  show  that  there  has  been  no  negligence  what- 
eyer ,  or  that  the  loss  has  been  occasioned  by  inevitable  casualty  or 
superior  force."  And  in  the  case  of  Dawmm  t.  Chamney^  6  Ad. 
&  El.,  N.  S.,  164;  48  Eng.  Com.  L.  164,  queen's  bench,  1843, 
Lord  Denman,  in  giving  judgment,  quotes  these  words  of  Mr. 
Justice  Story  with  approbation,  and  substantially  bases  the 
judgment  of  the  court  upon  tbem.  Pothier's  exposition  of  the 
civil-law  liability  of  this  class  of  bailees  is  much  the  same.  The 
Institutes  of  Justinian,  lib.  4,  tit.  6,  sec.  8,  thus  lay  down  the 
rule:  ''Item  exercitor  navis,  aut  cauponsB,  aut  staubli,  de 
damno,  aut  furto,  quod  in  navi,  in  caupona  aut  stabulo,  factum 
erit,  quasi  maleficio  teneri  videtur."  The  innkeeper,  it  seems, 
was  thus  made  liable  for  all  damage  or  theft,  the  same  as  if  it 
arose  from  his  positive  wrong.  If  it  happened,  it  was  in  law 
regarded  as  his  wrong,  qacai  ex  maJLeficio  teneri  videtur.  And 
the  perpetual  edict  of  the  prcetor,  which  has  formed  the  basis 
of  the  commentaries  of  most  of  the  civil-law  writers  upon  this 
subject,  is  little  more  than  an  amplification  of  the  text  of  the 
Institutes.  The  code  Napoleon,  book  8,  titie  2,  section  6, 1963, 
is  scarcely  more  than  a  translation  of  the  Institutes:  "  They  [inn- 
keepers] are  responsible  for  the  stealing  or  damage  of  the  prop- 
erty of  the  traveler,  whether  the  robbery  were  committed  or  the 
damage  were  caused  by  the  domestics  and  officers  of  the  estab- 
lishment, or  by  strangers  going  and  coming  within  the  inn."  Id. 
1964.  "  They  are  not  responsible  for  robberies  committed  with 
armed  force,  or  any  other  superior  force."  These  two  maxims 
seem  to  embody  the  substance  of  our  law  upon  the  subject  at 
the  present  time;  in  confirmation  of  which,  we  would  further 
refer  to  the  following  English  and  American  cases:  Clutey.  IVi^ 
gins,  14  Johns.  176  [7  Am.  Dec.  448].  In  this  case  a  wagon 
loaded  with  bags  of  grain  was  put  in  a  wagon-house,  which  was 
broken  open;  "  from  which,"  say  the  court,  "  it  is  to  be  inferred 


\ 


sen  McDaniels  t;.  Bobikbon.  [Yennonli 

that  the  baildiiig  was  doBe,  and  doors  fastened  in  such  a  man- 
ner as  to  promise  secority/'  Still  the  defendant  was  held  liable. 
The  innkeeper  is  liable  for  goods  stolen  from  any  part  of  his 
house,  unless  he  expressly  limit  his  responsibility,  and  this  is 
assented  to  by  the  guest:  Bichmond  t.  Smiih^  8  Bam.  &  Cress. 
9;  S.  C,  15  Eng.  Com.  L.  144.  He  is  responsible  for  money 
belonging  to  his  guests:  Kent  ▼.  Shuohardj  2  Bam.  &  Adol.  803; 
S.  C,  22  Eng.  Com.  L.  338.  And  he  is  responsible  for  the  acts 
of  every  one  within  his  house,  unless  introduced  by  the  guest, 
as  all  tiie  cases  agree:  Tawwn  y.  The  Havre  de  Orace  Bank,  6 
Ear.  k  J.  47  [14  Am.  Dec.  254]. 

It  may  be  important  to  consider  how  far  the  defendant  is  hers 
liable  for  a  burglarious  entry  of  his  house  from  without,  which 
the  case  says  he  claimed,  and  gave  testimony  tending  to  prove. 
The  detail  of  the  evidence  not  being  given,  it  is  impossible  to 
determine  whether  the  burglary  was  of  a  character,  if  proved, 
which  should  exonerate  the  defendant;  for  although  the  author- 
ities are  not  decisive,  or  although  coincident  upon  this  subject,  it 
must  be  obvious  to  all  that  an  ordinary  burglary,  such  as  might 
have  been  expected  to  happen  upon  proper  temptation,  should 
have  been  provided  against  by  the  host,  and  the  omission  to  do 
BO  is  itself  negligence.  And  the  recent  decisions  seem  rather  to 
incline  to  the  view  that  the  host  is  liable  for  all  losses  of  the  goods 
of  his  guest,  even  by  burglary  or  robbery,  unless  produced  ab- 
solutely by  superior  force,  the  via  major  of  the  schools.  Chan- 
cellor Kent,  in  Commentaries,  vol.  2,  pp.  759,  593,  William 
Kent's  edition,  seems  to  incline  to  this  view  as  the  fair  result  of 
Maam  V.  Thcmpaon,  9  Pick.  280  [20  Am.  Dec.  471],  and  Bichr 
mond  V.  Smithy  mipra.  Mr.  Justice  Story,  in  the  later  edition 
of  his  Bailments,  seems  to  incline  to  the  same  view,  page  309, 
second  edition.  And  ordinarily,  an  intrusion  into  a  house  by 
robbers  from  without,  or  burglars,  must  be  attended  with  force 
and  fracture,  and  more  or  less  noise  and  alarm,  no  doubt;  and 
in  this  peaceful  portion  of  the  country  to  have  happened  and 
leave  no  vestige  would  be  fairly  calculated  to  excite  suspicion 
against  the  host  of  negligence  at  least.  And  where  marks  of 
the  intrusion  are  found,  so  as  to  leave  no  doubt  of  the  mode  of 
the  loss,  it  must  still  be  a  question  how  far  the  house  was  prop- 
erly fastened.  And  following  the  general  rule  of  diligence,  on 
the  part  of  innl:eepers,  of  "uncommon  care,'*  as  laid  down  by 
Lord  Holt,  or  as  some  of  the  books  have  it,  '*  the  extremest 
care,"  it  would  certainly  be  incumbent  upon  them  so  to  fasten 
the  inn  itself,  where  their  guests  lodge,  tbat  it  would  not  be 


Feb.  1854]  MgDanhcls  v.  BoiiXNSON.  688 

liable  to  be  broken  by  common  force  or  art  But  I  can  oompire- 
bend  that  money  might  be  lost  by  a  burglarious  entfy,  under 
peculiar  circumstances,  without  affording  any  just  ground  of 
imputing  eyen  negligence  to  the  innkeeper;  and  in  such  a  case, 
notwithstanding  some  dicta  to  the  contrary,  I  should  myself 
incline  to  the  opinion  that  the  innkeeper  is  not,  upon  principle, 
holden.  But  I  do  not  think  a  jury  could  be  allowed  to  exon- 
erate an  innkeeper  from  the  loss  of  the  goods  of  his  guest  upon 
presumption  merely,  or  indeed  without  proof  of  some  of  the 
circumstances  ordinarily  attending  the  breaking  of  a  house  se- 
curely fastened.  It  is  the  distinctive  peculiarity  of  this  species 
of  bailment  that  the  host  is  prima  facie  holden  for  the  restitu- 
tion of  the  goods  of  his  guests.  And  to  make  this  rule  of  any 
practical  utility,  it  is  indispensable  to  hold  the  host  to  proof 
of  the  mode  in  which  the  goods  were  taken  from  him,  and  that 
it  was  without  any  faulfc  or  negligence  on  his  part. 

And  if  his  house  is  properly  secured,  and  the  goods  properly 
guarded,  as  such  an  amount  of  money  would  be  likely  to  be  by 
the  owner,  it  is  fairly  supposable  that  some  trace  of  its  departure 
may  ordinarily  be  found.  And  when  a  case  occurs  that  possibly 
or  probably  professional  robbers  may  have  succeeded  in  eloin- 
ing  money  or  other  goods  without  leaving  footprints,  it  is  better 
that  the  innkeeper  should  be  held  liable  until  he  can  prove  the 
mode  of  the  loss  than  that  so  beneficial  a  rule  of  law,  and  one 
so  indispensable  to  the  quiet  and  comfort  of  travelers,  should 
be  virtually  demolished. 

And  with  every  disposition  to  take  a  reasonably  favorable 
view  of  the  case  for  the  defendant,  it  seems  to  us  that  if  he  really 
held  the  money  as  innkeeper  at  the  time,  he  should  have  shown 
something  more  definite  as  to  the  mode  of  the  loss  than  anything 
detailed  in  the  bill  of  exceptions  to  excuse  himself  from  restoring 
it.  On  the  bill  of  exceptions  it  seems  to  be  the  common  case  of 
goods  left  at  an  inn  and  lost  by  theft  of  some  unknown  person, 
which  is  the  common  case  of  such  loss.  The  manner  of  the  loss 
should  be  stated,  if  known,  in  order  to  raise  the  proper  question 
of  law,  as  it  regards  this  portion  of  the  case,  the  law  reversing 
its  ordinary  presumption  of  innocence  in  this  case,  and  presum- 
ing the  liability  in  the  first  instance;  for  if  the  fact  of  loss  may 
be  left  to  a  jury,  together  with  the  ordinary  negative  evidence 
which  may  be  supposed  to  attend  such  a  case  as  a  si^ffioient 
ground  upon  which  to  excuse  the  innkeeper,  the  practical  benefit 
of  the  rule  of  his  presumptive  liability  is  at  once  abandoned.  A 
presumption  which  may  be  encountered  and  overcome  by  a  coun« 


184  MgDahuls  v.  Bobdtook.  [Yennfln^ 

tar-pnMwpticm,  wiihoat  pxoof ,i8  of  no  andl  in  ifai  pimotiiml  tfL 
plieation  to  tba  bosineaB  of  life.  It  thus  becomes  neither  ma 
absolute  nor  probable  presomption,  bat  a  mere  oonjeotoie,  good 
enough  till  some  coonter-conjeotnre  springs  up  which  is  not 
what  is  meant  in  law  by  a  "  presnmptiTe  liabilify."  It  may  more 
properly  be  likened  to  the  presumptive  bar  of  a  debt  from  lapse 
of  time,  or  the  legal  bar  of  the  statute  of  limitations,  both  of 
which  are  remoyed  by  a  new  promise,  or  the  payment  of  interest, 
or  part  of  the  debt;  but  it  can  not  be  left  to  a  jury  to  raise  such 
opposite  CTidenee  by  mere  conjecture  or  oounter-piesumption. 
So,  too,  in  the  case  of  an  innkeeper;  the  mere  foot  of  the  loss 
of  the  goods  without  any  connivance  or  consent  on  his  part,  and 
in  the  common  course  of  his  business,  with  his  doors  fastened 
in  the  ordinaiy  mode,  is  no  sufficient  ground  from  which  to  allow 
a  jury  to  find  no  negligence  on  his  purt;  for  the  law  has  attached 
an  opposite,  and  to  some  extent  an  artificial,  presumption  to  these 
same  facts,  i.  e.,  a  presumption  of  negligence.  And  although 
this  is  not  an  absolute  and  condusiYe  presumption,  like  some  in 
the  law,  it  is  nevertheless  one  of  those  presumptions  which,  to 
be  of  any  avail  practically,  must  be  allowed  to  stand  till  encoun* 
tered  by  some  tangible  and  reasonable  proof  to  the  contrary, 
either  positive  or  circumstantial.  Le  Blanc,  J.,  says,  in  Burgeu 
ClemerUs,  4  Mau.  &  Sel.  306:  '*  Negligence  will  be  imputed  to  him 
[the  innkeeper]  where  the  loss  is  not  to  be  ascribed  to  any  other 
known  cause."  This  seems  to  us  the  true  rule;  and  when  some 
other  cause  is  known  and  presented,  it  may  then  become  a  ques- 
tion whether  it  is  sufficient  in  law.  But  to  say  that  it  was  **  from 
a  burglarious  entry  from  without,"  and  that  proof  was  given 
tending  to  show  that,  is  not  sufficient,  inasmuch  as  the  majority 
of  such  burglaries  may  be  supposed  fairly  to  result  from  negli- 
gence on  the  part  of  the  innkeeper,  or  his  servants,  or  the  in- 
mates of  the  house;  and  in  such  case  the  innkeeper  is  liable. 

3.  In  regard  to  the  agreement  to  deliver  the  money  to  Dr. 
Swift,  it  may  be  viewed  in  two  lights:  1.  Was  the  promise  upon 
sufficient  consideration?  Of  this  we  entertain  no  doubt.  The 
delivery  and  acceptance  of  the  goods  are  a  sufficient  consideration 
for  any  undertaking  in  regard  to  them,  even  where  the  service 
is  merely  gratuitous,  as  was  held  in  Coggs  v.  Barnard^  Ld. 
Baym.  909;  1  Com.  406;  1  Salk,  26;  and  which  has  not  been  ques 
tioned  since;  and  the  goods  being,  at  the  time  of  the  undertaking, 
in  the  power  of  the  parties,  is  the  same  thing,  since  it  is  pre- 
sumable that  but  for  the  promise  the  guest  would  have  reclaimed 
his  goods;  he  was  therefore,  by  the  new  promise,  induced  to 


Feb.  1854]  McDanikls  v.  BoBHiBcni.  581 


foxego  an  advantage,  which  is  a  sofficient  oonaidfiration.  1. 
Was  this  promise  xeasonably  performed?  Did  the  defendant 
do  all  he  ooght  reasonably  to  have  been  expected  to  do  in  its 
performance  ?  If  so,  he  afterward  merely  retained  the  goods  as 
a  depositary,  without  pay,  and  wonld,  as  the  court  below 
charged,  be  liable  only  for  gross  neglect.  It  ought,  perhaps, 
in  such  a  case,  to  be  brought  to  the  mind  of  a  jury  the  question 
of  neglect  or  diligence  is  very  much  affected  by  the  quality  of 
the  business.  A  man  is  expected  to  use  care  and  diligence  pro- 
portioned to  the  importance  and  difficulty  of  the  business  in- 
trusted to  him;  and  from  the  great  value  of  so  large  a  sum  of 
money,  the  ferocily  of  men's  appetites  for  money,  and  the  con- 
sequent certainty  of  it  being  stolen  if  exposed,  one  who  should 
take  the  same  care  of  such  a  bag  of  gold  which  he  might  fairly 
be  expected  to  of  other  goods  might  still  be  guilty  of  gross 
neglect  as  to  this,  and  not  as  to  other  things  kept  with  the  same 
diligence.  If  the  defendant  failed  reasonably  to  perform  his 
contract  in  this  respect,  he  ought  probably  to  be  held  liable  for 
the  consequent  loss  to  the  plaintiff. 

4.  If  the  defendant  held  the  money  as  innkeeper,  and  made  this 
contract  upon  sufficient  consideration  to  deliver  to  Dr.  Swift, 
the  inquiry  will  arise,  what  effect  this  contract  will  have  upon 
his  former  obligation.  That  will  depend  upon  the  probable 
intent  of  the  parties,  which  may  ordinarily  be  gathered  from 
the  terms  of  the  contract  and  attending  circumstances.  If  the 
new  contract  was  intended  to  supersede  the  former  one,  and 
come  in  its  place,  so  as  to  have  the  defendant  hold  the  money 
at  once,  in  a  new  relation,  then,  of  course,  the  former  one  will 
cease.  As,  for  instance,  if  the  plaintiff  had  consented  to  have 
defendant  loan  the  money  to  some  one,  or  had  employed  him  to 
carry  the  money  to  Troy,  or  to  New  York,  and  he  had  entered 
upon  this  duty  in  either  case,  and  had  lost  the  money  upon  the 
road,  or  before  it  was  actually  loaned,  or  if  in  any  other  way  the 
new  contract  was  inconsistent  with  the  continuance  of  the  former 
one,  the  old  contract  is  released  by  entering  into  the  new, 
although  of  the  same  grade,  and  not  creating  a  technical  merger. 

But  when  the  new  contract  is  consistent  with  the  continuance 
of  the  former  one,  and  only  provides  a  new  mode  of  discharging 
the  former  one,  it  produces  no  effect  upon  it  unless  or  until  per* 
formed;  and  this  latter  seems  to  have  been  the  probable  purpose 
of  the  parties  in  this  case.  It  is  hardly  supposable  that  if  de- 
fendant held  the  money  as  innkeeper  the  parties  could  have  ex- 
pects his  duty  as  sudi  to  be  affected  until  he  performed  the 


S86  McDaniels  v.  Robinson.  [Vermont. 

new  contrAot,  or  at  least  entered  upon  its  performance.  And 
after  the  failure  to  pei-form,  by  accident  and  without  &ult,  it 
would  be  reasonable,  perhaps,  to  conclude  the  parties  expected 
the  defendant's  obligation  would  remain  the  same;  it  was  at  the 
time  this  new  contract  was  entered  into,  unless  there  was  some- 
thing to  show  that  the  defendant  declined  keeping  the  money 
as  innkeeper,  which  he  might  do  if  he  preferred  to  risk  the  con- 
sequences of  such  refusal,  rather  than  to  assume  the  responsi- 
bility; and  this  new  contract  was  entered  into  to  induce  the  de- 
fendant to  consent  to  keep  the  money  for  that  purpose,  t.  e.,  the 
purpose  of  the  new  contract.  In  that  case  it  would  seem  rea- 
sonable, if  the  defendant  failed  to  perform  the  new  contract, 
without  his  fault,  that  the  money  would  remain  in  his  hands 
only  in  the  capacity  of  an  ordinary  bailee,  at  most.  But  as  new 
facts  in  a  future  trial  may  be  evolyed,  we  have  not  examined  the 
cases  at  length  upon  this  subject ,  especially  as  they  haye  not  been 
brought  to  our  notice  by  counsel,  but  they  will  be  found  to  sus- 
tain the  general  views  above  stated:  Chit.  Cont.  Ill,  118,  and 
notes  and  cases  referred  to. 
Judgment  reversed  and  case  remanded. 


Guests  at  Inn,  Who  abu,  and  when  Thet  Ckabk  to  be  so. — A  gaesK  ii 
a  wayfarer  who  stops  at  an  inn  ami  is  accepted:  Bac.  Abr.,  tit  InuB  and  lull- 
keepers,  C,  5;  Ccdye*B  Caae^  8  Co.  32;  Story  on  Bail.,  sec.  477;  2  Panonaon 
Cont.  152;  2  Kent's  Com.  505;  KihUn  v.  Jllldebrand,  4S  Am.  Deo.  416;  Math 
ning  v.  Wells,  51  Id.  C88;  note  to  Clute  v.  Wiggina,  7  Id.  451;  note  to  Towmmr, 
Havre  de  Grace  Bank,  14  Id.  258;  note  to  Mason  v.  Thompson,  20  Id.  474.  Ii 
a  person  goes  to  an  inn  as  a  wayfarer  and  a  traveler,  and  the  innkeeper  re- 
ceires  him  as  such,  the  rehition  of  landlord  and  guest,  with  all  its  rights  and 
liahilities,  is  instantly  established  between  them:  Jcdie  v.  Caardinal;Zb  Wia. 
118;  Korcrossv.  Norcross,  53  Me.  1C3;  Lusk  v.  Belote,  22  Minn.  468.  One 
who  comes  under  the  dcscnption  above  given  is  undoubtedly  a  guest  in  con* 
templation  of  law.  It  would  appear  to  be  an  easy  matter,  therefore,  to  de* 
termine  who  are  guests,  provided  we  know  what  is  an  inn,  and  who  are  to 
be  regarded  as  wayfarers  and  travelers.  But  as  a  matter  of  fact,  it  is  fre- 
quently found  to  be  exceedingly  difficult  to  determine  who  are  and  who  are 
not  guests:  Schouler  on  Bail.  275;  Norcrossy,  NorcrosSf  53  Me.  163.  In  the 
case  last  mentioned,  Dickerson,  J.,  delivering  the  opinion  of  the  court,  saidt 
**  Who  are  guests  in  legal  contemplation,  and  when  the  property  of  gaests 
may  be  regarded  as  committed  to  the  care  of  the  innkeeper,  are  someiimei 
questions  of  no  little  intricacy.  If  a  person  goes  to  an  inn  as  a  wayfarer  and 
a  traveler,  and  the  innkeeper  receiyes  him  into  his  inn  as  such,  he  becomes 
the  innkeeper's  guest,  and  the  relation  of  landlord  and  guest,  with  all  its 
rights  and  liabilities,  is  instantly  established  between  them.  Neither  the 
length  of  time  that  a  man  remains  at  an  inn,  nor  any  agreement  he  may 
make  as  to  the  price  of  board  per  day  or  per  week,  deprives  him  of  his  char- 
acter as  a  traveler  and  a  guest,  provided  that  he  retains  his  «tottt«  asa  traveler 
Lq  other  respects.    If  an  inhabitant  of  a  place  makes  a  special  contract  with  ao 


Feb.  1854.]  McDaniels  v.  Robiksok.  687 

famkeeper  there  for  board  at  hia  inn,  he  is  a  boarder,  and  not  a  guest.  The 
test  qnestiona  are,  Was  he  a  traveler  and  a  wayfarer 7  and,  Waa  he  reoeiTed  and 
entertained  as  anch  by  the  innkeeper  in  hia  inn  T  If  he  was,  he  at  onoa  be- 
comes the  innkeeper's  guest,  and  the  relation  subsists  so  long  as  he  sojourns 
there  as  a  traveler."  An  inn  has  been  defined  to  be  a  house  where  the 
traveler  is  furnished  with  everything  which  he  has  oocasion  for  whilst  on  his 
way:  Thompwn  v.  Xoey,  3  Bam.  &  Aid.  283;  Story  on  Bail.,  see.  775;  Did> 
trmm  v.  Rogen^  40  Am.  Deo.  642.  And  Daly,  J.,  delivering  the  opinion  ol 
the  court  in  Cmmwdl  v.  SUpkeM^  2  Daly,  24,  thus  describes  an  inn:  "An 
inn  is  a  houee  where  all  who  conduct  themselves  properly,  and  who  are  abls 
and  ready  to  pay  for  their  entertainment,  are  received,  if  there  is  aocommo* 
dation  for  them,  and  who  without  any  stipulated  engagement  as  to  the  dm» 
tion  of  their  stay,  or  as  to  the  rate  of  compensation,  are,  while  there,  auppUedy 
at  a  reasonable  charge,  with  their  meals,  their  lodging,  and  such  serviosa 
and  attention  as  are  necessarily  incident  to  the  use  of  the  house  as  a  tempO" 
rary  home.  This,  as  accurately  as  I  am  able  to  state  it,  is  the  legal  defini- 
tion of  an  inn,  and  this  is  exactly  what  is  understood  in  this  country  by  a 
hotel."  In  WiOard  v.  BeinhanU,  2  B.  D.  Smith,  148,  it  was  decided  that  a 
house  for  the  reception  and  entertainment  of  emigrants  arriving  at  the  port 
of  New  York,  and  usually  remaining  only  temporarily,  is  an  inn.  Where  the 
keeper  of  a  public  house  professes  to  supply  for  hire  the  traveling  public  at 
his  house  with  what  travelers  have  occasion  for,  a  traveler  relying  on  such 
repreeentations,  and  going  to  his  house  and  receiving  such  entertainment  as 
ho  has  occasion  for,  becomes  thereby  the  guest  of  the  house:  PinherUm  v. 
Woodward,  33  CaL  557.  In  Kopper  v.  WiUU,  9  Daly,  460,  it  was  held  thai 
one  who  kept  lodgers  on  only  one  half  of  the  third  floor  of  a  building  in  the 
city  of  New  York,  and  carried  on  c  restaurant  on  the  lower  floor,  under  a 
license  obtained  from  the  board  of  excise  on  an  affidavit  averring  that  he 
kept  an  inn,  and  that  an  inn  was  necessary  in  that  place,  was  liable  to  a  per- 
son who  was  neither  a  lodger  nor  a  regular  boarder,  but  who  merely  oama 
with  a  friend  to  take  dinner  at  the  restaurant,  for  the  loss  of  his  overcoat, 
which  he  had  hung  up  on  a  hook  in  the  restaurant^  from  which  it  was  stolen. 
In  some  cases  very  slight  circumstances  have  been  held  sufficient  to  estab* 
tish  the  relation  of  guest  aod  host.  Thus,  in  Bennett  v.  Mellor,  5  T.  B.  278, 
the  plaintiff's  servant  took  the  goods  in  question  to  market  at  Manchester, 
and  not  being  able  to  dispose  of  them,  he  brought  them  to  the  defendant's  inn 
and  asked  the  defendant's  wife  if  he  could  leave  them  there  until  the  next 
market-day.  She  told  him  that  she  could  not  tell,  for  they  were  very  full  of 
paroels.  The  servant  then  sat  down  in  the  inn,  put  the  goods  on  the  floor 
behind  him,  and  had  some  liquor.  After  sitting  a  while,  he  arose  and  found 
that  the  goods  were  missing.  On  this  state  of  facts  the  jury  gave  a  verdict 
for  the  plaintiff,  and  the  court  sustained  the  verdict,  on  the  ground  that  the 
plaintiff's  servant  had  become  and  was  the  guest  of  the  defendant  at  the  time 
when  the  goods  were  stolen.  In  Kopper  v.  WUUe,  0  Daly,  465,  Daly,  0.  J., 
delivering  the  opinion  of  the  court,  sidd,  in  reference  to  this  case:  "I  have 
heretofore  expressed  a  doubt  whether  the  case  was  rightly  determined,  but 
it  has  been  acquiesced  in  and  acted  upon  for  nearly  a  century."  This  case  ii 
generally  regarded  as  carrying  the  doctrine  of  the  liability  of  the  innkeeper 
to  an  extreme  limit.  In  Read  v.  AnUdon,  41  Vt.  15,  the  facts  were  that  the 
plaintiff  went  in  the  morning  to  the  inn  of  the  defendant,  put  up  his  horse, 
laid  aside  his  overcoat  and  gloves  in  the  presence  of  the  innkeeper,  took  din< 
ner  at  the  inn,  and  remained  during  the  day,  attending  court  in  the  town* 
and  went  away  in  the  evening  after  paying  his  bilL    During  his  stay  at  tha 


588  McDakiels  v.  Robinson.  [Yermont^ 


faui  the  gloTee  w«re  stolen,  and  the  defendant  wu  held  UaUe  for  thdr  loi^ 
on  the  groond  that  the  plaintiff  was  the  gneet  of  the  inn  when  the  ^ovea 
were  stolen.  Some  cases  have  held  that  the  leaving  of  a  hone  at  an  inn 
makes  the  person  leaving  him  a  guest:  Yorbe  v.  CfnndaUmef  1  Salk.  388;  S. 
C,  0ttb.  nam.  Yorke  v.  Chrenangh,  2  L.  Raym.  866;  Thkhlwi  v.  Howard^  8 
Blackf.  535;  Mason  t.  ThompsoHt  SO  Am.  Dec.  471.  Bronson,  J.,  delireiing 
the  opinion  of  the  court  in  OrinfieU  t.  Cook^  38  Am.  Dec  665,  said  that  the 
doctrine  of  Ycrhe  ▼.  Orenaughf  Bupra,  on  this  point,  is  a  diehtm  of  Powell 
and  Gould,  JJ.,  against  the  opinion  of  Lord  Holt;  and  in  leferenoe  to  Jfamtn 
V.  Thompmit  mcpro,  he  said:  "  But  when,  as  in  Mcuon  v.  T^lomjMOi?,  the 
owner  has  never  heen  at  the  inn,  and  never  intends  to  go  there  as  a  guest, 
it  seems  to  me  little  short  of  a  downright  absurdity  to  say  that  in  l^gal  con- 
templation he  is  a  guest:"  Id.  666.  And  Porter,  J.,  in  IngeJUbee  v.  Ifooel,  33 
N.  Y.  579,  said  that  the  decision  in  Mtuon  v.  T'AonqMon,  ntpra^  was  made 
under  a  misapprehension  of  the  law.  The  doctrine  that  the  mere  leaving  a 
horse  at  an  inn  constitutes  the  owner  a  guest  seems,  therefore,  to  rest  on  a 
very  slender  foundation,  and  it  is  doubtful  if  any  court  would  now  so  decide. 
But  if  the  owner  d  a  horse  once  becomes  a  guest,  he  does  not,  by  a  mere 
temporaiy  absence  from  the  inn,  cease  to  be  a  guest;  and  if  during  such  ab- 
sence the  horse  is  injured,  the  innkeeper  will  still  be  liable:  Day  v.  Batkar,  2 
H.  ft  C.  14.  The  facts  of  this  case  were  these:  The  plaintiff  came  to  the 
defendant's  inn,  put  up  his  horse  and  gig,  and  was  received  as  a  guest.  He 
left  the  inn,  saying  that  he  would  not  be  back  until  the  following  Monday* 
and  requested  his  horse  to  be  taken  care  of.  He  remained  away  a  fort- 
night. While  be  was  away,  the  defendant's  hostler  took  the  horse  out  of  the 
stable  to  give  him  exercise,  when  he  took  fright  at  a  locomotive  and  was  in- 
jured, and  the  defendant  was  held  liable.  In  Allen  v.  Svuih,  12  G.  B.,  N.  8.» 
638;  S.  C,  104  Eng.  Com.  L.  638,  a  man  went  to  an  inn  with  two  race- 
horses, staid  there  several  months,  taking  the  horses  out  every  day  for  exer- 
cise and  training,  and  being  absent  occasionally  for  several  days  together  at 
races,  but  always  with  the  intention  of  returning;  and  it  was  decided  that  in 
the  absence  of  any  alteration  in  the  relation  of  the  parties,  that  of  guest  and 
host  remained,  and  that  the  occasional  absences  did  not  destroy  that  relation. 
In  McDoTUild  v.  EdgerUm^  5  Barb.  560,  it  was  held  that  purchasing  liquor  at 
an  inn  was  sufficient  to  constitute  the  purchaser  a  guest. 

Effect  of  Aoresmsnt  with  Ikneeepeb  as  to  Price  of  Board. — Where 
a  traveler  who  puts  up  at  an  inn,  and  is  received  there  as  a  guest,  makes  an 
agreement  with  the  innkeeper  for  the  price  of  his  board  and  lodging  by  tho 
week  or  mouth,  he  does  not  thereby  cease  to  be  a  guest  and  become  a  boarder: 
Chamherlain  v.  Masterwfi,  26  Ala.  371;  Pvnhertonv.  Woodward,  33  CaL  557^ 
Skoeeraft  v.  BaUey,  25  Iowa,  553;  Berkshire  Woolen  Co.  v.  Proctor,  7  Gush* 
417;  Hallv.  PUx,  100  Mass.  495;  Luskv.  Belote,  22  Minn.  468;  Hancock  r. 
Band,  17  Hun,  279;  S.  C.  on  appeal,  94  N.  Y.  I;  S.  C,  46  Am.  Rep.  112^ 
Jalie  v.  Cardinal,  35  Wis.  128.  Rhodes,  J.,  delivering  the  opinion  of  the 
court  in  Pinkerton  v.  Woodtoard,  33  Gal.  557,  597,  said:  "A  traveler  who  en- 
ters an  inn  as  a  guest  does  not  cease  to  be  a  guest  by  proposing  to  remain  a 
given  number  of  days,  or  by  af^certaining  the  price  that  will  be  charged  for 
his  entertainment,  or  by  paying  in  advance  for  a  part  or  the  whole  of  the  en- 
tertainment, or  paying  for  what  he  has  occasion  for  as  his  wants  are  supplied. 
We  see  no  reason  why  the  innkeeper  may  not  require  payment  in  advance,  or 
why  the  gpest  may  not  pay  in  advance  for  lodgings  for  a  part  or  all  the  tim» 
he  intends  to  remain  as  a  guest  at  the  inn."  Ingalls,  J.,  delivering  the  opin- 
ion of  the  court  in  Hancock  v.  Band,  17  Hun,  285,  said:  "We  can  not  su!k 


FeK  1854.]  McDahibls  v.  Bobinbok.  689 

Mribe  to  the  dooMio  which  rofoaet  to  raoogniae  as  a  gnaet aTkftor  at  ahotal 
who  ooeapiee  rooms  and  U  furnished  meals  therein  by  the  proprietor,  simply 
because  ^e  agreement  which  the  law  implies  between  innkeeper  and  gnest  is 
amplified  by  an  express  stipulation  which  fixes  the  price,  and  specifies  the 
duration  of  the  stay  of  the  guest."  And  Dixon,  C.  J.,  delivering  the  opinion 
of  the  court  in  JaUe  ▼.  Cturdhud,  85  TTis.  128,  said:  "Neither  the  length  of 
time  that  a  man  remains  at  an  inn,  nor  any  agreement  he  may  make  as  to  the 
price  of  board  per  day  or  per  week,  depriTes  him  of  his  character  as  a  trsTelsr 
and  a  guest,  provided  he  retains  his  attUut  as  a  traveler  in  other  respects." 

Effect  of  Aobskmeivt  as  to  Tims  of  Stat. — ^Where  no  agreement  Is 
made  as  to  the  length  of  time  which  a  person  is  to  stay  at  a  hotel  or  inn,  it  is 
dear  that  the  mere  length  of  time  which  he  remains  there  has  nothing  to  do 
with  determining  his  character  as  a  guest  or  a  boarder:  PoOoek  v.  XondM,  86 
Iowa,  661;  HaU  v.  Pike,  100  Mass.  495;  Story  on  BaiL,  sec.  477.  But  where 
there  is  an  express  agreement  as  to  the  time  of  the  guest's  stay,  the  cases  are 
not  entirely  harmonious  as  to  whether  or  not  such  an  agreement  will  have  the 
efiect  to  deprive  the  visitor  of  the  character  of  guest  and  constitute  him  a 
mere  boarder.  The  following  cases  seem  to  hold  that  an  agreement  as  to 
time  does  not  necessarily  disturb  the  relationship  of  innkeeper  and  guesti 
Pinkertcn  v.  Woodward,  33  CaL  557;  WaUJing  v.  PoOer,  35  Conn.  183;  Berft- 
Mrt  Woolen  Co.  v.  Ptoetor,  7  Cnsh.  417;  Hameoeh  v.  Band,  17  Hun,  270. 
Miller,  J.,  delivering  the  opinion  of  the  court  of  appeals  in  Hancock  v.  Pand^ 
M  N.  Y.  1;  S.  C,  46  Am.  Bep.  112,  said:  "These  cases  indicate  a  tendency 
in  the  courts  to  conform  the  old  rule  to  the  changes  made  in  hotel-keeping  ia 
modem  times."  Other  authorities  hold  that  the  distinction  between  a  guest 
and  a  boarder  is,  that  the  guest  comes  and  remains  without  any  bargain  /or 
Ume,  and  may  go  away  when  he  pleases,  while  the  boarder  makes  an  agree- 
ment for  the  time  that  he  is  to  remain:  2  Parsons  on  Cent.  151;  Manning  v. 
WelU,  51  Am.  Dec.  688;  Kistcnr.  Hildebrand,  48 Id.  416;  Shoecrqftv,  BaOey, 
25  Iowa,  563;  Vance  v.  Hiroehmorton,  5  Bush,  41 ;  Lawrence  v.  Howard,  1  Utah, 
142.  On  the  distinction  between  a  guest  and  a  boarder,  the  case  of  Hancock 
V.  Randf  17  Hun,  279,  is  one  of  great  interest.  For  a  statement  of  the  facts 
of  that  case,  and  also  for  the  criticism  of  it  by  the  editor  of  the  Albany  Law 
Journal,  published  shortly  after  the  decision  was  rendered  in  20  AlK  L.  J. 
64,  see  the  note  to  Tow$on  v.  Havre  de  Grace  Bank,  14  Am.  Dec  258.  The 
case  was  subeequentiy  carried  to  the  court  of  appeals,  in  which  a  decisioii 
was  rendered  at  the  November  term^  1883,  reported  in  94  N.  Y.  1;  S.  C,  46 
Am.  Rep.  112.  The  court  of  appeals  affirmed  the  judgment  of  the  supreme 
court,  but  did  not  pass  upon  the  question  whether  or  not  an  agreement  for 
time  would  have  the  efiect  of  constituting  a  visitor  at  a  hotel  a  boarder  instead 
of  a  guest,  because  it  found  that  the  report  of  the  referee,  refusing  to  find  thai 
there  was  any  substantial  contract  as  to  time  between  the  parties,  was  fully 
Justified  by  U&e  evidenoa.  On  all  the  other  points  in  the  case  the  decision  of 
the  suprsme  oourt  was  sastMned.  It  is  generally  oonsideted  necessary  that 
a  person  should  be  a  wayfarer  and  a  traveler  in  order  to  constitute  him  a 
goest.  Bat  in  WaOing  v.  PoMer,  85  Ckmn.  188,  it  was  held  that  a  perMo  re- 
ceiving transient  aooommodation  at  an  inn,  for  which  he  Is  charged  by  the 
innkeeper,  Is  a  guest,  snd  entitied  to  all  the  rights  of  a  guest,  although  he 
be  not  aotoally  a  traveler. 

In  order  to  oonstitnte  one  a  guest  at  a  hotel,  it  is  not  necessary  that  he 
itenld  bathers  in  person.    It  Is  suflleleiit  if  his  property  be  there  in  charge  ol 


\ 


590  McDakiels  v.  Bobqibon.  [Yermonli 

his  wife,  ag«&t»  torrant,  or  Mme  other  member  of  hit  funily.  Bnt  the  prop- 
erty most  be  there  under  snob  ciroametenoee  that  the  law  will  preaame  the  poa- 
aeasion  to  be  in  him,  and  not  in  the  bailee  in  charge  of  it:  CoifhendaU  v.  iToton, 
65  Barb.  198;  S.  C,  87  How.  Pr.  438.  And  if  the  agent  of  a  oorporation  en< 
gAged  in  their  bosineM  beoomea  the  guest  of  an  innkeeper,  and  is  robbed 
in  the  inn  while  he  is  a  guest,  of  money  delivered  to  him  by  hia  prindpals  to 
be  expended  in  their  behalf,  the  innkeeper  will  be  liable  therefor  to  the  corpo- 
ration: Berkthire  Woolen  Oo,  ▼.  Proctor,  7  Gush.  417. 

Who  ARi  NOT  Onms. — ^A  neighbor  or  friend  who  oomea  to  an  inn  on 
Invitation  of  the  innkeeper  ib  not  deemed  a  guest:  Bac  Abr.,  tit.  Inns 
and  Innkeepers,  C,  5;  Calye^B  Caae,  8  Co.  32;  Story  on  Bail.,  sec.  477S 
Manning  v.  IVells,  51  Am.  Dec.  688.  Neither  is  one  who  comes  to  an  inn 
on  a  special  contract  to  board  and  lodge  there  regarded  as  a  guest  in  con- 
templation of  law;  he  is  a  boarder:  2  Parsons  on  Gont.  151;  Mannmg  v.  WelU, 
51  Am.  Dec.  688;  Kiaten  v.  HUdebrand,  48  Id.  416;  Johnton  v.  SqfnokU, 
8  Kan.  257;  Carter  t.  HMs,  12  Mich.  57;  Hwrah  v.  Buera,  29  Mo.  460; 
Xwart  V.  Stark,  8  Rich.  L.  423.  Where  a  person  leaves  Us  horse  at  an 
inn,  without  any  intention  of  stopping  at  the  inn  himself,  but  stops  at 
a  relative's  house,  whose  guest  he  is,  he  is  not  a  guest  of  the  innkeeper. 
And  the  liability  of  the  latter  Is  simply  that  of  an  ordinaiy  bailee  for 
hire:  Healey  v.  Cfray,  68  Me.  489;  S.  C,  28  Am.  Rep.  80;  IngalUbee  v. 
Wood,  33  N.  Y.  577.  In  OeUey  v.  Clerk,  Cio.  Jac.  188,  it  was  held  that  U 
a  guest  leaves  goods  at  an  inn,  saying  that  he  will  return  in  three  days,  and 
before  then  the  goods  are  stolen,  he  can  not  maintain  an  action  against  the  inn- 
keeper for  their  loss,  because  at  the  time  they  were  stolen  he  was  not  a  guest. 
See  also  Lynar  v.  Mouop,  36  U.  C.  Q.  B.  231;  WinUrmuU  v.  dark,  5  SandL 
242.  In  Mowen  v.  Fethera,  61  N.  Y.  34;  8.  C,  19  Am.  Rep.  244,  the  plaint- 
iffs made  arrangements  beforehand  with  the  defendant,  who  was  an  inn- 
keeper, that  their  stallion  should  be  kept  at  the  defendant's  inn  two  days  in 
each  week  during  the  season,  to  serve  such  mares  as  should  be  brought  there. 
Plaintiffs  were  to  have  the  exclusive  use  of  a  certain  stall  in  defendant's  bam, 
and  were  to  feed  and  care  for  the  horse,  and  defendant  was  to  furnish  feed 
for  the  horse  and  meals  for  the  man  in  charge  of  him  at  rates  less  than  those 
ordinarily  charged  to  travelers.  The  horse  was  destroyed  by  fire,  with  the 
bam  in  which  he  was  stabled,  without  the  defendant's  fanlk  It  was  held 
that  the  relation  of  guest  and  host  did  not  exist  between  the  owner  of  the 
horse  and  the  innkeeper,  and  that  the  latter  was  not  liable  for  the  loss  of  the 
horse. 

Where  a  ball  is  given  at  a  hotel,  and  tickets  are  sold  entitling  the  pur- 
chaser to  stable  his  horse,  have  dinner  at  the  hotel,  and  dance  at  the  ball, 
such  purchasers  of  tickets  are  not  regarded  as  guests  at  the  hotel,  and  the 
keeper  of  the  hotel  is  not  liable  either  for  injuries  to  their  horses  or  for  loss  of 
their  clothing  or  other  property  while  at  the  ball:  Carter  v.  HMe,  12  Mich. 
52;  FUeh  v.  CasUr,  17  Hun,  126.  An  innkeeper,  who  also  keeps  a  sea-bath- 
ing house  separate  from  the  inn,  is  not  liable  for  goods  and  clothes  of  his 
guest  stolen  from  the  bathing-house  while  the  guest  is  bathing:  Jifinor  v.  StO' 
pl€$,  71  Me.  316;  S.  C,  36  Am.  Rep.  318. 

Whsn  Pkbsoit  Csa8I8  to  bb  GtrBST.—One  does  not  cease  to  be  a  guest 
of  an  innkeeper  by  going  out  to  dine  or  lodge  with  a  friend,  or  by  any  other 
temporary  absence:  Orinnell  v.  Cook,  38  Am.  Dec.  663;  McDonald  v.  Edger" 
ton,  5  Barb.  560.  Where  the  evidence  shows  that  a  person  came  to  an  ina 
as  a  traveler,  the'  preanmpti(m  that  he  remained  a  traveler  and  a  guest  is  not 
overthrown  by  proof  of  an  agreement  by  which  he  was  to  pay  special  ratsa 


Feb.  1854.]  McDandels  v.  Bobinsoh.  591 

for  himself  and  family,  nor  by  proof  of  the  fact  that  ha  remained  a  month  al 
^evan:  LuBkr.Bdote^22Wan,4SS.  Intheoaaeof  J/iOer ▼.i'«p{M,60Miai. 
819;  S.  0.,  45  Am.  Rep.  423,  a  gnest  at  an  inn  paid  hia  bill  and  had  hia 
name  stricken  from  the  register  in  the  morning.  His  object  in  doing  so  was 
to  relieye  himself  of  his  liability  as  a  gnest  daring  his  abeenoe.  He  intended 
to  return  at  night.  He  left  his  Tslise  in  his  room  with  a  friend,  and  daring 
his  abeenoe  it  was  stolen.  It  was  held  that  the  innkeeper  was  not  liable  for 
its  loss.  CSampbell,  C  J.,  deliveriag  the  opinion  of  the  conrt  in  that  case, 
said:  "The  relation  of  guest  and  innkeeper  was  intentionally  ended  by  the 
act  of  the  gaest»  who  paid  his  bill  and  had  hia  name  stricken  from  the  register 
of  guesta,  for  the  parpose  of  freeing  himself  from  liability  as  a  gnest,  and 
he  could  not  thereafter,  and  while  he  was  not  a  gnest,  claim  the  rights  of 
one  as  to  the  baggage  he  left  behind  him.  The  ezpeotati(m  thereafter  to 
become  a  gnest  did  not  continue  the  relation  terminated  at  his  instance  and 
for  his  advantage  by  settling  his  account  for  entertainment.  An  innkeeper 
is  chargeable  as  such  'because  of  the  profit  derivable  from  entertaining.* 
The  right  to  charge  is  the  criterion  of  the  innkeeper's  liability.  When  the 
liability  of  the  guest  to  be  charged  as  such  ceases,  his  claim  on  the  innkeeper 
aa  such  expires,  subject  only  to  the  right  to  hold  him  responsible  for  the 
baggage  of  the  gnest  for  such  time  as  may  be  reasonable  to  effect  a  removal, 
to  be  determined  by  circumstances. "  In  WhUemore  v.  IJaroldsont  2  Lea,  312, 
it  was  held  4hat  where  a  guest,  with  the  innkeeper's  knowledge,  after  pay* 
Ing  his  bill  and  departing,  leaves  money  or  valuables  with  the  clerk  of  the 
inn  to  be  kept,  without  compensation,  until  called  for,  and  the  clerk  embeadea 
the  same,  the  innkeeper  is  a  mere  gratuitous  bailee  and  not  liable  for  the  loss. 
So  where  a  guest,  being  notified  to  leave  for  non-payment  of  board,  leavea  the 
inn  without  securing  his  baggage,  the  innkeeper's  liability  is  merely  that  of 
a  bailee  without  reward:  Lawrence  v.  Hovoard,  1  Utah,  142. 

In  Lifnar  v.  Mos$op,  36  U.  C.  Q.  B.  231,  the  pbuntiff  went  to  a  hotel  in 
Toronto,  asked  for  a  room  to  drees  in,  took  his  valise  with  him  to  the  room, 
dressed,  and  went  out  to  the  residence  of  a  relative,  with  whom  he  staid  all 
night  as  a  guest,  returned  to  the  hotel  in  the  morning  and  found  that  his 
valise  had  been  stolen  from  the  room  where  he  had  left  it.  The  plaintiff  had 
intended  to  return  to  the  hotel  that  night,  but  he  said  nothing  about  this  in- 
tention to  the  defendant  before  he  wont  Away.  The  court  decided  that  tha 
relation  of  guest  and  host  ceased  to  exist  when  the  plaintiff  left  the  hotel,  and 
that  the  defendant  was  not  liable  for  the  loss  of  the  valise. 

In  the  case  of  Adam$  v.  Clem,  41  Oa.  65;  S.  C,  5  Am.  Bcp.  524,  the  plaint- 
iff was  a  guest  at  the  defendant's  inn  and  had  her  trunk  in  her  room.  On 
departing,  after  paying  her  bill,  she  told  the  clerk  that  a  certain  person,  whom 
she  named,  would  call  for  the  trunk  in  a  few  minutes.  The  defendant  said, 
"Very  well."  Kotreoeiving  the  trunk,  the  plaintiff  sent  for  it  four  daya 
after,  when  it  could  not  be  found.  On  the  trial  the  defendant  requested  the 
court  to  charge  the  jury  that  after  the  plaintiff  left  the  inn,  without  any  con- 
tract as  to  the  further  care  of  her  baggage,  and  without  paying  for  snoh  care^ 
the  innkeeper  was  not  bound  to  extraordinary  care;  and  that  if  she  left  with 
BO  intention  of  returning  as  a  guest,  the  relation  of  innkeeper  and  gnest 
oeased,  snd  that  it  was  nothing  but  a  naked  bailment.  The  court  refused  so 
to  charge,  and  the  jury  found  for  the  plaintiff.  The  supreme  oourt  affirmed 
the  judgment,  and  Brown,  C.  J.,  delivering  the  opinion  of  the  court,  said: 
•*  We  think  in  such  case  tiiat  the  innkeeper  with  whom  the  baggage  of  his 
guest  is  left  with  his  consent,  though  he  geta  no  additional  oompenaation  for 
taking  care  of,  is  still  liable  for  it|  as  innkeeper,  for  a  reasonable  timsb  to  Im 


6M  Atkinson  v.  Bbookb.  [Yermool^ 


estimated  aeoordfaigto  the  eircemetMieee  of  the  omb^  afteririiieh  hewmldbe 
only  a  bailee  without  hire,  and  liable  as  sooh.  And  we  are  not  prepand  to 
say  that  the  time  was  unreasonable  which  interveped  ia  this  esse  before  the 
guest  sent  back  for  her  baggage.  ** 

Where  s  guest,  after  packing  his  tnmk  for  departore,  looks  his  room,  gives 
the  key  to  the  clerk,  and  directs  him  to  take  care  of  the  tnmk  left  in  the 
room,  the  innkeeper  is  liable  for  money  stolen  from  the  tnmk  before  the 
guest's  departure:  Sianton  ▼.  Lekunt^  4  EL  D.  Smith,  88.  Where  Tsluables 
are  given  back  by  the  innkeeper  to  the  guest  to  be  packed  prior  to  his  de- 
parture, and  are  lost  thereafter  before  the  gnest  leaves,  the  innkeeper  is 
liable  for  their  loss:  BendeUon  v.  /VeiwA,  46  N.  T.  *266.  In  (HUs  v.  Fan- 
ikroy^  13  Md.  126,  it  was  decided  that  even  after  a  guest  has  paid  his  bill 
and  left  the  hotel  at  noon,  leaving  his  baggage  to  be  taken  to  the  four-o'clock 
boat  the  same  day,  the  innkeeper  is  liable  for  the  loss  of  the  haggage  result- 
ing from  the  servant  of  the  innkeeper  having  tsken  it  to  tho  wrong  bostb 
And  where  an  innkeeper  sends  his  guest's  baggage  by  a  porter  to  the  cars, 
he  remains  liable  for  it  until  it  is  deliyered  to  the  guest  at  the  station:  8a^ 
mm  v.  Clark,  37  Oa.  242. 

In  Seymour  v.  Cooh,  53  Barb.  451;  S.  C,  85  How.  Pr.  180,  a  guest  with 
his  team  of  two  horses  stopped  at  a  village  inn,  and  after  having  his  hoisss 
fed  and  having  taken  dinner  himself,  he  paid  his  bill,  and  asked  the  inn- 
keeper to  get  out  his  horses.  The  innkeeper  told  him  to  go  ahead  and  be 
hitching  up,  and  he  would  be  out  in  a  few  minutes  to  help  him.  The  guest 
thereupon  went  to  the  stable,  put  the  head-stalls  on  the  horses,  and  was  get- 
ting them  out  when  the  innkeeper  arrived.  Before  the  innkeeper  arrived, 
two  men  came  in  with  a  stallion,  which  they  put  up  in  a  stall  between  the 
plaintiff's  horses  and  the  stable  door.  The  plidntiff  led  out  one  of  his  horses, 
and  the  other  one  followed,  as  he  was  accustomed  to  do,  but  when  he  was 
passing  the  stallion  the  latter  kicked  the  plaintiff's  horse,  breaking  his  1^ 
BO  that  he  had  to  be  killed.  The  innkeeper  was  held  liable  for  the  loss  of 
the  horse,  because  the  relation  of  guest  and  host  had  not  ceased,  and  the 
guest  in  leading  out  his  horses  was  only  doing  for  the  innkeeper  what  it  was 
the  latter's  duty  to  do  himself. 

LiABiLiTT  OF  Innkeeper:  See  Epp»  t.  HintU,  61  Am.  Dec  528,  note  690, 
where  prior  cases  in  this  series  are  collected.  The  loss  of  a  guest's  goods  at 
a  hotel  is  only  presumptive  evidence  of  negligence  on  the  part  of  the  inn- 
keeper, and  he  may,  if  he  can,  show  that  the  loss  happened  without  any  fault 
or  negligence  on  his  part:  Hotoe  Machine  Co,  v.  Pease^  49  Vt.  484;  Laird  v. 
Kicholdt  10  Ind.  215,  both  citing  the  principal  case.  An  innkeeper  is  liable 
for  goods  stolen  from  any  part  of  his  house,  unless  he  expressly  limits  his 
responsibility,  and  this  is  assented  to  by  his  guest:  DesmMer  ▼.  Batett  1 
WiL  Super.  Ct.  431,  citing  the  principal 


Atkinson  v.  Bboosb. 


[96  TaBMOST.  SOS.] 

iKDOBsn  er  Bnx  ov  Bxchakob  Taken  as  GollatbhaXi  Swuhiti  for  a 
debt  due  is  pritna  facie  a  holder  for  a  valuable  oondderation,  and 
entitled  to  recover  against  an  accommodation  acceptor  who  was  aol 
known  to  him  to  be  such  when  he  took  the  bill. 


April,  1864.]  Atkinson  v.  Bbooks.  6M 

A88U1CP8IT  onabillof  exoliange.    The  opmion states  fhe  faotib 

J.  H.  and  H.  F,  Prentisa,  for  the  phdntiff. 
Peck  and  Colby,  for  the  defendant. 

By  Court,  Bedheld,  O.  J.  This  case,  as  the  defendant's  tea- 
tiuiony  tended  to  prove,  and  as  the  jury  seem  to  have  found  in 
giving  a  verdict  for  defendant,  "was  a  bill  of  exchange  drawn  by 
one  Asa  Low,  at  Bradford,  Vermont,  npon  the  defendant  at 
Sherbrook,  Canada  East,  payable  to  the  order  of  the  drawer  at 
the  bank  in  Boston,  Massachusetts,  three  months  from  date; 
and  being  accepted  and  indorsed,  was  deposited  with  a  firm  of 
merchants  in  Boston  to  raise  money  for  Low,  and  remit  to  him 
at  Bradford;  but  they,  before  its  maturity,  passed  it  to  one  of 
their  creditors  as  security  for  a  note  of  some  eleven  hundred 
dollars  which  they  were  owing  them  at  the  time,  and  which  was 
overdue.  The  biU  being  dishonored  was  duly  protested,  and 
is  sued  in  the  plaintiff's  name  for  the  benefit  of  the  house  to 
whom  it  was  passed  as  securily  for  their  note.  The  defendent 
is  merely  an  accommodation  acceptor. 

The  important  question  in  the  case  is  whether  the  plaintiflh 
in  interest  can  be  regarded  as  holders  for  value.  No  question 
was  made  but  that  they  took  the  bill  in  good  faith,  and  without 
knowledge  even  of  the  defendant,  being  merely  an  accommo- 
dation acceptor,  or  of  any  confidence  between  the  parties  of 
whom  they  took  the  bill  and  any  prior  party.  The  inquiry 
seems  naturally  to  resolve  itself  into  two  leading  questions: 
1.  Did  the  plaintiff,  in  fact,  and  upon  principle,  give  value 
for  the  bill?  And  can  he,  upon  this  ground  merely,  be  justly 
regarded  as  a  bona  fide  holder  for  value? 

It  seems  now  to  be  pretty  generally  conceded  that  one  who  takes 
a  note  or  bill  indorsed  while  current  in  payment  and  extinguish- 
ment of  a  pre-existing  debt  must  be  regarded  as  a  holder  for  value. 
This  is  certainly  the  general  course  of  decision  upon  the  subject, 
with  some  exceptions  to  be  sure,  and  we  do  not  well  see  how  it 
can  fairly  be  argued  that  one  who  gives  up  a  debt,  and  accepts  a 
note  or  bill  for  the  same,  either  on  time  or  at  sight,  can  be  said 
to  give  no  consideration  for  the  same.  He  certainly  does  forego 
the  pursuit  of  his  own  debt,  and  thus  certainly  puts  himself, 
for  the  time,  in  a  different,  and  in  law  a  worse,  situation.  And 
this  must  be  regarded  as  prima  facie  a  foregoing  of  some  ad- 
vantage by  the  indorsee,  and  also  an  accommodation  to  the  in- 
dorser,  who  may  fairly  be  presumed  to  prefer  this  mode  of  meet- 
ing his  debt.     The  transaction,  therefore,  possesses  both  the 

Am.  Dbo.  Vou  LXII— 88 


\ 


B94  Atkinbon  v.  Brooks.  [Yeranonl^ 


^i^lina.1  ingredients  which  oonstitate  the  text-book  definition  of 
a  Taluable  consideiation:  it  is  a  detriment  to  the  promisee,  and 
an  advantage  to  the  promisor.  And  it  is  no  satisfactory  answer 
to  the  case  to  saj  the  partjr  who  takes  such  bill  or  note,  whidi 
proyes  unprodnctiye,  is  in  the  same  condition  h^  was  before. 
This  is  bj  no  means  certain.  He  has  for  the  time  foregone  the 
collection  of  his  debt;  and  in  such  matters  time  is  the  essence 
of  the  transaction.  And  the  debtor  thereby  gains  time — ^it  may 
be  more  or  less — ^but  of  necessity  some  time  is  thereby  gained; 
and  in  such  matters  this  is  always  accounted  an  advantage,  and 
is  often  of  the  most  vital  consequence  to  the  debtor.  How,  then, 
can  it  fairly  be  said  that  this  mere  suspension  of  the  debt  dur- 
ing the  currency  of  the  note  or  bill  is  no  consideration?  It 
seems  to  me  such  reasoning  upon  other  subjects — ^indeed,  upon 
any  subject,  where  one  is  not  pressed  to  the  wall  by  the  neoes' 
sities  of  this  case — would  almost  be  regarded  as  frivolous;  surely 
it  is  scarcely  specious. 

But  it  has  often  been  claimed  that  there  is  an  essential  differ- 
ence in  principle  between  taking  a  current  note  or  bill  in  pay- 
ment and  as  security  for  a  prior  debt  then  due.  The  transac- 
tions are  certainly  different,  in  form  at  least.  But  it  seems  to 
me  the  ordinaiy  case  of  taking  such  a  security  as  payment,  or 
as  collateral  to  the  prior  debt,  is  the  same  in  principle.  One 
whose  debt  is  due,  in  the  commercial  world,  must  pay  it  in- 
stantly, or  he  becomes  a  bankrupt.  If  instead  of  money  he 
gives  a  bill  or  note,  either  on  time  or  at  sight,  whether  this  is 
in  form,  in  payment,  or  collateral  to  his  debt,  he  gains  time,  and 
saves  the  disgrace  and  ruin  consequent  upon  stopping  payment. 
And  in  either  case,  there  is  an  implied  undertaking  that  he  shall 
wait  upon  his  debtor  till  the  result  of  the  new  security  can  be 
known;  and  in  both  cases,  when  that  proves  unproductive,  the 
creditor  may  pursue  his  original  debt,  or  he  may  sue  the  prior 
parties  on  the  new  security,  except  his  immediate  indorser,  and 
sue  him  upon  the  original  debt,  or  he  may  sue  him  as  indorser, 
and  also  all  prior  parties.  In  this  state,  and  some  other  of  the 
American  states,  where  a  note  or  bill,  when  taken  as  payment, 
prima  facie  extinguishes  the  debt,  it  is  more  common  to  sue  the 
debtor  or  indorser.  But  according  to  the  English  law  and  the 
general  commercial  law,  taking  a  current  note  or  bill  for  a  prior 
debt  only  suspends  the  right  of  action  till  the  dishonor  of  the 
new  security.  According  to  the  general  commercial  usage,  there 
is,  then,  no  essential  difference  in  principle,  whether  a  current 
note  or  bill  is  taken  iu  payment,  or  as  collateral  security  for  a 


April,  1864.]  Atkinson  u  BRooKa  S9S 

prior  debt,  prorided  the  note  is  in  both  cases  truly  and  on- 
qualifiedlj  negotiated,  so  as  to  impose  npon  the  holder  the 
obligation  to  conform  to  the  general  roles  of  the  law  merchant 
in  enforcing  payment.  If,  indeed,  the  note  or  bill  is  not  so 
negotiated  as  to  make  the  holder  a  pariy  to  it,  or  so  as  to  require 
of  him  to  pursue  the  strict  rules  of  mercantile  usage  in  m^lring 
demand  of  payment  and  giring  notice  of  dishonor,  so  as  to 
charge  bis  indorser  with  all  the  prior  parties  upon  the  peril  of 
making  tlie  note  or  bill  his  own  in  payment  of  his  debt,  then 
he  could  not  be  regarded,  probably,  as  baring  so  taken  the  paper 
in  the  due  course  of  business,  bona  fide  and  for  value,  as  to  shut 
out  equitable  defenses  existing  bett^een  the  original  parties. 
But  ordinarily  we  suppose  it  fair  to  conclude  that  one  who 
takes  a  note  or  bill  negotiated  to  him  while  current,  although 
merely  as  collateral  to  a  prior  debt,  is  expected  to  pursue  the 
same  course  in  enforcing  payment  as  if  he  paid  money  for  the 
bill.  And  it  is  scarcely  supposable''  that  one  so  taking  security 
for  a  debt  will  not  conduct  differently  on  account  of  the  secu- 
rity. It  is  of  necessity  he  should,  if  he  puts  any  confidence  in 
its  ultimate  availabiliiy .  And  one  would  scarcely  part  with  such 
securiiy  unless  he  expected  more  or  less  indulgence  on  account 
of  it.  And  when  the  prior  debt  is  suffered  to  remain  uncollected, 
it  is,  under  the  circumstances,  fair  to  conclude  such  was  the 
stipulation.  And  the  case  of  one  who  takes  a  note  or  bill  so 
negotiated,  whether  in  payment  or  in  security  of  a  prior  debt 
implidUy  stipulating  to  forego  the  collection  until  the  maturity 
of  the  collateral  paper,  when  such  paper  proves  tmproductive, 
is  the  same  in  both  alternatives.  In  either  case  he  may  pursue 
his  remedy  upon  the  negotiable  paper  against  all  the  prior  par- 
ties, including  his  immediate  indorser;  or  omitting  him,  he  may 
pursue  the  other  parties  to  the  bill  or  note,  and  sue  his  original 
debt  equaUy,  whether  he  took  the  paper  in  payment  or  as  col- 
lateral security  of  such  debt,  so  that  the  difference  between  the 
two  cases  is  merely  formal.  And  if  in  case  of  negotiating  cur- 
rent paper  as  collateral  security  for  a  prior  debt  the  holder  is 
not  regarded  as  having  taken  it  upon  a  valuable  consideiation, 
then  the  indorser  may  recall  it  at  will.  For  if  there  is  no  such 
consideration  as  to  make  the  contract  binding,  it  is  revocable  at 
will. 

And  if  not  upon  consideration  as  to  one  party,  neither  is  it 
as  to  the  other.  And  in  such  case  the  holder  is  merely  the 
agent  of  the  indorsee  for  purposes  of  collection,  and  as  such 
agent  subject  to  his  control,  and  bound  to  surrender  the  ae- 


\ 


696  Atkinson  t;.  BBOOKa  [Yermoiilk 


euritj  at  wilL  This  was  the  view  taken  in  Ds  b  Chaumetie  y. 
Bank  ofEngkmd^  9  Bam.  Sc  Cress.  208.  Bat  that  case  turned 
npon  the  peculiar  oonstmotion  gi^en  to  the  &ot8  of  the  case. 
Such  is  certainly  not  the  common  case  of  taken  negotiable 
paper,  as  collateral  security  for  a  debt  already  due.  The  in- 
dorser,  in  such  case,  can  no  more  recall  or  control  the  paper 
than  if  he  had  receired  the  money  or  goods  in  payment  of  the 
flame.  And  when  one  takes  a  bill  or  note  negotiated  before 
maturity  in  payment  of  money  adyanoed  or  goods  sold,  such 
paper  iSy  in  fact,  only  collateral  seouriiy  for  the  money  or  the 
price  of  the  goods,  and  suspends  such  debts  only  till  the  dis- 
honor of  the  bill,  and  is  in  law  precisely  the  same  thing  as  if 
the  lender  of  the  money  or  the  yendor  of  the.  goods  took  a  note 
for  the  money  or  goods,  and  a  bill  or  note  negotiated  as  oollat- 
eral  to  such  note,  with  the  agreement  to  wait  till  such  collateral 
was  paid  or  dishonored.  In  all  these  cases  it  would  nerer  be 
claimed  that  the  indorser  of  such  bill  or  note  could  take  it  out 
of  the  hands  of  the  indorsee  at  will.  But  this  he  clearly  might 
do,  if  such  indorsee  had  not  taken  it  upon  consideration.  If, 
for  instance,  one  holds  a  debt  due  six  months  hence,  and  his 
debtor,  as  a  mere  yolunteer  service,  indorses  a  current  note  or 
bill  as  collateral  security,  the  collateral  being  due  in  three 
months,  it  could  not  be  made  to  appear  that  such  transaction, 
before  the  indorsee  had  been  at  any  pains  in  the  matter,  was  a 
contract  upon  consideration.  The  prior  debt  not  being  due, 
the  creditor  could  forego  nothing,  and  the  debtor  receiye  no 
advantage  from  the  transaction.  And  the  agreement  to  apply 
the  collateral  upon  a  debt  not  yet  due,  being  without  consider- 
ation, would  probably,  in  the  first  instancci  be  revocable  at 
will,  and  so  also  as  long  as  the  parties  remained  in  the  same 
situation.  It  seems  needless  to  spend  more  time  to  show  that 
upon  principle,  and  in  fact,  one  who  having  a  debt  due  accepts 
of  his  debtor  a  current  note  or  bill,  indorsed  to  himself  as  col- 
lateral security  for  the  debt,  with  the  understanding  that  in- 
dulgence is  to  be  shown  on  the  prior  debt,  which  in  fact 
follows,  does  take  such  paper  upon  consideration,  and  gives 
value.  Upon  careful  examination  of  this  matter,  it  seems 
strange  that  such  a  question  should  ever  have  been  raised;  and 
it  probably  never  would  have  been  but  from  the  indefiniteness 
of  the  implied  obligations  growing  out  of  such  a  transaction. 

2.  The  more  important  question  growing  out  of  the  case  is, 
perhaps.  What  is  the  true  commercial  rule  established  upon  this 
subject  f    And  it  is  of  vital  importance  in  regard  to  commercial 


April,  1854.]  Atkinson  u  Bbookel  597 

usages  that  they  slioQld,  as  far  as  practicable^  be  nnifonn 
throughoiit  the  world.  And  saoh  is  necessarilj  the  ultimate 
desideratum,  and  will  inevitably  be  the  final  result.  It  is  there- 
fore always  a  question  of  time  as  to  uniformity  in  such  usages. 
The  basis  of  such  uniformiiy  is  conyenience  and  justice  com- 
bined. And  until  such  rules  become  measurably  settled  by 
practice,  they  have  to  be  treated  as  matters  of  fact,  to  be  passed 
upon  by  juries;  and  when  the  rule  acquires  the  qualiiy  of  uni- 
formity, and  the  character  of  general  acceptance,  it  is  then  re- 
garded as  matter  of  law.  It  is  thus  that  most  of  the  commercial 
law  has  from  time  to  time  grown  up.  In  the  case  of  Foster  y. 
Pearson,  1  Cromp.  M.  &  R.  849,  Lord  Lyndhurst,  while  chief 
baron  of  the  court  of  exchequer,  left  it  to  the  jury  to  deter- 
mine, upon  the  evidence  as  to  general  commercial  usage  in  the 
city  of  London,  whether  the  plaintiff  had  taken  the  bill  in  the 
due  course  of  business,  and  the  full  court  held  that  the  ques- 
tion was  properly  submitted  to  the  jury.  But  in  this  case  it 
seems  to  be  recognized  as  settled  law  that  one  who  takes  an  in- 
dorsed note  or  bill  still  current  as  collateral  securiiy  for  a  prior 
debt  is  a  bona  fide  holder  for  value.  So,  too,  as  early  as  1814» 
in  Bosanquet  v.  Dudman,  1  Stark.  1,  Lord  EUenborough  said 
that  ''  whenever  the  acceptances  exceed  the  cash  balance,  the 
plaintiff  held  all  the  collateral  bills  for  value; "  and  the  court  of 
exchequer,  in  Percival  v.  Frampton,  2  Cromp.  M.  &  B.  180,  de- 
cide the  same  point.  Parke,  B.,  says:  ''  If  the  note  were  given 
to  the  plaintiffs  as  a  security  for  a  previous  debt,  and  they  held 
it  as  such,  they  might  be  properly  stated  to  be  holders  for  valu- 
able consideration."  This  is  in  1835.  And  the  same  rule  is 
eertainly  recognized  in  Heywood  v.  Watson,  4  Bing.  496.  So  also 
in  Bosanquet  v.  Forster,  9  Car.  k  P.  659,  and  Bosanquet  v.  Corser^ 
Id.  664.  Palmer  v.  Bichards  is  a  full  authority  to  show  that  it 
is  not  material  whether  the  note  or  bill  be  deposited  as  security 
for  an  advance  or  in  payment,  as  some  of  tibe  American  cases 
seem  to  suppose  (1851):  1  Eng.  L.  Sc  Eq.  529;  S.  C,  15  Jur.  41. 
In  Smith  v.  Brains,  8  Eng.  L.  &  Eq.  879,  the  proper  dis- 
tinction between  accommodation  paper  and  paper  fraudulently 
or  illegally  obtained  or  put  in  circulation  is  discussed,  and 
placed  upon  the  sensible  and  true  ground,  no  doubt,  viz.,  that 
in  the  former  case  it  is  incumbent  upon  the  maker  or  acceptor 
to  show  that  the  holder  took  it  without  consideration;  the  law 
making  the  ordinary  presumption  in  favor  of  the  holder  of  ac« 
oommodation  paper,  which  is  in  fact  made  for  the  purpose  of 
being  put  in  ciroulation,  and  it  being,  therefore,  fair  to  presume 


I 


698  Atkinson  v.  BaooKa  [Vennootk 

the  holder  took  it  for  Talue  and  bona  fide.  Bnt  in  case  of  a 
note  or  bill,  illegal  in  its  inception  or  fraudulently  put  in  ciien- 
lation,  if  these  facts  be  proyed  in  defense,  it  imposes  upon  the 
holder  the  necessity  of  proving  in  answer  that  he  gave  value  for 
the  paper:  Smith  y.  Braine,  16  Jur.  287.  So  also  in  MiUis  y. 
Barber,  1  Mee.  &  W.  425,  it  was  long  ago  declared  byLord  Abinger 
that  the  courts  in  Westminister  hall  had  upon  consultation  deter- 
mined BO  to  decide  the  law.  The  same  distinction  between  ac- 
commodation paper  and  paper  fraudulently  put  in  circulation 
obtains  in  many  of  the  American  states.  But  this  distinction 
is  not,  perhaps,  very  important  here,  ihasmuch  as  the  defend- 
ant claims  both  want  of  consideration  for  his  acceptance,  and 
fraud  in  putting  the  paper  in  circulation:  Harvey  y.  Toilers,  4 
Eng.  L.  &  Eq.  531;  S.  C,  16  Jur.  544. 

But  that  the  English  law  is  fully  settled  in  favor  of  the  in- 
dorsee of  current  negotiable  paper,  who  takes  it  as  coUatend 
security  for  a  prior  debt,  there  can,  I  think,  be  no  doubt,  since 
the  decision  of  Poirier  v.  Morris,  20  Eng.  L.  &  Eq.  103;  22  L.  J., 
N.  S.,  Q.  B.  313;  S.  C,  2  El.  &  Bl.  89;  May,  1853,  long  since  the 
present  action  was  pending.  This  was  an  action  upon  a  foreign 
bill  which  was  negotiated  to  plaintiffs  as  security  for  a  previous 
debt,  and  at  the  time  of  receipt  passed  to  the  credit  of  the  debtor. 
It  being  dishonored,  was  protested,  and  therefore  charged  in 
account  against  the  debtor  to  balance  the  former  credit,  with 
the  addition  of  expenses.  This  would  seem  to  be  the  usual 
course  of  doing  business  in  Europe,  and  probably  obtained  to  a 
considerable  extent  in  the  American  cities,  bills  and  notes  being 
credited  on  receipt  and  charged  upon  dishonor,  and  all  the  col- 
laterals being  thus  held  for  the  ultimate  balance.  This  case 
was  decided  upon  the  general  ground  of  the  plaintiff's  title  at 
the  time  he  took  the  bill  as  security  for  the  balance  of  his  account 
Lord  Campbell,  0.  J.,  in  giving  judgment, says:  ''There  is 
nothing  to  make  a  difference  between  this  and  the  common  case 
where  a  bill  is  taken  as  security  for  a  debt,  and  in  that  case  an 
antecedent  debt  is  a  sufficient  consideration."  Crompton,  J., 
says:  ''  Whether  the  bill  was  a  collateral  security^  or  whether  it 
had  the  effect  of  suspending  the  payment  of  the  antecedent  debt, 
is  quite  immaterial.  The  plaintiffs  had  a  perfect  right  to  keep 
it."  We  think,  therefore,  it  must  be  regarded'as  settled  law  ia 
England  at  the  present  day  that  such  a  bill  or  note,  taken  as 
collateral  security  for  a  prior  debt,  is  taken  in  the  due  course  of 
business  and  for  value.  Such  being  the  settled  rule  of  the  Eng- 
lish law,  which  is  confessedly  of  great  and  paramount  force  upon 


April,  1854.]  Atkinson  v.  Bboox&  SM 

a  question  of  this  kind,  it  is  certainly  desiiable  that  in  regard 
to  oommeroial  law  of  such  eztensiye  application  in  the  e^ery-day 
transactions  of  business,  the  law  of  the  American  states  should 
also  be  uniform,  and  as  far  as  reasonable  and  practicable,  cor- 
respond with  the  acknowledged  rule  in  other  states  and  countries. 
The  case  of  8id^  t.  Ikflon^  16  Pet.  1,  upon  the  most  elaborate 
examination  and  debate,  adopts  the  English  rule,  and  upon 
general  grounds  of  settled  conunercial  law.  The  decisions  of 
the  national  tribunal  are  not  indeed  of  any  binding  authority 
upon  the  general  rules  of  the  law  merchant  in  a  state  court, 
further  thim  they  commend  themselves  to  our  sense  of  reason 
and  justice.  But  such  a  decision  as  that  of  Swifty,  Tywn^  mipnit 
upon  such  a  subject,  could  scarcely  fail  to  be  regarded  as  of 
Tery  considerable  force,  and  if  sound  in  principle  would, 
almost  of  necessiiy ,  ultimately  form  the  basis  of  that  uniformity 
of  commercial  law  in  these  states  which  sooner  or  later  nfbst, 
from  its  very  great  convenience,  ultimately  prevail.  If  not 
sound  in  principle,  it  would  with  difficulty  be  maintained  even 
by  that  court. 

Aside  from  our  former  remarks,  going,  as  we  think,  to  show  the 
soundness  of  the  rule  laid  down  in  Swift  v.  T^mm,  9VLpra^  the 
course  of  decision  in  the  several  states  since  the  date  of  that  de- 
cision show  a  general  disposition  to  adopt  it.  Indeed,  in  many 
of  the  states  a  similar  rule  prevailed  before  that.  In  Pennsyl- 
vania, Pelrie  v.  Clark,  11  Serg.  &  R.  377  [1824]  [14  Am.  Dec. 
636],  recognizes  fully  the  sufficiency  of  the  consideration  for  the 
indorsement  of  a  note  or  bill  where  it  is  taken  in  payment  of  a 
prior  debt,  and  even  as  collateral  security,  if  there  is  any  agree- 
ment to  wait  on  the  prior  debt,  or  any  other  damage  is  sustained 
in  consequence,  or  the  indorsee  waives,  or  temporarily  foregoes, 
any  of  his  other  rights.  This  ground,  assumed  by  Gibson,  J., 
at  that  early  day,  is  certainly  a  very  near  approach  to  the  rule 
of  Swift  V.  Ty9on,  supra,  and  the  present  English  rule  upon  the 
subject.  The  only  difference  seems  to  be  in  not  holding  that 
one  who  takes  such  paper  as  collateral  security  is  presumed  to 
conduct  differently  on  account  of  it:  Walker  v.  Oeisse,  4  Whart. 
252  [33  Am.  Dec.  60],  maintains  very  much  the  same  ground. 

In  Maine,  Homes  v.  Smyth,  16  Me.  177  [88  Am.  Dec.  660], 
decides  that  if  such  paper  be  taken  in  payment  of  a  pre-existing 
debt,  it  defeats  all  equitable  defenses  between  the  original  par- 
ties. So  also  in  New  Hampshire:  WUUams  v.  LUOe,  11  N.  H. 
66.  The  decision  in  this  case,  that  such  paper  being  indorsed 
as  collateral  security  for  a  loan  made  at  the  time  is  not  held  for 


800  AxKiNSOir  v.  Brooks.  [VemioDi^ 

value,  is  certainly  not  justified  by  the  deoiaionB  in  any  oihsr 
state,  BO  far  as  I  can  find.  The  New  York  courts  who  have  re- 
sisted this  role  with  the  most  unfiinching  pertinacity  do  not  so 
hold,  bat  the  contrary :  WmtifM  ▼.  Smilh,  2  mil  (N.  Y),  301;  Wat- 
mm  T.  Cabot  Batik,  5  Sandf .  423.  GarlisHe  t.  Wishart,  11  Ohio,  172, 
adopts  the  view  of  Homes  t.  Smyth,  supra;  Blanchard  t.  Stevens, 
8  Gush.  162  [60  Am.  Dec.  723],  holds  the  same.  So  also  Norton 
T.  Waite,  20  Me.  175;  so,  too,  Bosivnck  y.  Dodge,  1  Dougl.  413 
[41  Am.  Dec.  584];  Bush  t.  Pechard,  3  Harr.  (Del.)  385,  goes 
to  the  same  extent.  So  also  the  case  of  Brush  t.  ScrOmer,  11 
Conn.  388  [29  Am.  Dec.  303].  In  none  of  these  cases,  except 
WiUiams  y.  Little,  supra,  did  the  question  arise  whether  taking 
a  note  or  bill  indorsed  as  collateral  security  for  a  prior  debt  is 
the  same  as  taking  it  in  payment.  There  is,  therefore,  eyeiy 
reason  to  suppose  that  no  such  distinction  will  be  attempted  in 
any'of  those  states,  unless  it  be  the  latter  state. 

The  case  of  Barney  y.  Earle,  13  Ala.  106,  is  to  the  same  extent 
In  Eeddick  y.  Jones,  6  Ired.  L.  107  [44  Am.  Dec.  68],  all  dis- 
tinction between  taking  negotiable  paper  in  payment  and  as 
collateral  security  is  repudiated,  and  both  held  to  be  yaluable 
and  sufficient  considerations.  In  this  case  the  paper  was  taken 
in  payment,  to  be  sure.  So  also  in  Georgia:  CHbson  y.  Gon^ 
ner,  3  Qa.  47,  expressly  decides  that  taking  such  paper  as  col- 
lateral security  for  a  prior  debt  is  sufficient  to  shut  out  equita- 
ble defenses.  So  also  in  Indiana:  Valette  y.  Mason,  1  Smith,  89; 
and  the  same  is  held  in  New  Jersey:  Allaire  y.  Hartshome,  1 
Zab.  665  [47  Am.  Dec.  175];  and  in  Chicopee  Bank  y.  Chopin, 
8  Met.  40,  the  same  rule  is  recognized,  although  there  the  debt 
was  created  at  the  time  the  paper  was  negotiated  as  collateral 
security.  Thus,  we  think,  most  of  the  states  may  be  regarded 
as  yirtually  haying  adopted  the  rule  laid  down  in  Swift  y. 
Th/son.  Chancellor  Kent,  too,  3  Oom.  96,  and  note,  adopts  the 
same  rule  '*  as  the  plainer  and  better  doctrine; "  and  Allen  y.  King, 
4  McLean,  128.  It  is  to  be  borne  in  mind  that,  upon  the  other 
side,  New  York  contends  strenuously  that  such  paper,  taken 
either  in  payment  or  as  security  for  a  prior  debt,  is  not  held, 
upon  any  sufficient  consideration,  to  shut  out  equitable  defenses. 
I  think  the  New  York  courts  are  consistent  and  sound  in  deny- 
ing all  distinction  between  taking  such  paper  in  payment  and 
as  securiiy  for  a  prior  debt.  There  obyiously  is  no  difference 
in  regard  to  the  consideration.  But  eyen  in  New  York  they 
haye  felt  compelled  to  decide  that  if  such  paper  is  taken  in  pay- 
ment of  a  prior  debt,  being  indorsed  with  recourse,  the  holder 


April,  1854.]  Atkdibon  v.  BBOOKa  601 

acquires  perfect  title,  and  may  shut  out  eqniiaUe  defenses 
between  the  original  parties:  Bank  of  St,  JJbans  y.  OiUiland,  23 
Wend.  311  [36  Am.  Dec.  566].  And  if  one  gives  his  own  note 
for  such  paper,  it  makes  him  a  holder  for  yalue  even  in  New 
York:  4  Barb.  304.  These  two  cases  seem  yeiy  much  like 
an  abandonment  of  the  principle  of  the  rule  even  there.  In 
Kentucky,  too,  a  similar  rule  to  that  in  New  York  has  pre- 
vailed: Breckenridge  y.  Moore,  8  B.  Mon.  629.  It  is  claimed, 
too,  that  Virginia  adopts  the  same  ground  in  PrerUice  y.  Zane, 
2  Oratt.  262;  but  that  case  does  not  decide  the  point,  a  new 
trial  being  awarded  for  defect  in  the  special  verdict.  Similar 
decisions  have  been  made  in  Tennessee.  In  Womdyy,  Lowry,  1 
Humph.  468,  Oreene,  J.,  says:  ''Where  one  receives  a  note 
for  a  pre-existing  debt,  he  parts  with  nothing.  He  is  in  the 
same  situation  after  a  successful  defense  by  the  maker  that  he 
was  before  he  took  the  note."  This  is  certainly  a  remarkable 
instance  of  the  rum  seguiiur  to  have  imposed  any  delusion  upon 
the  mind  of  an  experienced  judge.  He  is  in  the  same  situation. 
But  how  can  that  be  made  to  appear?  He  has  let  the  collection 
of  his  debt  or  its  security  surcease  for  the  time,  and  time  is  often 
fatal  in  such  matters,  and  has  incurred  the  expense  and  vexation 
of  litigation,  and  is  still  in  the  same  situation.  Surely  he  is  in 
one  respect,  his  debt  is  still  unpaid;  and  in  another  also,  which 
is  somewhat  important,  he  is  again  out  of  court.  And  it  seems 
to  me  that  all  refinements  upon  such  absurd  premises  are  always 
liable  to  involve  one  in  similar  contradictions  and  incompre- 
hensible conclusions.  I  certainly  feel  no  disposition  to  deal 
harshly  or  in  a  vainglorious  spirit  with  the  general  arguments 
upon  which  this  view  is  attempted  to  be  maintained.  It  will  be 
found  ably  stated  by  Walworth,  chancellor,  in  Stalker  v.  ifo 
Donald,  6  Hill,  93  [40  Am.  Dec.  889]. 

This  embraces  most  of  the  decisions  upon  the  subject,  both  in 
this  country  and  in  England.  And  we  could  scarcely  question 
that  the  decided  and  increasing  preponderance  is  in  favor  of  the 
plaintiff's  claim  to  hold  the  bill  free  from  all  equities  of  the  ac- 
ceptor; and  coinciding,  as  it  does,  with  our  views  of  the  reason 
and  justice  of  the  case,  we  could  not  hesit&te  to  adopt  it.  We 
might  probably  have  decided  the  case  upon  the  Massachusetts 
law,  as  the  contract  seems  upon  its  face  to  have  been  made  with 
reference  to  that  place.  But  as  this  question  was  not  made  in 
the  court  below,  it  does  not  properly  arise  here,  probably.  And 
we  have  chosen  to  put  the  case  upon  the  general  rule  of  the  law 
merchant,  the  ordinary  presumption  being  that  the  law  of  any 


\ 


66s  Atkinson  v.  Bbookel  [Veniionl. 

pttrticalar  place,  in  regard  to  commereial  oontnct8»  oonforms  to 
the  general  law,  unless  the  contrary  be  shown.  The  party  who 
claims  the  benefit  of  the  law  of  a  particular  place,  on  the  ground 
of  it  being  different  from  the  general  rule  of  law  on  that  subject^ 
must  proye  the  law  of  that  place  to  be  different,  as  he  would 
prove  any  other  fact  in  the  case.  This  leayes  that  question  open. 
We  do  not  understand  the  plaintiff  to  claim  seriously  that  he 
can  recover  the  balance  of  this  bill  above  the  amount  of  the  note 
which  was  due  at  the  time  of  the  negotiation  of  the  bill,  and  as 
security  for  which  it  was  negotiated.  We  do  not  see  how  he 
could  claim  that.  The  valuable  consideration  must  be  limited 
to  the  amount  of  the  prior  debt,  due  at  the  time  of  the  negotia- 
tion of  the  bill. 

1.  A  note  or  bill  negotiated  in  security  for  a  debt  not  yet  due 
is  not  upon  sufficient  consideration,  ordinarily,  unless  the  cred- 
itor wait  in  faith  of  the  collateral  after  his  debt  becomes  due. 

2.  If  the  debtor  is  notoriously  insolvent  before  the  note  or 
bill  is  negotiated  as  collateral  securiiy,  it  is  said  the  creditor 
can  only  stand  upon  the  rights  of  his  debtor. 

8.  If  a  note  or  bill  is  taken  merely  to  collect  for  the  debtor, 
to  apply  when  collected,  the  creditor  not  becoming  a  party  hj 
indorsement,  so  as  to  be  bound  to  pursue  the  rules  of  the  law 
merchant  in  making  demand  of  payment  and  giving  notice  back, 
the  holder  is  merely  the  agent  of  the  owner:  De  la  OhataneUe 
V.  Bank  of  England,  9  Barn.  &  Oress.  208;  Allen  v.  King,  4  Mo- 
Lean,  128. 

4.  So,  too,  probably,  if  it  were  shown  positively  that  the 
holder  gave  no  credit  to  the  indorsed  bill,  and  did  in  no  sense 
conduct  differently  on  that  account,  he  could  not  be  regarded 
as  a  holder  for  value. 

These  four  exceptions  are  probably  based  upon  good  sense, 
and  may  be  found  sustained  by  authority;  but  we  have  no  occa- 
sion to  say  more  in  regard  to  them  here.  This  case  stands  upon 
the  general  broad  ground  of  paper  taken  in  the  due  course  of 
business  as  collateral  securiiy  for  a  debt  due,  and  prima faciB 
the  holder  is,  under  such  circumstances,  to  be  regarded  as  hold- 
ing the  paper  for  a  valuable  consideration,  and  so  entitled  to  re- 
cover against  an  accommodation  acceptor. 

Judgment  reversed. 

AOOOKMODATION    InDOBSXB     18   LlAllUI   TO   HOU»B   QP   PAPIR    held   M 

collateral  ■ecnrity  for  a  pre-existing  liability:  Lord  ▼.  Oeeoa  BaaUt^  69  Anu 
Dec.  728,  note  790»  where  other  cases  are  collected.  The  indorsee  of  a  bill 
of  exchange,  tranaferred  to  him  as  collateral  security  for  a  pre»existiag  debl 


Sept  1864.]  Bbown  v.  Carfbntkr.  608 

past  dne,  b  prima  fade  m  holder  for  Talae,  and  takes  the  hffl  disoharged  of 
equities:  RoaAormigh  ▼.  Mermck^  6  Ohio  St.  456;  Bank  ^  the  RepMie  ▼. 
CaifHngUm,  5  R.  I.  624;  Miekigan  Bank  ▼.  Bldred,  9  WaU.  568,  aU  dting 
the  principal  case.  ^  One  who  takes  a  note  or  bill  indorsed^  while  onrrent,  ia 
payment  and  extlngoishment  of  a  pre-existing  debt,  is  a  holder  for  value:  Bus- 
•dl  y.  SpUjilety  47  Vt.  276;  BaUroad  Co/ v.  NalUmal  Bank,  102  U.  S.  62,  both 
citins  tbe  principal  case. 

In  Bowman  v.  Van  Kuren,  29  Wis.  220,  Dixon,  0.  J.,  said:  "In  Aikinsom 
V.  Brooka,  26  Vt.  669,  the  court  seem  to  have  held  that  forbearance,  or  an 
agreement  for  extension  or  delay  of  time  of  payment  of  a  debt  past  due,  is  to 
be  implied  from  the  mere  fact  of  the  transfer  of  the  coIlateraL  This  seems 
to  us  to  be  going  very  far." 

Tex  prinoipal  oasb  is  citbd  in  Fair  ▼.  Howard,  6  Nev.  810,  to  the  point 
that  there  is  no  distinction  between  a  pre-existing  debt  and  a  fresh  loan  or 
advance  of  money.  It  is  also  limited  and  explained  in  AiuOn  v.  {TaHta,  81 
Vt.  76,  and  in  GrimeM  t.  Dams^  Id.  398. 


Bbown  v.  Gabfenteb, 

[26  YiSMOHT,  638.] 

LiJtOB,  FZBOOIOUS  DOO,  AOCUSTOMED  TO  BiTX  MANKIND,  U  OOMMOV  NUI- 
SANCE, and  such  a  dog,  if  allowed  to  go  at  large,  may  be  killed  by  a  per- 
son without  showing  that  the  killing  was  done  in  necessary  self-defense. 

Tbespabs  for  killing  the  plaintiff's  dog.  The  defendant 
pleaded  in  bar  that  the  dog  was,  and  for  a  long  time  had  been, 
fierce  and  dangerous;  that  he  had  bitten  the  defendant  an4 
sundry  other  persons;  that  all  this  was  known  to  the  plaintifl 
and  to  those  intrusted  with  the  keeping  of  the  dog;  and  thai 
with  this  knowledge  said  dog  was  suffered  to  go  at  large; 
wherefore  the  defendant  killed  said  dog  as  he  had  good  right  to 
do.  The  judge  charged  the  jury  that  every  dog  not  confined  or 
physically  restrained  is  a  dog  at  large,  within  the  meaning  of 
the  defendant's  plea,  notwithstanding  he  is  all  the  time  in  the 
presence  of  his  master;  and  that  a  dog  whose  conduct  to  people 
is  BO  violent  as  to  occasion  alarm  for  their  personal  safety  is  a 
fierce  dog.  To  these  instructions  the  plaintiff  excepted.  After 
a  verdict  for  the  defendant,  the  plaintiff  moved  for  a  judgment, 
notwithstanding  the  verdict.  The  court  overruled  the  motion, 
and  the  plaintiff  excepted.  Other  facts  appear  from  tiM 
opinion. 

E.  KirkHand,  for  the  plaintiff. 

Keyea  and  Howe,  and  J.  D,  Bradley ^  for  the  defendant. 

By  Court,  BKDnxLD,  0.  J.  We  think  that  a  ferocious  and 
Ofergxown  dog,  known  to  the  owner  or  keeper  to  be  accustomed 


004  Brown  u  Cabpenter.  [Yermonl^ 


to  bite  znanldndy  is  to  be  regarded  as  at  large«  within  tbe  com* 
mon  import  of  those  terms,  in  a  plea  in  bar,  when  he  is  so  far 
free  from  restraint  as  to  be  liable  to  do  mischief  to  man  or 
beast;  and  this  such  a  dog  is  always  liable  to  do  when  not 
physically  restrained,  in  the  language  of  the  judge  in  the  court 
below.  His  being  in  the  presence  of  his  keeper  a£Ebrds  no  safe 
assurance  that  his  known  propensities  will  not  prevail  oyer  the 
restraints  of  authoriiy.  That  is  the  case  with  men  often  and 
always  liable  to  be  with  ferocious  animals.  As  is  said  by  one 
judge,  "I  think  sufiScient  caution  has  not  been  used;  one  who 
keeps  a  savage  dog  is  bound  to  so  secure  it  as  to  effectually  pre- 
vent it  doing  mischief." 

As  to  the  sufficiency  of  the  plea,  it  undoubtedly  puts  the  de- 
fense upon  the  ground  that  such  a  dog  is  ho8iis  cammuniSf  the 
common  enemy,  and  may  be  killed  by  any  one.  It  alleges,  in- 
deed, that  this  dog  had  bitten  the  defendant,  but  does  not  chum 
that  he  was  killed  in  necessary  self-defense  at  the  time;  nor  do 
we  think  this  necessary,  in  regard  to  dogs  accustomed  to  bite 
mankind.  That  seems  to  be  the  law,  ordinarily,  as  to  dogs 
accustomed  to  chase  game  or  to  bite  cattle:  WeUa  v.  Heady  4  Car. 
&  P.  668;  Vere  v.  Lord  Cawder,  11  East,  668.  But  it  is  said  in 
the  elementary  books  that  in  a  free  warren,  which  is  where  one 
has  the  exclusive  right  to  keep  game,  one  may  kill  a  dog  accus- 
tomed to  chase  the  game  there,  although  at  the  time  not  in  the 
act  of  chasing  game:  WcidhuratY.  Damme,  Cro.  Jao.  46.  But 
the  English  cases  do  not  seem  to  me  to  justify  the  opinion  that 
it  is  necessary  to  show  that  the  killing  a  huge,  ferocious  dog, 
known  to  the  owner  or  keeper  to  be  accustomed  to  bite  mankind, 
can  only  be  justified  on  tbe  ground  that  it  wsa  done  in  immedi- 
ate self-defense.  In  Smith  v.  Pelah,  2  Stra.  1264,  the  chief  jus- 
tice ruled  that  the  master  is  liable  for  all  damage  done  by  such 
a  dog  who  has  once  bitten  a  man,  even  though  it  happened  by 
such  person  treading  on  the  dog's  toes;  **  for  it  was  owing  to  his 
not  hanging  the  dog  in  the  first  instance;  '*  and  it  is  added,  **  the 
safety  of  the  king's  subjects  ought  n'ot  afterwards  to  be  endan- 
gered." This  certainly  looks  veiy  much  like  making  the  dog 
a  common  nuisance,  and  so  such  a  dog  is  classed  by  Mr.  Starkie: 
2  Ev.  736  et  seq.  The  language  of  Tindal,  0.  J.,  in  Sarch  v. 
Blackburn,  4  Car.  &  P.  297,  is  similar;  and  Best,  C.  J.,  in  Blaci> 
mau  V  Simmons,  3  Id.  138,  lays  it  down  as  clear  law  that  one 
who  keeps  such  a  dangerous  animal,  knowing  its  habits,  is 
dearly  guilty  of  ''an  aggravated  species  of  manslaughter,  if 
nothing  more,"  if  the  animal  should  afterwards  kill  any  one^ 


Sept.  1854.]  Pkck  v.  Hibbabd. 

And  wliat  is  said  by  Denmaiit  0.  J.»  in  MnrisY.  NugerU^  82  Eng. 
Com.  L.  636,  is  upon  the  ground  of  the  form  of  the  issue  rather 
than  the  rule  of  hiw.  The  New  York  cases  clearly  treat  such  an 
animal  as  an  outlaw  and  a  common  nuisance,  liable  to  destruc- 
tion: Hinckley  y.  Ihnenon,  4  Cow.  351  [15  Am.  Dec.  883];  Put- 
nam v.  Paynef  13  Johns.  812.  And  this  is  a  doctrine  which  this 
court  is  willing  to  abide  by. 

For  to  say  that  such  a  dog  is  not  the  common  annoyance  and 
terror  of  a  neighborhood  is  to  deny  what  eyeiy  man  Jmows  to 
be  emphaticaUy  true.*  Some  animals  are  common  nuisances  if 
suffered  to  go  at  large»  from  their  known  and  uniform  instincts 
and  proi>enBities,  such  as  lions  and  bears,  and  probably  wolves 
and  wild-cats:  Bull.  N.  P.  76;  King  y.  Euggins,  2  Ld.  Baym. 
1688;  and  domestic  animals,  from  their  ferocious  and  dangerous 
habits  becoming  known  to  their  keepers,  thus  become  common 
nuisances  if  not  restrained.  But  such  an  animal  is  quite  as 
obyiously  within  the  general  definition  of  a  common  nuisance  as 
a  wolf  or  a  wild-cat  or  a  bear,  and  if  allowed  to  go  at  large,  as 
really  deseryes  to  be  destroyed.  If  any  animal  should  be  re- 
garded as  the  common  tenor  of  all  peaceable  and  quiet-loying 
citizens,  it  is  such  a  dog;  and  the  owner  who  persists  in  keeping 
such  an  animal,  without  efBsctually  and  physically  restraining 
him  so  that  he  oan  do  no  one  harm,  ought  not  to  complain  of 
his  destruction.  He  ought  to  be  grateful  to  escape  so;  for  he 
undoubtedly  is  liable  to,  and  justiy  deseryes,  exemplary  punish- 
ment, under  the  criminal  laws  of  the  state;  and  if  one  injured, 
or  liable  to  injury,  chooses  to  right  himself  by  abating  the 
nuisance  only,  he  deseryes  to  be  regarded  as  a  public  bene&otor. 

Judgment  affirmed. 

Febogious  Doo,  Liabiutt  or  Ownir  fob  Injubt  Dokx  bt:  See  ifcC7a«- 
mi  y,  BUioU^  53  Am.  Deo.  706,  note  709,  where  other  oaoee  are  collected] 
Monk  ▼.  t/bnef,  62  Id.  67,  note  70,  and  cues  there  ooUeoted. 

Fkbocious  Doo  Liabia  vo  Do  Ikjubt  is  a  Kuibakgb:  8ee  note  to  Marth 
V,  /onef,  62  Am.  Dea  70. 

The  nuHdPAL  oasb  is  oitkd  in  Blair  y.  IbreMtmd^  100  Man.  141,  to  the 
point  that  dogs  have  always  heen  held  by  American  ooorts  to  be  entitled  to 
leea  regard  and  protection  than  more  harmless  and  useful  domestic  animals. 


Pbok  v.  Hibbabd. 

[90  yBBMO]R,698.] 

pBOiosaoBT  NoTB  Madb  in  Canada  and  Payable  Qbnsballt  is  to  be 
treated  as  a  Canadian  note,  and  the  rights,  duties,  and  obligations  grow- 
ing out  of  it  are  to  be  determined  by  the  laws  of  that  country. 


0M  Peck  v.  Hibbabb.  [Yermonl^ 

Weebm  Masse  or  Gahadiait  Kon  n  Bmovlmxly  Doobabosd  as  Bask- 
SUFT  under  the  Uwi  of  GanadA,  ao  thmt  snoh  diiohAige  would,  if  pleaded 
in  bar.  be  a  good  defense  to  the  note  in  that  ooantry,  it  will  be  equally  m 
bar  to  a  suit  on  the  note  In  Vermont,  whether  the  maker  was  domiciled 
in  Vermont  or  Canada  at  the  time  of  the  diachaige.  Whatever  would 
be  a  good  defense  by  the  laws  of  the  oonntry  where  the  note  was  mads 
and  payable  will  be  a  good  defense  whersYer  and  by  whomsoever  it  may 
be  proseonted. 

Wbibi  Canadian  Kotb  n  Indobsxd  to  CirmN  and  Rbsidbnt  of  Vbr* 
MOKT  after  proceedings  in  bankmptoy  have  been  oommenoed  against  tho 
makef  in  Canada,  in  which  prooeedings  the  note  has  been  presented  and 
allowed,  the  indorsee  takes  tho  note  subject  to  every  defense  existing 
against  his  immediate  indorser,  and  the  dischaige  in  bankruptcy  pleaded 
in  bar  to  a  subsequent  suit  on  the  note  in  Vermont  is  equally  a  flefense, 
whether  the  rule  applicable  to  a  foreign  discharge  in  bankruptcy,  or  the 
rule  applicable  to  a  discharge  under  state  insolvent  Inws,  be  applied. 

Laws  or  Fosuon  Countbt  mxtbt  bs  Plbadsd  and  Pbotsd  as  FAcra. 

Absuxpsit.    The  opinion  states  the  ease. 
W.  W.  Peck,  for  the  plaintiff. 
SmaUey  and  White,  for  the  defendant. 

By  Court,  Ibhax,  J.  The  questions  in  this  ease  arise  upon  a 
demurrer  to  the  replication.  The  action  is  in  asgumpsii  on  a 
promissory  note  dated  March  18, 1848,  executed  bj  the  defend- 
ant and  his  copartner,  and  deliyered  to  the  payee  at  Montreal, 
in  the  province  of  Canada,  in  which  place  the  makers  and  payee 
resided.  The  defense  rests  upon  the  Tslidity  of  a  discluuige  in 
bankruptcy  granted  by  the  courts  in  that  proTincQ,  which  is  set 
forth,  with  the  proceedings  under  which  it  was  obtained,  in  the 
special  pleas  in  bar.  From  the  facts  admitted  by  the  demurrer, 
it  appears  that  the  note  was  indorsed  by  the  payee  to  James  & 
Co.,  and  by  them  to  Messrs.  Pierce  &  Son,  all  of  whom  were 
residents  of  that  province,  and  that  while  the  note  was  in  their 
hands  it  was  presented  to  and  allowed  by  the  court  under  the 
proceeding  in  bankruptcy.  It  also  appears  that  before  the  de- 
fendant's final  discharge,  and  after  the  note  had  matured,  it  was 
transfened  in  this  state  for  a  valuable  consideration  to  the 
plaintiff,  who  was  a  citizen  and  resident  of  this  state,  and  igno- 
rant that  any  proceedings  in  bankruptcy  had  been  commenced, 
or  that  any  defense  whatever  existed  to  the  note.  The  general 
question  arises,  whether  the  defendant's  discharge  is  a  bar  to 
this  suit. 

The  note  is  payable  generally,  that  is,  no  specified  place  of 
payment  is  mentioned.  It  is  therefore  to  be  treated  as  a  note 
of  that  place,  and  the  rights,  duties,  and  obligations  growing 


Sept  1864.]  'tiDCK  V.  Htbbaktx  807 

oat  of  it  are  to  be  determined  by  the  laim  of  that  prcmnoe. 
This  rale»  in  relation  to  notes  payable  generally,  is  given  and 
sustained  by  Justice  Story,  in  his  Conflict  of  Laws,  sections  278, 
817,  832,  848,  in  which  he  observes  that  ^'a  note  made  in 
France,  and  payable  generally,  will  be  treated  as  a  French  note, 
and  governed  accordingly  by  the  laws  of  France,  as  to  its  obli- 
gation and  construction."  In  the  case  of  Ory  v.  Winter,  16 
Hart.  (La.)  277,  the  supreme  court  of  Louisiana  sustained  the 
same  doctrine  as  held  by  Justice  Story,  and  held  that  when  a 
negotiable  note  was  made  in  one  state,  and  was  indorsed  in 
another  state  to  a  citizen  of  the  latter,  the  contract  was  governed 
by  the  law  of  the  place  where  the  note  was  given,  and  not  by 
the  law  of  the  place  where  the  indorsement  was  made.  The 
court  observed  that  **  we  see  nothing  in  the  circumstance  of  the 
rights  of  one  of  the  parties  being  teansferred  to  the  dtizen  of 
another  state  which  can  take  the  case  out  of  the  general  princi- 
ple." This  rule  was  considered  as  the  settled  law  of  England 
and  America:  Slacum  v.  Pomery,  6  Cranch,  221;  De  la  Chau^ 
mette  v.  Bank  of  England,  9  Bam.  &  Cress.  208;  Blanchard  v. 
Eussell,  13  Mass.  1  [7  Am.  Dec.  106];  SmUh  v.  Mead,  8  Conn. 
253  [8  Am.  Dec.  183];  SherriU  v.  Eophins,  1  Cow.  103. 

In  the  case  of  Braynard  v.  Marshall,  8  Pick.  194,  a  diflerent 
rule  was  adopted.  It  was  there  held  that  a  note  payable  gen* 
erally  was  payable  anywhere,  so  that  if  a  note  was  made  in  one 
country  and  payable  generally,  and  was  indorsed  to  a  citizen  of 
another  country,  it  is  to  be  treated  as  payable  to  the  indorsee, 
and  as  a  note  of  the  country  where  he  was  domiciled,  and  not 
subject  to  any  discharge  obtained  under  the  laws  of  the  country 
where  it  was  executed.  That  case  appears  also  to  have  been  sub* 
sequently  recognized  in  Savage  v.  Marah,  10  Met.  594  [43  Am. 
Dec.  450].  In  relation  to  the  case  of  Braynard  v.  MarahaU,  supra. 
Justice  Story  has  remarked  that  ^^  it  is  difficult  to  perceive  the 
ground  upon  which  the  doctrine  of  that  case  can  be  maintained  as 
a  doctrine  of  public  law,  and  that  it  has  never  been  propounded 
in  any  common-law  authoriiy,  nor  ever  been  supported  by  the 
opinion  of  any  foreign  jurist:"  Story's Coufl.  L.,  sees.  844,  345. 
The  soundness  of  this  principle  seems  to  have  been  demonstrated 
hy  him  in  his  treatise  on  conflict  of  laws,  on  a  review  of  the 
authorities  both  English  and  American  as  well  as  foreign.  We 
must  regard  this  note,  not  only  as  having  been  executed,  but 
payable,  in  the  province  of  Canada,  as  much  so  as  if  a  particular 
place  of  payment  in  that  province  had  been  designated  in  the 
body  of  the  note. 


\ 


608  Pick  v.  Htrbabd.'  [Vetmoiiik 

The  ngnlariiy  of  the  proceedings  nnder  whieh  tbe  defendant 
obtained  his  discharge  has  not  been  disputed,  nor  have  the  gen- 
eral provisions  of  the  seyeral  acts  of  the  provincial  parliament 
been  denied  that  in  that  province  the  bankrupt  is  discharged 
from  all  claims  which  were  proved  or  provable  nnder  the  com- 
mission. We  entertain  no  donbt  that  if  this  defendant  had 
been  prosecuted  on  this  note  in  that  province  bj  the  payee  or 
by  the  indorsees  resident  there,  the  discharge  in  bankruptcy, 
which  is  pleaded  in  bar,  would  be  a  good  defense.  We  are 
satisfied  also  that  the  discharge  is  equally  a  bar  to  the  claim  of 
this  plaintiff  on  the  note;  and  that  it  is  immatarial  whether  he 
was  domiciled  in  this  state  or  in  that  province  at  the  time  of 
the  discharge.  Whatever  will  be  a  good  defense  by  the  laws  of 
that  province  where  the  note  was  given  and  payable  will  be  a 
good  defense  wherever  and  by  whomsoever  the  note  may  be 
prosecuted. 

This  rule  depends  upon  those  principles  of  comity  which  one 
nation  is  bound  to  apply  towards  the  lavra  of  another  when  they 
are  brought  into  question.  It  is  in  no  way  affected  by  the  pro- 
visions of  our  constitution,  or  of  any  policy  which  may  arise 
from  the  mutual  relation  existing  between  these  states.  Justice 
Story's  Conflict  of  Laws,  sections  279,  840,  says  that  **the  gen- 
eral rule  is  equally  well  settied,  that  a  defense  which  is  good  by 
the  law  of  the  place  where  the  contract  was  made,  or  vros  to  be 
performed,  ?a  of  equal  validity  in  every  other  place  where  the 
claim  may  be  prosecuted,  whether  it  operates  between  citizens 
of  that  countiy  or  between  a  citizen  and  a  foreigner  or  between 
foreigners."  In  the  case  of  Oreen  v.  SarmientOy  1  Pet.  O.  O.  74, 
Justice  Washington  observed  that  ''the  law  of  the  country 
where  a  contract  is  made  is  the  law  of  the  contract  wherever 
performance  is  demanded,  and  that  the  same  law  which  creates 
the  charge  will  be  regarded  if  it  operate  a  discharge  of  the  con- 
tract." Chancellor  Kent  has  remarked  that  ''the  discharge  of 
a  debtor  under  the  bankrupt  or  insolvent  lavra  of  the  country 
where  the  contract  was  made,  and  in  cases  free  from  partialiiy 
and  injustice,  is  a  good  discharge  in  every  other  countiy,  and 
pleadable  in  bar:"  2  Kent's  Com.  674.  In  Smith  v.  Mead,  3 
Conn.  253  [8  Am.  Dec.  183],  this  doctrine  was  recognized  and 
applied  in  an  action  on  a  note  executed  in  Canada,  and  payable 
generally,  though  the  parties  were  residents  in  New  York.  This 
point  in  the  case  has  not  been  questioned,  whatever  may  have 
been  done  in  a  question  arising  on  a  construction  of  our  consti- 
tution:   Harrison  v.  Edwards,  12  Vt.  661  [36  Am.  Dec.  364); 


8q[>i  1854.]  Pbck  v.  Hibbabd.  600 

DeSoby  t.  2>e Zaisfree,  2  Har.&  J.  198.  The rafhoritiMi in  Eng- 
land are  uniform  in  £he  adoption  of  the  same  rule.  It  was  so 
held  by  Lord  Mansfield  in  BaUanHne  y.  Oolding,  1  Oooke  B.  L. 
487,  and  by  LordEllenborough  in  Potter  v.  Broum^  6  East,  121. 
In  that  case  the  debt  was  contracted  in  Maryland,  where  the  de- 
fendant resided,  and  his  discharge  under  the  bankrapt  law  of  this 
country  passed  in  1800  was  held  valid  against  the  plaintiff,  though 
his  residence  was  in  England.  That  case  has  been  considered  as 
haying  settled  the  law  in  the  English  courts,  and  is  a  decisiTS 
authority  in  sustaining  the  yalidity  of  the  discharge  pleaded  in 
bar  in  this  suit,  even  if  the  plaintiff  had  been  the  owner  of  the 
note  at  the  time  it  was  given,  and  had  his  residence  in  this  state. 

In  the  case  of  Edrrison  t.  Slerry,  6  Oranch,  289,  it  was  held 
that  an  assignment  under  the  banlmipt  law  of  a  foreign  countiy 
can  not  of  itself  operate  as  a  legal  transfer  of  property  in  this 
country,  so  as  to  prevent  an  attachment  of  the  same  by  the 
creditors  of  the  bankrupt  resident  here.  The  principle  of  that 
case,  however,  can  have  no  effect  on  this  question,  as  that  is  a 
mere  question  of  priority,  depending  upon  the  law  of  the  place 
where  the  property  lies,  and  forms  no  part  of  the  contract,  and 
in  no  way  determines  what  shall  be  a  valid  discharge  of  the 
defendant's  liability. 

We  are  satisfied,  upon  principle  as  well  as  authority,  that  ai 
common  law,  when  a  note  is  executed  and  payable  in  a  foreign 
country,  and  a  regular  discharge  in  bankruptcy  has  been  ob- 
tained  by  the  debtor  resident  there,  the  discharge  will  constitute 
a  valid  defense  to  the  note,  wherever  the  creditor  may  be  domi« 
<nled,  or  wherever  the  note  may  be  prosecuted.  The  cases  in 
this  country  in  which  this  subject  has  been  considered  to  any 
great  extent  have  arisen  under  the  insolvent  laws  of  the  differ- 
ent states.  Under  those  laws  the  question  has  arisen  to  what 
extent  such  discharges  are  valid  against  creditors  who  were 
citizens  of  other  states,  and  who  by  no  act  of  their  own  have 
waived  their  extraterritorial  immunity,  and  submitted  them- 
selves or  their  claim  to  the  laws  of  that  state.  Since  the  cases  of 
Sturges  v.  Crouminshield,  4  Wheat.  122,  McMillan  v.  McNeill^ 
Id.  209,  and  Ogden  v.  Saunders,  12  Id.  368,  the  rule  has  been 
generally  adopted  that  a  discharge  under  the  insolvent  laws  of 
a  state  where  the  contract  was  made  will  not  be  considered  a 
valid  discharge  of  a  debt  if  the  creditor  was  a  resident  of  an- 
other state.  Such  laws  are  considered  as  impairing  the  obliga- 
tion of  contracts  when  they  affect  contracts  made  out  of  the 
state,  or  a  citizen  not  a  resident  of  the  state  where  the  discharge 

Am.  nso.  Vol.  LXn— 80 


610  Peck  v.  Htbbartk  [Yennoalk 

Li  gxttntsd.  Juatice  Sioxy  observed  that  "ihoee  oases  htsfB 
arisen  under  the  peooliar  stmotnre  of  the  constitaiion  of  the 
United  States  prohibiting  the  states  from  passing  laws  impair- 
ing the  obligation  of  contracts.  But  in  relation  to  the  doctrine 
of  all  those  cases/'  he  says,  ''  it  is  wholly  inapplicable  to  con- 
tracts and  discharges  in  foreign  countries,  which  must,  there- 
fore, be  decided  upon  general  principles  of  international  law:" 
Story's  Confl.  L.,  sec.  841.  This  difference  between  the  two 
cases  is  apparent;  for  the  l^;ali1y  of  those  acts  of  the  pro- 
vincial parliament  and  their  universaliiy  is  not  affected  or  lim- 
ited by  that  or  any  other  provision  of  our  constitution.  Their 
binding  and  universal  obligation  rests  upon  those  principles  of 
comity  which  convenience  and  commercial  relations  have  in- 
troduced and  established.  Upon  these  principles,  we  think  the 
discharge  granted  in  the  county  where  the  note  was  executed 
and  payable  is  a  valid  defense  in  this  suit. 

We  are  satisfied,  also,  that  the  result  would  be  the  same  if  we 
were  to  apply  to  this  case  the  rule  adopted  in  this  country  in 
relation  to  discharges  under  state  insolvent  laws.  In  the  case 
of  Braynard  v.  Marshall^  8  Pick.  194,  the  insolvent's  discharge 
was  held  inoperative,  on  the  ground  that  the  note  was  indorsed 
to  the  plaintiff,  a  citizen  of  Massachusetts,  before  the  defendant's 
application  was  made  for  his  discharge  tmder  the  insolvent  law 
of  New  York.  The  plaintiff's  right  as  a  creditor,  in  that  case, 
was  perfected  before  the  application  was  made  for  the  debtor's 
discharge.  Parker,  C.  J.,  observed  that  ''at  the  time  of  the 
defendant's  application  for  a  discharge  his  creditor  was  a 
Massachusetts  man,  and  according  to  the  case  of  Baker  v. 
Wheaton,  6  Mass.  509  [4  Am.  Dec.  71],  the  certificate  would  be 
no  bar  to  the  action."  He  further  observed  that ''  a  note  made 
in  New  York  and  indorsed  to  a  citizen  of  Massachusetts  before 
an  application  for  the  benefit  of  the  insolvent  law  ought  not  to 
be  discharged  under  the  process  provided  by  tiiat  law."  It  is 
apparent  from  the  language  of  the  court  that  the  discharge 
would  have  been  operative  if  the  indorsement  had  been  made 
after  the  debtor's  application  for  his  discharge  under  that  law. 
That  principle  will  subject  this  note  to  the  discharge  pleaded  in 
bar  in  this  case.  The  note  now  prosecuted  was  indorsed  to  the 
plaintiff  by  Messrs.  Pierce  &  Son,  long  after  the  proceedings  in 
bankruptcy  had  been  commenced,  and  long  after  the  note  had 
been  presented  and  allowed  under  those  proceedings.  The 
presentation  and  allowance  of  this  note  under  those  proceed- 
ings placed  the  claim  within  the  jurisdiction  and  subject  to  the 


Sept  1854]  Feck  v.  Hibbabd.  811 

action  of  the  court  in  that  province;  and  it  is  not  competent  for 
a  party  to  defeat  the  operation  of  those  hiws  by  a  snbeeqnent 
indorsement  of  the  note  to  a  citizen  of  another  country.  The 
discharge  would  clearly  be  a  defense  to  a  suit  brought  by  Pierce 
&  Son  on  the  note;  equally  so  is  it  to  a  suit  brought  by  this 
plaintifi^.  The  plaintiff,  as  indorsee,  took  the  note  subject  to 
every  defense  existing  against  his  immediate  indorsers.  Whether, 
therefore,  we  apply  the  rule  applicable  to  a  foreign  discharge  in 
bankruptcy,  or  the  rule  applicable  to  a  discharge  under  state 
insolvent  laws,  the  discharge  pleaded  in  bar  is  equally  a  defense 
to  this  suit. 

Objections,  however,  have  been  taken  on  this  demurrer  to  the 
sufficiency  of  the  pleas  in  bar,  and  it  is  insisted  that  they  are 
defective  in  not  properly  setting  forth  the  different  acts  of  the 
provincial  parliament  under  which  the  defendant  obtained  his 
discharge.  These  objections,  we  think,  are  well  taken.  The 
laws  of  that  province  are  foreign  laws,  and  must  be  stated  and 
proved  as  facts.  They  must  be  specially  set  forth  in  the  plea, 
that  the  court  may  judge  whether  the  statutes  and  the  proceed- 
ings under  them  justify  the  discharge.  In  this  respect  the 
pleas  are  defective  on  this  demurrer.  The  case  of  Hempstead  v. 
Read,  6  Conn.  486,  is  decisive  on  this  question.  The  replication 
being  a  sufficient  answer  to  the  pleas,  the  judgment  of  the 
county  court  must  be  reversed. 

On  motion,  leave  to  amend  was  granted  on  the  usual  terms. 


EmcT  OP  FoUbiqv  Dibchabob  in  BAKKBunor.— A  diaohaxge  In  bank- 
rnptcy  from  a  contract,  according  to  the  law  of  the  place  where  it  is  made,  or 
where  it  is  to  be  performed,  is  a  discharge  everywhere,  and  extingaishes  the 
contract.  This  is  a  general  role  of  law  folly  recognized  in  England,  and 
firmly  established  and  generally  recognized  in  the  United  States:  Story's 
Confl.  L.,  sec  835;  2  Kent's  Com.  393;  BaUaniine  v.  Oolding,  1  Cooke  R  L., 
8th  ed.,  487;  HwUer  y.  PoUa,  4  T.  R.  182;  PoUer  v.  Brown,  5  East,  124} 
Sidaway  ▼.  Hay,  3  Bam.  &  Cress.  12;  I\srgtuon  v.  Spencer,  2  Scott  N.  R.  229{ 
Gardiner  v.  HougkUm,  2  Best  &  S.  743;  Odwin  ▼.  Forbes,  Buck,  57;  Qudin  ▼. 
Moiuon,  1  Knapp  P.  a  C.  266;  Bank  qf  Scotland  ▼.  CtUhberi,  1  Rose,  462{ 
Ogden  ▼.  Saunders,  12  Wheat.  213,  260;  Le  Boy  v.  Crowninehield,  2  Mason* 
151,  162;  Blanchard  v.  Buasell,  7  Am.  Dec.  106;  May  v.  Breed,  54  Id.  700; 
Very  ▼.  McHenry,  20  Me.  206;  Long  v,  Ilamnumd,  40  Id.  204,  210;  SherriU 
y.  Hopkins,  1  Cow.  107;  Matter  of  Coates  ds  IHUiard,  12  How.  Pr.  344;  Oly^ 
pkani  ▼.  Atwood,  4  Bosw.  450;  Harris  v.  MandeviUe,  2  Yeates,  OO. 

In  the  case  of  Potter  y.  Brown,  5  East,  130,  Lord  EUenborough,  C.  J.,  saidt 
"  The  role  was  well  laid  down  by  Lord  Mansfield  in  BaUantine  y.  OoHding^ 
supra,  that  what  is  a  discharge  of  a  debt  in  the  country  where  it  was  con- 
tracted is  a  dischax^e  of  it  everywhere.  And  that  principle  was  recognised 
In  Hunter  v.  Potts,  supra.  Now  this  debt  arose  oat  of  a  contract  in  America. 
The  debt  was  incurred  there  for  which  the  bill  was  given.    The  bill  was 


\ 


61S  Pmk  v.  HiBBABa  [Yermanl^ 

dnwii  ia  Amukm  upon  a  penoo  in  EDgUnd;  bnt  not  hnving  been  aooepiad, 
the  {Murtict  stood  on  their  origuud  rights,  npon  a  ooDtract  made  in  AnMriet, 
for  which  a  aecnrity  was  there  agreed  to  be  taken,  upon  the  faith,  indeed, 
that  it  woald  be  accepted  and  paid  in  England;  bnt  of  which  there  has  beeo 
no  performanoe.  No  Kiglish  id  has  been  done  to  alter  the  sitoiitian  of  the 
parties;  even  the  notioe  of  the  non-perfonnanoe,  which  is  one  of  the  droom- 
stances  on  which  the  implied  ataun^^mU  is  founded,  must  haTe  been  given  in 
America,  where  the  parties  are  stated  to  have  resided  when  the  bill  was  given, 
and  when  the  bankruptcy  happened,  and  nothing  appearing  to  show  that 
they  ever  changed  their  residenoe.  Then  if  the  bankruptcy  and  certifioata 
would  haTe  been  a  discharge  of  the  debt  in  America,  which  it  clearly  wouU, 
it  must,  by  the  comity  of  the  law  of  nations,  recognised  in  the  cases  I  have 
mentioned,  be  the  same  here."  In  this  case  the  defendant  had  been  dis- 
charged under  the  United  States  bankrupt  act  of  1799.  The  principles  upon 
which  the  rule  above  stated  is  based  are  so  ably  and  fully  elnoidatBd  by  Chief 
Justice  Shaw,  in  delivering  the  opinion  of  the  supreme  court  of  ATassauhusutlB 
in  the  case  of  Moff  t.  Breeds  M  Am.  Deo.  700^  that  it  is  only  necenary  to  refer 
to  that  case  for  a  full  discussion  of  the  subjectb 

In  several  of  the  cases  in  which  the  rule  under  consideration  was  applied 
stress  was  laid  upon  the  circumstance  that  one  or  both  of  the  parties  were 
domiciled  in  the  state  or  country  in  which  the  contract  was  made  or  was  to 
be  performed.  Bui  Sutherland,  J.,  delivering  the  opinion  of  the  court  in 
Sh^rriU  V.  Hopkim,  1  Cow.  107,  after  commenting  upon  those  cases,  said: 
"All  these  cases  stand  upon  a  principle  entirely  independent  of  that  circum- 
stance. It  is  that  of  the  lex  loci  cofUreuUua:  that  the  law  of  the  place  where 
the  contract  is  made  must  govern  the  construction  of  the  contract^  snd  tiuift 
whether  the  parties  to  the  contract  are  inhabitants  of  that  place  or  not.  The 
rule,  I  apprehend,  is  not  founded  upon  the  allegiance  due  from  citiaena  or 
aubjects  to  their  respective  governments,  but  upon  the  presumption  of  law 
that  the  parties  to  a  contract  are  connusant  of  the  laws  of  the  country  where 
the  contract  is  made;  that  it  is  made  with  reference  to  those  laws,  and  that 
they  therefore  form  a  part  of  the  contract." 

The  discharge  is  a  bar  to  an  action  on  a  daim,  whether  the  parties  were  or 
were  not  residents  of  the  country  in  which  it  was  granted,  and  whether  the 
daim  was  proved  under  the  proceedings  in  bankruptcy  or  not.  Of  course  the 
case  is  the  stronger  when  all  the  parties  are  residents  of  the  country  in  which 
the  dischaige  is  granted,  and  the  claimants  have  actually  proved  their  daima 
and  received  their  dividends  under  the  proceedings  in  bankruptcy.  In 
Matter  qf  CoaieB  A  IJilUardf  12  How.  Pr.  350,  Johnson,  J.,  delivering  the 
opinion  of  the  New  York  court  of  appeals,  said:  "The  question  is  then,  I 
think,  narrowed  to  this,  whether  the  debt  of  Ooates  &  Hilliard  to  their 
petitioners  was  extinguished  by  their  discharge  in  bankruptcy.  The  debton 
and  creditors  were  all  subjects  of  Great  Britain,  and  domiciled  in  England; 
the  debt  was  English  in  its  origin,  and  the  creditors  have  received  their  divi- 
dend under  the  English  bankruptcy.  Under  such  circumstances,  I  am  not 
aware  that  it  has  ever  been  denied  that  a  discharge  of  the  debt  was  valid, 
and  to  be  respected  in  all  other  countriea  "  But  in  May  v.  Breeds  54  Am.  Dec 
700,  the  plaintiffs  were  residents  of  Boston,  and  had  not  proved  their  debt 
nor  received  sny  dividend  in  the  English  bankruptcy  proceeding;  yet  the 
discharge  granted  to  the  defendant  in  England  was  hdd  to  be  a  bar  to  an 
action  brought  in  Massachusetts:  See  also  OlypfuuU  v.  Atwood,  4  Bosw. 
469.  In  the  caseof  Gardiner  v.  HmighUm^  2  Best  &  S.  743,  it  was  held  thai 
where  a  debt  was  oontracted  in  the  oolony  of  Victoria  and  payable  thers^  • 


Sept  1864]  Pick  v.  Hibbabd.  618 

discharge  nnder  the  benknxpt  act  of  that  oolony  was  a  bar  to  an  action  in 
England.  In  the  oaae  of  QwUn  t.  Moimm^  1  Enapp  P.  C.  C.  960»  it  waa 
decided  that  a  bankrapt  who  had  aaeigned  hla  property  under  a  Frendh  oom- 
miBaion  could  not  afterwards  besoed  in  a  British  ooort  by  oneof  the  creditors 
for  a  debt  proved  under  the  French  oommission, 

DisoHABOB,  WHEN  HOT  Bab  TO  AoTiov.~A  discharge  In  bankmptqr  ob- 
tained in  a  foreign  oonntry,  in  which  the  contract  was  not  made  or  was  not  to 
be  performed,  is  not  a  bar  to  an  action  in  the  coorti  of  the  oonntry  where  the 
contract  was  made  or  was  to  be  performedi  SrnUh  ▼.  Buchaman,  1  East,  6{ 
-LevM  T.  Owen,  4  Bam.  &  Aid.  6M;  PhUl^  ▼.  Alkm,  8  Bam.  &  Cress.  477; 
BaHley  ▼.  Hodges,  1  Best  &  S.  375;  MeMUUm  t.  MeHem,  4  Wheat.  209; 
JHwnroe  v.  ChiUleamme,  3  Keyes,  30;  S.  C,  3  Abb.  App.  Dec  334.  In  the  case 
of  Smith  ▼.  Buchanan,  5  East,  6,  the  defendant  pleaded  in  bar  to  the  action 
a  discharge  in  insolvency  granted  to  him  in  the  state  of  Maryland. 
The  discharge  was  held  not  to  be  a  bar,  and  Lord  Kenyon,  C.  J.>  in  deliyer- 
ing  his  opinion  in  that  case,  said:  '*  It  is  impossible  to  say  that  a  contract 
made  in  one  conntry  is  to  be  goTemcd  by  the  laws  of  another.  It  might  as 
well  be  contended  that  if  the  state  of  Maryland  had  enacted  that  no  debts 
dne  from  its  own  subjects  to  the  subjects  of  Englsnd  should  be  paid,  the  plaint- 
iff would  have  been  bound  by  it.  This  is  the  case  of  a  contract  lawfully  made 
by  a  subject  in  this  country,  which  he  resorts  to  a  court  of  justice  to  enforce; 
and  the  only  answer  given  is,  that  alaw  has  been  made  in  aforeign  country  to 
discharge  these  defendants  from  their  debts  on  condition  of  their  having  re- 
linquished all  their  property  to  their  creditors.  But  how  is  that  sn  answer 
to  a  subject  of  this  country  suing  on  a  lawful  contract  made  here  ?  How  can 
it  be  pretended  that  he  is  bound  by  a  condition  to  which  he  has  given  no  as* 
Mnty  either  express  or  implied  ?  *'  In  the  case  of  Munroe  v.  OuiUeaMme,  S 
Keyes,  30;  S.  C.,  3  Abb.  App.  Dec  334,  it  appeared  affirmatively  that  the 
plaintifis  were  not  subjects  of  Great  Britain,  and  it  did  not  appear  that  they 
had  ever  voluntarily  become  parties  to  the  proceedings  in  bankruptcy  in  Eng- 
land, or  that  they  had  ever  received  any  dividend  under  the  English  bank- 
ruptcy actk  and  it  was  decided  that  under  these  drcumstances  the  discharge 
in  bankraptcy  granted  in  England  was  not  a  bar  to  their  action  in  New  York. 
In  Prentise  v.  Savage,  13  Mass.  20,  it  was  decided  that  a  temporary  insolvent 
law  of  Jamaica,  by  which  debtors  were  released  from  all  demands  ageinst 
them  on  surrendering  their  effects  for  the  benefit  of  their  creditors,  soch 
offiBcta  to  be  distributed  only  among  such  creditors  as  should  apply  within 
thirty  days  after  public  notice  of  such  surrender,  was  never  intended  to 
operate  beyond  the  jurisdiction  of  the  government  where  it  was  enacted,  nor 
to  have  respect  to  such  creditors  as  might  be  living  in  other  countries.  And 
a  discharge  under  this  law  was  held  not  to  bea  bar  to  an  action  In  Massachu- 
setts. 

Tkb  FBoroiFAii  oaan  is  oktbd  in  Cfraham  v.  Ihrtt  NtUUmal  Bamk  qf  If  or" 
/M,  84  N.  Y.  401,  to  the  point  that  a  defense  or  discharge  good  by  the  law 
of  the  place  where  the  contract  is  made  or  to  be  performed  is  to  be  held,  in 
most  cases,  of  equal  validity  elsewhere;  in  Brighton  Market  Batik  v.  Meriek, 
11  Mich.  416,  to  the  pomt  that  a  note  payable  generally  is  subject  to  the  law 
«l  the  place  where  it  first  became  operative,  unless  a  different  rule  is  deduoi- 
ble  from  its  terms;  and  in  PaJIfrey  v.  Poriumd,  8.AP.  R.  B.  Co.,  4  Allen, 
f6»  to  the  point  that  foreign  laws  must  be  pleaded. 

FoBnov  Laws  mttst  bx  Pbotkd  mb  Fion:  See  Bt^fcrd  t.  MolUmamf  61 
Am.  Dec  228,  note  230. 


614       Nklson  v.  Yermomt  b  Canada  R  R  Oa  [VeriDODt^ 

Nelson  v.  Yebmont  &  Canada  R  R.  Go. 

p6  TiainniT,  717.] 

LlGISLATUIUE  ICAT  BT  GbKSRAL  LaVS  ImFOBB  KsW  BcrBOIHS  OV  B.AnJMUP 

CoMPAViBB,  in  addition  to  thoae  imposed  by  their  charten»  when  Biieh 
bnrdenB  are  oondnciTe  to  the  pablio  interests  and  safety. 
Railboad  Gompant  18  LiABLB  FOB  AcTs  OP  ITS  TiBMBBB  who  BTS  mnniog 
its  road  nnder  a  long  lease. 

Tbbspabb  on  £he  case  for  killing  the  plaintiff's  cow.  The  kill- 
ing of  the  cow  was  alleged  to  have  happened  through  the 
neglect  of  the  defendants  to  fence  their  road,  and  to  erect  suffi- 
cient cattle-guards.    The  other  facts  appear  from  the  opinion. 

B.  H,  SmaUey^  for  the  defendants. 

Stevens  and  Edson,  for  the  plaintiff. 

By  Court,  BEDFiELDy  C.  J.  A  question  of  importance,  and 
oft^  of  considerable  difficulty,  is  made  in  this  case:  whether 
and  to  what  extent  it  is  competent  for  the  legislature,  by  gen- 
eral laws,  to  impose  upon  railroads  new  and  additional  burdens, 
not  contained  in  their  charters,  after  they  have  gone  into  opera- 
tion. The  charter  of  this  company  requires  them,  in  general 
terms,  to  fence  their  road  upon  both  sides  where  a  fence  may  be 
requisite  for  the  owners  or  occupants  of  the  adjacent  places,  and 
to  make  suitable  and  safe  farm-crossings.  The  general  railroad 
act  of  1850  requires  all  roads  in  the  state,  in  addition  to  fencing 
and  making  farm-crossings,  "  to  construct  and  maintain  cattle- 
guards  at  all  farm  and  road  crossings,  suitable  and  sufficient  to 
prevent  cattle  and  animals  from  getting  on  the  railroad."  We 
think  it  might  be  fairly  said  that  cattle-guards  are  necessarily 
implied  in  fencing  a  railroad  and  making  proper  and  safe  farm- 
crossings.  But  we  know  that  in  practice  it  is  not  always  done, 
perhaps  not  generally.  It  may  be  proper,  therefore,  for  the 
courts  to  consider  the  general  power  of  the  legislature  over  these 
corporations  after  they  have  obtained  their  charters  and  gone 
into  operation,  in  regard  to  such  matters. 

It  is  certain,  we  think,  that  the  legislature  can  not  impose 
new  burdens  upon  corporations,  under  such  circumstances, 
which  are  merely  and  exclusively  of  private  interest  and  con- 
cern, and  which  have  nothing  to  do  with  the  general  security, 
quiet,  and  good  order.  But  there  can  be  no  doubt  they  have 
the  same  right  of  general  legislation  over  these  corporationi 
which  they  have  over  natural  persons.  By  general  laws  they 
may  require  them  to  conform  to  such  regulations  of  a  polios 
character  as  they  may  deem  for  the  security  of  the  rights  of  the 


SepL  1854]  Nelson  v.  Yebmont  &  Canada  R  R  Oa     615 

cituens  generally^  and  most  conduoiTe  to  quiet  and  good  order, 
and  the  seonxity  of  properly,  and  eren  the  life  of  animalB.  For 
this  latter  is  a  subject  to  which  the  legislation  of  the  British 
parliament,  and  of  this  and  most  of  the  American  states,  has 
always  extended  in  the  form  of  penal  restrictions.  And  if  the 
running  of  railroads,  under  present  restrictions,  was  found 
cruelly  and  recklessly  destructiYe  eyen  of  the  lives  of  domestio 
animals,  it  would  be  strange  if  the  legislature  could  not  inter- 
fere upon  the  general  maxim  that  every  one  shall  be  bound  and 
required  sic  utere  iuo  vi  aUenum  non  lasdas. 

The  subject  of  division  fences  between  adjoining  proprietors 
has  always  been  regarded  as  under  the  control  of  the  legisla- 
ture. There  is  no  doubt  they  may  alter  the  laws  upon  that  sub- 
ject so  as  to  require  fences  to  be  built  higher  than  is  now 
required  by  law,  which  would  no  doubt  be  imposing  an  addi* 
tional  burden  upon  the  adjoining  proprietors.  And  this  matter 
of  fences  and  cattle-guards  and  farm-crossings  between  the 
railroad  company  and  the  proprietors  of  land  is  much  the  same 
thing  as  the  division  fence  between  adjoining  proprietors.  But 
the  reason  for  allowing  an  interference  in  the  case  of  railroads 
is  far  more  striking  and  obvious,  in  the  instance,  but  the  same 
in  principle,  probably,  as  that  of  other  adjoining  land-owners. 
And  there  is  an  additional  ground  of  allowing  the  legislature 
the  right  to  control  this  matter,  which  probably  does  not  affect 
the  present  case,  but  which  is  included  in  the  general  subject. 
I  refer  to  the  great  necessity  of  stringent  regulations  to  exclude 
cattle  from  the  railroads  for  the  security  of  travelers  and  the 
operatives  upon  such  roads.  To  deny  the  legislature  the  con- 
trol of  the  railroads  in  the  state  in  regard  to  fencing,  both  as 
to  the  fact  and  the  mode  of  execution,  would  be  to  deny  one  of 
the  most  important  and  indispensable  powers  in  regard  to  the 
regulation  of  the  police  of  the  state,  the  denial  of  which  would 
be  likely,  in  the  long  run,  to  prove  quite  as  detrimental  to  the 
railroads  as  to  the  public.  And  it  is  precisely  analogous  to  those 
compulsoxy  requisitions  which  the  legislature  in  this  state  have 
always  been  accustomed  to  control  as  to  common  highways  and 
with  reference  to  natural  i>ersons.  For  a  long  time,  and  until 
1840,  land-owners  were  required  to  maintain  legal  fences  adjoin- 
ing the  highways,  in  order  to  justify  making  distress  of  cattle 
damage-feasant.  Since  that  time  they  have  not  been  required 
to  fence  adjoining  the  highway,  and  now  all  persons  are  for- 
bidden to  let  their  cattle,  etc.,  run  in  the  highway,  which  proba- 
bly was  intended,  off  the  land  of  the  owner;  for  to  that  extent 


n9       NxLsoir  u  YxBMOin*  is  Oak ada  R  R  C!o.  [YennoBl^ 

it  is  qnestioiiable  how  hx  the  l^slatare  eould  prohilat  the  pro- 
prietor from  depasturing  the  herbage  with  his  cattle;  bat  on- 
donbtedly  thej  maj  require  him  to  keep  his  cattle  at  home,  as  was 
always  the  common  law,  or  they  may  require  him  to  fence  in  the 
highway,  and  in  any  mode  they  deem  necessary  and  expedient. 
And  so  equally  may  they  do  in  regard  to  ndlways. 

There  are  many  other  matters  of  a  similar  chancter  which  are 
connected  with  the  secnriiy  of  life  and  property,  to  which  I  refer 
by  way  of  illustration  merely,  and  the  power  of  which  has  never 
been  seriously  questioned  as  residing  in  the  legislature.  For 
inaiance,  putting  up  sign-boards  cautioning  trayelers  of  a  rail- 
foad-crossing,  ringing  the  bell,  or  blowing  the  whistle  at  sudi 
croesingB.  And  it  has  not  been  doubted  but  the  legislature 
might  require  nulroads  to  pass  all  common  highways  either 
above  or  below  grade,  or  to  come  to  a  dead  stop  before  passing 
stations  with  express  trains,  as  is  required  of  all  trains  in  Oon- 
necticut  before  passing  draw-bridges;  or  to  keep  men  stationed 
with  signals,  in  sight  of  each  other,  as  is  done  upon  some  roads, 
as  one  of  their  own  police  regulations,  or  not  to  run  above  a  given 
rate  of  speed,  or  not  to  run  locomotives  in  frequented  places, 
and  all  similar  regulations,  obviously  pertaining  to  the  police  of 
such  corporations,  and  sensibly  affecting  the  security  of  publio 
travel  and  the  quiet  and  comfort  of  common  life  to  an  indefi- 
nite extent.  And  these  are  all  of  a  similar  character  to  the  one 
under  consideration. 

We  need  not  probably  illustrate  this  subject  further  to  render 
it  obvious  to  all  minds.  But  the  acknowledged  legislative  con- 
trol over  banks  whidi,  like  railroads,  partake  somewhat  of  a 
publio  character,  although  based  upon  private  stock,  will  per- 
haps throw  some4ight  upon  it.  There  is  no  doubt  that  exist' 
ing  banks  may  be  restricted  by  general  laws  from  issuing  bills 
of  a  given  denomination,  as  has  sometimes  been  done  in  regard 
to  small  bills,  or  from  dealing  in  particular  securities  deemed 
detrimental  to  publio  security,  as  bills  on  time  or  payable  in 
stocks  on  time,  or  in  bills  of  other  banks  below  par,  or  that  they 
might  be  even  limited  in  regard  to  discounts,  and  interest,  even, 
by  general  law,  as  was  done  in  many  of  the  states  in  former 
thnes  of  commercial  distress.  But  the  legislature  could  not 
require  such  banks  to  discount  at  all,  or  not  to  take  interest,  or 
to  remit  a  portion  of  their  debts,  or  to  suspend  the  collection  of 
tliem,  or  to  take  pay  in  goods,  or  land,  at  the  appraisal  of  men. 
Tkis,  even,  was  attempted  in  some  of  the  states,  but  was  held  ta 
be  a  violation  of  the  vested  rights  of  such  oozpoxatums.    Tli# 


Dec  1854]  E^csbson  v.  Patbidgi.  617 

• 

proper  distinoiioii  is  between  what  is  neoeflsary  tor  the  pablio 
securiiy  and  what  is  meielj  of  the  private  concern  of  snch  cor- 
porations, and  no  way  affecting  the  public  security,  and  essen- 
tial to  their  own  corporate  functions. 

As  to  the  liability  of  the  defendants  for  the  acts  of  their 
lessees,  who  were  running  the  defendants'  road  under  a  long 
lease,  we  think  there  can  be  no  doubt.  Unless  we  can  hold  the 
defendants  thus  liable,  they  might  put  their  road  into  the  hands 
of  corporations  or  indiTiduals  of  no  responsibility.  It  was  on 
this  ground  that  the  English  courts  denied  the  legality  of  one 
road  leasing  itself  to  another  or  to  private  persons,  and  the  con- 
sequent loss  of  securiiy  to  the  public,  without  consent  of  parlia- 
ment: Beman  v.  Bufford,  6  Eng.  L.  &  Eq.  106;  Oreai  Northern 
BaOway  Co.  t.  The  Eaetem  O.  B.  Oo.,  12  Id.  224;  Winch  t.  Birh- 
enheady  L.  S  O,  J.  B.  Co.,  13  Id.  606.  The  lessors  must,  at  all 
events,  be  held  responsible  for  just  what  they  expected  the  lessees 
to  do,  and  probably  for  all  which  they  do  do,  as  their  general 
agents.  For  the  public  can  only  look  to  that  corporation  to 
whom  they  have  delegated  this  portion  of  public  service.  Cer- 
tainly they  are  not  bound  to  look  beyond  them,  although  they 
doubtless  may  do  so.  The  lessors  should  see  to  it  that  their 
road  is  properly  fenced  before  they  suffer  it  to  be  run  by  any 
one. 

Judgment  aflSrmed. 

Lebseb  or  Bailboad,  wbbv  Lubls  fob  Injitbt:  See  Lii{/Uld  y.  (Hd  Cckmp 
B.  B,f  tjfj  Am.  Deo.  124,  note  128. 

LsonLATUBI  MAT  BT  GbNBBAL  LaW8  RbOITLATB  OOBPOBAnOHB  IB  fhe  ei- 

«eiae  of  their  fnmohiiee,  so  as  to  pioyide  for  the  publio  sslety:  See  Oakma  A 
O,  N,  B,  B,  Oo.  ▼.  Loomi$y  66  Am.  Deo.  471,  note  474,  where  other  oises  sre 
ooUeoted. 

Kaiukoad  Oompaht  is  Liable  fob  Nioliobnob  of  m  Lbssbbs:  Peoria  A 
B.  L  B.  B.  Co.  T.  Lane,  83  El.  450;  AbboU  v.  Johnstown,  O.  ^  K.  H,  B.  J?. 
Co.,  80  N.  Y.  30;  S.  C,  36  Am.  Bep.  674;  BaUroad  Oo.  t.  Barron,  6  WalL 
104|  sU  oitlng  the  priacipal 


Embbson  t;.  PATBn)o& 

[97  TssmuiT,  8.1 

Law  or  Svaxb  WmoB  Drbbxibbs  Oblmatiob  or  Cobibacv  Qoffm 
LiABiUTT  OF  Makbb  OF  Pbomissobt  Notb  Aod  of  the  perm  to  whoai 
he  is  lisble,  whether  the  payee,  indorsee,  or  ereditor  imder  attschmsnl 


Kaxxr  or  PioioaBOBT  Kotb  Bxboutbd  akd  Madb  Patablb  nr  Vb»- 
MMiT  n  Okabobabui  as  Tburbb  of  the  pagFee^  in  Imstue  piewss,  m 


618  Emerson  v.  Patridoe.  [Vennoiitk 

agalnrt  an  indorsee  who  fails  to  notify  the  trostee  of  the  tnosfer  befoie 
sendee  of  the  process,  although  by  the  laws  of  the  state  where  the  payee 
and  the  indorsee  reside  promissory  notes  are  exoepted  from  the  opera- 
tion of  the  trostee  process. 

Tbubteb  process.  Patridge,  the  trustee,  who  resided  at  Bur- 
lington, Vermont,  had  forwarded  to  Johnson,  the  principal  de- 
fendant, at  Boston,  Massachusetts,  his  promissory  note,  in  set- 
tlement of  a  balance  due  on  an  account,  which  note  was  dated 
at  Burlington,  and  made  payable  to  Johnson,  or  order,  at  the 
Commercial  Bank  in  that  place.  The  note  was  transferred  to 
the  claimants,  Reynolds  &  Oo.,  at  Boston,  before  maturity,  but 
they  neglected  to  notify  Patridge  of  the  transfer  until  after  ser- 
vice of  the  trustee  process.  Reynolds  &  Co.  claimed  that,  being 
citizens  of  Massachusetts,  the  note  was  not  subject  to  attach- 
ment by  trustee  process,  and  that  no  notice  of  transfer  was  nec- 
essary. The  lower  court  held  that  the  trustee  was  not  charge- 
able for  the  amount  due  on  the  note.    Exceptions  by  the  plaintiff. 

Charge  F.  Edmunds^  for  the  plaintiff. 
Phelps  and  ChiUenden,  for  the  claimants. 

By  Court,  Isham,  J.  The  trustee  acknowledges  the  execution 
of  the  note  mentioned  in  his  disclosure,  and  his  indebtedness 
upon  it  in  the  sum  of  three  hundred  dollars.  The  plaintifl 
claims  the  amount  due  thereon  under  this  attachment.  The 
claimants  insist  that  the  note  belongs  to  them,  as  it  was  indorsed 
to  them  by  the  payee  at  Boston,  in  Massachusetts,  where  they, 
as  well  as  the  payee  and  the  principal  defendant,  reside.  It 
appears  from  the  case  that  the  note  was  executed  in  this  state; 
that  it  was  payable  here  at  the  Commercial  Bank  in  Burlington, 
and  that  it  was  indorsed  at  Boston  to  the  claimants  before  its 
maturity;  but  that  no  notice  was  given  to  the  trustee  until  after 
the  service  of  this  trustee  process. 

If  this  note  is  subject  to  the  laws  of  this  state,  it  is  quite 
obvious  that  the  plaintiff  is  entitled  to  a  judgment  against  the 
trustee.  The  fact  that  no  notice  of  the  transfer  was  given  to 
the  trustee  before  the  service  of  tliis  process  subjects  the  claim 
to  this  attachment,  the  same  as  if  no  transfer  had  been  made. 
The  compiled  statutes,  262,  section  46,  and  the  decisions  in 
this  state  on  that  subject,  an  express  and  specific  to  that  effect: 
Barney  v.  DaagloM,  19  Yt  98;  BriiUm  v.  PresUm,  9  Id.  267; 
Ohaae  v.  Eaughton,  16  Id.  694;  Ward  v.  Jforriwm,  26  Id.  693. 
By  the  laws  of  Massachusetts,  where  this  note  was  indorsed,  all 
negotiable  notes  are  exoepted  from  the  operation  of  the  tmstee 


Dec  1854.]  Ekebsov  v.  Patbiixa  619 

process,  and  no  person  can  be  adjudged  trustee  for  baTing  made 
or  indorsed  any  negotiable  bill,  note,  draft,  or  other  seonxiiy: 
B.  8.  647,  sec.  80.  If  the  rights  of  these  parties  are  to  be 
determined  hy  the  laws  of  that  state,  the  note  can  not  be 
held  by  the  plaintiff  under  this  attachment.  Whether  this  note 
is  subject  to,  and  the  rights  of  these  parties  are  to  be  deter- 
mined by,  the  laws  of  this  state  or  that  of  Massachusetts  is  the 
question  arising  in  the  case. 

If  this  note  had  been  executed  in  Massachusetts,  though  no 
place  of  payment  had  been  specified  in  the  note,  yet  as  the 
payee  resided  there  it  would  have  been  subject  to  the  laws  of 
that  state,  and  the  maker  could  not  have  been  charged  as  trustee 
of  the  payee  in  this  state:  Baylies  t.  EoughUm,  15  Yt.  626. 
The  rule  would  be  the  same  if  the  note  had  been  made  payable 
in  that  state,  though  executed  in  this  state  and  by  a  person  resi* 
dent  here.  The  same  principle  applies  to  debts  not  negotiable. 
They  are  treated  as  debts  of  the  state  where  the  creditor  resides, 
and  are  subject  to  its  laws.  Such  was  the  case  of  Vanbuskirk 
V.  ffart/ard  Ins.  Co.,  14  Conn.  583  [36  Am.  Dec.  473].  The 
debt  in  that  case  was  contracted  in  New  York,  and  the  claimant 
haTing  perfected  his  title  to  it  by  an  assignment  valid  under 
the  laws  of  that  state,  it  was  held  that  the  claim  could  not  be 
attached  by  a  trustee  process  in  Connecticut,  where  the  trustee 
resided.  The  case  of  Ward  y.  Morrison^  supra,  is  of  the  same 
character. 

As  a  general  rule,  "  debts  have  no  locaUly  or  sUus:"  2  Eent^i 
Com.  570, 628;  Story's  Confl.  L.  362, 883, 899.  Yet  the  doctrine 
is  well  established  that*  they  so  &r  follow  the  person  of  the 
owner  that  they  are  payable  where  he  resides,  and  are  governed 
by  the  laws  of  that  place.  When  the  debts  are  transferred,  the 
law  of  the  transfer  is  the  law  of  the  place  where  the  debts  are 
payable.  The  liability  of  tlie  maker,  and  the  person  to  whom 
he  is  liable,  whetlier  the  payee,  indorsee,  or  creditor  under  an 
attachment  by  a  trustee  process,  is  to  be  determined  by  the 
laws  of  the  state  which  determines  the  obligation  of  tlie  con- 
tract. This  rule,  we  think,  must  determine  the  case  under 
consideration. 

This  note  was  executed  and  made  payable  in  this  state.  The 
parties,  by  making  the  note  payable  here,  have  by  their  express 
stipulation  subjected  the  note,  and  their  rights  under  it,  to  the 
laws  of  this  state.  The  trustee  is  indebted  on  the  note,  and  ia 
obligated  to  pay  it  to  the  payee  or  his  indorsee ,  prorided  it  is  not 
attached  by  some  creditor  of  the  payee  belore  he  has  notioe  of  tlie 


8flO  Emerson  v.  Tatkwge.  [Yermont^ 

transfer.  If  it  is  so  attached,  he  is  bound  by  Liw  to  pay  it  to 
that  creditor.  That  is  as  mnch  a  part  of  his  obligation  as  if  it 
had  been  specified  in  the  body  of  the  note  itself.  The  indorse- 
ment of  the  note,  in  the  language  of  Justice  Stoiy,  **  does  not 
create  a  new  contract  between  the  maker  and  the  indorsee  in 
the  place  of  the  indorsement.  It  is  but  a  substitution  of  the 
indorsee  for  the  payee,  and  transfers  oyer  the  old  liability:" 
Story's  Confl.  L.,  sees.  817,  844.  This  claimant,  when  he 
took  the  note,  is  presumed  to  haye  known,  and  is  chargeable 
with  the  knowledge,  that  such  was  the  character  of  the  claim, 
and  of  the  maker's  liability.  The  note  is  rendered  negotiable, 
subject  to  that  qualification.  In  whatever  state  or  country  the 
indorsee  may  prosecute  the  note,  his  title  to  it,  as  against  the 
creditors  of  the  payee  whose  claim  n^sts  on  an  attachment  by 
this  process,  is  to  be  determined  by  the  laws  of  this  state.  In 
Ohitty  on  Bills,  p.  218,  it  is  said  that  ''  if  a  bill  or  note  is 
drawn  or  transferred,  or  is  payable,  in  a  foreign  country,  it  is 
essential  for  the  holder  to  be  well  informed  of  the  laws  of  that 
country  relating  to  the  transfer  of  bills."  That  information 
would  not  be  essential  if  the  right  of  the  indorsee  to  the  note 
was  to  be  determined  by  the  laws  of  the  place  where  the  in- 
dorsement was  made;  but  as  it  is  to  be  perfected  and  his  claim 
held  subject  to  the  law  of  the  place  where  the  note  was  made 
and  is  payable,  that  information  becomes  essential,  as  he  deziyes 
no  title  or  claim  to  the  note  but  such  as  is  given  by  the  law  of 
that  place. 

This  doctrine  has  been  recognized  in  Massachusetts.  In  the 
ease  of  ffall  v.  Blake,  18  Mass.  158,  the  defendant  executed 
his  notes  at  Augusta,  in  Gteoigia.  The  maker  and  payee  re- 
sided in  that  state.  The  notes,  being  payable  generally,  were 
treated  as  payable  there.  Before  the  maturity  of  the  notes 
they  were  attached  in  that  state  under  the  process  of  foreign 
attachment,  at  the  suit  of  one  Fisk;  and  before  that  period  also 
they  had  been  indorsed  to  the  plaintiff  at  Providence,  in  Rhode 
Island.  In  that  case  the  plaintiff,  who  stood  in  the  same  posi- 
tion as  the  claimant  in  this  case,  claimed  the  note  as  being  an 
indorsee  in  a  state  where  such  notes  are  exempt  from  such  at- 
tachments. The  claim  was  resisted  on  the  ground  that  the 
creditor  had  perfected  his  claim  to  it  under  the  law  of  the  state 
where  the  notes  were  given  and  were  made  payable,  and  where 
hy  the  laws  of  that  state  the  creditor  had  recovered  his  judg- 
ment.  Ohief  Justice  Parker  obserred  that  "  the  notes  were 
dated  at  Augusta,  in  the  state  of  Georgia;  and  fhsi  ilie  plaioi* 


Deo.  1854.]  Emebson  v.  Patbidgb.  921 

iff  when  taking  fhem  as  his  property  must  be  presnmed  to  haye 
known  that  they  were  made  with  reference  to  the  laws  of  that 
place;  and  a  law  providing  that  any  creditor  of  the  promisee 
may  compel  the  promisor  to  pay  the  debt  to  him,  notwithstand- 
ing the  evidence  of  its  negotiable  quality,  would  have  the  effect 
to  protect  him  from  a  second  payment.  Such  a  provision  would 
be  contrary  to  the  effect  generally  given  to  negotiable  securities 
in  any  mercantile  countiy,  but  if  the  law  be  so,  it  must  have  its 
operation  up6n  the  contract  wherever  it  may  be  sued,  because 
the  laws  of  the  place  whexe  the  contract  is  made  necessarily 
make  a  part  of  the  contract,  and  are  understood  as  its  govern- 
ing principle."  No  stress  whatever  was  placed  upon  the  fact 
that  a  judgment  had  been  recovered  against  the  trustee,  except 
that  it  afforded  conclusive  evidence  that  such  was  the  law  of 
Georgia  as  applicable  to  the  notes.  The  same  doctrine  was 
held  by  Eent,  0.  J.,  in  the  case  of  IhnbreeY.  Hanna^  6  Johns. 
101,  and  was  recognized  in  this  state  in  the  case  of  Baylies  v. 
EaughUm,  15  Yt.  630.  We  think,  therefore,  that  this  claim  can 
be  held  by  the  creditor  under  this  attachment  as  against  the 
claimant;  and  that  the  judgment  of  the  county  court  must  be 
reversed,  and  judgment  rendered  that  the  trustee  is  chargeable. 


Law  or  What  State  Oovkkrb  Liabilitt  on  Pbomisbobt  Kom:  Sat 
SmUh  V.  BkUd^ord,  52  Am.  Deo.  604;  and  see  also  the  note  to  thia  cue.  It 
was  said  in  Oreen  v.  Van  Biulnrk,  5  WalL  312,  that  the  courts  of  Vermont 
and  Looinana,  which  have  given  the  question  the  fullest  consideratioo, 
have  either  decided  adversely  to  or  essentially  modified  the  doctrine  that  a 
transfer  of  personal  property,  made  in  the  ooontry  of  the  domicile  of  the 
owner,  will  be  respected  by  the  coorts  of  the  coimtry  where  the  property  is 
located,  although  the  mode  of  transfer  may  be  different  from  that  prescribed 
by  the  local  law,  citing  the  principal  case,  among  others. 

MaXBB  or  NOTX,   whether  ANT>  WHKN   ChABOEABLB  as  GABNiaHSS  OB 

Tbubtbb:  See  Ifubbaird  v.  WUUanUf  65  Am.  Dec  66,  and  note  considering 
the  questioo;  Canon  v.  Allen,  54  Id.  148;  Ladd  v.  Baher,  57  Id.  355;  Smoot 
V.  Eslava,  58  Id.  310.  In  Warden  v.  Nour»e,  36  Vt.  760,  761,  it  was  held, 
following  the  principal  case,  that  a  promissory  note  executed  in  Vermont,  the 
tUus  of  the  debt,  to  a  resident  of  another  state,  who  negotiated  it  before  ma- 
turity to  another  person  of  that  state,  was  subject  to  and  might  be  held  by 
trustee  process,  if  the  tmstee  had  no  notice  of  the  transfer  before  the  suit  was 
brought,  even  though  by  the  laws  of  that  state  such  paper  was  not  subject  to 
the  opention  of  the  trustee  process.  See  also  Wkeeier  t.  Wimn,  38  Id.  128^ 
dting  the  principal 


Johnson  v.  Catlin.  [Veniioiiii 


JOHNBOK  V.   GaTUK. 

[37  TanncwT,  87.] , 
Oftfmwit    MAT    MaINTACT    AcnON    IK    HI8   OWK  NlMX  AOAIim  AOOIROB 

ov  Bnx  OP  EzoHAHOB,  where  the  bill  ib  drawn  payable  to  *'  M.  Johnaon, 
oashier/'  the  promise  being  made  to  the  oashier  ai  an  indiTidnal,  and  the 
addition  being  simply  descriptive  of  the  person. 

ffAfFT«»    MAT    RbOOTEB    UPON    MONXT    COUNIB    AMOUNT   OT  BiLL  OP  Ez- 

OHANoa  drawn  payable  to  him  and  aooepted  for  Talne,  althongh  he  holds 
the  bill  in  trost  for  the  bank. 

AssuifPSiT.  The  plaintiff  claimed  to  reooTer  upon  the  genend 
money  counts  the  amount  due  on  a  bill  of  exchange  drawn  pay- 
able "  to  the  order  of  M.  Johnson,  cashier/'  upon  the  defendant, 
and  accepted  by  him.  The  facts  agreed  that  the  bill  was  ao- 
oepted in  payment  of  an  indebtedness  due  from  the  acceptor  to 
the  drawers,  and  was  discounted  for  the  benefit  of  the  latter  by 
the  Bank  of  Toledo,  of  which  the  plaintiff  was  the  cashier.  The 
plaintiff  had  judgment  for  the  amount  of  the  bill.  Exceptions 
by  the  defendant. 

Fhelp8  and  ChiUendertf  for  the  defendant. 

TF.  TF.  Peck  and  E.  Harvey,  for  the  plaintiff. 

By  Court,  Bennett,  J.  The  counsel  for  the  defendant  claim 
that  this  action  can  not  be  maintained  on  this  bill  of  exchange 
in  the  name  of  the  cashier,  but  that  the  action  should  have  been 
in  the  name  of  the  Bank  of  Toledo.  This  bill  is  payable  to 
Matthew  Johnson,  cashier,  and  it  is  said  that  as  the  courts  of  this 
state  have  held  that  such  a  note  or  bill  is  a  promise  to  the  bank 
from  whom  the  consideration  moved,  and  may  be  sued  in  their 
name,  it  should  follow  that  Johnson  can  not  hare  the  action  in 
his  own  name,  and  that  it  is  absurd  to  hold  that  either  the  cashier 
or  the  bank  may  bring  the  suit  at  pleasure. 

At  somewhat  of  an  early  day,  in  the  case  of  Arlington  y. 
Hinds,  1  D.  Chip.  431  [12  Am.  Dec.  704],  it  was  held  that 
where  the  note  was  given  to  Luther  Stone,  town  treasurer,  or 
his  successors  in  office,  the  action  might  be  maintained  on  it 
in  the  name  of  the  town  of  Arlington;  and  in  that  case  the 
position  was  advanced  by  the  judge  who  gave  the  opinion  of 
the  court,  that  though  the  action  might  be  maintained  in  the 
name  of  the  town,  yet  it  would  not  follow  but  what  Stone 
might  also  have  the  action  in  his  own  name.  The  principles  of 
that  case  have  been  followed  in  several  subsequent  cases.  The 
case  in  Chipman  arose  under  somewhat  peculiar  circumstances, 
and  the  court  must  have  been  pressed  vrith  the  necessity  of  bub» 


Dee.  1864]  Johnson  v.  Catun.  628 


taixung  that  aotion  to  prerenta  failiire  of  justiee  in  that  partioa- 
lar  case,  and  the  eoiirt  found  it  neoeesaiy  to  assume  that  the 
law  merchant  was  not  adopted  in  this  state,  in  order  to  aToid 
the  efEect  of  the  position  that  upon  commercial  paper  the  per- 
son who  appears  upon  the  face  of  the  paper  to  have  the  l^gal 
interest  must  sue;  and  that  you  can  not  resort  to  matter  aliunde 
the  note  to  determine  who  may  sue  upon  it.  But  it  has  long 
been  settled  in  this  state  that  the  law  merchant  was  a  part  of 
our  law,  so  that  it  now  appears  that  the  veiy  ground  upon 
which  the  case  of  Arlington  y.  Hinds,  mpra,  was  based,  has  been 
long  since  swept  away.  If  the  principles  which  are  applicable 
to  the  case  of  principal  and  agent  could  have  been  rightly  ap- 
plied to  the  case  of  Arlington  y.  Binds,  supra,  it  might  haye 
been  sound.  In  such  case  it  is  familiar  law  that  the  aotion 
may  be  brought  in  the  name  of  the  principal  from  whom  the 
consideration  moyes,  or  in  the  name  of  the  agent  with  whom 
the  contract  was  ostensibly  made.  Though  this  court  haye 
been  repeatedly  called  upon  to  repudiate  the  case  of  Arlington 
y.  Hinds,  supra,  as  being  a  departure  from  the  principles  of  the 
law  merchant,  they  haye  hitherto  declined;  and  subsequent  de- 
cisions haye  been  made  upon  the  authority  of  that  case  which 
would  seem  to  be  opposed  to  the  current  of  the  cases  which 
haye  been  decided  upon  the  principles  of  the  commercial  law. 
It  may  be  a  matter  of  some  importance  that  there  should  be  a 
uniformity  of  decision  on  commercial  questions  in  the  different 
states,  and  how  long  our  courts  will  adhere  to  the  authority  of 
the  case  of  Arlington  y.  Hinds,  supra,  for  the  sake  of  presery- 
ing  uniformity  in  our  own  decisions,  though  it  mars  the  sym- 
metry of  the  commercial  law,  must  depend  upon  the  subsequent 
adjudications  of  this  court.  There  may  be  a  difficuliy,  as  the 
counsel  argue,  upon  the  principles  of  the  commercial  law,  in 
holding  that  either  the  cashier  or  the  bank  can  maintiain  an  ac- 
tion on  this  bill  at  their  own  election.  But  let  that  be  as  it 
may,  we  think  it  is  dear  that  this  action  is  well  brought.  The 
cases  are  numerous  where  it  has  been  held  in  cases  of  promis- 
sory notes  and  bills  of  exchange  that  a  promise  to  the  agent, 
naming  him,  and  not  his  principal,  although  the  word  *  *  agent "  or 
''  cashier"  be  added  to  his  name,  is  a  promise  to  the  agent  as  an 
indiyidual,  and  the  addition  is  simply  descriptiye  of  the  person. 
But  it  is  claimed  that  if  the  action  can  be  maintained  on  the 
paper  by  the  cashier,  still  he  can  not  recoyer  upon  the  money 
counts.  If  this  bill  of  exchange  had  been  payable  to  the  Bank 
of  Toledo,  by  whom  it  was  discounted,  and  the  action  brought 


624  Johnson  v.  Catlik.  [YennoDt^ 

bj  the  bank,  it  would  seem  ih«re  would  be  yeiy  little  ground  to 
raise  a  question  in  regard  to  the  plaintiff's  right  to  reooTer  upon 
the  money  counts.  It  was  settled,  upon  a  reyiew  of  the  cases  as 
well  as  the  principles,  in  Chase  v.  Bumham,  13  Yt.  447  [37  Am. 
I>eo.  602],  tiiat  the  indorsee  of  a  negotiable  note  may  recoyer 
the  amount  of  such  note  in  an  action  against  the  maker  upon 
the  general  counts  for  money  had  and  receiyed.  That  the  payee 
of  a  note  can  recoyer  upon  the  general  money  counts  in  a  suit 
against  the  maker  is  conceded  by  all  the  authorities.  In  the 
case  at  bar  the  defendant  was  the  acceptor  of  the  bill,  and 
stands  in  the  place  of  the  maker  of  a  note,  and  the  action  is  by 
the  cashier  of  the  bank,  who  was  the  payee  of  the  bill.  This, 
then,  is  the  case  where  the  action  is  between  the  original  parties 
to  the  bill.  The  facts  agreed  in  this  case  show  that  the  acceptor 
was  indebted  to  the  drawers  in  the  amount  of  this  bill,  and  they 
draw  upon  him  for  the  amount,  directing  him  to  pay  the  same 
to  the  plaintiff  cashier,  or  his  order,  and  the  draft  is  accepted 
in  payment  of  this  indebtedness,  and  the  bank  discounts  it  for 
the  benefit  of  the  drawers.  If  it  had  turned  out  that  Oatlin  was 
but  an  accommodation  indorser,  the  case  would  haye  been  in 
principle  like  the  case  of  Pagers  Adm'rsy.  Bank  qf  Alexandria,  7 
Wheat.  35,  and  other  cases  dted.  Here  is,  then,  no  pretense 
but  what  Catlin  had  receiyed  the  yalue  for  this  acceptance  of 
the  drawers,  and  had  agreed  to  pay  it  to  the  phiintiff 's  order. 

It  is  said  the  draft  was  discounted  by  the  Toledo  bank,  and 
that  as  the  cashier  holds  it  in  trust  simply  for  the  bank,  he  can 
not  recoyer  upon  the  money  counts;  but  that  is  nothing  to  the 
defendant.  In  the  case  of  Chase  y.  Bumham,  supra,  the  note 
was  indorsed  in  trust  for  collection,  and  yet  it  was  held  the  in- 
dorsees  might  go  upon  the  money  counts.  The  trust  was  a  mat- 
ter which  simply  concerned  the  parties  to  it,  not  the  maker  of 
the  note,  who  had  agreed  to  pay  it  to  the  payee  or  his  order. 

Judgment  afiirmed. 

Who  mat  Sub  on  Notb  Patablb  to  "Aosnt,"  "GABrnxB,**  "Tansm," 
BTa:  See  ArUngUm  ▼.  Hinda^  12  Am.  Deo.  704;  Bate  r,  Lcffin,  42  Id.  378, 
and  notes  to  these  oases  oonsidering  the  question;  also  DwAs  v.  Oarr^  ff6  Id. 
887;  ThomUm  v.  Bankin,  59  Id.  338.  The  principal  ease  is  oited  in  Ifave  t. 
HadUy,  74  Ind.  167,  to  the  point  that  an  action  may  be  maintainad  by  aa 
undisbloaed  principal  upon  a  promiasary  note  payable  to  an  agenl 


Dm*  18M.]    THOBn  v.  Bxjtlamd  sra  &  &  Ckx  OSS 

Thobkb  v.  Bxjtlasd  bto.  B.  B.  Oa 


[ST  ▼■MOOT.  UO.] 

Akzbigan  Lkgislatubis  bays  Same  Vvldosed  Powie  ov  Lbgiblaiiov 
AS  Bbttibb  Pabuaiixht,  except  where  they  an  nstnined  hj  written 
oonstitntioDB. 

COBPOBATTOira   ABX    SUBJSOT    TO    TilOllffiATm    OOXTBOL    BoVAUiT    WTIS 

Katubal  PfeBKxn;  that  !■»  they  may  he  ooMtrolied  in  ell  mnttcn  eooi* 
ing  witUn  the  genenl  lange  of  legislative  anthorityt  enbjeet  to  the  lia^- 
tation  ol  not  impairing  Ihe  ohUgation  of  oontoctiy  and  prodded  the 
eawntial  franchise  ie  not  taken  without  compensation, 
Cbabteb  ov  Cobfobation  18  CovTBACT.  slnce  it  is  an  implied  vndertaking 
on  the  part  of  the  state  that  the  oorporatian,  aa  soeh,  and  for  tiie  pn^ 
poses  therein  named  of  implied,  shall  enjoy  the  powen  md  franohtesi 
conferred  by  ite  charter. 

OOBVOBATB  FoWltkS  EZTBiaBLT  OB  BT  NbOUBABT  IimjCUIIIOB  OOJKWEKBMD 

BT  Cbabtbb  abb  Inttolabli,  when  easential  to  the  henefloial  ^"^H^fn^t 

and  snccessf  nl  operation  of  the  corporation. 
BflSBNTiAL  Fbanghisb  ov  Rahboad  Ck>BPOBATiov  n  Pbiyilbob  ov  Bmr- 

BINO  BoAB,  and  taking  tolls,  or  fares  and  frei^^t^  and  this  can  not  be 

essentially  modified  or  destroyed  by  legielatiTe  aotion. 
tlbmsM  PowBB  OF  LioiBLAnTB  GoBTBoi.  ovBB  GoBFOBAnoir  RanBBB  nr 

Lboulatubb,  unless  expressly  or  by  necessary  implication  limited  in  the 

charter.   Corporations  take  nothing  by  intendment  bat  what  is  neosssaxy 

to  the  enjoyment  of  that  which  is  expressly  granted. 

LWUBLATUKB  MAT,  UKDXB  POLICB    POWZB,  RbQUIRB  BxianirQ  RAn.BOAW 

TO  Ebbct  and  Maintain  Cattlb-ouabds  at  all  crossings,  and  fenoes  oa 
the  lines  of  their  roads,  nnder  penalty  of  paying  all  damage  censed  by 
their  neglect  to  comply  with  snch  requirements. 

AonoK  on  the  case  for  killing  pbiintiff 'a  sheep,  which  had 
escaped  npon  the  defendant's  track  for  want  of  a  cattle*gaaid. 
The  question  was  whether  the  defendant  was  bound  by  the  pro- 
Tision  of  the  general  railroad  act,  passed  since  its  incorporation, 
requiring  all  railroads  to  erect  and  maintain  fences  on  the  lines 
of  their  roads,  and  cattle-guards  at  all  crossings,  under  penalty 
of  paying  all  damages  caused  by  the  want  of  such  fences  and 
oattle-guards.  The  jury  were  instructed  on  the  trial  that  the 
defendant  was  bound  by  the  provision.    Defendant  excepted. 

iTl  Jdiaeck,  for  the  plaintiff. 

D,  A.  SmaUey,  for  the  defendants. 

By  Court,  Bbdfdeld,  0.  J.  1.  The  present  case  inTolyes  the 
question  of  the  right  of  the  legislature  to  require  existing  rail- 
ways  to  respond  in  damages  for  all  cattle  killed  or  injured  by 
their  trains  until  they  erect  suitable  cattle-guards  at  fimn-croas- 
ings.  No  question  could  be  made  where  such  a  requisition  was 
contained  in  the  charter  of  the  ooxporation  or  in  tiiegenecal  laws 

Aar.  Dxo.  Yoii,  LXII-^AO 


8S6  Thosfb  v.  Bxjtlajxd  sia  &  IL  C!a    [VeniioDl» 

of  the  state  at  the  date  of  the  charter.  But  where  neither  is  the 
case,  it  is  claimed  that  it  is  incompetent  for  the  legislature  to 
impose  such  an  obli^tion  by  statute  subsequent  to  the  date  ol 
the  charter. 

It  has  neyer  been  questioned,  so  fur  as  I  know»  that  the  Ameri* 
can  legislatures  haye  the  same  unlimited  power  in  regard  to 
legislation  which  resides  in  the  British  parliament,  except  where 
they  are  restrained  by  written  constitutions.  That  must  be 
conceeded,  I  think,  to  be  a  fundamental  principle  in  the  politi* 
cal  organizations  of  the  American  states.  We  can  not  well  com- 
prehend  how  upon  principle  it  should  be  otherwise.  The  people 
must,  of  course,  possess  all  legislatiye  power  originally.  They 
haye  committed  this  in  the  most  general  and  unlimited  manner 
to  the  seyeral  state  legislatures,  saying  only  such  restrictions  as 
are  imposed  by  the  constitution  of  the  United  States  or  of  the 
particular  state  in  question.  I  am  not  aware  that  the  constitu- 
tion  of  this  state  contains  any  restriction  upon  the  legislature  in 
regard  to  corporations,  unless  it  be  that  where  "  any  person's 
proi>erty  is  taken  for  the  use  of  the  public,  the  owner  ought  to 
receiye  an  equiyalent  in  money,"  or  that  there  is  any  such 
restriction  in  the  United  States  constitution,  except  that  prohibit- 
ing the  states  from  ''  passing  any  law  impairing  the  obligation 
of  contracts." 

It  is  a  conceded  point  upon  all  hands  that  the  parliament  of 
Great  Britain  is  competent  to  make  any  law  binding  upon  cor- 
porations, howeyer  much  it  may  increase  their  burdens  or  restrict 
their  powers,  whether  general  or  organic,  eyen  to  the  repeal  of 
their  charters. 

This  extent  of  power  is  recognised  in  the  case  of  Dartmouth 
OoUege  y.  Woodward,  4  Wheat.  618,  and  the  leading  authorities 
are  there  referred  to.  Any  requisite  amount  of  authority  giring 
this  unlimited  power  oyer  corporations  to  the  British  parliament 
may  readily  be  found.  And  if,  as  we  haye  shown,  the  seyeral 
state  legislatures  haye  the  same  extent  of  legislatiye  power,  with 
the  limitations  named,  the  inyiolabiliiy  of  these  artificial  bodies 
rests  upon  the  same  basis  in  the  American  states  with  that  of 
natural  persons,  and  there  are,  no  doubt,  many  of  the  rights, 
powers,  fmd  functions  of  natural  persons  which  do  not  come 
within  legislatiye  control.  Such,  for  instance,  as  are  purely 
and  exdusiyely  of  priyate  concern,  and  in  which  the  body 
politic,  as  such,  haye  no  special  interest. 

2*  It  being  assumed,  then,  that  the  legislature  may  control  the 
action,  prescribe  the  functions  and  duties  of  coipoiationa,  and 


Dee.  1854]    TaoBn  v.  Butlahd  bio.  B.  B.  CkK  627 

impose  zeetndnts  upon  ihem  to  ihe  same  extent  as  upon  natoial 
persons,  that  is,  in  all  matters  eoming  within  the  general  range 
of  legislatiye  authority,  sabject  to  the  limitation  of  not  impair- 
ing the  obligation  of  oontraots  provided  the  essential  franchise 
is  not  taken  without  compensation,  it  becomes  Of  primary  im- 
portance to  determine  the  extent  to  which  the  charter  of  a  cor- 
poration may  fairly  be  regarded  as  a  contract  within  the  meaning 
of  the  United  States  constitution. 

Upon  this  subject  the  decisions  of  the  United  States  supreme 
court  must  be  regarded  as  of  paramount  authority.  And  the 
case  of  Datimouth  College  t.  Woodward ^  mipra,  being  so  much 
upon  the  very  pqint  now  under  consideration,  and  the  leading 
case  and  authoritative  exposition  of  the  court  of  last  resort  upon 
that  subject,  must  be  considered  as  the  common  starting-point, 
the  point  of  diyergence,  so  to  speak,  of  all  the  contrariety  of 
opinion  in  regard  to  it. 

Ur.  Chief  Justice  Marshall  there  says:  ''A  corporation  is  an 
artificial  being — ^the  mere  creature  of  Uie  law — ^it  possesses  only 
those  properties  which  the  charter  of  its  creation  confers  upon 
it,  either  expressly  or  as  incidental  to  its  very  existence."  The 
decision  throughout  treats  this  as  the  fundamental  idea,  the  pivot 
upon  which  the  case  turns.  The  charter  of  a  corporation  is  thus 
regarded  as  a  contract,  inasmuch  as  it  is  an  implied  undertaking 
on  the  part  of  the  state,  that  the  corporation,  as  such,  and  for 
the  purposes  therein  named  or  implied,  shall  enjoy  the  powers 
and  franchises  by  its  charter  conferred.  And  any  statute  essen- 
tially modifying  these  corporate  franchises  is  there  regarded  as 
a  violation  of  the  charter.  But  when  we  come  to  inquire  what 
is  meant  by  the  franchises  of  a  corporation,  the  principal  diffi- 
culty arises.  Certain  things,  it  is  agreed,  are  essential  to  the 
beneficial  existence  and  successful  operation  of  a  corporation, 
such  as  individuality  and  perpetuity,  when  the  grant  is  unlim- 
ited; the  power  to  sue  and  to  be  sued,  to  have  a  common  seal 
and  to  contract;  and  in  the  case  of  a  railroad,  to  have  a  common 
stock  to  construct  and  maintain  its  road,  and  to  operate  the 
same  for  the  common  benefit  of  the  corporators.  Certain  other 
things,  as  incident  to  the  beneficial  use  of  these  franchises,  are 
necessarily  implied.  But  there  is  a  wide  field  of  debatable 
ground  outside  of  all  these.  It  is  conceded  that  the  powers 
expressly  or  by  necessary  implication  conferred  by  the  charter, 
and  which  are  essential  to  the  successful  operation  of  the  cor* 
porations,  are  inviolable. 

But  it  has  sometimes  been  supposed  that  corporations  pos« 


fas  Taom  t;.  BircuJiD  ara  R  B.  Om    [Yennonti 


ft  kind  of  immimily  aad  aoBrnptioii  irom  l0gidatm  oontedL, 
«xtandiiig  to  everftbing  materially  aflbotiiig  their  intareat,  aad 
wh»8  there  ie  no  espxeee  reeorration  in  their  diarten.  It  mm 
«pon  this  gronnd that  a  perpetiial exemption  fiom  taxationiru 
alaimiri  in  Pfwndenoe  Bank  y.  BilUngt^  A  Pei.  614,  their  char- 
ter being  geneial,  andno  power  of  taxation  reserved  to  the  state. 
The  argoment  was^  Vbai  the  right  to  tax  either  their  property  or 
their  stock  was  not  only  an  abridgment  of  the  beneficial  use  of 
tte  fmnchise,  but  if  it  existed,  waa  capable  of  being  so  exerdaed 
as  yirtnally  to  deatcoy  it«  This  was  certainly  planaible,  and  the 
^ourt  do  not  deny  the  liability  to  so  exercise  the  power  of  taxatian 
as  to  absorb  the  entire  profits  of  the  institation.  But  still  th^ 
deny  the  exemption  claimed.  Ohiet  Justice  Marshall  there  says; 
'*  The  great  object  of  an  incorporation  is  to  bestowthe  character 
and  properties  of  individuality  on  a  collected  and  changing  body 
of  men.  Any  privileges  which  may  exempt  it  from  the  burdens 
common  to  individuals  do  not  flow  necessarily  from  the  charter, 
but  must  be  expressed  in  it,  or  they  do  not  exist.*' 

This  is  suffidently  explicit,  and  upon  examination  will  be 
found,  I  think,  to  have  placed  the  matter  upon  its  true  basis. 
In  reason,  it  would  seem  that  no  fault  could  be  found  with  the 
rale  here  laid  dovm  by  the  great  expotmder  of  American  oonsti* 
tutional  law.  As  to  the  general  liability  to  legislatiye  control, 
it  places  natural  persons  and  corporations  precisely  upon  the 
same  ground.    And  it  is  the  true  ground,  and  the  only  one,  upon 

-  which  equal  rights  and  just  liabilities  and  dutiea  can  be  fairly 

vJbased. 

To  apply  this  rule  to  the  present  case,  it  must  be  conceded 

"flial  all  which  goes  to  the  constitution  of  the  corporation  and 
its  beneficial  operation  is  granted  by  the  legislature,  and  can  not 
be  revoked,  either  directiy  or  indirectiy,  vnthout  a  violation  of 
the  grant,  which  iff  regarded  as  impairing  the  contract,  and  so 
prohibited  by  the  United  States  constitution.  And  if  we  suppose 
the  legislature  to  have  made  the  same  grant  to  a  natural  person 

fwhich  they  did  to  defendants,  which  they  may  undoubtedly  do, 

.  Jfoor  T.  Veane,  32  Me.  343  [52  Am.  Dec.  666];  S.  C.  in  error,  4 
Pet.  668,  it  would  scarody  be  supposed  that  they  thereby 

'  parted  with  any  general  legislative  control  over  such  person  or  the 
business  secured  to  him.    Such  a  supposition,  when  applied  to  a 

•  single  natural  person,  sounds  almost  absurd.  But  it  must,  in  fact, 
be  the  same  thing  when  applied  to  a  corporation,  however  exten- 

'  sive.    In  either  case,  the  privilege  of  running  the  road  and  take 

.ing  tolls,  or  fare  and  freight,  is  the  esflential  franchise  eonferredt 


Dea  1864]    Thokfb  t;.  Butlahd  sra  B.  R  Ox  <n^ 

Any  act  essentially  pazalynng  iliiB  franchise,  or  destroying  tba 
profits  ih6r8frt>m  arising,  would  no  donbt  be  void.  But  beyonA 
that,  the  entire  power  of  the  legislative  control  resides  in  th# 
legislature,  unless  such  power  is  expressly  limited  in  the  grant 
to  the  corporation,  as  by  exempting  their  properly  from  taxatiom. 
in  consideration  of  a  share  of  the  profits  or  a  bonus,  or  the  pub- 
lic duties  assumed.  And  it  has  been  questioned  how  far  on*- 
legislature  could,  in  this  manner,  abridge  the  genend  power  of 
erery  sovereignty  to  impose  taxes  to  deb»y  the  expenses  of  pub- 
lic functions:  Brewfster  t.  Botigk,  10  N.  H.  188;  Mochamca^  and 
Traders'  Bank  v.  DtAoU,  1  Ohio,  691;  Sbledo  Bank  y.  Bond,  Id. 
622.  It  seems  to  me  there  is  some  ground  to  question  the  right 
of  the  legislature  to  extinguish,  by  one  act,  this  essential  right 
of  sovereignty.  I  would  not  be  surprised  to  find  it  brought  into> 
general  doubt;  but  at  present  it  seems  to  be  pretty  generaUy^ 
acquiesced  in:  State  of  New  Jersey  v.TFtfoon,  7  Cranch,  164;  re- 
affirmed in  Chrdon  v.  Appeal  Tax  Court,  3  How.  138.  But  all  the- 
decisions  in  the  United  States  supreme  court  allowing  the  legis- 
lature to  grant  irrevocably  any  essential  prerogative  of  sover- 
eignty require  it  to  be  upon  consideration,  and  in  the  case  ot 
corporations,  contemporaneous  with  the  creation  of  the  fran-^ 
ehise:  Bidanond  B.  Go.  v.  Lowua  B.  Co,,  13  Id.  71.  Simi- 
lar decisions  in  regard  to  the  right  of  the  legislature  to  grani 
perpetual  exemption  from  taxation  to  corporations  and  property^ 
the  title  to  which  is  derived  from  the  state,  have  been  made  by 
this  court:  Herrick  v.  Bandolph,  13  Yt.  626;  and  in  some  of  the 
other  states:  Landon  v.  Litchfield,  11  Oonn.  261,  and  cases  cited; 
(yDonneU  v.  BaiOey,  24  Miss.  886.  But  these  cases  do  not  afleot 
to  justify  even  this  express  exemption  from  taxation  being  held 
inviolable,  except  upon  the  ground  that  it  formed  a  part  of  the 
value  of  the  grant,  for  which  the  state  received  or  stipulated  for 
a  consideration. 

But  in  the  present  case  the  question  arises  upon  the  statute 
of  1850,  requiring  all  railways  in  the  state  to  make  and  main* 
tain  cattie-guards  at  farm-crossings,  and  until  they  do  so,  mak« 
ing  them  liable  for  damage  done  to  cattle  by  their  engines  by 
reason  of  defect  of  fences  or  cattie-guards.  The  defendants^ 
charter  required  them  to  fence  their  road,  but  no  express  pro« 
vision  is  made  in  regard  to  catUe-gnards.  Thqpe  is  no  pretense 
of  any  express  exemption  in  the  charter  upon  this  subject,  ot 
fliat  such  an  implied  exemption  can  fairly  be  said  to  form  a  con^ 
dition  of  the  act  of  incorporation,  unless  evexything  U  implied 
fay  grant  which  is  not  expressly  inhibited;  whereas  the  true  rule 


\ 


680  Thobfk  t;.  Butland  Era  R  R  Oo.    [yermonl^ 

of  constmotioii  in  regard  to  the  powers  of  corpoiutions  is  ihat 
they  are  to  take  nothing  bj  intendment  but  what  is  neces- 
sary to  the  enjoyment  of  that  which  is  expressly  granted.  In 
addition  to  the  cases  already  cited,  we  may  here  refer  to  the 
language  of  the  opinion  of  Grier,  J.,  in  Bichmond  E,  Oo.  t. 
Luuisa  R.  Oc  18  How.  71,  citing  from  the  former  decisions 
of  the  court  with  approbation,  "  that  public  grants  are  to  be 
construed  strictly,  that  any  ambiguity  in  the  terms  of  the  grant 
must  operate  against  the  corporation  and  in  favor  of  the  public, 
and  the  corporation  can  claim  nothing  but  what  is  clearly  gtvea 
by  the  act/'  This,  being  the  definitive  determination  of  the 
court  of  last  resort  upon  this  subject,  in  so  recent  a  case, 
should  be  regarded  as  final,  if  there  be  any  such  thing  any- 
where. And  the  language  of  Taney,  0.  J.,  in  Charles  Bvoer 
Bridge  v.  Warren  Bridge,  11  Pet.  648,  is  still  more  specific, 
and  in  my  judgment  eminently  just  and  conservative:  '*The 
continued  existence  of  a  government  would  be  of  no  great 
value  if  by  implications  and  presumptions  it  was  disarmed  of 
the  powers  neceesaiy  to  accomplish  the  ends  of  its  creation, 
and  the  functions  it  was  designed  to  perform  transferred  to 
privileged  corporations.''  The  conclusion  of  this  learned  judge 
and  eminent  jurist  is,  that  no  claim  in  any  way  abridging  the 
most  unlimited  exerdse  of  the  legislative  power  over  persons, 
natural  or  artificial,  can  be  successfully  asserted,  except  upon 
the  basis  of  an  express  grant,  in  terms  or  by  necessary  implica- 
tion. 

But  upon  the  principle  contended  for  in  Pnmdenoe  Bank  v. 
BUlings,  4  Pet.  614,  and  sometimes  attempted  to  be  maintained 
in  favor  of  other  corporations,  most  of  the  railways  in  this  state 
would  be  quite  beyond  the  control  of  the  legidature,  as  well 
to  their  own  police  as  that  of  the  state  generally.  For  in  very 
few  of  their  charters  are  these  matters  defined,  or  the  control  of 
them  reserved  to  the  legislature.  Many  of  the  charters  do  not 
require  the  roads  to  be  fenced.  But  in  Qwimby  v.  VermorU  Cent, 
B.  M.  Co. ,  23  y  t.  887,  it  was  considered  that  the  corporation  were 
bound,  as  part  of  the  compensation  to  land-owners,  either  to 
build  fences  or  pay  for  them.  The  same  was  also  held  in  Moree  v. 
B^lon  d  Maine  B,  B.,2  Gush.  636.  Any  other  construction  will 
enable  railroad  corporations  to  take  land  without  adequate  com- 
pensation, which  is  in  violation  of  the  state  constitution,  and 
would  make  the  charter  void  to  that  extent.  So,  too,  in  regard 
^o  farm-crossings,  the  charters  of  many  roads  are  silent.  And 
''\  has  been  held  that  the  provision  for  restoring  private  ways 


Dee.  1854.]    Thobpe  u  Rutland  etc.  R.  R  Go.  681 

does  not  apply  to  farm-eroesingB.  But  the  railwBTB,  without 
exception,  built  fann-cioseingB,  xegaiding  them  as  an  economical 
•mode  of  reducing  land  damages,  and  they  are  ^now  bound  to 
maintain  them,  however  the  case  might  have  been  if  none  had 
been  stipulated  for,  and  the  damages  aslEiessed  accordingly: 
Manning  y.  Eastern  CounHeB  Bailway  Co.,  12  Mee.  &  W.  237. 
8o,  too,  many  of  the  charters  are  silent  as  to  cattle-guards  at 
road-crossings,  but  the  roads  generally  acquiesced  in  their  neces- 
fiity,  both  for  the  security  of  property  and  persons  upon  the 
railroad,  and  of  cattle  in  the  highway.  For  it  has  been  held 
that  this  provision  is  for  the  protection  of  all  cattle  in  the 
highway:  Fawcet  v.  York  S  North  Midland  R,  Co.^  2  Eng.  L.  k 
Eq.  289;  Trow  v.  Vermont  Central  R,  R.  Co.,  2i  Vt.  487  [58  Am. 
Dec.  191];  thus  making  a  distinction  in  regard  to  the  extent 
of  the  liabilily  of  railways  for  damages  arising  through  defect 
of  fences  and  farm-crossings  and  cattle-guards  at  those  points, 
and  those  which  arise  from  defect  of  fences  and  cattle-guards 
at  road-crossings,  the  former  being  only  for  the  protection  of 
cattle  rightfully  in  the  adjoining  fields,  as  was  held  in  Jackson 
V.  R.  &  B.  R.  R.  Co.,  25  Yt.  150  [60  Am.  Dec.  246];  and  the  other 
for  the  protection  of  all  cattle  in  the  highway,  unless,  perhaps, 
in  some  excepted  cases  amounting  to  gross  negligence  in  the 
owners.  And  there  can  be  no  doubt  of  the  perfect  right  of  the 
legislature  to  make  the  same  distinction  in  regard  to  the  extent 
of  the  liability  of  railways  in  the  act  of  1850,  if  such  was  their 
purpose,  which  thus  becomes  a  matter  of  construction. 

But  the  present  case  resolve  itself  into  the  narrow  question 
of  the  right  of  the  legislature,  by  general  statute,  to  require  aU 
railways,  whether  now  in  operation  or  hereafter  to  be  chartered 
or  built,  to  fence  their  roads  upon  both  sides,  and  provide  suf- 
ficient cattle-guards  at  all  farm  and  road  crossings,  under  pen- 
alty of  paying  all  damage  caused  by  their  neglect  to  comply 
with  such  requirements.  It  might  be  contended  that  cattle- 
guards  are  a  necessary  part  of  the  fence  at  all  crossings;  but 
that  has  been  questioned,  and  we  think  the  matter  should  be 
decided  upon  the  general  ground.  It  was  supposed  that  the 
question  was  settled  by  this  court  in  Nelson  v.  Vermont  d  C.  R,  R. 
Co.,  26  Yt.  717  [ante,  p.  614].  The  general  views  of  the  court 
are  there  stated  as  clearly  as  it  could  now  be  done;  but  as  the 
general  question  is  of  vast  importance,  both  to  the  roads  and 
the  public,  and  has  again  been  urged  upon  our  consideration^ 
we  have  examined  it  very  much  in  detail. 

We  think  the  power  of  the  legislature  to  control  existing  rail- 


69S  TteOBR  V.  ROTLAHD  SIC  R  R.  Oo.    pTermonl^ 

wmjB  in  this  Mspeet  may  he  foimd  in  the  geneml  control  ores 
the  police  of  the  country,  which  resideB  in  the  law-making 
power  in  all  tree  states,  and  which  is,  by  the  fifth  article  of  the 
bill  of  rights  of  this  state,  expressly  declared  to  reside  perpet- 
nally  and  inalienably  in  the  legislatore,  which  is,  perhaps,  no 
more  than  the  ennnciation  of  a  general  principle  applicable  to 
all  free  states,  and  which  can  not  therefore  be  violated  so  as  to 
deprive  the  legislature  of  the  power,  even  by  express  grant  to 
any  mere  pabHo  or  private  corporation.  And  when  the  regula- 
tion of  the  police  of  a  city  or  town,  by  general  ordinances,  is 
given  to  such  towns  and  cities,  and  the  regulation  of  their  own 
internal  police  is  given  to  railroads  to  be  canied  into  effect  by 
their  by-laws  and  other  regolations,  it  is,  of  coarse,  always,  in 
all  such  cases,  subject  to  the  superior  control  of  the  legislature. 
That  is  a  responsibilty  which  legislatures  can  not  divest  them- 
selves of  if  they  would. 

This  police  power  of  the  state  extends  to  the  protection  of  the 
lives,  limbs,  health,  comfort,  and  quiet  of  all  persons,  and  the 
protection  of  all  property  within  the  state.  According  to  the 
maxim,  Sio  tUere  tuo  ui  alienum  non  IwdcUj  which  being  of  uni- 
versal application,  it  must  of  course  be  within  the  range  of  leg- 
islative action  to  define  the  mode  and  manner  in  which  every 
one  may  so  use  his  own  as  not  to  injure  others.  So  far  as  ndl- 
roads  are  concerned,  this  police  power,  which  resides  primarily 
and  ultimately  in  the  legislature,  is  twofold:  1.  The  police  of 
the  roads,  which,  in  the  absence  of  legislative  control,  the  cor- 
porations themselves  exercise  over  their  operatives,  and  to  some 
extent  over  all  who  do  business  with  them,  or  come  upon  their 
grounds,  through  their  general  statutes,  and  by  their  officers. 
We  apprehend  there  can  be  no  manner  of  doubt  that  the  legis- 
lature may,  if  they  deem  the  public  good  requires  it,  of  which 
they  are  to  judge,  and  in  all  doubtful  cases  their  judgment  Ib 
final,  require  the  several  railroads  in  the  state  to  establish  and 
maintain  the  same  kind  of  police  which  is  now  observed  upon 
some  of  the  more  important  roads  in  the  country  for  their  own 
security,  or  even  such  a  police  as  is  found  upon  the  English 
railways,  and  those  upon  the  continent  of  Europe.  No  one  ever 
questioned  the  right  of  the  Oonneoticut  legislature  to  require 
trains  upon  all  their  railroads  to  come  to  a  stand  before  passing 
draws  in  bridges;  or  of  the  Massachusetts  legislature  to  require 
the  same  thing  before  passing  another  railroad.  And  by  parity 
of  reason,  may  all  railways  be  required  so  to  conduct  themselves, 
as  to  other  persons,  natural  or  corporate,  as  not  unreasonably  to 


Dee.  1854.]    Trobpb  v.  Bdtlanb  btc.  R  R.  Oo»  MS 

iiqnreifaem  or  their  propeviy.  Andif  thebomiieeBofiKihfi^ii 
BpeeiaUyclaiigeroQS,  they  may  be  xeqnired  to  bear  the  expenae  of 
erectixig  eudi  Bafegnardfl  as  wiU  render  it  oidiiiarUy  safe  to  otherSy 
as  is  often  required  of  natural  persons  under  such  eiroamstanoee. 
There  would  be  no  end  of  illnstrations  upon  this  subject,  which 
in  the  detail  are  snore  familiar  to  others  than  to  us.  It  may  be 
extended  to  the  supervision  of  the  trsok,  tending  switches, 
running  upon  the  tune  of  other  tmins,  running  a  road  with  a 
single  track,  using  improper  rails,  not  using  proper  precaution 
by  way  of  safety-beams  in  case  of  the  bresldng  of  axle-trees,  the 
number  of  brakemen  upon  a  tndn  with  reference  to  the  num- 
ber  of  cars,  employing  intemperate  or  incompetent  engineers 
and  serrants,  running  beyond  a  giyen  rate  of  speed,  and  a 
thousand  similar  things,  most  of  which  have  been  made  the 
subject  of  legislation  or  judicial  determination,  and  all  of  which 
may  be:  ffegeman  t.  Wedem  B.  Co.,  16  Barb.  863.  2.  There 
is  also  the  general  police  power  of  the  state,  by  which  persons 
and  property  are  subjected  to  all  kinds  of  restrainteand  bur- 
dens, in  order  to  secure  the  general  comfort,  health,  and  pros- 
perity of  the  state,  of  the  x>erfect  right  in  the  legislature  to 
do  which  no  question  eyer  was,  or  upon  acknowledged  general 
principles  ever  can  be,  made,  so  far  as  natural  persons  are  con- 
cerned. And  it  is  certainly  calculated  to  excite  surprise  and 
alarm  that  the  right  to  do  the  same  in  regard  to  railways  should 
be  made  a  serious  question.  This  objection  is  made  generally 
upon  two  grounds:  1.  That  it  subjecte  corporations  to  virtual 
destruction  by  the  legislature;  and  2.  That  it  is  an  attempt  to 
control  the  obligation  of  one  person  to  another  in  matters  of 
merely  private  concern. 

The  first  point  has  already  been  somewhat  labored.  It  is  ad- 
mitted that  the  essential  franchise  of  a  private  corporation  is 
recognized  by  the  best  authority  as  private  property,  and  can  not 
be  taken  without  compensation,  even  for  public  use:  AmiingUm 
T.  Ibwn  of  Bamel,  16  Yt.  745  [40  Am.  Dec.  705];  Weai  River 
Bridge  Co.  T.Dix^ie  Id. 4A&;  S.  0.  in  error  in  the  United  Stetes 
supreme  court,  6  How.  607;  1  Shelford,  Bennett's  ed.,  44,  and 
cases  cited. 

All  the  cases  agree  that  the  indispensable  feanchises  of  a  cor- 
poration can  not  be  destroyed  or  essentially  modified.  This  is 
the  very  point  upon  which  the  leading  case  of  Darimauth  CoUege 
v«  Woodward,  4  Wheat.  618,  was  decided,  and  which  every  well- 
oonsideKed  case  in  this  coiintcy  maintains.    But  when  it  is 


6M  Thobpb  v.  Rutlahd  Bra  R  R  Ckx     [YermoDtk 


attempted  upon  this  bams  to  deny  the  power  of  regulating  the  in« 
temal  police  of  the  railroads,  and  their  mode  of  transacting  their 
general  business,  so  far  as  it  tends  unreasonably  to  infringe  the 
rights  or  interests  of  others,  it  is  putting  the  whole  subject  of 
railway  control  quite  above  the  legislation  of  the  country.  Many 
analogous  subjects  maybe  adduced  to  show  the  right  of  legisla- 
tive control  over  matters  chiefly  of  private  concern.  It  was  held 
that  a  statute  making  the  stockholders  of  existing  banks  liable 
for  the  debts  of  the  bank  was  a  valid  law  as  to  debts  thereafter 
contracted,  and  binding  to  that  extent  upon  all  stockholders 
subsequent  to  the  passage  of  the  law:  Stanley  v.  Stanley ^  26  Me. 
191.  But  where  a  bank  was  chartered  with  power  to  receive 
money  on  deposit,  and  pay  away  the  same,  and  to  discount  biUs 
of  exchange,  and  make  loans,  and  a  statute  of  the  state  subse- 
quently made  it  unlawful  for  any  bank  in  the  state  to  transfer,  by 
indorsement  or  otherwise,  any  bill  or  note,  etc.,  it  was  held  that 
the  act  was  void,  as  a  violation  of  the  contract  of  the  state  with 
the  bank  in  granting  its  charter:  Plardenf  Bank  v.  Sharp ^  and 
Baldwin  v.  Payne,  6  How.  801, 826, 827, 882;  Jemisan  v.  Pkmienf 
and  Merchants*  Bank,  28  Ala.  168.  It  is  true  that  any  statute 
destroying  the  business  or  profits  of  a  bank,  and  equally  of  a 
luilroad,  is  void.  Hence  a  statute  prohibiting  banks  from  tak- 
ing interest,  or  discounting  bills  or  notes,  would  be  void,  as 
striking  at  the  very  foundation  of  the  general  objects  and  bene- 
ficial purposes  of  the  charter.  But  a  general  statute  reducing 
the  rate  of  interest,  or  punishing  usury,  or  prohibiting  specu- 
lations in  exchange  or  in  depreciated  paper,  or  the  issuing  of 
bills  of  a  given  denomination,  or  creating  other  banks  in  the 
same  vicinity,  have  always  been  regarded  as  valid.  And  whik 
it  is  conceded  the  legidature  could  not  prohibit  existing  rail- 
ways from  carrying  freight  or  passengers,  it  is  believed  that  be- 
yond all  question  it  may  so  regulate  these  matters  as  to  impose 
new  obligations  and  restrictions  upon  these  roads  materially 
affecting  their  profits,  as  by  not  allowing  them  to  run  in  an 
unsafe  condition,  as  was  held  as  to  turnpikes:  State  t.  Bosworih, 
18  Yt.  402.  But  a  law  allowing  certain  classes  of  persons  to  go 
toll  free  is  void:  Pingry  v.  Washburn,  1  Aik.  268  [15  Am.  Dec. 
676].  So,  too,  chartering  a  railroad  along  the  same  route  of  a 
turnpike  is  no  violation  of  its  rights:  White  River  Tampfike  Co. 
V.  Vermont  Central  R.  R.  Co.,  21  Vt.  690;  Turnpike  Co.  v.  RaUvoa^ 
Co,,  10  QXil  &  J.  892;  or  chartering  another  railway  along  the 
same  route  of  a  former  one,  to  whom  no  exclusive  rights  are 


Dec.  1854]    Thobps  v.  Rutland  xtc  R  R  Oo.  685 

granted  in  terms:  Matter  of  Hamilton  Avenue,  14  Barb.  405;  or 
the  eBtablishment  of  a  free  ymj  bj  the  side  of  a  toll-bridge: 
Charles  River  Bridge  v.  Warren  Bridge,  11  Pet.  420. 

The  legislatare  may  no  doubt  prohibit  railroads  from  canying 
freight  which  is  regarded  as  detrimental  to  the  public  healUi  or 
morals,  or  the  public  safety  generally,  or  they  might  probably 
be  made  liable  as  insurers  of  the  lives  and  limbs  of  passengers, 
as  they  yirtually  are  of  freight.  The  late  statute  giving  rela- 
tives the  right  to  recover  damages  where  a  person  is  killed  has 
wrought  a  veiy  important  change  in  the  liability  of  railways,  ten 
times  as  much,  probably,  as  the  one  now  under  ooneideration 
ever  could  do.  And  I  never  knew  the  right  of  the  legislature  to 
impose  the  liability  to  be  brought  in  question. 

But  the  argument  that  these  cattle-guards  at  farm-crossings 
are  of  so  private  a  character  as  not  to  come  within  the  general 
range  of  legislative  cognizance  seems  to  me  to  rest  altogether 
upon  a  misapprehension.  It  makes  no  difference  how  few  or  how 
many  persons  a  statute  will  be  likely  to  affect.  If  it  professes 
to  regulate  a  matter  of  public  concern,  and  is  in  its  terms  gen- 
eral, applying  equally  to  all  persons  or  proi>erty  coming  within 
its  provisions,  it  makes  no  difference  in  regard  to  its  character 
or  validity  wbether  it  will  be  likely  to  reach  one  case  or  ten 
thousand.  A  statute  requiring  powder-mills  to  be  built  remote 
from  the  villages  or  highways,  or  to  be  separated  from  the  ad- 
joining lands  by  any  such  muniment  as  may  be  requisite  to  afford 
security  to  others'  property  or  business,  would  probably  be  a 
valid  law  if  there  were  but  one  powder-mill  in  the  state,  or  none 
at  all,  and  notwithstanding  the  whole  expense  of  the  protection 
should  be  imposed  upon  the  proprietor  of  the  dangerous  business. 
And  even  where  the  state  legislature  have  created  a  corporation 
for  manufacturing  powder  at  a  given  point,  at  the  time  remote 
from  inhabitants,  if  in  process  of  time  dwellings  approach  the 
locality,  so  as  to  render  the  further  pursuit  of  the  business  at 
that  point  destructive  to  the  interests  of  others,  it  may  be  re- 
quired to  be  suspended  or  removed,  or  secured  from  doing  harm, 
at  the  sole  expense  of  such  corporation.  This  very  point  is  in 
effect  decided  in  regard  to  Trinity  churchyard,  which  is  a  royal 
grant  for  interment,  securing  fees  to  the  proprietors,  in  the  case 
of  Coates  v.  City  of  New  York,  7  Cow.  685;  and  in  regard  to 
the  presbyterian  churchyard,  in  Presbyterian  Church  v.  Giiy  of 
New  York,  5  Id.  638. 

So,  too,  a  statute  requiring  division  fences  between  adjoining 
land  proprietors  to  be  built  of  a  given  height  or  quality.  al« 


636  Thobfb  v.  RuTLAiTD  sra  R  R  Oo.     [Yermoni 

llioiigh  differing  from  the  former  law,  would  bind  natural  persons, 
and  equally  eorporations.  Bat  a  statute  requiring  land-owners 
to  build  all  their  fenoes  of  a  giyen  quality  or  height  would  no 
doubt  be  invalid,  as  an  unwarrantable  interferenoe  with  matters 
of  exclusively  private  oonoem.  But  the  farm^crossings  upon  a 
railway  are  by  no  means  of  this  character.  They  are  division 
fences  between  adjoining  occupants,  to  aU  intents.  In  addition 
to  this,  they  are  the  safeguards  which  one  person,  in  the  exercise 
of  a  dangerous  business,  is  required  to  maintain  in  order  to  pre> 
vent  the  liability  to  injure  his  neighbor.  This  is  a  control  by 
legislative  action  coming  within  the  obligation  of  the  maxim. 
Sic  uiere  iuo,  etc.,  and  which  has  always  been  exercised  in  this 
manner  in  all  free  states  in  regard  to  those  whose  business  is  dan- 
gerous  and  destructive  to  other  persons,  property,  or  business. 
Blaughier-houses,  powder-mills,  or  houses  for  keeping  powder, 
unhealthy  manufactories,  the  keeping  of  wild  animals,  and  even 
domestic  animals  dangerous  to  persons  or  property,  have  al- 
ways been  regarded  as  under  the  control  of  the  legislature.  It 
seems  incredible  how  any  doubt  should  have  arisen  upon  the 
point  now  before  the  court.  And  it  would  seem  it  could  not, 
except  from  some  undefined  apprehension,  which  seems  to  have 
prevailed  to  a  considerable  extent,  that  a  corporation  did  possess 
some  more  exclusive  powers  and  privileges  upon  the  subject  of 
its  business  than  a  natural  person  in  the  same  business,  with 
equal  power  to  pursue  and  to  accomplish  it,  which  I  trust  has 
been  sufficiently  denied. 

I  do  not  now  perceive  any  just  ground  to  question  the  right 
of  the  legislature  to  make  railways  liable  for  all  cattle  killed  by 
their  trains.  It  might  be  unjust  or  unreasonable,  but  none  the 
less  competent.  Oirtman  v.  Central  BaUroad^  1  Ga.  173,  is 
sometimes  quoted  as  having  held  a  different  doctrine,  but  no 
such  point  is  to  be  found  in  the  case.  The  British  parliament, 
for  centuries,  and  most  of  the  American  legislatures  have  made 
the  protection  of  the  lives  of  domestic  animals  the  subject  of 
penal  enactment.  It  would  be  wonderful  if  they  could  not  do 
the  same  as  to  railways,  or  if  they  could  not  punish  the  killing 
by  requiring  them  to  compensate  the  owner,  or  as  in  the  pres- 
ent case,  to  do  it  until  they  used  certain  precautions  in  running 
their  trains,  to  wit,  maintained  catUe-guards  at  roads  and  farm- 
orofisings. 

There  are  some  few  cases  in  the  American  courts  bearing  more 
directly  upon  the  very  point  before  us.  In  Suydam  v.  Moore^  8 
Barb.  868,  the  very  same  point  is  decided  against  the  railway; 


Dee.  1854]    THOxra  v.  Butlaiid  bic  B.  B.  Ool  6117 

Willord,  Jm  compares  the  requirement  to  the  law  of  the  roadt 
the  pasaiDg  of  oanal-boats,  and  keeping  lights  at  a  giren  eleva- 
tion in  stoamboatsy  and  says  it  comes  dearly  within  the  maadm, 
JSic  utere  ttio,  etc.;  and  in  Waldron  y.  Bennelotr  S Saratoga  £•  £• 
Co.,  Id.  890,  the  same  point  is dedded, and  the  same  judge  says 
ihe  requirements  of  the  new  act,  which  is  identical  with  our 
atatute  of  1850,  as  applied  to  existiiig  xailways» "  are  not  incon* 
sistent  with  Iheir  charter,  and  ai«y  in  our  judgment,  such  as  the 
legislature  had  the  right  to  make."  They  were  designed  for 
the  public  safety,  as  well  as  the  protection  of  properly.  In 
MQliman  y.  Otwego  S  Syracuae  B.^  10  Id.  87,  the  ground  is 
assumed  that  the  new  law  was  not  intended  to  vpplj  to  esdsting 
roads.  And  no  doubt  is  hero  intimated  of  the  right  of  the  legis- 
laturo  to  impose  similar  regulations  upon  existing  railways.  The 
New  York  revised  statutes  subject  all  oorporate  chartere  to  the 
control  of  the  legislature,  but  it  has  been  there  considered  that 
this  reservation  does  not  extend  to  mattersof  this  kind,  but  that 
the  right  depends  upon  general  legislative  authority.  The  case  of 
Oalena  S  Chicago  Union R,  Go.  v.  Loomis,  18  HI.  548  [66  Am.  Dec. 
471],  decides  the  point  that  the  legislature  may  pass  a  law  requir- 
ing all  railways  to  ring  the  bell  or  blow  the  whistle  of  their  engines 
immediately  before  passing  highways  at  grade.  The  court  say: 
**  The  legislature  has  the  power  by  general  laws  from  time  to 
time,  as  the  puUic  exigencies  may  require,  to  regulate  corpora- 
tions in  their  franchises  so  as  to  provide  for  the  public  safety. 
The  provision  in  question  is  a  mere  police  regulation,  enacted 
for  the  protection  and  safely  of  the  public,  and  in  no  manner 
interferes  with  or  impaire  the  powere  conferred  on  the  defend* 
ants  in  their  act  of  incoiporation."  All  fann-crossings  in  Eng« 
land  are  required  to  be  above  or  below  grade,  so  as  not  to  endanger 
passengera  upon  the  road,  and  so  of  all  road-crossings  there, 
unless  protected  by  gates.  I  could  entertain  no  doubt  of  the 
right  of  the  legislature  to  require  the  same  here  as  to  all  rail- 
ways, or  even  to  subject  their  operations  to  the  control  of  a 
board  of  commissioners,  as  has  been  done  in  some  states. 

In  Benson  v.  New  York  CUy^  10  Barb.  228,  it  was  held  that  a 
ferry,  the  grant  to  which  was  held,  not  under  the  authority  of 
the  state,  but  from  the  city  of  New  York,  and  which  was  a 
private  corporation,  as  to  the  stock,  might  be  required  by  the 
legislature  to  conform  to  such  regulations,  restrictions,  and 
precautions  as  were  deemed  necessary  for  the  public  benefit  and 
security.  The  opinioa  of  Woodbui^,  J.,  in  East  Hartford  v. 
Bariford  Bndge  Co.,  10  How.  511,  assumes  similar  greunds. 


688  Thorpb  v.  Rutland  etc  &  R  Ca     [YennoDlk 

although  that  eaae  was  somewhat  different.  The  case  of  Swan 
T.  WiUiafM,  2  Mioh.  427,  deniee  that  zailways  are  private  cor* 
poratioiiB.  But  that  proposition  is  scaroely  maintainable  so  far 
as  the  pecuniaiy  interest  is  concerned.  If  the  stock  is  owned 
by  private  persons,  the  cozporation  is  private  so  far  as  the  right 
of  legislative  control  is  concerned,  however  public  the  functions 
devolved  upon  it  may  be.  The  language  of  Chief  Justice  Mar- 
shall, in  DarimouOi  OoUege  v.  Woodward^  4  Wheat.  518, 829,  seems 
pertinent  to  the  general  question  of  what  laws  are  prohibited 
on  the  ground  of  impairing  the  obligation  of  contracts :  * '  That  the 
framers  of  the  constitution  did  not  intend  to  restrain  the  states 
in  the  regulation  of  their  civil  institutions,  adopted  for  internal 
government,  and  that  the  instrument  they  have  given  us  is  not 
to  be  so  construed,  may  be  admitted/'  And  equally  pertinent  is 
the  commentary  of  Mr.  Parsons  upon  the  provision  of  the  United 
States  constitution  in  relation  to  the  obligation  of  contracts: 
'*  We  may  say  that  it  is  not  intended  to  apply  to  public  prop- 
erty, to  the  discharge  of  public  duties,  to  the  possession  or 
exercise  of  public  rights,  nor  to  any  changes  or  qualifications  in 
any  of  these,  which  the  legislature  of  a  state  may  at  any  time 
deem  expedient:"  2  Parsons  on  Cont.  511. 

We  conclude,  then:  1.  That  the  authority  of  the  legislature  to 
make  the  requirement  of  existing  railways  may  be  vindicated, 
because  it  comes  fairly  within  the  police  of  the  state;  2.  Because 
it  regards  the  division  fence  between  adjoining  proprietors; 
8.  Because  it  properly  concerns  the  safe  mode  of  exercising  a 
dangerous  occupation  or  business;  and  4.  Because  it  is  but  a 
reasonable  provision  for  the  protection  of  domestic  i^nim^^lfl — all 
of  which  interests  fall  legitimately  within  the  range  of  legisla- 
tive control,  both  in  regard  to  natural  and  artificial  persons. 

Judgment  affirmed. 

Bknnett,  J.,  dissented. 

ExtXHT  or  Lboislativb  Powkb  of  Btati  LaonLATUBis,  in  OxirxaAU 
See  Latmng  r.  Smithy  21  Am.  Deo.  89;  Bank  qf  SUUe  Y.Cooptr^  24  Id.  617t 
Hole  ▼.  Ilettderson,  25  Id.  677;  Doe  ▼.  DougUuSf  44  Id.  732;  SharpUm  v. 
Mayor  etc.  qf  Philadelphia,  59  Id.  759;  People  v.  Coleman^  60  Id.  581;  Boe- 
Urn  v.  Oummine,  Id.  717,  and  notes  to  these  oases.  The  language  of  the 
principal  case,  to  the  effect  that  American  legislatares  have  the  same  nnlim* 
ited  power  in  regard  to  legislation  which  resides  in  the  British  parliament^ 
except  when  restrained  hy  written  constitntions,  is  quoted  with  approval  la 
Cooley's  Const.  Lim.  88;  and  see  the  language  in  turn  quoted  in  TalcoU  v. 
Township  of  Pine  Orove,  1  Flipp.  161,  in  considering  the  validity  of  a  statats 
authorizing  municipal  aid  to  railroads;  see  also  on  this  proposition  BoeUm  v. 
Cfummins,  tupra;  Bloodgood  v.  Mohawh  eU,  B.  i?.,  31  Am.  Dec  313.  la 
those  cases  in  which  the  power  of  a  state  by  oontraot  to  abridge  or  restrki 


Dec  1854]    Thobfb  v.  Butlamd  xia  K  K  Oa  689 


aoy  of  the  aiwantial  powen  of  •overelgiity  baa  been  denied  or  qneeiioned« 
strees  has  been  laid  npon  the  great  and  imminent  liability  to  aboae,  if  the 
power  exicti  at  all:  £a§i  Soffkuiw  Hfg.  Co.  t.  OUy  i^Saai  Saginaw,  19  Mioh. 
881,  eiting  the  prindpal  oaae. 

COBPORATIONS  ABB  SUBJIOT  TO  LlOnLATITX  €k>iraBOL  EqUALLT  WITH  Iv« 

vmoVAiAi  Galena  etc  R.  B,  t.  LoomU,  66  Am.  Deo.  471.  The  ezercite  of 
the  right  to  regulate  oorporationa  in  their  f ranohiaet  ao  as  to  proTide  for  pub- 
lie  safety  in  no  manner  interferes  with  or  impairs  the  powers  oonferred  by 
their  acts  of  incorporation:  Toledo  ete.  il^  r.  CUif  t/JaekeonvUUf  67  Id.  40t 
eiting  the  principal  case  to  this  point. 

Chartxb  ov  Pbitatb  Gosporation  18  CoNTRAor  which  the  legislatore 
can  not  impair  without  consent:  Brown  ▼.  Hknmd^  47  Am.  Deo.  431;  ifonoii* 
gahda  Na».  Co,  ▼.  Conn^  Id.  474;  Commonwoaiih  t.  Culkn^  53  Id.  450;  Tar* 
mo¥th  y.  North  Tamtmih,  56  Id.  666,  and  notes  to  these  cases  collecting 
prior  deoisioos;  compare  ffodgee  ▼.  Kew  Ifni^and  Screw  Co.,  53  Id.  624. 

LbOISLATUBB  oak  not  TaKX  AWAT  FrAV0BI8B  ov  €k>RPO&ATIOV  WITHOUV 

ITS  CoNSXNT:  Regente  ▼.  WUUatne,  31  Am.  Deo.  72;  Michigan  State  Bank  ▼• 
Baitings,  41  Id.  549;  Bn/SM  ToU  Bridge  Co.  ▼.  Hartford  etc.  R.  R.,  42  Id. 
716;  compare  Dyer  r.  Tuahalooea  Bridge  Co,,  27  Id.  655;  AmUngton  y,  Towm 
o/Bamet,  40Id.  705.  The  franchise  of  a  corporation  is  of  itself  property:  ifayor 
etc  ^f  Baltimore  y.  Baltimore  etc  R.  R.,  48  Id.  531.  The  essential  franchise  of 
a  private  corporation  is  recognized  by  tiie  best  anthority  as  private  property^ 
and  can  not  be  taken  without  compensation  eren  for  public  use:  Whiting  ▼• 
Sheboygan  etc,  R.R.,25  Wis.  205,  quoting  the  principal  case;  but  legislation 
touching  the  franchises  of  corporations  which  are  ptdtlici  Juris  is  not  prohib- 
ited by  that  clause  of  the  constitution  which  forbids  the  passage  of  laws  im- 
pairing the  obligation  of  contracts,  nor  does  it  deprive  such  corporations  of 
any  of  the  substantial  benefits  intended  to  be  conferred  by  the  acts  of  in- 
corporation: Town  qf  Lake  View  r.  Rose  HiU  Cemetery  Co,,  70  HI.  194,  citing 
the  principal  case. 

BzTBST  ov  PoLiGB  PowKB  OV  Statb,  IK  Obtbsal:  See  Wadleigh  r.  Oil" 
man,  28  Am.  Dec.  188,  and  note;  State  ▼.  Reid,  85  Id.  44;  Steeene  r.  State, 
Id.  72;  Commonwealth  v.  Kimball,  Id.  326,  and  note;  Mayor  etc.  qf  Mobile  v. 
TuUU,  36  Id.  441;  Preston  v.  Drew,  64  Id.  639;  State  t.  Ovmey,  58  Id.  782| 
and  see  in  particular,  as  to  corporations  being  subject  to  this  power,  Oalenm 
etc  R.  R.  ▼•  LoonUs,  66  Id.  4Z1,  and  note;  Toledo  etc  R*y  t.  City  qfJachon* 
viOe,  67  HI.  40,  cited  snpra.  The  language  of  the  principal  case,  to  the  effect 
that  the  police  power  of  a  state  extends  to  the  protection  of  the  lives,  limbs* 
health,  comfort,  and  quiet  of  all  persons,  and  the  protection  of  all  property 
within  the  state,  is  quoted  with  approval  in  Slcutghter-^ouse  Cases,  16  Wall. 
62;  Indianapclis  etc  R,  R,  v.  Kereheval,  16  Ind.  85;  JiUchell  v.  WiUiams,  27 
Id.  68;  and  in  Baker  v.  State,  54  Wis.  372,  in  commenting  upon  and  quoting 
from  Slaughter'house  Cases,  supra.  The  principal  case  is  also  dted  in  Com* 
monwealth  t.  Intoxicating  Liquors,  115  Mass.  155,  to  the  point  that  laws  reg- 
ulating, controlling,  restricting,  or  prohibiting  the  sale  of  a  particular  kind 
of  property  are  presumed  to  be  passed  for  the  common  good,  and  to  be  neces- 
sary for  the  protection  of  the  public,  and  can  not  be  said  to  impair  any 
right,  or  the  obligation  of  any  contract,  or  to  do  any  injury  in  the  proper  and 
legal  sense  of  these  terms;  and  in  JBast  Saginaw  Mfg.  Co.  v.  City  of  Katit 
Ai^MOW,  19  Mich.  282;  it  is  referred  to,  among  others,  as  a  case  in  which  the 
right  to  exercise  the  polioa  power  has  been  asierted,  notwithstanding  grants 
inconsistent  therewith. 


GASES 

nr  Tsi 


SDPEEME  COURT  OE  APPEALS 


or 
YIBaiNIA. 


HuKTEB  V.  Lawbekoe's  Adieenibib^tob. 

[U  OmATTAir,  Ul.] 

OuABBiAir  HAS  CoNTBOL  ovxK  Wabp'b  Intkbist  di  Bovd  ezaeated  to  mi 
ezeoator  and  tnufeiTed  by  the  latter  to  the  gnardian  aa  part  of  tba 
ward's  estate;  he  may  receive  money  paid  thereon,  he  may  sue  and  r^ 
ooyer  thereon  in  the  name  of  the  execntor  for  Ua  oiwn  use  aa  gnardiiB, 
and  the  exeoator  oan  not  prevent  it;  or  he  miqr  mU  and  tranafer  ik 

OUABDIAK  BA8  POWBB  TO  SXLL  WaBD's  FkBBONAL  BrATI. 

Baub  09  Wabi>*8  PBonomr  BT  OvABDiAK  TO  Pat  his  Oww  Dn»ia  a  braaah 

of  tmat. 
liiBB  Travd  ov  OvABiKUjr  or  Saui  or  WAU^'ii  PBomerT  la  not  aofflfllMl 

to  invalidate  the  tranaaotion  aa  against  innooent  partlsa. 
OiTB  Who  Rrainna  mDM  Ovabdiah,  nr  FAmnv  ot  Dibi,  Wabd^  P^p^ 

■BTT,  homa/de^  for  valoe,  witboat  aotaal  or  oonstnuitiva  notfoe  tiiat  the 

property  does  not  belong  to  the  guardian,  ia  not  liaUa  ta  the  waid. 
SQumiB  Bbxno  Equal,  Law  Pbbvailb. 

PUBCHASBB  90B  VaLUB  WITHOUT  NOTIOB  OF  VbaUD  DT  HIS  YhHIMIB  Stsads 

upon  aa  high  gitmnd  in  equity  as  any  other  creditor  or  eeahd  qm  tnuL 

filTBBTIBS  OF  OUABDIAVy  WhO  HAS  TBAMVFBBBBD  HIB  WaBI>%  PBOFBBTT  DI 

Patmbiit  OF  HD  OwK  DxBT,  and  afterwards  become  Inaoivant,  having 
been  obliged  to  pay  the  ward  the  amonnt  of  his  estate  in  the  goardian's 
hands,  oan  not  recover  against  the  innocent  transferee  when  they  have 
permitted  the  gnardian  to  retain  the  ward's  estate  without  qnestion  for 
fifteen  years,  and  for  ei^t  years  after  the  ward's  coming  of  age,  withont 
aeeking  to  compel  the  gnardian  to  pay  over  to  the  waid  hia  estate,  al<* 
though  daring  this  time  he  was  solvent,  and  able  to  psdbrm  the  dntiss 
of  his  trust. 

Bill  in  equity.    John  Thompson  was  the  ezeontor  of  Qeorgb 
Pottie  who  leti  a  widow  and  sereral  minor  ohildron.    One  B.  8 
Sandridge  became  the  guardian  of  Geoige  Pottie,  one  of  the 
minor  childzen  of  Qeoxge  Pottie,  deceaaed.    libthaniel  Ihomp* 
Bon  married  the  widow  and  qualified  aa  the  gottdian  of  Isabella 


April,  1864.]    HuNTEB  V.  LiLWBSNCifs  AsatBL  Ml 


The  executor,  John  Thompson,  divided  among  the  leg^ 
fttees  forty-five  thonaand  doUazs.  Nathaniel  Thompson,  as  the 
husband  of  the  "widow,  reoeived  fifteen  thousand  dollars,  and  as 
the  guardian  of  Isabella  Pottie  received  six  thousand  dollars. 
Sandridge,  as  guardian  of  Qeorge  Pottie,  received  six  thousand 
dollars.  These  legacies  were  paid  prindpallj  in  bonds,  or  other 
evidences  of  debt.  -  Sandridge,  George  Pottie's  guardian,  re- 
ceived a  bond  for  five  thousand  dollazs,  executed  by  Isaac  Wins- 
ton to  John  Thompson,  the  executor.  This  bond  was  dated  the 
thirteenth  of  November,  1820,  and  was  payable  the  thirteenth 
of  November,  1826,  with  l^gal  interest  payable  semiannually.  It 
was  secured  by  a  deed  of  trust.  There  was  no  assignment  ol 
the  bond.  The  executor  simply  transfened  it  to  Sandridge. 
Sandridge  died,  and  Nathaniel  Thompson,  the  husband  of  the 
widow  and  guardian  of  Isabella,  became  also  the  guardian  of 
George  Pottie.  The  bond  of  Winston  then  came  into  the  hands  of 
Nathaniel  Thompson  as  part  of  the  estate  of  Qeorge  Pottie. 
John  Hunter,  the  defendant  and  appellant,  married  Isabella 
Pottie.  And  in  a  conversation  between  him  and  Isabella's 
guardian  the  latter  told  him  that  he  was  indebted  as  guardian 
to  Mrs.  Hunter  to  the  amount  of  about  six  thousand  dollars; 
that  he  held  the  bond  of  Winston,  and  that  he  had  recently  seen 
Winston,  who  promised  to  pay  the  amount  in  installments,  and 
that  as  fast  as  Winston  paid  him  he  would  pay  Hunter  in  part 
discharge  of  the  debt  due  the  latter^s  wife.  But  Hunter  said 
that  the  bond  might  as  well  be  transferred  to  him.  He  had  no 
need  of  the  money,  and  would  like  to  have  it  in  safe  hands  bear- 
ing interest.  This  was  done,  and  Hunter  held  the  bond  for 
nearly  twenty  years  and  received  the  interest  on  it  before  he  go1« 
lected  the  principal  from  Winston.  This  conversation  occupied 
only  about  five  or  ten  minutes,  and  Hunter  was  never  informed 
by  Thompson  that  he  held  the  bond  as  a  part  of  the  estate  of 
Qeorge  Pottie,  jun.  And  there  is  no  evidence  that  Hunter  ever 
became  aware  of  this  until  after  the  fiiilure  of  Thompson,  which 
occurred  some  fifteen  years  after  the  transfer  of  the  bond  to 
Hunter.  Some  eight  years  before  the  failure  of  Thompson, 
George  Pottie  came  of  age,  but  he  did  nothing  to  collect  what 
was  due  him  from  Thompson,  his  guardian,  until  after  his  fail- 
ure. Nor  did  the  sureties  of  Thompson  do  anything  to  accom- 
plish this  or  to  relieve  themselves  from  their  liabilities.  But 
soon  after  the  failure  Pottie  brought  suit  on  the  official  bond  of 
his  guardian  and  obtained  judgment,  a  part  of  which  was  paid 
bj  the  administrators  of  Lawrence  and  Garland  Thompson,  two 

Am.  Dsa  Vou  LXII— 41 


84S  HuNTEB  V.  LiLWRENCirs  Adm^        [Virgimai 

of  the  Buxettes.  Fire  years  after  the  faahixe  these  administm- 
tora  brought  this  suit  against  Hunter  to  obtain  a  repayment  of 
the  amount  paid  by  them  as  the  sureties  of  Thompson,  the 
guardian  of  (George  Pottie.  The  bill  stated  substantially  the 
aboTe  fiicts,  mth  the  ezoeption  that  it  charged  Hunter  with 
fraud,  alleging  that  he,  apprehending  some  difficulty  in  obtain- 
ing the  money  due  his  wife,  and  knowing  that  Winston's  bond 
was  the  property  of  the  ward  (George  Pottie,  and  not  of  Thomp- 
son, combined  fraudulently  with  Thompson  in  obtaining  an  as- 
signment of  the  bond.  And  it  was  charged  that  Hunter  knew 
these  &cts,  because  he  had  been  derk  of  the  county  court  of 
Louisa,  where  the  settlement  of  Sandridge's  account  as  guard- 
ian was  recorded,  which  contained  information  of  the  fact  that 
the  bond  was  the  property  of  the  ward  Qeorge  Pottie.  The 
bill  prayed  that  Hunter  be  compelled  to  surrender  the  bond  of 
Winston  and  to  pay  the  interest  he  had  receiTed  upon  it,  or  if 
the  bond  had  been  paid  to  pay  the  amount  thereof  to  the  com- 
plainants«  and  for  general  relief.  Hunter  in  lus  answer  denied  aU 
knowledge  that  the  bond  formed  a  part  of  the  estate  of  George 
Pottie,  jun.,  and  denied  the  other  charges  of  the  bill  relative  to 
his  fraud.  He  denied  that  from  his  position  as  derk  of  the 
court  he  had  any  knowledge  that  the  bond  had  been  received  by 
Thompson  from  Sandridge's  administrator,  or  was  in  any  way 
the  property  of  Gtoorge  Pottie,  jun.  And  he  alleged  that  the 
record  of  the  settlement  of  Sandridge's  guardianship  account 
was  recorded  in  the  handwriting  of  one  of  his  deputies,  and  this 
was  proved.  He  denied  that  he  apprehended  any  difficulty  in 
obtaining  his  wife's  fortune  from  Thompson,  as  Thompson  was 
at  the  time  of  the  transfer  of  the  bond  to  him  in  good  circum- 
stances and  amply  able  to  pay  the  debt,  and  this  latter  fact  ap- 
peared from  the  proof.  The  court  decreed  that  Hunter  pay  the 
plaintiffs,  the  administrators  of  Lawrence  and  Ghurland  Tbomp^ 
son,  the  sums  paid  by  them  as  sureties  of  Nathaniel  Thompson^ 
with  interest  and  costs,  and  from  this  decree  Hunter  was  al- 
lowed an  appeal. 

Morson  and  Bobmaon,  for  the  appellant. 

PatUm,  for  the  appellees. 

By  Ck>urt,  Samuels,  J.  Nathaniel  Thompson,  as  guardian, 
was  in  possession  of  Winston's  bond,  as  part  of  the  estate  of 
George  Pottie,  his  ward.  Whatever  interest  the  ward  had 
therein  was  subject  to  the  guardian's  control;  he  might  have 
leodved  the  money  due  thereon  if  voluntarily  paid;  he  might 


■ 

I 


April,  1854]    HmnxB  «.  Ljlwrekoe's  Adm^  648 

have  sued  for  it  in  a  oommon-law  court  in  the  name  of  John 
Thompson,  executor  of  Geoige  Pottie,  the  obligee,  but  for  his 
own  use  as  guardian  and  the  nominal  plaintiff  would  have  had 
no  power  to  prsTent  the  prosecution  of  the  suit,  or  to  preyent 
the  collection  of  the  money  for  the  use  of  the  guardian;  or  he 
might  have  sold  and  transferred  the  bond.  But  in  any  exer- 
cise of  his  authority  the  guardian  must,  at  his  peril,  have  acted 
with  proper  discretion  in  reference  to  the  ward's  interest.  It  is 
for  the  benefit  of  the  ward  himself  that  the  guardian  should,  if 
possible,  be  regarded  as  haying  the  legal  title  to  the  ward's  per« 
sonal  estate.  That  title  may  be  essential  to  the  protection  of 
the  properly  itself;  the  guardian  is  responsible  for  its  safe- 
keeping,  and  it  would  be  unjust  to  deny  him  the  means  which 
may  be  the  only  effectiye  means  of  discharging  his  duty. 
In  Garland  y.  Bicheson^  4  Band.  266,  it  was  held  that  an 
assignee  of  a  bond  acquired  no  legal  titie  to  the  debt;  and  it 
follows  a  farHori  that  a  mere  transferee  acquires  no  legal  title. 
Tet  we  have  seen  that  the  transferee  may  in  a  common-law 
court  recover  the  money;  and  that  the  supposed  holder  of  the 
legal  title  can  not  intoiere  to  prerent  such  collection.  It  is 
obvious  that  John  Thompson,  the  holder  of  the  legal  title,  and 
the  obligee  in  this  bond,  cotdd  not  recover  the  money  due  if 
the  holder  sued  for  his  own  use,  or  the  bond  itself  in  detinue, 
or  its  value  in  trover.  It  is  diffictdt  to  understand  a  legal  title 
thus  shorn  of  the  rights  usually  conferred  thereby.  It  is 
enough,  however,  for  the  purposes  of  this  case,  to  decide  that 
Nathaniel  Thompson,  the  guardian,  was  invested  with  such  titie 
as  was  the  subject  of  sale,  whether  legal  or  equitable,  or  partiy 
legal  and  partly  equitable,  or  equitable  in  form  but  legal  in  effect. 
The  interest  of  the  ward  requires  that  his  guardian  should 
have  the  power  to  sell  his  personal  estate.  Under  certain  cir- 
cumstances, readily  conceived,  an  immediate  expenditure  of 
money  might  be  indispensable  to  protect  the  estate  against  loss; 
the  guardian  might  find  that  the  best  mode,  or  only  mode,  of 
raising  the  money  was  by  a  sale  of  bonds  belonging  to  the 
ward's  estate.  Under  such  circumstances,  a  delay  for  collection 
might  be  injurious,  or  even  ruinous,  to  the  ward's  fortune.  It 
is  no  valid  objection  to  allowing  the  guardian  this  power  to  say 
it  may  be  abused.  Every  power,  however  necessary,  may  be 
abused.  The  objection  would  apply  to  every  case  in  which  one 
party  is  intrusted  with  the  property  of  another.  This  power  is 
justified  by  the  reason  and  fitness  of  things,  and  is,  moreoveri 
well  sustained  by  authority. 


644  HUHTER  V.  LiLWEXBrcrs  AdmIl        [Yiigfaila. 

In  IhiM  T.  Old,  6  Band.  666  [18  Am.  Deo.  748],  Judge 
Gzeen,  speaking  of  guarduuiBy  Bays:  '*  Their  aathoiifyiaooapled 
with  a  legal  interest,  and  is  not  baielj  an  offioe.  It  is  an  in- 
terest like  that  of  a  trustee  for  the  separate  use  of  a  married 
woman,  an  executor  in  trust,  or  an  administrator  of  an  estate 
of  which  there  is  no  suiplus  after  the  payment  of  debts — all  of 
whom  haTe  a  legal  without  any  beneficial  interest."  Judge 
'Green  expresses  the  further  opinion  that  the  guardian  has  power 
vfto  sell  his  ward's  personal  estate. 

In  Bank  of  Virginia  t.  Craig,  6  Leigh,  899,  426,  Judge  Can 
Bays:  **  The  power  and  legal  title  of  Fox  [the  guardian]  to  dis- 
pose of  the  stock  [the  ward's  property]  is  proved  by  many 
cases. '*  And  in  this  opinion  Judges  Brockenbrougfa  and  Cabell 
concurred.  In  the  same  case,  page  428,  Judge  Tucker  says:  "  It 
is  conceded  also  that  as  a  general  rule  a  guardian  has  power  to 
dispose  of  the  personal  estate  of  his  ward;  and  though  person- 
Ally  responsible  for  so  doing,  the  Tcndee  to  whom  he  sells  is  not 
.TesponsiUe  if  he  has  dealt  fairly  and  justly,  and  without  notice 
-  of  any  fraudulent  intent.'* 

In  Field  t.  Sdiiefelin,  7  Johns.  Ch.  160  [11  Am.  Dec.  441], 
Chancellor  Kent  considers  the  question  of  a  guardian's  power 
to  sell  his  ward's  personal  estate;  and  comes  to  a  like  condu- 
\aion  with  our  own  courts. 

^Holding,  then,  on  the  general  qtiestion,  that  the  guardian  in 
this  case  had  the  power  to  sell,  the  question  recurs,  Did  he  ex- 
ercise his  power  within  the  limits  and  for  the  puxposes  pre- 
scribed by  law  }  The  answer  is  plain  that  he  did  not;  he  used 
his  power  for  his  own  individual  benefit,  by  appropriating  the 
ward's  property  to  pay  his  (the  guardian's)  own  debt.  This  was 
B  breach  of  trust,  a  fraud  upon  his  ward.  So  far  as  the  case  of 
the  appellees  depends  upon  the  conduct  of  Thompson,  the 
guardian,  it  is  fully  made  out. 

A  reoovexy,  however,  can  not  be  had  against  Hunter  without 
jsbowing  his  liability.  The  mere  fraud  of  the  guardian  is  not 
/Bufficient  of  itself,  imder  all  circumstances,  to  invalidate  his 
transactions  with  innocent  parties.  In  this  case  Hunter  took 
the  bond  on  Winston  of  Thompson,  who  concealed  the  right  in 
which  he  held  it,  and  passed  it  off  as  his  own  property.  It  was 
taken  at  par,  in  part  payment  of  a  debt  which  was  amply  se- 
cured. Hunter  was  not  induced  by  any  hope  of  profit  or  fear 
of  loss  to  take  the  transfer.  His  only  purpose  was  to  receive  a 
debt  justly  due  by  a  mode  of  payment  convenient  to  both  par- 
ties.   In  the  argument  of  the  case  here  it  vras  propedy  conceded 


AprflL  1854.]    HuMTER  «  Ljlwbxkce's  AdmU  645^ 

hy  the  appellee's  ootmael  ihat  Himter  did  not  in  fiict  know  that 
lliompson'8  title  WB8  imperfect;  but  he  contended  that  as  the  bonft 
on  its  face  was  payable  to  John  Thompson,  exeontor  of  Ctoorga- 
Pottie,  it  showed  that  at  one  time  other  parties  were  interestecl 
and  might  still  be  interested  therein;  that  if  Hunter  had  nsecl 
proper  cantiony  he  would  haye  inquired  further;  and  upon  sucb 
Inquiry  would  haye  ascertained  the  right  in  which  Thompsoi^ 
held  the  bond.  That  he  must  be  held  liable,  as  he  would  be  if 
he  had  procured  the  information  which  he  might  and  ought  to 
haye  obtained.  In  reply,  it  may  be  said  that  the  money  du» 
Hunter's  wife,  and  which  he  was  abont  to  receiye  at  the  handa 
of  her  late  guardian,  was  a  legacy  giyen  by  the  will  of  George 
Pottie,  of  which  John  Thompson  was  the  exeontor.  Thai 
'Nathaniel  Thompson,  the  guardian,  in  right  of  his  wife,  a 
legatee  in  Pottle's  will,  had  receiyed  fifteen  thousand  dollars 
of  the  executor  on  account  of  that  legacy;  that  these  two  lega- 
cies had  been  paid  wholly  or  in  part  by  the  transfer  of  paper 
belonging  to  Pottie's  estate.  Under  these  circumstances,  when 
the  guardian  proposed  to  transfer  as  his  own  a  bond  payable  to- 
Pottie's  executor.  Hunter  might  well  suppose  he  had  full  right. 
to  do  so;  any  man  of  ordinary  prudence  would  haye  been  satis* 
fied  that  all  was  right.  Hunter  must  therefore  be  acquitted  of: 
any  constructiye  fraud,  as  well  as  of  actual  fraud. 

Qeorge  Pottie,  the  ward,  and  Hunter,  the  purchaser  for  yalno^ 
without  notice,  are  the  yictims  of  Thompson's  fraud;  and  in  set* 
tling  the  question  of  loss  between  them,  the  court  should  pro* 
ceed  upon  the  general  principles  of  equily.  If  the  equities  be 
equal,  the  court  wUl  not  interfere;  or  if  one  party  haye  the  ad* 
yantage  at  law,  equity  will  not  interfere  to  depriye  him  of  that 
adyantage,  unless  in  fayor  of  a  parly  haying  superior  equiiy» 
Trying  the  case  by  these  tests,  we  must  hold  that  Hunter's 
equity  is  equal  to  that  of  Qeorge  Pottie;  a  purchaser  for  yalue» 
without  notice  of  fraud  in  his  yendor,  stands  upon  as  high 
ground  in  equity  as  any  creditor  or  cestui  que  traM, 

Again:  Thompson's  transfer  to  Hunter  gaye  him  the  power  at 
law  to  receiye  the  money  if  paid  by  Winston,  and  to  giye  him  a 
yalid  discharge;  or  to  sue  for  it  in  a  common-law  court  in  the 
name  of  Thompson,  the  executor,  for  his  own  use,  and  to  recoyer 
it  without  the  possibility  of  interference  by  the  nominal  plaint* 
iff  or  any  other  party.  Although  Hunter  may  not  haye  had  the 
legal  title  to  the  debt,  yet  such  were  l^.is  rights  and  powers  at 
law.  In  the  exercise  of  his  right,  he  has  receiyed  the  money^ 
and  thereby  acquitted  Winston  of  all  further  liability  therefor. 


646  Hunter  v.  Lawrence's  Adm^r.        [Virgixdai 

To  hold  him  xesponsible  to  George  Pottie,  we  must  depriTe  him 
of  the  advantage  given  by  his  legal  power  and  right.  To  arrive 
at  such  a  result,  we  must  overturn  aU  the  dedsions  of  the  courts 
upon  cases  of  the  same  or  like  kind. 

In  Broadua  v.  Bosson,  3  Leigh,  12,  the  parties  deahng  with 
the  guardian  were  fully  aware  of  his  breach  of  trust,  and  actively 
co-operated  with  him  therein  for  their  own  benefit,  and  for  thai 
reason  were  held  liable.  In  Dodson  v.  Simpson,  2  Band.  2M, 
the  party  dealing  with  an  executor  was  apprised  of  his  breach 
of  trust,  and  aided  him  therein,  and  was  therefore  held  aooount- 
able.  In  Fisher  v.  BasseU,  9  Leigh,  119  [83  Am.  Deo.  227],  a 
party  knowingly  dealing  with  an  administrator  who  in  breach  of 
his  trust  was  applying  the  assets  of  the  estate  to  his  own  use, 
was  held  responsible.  In  Pinckard  v.  Woods,  8  Oiatt.  140,  a 
party,  for  his  own  profit,  knowingly  dealing  with  an  executor 
in  such  way  as  to  enable  the  executor  to  commit  a  devastavU,  was 
made  liable.  In  each  of  these  cases,  and  in  many  if  not  all  oth- 
ers of  like  kind,  the  party  dealing  with  the  fiduciary  has  been 
held  responsible,  because,  and  only  because,  of  his  co-operation 
in  the  fraud.  In  our  case  this  ruling  fact  does  not  exist.  I  am 
therefore  of  opinion  that  George  Pottie  had  no  right  to  draw 
Hunter  in  question  for  his  dealing  with  Thompson  the  guardian. 

If  George  Pottie  had  no  right  to  recover  of  Hunter,  the  ap- 
pellees claiming  to  be  substituted  to  his  rights  can  have  no  right 
to  recover.  If,  however,  the  case  were  otherwise  between  Pottie 
and  Hunter,  still,  under  the  circumstances  of  this  case,  the  ap- 
pellees should  not  be  permitted  to  subject  the  appellant  to  any 
liability.  The  intestates  of  the  appellees  respectively  bound 
themselves  by  bond  as  securities  for  Thompson  as  guardian;  and 
in  1825,  when  this  bond  was  in  full  force,  their  principal  com- 
mitted the  breach  of  its  condition  which  is  complained  of  in 
this  suit.  At  that  time  the  securities  might  have  guarded  them- 
selves against  all  loss  by  using  a  small  degree  of  diligence. 
They  owed  it  to  themselves  and  to  the  ward  to  see  that  the  guard- 
ian who  obtained  possession  of  the  ward's  estate  by  means  of 
their  credit  faithfully  performed  his  trust;  they  should  at  least 
have  taken  care,  when  the  ward  attained  full  age,  that  the  guard- 
ian fulfilled  his  duty.  Instead  of  this,  however,  they  allowed 
the  guardian  to  retain  the  estate  for  fifteen  years  without  ques- 
tion. At  the  end  of  that  time,  and  eight  years  after  the  ward 
had  become  of  full  age,  the  guardian  becoming  insolvent,  the 
securities  are  compelled  to  pay  the  amount  of  the  ward's  estate 
in  the  guardian's  hands.    From  1825,  when  the  bond  was  trans- 


April,  1864]    Humteb  v.  LiLWRENCs's  Ad]C*b  847 

farxed  to  HuntAr,  to  1840,  Thompson  was  perfectly  Bolyent,  and 
eould  have  paid  his  ward  if  required  to  do  so;  yet  the  securities, 
eonfiding  in  Thompson's  integrity  and  resources  for  indemnity, 
permitted  him  to  retain  the  money  without  question.  The  loss 
resulting  from  the  misplaced  confidence  of  the  securities  should 
be  borne  by  their  estates;  they  trusted  first  and  they  trusted  last; 
they  are  asking  relief  against  a  party  who  is  at  least  as  innocent 
as  themselves,  and  whose  conscience  is  in  no  wise  touched  by 
their  claim;  he  should  not  be  held  liable. 

I  am  of  opinion  to  rcTerse  the  decree  and  dismiss  the  bill, 
with  costs  of  both  courts  to  the  appellant. 

Daniel  and  Lei,  JJ.,  concurred  in  the  opinion  of  Saxubls,  J. 

MoNcuBB,  J.,  concurred  in  reyersing  the  decree  and  dismiss- 
ing the  bill  upon  the  last  grounds  stated  in  the  opinion  of 
Sauvels,  J.,  without  dissenting  from  the  first  grounds  stated  bj 
him. 

Alleh.  J.  •  concurred  on  the  last  grounds  stated  by  Samuels,  J, 

Decree  reyersed  and  bill  dismissed. 


Guardian  mat  Transfeb  Legal  Title  to  Wabd's  Chose  in  Actions 
Oattry  v.  Owen,  60  Am.  Dec  549;  Thornton  t.  BanMn^  59  Id.  338;  Me  alio 
Pkillipa  V.  Davit,  ante,  p.  472.  The  principal  cMe  m  died  in  Ware  ▼.  Wart^§ 
AdnCr,  28  Oratt.  674,  to  the  point  that  whatever  interest  a  ward  has  in  a 
bond  is  Bubject  to  the  guardian*!  control  and  dispodtion,  and  held  that  the 
guardian  of  an  infant  hnsband  may  rednoe  to  poneuion  the  wife's  choeea  in 
action. 

Guardian  hat  S£LL  Ward's  Pkrsonaltt:  FIM  ▼.  Sdd^elin^  11  Am. 
Dec.  441. 

Sale  ov  Chosb  in  Action  bt  Guardian,  to  Pat  his  Own  Debt,  charges 
purchaser  if  he  haiT  notice:  Carpenter  v.  AfeBride^  62  Am.  Dec.  879;  and  in 
general  the  purchaser  of  trust  property  takes  it  subject  to  the  trust  if  he  has 
notice:  Id.,  and  cases  cited  in  note  384;  see  also  Huckabee  ▼.  BUUngtUe,  50 
Id.  183;  SuUon  r.  SuUan,  56  Id.  109,  and  notes.  But  a  bona  fide  purchaser 
from  a  trustee  is  protected:  S^e  note  to  WHliamM  t.  Otey,  47  Id.  637;  Beck  v. 
Uhrich,  53  Id.  507,  and  note;  see  Smitheai  ▼.  Oray,  34  Id.  664.  The  prin- 
cipal case  is  dted  in  MUU  v.  i/iW  Ev^n,  28  Gratt  501,  to  the  point  that  in 
Older  to  bind  a  party  dealing  with  a  fidudaiy  there  must  be  shown  direct 
collusion  between  such  party  and  the  fiduciary  to  defraud  the  estate.  In 
/ofi«s'  Ex*r9  V.  Clark,  25  Gratt  662, 667,  it  is  dted  to  the  point  that  in  order 
to  relieve  the  third  person  from  liability  to  the  trustee's  sureties  he  must 
be  a  honajlde  purchaser  for  full  value,  and  without  notloe. 

Equities  Being  Equal,  Law  Prevails!  Ommp  v.  Bladt,  61  Am.  Dec.  422* 


648  Staoiback  iK  BXAB  t^  Oa  [VirfpBi^ 

SiAiNBAGK  V.  Read  &  Co. 

[11  0BA9TAJI,  381.] 
POWKB  OV  ATTOBKBT  ICUST  BB  CONSTBUKD  AB    GlTlNO  AUTBOBTTT  TO  AOf 

ooly  in  the  aepftraie  indtvidifial  businesB  of  the  prinoipel,  in  the  absence 

of  anything  to  show  a  different  intention. 
Pabtt  Dbauko  wrrn  Agbsit  Acnmro  xjvdem,  WRimif  AmniORrnr  mnat 

take  notloe  of  the  extent  and  limiti  of  that  anthorfty. 
Jam  Bill  Dkawn  bt  Aokxt  nr  Namb  op  PBnrciPAL»  akd  ur  am  Own 

Individual  Capacitt,  ie  not  drawn  in  the  separate  individual  bosineH 

of  the  principal,  and  is  therefore  not  authorised  by  power  of  attorney  to 

tLrawbiUs. 
DiuwBBS  ur  Bill  ov  Ezohanob  abb  Bound  bt  Korcb  that  agent  acting 

under  power  of  attorney  has  no  authority  to  draw  the  bill  when  the 

principal  has  no  funds  in  their  hands  at  the  time,  and  has  no  other  reason 

to  suppose  it  would  be  acoepted. 
PowBB  TO  Dkaw  Bill  dobs  mot  Imflt  Authobitt  to  Cobtbact  to  !»• 

DBMHunr  the  acceptor  against  his  acceptance. 
AooBPTOBS  ov  Bill  Dkawn  fob  his  Own  Bbnbfit  bt  Aobnt,  acting  under 

power  of  attorney  to  draw  bills,  can  not  recover  of  principal  if  they  hava 

the  means  of  knowing  that  it  is  so  drawn. 

Assumpsit  by  Bead  &  Co.  against  L.  E.  Stainback  upon  a 
hill  of  exchange  in  which  the  plaintiffs  were  named  as  drawees. 
The  bill  was  signed  by  L.  E.  Stainback  by  F.  0.  Stainback,  his 
attorney,  and  by  F.  0.  Stainback.  It  was  indorsed  by  the 
payees  and  F.  C.  Stainback.  ^  The  plaintiffs  paid  the  draft  and 
charged  the  amount  to 'the  defendant  and  F.  0.  Stainback. 
Neither  the  defendant  nor  F.  O.  Stainback  had  any  funds  in  the 
plaintiflh'  hands  at  the  date  of  the  bill.  The  power  of  attorney 
by  L.  E.  Stainback  to  F.  C.  Stainback  was  introduced,  which 
empowered  the  latter  to  draw,  indorse,  and  accept  bills,  and  to 
make  and  indorse  notes  negotiable  at  the  Bank  of  Virginia,  in 
Petersburg,  in  the  principal's  name.  The  plaintiffs  introduced 
a  letter  signed  by  F.  C.  Stainback,  in  which  he  promised  ''  to 
duly  take  care"  of  the  drafts  in  question.  The  defendant 
asked  the  court  to  instruct:  1.  That  under  the  power  of  attor- 
ney F.  C.  Stainback  had  no  authority  to  draw  the  bill  on  the 
plaintiffs,  and  the  payment  of  it  by  them  gave  ihem  no  cause 
of  action  against  the  defendant;  2.  That  if  it  was  believed  that 
the  bill  was  drawn  by  F.  0.  Stainback  for  his  own  benefit,  and 
the  proceeds  thereof  went  to  his  own  use,  that  it  was  not 
authorized  by  the  power  of  attorney,  and  that  it  was  the  duty  of 
all  persons  dealing  with  F.  C.  Stainback  as  attorney  to  notice 
the  limitations  of  his  authority  as  contained  in  the  power;  3. 
That  the  power  of  attorney  gave  no  authority  to  F.  0.  Stain- 
back to  bind  the  defendant  by  drawing  or  indorsing  bills  for 


April,  1854.]       Stainback  v.  Read  &  Go.  649 

bis  own  benefit,  nor  unless  the  same  were  diawn  and  indorsed 
for  the  benefit  and  in  the  business  of  the  defendant;  4.  That 
if  the  jniy  beliere  from  the  evidenoe  that  the  object  of  the 
defendant  in  exeeating  the  power  of  attcnmey  was  to  authorize 
his  son,  F.  0.  Stainback,  the  attorney,  to  attend  to  and  transact 
the  bank  business  of  the  defendant  at  the  Virginia  Bank,  the 
defendant  being  then  a  merchant  in  Petersburg,  and  F.  C. 
Btainback  being  under  age,  and  that  the  bill,  the  payment  of 
which  by  the  plaintifEs  is  the  foundation  of  this  suit,  was  not 
drawn  by  the  attorney  in  transacting  the  defendant's  bank  busi- 
ness, but  for  his  own  use  and  accommodation,  then  the  attorney 
bad  no  power  to  bind  the  defendant  by  the  drawing  of  the  bill. 
The  court  refused  the  first  and  fourth  instructions,  but  gave  the 
second  and  third,  qualifying  the  same,  however,  by  instructing 
that  F.  C.  Stainback  was  authorized  to  draw  the  bill  and  sub- 
scribe his  principal's  name  thereto  in  the  manner  as  done,  and 
that  if  the  jury  believed  that  the  plaintiffs  accepted  and  paid  it 
without  notice  or  just  cause  to'suspect  any  intended  fraud  or 
misapplication  of  the  proceeds  from  the  use  of  the  principal, 
then  they  should  find  for  the  plaintiffs,  though  they  should 
believe  that  it  was  an  accommodation  acceptance.  And  that  if 
the  jury  should  believe  that  the  plaintiffs  were  not  engaged  in 
any  frimd  or  collusion  with  the  agent,  then  the  &ct  that  the 
agent  executed  the  bill  in  the  name  of  h'is  principal,  designating 
himself  as  attorney,  was  equivalent  to  a  declaration  on  his  part 
that  he  was  acting  in  his  principal's  business;  and  any  misap- 
plication of  the  proceeds  by  the  agent  after  they  came  into  his 
hands  (if  there  were  any  proceeds)  would  not  defeat  the  plaint- 
iffs' recovery.  To  the  giving  of  these  latter  instructions,  and  to 
the  refusal  of  the  first  and  fourth  requested  instructions,  the  de- 
fendant excepted.  Verdict  and  judgment  were  for  the  plaintiffs, 
and  the  defendant  applied  for  and  was  awarded  a  aupersetieM, 

Joynea  and  Patton^  for  the  appellant. 

D.  May  and  Stanard^  for  the  appellees. 

By  Court,  Samusls,  J.  A  proper  analysis  of  this  case  will  show 
that  it  turns  upon  two  questions:  1.  Whether  F.  0.  Stainback 
had  the  authority  of  L.  E.  Stainback,  his  principal,  to  draw  the 
bill  which  is  part  of  the  foundation  of  this  suit,  or  to  subject  his 
principal  to  an  action  on  a  collateral  contract  in  regard  tiiereto; 
S.  If  he  had  no  such  authority,  is  L.  E.  Stainback  still  liable 
for  the  act  of  the  agent  because  of  anything  in  the  dealing  be- 
tween the  agent  and  the  plaintiffs? 


4S0  Stainback  v.  Rkad  is  Oa  [Yifginiafe 


It  maj  be  laid  down  as  a  role  of  law,  Banetioned  alike  by 
4K>ii  and  authority,  that  a  power  of  attorney  giTm  to  an  agent, 
to  act  in  the  name  and  on  behalf  of  his  principal,  in  the  absence 
M>t  anything  to  show  a  different  intention,  mnst  be  constmed  as 
f^Ting  authority  to  act  only  in  the  separate  indiTidnal  business 
4»f  the  prindpid:  See  Story  on  Agen<7,  sees.  57-148;  Ahoood  t. 
Munninffs^  7  Bam.  &  Cress.  278;  North  Bwer  Bank  t.  Aymar^  8 
Bill  (N.  T.),  262;  Siamcr  t.  Tt^^  Id.;  Hewn  t.  Doddridge,  1 
Itobt.  143. 

It  is  equally  well  settled  that  a  party  dealing  with  an  agent 
acting  under  a  written  au&ority  must  take  notice  of  the  extent 
•nd  limits  of  that  authority.  He  is  to  be  regarded  as  dealing 
with  the  power  before  him;  and  he  must  at  his  peril  obserfe 
that  the  act  done  by  the  agent  is  legally  identical  with  the  act 
muthorized  by  the  power:  See  cases  aboTe  cited;  also  Baity  t. 
CarsweU^  1  Am.  Lead.  Cas.  663,  in  notes. 

These  rules  of  law  applied  to  the  fiicts  of  the  case  are  deci- 
«iTe  of  the  first  question.  The  bill  was  not  drawn  in  the  business 
of  L.  E.  Stainback,  but  in  that  of  F.  C.  Stainback  exdusiTely. 
It  was  not  identical  with  a  bill  drawn  in  the  separate  name  of 
Ij.  E.  Stainback.  A  joint  bill  imposes  a  joint  liability  on  the 
drawers  in  case  it  be  not  honored.  In  case  of  loss  in  the  busi- 
ness in  which  the  bill  is  drawn,  both  parties  are  bound;  and  in 
case  one  of  the  drawers  be  insolyent  and  the  other  solTent,  as 
tn  this  case,  the  whole  loss  must  fall  on  the  solvent  party.  If, 
iioweTer,  a  profit  be  made,  it  must  be  divided  between  those 
jointly  concerned.  A  contract  such  as  this  is  widely  different 
from  one  in  which  the  party  liable  for  a  loss,  if  one  occur,  is 
eolely  entitled  to  the  profit,  if  one  result. 

Again:  the  power,  in  any  event,  must  be  held  to  authorise 
the  agent  to  draw  such  bills  only  as  L.  E.  Stainback  might  him- 
self have  rightfully  drawn.  In  the  case  before  us,  neither  L.  E. 
Stainback  olone,  nor  L.  E.  and  F.  C.  Stainback  jointly,  had  any 
eight  to  draw  the  bill  in  question,  having  no  funds  in  the  hands 
of  the  drawees,  and  having  at  the  time  no  other  reason  to  sup- 
pose that  it  would  be  accepted.  The  drawer  of  a  bill,  when  he 
negotiates  it,  is  to  be  understood  as  affirming  that  he  has  the  right 
to  draw.  In  the  case  before  us,  L.  E.  Stainback  is  made  to 
falsely  affirm  such  right;  to  commit  a  fraud  by  means  of  the 
falsehood;  and  all  this  under  color  of  the  authority  conferred 
by  him.  Under  certain  circumstances  a  principal  may  be  bound 
by  the  act  of  his  attorney  going  beyond  his  power;  yet  he  can 
be  so  bound  only  to  an  innocent  holder  for  value.    Bead  k 


April,  1864.]       Stainback  v.  Read  &  Oo.  651 

Co.  are  not  holders  at  all;  thej  knew  perfectly  well  that  L. 
E.  Stainbaokf  either  solely  or  jointly  with  another,  had  no  right 
to  draw  on  them;  that  a  power  to  draw  bills  rightfully  wotdd 
not  extend  to  their  house  in  the  then  state  of  business  relations 
between  them  and  the  drawers,  or  either  of  them. 

The  letter  of  attorney  authorized  the  agent  to  do  certain  speci- 
fied acts,  including  tiie  drawing  of  bills.  This,  as  already 
stated,  is  to  be  construed  as  applying  to  the  rightful  drawing  ot 
bills  in  the  business  of  the  principal.  Within  these  limits  the 
agent  had  authority  to  pledge  the  credit  of  his  principal,  and 
subject  him  to  the  consequent  liability.  Yet  in  the  case  before 
us  the  defendant  is  sued,  not  upon  a  direct  undertaking  as 
drawer,  nor  upon  a  liability  incident  to  his  position  on  the  bill; 
he  is  sued  upon  an  alleged  contract  to  transpose  the  positions 
of  the  drawers  and  acceptors,  to  make  the  drawers  liable  to  the 
acceptors;  and  all  this  is  said  to  be  implied  in  the  drawing 
the  bill,  under  the  circumstances  existing  at  the  time.  It  can 
not  be  held  that  an  agent  may,  by  implied  contract,  bind  his 
principal  beyond  those  limits  within  which  he  might  bind  him 
by  express  contract;  nor  can  it  be  held  that  a  power  to  draw  a 
bill  in  itself  gives  the  further  power  to  make  another  original 
aud  express  contract  to  indemnify  the  acceptor  against  his  ac- 
ceptance. If  the  attorney  could  not  make  an  express  contract 
of  indemnity,  it  is  impossible  to  suppose  that  it  can  be  implied 
from  his  drawing  the  bill. 

The  second  question  has,  to  some  extent,  been  anticipated  in 
considering  the  first.  There  are,  howcTer,  certain  considera- 
tions peculiar  to  this  branch  of  the  case,  which  require  some 
notice.  It  is  well  settied  that  although  an  agent  may  in  fact 
exceed  his  power,  yet  if  he  apparenUy  keep  within  its  limits,  and 
deal  with  innocent  parties  for  value,  the  principal  will  be  bound: 
3lann  v.  King,  6  Munf.  428;  North  River  Bank  v.  Aymar,  8  Hill 
(N.  T.),  262.  It  is  but  just  that  the  principal  should  suffer  the 
consequences  of  his  own  misplaced  confidence,  rather  than  they 
should  fall  on  innocent  parties.  This  rule  of  law,  however  well 
established,  can  afford  no  aid  to  Bead  &  Co.  upon  the  facts  in 
this  case.  They  dealt  with  an  agent  acting  under  a  power  of  at- 
torney, and,  as  already  said,  must  be  regarded  as  deahng  with 
that  power  before  them.  They  were  bound  at  their  peril  to 
notice  the  limits  prescribed  therein,  either  by  its  own  terms  or 
by  construction  of  law.  With  this  knowledge,  they  nevertheless 
make  a  contract  which  is  not  one  of  those  specified  in  th« 
power,  but  an  original  contract,  to  subject  the  drawers  to  a  liaf* 


052  Stainback  V,  Read  &  Ca  [Yirginui^ 

biliiy  not  incidait  to  their  position  on  the  paper.  They  ao- 
oepted  the  bill,  having  no  fiinda  of  the  drawers;  they  knew  that 
their  aceeptanoe  would  make  them  liable  to  any  subsequent 
holder  for  value;  they  relied  upon  the  undertaking  of  F.  O. 
Stainback  for  indemnity;  this  undertaking  is  contained  in  the 
letter  dated  December  16, 1842,  the  day  the  bill  was  discounted^ 
advising  the  drawees  of  the  bill  and  its  discount,  and  promis- 
ing **  to  take  care  of  it;"  obviously  meaning  thereby  to  provide 
funds  for  its  payment  at  maturity.  This  undertaking  is  con- 
tained in  a  letter  from  F.  0.  Stainback  to  Bead  &  Co.,  given  in 
evidence  upon  the  trial.  The  letter  is  signed  by  F.  C.  Stain- 
back, with  his  own  name  only;  is  wholly  upon  his  own  business 
with  them;  and  must  be  held  to  be  an  express  guaranty  by  F. 
0.  Stainback  alone.  This  excludes  all  possibility  of  an  implied 
guaranty  by  L.  E.  Stainback,  either  joint  or  several. 

The  law,  as  here  declared,  required  that  the  first  and  fourth 
instructions  should  have  been  given;  and  seeing  that  by  neces- 
sary legal  intendment  Bead  &  Co.  did  know  the  limits  of  the  at- 
torney's power,  and  that  in  making  the  contract  sued  on  he  was 
exceeding  his  authority,  there  was  no  foundation  in  the  facts  of 
the  case  for  the  qualification  with  which  the  second  and  third 
instructions  were  given.  The  court  therefore  erred  in  annex- 
ing such  qualification. 

I  am  of  opinion  to  reverse  the  judgment  of  the  circuit  court, 
and  remand  the  cause  for  a  new  trial,  with  directions  to  give 
the  four  instructions  as  moved  for,  if  the  evidence  on  the  new 
trial  shall  be  substantially  the  same  as  on  the  former  trial,  and 
if  the  instructions  shall  be  again  asked  for. 

Allbm  and  Danisl,  JJ.,  concurred. 
MoHooui  and  Lu,  JJ.,  dissented. 


AoBMT  HAS  Only  Such  Powsbs  as  asm  BxpansLT  Orviw  ob  Ni 
ftAaiLT  luPLisD:  Wood  Y.  Ooodiidgt^  62  Am.  Deo.  771;  Ba^anUn  v.  Boi- 
/amtn,  39  Id.  384. 

Construction  of  Powkb  or  Attornbt;  Marr  r,  Given^  39  Am.  Deo.  600^ 
and  caaea  oitod  in  the  note.  The  principal  case  ia  cited  in  Dt  Vou  y.  CUff  ^ 
Bkkmand^  18  Oratt.  883,  to  the  point  that  it  is  the  duty  of  penons  dealiag 
with  an  agent  acting  under  a  power  to  take  notice  of  the  limita  thereof. 

AuTHOBiTT  or  Aourr  to  Exbocts  Nsqotiabli  IirsiBuiiiJm:  Paige  v. 
SUme,  43  Am.  Dec.  420;  lUher  v.  Salmon^  64  Id.  297;  MerekanUf  Bank  ^ 
CbOro/,  44  Id.  866;  Bank  qf  United  States  r,  Bdme,  42  Id.  661. 


April,  1854.]    FxTZHUOH's  Ex'b  v.  Fuzhugh.  658 

FrEZHuoH's  ExEOUTOB  t;,  FrrzHnoH. 

lUOB4TTAV,aOO.] 

CoHTBAOTs  Made  with  Exxcutob  or  Admhtistiutoii  arm  Pkbsonal,  and 
do  not  bind  the  estftte  of  the  decedent. 

BXBOTTTOB  OR  ADMIinSTBATOB  GAN  NOT  BB  SUED  AS  SUOH  fOB  GoODS  FdB- 

NISHXD  OB  SiByicis  Bbbdbbbd  to  the  ettAte  after  deoedent'e  death,  but 
for  such  oontraeti  the  remedy  u  agaiost  the  repreaetttatiTe  in  hia  privata 
capacity. 

PiBSONAL  RBFBB8S2ITATIYB  IB  NOT  LlABLB  AS  SUGH  lOB  FUNXBAL  EXPKNSBS 

or  Decedbnt. 
Pbomises  Which  Chabob  One  as  Exeoutob  gan  not  be  Joined  wttb 
Those  Which  Gkaboe  Him  Pxbsonallt,  because  the  judgment  in  the 
one  case  would  be  de  banit  propriU,  and  in  the  other  de  bomU  tetUUarU. 

DeSGBIPTION  or  DErENDANT  AS    EXECDTOB  OB  ADMINISTBATOB    IN  DbOLA* 

BATION  may  be  regarded  as  mere  aorploaage,  and  the  judgment  may  be 
against  him  personally  when  be  could  not  under  any  circumstances  be 
liable  in  bis  representative  capacity  to  the  char>i^  contained  in  the  decla- 
ration; but  this  can  not  be  done  where  the  defendant  could  on  any  sup- 
position be  liable  in  his  reprssentative  character  to  the  oootraot  or  demand 
dedared  on. 

Ck>UNT    AGAINST    EXBCDTOB   rOB    MONET  HaB  AND  ReCEITXD  GAN   NOT   BB 

Joined  with  Ck>UNT  roB  Monet  Dob  to  PLAiNTirr  by  defendant  as 
executor  upon  an  aocotmt  stated  with  him  of  money  due  from  him  as  ex- 
ecutor; the  former  showing  a  personal  charge  on  the  executor,  and  the 
latter  a  chaige  against  the  estate. 

Count  fob  Monet  Paid,  Laid  out,  and  Expended  bt  PLAiNnrr  for  the 
use  of  the  defendants  as  exeontors  can  not  be  joined  with  counts  charging 
a  personal  liability  upon  the  executor;  for  under  such  a  count  facts  might 
be  shown  which  would  haye  justified  a  recovery  de  honi$  tetUUon$f  and 
therefose  the  description  of  the  defendants  as  executors  can  not  be  re- 
garded as  mere  surplusage. 

BscEinoN  to  BErusAL  to  Gmc  Instbugtionb  not  Statxno  Facts  Pbotbd 
will  not  be  noticed  by  appellate  court. 

Upon  Revebsal  or  Judgment  Otebbuuno  Dbmubbeb  Gausb  mat  be 
Remanded  with  leave  to  amend  the  declaration,  and  with  a  direction  to 
the  court  to  render  judgment  in  favor  of  the  defendant  upon  the  failure 
of  the  plaintiff  to  make  a  motion  to  that  effect. 

Assumpsit  by  Q.  F.  Fiizbugb  againBt  the  ezeoutors  of  Tbomas 
Fitzbugb.  Tbree  counts  were  contained  in  the  decLuBtion.  The 
first  was  for  feed  of  horses,  board  of  negroes,  medicine,  and 
other  necessaries  furnished  to  the  defendants  as  executors  at 
their  special  instance  and  request.  The  second  was  for  attend- 
ance upon  slayes  belonging  to  the  testator's  estate,  and  for 
work  and  labor  done  and  performed  about  said  slaves  at  the 
special  instance  and  request  of  the  defendants  as  ezeoutors.  The 
third  was  for  money  paid,  laid  out,  and  expended  by  the  plaintifl 
for  the  use  of  the  defendants  as  exeontorv  at  thcdr  qpecial  i» 


654  I'itzhuqh's  Exit  i;.  Fitzhugh. 

stance  and  request.  The  defendants'  general  demurrer  to  the 
declaration  was  oyerruled.  The  pleas  were  non  assumpsii,  and 
non  a89ump8U  within  five  years.  To  the  refusal  of  the  court  to 
give  a  requested  instruction  the  defendants  excepted,  but  the 
bill  of  exceptions  set  forth  none  of  the  evidence  so  as  to  show 
the  relcTancj  of  ~  the  instruction  asked.  Verdict  was  for  the 
plaintiff.    The  defendants  weve  awarded  a  9uperaedeM. 

PaUon^  for  the  appellant. 

Mor9on,  for  the  appellee. 

By  Ck>urt»  Dasxxl,  J.  It  seems  to  be  well  established  as  a 
general  principle  that  contracts  made  with  an  executor  or  ad« 
ministrator  are  personal,  and  do  not  bind  the  estate  of  the  tes- 
tator or  intestate.  The  representative  has  no  power  to  chaige 
the  assets  in  his  hands  by  contracts  originating  with  himself; 
nor  can  any  other  person  reach  the  assets,  for  claims  originating 
since  the  death  of  the  decedent,  by  suit  against  the  representa- 
tive as  such.  For  such  contracts  and  claims  the  remedy  is 
against  the  executor  or  administrator  in  his  private  capacity. 
Whilst,  on  the  other  hand,  for  the  contracts  of  the  decedent  the 
representative  is  bound,  not  personally,  but  in  his  representative 
capacity:  Jennings  v.  Newman,  4  T.  B.  847;  Sumner  v.  WiUiamM^ 
8  Mass.  162, 199  [5  Am.  Deo.  83]. 

It  is  also  equally  as  well  setUed  that  promises  which  charge  a 
man  as  executor  can  not  be  joined  with  those  which  charge  him 
personally;  because  the  judgment  in  the  one  case  would  be  de 
bonis  propriis  and  in  the  other  de  bonis  tesUUoris:  Coryton  v. 
LUh^e,  2  Saund.  117  e,  note;  jE^'sAdm*r  v.  Dudley ,  5  Band. 
487. 

The  declaration  contains  three  counts.  The  charges  exhibited 
by  the  first  two  have  all  originated  since  the  death  of  the  testa- 
tor, and  unless  they  can  be  excepted  from  the  general  rule,  they 
lie  not  against  the  executor  as  such,  but  against  him  personally. 
The  counsel  for  the  appellee  argues  that  they  may  be  so  accepted; 
that  they  are  of  a  nature  entitling  them  to  stand  on  the  same 
footing  with  the  funeral  expenses  of  the  deceased,  for  which  he 
says  a  recovery  may  be  had  against  the  executor  in  his  repre- 
sentative character.  In  the  case  of  Comer  v.  Shew,  8  Mee.  &  W. 
850,  the  authorities  on  the  subject  were  reviewed,  and  the  sub- 
ject fully  discussed  and  examined,  as  well  by  the  counsel  of  the 
re8X)octive  parties  as  by  the  court.  The  authorities  relied  on  in 
that  case  for  the  proposition  that  the  funeral  expenses  consti- 
tuted a  charge  on  the  estate  and  could  be  demanded  of  the 


1864.]    FnzHUQH's  Bx'b  t;.  Ftezhucgb.  66S 

ezeoutor  as  suehy  were  TSigwdl  t.  Heynum^  8  Gamp.  298;  Bogerm- 
T.  Price^  8  You.  &  Jer.  28;  and  Lucy  y.  Wabrond^  82  Eng.  Com.  L^ 
849.  ''  With  respect  to  the  two  first  cases/'  Parke,  B.,  said,  <'  ii 
was  no  donbt  decided  by  them  that  there  is  an  implied  promise 
on  the  part  of  an  executor,  who  has  assets,  to  pay  the  reasonabhi- 
ezpenses  of  such  a  funeral  of  his  testator  as  is  suitable  to  his< 
degree  and  circumstances.  It  was  contended,  however,  at  the^ 
bar  that  those  decisions  were  against  a  prior  authoriiy  and  wer» 
wrong  (a  question  upon  which  it  is  not  necessaxy  for  us  to  giy»^ 
any  opinion),  but  that  if  they  were  right,  the  only  point  reallj 
determined  was  that  the  law  implies  a  contract  on  the  part  of 
the  executor  personally,  and  not  in  his  representative  character^ 
and  we  are  all  of  that  opinion."  And  of  the  last  case  he  di»» 
poses  by  saying  that  the  point  was  not  then  discussed,  and  thai, 
the  case  was  decided  on  the  ground  of  payment  of  money  into 
court.  I  have  examined  these  cases,  and  think  that  the  forego- 
ing views,  with  respect  to  the  authoriiy  to  be  deduced  from  them» 
is  correct;  and  that  the  conclusion  to  which  the  whole  court,  in. 
Comer  v.  8hew^  supra,  arrived,  viz.,  that  the  executor,  as  sucb» 
can  not  be  made  liable  for  the  funeral  expenses  of  the  testator^ 
may  now  be  regarded  as  the  well-settled  law  in  England.  In  this 
country  the  weight  of  authoriiy  is  in  favor  of  the  same  conclusioxk. 
In  Myer  v.  Cole,  12  Johns.  849,  and  in  Demott  v.  FLdd,  7  Cow.. 
68,  counts  on  promises  by  the  testator  were  joined  with  counts  on 
promises  by  the  executor  as  such  to  pay  for  the  funeral  expenses 
of  the  testator;  and  in  each  case  it  was  held  that  the  declaration 
could  not  be  sustained;  the  counts  on  the  promises  by  the  tes- 
tator requiring  a  judgment  de  honia  iesialoris,  and  the  counts  on. 
the  promises  by  the  executor  to  pay  for  the  funeral  expensea^ 
judgments  de  bonis  propriis.  The  court  said  that  the  last-men- 
tioned promises  were  personal,  and  though  the  estate  of  the  tes» 
tator  in  the  hands  of  the  defendant  would  be  liable  over  to  him 
for  tlie  funeral  expenses,  that  did  not  alter  the  form  of  the  pro- 
ceeding. 

In  Hapgood  v.  Houghton,  10  Pick.  164,  which  was  assumpsiii' 
against  an  executor,  a  count  on  a  promise  by  the  testator  was 
joined  with  a  count  for  the  funeral  expenses,  alleging  that  thej 
were  incurred  at  the  request  of  the  executor,  and  that  he,  as  such, 
promised  to  pay  therefor;  and  the  court  held  there  was  no  good 
objection  to  the  joinders.  It  will  be  seen,  however,  that  ths 
plaintiff  mainly  relied  on  a  statute,  the  count  for  the  funeral  ex- 
penses, after  stating  that  they  were  incurred  with  the  consent  and 
knowledge  and  at  the  request  of  the  defendant,  adding  *'  thai. 


\ 


656  FcrzHUQH's  Bx'k  u  JTHzhucol        [Viigiiii% 

therein  and  by  foroe  of  the  statate  in  Bach  case  made  and  pro- 
videdy  the  said  defendant,  in  his  said  capacity,  became  liable  to 
pay  the  same,  and  in  consideration  thereof  as  executor  promised,*' 
etc.  And  the  coort,  in  delivering  its  opinion,  is,  I  think,  fairly 
to  be  understood  as  resting  its  judgment  mainly  on  the  statute. 
In  the  case  of  Parker  y.  Lewis  ^  2  Dev.  21,  it  must  be  conceded 
the  question  seems  to  have  been  untrammeled  by  such  consid- 
erations, and  to  have  been  decided  on  the  views  which  the  court 
entertained  of  the  rule  of  the  common  law  on  the  subject;  and 
it  was  then  held  that  such  expenses  are  a  charge  on  the  assets, 
independently  of  any  promise  by  the  administrator,  upon  the 
ascertainment  of  the  fact  that  they  ore  of  that  description,  and 
proper  for  the  estate  and  degree  of  the  deceased.  And  an  in- 
struction given  in  the  court  below  that  the  defendant  was  liable 
for  them  in  his  character  of  administrator,  without  a  previous 
request  or  promise,  was  sustained.  The  case,  however,  stands 
opposed  to  the  current  of  decisions  on  the  subject;  and  I  think 
we  are  well  justified  in  regarding  it  as  settled  that  such  expenses 
constitute  no  exception  to  the  general  rule,  which  chaiges  the 
executor  in  his  individual,  and  not  in  his  representative,  charac- 
ter for  claims  against  the  estate  originating  since  the  death  of 
the  decedent.  Be  this  as  it  may,  the  authorities  seem  to  be  al- 
most imiform  in  holding  that  all  other  services  rendered  for  the 
estate  after  the  death  of  the  testator  chaige  the  executor,  if  at 
all,  personally.  And  in  addition  to  those  already  referred  to  as 
sustaining  the  general  principle  from  which  such  a  rule  may  be 
deduced,  maybe  cited  the  cases  of  Vaughn  v.  Cfardner,  7  B.  Mon. 
826,  and  LoveU  v.  Meld,  6  Yt.  218,  in  which  the  precise  question 
was  decided.  In  the  former,  it  was  decided  that  with  promises 
by  the  testator  to  pay  for  work  and  labor  done  and  services  ren- 
dered for  him  in  his  life-time  might  be  joined  promises  to  pay 
for  tbe  same,  by  the  executor;  whilst  promises  by  the  executor 
in  consideration  of  services  performed  for  him  as  executor  could 
not  be,  because  the  judgment  in  both  of  the  first-mentioned 
promises  would  have  iohe  de  bonis  teskUoriSt  &nd  on  the  last 
de  bonis  propriis.  And  in  the  latter,  the  same  principle  was 
announced.  The  court  said  that  the  administrator  could  not 
promise  to  bind  the  estate  for  goods  furnished  for  the  bene- 
fit of  the  estate.  The  promise  is  his  own,  and  he  is  personally 
liable.  He  may  make  it  on  the  credit  of  the  estate  in  his  hands, 
but  whether  he  has  a  right  to  pay  out  of  the  same  depends  on 
its  receiving  the  sanction  of  the  probate  court. 
It  seems  to  me,  from  this  view  of  the  law,  that  the  promisea 


April,  1854]    FnzHUQH's  Ex'lt  v.  FrrzaaoB.  W 

Bet  forth  in  the  first  two  ooants  can  create  no  liabilily  on  the 
executor  as  such,  and  charge  him  only  personally.  If  the  third 
count  was  of  the  same  kind,  the  judgment  of  the  court  overrul- 
ing the  demurrer  might  most  probably  be  sustained.  For  in 
the  case  of  Comer  y.  Shew,  3  Mee.  &  W.  350,  it  is  stated  as  kw 
that  if  the  defendant  could  not,  under  any  circumstances,  be 
liable  to  the  charges  made  against  him  as  executor,  those  words 
in  the  declaration  might  be  struck  put  as  surplusage,  which, 
however,  could  not  be  done  in  a  case  in  which  a  defendant  could 
on  any  supposition  be  liable  in  that  character  to  the  contract  or 
demand  declared  on.  And  in  2  Williams  on  Executors,  1096, 
it  is  said  that  where  the  nature  of  the  debt  is  such  as  necessarily 
to  make  the  defendant  liable  personally,  the  judgment  will  be 
de  bonis  propriis,  although  he  be  charged  as  executor.  In  the 
case  of  Sims  v.  SlUwell,  3  How.  (Miss.),  176,  the  rule  is  stated 
in  very  much  the  same  terms;  and  in  2  Williams  on  Executors, 
1099,  it  is  said  that  when  the  executor  is  personally  liable,  the 
naming  him  executor  may  be  regarded  as  surplusage. 

The  third  count  is  for  divers  sums  of  money  paid,  laid  out, 
and  expended  by  plaintiff  for  the  use  of  defendants  as  executors. 
Under  such  a  count  facts  might  have  been  shown  which  would 
have  justified  a  recovery  de  bonis  iestatoris.  It  seems  to  be  now 
well  settled  that  a  count  against  an  executor  for  money  had  and 
received  can  not  be  joined  with  a  count  for  money  due  to  plaint- 
iff by  defendant  as  executor  upon  an  account  stated  with  him  of 
money  due  from  him  as  executor;  the  first  being  treated  as 
showing  a  personal  charge  on  the  executor,  and  the  last  a  charge 
against  the  estate:  Ashby  v.  AshJby,  14  Eng.  Com.  L.  202.  In 
that  ease  there  were  three  counts  against  the  defendant  as  execu- 
tor: the  first  for  money  paid,  etc.,  to  the  use  of  defendant  as 
executor;  the  second  for  money  received  by  defendant  as  executor 
to  the  plaintiff's  use;  and  the  third  on  an  account  stated.  The 
court,  holding  it  clear,  according  to  the  authorities,  that  there 
was  an  improper  joinder  of  the  second  and  third  counts,  did  not 
deem  it  necessaiy  to  decide  upon  the  character  of  the  first, 
though  there  was  a  strong  intimation  of  opinion  that  the  first 
count  was  for  matter  which  charged  the  executor  in  his  repre- 
sentative character.  Bayley,  J.,  said:  "  In  the  first  count  of  the 
declaration  before  us,  the  money  is  stated  to  have  been  paid  by 
the  plaintiff  to  the  use  of  the  defendant  as  executor.  That  im- 
ports that  the  plaintiff  has  paid  it,  not  on  the  personal  account 
of  the  defendant,  but  that  he  has  paid  it  for  him  because  he  was 
executor;  that  is,  as  it  seems  to  me,  in  release  of  something 

▲m  .  Dm.  Vou  LXn— 13 


668  Fuzhugh's  Ex'b  v.  Fttzhuoh.        [Virginuk 

which  would  otherwise  have  been  a  burden  on  the  assets  of  the 
testator.  I  think  that  the  plaintiff,  having  paid  the  money  to  the 
use  of  the  defendant  as  executor,  has  the  same  right  that  before 
such  payment  belonged  to  the  person  to  whom  it  was  made,  and 
consequently  that  he  (the  plaintiff)  may  charge  the  assets  of  the 
testator.  To  put  a  plain  case:  Suppose  two  persons  are  jointly 
bound  as  sureties;  one  dies;  the  survivor  is  sued,  and  is  obliged 
to  pay  the  whole  debt.  If  the  deceased  had  been  living,  the 
survivor  might  have  sued  him  for  contribution,  in  an  action  for 
money  paid;  and  I  think  he  is  entitled  to  sue  the  executor  of 
the  deceased  for  money  paid  to  his  use  as  executor."  Like 
opinions  were  expressed  by  other  members  of  the  court.  In 
the  argument  of  the  case  of  Comer  v.  Shew,  3  Mee.  &  W.  850, 
it  seems  to  have  been  conceded  that  such  was  the  law;  and  it 
was  also  thus  held  in  the  case  of  Collins  v.  Weiser,  12  Serg.  &  B. 
97.  The  character  of  a  count  for  money  had  and  received  and 
of  a  count  on  account  stated  against  an  executor  had  been  con« 
sidered  by  this  court,  and  adjudged  in  accordance  with  the 
decision  in  Ashby  v.  Ashby,  14  Eng.  Com.  L.  202;  it  being  de- 
cided in  Fairfaxes  Ex'rs  v.  Stover,  2  Call,  614,  that  on  the  former 
the  judgment  should  be  de  bonis  propriis,  and  in  Hjf^es's  Adm'r 
V.  Dudley,  5  Band.  437,  that  on  the  latter  the  judgment  should 
be  de  bonis  tesiatoris.  1  see  no  reason  for  doubting  that  the 
opinion  expressed  in  that  case,  Ashby  v.  Ashby,  supra,  with  respect 
to  the  count  for  money  paid,  etc.,  to  the  use  of  the  executor,  is 
also  now  the  law.  Such  being  the  case,  there  was  an  impi'oper 
joinder  of  counts  in  the  declaration,  and  the  court,  instead  of 
overruling,  ought  to  have  sustained  the  demurrer. 

On  the  trial  an  exception  was  taken  to  the  action  of  the  court 
in  refusing  to  give  certain  instructions  asked  by  the  defendant. 
The  facts  of  the  case  are,  however,  not  stated,  and  in  their 
absence  we  can  not  undertake  to  decide  whether  the  court  did 
right  or  wrong  in  refusing. 

I  think,  therefore,  that  in  accordance  with  Hale  v.  Crow,  9 
Gratt.  2G3,  and  Strange  v.  Floyd,  Id.  474,  the  judgment  should 
be  reversed  and  the  cause  remanded,  in  order  that  the  defendant 
in  error  may  amend  his  declaration,  if  so  advised;  and  on  hia 
failure  to  make  a  motion  to  that  effect,  that  the  court  may  ren« 
dcr  judgment  for  the  plaintiff  in  error. 

The  other  judges  concurred  in  the  opinion  of  Dakiel,  J. 

Judgment  reversed. 

ExcEPTiox  NOT  Stating  Facts  Proved  :  See  Farisk  v.  HeigU,  past,  p.  66(>,  ami 
cited  in  the  note  tberpto.    The  principal  case  ia  cited  to  the  point  thai 


July,  1864.]  Bailet  v.  JAioa  659 

when  it  doM  not  appear  from  the  bill  of  ezoeptiona  whether  the  Instmetiona 
were  relevant  or  iirelevant,  they  will  not  be  revised  by  an  appellate  court, 
but  will  be  presumed  to  have  been  correctly  given,  in  Shepherd  v.  AfcQuUkinf 
2  W.  Va.  100;  Wise  v.  PoallewaU,  3  Id.  455;  Hoofy,  HoUins,  5  Id.  641 ;  Strader 
V.  Oof,  6  Id.  264;  Shrewthury  v.  Miller,  10  Id.  124;  IlaU  ▼.  HaU,  12  Id.  22$ 
Campbell  v.  Hughes,  Id.  209. 

Executors  axd  Administrators,  wiien  Personally  Liable  on  Con- 
tracts: See  Mason  v.  Caldwell,  48  Am.  Deo.  330;  Davis  v.  French,  37  Id.  38, 
and  cases  cited  in  the  note. 

Counts  upo.v  Promises  bt  Intestate  and  Administrator  mat  be  Joinedi 
Gregory  v.  Iloober,  9  Am.  Dec  646. 

Description  as  Administrator,  when  Surplusage:  See  Tate  v.  Shacked 
ford's  AdnCr  60  Am.  Dec.  488. 


Bailet  v.  James. 

[II  OaATTAX,  4fi8.J 

Vendor  haying  Conteteo  Equitable  Interest  Existdto  under  Title- 
bond,  and  authorized  vendee  to  acquire  legal  title,  the  vendee's  default 
in  failing  to  obtain  the  legal  tillo  furnishes  him  no  defense  against  the 
payment  of  the  purchase  money. 

Entire  Contract  for  Sale  of  Land  for  Specific  Sum  of  Monet  can  not 
be  rescinded  in  part. 

Failure  of  Title  to  One  Undivided  Seventh  of  Land,  purported  to  be 
conveyed  with  two  other  undivided  sevenths,  for  a  specific  sum,  is  ground 
for  the  rescission  of  the  entire  contract,  but  the  contract  being  entire,  it 
can  not  bo  rescinded  in  part  and  enforced  as  to  the  residue;  and  if  the 
vendee  decline  to  rescind  the  entire  contract,  he  must  pay  the  whole  pur- 
chase money. 

Sals  without  Warranty  of  Equitable  Interest  in  Realty  Claimed 
under  Contuact  of  Sale  of  such  equitable  interest  implies  an  under- 
taking that  such  contract  was  made  by  one  competent  to  contract;  and 
where  the  contrary  proves  true,  it  is  ground  for  the  rescission  of  the  sale. 

Interest  should  be  Allowed  upon  Amount  in  Bond  fob  Patment  of 
PcRCHASE  Money  of  land  which  contains  a  condition  that  upon  the  fail- 
ure of  the  vendee  to  obtain  title  from  a  third  person  the  obligation  is  to 
be  void,  when  the  vendee  lias  been  given  possession,  and  has  continued 
to  hold  it,  neglecting  to  obtain  the  legal  title. 

Vendee  may  wl  Decreed  to  Pay  Pukciiase  Moxey,  though  no  deed  be 
decreed  from  the  vendor  to  the  vendee,  when  the  vendor  has  only  an 
equitable  title  in  the  property,  and  has  sold  his  interest,  authorizing  and 
empowering  the  vendee  to  acquire  the  legal  title. 

Bill  by  John  James  against  C.  P.  Bailey  to  rescind  contract 
for  sale  of  interest  in  realty,  or  to  subject  the  land  to  the  pay- 
ment of  the  x^urchase  price.  In  1797  or  1798  John  James,  the 
father  of  the  plaintiff,  purchased  the  land  in  question  from 
Joseph  Spencer,  and  took  a  title-bond  for  the  title.    He  died  in 


Bailet  v.  Jamb.  [Viigiiii% 

1800,  kaifiag  Meh  of  his  heirs  entitled  to  onemidividBdseTeiith 
of  the  land.  On  the  eighth  day  of  July,  180S,  John  Gillispie 
and  Esther,  his  wife,  who  was  one  of  tiie  heirs,  conizacted  to 
sell  to  John  James,  the  complainant,  who  was  also  an  heir, 
their  interest  in  the  decedent's  estate  for  eight}'  dollars.  In 
1804  the  complainant  purchased  from  Seth  Bailey  and  Maiy, 
his  wife,  another  heir,  their  interest  for  one  hundred  and  sixty 
dollars.  These  wives  signed  the  written  contracts,  but  there 
being  no  conveyance  or  privy  examination,  the  contracts 
operated  to  transfer  only  the  life  interests  of  the  husbands.  In 
1832  C.  P.  Bailey,  the  defendant,  entered  into  a  written  agree- 
ment with  John  James,  the  complainant,  to  purchase  his  inter- 
est as  heir,  and  the  interests  acquired  under  the  executory  con- 
tracts with  Gillispie  and  wife  and  Seth  Bailey  and  wife.  The 
agreement  recites  that  in  consideration  of  three  hundred  dol* 
lars  in  hand,  said  James  sells  to  Bailey  all  his  right,  title,  claim, 
and  demand  in  the  land,  being  one  undivided  seventh,  held  as 
heir  of  John  James,  sen.,  and  two  undivided  sevenths  by  pur- 
chase from  Gillispie  and  Bailey  and  their  wives.  James  further 
convenanted  to  give  Bailey  the  possession  of  the  land  imme- 
diately, and  authorized  him  to  acquire  the  legal  title  to  the  land 
from  Spencer's  heirs  under  the  title-bond  from  Spencer.  Upon 
the  same  day  with  the  execution  of  this  instrument  Bailey  exe- 
cuted his  bond  to  James  for  three  hundred  dollars,  with  a  con- 
dition which,  after  reciting  the  purchase,  provided  that  if 
Bailey  should  not  succeed  in  setting  aside  a  decree  of  courl  ob- 
tained in  the  name  of  Joseph  Spencer  against  the  heirs  of  John 
James,  and  should  not  succeed  in  acquiring  the  legal  title  from 
the  heirs  of  Spencer,  the  obligation  should  be  void;  but  if  he 
should  so  succeed,  then  it  was  to  be  valid.  Soon  after  this  Gil- 
lispie and  his  wife  brought  siiit  against  Bailey,  the  defendant 
and  appellant,  and  against  the  heirs  of  John  James,  claiming 
the  one  seventh  of  the  land  which  they  had  contracted  to  sell 
to  John  James,  jun.,  on  the  ground  that  at  the  time  of  the  exe- 
cution of  that  contract  they  were  both  under  age.  Bailey,  in 
his  answer,  insisted  upon  his  right  as  acquired  by  purchase 
from  John  James,  jun.;  but  urged  furthermore,  that  if  the 
contract  should  be  annulled  the  complainants  seeking  equiiy 
should  be  required  to  repay  the  eighty  dollars  paid  by  James, 
and  to  him,  Bailey,  he  being  substituted  to  his  vendor's  rights 
in  the  premises.  About  this  time,  or  soon  after,  the  plaintifl 
commenced  this  suit.  He  set  forth  in  his  bill  ihe  contract  be- 
tween himself  and  the  defendant,  and  alleged  that  the  deovM 


July,  1854]  Bailst  v.  Jamesl  661 

mentioned  in  the  bond  bad  become  inoperatiTe,  and  that  the 
defendant  had  good  title  notwithstanding  he  had  no  deed  from 
Spencer's  heirs,  since  possession  had  been  held  under  the  title- 
bond  for  thiriy-five  years.  He  also  charged  that  the  defendant 
made  no  endeavors  to  obtain  a  deed,  but  held  possession  of  and 
enjoyed  the  land,  refusing  to  pay  the  consideration  money  or  to 
cancel  the  agreement.  Wherefore  it  was  prayed  that  the  con- 
tract be  rescinded  on  the  ground  of  fraud,  or  because  of  tlie  de- 
fendant's failure  to  comply  with  its  terms;  or  that  the  land 
might  be  subjected  to  the  payment  of  the  purchase  money. 
The  defendant  admitted  his  possession  of  the  land,  but  justified 
his  refusal  to  pay  because  Spencer's  heirs  were  trying  to  subject, 
the  land  to  the  payment  of  purchase  money  alleged  to  be  due^ 
from  John  James,  sen.;  and  also  because  Oillispie  and  wife  and 
Seth  Bailey  and  wife  refused  to  confirm  the  contracts  made  by 
them.  He  also  denied  the  right  of  the  court  to  rescind  the  con* 
tract.  This  cause  and  that  of  GiUispie  and  wife  were  heard  to- 
gether. It  appeared  that  the  suit  begun  by  the  heirs  of  Spencer 
had  been  dismissed,  and  the  decree  of  the  court  dismissing  the 
suit  was  filed  as  an  exhibit.  From  this  decree  it  followed  that 
the  decree  in  the  name  of  Joseph  Spencer  against  the  heirs  of 
John  James,  that  was  referred  to  in  the  bond,  could  not  be  en- 
forced. But  in  the  suit  of  Oillispie  and  wife  the  court  annulled 
their  sale  on  the  ground  of  infancy.  And  since  from  this  it 
appeared  that  John  James,  the  plaintiff,  could  not  make  tiUe  to 
the  seventh  belonging  to  Gillispie  and  wife,  the  court  gave 
the  defendant  his  election  to  rescind  the  contract  or  pay  the 
whole  purchase  money.  He  having  failed  to  rescind,  the  court 
ordered  the  sale  of  the  one  seventh  formerly  belonging  to  John 
James,  in  order  to  pay  the  whole  purchase  price.  The  land  was 
■old,  and  after  the  report  of  the  sale  was  made,  the  court  made  a 
decree  against  the  defendant  for  three  hundred  dollars,  with 
interest  from  the  date  of  the  contract,  this  to  be  credited  by  the 
net  proceeds  of  the  sale.  From  this  decree  the  defendant  ap- 
pealed. 

Price,  for  the  appellant. 

Fryy  for  the  appellee. 

Allxv ,  President  (after  stating  the  case).  It  is  objected  by  the 
appellant's  counsel  that  the  court  erred  in  not  decreeing  a  deed 
from  the  vendor  to  the  vendee.  The  vendor  had  not  the  legal 
title.  This  was  known  to  the  vendee,  and  the  vendor  merely 
8oId  his  equitable  interest  under  the  titie-bond»  and  authorized 


662  Bailet  v.  Jakes.  [Yirginii^ 

and  empowered  the  vendee  to  acquire  the  legal  title  from  Spen- 
cer's heirs.  The  obligation  devolyed  on  the  appellant  to  insti- 
tute proper  proceedings  to  get  in  the  legal  title  if  he  had  deemed 
it  of  any  importance  to  him.  He  was  no  doubt  content  to  rest 
on  the  dtle-bond  executed  more  than  fifty  years  prior  to  the  final 
decree  in  this  cause,  and  the  possession  held  under  it  by  himself 
and  those  under  whom  he  claimed.  His  default  in  not  getting 
in  the  legal  title  furnishes  him  with  no  protection  against  the 
payment  of  the  purchase  money. 

As  to  the  decree  referred  to  in  the  condition  of  the  bond,  it 
appears  from  the  decrees  in  this  case,  and  in  the  case  of  Oillis- 
pie  and  wife  against  the  appellant  and  others,  that  the  said  de- 
cree has  been  rendered  inoperative  by  the  decree  of  the  same 
court  of  the  twenty-fifth  of  March,  1846,  in  the  case  of  Spencer's 
administrators  and  heirs  against  John  James,  etc. 

It  is  further  insisted  that  the  appellant  purchased  three 
sevenths  of  the  land  and  gets  but  one  seventh;  that  Seth  Bailey 
and  wife  have  not  conveyed;  and  that  Gillispie  and  wife  have, 
by  the  decree  rendered  in  their  favor  annulled  their  contract  of 
sale  to  the  appellee  on  the  ground  of  infancy.  The  appellee 
agreed  to  sell  all  his  right,  title,  and  interest  in  and  to  three 
undivided  seventh  ports  of  said  land,  one  being  his  own  undi- 
vided equitable  interest  as  an  heir.  The  other  two  undivided 
interests  he  claimed  by  purchase  as  aforesaid;  and  the  con- 
tracts of  purchase  were  delivered  over  to  the  appellant,  and  ora 
filed  by  him  as  evidence  of  the  interests  he  acquired  in  the  land, 
with  his  answer  to  the  bill  of  Gillispie  and  wife.  He  saw^ 
therefore,  when  he  contracted,  the  extent  of  his  vendor's  inter- 
est. He  required  and  received  no  covenant  of  warranty.  He 
knew,  or  is  presumed  to  have  known,  that  the  contracts  of  the 
husbands  would  not  pass  the  equitable  estates  of  their  wives, 
and  that  they  were  effectual  only  to  pass  the  life  estates  of  the 
husbands. '  He  agreed  to  pay  for  the  absolute  interest  of  James, 
as  heir  to  one  seventh,  and  these  interests  acquired  by  the  con- 
tracts with  Gillispie  and  S.  Bailey,  a  specific  sum. 

The  contract  was  entire,  and  there  is  nothing  on  the  face 
thereof  from  which  it  can  be  ascertained  at  what  price  the  dif- 
ferent interests  were  valued.  In  relation  to  the  one  seventh,  the 
interest  of  John  James,  there  is  no  dispute  or  controversy.  Nor 
is  it  shown  that  the  appellant  has  not  obtained  all  that  he  was 
entitled  to  under  the  contract  with  S.  Bailey  and  wife.  It  does 
not  appear  that  the  validity  of  this  contract  has  been  impeached, 
or  that  the  appellant  has  been  disturbed  in  the  enjoyment  of 


July,  1854.]  Bailet  v.  Jamb.  899 

what  the  contract  vested  in  John  Jamee,  and  which  the  latter 
Bold  to  him.  Seth  Bailey  and  wife,  by  the  contract  of  January, 
1804,  merely  sold  and  relinquished  their  equitable  interests  to 
the  appellee;  nor  did  the  latter  by  his  agreement  covenant  with 
the  appellant  that  they  should  make  any  further  conveyance. 
But  in  regard  to  Gillispie,  though  there  was  no  covenant  or 
warranty  as  to  the  title  of  the  thing  contracted  to  be  sold,  there 
was  an  implied  undertaking  on  the  part  of  the  appellee  that  the 
contract  o(  Gillispie  was  what  it  purported  to  be,  a  contract  by 
a  party  who  was  competent  to  enter  into  and  bind  himself  by 
such  contract.  In  this  it  appears  he  was  mistaken.  Gillispie 
has  succeeded,  by  the  decree  of  the  court,  in  vacating  and  an- 
nulling the  contract  upon  the  ground  of  infancy;  and  the  appel- 
lant thereby  loses  the  life  interest  of  said  Gillispie  in  the  sub- 
ject for  which  he  contracted  to  pay  the  appellee  the  sum  of  three 
hundred  dollars.  For  this  cause  he  would  have  been  entitled  to 
call  for  a  rescission  of  the  contract.  But  instead  of  resorting 
to  this  course,  he  resisted  all  efforts  of  the  appellee  to  procure  a 
rescission,  and  he  did  this  with  full  knowledge  of  the  preten- 
sions of  Gillispie.  He  purchased  from  the  appellee  on  the 
thirty-first  of  July,  1832.  The  bill  of  Gillispie  was  filed  on  the 
third  of  June,  1833.  He  was  then  apprised  of  the  difficulty  as 
to  this  interest.  He  had  then  paid  no  part  of  the  purchase 
money.  Instead  of  abandoning  his  claim,  he  insisted  in  his 
answer  upon  the  validity  of  the  transfer  in  the  first  instance,  or 
that  from  long  acquiescence  it  could  not  be  then  impeached; 
but  in  the  event  of  his  being  mistaken  in  these  views,  he  claimed 
the  right  to  recover  from  Gillispie  the  consideration  paid  to 
him  for  the  sale  of  his  interest  by  the  said  John  James. 

In  a  short  time  after  the  institution  of  the  said  suit  by  Gil* 
lispie  the  appellee  filed  his  bill,  mainly  for  the  purpose  of 
rescinding  the  contract;  but  this  was  resisted  by  the  appellant; 
and  when,  in  February,  1847,  the  cause  was  heard,  the  court,  by 
its  interlocutory  decree,  gave  the  appellant  the  election  to  rescind 
the  contract  or  to  pay  the  purchase  money.  In  this  case  no 
fraud  is  imputed  to  the  appellee.  It  is  nowhere  pretended  that 
he  knew  Gillispie  was  an  in&nt  in  1808,  when  he  sold  to  the 
appellee,  or  when  the  latter  transferred  this  interest  to  the  ap- 
pellant in  1832.  On  the  contrary,  he  had  a  right,  from  the  long 
silence  of  Gillispie,  to  presume  that  the  transfer  was  valid. 
But  the  mutual  error  of  the  parties  in  the  substance  of  the 
thing  contracted  for  was  a  good  ground  for  rescinding  the  con- 
tract; and  if  the  appellant  had  sought  such  rescission  when  the 


'} 


BAIUBT  t^  JaMHL  [VlIgllBfl^ 

ImowisSge  of  fhe  mklake  was  first  aequized*  or  eoosented  to  it 
when  the  appellee  filed  his  bill  for  that  purpose  so  soon  after 
the  sale,  the  parties  coald  have  been  placed  in  sUUu  quo  with- 
out injury  to  either,  so  far  as  the  record  discloses.  But  he  re- 
sisted a  rescission,  and  even  so  late  as  1847;  and  when  the  elec- 
tion was  tendered  to  him,  he  still  declined  it.  He  can  not  now 
be  permitted  to  claim  a  partial  rescission. 

The  contract  was  entire — an  agreement  to  paj  a  gross  sum  for 
the  interests  transferred;  and  he  has  no  right  to  rescind  one 
third  of  the  contract  and  enforce  the  residue:  OloMdi  t.  Thomas ^ 
8  Leigh,  113.  There  is  no  middle  ground  here  between  a  re- 
scission in  ioto  and  an  execution  in  Mo,  But  the  record  shows 
a  sufficient  motive  for  his  not  desiring  a  rescission.  In  the 
suit  of  Gillispie  he  claimed  to  be  substituted  to  the  rights 
of  the  appellee,  and  as  such,  entitled  to  a  decree  against 
Gillispie  for  the  price  paid  to  him  by  the  appellee  for  his 
interest  in  the  land;  and  the  court,  upon  vacating  Gillispie's  re- 
lease, decreed  he  should  refund  the  consideration  with  interest, 
subject  to  a  deduction  for  rents  and  profits.  The  consideration, 
with  interest  from  1808,  would  in  all  probabihiy  have  much 
exceeded  the  value  of  Gillispie's  life  estate  in  the  subject.  The 
appellant  may  have  rested  satisfied  that  the  existence  of  this 
claim  would  either  induce  Gillispie  to  forego  the  assertion  of 
his  right  to  the  subject,  or  would  more  than  indemnify  him  for 
the  price  he  agreed  to  pay  to  the  appellee  for  this  particular  in- 
terest. In  truth,  it  would  seem  from  the  record  that  the  appel- 
lant was  rather  disposed  to  raise  up  objections  to  his  own  title, 
so  long  as  they  would  avail  him  to  resist  the  claim  of  his  vendor 
for  payment.  It  does  not  appear  that  he  instituted  any  proceed- 
ings to  set  aside  Spencer's  decree;  and  it  was  not  until  the  dis- 
missal of  the  bill  filed  by  Spencer's  administrators  that  said 
decree  was  ascertained  to  be  inoperative.  He  took  no  steps  to 
procure  a  legal  title  from  Spencer's  heirs.  He  refused  to  rescind, 
though  apprised  at  an  early  day  of  the  mistake  as  to  Gillispie's 
interest.  He  has  availed  himself  of  his  right,  as  representing 
his  vendor,  to  repel  the  claim  of  Gillispie,  until  he  shall  refund 
the  price  he  received  from  John  James,  with  the  long  arrears 
of  interest.  In  the  mean  time,  he  has  held  all  he  contracted 
for,  and  enjoyed  the  profits.  I  think  the  court  properly  required 
him  to  pay  the  purchase  money  when  he  declined  to  rescind  the 
contract. 

It  is  further  argued  that  the  court  erred  in  giving  interest  on 
the  three  hundred  dollars  from  the  date  of  the  contract;  that  it 


July,  1864]  Bailst  v.  Jhobbl 

was  not  payable  bat  upon  a  oontingenoy  which  has  nerer  hap- 
pened. The  contract  recites  that  it  was  in  consideration  of 
three  hundred  dollars  in  hand  paid,  and  the  bond  was  payable 
jnresentlj,  thongh  a  condition  was  attached,  in  the  nature  of  a 
defeasance,  upon  a  certain  contingency.  The  appellee  bound 
himself  by  the  contract  of  sale  to  give  immediate  possession; 
and  the  appellant  by  his  answer  admits  that  he  was  in  posses- 
sion.  He  has  enjoyed  the  profits,  and  in  equiiy  should  pay 
interest  on  the  price  contracted  to  be  paid;  and  that,  it  seems  to 
me,  is  the  effect  of  the  bond  and  agreement.  The  latter  shows 
a  cash  sale,  and  the  bond  admits  an  existing  debt  due  presently, 
but  liable  to  be  defeated  in  the  event  of  his  failure  to  set  aside 
the  decree  or  get  a  title.  It  seems  to  me  that  interest  was  prop- 
erly allowed  from  the  date  of  the  contract. 
I  am  for  affirming  the  decree. 

MoNOUBB  and  Lsb,  JJ..  concurred  in  the  opinion  of  Allen,  J. 

Samuels,  J.,  dissented. 

Dahiel,  J.,  absent. 

Decree  affirmed. 

BiaoiBUoir  of  BMrms  Oomnuor  uxm  as  nr  Tore:  Masmm  ▼.  Bovet,  43 
Am.  Deo.  651,  and  cases  cited  in  note  654;  Voorhees  v.  JSarl,  38  Id.  588,  and 
note  592;  note  to  French  ▼.  Seeiy^  32  Id.  760;  Jemiing$  ▼.  Otigej  56  Id.  47G. 
Where  equity  rescinds  contract,  it  places  the  parties  as  nearly  as  possible  in 
$UUu  quo:  Brawn  v.  Johtuon,  51  Id.  118.  So  in  the  case  of  contract  for  sale 
of  huad:  Hynaon  v.  Dunn^  41  Id.  100;  Duncan  v.  JeUr^  39  Id.  342;  SmUh  v. 
BrUkUn,  42  Id.  175. 

fioLDBR  OF  Tftlb  BOixn  CAN  MOT  CoflVBY  LiGAL  TrTLi:  Chapman  r. 
€fla$9eU,  48  Am.  I>ec.  41. 

Abatbhxnt  in  Pobchasi  Pbioe  upon  DuidBiroT  IN  QuANTiTT  OF  Lakd 
Ck»NTRACXED  TO  Bs  CoNYETBD:  See  WaUmg  ▼.  Kimiard,  60  Am.  Dec  216, 
and  cases  cited  in  note  210;  Farmers'  etc.  Bank  v.  OalbraUh,  51  Id.  498; 
Ooiue  ▼.  Baylc^  38  Id.  514. 

Contract  for  Sals  of  Two  Tracts  of  Land  for  Singue  Sum  can  not 
VM  RisciNDKD  AS  TO  Onk  Tract  ONLY:  Fa^  ▼.  Oliver,  49  Am.  Dec.  764.  In 
Clarke  ▼.  Bdna,  12  Gratt  113,  it  was  held  that  where  a  wife  was  one  of  three 
equal  joint  owners  of  land,  and  the  other  owners  and  she  and  her  husband 
contracted  to  sell  the  land,  if  she  refused  to  execute  the  contract  equity 
would  not  decree  a  specific  peiformance  on  her  part;  but  the  other  two  joint 
owners  would  be  compelled  to  convey  their  undivided  interest  upon  Uie  pay- 
ment by  the  vendee  of  their  shares  of  the  purchase  money;  and  the  principal 
case  was  said  not  to  conflict  with  this  decision. 

Vendor  must  Account  for  Rbnts  and  Profits  upon  his  contract  for 
sale  being  declared  rescinded:  Bryan  v.  Lojftue,  39  Am.  Dec.  242;  but  not 
where  the  rescission  took  place  owing  to  a  failure  of  title  on  the  part  of  the 
plaintiff  without  any  fault  on  the  part  of  the  defendant:  Haugh  v.  Birgtf  34 
Id.  682. 


\ 


666  Fabish  fr  Oo.  v.  Reiolk.  [Yhginlii 

Fabibh  &  Go.  V.  Reiolb. 

[U  Om&TTAir,  607.) 

PAttHNon  G^BBirats  must  Exhibit  Utmost  Case  a9d  Diiiosvai  ov  Vi 
CAUTfons  Pbbsons,  and  are  responnble  for  injnriM  eaoaed  by  the 
Mt  negligence,  or  which  human  care,  and  fcMresight  could  pcevent. 

BcBDBN  OF  Pboof  IS  ON  Passkngkb  Carbibbs  bt  Staob-ooach  to  Show 
Absbncb  or  All  Nbolioknob,  and  that  the  damage  or  injnry  occorred 
by  inevitable  casualty,  or  by  some  cause  which  human  oara  and  foresig^ 
could  not  prevent. 

Pbesumption  is,  that  Staqb-ooaoh  AociDBBT  Gaubinq  Ivjubt  to  Pas- 

SENOEB  OccrUBBD  BT  DBIVER'il  NeGUGBNCB. 

Passenger  Carriers  bt  Staob-ooaoh  abb  Bodnd  to  Pbovide  Coachbs 
Reasonablt  Strong  and  sufficient  for  the  journey,  with  suitable  harness, 
trappings,  and  equipments. 

Stage-coach  Propbibtobs  arb  Liable  vob  Injttbibs  to  Passbnger  re- 
sulting from  upsetting  of  stage,  caused  by  the  horses  running  away,  not 
because  they  were  accidentally  frightened,  but  because  the  blocks  were 
out  of  the  brake,  causing  the  stage  to  run  upon  them,  when  the  running 
off  of  the  horses  might  have  been  prevented  if  they  had  been  properly 
harnessed,  or  if  the  utmost  care  and  diligence  of  a  cautious  person  had 
been  used  to  secure  the  blocks  in  the  brake. 

Passenger  Gabbier  by  Stagb-coaoh  Undbbtakes,  not  only  that  ho 
Coaches,  Harness,  and  Fixtubbs  shall  be  sound  and  complete  of  the 
kind  used  on  his  line,  but  that  they  are  such  as  will  best  insure  the  safe^ 
of  the  passengers. 

Coaches  and  Harness  or  Passbkgbb  r!A»ttT»ft  bt  Staob-ooach  abb  not 
SumciENT  AND  SuiTABLi  SO  loDg  ss  there  exists  any  known  want  of 
safety  in  them  for  which  there  is  a  known  remedy  used  by  others  ia 
the  same  business. 

It  is  Proper  to  Submit  to  Jdkt  whethbe  Omission  to  use  Brebchino 
UPON  HoBSES  used  in  coaches  of  passenger  carriers  constitutes  negligence. 

Pabtt  can  not  Complain  or  Conpuot  in  Instructions  caused  by  his  ob- 
taining an  instruction  to  which  he  was  not  entitled. 

Passehoeb  Cabrieb  is  Liable  roB  Injubt  Abisino  moM  Ovektuknuio 
OP  Stage-ooach  in  consequence  of  being  too  heavily  loaded  on  top. 

Party  can  not  Complain  or  Instruction  Containing  Corrbct  Statb* 
MENT  or  Law,  though  there  was  no  evidence  on  that  head. 

Party  is  Entitled  to  Instruction  Containing  Hypothetical  State- 
ment or  Law  whenever  there  is  any  competent  and  relevant  testimony^ 
however  slight,  upon  the  point. 

Appellate  Coitbt  will  not  Take  Cognieanob  or  Exception  Contain- 
ing No  Cebtipicate  or  Facts,  but  only  a  certificate  of  the  evidence, 
except  when  it  appears  that  after  rejecting  all  the  parol  evidence  in  favor 
of  the  party  excepting,  and  giving  full  force  and  credit  to  that  of  the 
adverse  party,  the  decision  of  the  court  below  still  appears  to  be  wrong. 

Kbw  Tbial  roB  Excessive  Damages  will  not  be  Obantxd  in  Actions 
AGAINST  Carriers  for  injuries  to  passengers,  unless  the  damages  are  so 
excessive  as  to  warrant  the  belief  that  the  jury  must  have  been  influenced 
by  partiality  or  prejudice,  or  have  been  misled  by  some  mistaken  view 


July,  1854]         Farish  &  Co.  v.  Beiqlx.  Q67 


of  the  nieriti  of  the  case;  for  in  each  ouee  there  b  no  mle  of  law  fijdag 
the  measure  of  damagee,  and  it  can  not  he  reached  by  any  prooeee  of 
computation. 

Case  by  Beigle  against  Farish  &  Co.,  the  proprietors  of  a 
stage  line,  to  reooyer  damages  for  personal  injuries  caused  by 
the  upsetting  of  the  defendants'  coach,  upon  which  the  plaintiff 
was  a  passenger.  The  plaintiff  proved  the  upsetting  of  the  coach, 
and  the  character  of  the  injuries  sustained.  His  physician's  bill 
was  two  hundred  and  eighty  dollars;  and  to  the  person  at 
whose  house  he  was  confined  while  suffering  from  his  injuries 
he  paid  one  hundred  and  fifiy-four  dollars  and  twelve  cents. 
The  defendants  showed  that  the  stage  was  a  good  one,  and  the 
gearing  good  of  its  kind.  The  horses  were  shown  to  be  steady, 
and  the  driver  to  be  good,  prudent,  and  sober.  The  driver 
stated  that  he  took  charge  of  the  stage  nine  miles  above  Wood- 
stock, a  short  distance  beyond  which  the  accident  happened. 
He  then  looked  at  the  brake-blocks,  and  was  satisfied  that  they 
were  in  the  proper  position.  They  worked  well  during  the 
passage  to  Woodstock.  At  Woodstock  he  again  looked  at  the 
blocks,  but  he  did  not  on  either  occasion  strike  the  blocks  with 
a  hatchet,  which  was  generally  taken  along  for  the  purpose  of 
fixing  the  blocks  when  out  of  order;  nor  did  he  take  hold  of  the 
blocks.  Shortly  below  Woodstock  the  road  descends.  Upon 
attempting  to  use  the  brake  here  he  found  the  blocks  were  out. 
The  stage  running  upon  the  horses  frightened  them  and  they 
began  to  run.  The  road  was  along  a  side-hill,  and  at  the  place 
where  the  stage  turned  over  there  was  a  precipice  on  the  lower 
side  and  a  hill  on  the  upper.  The  driver  tried  to  keep  the  mid- 
dle of  the  road,  but  the  hind  wheels  began  to  slip  over  the  preci- 
pice, and  in  his  endeavors  to  avoid  this  the  stage  upset.  The 
driver  said  that  he  had  no  occasion  to  use  the  brakes  after  leav- 
ing Woodstock  until  he  came  to  the  descent  in  the  road,  and  he 
made  no  experiments  to  see  if  the  brake-blocks  were  in  place. 
When  he  first  attempted  to  use  the  brake  he  found  both  brake- 
blocks  out.  The  plaintiff  proved  that  there  was  no  breeching 
on  the  horses.  He  also  introduced  a  witness  long  engaged  in 
the  stage  business,  who  considered  it  unsafe  to  rely  upon  the 
brake  alone  without  using  breeching  on  the  horses.  He  also 
testified  that  breeching  was  used  on  the  **  National "  road.  The 
defendant  introduced  several  witnesses  long  engaged  in  the  stage 
business,  who  considered  breeching  of  no  advantage  where  a 
brake  was  used,  and  said  that  since  the  introduction  of  brakes 
breeching  had  been  abandoned.    One  of  these  witnesses  stated 


168  Tabibh  tf  Oo.  v.  BnouB.  [Virginia 

that  the  blocks  would  bounce  out  in  dxy  weather.  To  the  in- 
fitractione  gi^en  by  the  conrt,  the  defendants  excepted.  Verdict 
and  judgment  were  for  the  plaintiff  in  the  sum  of  nine  thousand 
dollars.  The  defendants  moved  for  a  new  trial,  on  the  grounds 
that  the  verdict  was  contrary  to  the  evidence,  and  that  the  dam- 
ages were  excessive.  This  was  overruled,  and  the  defendants 
again  excepted.  The  exception,  however,  instead  of  stating  facts, 
contained  the  evidence  of  the  several  witnesses.  The  defendants 
obtained  a  supenedeas. 

Mkliie  and  Baldwin,  for  the  appellanL 

0>  N.  Johnson,  for  the  appellee. 

By  Court,  Danibl,  J.  In  the  ninth  article  of  Judge  Story's 
work  on  bailment  is  to  be  found  the  most  concise  and  lucid  ex- 
position of  the  rights,  duties,  and  obligations  of  carriers  of  pas- 
sengers that  I  have  met  with.  It  is  there  stated  that  carriers  of 
passengers  merely  for  hire  are  subject  to  the  same  responsibil- 
ity as  carriers  of  goods  for  hire,  at  the  common  law,  so  far  as 
respects  the  baggage  of  the  passengers;  but  as  to  the  persons  of 
the  passengers,  a  different  rule  prevails.  Attempts  have  been 
made  to  extend  their  responsibility  as  to  the  persons  of  passen- 
gers to  all  losses  and  injuries,  except  those  arising  from  the  act 
of  Ood  or  from  the  public  enemies;  but  the  support  of  this 
doctrine  has  been  uniformly  resisted  by  the  courts,  although  a 
strict  responsibility  as  to  the  carriage  of  the  persons  of  passen- 
gers is  imposed  upon  such  carriers:  Story. on  Bail.,  sec.  590.  In 
section  592  the  author  proceeds  to  state,  as  the  result  of  the  de- 
cided cases,  that  carriers  of  persons  by  stage-coaches  are  bound 
to  provide  coaches  reasonably  strong  and  sufficient  for  the  jour- 
ney, with  suitable  harness,  trappings,  and  equipments,  and  to 
make  a  proper  examination  thereof  previous  to  each  journey.  In 
other  terms,  that  they  are  bound  to  provide  roadworthy  vehicles 
suitable  for  the  safe  transportation  of  passengers;  and  if  they 
fail  in  any  of  these  particulars,  and  any  damage  or  injury  occur 
to  the  passengers,  they  will  be  responsible  to  the  full  extent 
thereof.  Hence,  he  says,  it  has  been  held  that  if  there  is  any 
defect  in  the  original  construction  of  the  stage-coach,  as  for 
example,  in  an  axle-tree,  although  the  defect  be  out  of  sight,  and 
not  discoverable  upon  a  mere  ordinary  examination,  yet  if  the 
defect  might  be  discovered  by  a  more  minute  examination,  and 
any  damage  is  occasioned  to  a  passenger  thereby,  the  coach  pro- 
prietors are  answerable  therefor. 

In  the  next  place,  they  are  bound  to  provide  cavefnl  drivenii 


July,  1854.]         Fabish  Ss  Ck).  v.  Beigl&  6M 

• 

of  reasonable  aldU  and  good  habits,  for  the  joumej,  and  to  em- 
ploy horses  which  are  steady,  and  not  vicious  or  likely  to  en- 
danger  the  safety  of  their  pcibsengers:  Id. ,  sec.  593.  In  the  next 
place,  they  are  bound  not  to  overload  the  coach,  either  with 
passengers  or  with  luggage,  and  they  are  to  take  care  that  the 
weight  is  suitably  adjusted,  so  that  the  coach  is  not  top-heavy 
and  made  liable  to  overset:  Id.,  sec.  594.  They  are  bound  to 
make  use  of  all  the  ordinaiy  precautions  for  the  safety  of  pas- 
sengers on  the  road;  the  coachman  must  in  all  coses  exercise  a 
sound  and  reasonable  discretion  in  traveling  on  the  road  to  avoid 
'dangers  and  difficulties.  If  he  is  guilty  of  rashness,  negligence, 
or  misconduct,  or  if  he  shows  any  want  of  skill,  the  proprietors 
will  be  responsible  for  any  injuiy  resulting  from  his  acts:  Id., 
sec.  598. 

The  liabilities  of  such  earners  naturally  flow  from  their  duties. 
As  they  are  not,  like  common  carriers  of  goods,  insurers  against 
all  injiiries  except  by  the  act  of  God  or  by  public  enemies,  the 
inquiry  is  naturally  presented.  What  is  the  nature  and  extent  of 
their  responsibility  ?  It  is  certain  that  their  undertaking  is  not 
an  undertaking  absolutely  to  convey  safely.  But  although  they 
do  not  warrant  the  safety  of  the  passengers  at  all  events,  yet 
their  undertaking  and  liability  go  to  the  extent  that  they  and 
their  agents  })OSse6s  competent  skill,  and  that  they  will  use  all 
due  care  and  diligence  in  the  performance  of  their  duty.  But  in 
what  manner,  the  author  asks,  are  we  to  measure  this  due  care  and 
diligence  ?  Is  it  ordinary  care  and  diligence,  which  will  make  them 
liable  only  for  ordinary  neglect?  Or  is  it  extraordinary  core 
and  diligence,  which  will  render  them  liable  for  slight  neglect? 
As  they  undertake  for  the  carriage  of  human  beings,  whose  lives 
and  limbs  and  health  are  of  great  importance,  as  well  to  the 
public  as  to  themselves,  the  ordinary  principle  in  criminal  cases, 
where  persons  are  made  liable  for  personal  wrongs  and  injuries 
arising  from  slight  neglect,  would  seem,  he  says,  to  furnish  the 
ti-ue  analogy  and  rule.  It  has  been  accordingly  held  that  pas- 
senger carriers  bind  themselves  to  carry  safely  those  whom  they 
take  into  their  coaches,  as  far  as  human  care  and  foresight 
will  go,  that  is,  for  the  utmost  care  and  diligence  of  very  cautious 
persons,  and  of  course  they  are  responsible  for  any,  even  the 
slightest,  neglect:  Id.,  sec.  GOl. 

In  section  601  a,  the  further  proposition  is  stated  that  when 
injury  or  damage  happens  to  the  passengers  by  the  breaking 
down  or  overturning  of  the  coach,  or  by  any  other  accident 
oocurring  on  the  ground,  the  presumption  prima  facie  i8«  that  it 


670  Fabish  &  Co.  V.  Reiglk.  [Viigiiuis 

occuned  by  the  negligence  of  the  coachman;  and  ihe  onus  prO' 
bandi  is  on  the  proprietors  of  the  coach  to  establish  that  there 
has  been  no  negligence  whatsoever,  and  that  the  damage  or  in- 
jury has  been  occasioned  by  inevitable  casuality,  or  by  some 
cause  which  human  care  and  foresight  could  not  prevent.  For 
the  law  will,  in  tenderness  to  human  life  and  limbs,  hold  the 
proprietors  liable  for  the  slightest  negligence,  and  will  compel 
them  to  repel,  by  satisfactory  proofs,  eveiy  imputation  thereof. 

This  summaiy  of  the  law  seems  to  me  to  comprehend  and 
to  affirm  all  the  propositions  involved  in  the  instructions  given 
at  the  instance  of  the  defendant  in  error. 

The  plaintiff  in  error,  in  his  petition,  denies  the  propriety  of 
each  of  these  instructions,  but  neither  in  the  notes  of  his  coun- 
sel accompanying  the  petition  nor  in  the  argument  here  has 
any  serious  effort  been  made  to  show  by  argument  or  authority 
that  the  instructions  have  failed  to  propound  the  law  correctly, 
except  in  two  particulars.  In  order  to  determine  whether  the 
instructions  have  erred  in  either  of  these  particulars,  a  more 
special  notice  of  the  law  in  relation  to  them  would  seem  to  be 
rendered  proper. 

In  the  first  place,  it  is  urged  that  carriers  of  persons  are  re- 
sponsible for  no  more  than  ordinary  neglect;  and  that  as  the  in- 
structions lay  down  a  rule  which  imputes  liability  for  a  less 
degree  of  negligence  than  that  which  constitutes  ordinary  neg- 
lect, they  have  in  such  particular  stated  the  law  too  strongly 
against  the  plaintiff  in  error.  In  support  of  this  objection,  the 
authority  mainly  relied  upon  is  the  case  of  Boyce  v.  Anderson^ 
2  Pet.  150.  That  case  does,  I  think,  decide  the  law  as  the  coun- 
sel for  the  plaintiff  states  it;  but  in  the  case  of  Stokes  v.  Saltan* 
stall,  13  Id.  181,  it  has  been  substantially,  if  not  in  terms, 
overruled. 

Justice  Barbour,  in  Stokes  v.  SattonstaU,  supra,  in  reviewing 
the  decision  in  Boyce  v.  Anderson,  supra,  says:  "That  was  an 
action  brought  by  the  owner  of  slaves  against  the  proprietors  of 
a  steamboat  on  the  Mississippi  to  recover  damages  for  the  loss 
of  the  slaves,  alleged  to  have  been  caused  by  the  negligence  or 
mismanagement  of  the  captain  and  commandant  of  the  boat. 
The  court  distinguished  slaves,  being  human  beings,  from  goods; 
and  held  that  the  doctrine  as  to  the  liability  of  common  carriers 
for  mere  goods  did  not  apply  to  them;  but  ihat  in  i-espect  to  them 
the  carrier  was  responsible  only  for  ordinary  neglect.  The 
court  seem  to  have  considered  that  case  as  being  a  sort  of  inter- 
mediate one  between  goods  and  passengers.     We  think,  there- 


Jvlj,  1854.]         Fabish  &  Co.  v.  Reiqle.  671 

fore,  that  anything  said  in  that  case  on  the  reasoning  of  the 
court  must  be  confined  in  its  application  to  that  ease,  and  does 
not  affect  the  principle  which  we  have  before  laid  down."  And 
*in  a  preceding  portion  of  the  opinion  the  general  principle  is 
asserted,  that  though  a  carrier  of  passengers  "  does  not  warrant 
the  safety  of  the  passengers  at  all  events,  yet  his  undertaking 
and  liability  as  to  them  goes  to  this  extent:  that  he  or  his 
agent,  if ,  as  in  this  case,  he  acts  by  agent,  shall  possess  compe- 
tent ^kill;  and  that  as  far  as  human  care  and  foresight  can  go, 
he  will  transport  them  safely; "  and  the  case  of  AjUotiy.  Heaven^ 
2  Esp.  533,  is  cited  with  approbation,  in  which  it  is  held  that 
whilst  the  action  stands  on  the  ground  of  negligence,  yet  the 
responsibility  attaches  to  the  smallest  negligence. 

And  in  Jackson  y.  ToUeU,  8  Eng.  Com.  L.  807,  Lord  Ellen- 
borough  states  the  law  to  be,  that ''  every  person  who  contracts 
for  the  conveyance  of  others  is  bound  to  use  the  utmost  care 
and  skill;  and  if  through  any  erroneous  judgment  on  his  part 
any  mischief  is  occasioned,  he  must  answer  for  the  consequences. " 

The  case  of  Crqfls  v.  Walerhouse,  11  Eng.  Com.  L.  160,  is  sub- 
stantially to  the  same  effect.  So  in  Hall  v.  Connecticut  River 
Steamboat  Co.,  18  Conn.  819,  the  court  held  that  whilst  the  rule 
applicable  to  carriers  of  goods  had  not  been  applied  in  its  fullest 
extent  to  carriers  of  persons,  because  they  had  not  the  same 
absolute  control  over  passengers  that  they  have  over  goods 
intrusted  to  their  care,  yet  that  both  policy  and  the  authority 
of  adjudged  cases  require  great  care  and  skillful  management 
in  the  transportation  of  passengers  by  common  carriers.  They 
said  it  was  but  right  it  should  be  so;  that  those  upon  whose  skill 
and  careful  management  not  unfrequently  depend  the  lives 
and  safety  of  others  should  feel  themselves  responsible  for  any 
want  of  care  or  faithfulness,  and  that  they  therefore  fully  ap- 
proved the  instruction  given  in  the  court  below,  that  the 
defendants  were  bound  to  employ  the  highest  degree  of  care 
that  a  reasonable  man  would  use. 

In  Stockton  v.  lYey,  4  Gill,  406  [46  Am.  Dec.  138],  and  in 
Maury  v.  Talmadge,  2  McLean,  157,  and  in  Derwort  v.  Loonier^ 
21  Conn.  245,  the  same  doctrine  is  maintained.  And  in  the  case 
of  Pennsylvania  etc.  iZ.  E.  Co.  v.  Derby,  14  How.  486,  Justice 
Orier,  in  delivering  the  opinion  of  the  supreme  court,  uses  the 
following  strong  and  emphatic  language:  **  When  carriers  un- 
dertake to  convey  passengers  by  the  powerful  but  dangerous 
agency  of  steam,  public  policy  and  safety  require  that  they  be 
held  to  the  greatest  possible  care  and  diligence.    And  whether 


672  Fabish  k  Oo.  v.  BasKOM.  [YiigWi^ 

Che  oonaideiation  for  saoh  teanq[K>Ttati(m  be  peenmaiyor  oUmt- 
wise,  the  peraonal  saietj  of  the  paasengers  should  not  be  left  to 
the  sport  of  chance  or  the  negligence  of  careless  agents.  Anj 
negligence  in  such  case  may  well  deserve  the  epithet  of  gross.'' 
And  in  Angell  on  the  law  of  carriers  it  is  stated  as  the  reealt 
of  the  decided  cases  that  *'  the  degree  of  responsibilily  to  which 
carriers  of  persons  are  subject  is  not  ordinary  care,  which  will 
make  them  liable  only  for  ordinaiy  n^lect,  but  extraordinary 
care,  which  renders  them  liable  for  slight  neglect.  It  is  the 
danger  to  the  public  which  may  proceed  even  from  slight  &nlts, 
unsldllfulness,  or  negligence  of  passenger  carriers  or  their  ser- 
vants, and  the  helpless  state  in  which  passengers,  by  their  con* 
veyances,  are,  which  have  induced  the  courts  both  in  England 
and  America  to  bind  the  rule  of  the  contract  lo&Uio  opens  much 
tighter  than  could  be  insisted  for  on  the  ordinary  principle  of 
that  contract.  The  most  inconsiderable  departure,  therefore, 
from  the  important  duties  imposed  upon  passenger  carriers  will 
render  them  liable  for  the  consequences."  Indeed,  I  have  seen 
no  case  except  that  of  Boyoe  v.  Ander8(m^  2  Pei.  160,  which  sanc- 
tions the  idea  that  the  carrier  is  not  responsible  for  slight  n^lect, 
and  I  feel  no  hesitation  in  approving  the  instructions  of  the  judge 
in  the  particular  under  consideration. 

The  second  error  supposed  to  be  committed  by  the  judge  be- 
low in  expounding  the  law  to  the  jury  is  to  be  found  in  the  expla- 
nation accompanying  the  third  instruction  asked  by  the  defend- 
ant in  error.    In  the  third  instruction,  it  will  have  been  seen,  the 
judge  instructed  the  jury  that  if  they  believed  that  the  plaintiff 
was  injured  by  the  upsetting  of  the  stage,  and  that  the  upsetting 
was  caused  by  the  horses  running  off;  that  the  horses  ran  off, 
not  because  they  were  accidentally  frightened,  but  because  the 
blocks  were  out  of  the  brake,  causing  the  stage  to  run  upon 
them;  and  if  the  jury  further  believed  that  such  running  off  of 
the  horses  might  have  been  prevented  if  the  horses  had  been 
properly  harnessed,  or  if  the  utmost  care  and  diligence  of  a  cau- 
tious person  had  been  used  to  secure  the  bloelm  in  the  brake 
— the  defendants  were  liable  in  damages.     And  the  court  ac- 
companied this  instruction  by  the  remark  to  the  jury  that  in 
speaking  of  the  horses  being  ''properly  harnessed,"  the  court 
was  not  to  be  understood  as  expressing  any  opinion  whether  the 
horses  should  have  had  breeching  or  not,  for  upon  that  subject 
he  would  express  no  opinion,  leaving  it  entirely  to  the  jury  as  a 
question  proper  for  their  decision. 

And  the  court  afterwards,  at  the  instance  of  the  plaintiff  in 


July,  1854.]         Fabish  Ss  Co.  v.  Bexoiji  67S 

error,  instructed  the  jury  that  in  the  absence  of  any  express  ctt 
special  contract,  the  proprietors  of  stage-coaches  for  the  trans« 
portation  of  passengers  are  not  bound  to  guarantee,  as  to  their 
coaches,  harness,  and  fixtures,  more  than  that  they  shall  be 
sound  and  complete  of  the  kind  used  upon  their  line  and  offered 
to  the  patronage  of  travelers;  and  that  they  can  not  be  charged 
with  damages  resulting  without  negligence  for  the  non-adoption 
of  another  kind  or  style  of  conveyance,  harness,  or  fixtures. 
The  defendant  in  error  having  offered  the  testimony ^f  witnesses 
to  show  that  since  the  introduction  of  the  brake  it  was  not 
safe  to  trust  to  that  as  a  means  of  checking  the  velocity  of 
stages  in  descending  hills  with  harness  that  had  no  breeching; 
and  the  plaintiff  having  offered  evidence  to  show  that  when  the 
brake  was  used  the  breeching  to  the  harness  was  of  no  value  as 
a  means  of  safety,  and  that  on  his  line  and  many  other  lines  the 
breeching  had  been  abandoned  as  useless  since  the  improvement 
of  the  brake  had  been  introduced— it  was,  I  think,  evidently  the 
purpose  of  the  court,  in  the  explanation  given  of  the  third  in- 
struction, to  guard  the  jury  against  the  impression  that,  in  say- 
ing if  the  jury  believed  that  the  running  off  of  the  horses 
might  have  been  prevented  if  the  horses  had  been  properly  hap- 
nessed,  etc.,  the  plaintiff  in  error  were  liable,  the  court  intended 
to  express  the  opinion  that  the  failure  to  use  breeching  to  the 
harness  did  of  itself  constitute  neglect.  Whilst,  on  the  other 
hand,  the  plaintiff  in  error  was  desirous  of  getting  rid  of  the 
testimony  offered  by  his  adversary  on  that  head  by  the  instmo- 
tion  which  he  asked,  the  effect  of  which  was  to  negative  the  con- 
clusion in  law  of  any  neglect  in  failing  to  use  the  breeching, 
though  the  jury  should  be  of  opinion  from  the  evidence  that 
harness  with  breeching  would  be  safer  than  harness  without, 
provided  they  should  also  believe  that  ijie  harness  used  was 
sound  and  complete  of  the  kind  used  upon  the  line  of  the  plaint- 
iff in  error. 

It  is  insisted  by  the  counsel  of  the  plaintiff  in  error  that  there 
is  an  obvious  conflict  between  the  third  instruction  of  the  de- 
fendant in  error  as  explained  by  the  court  and  the  first  instruc- 
tion given  at  the  instance  of  the  plaintiff  in  error;  that  the  latter 
properly  confined  the  jury  to  the  inquiry  whether  the  harness 
was  sound  and  complete  of  the  kind  used  on  the  line,  whilst  the 
former  left  the  jury  at  liberty  to  impute  neglect  to  the  plaintiff 
in  error  in  failing  to  use  harness  of  a  different  kind. 

The  discrepancy  between  the  two  instructions  complained  of 
does,  I  think,  exist;  and  it  becomes  necessary  to  inquire  which 

▲m.  rso.  Vol.  LXII-43 


874  Fabish  &  Ckx  v.  Reiglx.  [Yugint^ 

of  the  two  instraoiionB  is  right.  The  question  aa  to  the  liaUl- 
itj  of  the  carrier  is  presented  in  a  peculiar  and  novel  aspect, 
but  it  will  on  examination,  I  think,  be  found  to  fall  within  the 
influence  of  well-settled  and  familiar  principles. 

I  have  already  cited  the  authority  of  Judge  Story  to  show 
that  the  carrier  is  bound  to  proride  coaches  reasonably  strong 
and  sufficient  for  the  journey,  with  suitable  hamesSj  trappings, 
and  equipments.  And  there  are  numerous  cases  stating  the 
law  the  same  way;  and  among  others,  Glvristie  v.  Origgs,  2 
Camp.  N.  P.  79;  Bremner  ▼.  WUliams,  1  Car.  k  P.  414;  GrofU^. 
Waierhcni9e,  11  Eng.  Com.  L.  160;  Sliarp  v.  Orey,  23  Id.  659; 
StockUm  Y.  Frey,  4  Gill,  406  [46  Am.  Deo.  138]. 

In  the  case  of  IngaOi  ▼.  Bills,  9  Met.  1  [48  Am.  Deo.  346],  the 
correctness  of  some  of  these  decisions,  so  far  as  they  ^  to  de- 
ohire  the  stage-owner  to  be  a  warrantor  of  the  soundness  and  suffi- 
ciency of  the  coach  in  all  respects,  is  denied.    And  it  was  theie 
held  that  when  the  accident  arises  from  a  hidden  and  internal 
defect  which  a  careful  and  thorough  examination  would  not  dis- 
close, and  which  could  not  be  guarded  against  by  the  exercise  of 
a  sound  judgment  and  the  most  yigilant  oversight,  then  the 
proprietor  is  not  liable  for  the  injury,  but  the  misfortune  must 
be  borne  by  the  sufferer.    Yet  the  court  at  the  same  time  said 
that  the  carriers  of  passengers  are  bound  to  use  the  utmost  care 
and  diligence  in  the  providing  of  safe,  sufficient,  and  suitable 
coaches,  harness,  horses,  and  coachmen,  in  order  to  prevent 
those  injuries  which  human  care  and  foresight  can  guard  against; 
and  that  if  an  accident  happens  from  a  defect  in  the  coach, 
which  might  have  been  discovered  and  remedied  upon  the  most 
careful  and  thorough  examination  of  the  coach,  such  accident 
must  be  ascribed  to  negligence  for  which  the  owner  is  liable  in 
case  of  injury  to  a  passenger  happening  by  reason  of  such  ac- 
cident. 

If  this  case  is  to  be  regarded  as  establishing  that  a  latent  de- 
fect in  the  coach  which  a  careful  examination  would  not  dis- 
close forms  an  exception  to  the  general  undertaking  of  the 
carrier  to  furnish  a  sufficient  coach  (about  which  I  do  not  deem 
it  necessary  to  express  an  opinion),  it  is  clear,  I  think,  that  this 
exception  has  no  bearing  on  the  case,  and  that  in  expounding 
the  law  there  was  nothing  making  it  incumbent  on  the  judge  to 
state  it.  And  the  true  point  of  inquiry,  out  of  which  the  con- 
flict of  instructions  arose,  was  whether  an  alleged  defect  in  the 
harness  used  by  the  plaintiff  in  error  (which  if  it  existed  was  a 
patent  defect  consisting  in  the  absence  of  a  certain  portion  of 


July,  1854.]         Parish  Ss  Go.  u  Beiolx.  67S 

the  harness,  wiih  or  without  which  it  cotQd  be  used)  was  a  proper 
matter  of  inquiry  for  the  jury;  and  if  so,  whether  on  their  being 
of  opinion  that  there  was  such  defect  they  could  make  it  the 
ground  for  finding  the  plaintiff  in  error  guilty  of  neglect. 

If  thfo  proposition  contended  for  by  the  plaintiff  in  error  is  to 
be  received  as  the  law,  viz.,  that  he  undertakes  only  that  his 
coaches,  harness,  and  fixtures  shall  be  sound  and  complete  of 
Uie  kind  used  on  his  line,  it  follows  that  he  may  be  excused  from 
liability,  in  the  face  of  the  amplest  proof,  to  show  that  owing  to 
their  style  or  kind  they  were  positirely  dangerous.  In  no  case 
that  I  have  seen  can  any  warrant  be  found  for  such  a  rule. 
Could  it  be  said,  in  the  language  of  the  case  of  Ingalla  y.  Bills^ 
gupra,  that  a  carrier  uses  the  utmost  care  and  diligence  in  the 
providing  of  safe,  sufficient,  and  suitable  coaches,  harness,  etc., 
if  it  was  shown  that  from  want  of  care,  skill,  or  judgment  he  had 
selected  for  use  on  his  line  a  style  of  harness  shown  to  be  less 
safe  than  another  which  had  long  been  in  use,  and  which  was 
known  by  him  to  be  in  use  ?  Such  a  rule  seems  to  me  to  alter 
the  relative  rights  and  duties  of  the  carrier  and  passenger.  The 
passenger,  instead  of  relying  on  the  carrier  to  use  the  proper 
care  and  judgment  in  the  selection  of  the  coach,  harness,  etc., 
with  a  view  to  its  safety,  would  have  to  use  the  utmost  diligence, 
whenever  about  to  take  passage,  in  inquiring  into  the  style  and 
fashion  of  the  coach  used  on  the  line,  and  then  to  determine  for 
himself  whether  or  not  a  stage  constructed  after  such  style  or 
fashion  would  or  would  not  probably  be  safe.  The  law,  I  think, 
imposes  no  such  duty  on  the  passenger.  He  has,  I  think,  a  right 
to  expect  that  the  carrier  who  has  undertaken  to  use  the  greatest 
care  and  skill  in  providing  for  his  safe  passage  will  exercise  the 
proper  caution  and  care  in  seeing  that  his  coach  is  not  only 
sound  and  complete  of  its  kind,  but  is  also  of  a  safe  kind.  The 
traveling  public  have  a  right  to  expect  that  he  who  undertakes 
to  fill  such  a  responsible  post  will  bring  to  the  discharge  of  its 
duties  all  the  knowledge  that  appertains  to  the  calling;  that  he 
will  observe  and  compare  the  different  kinds  of  coaches  in  use, 
and  direct  his  attention  to  the  principles  on  which  they  are  con* 
structed,  in  order  to  use  a  well-informed  experience  and  an  en- 
lightened judgment  in  the  selection  of  such  as  will  be  most 
likely  to  insure  the  safety  of  those  who  are  to  be  carried  in  them. 
The  carrier  can  not  be  said  to  have  fulfilled  the  requirements  of 
the  law  so  long  as  there  exists  any  known  want  of  safety  in  his 
coaches,  harness,  etc.  whether  arising  from  defectiveness  of 
material  or  workmanship,  or  f  aultiness  of  the  principle  on  which 


"916  Fabssh  Id  Oo.  v.  Bxiolk.  [Yiighiiai 

Chey  aie  oonfltnioted,  for  which  there  is  a  known  remedy,  used 
wisely  as  a  means  of  safety  by  others  of  skill  and  sound  jndg- 
tnent,  engaged  in  the  same  business.  A  danger  arising  from 
«Lny  such  defect  can  not  be  properly  regarded  as  one  of  those 
risks  or  dangers  necessarily  incident  to  the  mode  of  trayel,  which 
it  is  presumed  eveiy  passenger  has  made  up  his  mind  to  en- 
-counter. 

In  the  case  before  us  there  was  not  only  testimony  t.ending  to 
«how  that  there  would  be  a  greater  degree  of  safety  in  using 
harness  with  breeching  than  without,  but  that  the  horses  could  be 
Teadily  trained  to  the  use  of  such  harness  in  holding  back.  In 
this  state  of  things,  seeing  that  the  slight  change  in  the  harness 
by  the  addition  of  breeching  would  be  attended  by  little  or  no 
expense,  and  with  slight  trouble  or  inconvenience  in  training  the 
horses  to  the  use  of  it,  it  seems  to  me  that  it  was  a  &ir  subject 
for  the  juiy  to  consider  (in  case  they  beliered  what  the  evidence 
of  the  defendant  in  error  tended  to  prove)  whether  the  &ilure  of 
the  plaintiff  in  error  to  make  the  change,  as  a  measure  of  safety, 
^was  not  evidence  of  a  want  of  proper  care  and  vigilance  on  his 
fiart  in  providing  for  the  safety  of  those  traveling  in  his  ooaches. 

The  seeming  conflict  in  the  instructions  was  brought  about 

by  the  plaintiff  in  error  in  asking  and  obtaining  from  the  court 

-an  instruction  to  which,  in  the  view  I  have  taken,  he  was  not 

entitled;  and  there  is  nothing,  therefore,  in  that  particular,  of 

which  he  has  any  right  to  complain. 

Upon  a  view  of  all  the  instructions  given  by  the  court,  as  a 
whole,  I  have  been  unable  to  discover  that  they  assort  any  prin- 
-ciple  which  bears  too  harshly  on  the  plaintiff  in  error,  or  which 
nvas  calculated  to  mislead  the  jury  to  his  prejudice.  And  at  a 
period  when  the  facilities  for  ixavel  are  so  rapidly  multiplying, 
and  the  amount  of  travel  is  so  constantly  on  the  increase,  I  feel 
no  disposition  to  relax  any  of  the  rules  which  hold  the  carrier 
to  a  strict  accountability.  When  so  many  causes  are  conspiring 
to  engender  and  foster  a  love  for  the  excitement  of  rapid  travel- 
ing, which  is  daily  betraying  the  managers  and  conductors  of 
«every  species  of  conveyance  into  a  fatal  disregard  of  all  the  pre- 
cautions essential  to  the  preservation  of  the  limbs  and  lives  of 
^hose  committed  to  their  charge,  I  do  not  think  that  the  law 
should  slacken  the  reins  by  which,  to  some  extent  at  least,  it 
iiolds  them  in  check.  On  the  contrary,  policy,  humanity,  and 
season  all  seem  to  require  from  the  courts  a  stem  adherence  to 
the  principles  which  tend  to  insure  the  greatest  care  on  the  part 
of  the  carrier  and  the  least  danger  to  the  passenger. 


Jidy,  1854.]         FiBisH  ft  Oo.  v.  Reiqlb.  67T 

The  fonrih  instmction  given  at  the  instance  of  the  defendant' 
in  error  is  objected  to,  not  because  it  states  the  law  incorrectly^ 
but  because,  as  is  said,  there  was  no  evidence  tending  to  proyci- 
that  the  coach  was  u-peet  in  consequence  of  haVing  too  mucb 
baggage  on  the  top.    If  there  was  no  evidence  on  that  head,  the* 
plaintiff  in  error  could  not  have  been  injured  by  a  correct  state* 
ment  of  the  law,  that  the  carrier  would  be  liable  for  an  injury 
arising  from  an  overturning  of  the  coach  occasioned  by  its  being-, 
too  heavily  loaded  on  the  top.     On  the  other  hand,  if  there  was- 
any  competent  and  relevant  testimony,  however  slight,  tending  to* 
show  that  the  upsetting  was  due  to  that  cause,  the  defendant  inr 
error  was  entitled  to  have  the  law  in  that  particular  hypotheti- 
cally  expounded  to  the  jury.    There  was,  I  think,  evidence 
tending  to  the  proof  of  such  fact.    Discarding  the  statement  oi 
the  witness  Cralle,  that  the  driver  Carper  said  to  him  that  ha« 
thought  there  was  too  much  baggage  on  the  top,  and  that  he 
thought  the  upsetting  was  in  part  occasioned  thereby,  as  illegal, 
except  for  the  purpose  of  impeaching  Carper,  I  think  there  was  ^ 
circumstantial  evidence,  though  slight,  tending  to  the  conclu- 
sion that  the  coach  was  top-heavy,  and  that  the  upsetting  maj* 
have  been  partly  due  to  that  cause.    It  is  in  proof  that  there 
were  eleven  passengers,  nine  inside  and  two  on  the  outside^ 
How  and  where  their  baggage  was  disi>osed  does  not  appear, 
with  the  exception  that  one  of  the  passengers  proved  that  hia. 
trunk  was  in  the  boot  behind. 

Carper  says  that  he  has  no  recollection  as  to  the  amount  of 
baggage  on  the  top  of  the  stage,  or  the  number  or  size  of  the 
trunks;  that  **  he  found  it  all  on  and  under  the  canvas  whei^. 
he  took  charge,  and.had  no  occasion  to  handle  or  examine  it.**^' 
And  he  further  states  that  "in  coming  down  the  hill  and: 
around  the  turns  the  stage  rocked  very  much  from  side  to  side,. 
and  just  before  turning  over  on  the  left  hand  had  strongly, 
tilted  to  the  right,  and  in  falling  back  tilted  the  other  way,. 
and  seemed  to  him  to  be  some  distance  on  the  left  wheels  before 
it  went  clear  over." 

And  it  is  further  shown  that  at  the  point  where  the  coacb 
overturned  the  road  was  level  across,  though  slightly  descend- 
ing.  The  rocking  of  the  coach  from  side  to  side  and  the  man-- 
ner  of  its  turning  over  were  circumstances  tending  to  the  in« 
ference  that  it  was  top-heavy.  I  think  the  plaintiff  in  error  had 
a  right  to  the  instructions. 

The  last  cause  of  error  assigned  is  the  refusal  of  the  court  to 
set  aside  the  verdict  and  grant  a  new  trial.    We  have  no  certifi* 


678  Fabish  &  Oo.  u  Rsiole.  [Vurjpni^ 

cate  of  {he  fiMsts,  but  only  a  oertificate  of  the  evidence.  When 
Buch  is  the  case,  this  court  has  uniformly  refused  to  take  cogni- 
zance of  the  exception,  except  when  it  appears  that  after  rejecting 
all  the  parol  evidence  in  favor  of  the  party  excepting,  and  giving 
full  force  and  credit  to  that  of  the  adverse  party,  the  decision  of 
the  court  below  still  appears  to  be  wrong:  Padey  v.  English^  5 
Oratt.  141;  Bohr  v.  Davui,  9  Leigh,  30.  Applying  this  rule, 
there  is  nothing  to  rebut  or  weaken  the  prima  fade  case  made 
by  proof  of  the  upsetting  of  the  stage  and  the  consequent  in- 
jury to  the  defendant  in  error.  So  far  from  it,  the  evidence  in 
favor  of  the  verdict  shows  most  clearly  a  case  of  culpable  n^li- 
gence  on  the  part  of  the  driver.  Without  adverting  to  the 
other  evidence  in  support  of  such  a  conclusion,  the  driver's  own 
account  of  his  conduct  proves  it.  He  showed  a  want  of  ordi- 
nary care  in  failing  to  make  a  more  minute  examination  of  the 
blocks  at  Bed  Banks,  where  he  first  took  charge  of  the  coach. 
There  was  the  same  want  of  care  in  their  examination  at  Wood- 
stock, when  the  most  ample  time  and  opportunity  were  afforded 
for  a  thorough  examination.  Having  failed  to  make  such  ex- 
amination at  Woodstock,  he  was  guilty  of  the  grossest  n^li- 
gence  in  failing  to  assure  himself  that  tiie  blocks  were  in  before 
he  commenced  descending  the  hill  where  the  disaster  occurred* 
In  the  absence  of  breeching  or  any  other  substitute  by  which 
the  horses  could  hold  back  and  prevent  the  stage  from  running 
on  them,  he  knew  that  his  main,  if  not  sole,  reliance  for  a  safe 
descent  of  the  hill  was  in  the  brake,  which  he  also  knew  would 
be  of  no  avail  if  the  blocks  were  not  in  place;  yet  he  most  negli- 
gently and  recklessly  commenced  the  descent  of  the  hill  with- 
out having  tested  the  presence  or  absence  of  the  blocks,  which 
might  have  been  done  by  simply  applying  his  foot  to  the  brake. 
Whilst  descending  the  hill,  he  for  the  first  time  discovered  that 
the  blocks  were  out.  The  brake,  of  course,  vras  useless.  As 
might  have  been  expected,  the  stage  soon  began  to  run  on  the 
horses,  and  they,  in  the  absence  of  any  other  cause  of  fright, 
ran  off  and  upset  the  stage.  The  disaster  is  thus  most  clearly 
traced  by  the  driver's  own  account  of  his  conduct  to  his  un- 
pardonable failure  to  provide  the  means  within  his  power  by 
which  to  prevent  it. 

It  is,  however,  in  the  last  place,  insisted  that  the  dam- 
ages are  excessive,  and  that  this  appears  from  the  evidence 
of  the  defendant  in  error,  and  that  the  court  ought  to  have 
granted  a  new  trial  for  that  cause. 

There  is  no  rule  of  law  fixing  the  measure  of  damages  in  soeh 


Jvlj,  1854]         Fabish  ft  Ck>.  V.  BXIQL&  679 

a  case,  and  it  can  not  be  reached  by  any  piocees  of  oompatation. 
In  cases  of  the  kind  the  judgment  of  the  jmy  must  govern  unless 
the  damages  are  so  ezcessiTe  as  to  warrant  the  belief  that  the 
jury  must  haye  been  influenced  by  partiality  or  prejudice,  or  have 
been  misled  by  some  mistaken  view  of  the  merits  of  the  case: 
WoTBier  v.  Proprietors  of  Canal  Bridge,  16  Pick.  547. 

On  the  one  hand,  the  damages  seem  to  be  heavy.  On  the 
other,  the  injuries,  losses,  and  sufferings  which  they  are  designed 
to  compensate  are  proved  to  be  great.  The  head  of  the  defend- 
ant in  error  was  severely  cut,  and  one  of  his  l^gs  badly  broken, 
the  smaller  bone  protruding  through  his  clothing  and  boot. 
One  of  his  physicians  thought  at  first  that  amputation  would 
have  to  be  resorted  to.  His  agonies,  physical  and  mental,  must 
have  been  intense.  For  some  time  his  mind  was  seriously  af- 
fected. At  the  time  of  the  trial,  rather  more  than  a  year  after 
the  happening  of  the  disaster,  his  leg  had  not  entirely  healed; 
the  limb  was  shortened,  and  the  joint  stiff.  The  use  of  crutches 
was  still  necessary,  and  the  physicians  expressed  the  opinion 
that  he  would  be  a  cripple  for  life.  He  was  necessarily  confined 
for  some  six  months  in  a  house  near  the  place  of  the  disaster, 
detained  from  his  business  and  from  his  home,  which  was  in 
another  state.  The  presence  of  members  of  his  family,  some 
during  the  whole  time  and  others  for  a  portion  of  it,  was  neces- 
sary in  order  that  his  wants  and  comforts  might  be  properly 
attended  to;  and  the  expenses  which  he  encountered  in  the  dis- 
eharge  of  the  bills  for  boarding  and  the  attendance  of  his  phy- 
sicians, and  other  incidental  charges,  were  necessarily  laige. 

In  view  of  such  a  state  of  facts,  I  can  not  undertake  to  say 
that  the  damages  are  so  plainly  beyond  a  reasonable  compensa- 
tion, so  manifestly  exorbitant,  as  to  require  us  to  disturb  the 
estimate  and  verdict  of  the  jury. 

I  think  the  judgment  ought  to  be  affirmed. 

The  other  judges  concurred  in  the  opinion  of  Dakiel,  J. 
Judgment  affirmed. 

BUBDXN    OF    PbOOV  BMraOTDni    NlQUOXNCB    WHIN    PaSSXKOXB   IS    IH« 

JUBKD.— In  the  note  to  IngaU»  v.  BiUB,  43  Am.  Deo.  855-9G7,  the  nibjeot  of 
actions  against  carrien  for  injuries  to  passengers  is  discossed  at  length.  In 
that  note,  at  page  3S3,  it  is  said:  '*  Where  a  person,  suing  a  carrier  of  passengen 
for  an  injary,  shows  thai  the  injnry  happened  to  him  without  fault  or  negli« 
gence  on  his  part,  in  oonsequenoe  of  the  breaking  or  failure  of  the  vehicle, 
roadway,  or  other  appliaooes  owned  or  controlled  by  the  carrier  in  making  the 
transit,  he  makes  out  a  pHma/aeie  case  for  recovery  of  damages."  See  also, 
OD  the  subject  of  this  note^  Thompson's  Carriers  of  Passengers,  20^215;  note 
in  5  Am.  L.  Bev.  211  et  seq.  And  it  may  be  added,  the  burden  of  proof  is  upon 


080  Fabish  &  Oo.  V.  BebzlBp  [Yirgioiai 

Iba  dflfnda&t|  the  ottrUr,  to  0hov  the  absence  of  any  nci|^%eBoe  on  the  part 
of  himaelf  or  hia  agents  whereby  the  accident  occnrred.  And  in  the  absence  of 
any  proof  on  the  part  of  the  carrier  to  rebut  the  presumption  of  negligence 
that  arises  against  him  in  such  a  case,  the  presumption  becomes  conclusive. 
This  is  a  correct  statement  of  the  law,  and  is  fully  supported  by  the  cases  there 
cited.  It  is  well  settled  as  a  general  rule,  that  to  recoTcr  for  injuries  or  loss 
oocasioned  by  negligenoe,  the  negligence  must  be  alleged  and  proved  by  the 
plaintifEl  The  mere  happening  of  an  accident  is  not  sufficient  evidence  to  be 
left  to  the  jury.  And  the  negligence  is  not  to  be  presumed:  Eorer  on  Ilall- 
wajrs,  697;  Whart.  on  Negligence,  sec  421;  Shearman  &  Eedf.  on  Negligenoe, 
sec  12;  CrcmdaU  y.  Goodrich  Trantp,  Co.,  16  Fed.  Bep.  75;  Crem  v.  Si.  Louis 
etc.  Ii*i/  Co.f  20  Id.  87.  And  ordinarily,  even  in  the  case  of  bailees,  the  tort 
must  bo  proved,  though  slight  proof  is  sufficient  to  sustain  the  inference  of 
negligence:  Whart.  on  Negligence,  sec  422.  But  in  the  case  of  a  common 
carrier  of  goods,  because  of  his  greater  contractual  liability,  a  prima/cuie  case 
is  made  out  against  him  when  proof  is  made  of  the  delivery  and  acceptance  of 
the  goods,  their  loas  and  their  value:  Id.;  Rorer  on  BaUways,  698. 

Basis  of  Bulb  of  PassuMFnoN  of  Neguosnce.— In  the  case  of  the 
carriers  of  passengers,  it  is  imiversally  held  that  the  presumption  of  negli- 
gence obtains  against  them  when  the  accident  happens  in  the  manner  above 
stated.  By  some  authorities  this  presumption  is  also  based  upon  the  greater 
contractual  liability  which  rests  upon  the  carrier  of  passengers  in  comparison 
with  that  resting  upon  other  bailees;  for  the  carrier  of  passengers,  though 
not  an  insurer  as  a  carrier  of  goods  is,  undertakes,  nevertheless,  for  the 
utmost  care  of  cautious  persons,  and  sustains  liability  for  any  injuries  to 
passengers  which  might  have  been  prevented  by  the  exercise  of  human  care 
and  foresight.  For  this  reason,  upon  the  proof  of  an  accident  happening 
from  the  breaking  down  or  failure  of  the  vehicle,  roadway,  or  other  appli- 
ances or  equipments  under  the  carrier's  control,  without  the  passenger's 
fault,  a  presumption  of  negligence  arises  against  the  carrier.  The  intimation 
that  thii  presumption  arises  on  the  ground  of  the  contractual  relation  is 
foond  in  HamTnack  v.  WhUe,  11  C.  B.,  N.  S.,  587,  594,  per  Erie,  C.  J.,  and  in 
many  of  the  cases  cited  below;  see  also  Dougherty  v.  Missouri  Pac\fie  R.  R* 
Co.,  9  Mo.  App.  484  et  seq.;  Walker  v.  Erie  R.  R.  Co.,  63  Barb.  260.  Other 
authorities  base  this  presumption  upon  a  much  more  general  principle  Thus 
it  is  a  general  principle  of  common  law  that  a  presumption  of  negligence  is 
raised,  not  only  in  the  case  of  the  carrier  of  passengers,  but  in  any  case, 
whenever  there  is  evidence  of  an  accident  which  usually,  and  according  to 
the  ordinary  course  of  things,  would  not  happen  if  proper  care  was  exercised  i 
Caldwell  v.  New  Jersey  Steamboat  Co,,  47  N.  T.  282.  Or  wLere  the  accident 
is  caused  by  the  mismanagement  or  misconstruction  of  something  over  which 
the  defendant  has  immediate  control,  and  for  the  mismanagement  or  con* 
struction  of  which  he  is  responsible:  Transportation  Co.  v.  Downer,  II  Wall. 
129;  Rroum  v.  Congress  etc.  Street  R'y  Co.,  40  Mich  153;  Chieoigoetc.  R.  R.  Co, 
V.  Trotter,  60  Miss.  442.  And  in  Rose  v.  Stephens  etc.  Transp.  Co.,  20  BUtohf. 
411,  it  is  held  that  an  explosion  of  steam-boiler  on  a  vessel  raises  a  presump* 
tion  of  negligence,  even  where  the  defendant  is  under  no  contract  obligation 
to  the  plaintiff.  And  it  was  said:  "The  presumption  originates  from  the  na- 
ture of  the  act,  not  from  the  nature  of  the  relations  between  the  parties.  It 
is  indulged  as  a  legitimate  inference  whenever  the  occurrence  is  such  as  la 
the  ordinary  course  of  things  does  not  take  place  when  proper  care  is  exer- 
cised, and  is  one  for  which  the  defendant  is  responsible."  The  burden  is, 
then«  upon  the  plaintiff,  either  to  establish  negligence  or  to  raise  this  pre- 


July,  18S4.]         Fabish  b  Co.  v.  Reiglb.  681 

■mnptioii:  OaMwtU  r,  New  Jeney  Stecanboat  Co.,  47  N.  Y.  282.  For  when 
the  accident  does  not  import  negligence,  the  plaintiff  most  eetabliah  it:  Met" 
ropolikm  B.  B,  Co,  v.  Jackson,  L.  R.,  3  App.  Gas.,  193;  see  also  Borer  on  Rail- 
ways, 697;  Whart.  on  Negligence,  eec.  421;  Shearman  &  Redf.  on  Negli- 
gence, sec.  12;  Crandail  r.  Chodrich  Tranap,  Co,,  16  Fed.  Rep.  75;  Creto  v. 
St.  Lofds  etc.  R*y  Co.,  20  Id.  87.  What  is  due  or  proper  care  will,  of  course, 
be  greater  in  the  case  of  common  carriers  of  passengers  than  in  ordinary  cases, 
by  reason  of  the  greater  liability  which  pablio  policy  imposes  upon  them. 
And  in  order  to  rebut  this  presumption  of  negligence,  it  will  be  necessary  for 
them  to  show,  not  merely  ordinary  care — ^that  is,  the  care  of  prudent  persona 
—but  the  care  of  cautions  persons,  and  the  exhibition  of  all  possible  human 
care  and  foresight:  Dowen  v.  R,  R,  Co,,  18  N.  T.  408. 

It  is  also  said  that  where  one  has  apparently  violated  any  duty,  whether 
imposed  upon  him  by  contract  or  public  policy,  the  rule  of  presumptive  neg- 
ligence will  hold  good.  See  authorities  collected  in  Dougherty  v.  J/wftmrt 
Pacxfie  R.  R,  Co,,  9  Mo.  App.  484  et  seq. 

What  Passenger  must  Prove  to  Raise  Presumption  of  Negligence. — 
The  universally  accepted  rule  as  to  the  presumption  of  negligence  as  be- 
tween the  injured  passenger  and  the  carrier  receives  in  some  cases  a  too  gen- 
eral statement.  These  cases  say  that  the  mere  happening  of  an  accident  to  a 
passenger  without  his  fault  raises  this  presumption  of  the  carrier's  negli- 
gence, and  proof  of  any  injury  happening  during  the  transportation  con- 
stitutes a  prima  facte  case  against  him:  Laing  v.  Colder,  8  Pa.  St.  479; 
8.  C,  49  Am.  Dec.  533;  Teniiery  v.  Pippinger,  1  Phlla.  543;  Yeomaiui 
y.  Contra  Costa  Steam  Nav,  Co,,  44  Cal.  71;  George  v.  St.  Louis  etc.  R^y 
Co.,  34  Ark.  613;  Wilkie  v.  Bolster,  3  E.  D.  Smith,  327;  Zempv,  Railroad 
Co.,  9  Rich.  L.  84.  It  is,  however,  the  weight  and  majority  of  authorit}' — 
indeed,  it  is  even  the  authority  of  the  cases  just  cited,  as  an  examination  of 
the  facts  upon  which  they  were  decided  will  show — that  the  mere  happening 
of  an  accident  causing  injury  to  the  passenger  docs  not  raise  the  presump- 
tion. But  in  addition  to  the  mere  happening  of  the  accident,  it  must  appear 
that  it  resulted  from  the  breaking  down  or  failure  of  the  vehicle,  roadway, 
or  equipments  of  the  carrier,  or  of  any  of  those  appliances  over  which  he  has 
immediate  control.  Or,  as  it  is  said  in  a  work  on  negligence,  there  must 
be  **  prima  fade  proof  that  the  proximate  cause  of  such  injuries  was  a 
want  of  something  which,  as  a  general  rule,  the  carrier  was  bound  to  supp* 
ply,  or  the  presence  of  something  which,  as  a  general  rule,  the  carrier 
was  bound  to  keep  out  of  the  way:"  Shearman  &  Redf.  on  Negligence, 
sec.  280;  cited  with  approval  in  Railroad  Co,  v.  MUchfll,  11  Heisk.  400, 
404;  see  also  Damkl  v.  Metropolitan  R'y  Co.,  L.  R.,  3  0.  P.,  216;  S.  C,  Id. 
691;  Hammock  v.  White,  11  C.  B.,  N.  S.,  587,  594;  Sawyer  v.  Hannibal  etc. 
B,  B.  Co,,  37  Mo.  240,  260;  Dougherty  v.  Missouri  Pacific  B,  B,  Co,,  9  Mo. 
App.  480;  Brehm  v.  Cfreat  Western  B,  B,  Co,,  34  Barb.  256;  Curtis  v.  Boches- 
ter  etc.  B*y.,  18  N.  Y.  534;  S.  C,  Thompson's  Carriers  of  Passengers,  188; 
Ccidwdl  ▼.  New  Jersey  Steamboat  Co,,  47  N.  Y.  282;  Baltimore  etc,  B, 
R.  Co,  v.  Wightman's  Adm'r,  29  Gratt.  431;  Same  v.  Noell,  32  Id.  394; 
Transportation  Co,  v.  Douner,  11  Wall.  129;  Bailroad  Co,  v.  Pollard,  22 
Id.  341.  **  Thus,  if  a  passenger  were  to  fall  down  ui>on  the  floor  of  a 
railway  coach  while  it  was  standing  still,  or  while  sitting  in  the  coach 
were  wounded  by  a  gun-shot  fired  by  a  trespasser  from  without,  or  were 
struck  by  lightning  from  above,  it  is  obvious  that  in  none  of  these  cases 
woold  there  be  a  prima  fade  case  against  the  carrier,  since  there  would 
be  nothing  in  the  facts  attending  the  aoddent  tending  to  show  a  failure  ol 


\ 


481  Fabish  tf  Oo.  V.  Rdolb.  [Vir^iii% 

dnty  on  his  pwt.  This  illnatrateB  what  ooarte  meaii  hy  holding  that  a 
curier  of  paiaengen,  while  bound  to  extraordinary  care,  ia  not  an  insorcr 
mi  hia  paaaengeia:"  Per  Thoinpaon«  J.»  in  Dcugheriif  t.  Mkatmri  PticySe  R* 
B.  Co,^  9  Mo.  App.  480. 

In  England  the  rule  ia,  if  anything,  even  atricter.  In  Darnds  v.  Jfetro- 
^Uan  R'y  Co.,  L.  R.,  3  Q  P.,  216;  S.  C,  Id.  501,  it  ia  aaid:  "Circamatanoea 
should  be  ahown  from  which  it  may  fairly  be  inferred  that  the  anddent  com- 
plained of  resulted  from  the  want  of  aome  preoaotion  which  the  defendants 
might  or  ought  to  have  taken,  and  to  ahow  with  reaaonable  certainty  what 
particular  precaution  had  not  been  taken:*'  And  aee  MetnpoUian  R.  R.  Co, 
▼.  Jackmm,  L.  R.,  3  App.  Caa.,  193;  Bird  v.  Great  Northern  BTy  Co,,  28  Im 
J.  Ezch.  3.  After  the  ontw  haa  been  caat  upon  them  they  are  bound  to 
•how  that  there  haa  been  no  negligence  whataoever,  and  that  the  damage  or 
injury  haa  been  occasioned  by  inevitable  casualty,  or  by  aome  cauae  which 
htttnan  care  and  foreaight  could  not  prevent:  Bowen  ▼.  R,  R,  Co,^  18  N.  Y. 
408;  Stohea  v.  ScdtoruiaU,  13  Pet.  181;  BaUimore  etc,  R.  R,  Co,  v,  Wighiman's 
Adm'r,  29  Gratt.  431;  Baltimore  etc.  R.  R,  Co.  v.  NoeWa  AdvCr,  32  Id.  394; 
■eo  Edgerton  v.  New  York  etc  R.  R,  Co.,  35  Barb.  389;  S.  C,  39  N.  Y.  227; 
Sawyer  v.  JlannUxd  eU.  R.  R.  Co.,  37  Mo.  240,  260;  Carpue  v.  London  etc  R, 
Co.,  5  Ad.  &,  EL  747.  It  was  no  error  to  refuae  to  chai^  that  if  the  injniy 
waa  caused  in  part  by  an  unforeseen  cause  and  in  part  by  a  canae  attributable 
to  negligence,  the  plaintiff  could  not  recover:  Brehm  v.  Great  Western  R'y 
Co.,  34  Barb.  256.  In  Clark  v.  Chicago  etc  Ry  Co.,  15  Fed.  Bep.  588.  it  ia 
lield  that  in  a  suit  for  damages  for  injuries  received  while  traveling  as  a  pas- 
senger on  the  defendant*a  cars,  through  the  defendant's  negligence,  the  plaint- 
iff ia  not  bound  to  state  in  his  declaration  the  particular  facta  conatitnting  the 
negligence.  It  is  sufficient  to  state  generally  that  the  injury  waa  the  result 
of  the  defendant'a  negligence.  There  ia  nothing  peculiar  in  street-railway 
service  to  remove  sudi  carriers  from  the  operation  of  this  rule  of  the  burden 
of  proof:  Dougherty  v.  M%8aour%  Pacific  R,  R,  Co.,  9  Mo.  App.  483. 

Instances  of  Accidents  Which  Support  Presumption  op  Neguobnce. 
It  now  remains  to  collect  those  instances  of  aocidenta  which,  aa  they  arias 
from  a  failure  or  defect  in  the  carrier's  vehidea,  roadway,  or  equipmenta,  or 
from  the  presence  of  something  which  in  the  first  instance  he  ia  bonnd  to 
keep  out  of  the  way,  support  the  presumption  of  hia  negligence,  and  caat 
upon  him  the  onus  of  removing  it  by  showing  due  care  or  inevitable  caanalty, 
aa  well  as  those  accidents  of  a  contrary  nature. 

Breaking  down  or  Ovei-tuming  qf  Stage-coach,  aa  in  the  principal  case, 
im|x>rts  negligence  in  the  company  or  in  the  driver:  ChrieOeY,  Griggi,  2 
Camp.  N.  P.  79;  S.  C,  Thompson's  Oarriera  of  Paaaengera,  181;  Fairchild  t. 
Cali/'omia  Stage  Co.,  13  Cal.  599;  Boyce  v.  California  Stage  Co,,  25  Id.  400; 
Pitlefmrgh  etc  R.  R.  Co,  v.  Thompson,  56  HI.  138;  Stockton  v.  J^-ey,  4  Gill, 
406;  S.  C,  45  Am.  Dec.  138;  Ware  v.  Gay,  11  Pick.  106;  Xefnoa  v.  C%aiiafor, 
68  Mo.  340  (hack  or  onmibua);  Tennery  v.  Pippinger,  1  Phila.  543;  Stohea  v. 
SaUonstall,  13  Pet  181;  McKinney  v.  Neil,  I  McLean,  540;  uncoupling  of  a 
coach,  and  ita  precipitation  into  the  river,  while  being  driven  upon  a  ferry- 
boat: McLean  v.  Bvrbank,  11  Minn.  277. 

Overturning  qf  Railroad  Car,  or  ite  Running  off  the  Track,  or  Both: 
Carpue  v.  London  etc  R.  R,  Co.,  5  Ad.  &  El.  747;  Dawwn  ▼.  JUanchater  etc 
R'y,  7  H.  at  N.  1037;  George  v.  St,  Louis  etc  Ry  Co.,  34  Ark.  613  (oauaed  by 
a  broken  rail);  Younge  v.  Kinney,  28  Ga.  HI;  Pitttburgh  etc  R.  R,  Co,  ▼• 
Thompson,  56  lU .  138;  Peoria  etc,  R.  R,  Co.  ▼.  Reynolds,  88  Id.  418;  PUtehusyh 
etc  R.R,  Co,  v.  Williams,  74  Ind.  462;  Stevens  v.  Europeas^  ate.  iT'y  Co.,  66  Mol 


July,  1854]         Fabish  &  Go.  t;.  BmaUL  68S 

74;  FeUai  r.  MkUOesex  B.  B.  Oo,,  109  Haas.  308  (itnelHMr);  Bewen  r. 
New  Torb€te.  B,  B,  Co.,  18  N.  T.  408  (caused  by  nmning  into  a  oow,  for  it 
ia  the  carrier's  duty  to  keep  his  track  dear);  SuUwan  v.  PkUaddphia  etc  B. 
B.  Co.,  30  Pa.  St  234,  239  (to  the  same  effect);  EdgerUm  v.  New  Torhetc  B. 
B.  Co,,  35  Barb.  389;  S.  C,  39  N.  T.  227;  Curtis  v.  BocheetereU.  B.  B.  Co.,  18 
Id.  634;  S.  C,  Thompson's  Carriers  of  Passengers,  188;  BaUimore  Uc  B.  B. 
Co.  V.  WightmourCs  AdmW,  29  G»tt.  431;  BaUimore  etc.  B.  B.  Co.  v.  NoeWs 
AdmW,  32  Id.  394;  SU>bu  v.  SaUoruUUl,  13  Pet.  181;  S.  C,  Thompson's  Car- 
riers of  Passengers,  183;  see  Bedfield  on  Railways,  229,  note  19;  when  it  ia 
shown  that  both  the  machinery  and  management  of  the  railway  are  under 
the  ezclnsive  control  of  the  d^endants:  Carpue  y.  London  etc  B,  B,  Co.,  5 
Ad.  &  El.  747;  Feitai  v.  Middlesex  B.  B.  Co.,  109  Mass.  398;  EdgerUm  v.  New 
York  etc  B.  B.  Co.,  35  Barb.  389;  S.  C,  39  N.  Y.  227.  In  BM  v.  Oreat 
Northern  Ry  Co.,  28  L.  J.  Exch.  3,  it  is  held  that  the  nmning  off  the  track, 
although  it  may  be  prima  ftjudt  proof,  is  not  conclusive,  and  where  there  is 
evidence  on  both  sides,  the  jury  are  justified  in  finding  for  the  defendant  on 
the  ground  that  it  did  not  sufficienUy  appear  that  the  ^Cccident  arose  from 
negligence.  This  case  has  a  tendency  to  throw  the  burden  upon  the  plaintiff 
of  satisfying  the  jury  of  the  defendant's  negligence  in  such  a  case,  and  seems 
hardly  to  give  the  presumption  its  full  force.  This  is  not  in  accordance  with 
the  American  doctrine,  but  we  have  perceived  tupra  a  more  stringent  ten- 
dency in  the  English  cases.  Deyo  v.  New  Torh  etc  B,  B.  Co.  »34  N.  Y.  9,  may 
seem  to  be  authority  to  the  point  that  the  burden  is  upon  the  plaintiff  to 
establish  the  defendant's  negligence  in  case  of  cars  being  thrown  from  the 
track;  but  whatever  is  contained  in  the  case  which  seems  to  be  authority  to 
this  point  is  mere  dictum.  The  decision  is  only  that  the  plaintiff  makes  out 
no  case  to  recover,  and  a  nonsuit  is  properly  granted,  when  the  evidence  shows 
that  the  train  was  thrown  from  the  track  through  the  malicious  act  of  some 
third  person  who  removed  the  spikes  which  held  the  rails  in  place,  the  com- 
pany having  exercised  the  utmost  care  in  the  examination  of  the  track  previous 
to  the  passage  of  the  train.  That  is,  the  company  appears  to  have  shows 
what  is  incumbent  upon  them  to  show;  namely,  that  they  exhibited  the 
utmost  care,  and  that  the  accident  could  not  have  been  prevented  by  humao 
skill  and  foresight.  And  the  court  was  justified  in  nonsuiting  the  plaintiff^ 
on  the  ground  that  a  nonsuit  should  be  granted  when  a  verdiot  for  the  plaintiff 
would  be  set  aside  for  want  of  evidence  to  sustain  it.  Therefore,  where  the 
running  off  the  track  is  caused  by  the  willful,  wrongful  act  of  a  stranger, 
without  any  negligence  in  the  company,  the  presumption  ii  rebutted:  Id.| 
Latch  V.  Bumner  B'y  Co.,  27  L.  J.  Exch.  155. 

D^ective  or  Misplared  Bail  Causing  Bunning  qf  Track:  George  v. 
6t.  Louis  etc  B*y  Co.,  34  Ark.  613;  Brignoli  v.  Chicago  B,  B.  Co.,  4  Daly, 
182;  Pym  v.  Qrtat  Northern  B'y,  2  F.  &  F.  619.  In  Baltimore  etc  B.  B. 
Co,  V.  Worthington,  21  Md.  275,  282,  a  railway  train  was  thrown  from  the 
track  by  the  rail  being  displaced  at  a  switch.  The  switch  was  in  a  position 
where  the  switch-indicator  could  not  be  seen  by  the  engineer  in  time  to  pre- 
Tent  the  accident,  and  there  was  no  switch-tender  stationed  at  that  point. 
In  Curtis  v.  Bochester  etc  B*y,  20  Barb.  282,  it  was  said  to  be  the  company's 
duty  to  see  that  the  rails  are  in  place,  and  not  to  trust  to  the  lever  of  the 
switch;  and  proof  that  the  switch  was  righUy  placed  did  not  rebut  presump- 
tion of  negligence. 

}Vashing  away  qf  Embankment  Supporting  Bailroad  Track:  Philadd- 
fiAta  eU.  B.  B.  Co.  v.  Anderson,  94  Pa.  St  351;  S.  C,  39  Am.  Rep.  787 
<caased  by  insufficient  drainage);  Brehm  v.  Oreat  Western  B,  B.  Co.,  34  BsirU 


064  Faresh  Af  Oa  ti.  Bziaix  [T&gkiii^ 

296;  Chmt  Wm^am  R^  t.  Fawcett,  GrealWewtem  IFy  ▼.  Braids  1  Mooro  P.  C 
C,  N.  8.,  101;  S.  O.,  9  Jar.,  N.  S.,  33D.  When  the  raimiiig  off  the  tnek 
|a  cansed  by  the  washing  away  of  an  embankment  caused  by  a  flood,  thongh 
evidence  by  the  plaintiff  of  the  sandiness  of  the  soil  of  the  embankment  or 
the  insufficiency  of  the  culverts  is  admissible,  yet  it  is  not  material  unless  it 
IS  shown  that  these  conditions  were  likely  to  lead  to  such  an  aoddent  in  or- 
dinary floods  which  were  common  in  that  r^on:  WiUiers  v.  Norih  Kent  R. 
Oo,,  27  L.  J.  Exch.  417;  S.  C.  at  umpriuBj  mb.  nem.  KtrU  v.  Oreal  Narthank 
irs  Co.,  F.  &  F.  165. 

CoUisioti  rf  VMdu, — ^Bailroad  trains:  Skinner  t.  London  etc.  Ry  Co.^  5 
Exch.  7S7;  S.  C,  2  Eng.  L.  ft  Eq.  300  (notwithstanding  the  train  had 
been  hired  of  the  company  for  an  exeursion);  New  Orleans  etc,  R.  R.  Ca  ▼. 
AllbrUto*^  38  Miss.  242,  274;  Iron  R.  R.  Co,  v.  Mowery,  36  Ohio  St  418;  S. 
C,  3S  Am  Rep  597;  Reulroad  Co,  t.  PoUard,  22  Wall.  341,  affirming  Stoiee 
V.  ScUtonAtall,  13  Pet.  181.  A  passenger  train  was  met  by  a  construction 
train  coming  from  the  opposite  direction,  which  had  upon  it  a  bar  of  iron 
projecting  Ave  or  six  feet  in  a  slanting  direction  so  that  it  would  neoe» 
sarily  run  into  anything  it  came  against.  This  bar  struck  a  passenger-car 
and  injurcil  the  plaintiff.  The  presumptioo  of  negligence  was  plain,  which 
was  a  violation  of  the  contractual  relation:  WaUxr  v.  Erie  R,  Co,,  63  Barb. 
260.  When  the  accident  is  caused  to  a  passenger  in  a  stationary  train  by 
another  train  running  into  it,  it  will  be  presumed  that  the  train  that  caused 
the  accident  was  under  the  control  of  the  defendant:  Aylee  v.  South-eastern 
R,  R,  Co.,  L.  R.,  3  Exch.,  146.  Street-cars:  MUUr  v.  St.  Louie  R,  R.  Co,,  6 
Mo.  App.  471.  Steamboats:  Sherlock  v.  AlUng,  44  Ind.  184.  In  this  case  it 
is  said  that  the  burden  of  proWng  the  material  facts  of  the  carelessness  rests 
with  the  plaintiff,  but  when  he  shows  that  the  descending  boat  departed  from 
the  rules  of  navigation,  and  gave  the  first  signal  to  pass,  then  the  burden  is 
upon  the  defendants  to  show  that  there  was  a  necessity  for  it.  So  this  case 
would  seem  to  intimate  that  the  mere  fact  of  the  collision  would  not  raise  the 
presumption. 

Breaking  of  Axle:  Htgeman  v.  WeeUm  Ry,  16  Barb.  353,  356;  S.  a 
affirmed  on  appeal,  13  N.  Y.  9;  Meier  v.  Pennsylvania  R.  R,  Co.^  64  Pa.  St. 
225;  Baltimore  etc  R.  R,  Co.  v.  Wightman'a  AdnCr,  29  Gratt.  431;  Baltimore 
etc.  R.  R.  Co,  V.  NoeWa  Adm*r,  32  Id.  394;  lerael  v.  Clark,  4  Esp.  259.  The 
presumption  in  this  case  may  be  rebutted  by  showing  that  the  axles  were  the 
best  known,  and  that  the  utmost  care  had  been  exercised  respecting  thenu 
Meier  v.  Pennsj/lvania  R.  R.  Co.,  64  Pa.  St.  225. 

Breaking  of  Car-wheel:  Toledo  etc.  R.  R.  Co.  v.  Beggs,  85  HL  8a 

Breaking  Paddle-wheel  of  Steamboat:  Terkee  v.  Keokuk  etc  Packet  Co.,  7 
Mo.  App.  265. 

Boiler  Explosion. — Locomotive:  Robinson  v.  N.  Y.' Central  R.  R.  Co.,  20 
Blatchf.  338.  Steamboat:  Teomans  v.  Contra  Costa  Steam  Nnv.  Co.,  44  Cal. 
71;  Caldwell  v.  Kew  Jersey  Steamboat  Co.,  47  N.  Y.  282;  Rote  v.  Stephens  etc. 
Transp.  Co.,  20  Blatchf.  41 1.  The  fact  that  a  carrier  by  steamboat  has  fully 
complied  with  the  a'^t  of  congress  as  to  safeguards  to  be  used  for  the  protee* 
tion  of  passengers  does  not  clear  him  from  liability,  or  remove  a  presumption 
of  negligence  established  by  the  evidence:  Caldwell  v.  New  Jersey  Steamboat 
Co.,  47  N.  Y.  282.  Under  section  13  of  the  act  of  July  7.  1838,  5  Stota.  al 
Large,  306,  if  a  person  is  injured  on  board  a  steamboat  by  the  injurious 
escape  of  steam,  it  is  incumbent  on  the  ownem,  in  an  action  against  them,  to 
prove  that  there  was  no  negligence:  Steamboat  New  World  v.  Eirig,  16  HoiK 
460;  S.  C,  Thompson's  Carriers  of  Passengers,  115. 


July,  1864]         Fabibh  &  Ck).  t;.  Beioul  68» 

BreaJshig  dmm^ Bridget:  BiMmanUc  R.  B.  Co.  ▼.  WlghimanU  Adm*r^ 
29  Gntfe.  431 ;  BalUmare  etc.  B.  B.  Co.  v.  JVbeTf  ^<2iiiV,  82  Id.  ZH.  The  giv- 
isg  way  of  a  bridge  under  a  paning  tanain  is  pHma/aeie  evidenoe  of  Degligenoe 
in  the  location  or  oonatmotioa  of  the  bridgBy  or  both,  even  when  the  subver- 
sion of  the  bridge  appears  to  have  been  caused  by  an  unnsoal  flood  or  freshet; 
but  aliUr  when  injory  occurs  from  causes  entirely  foreign  to  the  apparatus  or 
operation  of  the  road:  KauMs  Pacific  R'y  Co.  v.  MtUkr^  2  Col.  442,  458;  as 
where  the  bridge  was  burned  by  the  public  enemy,  and  no  information  of  the 
fact  was  obtainable  whereby  the  accident  might  have  been  prevented:  SaW' 
far  V.  Hannibal  tie,  B.  B.  Co.,  37  Mo.  2^0,  2G0. 

JUUcelkmeouM  Casea.  ^Where  a  street-car  is  started  with  an  unusual  jerk, 
which  throws  a  passenger  against  the  car  window  and  lacerates  his  hand,  be* 
fore  he  has  time  to  be  seated  after  entering  the  car,  and  it  appears  that  by  a 
proper  use  of  the  reins  and  brake  the  car  could  be  started  without  any  jerk, 
this  makes  out  a  prima  facie  case  of  n^ligence:  Dougherty  v.  Mieaouri  Peh 
eific  B.  R,  Co.  J  0  Mo.  App.  478;  but  compare  Brown  v.  Congreu  etc  Street  B*p 
Co. ,  49  Mich.  153.  The  bursting  of  a  lamp  in  an  omnibus  raised  the  presump- 
tion ;  the  burden  being  on  the  owners  to  show  affirmatiTely  that  the  oil  was  safe 
and  proper:  Wilkie  v.  Bolster,  3  K  D.  Smith,  327.  A  passenger  in  an  ominbus 
was  injured  by  a  blow  from  the  hoof  of  one  of  the  horses.  There  was  no  evi- 
dence that  the  horse  was  accustomed  to  kick,  but  it  was  proved  that  the 
vehicle  bore  marks  of  other  kicks,  and  that  no  kicking-strap  or  other  precau- 
tion was  used.  This  was  evidenoe  of  negligence  to  be  submitted  to  the  jury; 
Simeon  v.  London  eU.  Omnibue  Co.,  L.  R.,  8  C.  P.,  390.  The  pUintiff  took 
bold  of  a  bar  across  the  door  of  a  railway*coach  with  the  intention  of  looking 
out  of  the  window  to  see  the  lights  of  the  next  stati  ju.  The  pressure  caused 
the  door  to  fly  open,  and  the  plaintiff  fell  c  ut  and  was  injured.  There  was  no 
other  evidence  of  the  construction  of  the  door  or  its  fastenings:  Oee  v.  Metro^ 
polUan  B.  Co.,  L.  R.,  8  Q.  B.,  161.  Stopping  a  train  at  an  unusual  place  was 
evidence  of  negligence  to  be  rebutted  by  proving  its  necessity:  Memphis  v. 
WhUrfieUl,  44  MIbs.  466.  The  falling  of  a  stage-plank  used  in  landing  passen- 
gers from  a  steamboat  threw  the  burden  of  showing  absence  of  negligence 
upon  the  defendant:  Eagle  Packet  Co.  v.  Defries,  94  111.  598. ,  In  that  case 
it  was  said  that  although  it  may  appear  that  the  end  of  the  boat  was 
moved  around  by  the  wind,  and  that  this  caused  the  falling  of  the  stage-plank, 
yet  it  not  being  ahown  that  the  boat  was  fastened  to  tlie  wharf  in  any  way, 
or  that  it  could  not  have  been  fastened  so  as  to  have  prevented  it  from  being 
moved  by  the  wind,  there  would  not  appear  to  have  been  due  care  on  the  part 
of  the  defendants.  The  act  of  a  servant  in  allowing  a  liale  of  cotton  to  fall  on 
a  passenger  is  presumptively  negligent:  Memphis  etc.  Packet  Co.  v.  McCool,  83 
Ind.  302;  S.  C,  43  Am.  Rep.  71.  The  phuntiff,  while  traveling  in  the  defend- 
ants cars,  was  injured  by  the  fall  of  an  iron  girder  which  was  being  erected 
across  the  track.  It  was  shown  that  the  company  omitted  the  usual  precau- 
tion cf  employing  a  man  to  signal  the  approach  of  a  train.  This  was  evidence 
of  negligence  to  go  to  the  jury:  Daniel  v.  Metropolitan  B.  B.  Co.,  L.  R.,  3 
C.  P.,  216;  S.  C.  reversed  on  questions  of  fact  while  approved  on  questions  ol 
law,  Id.  591.  While  a  passenger  was  alighting  from  a  stage-coach  the  horses 
started  up,  causing  the  passenger  to  be  thrown  down  and  injured.  This 
estabUshed  ^imayact€  that  the  horses  were  unsuitable,  or  the  driver  incom- 
petent or  negligent:  BobertsY.  Johnson,  58  N.  Y.  613;  affirming  S.  C,  5  Jones 
A  S.  157. 

Instances  of  Ivjubiis  to  PASssKaERS  kot  Raising  Pjlbsumptiok  of 
NBOLiOEKOK.^We  have  seen  that  the  mere  happening  of  an  accident  to  a 


I 


686  Farish  &  Ck).  u  Reiolb.  [YiigiDia^ 

pftBaenger  does  not  create  the  presumption  nnder  disciusioD.  Wlien  from  the 
statement  of  the  accident  no  apparent  or  probable  connection  with  the  carrier'B 
negligence  is  perceived,  then  the  harden  is  npon  the  plaintiff  to  establish  that 
negligence  which,  whether  established  by  proof  or  presamption,  is  the  gist  of 
his  action. 

Act  of  Third  Person  being  Direct  Cauat, — ^Thos,  where  it  appears  that 
the  train  was  thrown  from  the  track  by  the  malicious  or  wrongfal  act  of 
a  third  person,  the  harden  of  poving  the  company's  negligence  will  be  npon 
the  plaintiff:  LtUeh  v.  Bumner  B^  Ob.,  27  L.  J.  Exch.  155;  Deyo  v.  Xew 
Vork  etc  Ji,  R,  Co,^  34  N.  Y.  9.  So  where  a  passenger  npon  a  street-car 
was  injured  by  a  passing  load  of  hay:  Federal  etc,  JVy  Co,  t.  (TtAson,  96  Pa. 
St.  83. 

Injury  to  Paa^enger  in  AUgkting  or  hy  being  Run  over, — ^The  following 
cases  raise  no  presumption  of  negligence,  the  burden  being  on  the  plaintifif 
to  prove  it.  in.  Delaware  etc.  R,  R.  Co,  v.  NapKege^  90  Pa.  St.  135,  the 
train  had  come  to  a  stop,  and  the  passenger  in  stepping  from  the  platform 
of  the  car  was  injured.  In  Railroad  v.  Mitchell^  11  Heisk.  400-406,  proof 
that  passenger  fell  in  leaving  the  oar  and  was  nin  over  by  the  car-wheel 
raised  no  presumption  of  negligence.  In  Chicago  etc  R,  R,  Co,  v.  TVoUer, 
60  Miss.  442,  a  passenger,  while  entering  a  car  standing  at  the  station,  fell 
from  the  platform  of  the  car.  The  fact  that  a  passenger  was  run  over  while 
being  transported  is  not  sufficient  to  throw  the  burden  of  proof  on  the  carrier. 
For  to  have  been  run  over  he  was  necessarily  not  in  the  place  where  he  ought 
to  have  been,  that  is,  inside  the  car:  Mitchell  v.  Weatem  R.  R.  Co,,  30  Ga.  22; 
25;  see  State  v.  Baltimore  etc  R,  R.  Co.,  68  Md.  221;  Chamberlain  v.  MO- 
waukee  etc  R,  Co,,  7  Wis.  425. 

Miscellaneoua  Case*, — ^The  mere  fact  of  a  horse  becoming  frightened  was 
no  evidence  of  the  driver's  negligence:  Hammock  y.  White,  11  C.  B.,  K.  S., 
o87,  594.  In  Proton  v.  Congrese  etc  Street  R*g  Co,,  49  Mich.  153,  it  was  held 
that  no  negligence  appeared  in  the  conduct  of  the  driver  of  a  street-car  in 
starting  a  street-car  in  the  usual  manner  a  minute  after  he  had  requested  a 
passenger  to  go  to  the  rear  platform  to  smoke;  the  passenger  having  remained 
on  the  front  platform,  and  being  thrown  down  and  injured  by  the  starting  of 
the  car.  In  AleClary  v.  Sioux  City  etc  R.  R,  Co,,  3  Neb.  44,  it  was  held  that 
although  the  train  was  behind  time,  if  upset  by  a  sodden  gust  of  wind  which 
crossed  the  track  the  carrier  would  not  be  liable.  The  injury  could  not  be 
said  to  be  the  natural  result  of  the  train  being  behind  time.  In  MetropotitoM 
R,  R.  Co,  V.  Jackson,  L.  R.,  3  App.  Gas.,  193,  the  fact  of  the  passenger's  finger 
being  jammed  in  the  door  of  a  railway  carriage  by  the  porter's  shutting  the 
door  was  uo  evidence  of  negligence,  and  the  plaintiff  did  not  succeed  in  show- 
ing that  the  accident  resulted  from  the  overcrowding  of  the  carriage. 

Eyibf  Person  Riding  on  Railroad  Cab  is  Prbsumsd  to  bbthebb  Law- 
fully OS  a  passenger,  and  the  onu$  is  on  the  carrier  to  prove  that  he  is  a 
trespasser:  Penneyloania  R^y  Co.  v.  Books,  57  Pku  St.  339. 

Burden  of  Proof  as  to  Contbibotobt  Neguobnce:  See  note  to  Ingalla  v. 
Bills,  43  Am.  Dec.  364;  and  upon  the  general  rules  of  contributory  negligence, 
see  note  to  Freer  v.  Cameron,  55  Id.  666-678;  see  also  Thompeon's  Carriers  of 
Passengers,  257  et  seq. ;  Shearman  &  Redf.  on  Negligence,  sec  43;  Whart.  on 
Kegligence,  sec.  423;  2  Thompson  on  Negligence,  1176.  Upon  this  subject 
there  is  a  conflict  of  authority,  but  the  majority  of  authority  is  that  the  plaint* 
iff  must  in  the  first  place  show  absence  of  contributory  negligence,  and  the 
presence  of  ordinary  care  in  himself,  before  his  case  is  duly  presented;  at  leasts 
that  the  burden  of  proof  respecting  contributory  negligence  is  npon  the  plaint 


July,  1854]         Farish  &  Co.  v.  Reiqls.  687 

ifftoahowiteabMnoe:  See  text-vriten,  supra;  and  Benmm  v.  Tiicomb^  72  Met 
81;  Bwfee  v.  DanvOle^  53  Vt.  183;  JIart  y.  Hudson  River  Bridge  Co.,  84  N.  Y. 
66;  /ofi«»  V.  N.  r.  CejKrerf  /?.  i?,  Co.,  10  Abb.  N.  C.  200;  S.  C,  62  How.  PV. 
450;  Toleelo  tic.  IVy  Co.  y.  BraamoQan^  75  Ind.  490;  Owens  t.  Richmond  etc.  R., 
R.  Co.,  88  N.  C.  502;  Chamberlain  v.  Milwaukee  etc  R.  Co.,  7  Wis.  425;  ^oiier 
y.  Dvimque  Street  R^y  Co.,  53  Iowa,  278  (paaaenger);  WaUre  y.  Wing,  59  Pa. 
St.  21 1;  but  see  Cleveland  etc.  R'y  y.  Rowan,  66  Id.  393.  In  Robertson  v.  JV. 
T.  etc.  R.  R.  Co.,  22  Barb.  91,  it  was  said  that  the  onus  wae  upon  the  plaintiff 
to  show  the  engineer's  authority  to  permit  him  to  ride  upon  the  engine,  tha 
preeamption  being  that  he  had  no  right  to  be  there. 

On  the  other  hand,  it  b  held  by  a  considerable  number  of  authorities  that 
eontribntory  negligence  b  a  matter  of  defense,  and  the  burden  of  establbhing 
fit  is  upon  the  defendant:  Copley  y.  New  Haven  etc  Co.,  136  Mass.  6;  S.  C.» 
23  Am.  L.  Reg.  551;  Buesehing  y.  St.  Louis  Qas  lAgkt  Co.,  73  Mo.  219;  S.  &» 
89  Am.  Rep.  503;  Crew  y.  St.  Louis  etc  R*y  Co.,  20  Fed.  Rep.  87;  Barber  t. 
Essex,  27  Vt  62;  HiU  y.  New  Haven,  37  Id.  501;  City  of  Lincoln  y.  WaUser, 
20  N.  W.  Rep.  113;  MaedougaU  y.  C.  P.  R.  R.  Co.,  63  Gal.  431,  citing  Ro^ 
inson  y.  W.  P.  R.  R.  Co.,  48  Id.  426;  Nehrbas  y.  C.  P.  R.  R.  Co.,  62  Id.  220i 
Houston  etc  R*y  Co.  y.  Cowser,  57  Tex.  293.  Where,  from  the  character  ol 
the  accident,  it  appears  that  it  could  not  haye  happened  without  improper 
exposure  on  the  part  of  the  passenger,  it  does  not  rabe  the  presumption  of 
negligence  upon  the  part  of  the  carrier:  Miller  v.  St.  Louis  R.  Co.,  5  Mo.  App^ 
471.  Some  other  authorities  take  a  medium  ground.  Thus  it  is  held  thai 
the  plaintiff*s  negUgence  b  not  presumed,  and  it  b  not  necessary  to  disproya 
it  in  the  first  pbce.  But  when  there  b  conflicting  testimony  as  to  the  fact, 
the  preponderance  must  be  with  the  plaintiff  to  entitle  him  to  recover: 
Button  y.  Hudson  River  R*y,  18  N.  Y.  248.  Or  if  it  appears  in  the  pkintifTa 
case,  the  defendant  may  rest  upon  it:  Cleveland  etc  R*y  y.  Rowan,  6C  Pa.  Si. 
893.  In  Barber  y.  Essex,  27  Vt  62,  it  was  said  that  the  pkintiff  must  show 
prima /(Euie  that  he  was  not  guilty  of  negligence,  but  after  this  the  burden  ia 
on  the  other  side.  The  burden  b  said  not  to  be  upon  the  plaintiff  iu  Hill  y. 
New  Haven,  37  Vt  601.  In  Mayo  y.  Boston  etc  R%  104  Mass.  137,  it  waa 
held  that  the  passenger  need  not  proye  due  care  by  directly  affirmative  evi- 
dence, but  the  inference  of  such  care  may  be  drawn  from  the  absence  of  all 
appearance  of  fault.  In  a  later  case  in  this  state  the  burden  b  said  to  be  upon 
the  defendant:  Copley  y.  New  Haven  etc  Co.,  136  Mass.  6;  S.  C,  23  Am. 
L.  Reg.  551.  In  Houston  etc.  R*y  Co.  y.  Cowser,  61  Tex.  293,  it  is  held  that 
the  passenger  need  not  negative  it  in  the  complaint,  unless  it  contain  allega- 
tions which,  unexplained,  would  establish  a  prima  facie  case  of  negligence  of 
the  injured  party. 

The  better  authority  certainly  is  that  contributory  negligence  is  a  matter 
of  defense.  If  the  plaintiff  by  hb  allegations  admits  a  clear  case  of  contribu- 
tory negligence  in  hb  complaint,  this  would  undoubtedly  be  sufficient  to  estab- 
Ibh  it.  Otherwise,  however,  the  burden  should  be  upon  the  carrier  to  prove 
the  defense  of  contributory  negligence.  For  it  is  certainly  a  presumption  of 
fact  or  common  sense  that  persons  are  ordinarily  prudent  In  fact,  the  very 
phrases  which  obtain  in  legal  terminology  of  **  ordinary  prudence  or  care,'* or 
**  the  care  ordinarily  exhibited  by  persons  reasonably  prudent  under  the  same 
circumstances,"  convey  with  them  and  are  baaed  upon  the  supposition  thai 
people  as  a  general  rule  are  ordinarily  careful.  Whereas  the  authorities  that 
render  it  necessary  for  the  plaintiff'  to  free  himself  from  negligence  in  the  firsi 
place  seem  necessarily  to  assume  that  people  are  usually  negligent.  The 
anomaly  of  requiring  the  party  holding  the  affirmative  to  negatively  prove  m. 


688  Fabbh  &  Ck)«  V.  BEIQI&  [Viigixii^ 


put  of  hk  oiM  li  a>]npue&t»  while  the  neoeMftrily  attendant  pmnmption  of 
the  neg^genoe  of  mankind  in  general  reqoizee  for  its  sapport  ilie  mind  of  e 
eynio  or  a  peesimiet.  The  opinion  here  expreawd  is  that  also  of  aathoritaftife 
text-writers.  Thus  Mr.  Kedfield  in  his  work  on  rMlways  saya:  "Althoag^ 
the  majority  of  the  American  eonrts  lay  down  the  role  *  *  *  that  the  bnrdea 
of  proof  is  upon  the  plaintiff  to  show  that  he  waa  gnil^  of  no  negligenoe  on  his 
own  part,  we  still  think  the  point  is  not  well  defined  in  these  terms.  AH 
that  is  meant,  we  apprehend,  is  that  where  there  is  any  eridenoe  tending  to 
prove,  either  directly  or  from  the  manner  of  the  aoddent,  that  there  mj^ 
have  been  fault  on  the  part  of  the  plaintiff,  he  most  assume  the  burden  npon 
the  whole  issue  of  satisfying  the  juiy  that  the  injury  ocounred  through  the 
fault  of  the  defendant,  and  that  his  own  want  of  care  at  the  time  did  not  ia 
sense  contribute  directly  to  it.  The  result  of  the  rule  thus  stated  would  bs^ 
that  where  there  was  no  evidence  of  want  of  care  on  the  part  of  the  plaintiff 
the  law  will  presume  none  existed,  as  in  regard  to  good  character  in  a  witness 
or  sanity  in  one  where  there  is  no  proof."  To  make  the  plaintiff  give  afiSim- 
ative  evidence  of  his  own  due  care  and  caution  "  is  much  like  one  giving  evi- 
dence of  the  good  character  of  his  witnesses  before  any  impeachment^  and  we 
think  should  never  be  required: "  2  Redfield  on  Bailways,  5th  ed.,  2a3»  notes. 

Liability  of  PAssxyaxa  Cabbicbs  is  Utmost  Gabb  ov  Gautioiib  Px»> 
SONS,  and  for  the  slightest  negligence  against  which  human  prodenoe  and 
foresight  might  have  guarded:  See  IHnk  t.  Coe,  61  Am.  Dec.  141,  and  note 
146;  GiUenwater  v.  Madimm  S  L  R.  JR.  Oo»,  Id.  101,  and  note  109.  Hie 
principal  case  is  cited  to  this  point  in  BaUimore  etc  B,  B,  Co,  v.  Wigktmmifa 
AdrrCr^  29  Gratt.  445;  BaUhnort  etc.  B.  R.  Co,  v.  NodC^  Adm'r^  32  Id.  401; 
FairchUd  v.  CaHforwa  Stage  Co,,  13  Oal.  003. 

Pbesumftion  or  Kbougekcb  Abises  against  Gabbikk  ^hen  the  aoddsiit 
occurs  from  the  error  of  the  carrier  or  servants  in  operating  the  oamei^ 
vehicle,  roadway,  or  equipments.  The  principal  case  is  cited  to  this  ofiM 
in  Dougherty  v.  MUtouri  Pacific  B.  B,  Co.,  9  Mo.  App.  481. 

Stage-coach  Pboprietobs  must  Pbovidb  Compstent  Sxrtaitxs  aitd 
Suitablb  Vehicles,  Horses,  and  Equipments:  See  Stockton  t.  i^Vvy,  45 
Am.  Dec.  138;  HollldUr  v.  Novolen,  32  Id.  455,  and  notes. 

Abstract  and  Irbelbvant  Instructions,  though  Cobbect,  bhouu^ 
NOT  be  Qiven:  See  Lund  v.  InhahUants  of  Tyngsborovgh,  59  Am.  Dec  150; 
Zachary  v.  Pace,  47  Id.  744;  Pennington  v.  TeU,  52  Id.  262;  PeopU  v.  Cm- 
ningham,  43  Id.  709;  Stevention**  Heirs  v,  McBtary,  51  Id.  102;  (kh  v. 
Sprowl,  56  Id.  696;  Benham  v.  Bowe,  Id.  342;  McDanid  v.  State^  47  Id.  93; 
Doty  V.  Strong,  40  Id.  773;  Creainger  v.  WeU^  45  Id.  565;  State  v.  Beiffort, 
39  Id.  628;  Cowlea  v.  Bacon,  56  Id.  371;  Harvey  v.  Thomas,  .36  Id.  141; 
Xetcman  v.  Foster,  34  Id.  98;  Marshall  v.  Haney,  59  Id.  92;  Duggms  v. 
Watson,  GO  Id.  560;  Johnson's  Ex'x  v.  Jennings's  AdnCr,  Id.  323;  StaU  v. 
nUdrcth,  51  Id.  369;  Barnes  v.  Meeds,  49  Id.  390;  Stoui  v.  McAdams,  33  Id. 
441;  Henderson  v.  Western  etc.  Ins,  Co,,  43  Id.  176;  Haines  v.  Stavffer,  53  Id. 
493.  But  a  charge  can  not  be  considered  abstract  when  there  is  any  evi- 
dence to  warrant  its  propositions:  Bradford  v.  Marbury,  46  Id.  264.  And 
it  ia  held  that  an  erroneous  abstract  instruction  is  not  ground  for  revensl: 
AHhur  V.  Broadnax,  37  Id.  707;  Porter  v.  Woods,  39  Id.  153;  see  Chambers 
V.  Bedell,  37  Id.  508.  But  where  there  is  any  evidence  to  a  point,  it  should 
be  submitted  to  the  jury:  Bank  of  Pittsburgh  v.  Whitehead,  36  Id.  186; 
Flemming  v.  Marine  Ins.  Co,,  33  Id.  33;  Boqfter  v.  Bogers,  52  Id.  680.  The 
principal  case  is  cited  to  the  point  that  where  there  is  evidence  tending  to 
make  out  the  supposed  case,  however  inadequate  in  the  opinion  of   the 


Joly,  1854.]         Fabish  &  Oo.  t;.  BxiQlJBt  688 

wai%  or  to  Iiowever  little  weight  it  iii*y  be  deemed  entitled,  it  li  betk  and 
■afest  to  gire  the  inetniotiQii  if  it  propoond  the  l*w  ooneoily:  Ar^  r.  Oar* 
lomTtf  XeMM,  13  Gntt  9.  In  Anahh  r.  CamnumweaUhf  24  Id.  669,  it  ie 
dted  to  the  pdnt  that  any  relevant  and  competent  testimony  upon  ilie  point 
entitleB  a  par^  to  a  hypothetioal  statement  el  the  law  in  that  partioalar. 

Party  oah  kot  Oomplaik  of  Chasos  Qms  at  hu  Inbtaitob:  Tucker  t. 
Baidmnt  33  Am.  Dec.  384.  Bill  of  exception  may  contain  evidence  or  state 
facts  proved:  Forsyth  v.  MaUheum,  63  Am.  Dec.  622;  and  where  it  states  that 
certain  facts  appeared,  the  oonrt mnst  take  it  that  those  facts  were  nndispntedt 
Beach  V.  Ptkkard^  83  Id.  185)  see  CTosemor  t.  Vanmet&r,  33  Id.  221.  It 
should  recite  so  mnch  of  the  evidence  as  Is  neceesary  to  show  whether  there 
was  error  or  not:  Brewer  ▼.  Strong,  44  Id.  614;  KnowlUm  v.  CWser,  62  Id. 
166;  Neal  v.  Saundereon,  41  Id.  609;  Joh$uoH*B  Shfx  v.  Jemimgift  Adarir^  60 
Id.  823,  and  cases  cited  in  the  note  330. 

New  Trial  tor  Exoianvi  Damaobs  kot  Gramtid  uitubbb  Jury  Apfiar 

lO  BATR  BSRN  SWATXD  BT  PAflSIOHt  FUXUDIOl,  OR  MlRAKR:  See  BOtO  tO 

Bi.  Jfordn  v.  Demayer,  61  Am.  Dec  499;  MelkaM  v.  Amo,  66  Id.  8S9| 
Vkkoteonr.  New  Torhetc  B.Jt.  Co..  Id.  890.  and  omss  dted  hi  the 
Am.  Pee  ▼<«  LXn— 14 


OASES 

or  Tiu 


SUPREME  COURT 


ow 
WISCONSIN 


DaYIB  V,  FAWLEim. 


[tWiioonDr»aoo.] 
RAKIB  of  NMOVIABCI  PbOIOBSO&T  NotS  18  KOT  LUBCB  AB  OlBRBBB  C9 


OAENiBHu'to  ScAmnonn  hvbt  bs  Takkn  as  Admittxis  when  the 
in  attnohment  does  not  make  an  issue  upon  the  answer. 

IfonoN  lOB  JuDoiONT  UPON  Gabnishkb's  Answkb  is  in  Natubb  or  Dk* 
MUBRiB  TO  EviDKNOX,  and  if  the  facts  stated  do  not  raise  or  establxsh  a 
liability,  or  if  the  garnishee's  liability  i»  positiTely  denied,  the  plaintilf 
in  attachment  most  fail. 

Jaint  Judgmknt  against  Maxxb  and  Indobbxi  of  Pbomissort  Notb,  a» 
Gabnibhsbs  ov  Patxi,  is  Ebbonxous,  it  seems,  in  any  aspect  of  the^ 


PsoGEiDiiias  against  the  plaintiffis  in  error,  Bebecca  Davis 
and  Richard  G.  Owens,  who  had  been  garnished  in  an  action 
by  the  defendant  in  error,  William  Pawlette,  against  one  John 
Davis,  a  brother  of  Bebecca  Davis.  The  disclosures  of  the 
garnishees  upon  which  the  plaintiff  moved  for  and  obtained 
judgment  sufficiently  appear  in  the  opinion. 

D.  A.  J,  Q>Aam,  for  the  plaintiff  in  error. 

Peter  Yates,  for  the  defendant  in  error. 

By  Oourty  Cbawtobd,  J.  The  principal  question  in  this  case 
18,  whether  upon  the  answers  of  the  garnishees  they  are  liable^ 
jointly  or  severally,  to  the  plaintiff.  It  appears  that  the  gar-^ 
nishee,  Owens,  became  indebted  to  the  defendant  in  the  action, 
John  Davis,  for  the  purchase  of  certain  property,  and  that  he^ 
gave  Davis  his  promissory  note,  payable  to  John  Davis  or  order* 
for  the  sum  of  two  thousand  one  hundred  and  fifty  dollars*. 


Jane,  1854.]  Datis  v.  Pawleitb.  691 

which,  with  another  note  for  two  hundred  doUazs,  payable  to 
Bebeoca  DaTis,  and  other  payments,  amounted  to  the  indebted- 
nees.  The  note  for  two  thousand  one  hundred  and  fifty  dollars 
was  indorsed  to  the  garnishee,  Bebecoa  DaTis,  and  when  it 
became  due,  she,  in  settling  with  the  maker  of  the  note,  Owens, 
took  from  him  a  note  for  one  thousand  dollars,  payable  to  her, 
and  delivered  up.  the  note  for  two  thousand  one  hundred  and 
fifty  dollars.  Upon  the  note  given  to  Bebecca  Davis  for  one 
thousand  dollars  there  remained  due  at  the  time  Owens  was 
served  with  the  garnishee  process  the  sum  of  about  eight  hun* 
dred  dollars. 

So  far  as  Owens  is  concerned,  there  can  be  no  pretense  from 
his  disclosure,  or  that  of  his  co-garnishee,  that  he  is  liable.  He 
was  at  one  time  indebted  to  the  defendant  in  the  action,  but 
that  indebtedness  ceased  when  his  note  was  indorsed  to  Be- 
becca Davis  (assuming  that  such  indorsement  was  made  in  good 
faith),  and  by  the  settlement  with  her  his  original  note  was  re- 
turned to  him  and  he  gave  another  note  to  her.  If  this  transac- 
tion wa^s  a  fair  one,  his  indebtedness  to  John  Davis  was  can- 
celed. Thereafter  he  was  indebted  to  Bebecca  Davis  on  his 
promissory  note  given  to  her,  and  he  could  not  be  held  liable 
as  the  garnishee  of  John  Davis. 

There  was  no  issue  made  up  between  the  plaintiff  in  the  action 
and  the  garnishees.  The  plaintiff  seems  to  have  been  satisfied 
with  the  disclosures  or  answers  of  the  garnishees,  and  relying 
upon  these  answers  as  showing  enough  to  entitle  him  to  the 
judgment  thereon  against  the  garnishees,  he  moved  for  such 
judgment. 

Now,  there  is  nothing  in  the  answer  of  Miss  Davis  which 
tends  to  establish  a  liability  on  the  part  of  either  garnishee. 
Her  credibility  is  not  impaired  by  anything  stated  by  her.  Her 
disclosure  is  simple  and  consistent,  and  the  plaintiff  adduced 
no  evidence  to  show  that  the  transfer  of  Owen's  note  to  her 
was  without  consideration,  and  with  a  fraudulent  purpose.  On 
the  contrary,  from  her  own  statements,  which  must  be  taken  as 
true,  for  they  are  not  disproved,  nor  is  her  veracity  impugned, 
it  appears  that  the  note  was  fairly  and  honestly  indorsed  to  her 
by  hor  brother,  and  that  she  had,  on  settlement  with  Owens, 
delivered  that  note  to  him,  and  received  another  note  from  him 
for  the  balance  remaining  due  to  her. 

If  indeed  the  transfer  of  the  first  note  was  a  fraudulent  scheme 
by  which  to  hinder  and  delay  the  creditors  of  John  Davis,  and 
that  although  transferred  by  indorsement  to  Miss  Davis  it  was 


\ 


692  Davis  v.  Pawleuil  [Wisconau^ 

neyertheLaBS  the  property  of  her  brother,  it  wbb  incumbent  on 
the  plaintiff  to  prore  it,  and  certainly  the  diaoloBureB  of  these 
garnishees  fall  abort  of  proving  any  fliich  thing.  Mere  snspuaon 
that  Miss  Davis  had  not  the  means  to  pay  her  brother  a  oon- 
sidesation  for  the  note  is  not  enough.  She  swears  positively, 
and  she  appeals  on  the  reeord  entitled  to  oredenoe. 

But  these  is  a  question  presented  in  this  case  which  of  itself 
is  &tal  to  the  plaintiff's  right  to  recover  against  either  of  these 
gamishfles.  It  is  this:  Gan  Owens,  the  maker  of  a  negotiable 
promissory  note  payable  to  the  defendant  in  the  attachmant 
suit,  John  Davis,  be  held  liable  as  the  garnishee  of  Davis,  tba 
note  remaining  unpaid?  This  is  an  important  question^  and  we 
feel  called  upon  to  pass  upon  it  in  the  present  case. 

If  A.  is  indebted  to  B.  and  has  given  him  a  negotiable  prom- 
iBBOiy  note  for  the  amount,  and  while  the  note  is  outstanding 
and  unpaid  G.,  who  is  a  creditor  of  B.,  commences  a  suit  by  afc^ 
tachment  against  B.  and  causes  A.  to  be  summoned  as  garnishee, 
a  judgment  against  the  garnishee  ought  to  be  esteemed  a  satis- 
faction of  his  outstanding  liabiliiy;  but  it  is  obvious  that  at  the 
time  of  such  judgment  the  note  may  have  been  transferred  to  a 
bona  fide  holder,  and  if  a  judgment  against  the  maker  of  the 
note  as  garnishee  of  the  payee  ought  to  be  a  satisfaction  of  the 
note,  then  the  bona  fide  holder  or  indorsee  of  the  note  would  be 
deprived  of  his  property,  and  a  bar  created  to  his  demand,  by  a 
proceeding  to  which  he  vras  not  a  party,  and  in  which  he  had 
no  day  in  court.  Or  if  the  bona  fide  indorsee  would  not  be  af- 
fected by  the  garnishee  proceeding  (and  we  think  he  would  not 
be  concluded  by  it),  then  the  maker  of  the  note  would  be  liable 
to  a  judgment  against  him  as  garnishee,  and  also  might  be  com- 
pelled to  pay  the  amount  of  the  note  to  the  indorsee.  We  can 
not  indulge  in  a  view  of  the  law  which  would  be  productive  of 
such  glaring  injustice. 

Under  the  trustee  process  of  Massachusetts,  the  courts  of  that 
state  have  fraquenUy  held  that  the  maker  of  a  negotiable  prom- 
issory note  vras  not  answerable  as  the  trustee  of  the  payee,  be- 
cause an  indebtedness  of  this  kind  vras  not  included  in  the  terms 
"goods,  effects,  or  credits  of  the  principal  defendant:"  See 
Eunmm  v.  ffedly^  2  Mass.  82;  Maine  Fire  S  Marine  Ins.  Co.  v. 
Weeks,  7  Id.  438;  Wood  v.  BodweU,  12  Pick.  268;  Perry  v.  OoaU, 
9  Mass.  637. 

In  this  state,  in  the  case  of  Carson  v.  Attea^  2  CSiand.  123  [M 
Am.  Deo.  168],  the  supreme  court  held  that  the  maker  of  a  ne- 
gotiable promiaaory  note,  not  due  at  the  time  of  the  aarvioe  of 


• 


June,  1864l]  Davis  v.  Pawi  ettb.  698 

the  garnishee  process,  -wbs  not  liable  as  gaxxdshee  of  the  pajee 
of  the  note.  We  think,  however,  that  it  can  make  no  difference 
whether  the  note  has  matured  or  not  at  the  time  the  sendee  is 
made.  Serious  difficulties  exist  in  the  one  case  as  in  the  other. 
An  innocent  indorsee  before  maturity  of  the  note  would  be  pro* 
tected  hy  the  rules  of  the  law  merchant,  but  in  a  suit  by  an 
indorsee  against  the  maker  of  a  note  the  plaintiff  would  not  be 
precluded,  bj  any  preyious  proceedings  in  attachment  in  which 
his  indorser  was  garnishee  (and  to  which  he  was  not  a  party), 
from  proving  that  the  note  came  to  his  hands  before  maturity, 
and  without  notice  of  any  equities  between  the  parties.  In  the 
trial  of  an  issue  ifi  the  garnishee  proceedings,  evidence  might  be 
given  to  satisfy  a  jury  that  the  note  had  been  transferred  after 
maturity;  while  in  a  suit  by  the  indorsee,  he  might  prove  be- 
yond doubt  that  he  acquired  it  before  maturity.  To  avoid  the 
possibility  of  such  a  state  of  uncertainty  in  the  remedial  law  of 
this  state,  as  well  as  from  a  conviction  of  the  correctness  of  the 
rule,  we  hold  that  the  payor  of  the  negotiable  paper  can  not 
be  made  liable  as  the  garnishee  of  the  payee* 

Upon  the  answer  of  the  garnishee,  where  the  plaintiff  in  at- 
tachment does  not  make  an  issue,  the  court  must  take  the  state- 
ments as  admitted.  If  he  makes  a  motion  for  judgment  upon 
the  answer,  his  motion  is  in  the  nature  of  a  demurrer  to  evidence, 
and  if  the  facts  stated  do  not  raise  or  establish  a  liability,  or  if 
the  garnishee's  liability  is  positively  denied,  the  plaintiff  must 
fail.  In  such  a  case  it  is  incumbent  upon  the  plaintiff  to  make 
an  issue  with  the  garnishee  as  directed  by  the  statute,  and  estab^ 
Ush  the  liability  of  the  garnishee  if  he  can  do  so. 

The  judgm^it  in  this  case  was  rendered  against  both  the  gar* 
niahees.  Even  admitting  all  that  the  plaintiff  in  the  action 
claims  to  be  the  effect  of  the  disclosures  or  answers  of  the  gar* 
nishees,  we  can  not  see  why  a  joint  judgment  should  have  been 
rendered  against  them.  Upon  this  hypothesis  Owens  was  in- 
debted to  John  Davis,  and  not  to  Bebeoca  Davis,  and  th^^efore 
he,  Owens,  alone  would  be  liable;  or  if  a  chose  in  action  could 
be  held  subject  to  the  garnishee  process,  Bebecca  Davis  would 
be  liablo  as  garnishee.  There  is  a  palpable  ineongruiiy  in  this 
joint  judgment  which  can  not  be  tolerated. 

The  judgment  against  the  garnishees  ixt  the  county  court 
must  be  reversed  with  costs. 


Kbootiablb  Pafbb,  whbthbr  SuBJEOt  TO  Gabnuhmimt:  Hubhasrd  v. 
WfiUamBt  55  Am.  Deo.  66,  and  note,  where  the  question  ia  diseaased;  Canom 
V.  ii(toi,  54  M.  148;  Xodcf  T.  JSoi^,  57  Id.  355;  and  see  iSmoo<  v.  Alava,  58  Id., 


694  RiGHABDSON  V.  Emebson.  [Wifloondn, 


SIO;  Bmermm  t.  PaiMge^  ante,  p.  617.  The  principal  case  was  oonaidam]  and 
■lutained  in  Mtuon  v.  Noonat^  7  Wis.  617-619»  in  liolding  that  the  pendency 
of  a  garniahee  aoit  against  the  maker  of  a  promissory  note,  in  attachment 
against  the  payee,  was  no  defense  to  an  action  by  the  indorsee  against  the 
maker;  and  in  State  t.  Burton^  11  Id.  53,  it  is  cited  to  the  point  that  a  re- 
ceipt, acknowledging  and  promising  to  pay  a  sum  of  money,  when  oolleoted, 
to  the  order  of  the  payee,  possesses  snch  elements  of  negotiable  paper  thai 
the  holder  Is  not  boond  by  garnishee  proceedings  to  which  he  is  not  m  party* 


RiGHABDSON   V.  EmEBSON. 

[8  WXIOOBBZH,  819.] 

It  Okb  or  Mo&b  ot  Skvxral  Pebsons  Biooiffx  Tobt-ibabobs  wblQm  en 
gaged  in  the  accomplishment  of  a  lawful  object,  even  with  a  view  to  aid 
snch  purpose,  the  others,  who  neither  direct  nor  ooontenanoe  snch  tor- 
tions  acts,  are  not  liable;  althongh  when  aeveral  persona  are  engaged  in 
doing  an  illegal  act  then  the  acts  of  any  become  the  acta  of  all,  and  all 
are  equally  and  seyerally  liable. 

Abbmjxt  to  Tortious  Act  bt  Onb  or  Mobb  of  Sbvbral  PKBaoBS  Bir- 
OAOED  IN  Common  Purposb  is  not  Prbsumvd  on  the  part  of  the 
others,  but  is  a  mat^  of  fact  to  be  proved,  if  such  purpose  Is  lawful; 
although  such  assent  is  presumed  if  the  common  design  is  unlawfiiL 

Owner  of  Land  has  Prima  Facib  Bight  to  Bbmotb  Posnoir  ov  Dam 
built-upon  his  land  by  another. 

TBE8PAS8  qtiare  claumm /regit.    The  facta  axe  stated  in  the 

opinion. 

E,  S,  Orion^  for  the  plaintiff  in  error. 
Hood  and  Wait,  for  the  defendant  in  error. 

By  Court,  SMrra,  J.  This  was  an  action  of  trespass  quart 
clausumfregU^  brought  in  the  court  below  by  the  defendant  in 
error  and  others  against  the  plaintiff  in  error  and  others,  where 
a  yerdict  and  judgment  were  rendered  against  the  defendant, 
James  Bichardson,  for  three  hundred  and  fifiy-nine  dollars  and 
costs.  The  record  shows  that  the  alleged  trespass  consisted  in 
the  removing  of  a  portion  of  a  dam,  built  across  the  stream  of 
water  in  said  county  called  the  Catfish. 

From  the  bill  of  exceptions,  it  appears  that  the  dam  in  ques- 
tion is  built  in  part  on  the  land  of  the  defendant  Richardson; 
that  the  western  boundary  line  of  Bichardson's  land  is  on  or  near 
the  eastern  margin  of  the  stream,  and  that  the  timber-works,  etc., 
of  the  dam  extend  across  the  stream,  and  about  twenty  or  thirty 
feet  on  to  the  land  of  Bichardson.  The  latter,  with  a  numbor 
of  others  acting  with  him,  attempted  to  remove  that  portion  of 
the  dam  which  was  built  upon  his  own  land.    While  the  work 


June,  1864.]         Richabdson  v.  Emebson.  69A 

« 

of  remoTing  was  in  progress,  two  persons,  unknown  to  the  wit- 
ness or  witnesses,  went  across  the  dam  to  the  west  side  and 
raised  the  gates  of  the  flume,  in  order  to  draw  off  the  water,  as 
was  supposed.  There  is  no  evidenoe  that  they  did  so  by  the  di- 
rection of  Richardson,  or  of  any  one  else. 

After  the  evidence  was  closed,  the  judge  instructed  the  jury, 
among  other  things,  as  follows:  **  That  if  the  jury  find  that  the 
two  persons  unknown  to  the  witnesq  who  went  to  the  flume  and 
raised  the  gates  had  been  engaged  with  others  in  removing  the 
east  end  of  the  dam  by  the  direction  of  Richardson,  and  did  so 
raise  the  gates  to  aid  that  work,  then  Richardson  and  all  the 
other  persons  engaged  in  removing  the  dam  were  jointly  liable 
with  the  two  persons  who  actually  raised  the  gate.''  To  this 
instruction  the  counsel  for  the  defendant  excepted. 

We  can  not  hold  the  instruction  correct  as  a  proposition  of 
law.  It  is  true,  when  several  persons  are  engaged  in  the  doing 
of  an  illegal  act,  acting  for  a  common  illegal  purpose,  then  the 
acts  of  any  become  the  acts  of  all,  and  all  are  equally  and  sev- 
erally liable  for  the  acts  of  each  and  all.  But  where  several 
persons  are  engaged  in  the  accomplishment  of  a  lawful  object, 
if  one  or  more  shall  become  a  tort-feasor,  even  with  a  view  to  aid 
such  purpose,  the  others,  who  neither  direct  nor  countenance 
such  tortious  acts,  are  not  liable.  All  the  circumstances  of  the 
transaction  are  very  proper  to  be  submitted  to  a  jury,  that  the 
latter  may  find  the  fact  whether  or  not  the  other  assented.  But 
the  law  does  not  presume  sucli  assent  when  the  common  purpose 
is  lawful. 

A  private  citizen  has  a  right  to  abate  a  nuisance,  and  to 
engage  assistance  for  the  accomplishment  of  that  object;  but  if, 
while  working  together  for  such  common  lawful  purpose,  one 
or  more  commits  a  trespass,  the  others  are  not  liable  unless  they 
in  some  manner  assent.  Where  the  common  design  is  unlaw- 
ful, the  law  presumes  such  assent;  but  where  it  is  lawful,  such 
assent  is  a  matter  of  fact  to  be  proved.  For  instance,  a  number 
of  persons  agree  together  and  attempt  to  pull  down  a  neighbor's 
house:  each  one  is  liable  for  the  acts  of  the  other  done  in 
accomplishment  of  such  common  design.  But  if  I  employ  a 
number  of  persons  to  pull  down  my  own  building,  and  while  so 
engaged  one  or  more  go  upon  the  land  of  my  neighbor  and  cut 
down  trees  with  a  view  to  aid  in  the  work,  I  am  not  liable  uniesn 
I  direct,  assent  to,  or  ratify  the  act:  2  Greenl.  Ev.,  sec.  641;  9 
Stark.  Ev.  GIO;  2  Phill.  Ev.,  sec.  95;  3  Stark.  Ev.  6;  DanieU  v. 
PoUer^  Moo.  &  M.  501. 


I 


696  Lamont  v.  Stdibok.  [Wiscoobiii, 

The  dktmettoii  hue  pointed  out  eeeaui  to  lisve  been  oTsr- 
looked.  Hie  tnstnictton  eeems  to  have  been  beeed  either  upon 
the  aeenmption  that  the  aet  of  Biohazdeon  and  others  in  lemof*- 
ing  the  d«n  was  nnlawfal,  or  that  whether  unlawful  or  not,  the 
law  would  presume  his  oonouxrenoe  in  or  direction  of  the  act  of 
the  two  unknown  persons  in  raising  the  gates.  But  the  act  of 
Biohardson  in  removing  the  east  end  of  the  dam  was  not  per  se 
unlawful.  If.  he  owned  the  land  on  which  thirty  feet  of  the 
dam  was  built»  he  had  prima  facie  a  right  to  remove  that  por- 
tion of  it.  His  ownership  or  right  to  the  possession  of  the 
land  was  a  fact  to  be  established,  on  which  the  lawfulness  ot 
his  acts  and  those  acting  with  him  depended. 

It  does  not  appear  neoessaiy  to  discuss  the  other  questions 
raised  by  the  case,  and  therefore  we  have  not  felt  called  upon 
to  enter  into  an  exposition  of  the  law  upon  which  their  deter- 
mination depends.  We  are  all  of  the  opinion' that  the  circuit 
court  erred  in  the  instructions  first  given  to  the  jury,  and  that 
the  judgment  is  therefore  erroneous. 

The  judgment  of  the  circuit  court  is  reversed  with  costs,  and 
the  cause  is  remanded  for  further  proceedings  according  to  law. 

Pebson  Bbcoios  Joint  Tobt-vkabos  by  oo-operating  in,  enoonngiiig,  aid- 
ing, adviiing,  or  anenting  to  the  commiBsion  of  a  wrongful  act:  Oville  v. Swan 
10  Am.  Deo.  284;  BriUtdn  v.  McKay,  85  Id.  738;  So98  v.  IkOlar.  86  Id.  842L 


LAMOira!  V.   SUMBON. 

[8  'Wteooauv,  648.] 

DsOBiov  or  BaoisEKB  and  Rksbivbb  or  Land-ofvios  d  FIdial  ahb  Q>v* 
OLUBIVB  UPON  BiOHTS  ov  Pabtixs  upon  a  aubject  within  the  Jnrifldio- 
tlon  of  such  officers,  under  the  act  of  oongresa  of  September  4, 1841,  if  no 
element  of  fraud  or  mistake  intervenes. 

Bquitt  will  RELiKva  A0AIX8T  DECISION  OT  LAND-omoxB  awarding  a 
claimant  the  rij^t  of  pre-emption,  when  the  decision  has  been  procured 
by  the  claimant  through  fraud;  and  it  makes  no  difierenoe  that  the  claim- 
ant has  obtained  a  patent  for  the  land  from  the  government 

Bill  in  equity.    The  facts  are  stated  in  the  opinion. 

Alvah  Hand,  for  the  appellee. 

CoUvM,  Smith  and  Eeyes,  and  A  B.  JSamiUon,  for  the  appel- 
lants. 

By  Oonrt,  Obawtobd,  J.  The  bill  of  complaint  in  this  canse 
states  that  about  the  fifteenth  day  of  May,  a.  d.  1846,  at  the 
United   States   land-office   at   Green   Bay,    the   complainant 


June,  1854.]  Lamont  t;.  Stimson.  697 

•nteredy  purchaBed,  and  paid  for  two  hundred  acres  of  land,  a 
deecription  of  which  is  given  in  the  bill,  and  that  his  said  pur- 
dmse  was  made  subject  to  any  valid  pre-emption  to  said  land; 
that  he  received  the  usual  duplicate  receipt  from  the  receiver, 
which  he  still  holds;  that  on  or  about  the  twenty-seventh  day 
of  Januaiy,  a.  n.  1846,  the  defendant  Davis  filed  in  the  same 
land-office  a  "declaratory  statement"  of  his  intention  to  claim 
the  right  of  pre-emption  of  the  south-west  quarter  of  section  21, 
in  township  16  north,  of  range  12  east,  containing  one  hundred 
and  sixty  acres,  the  same  being  a  portion'  of  the  lands  subse- 
quently entered  and  purchased  by  the  complainant,  which  claim 
to  the  right  of  pre-emption  was  made  under  the  act  of  congress 
of  September  4,  a.  d.  1841. 

The  bill  further  states  that  at  the  time  of  the  filing  of  the 
said  declaratory  statement  Davis  was  not  resident  upon  the  land 
before  described,  and  had  not  at  that  time  erected  any  dwelling- 
house  or  made  any  improvements  thereon,  nor  had  he  done  so 
up  to  the  date  of  the  complainant's  purchase. 

It  also  states  that  Davis,  being  an  unmarried  man  in  May, 
1846,  did  then  jointly  with  one  Haskins  purchase  and  enter  at 
tiie  same  land-K^ce  a  tract  of  land  containing  eighty  acres, 
situate  about  eight  miles  from  the  land  which  he  sought  to 
obtain  by  pre-emption;  that  the  defendants  Davis  and  Haskins 
made  improvements  on  the  said  tract  of  land  entered  by  them 
with  the  intention  of  making  their  home  there,  and  that  Davis 
frequently  declared  he  did  not  intend  to  insist  upon  his  afore- 
said pre-emption  claim,  but  had  abandoned  it. 

It  is  further  stated  in  the  bill  that  in  the  spring  of  1846  the 
defendant  Davis  made  an  agreement  with  one  Thurston,  by 
which  the  latter  was  to  go  upon  the  land  in  controversy  and 
make  improvements  thereon,  and  in  consideration  thereof  Davis 
would  give  Thurston  one  half,  or  some  part,  of  the  land;  that 
Thurston  accordingly  did  make  some  improvements,  but  doubt- 
ing the  sincerity  of  Davis,  discontinued  the  improvement. 

The  bill  further  states  that  from  his  own  examination  of  the 
land  the  complainant  knew  before  he  entered  said  land  that 
there  wese  no  improvements  thereon;  that  he  also  knew  from  in- 
formation that  Davis  did  not  intend  to  purchase  said  lands;  that 
he  had  purchased  other  lands,  and  was  informed  of  the  agree- 
ment between  Davis  and  Thurston;  that  the  complainant  made 
his  entry  and  purchase  aforesaid  after  he  had  been  assured  by 
the  register  and  receiver  at  the  Green  Bay  land-office  that  the 
pre-emption  claim  of  Davis  was  invalid,  and  that  if  he  had  not 


I 


698  Lamont  u  Stimson.  pXTiaeoiKdii. 

belioTed  the  claim  of  Davis  to  have  been  abandoned,  lie  would 
not  have  made  the  entry  and  pnrchaee  of  the  land. 

The  complainant  then  proceeds  to  state  and  chaige  thai  one 
Samuel  W.  Beall  proposed  to  the  defendant  DaTis  to  aasiBi  him 
in  proving  his  pre-emption  right,  and  to  famish  the  monej  to 
pay  for  the  land,  in  consideration  that  he,  Beall,  should  receiTe 
a  share  of  the  benefits,  which  proposition  was  accepted  by  DaTia» 
and  in  pursuance  thereof,  within  one  year  after  the  making  and 
filing  of  his  ''  declaratory  statement/'  he  made  the  oath  required 
on  the  part  of  the  applicant  for  a  pre-emption  under  the  act  of 
congress  of  September  4, 1841,  and  produced  the  neceeaaxy  ac- 
companying eyidence;  and  thereupon  the  land-officers  per- 
mitted said  Dayis  to  enter  and  purchase  the  said  one  hundred 
and  siziy  acres  of  land;  that  the  oath  of  said  Davis,  and  the  evi- 
dence produced  by  him,  were  false  and  untrue,  and  the  land- 
officers  were  misled  thereby. 

He  further  states  that  the  land  in  question  was  afterwards 
conveyed  by  Davis  to  Beall,  in  pursuance  of  their  corrupt  agree- 
ment; that  a  patent  for  said  land  has  been  issued  by  the  presi- 
dent of  the  United  States  to  said  Davis,  and  has  been  received  by 
Beall,  and  it  charges  that  Davis  and  Beall  well  knew,  at  the  time 
of  their  corrupt  agreement,  that  the  complainant  had  entered 
the  land  in  controversy,  and  paid  therefor,  and  that  conspiring 
together,  etc.,  to  defraud  the  complainant,  by  frauds  and  mxa- 
representations  procured  the  entry  of  the  land.  By  an  amended 
bill  it  is  shown  that  the  appellant  John  Stimson  acquired  a 
title  to  the  land  by  a  deed  of  conveyance  from  Beall,  with  a  full 
knowledge  of  the  complainant's  rights,  and  Stimson  is  made  a 
defendant.  The  relief  prayed  for  is  that  the  defendant  Stim- 
son be  decreed  to  execute  to  the  complainant  a  proper  oonvej^ 
ance  of  the  land,  and  there  is  also  the  usual  prayer  for  genenl 
relief. 

The  defendant  Stimson  filed  a  general  demurrer  to  the  bill, 
which,  after  argument,  was  overruled,  and  the  cause  has  been 
brought  before  us  by  an  appeal  from  the  order  overruling  the 
demurrer. 

Two  questions  arise  in  this  case:  1.  Is  the  decision  of  the 
register  and  receiver  of  the  land-office,  upon  the  claim  of  a 
party  to  enter  a  tract  of  land  by  pre-emption  right,  conclusive 
upon  the  subject?  and  2.  Oan  a  party  aggrieved  by  the  decision 
of  the  land-officers  resort  to  a  court  of  equity  for  relief  in  any 
case? 

By  section  15  of  the  act  of  congress  of  September  4, 1841, 


June,  1854]  Lamont  v.  Stimbon.  699 

where  a  person  has,  after  the  passage  of  that  act,  settled  upon 
and  improTed  a  tmct  of  land,  and  desires  to  secure  to  himself  a 
right  of  pre-emption  thereof,  he  must,  within  thirty  days  next 
after  the  date  of  his  settlement  upon  the  land,  file  with  the 
register  of  the  land  district  in  which  the  land  is  situated  a 
written  statement  describing  the  land,  and  declaring  his  inten- 
tion to  claim  a  pre-emption  right  thereto,  and  within  twelve 
months  next  after  the  date  of  the  settlement  make  ''  the  proof, 
affidavit,  and  payment"  required  by  the  act,  in  order  to  avail 
himself  of  the  benefits  thereby  afforded.  The  proof  thus  re- 
quired is  specified  in  the  twelfiii  section  of  the  act,  and  relates 
to  the  **  settlement  and  improvement"  of  the  land,  which  proof 
must  be  made  to  the  satisfaction  of  the  register  and  receiver  of 
the  land  district  in  which  the  land  is  situated,  in  pursuance  of 
rules  on  that  subject,  prescribed  by  the  secretary  of  the  treas- 
ury. The  form  and  substance  of  the  affidavit  to  be  made  by 
the  claimant  is  embodied  in  the  thirteenth  section  of  the  act. 

The  sufficiency  of  the  proof  required  under  this  act  is  entirely 
committed  to  the  determination  of  the  register  and  receiver, 
and  in  deciding  upon  it  they  must  necessarily  exercise  their 
judgment  in  the  same  manner  that  any  judicial  officer  exercises 
his  judgment  in  ascertaining  and  determining  facts  from  evi- 
dence adduced  before  him,  according  to  the  provisions  of  the 
law  which  emi>owers  him  to  adjudicate  upon  the  subject.  Here 
is  involved,  not  merely  the  performance  of  a  formal  ministerial 
act,  but  the  exercise  of  what  is  a  quasi  judicial  function;  for  the 
result  or  conclusion  arrived  at  by  the  officers  from  the  evidence 
before  them  is  the  dictate  of  their  own  judgments,  and  they  can 
not  be  compelled  to  alter  it,  or  arrive  at  any  other.  Neither  is 
the  decision  of  the  officers  in  such  a  case  subject  to  revision  or 
reversal  by  any  other  officer  or  tribunal,  because  the  act  does 
not  provide  an  appeal  from  the  decision  of  the  register  and  re- 
ceiver. By  the  eleventh  section  of  the  act,  in  cases  of  conflict- 
ing claims  to  a  pre-emption  by  different  settlers,  an  appeal  may 
be  taken  to  the  secretaiy  of  the  treasury  of  the  United  States, 
but  this  right  of  appeal  applies  only  to  cases  where  two  or  more 
persons  have  settled  on  the  same  bract  of  land,  and  present  an- 
tagonistic claims  to  the  right  of  pre-emption  thereof. 

It  has  been  repeatedly  held  that  in  cases  of  this  nature,  where 
the  subject-matter  has  been  within  the  jurisdiction  of  the  land- 
officers,  and  no  circumstances  of  fraud,  misrepresentation,  or 
mistake  have  intervened,  the  decision  of  the  officers  is  conclusive 
upon  the  rights  of  the  parties.    To  this  effect  are  the  cases  ot 


700  Lamont  v.  Sumsox  [Wisoonsiii, 

L^  ▼.  Siaie  of  ArboMoa,  9  How.  814»  883;  WUeoag  t.  Jackaon 
ex.  dem  MbOonnell,  18  Bet.  498;  BenneU  t.  Farrar,  f  Oilm. 
698. 

But  where  the  determiiuition  of  the  regiflter  and  reoeiyer  has 
been  procuied  by  frauds  the  parfy  injured  is  not  without  redresa, 
for  by  a  proper  application  setting  forth  the  facts  to  the  com- 
missioner of  the  general  land-office  the  issuing  of  a  patent  for 
the  land  would  be  deferred  until  the  rights  of  the  parties  could 
be  adjudicated  in  a  judicial  proceeding.  The  act  of  congress  of 
the  twenty-ninth  of  May,  1880,  concerning  pre-emption  rights,  is, 
in  respect  to  the  question  now  under  considenition,  yery  similar 
to  the  act  of  September  4, 1841 ;  and  under  the  former  act,  as  well 
as  the  act  of  the  nineteenth  of  June,  1884,  the  attorney  general  of 
the  United  States,  in  an  opinion  given  on  the  twenty-first  of  April, 
1886,  says:  ''  I  think  it  Tery  clear  that  the  commissioner  of  the 
general  land-office  may  lawfully  suspend  the  execution  of  letters 
patent  in  every  case  where  he  shall  be  satisfied  that  the  decision 
of  the  register  and  receiver  was  obtained  by  fraud,  or  was  founded 
on  material  error  of  fact  or  of  law,  until  the  decision  of  the  ju- 
diciary or  the  direction  of  congress  can  be  obtained." 

Yexy  soon  after  this  opinion  was  given  (on  the  sixth  day  of 
May,  1836),  the  president  of  the  United  States  approved  certain 
rules  relating  to  pre-emption  cases,  prex>ared  by  the  secretazyof 
the  treasury  with  the  advice  of  the  attorney  general,  which  rec- 
ognize the  conclusive  effect  of  the  decision  of  the  register  and 
receiver  in  all  cases  in  which  they  act  within  the  scope  of  the 
authority  given  to  them,  but  also  recogniring  the  right  of  with- 
holding the  patent  in  cases  where  there  is  good  reason  to  believe 
that  the  decision  of  the  land-officers  was  obtained  by  fraud,  or 
founded  in  material  error  of  fact  or  of  law:  See  Public  Land 
Laws,  Opinions,  etc.,  part  2,  84,  92. 

We  believe  that  in  evexy  case  in  which  the  land-officeis  act 
upon  a  subject  within  their  jurisdiction  under  the  act  of  Septem- 
ber 4, 1841 ,  and  no  element  of  fraud  or  mistake  intervenes  affect- 
ing their  decision,  it  is  final  and  conclusive  upon  the  parties,  and 
can  not  be  questioned  in  any  other  proceeding. 

It  is  very  clear,  however,  that  where  the  claimant  in  whose 
favor  the  land-officers  have  awarded  the  right  of  pre-emption 
has  practiced  fraud  in  procuring  such  decision,  the  party  thereby 
deprived  of  a  right  or  benefit  to  which  he  is  entitled  by  the  law 
may  just  as  appropriately  invoke  the  aid  of  a  court  of  equity  to 
relieve  him  as  in  any  other  case  of  fraud,  injustice,  or  mistake 
foiling  within  the  cognizance  of  such  a  court.    And  it  can  make 


Junu,  1854.]  Lamomt  v.  Stdcson.  701 

no  difference  that  a  patent  for  the  land  in  controversy  has,  as  in 
this  case,  been  issued  by  the  United  States  to  the  party  chai^d 
with  practicing  fraud.  The  conrt  of  chancery  can  reach  behind 
the  patent  and  administer  equity  between  the  parties  by  operat- 
ing upon  the  title  vested  by  the  patent.  In  the  case  of  Brush 
y.  Ware,  15  Pet.  93,  it  was  held  that  '*  where  an  equitable  right 
which  originated  before  the  date  of  the  patent,  whether  by  the 
first  entry  or  otherwise,  is  asserted,  it  may  be  examined.'* 

So  also  in  BagneU  y.  Broderick,  13  Pet.  436,  451,  it  was  held 
that  '*  where  the  title  has  passed  out  of  the  United  States  by 
conflicting  patents,  as  it  had  in  the  case  of  United  States,  6 
Peters,  691,  there  can  be  no  objection  to  the  practice  adopted 
by  the  courts  of  Mississippi  to  give  effect  to  the  better  right  in 
any  form  of  remedy  the  legislature  or  courts  of  the  state  may 
prescribe." 

The  power  of  a  court  of  equity  to  entertain  a  biU  like  the  one 
before  us,  and  to  give  relief  in  such  a  state  of  case  as  is  set 
up  in  this  bill,  is  so  well  established,  both  upon  principle  and 
authority,  that  we  deem  it  unnecessary  to  do  more  than  to  refer  to 
some  of  the  cases  adjudicated:  See  Lewis  v.  Levyis^  9  Mo.  183 
[43  Am.  Dec.  540];  United  States  y.  Bughes,  11  How.  552;  Jack- 
son  y.  Lawton^  10  Johns.  23  [6  Am.  Dec.  311];  Jamison  y.  Beau- 
bien,  3  Scam.  113  [36  Am.  Dec.  534];  Bodley  y.  Taylor,  5  Czanch, 
221,  223. 

By  section  41  of  chapter  84  of  our  reyised  statutes,  when  a 
bill  in  chancery  charges  a  defendant  ''  with  any  fraud  whateyer 
affecting  the  right  of  property  of  others,"  he  shall  be  com- 
pelled to  answer  the  bill,  and  under  this  section  the  defendant 
would  be  required  to  answer  the  charge  of  fraud  contained  in 
this  bill. 

It  is  not  necessary  to  discuss  the  other  points  insisted  upon 
in  the  argument  of  the  counsel  for  the  appellant,  as  we  are  en- 
tirely satisfied  that  the  demurrer  was  yery  properly  oyerruled. 

The  decretal  order  of  the  circuit  court  is  therefore  affirmed, 
with  costs,  and  the  cause  must  be  remanded  for  further  pro- 
ceedings. 

DioiBioN  ov  LA2riM>moKB,  oa  Paxiht  Owsadxkd  by  FRkxm^  wmn 
Reuxybd  AGAIK8T  IN  Equitt:  See  Carter  v.  Spencer,  34  Am.  Deo.  106;  ^u- 
lick  V.  CoUnn,  43  Id.  164;  Lewis  v.  LewiSt  Id.  540;  Carman  v.  Johnmm,  61  Id. 
693,  and  prior-OMCB  in  notes  thereto.  And  when  may  be  disregarded  at  law: 
BeeJami$(mv.  BetmUen,  Z6 Id.  CM;  J7«(-Ati»Ao^f  y. IFattt, 45 Id. 309;  Bog- 
er§  y.  Breni^  50  Id.  422:  Carman  y.  Johnson,  61  Id.  593^  and  notes  to  thaae 


702  HUBBELL  V.  flUBBELL.  [WlSOOOaUli 

Dicisnuf  ov  BiomsE  and  BvnnnB  of  L4in>-onnoB  d  Fdial  ▲» 
Bdidiho  upoir  Fu-mmoji  BiOBn^  ezospt  in  omm  of  misteke  or  fandi 
8m  BoaUier  t.  VaUritt  20  Am.  Deo.  260,  and  iioto»  whore  the  qooeUoii  U  dii- 
eoMed;  JD«ipif  T.  XMPte,  43  Id.  640;  hot  eee  ^ffoity  ▼.  fFcleft.  23  Id.  49a  Aad 
M  to  the  dodeion  of  *  commiwloner,  eee  Bogen  ▼.  BraU^  00  Id.  42SL 


HUBBELL   V.  HUBBELL. 

p  WkKxnnni(  603.] 

HaBBIAOB  Ck>NTEACr  MAT  BB  DI88OLTXD  BT  WjaOOBBIH  GlBODTT  OOUST,  Ib 

a  OMe  where  the  marriage  and  the  caues  of  divoroe  oeourred  m  anofcher 
■tate,  and  where  the  defendant  haa  nerer  been  a  wident  of  or  aerred 
with  prooeie  in  Wiaoonsin. 

Bill  pnjing  for  a  disBolation  of  maiziage.     The  opinion 
itates  the  facts. 

John  M.  Case,  for  the  appellant. 

Bj  Court,  Smith,  J.  The  complainant  filed  her  bill  in  the 
circuit  court  of  Bock  county,  in  September  last,  praying  that 
the  marriage  contract  between  her  and  the  defendant,  her  hus- 
band, might  be  dissolved.  The  causes  alleged  are  desertion* 
cruelty,  and  habitual  drunkenness.  The  bill  shows  that  the 
parties  were  married  in  the  state  or  New  York  in  the  year  1833, 
where  they  continued  to  live  and  cohabit  together  till  the  year 
1850.  The  complainant  removed  to  Bock  county,  in  this  state, 
in  1852,  where  she  has  since  resided.  It  also  appears  from  the 
bill  that  the  defendant  has  been  a  citijsen  and  resident  of  the 
state  of  New  York  ever  since  the  marriage,  and  that  the  all^;ed 
causes  of  divorce,  consisting  of  desertion,  cruelty,  and  habitual 
drunkenness,  all  arose  there.  The  defendant,  not  being  found 
in  this  state,  was  proceeded  against  as  a  non-resident,  as  in 
other  cases  in  chancexy.  The  usual  order  to  plead,  answer,  etc., 
was  duly  entered,  and  a  copy  thereof  was  personally  served  upon 
the  defendant  in  the  state  of  New  York.  Proofs  were  taken  by 
the  complainant  in  order  to  establish  the  facts  charged,  but  the 
court  below  dismissed  the  bill  for  the  want  of  jurisdiction,  on 
the  ground  that  the  defendant  had  never  been  a  resident  of  the 
state,  and  the  causes  alleged  arose  vdthin  another  and  foreign 
jurisdiction. 

We  are  now  called  upon  to  decide  the  question  whether  the 
circuit  court  has  jurisdiction  to  decree  a  dissolution  of  the  mar- 
riage contract  in  a  case  where  the  mazriage  and  the  causes  of 
divorce,  as  alleged,  occurred  in  another  state,  and  where  the  de- 


June,  1854.]  Hubbell  v.  Hubbell.  703 

fendant  baa  nerer  been  a  resident  of  or  aerred  with  process 
within  this  state.  If  this  was  a  new  qnestiony  we  should  have 
little  hesitation;  but  having  been  heretofore  passed  upon  by  the 
highest  judicial  authority  of  the  state,  its  presentation  to  this 
oourt  again  for  discussion  inyolves  considerations  of  the  most 
grave  and  momentous  character. 

We  have  no  doubt  that  a  divorce  duly  decreed  by  the  proper 
tribunals  of  the  state  where  the  parties  are  domiciled,  and  where 
the  marriage  was  solemnized,  would  be  valid  everywhere.  So 
in  cases  where  the  marriage  was  solemnissed  in  a  foreign  state, 
and  both  parties  remove  into  this  state,  and  are  actually  domi- 
ciled here  at  the  time  the  suit  is  commenced,  though  the  causes 
of  divorce  may  have  occurred  in  another  state,  jurisdiction  may 
be  maintained,  both  upon  principle  and  authority.  This  point, 
as  well  as  others  of  a  kindred  nature,  has  been  extensively  dis- 
cussed, both  in  England  and  in  many  states  of  this  Union:  War^ 
render  v.  Warrender,  9  Bli.  N.  B.  89;  Story's  Oonfl.  L.,  sec.  229. 
After  reviewing  the  authorities,  Mr.  Justice  Story  says:  ''  Upon 
the  whole,  the  doctrine  now  firmly  established  in  America  upon 
the  subject  of  divorce  is,  that  the  law  of  the  place  of  the  actual 
bonajide  domicile  of  the  parties  gives  jurisdiction  to  the  proper 
courts  to  decree  a  divorce  for  any  cause  allowed  by  the  local 
law,  without  any  reference  to  the  law  of  the  place  of  the  original 
marriage  or  the  place  where  the  offense  for  which  the  divorce  is 
allowed  was  committed:"  Id.,  sec.  280.  Jurisdiction,  according 
to  this  doctrine,  is  made  to  depend  upon  the  domicile  of  the  par- 
ties, so  that  the  defendant  may  be  served  with  process.  When 
the  parties  are  both  residents  of  this  state,  jurisdiction,  accord- 
ing to  authority,  may  be  entertained  wherever  the  marriage 
may  have  been  solemnized,  or  wherever  the  cause  of  divorce 
arose,  provided  the  cause  be  an  adequate  one  according  to  our 
law. 

It  appears,  however,  in  this  case  that  the  marriage  and  the 
alleged  causes  of  divorce  occurred  in  New  York,  and  that  the 
defendant  is  and  has  always  been  a  resident  of  that  state.  He 
was  proceeded  against  as  a  non-resident  in  one  of  the  modes 
pointed  out  by  the  statute  in  such  cases.  Was  it  competent, 
then,  for  the  circuit  court  to  entertain  jurisdiction  of  the  cause 
and  to  decree  a  divorce  in  such  a  case,  the  defendant  never  hav- 
ing been  in  the  state,  and  never  having  appeared  in  the  cause? 
This  question  was  decided  a£Srmatively  by  the  supreme  court 
of  this  state  under  its  former  organization,  in  the  case  of  MatUey 
V.  Manley^  4  Chand.  97,  in  which  the  question  was  distinctly 


\ 


704  HUBBELL  V.  HUBBELL.  [WlSOODfli^ 


laiaed  and  decided;  m  majoriiy  of  that  court  ezpresaly  holding 
that  neither  xesidence  of  the  defendant  within  the  state  nor 
service  of  process  ai>on  him  therein  was  neoessaiy  to  give  the 
court  jurisdiction.  Other  cases  of  like  character  and  cdzoain- 
etances  were  entertained  by  that  court,  in  which  the  qaeataon 
maj  or  may  not  have  been  raised,  but  by  the  judgment  in  Maa^ 
ley  Y.  Manley^  supra,  was  established  a  rule  of  decision  f cr  the 
circuit  courts,  upon  which  they  have  doubtless  acted  ever  siaoe, 
involving  interests  and  relations  vitally  affecting  the  ohaiaoter 
and  happiness  of  numerous  individuals. 

In  yiew  of  the  serious  consequences  which  would  result  from 
overturning  the  rule  of  law  laid  down  as  aboTe  stated,  going  as 
it  does  to  tiie  very  jurisdiction  of  the  court,  vdthoat  whioh  its 
judgment  would  be  null  and  void,  though  we  can  not  adopt  the 
reasoning  of  the  majority  in  Jdctnley  y.  Mardey,  supra,  we  feel 
constrained  to  abide  by  their  judgment  rendered  therein.  Many 
divorces  under  similar  circumstuices  have  been  granted  ainoe; 
new  matrimonial  relations  have  been  formed  by  the  parties,  to 
disturb  which  would  give  rise  to  the  most  painful  embanassment, 
"  in  consequence  of  the  doubts  and  contests  which  must  ensue 
as  to  the  rights  of  legitimacy  and  succession."  We  are  constrained, 
therefore,  to  apply  to  all  these  cases,  and  to  the  question  now  pre- 
sented, the  rule  siare  deems.  More  especially  do  we  feel  author- 
ized in  doing  so  inasmuch  as  the  jurisdiction  claimed  is  baood 
upon  the  construction  and  effect  of  the  statute;  and  if  it  be 
wrong  or  impolitic,  it  can  readily  be  changed  by  legislative  enaet- 
ment  without  inrolving  the  evils  which  would  follow  a  judicial 
decision  of  like  purport.  If  the  legislature  did  not  intend  that 
the  provisions  of  the  statute  in  reference  to  proceedings  in  chan- 
cery against  non-resident  defendants  should  apply  to  cases  of 
biUs  for  divorce,  it  is  an  easy  matter  to  direct  and  limit  the  ap- 
plication hereafter  to  the  appropriate  cases,  and  thus  to  arrest 
an  increasing  evil. 

However  children,  the  issue  of  marriages  consummated  by 
parties  who  have  availed  themselves  of  the  rule  of  dedaion 
above  referred  to,  may  be  regarded  in  other  states  where  a  dif- 
ferent rule  prevails,  so  long  as  it  remains  in  this  state  they  will 
be  protected  here.  The  legislature  may  alter  the  rule  and  ar- 
rest the  evil  without  either  bastardizing  children  or  placing  the 
^larent  without  the  pale  of  legal  protection. 

We  have  not  examined  the  proofs  in  the  case,  but  the  decree 
of  the  circuit  court  is  reversed,  and  the  ease  is  remanded  lor 
further 


Jime,  18S4]  HoTT  v.  Hows.  705 

DivoBCB  Obovid  ur'Qva  Ssira  WHnr  '^*— 'V^*  4BD  CAxam  of  Di- 
^VBOB  OoouBRBD  IH  Anothkb  8tatb,  and  defendant  never  waa  a  xwideaft 
In  or  eenred  with  prooen  in  the  state  in  which  the  anit  la  brought:  Tolen  ▼• 
Toten,  21  Am.  Deo.  742,  and  note,  where  the  question  is  diseaaaed  at  lengthi 
and  aee  ffcurding  r.  Aldm,  23  Id.  549.  The  principal  OMe  haa  been  freqnentiy 
eited  and  followed  on  the  jnrtadiotion  of  the  eironit  oonrt  of  Wiaoonidn  to 
grant  divoroea  nnder  the  above  oironmatanoes:  Oleason  v.  Oleamnif  4  Wia. 
eS;  Shc^er  v.  BusfmeU,  24  Id.  376;  Cook  v.  Cook,  56  Id.  204,  2ia  The  wifc^ 
for  the  pnrpoae  of  bringing  a  anit  for  a  divorce,  may  acquire  a  residence  9e^- 
arate  from  her  husband:  Craven  v.  Craven,  27  Id.  420.  Wisely  or  unwisely, 
it  ia  the  policy  of  the  statute  to  rast  junadiotioa  ci  divareaiqpon  tha  raaidanaa 
of  tha  plaintiff  alone:  IhUeher  v.  JhOeker,  39  Id.  667. 


HOXT  V.   HOWB. 

[3  Wnooxani,  782.] 
JOfiOMKVT  OF  COUBT  OF  RbOOBD  IS  MaDB  LiKN,  Df  WUCOHSDI,  UTOH  AlL  Of 

Debtor's  Rial  Bstatk  situated  in  the  county  where  the  record,  or  a 
transcript  thereof,  is  filed,  but  the  proper  quantity  of  land  oooufded  hf 
the  debtor  as  a  homestead  is  exempted  from  forced  sale. 
HoMWSEU)  IS  SoBJBCT  TO  LoDT  OF  JuDOMSMT,  IH  WnoovBiK,  and  mfty  be 
aold  under  execution  alter  it  haa  oeaaed  to  be  such  by  tha  voInntaKy  aet 
of  the  judgment  debtor. 

Bill  to  aet  aside  a  levy  and  sale  mider  exeoution  of  oertain 
lands  as  a  cloud  on  title.  It  appeared  from  the  hill  that  the 
premises,  which  constituted  a  homestead,  were  oonveyed  l^  tha 
husband  and  wife  in  satisfaction  of  a  demand  to  a  firm  of  which 
the  complainant  was  a  member;  but  that  prior  to  the  convey- 
ance a  judgment  had  been  obtained  by  the  defendant  against 
the  husband,  under  which  the  premises  were  subsequently  levied 
upon  and  sold  with  full  knowledge  of  the  complainant's  rights. 
The  defendant  demurred  to  the  bill,  on  the  grounds  that  ttie 
other  members  of  the  firm  were  necessary  parties  complainant, 
and  that  the  bill  did  not  make  out  such  a  case  as  entitled  the 
complainant  to  the  relief  prayed  for.  The  first  point  in  the  de- 
murrer was  overruled,  but  the  second  sustained,  and  the  bill 
dismissed. 

D.  Noggle^  for  the  appellant. 

J.  A*  Sleeper,  for  the  appellee. 

By  Oonrt,  WniroN,  C.  J.  A  majority  of  the  court  is  of  the 
opinion  that  the  decree  of  the  drouit  court  is  right  and  must 
be  affirmed. 

The  case  depends  entirely  upon  the  construction  to  be  given 
to  our  statutes  relative  to  the  effect  of  the  judgment  of  oonrta 

Ajf.  Dbo.  Vol.  LXII— 45 


\ 


706  HoTT  V.  HowB.  [Wi 


of  xeooid  upon  the  land  of  the  debtor,  and  rdatife  to  the  bl* 
emption  of  land  from  fozoed  sale  on  exeoation.  The  Btatntei 
are  aa  follows:  ''All  judgments  hereafter  rendered  in  anjoonrk 
of  record  shall  hind  and  be  a  chazge  upon  the  lands,  tenements, 
real  estate,  and  bhattek  real,  in  every  county  where  the  record, 
or  a  certified  transcript  thereof,  shall  be  filed,  of  CTSiy  person 
against  whom  any  snoh  judgment  shall  be  rendered,  which  such 
person  may  have  in  such  counties  at  the  time  of  docketing  such 
judgments,  or  which  such  person  shall  acquire  at  any  time  there- 
after, and  such  estate  and  chattels  real  shall  be  subject  to  be 
sold  upon  execution  to  be  issued  on  such  judgment. 

''A  homestead,  consisting  of  any  quantity  of  land  not  exceed* 
ing  forty  acres,  used  for  agricultural  purposes,  and  the  dwelling 
house  thereon,  and  its  appurtenances,  to  be  selected  by  the 
owner  thereof,  and  not  included  in  any  town  plat  or  dtj  or  Til- 
lage; or  instead  thereof,  at  the  option  of  the  owner,  a  quantity 
of  land  not  exceeding  in  amount  one  fourth  of  an  acre,  being 
within  a  recorded  town  plat  or  dty  or  village,  and  the  dwelling- 
house  thereon  and  its  appurtenances,  owned  and  occupied  by 
any  resident  of  this  state,  shall  not  be  subject  to  forced  sale  on 
execution,  or  any  other  final  process  from  a  court,  for  any  debt 
or  liability  contracted  after  the  first  day  of  January  in  the  year 
one  thousand  eight  hundred  and  forty-nine. 

"  Such  exemption  shall  not  afiect  any  laborer's  or  mechanic's 
Uen,  or  extend  to  any  mortgage  thereon  lawfully  obtained;  but 
such  mortgage  or  other  alienation  of  such  land  by  the  owner 
thereof,  if  a  married  man,  shall  not  be  valid  without  the  signa- 
ture of  the  wife  to  the  same. 

**  Whenever  a  levy  shall  be  made  upon  the  lands  or  tenements 
of  a  householder  whose  homestead  has  not  been  selected  and 
set  apart  by  metes  and  bounds,  such  householder  may  notify 
the  officer  at  the  time  of  making  such  levy  of  what  he  regards 
as  his  homestead,  with  a  description  thereof,  within  the  limits 
above  prescribed,  and  the  remainder  shall  be  subject  to  sale  un- 
der such  levy. 

''If  the  plaintiff  in  execution  shall  be  dissatisfied  with  the 
quantity  of  land  selected  and  set  apart  as  aforesaid,  the  officer 
making  such  levy  shall  cause  the  same  to  be  surveyed,  begin- 
ning at  a  point  to  be  designated  by  the  owner,  and  set  off  in  a 
compact  form,  including  the  dwelling-house  and  its  appurte- 
nances, to  the  amount  specified  in  the  fifty-first  section  of  this 
chapter;  and  the  expenses  of  such  survey  shall  be  chargeable 
on  the  execution,  and  collected  thereupon,  if  it  shall  appear  after 


June,  1864]  Hott  v.  Howb.  707 

Baoh  surrey  that  the  owner  of  said  land  did  not  oorreeUy  state 
his  metes  and  bounds;  otherwise  the  expenses  of  survey  shall 
be  borne  by  the  person  directing  the  same. 

"After  the  survey  shall  have  been  made,  the  officer  maldng 
the  leyy  may  sell  the  properfy  levied  upon  and  not  included  in 
the  set-offy  in  the  same  manner  as  provided  in  other  cases  for 
the  sale  of  real  estate  on  execution;  and  in  giving  a  deed  of  the 
same  he  may  describe  it  according  to  his  original  levy^  ex« 
cepting  therefrom  by  metes  and  bounds,  according  to  the  cer- 
tificates of  survey,  the  quantify  set  off  as  aforesaid:"  B.  8.,  c. 
102,  sees.  6,  61-66. 

Without  attempting  to  discover  a  recondite  meaning  in  these 
provisions,  but  viewing  them  according  to  their  plain  and  mani- 
fest import,  we  think  that  they  make  a  judgment  of  a  court  of 
record  a  lien  upon  all  the  real  estate  of  the  debtor  situated  in 
the  county  where  the  record  or  a  transcript  of  it  is  filed,  and 
exempt  from  forced  sale  a  quantity  of  land,  it  being  the  home- 
stead of  the  debtor,  varying  from  a  quarter  of  an  aero  to  forty 
acres,  the  quantity  depending  upon  the  place  where  the  land  is 
situated  and  the  uses  to  which  it  is  applied.  They  provide  a 
mode  by  which  the  quantity  of  land  exempted  from  forced  sale 
shall  be  ascertained  when  the  plaintiff  and  the  defendant  do 
not  agree,  and  that  a  mortgage  or  other  alienation  of  the  land 
shall  be  invalid  without  the  signaturo  of  the  vrife  to  the  same 
when  the  owner  of  the  land  is  a  married  man.  This,  as  the 
matter  appears  to  us,  is  a  fair  synopsis  of  the  principal  matters 
contained  in  the  statutes  above  cited. 

We  are  asked  by  the  appellant  to  go  farther,  and  hold  that 
the  property  is  exempted  from  forced  sale  after  it  has  ceased  to 
be  the  homestead  of  the  debtor;  and  to  accomplish  this  object, 
we  are  called  upon  to  decide  that  the  judgment  never  becomes 
a  lien  upon  the  land  reserved  for  the  homestead,  or  which  shall 
finally  be  selected  by  the  debtor  as  such.  We  think  we  are 
called  upon  to  go  this  length,  for  we  can  not  think  that  if  the 
lien  attaches  we  can  hold  it  exempt  from  forced  sale  when  it 
ceases  to  be  the  homestead.  We  of  course  do  not  intend  to 
hold  that  if  the  dwelling-house  situated  upon  the  homestead, 
and  forming  a  part  of  it,  should  be  consumed  by  fire,  or  should 
by  any  accident  become  untenantable,  it  would  at  once  lose 
its  character,  and  become  subject  to  sale.  But  we  speak  of 
cases  like  the  present,  where  the  land  ceases  to  be  the  homestead 
of  the  debtor  by  his  lawful  act  and  with  his  full  consent. 


208  HoTT  V.  Hows.  [Wiaeomdiv 


In  aueh  OMttiife.  think  it  (dear  thai  if  the  lien  attftebeB,  uid 
the  effiact  of  the  stttfeateB  above  zeeited  is  mereljr  to  exempt  the 
homeBtead  from  forced  Bale,  the  property  beoomes  sabjeet  to 
■ale  like  any  other  property  of  the  debtor.  To  hold  the  oon- 
tmry  would  be  to  maintain  that  property  whieh  ia  bound  bj 
and  subject  io  a  judgment,  and  only  exonpted  from  sale  to  Bat- 
ifify  the  judgment  by  means  of  its  peculiar  character,  when  it 
loaes  its  character,  with  the  coneent  and  by  the  act  of  its  owner, 
is  neyerthelesa  still  exempted  &om  sale.  We  are  not  aware  %f 
any  legal  principle,  nor  of  any  fair  mode  of  reasoning,  which  can 
be  resorted  to  for  the  purpose  of  establishing  this  conclusion. 

We  are  therefore  obliged  to  consider  the  case  as  turning  upon 
the  question  whether  the  lien  created  by  the  judgment  does 
attach  to  all  the  land  of  the  debtor,  and  whether  the  exemption 
spoken  of  in  the  statute,  is  what  its  language  plainly  imports,  an 
exemption  merely  from  forced  sale. 

It  will  be  seen  that  the  fifth  section  of  chapter  102  of  the 
MTised  statutes,  above  recited,  in  terms  makes  the  judgment 
B.  lien  upon  all  the  land  which  the  debtor  owns  at  the  lime 
of  docketing  the  judgment  in  every  county  where  the  reoord 
or  a  transcript  of  it  is  filed,  and  all  which  he  shall  acquire 
afterwards,  and  provides  that  it  may  be  sold  on  execution; 
while  section  61  of  the  same  chapter,  provides  that  the  home- 
stead shall  not  be  subject  to  forced  sale  on  execution,  or  any 
other  final  process.  What  is  the  fair  interpretation  of  these 
provisions  ?  Viewing  them  together,  do  they  mean  that  the  lien 
shall  not  attach  to  all  the  land  which  the  debtor  owns,  his  home- 
stead  included  ?  Or  do  they  mean  simply  what  their  language 
imports,  that  while  the  lien  attaches  by  virtue  of  the  fifth  see- 
tion  to  all  the  land  of  the  debtor,  the  part  not  included  in  the 
homestead  only  can  be  sold  ?  In  order  to  hold  that  the  lien  does 
not  attach  to  the  homestead,  it  must  be  established  that  that 
part  of  section  5  which  provides  for  it  is  modified  by  section 
51  so  as  to  produce  that  eflCact.  But  the  special  provision  con* 
tained  in  this  section,  in  relation  to  the  homestead,  only  ex* 
empts  it  from  forced  sale;  it  does  not,  by  its  terms  nor  its  spirit, 
at  all  aflSBct  section  6,  except  that  part  of  it  which  provides  for 
a  sale  of  the  debtor's  land.  That  part  which  makes  the  judg- 
ment a  lien  upon  the  land  is  entirely  compatible  with  section  68, 
and  by  all  the  established  rules  of  construction  is  unafEected 
liy  it 

The  counsel  for  the  appdlanfe  contends  that  the  husband  and 


Jnne,  1854.]  Hott  u  Howi.  709 

^vife,  when,  as  in  tluB  oaae,  fhe  debtor  bis  a  wife,  aie  joint  own- 
ers of  the  homestead,  and  that  consequently  it  can  not  be  talmi 
to  pay  the  husband's  debts. 

This  position  is  attempted  to  be  supported  by  a  reference  to 
the  fifty-fifth  section  above  recited,  which  provides  that  a  mort- 
gage or  other  alienation  of  it  shall  not  be  valid  without  the  sig- 
nature  of  the  wife. 

We  do  not  think  tliat  this  section  tends  to  maintain  this  posi- 
tion. On  the  contrary,  we  think  that  it  tends  to  establish  the 
opposite  oondudon,  as  it  seems  to  recognize  the  husband  as  the 
owner  of  the  land,  but  to  make  his  conveyance  of  it  invalid 
without  the  consent  of  the  wife,  evidenced  by  her  signature. 

In  disposing  of  this  case,  we  have  not  felt  at  liberty  to  discuss 
the  policy  of  our  exemption  laws,  but  simply  to  administer 
those  which  are  upon  the  statute-book  according  to  their  obvi- 
ous and  fair  import.  If  it  shall  be  thought  necessary  to  give 
the  debtor  the  i>ower  to  sell  his  homestead  and  convey  a  good 
title  to  his  grantee,  free  from  the  effect  of  judgments  which  may 
exist  against  him,  the  legislature  is  competent  to  give  him  this 
power,  but  we  can  not  disregard  the  established  rules-  for  the 
construction  of  statutes  in  order  to  accomplish  this  object. 

We  have  not  thought  it  necessazy  to  notice  the  objection 
taken  to  the  bill  of  complaint  by  the  appellee,  arising  from  an 
alleged  want  of  the  proper  parties  complainants. 

The  decree  of  the  court  below  must  be  affirmed. 

Surra,  J.,  dissented. 

HomsTXAi),  wmritaB  Subjxot  to  Lbh  of  JuDOUim— In  Wfaeanrin, 
prior  to  the  act  of  May  17, 1808,  the  judgmmt  of  a  ooort  of  reoord  was  a  lien 
npon  the  homeatead,  snd  might  be  enforced  after  the  debtor  voluntarily 
ceaaed  to  oooapy  the  homestead  or  conveyed  it;  but  prior  to  snch  abandon* 
ment  or  conveyance,  the  remedy  of  forced  sale  was  sospended;  the  principal 
case  has  been  frequently  cited  or  followed  on  this  point:  Simmons  v.  JohnBon^ 
4  Wis.  627,  Seamans  y.  Carter,  15  Id.  648;  Upman  v.  Second  Ward  Bank,  Id. 
462;  Trusteea  af  BalUmore  Annual  Cin\ferenee  v.  SeheUf  17  Id.  312;  Dopp  ▼• 
Albee,  Id.  591;  Jarvaie  y.  Moe,  38  Id.  442-445;  see  also  Lee  v.  Kingsburpt 
anle^  p.  546,  and  note.  The  only  qualification  suggested  by  the  principal  case  to 
the  broad  rule  being  that  it  was  not  intended  to  hold  that  *'if  the  dwelling- 
house  situated  upon  the  homestead,  and  forming  a  part  of  it,  should  be  con- 
sumed by  fire,  or  should  by  any  accident  become  untenantable,  it  would  at 
once  lose  its  character  and  become  subject  to  sale:"  JarvaU  y.  JHoe,  eupra. 
The  statute  of  1858  was  undoubtedly  passed  to  change  the  law  as  it  was 
established  by  the  principal  case:  Upman  t.  Second  Ward  Bank,  Jarvaie  y. 
Jfoe,  iupra;  In  re  Estate  qfPhelan,  16  Id.  80.  A  conveyance,  however,  ol 
the  homestead  by  parents  to  their  son,  to  induce  him  to  live  with  them  on 
the  place,  which  they  were  to  assist  him  in  cultivating,  being  merely  a  means 
•I  applying  the  homestead  more  efiectually  to  the  maintenance  of  the  grant- 


710  HoTT  V.  HowK  [Wiaoooaa 


on»  b  nol  wftUn  llie  rids  MteUiilied  hf  llie  piliidptl  omb,  and  does  noi 
ttngnUh  their  righti  mider  the  homettaad  exsmptkm  Uws:  Jfmrpkgf  ▼.  Onmd^ 
2i  Id.  807.  In  GUifoinift  *  jndgnMDt  oaa  not  become  a  Uen  upon  the  home- 
stead premlaea:  Sownum  y.  NoHom^  10  CU.  219^  diatingaiahiiig  the  principal 
caae  as  decided  under  a  different  atatnte. 

TBI  FBorciPAL  0A8I  IB  ▲L80  ciTBD  in  CMfrqf  ▼.  TkertUcn,  46  Wia.  084,  aa 
expreealy  affirming  the  view  that  the  atatntory  diiability  of  the  hoabaad 
leapeoting  the  homeatead  goea  only  to  give  a  peraonal  control  over  him  to  hia 
wife  in  hii  alienation  of  it,  and  operatea  only  by  way  of  retort  for  aome  of 
the  diaabUitiea  of  the  wife  at  common  law;  and  in  KaU  ▼.  Laakjft  48  Id.  284. 
to  the  point  that  dkta  only  in  it  aanotioned  the  doctrine  that  altbcMp^  the 
hooae  be  upon  a  legal  anbdiriaicii  of  land  exactly  commcnaorata  with  the 
right  of  homeatead  given  by  the  atatnte^  the  limita  of  the 
^f^j^iwfttniMl  imtil  fixed  by  adeotlos* 


OASES 

SUPREME   COURT 

OF 

ALABAMA. 


NoLES  V.  Staxb. 

To  Bsouu  OvB  Ikdiyidual  roil  Takiho  Lira  ov  Akothib,  Umto  mnsi  «ilil 
a  nneeiity  to  preyent  the  oomminion  of  a  felony  or  greet  bodflj  lwnB» 
or  a  reeeonable  belief  in  the  mind  of  the  elayer  that  eooh  neoeeii^ 
existe. 

If  BUI  TBI8PA88  1TP09  FxBsoir  AKD  LiBEBTT  OV  Slatib,  whioh  oretttod  BO 
reaionable  belief  in  hie  mind  that  any  of  the  treepaMen  wonld  oommlt 
any  felony  or  do  him  any  great  bodily  harm,  will  not  exonee  hie  kHUng 
each  treepaners. 

PlBSON  WnOSK  LlBBBTT  18  ThBBATBBTBD  HAfl  No  RiOBT  TO  KiLL  PBBSOBB 

THRXATunNO  each  liberty,  nnleie  eooh  attempt^  when  lawfully  redeted, 
is  persisted  in  by  the  trespasser  nntil  snoh  trespasser  is  about  to  oommlt 
a  felony,  or  do  the  person  great  bodily  harm,  or  induoes  in  the  mind  of 
the  person  a  reasonable  belief  that  he  is  about  to  do  so. 
Iv  Ca8b  ov  Homicids,  Amr  Facft  Which  Tbhdb  to  Pbotb  that  at  tha 
time  of  the  killing  the  prisoner  knew  that  the  deoessed  and  his  oompaii* 
ions  did  not  intend  to  commit  any  felony,  or  do  him  any  great  bodily 
harm,  or  to  show  the  prisoner's  real  motive  for  killing  the  deoessed,  Is 
relevant  evidence. 

ViBDIOT  FlMDINO  PbISOVBB  ''OoILTT  OF  MUBDBB  IH  F1B8T  DbOBBB,  AVB 

PBViTBimAKT  FOB  LiVB,"  is  Sufficient  to  sustain  his  conviction  and  sen- 
tence accordingly. 
IxaxBacTioini  in  Pbosboutioh  vob  KiLuiro  Pbb80H  Maxiho  Abbbct  Hbij> 

TO  BB  Ck>BBXCT. 

This  was  a  trial  of  Joseph  Noles  upon  an  indiotment  for  kill- 
ing one  Sbarp.  The  opinion  presents  the  principles  of  law 
therein  laid  down  with  sufficient  clearness,  without  mnch  addi- 
tional statement  of  facts.  The  deceased.  Sharp,  was  with  a  party 
who  went  to  arrest  Noles.  At  the  trial  an  affidayit  made  before 
a  justice  of  the  peace  bj  the  prisoner's  wife,  and  a  warrant  issued 

ni 


712  Holes  v.  Stats.  [Alabama, 

by  Buch  JQBtioe,  mace  offered  in  eyidenoe  by  the  state,  bat  upon 
the  prisoner's  objection,  the  court  refused  to  accept  the  same. 
The  state  then  offered  to  prove  the  fact  that  the  prisoner's 
wife  had  made  an  affidavit  i^gainst  him,  and  that  tliis  fact  was 
communicated  to  him.  This  was  objected  to  by  the  piiaoner, 
but  his  ob]«iction  was  oYermlad  and  he  excepted.  The  court 
charged  the  jury:  "1.  That  Sharp  and  his  party,  in  going  to 
the  house  of  Noles  to  arrest  him,  not  haying  a  warrai^t  to  do  so, 
and  no  chaige  of  felony  against  him,  were  all  trespassers,  and 
that  the  prisoner  had  the  right  so  to  consider  them,  and  to  treat 
them  as  such;  2.  But  notwithstanding  this,  if  neither  Sharp  nor 
his  company  intended  to  commit  any  felony  against  Noles  (as  by 
killing  him  or  doing  him  great  bodily  harm,  stealing  his  goods,  or 
burning  his  house,  or  the  like),  and  that  neither  Sharp  nor  any 
of  his  company  said  or  did  anything  which  might  induce  Noles 
to  apprehend  that  they  intended  to  commit  a  felony,  or  such 
things  as  are  above  referred  to,  then  Noles  could  not  justify 
killing  Sharp,  but  would  be  guilty  at  least  of  manslaughter,  and 
of  murder  if  the  killing  was  of  malice,  as  the  court  will  hereafter 
explain;  8.  That  the  law  regarded  the  liberty  of  the  citi2sen 
as  sacred,  and  every  arrest  of  a  citusen  without  warrant  (where 
no  felony  actually  committed  was  chai^ged,  and  where  the  ar- 
rest was  not  to  prevent  the  commission  of  a  felony)  was  a  tres- 
pass, and  such  arrest  was  unlawful,  that  such  unlawful  arrest 
was  in  law  a  great  provocation,  sufficient  to  excite  and  heat  the 
Uood  of  the  party  arrested,  and  that  if  under  such  heat  and 
excitement,  the  party  about  to  be  arrested,  to  prevent  it,  kills 
the  trespasser,  it  would  be  only  manslaughter;  4.  But  if  in  this 
particular  case  the  prisoner  knew  and  believed  that  Sharp  and 
his  party  only  intended  to  arrest  him  and  carry  him  before 
Esquire  Bums  to  answer  the  complaint  to  keep  the  peace,  and 
to  prevent  this  he  killed  Sharp,  with  what  the  law  calls  malice, 
as  ahready  explained  to  the  jury,  then  he  would  be  guilty  of 
murder,  notwithstanding  the  unlawfulness  of  the  arresting  so  in- 
tending tc  carry  him  before  Justice  Bums."  The  prisoner  ex- 
cepted to  these  charges,  and  asked  that  others  which  he  pro- 
duced be  given;  but  as  they  were  refused  by  the  lower  court,  in 
which  refusal  this  court  concurred,  they  need  not  be  given  here. 
The  jury  returned  a  verdict  that  "  they  find  the  prisoner  guilty 
of  murder  in  the  first  degree,  and  penitentiary  for  life."  Upon 
this  verdict  the  court  sentenced  him  accordingly. 

ntomas  WUliama  and  Oeorge  W,  Oayle^  for  the  plaintiff  in  eoor. 

Jf.  A.  Baldwin^  aUomey  general,  conira* 


Jan.  18S6.]  NoLis  v.  Stahb.  718 

By  Court,  BaoSy  J.  To  exxmse  one  indmdnal  f6r  taking  the 
life  of  another,  there  mnst  exist  a  necesaily  to  prevent  the  com- 
miasion  of  a  felony,  or  great  bodily  harm,  or  a  reasonable  be- 
lief in  the  mind  of  the  slayer  that  such  necessity  does  exist.  If 
there  is  neither  the  existence  of  such  necessity  nor  any  reason- 
able belief  of  Hb  existence,  the  law  will  not  acquit  the  slayer  of 
aU  guilt:  Olwer  t.  SkOe,  17  Ala.  687;  PritoheU  ▼.  Stale,  22  Id. 
89  [58  Am.  Dec.  250]. 

The  case  of  a  mere  trespass  npon  the  person  and  liberty  of 
the  slayer  which  created  no  reasonable  belief  in  his  mind  that 
any  of  the  trespassers  would  commit  any  felony,  or  do  him  any 
great  bodily  harm,  can  not  be  allowed  to  constitute  an  excep- 
tion to  the  foregoing  rules.  When  such  trespass  is  threatened 
or  committed  he  has  no  right  to  kill,  unless  the  unlawful  act, 
when  properly  and  lawfully  resisted  by  him,  is  persisted  in  by 
the  trespasser  until  it  ultimately  results  either  in  an  actual 
necessity  on  his  part  to  kill  in  order  to  prevent  the  commission 
of  a  felony  or  great  bodily  harm,  or  in  tiie  reasonable  belief  by 
him  of  the  existence  of  such  neoesnty:  Carroll  y.  SUUe,  28  Ala. 
28  [58  Am.  Dec.  282];  State  y.  Cralan,  6  Ired.  L.  164. 

Believing  the  foregoing  legal  propositions  to  be  correct,  and 
being  bound  to  construe  the  chaxges,  and  refusals  to  charge,  in 
connection  with  the  evidence,  we  can  not  do  otherwise  than  de- 
clare that  there  is  no  error  in  the  charges  given,  nor  in  the  re- 
fusals to  charge  as  requested,  of  which  the  prisoner  has  any 
right  to  complain. 

We  admit  the  right  of  any  citiaen  to  resist  any  attempt  to  put 
any  illegal  restraint  upon  his  liberty;  but  his  resistance  must 
not  be  in  enormous  disproportion  to  the  injury  threatened.  He 
has  no  right  to  kill  to  prevent  a  mere  trespass  which  is  unac- 
companied by  any  imminent  danger  of  great  bodily  harm  or 
felony,  and  which  does  not  produce  in  his  mind  any  reasonable 
belief  of  such  danger.  We  can  not  sanction  the  charges  asked 
by  the  prisoner  and  refused  by  the  court,  to  the  full  extent  to 
which  they  go. 

Any  fact  which  tended  to  prove  what  was  the  real  motive  of 
the  prisoner  for  killing  the  deceased,  or  the  purpose  of  deceased 
in  going  to  the  house  of  the  prisoner,  or  which  tended  to  prove 
that  at  the  time  of  the  killing  the  prisoner  knew  that  the  de- 
ceased and  his  companions  did  not  intend  to  commit  any  felony, 
or  do  him  any  great  bodily  harm,  was  relevant  evidence.  In 
this  point  of  view  the  evidence  excepted  to  bry  the  prisoner  was 
admissible. 


714  Ex  PABTE  YlNGENT.  [AlahlUlMS 


The  prifloner  did  not  object  to  this  eridenoe  on  the  ground 
that  the  affidayit  and  wanrant  were  not  produced;  tiiegr  had  just 
been  offered  by  the  state,  and  been  exdnded  on  the  objection 
of  the  prisoner.  The  only  question  raised  hy  the  objection  was 
as  to  the  releyancj  of  the  eridenoe  as  offered;  and  as  it  was  rd* 
evanty  there  was  no  error  in  oTermling  the  objection.  If  the 
prisoner  had  objected  on  the  ground  that  the  affidayit  itself  and 
warrant  were  not  produced,  and  the  affidayit  and  warrant  had 
not  then  been  produced,  we  would  haye  been  called  on  to  de- 
cide whether  such  an  objection  should  haye  been  sustained;  but 
as  it  is  not  presented  in  that  way,  we  do  not  intimate  an  opin- 
ion on  that  question:  JUen  y.  Smiih^  22  Ala.  416.  The  yerdiel 
is  sufficient  to  sustain  the  judgment  and  sentence:  Noles  y.  Siaie^ 
24  Id.  672. 

We  are  fully  conrinced  that  there  is  no  eixor  against  the 
prisoner  in  any  of  the  proceedings  which  authorises  a  rsyersal 
of  the  judgment  and  sentence  pronounced  by  the  dronit  court 
of  Dalhw  county;  and  we  affirm  said  judgment  and  sentence, 
and  direct  said  sentence  to  be  carried  into  execution. 

HoMiciDB  Committed  bt  O^nt  ik  Dakgkb  or  O&sat  Bodily  Habm  from 
the  deceased,  or  who  thought  himself  so,  is  justifiable;  and  if  oommitfted  to 
prerent  a  battery  less  violent,  it  would  be  manslaughter,  not  muiden  Oram" 
ger  t.  State^  26  Am.  Dec  278,  and  note.  So  homidde  is  justifiable  when 
committed  in  self-defense  by  one  who,  being  attacked  without  his  fault,  be- 
lieves with  good  reason  that  his  assailant  means  to  kill  him,  or  do  him  grmk 
bodily  harm,  even  though  he  was  mistaken  In  such  belief:  Shorter  r,  PtopU^ 
61  Id.  286,  and  note. 

MxRs  TaisPAas  oa  Labobnt  wnx  vot  Jnsnrr  Ihtimtxokal  Kilumo: 
McDanid  v.  Staie,  47  Am.  Dea  03;  Oarrott  ▼.  Siaie.  68  Id.  282. 

When  It  is  Mitrdkb  to  Rbust  aitd  Kill  Ornoia  BiroaiTOBnrG  to 
Makb  Abbbst:  BoberU  v.  SuUe^  56  Am.  Deo.  07,  and  note. 

IirrxNT  with  Which  Diosasbd  akd  Otbbbs  Wbnt  to  PRiaoirBR^  Houn 
on  the  night  of  the  killing  is  important,  and  to  ascertain  it  it  is  proper  to  ask 
one  of  the  persons  who  accompanied  him  as  to  the  conversation  that  took 
place  amongst  them  while  they  were  together  in  relation  to  the  subjeet-mai- 
ter  in  dispute,  and  their  purpose  in  going  to  the  house:  SUwari  r.  State,  6S 
Am.  Dec.  426;  see  Bishop  Grim.  L.,  sees.  842,  840,  and  867»  where  the  author 
cites  the  principal  case. 


Ex  PABTE  YlNOENTy  A  SlAYB. 

pS  AT.ABiM 4,  ltf.1 

DwiLUNO-HOUSB— BuBOLART.— A  two-story  building,  the  front  room  of 
the  down-stairs  portion  of  which  was  used  as  a  store,  and  the  back  room 
of  the  same  story  as  a  sleeping  apartment,  and  the  up-stairs  rooms  of 


Jan.  1866.]      Ex  pabtb  Yincxnt.  718 

which  wwe  uad  as  doeping-rooms  for  the  derki  In  the  ttora,  aO  of  the 
occnpaats  of  which  were  tingle  men,  who  took  their  meals  oat»  and  had 
their  washing  done  away  from  home,  is  a  dwelling-honse,  hoth  within 
the  meaning  of  section  3908  of  the  code,  and  of  the  common  law. 

Asrr  HousB  was  Dwelliko  ob  Maksiok,  at  Coimoir  Law,  within  the 
meaning  of  the  de  nition  of  hnrglaiy,  in  which  any  person  resided  or 
dwelt;  and  with  reference  to  the  offense,  which  conld  only  be  committed 
in  the  night-time,  it  seems  the  true  test  is  whether  it  was  jfermanently 
used  by  the  occapier  or  any  member  of  his  family  as  a  place  to  sleep  in. 

When  Woros  abb  Used  bt  Lboislatubb  nr  Relation  to  Mattbb  ob 
Subject  which  when  used  with  reference  to  the  same  subject  at  the  com- 
mon law  hnve  obtained  b  fixed  and  definite  meaning,  the  presamptlon  is 
irresistible  that  they  were  intended  to  be  used  in  their  commcii-law  sense. 

Not  onlt  Dwellino-housb  Pbofeb,  at  Common  Law,  but  all  other 
bnildings  within  the  curtilage  or  some  common  fence  were  deemed  part 
thereof. 

Mbaniko  ov  Wobds  ^'Dweluno-hoube,"  as  used  in  section  3906  of  the 
code,  is  the  same  as  at  conmioii  law,  and  the  porpose  of  section  8800  was 
to  soften  the  rigor  bj  limiting  the  meaning  of  such  terms. 

This  is  a  proceeding  to  diflohaige  the  prifloner^  a  BlaTe,  fiom 
cttstodyy  either  by  habeas  corpus  or  other  appropriate  remedy* 
The  opinion  states  the  necessary  facts. 

Morgan  and  Martin,  for  the  prisoner. 
Baldwin,  aiiomey  general,  contra. 

By  Coorty  Ooij>thwaitb,  J.  The  bmlding  broken  into  was  a 
house  of  two  stories,  in  which  one  Adler  kept  goods  for  sale. 
The  house  below  was  divided  into  two  rooms,  communicating 
by  a  door  in  the  partition  which  divided  them.  The  goods  were 
in  the  front  room,  which  was  used  for  carrying  on  the  business, 
and  the  back  room  contained  a  few  boxes  of  shoes,  and  at  and 
before  the  time  of  the  breaking  was  used  as  a  sleeping-room  by 
Adler.  The  second  stoxy  was  slept  in  by  the  clerks  of  the  store, 
and  the  proof  was  that  they  were  all  single  men,  and  took  their 
meals  at  a  hotel  in  town,  except  on  Sunday,  when  their  break- 
fasts were  usually  sent  to  them;  and  that  their  washing  was 
done  away  from  the  house.  The  only  question  upon  these  facts 
is,  whether  the  house  was  a  dwelling-house  within  the  meaning 
of  section  8808  of  the  code. 

At  the  common  law,  any  house  was  a  dweUing  or  mansion,  in 
a  burglarious  sense,  in  which  any  person  resided  or  dwelt;  and 
with  reference  to  the  ofiTense,  which  could  only  be  committed  in 
the  night,  we  think  the  true  test  is,  whether  it  was  permanently 
used  by  the  occupier  or  any  member  of  his  family  as  a  place 
to  sleep  in.  Thus,  if  neither  the  owner  nor  any  member  of  his 
family  slept  in  the  house,  it  was  not  his  dwelling-house,  though 


716  Ex  PARTE  YiNCBirr.  [Alabama^ 

lie  had  ttsed  it  for  his  meals  and  all  Che  purposes  of  his  bosiness: 
Bex  T.  Martin,  Buss.  &  By.  108.  So  burglary  may  be  committed 
in  a  lodging-room:  Bex  y.  Bogers,  1  Leach,  89;  or  in  a  garret 
used  for  a  workshop,  and  rented  togathfir  with  an  apartment 
for  sleeping:  Bex  t.  CarreU,  Id.  S87.  So  to  break  and  enter  a 
shop,  not  parcel  of  the  mansion-house,  inivhich  the  shop-keeper 
never  lodges,  but  only  works  or  trades  there  in  the  day-time,  is 
not  burglary,  but  only  larceny;  but  if  he  or  his  servant  usually 
or  often  lodge  in  the  house  at  night,  it  is  then  a  mansion-house, 
in  which  burglary  can  be  committed:  1  Hale  P.  O.  557,  558. 
Indeed,  it  is  obvious  that  there  could,  in  general,  be  no  other 
tests  than  the  one  we  have  mentioned  as  to  single  persons,  as 
they  could  not  properly  be  said  to  live  or  dwell  in  any  house  in 
which  they  did  not  sleep;  and  if  the  house  which  was  perma^ 
nently  used  by  them  for  that  purpose  was  not  their  dwelling- 
house,  they  could  have  none.  We  have  no  doubt  that  at  the 
common  law,  upon  the  facts  as  stated,  the  building  must  be 
regarded  as  the  dwelling-house  of  Adler. 

But  it  is  said  that  the  term  ''dwelling-house,"  in  section  SSQft 
of  the  code,  is  not  used  in  the  same  sense  in  which  that  term  is 
used  at  the  common  law  witii  reference  to  the  offense  of  bur- 
glary. It  must  be  remembered  that  at  the  common  law  the 
crime  of  breaking  into  a  dwelling-house  in  the  night-time,  with 
the  intent  to  steal  or  commit  a  felony,  was  called  burglary:  8 
East  P.  C.  492, 493;  and  in  view  of  the  mischief  to  which  the 
crime  relates,  we  have  seen  that  the  term  ''  dwelling-house''  re- 
ceived a  technical  signification,  differing  in  some  refipects  from 
its  popular  meaning.  By  the  old  law.  Clay's  Dig.  472,  see.  4* 
this  offense,  when  committed  by  a  slave,  was  punished  with 
death.  By  the  code,  section  8808,  it  is  provided  that  ''eveiy 
slave  who  breaks  into  and  enters  a  dwelling-house  in  the  nighty 
with  the  intention  to  steal  or  commit  a  felony,  must  on  con- 
viction suffer  death;"  and  by  the  following  section,  8309,  thai 
"no  building  must  be  deemed  a  dwelling-house,  or  any  par^ 
thereof,  unless  some  white  person  is  in  such  house  at  the  time 
the  act  is  done  or  the  offense  committed;  and  no  building  which 
is  not  joined  to  and  parcel  of  such  dwelling-house  must  be  oon« 
sidered  as  included  in  the  preceding  section." 

If  section  8308  stood  alone,  we  should  give  to  the  term  pre* 
cisely  the  same  meaning  which  it  bears  in  burglary  proper,  for 
the  reason  that  the  statutory  offense  would  differ  in  no  material 
respect  from  the  common-law  crime.  The  same  words  are  need 
that  are  found  in  the  definition  of  burglaiy  as  given  by  the  tas^ 


JaxL  1855.]  Ex  pa&te  YmGENT.  717 

books;  and  when  words  are  nsed  by  the  legislatore  in  rebition 
lo  a.  matter  or  subject  which  when  used  in  reference  to  the  same 
subject  at  the  common  law  have  obtained  a  fixed  and  definite 
meaning,  the  inference,  we  think,  is  irresistible  that  they  were  in- 
tended to  be  used  in  the  common-law  sense.  It  would  be  a 
strange  thing  if  the  legal  sense  of  *' breaking  into  a  dwelling- 
house  in  the  night-time "  meant  one  thing  by  the  statute  and 
another  by  the  common  law. 

If  we  had,  however,  any  doubt  upon  the  question  it  would  be 
dispelled  by  section  3309.  At  the  common  law,  not  only  the 
dwelling-house  proper  but  all  other  buildings  within  the  cur- 
tilage or  some  common  fence  were  deemed  part  thereof:  2  East 
P.  C.  492,  493;  and  consequently  a  bam,  stable,  kitchen,  or 
smoke-house,  although  separated  from  the  main  building,  might 
be  part  of  the  dwelling-house  within  the  meaning  of  **  burglary/' 
But  it  is  evident  that  neither  of  these  buildings  would,  in  such 
case,  be  a  dwelling-house  in  the  popular  acceptation  of  that 
term;  and  on  the  supposition  that  it  was  used  in  that  sense  in 
the  preceding  section,  why  should  the  legislature  say  it  should 
not  apply  to  certain  cases  to  which  it  could  not  apply  if  used  in 
its  popular  sense  only?  The  meaning  of  the  two  sections  taken 
together  is  obvious.  The  old  law,  which  punished  capitally 
every  case  of  burglary  when  committed  by  a  slave,  was  regarded 
as  too  severe,  and  in  order  to  soften  its  rigor,  the  meaning  of 
dwelling-house  under  the  former  law  was  narrowed.  It  was 
required  that  there  should  be  a  white  jMrson  in  the  house  at  the 
time  when  the  act  was  committed,  and  also  that  the  building 
must  be  actually  joined  to  and  parcel  of  the  dwelling-house. 
Subject  to  these  qualifications,  we  must  construe  the  term  referred 
to  in  section  3808  as  meaning  the  same  as  that  term  in  burglary 
at  the  common  law. 

Motion  refused. 

Biox»  J.,  did  not  sit.  

BuBOLABT  Ck>]r8ina  iv  Bmukjvq  imo  avd  Emanre  a  dweUiog-hooM 
la  the  night-tiiM,  with  Intent  to  ooounit  a  felimj:  State  v.  MeCaU,  89  Am. 
Dim.  814. 

MxAVXifo  or  WoBD  **  Bovwm  **  ob  **  DwnuirchHOUBa,''  within  the  meaa- 
ittg  of  inwuranee  poUdei,  IndleluwU  for  bnglary,  eta,  la  diieowtrl  at  length 
In  the  note  to  Wo^kmm  i\  ImmHrmM  Cto.,  22  Am.  Deo.  144. 


718   Owners  of  Steamboat  Fabmsb  v.  McCbaw.  [Alabami^ 

OWNEBS  OF  SZBAMBOAT  FaBMEB  V.  HoGrAW. 

[as  Ajlabama*  189.] 

Aonojr  iob  Damaoss  Gaussd  bt  Stsaiibqat  Bukiono  nrvo  Flat-boax 
•hoald  be  brought  Againtt  the  boat  itMlf,  and  not  against  the  perwa 
named  in  the  attachment  aa  ita  ownera.  The  fact  that  the  defendaoti 
are  admitted  by  the  affidavit  on  which  the  attachment  inned  to  bo  the 
owners  of  the  ateamboati  and  that  the  attachment  bond  wbkh  is  mads 
payable  to  them  as  such,  makes  no  diffarence. 

liODB  07  Pboobdubb  AOAiim  Stbamboat  ontlined* 

Iv  Casb  ov  Coujsiovst  IF  Both  VBaBiui  abb  to  Blamb  neitiier  am  va* 
oorer  for  the  injury  sustained.  But  this  rule  must  be  nndecstood  with 
reference  to  faulta  which  operated  directly  and  immediately  to  prodnot 
the  collision. 

Oabblbbsxxss  or  Kbolbot  oh  Pabt  ov  Ohb  Pabtt  will  vot  Ezcobb  tha 
want  of  ordinary  care  or  conunon  caution  on  the  part  of  the  other. 

'^Obdinabt  Cabb  "  IS  RBLATrvB  Tbbm,  and  Wabt  ov  It  Mbaks  a  n^g^eel 
to  use  the  proper  precautions  with  regard  to  the  persona  and  property  of 
others  under  the  circumstances  of  each  particular  case. 

OOMMOK  GaBBIBR  OV  GoODS  is  KOT  BbUIYBO    VBOM  HIS  LlABXLITT  tO  tbt 

owner  of  such  goods  for  injury  thereto  caused  by  the  torts  of  third  psr- 
sons.  The  carrier  has  a  right  to  maintain  an  action  for  such  torts  againsl 
such  third  person,  and  a  recovery  and  satiafaction  by  him  bars  an  actioa 
by  the  owner  of  the  goods  for  the  same  injury. 

FOBMBB  BeOOVERT  IN  AOHON  BT  OWBEB  OV  GOOOS  A0AIK8T  ThIBD  PiB* 

SON  for  injuring  them  while  in  the  possession  of  a  common  carrier,  a  pta 
by  the  defendant  of  a  former  recovery  by  the  common  carrier,  which 
avers  that  the  injuries  complained  of  '*  are  the  same  injuries  which  the 
plaintiff's  declaration  all^;es  to  have  been  done  to  the  said  cotton  of  tha 
said  plaintiff,"  is  demurrable,  as  it  is  not  equivalent  to  an  averment  that 
the  recovery  was  for  the  effect  of  such  injury  upon  the  same  cottoa 
described  in  the  declaration. 
Ihoompbtbmot  ov  Witness  bt  Beason  ov  lMTEBE8T.->The  owner  of  a  flak- 
boat  is  not  a  competent  witness  for  the  owner  of  goods  in  an  actioa 
against  a  steamboat  for  colliding  with  said  flat-boat,  and  damaging  phdnt- 
iff*s  goods. 

Thib  action  was  commenced  by  the  apjMllees  suing  out  an  at- 
tachment against  the  steamboat  Farmer  to  recover  damages  for 
injuries  alleged  to  have  been  done  to  certain  bales  of  plaintiff's 
cotton  by  said  steamer's  colliding  with  a  flat-boat  upon  which 
said  cotton  was  shipped.  This  was  in  May,  1852,  and  in  the  fall 
term  of  the  same  year  plaintiff  filed  his  declaration,  in  which  ha 
"  complains  of  Edward  F.  Shields,  Jacob  B.  Walker,  and  Daniel 
Walker,  claimants  and  owners  of  the  steamboat  called  and  named 
the  Farmer,  which  were  attached  to  answer  the  said  plaintiff  in 
a  plea  of  trespass  on  the  case."  The  declaration  contained  two 
counts;  the  first  of  which  charged  that  at  the  time  of  the  collision 
the  plaintiff  was  the  owner  of  sevenl^-eight  bales  of  cotton  which 


Jan.  1866.]  Ownbbs  of  Steamboat  Fabmsb  t^.  McGraw.  719 

he  had  shipped  on  a  flat-boat  floated  upon  the  Mobile  riyer,  bound 
for  Mobile,  and  that  at  the  same  time  the  defendants  weze  the  own- 
ers, etc.  ^  of  the  Farmer,  and  that  by  the  carelessness,  misdirection, 
and  mismanagement  of  defendants,  said  steamboat  collided  with 
the  flat-boat  and  damaged  plaintiff's  aforesaid  cotton.  The  second 
count  charged  that  the  defendant  Shields  was  the  commander 
and  captain  of  said  steamboat,  and  by  his  carelessness,  etc.,  the 
injury  oconrred.  Defendants  demurred  to  this  dedaration  being 
overruled;  they  pleaded:  1.  Not  guilty;  2.  That  the  in jtuy  was 
caused  partly  by  the  fault,  mismanagement,  and  imprudence  of 
the  persons  in  chai^ge  of  the  flat-boat.  The  defendants  pleaded 
jottis  darrein  continuance  that  the  owners  of  the  flat-boat  had 
obtained  a  judgment  which  was  still  in  full  force  and  effect 
against  the  owners  of  the  steamboat,  which  judgment  defendants 
aver  was  for  the  injuries  committed  by  the  running  or  striking 
of  the  said  steamboat  against  the  said  flat-boat,  and  are  the  same 
injuries  which  are  in  the  plaintiff's  dedaration  alleged  to  have 
been  done  to  the  said  cotton  of  the  said  plaintiff.  The  remain- 
ing facts  are  sufficiently  stated  in  the  opinion. 

J.  W,  Lapdey^  for  the  appellants. 

WiUiam  M,  Murphy,  contra. 

By  Court,  Oouxthwaite,  J.  The  first  question  is  upon  the 
action  of  the  court  in  refusing  to  set  aside  the  declaration. 
The  attachment  was  issued  under  the  act  of  the  seyenteenth  of 
January,  1844,  acts  1843-4,  98,  and  directs  the  sheriff  to  seize 
and  take  possession  of  the  steamboat  Farmer,  with  her  tackle, 
apparel,  and  furniture,  and  to  keep  and  retain  the  same  in  his 
possession  to  answer  to  the  judgment  which  may  be  rendered, 
unless  the  master,  owner,  or  some  other  person  for  them  enter 
into  bond,  etc.  The  first  count  of  the  declaration  *'  complains  of 
Edward  W.  Shields,  Jacob  B.  Walker,  and  Daniel  Walker,  claim- 
ants and  owners  of  the  steamboat  called  the  Farmer,"  and  alleges 
that  they  had  the  care,  direction,  and  management  of  the  same, 
and  that  by  the  carelessness  and  misdirection  of  **  said  defendants 
in  the  management  of  said  steamboat  she  ran  into  the  flat-boat," 
etc.  The  second  count  differs  from  the  first  only  in  alleging  that 
**  the  said  Shields,  as  commander  and  captain,  had  the  care  and 
management  of  the  steamboat,  and  that  the  flat-boat  was  run  into 
by  his  carelessness  and  misdirection."  We  have  referred  partic- 
ularly to  the  declaration  in  order  to  show  that  it  is  against  the  par- 
ties named  therein  as  defendants,  and  not  the  boat  itself;  and  tbia 
being  the  case,  it  falls  directly  within  the  decision  of  this  courl 


720  OWNKBS  OF  Steambcut  Fabxxb  v.  TiILcCbjlw.  [AlahfuiMi 

ia  (His  y.  Iham,  18  Ala.  896,  where  the  attachmeiLt  -waa  isBRied 
against  a  steamboat  under  the  same  statute,  and  the  declaxstion 
was  against  two  of  the  obligors  in  the  repleyy  bond  as  owneca. 
The  defendants  moved  the  court  to  set  aside  the  dedaiation, 
which  was  refused,  and  the  correctness  of  the  action  of  the  court 
in  this  respect  was  the  questLon  on  error.  It  was  held  thai  the 
declaration  must  be  against  the  boat  itself,  and  not  the  owners; 
and  that  the  refusal  of  the  court  to  set  aside  the  declaration  was 
a  rerersible  error.  It  is  supposed,  howerer,  by  the  counsel  for 
the  appellees,  that  the  fact  that  the  defendants  axe  admittecl 
by  the  affidavits  on  which  the  attachment  issued  to  be  the 
owners  of  the  steamboat,  and  by  the  attachment  bond  which 
is  payable  to  them  as  such,  takes  the  case  at  bar  out  of  the  in- 
fluence of  the  decifflon  to  which  we  have  referred.  Bat  we  do 
not  think  so.  The  ground  on  which  it  rests  is,  that  the  act  of 
1844  gave  the  remedy  against  the  boat  alone,  and  although 
persons  interested  as  owners  would  have  the  right  to  intervene 
and  defend,  the  declaration  must  bo,  in  conformiiy  with  the 
process  and  object  of  the  statute,  against  the  boat,  and  not  ils 
owners.  There  is  no  difficulty  in  framing  a  declaration  to  meet 
this  decision.  It  should  complain  of  the  boat  itself,  and  allege 
tne  injury  to  have  been  done  by  it  through  the  caxeleaBnees 
and  negligence  of  those  having  its  direction  and  management. 
It  would  be  unnecessary,  in  view  of  the  purpose  of  the  statute 
and  the  judicial  construction  it  has  received,  to  state  the  names 
of  the  persons  whose  carelessness  caused  the  vessel  to  commit 
the  injury,  although  the  naming  of  them  would  not  be  objeo- 
tionable.  Any  of  the  owners  would  have  the  right  to  come  in 
and  defend  the  suit;  and  by  analogy  to  the  practice  in  admi« 
raJty,  this  should  be  done  by  application  to  the  court,  stating 
that  the  applicant  is  interested  in  the  steamboat  seised  as 
owner,  and  should  be  sworn  to  by  him,  if  within  the  state  and 
not  at  an  inconvenient  distance,  otherwise  by  his  agent:  Ihe 
Adeline,  9  Cranch,  244;  Dunlap's  Adm.  Pr.  161-2;  and  an  entiy 
should  be  made  upon  the  minutes  of  the  court  admitting  him 
to  defend  as  owner. 

As  the  proceedings,  except  so  far  as  they  are  varied  by  the 
statute,  must  be  governed  by  the  rules  of  the  common  law,  any 
facts  which  would  defeat  the  action,  had  it  been  brought  in  case 
against  the  owners,  will  have  the  same  effect  when  pleaded  to 
this  proceeding  against  the  boat.  The  g^eral  rule  of  the  com- 
mon law  unquestionably  is,  that  if  both  vessels  are  to  blame 
neither  can  recover:  Vatuierplank  v.  MUler,  1  Moo.  &  M.  168: 


Jao.  1855.]  OwKSBS  of  Stk&mbqat  Fabmee  tn  VcOEkW.  721 

Vennall  t.  Oamer,  1  Qromp.  &  M.  21;  Lack  t.  Seward^  4  CJur. 
ft  P.  106;  Luxfard  y.  Zorye,  5  Id.  421;  Woalf  y.  £eard,  8  Id. 
378;  Kent  y.  J?fe<o&,  3  East,  18;  Keimard  t.  ^uWcm,  25  Me.  89 
[43  Am.  Deo.  249];  Broadtodl  y.  Swigert,  7  B.  Mon.  39  [45  Am. 
Dec.  47];  lUUhbun  y.  Payne,  19  Wend.  899.  But  this  rule  mnrt 
be  understood  with  reference  to  faults  which  operated  directlj 
and  immediately  to  produce  the  collision:  Cummins -^.Spmance, 
4  Harr.  (Del.)  315.  Because  a  flat-boat  runs  at  night,  when 
she  should  not,  or  ties  up  in  the  wrong  place,  would  not 
justify  a  steamboat  in  running  into  her,  any  more  than  a  stag^ 
coach  would  be  justified  in  willfully  or  carelessly  running  oyer 
a  man  lying  asleep  in  the  road;  and  in  all  such  cases,  if  the 
act  causing  the  injury  could  haye  been  preyented  by  the  use 
of  ordinary  care  the  failure  to  use  it  will  render  the  pfl^rty  liable. 
There  is  no  inflexible  rule,  either  of  the  riyer  or  the  road,  the 
neglect  of  which  by  the  one  party  will  dispense  with  the  exer- 
tAse  of  common  caution  by  the  other:  Abbott  on  Shipping,  238, 
and  cases  cited.  But ''  ordinary  care  "  is  altogether  a  relatiye 
term,  and  in  cases  like  those  we  haye  put,  the  want  of  it  means 
nothing  more  than  the  failure  to  use  tliose  precautions  which  a 
just  regard  to  the  persons  and  property  of  others  demands 
should  be  tised  under  -the  circumstances  of  the  particular  case. 
Of  course  a  yessel  not  in  fault  would  not  be  obliged,  in  order 
to  escape  a  collision,  to  risk  her  own  safety,  or  endanger  the 
liyes  of  her  passengers;  but  she  should  at  least  use  the  best 
skill  and  judgment  of  her  officers,  and  the  employment  of  the 
means  at  their  command,  in  order  to  preyent  the  occurrence  of 
any  act  fraught  with  peril  to  the  liyes  and  property  of  others. 

Applying  the  principles  we  haye  laid  down  to  the  matter  of 
the  second  and  third  pleas,  it  will  be  seen  that  they  were  both 
dcf ectiye,  for  the  reason  that  the  collision  might  haye  been  re- 
motely and  partly  caused  by  the  imprudence  and  negligence  of 
the  flat  running  at  night  in  a  certain  part  of  the  riyer  where  it 
was  unusual  and  dangerous  for  such  boats  to  run,  or  by  mis« 
management  in  being  fastened  broadside  to  another  flat;  but 
we  haye  already  seen  that  neither  of  these  circumstances  would 
haye  excused  tiie  steamboat,  if,  notwithstanding,  she  could,  by 
the  exercise  of  ordinary  care  on  her  part,  haye  passed  them 
without  striking. 

In  relation  to  the  fourth  plea,  there  is  no  doubt  that  a  com- 
mon carrier,  as  he  is  not  absolyed  from  his  liability  to  the  owner 
of  the  goods  by  the  torts  of  third  persons,  has  the  right  to  main- 
tain an  action  against  them  for  the  wrong;  and  it  is  equally  cer- 

Am.  Dso.  yoL.  LXU— «6 


722    Owvms  or  Steamboat  Fabmsb  v.  McO&aw.  [A]ahMll^ 

tain  that  a  reooTOij  and  Batualaotion  by  him  for  the  injiizy  dona 
to  the  goods  will  be  a  bar  to  an  action  by  the  owner  for  the 
damage  or  I088  from  the  same  injoiy:  Story  on  Bail.»  sees.  94, 
686.  The  plea  here  is  artfully  drawn,  and  seeks  to  escape  the 
action  by  setting  out  a  recoTery  by  the  carrier  for  the  injmy 
committed  by  the  ronning  or  striking  of  the  steamboat  against 
the  flat,  which  it  ayers  ''  are  the  same  injuries  which  the  plaint- 
iff's declaration  alleges  to  haye  been  done  to  the  said  cotton  of 
the  said  plaintiff."  But  this  is  not  equivalent  to  an  averment 
that  the  recovery  was  for  the  effect  of  such  injuiy  upon  the  same 
cotton  described  in  the  declaration.  Non  consUU  but  that  the 
former  suit  was  for  the  damage  done  by  the  collision  to  the  cot- 
ton of  some  other  person  on  board  the  same  flat.  The  demur- 
rer was  properly  sustained  to  this  plea  also. 

In  admitting  the  evidence  of  the  owner  and  person  in  charge 
of  the  flat,  the  court  erred,  for  the  reason  that  a  reoovezy  in  the 
action  would  have  placed  the  witness  in  a  state  of  security  against 
any  action  the  plaintiff  might  bring  against  him:  Otia  v.  Thorn, 
23  Ala.  469.  It  is  urged,  however,  that  he  is  made  a  comi>etent 
witness  by  section  2302  of  the  code.  But  if  the  law  of  the  code 
applied,  which  we  do  not  decide,  he  would  not  be  competent,  as 
the  verdict  and  judgment  in  the  suit  in  which  he  was  offered,  if 
in  favor  of  the  plaintiff,  might  be  evidence  in  his  favor  in  another 
suit  against  him  by  the  same  x>arty:  Farwell  v.  HiUiard,  3  N.  H. 
818;  GUmore  v.  Carr,  2  Mass.  171;  WUmer  v.  ScUatter,  2  Kawle, 
869,  per  Huston,  J. ;  and  the  section  referred  to  expressly  pro- 
vides that  the  objection  to  the  competency  of  a  witness  shall 
prevail  in  such  a  case. 

The  charges  are  easily  disposed  of.  The  testimony  on  which 
they  were  founded  did  not  tend  to  show  that  the  conduct  of  the 
flat  was  such  as  to  contribute  directly  and  immediately  to  the 
act  of  collision;  and  the  sole  question,  therefore,  under  the  law, 
was  whether  the  steamboat  used  ordinaiy  care  to  prevent  it 
The  first,  third,  and  sixth  charges  asserted,  in  effect,  that  the 
fault  of  one  vessel,  although  not  directly  contributing  to  the 
collision,  dispensed  with  the  want  of  ordinary  caie  in  the  other 
to  prevent  it,  and  were  therefore  properly  refused.  The  second 
and  fourth  should  have  been  given,  as  they  made  the  liabilify 
turn  on  the  question  of  ordinaiy  care  on  the  part  of  the  steam- 
boat; and  in  relation  to  the  fifth,  as  the  correctness  of  its  xefusal 
is  not  questioned,  it  is  unnecessaxy  to  say  anything. 

Judgment  reversed  and  cause  remanded. 


Jan.  185&]  StalijINGS  t^.  Newmait.  723 

Fob  Full  Duonmoir  of  Riqbis  axd  lAAXtLoaa  of  different  partiM 
growins  oat  of  ooUidoos,  see  notes  to  BroadweU  ▼.  Swiffert^  45  Am.  Bee.  47» 
Mid  Vcm  Ham  r,  Ta^hr,  41  Id.  279. 

Common-law  Bulb  tor  ABSBasnro  Damaqss  ior  Injvrob  craaed  to 
Teeaela  by  coUinons  is  thftfe  where  both  yeeieUi  are  at  fault  neither  oan  re- 
oover.  The  aame  role  mnat  be  applied  in  aotioni  between  steamboat!  npon 
the  Ohio  river:  Broadweil  r.  Swigert,  45  Am.  Deo.  47.  In  the  note  to  this 
case  the  question  is  treated  at  length  and  in  all  its  bearings. 

'    DiMAOBS  lOB  COLUSIOir  GAK  NOT  BB  RbOOVBRBD  WHBlf    FLAXHTirr    DID 

HOT  Exhibit  Propeb  PBimBNca,  and  might  with  ordinary  oare  have  avoided 
it,  although  the  oollision  was  oansed  by  the  gross  fault  of  the  oaptain  of  tho 
other  steamer:  OarUde  v.  HoUon,  48  Am.  Dea  440. 

A  Vbrt  Rbcbnt  Dbcision  of  Sufbbmb  Coitbt  of  Caufornia,  which 
may  pro6tably  be  read  in  connection  with  one  point  in  the  principal  case,  do- 
ddod  that  where  a  collision  occurred  between  two  carrier  yehicles  whereby 
a  third  person  was  injured,  he  could  recover  damages  for  such  injury  from 
the  carrier  whose  negligence  occasioned  the  same,  or  from  both  if  they  wers 
mutually  negligent;  but  that  conceding  both  to  be  negligent,  a  recoTery  from 
one  barred  a  recovery  from  the  other,  or  that  receiving  satisfaction  from  one 
would  release  the  other;  further,  that  receiving  payment  from  one  estopped 
the  injured  party  from  asserting  that  the  other  alone  was  negligent:  Ton^ 
khu  V.  02by  Street  ma  B.  B.  Co.^  4  West  Coast  Rep.  537. 


StALLINGS  V.  ^"EWblLKIX. 

p6  Alabama,  800.] 
DOOTBINB  THAT  SlANBBB  MUST  BB  DiRBQT  80  AS  TO   EXCLUDB  ETBBT  In« 

TBNDMBBT,  and  that  words  in  all  cases  must  be  taken  in  mUiari  sensM,  has 

been  exploded  for  more  than  a  century. 
Lf  Aonozr  fob  Slahdbr,  Tbub  Rulb  Rbqihbbb  that  Wobds  Spoxbb 

should  be  construed  according  to  their  obvious  meaning,  and  taken  la 

that  sense  in  which  thoee  who  hear  would  understand  them. 
Ih  AcnoM  FOB  Slandbb,  in  haying  Aoousbd  Plaintiff  of  Mubdbbino 

defendant's  son,  the  declaration  need  not  aver  that  at  the  time  said  aeon- 

sation  was  made  the  son  was  dead. 

ArnEB   DbMUBBBB  to    DbCLABATION    has    BXBN  SvSTAINBD,   if    PLAINTIFf 

Ambnds  he  thereby  waives  the  right  to  review  the  correctness  of  said 
ruling  on  appeal. 
In  Action  fob  Slandbb,  Etiobnob  that  Wobds  Chabobd  wbbb  Spoxbv 
TO  Intimatb  Fbibnd,  to  whom  alone  they  were  communicated,  even 
though  they  do  not  come  within  the  class  of  privileged  communications^ 
is  receivable  as  tending  to  disprove  malice. 

DfFFBBBNT  ClASSBS  OF  PbIVILEOBD  COMMUNICATIONS  EnUMBBATBO. 

In  AcnoN  fob  Slandbb,  Pabtt  to  Whom  Wobds  wbbb  Spokbn  mat  Tbs- 
TIFT  that  although  the  defendant  did  not  enjoin  secrecy  upon  him,  he 
understood  the  communication  as  private  and  confidential;  but  whethef 
the  words  spoken  were  so  intended  by  the  defendant  is  a  question  for  ths 
jury. 

OOiBFIDBNTIAL  COMMUNICATIONS    MaDB  IN  UsUAL  COUBSB  OF    BUBINBSS,  OT 

of  domestio  or  friendly  intercourse,  should  be  liberally  viewed  by  juries. 


7M  ScALUMBS  V.  NswiUir.  [Alsbami^ 


Ih  Aonoir  wcmSuaivwa^  iv  hativo  Cbabob^  Plai 

DifBinttaT's  80V9  eTidsDM  that  at  tha  tone  tha  vofda  won  ^okaa 
defendant  said  that  hia  wife  was  Teiy  minh  dutrensd  over  tha  death  of 
their  bob  is  adiissiMe  aa  tanding  to  show  that  the  aemmiiPicatiaBi  was 
IMrompted  hy  ^oef  rather  than  malioB. 

Slandeb  for  words  spoken.  The  action  was  brongbt  hy  John 
Stallings  against  John  Newman,  and  the  words  which  were  al- 
leged to  have  been  spoken  to  William  Stallings,  plaintiff's  brother, 
'were  as  follows:  "  Yonr  clan  has  murdered  my  son."  **  John 
Stallings,  jonr  brother,  murdered  my  son."  "  Tour  brother  has 
murdered  my  son."  **  I  am  satisfied  that  he  murdered  him,  or 
took  him  to  where  he  knew  it  would  be  done."  And  the  com- 
plaint alleged  that  he  thereby  charged,  or  intended  to  chaige, 
plaintiff  with  haviDg  murdered  defendant's  son,  or  with  ha^g 
ibeen  accessary  thereto.  Defendant's  demurrer  to  this  declara- 
tion having  been  sustained,  plaintiff  amended  by  adding  an 
«Terment  that  Cornelius  Newman  (the  aforesaid  son)  was  dead 
mt  the  time  the  words  were  spoken.  At  the  trial  defendant 
asked  the  witness  Clayton,  who  had  previously  testified  that  the 
words  had  been  spoken  to  him,  whether  the  conversation  between 
them  was  not  private  and  confidential.  Plaintiff  asked  the 
witness  if  defendant  had  at  the  time  stated  that  the  communi- 
cation was  private  and  confidential,  to  which  he  answered  that 
.he  did  not  remember  that  he  had.  Plaintiff  objected  to  the 
question  thereupon,  but  the  court  overruled  the  objection  and 
permitted  the  witness  to  answer,  which  he  did  by  saying:  *'  I  so 
received  and  understood  it."  Defendant  then  asked  the  witneaa 
^if,  at  the  time  he  had  spoken  the  words  to  him,  he  had  not 
nstated  that  he  was  much  grieved  and  that  his  wife  was  much 
distressed  over  the  death  of  their  son.  Plaintiff  objected  to 
this  as  irrelevant,  but  the  court  overruled  the  objection,  and 
witness  answered  that  defendant  had  so  stated. 

Martin  and  Baine,  for  the  appellant. 
,3f.  J,  Turnley,  for  the  apj^Uee. 

By  Court,  CHiiAOir,  O.  J.  There  are  some  old  cases  whiob 
woidd  justify  the  court  in  holding  the  original  dedaxation  in 
this  case  bad.  The  case  of  Sir  Thomas  H6U  t.  Aatgrigg^  Oro. 
•.Jac.  184,  may  be  cited.  In  that  the  words  were:  ''  Sir  QRiomas 
struck  his  cook  on  the  head  with  a  cleaver,  and  deaved  his  head; 
the  one  part  lay  on  one  shoulder  and  another  pari  on  the  other." 
The  verdict  against  the  defendant  was  arrested  in  the  king^s 
bench,  upon  the  ground  that  ''slander  onglit  to  be  dixeoi, 


Jan.  1855.]  STALUiras  v.  Newmait.  72& 

againBt  which  thers  may  not  be  any  intendmeDtB."  See  alaa- 
Prichard  y.  HamfciM,  Id.  215;  BMand  t.  Stoner,  Id.  815;  i9ir 
Barham's  Case,  4  Go.  90;  Boll.  Abr.  72;  Jlite  y.  tfaot)^.  Hob.  6r 
Coo^c  y.  C'tUyerf,  Id.  77;  Steward  y.  Bishop,  Id.  177.  The  doc* 
trine  upon  which  these  and  a  number  of  old  caeee  rest,  to  wit» 
that  slander  must  be  direct  so  as  to  ezdude  eyeij  intendment^ 
and  that  words  in  all  cases  must  be  taken  m  miHcri  sensu,  has 
been  exploded  for  mote  than  a  century.  As  fiir  bade  as  172fl 
the  same  court  held  that  to  say  of  a  certain  person,  **  That  is  the. 
man  who  killed  my  huriband/'  is  actionable:  Button  y.  Heyroard^ 
8  Mod.  24.  Pratt,  0.  J.,  in  deliyering  his  ofrinion,  said:  "  We 
are  to  understand  words  in  the  same  sense  in  which  the  hearura 
understood  them;  but  when  words  stand  in  different,  and  are 
equally  liable  to  two  distinct,  interpretations,  we  ought  to  con-*^ 
strue  them  in  wMori  sensu;  but  we  will  neyer  make  any  expoi^ 
sition  against  the  phdn,  natural  import  of  the  words." 

Fortescue,  J.,  said  the  rule  to  expound  the  words  in  the 
milder  sense  had  at  that  time  been  exploded  fifty  or  sixty  years. 
So  in  a  late  case,  IbmUnaon  y.  BriUlebank,  4  Bam.  &  Adol.  680». 
it  was  held  the  words  **  he  robbed  J.  W.''  were  actionable,  ae- 
imputing  an  ofifense  cognizable  by  law,  and  that  if  the  words- 
were  used  in  any  ottier  sense,  the  defendant  must  show  it. 

The  true  rule  requires  that  words  should  be  construed  accord* 
ing  to  their  obyious  meaning,  and  taken  in  that  sense  in  whichc 
those  who  hear  would  imderstand  them:  IfcOowan  y.  Mm^ 
ifee,  7  Mon.  815  [18  Am.  Dec.  178];  Hcyls  y.  YBm.ng,  1  Wash. 
162;  HamiUon  y.  Dent,  1  Hayw.  (N.  O.)  117  [1  Am.  Dec.  552]; 
HamiUon  y.  SmUh,  2  Dey.  &  B.  274;  BuMerfield  y.  Buffum,  9  N. 
H.  156. 

Applying  this  rule  to  the  facts  ayened  in  the  declaration,  wer 
entertain  no  d<mbt  that  the  declaration  demurred  to  was  sulB* 
dent.  When  it  is  said  A.  murdered  B.,  the  sense  in  which 
such  expression  would  be  understood  eyidently  would  be  that 
A.  killed  him  under  such  cireumstanoes  as  would  constitute  hink 
guilty  of  the  crime  of  murder;  and  the  words  clearly  imputing^ 
an  imputation  of  the  crime  of  murder,  we  are  not  prepared  to 
say  that  if  those  in  whose  presence  and  hearing  they  wexe* 
'  spoken  had  well-grounded  reason  to  belieye  the  person  said  to* 
haye  been  murdered  was  dead,  the  plaintiff,  who  is  the  sufSorer 
by  the  slander,  should  not  reooyer,  although  the  defendant  may- 
proye  that  the  person  alleged  to  be  dead  is  still  aliye.  That  he* 
would  be  so  liable  was  expressly  decided  by  the  supreme  court 
of  North  Carolina:  See  Stigari  y.  Carter,  1  Dey.  &  B.  8. 


726  Stalunos  v.  Newkan.  [Alabaaus 

So  in  Hmney  y.  Clemeni^  10  N.  H.  52,  itxTas  held,  in  an  action 
for  words  ohazging  the  plaintiff  with  the  crime  of  moxder,  that 
it  was  not  necessary  to  allege  or  proTe  the  death  of  the  person 
^d  to  be  murdered;  that  it  was  sufficient  if  the  existence  of  the 
person  alleged  to  haye  been  murdered  was  not  known  to  those 
in  whose  presence  the  words  were  spoken.  This  is  merely  giy- 
ing  effect  to  the  rule  preriously  laid  down,  that  is,  consbuing 
the  words  in  the  sense  in  which  the  by-standers  may  fairly  un- 
derstand them. 

It  follows  from  what  we  haye  said  that  the  court  improperly 
sustained  the  demurrer  to  the  declaration  as  it  originally  stood. 
The  plaintiff,  howeyer,  did  not  repose  upon  the  decision,  and 
seek  a  reyersal  in  this  court,  stopping  the  cause  at  that  stage  of 
the  proceeding  by  suffering  judgment  to  be  rendered  on  the  de- 
murrer. He  amended  his  declaration  and  went  to  trial  on  the 
declaration  as  amended,  and  thus  waiyed  his  right  to  reyiew 
the  deoision  of  the  court  upon  the  demurrer.  Such  was  clearly 
the  law  before  the  statute:  CaldweU  y.  May,  1  Stew.  425;  and 
the  statute  only  reseryes  the  right  to  reyiew  the  decision  of  the 
court  upon  the  demurrer  when  the  court  oyerrules  such  demur- 
rer and  the  demurrant  pleads  oyer:  Clay's  Dig.  834,  sec.  121. 

In  relation  to  the  confidential  communication  of  the  words 
charged  as  slanderous,  as  proyed  by  the  witness  Clayton,  we 
need  only  obsenre  that  although  they  do  not  fall  within  the 
class  of  priyileged  declarations  which  constitute  exceptions  to 
the  general  rule  of  implying  malice  from  slanderous  expressions, 
yet  that  they  are  receiyed  by  an  intimate  friend,  to  whom  alone 
they  were  communicated  at  that  time,  as  priyate  and  confidential, 
certainly  goes  as  a  circumstance  to  mitigate  the  damages,  as 
tending  to  disproye  malice. 

Priyileged  communications  are  said  to  be  of  four  kinds:  1. 
Where  the  author  of  the  alleged  slander  acted  in  the  bona  fide 
discharge  of  a  public  or  priyate  duty,  either  legal  or  moral,  or 
in  the  prosecution  of  his  own  rights  or  interests;  2.  Anything 
said  or  written  in  good  faith  by  a  master,  in  giying  the  character 
of  his  servant  who  has  been  employed  by  him;  8.  Words  used 
in  the  course  of  a  legal  or  judicial  proceeding,  howeyer  hard 
they  may  bear  upon  the  jMurty  of  whom  they  are  used;  and  4. 
Publications  duly  made  in  the  ordinary  course  of  parliamentaiy 
proceedings,  as  a  petition  printed  and  deliyered  to  the  members 
of  a  committee  appointed  by  the  legislature  to  hear  and  de- 
termine grieyances:  White  y.  NichoUs,  8  How.  266.  So  also  ex* 
.prossions  of  suspicion  based  upon  facts  detailed,  confidentially 


Jan.  1855.]  Stallings  v.  Newman.  727 

and  pntdenUy  made  to  discreet  persons  in  good  faith,  to  direct 
their  watchfulness  and  enlist  their  aid  in  the  detection  of  per- 
sons supposed  to  be  guilty  of  felony,  which  expressions  are  not 
more  extended  than  tlie  circumstances  of  suspicion  justify,  give 
the  party  injured  no  right  to  maintain  an  action  of  slander, 
siQce  tlie  public  interest  requires  that  such  communications 
should  be  made  that  offenders  may  be  detected. 

Applying  these  rules  to  the  case  before  us,  we  think  that 
Clayton  might  well  testify  that  he  receiyed  the  communication 
from  the  defendant  as  priTate  and  confidential,  in  the  absence 
of  an  injunction  of  secrecy,  or  of  any  declaration  on  the  part  of 
the  defendant  that  they  should  be  so  regarded.  That  he  so 
received  and  understood  the  commuuication  was  a  fact  to  which 
he  could  testify;  but  whether  the  words  spoken  were  so  intended 
by  the  defendant,  or  if  so  intended  they  were  notwithstanding 
prompted  by  malice,  was  a  question  for  the  jury. 

Nor  was  there  any  error  in  the  charge  that  confidential  com- 
munications, made  in  the  usual  course  of  business  or  of  domestic 
or  fiiendly  intercourse,  should  be  liberally  Tiewed  by  juries. 

TVLat  the  defendant  said  to  Clayton,  as  to  the  distress  of  his 
wife  by  reason  of  the  receipt  of  the  news  of  the  death  of  his  son, 
was  not  entirely  foreign  from  this  case.  It  served  to  show  the 
condition  of  the  defendant  at  the  time  he  spoke  the  words,  and 
tended  to  show  that  these  words  were  prompted  by  grief,  rather 
than  by  malice.  It  tended  to  explain  the  motive,  and  may  be 
considered  as  pai*t  of  the  res.  We  have  carefully  examined  the 
charges  of  the  court,  and  are  of  the  opinion,  when  tliey  are  re- 
ferred to  the  testimony  in  the  cause  on  which  they  are  predi- 
cated, they  correctly  assert  the  law  applicable  to  the  case. 

There  is  no  error  in  the  record,  and  the  judgment  is  a£Srmed. 


In  Actions  of  Slander,  Words  are  to  be  Taken  in  their  Common  Ao- 
CBFTATION,  In  the  sense  in  which  those  to  whom  they  are  addressed  understand 
them:  Watton  v.  McCarthy,  46  Am.  Dec.  380,  and  cases  cited  in  note.  But  a 
witness  in  an  action  for  slander,  after  having  testified  as  to  the  words  spoken 
by  defendant,  can  not  state  what  meaning  he  understood  the  defendant 
to  convey  by  the  words:  8neU  v.  Snow,  Id.  730.  Acting  upon  the  rule  that 
words  are  to  be  taken  in  their  common  acceptation,  it  is  for  the  jury  to  de- 
termine their  meaning;  such  meaning  should  never  be  determined  by  theoon- 
struction  placed  upon  the  words  by  the  misconception  or  morbid  imagination 
of  the  person  in  whose  hearing  they  were  spoken:  Id.,  per  Shaw,  G.  J. 

Fact  that  One  Sends  Conrdential  Communioations  in  (jk>0D  Faith 
through  a  prudent  friend  to  a  stranger,  who  is  interested  in  knowing  the  facts 
oommunicated,  may  rci)el  the  presumption  of  malice  which  arises  from  the 
mere  publication  of  libelous  matter:  Hart  v.  Rtedf  35  Am.  Dec.  179. 


728  PiCKXNS  V.  Yabbobouqh's  Adm'b,      [AlabamA 

l£nui  Sacuor  nr  GomnnifOAiioK  is  not  soffidcnt  to  remoTe  the  impi- 
tfttioa  of  m*lioe«  but  when  taken  in  oonaection  with  other  cironnwtnnowi,  it 
may  confirm  the  inference  that  it  was  done  from  a  good  motive:  /oritT. 
AorUe,  33  Am.  Deo.  G38. 

Thi  nuHCiPAL  OASi  18  oiTSD  in  Lawmm  ▼.  Hid^  38  Ala«  285»  aa  an  an 
Ibority  that  certain  oommnnioaiiaDB  therein  named  are  pirrileged. 


FtGKENS  V.  Yabbobough's  Administbatob. 


[96  AfiA»*MA,  il7.] 
WBXRS  DmCBXE  has  BBSir  BXNOBRED  AGAIN8T  EZBOUTOB  OF  EsiATE,  he  hM 

anthority  to  pledge  notes,  the  property  of  said  estate,  as  security  for  its 
payment. 

Whxbi  Cbkditob  has  EECuyED  Notes  as  Collateral  Seouritt  fob  ms 
Debt,  unconditionally,  without  any  instructions  governing  the  course  of 
collection,  he  is  bound  to  take  the  necessary  steps  to  perfect  the  liability 
of  the  parties,  and  if  the  security  is  lost  or  rendered  unavailable  by  his 
D^leot,  he  must  bear  the  loss. 

FoiSEBSiON  OF  P&OMissoRT  NoTBS,  WITH  CONSENT  OF  Ow2izB,  and  with  au- 
thority to  receive  money  on  account  thereof,  is  prima/aeie  evidence  that 
the  depositary  is  authorized  to  act  generally  in  rehition  to  them. 

If  Creditor  Receives  Promissory  Notes  upon  Agreement  specially  en- 
tered  into,  by  which  he  was  not  to  sue  upon  them,  but  was  to  collect  them 
in  another  way,  he  must,  with  regard  to  all  parties  without  notice  of  the 
extent  of  his  power,  be  regarded  as  the  general  holder,  and  notice  to  sue 
upon  the  notes  may  be  given  to  him. 

If  Surety  Notifies  Holder  of  Promissory  Notes,  to  Whom  They  have 
BEEN  Pledged  as  collateral  security,  that  he  signed  said  notes  as  surety, 
and  requires  him  to  bring  suit  against  his  principal,  it  seems  that  this 
would  be  a  substantial  complianoe  with  the  statute.  The  holder  may 
waive  notice  in  writing.  If  the  notice  does  not  oomply  with  the  require* 
ments  of  the  statute,  it  would  be  good  at  common  law,  when  oonnecteil 
with  proof  showing  failure  to  sue,  and  damage  to  the  surety  resulting 
therefrom. 

AsBUiiPsiT  against  James  C.  Harrell  and  Joseph  Pickens  by 
the  administrator  of  David  Yarborough,  brought,  as  is  alleged, 
''  to  recover  the  amount  of  thirteen  promissory  notes,  made  by 
the  defendants  and  one  John  tleed,  the  sixteenth  day  of  Jan- 
uary, 1843,  and  payable  one  year  after  date  to  L.  A.Weissinger, 
late  executor  of  the  last  "will  and  testament  of  said  David  Yar- 
borough,  in  the  sum  of  forty-five  dollars  each,  vrhioh  notes,  aa 
a  part  of  the  unadministered  assets  of  the  said  Yarborough's 
estate,  were  turned  over  by  said  Weissinger,  as  executor,  to 
plaintiff."  Pickens  pleaded  specially:  1.  That  he  was  surely 
upon  said  notes  for  Harrell,  and  that  in  Februaiy,  1844,  ha 
gave  notice  in  writing  to  L.  A.  Weissinger,  the  executor  of  Yaiv 


Jul  1855.]    Pickens  v.  Yabborouoh's  Adm'b.  729 

boroagli,  of  the  fact  that  he  was  snch  siiretj,  and  requiring  him 
to  bring  suit  upon  said  notes  as  soon  as  the  law  would  permit, 
but  that  Weissinger,  although  he  held  the  office  of  executor  for 
three  years  after  said  notes  were  given^  failed  to  commence  such 
suit;  2.  That  he  gave  to  said  Weissinger  yerbal  notice  to  com* 
mence  such  suit,  but  that  he  had  failed  to  do  so;  and  that  had 
such  suits  been  brought  the  monej  could  have  been  made  out 
of  his  principal;  3.  He  pleaded  that  he  gave  yerbal  notice,  the 
same  as  in  the  first  plea,  notice  in  writing  having  been  waived. 
At  the  trial  defendant  Pickens  introduced  Hugh  Davis  as  a  wit- 
ness, who  testified  substantially  that  he  was  attorney  for  one  Caw- 
thorn  for  the  purpose  of  collecting  a  five-thousand-dollar  note^ 
of  which  he  was  the  holder  and  owner,  made  by  James  C.  Har- 
rell  and  David  Yarborough;  that  he  commenced  suit  upon  said 
note,  and  obtained  judgment  against  Harrell;  that  afterwards 
Yarborough  died,  leaving  his  estate  insolvent;  that  Weissinger 
became  his  executor;  that  the  orphans'  court  rendered  decrees 
in  favor  of  creditors  of  said  estate;  that  witness  presented  his 
note  against  said  estate,  and  a  decree  was  rendered  in  his  favor 
for  one  thousand  one  hundred  dollars,  as  his  percentage  of  the 
assets  of  the  estate.  That  Weissinger,  being  desirous  of  mak- 
ing some  arrangement  with  the  creditors  of  said  estate  by  which 
he  would  be  allowed  some  indulgence,  placed  in  the  hands  of 
witness  the  notes  declared  on  in  this  action,  to  be  held  as  col- 
lateral security-  for  the  payment  of  Cawthom's  decree  in  the 
orphans'  court.  Witness  further  testified  that  Harrell  had  paid 
about  one  thousand  five  hundred  dollars  on  account  of  the  first- 
mentioned  judgment  which  had  not  been  credited  upon  it,  and 
it  was  agreed  between  witness  Harrell  and  said  executor  that 
the  whole  amount  of  said  judgment  should  be  collected  by  exe- 
cution from  said  Harrell  without  regarding  said  credit  of  one 
thousand  five  hundred  dollars;  and  that  enough  of  the  money 
collected  in  the  place  of  said  credit  should  be  applied  in  dis- 
charge of  the  notes  mentioned  in  plaintiff's  declaration  in  satis- 
faction thereof.    The  remaining  facts  appear  from  the  opinion. 

/.  W.  OarroU,  for  the  appellant. 

J.  B.  John,  contra. 

By  Court,  Goldthwaitb,  J.  As  a  decree  had  been  rendered 
against  the  estate  of  Yarborough,  the  representative  of  that 
estate  had  authority  to  pledge  Uie  notes  sued  on  as  collateral 
security  for  its  payment:  Whedtir  v.  Wheeler^  9  Cow.  34.  It  is 
clear  also,  under  our  decisions,  that  where  a  creditor  has  received 


730  PrcKENS  V.  Yabborough's  Adm'r.      [Alabanus 

aotea  as  collateral  security  for  his  debt  unconditionally,  without 
any  instructions  governing  the  course  of  collection,  he  is  bound 
to  take  the  necessary  steps  to  perfect  the  Uability  of  the  parties; 
and  if  the  security  is  lost  or  rendered  unavailable  by  his  neglect, 
Le  must  bear  the  loss:  Russell  v.  Hester^  10  Ala.  535,  and  cases 
there  cited. 

In  the  present  case,  however,  it  is  urged  on  the  part  of  the 
appellee  that  the  same  principle  does  not  apply,  for  the  reason 
that  the  party  who  received  iJie  notes  had  not  authority  to  sue, 
but  was  by  his  agreement  confined  to  a  particular  mode  of  collec- 
tion. We  think  the  evidence  as  set  forth  in  the  record  leaves  this 
question  in  some  doubt;  but  conceding  that  Davis  received  the 
notes  simply  as  a  deposit  or  pledge  to  secure  the  payment  of  the 
decree,  and  without  authority  to  sue,  we  still  think  the  notice 
was  properly  given  to  him.  WeissiHger  was,  in  law,  the  owner 
of  the  notes.  If  he  deposited  them  in  the  hands  of  a  third  party 
to  secure  the  payment  of  a  decree  which  had  been  rendered 
against  him  in  his  representative  capacity,  retaining  the  power 
of  control  and  direction  so  far  as  suit  was  concerned,  the  parfy 
in  whose  hands  they  were  placed  must,  in  law,  be  regarded  as 
his  agent  to  receive  the  money  due  upon  the  notes.  The  pos- 
session of  the  notes  by  Davis,  with  the  consent  of  the  owner 
and  the  authority  to  receive  the  money,  was  prima  facU  evidence 
that  he  was  authorized  to  act  generally  in  relation  to  them:  Eirich 
V.  Johnson,  6  Mass.  196.  Were  the  rule  otherwise,  it  would  in 
many  cases  operate  as  a  fraud.  If  Davis,  when  the  notice  was 
given  him,  had  explained  the  extent  of  his  powers,  imder  the 
aspect  in  which  we  are  considering  it,  it  is  possible  that  the  case 
might  be  different;  but  the  record  does  not  advise  us  that  such 
was  the  case.  Davis  states  in  his  evidence  that  after  the  notice 
had  been  given  he  informed  the  agent  of  Pickens  that  his  prin- 
cipal need  give  himself  no  further,  trouble  about  the  notes,  as 
an  arrangement  had  been  made  by  which  they  would  be  paid 
without  resorting  to  him  for  the  money;  but  from  this  testimony 
we  would  not  be  warranted  to  infer,  as  a  l^gal  conclusion,  that 
the  extent  of  the  authority  of  Davis  in  relation  to  the  notes  was 
made  known. 

Our  conclusions  are  briefly  these:  if  a  debtor  deposits  notes 
unconditionally  with  a  creditor  as  security  for  a  debt,  he  thereby 
gives  to  the  latter  the  control  and  direction  so  far  as  their 
collection  is  concerned,  and  it  then  becomes  the  creditor's  duty 
to  take  all  necessary  measures  to  prevent  the  discharge  of  any 
of  the  parties  to  the  notes  received  by  him.    If  the  creditor  re- 


Jan.  1855.]    Pickens  v.  Yarborouoh's  Adm'b  781 

ceives  the  paper  nnder  a  special  agreement,  by  which  he  is  not 
to  sue,  but  to  collect  in  any  other  mode,  he  must,  as  to  all  par- 
ties without  notice  of  the  extent  of  his  powers,  be  regarded  as 
the  general  holder;  and  in  either  aspect,  upon  the  facts  as  dis- 
closed by  the  record,  the  notice  may  have  been  properly  given. 
We  say  may,  for  assuming  that  Davis  may  not  have  had  au- 
thority to  sue,  the  court  was  not  warranted  by  the  evidence 
in  drawing  the  conclusion  that  the  extent  of  his  powers  in  this 
respect  was  made  known  to  the  agent  of  the  appellant. 

In  relation  to  the  sufficiency  of  the  notice:  tiie  record  shows 
that  the  agent  of  Pickens  gave  notice  to  Davis  after  he  had  re- 
ceived the  notes  from  Weissinger,  and  while  they  were  in  his 
possession,  that  his  principal  was  the  surety  of  Harrell  upon  them, 
and  to  bring  suit  upon  the  same  against  the  parties  thereto;  and 
this,  in  our  opinion,  would  have  been  sufficient  as  a  statutory 
notice  had  it  been  in  writing.  It  meets  substantially  the  requi- 
sitions of  the  act:  Clay's  Dig.  582,  sec.  6;  ShehariY,  Hampton,  8 
Ala.  942;  and  it  requires  no  argument  to  show  that  the  party  to 
whom  the  notice  is  to  be  given  may  waive  its  being  in  writing. 
If  the  notice,  however,  did  not  fully  meet  the  requisitions  of  the 
statute,  it  would  be  good  at  common  law  when  connected  with 
proof  showing  the  failure  to  sue  and  the  damage  to  the  surety 
from  such  failure :  Herbert  v.  Hobba,  8  Stew.  9;  Ooodman  y.  Oriffin^ 
Id.  160;  Bruce  v.  Edwards,  1  Id.  11  [18  Am.  Deo.  83]. 

Judgment  reversed  and  cause  remanded. 


'*  The  holder  of  negotiable  instruments  as  collateral  seonrity,  receiving  the 
•ame  so  as  to  become  a  party  thereto,  is  required  to  demand  payment  of  the 
same  at  maturity,  and  in  case  of  non-payment  to  f^y^  proper  notice  to  charge 
the  parties  liable  thereon.  The  pledgee  having  the  legal  title  to  such  secu- 
rities, no  other  person  can  perform  these  duties;  and  if  by  the  pledgee's  failure 
or  neglect  the  indorsers  or  other  parties  thereto  are  discharged,  he  is  respon- 
sible for  any  loss: "  Colebrooke  on  Collateral  Securities,  sec.  88,  citing  'the 
principal  case  with  a  number  of  others.  It  is  also  cited  in  the  same  work 
at  section  86,  to  the  point  that  the  collection  of  notes  pledged  as  collateral 
may  be  made  the  subject  of  agreement  by  which  they  are  to  be  collected  in  a 
particular  manner. 

One  Who  Takes  Nbootiablx  Kotb  as  Collateral  SaouBiTr  for  preoe> 
dent  debt  is  a  Jwna  Jide  holder  for  a  valuable  consideration,  and  entitled  it 
the  rights  and  immunities  which  that  character  confers:  AUain  v.  Hwrt$kom% 
A7  Am.  Deo.  175. 


78t  MANNDra  tr.  Johnsok.  [Alabama^ 

Manmino  v.  Johnson. 


DBD  Ot  ISWAMt  IS  VOT  VoiD,  BUT  VOIPABLB  05LT. 

At  L4Wy  IsTAXT  VKBD  NOT  Rbtuiib  PuROOAaB  MotfXT  wtuA  he  has  r»- 
oeived,  and  which  there  is  no  evidence  he  has  had  in  hie  poaeiMmon  after 
he  attained  his  majority,  as  a  condition  precedent  to  his  rescinding  or 
avoiding  his  conveyance. 

Tbvb  Rclb  Appiars  to  bb  that  IV  Ibvaitt,  AiTBB  Hb  Abritbs  at  Aob» 
18  Shown  to  bb  Possbsbbd  or  OoBsroBBATiON  Paid  Him,  whether  it  be 
property,  money,  or  ohoees  in  action,  and  either  disposes  of  it  so  that 
he  can  not  restore  it  or  retains  it  for  an  unreaaonable  length  of  time 
after  attaining  his  majority,  this  amounts  to  an  affinnance  of  the  con- 
tract 

AiTKB  Intant  rab  BiBAFFntHBD  R18  Dbbd  AND  Rbootbrxd  Lani>  thereby 
conveyed,  the  purchaser  may  soe  for  and  recover  the  pnrahase  money; 
especially  so  where  the  purchaser  entered  into  the  contract  upon  the 
false  representations  of  the  infant. 

Trbspabb  qfiare  clausum  /regii.    The  opinion  states  the  fsMstSL 

Turner  Reavis^  for  the  appellant 
A*  A.  Coleman,  contra,^ 

By  Court,  Chilton,  C.  J.  It  is  now  the  settled  doctrine  that 
the  deed  of  an  infant  is  not  Toid,  bnt  Toidable  only:  Reeve's 
Dom.  Bel.  250  et  seq.;  Zouch  v.  Par9ons,  3  Bnir.  17M;  B?- 
lioU  V.  Horn,  10  Ala.  348-^54  [44  Am.  Dec.  488};  Weaver  y. 
Jones,  24  Id.  420.  Ordinarily,  it  is  the  priyilege  of  an  infant 
to  rescind  his  contract  at  pleasure;  and  this  without  regard  to 
whether  such  contract  was  a  fair  one  or  not  Tina  general  rule 
is  subject  to  certain  exceptions;  but  these  are  not  inyolved  in 
the  case  before  us,  unless  his  failure  to  return  the  purchase 
money,  which  he  has  received  in  consideration  of  the  sale 
and  conveyance  of  his  land,  deprives  him  of  the  power  of  re- 
scission. 

Upon  this  subject  we  have  carefully  looked  into  the  books,  and 
find  much  conflict  of  authority,  and  without  in  this  place  com- 
menting upon  them,  we  state  as  our  conclusion,  thatwhile  we  fully 
subscribe  to  the  doctrine  that  the  infant  must  use  his  privilege 
as  a  shield  to  defend  himself,  and  not  as  an  offensive  weapon  to 
injure  others,  we  can  not  subscribe  to  the  doctrine  that  he  must 
refund  the  purchase  money  which  he  has  received,  and  which 
there  is  no  evidence  he  has  had  in  his  possession  after  he  at* 
tainedhis  majority,  as  a  condition  precedent  to  his  rescinding  or 
avoiding  his  conveyance  at  law.  We  agree  that  the  strong  cur- 
rent of  authority  is  otherwise  in  a  court  of  equity;  but  we  ex« 


JaiL  1855.]  MANiONa  v.  Johnsov.  788 

press  no  opinion  now  as  to  the  role  that  court  ahould  proceed 
upon  in  such  cases. 

The  effect  of  the  ruling  of  iheprinuuy  court  is  to  torn  this  con- 
veyance into  a  quasi  mortgage,  and  to  allow  the  in&nt  the  mere 
right  of  redeeming  his  land  upon  repayment  of  the  sum  advanced 
to  him.  Buty  we  apprehend,  if  the  parties  had  expressly  con- 
tracted for  that  relation,  the  infant  would  not  have  been  held 
concluded  by  the  mortgage.  Mr.  Coote  in  his  work  on  mort- 
gages, p.  105,  says:  "With  respect  to  infants,  they  are,  of 
course,  incapable  of  executing  a  mortgage  of  their  own  prop- 
erty, or  of  lending  money  on  mortgage;  nor  has  the  guardian 
or  trustee,  nor  even  the  court  of  chancery,  any  power  to  change 
the  nature  of  the  infant's  estate,"  etc. :  1  Powell  on  Mort.  58,  59-. 

When  we  come  to  reason  upon  the  proposition,  however,  it  is 
surrounded  with  difficulty;  for  if  the  infant  can  raise  money  to 
the  whole  value  of  his  estate  by  a  voidable  sale  or  mortgage,  and 
can  only  avoid  the  conveyance  after  refunding,  he  is  furnished 
the  means  of  indulging  habits  of  dissipation  and  prodigality, 
which  in  many  instances  would  doubtless  result  in  squandering 
the  whole  of  the  proceeds,  while  the  purchaser  or  mortgagee 
would  risk  nothing,  the  land  or  estate  of  the  infant  so  sold  or 
mortgaged  furnishing  adequate  security.  On  the  other  hand, 
to  allow  the  infant  to  retain  the  consideration,  and  yet  to  re- 
pudiate or  disaffirm  the  conveyance,  would  tempt  as  well  as  en- 
able him  to  practice  frauds  upon  others.  We  think  the  safe 
rule  should  furnish  a  check  both  upon  the  infant  and  the  party 
contracting  with  him.  That  rule  we  take  to  be  this:  If  the  in- 
fant after  he  arrives  at  age  is  shown  to  be  posooicod  of  the  con- 
sideration paid  him,  whether  it  be  property,  money,  or  choses 
in  action,  and  either  disposes  of  it  so  that  he  can  not  restore  it, 
or  retains  it  for  an  unreasonable  length  of  time  after  attaining  his 
majority,  this  amounts  to  an  affirmance  of  the  contract.  So 
likewise  if  it  be  shown  that  he  has  the  power  to  restore  the  thing 
that  he  received,  he  can  not  be  allowed  to  rescind  without  first 
making  restitution.  But  if ,  as  in  the  case  before  us,  the  con- 
sideration paid  was  money,  and  there  is  no  proof  that  he  was 
possessed  of  the  money  so  obtained,  either  actually  or  con- 
structively, after  he  attained  his  majority,  so  as  to  be  able  to 
restore  it  to  the  purchaser,  the  infant  shall  not  be  required,  in  a 
court  of  law,  to  repay  the  amount  he  received  as  a  prerequisite 
to  an  avoidance  of  his  deed  by  suit  for  the  land.  When  he 
succeeds  in  recovering  the  land,  it  works  the  destruction  of  the 
eontxact,  and  according  to  the  more  modem  authorities,  which 


784  Manninq  u  Johnson.  [Alahftma^ 

we  are  disposed  to  consider  as  correct,  the  purchaser  who  has 
lost  the  land  may  sue  for  and  recoyer  the  money;  and  especiaUy 
would  this  action  lie  in  a  case  like  this,  where  the  purchaser  was 
induced  to  enter  into  the  contract  upon  the  false  representa- 
tions made  by  the  infant  that  he  was  of  full  age,  and  conse- 
quently competent  to  contract.  We  would  not  be  understood 
as  intimating  that  if  the  infant  sought  a  rescission  in  a  court  of 
equity,  he  would  not  be  required  to  refund  the  purchase  money 
whether  he  had  disposed  of  it  or  not  before  he  arrived  at  lawful 
age.  See,  upon  this  subject.  Dart  on  Vendors  and  Purchasers  of 
Beal  Estate,  8;  Chambers  on  Infancy,  412;  1  Fonbl.,  b.  1,  c  3» 
sec.  4,  and  authorities  on  the  briefs  of  counsel. 
Let  the  judgment  be  reversed,  and  the  cause  remanded. 


iKrAMT  Who  DiSAFFiaiis  Ck>irrBAOT,  Execctsd  on  Pabt  of  ma  Adult 
CoNTBACTBS,  MUST  KssTORB  Ck>KsiDSRATioir.  AmoDg  the  many  Texatiou 
qnestloiis  arising  out  of  the  power  given  to  infants  to  disaffirm  their  con- 
tracts, a  Tery  important  one  is  that  discussed  in  the  principal  case.  In  view 
of  the  rather  unsettled  condition  of  this  qaestion,  we  know  of  no  way  hj 
which  we  can  so  correctly  present  the  law  relating  thereto  as  by  making 
somewhat  copious  quotations  from  the  works  of  authors  of  known  authority 
and  reputation.  Mr.  Parsons  says:  "When  goods  not  necessaries  are  sold 
to  an  infant,  without  fraudulent  representations  by  him,  with  a  knowledge 
by  the  seller  of  his  Infancy,  and  the  infant  refuses  to  pay  for  them,  and  also 
refuses  to  return  the  goods,  although  they  are  within  his  possession  and  con- 
trol, some  question  exists  as  to  the  rights  of  the  seller.  Some  authorities 
support  the  doctrine  that  he  is  remediless,  regarding  the  incapacity  of  the 
infant  as  his  defense.  But  it  seems  unreasonable  and  unjust  to  s&y  that  the 
infant  may  refuse  to  pay  for  the  goods  without  affecting  the  validity  of  the 
sale  to  him.  It  should  seem  enough  if  tlie  infant  has  the  power  of  rescind- 
ing the  sale.  This  is  an  adequate  protection;  and  if  the  goods  are  out  of  his 
possession  when  the  sale  is  rescinded,  the  seller  may  be  wholly  without 
remedy.  But  when  the  sale  is  rescinded,  the  property  in  the  goods  should 
revest  in  the  seller,  so  far,  at  least,  that  if  he  finds  them  in  the  possession  of 
the  infant  he  may  peaceably  retake  them  as  his  own;  and  if  he  demands 
them,  the  refusal  of  the  infant  to  deliver  them  would  seem  to  be  a  tort  wholly 
independent  of  the  contract,  on  which  trover  might  be  maintained;"  1  Pftr- 
aons  on  Cont.,  7th  cd.,  319.  And  the  same  writer  says,  at  page  322:  '*If  the 
infant  disaffirms  a  sale  that  he  has  made,  and  reclaims  the  property  he  sold,  it 
aeems  now  quite  well  settled  that  he  must  return  the  purchase  money."  The 
learned  Chancellor  Kent,  while  discussing  the  terms  upon  which  an  infant 
may  disaffirm  his  contract,  continues:  "On  the  other  hand,  if  he  avoids  an 
executed  contract  when  he  comes  of  age,  on  the  ground  of  infancy,  he  must 
restore  the  consideration  which  he  had  received.  The  privilege  of  in&mcy  is 
to  be  used  as  a  shield,  and  not  as  a  sword.  He  can  not  have  the  benefit  of 
the  contract  on  oue  side,  without  returning  the  equivalent  on  the  other:"  2 
Kent's  Com.  2^1. 

As  will  be  seen  from  the  extract  from  Parsons  on  Contraota  above  quoted, 
the  authorities  appear  to  draw  a  distinction  between  contracts  in  which  the 
infant  purchases  goods  and  contracts  in  which  he  sella  goods.    Mr.  Parsom 


Jan.  1855.]  liANNixa  v.  JoHNSOH.  735 

ftnd  the  eminent  Judge  Reeve  argae  with  convincing  foroe  the  injustice  of 
permitting  an  infant  to  ref ose  to  pay  for  gooda,  and  at  the  nme  time  to  re- 
tain poeaenion  of  them.  Jadge  Reeve  aaaerta  it  aa  the  law  that  it  can  not  be 
done:  Reeve'a  Dom.  Rel.  244;  Panonaon  Gont.  319.  The  correctneaa  of  thia 
rale  of  law  ia  denied  by  Jadge  Metcalf  in  a  learned  article  on  the  law  of  con- 
tracta  in  20  American  Jnriat,  260,  in  which  that  eminent  jurist  favors  the 
proposition  of  Parsons  and  Eent»  that  an  infant  who  haa  sold  articles,  upoi^ 
disaffirming  the  contract  of  sale,  must  return  the  consideration  before  he  caa 
recover  his  goods:  See  alao  Story  on  Cont,  sees.  107,  108.  In  the  case  of 
Badger  v.  Pkhmey^  15  Mass.  359;  S.  C,  8  Am.  Dec  105,  the  court  decide,  aa 
argued  by  Mr.  Parsons  and  Mr.  Reeve,  that  where  goods  are  sold  to  an  in* 
fant  on  a  credit,  and  he  availa  himaelf  of  hia  infancy  to  avoid  (j^ment,  tha 
vendor  may  reclaim  the  goods  as  having  never  paited  with  his  property  in 
them.  This  case  has  been  very  extensively  cited  and  most  generally  relied 
upon  as  an  authority  (without  regard  to  the  distinction  above  mentioned) 
that  whenever  an  infant  disaffirms  a  contract  entered  into  by  him,  he  must 
restore  the  consideration  which  he  has  received.  The  case  of  Bartholomew 
V.  f^nnemortf  17  Barb.  428,  holds  that  if  an  infant  has  executed  a  contract 
on  his  part  by  the  payment  of  money  or  delivery  of  property,  he  can  not  after- 
wards  disaffirm  it,  and  recover  back  the  money  or  claim  a  return  of  tha 
property,  without  restoring  to  the  other  party  the  consideration  received 
from  him.  This  rule  is  rather  broad,  but  it  appears  to  be  warranted  by  tha 
authorities:  See  Roberts  v.  Wxggvn^  1  K.  H.  73;  S.  C,  8  Am.  Dec.  38;  BoqfY. 
Stafford,  7  Cow.  182;  IlambUU  v.  HambUU,  6  N.  H.  339;  Smith  v.  Evans,  ^ 
Humph.  70;  Bigelow  v.  Kinney,  3  Vt.  353;  S.  C,  21  Am.  Dec.  589;  Te^S 
Co.  V.  Pike,  14  Vt.  405;  S.  C,  39  Am.  Dec.  228;  BartleU  v.  CovUs,  15  Oray» 
446;  Carr  v.  Clough,  26  N.  H.  293;  Boody  v.  JleKinney,  23  Me.  525;  Baiiey 
V.  Bamberger,  11  R  Mon.  115;  Cogley  v.  Cushtnan,  16  Minn.  397;  Cummingsy^ 
PoufeU,  8  Tex.  03;  JlUlyer  v.  BenneU,  3  Edw.  Ch.  222;  Price  v.  Furman,  27 
Vt.  268;  Buehkky  v.  De  Haven,  97  Pa.  St.  210;  TowU  v.  Dresser,  73  Me.  252L 
In  BartleU  v.  Cowles,  15  Gray,  445,  the  court  say  positively  that  the  only 
terms  upon  which  an  infant  can  disaffirm  a  aale  of  property  (in  thia  case,  cer- 
tain trees)  is  by  restoring  the  money  received  for  them.  An  equally  explicit 
ease  is  Tt^  A  Ch,  v.  Pike,  14  Vt.  405;  S.  C,  39  Am.  Dec  228,  where  the 
court  said:  "  But  thia  is  a  case  where,  in  effect,  the  contract  has  been  exe- 
cuted by  both  parties.  It  is  well  settled  that  if  an  infant  has  executed  tha- 
contract  on  his  part,  by  the  payment  of  money  or  the  delivery  of  property* 
he  can  not  disaffirm  the  contract  and  recover  what  he  has  paid  without  re- 
storing to  the  other  party  what  he  has  received  from  him."  The  court,  in 
Cummings  v.  PoweU,  8  Tex.  80-93,  use  the  following  strong  language:  '* An- 
other ground  which  might  have  been  taken  in  support  of  the  demurrer  ia 
this,  that  there  was  no  offer  on  the  part  of  the  plidntiffs  to  restore  the  pur- 
fhase  money  which  they  had  received  from  the  defendant  Powell  at  the  aale. 
This  is  the  rule  under  the  laws  of  Spain,  and  it  has  received  the  sanction  of 
the  courts  of  some  of  the  states,  eminent  for  their  wisdom  and  authority. 
It  is  characterized  by  honesty,  and  enforces  rectitude  of  conduct  in  transac- 
tions between  individuals;  and  as  a  general  rule,  it  will  be  recognized  and 
enforced  by  this  court."  To  the  same  effect  is  the  language  of  the  supreme 
court  of  Kentucky,  as  expressed  in  the  case  of  Bailey  v.  Bamberger,  11  B. 
Mon.  113b  The  court  say:  **  It  is  laid  down  as  good  law  by  Kent,  and  haa 
been  so  decided  by  several  courts  of  high  authority,  that  if  an  infant  avoida- 
an  executed  contect,  he  must  restore  the  consideration  which  he  had  re- 
ceived; that  the  privilege  of  infancy  is  to  be  used  as  a  shield,  and  not  as  i^ 


786  ILonnNa  u  Johitooh.  [Alabama^ 

•word;  aad  he  can  not  have  the  benefit  on  his  side  of  tlia  contnwi  witiioiit  t»- 
tnnung  the  eqnivBlent  on  the  other.  Hie  rale,  we  tiiink,  ia  fouided  ob 
strict,  impertial  jnetioe,  and  ii  the  Uw  of  this  case.  Infancy  may  and 
ahonid  protect,  bnt  ahoold  not  be  permitted  to  oppreaa  or  injore  otheia. 
The  infant,  as  the  adnlt,  ahonid  be  required  to  act  jnstly.**  So  in  Oorr 
▼.  Claugh,  26  N.  H.  280-203,  the  ooart  aay:  "Bnt  if  the  infant  readnda 
the  contract,  and  aeeka  to  recover  the  article  aold  by  him,  he  maat  restore 
the  property  or  consideration  received  before  he  can  maintain  hia  actian 
for  the  property  aold.  Thia  is  but  even-handed  justice,  and  a  contrary  doc- 
trine would  oftentimes  enable  the  infant  to  use  his  minority  for  the  perpetoa- 
tion  of  groes  frauds.**  An  equally  strong  esse  is  Eoqfy.  Sttfffordy  7  Cow.  179L 
In  the  most  recent  case  which  we  have  been  able  to  find  which  entera  into  a 
discussion  of  this  question,  the  court  seem  to  doubt  the  correctoeaa  of  the 
above  doctrine.  The  court  say:  *'The  defendants  have  endeavored  to  inter- 
pose for  their  protection  the  doctrine  that  where  an  infant  has  executed  a 
contract,  and  has  enjoyed  the  benefit  of  it,  and  afterward,  on  coming  of  age, 
seeks  to  avoid  it,  he  must  first  restore  the  consideration  which  he  received;  that 
he  can  not  have  the  benefit  of  the  one  side  without  restoring  the  equivalent 
on  the  other.  Thia  rule  may  and  certainly  does  apply  in  certain  cases,  bat 
as  a  general  rule  it  is  unsound;  its  application  was  refused  in  Shcao  v.  Boyd^ 
6  Seig.  &  E.  300  [9  Am.  Dec.  368];  and  as  wsa  said  by  Mr.  Justice  Bay- 
lies, in  AheU  v.  IKorren,  4  Vt.  140:  '  If  this  be  true,  then  the  privil^e  of 
infants  is  not  worth  possessing.'"  The  case  oi  Shaw  v.  Bcyd^  tupra^  is  un- 
doubtedly an  authority  for  the  point  to  which  it  iM  cited  in  the  above  opinion. 
The  court  in  this  case  say:  "  Bat  this  is  not  like  those  cases  where  chancery, 
which  can  prescribe  the  conditions  on  which  it  will  interfere,  compels  the 
plaintiff  to  do  equity  before  it  affords  him  relief.  A  court  of  common  law 
can  impose  no  conditions  on  a  party  pursuing  a  legal  right,  and  here  the 
plaintiffs  are  claiming  nothing  from  the  chancery  powers  of  the  court,  bat 
stand  upon  a  legal  title  sufficient  to  enable  them  to  recover.**  The  rale  in 
chancery,  as  laid  down  in  ma^fer  v.  BoMiett,  3  Edw.  Ch.  222,  is  to  the  effect 
that  where  a  party,  on  arriving  at  age,  claims  the  restoration  of  property 
parted  with  while  a  minor,  he  must  restore  on  his  part  what  he  may  have  re- 
oei ved ;  asking  for  equity,  he  must  do  equity.  Squally  positive  is  the  rule  laid 
down  in  SmUh  v.  JEvans,  6  Hamph.  70. 

In  Indiana  it  is  unnecessary  for  the  in&nt,  upon  rescinding,  in  order  to 
maintain  an  action  for  his  consideration,  be  it  money  or  goods,  to  make  a 
tender  to  the  defendant  of  the  property  purchased  by  the  infant.  In  the 
case  of  Carpenter  v.  CarpenUr,  45  Ind.  142,  an  infant  had  traded  a  gelding 
to  the  defendant  for  a  stallion,  and  upon  coming  of  age,  desiring  to  disaffirm 
the  contract,  he  brought  suit  for  the  recovery  of  the  value  of  the  gelding. 
The  defendant  claimed  that  the  stallion  had  deteriorated  in  value  while  in 
the  possession  of  plaintiff,  and  objected  that  in  order  for  plaintiff  to  maintain 
his  action  he  should  return  or  offer  to  return  the  oonsideration  (in  this  case 
the  stallion)  in  as  good  condition  as  received  by  him.  In  passing  upon  this 
objection  the  court  say:  *'Butwe  have  concluded,  upon  looking  into  the 
question,  that  the  plaintiff  was  not  bound  to  make  any  tender  of  the  stallioa 
at  all  before  he  conld  '»«^^"»^«"  his  action.  Upon  the  avoidance  of  the  con- 
tract by  the  plaintiff,  the  case  stood  aa  if  none  had  been  made^  and  the  right 
to  the  possession  of  his  gelding  or  the  value  of  him  became  at  onoe  complete 
and  perfect.  Upon  the  avoidance  of  the  contract,  the  plaintiff  still  having 
the  stallion,  the  defendant  became  without  doubt  entitled  to  him,  whatever 
eondition  he  might  be  in,  but  it  does  not  follow  that  ^  plaintiff  was  bound 


Jan.  1865.]  Manhinq  t;.  Johnsoh.  787 


to  make  a  teader  of  lum  before  bringing  his  action.'*    The  later  oi(w  of 
Whiter.  BramA^Blld.  210,  was  almost  identical  in  fMt,  and  was  decided  in 

the  same  manner. 

In  Pitcher  ▼.  Layeock^  7  Ind.  396,  it  is  dedded  that  in  order  to  disaffirm 
a  conTeyanoe  of  land  made  daring  infancy  it  is  not  necessary  to  return  the 
consideration.  The  oonrt  say  that,  while  it  may  be  true  that  "when  an  in- 
fant goes  into  chancery  sfter  age  to  set  aside  his  conveyance  he  mast  offer  in 
his  bill  to  restore  the  purchase  money,"  this  principle  is  not  applicable  to 
the  case  before  them.  "  When  he  [the  infant]  inTokee  the  aid  of  a  conrt 
of  equity,  he  may  be  required  to  do  equity;  still  he  has  the  right  to  disaffirm 
without  seeking  the  aid  of  any  court.'*  The  departure  made  by  the  Indiana 
courts,  or  perhaps,  more  correctly  speaking,  the  distinction  drawn  by  them, 
will  be  very  clearly  indicated  by  an  extract  from  the  case  of  MUu  v.  lAanqer^ 
man,  24  Id.  385.  The  court  say:  "  The  exception  reserved  npon  the  failure  to 
prove  an  offer  to  return  the  purchase  money  is  not  well  taken.  Where  the 
plaintiff  is  in  the  possession  of  the  property,  and  comes  into  a  court  of  equify 
asking  to  have  some  cloud  removed  from  her  title,  she  must  restore  any  con- 
sideration received  from  the  defendant:  she  must  do  equity.  But  when,  hav- 
ing by  her  own  act  avoided  the  deed,  she  comes  into  a  court  of  law  demand* 
ing  possession  of  property  to  which  she  holds  a  perfect  title,  no  equitable 
conditions  can  be  imposed  upon  her  by  the  court.  She  comes,  not  invoking 
the  aid  of  the  court  to  remove  a  cloud  from  her  title,  but  demanding  posses- 
sion of  property — ^the  title  to  which  she  has  by  her  own  act  rendered  perfect, 
without  assistance  from  the  equitable  power  of  the  court."  See  also  Briffge  v. 
MeCabe,  27  Id.  327.  The  esse  of  Crtemger  v.  Welch,  15  Ohio,  156-105,  also 
holds  *'  that  an  individual  who  would  disaffinn  a  conveyance  made  by  him 
during  infancy  need  not,  as  a  condition  precedent  to  the  disaffirmanoe,  refund 
or  offer  to  refund  the  purchase  money."  Keither  this  case  nor  the  Indiana 
cases  above  cited  provide  or  intimate  what  disposition  ii  to  be  made  of  such 
consideration;  whether  the  infant  is  to  retain  it  permanentiy,  or  if  he  is  to 
refund  it,  at  what  stage  of  the  proceedings  he  ii  to  do  sa 

In  so  far  as  they  intimate  that  the  infant  is  not  required  to  return  the  con- 
sideration in  order  to  effect  a  complete  disaffinnance,  they  appear  to  be  In 
conflict  with  the  weight  of  authority  as  indicated  above.  In  Benham  v.  Bithop, 
9  Conn.  330;  S.  C,  23  Am.  Dec.  358,  the  court,  without  expressing  an  opin- 
ion as  to  whether,  in  a  proper  case,  an  infant  would  not  be  required  to  return 
the  consideration  received  by  him  upon  disaffirming  his  contract,  decide  that 
the  mere  retention  of  the  consideration  received  by  a  minor  in  exchange  for 
his  promissory  note  after  he  comes  of  age  ii  not  a  ratification  of  such  note. 

Infant  is  not  Liabu  fob  Failubb  to  Rstuhn  Considbration  Wboob 
Hb  has  Wastsd  dubino  Infanct.  The  rule  of  the  above  esses,  to  the 
effect  that  when  an  infant  disaffirms  a  contract  he  must  return  the  consider- 
ation which  he  received,  is  subject  to  an  important  qualification,  which  can 
be  best  expressed  in  the  language  of  the  supreme  court  of  Vermont.  The 
court  say:  "A  distinction  is  to  be  observed  between  the  case  of  an  infant  in 
possession  of  such  property  after  age,  and  when  he  has  lest,  sold,  or  de. 
stroyed  the  property  during  his  minority.  In  the  former  case,  if  he  has  put 
the  property  out  of  his.  power,  he  has  ratified  the  contract  and  rendered  it 
obligatory  upon  him;  in  the  latter  case,  the  property  is  to  be  restored  }fit  be 
in  hie  poeeeeekm  and  coniroL  If  the  property  is  not  in  his  hands,  nor  under 
his  control,  that  obligation  ceases.  To  say  that  an  infant  csn  not  rscovwr 
back  his  property  which  he  has  parted  with  under  such  circumstances,  be* 
cause  by  hb  indiscretion  he  has  spent,  consumed,  or  injured  that  which  he 
Am.  Daa  Tol.  LZn— 47 


738  Manninq  v.  Johnson.  [Alahama> 

reoeiTed,  wonld  be  making  his  want  of  discretion  the  means  of  binding  him 
to  all  his  improyident  oontraots,  and  depriye  him  of  that  protectioD  which 
the  law  designed  to  secure  to  him:"  Price  v.  Furman,  27  Vt.  271.  Aa 
equally  strong  case  is  Cfiandler  t.  Simmons,  97  Mass.  508,  where  the  ooort 
hold  that  if  money  paid  to  a  minor  as  the  consideration  for  his  coartyvam 
of  real  estate  has  been  wasted  or  spent  by  him  during  his  minority,  payment 
or  tender  of  the  amount  is  not  necessary  to  enable  him,  or  if  he  is  under 
guardianship,  his  guardian,  to  avoid  the  conveyance.  This  rule  is  very  pos- 
itively asserted  in  iliittard  v.  IFbA(A>r(2.  15Gratt.  329-^1;  FUUv.  //o/^  9K. 
H.  441;  RcbbiM  v.  EcUai^  10  Id.  602;  Boody  v.  McKinney,  23  Me.  517; 
Browner  v.  FraMin^  4  Gill,  463.  Nearly  all  the  cases  hold  the  correctness 
of  this  rule. 

The  cases  of  Oray  v.  Leerinyton,  2  Bosw.  257,  and  Bartholomew  v.  /tnae- 
more,  17  Barb.  429,  however,  appear  to  hold  a  harder  doctrine.  The  foniMr 
decides  that  the  terms  upon  which  an  infant  plaintiff  will  be  allowed  to  re- 
scind a  purchase  of  goods  upon  which  he  has  made  partial  payments  are  a 
restoration  of  the  goods  and  the  payment  of  such  sum  as,  with  the  payments 
made  on  account  of  the  purchase,  equals  the  deterioration  of  the  property  in 
value  caused  by  the  plaintiff's  use  of  it  The  latter  case  was  where  an  in&nt 
purchased  a  horse  of  the  defendant  and  paid  for  him  in  property  which  he 
delivered  to  the  defendant.  He  kept  the  horse  about  one  month,  daring 
which  time,  in  consequence  of  misuse  by  the  infant,  the  value  of  the  hone 
was  greatly  lessened,  and  then  tendered  him  back  to  the  defendant  and  de- 
manded the  property  he  had  delivered  to  the  latter.  The  court  held  that  he 
was  not  entitled  to  recover.  The  court  in  each  of  those  cases  seems  to  have 
been  so  imbued  with  the  idea  that  in  order  to  effectually  rescind  a  contract^ 
an  infant  must  restore  the  consideration  received  by  him;  that  they  failed  to 
observe  the  limitation  to  the  rule  above  stated,  and  which  was  recognised  by 
the  court  in  Price  v.  Furmafij  27  Vt.  268,  which  held  that  if  an  infant  returns 
the  property  which  he  has  purchased  and  avoids  his  contract  respecting  it, 
and  brings  his  action  for  the  recovery  of  its  consideration,  testimony  that 
the  property  returned  has  depreciated  in  value  is  inadmissible,  either  for  the 
purpose  of  defeating  a  recovery  or  in  mitigation  of  damages. 

Where  Intant  Disaffirms  Note  Gitsn  for  Pctrchase  Prick  of  Goods, 
Hm  CAN  NOT  Retain  Goods.  As  a  necessary  consequence  of  the  rule  under 
discussion,  when  an  infant  purchases  property  of  an  adult  and  gives  his  note 
for  the  purchase  money,  and  receives  the  property  into  his  posseesioo,  and 
after  arriving  at  full  age  disaffirms  the  contract  by  a  plea  of  infancy  to  a  suit 
upon  the  note,  the  title  to  the  property  revests  in  the  vendor  or  his  legal 
representative,  and  the  infant  must  restore  the  property:  Strain  v.  Wright,  7 
Ga.  568;  I^Ua  v.  Hail,  9  N.  H.  441;  KUchen  v.  Lee,  11  Paige,  107;  Henry  v.i 
Root,  33  N.  Y.  526. 

Infant  can  not  Avoid  Mortoaoi  Givxn  to  Seourb  Paticxnt  of  Con- 
sideration OF  Deed  to  Him  and  Affirm  Deed.  It  \m  but  particularising 
the  general  rule  to  say  that  it  appears  to  be  well  settled  that  if  an  infant 
receives  a  deed  of  land,  and  executed  a  mortgage  back  to  secure  the  pay« 
ment  of  the  purchase  money,  he  can  not  avoid  the  mortgage  and  a£Brm 
the  deed:  Bichardton  v.  Boright,  9  Vl  368;  Big^ow  v.  Kinney,  3  Id.  353; 
8  C  21  Am.  Dec.  589;  HambleU  v.  Hamhleit,  6  N.  H.  339;  Dana  v.  Ooombe, 
6  GreenL  89;  S.  C.,  19  Am.  Deo.  194;  Cogley  v.  Ouehnum,  16  Mum.  397l 
OUman  v.  Aloah,  3  Sandf.  Ch.  431;  Weed  v.  Beebee,  21  Vt  495;  Heath  v.  Weelt 
28  N.  H.  101. 


Jan.  185&]  McGah  v.  Wjllum&  739 

MgGab  V.  Williams. 

[WAjlabaiu.  468.] 
FaIAB  OB    FRAUDnLXRT    ESFRISBlfTATION  MaDB  BY  OVB    PaBTT    TO  COIT- 

TBAGT,  whtreby  be  makes  gain  to  himself  and  occadonB  loss  to  the  other 
puty,  givee  to  the  defraadcd  party  an  action  for  the  deoeiti  if  the  repre- 
tentationa  are  material  and  relate  to  a  matter  abont  which  the  injared 
party  had  a  right  to  be  informed, 
Pabtt  has  Rxght  to  Kelt  ufon  BEPBKSKNTATioys  or  Tbadesmaii  as  to 
ErrxNT  or  his  8k>ll,  and  as  to  the  length  of  time  which  a  tin  roof 
built  by  bim  would  last  without  leaking;  and  if  he  makes  false  represen- 
tations by  which  he  induces  plaintiff  to  employ  him,  he  can  not  escape 
liability  upon  the  ground  that  his  representations  were  incapable  of  being 
made  good. 

GONCKDIKO  that  W  >BKMBN  ABB  GbN£BALLT  AOBBBO  THAT  TiN  RoOF  OAK 

kot  bb  Madb  Which  will  Last  Twbntt  Ybabs  without  Lkakiko, 
still  it  is  not  palpably  impossible  if  it  be  so  at  alL  Hence  defendant  may 
have  committed  a  fraud  by  agreeing  to  construct  one  of  that  kind,  as 
plaintiff  may  well  haye  reposed  upon  the  presumption  that  the  contractor 
knew  the  completion  of  the  duty  which  he  had  undertaken  was  within  the 
compass  of  his  power. 

Whxbb  Tbadssmak  Agbbxs  to  Put  Tin  Roop,  Which  Hb  Warbants  to 
Last  Twenty  Ybabs,  upon  a  building  built  upon  a  certain  plan,  if  the 
plan  Is  afterwards  changed  the  contract  as  first  made  is  at  an  end;  but  if 
he  agrees  to  put  such  a  roof  upon  a  building  without  specifying  what 
kind,  a  change  in  the  plan  of  the  building  after  the  making  of  the  con- 
tract does  not  affect  his  liability. 

Pabtial  Payment  Madb  by  PLAiNnFr  afteb  Discoyekino  that  Root 
BiriLT  FOB  Him  was  Dbfectiyb  is  not  an  absolute  bar  to  a  recoYery,  nor 
an  estoppel  in  pais,  nor  a  release  or  waiver  of  an  existing  cause  of  action^ 
but  is  a  circumstance  to  be  weighed  by  the  jury,  as  tending  to  show  thai 
no  fraud  was  committed. 

Tbbspass  on  the  case.    The  opinion  suffioienti j  states  the  facts. 
BeUer  and  Barretl,  for  the  appellant. 
Watts,  and  Judge  and  Jackson,  contra. 

By  Oottrty  CmLTOir,  0.  J.  In  Oldham  y.  BenUey,  6  B.  Mon. 
428-431,  the  rule  of  law  is  stated  with  much  accuracy  to  be  that 
a  false  and  fraudulent  representation  made  by  one  party  to  a 
contract,  whereby  he  makes  gain  to  himself  and  occasions  loss 
to  the  other  i>arty,  gives  to  the  defrauded  party  a  cause  of  action 
for  the  deceit;  provided  the  representation  relate  to  a  matter 
deemed  material,  and  as  to  which  the  deceived  party  has  a  right 
to  require  a  promise  from  the  other,  or  to  look  to  him  for  a  true 
representation. 

Let  us  apply  this  rule  to  the  case  before  us.  The  defendants 
followed  the  business  of  putting  on  tin  roofs,  and  it  was  material, 


740  McGab,  v.  WiLLiAxa  [AUhjiaii, 

as  furnishing  a  strong  inducement  for  the  plaintiff  to  employ 
them,  to  be  informed  as  to  the  extent  of  their  skilly  and  the 
length  of  time  which  a  roof  put  on  by  them  would  last  without 
leaking.  The  plaintiff  had  a  right  to  rely  upon  their  rBpresen- 
tations  as  to  these  matters,  for  they  are  supposed  to  be  peculiarly 
within  their  knowledge,  pertaining  to  their  art  or  calling;  and 
if  they  made  false  representations,  whereby  the  plaintiff  was  in- 
duced to  employ  them,  and  have  thus  knowingly  deoeiyed  and 
defrauded  the  plaintiff  by  causing  him  to  believe  that  they  could 
put  on  a  tin  roof  which  would  last  twenty  years  without  leaking, 
we  know  of  no  principle  of  law  which  would  allow  them  to  hold 
on  to  the  gains  from  such  a  transaction,  and  avoid  all  liability 
upon  the  ground  that  the  representation  which  constituted  the 
inducement  for  the  plaintiff  to  part  with  his  money  was  not 
only  false,  but  incapable  of  being  made  good.  If  the  plaintiff 
was  deceived  by  the  false  and  fraudulent  representations  made 
by  the  defendants,  to  his  injury  and  their  gain,  it  would  be  to 
allow  them  to  take  advantage  of  their  own  wrong,  to  permit 
them  to  set  up  the  impracticability  of  making  good  their  repre- 
sentation as  a  reason  for  retaining  such  gain.  "  The  law,"  it 
is  said,  "  will  not  sanction  dishonest  views  and  practioeB  by 
enabling  an  individual  to  acquire  through  the  medium  of  his 
deception  any  right  or  interest: "  Broom's  Leg.  Max.  320. 

While  it  is  certainly  true  that  the  law  will  not  seek  to  compel 
a  man  to  perform  that  which  is  either  vain  or  fruitless,  or  which 
he  can  not  possibly  perform,  at  the  same  time  it  will  not  per- 
mit him  by  false  and  fraudulent  practices  or  assertions  to  obtain 
money  as  the  price  of  a  proffered  good  which  he  can  not  confer. 
The  fraud  and  consequent  injury  constitute  the  wrong  for 
which  the  law  gives  the  remedy;  and  in  this  form  of  action 
regard  can  be  had  to  the  nature  of  the  representation  or  thing 
promised  to  be  done  only  so  far  as  is  necessary  to  determine 
whether  these  essential  requisites  exist,  and  the  quantum  of  the 
damages  sustained. 

If  a  man  contract  with  another  that  he  will  build  a  tower 
which  shall  reach  to  the  moon,  this  would  be  vain,  foolish,  and 
impossible  in  the  nature  of  things.  It  would  create  no  obliga- 
tion, for  the  maxim,  Lexnon  cogit  impasgibilia^  would  apply.  No 
one  having  sufficient  capacity  to  contract  at  all  could  be  de- 
ceived in  a  matter  so  obviously  ridiculous  and  impraetioaUe; 
and  consequently  no  action  of  deceit  would  lie  for  any  BOoh 
false  assurance  or  representation.  But  it  is  very  different  in  a 
ease  like  the  one  before  us,  where  persons  holding  thftmwilfes 


Jan.  1855.]  McGab  v.  WiLLiAMa  741 

ont  to  the  world  as  sUlIed  in  a  particular  branch  of  mechanics 
induce  others  to  incnr  expense  and  part  with  their  money  upon 
false  and  frandulent  assurances  that  their  skill  will  enable  them 
to  accomplish  results  which,  although  hitherto  deemed  unattain- 
able, are  not  manifestly  absurd  and  essentially  impracticable  in 
the  nature  of  things.   Concede  that  workmen  are  generally  agreed 
that  a  tin  roof  can  not  be  made  which  will  last*  twenty  years 
without  leaking,  still  it  is  not  palpably  impossible  if  it  be  so  at 
all.    There  is  nothing  in  the  nature  of  things  which  renders  it 
absurd  or  ridiculous  to  belicTe  that  human  skill  and  ingenuity 
has  attained,  or  may  attain,  to  such  a  result;  hence  there  is  no 
reason  why  the  defendants  could  not  have  committed  a  fraud  or 
made  a  false  warranty  respecting  it.    They  are,  as  we  have  said, 
workmen  supposed  to  be  skilled  in  this  branch  of  business;  and 
however  improbable  the  result  which  they  proposed  to  attain, 
the  plaintiff  might  well  hare  reposed  upon  the  presumption 
that  they  knew  the  completion  of  the  duty  they  had  under- 
taken was  within  the  compass  of  their  power :  Broom's  Leg.  Max. 
121,  and  notes.     We  come,  therefore,  to  the  conclusion  that  the 
court  erred  in  submitting  to  the  jury,  as  a  turning-point  in  the 
cause,  the  question  as  to  the  practicability  of  making  good  their 
assurance  or  representation,  on  the  part  of  defendants,  that  the 
roof  should  last  twenty  years  without  leaking.    The  true  ques- 
tion was  whether  the  representation,  if  made,  was  false,  and 
whether  the  plaintiff  was  deceived  thereby  to  his  injury.     That 
they  promised  more  than  their  skill  would  enable  them  to  per- 
form neither  lessens  the  fraud  nor  in  any  way  mitigates  the  in- 
jury.   We  think  the  court  very  correctly  laid  down  the  law  in 
the  fifth  charge.    If  the  defendants'  representations  or  warranty 
related  to  putting  a  roof  upon  the  building  to  be  erected  after  a 
given  plan,  and  the  plaintiff  caused  a  material  change  to  be  made 
in  the  building,  without  the  consent  of  the  defendants,  thereby 
rendering  it  necessary  to  make  a  material  change  in  the  form  of 
the  roof,  the  plaintiff  must  be  considered  as  having  abandoned  the 
original  contract,  and  could  not  be  allowed  to  hold  the  defend- 
ants bound  by  any  agreement  or  representations  made  with  re- 
spect to  the  original  plan.    If,  on  the  other  hand,  the  agreement 
and  representation  as  to  the  character  of  the  roof  had  no  refer- 
ence to  any  particular  plan  or  form  of  the  roof,  and  the  defend- 
ants proceeded  under  their  contract  without  any  objection  to  the 
alteration  of  the  plan  to  put  the  roof  on  the  building,  then  the 
change,  although  it  might  have  rendered  it  more  difficult  to  cover 
securely,  would  not  affect  the  defendants'  liability. 


V42  Habkness  V,  SejlBS.  [Alfthama, 

The  court  bdow,  we  are  of  opinion,  oommifcted  an  error  in 
giving  the  sixth  charge  as  to  the  effect  of  the  payment.  It  was 
not  an  absolute  bar  to  a  recoyeiy  on  either  count,  but  was  a 
circumstance  to  be  weighed  by  the.juiy  as  tending  to  show  that 
no  fraud  was  committed.  It  was  for  them  to  decide  whether 
the  plaintiff,  or  his  authorized  agent,  with  a  full  knowledge  of 
the  defects,  would  have  completed  the  payment  without  object- 
ing to  the  work,  if  the  defendants  had  fidsely  and  fraudulently 
promised  or  represented  that  the  roof  which  they  would  put  on 
would  last  twenty  years  without  leaking  any. 

This  case  is  distinguishable  from  Gilmer  t.  Ware,  19  Ala.  252, 
cited  by  defendants'  counsel.  Here  the  fraud,  if  any,  and  in- 
jury were  consummated  before  the  payment;  and  to  hold  the 
payment  to  be  a  bar  would  give  it  the  effect  of  releasing  a  right 
of  action  which  had  already  accrued.  In  that  case,  howevw, 
the  contract,  so  far  as  the  purchaser  was  concerned,  was  in- 
choate; and  being  fully  advised  of  the  fraudulent  circumstances 
before  he  completed  the  contract  by  complying  with  his  bid, 
tbe  purchaser  could  not  have  been  deceived,  but  elected  to  take 
the  property  as  it  was  by  paying  for  it;  thus,  as  it  were,  inoor* 
porating  the  alleged  fraudulent  circumstances  into  the  contract. 
The  payment  in  tiiis  case,  if  made  with  a  full  knowledge  of  the 
defects  or  leaks  in  the  roof,  is  at  most  but  evidence  to  be  weighed 
by  the  juiy  tending  to  show  that  no  false  or  fraudulent  repre- 
sentation was  made  to  the  plaintiff's  injury.  It  can  not  operate 
as  an  estoppel  in  pais,  nor  as  a  release  or  waiver  of  an  existing 
cause  of  action:  Huckabee  v.  AJbrUton,  10  Id.  657. 

Let  the  judgment  be  reversed,  and  the  cause  remanded. 

Bice,  J.,  having  been  of  counsel,  did  not  sit  in  this  case. 

Where  One  Makes  False  Representations  to  Another  by  Words  avb 
Actions,  with  intent  to  deceive  him,  and  the  Utter  soffera  damage  in  ooa- 
•eqnence,  an  action  on  the  case  will  lie  in  his  favor,  though  the  defendant 
has  no  interest  in  making  such  representations:  Hari  v.  TaOmadge^  2  Am. 
Dec.  105.  This  rule  is  very  clearly  and  broadly  stated  in  the  note  to  BenUm 
V.  Pmtt,  20  Id.  626,  and  fortified  by  the  citation  of  namerons  anthoritiea 
See  also  Tryon  v.  WhUnuarsh,  85  Id.  339,  and  note;  LobdeU  v.  BtJber,  Id.  358^ 
and  note. 


Habkness  v.  Seabs. 

[96  Alabama,  498.] 
To  Oenebal  Rcle  of  Common  Law  Subjectino  EvEBT!EHiira  Ajuxid  tt 
the  freehold  to  the  law  governing  the  freehold  there 
in  favor  of  fixtures  erected  for  the  purposes  of  tndiw 


Jan.  1855.]  Habekess  v.  SsABa  743 

CoMMOir  Law  ov  BxraLAVB  n  vor  to  bb  TAKxir  nr  All  Rupwib  to 
BB  That  ov  AMuaoA.  Our  anoeston  bronght  with  them  and  adopted 
only  that  portion  whioh  was  applioable  to  their  condition. 

Law  in  Ambbioa  Rkquibbs  that  Ebbotionb  fob  Aobicultitbal  Pub* 
P0SB8,  put  upon  the  land  by  a  tenant,  shonld  receiTe  the  eame  protectbn 
in  favor  of  the  tenant  that  was  extended  by  the  common  law  of  England 
to  fixtarea  made  for  the  pnrpoeea  of  trade. 

8amb  Rulb  as  to  Fixtubbs  Which  Applibd,  uhdbb  Coioidn  Law  of 
England,  between  heir  and  exeoator,  applies  in  America  between  vendor 
and  vendee. 

It  is  Part  of  Common  Law  of  Ambbiga  that  as  bbtwebb  Ybndob  ako 
Vendxb  Statiokabt  MACHiirBBT  by  which  tnming-lathesy  or  any  of 
those  machines  which  arc  portable  and  of  equal  nae  eveiywhere,  are  im- 
pelled most  be  regarded  as  irremovable  fixtores  and  part  of  the  free- 
hold, and  will  pass  by  a  deed  of  the  ground  upon  which  they  are 
erected,  if  they  were  erected  upon  the  ground  by  the  owner  himself  dur- 
ing his  ownership  for  his  own  use,  and  fixed  in  or  to  the  ground,  whether 
erected  for  the  purposes  of  trade  or  agriculture. 

Appeal  from  the  drouit  court  of  Qreene  county.  The  opinion 
Btates  the  facts. 

William  F.  Webb,  for  the  appellant. 
8.  F.  Hale,  contra. 

By  Court,  Bios,  J.  The  exceptions  to  the  action  of  the  court 
below  present  the  question  whether  the  yendor,  after  the  sale 
and  conveyance  of  his  land,  can  lawfully  remoTC  fixtures  erected 
on  it  by  himself  for  his  own  use  during  hiii  ownership,  and  before 
the  sale  and  conveyance,  it  appearing  that  the  fixtures  were 
erected  for  the  purpose  of  assisting  him  in  his  trade,  and  used 
by  him  alone  for  that  purpose.  . 

The  general  rule  of  the  common  law  subjected  everything 
t£Bxed  to  the  freehold  to  the  law  governing  the  freehold.  This 
rule  never  was  universal  nor  inflexible,  nor  without  exceptions. 
It  was  applied  most  rigorously  between  executor  and  heir,  in 
favor  of  the  latter;  vnth  more  liberality  between  tenant  for 
life  or  in  tail,  and  remainderman  or  reversioner,  in  favor  of 
the  former;  and  with  still  greater  generosiiy  between  landlord 
and  tenant.  An  exception  in  favor  of  fixtures  erected  for  the 
purposes  of  trade  seems  to  have  been  almost  as  ancient  as  the 
rule  itself:  Elwea  v.  Maw,  8  East,  88. 

The  common  law  of  England,  however  (as  has  been  well  re* 
marked  by  the  supreme  court  of  the  United  States),  is  not  to  be 
taken  in  all  respects  to  be  that  of  America.  Our  ancestors 
brought  with  them  its  general  principles,  and  claimed  it  as  their 
birthright;  but  they  brought  with  them  and  adopted  only  that 


746  Owen  v.  Slatter.  [Alabama^ 

scribes  her  duties,  and  so  long  as  she  acts  within  the  scope  of 
those  duties  it  would  be  singular  indeed  that  she  should  forfeit 
her  rights  as  an  individual,  merely  by  reason  of  her  haying  prop- 
erly complied  with  the  requirements  of  the  law  in  her  fidndary 
character. 

Such  sales,  when  made  by  commissioners,  axe  ]udi<nal  in  their 
character,  and,  like  sales  under  execution,  leave  the  widow's 
right  to  dower  unaffected.  The  purchaser  is  supposed  to  exam- 
ine the  record,  and  to  know  what  he  is  buying,  and  to  purchase 
with  a  knowledge  that  the  dower  is  yet  an  incumbrance  ujion 
the  land.  The  maxim  caveat  emptor  applies;  and  if  the  pur- 
chaser blindly  bids  off  the  land  without  inquiring  whether  the 
widow  has  relinquished  her  dower,  or  consented  to  a  sale  of  it, 
electing  to  take  a  share  of  the  proceeds  in  lieu  thereof,  it  is  his 
folly,  and  he  has  no  one  to  blame  but  himself:  Perkins^  Ea^rsy. 
Winter's  Heirs,  7  Ala.  855;  Worthingtm  t.  MsBoberts,  9  Id.  297. 
As  to  title  sold,  see  Clay's  Dig.  195, 196,  sec.  18. 

We  are  of  opinion,  therefore,  that  there  was  no  fraud  on  the 
part  of  Mrs.  Owen  in  failing  to  announce  at  the  sale  that  the 
land  was  sold  subject  to  her  dower;  neither  is  she  estopped  from 
setting  up  her  claim  to  dower  by  reason  of  her  silence.  Whether, 
if  she  had  sold  the  land  in  her  fiduciary  character,  and  executed 
a  conveyance,  her  dower  interest  would  not  have  passed  thereby, 
is  a  question  which  may  admit  of  discussion,  and  one  which  it 
is  not  our  purpose  now  to  decide,  as  the  record  before  us  does 
not  involve  it.  The  case.of  Shurts  v.  ThamaSf  8  Pa.  St.  859,  goes 
greatly  beyond  this.  There  the  conveyance  made  under  order  of 
court  was  by  the  widow — the  administratrix — and  purported  to 
convey  the  estate  of  her  husband  and  of  her,  the  administratrix, 
since  his  decease;  held,  that  the  conveyance  was  to  be  referred 
to  her  office,  and  left  her  dower  unaffected. 

2.  It  is  insisted  for  the  defendant  that  the  statute  contem- 
plates the  claim  for  dower  shall  be  made  in  one  application  for 
all  the  lands  which  lie  in  the  county,  and  that  the  vridow  can 
not  make  a  separate  application  for  each  tract.  It  may  be,  when 
the  application  is  made  under  the  statute  to  the  probate  court, 
that  she  would  be  confined  to  a  single  application;  but  the  siat* 
ute  was  not  intended  to  deprive  the  chancery  court  of  its  juris- 
diction, as  it  is  not  taken  away  in  terms.  The  rule  is,  that 
although  the  statute  may  confer  jurisdiction  upon  another  court 
over  subject-matter  of  which  the  chancery  court  had  jurisdic- 
tion, the  jurisdiction  of  the  latter  court  remains  unimpaired 
unless  bv  the  language  of  the  statute  they  are  forbidden  to  pro- 


Jan.  1855.]  Tatlob  v.  Mobbisoit.  747 

oeed  in  such  omob.  We  entertain  no  donbt  of  the  right  of  the 
comphunant  to  proceed  in  equity  in  the  case  before  us;  the 
premiBes  out  of  which  dower  is  churned  being  a  city  lot  on 
which  there  are  improyements,  and  in  which  equitable  dower  (in- 
stead of  one  third  of  the  lands  by  metes  and  bounds)  must  usu- 
ally be  assigned. 

3.  It  appears  that  the  statute  of  limitations  was  passed  on  the 
■erenth  day  of  February,  1843,  and  this  bill  was  filed  on  the 
seventh  of  February,  1863.  In  our  opinion,  the  ten  years  was  not 
completed  when  the  bill  was  filed.  Whateyer  may  be  the  English 
doctrine  upon  this  subject,  it  is  the  practice  of  our  court  to  in- 
clude one  day  and  exclude  the  other,  except  when  the  statute 
requires  so  many  entire  days  to  interyene,  in  which  case  both 
are  excluded:  See  Gamer  d  Nevill  y.  Johnson,  22  Ala.  494-501. 
Such  also  appears  to  be  the  rule  in  New  York:  Fairbanks  y.  Wood, 
17  Wend.  829-331;  Snyder  Y.Warren,  2  Cow.  618-521  [14  Am. 
Dec.  619];  Ex  parte  Dean,  Id.  605, 606,  note  a  [14  Am.  Dec.  521]. 
See  also  Angell  on  Limitations,  45-50,  where  the  authorities  are 
cited. 

The  decree  of  the  chancellor  is  erroneous.  Let  it  be  reyersed 
and  the  cause  remanded. 

Salbs  by  Qbdkr  09  Obphanb'  Coubts  ars  Judicial  Salbb,  and  the  doc- 
trine of  caveat  emptor  applies  thereto:  Sackett  v.  Twining,  67  Am  Deo.  699, 
and  cases  cited  in  note. 

EvFECT  or  ExxonnoN  Sales  or  Husbasd's  Pbofxbtt  upon  the  widow's 
right  of  dower  therein  is  discnssed  in  the  note  to  Den  v.  I^reto,  22  Am.  Deo. 
710.    See  also  OBrien  ▼.  EUioU,  32  Id.  137;  and  Taylorv.  Fowler,  61  Id.  409. 

In  Ck>]fpirnKO  Tims,  Day  of  Act,  from  which  future  time  is  to  be  aaoer^ 
tained,  is  to  be  excluded.  This  rale  applies  to  every  instrament  or  oontraot, 
and  also  to  the  constraction  of  statutes  and  all  proceedings  under  themt 
iredb  ▼.  Hull,  60  Am.  Deo.  249,  and  cases  cited  in  note. 


Tatlob  v.  Mobbibon. 

[»  Alasama,  738.] 

Okm  Suwbtt  Who  has  Obtained  Sbcuritt  fbom  ma  Pbivgipal  Dbbtob  bj 
a  mortgage  must  be  regarded  as  a  trustee  for  the  other,  as  the  mortgage 
inures  to  the  benefit  of  all  the  sureties,  and  he  is  bound  to  the  exercise  of 
the  duties  which  attach  to  that  relation.  If  such  surety  gives  up  such 
security  without  the  consent  of  his  oo-snrety,  he  oan  not  obtain  oontribn* 
tion  from  him. 

RiOBT  or  CoHTBiBunoK  Bmsuvk  from  Natural  Equrrr,  and  whenever  the 
equity  upon  which  the  right  is  based  is  rebutted,  it  can  not  be  enforced. 

AB0TRACT  Charob,  whbn  It  Assbrtb  Corrbot  Legal  pROPoernox,  is  no 
ground  for  reversal  unless  it  tended  to  miilead  the  jury. 


748  Taylor  v.  MoBBisoir.  [Althw—i 

AvniL  from  liie eizemt  ooort  of  OheroiDee ooimlj.  Thecypui- 
ion  Btates  theneecoBniy  faets. 

Matthew  J.  ISirntey,  for  the  appellant 

White  and  Ponone^  contra. 

By  Court,  GoLDTSWAiTB,  J.  This  waaastdibjasorelyagaizut 
his  co-soreiy  for  contribation.  The  record  shows  that  the 
plaintiff  received  from  the  principal  debtor  full  indenmily  bj 
mortgage.  This  mortgage  he  released,  and  receiTed  therefor  a 
promissory  note.  The  mortgage  inuring  to  the  benefit  of  all 
the  sureties,  the  one  who  received  it  must  be  regarded  as  a  trustee 
for  the  other,  and  is  bound  to  the  exercise  of  the  duties  wbich 
attach  to  that  relation:  Theobald  on  Principal  and  Surety,  95, 
98;  Baker  v.  Briggs,  8  Pick.  129  [19  Am.  Dec.  311];  Eaynea  v. 
Wood,  4  Johns.  Gh.  129.  The  security  which  the  plaintiff  re- 
ceived he  had  no  right  to  abandon  or  part  with  without  the  con- 
sent of  the  other  party  who  was  interested  in  it,  for  no  other 
reason  than  that  the  mortgagor  or  his  personal  representative 
objected  to  giving  up  the  property.  The  right  of  contribution 
results  from  natural  equity:  White  y.  Bantes^  21  Ala.  705  [56  Am. 
Dec.  283];  2h/u8  v.  De  Jamette,  26  Id.  280;  and  whenever  the 
equity  upon  which  the  right  is  based  is  rebutted,  it  can  not  be 
enforced.  In  the  case  made  by  the  record  the  surety,  who  is 
claiming  contribution,  is  shown  to  have  received  full  indemnity, 
which  he  has  parted  with  without  cause;  and  having  done  this, 
it  would  be  against  all  equity  to  allow  him  to  call  upon  the  co- 
surety to  bear  the  consequences  of  his  n^lect. 

But  it  is  said  there  was  no  evidence  of  fraud,  and  therefore 
the  charge  of  the  court,  to  the  effect  that  the  plaintiff  was  es- 
topped from  setting  up  the  fraud  to  avoid  the  effect  of  the  deed, 
was  abstract.  We  see  no  evidence  on  the  record  that  the  deed 
was  fraudulent;  but  an  abstract  charge,  when  it  asserts  a  correct 
legal  proposition,  is  no  ground  for  reversal  unless  it  tended  to 
mislead  the  jury:  Hughee  v.  Parker,  1  Port.  139;  Towns  v.  Bid' 
die,  2  Ala.  694;  which  it  could  not  do  in  this  case. 

Judgment  affirmed. 

RiOB,  J.,  having  been  of  counsel,  did  not  sit  in  this  case. 


Action  at  Law  vor  Contribution  from  Go-subxtv  can  only  bi  Sim- 
TAIXF.D  where  a  just  and  equitable  ground  ezuta  therefor,  smoe  the  right  ii 
not  founded  on  the  contract  of  auretyahipb  but  ia  the  reauU  of  a  general  pria* 
dple  of  equity,  which  equalises  burdens  and  benefits,  and  the  common  law 
has  adopted  and  given  effect  to  thisprinoiple;  RuutU  v.  Faitor,  Sl^  Am.  Dea 
631,  and  note. 


Jan.  1865.]  Ellswobth  v.  Tabtt.  749 

SURBTT  OV  InSOLVXNT  DiBTOS  18  EimTLED  TO  OOHTBIBUTIOir  VXOM  HX8  Co- 

BUBBTiss,  and  if  all  are  sol  vent,  each  is  liable  for  his  thaze  of  the  mua  advanced 
by  one  to  relieve  them  of  the  common  borden:  PresUm  v.  PrttUm^  47  Am. 
Deo.  717;  Axktn  v.  Peoy,  63  Id.  684;  WhiU  v.  Bankt,  56  Id.  288. 

Ip  Thbrb  aiu  Siykrai.  Svbitixs  fOB  Samk  Dm,  akd  Pbinoipal  Con* 
TXTS  PBOPiBTr  19  TftusT  TO  OxB  OF  Thxm  to  Indemnify  him,  the  othert 
are  also  entitled  to  the  benefit  of  the  property  to  indemnify  them:  McMahem 
r.IhuHxU,  14  Am  Dec  796:  Broum  v.  Ray,  45  Id.  361;  Iltdl  v.  Cushman^  43 
Id.  562.  In  the  note  to  this  latter  case  the  right  of  one  snrety  to  indemnity 
held  by  hii  oo-enrety  is  diacnaaed  at  length. 


Ellswobth  v.  Tabtt. 

[26  ALABAIfA,  738.] 

Peoprixtoiis  aw  Setskal  Stags  Lines  Forming  Ck>NTnruou8  Lori  of 
Tratsl,  who  employ  a  common  agent  at  each  end  of  aaid  route  to 
reodve  money  and  give  a  through-ticket  over  the  entire  line,  under  an 
agreement  with  each  other  that  each  is  to  receive  his  fare  for  his  part  of 
the  route  out  of  the  money  paid  to  such  common  agent  for  such  through- 
ticket,  do  not  thereby  become  partners  either  iiUer  m  or  as  to  third  per- 
sonsy  so  as  to  render  each  of  them  liable  to  a  person  who  loses  a  trunk 
uponr  any  portion  of  said  route. 

To  Oonstitutx  Pabthership  I2ITKB  Sb  between  Two  OB  MoBB  Pebbonb, 
there  must  be  a  joint  understanding  or  agreement,  the  effect  of  which  \m 
to  make  each  a  participator  in  the  profits  and  lessee.  But  persons  not 
partners  as  between  themselves  may  become  liable  as  such  as  to  third 
persons  by  holding  themselves  out  as  such. 

AoTXON  on  the  case,  for  the  loss  of  a  truok,  against  the  de- 
fendant as  a  common  carrier.  The  only  facts  necessary  to  state 
for  a  proper  understanding  of  the  opinion  are,  that  the  plaintiff, 
in  traveling  from  Mobile  to  Charleston,  at  the  stage-office  in 
Montgomery  purchased  a  through-ticket  to  Charleston.  Aiter 
traveling  by  rail  to  West  Point,  she  took  the  stage  of  defendant 
to  La  Orange.  At  this  place  she  left  the  stage  of  defendant 
and  proceeded  towards  the  next  station  in  a  stage  belonging  to 
Peters  &  Beman.  It  was  while  traveling  between  the  latter 
two  stations  that  plaintiff  discovered  that  she  had  lost  her  trunk. 
At  the  trial  the  evidence  tended  to  show  that  the  said  Peters 
&  Beman's  line  was  separate  from  that  of  defendant;  that  de- 
fendant had  no  interest  in  their  line  of  coaches  and  horses,  and 
they  had  no  interest  in  his  line.  There  was  also  evidence  that 
the  trunk  was  lost  beyond  La  Grange,  upon  the  stage-route  of 
Peters  Sl  Beman.  The  jury  was  charged  by  the  court  "  that  if 
they  believed  from  the  evidence  that  plaintiff  left  Montgomery, 
in  this  state,  for  Charleston,  South  Carolina,  and  traveled  with 


760  Eluswobth  v.  Tabtt.  [Alabama^ 

a  through-tioket,  and  that  defendant  xeoeiTsd  or  was  to  reoeite, 
under  any  contract  or  agreement,  any  part  of  the  money  paid 
for  said  through-ticket  by  phdntiff,  and  that  defendant  was  the 
proprietor  of  any  portion  of  the  route  over  which  plaintiff 
traveled  in  going  to  Charleston,  then  the  defendant  was,  as  to 
the  plaintiff,  a  co-partner  with  the  proprietors  or  owners  of  the 
other  portions  of  the  route;  and  that  if  plaintiff's  trunk  con- 
tained her  baggage,  and  was  lost' on  any  portion  of  the  route 
between  Montgomeiy  and  Charleston,  then  defendant  was  liable 
to  phdntiff  for  the  value  of  the  trunk  and  its  contents."  De- 
fendant excepted  to  this  charge. 

N.  Harris^  for  the  appellant. 

FTo/te,  and  Judge  and  Jackson^  covdra* 

By  Court,  Goldthwaitb,  J.  The  record  shows  that  on  the 
trial  below  the  evidence  established  the  &ot  that  the  plaintiff 
purchased  a  through-ticket  from  Montgomeiy  to  Charleston. 
and  that  over  a  portion  of  the  route  between  those  points  the 
defendant  (Ellsworth)  was  the  proprietor  of  a  line  of  stages; 
and  it  further  shows  that  by  virtue  of  such  ticket  he  reoognized 
the  right  of  the  plaintiff  to  be  carried  as  a  passenger  in  the 
stages  over  his  part  of  the  route.  Upon  this  evidence,  we  regard 
the  charge  of  the  court  as  asserting  the  proposition,  that  if  the 
defendant  was  to  receive  any  portion  of  the  money  paid  for  the 
through-ticket,  it  made  him  a  partner  with  all  the  other  proprie- 
tors along  the  entire  route,  and  rendered  him  responsible  for 
losses  occasioned  by  the  negligence  of  any  one  of  them. 

The  general  rule  is,  that  to  constitute  a  partnership  inter  m 
between  two  or  more,  there  must  be  a  joint  understanding  or 
agreement,  the  effect  of  which  is  to  make  each  a  participator  in 
the  profits  and  losses:  3  Kent's  Com.,  7th  ed.,  20;  Gow  on  Part 
14,  15;  Post  V.  Kimberly,  9  Johns.  496.  But  individuals,  al- 
though not  partners  as  between  themselves,  may  occupy  a  posi- 
tion which  renders  them  liable  to  third  persons  as  such;  as 
where  two  or  more  hold  themselves  out  to  the  public  as  joint 
partners,  and  are  trusted  as  such;  or  where  there  is  a  participa- 
tion in  the  profits  as  principals,  although  by  agreement  between 
themselves  they  are  not  irUer  se  to  be  liable  as  partners:  Bod- 
xoick  V.  Champion,  11  Wend.  672;  Champion  v.  Bostwick^  18  Id. 
176  [31  Am.  Dec.  376].  And  in  some  cases  it  has  been  held 
that  an  agreement  by  which  one  is  to  receive  an  interest  in 
the  profits  by  way  of  compensation  for  his  services  makes 
him  a  partner  as  to  third  persons:  Orace  v.  Smithy  2  W.  Black. 


/an.  186&.]  Ellsworth  v.  Tabtt.  751 

998,  1000;  Ex  parte  JUnolandson,  1  Bose»  8»-91:  £x  parte 
Langdale,  18  Tes.  800;  Dob  v.  Ealsey,  16  Johns.  84  [8  Am. 
Deo.  298].  But  it  is  yerj  questionable  if  the  rule  can  be 
sustained  to  that  extent:  Stoiy  on  Part.,  sees.  86  et  seq. ;  liice  v. 
Austin,  17  Mass.  197;  Musssy  y.  Whitney,  10  Johns.  226;  LoomisY. 
HdrshaU,  12  Conn.  69  [80  Am.  Dec.  596];  7\imer  y.  Bissell,  14 
Pick.  192;  Vanderburgh  y.  Hull,  20  Wend.  70;  Bawlinson  y. 
Clarke,  15  Mee.  &  W.  292. 

The  case  at  bar  comes  up  to  neither  of  these  propositions.  The 
liability  of  the  appellant  ok  a  partner,  by  the  charge  of  the  court, 
was  to  depend  solely  upon  the  fact  of  his  haying  the  right  to  re- 
ceiye  any  portion  of  the  money  paid  for  the  through-ticket 
Suppose  the  different  proprietors  along  the  route  came  to  the 
understanding  to  appoint  a  common  agent  at  each  end  to  receiye 
the  fare  of  each  from  passengers  going  through,  and  to  giye  a 
receipt,  or  through-ticket;  it  is  yery  clear  that  such  an  agree- 
ment would  not  constitute  a  partnership  inter  8^,  or  as  to  third 
persons,  and  yet  each  proprietor  would  haye  the  right  to  receiye 
his  proportion  of  the  fare;  there  would  be  in  such  case  no  com- 
munity of  interest,  either  in  the  property  or  the  profits. 

In  the  case  of  Bostwijcky.  Champion,  11  Wend.  572;  Cham- 
pion y.  Baatwick,  18  Id.  175  [81  Am.  Dec.  876],  the  facts  were, 
that  the  defendants  were  engaged  in  running  a  line  of  stages  from 
TJtica  to  Rochester,  the  entire  route  being  diyided  into  sections; 
the  occupants  of  each  section  proyided  their  own  carriages  and 
horses,  and  employed  their  own  driyers,  and  paid  the  ezx>ense8  of 
their  separate  section,  and  the  tolls  at  the  turnpike  gates;  and 
the  money  receiyed  as  the  fare  of  the  passengers  oyer  any  por- 
tion of  the  line,  after  deducting  such  tolls,  was  diyided  among 
the  occupants  of  the  seyeral  sections,  in  proportion  to  the  num- 
ber of  miles  run  by  each.  Judge  Nelson,  who  deliyered  the 
opinion  of  the  supreme  court,  held  that  the  defendants  were 
partners  as  to  third  persons  on  the  ground  of  community  of 
profits;  that  the  effect  of  the  agreement  was  the  same  *'  as  if  each 
proprietor  had  put  in  a  capital  equal  to  the  yalue  of  their  coaches 
and  horses,  and,  after  deducting  the  expenses  of  running  them 
from  the  aggregate  receipts,  diyided  the  profits; ''  "  that  the  pro- 
ceeds of  the  aggregate  route  were  thrown  into  a  common  fund 
and  diyided."  The  case  was  remoyed  to  the  court  of  errors,  the 
opinion  there  being  placed  upon  the  same  ground  by  Chancellor 
Walworth,  who  concedes  **  that  the  cose  would  be  entirely  differ- 
ent if  each  stage-owner  was  to  receiye  and  retain  the  passage- 
money  earned  on  his  part  of  the  line,  and  sustain  all  the  ex- 


752  MosKLT  V.  Lahx.  [AUhjuiMk 

pensea  thereof,  And  wee  only  to  ect  ee  egant  for  the  othare  m 
receiTing  the  peeeege-money  for  them,  for  the  tmneporteiioii  of 
paaaengera  orer  their  parts  of  the  line;  in  that  case  there  would 
be  no  joint  interest  and  no  liability  to  third  persons  as  partnezs." 
In  the  case  at  bar  there  was  no  commnniiy  of  interest  in  the 
property  of  the  entire  ronte,  so  &r  as  the  record  disdoees;  and 
the  right  of  the  defendant  under  an  agreement  with  the  o&bt 
proprietors  to  receive  his  fare  for  bis  part  of  the  ronte  out  of 
the  money  paid  to  a  common  agent  for  a  through-tidcet  would 
not  make  him  in  any  sense  a  participant  in  the  profits  of  the 
entire  route^  and  for  that  reason,  would  not  render  him  liaUe 
to  third  persons  as  a  partner. 

The  case  of  FairchUd  t.  Slocum^  19  Wend.  829,  relied  on  by 
the  appellee,  has  no  application  whateyer.  There  the  defiendants 
were  common  carriers,  and  their  undertaking  was  to  cany  the 
goods  from  New  York  to  Ogdensburg.  The  contract  which  they 
entered  into  regulated  their  liability,  which  was  not  changed  1^ 
the  fact  that  they  employed  the  vessels  of  other  persons  along  all 
or  any  portion  of  the  route.  If  the  defendant  Ellsworth  had  con- 
tracted to  carry  the  plaintiff  to  Charleston  the  oases  would  have 
been  analogous. 

From  the  views  we  have  expressed,  it  follows  that  the  chaige 
given  by  the  court  was  erroneous,  and  as  the  case  stands,  it 
would  be  premature  to  consider  the  other  questions  raised. 

Judgment  reversed,  and  cause  remanded. 

Havimo  Common  Ixterest  in  Profits  and  Lossxs  of  Businmbb  oonsti- 
tate«  the  persons  having  sach  interest  partners  as  between  themselves:  Or^' 
JUh  V.  Bt^um,  64  Am.  Deo.  64.  To  oonstitate  a  partnership  between  the 
parties,  there  most  be  a  joint  ownership  of  the  funds,  and  an  agreement  to 
participate  in  the  profits  or  losses  of  the  bosiness.  Whether  a  partnership 
inter  $e  exists  between  two  or  more  persons  depends  upon  the  intention  of 
the  parties:  Price  v.  Alexander,  62  Id.  620.  Those  who  hold  tiiemselves  out 
to  the  world  as  partners  in  business  or  trade  are  to  be  so  regarded  quoad  cred- 
itors and  third  persons,  and  the  partnership  may  be  established  hy  any  evi« 
dence  showing  that  they  so  hold  themselves  oat  to  the  pnblio,  and  were  se 
regarded  by  the  trading  community,  although  one  of  them  never  received,  any 
part  of  the  profits  or  sustained  any  of  the  losses  incurred  by  the  firm:  Bmrr 
y.  Byer$,  62  Id.  239.  See,  generally,  note  to  BarikU  ▼.  Jometf  40  Id.  e06; 
AlUnY.  Dwm,  83  Id.  614;  Heron r.  ffali,  S5  Id.  178;  LoomUy.  MmnkA 
30  Id.  608. 


MOSELY  V.   LaKB. 

[27  AXOBAMA,  62.) 
ADMINIHTRATOm  18  BoiTNDTO  Do  KOTHINO  WhiCB  HAS  TlVOBICr  lO  Iv- 

TSKRRI  WITH  PiBFOBKANcs  OF  HIS  Tbust.    If  he  makes  a  profit  by 


June,  1855.]  Moselt  v  Lake.  '      75& 

the  use  of  the  fundi  of  the  estate^  or  by  porchaiiiig  in  the  debts  of  th« 
estate  with  his  own  money,  the  profit  belongs  to  the  estate.  The  policy 
of  the  law  is  to  prevent  him  from  being  placed  in  a  position  which  wonid 
bias  him  against  the  discharge  of  his  dnty, 

ADMIXI8TRAT0R  OAK  NOT  BSTAIN  PBOFITB  WhIGH  HB  MaUS  BT  AoRBB- 

iNG  with  his  co-administrator  that  they  will  bay  for  the  estate  certain 
land  at  the  government-land  sale,  and  by  snch  agreement  causes  him  to 
join  with  him  in  raising  funds  for  that  purpose,  and  chaiges  the  estate 
with  the  expense  of  raising  said  funds,  and  causes  said  co-administrator 
and  an  adult  son  of  deceased  to  remain  away  from  the  sale  by  assuring 
him  that  he  will  purchase  the  land  for  the  estate,  and  who  by  the  same 
assurances  prevents  competition  in  bidding  at  the  sale,  and  then  takes 
the  title  in  his  own  name,  and  soon  after  sells  said  lands  at  a  large  profit. 
Such  acts  on  his  part  amount  to  a  fraud,  against  which  equity  will  relieve. 

Adminxstratob  Who  Makes  BEPRESEirrATioNS  Such  as  Abovb  is  Estoppbd 
to  deny  that  the  purchase  was  made  with  funds  of  the  estate. 

Party  will  not  be  Allowed,  in  Coxtrt  ov  Equity,  to  Shelter  Hihselv 
FROM  Liability  for  Fraud  under  cover  of  a  statute  to  prevent  fraud. 

^EA;iURB  OF  EXTBNT  OF   DeCREB  AGAINST  ADMINISTRATOR  WHO  HAS  MaDB 

Pbofit  by  the  personal  use  of  funds  of  the  estate  in  purchasing  lands 
therewith  and  then  selling  said  lands,  is  the  net  profit  made  out  of  said 
transaction  and  interest  thereon.  The  masner  of  estimating  this  net 
profit  indicated. 
6F.NBFrr  Arising  from  Investsibnt  Made  by  Administrators  for  the 
benefit  of  the  estate,  where  said  estate  is  free  from  debt,  inures  to  the 
benefit  of  the  residuary  legatee. 

This  was  a  bill  in  equity  to  establish  a  resulting  trust.  The 
original  bill  was  filed  in  March,  1847,  by  John  and  William 
Mosely,  and  an  amended  bill  was  filed  four  years  later.  The 
bill  set  out  that  William  Mosely,  father  of  complainants,  died 
in  Alabama  in  1830,  leaving  a  last  will  and  testament,  a  portion 
of  which  is  set  out  in  the  bill.  The  executors  named  in  the 
will  I'efused  to  qualify,  and  letters  of  administration  with  the 
will  annexed  were  granted  to  Isaao  Lane  and  J.  W.  Ghirtb,  the 
former  of  whom  attended  to  most  of  the  business  of  the  estate. 
The  bill  proceeds  and  alleges  "  that  said  Lane  attended  the 
government-land  sales  at  Huntsville  in  July,  1831,  and,  declar- 
ing that  his  object  was  to  buy  the  lands  hereinafter  described 
for  the  estate  of  said  William  Mosely,  did  with  the  means  of 
said  estate  purchase  the  following  lands,  to  wit"  [here  fol- 
lowed a  description  of  the  lands  purchased,  with  the  prices  paid 
therefor].  The  bill  then  goes  on  to  say  that  within  a  year  after 
said  purchase  Lane  sold  said  lands,  pretendingly  as  adminis- 
trator, but  without  an  order  of  court,  and  purchased  them  him- 
self for  about  six  hundred  dollars.  That  afterwards,  in  1832, 
Lane  resold  said  lands  for  between  three  thousand  and  five 
thou&and  dollars.    The  bill  concludes  with  a  prayer  that  Lano 

Aaf.  Dso.  Vol.  LXn— 48 


Tb4  MosELT  V.  Lanbl  [Alabama^ 

be  required  to  aeoount  to  complaioants,  and  for  general  relieL 
Lane,  in  his  answer  to  the  original  and  amended  bills,  denied 
■ubstantiallj  all  the  allegations  contained  therein. 

L.  P.  and  R,  W.  Walher,  for  the  appellants. 

WaUSf  and  Judge  and  Jackson^  contra. 

By  Ck>urt,  Bics,  J.  An  administrator  is  bound  not  to  do  any- 
thing which  has  a  tendency  to  interfere  with  his  duty  in  dis- 
charging  the  trust.  His  office  is  not  conferred  on  him  for  the 
purpose  of  enabling  him  successfully  to  engage  in  intrigues  for 
his  private  benefit.  If  with  the  money  of  the  estate  he  buys 
property,  and  thereby  makes  a  profit,  the  estate  is  entitled  to  it, 
although  the  estate  could  not  possibly  have  been  injured  by  hia 
use  of  the  money.  If  with  his  own  money  he  buys  up  the 
debts  of  the  estate  at  an  under- value,  the  advantage  thus  derived 
does  not  belong  to  him,  but  to  the  estate,  although  before  he 
bought  them  up  the  estate  was  bound  to  pay  the  full  amount  of 
those  debts.  The  just  and  settled  policy  of  the  law  is  to  deter 
him  from  placing  himself  in  a  situation  which  gives  him  a  bias 
against  the  discharge  of  his  duty,  and  to  shield  him  from  temp- 
tation by  destroying  every  allurement  to  faithlessness  or  fraud: 
Montgomery  v.  Oivhan,  24  Ala.  568. 

The  mere  fact  of  his  being  administrator  does  not  per  se  dis- 
able him  as  an  individual  from  buying,  bona  fide,  with  his  own 
money,  property  to  which  the  estate  has  no  right.  But  when 
he  agrees  with  his  co-administrator  that  they  will,  at  the  govern- 
ment-land sales,  buy  certain  lands  for  the  estate;  and  in  compli- 
ance with  that  agreement  procures  him  to  join  in  raising  the 
funds  for  that  purpose;  and  charges  the  estate  with  the  expenses 
of  raising  the  funds;  and  prevents  his  co-administrator,  and  the 
only  adult  son  of  the  decedent,  from  attending  the  land  sales 
by  assuring  them  that  he  will  buy  the  lands  for  the  estate;  and 
at  the  sales  prevents  other  persons  from  bidding  for  them  by 
declaring  that  he  had  come  there  expressly  to  buy  them  for  the 
estate;  and  by  these  means,  and  with  these  funds,  buys  the 
lands  for  a  sum  greatly  below  what  he  otherwise  would  have  had 
to  pay  for  them;  and  takes  the  titles  in  hia  own  name,  and  soon 
afterwards  sells  them  for  large  profits — he  can  not  retain  these 
profits.  His  doing  so,  under  a  claim  that  they  belong  to  him,  is 
a  fraud  against  which  a  court  of  equity  has  power  to  relieve:  1 
Story's  Eq.  Jur.,  sec.  256;  2  Id.,  sees.  781,  1265;  Stor/s  £q. 
PL,  sec.  767;  Oaither  v.  Oaither,  3  Md.  Ch.  158;  Sioeei  v. 
Jacocks^  6  Paige  Ch.  855  [31  Am.  Dec.  252];  Brown  v.  Lkfnch^  1 


Jane,  1856.]  Moselt  t;.  Lane.  loi 

Id.  147;  LiOard  y.  Casey,  2  Bibb,  450;  McDonald  t.  May,  1  Rich. 
£q.  91;  JohMon  y.  Eay^  8  Humph.  142;  Haywood  t.  Enaley,  Id. 
460;  English  y.  Ibmlinson^  Id.  878;  Montgomery  t.  Oivhan,  24 
Ala.  668;  Sioty  on  Agency,  sec.  211;  Barkdew  t.  Tayhr,  8  N. 
J.  Eq.  206;  BeMon  v.  Heathoni,  1  Yon.  &  Coll.  0.  C.  826;  Faw- 
ceU  T.  Whiiekouse,  1  Buss.  &  M.  132,  and  notes;  Lees  t.  NuUall^ 
Id.  63. 

We  think  it  is  sufficiently  proved  that  Lane,  as  the  active  ad- 
ministrator, had  control  of  a  large  amount  of  property  of  the 
estate;  that  he  and  his  co-administrator.  Garth,  knowing  that 
the  estate  in  1881  was  free  from  debt,  and  that  the  cotton  crop 
of  the  estate  of  that  year  would  be  worth  more  than  two  thou- 
sand five  hundred  dollars,  agreed  to  buy  the  lands  described  in 
the  amended  bill  for  the  estate;  that  to  make  this  purchase 
they  drew  the  bill  of  exchange  for  two  thousand  five  hundred 
dollars,  intending  at  the  time  that  its  proceeds  should  be  used 
as  far  as  was  necessary  in  purchasing  said  lands  for  the  estate, 
and  also  intending  that  said  bill  of  exchange  should  be  paid 
out  of  the  property  or  cotton  crop  of  the  estate  over  which  they 
had  control;  that  the  expense  of  getting  the  bill  negotiated 
was  charged  to  the  estate  by  Lane;  that  the  lands  were  bought 
by  Lane,  and  paid  for  out  of  the  proceeds  of  said  bill  accord- 
ing to  their  aforesaid  agreement  and  intention;  that  Lane  did 
make  the  purchase  of  said  lands  at  the  government  sales  in 
July,  1831,  for  the  estate;  that  he,  by  agreement  with  Garth, 
did  take  the  cotton  crop  of  the  estate,  which  was  of  greater  value 
than  said  bill,  and  agreed  to  pay  the  bill,  and  did  pay  the  bill 
after  so  taking  said  cotton  crop;  that  Lane,  by  his  line  of  con- 
duct and  declarations  in  relation  to  said  lands,  did  induce 
Garth  and  young  William  Mosely,  and  others  who  had  and  felt 
an  interest  in  causing  these  lands  to  be  bought  for  the  estate, 
to  believe  that  he  (Lane)  would  attend  the  land  sales  and  buy 
them  for  the  estate  with  the  proceeds  of  said  bill;  that  Lane 
thus  influenced  the  conduct  of  Garth  and  young  William 
Mosely  and  others,  to  the  prejudice  of  the  residuary  legatees; 
that  Lane  at  the  land  sales  declai'ed  he  was  buying  said  lands 
for  the  estate,  and  thus  preyented  competition;  that  by  Lane's 
declarations  before  the  sales,  that  he  would  go  and  buy  the 
lands  for  the  estate.  Garth  and  young  William  Mosely  were  mis- 
led and  prevented  from  taking  other  measures  to  have  the  lands 
bought  for  the  estate;  that  by  such  means,  which  more  fully 
appear  in  the  record.  Lane,  at  the  gOTcmment  sales,  became 
the  purchaser  of  the  lands  at  a  grossly  inadequate  price,  and 


756  MosxLT  V.  Laioe.  [Alabsnuii 

tias  8o  dealt  with  them  since  aa  to  make  laige  profits  out  ol 
them,  which  he  now  claims  as  his  own  property.  Under  all 
the  circumstances  disclosed  in  this  case,  we  hold  that  Lane  is 
estopped,  as  against  the  complainants,  from  saying  that  the 
proceeds  of  said  bill  of  exchange  which  he  used  in  purchasing 
said  lands  at  the  gOTemmeni-land  sales,  in  July,  1831,  were  not 
then  held  and  used  by  him  as  the  funds  of  the  estate.  In  this 
«uit  as  against  Lane  we  must  take  it  as  established  beyond 
denial  by  him  that  said  purchase  of  said  lands  was  made  with 
funds  held  and  used  by  him  at  that  time  as  the  funds  of  the 
estate.  Any  other  construction  would  enable  him  to  consum- 
mate a  fraud.  It  is  but  sheer  justice  to  apply  the  doctrine  of 
estoppel  in  this  case:  Dezell  v.  OdeU,  3  HiU  (N.  Y.),  219  [38 
Am.  Dec.  G28];  1  Greenl.  Ev.,  sees.  27,  207,  208;  Barkdew  t. 
Taylor,  8  N.  J.  Eq.  206;  McDonald  t.  May,  1  Rich.  Eq.  91;  Sweet 
T.  Jacocks,  G  Paige  Ch.  355  [31  Am.  Dec.  252];  2  White  Sl 
Tudor's  Lead.  Cas.,  pt.  1,  pp.  560-562. 

The  case,  thus  viewed,  is  8tripx>ed  of  its  greatest  difficulty. 
^*  It  is  the  ordinary  case  of  a  trust  created  by  one  person  for  the 
benefit  of  another,  without  his  knowledge,  and  accepted  by  such 
^tber  person  upon  being  notified  of  such  trust.  Such  a  trust  is 
not  prohibited  by  statute.  It  belongs  to  what  Chancellor  Kent 
calls  '  that  mysterious  class  of  trusts  arising  or  resulting  by  im- 
plication of  law,'  and  which  the  legislature  have  left  'undefined 
and  untouched.'     Such  trusts  arise  from  the  obvious  intention 

^  of  the  parties,  though  not  expressed  in  the  instrument  with 

M^hich  they  are  connected;  or  they  are  forced  upon  the  conscience 
\y  the  manifest  justice  of  the  case."  "  Such  trusts  must  be 
recognized  and  enforced,  from  the  veiy  necessity  of  the  case,  in 
order  to  prevent  the  grossest  injustice.  A  party  will  not  be 
allowed,  in  a  court  of  equity,  to  shelter  himself  from  responsi- 
bility for  a  fraud,  under  cover  of  a  statute  to  prevent  frauds:" 
Uos/ord  V.  Merwin ,  5  Barb.  41 ;  Benson  v.  Heaihom,  1  You.  &  Coll. 

C  C.  32G;  FaivceUy.  Whitehouae,  1  Buss.  &  M.  132;  PageY.  Page, 

J 8  N.  H.  187;  2  White  &  Tudor's  Lead.  Cas.,  pt.  1,  pp.  560,  561. 

Upon  the  pleadings  and  proofs,  we  think  the  complainants 

were  clearly  entitled  to  a  decree:  Sioeet  v.  Jacocks,  6  Paige  Ch. 

-865  [31  Am.  Dec.  252];  Tomkiea  v.  Reynolds,  17  Ak.  109;  McDan- 
aid  V.  May,  1  Bich.  Eq.  91 ;  and  other  cases  supra.    We  will  now 

.  indicate  to  what  extent  relief  should  be  granted. 

If  after  said  purchase  at  the  land  sales  at  Huntsville,  Lane 

^  settled  with  the  orphans'  court  for  the  entire  value  of  the  cotton 
<;rop  of  the  estate  of  1831,  and  did  not  in  any  manner,  in  his 


June,  1855.]  MasELT  v.  Lakel  *    757* 

settlement,  charge  ite  estate  mth  anything  on  aceotmt  of  said* 
lands,  except  the  expenses  of  getting  said  bill  of  exchange  sent 
to  Nashville  and  negotiated,  then,  in  this  case,  he  ought  not  to 
be  charged  with  the  entire  prices  for  which  he  sold  said  land.«ft. 
at  private  sale,  and  interest  thereon,  but  there  should  be  de-- 
ducted  therefrom  the  amounts  paid  by  Lane  for  said  lands  whilst 
he  was  at  the  land  sales  at  Quntsville,  in  July,  1831,  as  thos^ 
amounts  are  stated  in  his  answer.  In  other  words.  Lane  ought 
to  be  held  liable  for  the  net  profits  made  out  of  said  lands,  and 
interest  thereon.  In  estimating  the  net  profits.  Lane  must  bo> 
held  chargeable  with  the  prices  at  which  he  made  the  last  sales- 
of  said  lands,  whether  he  has  ever  received  those  prices  or  not» 
unless  he  shows  that  they  never  could  have  been  collected;  and 
he  must  be  credited  with  whatever  sum  he  was  compelled  to  pay 
to  get  the  title  to  said  lands,  unless  he  has  heretofore  obtained 
a  credit  therefor.  Interest  must  be  allowed  on  the  balance 
against  him. 

It  appears  that  the  administrators  spoke  of  the  eotton  crop^ 
of  1831  as  the  cotton  crop  of  the  estate.     It  is  evident  that, 
under  the  will,  the  estate  being  wholly  free  from  debt  in  1831,. 
the  cotton  crop  really  belonged  to  the  residuary  legatees,  and 
that  the  administrators  knew  this  to  be  so.     The  expenses  of' 
getting  the  bill  of  exchange  negotiated  were  charged  to  the- 
estate.     This  was  equivalent  to  charging  those  expenses  to  tbe- 
residuary  legatees;  for  thereby  the  residuum  to  which  they  were 
entitled  was  diminished.    These  circumstances  serve  to  show 
that  when  Lane  and  Garth  agreed  to  buy  the  lands  for  tho 
estate,  they  meant  for  the  residuary  legatees,  who  under  the 
will  were  entitled  to  every  portion  of  the  estate  not  specifically 
devised  or  bequeathed.     The  complainants  are  two  of  five  sur- 
viving residuary  legatees;  the  other  three,  who  refused  to  join 
in  prosecuting  the  suit,  ai'e  made  defendants.    The  administrator 
of  the  only  other  residuary  legatee  mentioned  in  the  will  is  made 
a  party  defendant — that  other  legatee  having  died  intestate,  be- 
fore arriving  at  lawful  age,  and  without  issue,  his  share  undeft 
the  residuary  clause  belongs  to  the  five  surviving  legatees^ 
Upon  the  case  as  presented,  the  complainants  are  entitled,  as 
against  Lane,  to  have  the  net  profits  arising  from  the  lands  de- 
scribed in  the  amended  bill,  on  his  resale  of  them,  treated  aa 
part  of  the  estate  of  the  testator;  and  they  are  therefore  entitled- 
to  a  decree  for  two  fifths  of  those  profits  and  interest,  the  profits^ 
to  be  ascertained  as  hereinabove  indicated. 

The  decree  of  the  chancellor  in  this  case  is  reversed*  and  thr 


758     *  BUBDEN  t;.  Stein.  [Alabama, 

eause  remanded  for  forCher  prooeedings  not  inconsistent  'with 
this  opinion.    lAne  most  pay  the  costs  of  this  conrL 

(hri  OBTAnmro,  as  Assumxd  Pbotrctob  or  Cektaut  iLLEOimiATs  Cnib- 
DBXVv  a  oompromiae  in  their  favor,  and  m  the  result  of  such  compromiae  a 
OQOTByaaoe  to  himaelf  of  certain  real  eatate,  can  not  claim  that  the  duldren 
had  no  interest  in  the  proper^,  and  that  he  holds  it  dischai^ged  of  the  tnists 
BwtA  ▼.  JoMckB^  31  Am.  Deo.  253.  One  who  nndertakes  to  act  as  agent  for 
another  can  not  be  permitted  to  aoqnire  the  property  for  his  own  benefit,  and 
on  taking  the  conveyance  in  his  own  name  will  be  adjadged  to  hold  in  trust 
for  his  principal:  Id.  Dedsions  holding  a  similar  doctrine  are  cited  in  the 
note  to  this  case.  Abuse  of  trust  does  not  confer  any  privilege  on  the  guilty 
party,  nor  on  thoee  in  privity  with  him:  Brown  v.  Jokumm,  51  IiV  118-  **A 
trustee  can  not  acquire  interests  in  conflict  witli  those  of  his  eainA  qu€  tmui:** 
Note  to  Beck  ▼.  Uhrkk^  53  Id.  509.  So  a  resulting  trust  is  created  in  fsvor 
of  principal,  in  lands  purchased  by  his  agent  with  money  intrusted  to  him  to 
bo  used  for  another  xmrpoee,  where  the  deed  is  taken  in  the  name  of  the  agent 
or  in  that  of  another  actiDg  for  him:  Mt^aU  v.  Shepherd,  52  Id.  141.  "No 
one  whose  duty  to  another  is  inconsistent  with  his  taking  an  absolute  title  to 
himself  will  be  permitted  to  purchase  for  himself.  For  no  one  can  hold  a 
benefit  acquired  by  fraud  or  a  breach  of  his  duty:**  Parry  on  Tro8ta»  aea  206b 
oiting  a  laige  nnnd)er  of 


BUBDEN  V.   StEIK. 

[37  hlJ^JikUk,  lOi.] 
OoMPLAnrAST  WH08S  TiTLB  18  ClXAB  NEBD  NOT  AlLBQB  19  HIS  BiLL  THAI 

Hb  has  Estabushed  his  Right  at  Law,  or  that  he  has  been  in  peases- 
sion  three  years,  in  order  to  obtain  an  injunction  against  an  upper  riparian 
proprietor  for  diverting  a  large  portion  of  a  stream  of  water  to  complain- 
ant's injury.  This  is  upon  the  ground  that  it  will  prevent  a  multiplicity 
of  suits,  and  that  complainant's  remedy  at  law  would  be  defoctive. 

Iff  Cass  or  Absoluts  Comystancs  or  Land,  No  Rbssbyation  or  Right 
TO  DiYEBT  Watsb  from  a  stream  running  over  said  land  is  to  be  implied 
from  the  fact  that  at  the  time  of  the  conveyance  the  grantor  diverted  a 
portion  of  said  stream  for  use  upon  another  portion  of  his  land.  A 
stranger  who  is  sought  to  be  enjoined  for  diverting  such  stream  can  not 
set  up  such  reservation. 

Law  Implies  Rbssbvation  or  Easbmsnt  bt  Qbantor  only  whsei  Easb- 
MENT  IS  Absolutely  Nbcsssary  to  the  enjoyment  of  the  land  retained; 
as  in  the  case  of  a  way  by  necessity. 

Laches.— ChanobbYi  in  Qbantino  Injunotionb  in  Gasbs  where  the  right 
ii  not  clear  until  established  at  law,  will  refuse  the  exercise  of  its  power 
when  it  appears  that  the  plaintiff  has  been  guilty  of  laches;  but  there  lb  no 
reason  for  the  application  of  this  principle  where  the  right  of  the  plaintiff 
is  clear  and  the  injury  is  of  a  character  which  would  entitle  him  to  call 
upon  the  court  to  interfere,  without  resorting  to  law  in  the  first  instance. 

I>rvERsioN  or  Watsb  or  Creek  in  Violation  or  Right  or  CoMrLAiXANn 
entitles  him  to  an  injunctiont  even  though  he  snffsr  no  aotoal  damage 
thereby. 


June,  1855.]  Burden  v.  Stein.  759 

VoLTms  OF  Watib  Which  Flows  nr  Greek  ik  Wihtib  and  SpBnro  if 
generally  no  criterion  whatever  as  to  the  quantity  of  water  which  flows 
in  the  Bummer  and  falL 

Eminent  Dohatk.— Scpplyiko  Citt  with  Water  is  Pubuc  Use,  within 
the  meaning  of  the  Alabama  conatitotion.  But  the  leasee  of  the  water* 
works  of  the  city  of  Mobile  can  not  divert  the  water  of  a  stream  upon 
which  other  persons  have  riparian  rights,  for  the  purpose  of  supplying 
said  city  with  water,  without  resorting  to  the  exercise  of  eminent  domain. 
To  exercise  such  right,  the  party  must  pursue  the  course  pointed  out  by 
the  statute,  and  make  just  compensation  to  the  owner  for  the  property 
condemned. 

Statute  of  Limitations  of  Six  Years  has  No  Appucation  to  Action 
TO  Enjoin  Diversion  cf  a  stream.  In  this  case  tlie  water  of  the  stream 
is  a  part  of  complainant's  freehold,  and  a  right  to  it  by  prescription  can 
only  bo  acquired  by  the  use  of  it  for  the  same  period  of  time  in  which 
the  statute  bars  an  action  upon  lands,  to  wit,  twenty  years. 

P4RTIES  TO  Injunction  Suit.— The  city  of  Mobile  is  not  a  neceasary  imiiy 
to  a  suit  to  enjoin  the  lessee  of  its  water-works  from  taking  water  from 
a  stream  which  said  city  itself  would  have  had  no  right  to  take.  His 
acts  in  so  doing  were  entii^ly  outside  of  his  lease,  and  as  to  such  acts  he 
can  not  lie  reganled  as  the  lessee  of  said^rity,  and  it  is  not  necessary  that 
it  should  Ijo  l)eforc  the  court. 

Tuis  was  a  bill  in  equity,  filed  by  John  Burden  against  the  de- 
fendant Stein  to  restrain  him  from  diverting  the  waters  of  Three- 
mile  creek  from  complainant's  mill.  The  substantial  allegations 
of  the  bill  are,  that  complainant  is  the  owner  of  the  land  on 
both  sides  of  the  creek,  at  a  point  below  where  defendant  is 
charged  with  diverting  the  water;  that  a  grist-mill  has  been 
maintained  upon  said  land  for  some  fourteen  or  fifteen  years, 
and  that  the  complainant  has  recently  erected  a  mill  nt  said 
point  at  great  cost;  that  the  motive  power  for  said  mills  has 
always  been  the  waters  from  the  creek.  Complainant  charges 
that  defendant,  pretending  to  act  under  authority  of  certain  acts 
of  the  legislature,  has  diverted  the  waters  of  said  creek  to  such 
an  extent  as  to  materially  diminish  the  fiow  of  the  waters  therein 
past  plaintiff's  said  mill,  and  to  cause  him  at  certain  periods  of 
the  year  to  shut  down  said  mill;  that  defendant  is  now  en- 
gaged in  building  a  mill,  pumps,  etc.,  upon  said  creek,  and  that 
their  erection  will  necessitate  the  increase  of  the  volume  of 
water  so  diverted  from  said  stream  in  order  to  run  the  same. 
The  complainant  then  sets  out  his  title.  Defendant  demurred  to 
the  bill,  and  set  up  several  grounds  of  defense,  which  will  suffi- 
ciently appear  from  the  opinion.  Among  other  defenses,  he 
relied  upon  the  fact  that  the  charter  of  the  Mobile  Aqueduct 
Company,  a  coi*poration  which  was  authorized  by  said  charter 
to  divert  the  waters  of  said  stream  for  the  purpose  of  supplying 


760  BuBDEN  V.  Stein.  [Alabama, 

tbe  city  of  Mobile  with  water,  had  become  vested  in  the  citj  of 
Mobile,  and  that  the  privileges  thereunder  had  been  leased  to 
him,  and  that  the  agreement  of  lease  had  been  ratified  bj  the 
legislature.  The  chancellor  sustained  the  demurrer  upon  the 
grounds  discussed  in  the  first  part  of  the  opinion,  and  complain- 
ant  appealed. 

fir.  B.  Sewall,  for  the  appellant. 

F.  S.  Blounl,  for  the  appellee. 

By  Court,  Goldthwatte,  J.  There  are  cases  to  be  found  in 
the  English  books  to  the  efiect  that  chanoeiy  will  not  interfere 
to  quiet  the  possession  by  restraining  a  private  nuisance,  unless 
the  right  of  the  party  has  been  established  at  law,  or  the  party 
has  been  in  possession  for  at  least  three  years:  Brovm's  Case, 
2  Ves.  sen.  414;  Vernon  v.  CUy  of  Dublin,  4  Bro.  P.  C.  128; 
Sapcote  V.  Newport,  Cary,  66.  But  the  doctrine  as  to  the  length  of 
possession,  as  was  said  by  Lord  Htirdwicke  in  the  case  first  cited, 
is  drawn  from  the  statute  as  to  forcible  entries.  It  seems  also 
to  be  the  rule  in  relation  to  cases  of  this  character,  where  the 
title  has  not  been  established'at  law,  and  tlie  works  have  been 
permitted  to  remain  as  long  as  three  years:  Welter  y,  Smeaion, 
1  Cox,  102;  S.  C,  1  Bro.  C.  C.  572;  Beid  v.  Qiff(yrd,  6  Johns. 
Ch.  19.  But  it  is  doubtful  whether  this  doctrine  applies  to 
cases  where  the  plaintiff's  title  is  fully  established  upon  the  face 
of  his  bill :  Beid  v.  Gifford,  1  Hop.  Ch.  416, 418, 419.  However 
this  may  be,  it  has  no  application  in  the  present  case,  for  the 
bill  here  is  not  in  the  nature  of  a  bill  of  peace,  but  an  applica- 
tion for  the  interposition  of  chancery  to  prevent  an  injury;  and 
in  relation  to  the  power  and  propriety  of  the  interference  of  this 
court,  in  such  cases,  where  the  right  of  the  plaintiff  is  clear,  and 
the  injury  of  such  a  character  as  would  not  admit  of  full  repara- 
tion iu  a  court  of  law,  or  of  such  a  nature  that  its  continuance 
would  occasion  a  constantly  recurring  grievance,  which  might 
involve  the  necessity  of  interminable  litigation,  the  law  is,  at  the 
present  day,  well  settled.  In  such  cases  chancery  will,  by  virtue 
of  its  inherent  powers,  based  upon  the  inadequacy  of  the  legal 
tribunals  tc^  afford  full  and  complete  redress,  do  equity,  so  far 
as  its  preventive  powers  will  allow,  by  enjoining  the  wrong-doer 
from  the  continuation  of  his  wrong :  Story's  Eq.  Jur. ,  sec.  925 ,  and 
cases  there  cited.  And  in  no  cases  of  late  years  has  this  power 
been  more  frequently  exerted  than  for  the  purpose  of  averting 
injuries  which  would  result  to  riparian  proprietors  from  tbe  un* 
lawful  diversion  of  the  water  to  which  they  are  entitled:  Stoxy*s 


June,  1855. J  Burden  u  Stein.  7G1 

Eq.Jur.,  sec.  927,  and  oases  there  cited:  Webb  ^.  Poritartd  M/g. 
Co.,  3  Somn.  189. 

The  jurisdiction  of  equity  resting  upon  the  defectiye  powers 
of  the  courts  of  law,  it  follows  that  in  all  this  class  of  cases, 
where  the  title  is  clear,  there  is  no  necessity  for  establishing  tht^ 
right  at  law  in  the  first  instance. 

The  case  nuide  by  the  bill  falls  directly  within  the  principles  to 
which  we  have  adverted.  The  complainant  alleges  that  he  is  a 
riparian  proprietor;  that  he  owns  the  lands  on  both  sides  of  the 
stream,  on  which  he  has  erected  a  valuable  grist-mill,  which  he 
is  at  times  compelled  to  stop  working  from  the  diversion  of  the 
water  by  the  defendant;  and  that  still  greater  injury  will  ensue 
if  he  is  allowed  to  divert  the  water  in  the  quantity  which  the 
additional  works  he  is  erecting  will  enable  him  to  do.  We 
think  that  under  the  rules  which  govern  an  action  at  law,  when 
brought  for  a  wrong  of  this  character,  the  complainant  could 
not,  in  a  just  and  equitable  sense,  obtain  full  reparation  in  such 
an  action;  but  if  it  was  fully  adequate,  as  the  act  is  continuous 
in  its  character,  the  jurisdiction  of  chancery  may  well  be  sup- 
ported on  the  ground  that  the  injury  might  involve  the  neces- 
sity of  a  multiplicity  of  suits. 

From  what  we  have  said,  it  follows  that  there  was  no  necessity 
of  alleging  in  the  present  bill  either  that  the  right  of  the  plaint- 
iff had  been  established  at  law,  or  that  he  had  been  in  posses- 
sion of  the  land  for  three  years;  and  that  the  action  of  the 
court,  holding  that  the  bill  was  defective  for  the  want  of  one  of 
these  allegations,  was  erroneous. 

One  of  the  grounds  taken  on  behalf  of  the  appellee  is,  that 
the  water  now  diverted  by  Stein  was  originally  taken  by  one 
Page,  who  was  the  owner  of  the  land  where  Burden's  mill  now 
stands,  to  supply  a  mill  on  another  tract  of  land  o%vned  by  him; 
and  that  the  conveyance  under  which  Burden  claims,  being 
made  when  the  water  was  so  used,  must  be  held  to  convey  only 
the  water  in  its  diminished  flow  at  that  time.  But  we  can  not 
yield  our  assent  to  this  position.  The  conveyance  is  an  abso- 
lute one,  without  any  reservation;  and  as  the  water  is  as  much 
the  freehold  as  the  soil  over  which  it  flows,  it  must  pass  by  the 
deed,  unless  there  is  some  principle  upon  which  it  can  be  ex- 
cepted. There  are,  it  is  true,  some  easements  in  which  the  law 
implies  a  reservation  in  favor  of  the  grantor,  although  not  ex- 
pressed; but  this  is  only  where  the  easement  is  absolutely  neces- 
sary to  the  enjoyment  of  the  land  retained;  as  where  one  has 
several  distinct  parcels  of  inclosed  land,  and  he  sells  all  but  on» 


762  Burden  v.  Stein.  [Alahama, 

Burrounded  by  tlie  otbers,  and  to  which  he  has  no  way  except 
over  one  of  the  lots  he  has  sold:  there  the  law  creates  the  right 
of  way  as  an  implied  restriction  incident  to  the  grant,  upon  the 
presumption  that  the  grantor  could  not  have  meant  to  depriTe 
himself  of  all  use  of  his  remaining  land:  Packer  y.  Wdsied^  3 
Sid.  89;  Clark  v.  Cogg^,  Cro.  Jac.  170;  DuUon  v.  Tayler,  2 
Lut.  1487;  Ebwton  ▼.  Frearson,  8  T.  R.  50;  Buchby  v.  Co/««,  5 
Taunt.  311;  note  6  to  Pom/ret  v.  Ricrqft,  1  Saund.  323;  3  Kent's 
Com.,  5th  ed.,  421-423.  But  where  there  is  no  such  necessitj, 
the  doctrine  has  no  application,  being  founded  on  that  alone; 
and  in  the  present  case  there  is  not  the  least  pretense  for  ihe 
claim  on  the  part  of  the  appellant,  as  he  does  not  claim  under 
Page,  or  his  grantee,  Anderson,  but  independently  of  them. 

It  is  also  insisted  on -behalf  of  the  appellee,  that  as  the  eTi- 
dence  shows  that  Stein  commenced  his  works  some  years  before 
Burden  filed  his  bill,  it  is  such  laches  as  should  deprive  him  of 
the  right  to  the  interposition  of  equity  in  his  behalf.  It  is  cer- 
tainly true  that  the  court  of  chancery,  in  granting  injunctions  to 
preserve  the  property,  in  cases  where  the  right  is  not  clear  until 
established  at  law,  will  refuse  the  exercise  of  this  power  in  cases 
where  it  is  shown  that  the  plaintiff  has  been  guilty  of  any  im- 
proper delay  in  applying  to  the  court — ^where  there  has  been 
acquiescence,  not  in  the  sense  of  conferring  a  right  upon  another 
party,  but  acquiescence  in  the  sense  of  depriving  him  of  the 
right  to  the  interference  of  a  court  of  equity:  EiJUon  v.  Earl  of 
OranvUle,  Gr.  &  Ph.  283;  Daniell's  Gh.  Pr.l859,  1860;  and  the 
case  of  Birmingham  Canal  Co,  v.  lAoyd,  18  Yes.  515,  means,  as 
we  understand  it,  nothing  more  than  this.  There  can  be  no 
possible  reason  for  the  application  of  the  principle,  where  the 
right  of  the  plaintiff  is  clear,  and  the  injury  of  a  character  which 
would  entitle  him  to  call  upon  the  court  to  interfere  without 
resorting  to  law  in  the  first  instance.  If,  indeed,  the  party  has 
acted  in  such  a  manner  as  would  estop  him  from  the  assertion  of 
his  right — if  he  has  by  his  conduct  induced  the  other  party  to 
alter  his  situation,  under  such  circumstances  as  would  render  it 
inequitable  for  him  to  complain — ^the  case  would  be  different 
But  the  answer  sets  up  no  such  defense,  nor  does  the  evidence 
found  in  the  record  afford  any  reason  to  believe  that,  if  set  up, 
it  could  be  sustained. 

We  consider,  then,  that  the  right  of  the  appellant  is  clear;  that 
by  the  evidence  he  has  established  his  right  as  riparian  propri- 
etor to  the  use  of  the  water  in  its  accustomed  flow,  by  proving 
that  he  is  the  owner  of  the  lands  on  both  sides  of  the  creek,  and 


Jxme,  1855.]  Burden  v.  Stein.  768 

tbat  Stein  has  diverted  the  water  in  pipes  to  the  ciiy  of  Mobile. 
And  this  act,  although  not  attended  with  actual  damage,  if 
clone  in  violation  of  a  right,  was  held  by  Judge  Story,  in  WM> 
T.  Portland  Mfg*  Co.y  8  Sumn.  189,  to  be  a  sufficient  ground 
to  warrant  the  interference  of  a  court  of  equity  by  way  of  in- 
junction. Here,  however,  the  evidence  establishes  that  the  di- 
version of  the  water  was  an  actual  injury  to  the  appellant.  It 
is  tiTie  that  one  of  the  witnesses,  who  measured  the  volume  of 
water  in  the  spring  of  the  year,  found  it  at  that  time  to  be  sixty 
times  greater  than  the  quantity  diverted  by  the  pipes;  and  an* 
other,  who  measured  it  in  January,  states  substantially  the  same 
fact.  But  this  testimony  is  worth  vety  little,  if  anything.  None 
of  the  witnesses  on  the  other  side,  who  prove  the  injury,  pre- 
tend that  at  a  high  stage  of  water  there  is  not  enough  to  sup- 
ply both  the  pipes  and  the  mill;  they  speak  of  the  quantity  di- 
verted at  low  water.  The  creeks  are  generally  full  in  January 
and  the  spring;  and  the  stage  of  water  at  such  times  is  no  cri- 
terion whatever  as  to  the  quantity  of  water  which  flows  in  the 
Bummer  and  fall.  The  witnesses  for  the  appellant  upon  this 
point,  most  of  whom  have  had  peculiar  opportunities,  all  agree 
that  when  the  creek  is  low,  from  one  fourth  to  one  third  of 
the  water  is  taken  off  in  the  pipes,  and  that  the  diversion  of 
this  quantity  is  at  these  times  greatly  injurious  to  the  mill;  and 
the}'  agree,  also,  that  with  the  aid  of  the  works  which  are  in 
process  of  erection,  double  the  quantity  of  water  could  be  taken 
through  the  pipes.  To  be  sure,  the  answer  Asserts  that  no 
greater  quantity  would  in  fact  be  drawn  off  than  is  required 
for  the  use  of  the  city  of  Mobile,  which  the  pipes  already  sup- 
ply; but  we  can  not  shut  our  eyes  to  the  fact  that  the  consump- 
tion might  be  greatly  increased  by  the  reduction  of  the  price 
and  the  growth  of  the  city.  But  we  do  not  regard  this  as  ma- 
teiial.  If  Stein  has  no  right  to  take  the  water,  and  the  diver- 
sion of  it  by  him  works  an  injury  to  another  party  who  is  enti- 
tled to  its  use,  it  is,  as  we  have  seen,  good  ground  for  the 
intei-position  of  a  court  of  equity. 

But  it  is  insisted  in  argument  for  the  appellee,  that  by  virtue 
of  his  lease  from  the  city  of  Mobile,  and  its  ratification  by  the 
legislature.  Acts  1841,  p.  63,  the  act  of  1820,  Toulmin's  Dig.,  p. 
703,  and  the  other  acts  in  relation  to  the  same  subject,  he  is 
unqualifiedly  entitled  to  the  use  of  the  water  for  the  purpose  of 
supplying  the  city  of  Mobile;  and  the  argument  is  attempted  to 
be  rested  on  right  of  eminent  domain.  We  fully  recognize  this 
right  in  the  assumption  and  appropriation  by  the  sovereign  of 


764  Borden  v.  Stein.  [Alabama, 

private  property  for  public  usee;  bat  it  can  only  be  exercised  en 
making  just  compensation  to  the  owner:  Const.,  art  1,  sec. 
13.  We  fally  admit  that  the  affording  to  a  city  or  town  a  sap- 
ply  of  water  is  a  public  use  within  the  meaning'  of  the  constitu- 
tion; but  the  acts  under  which  the  appellee  claims  do  not,  and 
could  not,  confer  upon  him  the  power  to  deprive  other  proprie- 
tors of  the  right  they  have  in  the  water,  which  is  indeed  part  of 
their  freehold. 

This  we  held  in  Stein  r.  Burden^  24  Ala.  130  [60  Am.  Dec. 
453).  Stein  can  obtain  the  right  to  the  water  bj  pursuing  tiie 
course  pointed  out  by  the  statute:  Acts  1841,  p.  6;  bat  until  be 
does  this,  the  rights  of  the  owner  are  not  divested,  and  he  may 
resort  to  any  legal  or  equitable  remedies  which  the  law  affords, 
to  redress  the  injury  or  prevent  its  continuance.  In  relation 
to  the  statute  of  limitations  of  six  years,  it  is  only  necessaiy  to 
observe  that  it  is  no  defense  in  cases  of  this  character.  If  the 
suit  was  at  law,  for  the  temporary  diversion  of  the  water,  it 
might  be  different;  but  when  the  application  is  to  a  court  of 
equity  to  interpose  its  preventive  powers  against  the  continn- 
ance  of  an  unlawful  act,  it  can  not  be  set  up.  The  water,  as 
we  have  said,  is  a  part  of  the  freehold,  and  a  right  to  it  by  pre- 
scription can  only  be  acquired  by  the  use  of  it  for  the  same 
period  of  time  which,  by  the  statute,  bars  an  entry  on  lands, 
which  at  the  time  of  the  filing  of  the  bill  was  twenty  years: 
Clay's  Dig.  827,  sec.  83. 

The  only  remaining  question  is,  whether  the  corporation  of 
the  city  of  Mobile  should  have  been  made  a  party.  It  may  be 
true  that  Stein  is  the  lessee  of  the  corporation,  but  he  can  have 
no  higher  powers  under  the  lease  than  his  lessor.  The  statutes 
which  have  been  referred  to  conferred  no  right  upon  the  cor- 
poration to  divert  the  waters  of  the  Three-mile  creek  without 
making  compensation  to  the  riparian  proprietors.  Jlis  acts,  as 
charged  by  the  bill  and  proved  by  the  testimony,  are  entirely 
outside  of  his  lease;  and  as  to  these  acts,  as  he  can  not  be  re- 
garded as  lessee  of  the  corporation,  it  was  not  necessary  that  it 
should  be  before  the  court. 

Decree  reversed 'and  cause  remanded,  the  appellee  paying  the 
costs  of  this  court. 

EsTADLisiiiNO  Right  at  Law. — To  preveDt  multiplicity  of  suits,  where  oo« 
has  n  right  which  various  persons  may  controvert  in  different  actions,  equity 
will  Yend  its  aid  and  direct  an  issue  to  try  the  right,  and  it  is  no  objection  to 
the  interference  of  equity  in  eucli  case  that  the  party  has  not  established  at 
law  the  light  which  the  bill  seeks  to  quiet:  Morgan  v.  Aloryan^  21  Am.  Deo. 
638.     A  pkiutiff  should  ordinarily  establish  his  right  at  law  before  seeking 


June.  1855.]         Matthews  v.  Douttoitl  765 

relief  in  equity  npon  the  ground  of  the  preventioa  of  a  maltiplioity  of  Buiti; 
but  where  the  parties  are  numerons  and  can  not  be  ascertained,  this  rale  is 
relaxeil:  Vann  v.  ITargeU,  32  Id.  689.  But  an  injunction  against  destrnctive 
trespass  does  not  lie  when  complainant  has  not  established  his  title  at  law 
»ntl  no  irreparable  injury  is  threatened:  Lyerly  v.  Wheeler^  59  Id.  596. 

Wat  B7  Nkobssitt. — ^Where  one  conveys  land  to  which  there  is  no  acoen 
except  over  his  remaining  lands,  or  over  lands  of  a  stranger,  a  right  of  way 
exists  by  necessity  over  such  lands  of  the  grantor:  KimbaU  v.  Cocheeho  R,  R. 
Co, ,  59  Am.  Dec.  387,  and  note  collecting  prior  cases, 

L1ACHE.S. — The  question  of  laches  as  a  bar  to  relief  in  equity  is  discussed  at 
length  in  the  cases  of  Smith  v.  Thompson,  54  Am.  Deo.  126,  and  Weai  ▼. 
Thomion,  Id.  134,  and  in  the  note  to  the  former  case. 

Parallel  Dxcision  with  That  in  Principal  Cam  is  Stein  v.  Burden,  60 
Am.  Dec.  453.  It  was  an  action  between  the  same  parties,  and  in  the  note  to 
that  case  will  be  found  the  prior  cases  in  this  series  upon  the  same  point.  The 
principal  case  is  cited,  and  followed  as  to  the  question  of  riparian  righti 
therein  decided,  in  Stein  v.  Burden^  29  Ala.  134;  see  also  PoUer  y.  Btarden^ 
88  Id.  651. 


^TTHEWS  V.   DOUTHTPT. 

[27  Alabama,  278.] 

After  P&obats  Coubt  has  Dult  Appointed  Competent  Pbbson  Adioni^ 
TRATOB,  it  can  make  no  further  appointment  to  that  office  until  the  oc- 
currence of  one  of  those  events  or  disabilities  which  either  temporarily  or 
permanently  vacate  the  office,  such  as  the  death  of  the  incumbent,  the  re- 
peal of  his  authority,  or  his  resignation.  An  appointment  made  befors 
the  happening  of  any  of  these  contingencies  is  totally  void. 

Where  Duly  Appointed  and  Qualified  Administratrix  has  never  Be- 
8IGNED  NOR  Reported  the  estate  either  solvent  or  insolvent^  a  decree 
rendered  by  the  probate  court  within  eighteen  months  "  that  said  admin- 
istratrix go  hence  discharged  from  further  liability  as  such "  is  totally 
void.  It  does  not  change  her  rights  nor  liabilities,  nor  authorize  the  ap- 
pointment of  an  administrator  de  bonis  non.  If  she  still  retains  assets  of 
said  estate,  she  may  be  proceeded  against  as  though  said  order  had  never 
been  made. 

Ip  Account  Improperly  Filed  and  Allowed  as  Final  Account  is  or  Ant 
Validity  at  All,  it  is  valid  only  as  to  items  therein  mentioned,  and  can 
not  protect  the  administratrix  from  liability  for  other  items. 

This  was  an  appeal  from  the  order  of  the  probate  court  of 
Franklin  county,  dismissing  the  petition  of  A.  C.  Matthews  for 
a  citation  to  defendants  in  error,  to  compel  a  final  settlement  of 
administration.  The  opinion  is  sufficiently  cl^ar  without  any 
additional  statement  of  facts. 

R.  8.  Walkins,  for  the  appellant 

J.  W,  Shepherd,  contra. 

By  Court,  Bice,  J.  The  doctrine  of  the  common  law  in  force 
in  this  state  is,  that  when  the  probate  court  has  granted  letters 


766  Matthsws  v.  Douthitt.  [Alabama^ 

of  adminiBiratioQ  to  a  person  entitled  to  and  capable  of  dis* 
charging  the  trust,  it  can  not  make  any  new  appointment  of  an 
administrator  of  the  same  estate  until  the  occuixence  of  one  of 
those  events  or  disabilities  which,  either  temporarily  or  per- 
petually, vacates  the  office;  as  the  death  or  resignation  of  the 
party,  the  repeal  of  his  authority,  etc.  If  it  makes  any  such 
new  appointment  before  the  occurrence  of  any  one  of  such  events 
or  disabilities,  such  new  appointment  is  totally  void:  OriffUh  v. 
Frazier,  8  Cranch,  9;  Jusiicea  v.  Sdman,  6  Ga.  432. 

Where  an  administratrix  has  been  duly  appointed  by  a  pro- 
bate court  in  this  state,  and  has  qualified  under  such  appoint- 
ment, and  has  ^yrer  resigned,  and  has  not  reported  the  estate 
cither  solvent  or  insolvent,  a  decree  rendered  by  that  court 
within  eighteen  months  from  such  appointment,  **  that  said 
administratrix  go  hence  discharged  from  further  liability  as 
such  administratrix,"  is  utterly  void:  Mticks  v.  Powell^  2  Strobh. 
Eq.  19G.  It  does  not  destroy  or  abridge  her  rights  or  liabilities 
as  administratrix,  nor  authorize  the  appointment  of  an  adminis- 
trator de  bonis  non  of  the  same  estate.  If  she  has  received  assets 
for  which  she  has  not  duly  accounted,  or  which  she  has  not  duly 
administered,  she  may  be  proceeded  against  in  that  couil  pre- 
cisely as  if  no  such  decree  had  ever  been  rendered.  If  since  her 
apjSointment  as  administratrix  she  has  married,  the  proceedings 
ought  to  be  against  her  and  her  husband  as  administrator  and 
administratrix  of  the  estate:  McGwdy  v.  Mabry,  23  Ala.  G72;  2 
Williams  on  Executors,  G32,  G33;  Pistole  v.  Sireei,  5  Port.  G4. 
Whether  that  part  of  the  decree  in  the  present  case  which  con- 
firms and  allows  the  account  of  the  administratrix,  as  shown  in 
the  record,  is  of  any  validity,  we  do  not  now  determine.  If  it  be 
valid  for  any  purpose,  it  can  not  be  conclusive  beyond  the  veiy 
items  mentioned  in  that  account,  and  can  not  protect  her  from 
liability  as  to  all  matters  not  mentioned  in  the  account. 

Tbo  admiuistratiix  in  chief  has  not  been  displaced,  nor  has 
she  resigned.  The  record  does  not  show  anything  which  amounts 
to  a  repeal  of  her  authority,  nor  to  a  bar  to  her  liability  for 
matters  not  mentioned  in  tbo  account  above  referred  to,  even 
if  it  be  conceded  that  she  is  protected  to  the  extent  of  the  items 
mentioned  in  that  account:  Oayle\.  EUioU^lOAla.  264;  Norman 
V.  Norman,  3  Id.  389. 

The  plain  result  from  what  we  have  said  is,  that  the  appoint- 
ment of  the  appellant  as  administrator  de  bonis  non  is  void;  that 
he  has  not  thereby  acquired  any  rights  as  administrator;  and 
that  there  was  no  eiTor  in  dismissing  his  petition. 

The  decree  is  affirmed. 


June,  1855.]      Collier's  Adm'k  v.  Windhah  707 

QuERTioN  OF  Appoiktmknt  OF  AoMiNiSTBATOBS  de  ftoftw  fion  k  discuwed 
»t  great  length  in  the  cue  of  PoUt  v.  Stnilh,  24  Am.  Dec.  859,  and  the  note 
thereto  at  page  379.  In  this  note,  cases  holding  a  similar  doctrine  to  the 
principal  case  are  cited* 

Thb  p]u:ioipal  casb  la  citbd  to  the  point  that  ft  is  essential  to  the  va- 
lidity of  a  grant  of  administration  de  btmiB  nan  that  the  office  shoold  be  vacant 
at  the  time  of  the  appointment  by  the  death,  resignation,  or  removal  of  the 
preceding  administrator,  in  Hambo  v.  WyttUt  32  Ala.  883.    See  also  ''Vnierv 
WiHm$^  66  Id.  173,  and  cases  there  cited. 


CoLLIEB's  AdMINIBTBATOB  v.  WxKDHAM. 

[37  AXJAAMA,  39L] 
EXECUnOTf  IS  NCLLITT  WHEN  ISSUSD  AFTER  DeATB  OF  DSFBITDANT  withoul 

a  revival  of  the  judgment,  except  in  the  case  where  an  tUku  or  pitirief  is 
so  issued  for  the  purpose  of  continuing  a  lien  which  has  been  acquired  by 
a  former  execution  before  his  death,  and  which  has  not  been  lost  by  '*  a 
chasm,"  or  otherwise. 
Ikbemkitt  Bond  Given  to  Sheriff  to  Induce  Him  to  Lett  Void  Exe- 
cution is  itself  void,  and  can  not  be  enforced  in  a  court  of  justice. 

Tms  was  an  action  by  a  BherifT  upon  a  bond  of  indemnity. 
Judgment  was  given  for  defendant  upon  demurrer,  and  plaintiff 
appealed.     The  opinion  states  the  necessaiy  facts, 

William  H,  Walker,  for  the  appellant. 

Bobinson  and  Janes,  contra. 

By  Court,  Rice,  J.  The  general  rule  is,  that  an  execution  is* 
sued  after  the  death  of  the  defendant  therein  named,  without  a 
reyival  of  the  judgment,  is  a  nullity.  An  exception  to  this  rule 
obtains  where  an  alias  or  pluries  is  issued  after  his  death,  to 
continue  a  lien  which  has  been  acquired  by  a  former  execution 
before  his  death,  and  which  has  not  been  lost  by  "  a  chasm,"  or 
otherwise:  Fryer  v.  Dennis,  8  Ala.  254;  Henderson  v.  Oandy,  II 
Id.  431;  EoUoway  v.  Johnson,  7  Id.  GGO;  Stewart  v.  Nuckols,  15 
Id.  226  [50  Am.  Dec.  127]. 

According  to  the  statements  of  the  complaint,  the  execution 
under  which  the  plaintiff  made  the  levy  and  sale,  and  took  the 
bond  here  sued  on,  is  not  within  the  exception,  but  within  the 
general  rule.  It  was  not  issued  to  continue  a  lien,  for  when  it 
issued,  there  was  no  lien.  It  was  no  more  than  mere  waste 
paper,  and  conferred  no  authority  upon  the  plaintiff.  The 
seizure  of  the  property  under  it  was  a  trespass,  and  the  sale  an 
unlawful  act.  The  bond  was  given  to  induce  the  plaintiff,  as 
sheriff,  to  sell  the  property  under  this  void  execution,  and  did 


70S  KntKSEY  V.  JTiKB  [Alabama 


induce  him  BO  to  sell  it;  and  being  thus  given  to  indace  the  sheriff 
to  do  an  unh^wfnl  act,  and  nnder  a  Yoid  execution,  it  is  Toid. 
and  can  not  be  enforced  in  a  court  of  justice:  Benfro  t.  ffeard^ 
14  Ala.  23  [48  Am.  Dec.  82J. 

Although  doubts  may  exist  whether  the  right  of  property  is 
in  a  judgment  debtor,  yet  if  the  process  leiried  on  it  bj  tne 
sheriff  is  Toid,  it  is  not  lawful  for  him  to  take  a  bond  to  indem- 
nify him  for  its  sale  under  such  process;  and  if  in  such  case  he 
takes  such  bond,  he  acquires  no  right  thereby.  "  No  light  can 
be  derived  from  an  unhtwful  act,"  in  favor  of  a  sheriff  who  does 
the  unlawful  act:  Fambro  v.  OanU,  12  Ala.  298. 

Judgment  affirmed. 

ExsounoN  BsAsmo  Tsstb  avtsb  Dxath  or  Dstskdant  ahoold  be 
<|iiaahed  on  motion  of  the  repreeentatiTe  of  the  judgment  debtor,  <ir  of  one 
in  privity  with  him.  Snoh  en  ezecation  ie  not  void,  bat  voidable:  HarrimQ' 
ton  v.  O'ReUljft  48  Am.  Deo.  704.  Scire  faeku  may  be  had  against  penonal 
repreeentativee  where  there  is  only  one  plaintiff  or  defendant,  who  dies 
after  final  judgment  and  before  execution,  but  is  not  necessary  if  executifln 
be  taken  out  in  such  time  that  it  may  be  tested  in  his  life- time:  DiMt  t. 
Taylor,  42  Id.  368.  So  if  a  corporation  expires  after  judgment^  execatioB 
can  no  longer  issue  in  its  name:  Ma§^y.  Siate  Bamk  cf  North  Carolma,  40  Id. 
727. 

If  defendant  in  execution  dies  after  such  execution  has  been  sued  ou^ 
but  before  it  has  been  levied,  the  execution  can  not  proceed,  and  any  sals 
thereafter  made  under  said  execution  is  void:  Leuee  iif  Meuoie^B  Han  t. 
Long,  15  Am.  Deo.  647;  Hanaon  v.  Barnes^  22  Id.  322.  This  subject  is  dis- 
cussed at  some  length  in  the  case  of  HoUJmgmoorik  v.  Horm^  24  Id.  753^  and 
note  thereto. 

The  question  as  to  issuance  of  executions  after  the  death  of  the  defendaiil 
therein  is  discussed  by  Mr.  Freeman  in  his  work  on  exeeutifMis,  at  seetioa 
35.  He  asserts  that  the  doctrine  of  the  principal  case,  as  to  the  eorocntioB 
therein  mentioned,  being  void  instead  of  voidable,  is  sustained  by  the  weight 
of  authority. 

Bond  or  iNDOCNrrT  Givkn  to  Shsbivt  to  Indugx  Him  to  Psbvobm  Act 
IN  Plain  Violatioh  of  hisdnty  is  invalid:  ShotweUy,  HambUn,  55  Am.  Dec. 
83.  This  subject  is  discussed  at  length  in  note  to  Ivet  v.  Jonea,  40  Id.  425; 
see  also  the  case  of  Cumpston  v.  La$nberi^  51  Id.  442»  where  the  court  bold 
that  an  agreement  to  indemnify  for  the  perfonnaaoe  of  an  nnlaw&l  act  is 
void. 


KiBKSEY    V.  FlEE. 

{27  Alabaka,  883.] 
EqUITT  will  RxrUSB  to  InTEBTEBE  to  EnFOBCX  PXBIOBHAirGB  OF  AWAXDi 

when  the  injury  or  damage  which  a  party  will  sustain  by  non-perfom- 
anoe  is  capable  of  being  exactly  measured,  and  oompleta  redress  oai&  be^ 
afiEbrded  at  law. 


June,  1855.]  Eireset  t;.  FiKK.  769 

JuKxaDicnoM  ow  Equxtt  to  Gbast  Bpmaaio  "PwaotauMCM  or  Awibd  n 

NOT  Baxsxd  by  the  fact  that  the  complamaiit  might  BoooeMfolly  main- 
tain an  action  at  law  thereupon.  If  the  reitliot  at  law  oonld  not  give 
him  all  that  it  was  the  object  of  the  award  to  give  him,  eqaity  should 
award  its  specific  performance. 
fikPBCino  Pkrtobmakgi  or  Awabd. — ^Tbe  putles  were  engaged  in  the  tan- 
ning bnslness,  and  disagreeing,  submitted  their  aoooonting  to  arbitra- 
tion. By  the  award  complainant  was  to  receive  one  half  ol  the  skins  in 
the  yard,  one  half  of  the  leather,  and  the  ose  of  one  half  of  the  vats. 
Held,  that  a  court  of  ]&w  could  not  afford  full  compensation,  as  it  conld 
not  look  to  the  profits  he  might  derive  from  his  business,  nor  the  loss  he 
might  sustain  because  of  the  other  party's  failure  to  perform  in  specie. 


Bill  in  equity,  filed  by  Isaao  Eirkeey  against  Harlan  Fike,  to 
enforce  the  specifio  performance  of  an  award  upon  an  aeoooni- 
ing  as  to  their  partnership  accounts.  The  parties  were  partners 
in  the  tanning  business,  and  wishing  to  dissolve,  they  were  un- 
able to  agree  as  to  the  terms  of  such  proposed  dissolution,  and 
concluded  to  leave  the  matter  to  three  arbitrators,  taking  oath 
to  abide  by  their  award.  The  arbitrators  made  their  award  in 
writing,  but  it  not  being  in  complainant's  possession,  upon  his 
recollection  and  upon  the  information  of  one  of  the  arbitrators  he 
states  its  terms  in  his  bill  as  follows:  **  That  Fike  should  make 
a  fair  exhibition  of  eveiything  in  the  tan-yard  up  to  June  1, 
1861,  and  should  divide  all  the  leather  in  tan,  and  all  on  band 
which  was  tanned;  that  he  should  exhibit  his  books,  and  make 
a  fair  and  equal  division  of  the  accounts  due  upon  them;  thafc 
Fike  should  have  the  liberty  of  using  one  half  of  the  vats  in 
the  tan-yard  until  his  contract  should  expire,  and  Eirksey 
should  have  the  other  half."  The  bill  then  proceeds  to  allege 
that  the  defendant  is  violating  the  terms  of  said  award,  and  sets 
out  the  acts  constituting  such  violation.  The  defendant  de- 
murred to  the  bill  for  want  of  equity,  and  the  demuixer  was 
sustained. 

John  F.  Morgan,  for  the  appellanL 

While  and  Farsons,  contra. 

By  Court,  Ck)ijiTHWAiTB,  J.  The  bill  can  not  be  sustained 
under  the  act  of  the  fifth  of  February,  1846,  Acts  1845, 1846, 
17,  as  there  is  no  indebtedness  to  any  specifio  amount  charged, 
nor  any  affidavit  that  any  particular  sum  is  due:  McOown  v. 
Sprague,  28  Ahi.  624.  We  think,  however,  it  can  be  sustained 
for  the  purpose  of  specifically  enforcing  the  award.  It  is  true 
that  if  the  damages  resulting  from  the  failure  of  Fike  to  perform 
were  capable  of  being  exactly  measured,  and  complete  redress 

Am.  Dao.  Vol..  LXU— 49 


770  Ki&KSsr  v.  Fua.  [Alabama 

oonld  be  af&>Tded  at  law,  equity  would  not  inteif ere :  Stozy's  Eq. 
Jar.,  8d  ed.,  sees.  717  a,  718;  Savery  r.  Spence,  13  Ala.  561. 
In  the  present  case  the  bill  charges  the  insolvency  of  Fike,  and 
we  are  by  no  means  certain  that  under  the  special  circumstances 
of  this  case  that  fact  would  not  give  the  compUiinant  the  right 
to  call  upon  a  court  of  equity  to  enforce  the  award  specifically: 
Dolurel  y.  Bothachild,  1  Sim.  &  St«  690.  But  waiving  the  dis- 
cussion of  this  question,  we  are  of  opinion  that  the  jurisdio- 
tion  of  the  court  can  be  sustained  upon  the  award  itself.  To 
bar  the  interference  of  equity,  it  is  not  enough  that  the  party 
might  successfully  maintain  an  action  at  law  upon  the  award. 
The  question  is,  Gould  he  by  a  verdict  obtain  all  that  it  was  the 
object  of  the  award  to  give  him?  If  he  could  not,  then  it 
would  seem  indispensable  to  justice  that  he  should  obtain  it  by 
a  specific  performance.  In  coutracts  for  the  sale  of  stocks  or 
goods,  the  reason  why  equity  will  not,  in  general,  enforce  them 
specifically  is,  that  the  goods  and  stocks  have  usually  a  certain 
marketable  value,  and  the  purchaser  can,  on  the  breach  of  the 
contract,  supply  himself;  and  the  money  he  would  expend  in 
the  purchase  of  the  quantity  contracted  for,  with  interest,  would 
be  given  in  the  way  of  damages  at  law:  Story's  Eq.  Jur.,  sec. 
717.  But  where  there  are  special  circumstances  operating  as  an 
inducement  to  the  contract,  which  a  court  of  law  could  not  look 
at  in  giving  damages,  the  case  would  be  difierent  Thus,  where 
a  ship-carpenter  purchased  a  large  quantity  of  timber  near  his 
yard,  for  the  purpose  of  carrying  on  his  business,  as  the  market 
value  of  such  timber,  difierenUy  situated  with  respect  to  his 
yard,  would  not  fully  comi>en8ate  him,  it  would  be  a  proper 
case  for  specific  performance:  Biixion  v.  Lister,  3  Atk.  884,  385; 
Adderley  v.  Dixon,  1  Sim.  &  St.  607.  So  here,  the  complainant 
was  engaged  in  the  business  of  tanning;  he  was  to  receive  one 
half  of  the  skins  in  the  yard,  as  well  as  of  the  leather,  and  was 
also  to  have  the  use  of  one  half  of  the  vats.  It  is  fair  to  presume 
that  the  award  had  relation  to  his  business,  that  it  contemplated 
his  tanning  the  skins  and  selling  the  leather;  and  although  a  court 
of  law  might  give  him  their  value  and  allow  him  for  the  use  of 
the  vats,  it  could  not  look  to  the  profits  he  might  have  derived 
from  them  in  the  business,  or  the  losses  he  might  sustain  from 
the  failure  of  the  other  party  to  perform  in  specie;  and  thus  he 
could  not  in  a  court  of  law  obtain  full  compensation* 
Decree  reversed  and  cause  remanded. 


Sracnno  Pxrfobmangb  or  Awabd,  made  punnaiit  to  a  volnntuy  aoU 
mlaaion  of  the  parties  in  writing,  may  be  decreed,  althoagh  there  vsmj  faavt 


June.  1855.]  Foao  tr.  Johnston.  771 

been  no  aeqnmeenoe  in  the  nwird,  or  part  perf ornutnoe  of  Itb  Spedfio  per- 
formanoe  of  award  directing  the  ezecation  of  releasee  may  be  decreed  in 
eqnity:  •/one*  t.  Boston  Mill  CorporeUion,  16  Am.  Deo,  368»  and  note;  eee 
^7  on  Specifio  Performance  of  Gontraots,  2d  Am.  ed.,  610,  where  the  qnee* 
tion  is  learnedly  diwrnssed,  citing  English  and  American  cases;  also  Water- 
man on  Specifio  Performance  of  Contracts,  62.  "An  award  is  treated  as  a 
oontinnance  of  the  agreement  to  submit.  If  it  directs  acts  to  be  done  which, 
if  stipulated  for  in  a  contrset,  would  render  such  contract  capable  of  enforce- 
ment, then  the  award  itself  may  be  specifically  enforced:**  Pomeroy*s  Eq. 
Jur.  443,  citing  the  principal  case  with  a  number  of  others.  That  an  award 
decreeing  a  conveyance  may  be  specifically  enforced,  see  Broum  ▼.  Burhm* 
mqfer,  33  Am.  Dec  641. 

Thx  FBurciPAL  GA8B  18  oiTBD  in  JontB  ▼.  Btoloek,  81  Ala.  ISO,  to  the  polnl 
that  an  award  will  be  specifically  enforced  in  equity  when  the  claimant 
ean  not,  at  law,  obtain  all  that  it  was  the  obiect  of  the  award  to  give  hect 


Fooo  V.  Johnston. 

{VI  AUkMAMA,  4S2JI 

Court  ow  Equttt  has  JimisDicmoK  to  DscBn  DoadLurxoir  cfw  Pabv- 
VIBSHIP  during  the  term  for  which  it  was  originally  entered  into,  and 
to  declare  it  Toid  ab  iniih,  where  there  was  fraud,  imposition,  misrepce* 
sentation,  or  oppression  in  the  original  agreement. 

OouBT  or  Equity  mat  Decbxb  Dissolution  or  Pabtnkbship  for  causes 
arising  subsequent  to  its  formation,  such  as  misconduct,  fraud,  or  Tiola- 
tion  of  duty  of  one  partner,  his  incapacity  or  inability  to  contribute  his 
skill,  labor,  or  diligence,  or  to  perform  his  obligations  or  duties,  or  for 
the  existence  of  a  state  of  facts  rendering  it  impracticable  to  accomplish 
the  purposes  of  the  partnership. 

Cou&T  OF  Equitt  will  Dissolyk  Pabtnkbship  at  the  complaint  of  ona 
who  was  induoed  to  enter  into  a  partnership  with  another  through  his 
misrepresentations  as  to  his  skill  as  a  machinist  and  engineer;  and  be* 
cause  of  the  misoonduct  and  violation  of  duty  of  the  latter. 

Coubt  or  Equitt,  ufon  Dissolvino  Partns&bhip,  may  Fix  Datb  of  the 
dissolution  at  the  time  of  the  abandonment  by  the  aggriered  party,  and 
notice  thereof  given  by  him. 

This  was  a  bill  in  equity  for  the  dissolution  of  a  partnership 
filed  by  Johnston  against  Fogg  and  Yanderslice.  The  bill  pro- 
ceeds at  length  to  state  that  complainant  was  the  owner  of  a  lot 
of  valuable  timber-land  in  Mobile  couniy,  and  that  he  was  de- 
sirous of  erecting  a  saw-mill  thereon,  but  being  unacquainted 
with  mechanics,  was  desirous  of  forming  a  partnership  with  a 
competent  i>erson  for  the  purpose  of  erecting  a  saw-mill  and 
carrying  on  the  lumber  business.  That  Fogg,  upon  hearing  of 
said  desire,  presented  himself  to  complainant  and  represented 
himself  to  be  an  experienced  and  accomplished  engineer  and 
machinist,  competent  to  conduct  such  a  business  as  complainant 


77S  JfOQQ  V.  JoHMsnoK.  [Akbm^ 

eontwnplatedy  to  ■doot  the  neeeaauy  naobuMty,  to  «ceol  &s 
mill,  and  lepair  or  alter  the  asme.  That  npon  the  stieiigth  of 
said  representations  he  Entered  into  a  partnexship  with  said  Fogg 
and  Jaoob  YandezBlice.  The  bill  then  proceeds  to  allege  that 
Fogg  was  utterly  iaoompetent  to  perform  the  duties  of  ttie  po- 
sition which  he  had  aasamed,  and  alleges  in  what  partioolars  he 
was  so  incompetent,  and  sets  out  special  acts  of  oztraTaganoe 
and  mismanagement.  Fogg,  in  his  answer,  denies  each  and  all 
of  the  allegations  of  the  bill,  and  detailff  at  length  the  ciroiim- 
stonces  which  lead  to  the  formation  of  said  paxtnership,  denying 
that  it  was  at  his  solicitation  and  request.  He  also  deniea  that 
he  represented  himself  to  be  a  competent  and  efficient  machin- 
ist.  Complainant  filed  a  supplemental  bill,  stating  that  he  had 
purchased  Yanderslice^s  interest  in  the  mill.  Upon  the  hearing 
below  the  chancellor  dissolved  the  partnership  as  of  June  23, 
1852,  and  Fogg  appealed. 

K  S.  Dargan  and  B,  H.  Srniih^  for  the  appellants. 

F.  8.  Blount  and  P.  EdmtUonf  oofntra. 

By  Court,  Bicbb,  J.  Where  there  is  fraud,  imposition,  mia- 
representation,  or  oppression  in  the  original  agreement  for  the 
:partner8hip,  a  court  of  equity  has  jurisdiction  to  decree  its  dis- 
solution during  the  term  for  which  it  was  originally  entered  into, 
and  to  declare  it  void  ab  inUio.  A  court  of  equity  may  also 
decree  a  dissolution  of  the  partnership  for  causes  arising  subse- 
quently to  the  formation  of  the  contract,  founded  upon  the  mis- 
conduct or  fraud  or  riolation  of  duty  of  one  partner;  or  on  ac- 
count of  the  inability  or  incapacity  of  one  partner  to  perform  hie 
obligations  and  duties,  and  to  contribute  his  skill,  labor,  and 
diligence  in  the  promotion  and  accompliahment  of  the  objects  of 
the  partnership;  or  for  the  existence  of  an  impractLcaUlify  in 
carrying  on  the  undertaking  for  which  the  partnership  was 
formed:  Story  on  Part.,  sees.  6, 285-291;  CoUyer  on  Part,  seca. 
119,  296,  297,  360,  and  notes. 

These  principles  are  decisiTe  of  this  case.  It  aiq[iear8  to  our 
iflatisfaction  that  Johnston  was  misled  and  deoeiTed  by  the  mis- 
Topresentetions  of  Fogg  as  to  his  skill  and  capacity  as  a  machinist 
And  engineer,  and  that  but  for  these  misrepresentetions  Johnston 
-would  not  have  entered  into  the  partnership;  and  that  since  the 
partnership  was  fonned  Fogg  has  been  gfuilty  of  misconduct  and 
violation  of  his  duty;  and  that,  as  against  him,  there  existed  just 
cause  for  dissolving  the  partnership  before  and  on  the  twenty* 
third  of  June,  1862,  if  not  for  declaring  it  void  oft  inUio. 


Icne,  1855.]  KAsnir  v.  HABDEnr.  T7S 

• 

As  applicable  to  sncli  a  ease  as  the  present,  ire  saaotioii  the 
principle  that  a  court  of  equity,  in  decreeing  a  dissolution  of  a 
partnership,  may  fix  the  date  of  the  dissolution  at  the  time  of 
the  abandonment  bj  the  aggrieved  party  and  notice  thereof 
given  by  him,  if  the  equities  of  that  par^  so  require:  Durbin 
V.  Barber,  U  Ohio,  811. 

We  say  nothing  as  to  Yanderslice,  because  during  the  pend* 
enc7  of  the  suit  he  sold  and  transferred  to  complainant  all  his 
rights  and  interests  in  the  partnership  and  its  property,  as  ap- 
pears by  the  supplemental  bill  and  proof;  and  this  appeal  is  not 
taken  or  prosecuted  by  him.  This  is  Fogg's  appeal,  and  there 
is  nothing  in  the  decree  of  which  Fogg  can  justly  complain* 

Decree  affirmed  at  the  costs  of  Fogg  and  his  sorely. 


Equitt  will  DsduOB  pAKTiTKBSHTp  VoxD  in  oaia  of  frrad,  iiiipoutioii»  or 
oppr— ion  in  the  original  «greem«nt,  or  wfaaro  snlweqiMBt  cMoam  rand«r  the 
partnenhip  enoneoas  and  oppressive:  HcwdL  v.  Haarvey^  39  Am.  Dec.  37C. 
'*  Even  if  the  daration  of  the  partnership  is  defined,  circnmstanoes  may  arise 
giving  a  partner  a  right  to  have  the  partnership  dissolved  before  the  expira- 
tion of  the  time  for  which  it  was  originally  agreed  to  list.  Bat  it  is  dear 
that  there  mnst  be  some  special  circnmstanoes  to  justify  a  diseolntion  of  a 
partnership  before  the  term  for  which  it  was  entered  into  has  expired.  Any 
cironmstanoe,  however,  which  renders  the  oontinoatioii  of  the  partnership^ 
or  the  attainment  of  the  common  end  with  a  view  to  which  it  was  entered 
into,  practically  impossible,  would  seem  npon  principle  to  warrant  a  disjoin- 
tioD.  The  particnlar  circnmstances  which  have  given  rise  to  litigation,  and 
upon  which  partnerships  have  been  judicially  dissoWedt  are:  1.  llie  hopeless 
state  of  the  partnership  business;  2.  The  confirmed  lunacy  of  one  of  the  part- 
ners; and  3.  Misconduct  on  the  part  of  one  or  more  of  the  members  of  the  firm* 
and  the  destruction  gf  mutual  confidence: "  1  Lindl^  on  Plart.  222,  citing  a 
number  of  cases,  including  Fogg  v.  Johtukm,  To  sasM  dfed^  Story  on  Part.» 
288. 


Mabtin  V.  HABDEemr. 

[37  Al,AJUUh,  458.] 

DmomAirr  in  Aotion  tor  Mauoiocs  PBossoDnmns  EirmeLSD  to  Show 
THAT  GiNiHAL  CHARACTBn  OF  PLAnmvT  wBs  that  of  a  gamUer  and 
horse-raeery  as  it  would  require  less  stringent  proof  to  make  out  probable 
oaase  for  prooecuting  such  a  character  for  larceny  than  one  whose  char^ 
acter  was  good,  and  who  followed  an  oocnpation  altogether  lawfuL 

DiOLARATIONS  OF  PaRTT  IN  POSSBBSION  OF  SlaVX,  TO  EfUCT  THAT  Hi  WAS 

OwNXE  thereof,  is  admissible  in  evidence,  as  it  is  explsnatory  of  the  pos- 
session, and  goes  to  show  that  he  held  the  slave  in  his  own  right. 
Dhlabatiohs  of  Party  in  Possibhon  of  Slays,  that  he  bad  employed 
another  to  sell  said  slave,  and  had  given  him  a  power  of  attorney  for  that 
porpossi  are  inadmissible,  as  they  relate  to  a  past  trenaaotion,  are  mers 
haamyi  and  oonstitate  no  part  of  the  rea  guim. 


774  Martin  v.  HASDEenr.  [Alabami^ 


LL  OanonoH  to  Bvidmom,  Paxtlt  Lioai.  ahd  Pabut  Tijjimi^ 
•honld  be  orerrnled. 
Dbolaratioks  of  0ns  or  Two  PAsmES  Whoh  Wmrns  had  Sbbv  Bv- 
OAOiD  15  Wmniio,  made  to  witness  »t  a  period  some  time  sabeequoLt,  to 
the  effect  that  said  writing  was  a  power  of  attorney,  are  inadmiiwihUi  im 
evideooe  as  proof  of  said  fact. 


This  was  an  action  brought  by  QeoTgo  0.  Hardesty  againat 
Leyi  Martin  for  damages  for  false  imprisonment  in  having  had 
phuntiff  arrested  for  larceny  in  stealing  a  slave.     Defendant 
pleaded  not  guilty.    The  evidence  showed  that  plaintiff  was  ar> 
rested  in  Mobile  for  stealing  a  slave  named  Jane,  and  that  he 
was  imprisoned  for  several  days  in  the  city  guard-house,  and 
that  the  charge  had  been  preferred  against  him  by  defendanL 
Hardesty  claimed  that  he  received  said  slave  from  Oran  Martin, 
defendant's  brother,  under  a  power  of  attorney  to  carry  her  to 
Mobile  and  sell  her.  Defendant  then  introduced  evidence  show- 
ing that  he  purchased  said  slave  from  Oran  Martin  in  July, 
1852,  under  agreement  that  she  was  to  be  delivered  to  him  Jaii« 
uary  1, 1853;  that  Hardesty  knew  that  defendant  claimed  her, 
and  that  he  had  heard  him  tell  Oran  Martin  to  deliver  her  ta 
him  Januaiy  1,  1853.  Hardesty  claimed  that  the  sale  was  fraud- 
ulent, and  introduced  evidence  tending  to  show  that  it  was  so. 
Among  the  points  raised  at  the  trial,  foid  exceptions  saved, 
were  the  following,  which  were  noticed  by  the  court:  In  a  dep- 
osition of  Oran  Martin's,  offered  by  defendant,  deponent  was 
asked  the  following  question:  **  Do  you  know  the  general  repu- 
tation of  the  plaintiff  in  the  neighborhood  where  he  lived  in  the 
last  of  the  year  1852?  Was  his  reputation  good  or  bad?"  Wit- 
ness answered  that  he  did  know  his  general  reputation;  that  it 
was  bad;  that  he  lived  at  his  house,  and  that  gambling  and 
horse-racing  was  his  only  occupation.    Upon  motion  of  plaint- 
iff the  court  suppressed  this  evidence,  and  defendant  excepted. 
The  bill  of  exceptions  proceeds  to  state  **  that  the  plaintiff  in- 
troduced one  Henry  Chambers  as  a  witness,  who  testified  that 
Oran  Martin,  while  in  possession  of  the  negro  Jane,  told  him 
that  said  negro  belonged  to  him;  that  he  had  employed  Hard- 
esty to  carry  her  to  Mobile  and  sell  her  for  him,  and  that  he 
had  given  Hardesty  a  power  of  attorney  for  that  purpose.    The 
defendant  objected  to  these  declarations  of  Oran  Martin,  made 
to  witness  when  defendant  was  not  present,  and  moved  to  ex- 
clude them,  but  the  court  overruled  the  objection  and  motion, 
and  the  defendant  excepted."     Kennedy,  a  witness  for  plaint- 
iff, testified  that  Hardesty  and  Oran  M&rtin,  while  the  former 
I  was  on  his  way  to  Mobile  with  the  slave,  stopped  at  his  plaoe 


June,  1855.]  Mabtin  v.  Hardestt.  775 

orer  night;  that  while  there  they  asked  him  for  paper,  pen,  and 
inky  and  that  upon  his  giving  them  to  them,  they  proceeded  to 
write  something  which  he  could  not  read.  In  answer  to  a  qnes* 
tion  by  plaintiff,  witness  answered  that  they  said  they  had  writ- 
ten a  power  of  attorney,  but  that  they  did  not  say  for  what  pur- 
pose. Defendant's  objection  to  this  question  was  overruled,  and 
he  excepted.  In  reply  to  another  question  from  plaintiff,  wit- 
ness answered  that  Oran  Martin  returned  to  his  house  a  short 
time  after  he  had  left  it  with  plaintiff,  and  told  witness  that  the 
paper  was  a  power  of  attorney  to  Hardesty  to  sell  the  slave  Jane. 
Defendant  objected  to  this  question,  but  the  court  overruled  hia 
objection,  and  he  excepted. 

J.  R.  John  and  William  M.  Brooks^  for  the  appellant. 

/.  IF.  OarroU,  contra. 

By  Court,  CmLTON,  C.  J.  We  are  of  opmion  that  the  court 
erred  in  excluding  the  evidence  of  the  bad  character  of  Hardesty 
from  the  jury;  and  that  bis  only  occupation  was  that  of  gambling 
and  horse-racing.  It  would  certainly  require  less  stringent 
proof  to  make  out  probable  cause  for  prosecuting  such  a  char- 
acter for  larceny  than  one  who  maintained  a  good  character  and 
followed  an  occupation  for  a  livelihood  altogether  lawful. 

The  testimony  of  Chambers,  '*  that  Oran  Martin  told  him, 
while  in  possession  of  the  slave  alleged  to  have  been  stolen,  that 
said  slave  belonged  to  him,  and  that  he  had  given  Hardesty  a 
power  of  attorney  i\nd  employed  him  to  take  her  to  Mobile  and 
sell  her,"  etc.,  was,  when  taken  in  connection  with  the  other 
proof,  partly  legal  and  partly  improper.  It  was  proper  to  prove 
that,  having  the  possession,  he  said  he  was  the  owner,  as  this 
was  explanatory  of  the  possession,  showing  that  he  held  the  slave 
in  his  own  right;  but  his  declarations  that  he  had  employed 
Hardesty  to  sell  the  slave  in  Mobile,  and  had  given  him  a  power 
of  attorney  for  that  purpose,  were  improper,  because  they  related 
to  a  past  transaction — ^were  mere  hearsay,  and  could  not  consti- 
tute part  of  the  res  gesUe.  This  is  a  familiar  distinction,  and 
recognized  by  numerous  decisions  of  this  court.  The  testimony, 
however,  was  objected  to  as  a  whole;  and  the  rule  in  such  case 
justifies  the  court  in  overruling  such  objection:  See  LUchfield 
v«  Falconer,  2  Ala.  280;  Smith  v.  Zaner,  4  Id.  99;  EatcheU  v. 
Gibson,  13  Id.  587;  Melton  v.  Trouiman,  15  Id.  585;  Hurrah  v. 
Branch  Bank,  20  Id.  392;  Men  v.  Smiih,  22  Id.  416;  NewUm  v. 
Jack>5on,  23  Id.  885;  Smooi  v.  Edava,  Id.  659  [58  Am.  Dec.  810]; 
Swinney  v.  Dorman,  25  Id.  433.    It  was  also  improper  for  the 


776  Pabkxb  v.  Misb.  [Alabwna, 


witnesB  Kennedy  to  testify  what  Onm  Haitin  told  him  as  to  the 
eharaeter  of  the  writing  he  and  Haidesty  had  entered  into  on 
a  prior  occasion  at  the  honae  of  the  witness.  This  was  not  part 
of  the  ret,  and  relating  to  a  past  transaction  of  which  the  con- 
versation formed  no  part,  was  hearsay  merely,  and  improperly 
admitted. 

The  law  which  must  gOTem  snch  cases  is  fully  laid  down  in 
the  cases  of  Leaird  t.  DaiTU,  17  Ala.  27;  Long  y.  Rogers,  Id.  640; 
&  0.,  19  Id.  321;  Euring  y.  San/ord,  Id.  605;  3.  C,  21  Id.  157. 
It  is  needless,  therefore,  to  discuss  the  points  attempted  to  be 
presented  by  the  charges.  As  the  other  points  presented  will 
hardly  again  arise,  we  deem  it  unnecessary  to  decide  them. 

Judgment  reversed,  and  cause  remanded. 

EviDUics  OF  Cbabactxb. — Evidence  of  character  of  {daintifif  and  his  £uiiily 
la  admiflsible  in  evidence  in  actions  for  aedaction:  McAyJUty  v.  Birkhead,  65 
Am.  Dec  427;  and  on  the  part  of  the  defendant  in  an  action  for  divorce  where 
the  charge  is  adultery:  O'Bryan  v.  0*Bryan,  53  Id.  128.  In  the  note  to  this 
ease  the  qaeetion  of  the  admisBibility  of  evidence  of  general  good  character. 
in  both  civil  and  criminal  cases,  is  discussed:  See  GreenL  £v.,  sec  458, 
where  the  doctrine  of  the  principal  case  is  discussed. 

Bbclabatioks  as  Evidence. — Declarations  of  a  party  in  possession  of 
property,  descriptive  or  explanatory  of  such  possession,  are  usually  admitted 
In  evidence,  but  his  declarations  in  regard  to  the  contract  by  which  he  ao> 
quired  possession  are  not  admitted:  Thompmrn  v.  IfatoMimcy,  52  Am.  Dee. 
176;  Darling  v.  Bryant,  Id.  162,  and  notes  to  those  cases.  The  declarationa 
of  a  person  in  possession  of  goods,  while  at  work  thereon,  that  they  are  the 
property  of  plaintiff,  are  adnussible  as  evidence  of  title  in  htm:  BradUy  v. 
Bpcdford,  55  Id.  205.  Declarations  are  admissible  as  part  of  the  rt»  Qeatm,  if 
inade  at  the  time  of  an  act  done  by  the  declarant  and  explanatory  thereof, 
when  evidence  of  such  act  itself  is  admissible:  Wttmort  v.  MtU,  59  Id.  607. 
But  if  the  act  itself  is  inadmissible  in  evidence,  declarations  concerning  it 
are  equally  so:  OUberi  v.  Oilberi,  58  Id.  208.  Further,  in  connection  with 
declarations  as  evidence,  see  Nelson  v.  Ivenon,  60  Id.  442. 

QENBRaL  OBJSCnON  TO  £VII>BHGB  PABTLT  LbQAL  AND  PaBTLV  IlLBQAL 

should  be  overruled:  Ounn  v.  Howell,  35  Ala.  144;  WMer  v.  Forbeg,  31  Id. 
8;  Bobifuon  v.  Tipian,  Id.  595;  Moore  v.  Xeo,  32  Id.  375;  /cans  v.  LawUr,  33 
Id.  340;  Walker  v.  Walker,  34  Id.  469;  Weaver  v.  Alabama  Coal  Aiming  Co., 
85  Id.  176;  ^eioson  v.  ^ney,  36  Id.  37;  JIcOUl  y.  ManeUe,  SI  Id.  ^;  IhmUain 
v;  Brtwm,  38  Ala.  72;  ^uttorvl  v.  Zkimfteri^  40  Id.  204. 


h:«m: 


V.  MlBB* 

[St  AiaaiiCA,  480.] 
Poe  n  SmOIBS  cat'  pROt>EBTT,  AND  AOHOH  MAT  BB  ITAINTAnna)  fOft  SSOOVi 

ivo  Him  without  showing  that  he  was  possessed  of  any  peouniary  value. 

Law  Impues  Damaoe  fhou  Wrongful  Taking  or  Pbopertt  of  Anothee, 

and  although  the  property  had  no  pecuniary  value,  and  the  owner  la 


June,  1855.]      Pabksb  v.  Miss.  777 

fMt  waSenA  noMMlUe  damage,  lie  is  enUtlecl  to  neofer'ioaie  damageiL 
If  the  treapaaa  waa  aoeompanied  by  dreaotttaiieea  of  afcgmvation,  esem* 
plary  damages^  or  wauat'moaej,  may  be  aaaeaaed  by  the  jury. 
QFDiioir  OP  WzntHB. — An  objootion  to  a  qvastion  by  wfaioh  a  witooaa  waa 
asked,  whether,  from  his  knowledge  of  aaid  dog,  he  did  or  did  mi 
oonsider  aaid  dog  a  nnisanoe,  ia  properly  soatained. 

Action  for  damagea  for  shooting  plaintiff's  dog.  The  opinion 
states  the  facts. 

WiUiam  M.  Byrd,  for  the  appellant. 

Bj  Court,  BioB,  J.  A  dog  is  a  species  of  property  for  an 
injnry  to  which  an  action  at  law  may  be  sustained.  It  is  not 
necessary  for  the  maintenance  of  an  action  for  shooting  a  dog 
that  the  dog  should  be  shown  to  have  pecuniaxy  Talue:  Dodson  t. 
Jlock,  4  Dev.  &  B.  L.  146  [32  Am.  Dec.  677];  Perry  v.  Phipps, 
10  Ired.  L.  269  [61  Am.  Dec.  887];  State  y.  Latham,  18  Id.  83; 
Wright  y.  Ramscot,  1  Saund.  84;  2  Bla.  Com.  893,  394;  LevitM  t. 
BUroh,  6  Serg.  k  B.  84;  King  t.  KLine,  6  Pa.  St.  318. 

Whereyer  there  is  a  wrongful  taking  of  the  property  of  an« 
other,  or  a  wrongful  injury  done  to  it,  the  law  implies  that  the 
owner  has  sustained  some  damage;  and  although  there  be  in 
iact  no  sensible  damage  from  the  loss  or  injury  of  the  property, 
or  from  an  actual  depriyation  of  its  use,  the  owner  is  entitled  to 
recoyor  some  damages.  And  if  the  trespass  on  the  property 
was  accompanied  by  circumstances  of  aggrayation,  smart- 
money,  or  exemplary  damages,  may  be  assessed  by  the  juiy, 
although  the  property  itself  had  no  pecuniaiy  yalue:  Board  y. 
Bead,  8  Dana,  489;  Majw  y.  PuUiam,  Id.  682;  WaH  y.  Jen^ 
kifiM,  14  Johns.  852;  8  Stark.  Ey.  1460-61;  Bracegirdle  y. 
Orfcrd,  2  Man.  &  Sel.  77;  Meresl  y.  Harvey,  6  Taunt.  442; 
Dearing  y.  Moore,  26  Ala.  686. 

Although  it  may  be  allowable  to  proye,  as  a  justification  for 
killing  a  dog,  that  the  dog  was  a  nuisance  to  the  community, 
and  was  permitted  to  go  at  large:  Dodson  y.  Mock,  4  Dey.  &  B. 
li.  146  [82  Am.  Dec.  677];  King  y.  KUne,  6  Pa.  St.  818;  yet 
thevB  waa  no  error  in  sustaining  the  objection  to  the  question 
pat  by  defendant  to  a  witness,  whether,  from  his  knowledge 
of  said  dogy  he  did  or  did  not  consider  said  dog  a  nuisance. 

There  ia  no  enor»  and  the  judgment  is  affirmed. 

Bogs,— The  law  relating  to  tretpaiaing  doga,  and  what  oonatitataa  a  Jnati* 
fioation  for  killing  tho  aarae,  ia  diaonaaed  in  the  note  to  Tonawanda  i?.  i?.  Qk 
y.  Mmnger,  49  Am.  Deo.  248. 

Whirb  RtOBT  or  VhAismr  ts  Yiolatid,  although  he  Buffer  no  aetual 
I,  he  ia  entitled  to  protection:  Bmdem  t.  SiHn,  mUe^  n.  75S. 


T78  WimcK  V.  T&aun.  [Alabamai 


VnrDiOTiTB  OB  EzxMPLA&r  Damaobi  may  be  MMiiwiii  agftiiiBfc  the  dsfead- 
iat  where  the  aet  oomplained  of  was  delibente  and  aggnwtod:  JiiBmrm  t. 
Beach^  55  Am.  Dec  91,  and  note;  see  also  Oorwm  ▼.  Walkm^  M  Id.  285,  noteL 

OnxtOH  09  W1TMI88  AS  Eyidbkob:  See  VandUe  ▼•  JlMjm,  40  Am.  Dea 
783^  aod  note  diaoaanng  the  subject. 


WrmoK  V.  TiuOT. 

[97  ATiiUOMft,  682.] 
TJUBPASS  VFOir  OB  Ck>inrXBSI01l  OV  ChaTTBLS  is  lilSTIlfOinBHABLB  FBOM  Da- 

TBmnoH  THBBBOF.  Snoh  trespass  or  conyersion  may  mdnde  a  detention, 
bat  there  may  be  a  detention  saflScient  to  support  an  action  of  detinue 
where  there  has  not  been  such  a  oonTenion  or  trespass  as  would  support 
an  action  of  trover  or  trespass. 

Causb  or  Acnos  mat  bb  Split  ts  Dbtikub  but  not  nr  Tbotbb  ob  Tbb»> 
PA8S.  When  by  the  same  act  there  has  been  a  trespasa  upon  or  a  cea- 
Tersion  of  chattels,  which  chattels  at  the  same  time  or  afterwards  are 
detained  by  the  tort-feasor,  the  owner  may  maintain  either  an  actioo  of 
trespass  or  trover  or  detinue.  If  he  proceeds  in  an  action  of  trespass 
or  trover,  he  is  bound  to  regard  said  cause  of  action  as  indivisible,  and 
as  giving  him  but  one  cause  of  action;  but  if  he  proceeds  in  an  action  of 
detinue,  he  may  at  his  election  consider  the  action  as  divisible  and  maii^ 
tain  a  separate  action  for  each  chattel  detained. 

SvmoiBNCT  OF  Vbbdiot.—Whbbb  Plaintiff  Sues  fob  Two  ob  Mobb 
Causbs  of  action  properly  joined,  to  which  the  defendant  pleada  the  gen- 
eral issue,  if  the  jury  in  their  verdict  allow  him  a  specified  number  of  his 
causes  of  action  and  say  nothing  as  to  the  others,  the  verdict  is  soffideat 
to  authorise  a  judgment  for  him  to  the  extent  to  which  it  finds  for  him, 
and  will  bar  a  second  action  for  the  causes  of  action  not  mentioned  in 
•sprees  words  in  said  verdicL 

In  Action  of  Dbtinub  fob  Eight  Slaybs,  Vbbdict  is  Dbfbotitb  whieh 
recites,  **  We  find  for  the  plaintiff,  and  assess  the  value  of  the  slaves  sned 
for,'*  etc.,  and  which  proceeds  to  name  and  assess  the  value  of  seven  of 
said  slaves  without  mentioning  the  eighth,  and  such  verdict  is  not  anffi* 
cient  to  authorize  a  judgment  for  plaintiff  for  any  of  said  slaves.  Rioei 
J.,  dissenting,  held  the  verdict  a  good  finding  for  plaintiff  iot  the  slaves 
named,  and  a  finding  for  defendant  for  the  one  not  named. 

Plba  Which  doi»  not  Constitutb  Defensb  to  Extbnt  to  Whioh  It  Pbo- 
FE88KS  to  Go  is  defective  in  substance.  Consequentlyy  a  plea  which  undei^ 
takes  to  answer  as  to  five  slaves,  but  in  fact  answers  as  to  one  only,  is 
bad  in  toto  on  demurrer. 

This  was  an  action  of  detinue,  brought  by  the  appellant  Mary 
Wittick  against  Henry  Traun,  to  recover  ten  alaves,  named  re* 
Bpectivelj  Rose,  Will,  Ann,  Caroline,  Jim,  Lucy,  Sarah,  John, 
Eliza,  and  Martha.  The  defendant  pleaded:  1.  The  general 
issue;  2.  The  statute  of  limitations;  8.  He  pleaded  adio  non  as 
to  the  following  five  of  said  slaves,  to  wit,  Jim,  Lucy,  Sarah« 


June,  1855.]  WlTTICK  v.  Trauv.  779 

John,  and  Ann,  because  that  heretofore  plaintiff  had  brought 
her  action  of  detinue  against  this  defendant  in  this  court,  the 
proceedings  in  which  action  defendant  sets  out  at  length,  and 
which  were  substantially  as  follows:  The  negroes  sued  for  in  that 
action  were  Betqr  and  her  seven  children,  Dick,  Jim,  Lucy, 
Sarah,  John,  Ann,  and  Et  or  Edward.  The  preliminary  pro- 
ceedings before  trial  are  then  detailed,  and  then  the  judgment 
is  set  out,  which  is  as  follows:  "  Came  the  parties,"  etc.,  "  and 
thereupon  came  a  jury,''  etc.,  ''who  upon  their  oaths  do  say 
they  find  for  the  plaintiff,  and  assess  the  value  of  the  slaves 
sued  for  as  follows,  to  wit:  Betsy  at  seven  hundred  and  fifty 
dollars,  Dick  at  six  hundred  dollars,  Jim  at  five  hundred  dol« 
lan^  Lucy  at  four  hundred  and  fifiy  dollars,  Sarah  at  three  hun- 
dred and  seventy*five  dollars,  John  at  two  hundred  and  fifty 
dollars,  and  Et  or  Edward  at  two  hundred  dollars,  and  they  also 
find  the  hire  of  said  slaves  to  be  two  hundred  dollars.  It  is 
therefore  considered  by  the  court  that  the  plaintiff  recover  of 
said  defendant  the  said  slaves  Betsey,  Dick,  Jim,  Lucy,  Sarah, 
John,  and  Et  or  Edward,  and  the  sum  of  two  hundred  dollars, 
for  their  hire  as  aforesaid,  and  on  failure  of  said  defendant  to 
deliver  said  slaves  to  the  sheriff  of  Dallas  county  when  de* 
manded  by  him,  then  to  pay  the  value  of  said  slaves  as  as- 
sessed," etc.  The  plea  then  proceeds  to  allege  that  the  slaves 
sued  for  in  this  action  are  the  same  as  sued  for  in  that;  that  the 
plaintiff  now  claims  under  the  same  title  that  she  did  then,  and 
that  said  judgment  is  still  subsisting  and  in  full  force  and  effect, 
and  that  the  same  has  been  paid  and  satisfied  by  him,  and  that 
at  the  commencement  of  this  action,  and  for  a  long  time  previous 
thereto,  he  had  possession  of  all  of  said  slaves;  4.  "  For  fur- 
ther plea  as  to  all  the  slaves  sued  for  in  this  action  (except  those 
named  in  the  last  plea),  to  wit,  Rose,  Will,  Caroline,  Eliza,  and 
Martha,  defendant  pleads  a  former  adjudication  and  recovery 
under  and  by  virtue  of  the  action  of  detinue  mentioned  in  the 
last  preceding  plea."  The  remainder  of  this  plea  is  much  the 
same  as  the  third  plea  above  set  out.  Plaintiff  joined  issue 
with  defendant  upon  the  first  and  second  pleas,  and  demurred 
to  the  third  and  fourth.  Her  demurrers  were  overruled,  and 
she  then  filed  replications  to  the  third  and  fourth  pleas.  De- 
fendant demurred  to  these  replications,  and  his  demurrers  were 
sustained.  The  rulings  of  the  court  upon  those  difEarent  de- 
murrers are  now  assigned  as  error. 

Oeorge  W.  Oayle,  for  the  appellant 

William  If.  Byrd,  contra. 


780  WrmcK  v.  Trauh.  [AlabaoMi 

By  Oovrty  Biai»  J.  The  detention  of  chattels  ia  distingniBb* 
able  from  a  trespass  upon  or  a  conyersion  of  them.  A  detention 
may  be  included  in  a  trespass  or  oonTersion;  bat  there  maj  be 
a  detention  sufficient  to  support  detinue  when  there  has  been 
neither  a  treapaas  nor  a  conyersion,  and  when,  therefore,  neither 
tioyer  nor  trespass  could  be  maintained:  Oliaaon  y.  Berring,  S 
Dey.  L.  166;  Six  Carpenters  Caee,  8  Co.  146;  WaUser  t.  Bamp- 
(M,  8  Ala.  412;  McCambie  y.  2>avie8,  6  East,  638. 

When  bj  a  single  act  there  has  been  a  trespass  upon  or  a 
conyersion  of  chattels,  which,  at  the  time  of  such  trespass  or 
conyersion,  or  afterwards,  are  detained  bj  the  torUfeasor,  the 
owner  is  not  bound  to  treat  such  act  as  a  trespass  or  conyer* 
sion.  He  may  do  so,  or  he  may  elect  not  to  do  that,  but  to 
waiye  the  trespass  or  conyersion,  and  to  treat  the  detention  by 
the  tort-feasor  as  lawful,  temporarily,  as  to  each  or  all  of  the 
chattels.  If  he  elects  to  treat  such  single  act  as  a  trespass  or 
conyersion,  and  proceeds  for  it  to  judgment  in  an  action  of  troyer 
or  trespass,  then,  by  such  election  and  the  yeiy  form  of  his  pro* 
ceeding,  he  is  bound  to  regard  such  act  as  indivisible,  and  as 
giving  him  but  one  cause  of  action;  and  he  can  not  afterwards 
split  it  up  into  seyeral:  O'Neal  y.  Broton,  21  Ala.  482;  Eitey. 
Long^  6  Band.  467  [18  Am.  Dec.  719].  If,  however,  he  elects  not 
to  proceed  for  any  trespass  or  conyersion,  but  for  the  detention 
only,  no  such  consequences  ensue.  Detinue  proceeds  on  a  prin* 
ciple  different  from  that  which,  in  the  particular  now  under 
consideration,  governs  trover  and  trespass.  In  them  the  cause 
of  action  is  the  single  act  which  constitutes  the  trespass  or  con« 
version,  and  which,  when  proceeded  for  by  the  plaintiff  as  a 
tresiMiss  or  conversion,  is  indivisible,  and  can  not  be  split  up;  but 
in  detinue  the  cause  of  action  is  the  detention,  which,  when 
embracing  separate  chattels  of  the  plaintiff,  is,  at  his  election^ 
divisible,  and  referable  to  each  chattel  detained. 

When  one  detains  at  the  same  time  several  slaves,  which  be- 
long  to  another  under  one  instrument  or  title,  the  owner  may 
elect  to  treat  the  detention  of  each  as  a  distinct  cause  of  action, 
and  to  bring  a  separate  action  of  detinue  for  each.  Although 
there  is  a  strong  resemblance  between  these  causes  of  aotion» 
and  they  belong  to  the  same  family,  yet  there  is  not  an  identity^ 
but,  in  truth  and  law,  they  are  independent  of  each  other* 
Bach  may  be  proceeded  on  separately,  or  all  may  be  joinadi 
Bnider  v.  (7roy,  2  Johns.  229;  SUOe  y.  Marion,  18  Mo.  68. 

The  plain  result  of  these  views  is  that  the  fourth  plea  is  bad| 
and  that  the  court  below  erred  in  overruling  the  demurrer  to  it 


June,  1855.]  WimcK  v.  Trauh.  JSl 

It  may  be  conceded  that  a  Terdict  which  finds  only  part  of  the 
matter  in  issue  is  not  good,  and  will  not  support  a  judgment 
But  it  does  not  follow  that  because  a  verdict  for  the  plaintiff 
finds  for  him  only  a  part  of  his  demands  it  is  a  finding  of  only 
part  of  the  matter  in  issue.  Where  the  plaintiff's  demand  is 
<iiTisibley  there  is  no  law  which  forbids  the  finding  of  a  part  for 
him  and  the  disallowance  to  him  of  the  other  part.  It  is  be^ 
Jieved  to  be  the  settled  practice  that  where  a  jury  allow  th< 
plaintiff  part  of  his  demand  only,  and  disallow  the  other  pari 
they  simply  state  in  their  verdict  the  part  they  do  find  for  him^ 
and  are  silent  as  to  the  part  they  disallow.  If  two  slaves  (Ben 
And  Joe)  were  sued  for  in  detinue,  and  on  the  general  issue  and 
•evidence  the  jury  should  return  their  verdict  as  follows:  "  We^ 
the  juiy ,  find  for  the  plaintiff  the  slave  Ben,  and  assess  his  valub 
at  five  hundred  dollars,  and  damages  for  his  detention  at  fifty 
dollars,"  I  do  not  suppose  any  one  would  contend  that  this  ver« 
diet  found  only  part  of  the  matter  in  issue.  It  says  nothing  a( 
to  Joe;  yet  every  one  would  at  once  admit  that  its  silence  as  ta 
Joe  was  equivalent  to  an  express  finding  for  the  defendant  as  tc 
him;  and  that  it  amounted  to  a  finding  of  the  whole  matter  i& 
issue — finding  Ben  for  the  plaintiff  in  express  words,  and  Jot 
for  the  defendant  by  significant  silence.  Whenever  the  wordir 
of  a  Verdict  imply  the  whole  issue,  it  is  (tufkient:  Burper  v,  - 
Baker,  Cro.  Eliz.  854. 

I  think  the  principle  is  incontrovertible  established  at  Om 
present  day  that  where  a  plaintiff  sues  for  distinct  causes  ov 
action  properly  joined  in  his  declaration,  and  the  general  issue 
is  pleaded,  and  the  juiy  allow  him  a  specified  number  of  hiS 
•causes  of  action,  and  say  nothing  as  to  the  others,  the  ven^t 
is  suf&cient,  and  authorizes  a  judgment  for  him  to  the  extjr^t  ii» 
which  it  finds  for  him;  and  that  such  a  verdict  and  jnigPitrX 
thereon  will  bar  a  second  action  for  the  causes  of  action  rot 
anentioned  in  express  words  in  the  verdict:  Brockway  v.  Kraney, 
2  Ji)hns.  210;  FhHUps  v.  Berick,  16  Id.  136  [8  Am.  Dec.  299]; 
Irwin  V.  Knox,  10  Id.  366;  Markkam  v.  ARddleian,  2  Stra.  1259; 
6  Com.  Dig.,  tit.  Pleader,  S,  19,  8,  26;  Lewis  v.  Lewis,  Minor, 
95;  WiUiok  v.  TVaun,  25  Ala.  317. 

Where  the  plaintiff  brings  detinue  for  several  slaves,  and  the 
fieneral  issue  is  pleaded,  it  not  only  puts  in  issue  the  title  and 
detention  as  to  all,  but  as  to  each.  The  jury  may  lawfully  find 
one  or  all  for  the  plaintiff.  If,  under  such  a  state  of  pleadings, 
ihey  find  only  one  expressly  for  the  plaintiff,  and  say  nothing  as 
4o  the  others,  I  think  the  verdict,  by  legal  implication,  would 


782  WiTncK  V.  Traun.  [Alabuus 

mean  predsely  tbat  they  found  for  the  plaintiff  as  to  the  one 
expressly  mentioned,  and  for  the  defendant  as  to  the  others. 
My  opinion  is,  that  where  the  plaintiff  brings  detinue  for  eight 
slaves  mentioned  in  his  declaration  (Ann  being  one  of  the  num- 
ber), and  the  defendant  pleads  the  general  issue,  and  the  jury 
say  they  ''find  for  the  plaintiff,  and  assess  the  value  of  the 
slaves  sued  for  as  follows,  to  wit:  Betsey,  at  seven  hundred  and 
fifty  dollars;  Dick,  at  six  hundred  dollars;  Jim,  at  five  hundred 
dollars;  Lucy,  at  four  hundred  and  fifty  dollars;  Sarah,  at  three 
hundred  and  seventy-five  dollars;  John,  at  two  hundred  and 
fifty  dollars,  and  Et  or  Edward,  at  two  hundred  dollars;  and 
they  also  find  the  hire  of  said  slaves  to  be  two  hundred  dollars  " — 
it  is  a  good  finding  for  the  plaintiff  as  to  the  seven  slaves  therein 
named,  and  their  hire,  as  damages  for  their  detention,  and  a 
good  finding  against  the  plaintiff  as  to  the  slave  (Ann)  men* 
tioned  in  the  declaration  and  not  mentioned  in  the  verdict. 
The  jury  begin  by  saying  they  "  find  for  the  plaintiff,"  but  they 
instantly  proceed  to  show  specifically  what  they  do  so  find  for 
the  plaintiff;  that  is,  seven  slaves,  separately  named  and  valued 
in  the  verdict,  and  ''  the  hire  of  said  slaves"  (to  wit,  said  seven 
slaves).  The  particular  controls  the  general;  the  special  mat- 
ter limits  and  gives  precision  to  the  general  words:  Bick  v. 
Lard,  18  Pick.  825;  Lyman  v.  Clark,  9  Mass.  235;  Jackson  v. 
8tackhou9e,  1  Cow.  126  [18  Am.  Dec.  514];  Chit.  Con.  85,  and 
notes. 

It  was  as  much  the  duty  of  the  jury  to  assess  the  value  of 
each  slave  they  found  for  the  plaintiff,  or  to  state  expressly  that 
the  one  whose  value  was  not  assessed  was  valueless,  as  to  find 
for  the  plaintiff  all  the  slaves  she  had  proved  herself  entitled  to 
recover.  The  finding  of  the  jury,  above  set  forth,  carries  on 
its  face  evidence  that  they  knew  such  to  be  their  duty.  They 
doubtless  valued  each  slave  they  found  for  the  plaintiff.  When 
they  name  only  seven,  and  value  only  seven,  and  give  hire  for 
only  seven,  I  can  not,  either  as  a  man  or  as  a  judge,  say  that  by 
the  general  words  at  the  beginning  of  their  verdict  ("  they  find 
for  the  plaintiff")  they  intended  to  find,  or  did  find,  eight  slaves 
for  the  plaintiff.  If  they  intended  to  find,  or  did  find,  Ann  for 
the  plaintiff,  why  did  they  not  value  her,  or  give  hire  for  her, 
or  state  that  she  was  worthless?  If  they  did  not  find,  or  in- 
tend to  find,  for  the  plaintiff  as  to  Ann,  the  verdict  is  unob- 
jectionable; it  follows  the  settled  practice  in  this  state  in  such 
cases  in  not  mentioning  her  at  all,  and  in  stating  the  names  of 
those  only  as  to  whom  they  did  find  for  the  plaintiff.    There 


June,  1855.]  WrmcK  v.  Traun.  783 

is  nothing  decitife  as  to  the  number  they  found  for  the  plaint- 
iff in  the  general  words  used  in  the  commencement  of  the 
yerdict;  for  if  they  had  found  only  one  slave  for  the  plaintiff, 
the  verdict  might  well  have  begun  with  the  same  general  words^ 
to  wit,  **  they  find  for  the  plaintiff/'  It  is  entirely  clear  that 
the  finding  as  returned  by  the  jury  may  be  true,  and  yet  the 
slave  Ann  not  be  found  for  the  plaintiff.  To  the  argument  that 
Ann  ia  found  for  the  plaintiff,  it  may  well  be  answered  that  the 
other  seven  slaves  sued  for  are  clearly  and  undeniably  found  for 
the  plaintiff;  that  if  Ann  is  found  for  her,  it  is  only  by  argument 
or  inference;  and  that  the  plaintiff  can  not  take  seven  slaves  by 
the  express  words  of  the  verdict  and  another  by  mere  argu- 
ment or  inference:  Bemus  v.  Beekman,  8  Wend.  672;  6  Com.' 
Dig.,  tit.  Pleader,  S,'22;  McCravey  v.  BetMon,  19  Ala.  486  [54 
Am.  Dec.  194].  But  whilst  I  think  the  verdict  does  not  find 
eight  slaves  for  the  plaintiff,  I  have  no  doubt  but  that  it  does 
find  seven  slaves  for  her — ^the  seven  named  and  valued  in  it 
'  The  utmost  favor  has  always  been  extended  to  verdicts,  and 
they  are  not  construed  strictly,  as  pleadings  are."  Whenever 
the  court  can  collect  the  clear  meaning  of  the  jury  from  the  find- 
ing, it  is  bound  to  work  it  into  form  and  make  it  serve:  Moody 
V.  Keener,  7  Port  218;  Tippin  v.  Petty,  Id.  441;  Ibeter  v.  Jach- 
mm,  Hob.  54;  Eawka  v.  CrofUm,  2  Burr.  698;  JfiOer  v.  Shackh- 
ford,  4  Dana,  271. 

I  also  think  the  proper  judgment  was  rendered  on  the  verdict 
at  the  term  at  which  it  was  rendered — a  judgment  in  the  alter- 
native for  the  seven  slaves  named  and  valued  in  the  verdict,  and 
for  the  damages  and  costs.  But  as  to  the  meaning  of  the  ver^ 
diet  and  the  correctness  of  the  judgment  rendered  on  it  at  the 
term  when  it  was  rendered  my  brethern  differ  from  me.  Their 
views  on  these  matters  of  difference  are  expressed  in  an  opinion 
delivered  by  the  chief  justice  at  the  present  term  in  another 
case  between  these  same  parties. 

If  the  third  plea  had  professed  to  answer  the  complaint  as  to 
Ann  only,  my  opinion  is  it  would  have  been  good;  for  its  allega- 
tions are  sufficient,  if  true,  to  constitute  a  defense  as  to  Ann.  But 
this  plea  professes  to  answer  as  to  Ann  and  four  other  slaves. 
As  to  these  four  others,  we  all  agree  it  is  defective,  because  it 
does  not  show  with  reasonable  certainty  that  the  former  judg- 
ment was  satisfied  by  paying  their  assessed  values,  nor  negative 
the  idea  that  there  was  an  unlawful  detention  of  them  after  the 
former  judgment  was  rendered.  The  former  judgment  was  in 
the  altonative,  and  might  have  been  satisfied  either  by  paying 


7M  WrmcK  v.  Tbaxth.  [Alabamab 

tbeir  nMfliwnii  Talae,  or  by  mecely  deliTexing  fhem  up  and  pay- 
ing the  danuigee  and  oosts.  If  it  was  aatisfied  in  ihe  former 
mode,  such  satisfaction  vested  in  the  defendant  all  the  title  to 
them  which  the  plaintiff  had  at  the  commenoement  of  the  former 
enit.  If  it  vms  satisfied  in  the  latter  mode,  snch  satisfaction 
wonld  not  Test  any  title  in  the  defendant.  As  each  different 
consequences  result  from  the  mode  in  which  the  satia&ctioii  was 
made,  the  plea  as  to  ihe  four  can  not  be  good  without  showing 
that  the  satisfaction  waa  made  in  money  or  its  equivalmt.  The 
third  plea  is  bad,  on  the  principle  that  a  plea  which  does  not 
constitute  a  defense  to  the  extent  to  which  it  professes  to  go  is 
defective  in  substance.  Where  it  undertakes  to  answer  as  to 
five  shiYes,  but  is  in  truth  an  answer  as  to  one  only,  it  is  bad  in 
4oio,  on  demurrer:  Dealer  y.  Sodges,  3  Ala.  509. 

For  the  errors  of  the  court  below  in  oveiTuling  the  demuxvars 
to  the  third  and  fourth  pleas^  its  judgment  is  xerexsed,  and  the 
cause  remanded. 


The  opinioii  referred  'to  by  JIfr.  Jnetioe  Baoe  in  the  <^iinion  above  ae  the 
one  in  which  his  aeaocukteB  differed  from  him,  end  the  opinion  in  which  the 
eboTe-described  verdict  was  held  msnfficieDt,  was  that  delivered  by  Mr.  Qiief 
Jnatice  Chilton  in  the  case  of  Traun  v.  WtttiAy  27  AUk  570,  and  u  aa  foUowa: 
**  It  is  laid  down  ae  a  general  elementary  rule,  that  a  verdbt  ia  void  if  it  find 
-only  a  part  of  the  iamie:  See  6  Com.  Dig.,  tit  Pleader,  8,  19,  and  oaaea 
there  cited.  It  must  also  be  certain — ^that  ii,  mnst  find  the  fact  clear  to  a 
common  intent:  Id.  21.  Keeping  in  view  these  long-settled  elementary 
principles,  we  have  no  difficulty  in  arriving  at  a  correct  condtnion  upon  the 
verdict  in  the  caae  before  ua.  We  may  conoade  that  had  the  jmy  found  thai 
the  defendant  unlawfully  detained  seven  of  the  eight  slaves  sned  for,  naming 
them  and  omitting  Ann,  it  would  have  been  equivalent  to  a  verdict  for  the 
defendant  aa  to  her;  but  they  have  not  done  thia.  Their  language  is:  "We 
fbd  for  the  plaintiff,  and  assess  the  value  of  the  slaves  sued  for,"  etc,  pro- 
ceeding to  name  seven  of  the  slaves,  valuing  each  aeparately,  bat  oonitting 
the  slave  Ann.  As  Ann  was  one  of  the  slaves  embraced  in  tlM  issae,  and  the 
jury  find  for  the  plaintiff,  and  say  they  aasess  the  value  "  of  the  alavea  sned 
for,"  but  omit  her  name  in  the  assessment  of  the  value,  they  leave  it  in  great 
uncertainty  whether  they  intend  to  find  one  way  or  the  other  as  to  her.  The 
most  reaaonable  construction  of  the  verdict  is  that  they  intended  to  find  her 
with  the  others,  but  aocidentally  overlooked  her  whan  tiiey  came  to  aaaess 
the  value.  Be  thia  as  it  may,  it  would  be  ruinous  in  many  oaaea  to  allow 
the  rights  of  parties  to  be  concluded  by  such  verdicts.  The  court  must  not 
be  left  to  infer  or  guess  at  the  meaning  of  the  jury,  and  to  arrive  at  a  con- 
clusion as  to  the  extent  of  their  finding  by  aignment  and  doubtful  inferaocei 
hot  the  facts  must  be  found  with  such  reasonable  certainty  as  will  enable  the 
court  to  pronounce  a  satisfactory  judgment,  definitely  settling  the  rights  of 
the  parties.  This  can  not  be  done  in  the  case  before  us,  and  we  think  no 
judgment  could  properly  have  been  rendered  upon  the  verdict,  much  less 
could  it  be  amended  so  as  to  render  a  judgment  ntcne  pro  taac  for  Ann.  The 
judgment  mnst,  conaequeati^y,  be  revaEsed,  and  the  oaaae  nmaaded."    Mr. 


June,  1855.]  OuiiN  t;.  HowsLL  TBS 


J«0ti<»  Rioe  diwiBtod»  aa  the  reader  bae  already  aantlmii  ikaabova  oaae  of 
WiUiekr,  TVotm. 

*'It    la    BULl    THAT    EVSBT  PlSA.  MUar  AKBWIB  WHOLS   DaCLABATIOR 

OR  OouxT,  or  rather  all  that  it  assmnee  in  the  introduetory  part  to  answer, 
and  no  more.  If  a  plea  begins  with  an  answer  to  the  wkoUf  bat  In  truth 
the  matter  pleaded  is  only  an  answer  to  pari^  the  whole  plea  la  naoght,  and 
tfao  plaintiff  may  demur:"  Ch.  PL,  16th  Am.  ed.,  540^  eitiDg  tiw  prtao^ 
case,  together  with  a  yery  large  number  of  otheca. 


GuNN  V.  Howell. 

[97  Aumifi,  MS.] 

fo  D  Good  Dsnom  to  Action  vob  Monit,  on  Uw  part  of  tfaa  dstedanl^  lor 

him  to  establish  that  he  had  paid  said  money  over  to  a  Judgment  creditor 
of  plaintiff's,  after  having  been  subjected  to  garnishment  prooess. 
PuuDDio  FoBUON  Law.— Pabtt  Claimiko  Kiobt  uhdxb  Law  or  Foip 
■ION  JuBUDionoN,  and  not  under  the  common  law,  must  prove  the  law 
upon  which  his  claim  or  right  depends,  aa  a  hat;  and  a^ljing  this 
principle  to  the  rules  of  pleading,  he  would  be  required  to  set  out  the  law 
or  statute  upon  which  he  based  his  claim,  in  order  that  the  court  might 
see  if  it  supported  the  right  asserted. 

IV  PlIADDTO  JuDOMXNT  09  Sl9TBR  StATN,  It  n  NOT  N1CB88ABT  TO  SR  OVT 

AmBMATiTXLT  the  facts  upon  which  the  power  and  authority  of  the 
oourt  prononnoiiig  said  judgment  depends.  ThislssobyTirtaeof  artiala 
4,  section  1,  of  the  United  Statea  constitution,  which  lequlres  that  *<fa]l 
faith  and  credit "  shall  be  given  to  such  judgments. 
Wbdui  Coubt  of  Gxnxbal  JuBiSDionoN  HAS  Spioial  Authobitt  Con* 
VEBRSD  upon  It  by  statute.  It  Is  quoad  hoe  an  inferior  or  limited  court, 
and  In  summary  proceedings  based  upon  such  statute  everything  ra- 
quifed  by  the  statute  essential  to  the  exerolie  of  a  right  thereunder  ii 
necessary  to  the  juxisdiotion  of  the  court,  and  must  appear  from  Iti  pro* 
ceedings. 

BzaOUTION  MUST  BB   IflSUBD  UPON  JUDQMXNT  AND  BbTUBNBD  '*No  PBOF* 

bbtt  *  before  process  of  garnishment  can  be  sued  out  under  Georgia  stat- 
ute of  December  23,  1922^  Prince's  Digest,  86. 

Bboobd  Huar  Show  Jubudiotion.  Where  it  is  necessary,  in  order  to  give  a 
court  jurisdiotion  to  issue  garnishment  prooess  to  satisfy  a  judgment^ 
that  an  execution  should  have  been  Issued  upon  said  judgment  and  ra- 
tumed  "  no  property,"  the  fact  that  said  execution  had  been  so  returned 
must  affirmatively  appear  from  the  record.  It  must  so  appear,  either 
actually  or  by  the  determination  of  the  court.  Whether  the  jnrisdio* 
tiooal  facts  actually  existed  can  Hot  be  collaterally  inquired  into  If  the 
eonrt,  even  erroneonaly,  should  determine  them  to  exist. 

PkOPBB  Bboobd  in  Gabniskbb  PBociaa  consists  of  the  affidavit  and  sum* 
mons,  with  the  return  of  the  officer,  and  the  answer  of  the  garnishee, 
either  incorporated  into  the  judgment,  or  the  bill  of  exceptions,  or  iden- 
tified by  an  entry  of  the  court.  The  judgment  against  the  original 
debtor,  and  the  execution  Usued  thereupon,  are  not  properly  speaking 

part  of  the  record. 
Am.  Dae.  YOL.  LXn— SO 


f86  OUHH  V.  HOWXLL  [. 

Tm  mm  an  me/Oon  for  monej  had  and  leoesfed,  Inoiight  hf 
Larkm  B.  Ouim  against  laaao  HoweU,  to  TBoawet  two  thonaand 
five  hundred  doUara^  the  prooeeda  of  oertiun  notea  which  plaint- 
iif  had  placed  in  HoweU'a  hands  for  coUeetion.    Defendant  in- 
tecpoeed  sereral  pleas,  the  sixth  of  which  was  to  the  following 
efbot:  That  before  the  commencement  of  this  action  plaintiff 
and  one  Jones  were  indebted  to  Malcolm  Johnston  and  flamnd 
Johnston,  as  administrators  of  James  M.  Galloway,  deceased,  in 
a  large  sum  of  money,  on  accoont  of  a  judgment  recoTeced  by 
said  Galloway  in  his  life-time  against  said  plaintiff  and  said 
Jones;  that  said  judgment  was  recovered  in  the  saperior  oonrl 
of  Taliaferro  county,  (Georgia,  '*  which  said  court  had  joiiB- 
diction  of  said  cause;''  that  afterward  Malcolm  and  f^mnmM 
Johnston,  administrators,  in  pursuance  of  the  statute  of  Geor- 
gia, made  an  affidavit  to  procure  the  issuance  of  a  summons  of 
garnishment,  that  they  gave  the  proper  bond  and  security,  and 
that  the  derk  of  the  above-mentioned  superior  court  issued  said 
summons  of  garnishment;  that  said  summons  was  serred  on 
this  defendant;  that  in  obedience  to  said  summons  plaintiff  filed 
his  answer  in  writing  in  said  court  as  the  garnishee  of  said 
plaintiff  and  said  Jones.    Defendant  then  sets  out  his  answer 
at  length,  and  the  plea  proceeds:  "  That  afterwards,  to  wit,  at 
the  same  term  of  said  superior  court,  a  judgment  was  ren- 
dered against  him,  on  his  said  answer  as  garnishee  of  jdaintiff 
and  A.  G.  Jones,  in  favor  of  said  Malcolm  Johnston  and  Sank- 
uel  Johnston,  administrators  of  said  James  M.  Galloway,  de- 
ceased/'   This  judgment  is  then  set  out  at  length,  and  defend- 
ant proceeds  to  allege  that  in  satisfaction  thereof  he  paid  over 
the  money  collected  on  account  of  the  notes  delivered  to  him 
1^  plaintiff,  which  money  so  paid  over  was  the  identical  indebt- 
edness sued  for  in  this  action.  Defendant  in  his  plea  also  alleges 
''  that  said  superior  court  of  Taliaferro  county,  in  the  state  of 
Georgia,  had  jurisdiction  to  issue  said  summons  of  garnish- 
ment, and  to  give  judgment  against  this  defendant  on  his  said 
answer,"  etc.    Plaintiff  demurred  to  this  plea,  and  his  demurrer 
was  overruled.    The  evidence  at  the  trial  went  to  show  how  de- 
fendant became  possessed  of  plaintiff's  notes  and  the  proceeds 
thereof  by  virtue  of  an  agreement  by  which  he  was  to  go  to 
Geoigia  bom  Alabama,  where  both  plaintiff  and  defendant  re- 
sided, and  how  he  collected  money  upon  said  notes,  which  money 
defendant  claims  to  have  paid  over  in  response  to  the  garnish- 
ment process  above  set  forth.    Defendant  also  offered  a  large 
amount  of  evidence  in  support  of  his  sixth  plea,  but  it  is  un* 


lime,  1855.]  Oumi  v.  Howim  TSST 

neoesaaiy  to  detail  it  here.  Upon  the  eridenoe  tm  pioaaoed, 
plaintiff  aaked  for  a  number  of  charges,  which  weire  rafneed  by 
the  court;  but  as  this  ruling  was  not  passed  upon  bj  this  court, 
it  is  not  necessaiy  to  recite  them.  The  plaintiff  now  appeals 
from  the  rulings  upon  the  instructions  asked,  and  upon  the  de- 
murrer to  the  sixth  plea. 

N.  Harris^  G.  W.  Ounn^  J.  E.  Belaer,  and  Jf.  Andreum,  tot  the 
in  error. 


8,  /.  Bice  and  B.  Baugh^  contra. 

By  Ck>urt,  Goldthwact,  J.  The  first  question  piesented  upon 
the  record  is  as  to  the  sufficiency  of  the  sixth  plea.  This  plea 
sets  out  a  judgment  against  the  appellant,  Gunn,  who  was  the 
plaintiff  below,  and  one  Jones,  in  favor  of  James  M.  Oalloway» 
rendered  in  the  superior  court  of  Taliaferro  county,  Georgia, 
which  court,  it  ayers,  had  jurisdiction.  It  then  ayers  that  the 
administrators  of  Calloway,  Maloottn  Johnston,  and  Samuel 
Johnston  made  affidavit,  pursuant  to  the  statute  of  the  state  of 
Georgia,  of  the  amount  of  the  indebtedness,  etc. ,  and  at  the  same 
time  gave  bond  and  security  as  required  by  the  laws  of  G^rgia, 
conditioned,  etc. — ^the  issue  of  the  summons  of  garnishment, 
service  of  the  same  on  the  defendant,  a  judgmentof  condemnation 
on  his  answer,  and  the  payment  of  such  judgment — all  before 
the  institution  of  the  present  action;  and  it  also  alleges  that  the 
court  rendering  the  judgment  upon  the  procciedings  by  garnish- 
ment  had  jurisdiction,  and  that  the  debt  condemned  is  tibe  same 
with  that  sued  for. 

We  do  not  understand  it  to  be  insisted  that  the  facts  alleged 
in  the  plea  would  not  have  been  a  full  defense  if  the  laws  of 
Georgia  which  governed  the  proceeding  had  been  set  out,  and 
it  had  appeared  from  those  laws  that  the  court  which  rendered 
the  judgment  upon  the  garnishment  had  jurisdiction.  This  is, 
in  &ct,  a  settled  question  in  this  court:  Mitts  v.  Siewart^  12  Ala. 
90.  The  objection  urged  is,  that  the  law  of  the  state  in  which 
the  proceedings  were  had  is  not  set  out,  either  literally  or  sub- 
stantially. 

It  may  be  conceded,  as  a  general  rule,  that  where  a  party 
claims  a  right,  based  not  upon  the  common  law,  but  the  law  of  a 
foreign  jurisdiction,  it  devolves  upon  him  to  prove,  as  a  fact, 
the  law  upon  which  the  claim  or  right  which  he  asserts  depends: 
Oochrett  v.  Ourley,  26  Ala.  406;  and  under  the  application  of 
this  principle  to  the  rules  of  pleading,  he  would  be  required 
to  set  out  the  law  or  statute  under  which  he  claimed,  in  order 


fn  OUHH  «.  HOWKUL  [AlahMMj, 

ttwi  <h0  eovl  nde^t  Me  tlmt  ihe  ri^t  daimed  1^ 
ioit 

Tfais  mle,  however,  is  not  of  muTecBal  application,  and  if  it 
applies  to  foreign  judgments  proper  does  not  extend  to  judg- 
ments of  a  sisisr  state,  whieh,  by  the  oonstitation  of  the  United 
States,  article  4,  section  1,  requiring  "  full  faith  and  eredit"  to 
be  given  them,  are  placed  rather  on  the  footing  of  domestio  judg- 
ments, and,  vrhen  duly  authenticated  and  proved,  are  evidence 
prima  facie  of  jurisdiction;  so  that  in  pleading  them  it  is  not 
necessary  to  set  out  affirmatively  the  &cts  upon  which  the  power 
and  authority  of  the  court  pronouncing  the  judgment  depends: 
Jfitts  Y.  Stewart,  12  Ala.  90;  SooUr.  Coleman,  5  litL  860;  Bank  (f 
UnitedStateeY.MsrchantifBankaiBaUimar^ 
cited.  Weareaware  that  decisions  axe  to  be  found  reoognisinga 
oontraiy  doctrine,  but  they  are  founded  upon  the  princqdes  of 
theoommon  law  with  reference  to  foreign  judgments  proper,  and 
in  all  of  them  which  we  have  found  in  the  American  courts  the 
eflGect  of  the  constitutional  clause  we  have  xefened  to  does  not 
appear  to  hare  been  considered.  On  the  other  hand,  the  oases 
which  wehaye  cited  rest,  as  we  think,  upon  sound  prineiple,  and 
are  condusiYe  as  to  the  suffidencqr  of  the  plea. 

On  the  trial  of  the  cause,  as  appears  from  the  biU  of  excep- 
tions, certain  portions  of  the  statutes  of  Georgia,  which  it  is  sup- 
posed authorized  the  proceedilig  in  relation  to  the  garnishment, 
were  read  in  evidence,  as  well  as  the  first  section  of  the  third 
article  of  the  constitution  of  that  state,  which  invested  the  su- 
perior courts  with  general  and  unlimited  jurisdiction  in  all  civil 
cases;  and  it  is  insisted  that  under  these  statutes  the  judgment 
rendered  upon  the  garnishment  was  void,  and  this  question  is 
raised  by  the  chatges  asked. 

The  act  of  the  twenly-tbixd  of  December,  1822,  Prince's  Dig. 
86,  87,  by  its  first  section  authorises  the  plaintiff  in  any  suit 
pending,  or  his  attorney,  on  making  affidavit  of  Che  debt  or 
demand  supposed  to  be  due,  and  that  he  is  apprehensive  of  the 
loss  of  the  same  or  some  part  thereof  unless  a  summons  of 
garnishment  issue,  to  issue  such  summons,  directed  to  any  per- 
son supposed  to  be  indebted  to  the  defendant,  requiring  the 
garnishee  to  appear  at  the  next  term  of  the  court  and  answer 
to  such  indebtedness.  The  second  section  is  in  these  words: 
'*  In  all  cases  where  judgment  has  heretofore  been  obtained,  or 
may  hereafter  be  obtained,  it  shall  be  lawful  for  the  plaintil^ 
his  agent  or  attorney,  to  issue  summons  of  garnishment 
tomable  to  the  superior,  inferior,  or  justice's  court,  as  the 


June,  1855.]  Oukn  v.  Howell  TW 

may  be,  to  be  direeted,  and  leqnizing  the  gaxniflhee  to  depoae 
in  like  manner  as  in  the  preceding  section;  provided  that  the 
plaintiif,  his  agent  or  attorney,  shall,  if  required  by  the  defend- 
ant or  garnishee,  or  by  any  plaintiff  holding  a  youngor  judg- 
ment or  execution,  or  his  attorney,  swear  that  he  believes  the 
sum  apparently  due  and  claimed  on  said  judgment  or  execution 
is  actually  due;  and  provided  further,  that  the  sheriff  or  his 
depufy,  or  constable,  shall  enter  on  said  execution  that  there  is 
no  property  of  the  defendant  to  be  found."  The  last  proviso 
to  this  section  certainly  contemplates  that  before  a  summons  of 
garnishment  can  be  sued  out  an  execution  must  first  issue,  and 
be  returned  *'  no  property/'  This  is  necessary  to  entitle  the 
plaintiff  to  the  remedy  given  by  the  act,  vrhich  is  not  in  con« 
formity  with  the  course  of  the  common  law.  The  rule  is,  that 
where  a  court  of  general  jurisdiction  has  a  special  authority 
conferred  upon  it  by  statute,  it  is  qiwad  hoc  an  inferior  or  lim- 
ited court:  SkhersT.  Wilson,  6  Har.  &  J.  180  [9  Am.  Dec.  497]; 
Thaidier  v.  Powell,  6  Wheat  119;  Denning  v.  Corwin,  11  Wend. 
647;  8mUh  v.  Fowls,  12  Id.  9.  In  our  own  court,  in  affirmation  of 
this  principle,  we  have  invariably  held,  in  summary  proceedings, 
based  upon  a  statute,  that  evexything  required  by  the  statute 
essential  to  the  exercise  of  the  right  was  necessaxy  to  the  juris- 
diction of  the  court,  and  must  appear  from  its  proceedings: 
Batee  v.  Planienf  eic.  Bank,  8  Port.  99;  Ibrd  v.  Bank  of  Mobile, 
9  Id.  471;  Andrewe  v.  Branch  Bank  ai Mobile,  10  Ala.  876;  Leveri 
T.  PUmtef^  etc.  Bank,  8  Port.  104;  Clements  v.  Branch  Bank  at 
Mdntffomery,  1  Ala.  50.  So  in  TaKa/erro  v.  Lane,  23  Id.  869,  we 
held  an  atteohment  against  a  domestic  administrator,  where  the 
affidavit  of  the  plaintiff  did  not  show  that  the  intestate,  at  the 
time  of  his  death,  was  a  resident  of  the  state,  void  on  the  same 
ground. 

In  the  case  at  bar,  the  statute  of  G^rgia  under  which  the 
administrators  of  Galloway  asserted  the  right  to  proceed  by  gar> 
nishment  did  not  confer  that  right  upon  them,  unless,  as  we 
have  seen,  an  execution  had  been  issued  upon  the  judgment,  and 
returned  "no  property."  It  is  not  necessary  by  the  act  that 
this  should  appear,  eitiier  in  the  affidavit  or  the  summons,  but 
it  if  a  fact  upon  which  the  authority  of  the  party  and  of  the 
eourt  to  proceed  depends;  and  as  it  is  the  duly  of  the  latter  to 
determine  whether  the  law  in  this  respect  had  been  complied 
with,  it  is  necessary  that  the  record  should  affirmatively  show 
that  it  was  done.  If  the  eouri  should  determine  the  fact  incor- 
teottyi  it  would  be  error,  but  it  would  not  affect  the  validiiy  of 


790  Gknnf  u  Howell.  [Alabama 

the  judgment.  In  a  ceae  like  the  present,  whether  &b  jmisdu^ 
tional  &ot  aetually  eiieted  can  not  be  collaterally  inquired  into, 
if  the  tribunal  to  whose  cognizance  the  question  ia  referred 
determined  it  to  exist;  but  if  the  record  fails  to  show  the  fact, 
either  actoallj  or  by  the  determination  of  the  court,  than  the 
basis  on  which  the  right  to  the  special  remedy  rests  ia  wiantiiig, 
and  the  whole  proceeding  is  Toid. 

The  record  of  the  case  would  properly  consist  of  the  affiAant 
and  summons,  with  the  return  of  the  officer,  the  answer  of  the 
garaiahee,  either  incorporated  into  the  judgment  or  the  bill  of 
exceptions,  or  identified  by  an  entxy  of  the  court:  Saunders  ▼. 
Camp,  6  Ala.  73;  Jones  t.  ffoweU,  16  Id.  695.  Neither  the  judg- 
ment against  the  original  debtor  nor  the  execution  issued  upon 
it  is,  properly  speaking,  any  portion  of  the  record  upon  the  pro- 
ceeding in  garnishment.  Th^  are  simply  eridence,  and  unless 
shown  in  one  of  the  modes  indicated  above  to  have  been  legiti- 
mately made  a  part  of  the  record  can  not  be  regarded  as  such, 
when  they  do  not  appear  to  be  connected  with  the  proceedings 
in  any  way,  merely  from  the  fact  that  they  are  certified  as  such 
by  the  clerk  of  the  court:  Bates  ▼.  Planter^  etc.  Bank,  8  Port 
99;  Mills  ▼.  Stewart,  12  Ala.  90. 

But  were  we  to  regard  the  judgment  against  Gkinn  and  Jones, 
and  the  execution,  which  is  certified  with  the  proceedings  on  the 
garnishment,  as  forming  a  portion  of  that  record,  we  axe  still 
of  the  opinion  that  they  failed  to  show  the  eflHentialfl  necessary 
to  the  jurisdiction  of  the  court.  The  judgment  against  the 
garnishee  fails  to  show  that  the  action  of  the  court  was  based 
in  any  respect  on  that  execution;  and  in  proceedings  of  this 
eharaoter,  nothing  is  to  be  taken  by  intendment:  Per  Ormond, 
J.,  in  Bates  t.  Planters^  etc.  Bank,  8  Port.  99.  It  can  not  be  re- 
garded as  evidence  of  the  existence  of  the  jurisdictional  fact,  for 
the  reason  that  it  does  not  correspond  with  the  judgment,  which 
is  in  faTor  of  James  M.  Calloway,  while  the  execution  is,  in  legal 
efiiect,  in  the  name  of  different  persons,  and  purports  to  be  on 
a  judgment  recoTcred  by  them.  Even  were  we  to  regard  it  as 
issued  upon  the  judgment  recoTcred  by  Calloway  in  the  name 
of  his  administrators,  the  execution,  without  a  revival  of  the 
judgment  by  them,  would  be  void:  Stewart  v.  Nudools,  15  Ala. 
S25;  and  could  not,  therefore,  be  regarded  aa  a  valid  foundation 
for  a  right. 

It  not  appearing  from  the  record  that  an  execution  had  issued 
on  the  judgment  in  favor  of  the  creditor,  we  are  of  opinion  that 
the  judgment  against  the  garnishee  was  void  for  want  of  juris- 


June,  1855.]  OUMK  v.  Howxuu  791 

diction;  and  in  uriTing  at  this  condnnon,  ira  liate  not  obnaid- 
exed  it  neoesaaiy  to  refer  partienlarly  to  the  other  portiona  of 
the  laws  of  Georgia  which  the  faill  of  exceptiona  ahowa  were  in 
evidence,  for  the  reaaon  that  they  do  not  aiEsot  that  part  of  the 
act  of  December,  1822,  which  we  have  already  examined,  and 
which,  in  the  absence  of  eridence  showing  ita  repeal,  mnat  be 
VQgarded  aa  controlling  the  case. 

As  the  questions  we  have  considered  will  probably  be  dedsiTa 
of  the  case  upon  another  trial,  we  deem  it  mmeoesnaiy  to  con- 
sider any  other  question. 

Judgment  reversed,  and  cause  remanded. 

Cown  ABB  vox  Bouin>  ix  Omozo  to  Takb  Konoa  or  Laws  or  Oma 
BftATMSi  Pdier  t.  Planter,  42  Am.  Die.  197.  Iawi  of  a  siitv  stele  an  fMti 
whio|^  oan  be  reoognised  and  aoted  on  only  when  proved  at  the  trial:  Af^bftl 
T.  HoUmum,  CO  Id.  228|  Kckm  t.  Sekommr  Bmaiimmee^  62  Id.  577|  Baie  ▼. 
Iftw  Jermif  Steam  NturigaUom  Ob.,  89  Id.  898,  and  nnmenmB  oaaea  cited  In 
note. 

JuDOMKKT  Of  SiSRR  SvATB.—- The  ooorte  of  one  atete  are  bofond  to  give 
same  faith  and  credit  to  judicial  proneedingi  had  In  a  aiater  atete  that  are  l^ 
law  or  naage  giren  to  them  in  that  atate:  MeJUUm  t.  Lave^  54  Am.  Deo.  449. 
Seealaothe  oaaea  cited  in  the  note  to  Ewer  t.  {7<{^  48  Id.  089.  In  this  note 
It  ia  said:  *'A  judgment  of  a  aiater  atete  ia  not  entitled  to  foil  faith  and  credit 
nnlesa  the  jnriadiotion  ia  miimpeaohed  and  nnimpeaehable,"  citing  Haggtrtff 
T.  Amory,  7  Allen,  469. 

Whsbs  Rboobd  Of  JuDGMiKT  Of  SisviB  Stais  Btatea  that  the  defend- 
ante  therein  had  notice,  or  that  they  appeared  therein  in  defense,  it  aeema 
that  it  can  not  be  gainaaid.  Bat  if  the  record  doea  not  ahow  any  service  of 
process  or  any  appearance  in  the  suit,  the  effect  of  the  judgment  may  be 
avoided  by  ahowing  that  the  court  had  no  jnriadiction  of  tiie  defendants 
HaU  ▼.  fTiKtdfnt,  17  Am.  Dec.  868.  A  laige  nombar  of  oaaea  treating  npoa 
this  subject  are  cited  in  the  note  to  tliia  caae.  See  ITkasBian  on  Judgmenti^ 
aeo.665. 

JnaiBDionoir  n  PanuiaD  in  fairor  of  judgment  of  a  court  of  ganaral 
Jurisdiction,  but  It  must  be  shown  in  the  caae  of  a  Judgment  of  a  court  of 
limited  jurisdiction:  JJoraa  t.  WahrttAarger,  68  Am.  Dec  146.  So  notldng 
is  Intended  In  favor  of  the  Jurisdiction  of  Inferior  oourte,  but  If  the  jurisdic- 
tion is  shown,  everything  wfll  be  Intended  in  favor  of  the  Judgment:  Tucket 
V.  Harris  Id.  488. 

WaaBi  Statotb  Onris  Boodt  where  thece  was  none  before^  It  ouj^t 
to  be  followed:  App  v.  i)fieis6acA,  21  Am.  Dec  447;  Wttmom  t.  Traey^  28 
Id.  626.  Upon  thia  point  we  present  a  quotetion  from  a  very  recent  CUi- 
fomia  caae  The  caae  was  an  application  for  a  writ  of  prohibition  by  a  cor* 
potation,  under  a  stetnte  requiring  that  the  petition  for  tiie  writ  must  be 
signed  l^  a  majority  of  the  ahareholdera.  The  court  aay:  "The  authority  of 
tiie  superior  court  to  proceed  is  whoUy  stetatory.  It  Is  a  special  {noceedlng 
provided  by  stetate,  not  according  to  the  course  of  the  common  law;  and  to 
Invest  such  court  with  jurisdiction,  tiie  requiutee  of  the  act  must  be  complied 
witii,  and  it  must  ao  appear  upon  the  face  of  the  record.  If  not  ao  complied 
witiu  the  court  haa  no  Jurisdiction  to  ptooeed.   This  Is  so  clearly  the  law  thai 


791  OUKK  tn  HowiLL.  [Alabama 


II  to  VMMHwy  to  dli  aatkorflif  to  MMldA  il^  biit  wt  «m  niv  to 
Omm^  ▼•  AmwIi  IB  QcMfc  873)"  OOb^Bor  Jfialiv  ^  ▼•  l^^Umh  0  W«al  CohI 
R0P.278. 

JUDOIOaT  AOAIimf  QABimim  GAX  VOS  BB  OOLLAXWMAMIX  ATTAITgW»  lot 

brtgiilari^  la  the  ptiw^tlngi  upon  wliloli  it  ivM  bMed,  m  by  ahowiiig  tluA 
the  gMafahmiBt  w«i  iwtd  mod  mrwtd  beJow  a  retorn  ol  "no  laopmty  "  wm 

to  fhii  OMMb  wliOTe  tlM  qQBrtioii  Is  i^JbbiibI  al  leogtii;  we  ako  Diaks  cb  Ai^ 
ftMhoimti,  BMi.  B68ft»  706^  71«»  71L 

Tn  nmraiPAL  case  ombo  agdn  before  thli  oooityaad  the  deoimm  ttMnto 
li  feported  in  Omm  t.  ^OMeO;  86  Ale.  144.  Hie  prinoipel  oeee  ie  oited  fai 
Famlkt  r.  Heard,  tl  11  61<^  to  the  point  that  wImb  ea  appeal  is  token  by 
the  gerniifaee  fram  the  Jad^BMiA  raBdendL  the  JadgBMat  egaiaak  tke  ok%K- 
bbI  detedeat  eoaetitotee  ao  pert  of  the  leooid  of  the  eaoee  anleeB  nade  •• 
bj  bill  of  eoraaplioBii  or  ia  bmbb  other  appropriato  Bnaaer.  See  alao^  ea  tiw 
nme  poiat^  OMd  ▼.  JfdfB-.  ae  U.  MB.. 


INDEX  TO  THE  NOTES. 


AooouOT  Stated,  aoquieaoeiioe  reqoirod,  88. 

admlaiion  of,  87«  91. 

ban  mit  for  an  aooonntiiig,  94. 

bftok-bookfl,  when  writton  ap»  baoomey  90l 

bftwd  on  Toid  claim,  93. 

broker*!  books,  written  op,  may  baoomey  90l 

oapaoity  to  make,  87. 

oomplidnt  on,  87,  93. 

oondnnTeneu  of,  91. 

defined,  85. 

difference  between  and  aoooont  ■ettlad^  88.  9ti 

eflfeot  of,  on  miginal  debt»  93,  94. 

cRora  excepted,  87. 

•■lenttalB  of,  85. 

evidence  of,  87. 

impeaching,  93. 

intereet  on,  90. 

1 0  U  as  evidence  of,  91. 

mutual  demands  not  enential  to,  8ft. 

need  not  be  signed,  85. 

promise  to  pay,  when  an  essential  part  of,  8S. 

statute  of  limitation  to  action  on,  94,  96. 

when  account  rendered  becomes,  88,  89. 

where  only  one  item  is  objected  to,  90. 
▲DiOinsTBATOB,  action  against,  for  tort,  fi20l 

when  may  impeach  deed  for  fraud,  518,  540. 
ADHXftAurr,  common-law  remedy,  242. 

conflict  of  jurisdiction,  243. 

contract  to  build  ship,  243. 

jurisdiction  of,  does  not  depend  on  ebb  and  flow  d  tide,  2IC 

Jurisdiction  of,  extends  to  all  navigable  waters,  235. 

jurisdiction  of,  is  exclusive  in  the  national  conrtSs  23S. 

jurisdiction  of,  over  canals,  236,  239. 

jurisdiction  of,  over  iniemal  commerce  of  states^  2881 

jurisdiction  of  state  courts,  238. 

jurisdiction  of  United  States  district  conrtSs  284^  288*  . 

jurisdiction,  subjects  of,  237. 

Jurisdiction,  tests  of,  235. 

liens  and  their  enforcement,  240L 

liens  on  veseels,  power  of  states  to  create  and  eoforos^  MOl 


1 


794  Index  to  thk  Norn. 

AminuiffTt  BMrttiuM  lieni,  stele  oontrol  ow,  MOl 

BftTlgable  riven  defined,  236. 

yeieels,  eoite  aguiittp  in  stele  oooits,  24S. 

▼eeseli,  what  within  joriadiotion  ol,  830. 
Ajuwwbsm  FoflBnnoK,  lands  held  by  misteke  as  to 


JUjieborct.  disehaige  Tmlid  where  mede  is  vnlid  elseiiiihsi%  tlL 
fbraign,  efliset  of  disduurge  iuider»  611-613. 
when  not  a  her  to  en  action,  613. 

OomDir  Gabbibb,  oontraot  limiting  liahOity  o|»  29^  iltb 

genefal  notioe,  limiting  liability  of,  078. 

negligence,  accidents  from  which  infemd,  68SL 

negligence,  acddenti  from  which  not  inferredt  686-68IL 

negligence  inferred  from  boiler  exploding,  684. 

negligence  inferred  from  breaking  down  of  bridge^  686i» 

negligence  inferred  from  breaking  down  or  upaetliBg 

negligence  inferred  from  breaking  of  axle,  684. 

negligence  inferred  from  car  orertnming,  682. 

negligence  inferred  from  car  ranning  off  the  track,  683ii 

negligence  inferred  from  collision,  684. 

negligence  inferred  from  defective  rail,  688b 

negligence  inferred  from  misplaced  rail*  688L 

negligence,  instances  when  not  infemd  from  a<wlileBt> 

negligence  preeamed  from  accident,  680. 

negligence,  when  carrier  must  disprove,  680-688. 

negligence,  when  passenger  most  prove,  681. 

power  to  limit  liability  l^  agreement  or  notice^  62Ai 

performance,  what  excuses,  161. 
OoNDinoN,  precedent,  performance  or  waiver  mnat  be  thowBy  6^ 

precedent,  performance  of,  what  exonaeSy  64. 
C0M8TITUTIONAL  Law,  corporation,  legislative  oontnl  over,  6S8L 

legislative  powers,  639. 

police  powers,  extent  of,  689. 

remedies,  power  of  legislatare  over,  112. 
OovTBACT  to  build  ship  or  manofaotore  pfopsi'ty  doea  not  Tail  till% 
OoBPORATiON,  exemplary  damagea  for  act  of  agenti  880-888. 

legislative  control  over,  639. 
Oo-«BNANOT,  improvements,  allowance  for,  in  aotiona  of  aoooimt»  484i 

improvements,  allowance  for,  in  actions  for  partition,  484-487* 

improvements,  allotment  of,  in  actions  for  partttiooy  484. 

improvements,  right  of  contribatlon  for,  488. 

repairs,  liability  of  co»tenant  for,  488. 

repairs  of  mills,  482. 

repairs,  writ  for,  482. 
OBDf iv AL  Law,  corpus  detteU,  proof  oi;  184. 

gnilt,  evidence  indicating,  considered,  186. 

new  trial  only  exposes  defendant  to  conviotfon  of  oftnae  of  yMA  kt 
before  convicted,  668. 

oflense,  conviction  of  leaser,  is  acquittal  of  tine  giealsr,  6I8L 

reasonable  doabt«  183. 


Indxz  to  thk  Noim  TM 


giWiiiM,  «xMiiplaiy,  f^Jaa^  oorpcntloa  te  mI  of 

•OMnpUry,  agftfaist  nuuter  te  Ml  off  mrHiti  STfL 

•zttnplAry,  agfeinat  mnnldpal  oorpontfon,  S30L 

•zompUry,  for  groM  n^loot  of  ootpotmtioii,  S88. 

•zempUry,  when  reoorormblo,  879. 

moMiire  of^  lor  breaoh  of  oontnot  to  dtlirv  goodly  IML 
DviHiTiov  of  aoooant  atelodt  8S. 

of  dreimuftMitial  endonoe,  170. 

of  direot  and  Indireot  eridenooi  179^ 

of  gaQot»686. 

of  imi,  687. 

of  BftYigdi»le  rtvon  aad  watoMb  SU. 

pf  BOtioe,  S20. 

of  reaaonable  dooM*  18S. 

BliionoK*  foundation  of  doolrliia  of,  208L 
Btxducb,  droDnatantlal,  ad^anlagea  and  diandfant^pii  it  ISL 
oinmmctantial,  anumnt  reqniaite,  182,  188. 
oiroiiniatantial,  defined,  179. 
olroamatantial.  In  oivil  oaaea,  ■nffldiapy  o^  187* 
eiroamatantial,  kinds  of,  179. 
oiioiunitantial,  nature  aad  neoeaaity  of,  180l 
ciroamstantial,  mlea  of,  186. 

to  prore  eorpu»  ddidif  IBL 
what  indioataa  gnllt,  18S. 
oonf eaaiona  of  aoooaed,  how  ahonld  be  rcgMrded»  99L 
declaratlona  of  aoooaed  in  hia  own  favor,  088. 
deelarationa  of  teatator  to  impeaoh  hia  wiH,  9fK 
direot  and  indireot,  179. 
«,of  market  value,  what  oompetent,  187. 
SxBOunoN,  iaened  five  yeara  after  JndgnMBt  waa  cntand,  118. 
fcnouTtov  Bali,  injnnetion  to  prorent  beoaaae  it  wonld  elond  plafaitm 
title,  628. 

FiXTUBsa,  defined,  69. 
hop  polea  and  looti^  70. 
marine  railway,  70l 

HomBKBAD,  judgment  lien  thereon,  709. 

mortgage  on,  by  hnaband  aad  wife,  860i 
HuBBAiTD  AND  Wm,  aepamte  property.  Identity  iC  ^0^  giiiwiii,  478L 

iMnoTEMMSTSt  poaaeaBor  in  good  faith  entitled  to  oonpMnlloB  for, 

setting  ofl^  to  oo-tenant  on  partition,  484^487« 
IwPiOTMMT,  how  proved,  645. 
JxwAMTt  oonsideration,  wlien  need  not  retnnif  hdan  smdtDfMag  ooalnMli 

efleot  of  reaoiaBion  of  sale  by,  784. 

whether  may  diaaillrm  without  reatoring  poxduMa  BMnajt  784-787. 
Ixnjironov  to  prevent  oloud  on  title^  688^ 

to  prevent  ezeoutioa  aale  agalnat  plaiatin  graator,  888L 
bar  defined,  687. 

gneat  at,  defined,  686. 

gneat  at,  oeaalng  to  be,  090. 


796  Ikdex  to  the  Notes. 

hnXt  gii0rt  al;  fifferenoe  between  and  boarder,  086,  <Ml 
goflsi  at,  faitanoee  wbera  penoDB  were  beld  lo  be^ 
^eet  et,  need  not  be  preeent  In  pefsoOf  oB9« 
gneit  at,  temporary  abeenoe  of,  688. 
goeet  at»  wbo  ia  not,  589. 

^mwimrr,  aaaaiUng,  for  fraud,  168. 

oooelQaivaoeea  of,  660. 

eqnitaUe  defenae,  how  may  be  iqade  imdar  the  eod%  1611 

of  oonrt  haying  no  Jnriadiotion,  168. 
Jmr  TxiAL,  charge  mnat  not  exprei  qpinkiii  wepeeting  we^ht  <l 
608. 

llqaon,  drinking  of,  by  Jvron,  602. 

Lmatim,  refonding  by,  when  compelled,  218. 

UAttttftt  Woman,  title  to  peraonalty  of,  Teeling  of,  in  hoabaad,  167. 

ILkflviK  Aim  SniTAirr,  exemplaiy  damagea  agpHnat  maater,  oaaea  dflBjftig^  888. 
exemplary  damagea  againat  maater  lor  tort  of  am  ant,  879L 
exemplary  damagea  againat  maater  for  wanton  aot  of  aerraal^  878*ML 
exemplary  damagea  agdnat  maater  having  notice  of  nef^igeBt  habiti  ^ 

aenrant,  388. 
exemplary  damagea  againat  maater  iHio  retaina  In  Ua  eoiqplogr 
goilty  of  tortiooa  aot,  887. 
MoMOAOi,  oonyeyanoe  aooepted  aabjeet  to,  141. 
MvKioiPAL  OoKPORATioir,  liability  of,  fat  malfwaaapoa,  mtafnwBOi^ 
feaaance  of  ita  officera,  184. 
liabiU^  of,  for  taxea  illegally  coHeeted,  18& 

NMornABLB  Inctbumbnt,  aale  of,  when  naorlooa,  118. 

when  firat  haa  legal  inception,  118. 
KiouosNoa,  when  preaomed  againat  common  carriBTi  08(>-688b 
NswarAPBB,  adyertiaement  in,  notice  of,  when  and  againat  wham 
820-322. 

diaaolntion  of  partnerahip,  effsotof  notice  pnbliahed  In,  8801 

liability  of  owner  for  libel  by  editor,  888. 
Konci  defined,  320. 

in  newapaper,  820-322. 

peraonal,  generally  required,  320. 

preanmption  of,  from  pablioatlon  in  newipapar,  880-488L 

pABmcBSHip,  dlaaolation,  groonda  for  compelling,  778. 

diaaolntion,  partaer'a  ri^t  to  compel,  bafova  rrqilnitinii  of 
nated  in  partnerdiip  artiolaa,  778. 
pATmMT,  oompalaory,  what  ia,  162. 
PntPOBMAiraB,  anbaeqnent  caaoalty  doea  not  eaonaa^  16L 
PftOPXBTT  in  veaael  contracted  to  be  bnilt,  66^ 

Eailboao,  liability  of,  for  aaaanlt  by  oondootor,  888. 

liablUty  of,  for  failure  to  protect  paaaenger  from  inaolti 

liability  of,  for  false  imprisonment,  884. 

liability  of,  for  wanton,  willful  aot  of  conductor,  880-884 

liability  of,  for  wrongful  expulsion  from  car,  888. 
BAAiOKABLB  DocBT  defined,  183. 


Umn  TO  THi  Nam  T9Y 


^JOM  Of  CaArraL,emfmi  emptor  UiStMraU  id,  4001 

ntmttiiig  premunptioii  of  wamnty  of  titles  4O0L 

title,  when  veitt  by,  359. 

wsmuity  implied  by  excbmnge,  407. 

wmmnty  implied  l^  nle  in  writing,  400. 

wnmnty  implied  by  nle  of  choae  in  aotioo,  487* 

warranty  implied  by  the  civil  law,  400. 

warranty  implied  by  the  oommon  law,  40IM8S. 

warranty  implied  by  the  law  in  Canada,  403» 

warranty  implied  by  the  law  in  the  United  8tatea»  40IM6IL 

warranty  not  implied  at  sheriff*B  and  other  offidal  aalMy  40i 
8hip,  contract  to  traild,  in  whom  property  Tettiy  00^ 
fiTATDTB  ov  LxMiTATioHS,  landa  held  by  mJitakeb  087* 

new  promiM,  by  whom  may  be  made,  101. 

new  promise,  aaffioienoy  of,  101. 

Tonima,  how  far  corporate  bodiea  in  New  Toric,  USL 
TwonwEB,  compenaation  of,  210. 

UsDBT,  aale  of  note,  when  offenda  law  of,  llOw 


VuDQB  AHD  YiNDU,  Bale  Under  Judgment  fme  pawhaaa 
Vbtoob's  Lun,  priority  over  mor^gnge  and  oUmt  Ikoi^  SU. 
ynsEiSf  prooeedinga  againat,  in  state  courts,  ffSfrrMli 

Wabbautt  implied  in  aale  of  chattels,  40IM8S, 
Will,  dedarationa  of  testator  to  impeach,  80. 

declarations  of  testator  to  prove  making  of,  OQL    - 
declarations  of  tsstalor  to  prove  levooaHoBi  Ml 
WEnnio,  parol  evidence  to  explain,  180L 


INDEX. 


ABANDOKIOEMT. 
BmOoMmasCAMMOMB,  tiL 

AOQB8SOBIB8. 
8m  Ommiwai.  Law,  17;  Evxdbhoi»  $, 

ACCOUNT. 

an  «BOii|^  to  nndw  it  binding;  aad  tiMM  an 
whM«  QB«  iHtina  an  aoocmnt  iend«nd  bayood  a  TCMOBAblt  tbM  for  ( 
ination  without  ol^eoting  to  its  oorreotnoM,  and  In  additioo  tiMVila 
dimwa  for  and  faoalYaa  tho  balanoo  ihown  by  raoh  aooonak  Lochtood^* 
noffiM^BL 

AcnoKa 

8aa  CoKMOir  CABBma. 

ADMIRALTY. 
Sea  JuBiBDicnoK,  8,  4;  Smrpnra. 

ADVERSE  FOSSESSION. 

L  BaTBT  n bt  Colob  ot  Titlb  wban  it  ia  made  under  iklommJUkt  and  ■«• 

pretcndedt  dalm  to  title.    Orem  ▼.  JTeBiMS  332. 
t.  As  BBTWBBir  IwaxTDMBB  UPON  Laxi>,  the  fixat  in  poM— job  ia  b«l  la 

zil^t.    Id. 
H  DnasnoB  bas  Good  PoasBBSioir  AOAZNar  Evbbibopt  bat  tiia  tna 

Id. 
C  PoaaBBaiovoiTwoTBAioiBOf  Land  Ai)jonrnroOivBDrDiBPim,fori 

yean,  ie  not  raeh  poaieeiion  of  the  latter  tract  aa  will  give  the  party  in 

poaMidon  a  good  title  onder  the  atatnte  of  limltatjiPfHt  althoogh  tba 

three  traoti  were  oonTeyed  by  one  deed,  aa  leparate  traoti  eeparately 

deaeribed.    L<^t.CM,17Z. 
fb  FwMtasQ  HoQS  AHD  CmrTiHo  Tdcbbb  Tbbbb  nvoB  Tbaot  ot  Labd  loa* 

oaptlble  of  other  modee  of  nie  and  enjoyment  are  not  eridenoe  of  sooh  m 

poaieeiion  an,  oontinned  for  eeren  yean  nnder  oolor  of  title,  will  ocnlsr  • 

good  title  under  the  atatnte  of  limitationa.    Id. 

AGENCY. 

L  FOWBB  OF  AffVOBVBT  HVST  BB  C0N8ZBUBD  AB  GlTIBO  AVlBUIBIVr  10 

799 


800  Indkx. 


only  in  the  wpm4»  indiTldiuJ  buiiiMH  of  tiM  prinoipd*  in  tkei 
of  anythiiig  to  show  a  diffiBrent  intentloii.    iSitotuftadb  ▼•  BmMd^  64ft. 

I.  Pabtt  Diauko  with  AoxirT  Aotuto  ukdsb  Writtbh  AimioBiTr 
teke  notioe  of  the  extent  and  limits  of  that  authority.    ItL 

H  Jonrr  Bill  Dbawh  bt  Aokbt  dt  Naicb  ot  Pbikg[fal»  ahd  dt  m  Own 
brDiYiDUAL  Capaoitt,  it  not  drawn  in  the  separate  IndiTidoal  faosinsH 
of  the  principal,  and  is  therefore  not  anthoriied  by  power  of  attORiay  to 
draw  bills.    Id, 

4  Dbclabations  ov  Aoxmt  abb  irot  BnDiNOB  AOAnrer  Puitgipal  nnkss 
they  are  direotly  connected  with  and  made  a  part  of  the  tnnaasCioiis  ol 
the  agency;  and  if  made  at  a  time  sabsegnsnt  to  the  act*  they  are  inad- 
missible.   Ocbb  T.  JohMMh  457. 

Bee  Banks  ajtd  Bankuto;  Damaowb,  5;  Nmotiabli  LanxnaHtB,  10^  ll| 
Pabitnibship,  7-0;  Plbaddvo  and  Pilaiokiibh  1I|  BahwuiMi  1,  S;  9^  10| 

AORBEHENTS. 
See  CoBTBAon. 

ALTERATION  OF  IN8TBUMEMT8. 

L  Pabtt  Pbooooivo  Pbomibbort  Kotb  Which  Appbabs  upon  m  Faob  to 
HATB  BBBV  AiiTBBBD  in  a  material  part  most  aoeoont  for  nieli  ahmtloo 
by  explanatory  evidence;  and  if  no  snoh  erideooe  is  addnoed.  It  wvNild  be 
error  for  the  oonrt  to  leaye  to  the  ]nry  the  question  whether  or  not  snoh 
alteration  preceded  delivery.    Oktrk  t.  JCdeitdn,  807. 

8.  Onus  is  upon  Pabtt  Pboduoino  Pbomissobt  Kotb  which  appean  to  haTe 
beenaltered  in  a  material  part  to  show  the  legality  of  the  instrnmentk  Id, 

H  Wbbthbb  or  not  Instbuxbnt  Which  Appbabs  to  hatb  sbbn  ATiwmgn 
has  in  fact  been  altered  is  for  the  jnry  to  determine.    Id, 

AimiAia 

!•  Labob,  Fbbociocs  D0O9  AccnsTOMBD  to  Brb  Mankind,  n  OomioN  Hvi- 
8ANGB.  and  snch  a  dog,  if  allowed  to  go  at  largB«  may  be  killed  by  a  psr> 
son  without  showing  that  the  killing  was  done  in  necessary  self-defense. 
Brmm  v.  Carpenter,  603. 

9L  OwNBBs  Of  DoMKsno  Animals,  Such  as  Cattlb,  Hobsbs,  Hogs,  sra,  abb 
NOT  Pbohibited  bt  Law8  Of  Ohio  tbom  Allowino  Trbm  TO  Run  at 
Labob  on  the  range  of  unoultiTsted  andunindoeed  lands,  unless  they  are 
known  to  be  breachy,  unruly,  or  dangerous.  The  common  law  of  Bog- 
land,  requiring  the  owners  of  such  animals  to  keep  them  on  their  own  landsp 
or  within  an  indoenre,  has  never  been  in  force  in  Ohio;  it  being  not  only 
inapplicable  to  the  circumstances,  condition,  and  usages  of  the  people^ 
but  inconsistent  with  the  legislation  of  the  state.  Kerwhacter  t.  C^ew^ 
Umd  eU.  B.  R.  Co,,  246. 

8,  Ownbb  Of  Gattlb,  Hobsbs,  HOO0,  and  Othbb  Livb-btock  in  Ohio  n 
GuiLTT  Of  No  Unlawtul  Act,  ob  or  Omission  of  Obdinakt  Gabb 
IN  Kbepino  or  caring  for  them,  by  sllowing  such  stock  to  run  at 
large  on  the  range  of  uninclosed  lands;  for  by  so  doing  he  does  nothing 
more  than  that  which  has  been  customary,  and  which  has  been  by  oommon 
consent  done  generally  by  the  people  since  the  first  settlement  of  tiie 
state.    But  if  such  animals  are  dangerous  or  mischievous,  the  owner  is 


Inbsz.  801 


kittod  to  ^M>wifiiMi  ihMBy  or  h%  TinpfiMflito  for  Miy  Igh  of  dMBMB  oiliHr 
penoDfl  may  suffer  thereby.    ItL 
See  ADVBR8X  Pmsissiok,  6;  Fbhtcbs;  Loct  Fbopbrt;  Bailboaui^  1-8. 

AEBITRATIOK  AND  AWARD. 

L  Equitt  will  BxruBB  to  Ihtxkpxrs  to  Bhiorob  Pxsfdbmanoi  of  Awabis 
whoi  the  injniy  or  damage  which  a  party  will  suetain  by  non-pefform* 
aaoe  is  capable  of  being  exactly  meaanred,  and  complete  redrea  can  be 
afforded  at  law.    Kirheff  v.  Itke^  768. 

5.  JuBisoionoN  or  Equity  to  Grant  Spboitio  Pkbtobmanob  ov  Award  is 

KOT  Barbbd  by  the  &ot  that  the  complainant  might  sacoeeafally  main« 
tain  an  aetian  at  law  thereupon.  If  the  rerdiet  at  law  ooold  not  give 
him  all  that  it  was  the  object  of  the  award  to  gire  him,  equity  should 
award  its  specific  performance.  Id, 
t»  Srscino  PxRroRiCAVCX  ov  Awasd.— The  parties  were  engiged  in  the  tan- 
ning business,  and  disagreeing,  submitted  their  accounting  to  arbitra- 
tion. By  the  award  complainant  was  to  receive  one  half  of  the  skins  in 
the  yard,  one  half  of  the  leather,  and  the  use  of  one  half  of  the  vatii 
HMf  that  a  court  of  law  could  not  afford  full  compensation,  as  it  could 
not  look  to  the  profits  he  might  derive  from  his  business,  nor  the  loss  be 
might  SDstdn  because  of  the  other  party's  failure  to  perfonn  in  speoia.  Id, 

ASSBSSOB& 
See  OoBTOBATioirSp  8. 

ATTACHMENTS. 
!•  JvsoHDre  Dbbtob  gah  hot  br  GABBmiBB.    Sertoli  ▼.  IRiilsr,  297. 

S.   MaXBB  ov  NhQOTIABUI  PBOMIflSOBT  KOTB  IB  NOT  LlABUI  AS  GABVISKa 

OV  Patbb.    Da»U  v.  Pawktte^  600. 

t»  Kaxbb  ov  PBmoBaoiiT  Kotr  Exboutkd  akd  Madr  Patablb  dt  Vbb- 
MOST  IS  Chaborablb  AS  Tbustbb  of  the  payee,  in  trustee  process,  as 
against  as  indorsee  who  ftuls  to  notify  the  trustee  of  the  trsnsfer  before 
aervioe  of  the  proceas,  although  by  the  lawa  of  the  atate  where  the  payee 
Slid  the  indorsee  reside  promissory  notes  are  ezoepted  from  the  opera- 
tion of  the  trustee  process.    Hmermm  v.  Patndgt,  617. 

C  It  IS  Good  Drvbnsb  to  AcnoB  bob  Mobbt,  on  the  part  of  the  defendant^ 
for  him  to  establish  that  he  had  paid  said  money  over  to  a  judgment  cred- 
itor of  plaintiff's,  after  having  been  subjected  to  garnishment  process. 
Chmm  V.  HmotUj  78& 

6.  Gabbosiibb's  Statbmbmtb  must  bb  Taxbh  as  Adhixtbd,  wlien  the  plaint- 

iff in  attachment  does  not  make  an  issue  upon  the  answer.  Davu  v. 
Patfflette,  690. 
A.  MonoN  voB  JuDOMBMT  WON  Gabnishbb's  Akswbb  is  ur  Katubb  ov  Db* 
icUBRBB  TO  BviBBBOB,  and  if  the  facts  stated  do  not  raise  or  establish  a 
liability,  or  if  the  garnishee's  liabiUty  is  positively  denied,  the  phdntiff 
in  attachment  must  fail.    Id. 

7.  Pbopbr  Bboord  in  Gabnishbb  Pbocrss  consists  of  the  affidavit  and  sum- 

mons,  with  the  return  of  the  officer,  and  the  answer  of  the  gainlshee, 
either  inoorporated  into  the  judgment,  or  the  ball  of  ezceptions,  or  iden- 
tified by  an  entry  of  the  oourtk    The  Judgment  sgdnst  the  original 


802  Index. 

dtbtor,  and  tlM  «zeoDtu»  ivaed  thereapon^  ure  not  pnpmfy  ipaMm 
part  of  tho  noord.    (ham  ▼.  Ilowdl^  785. 

800  Exiconoirs,  %  8;  Judombtis.  16^  18. 

ATTOBNET,  POWERS  OF. 
See  AoBiroT,  1-8. 

AWARDS. 

See  AXBITEA,TI01I  AHO  AWABDb 

BAQGAQK. 
See  CoMiioir  Cakkhim,  13. 14;  DAMAoni  2;  Isam^  8^ 

BAILMENT& 

L  Pisnr  HAYING  OiTLT  QtrAunsD  PBorEBTr  in  Goods  can  not  Pudoi 
Thxm  any  mora  than  a  factor  can  pledge  the  gooda  of  hia  principal  for 
hia  own  debt    Agnew  ▼.  Johnmm^  303. 

t  Ianbeb  ov  Chattxl  mat,  without  Makino  Dxhand.  Maintain  Acnat 
for  iti  reoovery,  where  the  time  for  the  loan  haa  expired.  CZsfyp  ▼.  ^d* 
aofH630. 

8    Owner's  Right  to  Rbootkb  Pbopertt  Plsdo  ed  to  Thibd  PisaoN  bt  One 

HATING  It  in  HI8  PoasaasiON. — A  party  made  a  contract  with  the  anther 

of  a  copyrighted  hiatorical  work  by  which  he  purchaaed  the  exdnaiTe 

right  to  pnbliah  the  aame.    He  afterward  had  the  work  atereotyped,  and 

entered  into  a  contract  with  a  firm  of  bookaellera,  by  which  he  aold  them 

a  half -interest  in  the  stereotype  plates,  subject  to  his  contract  with  the 

author.    This  party  and  the  booksellers  further  agreed  that  the  latter 

were  not  to  diapoee  of  the  books  without  the  written  consent  of  the  for^ 

mer,  and  also  tiutt  if  aaid  firm  of  bookaellera  was  diaaolyed,  or  became 

incapable  of  performing  their  contract,  he  was  to  have  the  right  to  claim 

the  platea  upon  tendering  to  the  bookaellera  the  amount  paid  him  therefor. 

Heldf  that  the  party  had  as  much  right  to  recover  the  plates  from  a  third 

party  with  whom  they  had  been  pledged,  upon  making  the  atipnlated 

tender,  as  he  had  from  the  bookaellera  thivnaelves.    Agnew  v.  Jckauom^ 

808. 

See  Inns,  8,  4,  9. 

BANKRUPTCY  AND  INSOLVENCY. 

I  JThibn  Canadian  Nots  ib  Indobsid  to  Citizbn  and  Resident  ov  Vee« 
MONT  after  proceedings  in  bankruptcy  have  been  commenced  against  the 
maker  in  Canada,  in  which  proceedinga  the  note  haa  been  preaented  and 
allowed,  the  indorsee  takes  the  note  subject  to  every  defense  *Ti«ti«g 
againat  his  immediate  indorser,  and  the  discharge  in  bankruptcy  pleaded 
in  bar  to  a  subsequent  suit  on  the  note  in  Vermont  is  equally  a  defenae^ 
whether  the  rule  applicable  to  a  foreign  discharge  in  bankmptcyt  or  the 
rule  applicable  to  a  diacharge  under  state  ioaolvent  laws,  be  applied. 
Peck  V.  Hubbard,  605. 

8.  Where  Maxeb  ot  Canadian  Note  is  Reoularlt  Disohabged  as  Bank* 
BUPT  under  the  laws  of  Canada,  so  that  such  discharge  would,  if  pleaded 
in  bar,  be  a  good  defense  to  the  note  in  that  country,  it  will  be  equally  a 


Index.  803 

Imv  Io  a  rait  on  the  note  In  Vermoiit,  whether  the  nukker  was  domiciled 
in  yermont  or  Oiaada  at  the  time  of  the  dieeharge.  Whatever  would 
he  a  good  defense  by  the  laws  of  the  country  where  the  note  waa  made 
and  payable  will  be  a  good  defense  whererer  and  by  whomaoerer  it  may 
be  proaeonted.    Id, 

BANKS  AND  BANKING. 
Honoi  TO  Bank  m  not  Ikysbrsd  vboii  Notiob  to  its  Cashixr  when  it 
ia  in  respect  to  a  matter  outside  of  the  ordinary  business  of  the  bank,  in 
regard  to  which  an  attorney  had  been  employed  to  act  for  the  bank,  and 
the  caahier  never  having  communicated  to  the  board  of  trustees  the 
matters  of  which  he  had  notice/    WUaon  v.  JUeCtUkmght  347. 

BONA  FIDE  PUBOHASERS. 
L  PxTBOHABKB  FOB  Valub  withoctt  Notiob  ov  Fraud  IN  HU  ViNixm  Standi 
upon  as  high  ground  in  equity  as  any  other  creditor  or  cuttU  que  truaL 
Hunter  v.  Laurence,  640. 
t>  Plca  ov  Bona  Fidb  Pubohasxb  vob  Value,  without  Notioe,  must  set 
forth  the  various  requisites  of  the  defense  with  convenient  certainty,  and 
must  explicitly  deny  notice  of  the  plaintiflTs  claim  before  execution  of 
the  conveyance  and  payment.     Cumminga  v.  Coleman,  402. 
See  Fbaudulint  Contxtangbs,  2;  Qotb;  Ouabdian  and  Wabd,  A. 

BONDS. 
See  Fraud,  4,  6;  iNDUCNrrr;  Plbadino  and  PBAonoBy  S^ 

BOOKS. 
Sea  Btidbngb,  24;  E^lbadino  and  Pbaotigb,  20,  28. 

BOUNDARIES. 
See  P088KS8ION,  2. 

BURDEN  OP  PROOF. 
Sea  Altibation  ov  Instbumxnts,  2;  Commdh  Oabbibbh,  U. 

BURGLARY. 
See  Criminal  Law. 

CARE. 
Bee  Common  Cabrdebb. 

CARRIERS. 
See  Common  Cabbixbs. 

CHARTERS. 
Sea  CoNmrunoNAL  Law,  9;  Corporationb;  Railroads,  4-0,  S. 

COLLECTORS  OF  TAXES. 
See  Corporations,  8. 

COLOR  OF  TITLE. 
See  Adyessb  Possbbsion,  L 


§M  Index. 

COMMON  GABfilBHa 

1.  PAAUmHEft  OiBBIMW  MUST  KrHTWIT  UTMOST  CUbB  An 

V AY  CAUTHNm  PaEB80H%  and  an  gnaprniaiMe  for  injutha  eaaaad  hf  tha 
tligbtaat  aagUgeaoe,  or  which  human  oara  and  fondfjtkt  coold  piavait 
Farish  y.  Beigle,  666. 

2.  PAJ98ENOEK  CaSRIKB  IS  LlABLB  f  0&  IVJOBT  AbISINO  rROM  OtEBTOKKISQ 

OF  Staob-goaoh  in  conBaqaence  of  being  too  heavily  loaded  on  top.    Id, 

S.  Fasssngbb  Carbibbs  by  Staob-ooagh  abb  Bodbd  to  PBotidb  COAOHfli 
Reaso:'ABLT  Stbono  and  sufficient  for  the  journey,  with  anitable  liamf^ 
trapping!,  and  eqnipmenti.    ItL 

C  Stagb-coach  Pbofbuetobs  abb  Liablb  iob  Ikjttbibs  to  Pabbbvoeb  re- 
sulting from  upsetting  of  stage,  caoaed  by  the  horses  running  auray,  nol 
because  they  were  aoddentally  frightened,  but  becanae  the  blocka  wen 
out  of  the  brake,  causing  the  stsge  to  run  upon  them,  when  the  mnnii^ 
off  of  the  horses  might  have  been  prevented  if  they  had  been  properly 
harnessed,  or  if  the  utmost  care  and  diligence  of  a  cantioma  pemon  had 
been  used  to  secure  the  blocka  in  the  brake.    ItL 

ft.  Passbnobb  Cabbibb  bt  Staob-coaoh  Ukdbbxakbs,  not  ohlt  that  kis 
CoAOHES,  Habness,  AMD  FiXTUBBS  shall  be  sound  and  oomplete  of  tha 
kind  used,  on  his  line,  but  that  they  are  such  as  will  bast  insure  the  aaf etj 
of  the  passengers.    Id, 

i.  Coaches  astd  Harness  ov  Passbnobb  Cabbibb  bt'Staob-ooiach  abb  not 
SuTFiCTBNT  AND  SuiTABLB  SO  loDg  9B  there  exIsts  any  known  WBnt  of 
safety  in  them  for  which  there  is  a  known  remedy  used  by  otfaen  in 
the  same  buaineas.    Id, 

7.  CoNTBiBUTOBY  KEOLBCT.—Railroad  company  is  not  liable  to  a  paswiiii^iir 

for  an  injury  which  he  might  have  avoided  by  ordinary  attentioQ  to  Us 
own  safety,  though  the  negligence  of  their  agents  also  oontribnted  to  tba 
accident.    Penntylvania  B.  B.  Co.  v.  Atpdl^  323. 

8.  Passbngeb  Neouoentlt  Cabbibd  beyond  his  Station  may  raooiat 

from  the  railroad  company  compensation  for  the  inconvenienoe,  loaa  of 
time,  and  labor  of  traveling  back.    Id, 

9.  Passbnobb  Who  Jumps  from  Running  Tbain  to  Atoid  bboto  Cab- 

bibd beyond  his  Plagb  of  destination  can  not  reoover  for  Injorist 
thereby  suffered.    Id, 

10.  Announgbkbnt  Of  Name  or  Station  bevobb  Cabs  Stop,  by  the  con- 
ductor of  a  railroad  train,  does  not  indicate  any  negligence  or  want  of  dili* 
genoe  on  his  part,  nor  afford  any  justification  for  a  passenger's  jnmping 
off  while  the  train  is  in  motion.    Id, 

IL  Bubden  ov  Pboov  is  on  Passbnobb  Carbibbs  by  Staob-ooagh  to  Show 
Absbnob  ov  All  Nbolioenge,  and  that  the  damage  or  injury  oocorrsd 
by  inevitable  casualty,  or  by  some  cause  which  human  oara  and  foreaight 
could  not  prevent     Farish  v.  Reigle,  666. 

12.  Pbesuhption  is,  that  Staob-goaoh  Aocidbnt  Cauboto  Injubt  ts 
Passbnobb  Ogcurbbd  by  Driyeb's  Keouobngb.    Id, 

IS.  Railroad  Company's  Liability  bbspeotino  Passbngbb's  Baggagb  d 
That  ov  Cohmon  Cabbibb,  and  is  only  excused  by  act  of  God  or  of  the 
enemies  of  the  country.    Dill  v.  South  Carolina  R,  R,  Co,,  Affl, 

14.  Baooaob  Checks  arb  Evidbnob  ov  Dbliybby  ov  Baooaob  to  Baiit 
BOAD  CoifPANY  issuing  them;  and  as  a  trunk  is  the  usual  means  of  oon* 
▼eying  baggage,  a  check  is  evidence  of  the  delivery  of  a  trunk,  tha  bofr 


Index.  805 

d«B  of  proof  being  on  the  railroed  oompaay  to  iliow  tl»t  the  baggnge 
delivered  wm  not  a  tnmk.    Id, 

15.  Bailwat  Compant  UiTBEBTAXZNa  TO  Casbt  Liys-8T00K  for  eneh  per* 
KXDB  M  choose  to  employ  it  aBBomee  the  relation  of  a  common  carrier,  with 
the  dotiesand  oUigatioasgrowingoat  of  that  rektion,  whether  the  trans* 
portation  of  cattle  be  its  principal  employment  or  merely  incidental  and 
subordinate.    KimhaM  v.  RvLOomd  etc,  R.  R,  Oo.^  607. 

15.  Gauusbzibss  ob  Niqlbct  on  Past  of  Okb  Pabtt  will  not  Exoobb 
the  want  of  ordinaiy  care  or  common  cantion  on  the  part  of  the  other. 
Steamboat  Farmer  v.  MeOraw,  718. 

17.  '*  Obdinabt  Cabb  *'  is  Rblatiyb  Tbbm»  and  Want  of  It  Mbanb  a  neg- 
lect to  nse  the  proper  precaations  with  regard  to  the  persons  and  property 
of  others  under  the  drcnmstances  of  each  particular  case.    Id. 

18.  Common  Cabbibr  of  Goods  is  not  Rbluybd  fbom  his  Liabiutt  to  the 
owner  of  inidi  goods  for  injary  thereto  cansed  by  the  torts  of  third  per- 
sons. The  carrier  has  a  right  to  maintain  an  aetion  for  snch  torts  against 
snch  third  person,  and  a  recovery  and  aatisiaction  by  him  bars  an  action 
by  the  owner  of  the  goods  for  the  same  injnry.    Id» 

19.  Common  Cabbtkbs  mat  Bestbict  theib  Common-iaw  Liabiutt  by 
express  contract,  althongh  not  by  a  mere  notice.  I>orr  v.  N^ew  Jereei^ 
Steam  Namgatkm  Co.,  126. 

SOi  Common  Cabbibb  mat,  bt  Aobekmbnt  with  Ownbb  of  €k>0M  Lv- 
tbustbd  to  Him,  so  Fab  Bbbtbiot  hib  Common*law  Liabiutt  as  to 
exonerate  himself  from  losses  arising  from  canses  over  which  he  had  no 
control,  and  to  which  his  own  fault  or  n^ligence  has  in  no  way  contri- 
buted.   Chrahamv.  Davie,  2S5. 

21.  Common  Cabbibb  oan  not,  bt  Aobxbmbnt  with  Ownbb  of  €k>0Df 
Intbustbd  to  Him,  Beubvb  Himbcut  fbom  Bbponsibiutt  for  lessee 
caused  by  his  own  n^ligence  or  want  of  care  and  skill.    Id, 

22.  Common  Cabbibb  is  Liable  fob  Suohtx8t  Nbguobncb,  and  such 
negligence  can  not,  by  contract,  be  made  an  exception  to  the  oarrier's  lia- 
bility.   Id. 

fX  Common  Cabbibb  mat  bt  Expbbss  Contbaot  so  Vabt  and  Chanoi 
BIB  Relation  to  the  owner  of  the  property  carried  as  to  become  a  private 
carrier,  and  in  that  event  his  liability  for  loss  or  damage  is  measured  by 
the  specific  provisions  of  his  contract.  KMhmU  v.  Rutland  etc  R.  R.  Co., 
667. 

24.  OoMMON  Cabbibb  can  not  bt  Gbnbbal  Nones  Limit  his  Liabiutt,  al- 

though the  existence  and  contents  of  the  notice  are  brought  home  to  the 
party  dealing  with  him.    Id. 

25.  Whbbb  Bailwat  Compant,  fob  Oiybn  Hibb,  Offbbs  to  Abbttmb  Be- 
bfonbibilitt  of  Common  Cabbibb,  and  for  a  less  hire  offers  to  fumiih 
the  necessary  means  of  transportation  to  the  owner,  who  may  thereby 
become  his  own  carrier,  the  owner  who  chooses  to  pay  the  lower  rate  is 
bound  by  his  election,  and  can  not  hold  the  company  liable  as  a  common 
carrier.  Whether  in  such  a  case  there  exists  a  special  agreement  be- 
tween the  parties,  by  which  the  company's  liability  is  limited,  is  a  ques- 
tion of  law,  to  be  determined  by  the  court.    Id. 

25»  Cabbibb  Who  has  bt  Special  Contbaot  Limited  hib  Liabiltt  so  as  te 
become  a  private  carrier,  can  not  be  declared  against  as  a  common  carrier. 
He  can  only  be  held  liable  on  his  contract    Id, 


806  Index. 

n.  Patmbht  Mads  to  Oaiuubr  bbcausb  Hx  Dxuaxm  It  am  Fboobt,  far 
which  he  withhold!  the  goods,  Is  not  deemed  volantarily  made*  bat  (if 
the  earn  b  ezcevive,  and  proper  and  timely  objecti<m  is  made)  may 
be  recovered  back.    Harmony  v.  Bingkatn^  142. 

ttb    CaBBUB  18    LlABLS  OV  BUS    EXPRBSB  CONTBACT  TO  DlUTXB  withlB  ft 

specified  time,  notwithstanding  that  the  delay  of  which  pUintlff  oom- 
plains  was  caused  by  inevitable  accident.    ItL 

29.  ComiON  Cabbubs  abb  Bound  to  Dxliyxb  Gooofl  withzn  Rxaboxabu 
TiifB,  and  on  fallare  to  do  so,  in  the  absenoe  of  proof  of  diligence,  tbey 
are  liable  for  damages  occasioned  by  the  delay.  NMu  t.  8<mtk  Oarth 
Una  JR.  R.  Cb.,  409. 

SO.  LiABiUTT  OF  Bailboad  Companixs  is  That  of  Jom  Oontbactobi^ 
where  several  companies  enter  into  an  arrangement  to  carry  freif^t  over 
all  their  lines  for  one  through-fare  tA  »olido^  payable  at  the  tenmmu,  and 
pledge  themselves  collectively  to  give  satisfaction,  so  as  to  evidence  by 
this  and  other  acts  an  intention  to  contract  collectively;  and  one  d  the 
companies  is  liable  in  a  suit  for  damage  to  freight,  though  the  injmy  did 
not  occur  on  its  road.    Bradford  v.  South  CoroUna  R,  R.  Cb.»  411. 

II.  It  is  Pbopxb  to  Sobmit  to  Jubt  whbthbr  Omission  to  usb  Bbxbcbivo 
trpoN  HoBSBS  used  in  coaches  of  passenger  carriers  constitutes  ncgligenoiu 
FoTuk  V.  R^le^  666. 

12.   DOCTRINK  OF  TbOHNIGAL  AbANDONKXNT  18  NOT  ApFUOABLB  TO  CoUilMI 

Cabbibbs.    NeUk^  v.  So/uJtk  Carolina  R.  R.  Oo.^  409. 

See  Damaobs,  1,  2;  Evidbnob,  19;  Nbw  Tbiai^  1;  PABiHSBBHiFt  !• 

COMMON  LAW. 

Common  Law  of  England  is  not  to  bb  Takbn  nr  All  Bbsfboxb  to 

BB  That  of  Ambbioa.    Our  ancestors  bron|^t  with  them  and  adopted 

only  that  portion  which  was  applicable  to  their  condltioii.    Barhnem  v. 

Sean^  742. 

See  Animals,  3,  4. 

CONDITIONS. 
See  CoNTBAOTS,  7. 

CONFESSIONS. 
See  EviDBKCB,  10,  14. 

CONFLICT  OF  LAWS. 

1.  Law  of  Statb  Whioh  Dbtebminbs  Obligation  of  Contbact  QoTSBiii 
Liability  of  Makbb  of  Pbomissobt  Notb  and  of  the  person  to  whom 
he  is  liable,  whether  the  payee,  indorsee,  or  creditor  under  attachmeBt 
process.    Emerton  v.  Patridge,  617. 

8.  Pbomissobt  Notb  Madb  in  Canada  and  Patablb  Qbnbballt  is  to  bs 
treated  as  a  Canadian  note,  and  the  rights,  duties,  and  obligations  grow- 
ing out  of  it  are  to  be  determined  by  the  laws  of  that  oountiy.    Pock  ▼• 

^tiManf,605. 

See  Plbadino  and  Practicb,  8,  9. 

CONNECnNQ  RAILROADS. 
See  Common  Cabbibbs,  SQL 


Index.  807 

oonsidebations. 

See  OoHTRACBiy  0. 

GONSPIEAOY. 
See  EyidehgXv  9. 

CONSTITUTIONAL  LAW. 

L  AnBiOAjr  Lmuultubu  havb  Sams  Uklzmitid  Powxb  of  LnmLATioa 
▲a  BBimH  pABUAMXsrr,  except  where  they  are  raetnined  bj  written 
oonstitatiooB.     TKorpt  r.  RvOcmd  etc,  R.  R.  Co.^  025. 

Bi  Statutis  within  Limits  of  Constitotiok  abb  CoNsnTunovAL  and 
ErFBcnrSy  end  the  jadidary  or  the  ezeoatiFe  department  can  not  inqoire 
whether  the  l^gbUtnre  haa  violated  the  genina  of  the  government,  or  the 
general  prinoiplea  of  liberty,  and  the  xighta  of  man,  or  whether  their  aote 
are  wise  and  expedient  or  not  XoitMVitte  ete.  R,  R.  Co.  t.  Davidaon  Ob., 
424. 

S.  CoKSTiTunoKALiTT  OF  LsoisLATrTx  AcTS  SHOULD  BI  DioiBXD  with  eveiy 
preanmption  in  favor  of  their  validity,  which  preanmption.ahooId  be  over- 
come only  when  the  contrary  ia  dear.    Id, 

4.  Act  Rkfubino  to  Votb  of  Pboplb  of  Countt  QniBTioir  of  Submbif- 
Tiox  OB  No  Subsobiftion  by  connty  to  stock  of  railroad  company  la  not 
in  conflict  with  the  Tenneaaee  oonatitotion.    Id, 

ft.  LlOISLATUBB,  iNTBUaerED  BT  CoMSriTUTION  WITH  SXLIOTIOM  OF  MODB  ABB 

Mannkb  OF  Imtosibo  I>EBr  OB  Tax  upon  a  coanty,  may  refer  the  qnea- 
tion  of  imposing  the  tax  to  the  people  of  the  oonnty.    Id. 

ib  LlOISLATUBB    MAT  AUTHOBIZB    COUMTT  WhICH  HAS  BlOOMI  PaBTT  TO 

CoBTBAOT  to  change  the  terms  of  the  contract  npon  the  consent  of  the 
other  party.    Id. 
7t  Statuti  Emfowibiko  Couktt,  as  Corporation,  to  Taxi  Stock  in  Bail- 
BOAD,  and  then  dirtribate  it  among  the  people  in  the  proportions  they 
may  pay  the  tax  levied  for  that  purpose,  is  not  nnoonstitntionaL    Id, 

ib  LlOISLATUBB  MAT  BT  GiNIRAL  LaWS  ImPOBI  NiW  BuBDBNS  ON  RaIL> 

BOAD  CoMPANixs,  in  addition  to  those  imposed  by  their  charters,  when 
•nch  hardens  are  condaci ve  to  the  public  interests  and  safety.  Ndton  v. 
Vermont  etc.  R.  R.  Co.,  614. 

i.  GOBPOBATB    POWXBS   EXPBISSLT    OB   BT   NlCMSART   ImPUOATION   CoN« 

FBBBiD  BT  Chabtib  abi  Inviolabli,  whcu  sssuntisl  to  the  beneficial 
existence  and  successful  operatioD  of  the  corporation.  Thorpe  v.  Rutland 
etc.  R.  R.  Co.,  625. 

10.  EssiNTiAL  Fbanchisi  OF  Bailboad  Cobpobation  is  Pbiviuboi  of  Run* 
NINO  BoAD,  and  taking  tolls,  or  fares  and  freight,  and  this  can  not  be 
essentially  modified  or  destroyed  by  legislative  action.    Id, 

11.  Entibi  Powib  of  Lioislativi  Control  ovxb  Cobpobation  Bismn  nr 
LlOISLATUBB,  unless  expressly  or  by  necessary  implication  limited  in  the 
charter.  Corporations  take  nothing  by  intendment  but  what  is  necessary 
to  the  enjoyment  of  that  which  is  expressly  granted.    Id. 

12.  Act  of  Stati  "Pbovidino  fob  Collection  of  Claims  against  Steam- 
BOATS  AND  Othib  Watsb-cbafts,  and  authorising  proceedings  against 
the  same  by  name,"  ia  a  valid  and  constitutional  enactment.  Keating  v. 
Bpink,  214. 


11  Rion  TO  LaoAor  oav  mob  mm  TifTAimien  mt  Law  PAauD  ivre  LaaAOf 
Hia  VvRD  by  tba  tactator*!  deatli.     WeMerveU  t.  (T^vgy*  IML 

14  BTATvrm  Bhuomivo  Exxxptiohb  or  Pbopkbit  ibom  Exaounoir  abi 
HOT  Ukoobwitutioval  m  impairing  the  obligation  of  oontncta,  even  if 
apiilied  to  debts  oontnoted  before  their  pmiege.  They  affect  the  lei^ 
edy  only.    Harm  t.  ChmH  103. 

See  Ck>BKiftATiaHi»  1, 2;  Bmikzht  DqhaiA^  2;  Kahjioadh,  5. 

CONSTRUCTION. 
See  Ckunnuon. 

OONTINnANCB. 
See  CxiMzir  AL  Law,  S. 

OONTRAOTS. 

1.  Two  oB  Mo&B  Wumrofl  xnvr  bi  Dxbmxd  Qhx  iHsncDifBiT,  aaA  aa 

fonning  bat  parte  of  the  same  contract,  when  they  are  executed 
temporaneonely  between  tiie  same  parties,  and  with  refeience  to  the 
rabjeot-matter.    Ihmlap  ▼.  Wrighi^  506. 

2.  Pabtt  Pboposiho  Tbrms  of  Co5TBaot  can  not  be  heard  to  object  to 

them.    LotiimUle  efc.  B.  S.  Co.  ▼.  Dcrndfum  Co.^  424. 
Sb  Wkdui  Nkw  GovTBAor  is  Ck>H8iSTBirr  with  ConninrAKca  or  Fobmkb 
Okx,  and  only  provides  a  new  mode  of  dischai^ging  snch  former  one,  it 
has  no  effect  unless  or  until  it  is  performed.  McDanids  ▼•  Bdbhmmg  574. 

4.  CtonTBAor  CoHNBcnD  WITH  AND  Obowino  Immkdiatklt  OCT  or  Illboak 

Aor  will  not  be  enforced  by  a  oonrt  of  justice;  but  if  it  be  nnoonneeted 
with  the  Olegal  act,  and  founded  on  a  new  oonsideration,  it  may  be  en* 
forced.     Buck  ▼.  Albee^  064. 

5.  Covtbaot  is  so  Gonnbctbd  with  Illkqal  Act  that  Reoovbbt  cav  hot 

BB  Had  thbbxok,  whenever  it  is  necessary  for  tiie  plaintiff  to  prove  such 
contract  in  order  to  recover;  but  if  the  r^t  can  be  established  witlunit 
such  proof,  the  plaintiff  may  recover.    Id. 

6.  0ILnrEBT   AND   AOOEPTAKCB  Or  QOODS  ABB  SumCIBHT    CoRSIDBBATIOB 

for  any  undertaking  in  regard  to  them.    McDanieU  v.  Bobmmm^  674. 

7.  CoNTBAOT  roB  PuBCHASB  or  BoTTEB  between  O.  and  M.  provided  that  0. 

would  keep  twenty  cows  during  the  ensuing  season,  and  would  sell  the 
butter  from  their  milk  to  M.  at  a  fixed  price,  which  M.  agreed  to  pay. 
0.  provided  the  twenty  cows,  but  towards  the  cloee  of  the  season  sold 
five,  whose  milk  failed,  and  did  not  supply  their  places,  ffeld,  that  U. 
was  not  bound  to  take  and  pay  for  the  butter  made.  Keeping  twenty 
cows  during  the  season  was  a  condition  precedent.   OaHey  v.  McrUm^  49. 

8.  C021TBAOT  roB  Construction  of  Vbssbl  dobs  not  Pass  Titlb  until  the 

vessel  is  delivered.  That  the  work  is  inspected  and  approved  by  the 
purchaser  as  it  proceeds,  and  that  installments  of  the  price  are  paid 
from  time  to  time,  make  no  difference.  AndrewB  v.  Dtmxii^;  65. 
1.  Whbbb  Tbadbsman  Aobebs  to  Put  Tin  Roor,  Which  Hb  Wabbantb  to 
Last  Twbntt  Yxabs,  upon  a  building  built  upon  a  certain  plan,  if  the 
plsn  ii  afterwards  changed  the  contract  as  first  made  is  at  an  end;  bnt  If 
he  agrees  to  put  such  a  roof  upon  a  building  without  specifying  what 
kind,  a  shange  in  the  plan  of  the  building  after  the  w^lrtng  ol  the 
tract  does  not  affect  his  liabUity.    McOwr  v.  ITt/Zioms,  739L 


Ikdsz.  808 

Hk  PaoMiM  ST  Omi  vov  Lubu  doet  not  add  to  hit  UafaOily;  but  a  ptomlM 
■ada  wamy  1m  oompatant  avidmoa  from  wfaiok  to  into  a  liability  on  tlM 
part  of  the  promiaor.    Lineoln  ▼.  Wright,  316. 

Baa  Aooount;  Alteration  of  layrjtpmwrs;  Comxoh  Cabbikbs;  Comruor 
OF  Laws;  Constitutioiial  Law,  6-11;  Cobfobations,  2;  Husbaitd  ajfd 
Wife;  Infancy;  Mabuaoe  and  Ditobos;  Plsadino  and  Pbactiob, 
10;  QuAVTDM  MsBim;  Bmohwion  of  GoNnuora;  Salib;  Sfioifio 
Pbbfobmangn. 

CONTBIBUnON. 

RiaBT  of  CoNTBiBunoN  Hasuva  nxm  Katcbal  ISqpm,  and  whanever  tha 
aqvity  upon  whieh  tiia  liglit  la  baaad  la  lelmttody  it  aaa  not  ba  anforoad. 
Tmglor  T.  Mitrrison,  747. 

CONTBIBUTORY  KBGLIQENOB. 
Saa  CoiiMON  Cabbibbs,  ?•  9,  16. 

CONVEBSIOK. 
See  DmNiTB. 

CX)BPORATIONS. 

L  GOBPOBATIONS   ABB   SUBJBOT  TO    LlOISLATITB   COSTBOL   EQUALLY  WITH 

Natvbal  PBB80N8;  that  ia,  they  may  be  controlled  in  all  matters  oom- 
faig  within  the  general  range  of  legiaUtlve  anthority,  aabject  to  the  limi- 
tation of  not  impairing  the  obligation  of  contracta,  and  provided  tha 
eaMntial  franohise  la  not  taken  withont  compensation.  Thorpe  v.  BtU* 
Umd  etc  R,  R,  Co,,  625. 
%  Ghabtbb  of  Cobpobation  18  CoNTBAOT*  ainoe  it  la  an  implied  nndertaking 
on  the  part  of  the  state  that  the  corporation,  as  anoh,  and  for  the  par^ 
poaea  therain  named  or  implied,  shall  enjoy  the  powers  and  franchiaea 
conferred  liy  its  charter.    Id, 

t»  HonOB  TO    SlNOLB  Ck>BFOBAT0B  IS  NOT  NOTIGB  TO  CoRPOBATION  Vnlesa 

commnnicated  to  its  board  of  directors.     WUton  v.  McOuUough,  347. 
4*  Nona  to  Cobpobation  Exists  whbn  Gitbn  to  PABnoirLAB  Offiobb 

haying  duu^e  of  the  business  to  which  it  relates.    Id, 
6.  OouNTiis  abb  Poutioal,  Aoobboatb  Ck>BPOBATiONS,  Capable  of  exercising 

anch  powers  as  they  may  be  vested  with  by  the  legisktore,  and  are  aome- 

timea  called  quaei  corporations.    LouiiviUe  etc.  R,  R,  Co,  ▼.  David&on  Co,, 

424. 
6L  Ant  Boot  of  Pbbsons  Gapablb  of  Acting  as  Onb  Man,  and  in  a  aingle 

name  fixed  by  law,  having  aaccession,  ia^in  some  sense  a  corporation.  Id, 
!•  CouNms  IN  Tbnnbsskb  arb  Clothed  with  Powbbs  and  Attributes  of 

COBFOBATIONB  to  a  Sufficient  extent  to  be  able  to  act  and  contract,  to  ba- 

oome  debtor  and  creditor,  so  as  to  subject  all  peraona  and  property 

within  their  limita  to  taxation  in  any  mode  that  may  be  preacribed  by  tha 

lagialature.    Id* 
t»  Towns  abb  not  Bbsponbiblb  fob  Ebbobs  ob  Wbonoful  Acts  of  Asses- 

SOBB  AND  CoLLECiOBS  OF  Taxbs  In  asscssjng  and  collecting  exceasiva  or 

unanthoriaBd  taxaa.    CaUin  v.  ChuUer^  120. 

Saa  Banks  and  BIankino;  Cobwitutional  Law,  A,  7-11;  RAn.BOAPa. 


SIO 

CO-TENANCnr. 

TkKAsv  nr  Oommov  mat  Dibteain  tor  BarVt  wImm  h»  hn  ImmA  t»  kk 
oo-tMMttt.    lAUktr  ▼.  Arnold,  422. 

See  pABTRKm. 

C0UNTIB8. 
6m  OoJiniTUTioiCAL  Law,  4-7;  CoBro&AXKurai  5^  7|  Xuuu'iuis  Ara  A» 


V 


CX)UBTS. 

1.  MnmmiiAL  Dimr  Dsvolvxd  UTOor  Coubt  Gomtosed  of  Sktseal  Ju»> 
Tion  may  be  perfonned  by  the  qaonun  ooui;  there  need  not  be  prowul 
a  nnmber  sufficient  to  transact  any  county  bnsinen.  LamsviUe  ttc^  R,  B, 
Co,  V,  Davidmm  Co,,  424. 

%  Kbw  Power  Given  to  ob  Duty  Bbqitibbd  of  Ck>UBT  Ooxfobbd  of  Sbt- 
IBAL  JusnoES  may  be  perfonned  by  any  nnmber  which  may  oooatitate 
ft legaloonrt,  when  no  particnlar number  of  Joatioee  is  made neoemiy. 
Id. 

Bee  ExBOUTOBS  avd  Aduutisteatdbs,  1,  2;  JuBisDionoNi  Szabb  Dacnii. 

COVENANTS. 

Covenant  to  Do  Act  tob  Specdibd  Pbicb  within  Fizbd  Timb,  or  la 
ease  of  delay  to  submit  to  a  reduction  of  price,  need  not  be  dedand  ob 
as  a  oovenant  in  the  altematiye.    Hanmmif  t.  BtRgkam^  142, 

OKIMINAL  LAW. 

1.  CoNYIOnON  FOB  HlOHEB  OfFENSB  GAN  NOT  BB  SUSTAINED  after  A  00IITI» 

tion  for  an  inferior  one.    /ones  t.  Siaiet  550. 
S.  No  Jeopabdt  Ooours  upon  Quashing  of  Defective  Indiotment,  thoai^ 

a  jury  be  sworn  and  discharged  thereon.    PriieheU  v.  SUUe,  468. 
t.  Pbdoneb  is  not  in  Jeopabdt  until  the  Jubobs  abb  Swobn  to  try  the 

cause.     JlieFbdden  v.  Commonwealth,  308. 
4.  Jeopabdt  0on8Tbued  to  Commence  fbom  Moment  Pbisonbb  Is  placed 

on  stand  on  his  own  defence,  as  held  in  CommonweaUh  v.  due,  3  Bawl% 

498,  explained  and  limited.    Id, 
b.  Mebe  Continuance  of  a  Cbiminal  Case  Is  within  the  diseretion  of  tin 

court.    Id, 
ib  DiacHABOE  OF  JuBT  AfTEB  Tbial  HAS  BxouN,  in  a  capital  case,  is  not  a 

continuance  of  the  cause,  but  an  end  of  it,  and  an  acquittal  of  the  pri»> 

oner,  unless  done  with  his  consent,  or  required  by  some  overwhelming 

necessity.    Id, 
7.  Tbial  of  Cbiminal  Case  does  not  Beoin,  so  as  to  prohibit  the  court 

from  continuing  or  discharging  the  jury,  until  a  full  Jury  Is  impa]ieled» 

and  sworn.    Id. 
%,  Whebe  Gbound  Reued  on  fob  Revebsal  of  Judgment  in  Cbiminai 

Case  is  that  it  does  not  appear  from  the  record  that  the  indictment  was 

returned  into  court  by  the  grand  jury,  the  fact  that  there  was  no  such 

record  in  the  court  below  must  be  made  to  appear  from  the  tranaoripC^ 

lor  where  all  the  proceedings  in  the  cose  are  not  shown  by  the  tiaoacrip^ 


Index.  811 

mad  tiie  «mr  oompliiiMd  of  doat  aol  aBiimllvfly  appMr*  tiM prooeed 
Ingi  will  be  presmnad  to  hsre  be«&  r^gitUr.  Oarter  t.  iSfdife,  039* 
f»  Jimr  SHOULD  Bx  IimBuonD  to  Pasb  on  Cass  of  On  ob  Mo&b  of  Sxt- 
KBAL  DKnumAKTd  who  are  Jointly  indicted  and  put  on  trial  togetheri 
before  the  other  defendant  or  defendants  hnve  opened  their  defense,  so 
that  the  latter  may  not  be  deprived  of  the  evidenoe  of  oo-defendanta  who 
are  not  inculpated  by  the  evidence  of  the  state,  where  there  is  little  or  no 
evidence  agunst  such  defendants,  and  they  ace  willing  to  be  tried  on  the 
evidence  of  the  proaecntion.    Jone$  v.  StaUt  560. 

10.  KoT  05LT  DwKLUNO-nou8i  Pbopeb,  AT  CoMXOK  Law,  bat  all  other 
bnildings  within  the  curtilage  or  some  common  fence  were  deemed  pari 
thereof.    ExparU  Vmcent,  714. 

11.  Meaning  of  Wobdb  "  Dwellino-houbb,"  as  naed  in  section  8306  of  the 
code,  is  the  same  as  at  common  law,  and  the  poipose  of  aeotion  8S09  waa 
to  soften  the  rigor  by  limiting  the  meaning  of  such  tenns.    Id, 

IS.  DwsLLiNO-uousK— BuBGLABT. — ^A  two-story  building,  the  front  room  of 
the  down-stairs  portion  of  which  was  used  as  a  store,  and  the  back  room 
of  the  same  story  as  a  sleeping  apartment,  and  the  up-stairs  rooms  of 
which  were  used  as  sleeping-rooms  for  the  clerks  in  the  store,  all  of  the 
occupants  of  which  were  single  men,  who  took  their  meals  out,  and  had 
their  waahing  done  away  from  home,  is  a  dwelling-house,  both  within 
the  meaning  of  section  3908  of  the  code,  and  of  the  common  law.    Id, 

U.  Ant  Houbk  was  Dwblliko  op.  Mansion,  at  Common  Law,  within  the 
meaning  of  the  definition  of  burglary,  in  which  any  person  resided  or 
dwelt;  and  with  reference  to  the  offense,  which  could  only  be  committed 
in  the  night-time,  it  seems  the  true  test  is  whether  it  was  pennaneot^ 
used  by  the  occupier  or  any  member  of  his  family  as  a  plaoa  to  sleep  in. 
Id. 

14,  L68T  Goods  abi  not  Subjsot  of  Labobnt,  for  there  must  be  trsqiaai 
in  taking  them  from  the  actual  or  constructive  possession  of  some  one. 
PrUeheU  v.  State,  468. 

lA.  OWKKB  U  IN  CONSTBUCTIYK  P088I88ION  OF  PBOFEBTT  80  THAT  It  13  NOV 

Lost,  and  is  the  subject  of  larceny,  when  he  knows  where  the  property  ia 
so  tliat  he  would  be  able  to  recover  the  actual  poasession  when  he  deairad 
if  it  were  not  removed  by  the  thief.  Id. 
10.  Watch  Lift  with  Watohsmith  fob  Eepaib  n  in  CoNSTBuonyB  Po» 
SESSION  OF  OwNEB,  and  the  sublect  of  larceny,  though  thrown  upon  the 
pavement  by  an  explosion  of  gunpowder.    Id, 

17.  MuBDEB  IN  Second  Dbgbxe  Admits  of  Aocebsobibs  bsfobb  Fact,  aa 
it  can  only  be  committed  with  malice.    Jonu  t.  Statep  fiSO. 

18.  Instbuctions  in  P&osecution  fob  Killing  Pxbson  Making  Abbim 
held  to  be  Cobbect.    N6ie$  v.  Staler  711. 

19.  To  Excuse  One  Individual  fob  Taking  Lifb  of  Anothxb,  there  must 
ezirt  a  necessity  to  prevent  the  commission  of  a  felony  or  great  bodily 
harm,  or  a  reasonable  belief  in  the  mind  of  thaalayer  that  such  necessity 
exists.    Id, 

00.  Mebe  Tbespass  upon  Pebaon  and  Libkbtt  of  Slateb,  which  created 
no  reasonable  belief  in  his  mind  that  any  of  the  trei  passers  would  conmiil 
any  felony  or  do  him  any  great  bodily  harm,  will  not  ezooae  hia  kilUng 
such  treepasaer^.    Id, 


flodh  Vbmtft  vdImi  audi  atfempt^  wiMn  Iswfolljr  r»- 
blNnbtediB  bj  th*  tvMiMw  iinta  aneb  tnBpMHr  fa  alioat  to 
oommtt  »  f •kiBsyt  or  do  tha  ptnon  grMt  bodily  faann,  or  iadaoei  in  tho 
mind  of  tfao  pwMMi  a  rwiioniMo  bolial  thai  ho  is  abont  to  do  Kk    Id, 
Soo  BfuiBwai;  InozixuTioir;  JuDaamiTB,  20;  Nxw  Tbiai^  2. 

DAMAGES. 

L  Mxmru  of  Dakaou  iob  Commoh  Cabbibb'b  Faxlubx  to  Dxum 
Goods  withik  Rbabon ablb  Tun  is  the  nine  of  the  gooda  at  tiie  tiiiia 
and  pUoe  where  they  abonld  have  been  delivered,  together  with  any  rea- 
■onable  loaa  or  expense  directly  occasioned  by  the  delay,  less  the  valne 
of  the  goods  according  to  their  condition  at  the  time  and  place  of  actual 
deliTcry  or  tender.    UTtiUet  ▼.  South  Ckaroiina  /?.  JR.  Co.,  409. 

1  Mkasubb  of  Damaobs  fob  Lobs  of  Bagoaob  bt  Bailboao  GoMPAinr,  in 
the  absence  of  proof  as  to  the  contenta  and  Tslne  thereof,  is  the  valne  of 
the  articles  which  the  Jury  in  its  judgment  think  such  baggage  did  or 
might  fairly  contain.    JXU  r.  South  Oarolma  B,  B.  Oo„  407. 

Iw  Mrasubb  of  Damaobs  fob  Sblub'b  Brbaoh  of  ComrBAor  io  Fubxish 
Goods  for  a  price  not  paid  down  is  the  difiiBrence,  with  interest,  between 
the  contract  price  and  the  market  price  of  the  article  when  it  shoold 
have  been  delivered.    Ikma  t.  Fiedler,  190. 

4.  Habxbt  Valub  must  bx  EamcATED  upon  Svidbbgb  of  Actitai.  Bulzbo 

PBion  at  the  time  and  place  in  question;  conjectoral  opinions  of  wit- 
nesses as  to  the  probable  effect  of  putting  upon  the  market  the  quantity 
called  for  in  a  particular  contract,  in  addition  to  the  nsnal  supply,  can 
not  be  received.    Id. 

6.  PuKiTivB  Damaobs  Will  not  bb  Allowbd,  as  aoaihst  Pbihcipal,  unless 

he  participated  in  the  wrongful  act  of  his  agent,  expressly  or  impliedly 
authorizing  or  approving  it,  either  before  or  after  it  was  committed,  so 
that  be  becomes  pariioep$  enmniJs  of  his  agent's  act  Bagan  v.  Frovi- 
denee  etc  R.  R.  Co.,  377. 

5.  ViKDzcTiTB  Damages  mat  bx  Givbm  fob  Wantok  aitd  Ubfbovokxd 

Attack  with  a  deadly  weapon.    Porter  t.  SeUer,  S41. 

7.  Doo  IS  Spboibs  of  Pbopebtt,  and  AonoB  mat  bb  ICairtaxbbd  fob 

Shootibo  Him  without  showing  that  he  was  posaeflso^  of  any  pecuniary 
value.    Parker  v.  iftie,  776. 

K  Law  Imflixs  Damaob  from  Weokgfitl  Taking  of  Pbopxbtt  of  An- 
OTHXB,  and  although  the  property  had  no  pecuniary  value,  and  the  owner 
in  &ct  suffered  no  sensible  damage,  he  is  entitled  to  recover  some  damagea. 
If  the  trespass  waa  accompanied  by  circumstances  of  aggravation,  exem* 
plary  damages,  or  smart-money,  may  be  assessed  by  the  jury.    Id. 

Bee  EzBOUTOBS  and  Administbatobs,  24;  Intbbest,  1;  Mastbb  and  Sbb- 
yant;  Nbw  Tbial,  1;  Quantum  Mbbur;  Shifpino,  7. 

DEEDS. 
See  EzBOUTOBS  and  Administbatobs,  18;  Infanct;  KonoB,  %  & 

DECEIT. 
See  Fbaud. 


Indec  fit 


DBCLARATIOHB. 
See  AflBiroT,  i;  Eno: 


DELIVERY. 
Sm  Commdh  Cabrikbs,  2S|  29|  OoonftMn^  61 

DEPOSITIONS. 
See  Eyidsnci,  10. 

DETINUB. 

L  TUBPA88  UFOir  OB  OoNTSBSIOlf  OV  COATTUJI  18  DnfOrOUISHABUi  fBOM 

Dbtkition  thbbsof.  Such  traepaas  or  ooDTenion  may  indade  a  deteD- 
tion»  bnt  there  may  be  a  detention  sufficient  to  mpport  an  action  of  detinne 
where  there  has  not  been  such  a  conversion  or  trespass  as  would  support 
an  action  of  trover  for  trespass.  WiUick  v.  TVatin,  778. 
2.  Causk  of  AcnoM  mat  bk  Split  in  Drdots  but  kot  in  Tbovbb  ob  Tbbs- 
PAflB.  When  by  the  same  act  there  has  been  a  trespass  upon  or  a  con* 
Tersion  of  chattels,  which  chattels  at  the  same  time  or  afterwards  are 
detained  by  the  tort-feasor,  the  owner  may  maintain  either  an  action  of 
trespass  or  trover  or  detinue.  If  he  prooeeds  in  aa  aotlon  of  trsspasi 
or  tro^rer,  he  is  bound  to  regard  said  cause  of  action  as  indivisiUe,  and 
as  giving  him  bnt  one  cause  of  action;  but  if  he  prooeeds  in  an  action  ol 
detinue^  he  may  at  his  election  consider  the  action  as  divisiblo  and  malB* 
tain  a  sepaiate  action  for  each  chattel  detained.    Id, 

DISCHABOB  IN  BANKEUPTC77. 
See  BAHKBirrTCT  and  Iir8oi;naiinr. 

DISSEISIN. 
See  Advxbsb  Pottiauov; 

DISTRESS  FOR  RENT. 
See  CkMniCANOT* 

DOGS. 
See  AjmcAU,  1,  S» 

DOMESTIC  ANIMAi;^ 
See  Animau. 

DOWER. 

Widow,  Who  n  aibo  Administratrix  of  mm  Dbobabed  Huoand,  Was 
Sills  Rial  Ebsatb  belonging  to  said  estate,  under  decree  of  the  pro- 
bate court,  does  not  forfeit  her  right  to  dower  in  said  land  by  failing  t« 
announoo  at  the  sale  that  the  same  was  subject  to  dower  in  the  land* 

Oven  T.  SlaUer^  745. 

See  Judicial  Salis,  2. 

DRUNEENNESSL 
See  Intoxioation. 


S14  Index. 

BASEMENTS. 

UEST  la  Absolutxlt  NacKBaART  to  the  enjoyment  of  the  land  retauMd; 
M  in  the  case  of  a  way  by  neoeanty.    Burdai  ▼.  Siein,  758. 

&  Im  Ca8I  of  AwoLtm  ComrKTAKci  of  Land,  No  Rbbbbtatiox  of  Rion 
TO  DiTSRT  Watxb  from  a  atnam  running  OTer  aaitl  land  ia  to  be  implied 
from  the  fact  that  at  the  time  of  the  conveyanoe  the  grantor  diverted  a 
portion  of  aaid  atream  for  oae  npon  another  portion  of  hia  land.  A 
stranger  who  ia  aoaght  to  be  enjoined  for  diverting  aoch  atream  can  not 
aot  ap  auoh  reaervation.    Id, 

Sb  RiQBT  TO  HATB  Warb  Flow  OFF  Laxi}  THROUGH  Natohal  Bract  belonga 
to  the  owner  of  the  land,  withoat  the  aoquiaition  of  the  eaaement  by  pre- 
aoripiion,  and  he  may  lawfully  remove  an  embankment  ereofeed  by  an- 
other, which  obatmota  or  cata  off  aoch  flow.    Overlon  t.  iSaiiyer,  17QL 

BJBCXMENT. 
See  MoBTOAGB,  IL 

ELECTION. 

L  To  Orioihats  Dootbinr  of  Elbchov,  Two  Tnnros  arr  Said  to  bb  B^ 
BRXTiALt  1.  That  the  teatator  ahall  give  property  of  hia  own;  and  Z  Thai 
he  ahall  profeM  to  give  alao  the  property  of  hia  legatee  or  deriaee.  Jfo 
Queen  v.  McQueen,  20S. 

I.  ELSonov — ^Valid  Bbqurst. — ^After  a  proyiaion  in  a  will  by  a  teatator  di- 
recting how  hia  property  may  be  divided  among  all  hia  children,  he  pro- 
Tides  that  certain  property  which  part  of  aaid  children  (they  were  brotheia 
and  aiatera  of  the  half-blood)  were  expected  to  receive  from  their  maternal 
grandfather  shoald  be  divided  among  all  the  others  in  the  same  propor- 
tion aa  his  own  property.  He  then  providea  that  hia  estate  ia  not  to  be 
distribated  for  two  yean,  before  the  expiration  of  which,  bat  after  the 
testator's  death,  the  grandfather  diea,  leaving  to  the  children  the  expected 
property:  Held,  that  to  aach  a  disposition  the  equitable  doctrine  of  eleo- 
tion  applies,  also  that  the  provision  waa  valid.    Id. 

Iw  Wbkn  Partibs  Who  arr  Rrqitirkd  to  Makr  Elbotioh  arr  MisoRfl^ 

the  court  will  refer  the  matter  to  a  maater,  who,  after  an  inquiry,  will 

ascertain  the  value  of  the  interests,  and  direct  what  election  ahall  be 

made.     Id»  

ELECTIONS. 

1.  QiTRsnoN  OR  EiiRorioN  Referred  to  Dxcisioh  of  Majoritt  of  Yoteri 
OF  CouNTT  is  decided  by  majority  of  the  votea  polled.  Voters  not  attend- 
ing election  are  presumed  to  concur  with  the  majority  of  thoae  attending. 
Louisville  etc.  H,  R,  Co,  v.  Davideon  Co.,  424. 

1  Order  for  Election,  hot  Sikolb  and  PosrrnrB,  but  in  Alternatits, 
does  not  necessarily  invalidate  the  proceedings;  as  where  a  proposition  is 
submitted  to  the  voters  of  a  county  that  a  subscription  be  made  to  a  rail- 
road, provided  it  be  located  as  specified  on  or  before  a  certain  date,  other 
wise  the  aubscription  to  be  made  to  another  railroad,  both  roada  to  paas 
through  the  county.    Id, 

1  Fact  that  Two  Other  Dats  were  Set  for  Election,  which  was  post- 
poned until  a  third  day,  if  an  irregularity,  is  not  sufficient  to  Invalidate 
the  final  election,  which  waa  the  only  one  actually  held.    Id. 


Indix.  SIA 

L  OoansKABiB  of  Bejuihw  04h  kov  Taks  ADTAaTAOBCP  Irbioulauti 
eommitted  by  themaeWes.    /<£. 

i.  Fact  that  in  One  PBicivor  No  ELSCjnoK  was  OmncD  ahd  Held  dow 
not  of  itaelf  invalidate  a  county  election.  To  effect  this,  it  mnst  appear 
that  the  general  roenlt  of  the  election  was  changed  by  it;  and  the  har- 
den of  ahowing  this  lies  upon  those  who  contest  the  genersl  letnm  of  the 
sheriffl    id. 

C  Rrusn  Of  Sbmbjww  as  to  Result  of  Ck>uirrT  Euonov  is  prasomed  ee8<» 
reet  nntU  ths  contEsry  dearly  appears.    Id. 

ElflNENT  DOMAIN. 

L  BmirxMT  DonAnr.-^upFLTiKG  Citt  with  Watbb  is  Pubuo  Use,  withia 
the  mesning  of  the  Alabama  conatitation.  Bat  the  leaaee  of  the  water* 
worka  of  the  dty  of  Mobile  can  not  divert  the  water  of  a  atream  vpsa 
which  other  peraona  have  riparian  righta,  for  the  pnrpose  of  supplying 
said  dty  with  water,  without  resorting  to  the  exerdae  of  eminent  domabi. 
To  exerdae  aooh  right,  the  party  must  porane  the  course  pointed  out  by 
the  atatute,  and  make  Juat  oompenaation  to  the  owner  for  the  property 
oondenmed.    Burden  t.  Ada,  758. 

IL  Cowstitutional  Fbovisiox  Which  Forbids  Priyate  Pkopebtt  to  be 
Takbe  fob  Pubuo  Use  is  not  involTed  in  a  question  conoeming  tax- 
ation.   Xoiiiiriae  tie.  B.  B.  Co.  t.  DoMmm  Cb.,  42i. 

ENTRY. 
See  Adyxbsb  Possessiov. 

,  EQUITY. 

L  Equitt  has  JuBDDionoN  to  Make  Dbobbb  Restbaihiko  Judgmestt 
^  Cbeditob  from  bringing  suits  upon  hli  judgment,  upon  the  ground  that 
it  was  fraudulently  obtained.    D<Aton  v.  Pearce,  152. 

%  Duly  Authentioatbo  Rxoobd  of  Such  Decree,  rendered  in  a  court  of 
equity  of  another  state,  having  Jurisdiction  of  the  partiea,  ia  a  oondndve 
defense  against  the  prosecution  in  a  court  of  this  atate,  of  a  auit  upon  the 
Judgment  referred  to  in  the  decree.    Id, 

Sb  Such  Decbxb  n  Covclusitb  upon  Parties  Evertwhxre  and  in  every 
forum  where  the  aame  mattera  are  drawn  in  iaaue;  not  indeed  aa  an  in* 
Junction,  but  as  a  Judgment  of  a  court  in  another  atate.    Id. 

4  Where  Statute  Coxfbbs  Jurisdiction  upon  Another  Court  oteb 
Subject-matter  or  Which  the  chancery  court  had  Juriadiotion,  tiie  jn- 
riadietion  of  the  latter  court  remaina  unimpaired,  unleaa  by  the  language 
of  the  atatute  they  are  forbidden  to  proceed  in  auch  esses.  Owem  v. 
^Zotter,  745. 

5»  Leate  of  Court  is  Necessart  before  Filing  Bill  of  Retdcw,  or  a  bOl 
in  the  nature  of  a  bill  of  review,  and  such  leave  is  obtainable  only  upon 
showing,  by  affidavit  or  otherwise,  to  the  satisfaction  of  the  court,  that 
since  the  decree  the  applicant  has  discovered  new  matter,  which  could  not 
be  produced  before,  and  which  might  probably  have  caused  a  different 
fesult    SimpBon  v.  WeUU,  392. 

lb  Newlt  Dqcotxbed  Matter,  to  Warrant  Bill  of  Review,  or  a  bill  in 
ths  natars  of  a  bill  of  review,  must  be  so  material  as  to  entitle  ths 


S18 

pctttkMMr  to  ft  da«M^  or  to  nndMr  a  daoBM  to  bli 

and  the  patitioiMr  nrast  diair,  not  only  thai  II 

after  tha  fit  tima  te  nriag  it,  Imt  aJao  thati  with  rumom  aWa  dfl%— e,  ha 

aonld  not  hava  knoim  it  in  tima.    /if. 

T«  Nsw  Matcke  Which  mkeblt  €k»a«o  BMOoam  Amoubt  ov  Dkkb  iiik> 
peaebad  for  frMid*  whan  rach  daorea  nraat  ba  ovartfaRNni  altogotfaar  to 
antatla  tha  ooniplainant  to  raliaf,  la  not  anffidaat  foundation  for  a  bill  ol 
rafiaw.    Id. 

ii  RuLB  THAT  Pabtt  xur  Bbxabubb  hb  Bhbv  bt  JnDOHxav  baioro  ha 
oan  oome  into  aqaity  ia  oonfinad  to  craditon  who  are  aaaking  tha  aid  of 
aquity  in  the  ooUeoticn  of  their  debta,  on  the  groond  of  impoBmg  on  an 
aqnitaUa  intereat  the  liability  whieh  would  attach  at  law  on  a  Mmilnr 
lagai  interest,    ^rittota  ▼.  Qukt,  202. 

••  Bulk  that  Pabtt  mtot  E»abli8H  bd  Do*  bt  Juboi^R  totea  ha 
oan  go  into  eqnity  doee  not  apply  to  a  oaee  where  a  aaxaly  who  baa 
paid  the  debt  of  hia  principal  seeks  afterwards  to  that  aztont  to  «o» 
Join  the  coUecUon  of  a  judgment  obtained  agnmst  him  by  hia  aaU  pito 
o^paL    Id, 

10.  Equitiis  Being  Equal,  Law  Pbxtaiu.    HwUer^.  Lawtmee^  640. 

11.  Pabtt  will  hot  bb  Allowbd,  in  Ooubt  ov  EQUirr,  to  Shbeobb  Hbi* 
SBLT  raox  LiABiLiTT  lOB  Fbaub  nndor  ooTor  of  a  atatato  to  piafMil 
fraad.    Jf ose^  ▼.  Lmte,  752. 

12.  Equitt  WILL  Rblixvb  against  Dboision  or  LANP-omoEB  awarding  a 
olaimant  the  ri|^t  of  pre-amptioB,  when  tha  decision  baa  been  proeniad 
by  the  claimant  through  fraud;  and  it  makes  no  diffarenoe  that  tha  daim* 
ant  has  obtained  a  patent  for  the  land  from  the  government*    Lamemtr. 

See  ARBiTBATioy  and  Awabd;  Contbibutiox;  Blbotion;  BtoOFPiL;  FkAimi 
Husband  and  Witb,  4;  Injunutionb;  Pabthbbsbip,  S-6;  Fuubim 
AND  PBAonoB,  16;  Vbndoh  ahd  Vbndbb,  3,  4. 

ESTATES. 

L  QuBBTioN  whbthbb  Estatb  IB  Ybbtbd  OB  GoNTiNOBNT  ia  Bot  to  bo  tsrtod 
by  the  certainty  or  uncertainty  of  obtaining  actoal  enjoyment,  nor 
t^n  the  def easibility  or  indefeasibility  of  the  right  of  possesiion;  for 
many  estates  are  vested  without  possession  which  an  defbasiMa.  JTcni- 
dermm  ▼•  LukenSf  312. 

2.  Ebtatb  is  Vestbd  if  thbbb  is  Pbbsbnt  Bight  to  Fdtubb  PoasaBm^ 
though  that  right  may  be  defeated  by  soma  future  events  contingent  or 
certain.    Id. 

S.  Unpobssssxd  Estatb  is  Ybbtbd,  it  It  is  Cbbtain  to  Takb  Bivbot  ia 
poesession,  by  continuing  longer  than  the  precedent  estato.  Any  addi- 
tional contingency  destroys  its  vested  character.    Id, 

4  Estatb  will  not  bb  Cokstbubd  as  Continobnt  ob  Defbasiblb  if  it  ia  al 
all  practicable  to  construe  it  as  vested  or  absolute.    Id. 

ft.  WoBD  "whbnbtbb,"  Bbfebbing  to  Tixb  whbn  Pbopsbtt  n  to  bb 
DiTlDBD,  does  not  necessarily  make  the  estoto  contingent.    ZdL 

ESTATES  OF  DECEDENTS. 

8aa  EZBOUTOiBS  and  ADlONBRBaTOBa;  JUDHHAL  fiauik 


MT 


FisnAXi  VAnann  Mabb  bt  Plazbtiiv  aitbb  DnoonBOW  nu*  Boot 
Bmiff  lOE  Him  wab  Dmomrs  it  not  aa  obtotnta  bar  to  a  noorwy^  nor 
•a  eitoppol  im  paU,  nor  a  ralaaaa  or  wwlm  of  an  oxMag  oonaa  of  aolloi^ 
but  b  a  oixemnataiioo  to  be  woi|^iod  by  tbo  juy^aa  tandiDg  to  ifaoirthai 
BO  fraud  waa  oommittad,    MeOar  r.  TfiOfamu^  790L 

See  BzMOVOBs  axd  AiniiininusoBa.  2S. 

KVIDEKGS. 

L  Fabst  uvov  Whom  Avtibmaxitb  of  laairB  Diyo&VBi  la  booad  to  gffo  all 
bla  oridoDoe  in  aapinrtol  the  iaane  in  the  first  ioataBoai  and  ho  oaa  iudf 
gi^a  raoh  evideDoe  in  reply  as  tends  to  answer  the  new  maMv  Intro 
dnoed  by  his  adveraaiy.    Graham  t.  Dosit,  88S. 

%  AkT  BBLAX4TION  OF  RULB  THAT  Au.  EviDEHCI  IH  SUTIOBT  OF  AjUBIIA* 

TXVB  OF  IsBVB  Biast  be  glTsn  in  the  first  inafcaaee  is  bat  an  iffpaal  to  tfaa 
soond  discretion  of  the  oonrt  in  which  the  isane  is  tried,  and  ia  not  re- 
viewable on  error.    Id, 

S.  Pabol  Evidknob  is  AnifraafBu  to  Show  that  CoirniTABaB  Abiolijtb 
ON  Fags  was  InTaNBED  as  Sboubitt  for  a  sobsisting  indebtedness  on 
the  part  of  the  maker,  and  is  therefore  a  mortgage;  and  eridenoe  showing 
that  at  the  date  of  the  instrument,  tiiere  was  a  settlement  of  aocoonts 
between  the  parties,  and  an  aaoertained  antecedent  indebtedness  on  the 
part  of  tlie  maker  of  the  identical  sum  stipulated  by  the  instmment  to  be 
paid  by  him  is  consequently  relevant.    Fowler  v.  SUmmimt  400i 

IL  Fabol  Etidbngb  is  Abmissibui  to  Explaib  Mbanibo  of  Tuon  or  floma 
of  ezpreasion  commonly  nsed  in  a  particular  trade  or  bosiness»  whenever 
knowledge  of  their  peculiar  or  technical  use  beoomes  mnterlal  In  oonstm* 
Ing  a  written  contract.  A.  bought  and  aold  note  for  supplying  ''beat 
madder,  12  1-4,"  if  not  rendered  intelligible  by  other  expressions  In  the 
Instrument,  Is  explainable  by  evidence  that  among  dealers  in  madder  the 
fignrea  "  12  1-4  "  In  such  connection  were  commonly  nsed,  and  would  be 
understood  as  meaning  twelve  and  one  quarter  oents  per  pound.  Jkmm 
lUtUer,  13a 

i.  DMLABATIOira  OF  PaBTT  IB  POBSISSIOK  OF  SlATB,  TO  EfFBOT  THAT  HB  WAl 

OwNBB  thereof,  is  admissible  in  evidence,  as  it  is  explanntoiy  of  the  poe- 
session,  and  goea  to  show  that  he  held  the  slave  In  hia  own  right.  Jiarltm 
r,  Hardetliff  773. 
ib  Dmlabatiobb  of  Paktt  in  PosansioN  of  SiiAVB,  that  ho  had  employed 
another  to  sell  said  slave,  and  had  given  him  a  power  of  attorney  for  that 
purpose,  are  inadmissible,  as  they  relate  to  a  past  transaction,  are  mere 
hearsay,  and  constitute  no  part  of  the  res  gettm,    ItL 

7«  GiNBBAL  ObJIOTION  TO  EVIDENd,  PaBTLT  LBOAL  AND  PAKTLT  lUBOAI^ 

ahould  be  overruled.    Id, 

••  DWJLABATIONB  OF  OnB  OF  TwO  PaBTIB  WhOM  WRNIBB  HAD  SUN  Bn- 

OAOBD  IK  Wbiting,  made  to  witness  st  a  period  some  time  subsequent,  to 
the  effect  that  said  writing  was  a  power  of  attorney,  are  Inadmissible  la 
evidence  as  proof  of  said  fact.    Id, 

i.  DiOLABATiONB  OF  Co^x>N8PiBATOB  HAT  BX  Pbovbd  whsn  utteTod  la  fur- 
therance of  the  common  design.    McCaakeif  v.  Ort^f  33fi. 

Uk  DaoLABATiONa  OB  Admissions  abi  Evidbngb  aoaibst  Aoouibd^  bvt  Ml  la 

Am.  Dxa  YoL.  LZn— ra 


Ui own inTor; altbovgh all iluit the aoonnd Mid  •%  tlM  tioMef 

the  alleged  oonfiMiioB  la  to  be  ncttnd  to  qualify  or  iplaia  It.    aTonciT. 

IL  Dfpro  Dwff UKATTOWi  AB»  WOT  pp  Si  Apmubiblk  nr  CnriL  CAna.  Whea 
tiMj  oonetitate  part  of  tbe  re*  getim^  or  are  against  intereat^  or  the  lika^ 
tiMj  are  admleriM^  Irreapeottve  of  the  fact  that  the  deolaraat  waa  midar 
qnFeheoaioo  of  death.    BwiJiM  r.  Britt^  190. 

IS.  Dfpro  VwajksuLTiam  asm  ApmanBLB  only  wbmre  Death  cm  DirKiHin 
ii  the  SQbjeot  of  the  ohaige,  and  the  ciremnataiioea  of  the  death  the  bqIh 
Jeet  of  the  deeUnttioDa.    Id. 

U.  Dmro  DioLAKATioMB  iKAnMUMTBLg.— Wh«bi  Owe  n  SmtPioB  Slutoie 
in  aoenaing  plaintiff  of  aeeretly  pniannmg  anotiier,  def endant^  in  proring 
Jnatifloation*  can  not  introdnoe  in  evidenoe  the  dying  deelarattona  of  tho 
deoeaaed,  oliaiging  phintiff  with  mnrdering  him  aa  aoonaed  by  d^ 

14  Ooirmnov  or  Pasit  Aooosed  or  Feldht  shodu)  be  Received  wim 

Yekt  Oebav  GAunoNy  and  a  jnry  ahonid  hesitate  to  oonTiot  npon  aooh  J 

eonfeiion,  nnleaa  corroborated  by  other  circamstanoes;  bnt  a  Jndge  oan 
not  be  oaUed  npon  to  so  instnict  the  Jury,  nnleaa  the  facta  in  evideoea 
BUkke  the  charge  applicable.    J<me»  ▼.  Staie^  550. 

15b  Ik  Case  or  Homicide,  Aht  Fact  Which  Texds  to  Pbotb  that  at  tfaa 
time  of  the  killing  the  prisoner  knew  that  the  deceased  and  his  oompaa* 
ions  did  not  intend  to  commit  any  felony,  or  do  him  any  great  bodfly 
hann,  or  to  diow  the  prisoner'a  real  motive  for  killing  the  deoeaaed,  is 
leleTant  eridence.    Noiet  v.  State^  711. 

18.  DflKMUTiON,  IT  Objected  to,  oak  kot  be  Bead  ik  Btidekce  when  tfaa 
deposition  and  the  commission  nnder  which  it  was  taken  have  not 
been  retnmed  in  conformity  to  the  statute.    Avery  t.  Avery ^  513. 

17*  Depobitiok  or  Witness  Pbopeklt  Taken,  ok  Obockd  or  hii  kot  Bedto 
Reridekt  of  the  oonnty  in  which  the  salt  was  instituted,  is  admissible  in 
evidence,  notwithstanding  the  fact  that  the  witness  had  moved  into  thnt 
coonty  before  the  triaL    Ahle*  ▼.  Miller,  520. 

18.  Ik  AonoK  to  Recover  bor  Injuries  Ikflicted  ok  PLAiKimr  while  en* 
deaToring  to  take  a  horse  and  carnage  from  the  possession  of  defendant^ 
it  is  competent  to  diow  that  the  pluntiff  *s  endeavor  was  anthorized  by 
the  owner  of  saoh  horse  and  carriage.    Porter  v.  Seller,  341. 

19l  Bitbdek  or  PRoor  is  upok  Carrier  in  action  against  him  upon  a  biO  of 
lading  containing  an  exception  of  the  dangers  of  river  navigation,  and  in- 
evitable accidents,  and  after  proof  of  non-delivery  of  the  goods,  to  show 
not  only  a  loss  within  the  terms  of  the  exception,  bnt  also  that  proper 
care  and  skill  were  exercised  to  prevent  it.    Oraham  v.  DamSf  285. 

fO.  Rule  ik  Crimikal  Cases,  that  Jury  must  be  Satistixd  betokd  Rea- 
80KABLE  Doubt  of  the  gnilt  of  the  accused,  when  the  evidence  is  cir 
onmstantial,  does  not  apply  in  dvil  cases.    Evidence  in  civil  caaes  which, 
taken  as  a  whole,  satisfies  the  minds  of  the  jnry  that  the  fact  is  as  th^ 
find  it  is  sufficient    Hippey  v.  MiOer,  177. 

tL  Deeekdakt  ik  AcnoK  roR  Maucious  Prosecutiok  la  Ektitlbd  to  Show 
THAT  Gekxral  CHARACTER  OF  PLAiKTirr  was  that  of  a  gambler  and 
hone-racer,  as  it  would  require  less  stringent  proof  to  make  out  probabia 
oanse  for  prosecuting  such  a  character  for  larceny  than  one  whose  ohar> 
aoter  was  good,  and  who  followed  an  occupation  altogether  lawfnL 
MmUm  T.  Uarduty,  773. 


Ihdix.  819 

WL  Efumatm  o»  Qoop  ahp  PBAcnMBT.1  CiiAmAom  ot  DonrpAOT  ao^tnbk 
to  beiMrirvdinftdTU  MtloQagftiiiitlilmtonoovwdaiiitgMfora^ 
Juy  inflioied  OD  plaintiff  with  »  knife.    Pwiar  r.  BeBer^  ZiL 

tt.  BviDMioM  OF  CHARAom  IB  ITOT  Aduwomim  im  Citil  AoruatBt  «roepl 
iHiak  the  ehanefeer  el  one  of  the  partiM  ie  in  iaroe.    Id, 

•A.  PfeovanoNAL  Books  ob  Books  or  SGnorcK  abb  vvt  AmaauMLBTK  En- 
ABNGBt  althoofl^  ezperta  may  be  aaked  their  Jodgment  and  the  groonda 
of  it|  which  may,  in  aome  degree*  be  founded  on  booka  aa  n  part  el  tbefar 
general  knowledge.    Melvin  t.  Aalqr,  171. 

6ee  AoxHor,  4;  Altkbatioh  of  IvsTKUXxmSy  2;  OoMMoir  Cabbtkbs,  11, 
1%  14;  ConTBACXB,  10;  Dakaobb,  4;  Jubt  ahd  Jubobs,  1»  2;  NoflCBi 
Plbaphto  abd  PBAonoB,  15^  26-29;  Shippiko,  6;  Sf.AwnBB,  I,  2,  8| 

WZLLSp  I;  WlSHBaSBS. 

EXBCUnONB. 
L  PltoGBBDa  OF  Salb  of  Bxbmft  Pbopibtt  abb  vof  EznirT  ibom  Bzbou« 
HON.    Knahb  ▼•  Droie,  3S2. 

2.  JUDOM BUT  IN  TbBSPASB  FOB  LbTTINO  ON  FBOrBBTT  EXBHPT  FBOM  BXB- 

ounoN  la  not  exempt,  bat  may  be  attaohed.    M 

S.  BzBOunoN  Mun  bb  Ikubd  upon  Judombnt  and  Bbtobnbd  **No  Pbop- 
BBTT  "  before  prooeaa  of  ganiiahment  can  be  seed  oat  onder  Geoigia  atat- 
ate  of  December  23»  1822,  Frinoe'a  Digeat,  96.    Cfmn  t.  HoweO^  785. 

4  BiDDEB  at  Shbbiff'b  Salb  mat  Withdbaw  his  Bid  at  any  time  before  the 
pirupeity  ia  atrack  off  tobim,  and  can  not  be  deprived  of  thii  right  by  any 
conditions  preacribed  l^  the  theriff.  Where  hia  bid  Ib  withdrawn  before 
ita  acceptance,  the  bidder  can  not  be  made  answerable  for  the  coeta  of  a 
aecond  sale.    lUker  ▼.  SelUer,  835. 

&   PUBCHASBB  AT  SaLB,  UNDBB  VbNDOR'B  JuDGMBNT  FOB  PUBOHASB  MONBT 

of  land  held  by  Tendee  onder  artidea  of  agreement^  whether  he  be  the 
Tender  himaelf  or  a  atranger,  takes  the  whole  legpl  and  eqoitable  estate^ 
and  the  proceeda  go  to  the  vendor  to  the  extent  of  the  unpaid  parohaae 
money,  without  regard  to  the  date  of  hia  Jadgment.  FterAeBei^t  Appeal^ 
865. 

ib  &BOBIPT  OlTBN  BT  CONSTABLB  TO  DEFENDANT  IN  EXBOUTION  FOB  MONET, 

parporting  to  haTC  been  received  liy  him  in  fall  of  the  jadgment  in  his 
handa.  Is  not  condasiTe  against  him  in  an  action  on  hia  bond,  bat  he  may 
ahow  that  he  did  not  in  fact  receive  the  money,  and  that  he  waa  nnable 
to  make  it  by  reaaon  of  the  debtor'a  inaolvency.    8UUe  t.  BameU^  188. 

f,  BzBOunoN  IS  Knixmr  whbn  Issued  aiteb  Death  of  Defendant  withont 
a  reriTal  of  the  Jadgment,  except  in  the  case  where  an  o^iof  or  flmie§  Ib 
ao  iaaned  for  the  parpose  of  continuing  a  lien  which  baa  been  acquired  by 
a  former  execution  before  hia  death,  and  which  baa  not  been  Icat  by  "  a 
ohaam,**  or  otherwiae.    ColKer's  Adm'r  t.  Windham^  767. 

01  JuRicB  OF  Pbacb  mat  Renew  Bzboution  FBOM  TiMB  TO  TiMB,  Under  the 
New  York  reviaed  statutes,  so  aa  to  keep  it  alive  more  than  two  yeara^ 
thongh  he  can  not  laane  one  anew  after  two  years  have  expired.  JTorsi 
▼.  Goold,  108. 

8ae  OuBRiTUTioNAL  Law,  A;  Husband  and  Wife,  2.  4;  iNssMNivr;  In* 

JUNCTIONS,  2, 8. 

SXECUTOBS  AND  ADMINISTRATORS. 
L  Aiteb  Pbobate  Coubt  has  Dult  Appointed  CoiIpetent  Pebson  Admin* 
iSfBAlOBt  it  oi^  make  no  further  appointment  to  that  office  until  the  o» 


or  dlMUtttiM  wUflk 

peal  of  hia  aittiMirity,  or  Ui  TiirijpiiHnn  Aa  oppwntmoDt  mttdo  beiart 
the  boppeBiBg  of  eny  of  those  ooatiiuMMaeB  is  totelly  wdcL  Jfottftewi  ▼• 
DfmUUU,  765. 

i.  Whb—  Dpu  APFOpnpgD amp  (juAungp  Amummtb ATRnf  kab  agygaB*' 
■lOviD  irom  BvoBtBO  the  eetnte  either  aolvent  or  ineohrcnt^  a  decree 
rendered  by  the  probata  oout  within  eighteen  moathe  "  thai  eaid  admin* 
iatratriz  go  henoe  dieoharged  from  further  liability  aa  ench "  ia  totally 
Toid.  It  doea  not  efaange  her  righti  nor  liabilittee*  nor  anthorize  the  ap- 
pomtaent  of  aaadminiatcator  tU  ftonit  non.  If  ahe  atill  retaina  aaaeta  of 
eaid  eetate^  ahe  may  be  proooeded  againat  aa  thoogh  eaid  CMrder  had  new 
been  made.    Id. 

t»  If  Aooouvt  Iicpbopbblt  Fhid  ahd  Aslowkd  as  Final  Aiocx>niiT  is  or 
Arr  VALiiMsr  AT  AiiLi  it  ia  valid  only  aa  to  itema  therein  mentioned,  and 
can  not  protect  the  admlniatratriz  from  liability  for  other  itama.    AL 

4,  CosTBAonlCAJ>iwrnE£zacoTOBO&AMiNi8TBATOBABsPnnoKAX.^and 
do  not  bind  the  eetate  of  the  decedent    J%lskitffk'9JB^rY.Ikduigh,6Sk 

^  KXJBUUTOR  OB  AlUflinaTEATOB  CAV  HOT  Bl  SUID  A8  SlTGH  lOK  GOODB  Fot^ 

KOBBD  OB  SxBViCBB  RiBTUBBD  to  the  oetate  after  decedent's  death,  bat 
for  anohoontraeta  the  remedy  ia  against  the  repreaentatiTe  in  hIa  pnvmie 
capacity.   Id, 

t.  PnOOHAL  BBPBnBNTATIVB   IS   NOT  LlABUI  AS  SUOH  lOB  FOHBBAXi  Bz- 

pxNsn  OF  Dbobdbnt.    Ji. 

7t  AOMINIBrBATOB  IS  BoOND  TO  Do  NOTKINO  WmOQB  BAB  TeHDENCT  SO  Iv- 

TBBFSBS  WITH  Pebfobmangb  OF  HIS  Tbust.  If  he  makce  a  profit  bj 
the  nse  of  the  fmida  of  the  eetate,  or  by  pnmhesing  in  the  debts  of  the 
estate  with  his  own  money,  the  profit  belongs  to  the  eethte.  The  pdioy 
of  the  law  is  to  prevent  him  from  being  placed  in  a  position  which  woold 
bias  him  against  the  diicharge  of  hii  duty.    Mwd$  ▼•  Xone,  7fi2. 

t.  Admikistbatob  can  not  Rvtain  Pbofits  Which  Hb  Mabbs  bt  Ajobbi- 
INO  with  hii  oo-administrator  that  they  will  bay  for  the  estate  certain 
land  at  the  government-land  sale,  and  by  soch  agreement  canaes  him  ta 
join  with  him  in  raising  funds  for  that  pnrpoae,  and  chaigea  the  eetale 
with  the  expense  of  raising  said  funds,  and  causae  said  oo-adminiatntor 
and  an  adult  son  of  deceaaed  to  remain  away  from  the  aale  by  aasozing 
him  that  he  will  purchaae  the  land  for  the  estate,  and  who  by  the  same 
assurances  prevents  competition  in  bidding  at  the  sak^  and  then  takes 
the  title  in  his  own  name,  and  aoon  after  seUa  said  landa  at  a  latge  profit 
Suchaotaon  his  part  amount  to  a  fraud,  against  which  equity  will  relievob 
Id. 

i.  Administbatob  Who  Makbs  Rbfbbsentations  Suok  as  Abotb  n 
BsTUffBD  to  deny  that  the  purchaae  waa  made  with  funda  of  the  estatai 

Id. 

10.  Bknbfit  Abisino  fbok  Invissmbnt  Madb  bt  AsmNnnuTOBs  for  the 
benefit  of  the  estate,  where  said  eetate  is  free  from  debt  imuea  to  the 
benefit  of  the  residuary  legatee.    Id. 

11.  Administbatob  of  Estate  can  not  Bind  It  bt  his  Wabbantt,  or  ren- 
der it  responsible  in  damages  for  frauds  or  torts  committed  by  him;  but, 
in  his  dealings  with  third  penons  in  respect  to  the  estate,  he  \m  bound  ta 
act  fairly  and  honestly,  and  the  estate  can  not  be  permitted  to  derive  v»> 


811 

)h*  aad  imtwnfaBUo—  adwrtngo  by  mwiw  of  lib  munflioriiBd  fraud- 
vlant  oondnet    <16Ib  t.  Okanilet^  01& 

IS.  FAUBAn>FBAirinnJDnrBXPKnBMTATI01l8MADISrABHI]F]BIBATOB»A« 

Salb  of  Ftenoenr  of  the  estefee  of  his  inteotete,  m  to  the  shaimotor  and 
MMandneM  of  tho  property,  fay  whioh  the  bayer  is  misled  to  his  injury, 
entitle  the  latter  to  a  resoiarion  of  the  oontraot,  or  to  sa  abatement  of  the 
price  agreed  to  be  paid.  Id, 
VL  BncBZpnav  ov  DmrwrnoAjn  as  Bx»ooto»  o»  Apmuhwuatdb  nr  Diola* 
RATiov  may  be  regarded  as  mere  sarplusage,  and  the  Jndgment  may  be 
agiiast  him  penonally  when  he  eonld  not  nnder  any  cireametanoes  be 
liable  in  hisrepreeentatiTe  o^adty  to  the  ofaarKeaeontsined  in  the  decla- 
ration; but  this  can  not  be  done  where  the  defendant  could  on  any  snp- 
position  be  liable  in  his  representative  character  to  theoontraet  or  demand 
declared  on.    MUakugV*  Ea^r  ▼.  FUdmgK  063. 

14.  COUHT  AOAIKaT  EXBOUTOK  TOB  MOHKT  HaD  ASD  BwUVBU  OAK  HOT  U 

JoiVBD  WITH  CouHT  FOB  MoBXT  DoB  TO  Pi.Aiinni!r  fay  defendant  as 
ezecntor  upon  an  aceonnt  stated  with  him  of  money  doe  from  him  as  ez- 
eontor;  the  former  showing  a  peieoosl  charge  on  the  eseentor,  and  the 
latter  a  charge  against  the  estate.    Id* 

16.  CouvT  TOB  MoNST  Paid,  Laid  out,  Ajn>  EzPKmsD  WT  PLAnrmv  for 
the  ass  of  the  defendants  as  eseentors  can  not  be  joinad  with  oonnti 
chargiDg  a  personal  liability  npon  the  execntor;  for  nnder  such  a  ooont 
facts  might  be  shown  which  woald  have  justified  a  recovery  de  6ofiif 
faftatorM,  and  therefore  the  description  of  the  defendants  as  execnton 
can  not  be  regarded  as  mere  surplusage.    Id* 

10.  BzioTTTOBS  Who  Pat  Lkoacixs  withodt  Taxhtg  Rbfitvdino  Bondb,  or 
retaining  su£Scient  money  in  their  hands  to  pay  the  debts  of  the  estate^ 
and  oonseqaentf y  have  to  nse  their  own  funds  for  that  purpose,  can  nol^ 
as  of  course,  come  into  equity  and  have  the  legatees  refund  the  amount 
so  advanced.  They  should  have  kept  regular  aocounti,  and  have  taken 
care  to  haye  retained  a  sufficient  amount  to  pay  such  debts.  There  are» 
however,  peculiar  drcumstanoes  which  will  entitle  executors  so  situated 
to  relief.    AUaeandet  t.  Fox^  211. 

17*  BXIOUTOB  PaTIVO  LkOAOT,  WHBB  BmXTUD  TO  HATB  A  PaBT  THXBIOV 

BsruNDU).— Where  the  executors'  petition  alleges  as  a  reason  why  they 
had  paid  certain  legacies  without  retsining  suffident  funds  to  pay  the 
debts  of  the  estate,  that  their  testator  was  a  man  of  large  estate;  thai 
he  was  a  prudent  business  man  who  kept  strict  account  of  his  means; 
that  after  providing  for  the  payment  of  the  legacies  whioh  they  had  paid, 
he  had  set  apart  certain  land,  the  crop  thereon,  and  the  debts  due  him, 
as  a  fund  from  whioh  to  pay  his  debts,  and  declared  that  sooh  fund  would 
be  more  than  enough  for  that  purpose;  but  that  notwithstanding  a  care- 
ful management  of  the  fund,  owing  to  a  fall  in  the  price  of  cotton  and 
an  inability  to  coUeot  debts  due  the  estate,  the  fund  had  fallen  short— 
they  are  entitled  to  have  the  legateee  forced  to  refund  sufficient  money 
to  pay  the  debts.  If  the  allegations  of  the  bill  are  denied  by  the  an- 
swer, the  matter  should  be  referred  to  a  master.    Id. 

1&  ADinxiflTBATOB  CAN  KOT  Impb^oh  InTiSTATa's  DxBD,  ou  the  grouud 
that  it  was  made  with  intent  to  defraud  creditors.  OamMY.  Ohamdkr^ 
545. 

19L  Whkub  Deobkb  has  vkbs  &bm]>bbbi>  AOAXvar  Bxbootob  ov  Ebxati,  he 


822  Irdxz* 

Wi  Mrtliofity  to  pMfiiiotM»  the  property  of  aiid  Mliito,  m  Monityfw 

Iti  pftjBMnt.    Piekms  t.  Tarhonmgh^M  Adm%  798. 
SO.  Plu>iani  WmoB  Giubob  Ohb  as  Bxkjotob  gait  iror  bi  Joutbd  wna 

Tuon  WmcBi  Cbabob  Him  Pbhsohallt,  beoMM  tht  Jadgmant  in  Iht 

one  oMe  would  be  de  homU  propriU,  and  in  the  oilier  de  hom»  iettaioHi. 

lUthmgVM  E^T  t.  F^ltArnqK  653^ 
tL  DxuTKET  or  Ckattiui  to  FanciUBn  ay  ADicnnanAnoir  Sals  It  nfi- 

clent»  if  the  porohaaer,  after  the  bid,  takes  possBMion  withoat  a  tnspan. 

CWwsiiayi  t.  CWemoii,  402. 
t2.  AixiansTBATOB  Ppbohabihq  CBAmLs  AT  ADHnmiBAnov  Sakb  has 

the  legal  title  already,  and  is  not  bound  to  give  farther  seunriiy,  hsfoad 

his  administratioQ  bond,  for  his  parohase.    Id, 

tS.  CONSUICMATIOV  OF  TlTU  OF  PUBCHASBB  AT  ADMDmXBAXOBlB  SaU  to 

ehattels  porohased,  after  he  has  made  a  gift  of  them,  inoras,  by  waj  ef 
eetoppel,  to  Ids  donee.  AC 
ft4.  Mmasubx  of  Szxnrr  of  DnoBn  AOAiBsr  ADioxDnuTOE  Wbo  bas 
Madb  Peofr  by  the  personal  nse  of  funds  of  the  estate  In  pitmhssliig 
lands  therewith  and  then  selling  said  lands,  is  the  net  profit  made  ont  el 
aaid  transantion  and  interest  thereon.  The  manner  of  iiaflmafing  Ihli 
net  profit  indiealed.    Jfoaefy  t.  Xoiie,  752. 

BeeDowiEi  Runnov;  8rB0iFioPiBV0BiiAvci,2;8TA9imoFLDinAXii0Bi»L 

BZBMPLARY  DAMAGES. 
See  Damaois,  5-7. 

EXEMFnOKS. 
See  OoHmronovAL  Law,  U;  Ejlbuuti<im»  1«  9L 

EXPERTa 
See  Etidbmoi,  24. 

FACTORS. 
See  Baiuixstb,  1,8. 

FENCES. 

Tteu  n  No  Law  nr  Ohio  Rbquisihg  Aht  Pibsor  to  Fbhob  ob  IvoLoa 
BIS  Obouitds.  The  owner  wlio  leaTea  his  Isnds  iminftkised  takes  the  riak 
of  intmstons  upon  them  from  the  animals  of  other  persons  ronning  at 
large;  and  the  owner  of  the  animals,  in  allowing  them  to  be  at  laige^ 
takes  all  the  risk  of  their  loes,  or  of  injnry  to  them,  by  unaToidable  aod- 
dente  arising  from  any  danger  into  whkh  th^  may  wander,  ireneftadbf 
T.  CSdwIoMl  etc  R.  R.  Oo.,  240. 

See  AHiMAia,  3|  4|  RAn.BOATOi,  1-S. 

FIXTURES. 

J.  To  Obbbbal  Rulb  of  ComioH  Law  SuBjaornro  EvBBii'uiira  Avuzbb 

to  the  freehold  to  the  law  goTeming  the  freehold  there  was  an  exceptioB 
in  favor  of  fiztorea  erected  for  the  pnipoeea  of  trade.  Harkme$B  t.  ^Saar^ 
742. 


Indix.  828 

&  Law  nr  Amxmioa.  Rniinsn  thax  Bsaonoas  iob  AaacuumuL  Pub* 
POSM,  put  npon  the  laod  bj  *  tonaat,  tfaonld  raoeiTe  the  ■eme  proteoti«i 
in  favor  of  the  tenant  that  was  extended  by  the  rammnn  law  ol  Kngland 
to  fixtoxee  made  for  the  parpoees  of  trade.    Id, 

IL  Same  Rulb  as  to  FmuutB  Which  AmjiD,  itiidbr  Cokmoh  Law  of 
EngUuid,  between  heir  and  ezeoator,  applies  in  America  between  vendor 
and  vendee.    Id, 

i.  It  IS  Past  ov  OoimoH  Law  ov  Ambbioa  that  as  BRWSDr  Vbtdob  aho 
Vhtdbi  Stationabt  Maohikkst  by  whioh  tnming-lathesy  or  any  of 
thoae  maohines  whioh  are  portable  and  of  equal  nse  everywhere,  are  im- 
pelled must  be  regarded  as  irremovable  fiztares  and  part  of  the  frse- 
hold,  and  will  pass  by  a  deed  of  the  ground  npon  whioh  tliey  are 
erected,  if  they  were  erected  npon  the  gnmnd  by  the  owner  himself  dvr* 
ittg  his  ownership  for  his  own  use,  and  fixed  in  or  to  ttie  gronnd,  wheth« 
erected  for  the  purposes  of  trade  or  agricoltnre.    Id, 

i.  PoLBS  Ai>ArTei>  and  Used  fob  Cultivatino  Hors  ufok  Fabm  abb  Pam 
Of  Realty,  equally  while  in  use,  and  while,  having  been  taken  down  for 
the  purpose  of  gathering  the  crop,  they  are  lying  piled  npon  thepremisss 
with  the  intention  of  being  used  agdnnezt  seaeon.   Bishop  r,  BidbofH  68b 


FOREION  BANKRUPTCY. 
See  Bahkburct  akd  LraoLYBVOT. 

FOREIGN  LAW. 
See  CoKVUCT  ot  Law& 

FRANCHISBS* 
See  CovsTiTirnoyAL  Law,  10;  CoBPOBATRmi  Rin.B)04Wi,  4-6,  6. 

FRAUD. 

L  Falsb  OB  Fbauditlent  Rbprbbbntation  Made  bt  One  Pabtt  to  Cos- 
TBAor,  whereby  he  makes  gain  to  himself  and  occasions  loss  to  the  other 
party,  gives  to  the  defrauded  party  an  action  for  the  deceit,  if  the  repre- 
sentations are  material  and  relate  to  a  matter  about  which  the  injured 
party  had  a  right  to  be  informed.    McOar  v.  TKttfiams,  739. 

t.  Pabtt  has  Rioht  to  Rely  upox  Repbesbntations  op  Tbadesmab  as  to 
Extent  op  uis  Skill,  and  as  to  the  length  of  time  which  a  tin  roof 
built  by  him  would  last  without  leaking;  and  if  he  makes  false  represen- 
tations by  which  he  induces  plaintiff  to  employ  him,  he  osn  not  eecape 
liability  npon  the  ground  that  his  rsprssentations  were  inci^ableof  befaig 
-made  good.    Id, 

t,  CONCEDIXO  THAT  WORKMEN  ABB  ObNEBALLT  AoHEED  THAT  TiN  ROO? 
OAN  NOT  BE  ^IaDB  WhICH  WILL  LaBT  TwBNTT  YbABS  WITHOUT  LbAK* 

INO,  still  it  is  not  palpably  impossible  if  it  be  so  at  alL  Hence  defendant 
may  liave  committed  a  fraud  by  agreeing  to  oonstmot  one  of  that  kind,  as 
plaintiff  may  well  liave  reposed  upon  the  presumption  that  the  contractor 
knew  the  completion  of  the  duty  which  he  had  nndertaken  was  within  the 
compass  of  his  power.  Id, 
lb  Obuoobs  in  Frauditlent  Bond  can  not  Shield  TiiBiisELyBs  wmam  hu^ 
bility  by  alleging  their  own  fraud.     Btxins  v.  Dravo^  730. 


FRAUDULBNT  OOKVBYANCBS. 


vor  VonH  Imt  voidable  only,  at  tlie  inataaodoC  tlie  party  aggrieved, 
wWdn  the  meaning  of  the  atatatea  el  13  and  g?  KKatwth,  re-enacted  in 
Tnaa  m  Hart.  Dig.«  art.  1462,  dedaring  tliaft  tlie  eaaw  afaall  be  *' Qttarij 
Toid."    Jbvfer  T.  AenooR,  480. 

%  BOMBQVm   PUBCHASIft  WRH  AciVTAIf  NOHCB  OV   PBIOR  C05V1IAVG1 


ML 


OAV  VOT  Atoid  It»  onder  tba  atatate  to  pcerent  firande  and  fnnda- 

oa  tlie  groond  that  it  waa  intended  to  dcfimad  eredi- 

FREI6HT. 
See  Oomf oil  Ci^BrrM,  97. 

OABNISHKENT. 


OIFia 

FuucMAsaoL  WRH  HoxKB  OF  OxTF  whkh  the  atatate  makea 
void  aa  to  pnrnhiewa  for  want  ol  enfficient  eliaage  ci  ponHBoa  eaa  aol 
avoid  each  gift.    OmmumiMgt  ▼.  Cfolamam^  402. 

Sea  HusBAKD  akp  Wm.  6;  BtATorw^  S. 

OUABDIAN  AND  WABD. 

L  OoABHAV  HAS  OoimoL  ovia  Wabd^  JmrnMsr  nr  Boim  eaeeated  to  aa 
aaiwtijr  and  tnneforred  by  tlie  latt«  to  the  gnardian  aa  part  of  the 
waid'a  eatate;  be  aiay  reoeive  money  paid  thereoa,  he  may  one  and  re- 
eover  tiioraoa  in  the  aaaw  el  the  eseoator  lor  hie  own  nae  aa  gnardian, 
aad  the  eneoator  oan  not  prefeat  it;  or  he  nuy  eell  and  tnnaler  it 
HwUer  T.  Lttwremee^  640. 

i.  OuAauLui  HAS  Powxa  TO  Sill  WAmD*a  PnsoKAi.  Bbtati.    Id. 

8.  Sau  ow  WaboTs  FteFKKTT  ar  OvABOiAir  to  Pat  hd  Own  Dear  ie  a 
bvoaeh  of  traath    /<£• 

4b  Mbbb  FaAVD  of  OvAaMAV  nr  Salb  or  Waxd^  Pbopbbtt  ia  not  aoffioieat 
to  iafalidate  the  traaaaetlon  aa  againat  innooent  partiee.    Id, 

i.  Ova  Who  Raaanraa  ibom  Ouardiah,  in  PATMaKT  or  Daar,  Ward'o 
Paopxarr,  bomaJUU^  for  value,  withoat  aotoal  or  oonatniotive  notice  that 
the  property  doea  not  beloag  to  the  gnardian,  ia  not  liable  to  the  vranL 
Id. 


Index.  825 

•i  SUKgfIJi  OF  GVABOIAN,  WhO  HAS  TbAXSWEKBED  HB  WaBD^  PBOnOKfT 

nr  Patmhit  of  bib  Owk  Dsbt,  and  af terwudi  beoome  fandlTaiit,  haTiiif 
Imsb  obHged  to  pay  the  ward  the  amoimt  of  hia  eatate  In  the  gnardiaa'a 
baiida,  eao  not  reeoTer  againat  the  innooent  tranafaiee  when  they  have 
permitted  the  guardian  to  retain  the  ward'a  eatate  withoat  qneation  for 
flftaen  yeaK%  and  for  elu^t  years  after  the  ward'a  oomlng  of  age,  withoat 
■■■Mng  to  eompel  the  guardian  to  pay  over  to  the  ward  liia  eatate,  al* 
thoaj^  dnring  thia  time  lie  waa  aolvent,  and  aUe  to  perform  the  dntiea 
of  hiatmat.    Id. 

ff.  OUABDIAH  n  NOT  IjABLB  FOB  WOBX  AND  LaBOB  OF  WaBDS  OB  hDl  filed 

for  a  aettlement  of  the  guardianahip  aooonnta.    PkUlipB  ▼.  Doait,  472. 
C  BviDBiraB  OF  Wobk  avd  Labob  of  Wabds  d  Oomfbriit,  on  bill  for  aettle- 
ment  of  gnardianahip  aooonnta,  to  ahow  that  the  credita  claimed  by  the 
goardian  for  diaborMmenta  ahoold  not  be  allowed,  they  baring  been  paid 
and  diaoharged  by  anch  work  and  labor.    Id. 

H  GvABBIAB  WBO  SXFBBMMOBBCTABlBIBBBaVABBFBOnnOF  WABD'a 

Ebtatb  withoat  the  aanotion  of  a  chancery  ooort  ia  liaUe  for  the  prind* 
pal  Bom  of  the  ward'a  eatate  at  all  erenta.    Id, 

See  SUBBTTSHIP,  fi. 

HOMESTEADS. 
See  JuDOMKNTS,  3,  4,  9,  IOl 

HOMICIDB. 
See  Gbimibal  Law;  Etidbngi,  15;  Ybbdzoi^  L 

flUSBAKD  AND  WIFE. 

I.  WlFB^  InTXBBST  in  PbBSONAL  PBOPBBmr  NBTBB  REDUCED  TO  POaBESSION 

by  hoaband  can  not  be  sold  by  him  so  as  to  bind  her,  eren  thoogh  she 
tigjn  and  acknowledge  the  instrument  purporting  to  oonyey  that  intaroat, 
with  all  the  solemnities  raqnired  by  law  for  the  oon^yanoe  of  her  rsal 
eatate.    SeoU  t.  Hiag^  458. 

%  FBQPBBTT   BbLONOINO    to   Wira   VNDEB  VaUD   FoBBIGN   AjMTBEUJri'lAL 

GoNTBAOT,  Madb  BY  RsR  AND  BXB  HusBAND^  can  not  be  taken  on 
exeoation  in  this  country  to  aatisfy  the  hnsband's  debts.  SchitferUng  t. 
Af^bMUi,281. 

S.  STATUTB^-sach  aa  New  York  married  woman'a  act  of  1848»  aeetion  2, 
abrogating  a  hnaband'a  marital  right  to  choeee  in  action  of  his  wife— can 
not  affect  n  hnaband'a  right  to  continue  the  proeecation  of  a  suit  for  one, 
began  before  the  act.     WetterveU  t.  Oregg^  180. 

4.  CouBT  OF  Equitt  will,  bt  Injunction,  Rbstbazn  Gbbditob  of  Huiband 
FBOM  Sbllino,  nnder  execution,  the  wife'a  property  belonging  to  her  by 
the  terma  of  a  valid  foreign  antenupUal  contract  made  by  the  hoaband 
and  wife.    Sekrferlmg  ▼.  Huffman^  281. 

1^  Whbkhbb  Husband  is  ^'PuBoaAflXB"  of  Wdb's  Chastbu  before  mar^ 
rfage,  within  the  meaning  of  a  statate  making  parol  gifta  without  dellT- 
ery,  void  aa  to  "  purchasers,"  qiuert,    ChanmiiKgt  t.  Coleman^  402. 

C  Vbndbb  of  Comicunitt  Land  is  Bntitlbd  to  Axl  of  Subttvtno  Hus- 
band's Interbbt  thkbein,  under  a  sale  by  the  latter,  together  with 
damages  for  breach  of  contract  to  convey  the  whole.    Such  interest  will. 


826  Index. 


In  geiMrml,  be  one  hmlf ;  although  it  teant  that  Um  TwdM  ii  «BtHlid  It 
Um  banofit  of  any  orediti  in  faTor  of  the  hnaband  for  payment  of  com- 
mnnity  dehti,  and  ahonld  have  the  whole  of  the  timet  aUotted  to  Ub,  if 
upon  the  partition  of  the  oommnnity  property  it  doea  not  egcmiii  the 
moiety  to  which  the  hnaband  ia  entitled,  and  the  righto  of  other  oo-ten- 
anta  he  not  injnriooaly  affected  thereby.    JMinaon  t.  JfeZ^onaU;  480l 

7*  HiramAHD  ouur  Rboovkr  uvon  Ivmtanaan  uvoer  fitaui.  made  bolpo^ 
him  and  othera  for  the  pnrpoee  of  defnwding  hia  wife  oat  of  her  fntateat 
in  real  eatate  owned  by  him.    Evamt  v.  i>raeo,  369. 

i.  Founov  ANTBrtrpTiAL  CoimACT,  Vaud  wnsu  Madm^  axd  bt  Wkigb 
HusBAKD  AoBiBO,  for  a  valnable  oonaideratioa,  that  all  the  ptufiiy  of 
the  intended  wife,  then  owned  by  her,  as  well  as  that  which  ibmy  m^gfal 
mntoally  acquire  during  marriage,  ahonld  be  abaolntely  here,  la  Dot  in- 
haiimwihwii  with  the  policy  of  onr  lawa,  and  will  be  enfoioed  in  thia 
oonatiy.    Sek^/mUmg  ▼.  i7i(|hMni,  281. 

See  Dowbb;  JusaimraB,  8, 4;  Marrito  Womih;  Stjovte  ow  hoasuamm^  C 

nXBOAL  OONTBACT& 
See  CoNTEAOTB,  4»  8. 

iNDEMKrnr. 

Iirraiannr  Bom  Oiysn  to  Shjebdv  to  Inducb  Him  to  Lett  Void  Kt** 
CfunoH  ia  itaelf  Toid,  and  can  not  be  enforced  In  a  coort  of  JnaUoa.  Cb^ 
tm$'  Adm'r  ▼.  WiiMam,  768. 

See  Pabtvrbship,  10|  Tulajosq  asd  PEAcnoB»  S. 

INDIOTMKMT. 
See  CRZMiir AL  Law,  2;  ?•  8. 

INFANCY. 

1.  Dud  or  Ikvahtis  iroT  Void,  BOT  VoiDABLS  OKLT.    Mmmitig'w^Jckmm^ 

732. 

1  At  Law,  Ikvakt  vibd  hot  Rkfitnd  Pubghabb  Mokbt  which  ho  haa  !»> 
ceived,  and  which  there  is  no  evidence  he  haa  had  In  hia  pnaaaaaion  aflar 
he  attained  his  Biajority,  as  a  condition  preoedent  to  hia  leaeindiDg  or 
avoiding  his  conTeyance*    ItU 

IL  TRua  RuLi  Appears  to  br  that  it  iRrANT,  aftbb  Hb  Abbiybb  at  Aa% 
18  Shown  to  br  Possrssrd  or  Covsidbbatioh  Paid  Him,  wliether  it  ho 
property,  money,  or  choaes  in  action,  and  either  dispoeea  of  It  so  thai 
he  can  not  restore  it  or  retains  it  for  an  nnreaaonable  length  of  thne 
after  attaining  his  majority,  this  amoonta  to  an  affirmance  of  the  oob> 
tract.    Id, 

4.  AiTEB  Intant  has  Disapfirmrd  his  Dexd  A2n>  RiooTBBBD  Labd  thenhj 
conTcyed,  the  porchaser  may  sue  for  and  recover  the  porohaae  mooaji 
especially  so  where  the  purchaser  entered  into  the  oootraot  npoa  fh* 
false  representations  of  the  infant.    Id, 

See  Elrotiob,  2,  3;  PabbmT  ahd  Ghiuk 

INJUNCTIONa 

t.    riBM  "IbBBP arable  DaMAQE,"  to  PrBVEMT  WhXOH  iBJWCnOV  MAT 

Issue,  includes  wrongs  of  a  repeated  and  ccntinning  character,  or  which 


Ihdxz.  8S7 

damigM  whieh  m  mtbaMm  ool j  bj  eoB)eofeai%  and  not  bj  aaj 
Meante  stMidjtfd.    ComumonweaUh  ▼.  FiUabmrgh  He,  B.  ML  00.^  372. 

&  Lmujiohov  will  vov  bi  Obabtbd  to  RmRAur  Sali  oh  Bxioonox  of 
land  which  the  Judgment  debtor  has  ocniTeyed  to  the  party  petitkmlnf 
for  the  mjnnotion.    Corlm  t.  Iludaon,  521. 

IL  Whuuc  Pntflov  hot  Pabtt  to  Rhoosd  Obtaihb  Injuhohoh  to  Bnmunr 
Salb  on  ezeoatlon,  and  the  injnnotion  ia  diHolved,  It  la  error  for  the 
eonrt  to  render  Judgment  against  him  and  hia  aoretiea  for  the  amoont  el 
the  original  Judgment.  The  atatute  authorising  the  court  to  award 
damages  for  the  delay  oauaed  by  suing  out  an  Injunotkniy  on  the  diaaoln* 
tion  thereofy  haa  referenoe  to  Injnnotioas  to  restrain  the  oolleotion  el 
moneyt  obtained  by  the  Judgment  debtor^  or  aome  one  who  ia  a  party  to 
the  Judgment.    Jd, 

i.  GbMFLAIHlHT  WHOU  TlTLI  U  ClBAB  HXID  HOT  AlLIOB  nr  an  BnX  THAY 

Ah  BA8  KnAMUBBMD  BU  BiOBT  AT  Law,  ot  that  he  has  been  In  pomes 
sion  three  years.  In  order  to  obtain  an  injunetion  against  an  upperiipariaa 
proprietor  for  diverting  a  latge  portion  of  a  stream  of  water  to  complain* 
ant's  injury.  This  Is  upon  the  ground  that  it  will  prevent  a  multlpUcity 
of  suites  and  that  complainant's  remedy  at  law  would  be  def  octiTc.  Bmt» 
dm  T.  £Mm^  76a 

i.  Whsbs  Right  Ihtadid.  iob  PBOTBonoH  or  Whudi  Ihjuhotioh  is 
SocroBT,  is  seonred  by  statute  or  by  contract,  tliere  is  generally  no  quea- 
tion  of  tlie  amount  of  damage,  but  simply  of  tiie  fight.  CommimwtttUk 
T.  PUUbtargh  ate.  R.  It.  Oo.^  872. 

ii  Ko  QuasnoH  or  Damaoi  n  Baibio  uvoh  Apflioatioh  ion  iN^mronox 
when  railway  companiea  or  IndiTlduals  exceed  their  statutory  powers  In 
dealing  with  other  people'a  prupetiy,  but  aimply  a  questioii  of  tlie  Inva- 
sion of  a  rig^t.    Id, 

h  Laohsb.— Gbahcbbt,  ih  Qrahtiho  iHJVHonoHa  ih  Oaus  where  the  right 
le  not  dear  until  established  at  law,  will  refuse  the  exerdse  of  its  power 
when  It  spears  that  the  pkintiff  has  been  guilty  of  laches;  but  tiiere  le  no 
reason  for  the  application  of  thia  principle  where  the  right  of  the  plaintUI 
is  clear  and  the  Injury  is  of  a  character  which  would  entitle  him  to  call 
upon  the  court  to  Interfere,  without  resorting  to  law  in  the  first  Instance. 
Bttrdm  T.  Biein,  758. 

•i  PAmnxB  TO  iHJOHonoH  Sun.-— The  city  of  Mobile  Is  not  a  necessary  party 
to  a  suit  to  enjoin  the  lesMc  of  its  water-worka  from  taking  water  from 
a  stream  which  said  city  Itself  would  have  had  no  right  to  take.  Hit 
acts,  in  so  doing  were  entirely  outside  of  his  lease,  and  as  to  such  acts  ha 
can  not  be  regarded  as  the  leasee  of  said  dty,  and  it  is  not  necessary  thai 
It  sliould  be  before  the  court.    Id, 

8.  Difion  or  BiLLWmoH  abb  Amihdablh  are  not  available  on  motion  for  a 
prdiminaiy  injunction.    CommanwealUh  v.  PUUbmrgh  €tc»  B»  B.  Cb«,  872, 

Bee  HuBBAHD  ahd  With,  4;  SvBBTraHiPt  1|  WATBBOOUBSBa^ 

INNa 

L  Bblatioh  or  Gubbt  n  Cbbatbd  bt  Pbb8oh*8  PomHo  bib  Hobsb  at  Inr» 
and  that  relation  is  extended  to  all  his  goods  left  at  the  inn  by  his  taUng 
a  room  and  taking  some  of  his  meals  there,  and  lodging  thereapart  of  tha 
time.    MdkaMa  v.  i?o6tiM0ii,  674. 


8S8  Indxz. 


t.  WaiuiPBnQvTijaiBooMATlinraiidlittfwUicAolillMMk 

Ite  imi  bit  priaeipsl  abUHiig-ph«s»  lie  doM  boI  own  to  be  a  g«Mt  ncnl  j 
boofton  he  is  oooailoiialljr  abtent  from  Ite  fam  and  ooiBetiiiiM  takoa  hb 
hmms  ottewhore*    /d. 

IL  Aim  GuiflT  HA8  OiYSir  trp  hd  Boom  at  Iinr  and  olooad  bio  oonnectka 
tberowitb,  fhe  landlord  Is  only  liaUa  as  a  eominon  bailea  for  the  gnesfi 
baggage  left  behind  at  the  Inn.    Id, 

4.  Lots  ofOoom  Whzu  av  Imr  n  Vwumamfm  ftwrnEmm  ov  Kaeuaima 
on  the  part  of  the  innkeeper,  or  of  bis  senranti^  bat  be  may,  if  lie  can, 
repel  this  presumption  and  sbofw  that  the  loss  did  not  bappsn  throni^ 
nes^igenoe,  bat  was  oooasioned  by  inevitable  oasoalty  or  SQpsrior  force.  J<L 

t.  JjnKMMnM    OAK    HOT   Bl    BzOirXHATlD  VBOK    LOBB   OF   GNtBTIb   GoODS 

merely  npon  presamption,  nor  withont  proof  of  circmmslsnets  ordinarily 
attending  tiie  breaking  of  a  house  seourely  fastened.  He  Is  bound  to 
prove  tiie  mode  in  wbioh  the  goods  were  taken  frombiBi»  and  tibat  it  was 
wHbottl  any  fimlt  or  n^gtigenoe  on  bis  part.    Jd, 

mgAlOTY. 

1*  Abskhob  ov  Knowir  Gausi  oe  Afpabkht  MonmoE  OoMMunDH  ov  Hon* 
lOiDB  oaa  not  be  considered  OTidenoe  to  sapport  the  pIsa  of  insanity.  Cmt^ 
ier  T.  State,  539. 

I.  Btxet  Mav  is  Pbbsttmbd  to  be  Sane  ubtil  Coeteast  Afpbabs.    /d. 

8.  OAPAOffT  or  AoousED  TO  DomiounH  bbtweee  EUoht  aeb  WEOsa  as  to 
the  partbnlar  act  with  which  he  is  charged  is  the  test  by  Wbioh,  In  cases 
of  partial  insanity,  the  jary  are  to  aacertaitt  whether  or  aot  ba  Is  so  lar 
insane  as  to  be  imsponsible.    Id. 

msTBUonoNa 

ias  Oehokal  I^w,  9, 18;  Bvu>eeub,  U;  Pibadieo  amd  Fluomi^  1^-91 

INSTBUMBNTS. 

Sea  AmOLATlOE  of  IxBIBUIIEIITB;  Ck>ETBAOTB;  NBQOaABLB 

Mobtoaoeb;  Wiua 

INTEBBST. 

L  iBTBBBn  MAT  BB  OiYEir  AS  Pabt  OF  Damaobb,  In  an  aotfam  of 

trespass,  from  the  time  of  the  conversion  or  Injury  eomplalned  of.  Rip' 
peif  T.  MiUer,  177. 

t.  Ibtbebst  should  be  Allowed  xsrov  Amouht  nr  Boed  foe  Patmbnt  of 
PuMOBASE  Monet  of  land  which  contains  a  condition  that  npon  the  fidl- 
nre  of  the  vendee  to  obtain  title  from  a  third  person  the  obligation  is  to 
be  Toid,  when  the  vendee  has  been  given  posssssion,  and  has  oontinned 
to  bold  it,  neglecting  to  obtoin  the  legal  titie.    IMIqr  v. /amss,  669. 

See  Damaobb,  8;  Ubuet. 

nnDOXiCATioK. 

L  VOLUETAET  AND  IeTBVTIONAL  DbC7NKBKNE88  D  BEISHEB  BZODSB  FOB  BOM 

BxTBEiTATiON  OP  Cbimb.    Carter  v.  State,  639. 
Ik  If  Person  Suffebino  undee  Delduum  Teemens  is  bo  Fae  Inbaxe  as  to 
be  irrespooeible,  the  law  does  not  pnniah  him  for  any  crime  he  m^ 
mlt  while  in  that  state.    Id, 


JBOPABDT. 
CiiMniAL  Law»  S-4b 

JOINT  CX)NTaACnOBa 
8m  Goioimi  Gabubml  ML 


JUDGMENTS. 

L  JusaMarai  ov  Ooubs  ov  OoMpnm  jOTrrnnntncur  oajt  imr  n  Im- 
FBAOHXD  GoxxjkTnuuLLT;  tiiey  are  revinble  cnlj  in  aa  i^ptDate  ooorl. 
Lee  T.  Kk^i^bwry^  5411. 

S.  JiriwMiNT  n  GoKOLUBiTB  iTFOH  Pi»iiiT  KwnTtWAixw  ImroLTu^  ahlioagb 
issue  be  not  taken  thenon.    Id^ 

5.  JUMOfXHT  or  FosaOLOBUXB  A0AIM8T  HUBBANH  AND  WlTl  COVGUIBITXLI 

SnnJB  that  the  property  was  not  within  the  honestsad  eiemption  at 
the  time  of  rendition,  unless  fraud  is  alleged.    M 

4.  J1TD0MB2IT  OF  F6R1CLO0UBB  MAT  BB  RSHDKRBD  ALTHOUOH  PBDFBOT  MAT 

BATE  BUEN  HoMBflTBAD  at  the  time  of  giving  the  mortgage,  or  at  some 
otiier  time;  the  husband  and  wife  may  have  crsated  tlie  norl|pige  upon 
the  liomestsad  in  the  manner  prsscribed  by  Uw.  the  property  may  have 
oeased  to  be  a  homestead  at  the  time  of  the  rendition  of  the  Judgment,  or 
it  may  haye  beoome  a  liomeatead  after  the  giTing  of  the  mortgage.    Id, 

6.  JmWMBHT  U  PbVUMBD  to  BB  SuraOBXBD  BT  COMTBBn  or  DoOUMBBTSy 

wUoh  the  statement  of  faets  shows  were  in  oTidenoe  before  the  oonrt, 
but  the  copying  of  wliioh  into  the  reoord  wssdireoted  to  be  omitted.  Id, 
t*  FiHAL  JuDOMBHT  18  AwABD  OB  Jubichal  CoBBBfiirBNCBB  whioh  the  law 
attaches  to  the  faets,  and  which  determines  the  subject-matter  of  tlia 
oontmversy  between  the  parties.    Wt^  v.  Bagby^  512. 

7.  Obdbb  that  Suit  bb  Dumissbd  is  Suoh  Final  Obdbb  as  will  aathorlae 

Its  oonsidevation  by  the  supreme  court.    Id, 

8.  Dbobbb  that  DiBMiwufi  or  Svn  bb  Bntbbbd  ab  Nonsuit  is  equiTalcnt 

to  a  decree  that  the  plaintiff  be  nonsuited  In  the  case,  and  Is  snob  a  final 
judgment  as  is  required  before  submtssicQ  of  the  cause  to  the  supreme 
court.  Id, 
0.  Jubombnt  or  Ooubt  or  Rboobd  n  Madb  Libn,  in  Wuoonsin,  v?o«  All 
OF  Dkbtob'b  Rbal  Estatb  situated  in  the  county  where  the  record,  or  a 
transcript  thereof,  is  filed,  but  the  proper  quantity  of  land  occupied  by 
the  debtor  as  a  homestead  is  exempted  from  forced  sale.  Hoyi  t.  Howe^ 
705. 

10.  HoMiiaTBAP  18  Subject  to  Libn  or  Judombnt,  in  Wuoonsin,  and  may  be 

sold  under  execution  after  it  has  ceased  to  be  such  by  the  Toluntaiy  act 
of  the  judgment  debtor.    Id, 

11.  JuDGMBNT  Libn  Bntbrbd  aqainst  Ownbb  or  Equitt  attaches  also  ta 
the  legal  title  as  soon  as  he  acquires  it,  and  takes  precedence  over  a 
Judgment  entered  some  days  after  such  acquisition,  though  its  conslder»> 
tion  was  money  used  in  paying  for  the  land.    Cfake't  Appeal^  S2S. 

1%,  Judombnt  roB  Pubchasb  Monbt  or  Land  Sold  undbb  Abtiolbs  oi 
Agbxbmbnt  gires  vendor  no  right  to  the  proceeds  of  a  sale  of  the  land 
under  a  judgment  against  his  vendee,  for  the  purchaser  at  such  sale  ac- 
quires only  the  vendee's  equitable  interest,  and  holds  subject  to  the  pur> 
chase  money  due  the  vendor,  whose  remedy  li  against  the  land.  Flsr* 
tetter's  Appeal^  366. 


880  Imnz. 


IS.  OVBOVTWOJOlWMBfflhEROM^ WBOHASJuDajODnAOAIinrOv-] 

whioh  is  flBtwed  upon  tlie  nine  daj  m  the  jadgmant  aipdiHt  boCh  d 
them,  can  Bok  dain,  aa  againal  hia  jndgmeBt  craditor,  any  part  of  tha 
prooeada  of  tlia  aala  of  tlia  land  of  hia  oo-dabtor  nnder  tiio  jndgmanl 
agalnat  both  of  tham;  for  thoii|^  tha  liana  are  of  equal  priori^  aa  to  tiaai^ 
the  equity  of  tha  oiaditor  ia  anperior  to  that  of  the  debtor.  /dL 
lii  JuMiMxiiT  or  JxnoKm  aw  PnacB  oak  vot  n  Oollaxbullt  ATTAcnrBm 
forlir^gnlarity.wharahehadioziadiotMmoftheaabjeot-matter.  BUBag^ 
T.  Aiftefl;  SSOl 

II  JupqmiiT  nr  ATTAcmiMirr  n  mn  lUaf  f>gBin>  Void  by  facrggnlagftiaa  in  tha 
affidaTit  or  bond.  Only  the  defendant  can  oomplain  of  theae  imgn* 
kritiea,  and  he  can  be  radraaaad  only  by  eerUanurL    Id. 

Vk  br  PiiBADiKa  JuTOMBiiT  OF  818RB  Stati,  It  n  vor  Nbcbbbabt  «o  Sb 
OOT  AniBMATivxLT  the  facta  npon  which  the  power  and  anthori^of  tha 
ooort  pronouncing  aaid  judgment  dependa.  TUaiaaobyTirtaeof  artiela 
i,  aaotlon  1,  of  the  United  Statea  oonatltntion,  which  raqmrm  that  "fall 
laith  and  oradit"  ahall  be  givan  toaoch  jndgmanta.   Cfmmr.ffameU, 78B. 

17t  P6UfXB  BlOOTBBT— IX  AonOK  BT  OWRIB  OF  GoODB  AOAIVn  THIBI>  Pb- 

■oir  for  injuring  them  while  in  the  poaaearion  of  a  onmmon  carrier^  a  plan 
by  the  defendant  of  a  former  leooveiy  by  the  oommon  carrier,  which 
atera  that  the  iajoriea  complained  of  **  an  the  aama  i^juriea  whidi  the 
plaintifTa  declaration  allegea  to  haye  been  done  to  the  aaid  cotton  of  tha 
aaid  plaintiff,'*  la  demnnable,  aa  it  ia  not  eqnivalent  to  an  aTennent  that 
the  recovery  waa  for  the  effect  of  each  injniy  upon  the  aame  cotton 
deaoribed  in  the  declaration.    Steamboai  Fmnmer  t.  HeOnag^  718b 

111  JOIHT  JUDOMBNT  AOAIN8T  MAKKB  AND  INDOBSKB  OF  FteMOSORT  KoHB,  Al 

Qabnishsbs  of  Patki,  n  BBBONXOim,  it  aaema,  in  any  aspect  of  tha 
caaa.    DavU  ▼,  PawkUe^  690. 

III  AonoN  UPON  JuDOHXNT,  whether  bronght  by  the  original  judgment  cred- 
itor or  hia  aaBignee,  may  be  defended  npon  the  grouid  that  the  jodgmanl 
waa  frandnlently  obtained.    Dobmm  ▼•  Pcoroe,  152. 

Ml  Bioobd  of  Judombnt  nr  Gbiminal  Gasi,  when  Biobetsd  wrboitv  Qb- 
jTBonoN,  ia  competent  evidence  against  the  party  who  oflfored  it  to  profva 
that  he  waa  goilty  of  the  crime  of  which  each  record  ahowa  him  to  have 
been  convicted.    Porter  v.  SeSkr^  341. 

8ia  AnACBXBXTcs  1, 4,  6;  Equitt,  1-3;  EzBounoNs;  Eibwjtobb  axs  Jk»* 

WDnanBATOBS,  13;  Stabb  Dboicib;  Vbbdict. 

JUDICIAL  8ALBS. 
L  8alb8  bt  Obdbb  of  Pbobatb  Coubt  abb  Judicial  in  thbib  CinBAOfBB, 

and  the  maxim  coioeoU,  emptor  appliea  thereto.    Oioen  t.  Smaller,  74S. 
t.  Balb  undbb  Decbbb  of  Pbobatb  Coubt  Vbstb  in  Pubhwahkb  onlt  Such 

TiTLB  A8  Dboxdbnt  Had.    The  widow'a  right  to  dower  ia  not  affected 

by  the  aale  unleea  ahe  ban  her  right  by  acta  which  would  render  it  vn> 

eonscionable  for  her  to  assert  said  right    Id* 
§m  SzBcunoNB,  4,  5;  Bzboutobb  and  ADMiNiBntASom^  S1-8S|  Injvho- 

TI0NS,23. 

JURISDICnON. 

|»  Whbbb  Coubt  of  Oenbbal  JmusDicnoN  has  Sphoial  Aotbobxzt  Ooh- 
FBBBBD  UPON  It  by  Statute,  it  la  guoad  hoe  an  inferior  or  limited  oonrt^ 


IHDSX.  881 


•ad  im  lOBiBHHty  pffonwwiingp  band  upaa  SMh  tlrtiilt  dfwylliiBg  »► 
qnhod  by  the  itatate  wwintiil  to  the  taunUm  of  a  fi^t  thanoadar  is 
■apoMiry  to  tfao  Jnriadiotioii  of  tho  ooiiii»  and  niiiat  appear  from  iti  pn^ 
eeedinga.    Chmm  t.  HaweU^  78S. 

&  KiooBB  MUCT  Show  JuBBDionov.-— Where  it  is  necetmy,  in  older  to  give 
a  oonrt  Jnrjadioiion  to  Inoe  garnJahmfint  prooeaa  te  ai^iify  a  judgment, 
tiiat  an  ezeontion  ahoold  haTe  been  Inoed  upon  eaad  Judgment  and  re- 
tamed  *' no  property,"  the  faet  that  aaid  eaeention  had  been  ao  retnmed 
most  affirmatiTely  appear  from  the  record.  It  most  ao  appear,  eithet 
aetoally  or  by  the  determination  of  the  ooort.  Whether  the  Jmriadio- 
tional  facta  aotnally  exirted  can  not  be  oollatecally  inqnired  into  if  the 
ooort,  even  erroneously,  shonld  determine  them  to  exist.    Id, 

IL  OouKT  Hathto  VnaKL  is  CuaroDT  a  Oomrmnan  «o  Baoooimi  asd 
BinoiKB  8xAMi9*B  Pabamouitt  Lav  job  Waoib;  and  a  state  ooort 
aoquiring  such  Jnrisdietion  oan  not  be  depriTed  ol  it  by  prooeas  issoing 
opon  proceedings  institoted  in  admiralty  for  tlie  reeoTeiy  of  seamen'a 
wages.    Keating  ▼.  iSjpjiiJfc^  214^ 

4  Oaui  TO  WmoH  WAnR-ciuiT  Aof  or  FiBBOAmT20^  IMO^  Bmimaaia 
those  of  which  admiralty  and  common-law  courts  haTe  oonoomat  Joria* 
diction,  and  not  thoee  of  ezolnsiTe  admiralty  and  maritime  o^gniaaaes^ 
Id. 

§k  SnzuBB  OF  TicNo  iH  CovTsoTBBST  BT  Ohb  Ooubt  FiMr  AOQUIBai« 
JiTRisDionoN  Withdraws  It  ntoM  Powbb  or  Ahother;  and  no  other 
ooort  can  take  it  from  the  costody  of  the  law.    Id. 

flee  AmwTBATioy  avd  Award;  Courts;  Bquitt;  Bziouiori  in  AnHoi* 

ISKRATORS,  1,  2;  PARHriBSHIP,  8-6;  VRRDICVt  A- 

JUBT  AND  JUBOBS. 
L  Just  n  Proprr  Trduhal  to  DmRxnra  Qmsnom  ov  Faot,  bot  the 

Jndge  is  not  thereby  precluded  from  ezpreesing  to  the  Jory  his  opinion 

ea  the  weight  and  effect  of  eTidence.    Kirkwood  t.  Chrdoih  418* 
%  Wkixhxr  Cortraot  is  JoniT  or  Sevxral  is  Profirlt  QunnoH  'som 

JuRT,  where  it  depends,  not  only  on  the  constmction  of  seyeral  written 

instmmenti,  bat  abo  npon  oral  evidence.    Bm^cfd  t.  South  CaroUna 

R.  B.  Oo.,  411. 
t.  Juror  mat  br  Chaludtord  for  canse  by  the  proseonting  attorney  after  he 

baa  been  formally  passed  as  satisfactory,  provided  sooh  challenge  is  la* 

terposed  before  the  joror  is  sworn  to  try  Uie  canse.    McFaddm  ▼.  Ona- 

moateeaftA,  906. 
i.  Vbrdiot  will  bb  Sbt  Asidb  ov  Ground  that  Jubt  Drakx  Ardbhv 

8PIR1T8,  of  their  own  procorement,  after  retiring  to  deliberate.  /onesT. 

Suue^KO. 
i.  Vbrdiot  is  hot  Vitiatbd  bt  Faot  that  Jury  Brqamr  Sbparatbd  while 

the  bailiff  was  condacting  them  through  a  crowd,  it  not  appearing  that 

the  Jory  had  conversed  with  other  persons.    Id, 
Bm  AiABRATioH  OF  iBBTRUiiBim,  8;  CoMMOir  C^RRTBBa,  S;  GBDforAL  Law* 

9;  8,  6-0,  18;  BriDRiroB,  20;  Ihbabitt,  8;  Hbw  Tbial,  8;  Plbadow 

AKD  fluoxun,  10;  Slaxdbr,  4;  Usurt,  1;  Ybbdioti  WmnMBi*  L 

JUSTICE  OF  PBACB. 
8ee  BzBOunovs,  8;  Judomxbtb,  14. 


LAND. 
8m  Aotsbsi  FooBBnov. 

LANDLOBD  AND  TENAim 
860  Go-TXVAiror. 

LABCENT. 
8m  GEDmrAL  L4w»  14»  15, 1ft 

LAWS. 
OoKMOir  L4w;  Oomruor  ov  IiAWI» 

USOAOY. 
8m  GorafnunoHAL  Law,  Ul 

LBGISTATUKEL 
8m  OramroncnrAL  Law;  OoBioEAiioa%  It  ft 

LDENS. 
8m  JuiNmun*  9-11, 18;  JuBsamonoK,  ti  MonoAan.  ft 

LOAKa 

8m  BAILnKISaft 

LOST  PB0PKBT7. 

L  Xv  No  BiWABD  n  Ofibbsd  ior  Fqidiho  ov  Lost  PiopKBiry,  Mm 
tlMMof  !•  entitled  to  no  rewnid  or  remnnecKtion.    Wdtl$  t.  Wtud^  SSOl 

L  FiVDBR  or  Lon  PnopiarT  oan  kot  bx  Allowvo  to  Judos  ab  so 
Much  mi  Duiahd  for  tnmblo  and  ezpeoM  In  finding  the  proportjtfaiD 
be,  edd  then  how  rnnoh  he  oa^t  to  vm  Um  property  to  wtMtfy  wwA  d^ 
nutfid.    /if. 

ft  FnrpxR  or  Sibay  Hobbu  Wbiob  Db  wriu  buho  Uskd  bt  Him  Ib  tiio 
ordmaiyeoviMof  hie  bosineM  is  UMe  to  the  owner  theraof  fcr 


8m  Gumihal  Law,  1^  1ft 

MALiaOUS  PBOSBCUTION. 
SMBranHoi,  81. 

MABEIAGB  AND  DIVOEGHL 

Mabbiaob  OcamLMffi  mat  n  Ddmolykd  bt  WnooBaor  Gnoozr  Ooosr,  In 
a  otM  where  the  nunhige  and  the  oaniM  of  diToiee  oeeiuied  in  another 
•tate,  and  where  the  defendant  hM  never  Hen  a  rMidenI  ef  or 
wtth^ptooMi  in  Wieoonain.    HtAbeaY.  HMM^lOli. 

MARRTRD  WOMEN. 
L  gii»AmAiP«  PBoraaaT  or  Hubbahd  ob  Wira  hbbd  hot  bi 

SrBOif  or  kind  to  mafatain  iti  oharaotcr  m  aaeh«  in  Tuna.  It  wlH  r^ 
aiaineepemte  property,  althoogh  if  haa  iimUrflnnn  nmtaliniM  ami  nlmnpiL 
M  long  M  it  can  be  oleariy  and  indiapatably  traoed  and  identifled. 
T.  HcmMom,  47ft 


IXiM  m  SsPAKAn  Pbopkbtt  of  Wm  irhtm  ghrm  by  tba 
maker  to  »  tiurd  penon,  who  had  knowledge  of  the  wife's  righta,  in  ex- 
change for  one  executed  to  the  hnsband  and  wife,  in  payment  of  the  pur- 
chaae  price  of  land  acquired  by  the  wife  by  inheritance.  Id. 
S.  Where,  bt  Law  of  State  where  Parties  Mabrt,  Slavs  of  Wife  Be- 
comes Pbopbrtt  of  HnasAKD  on  marriage,  and  they  afterwarde  remoTe 
to  another  state  in  which  there  is  no  legal  impediment  to  the  wife's  hold- 
ing separate  property,  and  the  husband  there  oonveys  to  the  wife  aa- 
other  slave  in  exchange  for  the  one  owned  by  her  prior  to  her  marriage, 
and  thereafter  the  husband  and  wife  remove  to  Texas,  wliere  he  dise, 
the  wife  will  be  entitled  to  the  slave  so  received  by  her  from  her  hus- 
band, as  against  his  l^gal  representative.  The  conveyance  of  the  slave 
to  her  can  only  be  impeached  by  an  antecedent  creditor  of  the  hnabaod. 
Avay  V.  Avery,  513. 

See  Dowxr;  Husband  and  Wife;  JuDOMXim,  3«  4. 

MASTER  AND  SERVANT. 

Smtlotbs  is  not  Liable  for  First  Value  of  Uskuhb  Woboaim  Ot^ 
DEBKD  AND  SPOILED  BT  HiM,  but  Only  their  first  valne  less  their  pieesnl 
valoe,  when  they  are  retained  by  the  employer.  HiUyatd  v.  Orabtrt$t  436^ 

MAXIMS. 
See  Equity,  10, 11. 

MISTAKE. 
See  Possession,  2. 

MORTGAGES. 

L  InmuinENT  is  Mobtqaoe,  and  not  Absolute  ob  CoNDmoirAL  Bill  of 
Sale  or  Contraot  to  Sell,  where,  although  it  recites  the  sale  under 
execution  of  certain  slaves  belonging  to  the  maker  of  the  instrument,  and 
their  purchase  by  the  second  party  thereto,  and  ratifies  the  sheriff's  bill 
of  sale  received  thereat,  it  stipulates  for  the  payment  by  the  maker  of  a 
certain  sum  of  money  in  installments,  and  that  the  slaves  should  remain 
in  his  possession  during  the  time  specified,  but  should  he  fail  punctually 
to  pay  the  sums  of  money,  the  second  party  should  sell  so  much  of  the  prop- 
erty, at  public  or  private  sale,  as  would  meet  the  payments,  and  should 
any  of  the  slaves  die  in  the  mean  time,  the  loes  should  fall  upon  the  maker. 
Ibwler  V.  SUmeum^  490. 

2.  Foreclosure  of  Mortgage  mat  be  Had  under  Prayer  for  General 
RxuEF,  where  the  petition  is  framed  with  the  double  aspect  of  asserting 
title  to  property  absolutely,  under  a  contraot  as  a  conditional  sale,  dis- 
charged of  its  conditions,  and  in  the  alternative  as  a  mortgage,  and  a 
recovery  can  not  be  had  upon  the  first  aspect.    Id, 

S.  Mortgage  is,  in  Texas,  Mere  Seouritt  for  Payment  of  Debt,  and  the 
mortgagor  is  regarded  as  the  real  owner  of  the  land  and  entitled  to  its 
possession.    Duty  v.  OroAom,  534. 

4»  Mortgagee  can  not,  in  Texas,  Maintain  Action  of  Ejectment  of 
pass  to  tiy  title,  against  the  mortgagors  on  the  mortgage.    /dL 
Am.  Dae  Vol.  LXII— «S 


8M  Index. 

S.  Wbsu  Dsr  Bmoommd  bt  Mortqaok  is  Babbsd  bj  the  ■Mate  of  Bnl- 
tationsy  the  creditor  has  no  remedy  left  upon  the  mortgage.    M 

i.  MoBTOAOB  Oimr  tor  Residue  or  Pdbcilasb  Moxkt,  bearing  eren  date 
with  the  oonTeyanoe  to  the  mortgagor,  has  preoedenoe  over  the  lieo  of 
Judgments  recovered  against  him  prior  to  such  conveyance.  Therefore,  a 
■ale  under  saoh  judgment  doee  not  divest  the  mortgage  lien.  Cak^9 
AppealtSSS, 

T.  Qbahtbb  Who  AasuxBi  to  Pat  off  Mobtqagb  as  Pabt  of  Pubchasb 
Pbicb  !■  liable,  even  if  he  does  not  execute  any  independent  bond  or 
covenant  -to  indemnify  his  grantor  against  any  personal  liabflity  for  tha 
awrtgaga  debt     TVoOer  ▼.  HmgheB^  137. 

See  BnBBBOB,  3;  jTrDOMBim,  8»  4. 

MUNICIPAL  CORPORATIONS 

See  COBTORATIOBB,  & 

NEGUGENCB. 

L  Svisr  Pbbboh  icosr  ao  Ubb  his  Own  Pbopbbtt  ab  hot  to  Ibjubb  Tha9 
09  HD  NBfOHBOB.    Kenohocber  v.  CZeeefoiui  e<e.  i?.  R,  Co,^  24d. 

t.  RBFimATiOK  mnrr  bb  Made  bt  Pebsoh  Dodto  Lawful  Thing,  if  damage 
thereby  befall  another,  and  which  the  former  could  have  avoided  by  re^ 
sonable  and  proper  care.    Id, 

8.  LiABiLirr  to  Make  Rbpabation  fob  Injubt  Caused  bt  NBOuoBBtai 
Sebmb  to  Rest  upon  Obioinal  Mobal  Dutt  enjoined  upon  eveiy  perM» 
so  to  conduct  himself,  or  ezerciae  his  own  rights,  as  not  to  injure  another 
and  not  upon  the  consideration  of  any  reciprocal  obligation.    IdL 

i«  Ab  Obnbbal  Rule,  Action  is  Maintainablb  in  Aix  Cases  whebb  Daii- 
AOB  AocBUBs  TO  Anotheb  by  the  negligence  or  improper  conduct  of  a  pei^ 
son  in  the  exercise  of  his  peculiar  trade  or  businees.    Id. 

8.  Mbbb  Fact  that  One  Pebson  is  in  Wbono  does  not  in  Itself  DiaQHABAB 
Anotheb  from  the  observance  of  due  and  proper  care  toward  him,  or  the 
duty  of  90  exercising  his  own  rights  as  not  to  injure  him  nnneces- 
sarUy.    Id. 

••  Injubbd  Pabtt,  in  Case  of  Nbouobncb,  is  without  Rbmbdt  whebb 
Both  abb  Mutuallt  in  Fault.  This  is  the  general  rule  established 
by  both  English  and  American  decisions,  but  subject  to  the  following 
qualifications:  1.  The  injured  party,  although  in  the  fault  to  some  ex- 
tent, at  the  same  time  may,  notwithstanding  this,  be  entitled  to  repara^. 
tion  in  damages  for  an  injury  which  could  not  have  been  avoided  by 
ordinary  care  on  his  part;  2.  When  the  negligence  of  the  defendant,  ia 
a  suit  upon  such  ground  of  action,  is  the  proximate  cause  of  tha  injury, 
but  that  of  the  plaintiff  only  remote,  consisting  of  some  act  or  omissloB 
not  occurring  at  the  time  of  the  injury,  the  action  for  reparation  ia  main- 
tainable; 8.  Where  a  party  has  in  his  custody  or  control  dangerona  im- 
plemente  or  means  of  injury,  and  negligently  uses  them  or  places  then 
in  a  situation  unsafe  to  others,  and  another  person,  although  at  the  time 
even  in  the  commiMion  of  a  trespass,  or  otherwise  somewhat  in  the  wrong, 
•n^toins  an  injury,  ho  may  be  entitled  to  redress;  4.  And  where  the 
plaintiff,  in  the  ordinaiy  exercise  of  his  own  rights,  allowa  his  property 
to  be  in  an  exposed  and  hasardous  position,  and  it  beoomea  ii^orsd  by 


Inbxx.  886 

fha  wmnt  of  ordinaiy  care  and  caution  on  the  pari  of  tha  defondant,  he 
b  entitled  to  reparation  for  the  reason  that,  although  hj  allowing  hit 
property  to  be  exposed  to  danger  he  took  npon  himself  tiie  risk  of  loss 
or  injnry  by  mere  accident,  he  did  not  thereby  discharge  the  defendant 
from  the  duty  of  observing  ordinary  care  and  pmdenoe,  or,  in  other 
words,  Tolnntarily  inonr  the  risk  of  injury  by  the  negligenoaof  another* 
Id. 
Baa  AjnuAin^  2-4;  Cqmxon  Gabbisbs;  Etibxiicje,  19;  Iwit  4,  6;  Raix^ 

BOABS,  10. 

KEQOTIABLE  IKSTRXJMENT& 
1.  To  Fix  Liabiutt  of  Indorskb,  Psorxar  is  VvvucEBaARY,  and  whether  it 

is  made  on  the  day  of  the  demand,  the  succeeding  day,  or  not  at  all,  b 

immaterial.    Stepheruon  v.  Dickaotif  369. 
i.  Liability  *or  Iin)0BSE&  or  Pbomissory  Ko«  is  Fixxb  when  demand  is 

made  npon  the  maker  at  the  place  fixed  for  payment,  upon  the  last  day 

of  grace,  and  due  notice  of  non-payment  is  given  to  the  indoraer.    Id* 

I.  NonoB  TO  Indobseb  or  Pbomissory  Note  Dated  the  day  after  the  da- 

mand,  and  stating  that  the  note  had  been  "this  day  protested  for  non- 
payment, demand  for  payment  having  been  first  duly  made  and  payment 
refused,"  is  a  sufi&dent  notice  of  demand  and  refusal  of  payment,  and  is 
not  calculated  to  mislead  the  indorser  as  to  the  time  when  the  demand 
was  made.    Id, 

4  Konoi  or  Dbmabd  and  Non-payment  to  Indobskb  must  bb  Sent,  as  a 
general  rule,  as  early  as  the  first  mail  sucoeeding  the  day  of  the  demand. 
Id. 

6b  NonoB  or  Demand  and  Non-payment  to  Indobseb  is  sufiKcient  if  sent  by 
the  next  mail  after  the  first  mail  succeeding  the  day  of  the  demand,  if  the 
first  mail  closes  at  so  early  an  hour  that  it  is  impracticable  to  forward  a 
letter  by  it.  When  the  mail  closes  at  two  or  three  o'clock  in  the  mom« 
Ing,  this  is  too  early  to  render  mailing  the  notice  practicable.    Id. 

0.  Indobseb  is  Entitled  to  One  Day  after  He  Receites  NonoB  withia 
which  to  transmit  the  same  to  his  prior  indorser.    Id. 

7.  Possession  or  Promissory  Notes,  with  Consent  or  Owner,  and  with 
authority  to  receive  money  on  account  thereof,  is  prima  ftieie  evidence 
that  the  depositary  is  authorized  to  act  generally  in  relation  to  them. 
Piekeru  v.  Yarbar(mgh*8  AdnCr,  728. 

S.  Ir  Cbeditob  Receives  Pbomissory  Notes  upon  Agreement  specially  en- 
tered into,  by  which  he  was  not  to  sue  upon  them,  but  was  to  collect  them 
in  another  way,  he  must,* with  regard  to  all  parties  without  notice  of  the 
extent  of  his  power,  be  regarded  as  the  general  holder,  and  notice  to  sue 
upon  the  notes  may  be  given  to  him.    Id. 

IL  Drawees  in  Bill  or  Exohanoe  are  Bound  by  Notice  that  agent  acting 
under  power  of  attorney  has  no  authority  to  draw  the  bill  when  the 
principal  has  no  funds  in  their  hands  at  the  time,  and  has  no  other  reason 
to  suppose  it  would  be  accepted.    Stainback  v.  Head,  648. 

10.  Power  to  Draw  Bill  does  not  Imply  Authority  to  Contract  to 
Indemnify  the  acceptor  against  his  acceptance.    Id. 

II.  Acceptors  or  Bill  Drawn  for  his  Own  Benefit  by  Agent,  acting 
under  power  of  attorney  to  draw  bills,  can  not  recover  of  principal  if  they 
have  the  means  of  knowing  that  it  is  so  drawn.    Ji. 


616  Ihdxz. 


12.  WOEBB  GkMDOO&HAS  RkEPHSD  Kom  AS  O0M.ATBEAL  Swuufi  m 

HJDi  Debx,  niHxmditloiially,  withoat  any  initnictians  goToniog  the 
of  oolleot&on,  he  is  bonnd  to  take  the  Deceaaary  steps  to 
of  the  parties,  and  if  the  eeoority  is  lost  or  rendered  nnavaihiUa  hy  his 
neglect,  he  must  bear  the  loss.    Pieheng  ▼.  Tarbofxmgh*9  Adm'r,  728. 

18b  Indobskb  of  Bill  or  Ezohanoi  Takxn  as  Collatkbal  Sbcitxitt  for  a 
debt  dae  Is  prinui/tieie  a  holder  for  a  Tsluable  oonsidcratioB,  and 
entitled  to  recover  against  an  aooommodation  acceptor  who  was  not 
known  to  him  to  be  such  when  he  took  the  bilL  Atkmson  r,  Brooka^  592. 

14.  Notb  has  No  Lbqal  iNosFnoN  or  Hands  of  Onb  to  Whom  Deutbbbd 
WITHOUT  CoNSiDBBATiON  by  the  maker,  lor  the  purpose  of  raising  money 
for  the  benefit  of  either,  and  a  negotiation  of  it  by  sooh  holder  upon  a 
nsttrions  oonsidMation  renders  it  inoperative  and  void  in  the  hands  of  a 
third  person.    CeUUn  v.  (7t(i»ter,  113. 

IS.  CAMfTBB  ICAT  MaIKTAIX  AoTIOK  »  HI8  OWK  NaMB  AOAIBBT  AoCBPTOB 

OF  Bill  of  Exchahqb,  where  the  bill  is  drawn  payable  to  "M.  J<dmson, 
cashier,"  the  promise  being  made  to  the  cashier  as  an  individual,  and  tiie 
addition  being  simply  descriptive  of  the  person.    Jokmaon  v.  ChiJ&n^  622. 

16.  Cashibr  mat  Rbootbb  upov  Mokbt  Counts  Amount  of  Bill  of  Ex- 
OBANQB  drawn  payable  to  him  and  aooepted  for  value,  although  he  holds 
the  bill  in  trust  for  the  bank.    Id. 

See  AoBNOT,  3;  Alebbation  of  Inbiilumbntb;  Attaohmbhts,  2,  8;  Bank- 
BUFTOT  AND  Inbolybnot;  Ck>NFLicrr  of  Laws;  Judgmbnts,  18}  Mabbibp 
WoMBN,  2;  Pabsvbbskip,  9, 10;  Plbading  and  Peaotiob,  1, 2;  Ubobt,  2. 

NEW  TRIAL. 

L  Nbw  Tbial  fob  Exobssivb  Damages  will  hot  bb  Obantbd  in  Aonflm 
AGAINST  Cabbibbs  for  Injuries  to  passengers,  unless  the  damages  are  so 
excessive  as  to  warrant  the  belief  that  the  jury  must  have  been  influenced 
by  partiality  or  prejudice,  or  have  been  misled  by  some  mistaken  view 
of  the  merits  of  the  case;  for  in  such  cases  there  is  no  rule  of  law  fixing 
the  measure  of  damages,  and  it  can  not  be  reached  by  any  process  of 
computation.    Faruh  v.  R^le^  fi66. 

1  JOOULAB  Ck)NVKBSATI0N    BETWEEN  JUBOB    IN   CbIMINAL   OaBB  AND  BT- 

8TANDEB,  in  the  presence  of  the  officer  in  charge  of  jury,  upon  a  matter 
tor  not  connected  with  the  case  on  trial,  is  no  ground  for  a  new  triaL 
PrUcheU  v.  State,  408. 

NOTICE. 

1«  Whateveb  Puts  Pabtt  on  Inquibt  Amounts  to  Notigb,  provided 
knowledge  of  the  requisite  fact  would  be  obtained  by  the  exercise  of 
ordinary  diligenoe.     WUwn  v.  McCvlUnigh,  347. 

L  Notice  of  Existence  of  Deed  is  not  Inferbed  fbom  Pboof  of  Genbbal 
Repobt  in  the  neighborhood  that  the  land  had  been  sold,  and  the  com- 
munication of  such  report  to  defendant;  nor  from  an  intimation  by  one 
not  interested  in  the  land  that  another  title  is  outstanding;  nor,  gener- 
ally, from  information  given  by  a  person  not  interested  in  the  property. 
Id. 

%t  Bubden  of  Proving  Actual  Notice  or  Deed  ob  Instbumbnt  AFFBoma 
Title  to  land,  so  as  to  affect  a  mortgagee,  is  upon  the  person  aesevtiag 
that  such  notice  existed.    Id, 


Inbxx.  887 

IL  PDBCHAn  WITH  NoTiot  OF  SicsBT  TRUsmnut  be  made  ont  by  clear  proof 
of  actual  notice,  or  of  fboto  which  put  the  party  npoo  flooh  inqairy  as  if 
pursued  with  ordinary  dlligeooe  would  have  led  him  to  the  knowledge 
of  such  trust.    Id, 

0w    PiTBLIGATION  IN  NbWSPAPKR  IS   NOT  COVPBTBNT  BVIDKNCH  THAT  PaBTT 

HAD  NoncB  of  the  facta  stated  in  such  pahlicatiun,  though  he  ia  shown  to 
hare  been  a  subscriber,  and  in  the  habit  of  reading  the  paper.  Lmeoln 
V.  Wright,  316. 
Bee  AoBNOT,  2;  Banks  and  Banking;  Bona  Fidk  PrnbOHASKBfl;  Common 
Car&iibs,  19,  24;  Corpokations,  3,  4;  Fraudulint  G>ntbtanoB8,  2| 
Ootb;  GuABDiAN  AND  Wabd,  5;  Nkootiabli  iNSnnrMSNTB. 

NUISANCES. 
See  Animals,  2. 

OFFICES  AND  OFFICERa 

1.  Whkbi  Nkw  County  is  Erected  within  Limits  of  Old  One,  theanthor- 
ity  and  right  of  the  officers  of  the  old  county  to  exercise  the  functions 
of  office  within  the  territory  erected  into  the  new  county  continue  until 
the  new  county  has  been  actually  organized.     Clark  ▼.  Oo8$,  531. 

%,  Acts  op  Oppicers  de  Facto  are  as  Effectual,  as  Far  as  Rights  of 
third  persons  or  the  public  are  concerned,  as  if  they  were  officers  dejure. 
This  is  as  true  of  commissioners  who  have  but  a  single  duty  to  perform 
as  of  officers  of  a  mora  permanent  character.  The  acts  of  such  officers 
must  stand  unimpeached  until  they  have  been  proceeded  against  directly, 
and  oonyicted  of  usurpation  of  power.    Burton  v.  PaUon,  194. 

8oe  Corporations,  4;  Proosss;  Quo  Warranto;  Sheriffs;  Taxation,  2. 

ORDINARY  CARE. 
See  Common  CARRiBRa»  17. 

PARENT  AND  CHILD. 

1.  Father  n  Bound  to  Maintain  Minor  Children  from  his  Own  Estati^ 
if  able,  though  they  have  separate  estate.     Presley  ▼.  DtMvU,  890. 

L  Father  can  not  be  Allowed  for  Past  Maintekanob  ont  of  his  ohUd'fe 
property*    Id, 

PARLIAMENT. 
See  Constitutional  Law,  1. 

PARTIES. 
See  iNJUNonoNS,  8. 

PARTITION. 

tmusn  or  Comhdv  Who  Makes  Imfrotemxnts  on  Land,  beliaFing  hlm- 
idf  the  sole  owner,  should,  it  seems,  on  partition,  be  allotted  that  por- 
tion of  the  land  on  which  the  improvements  are,  or  be  compensated 
therefor  if  such  allotment  can  not  be  made  with  due  regard  to  the  rights 
of  his  oo-tenants.    SobtMon  v.  McDonald^  4S0. 


838  Index. 

PABTNEBSHIP. 

1.  Propbhtobs  of  Sbtvbal  Stags  Likes  Fobmxko  Oovmrvoim  Ion  m 
Trayil,  who  employ  a  common  agent  at  each  end  of  said  roote  to 
reoeWe  money  and  give  a  through-ticket  over  the  entire  line,  nnder  an 
agreement  with  each  other  that  each  is  to  receive  bis  fisre  for  his  part  of 
the  route  out  of  the  money  paid  to  such  common  agent  for  such  throngh- 
ticket,  do  not  thereby  become  partners  either  inter  «e  or  as  to  Hiird  per^ 
sons,  so  as  to  render  each  of  them  liable  to  a  person  who  loses  a  trank 
upon  any  portion  of  said  route.    JSUsworth  v.  Tartt^  749. 

L  To  CONSTITUTB  PARTNERSHIP  INTER  Ss  BETWEEN  TwO  OB  MOBB  PSBSONflb 

there  must  be  a  joint  understanding  or  agreement,  the  effect  of  which  is 
to  make  each  a  participator  in  the  profits  and  losses.  Bnt  persons  nol 
partners  as  between  themselves  may  become  liable  as  snch  as  to  third 
persons  by  holding  themselves  out  as  snch.  Id, 
8b  Court  or  Equity  has  Jurisdichon  to  Decbxs  Dusolutioh  of  Part- 
nership during  the  term  for  which  it  was  originally  entered  into,  and 
to  declare  it  void  ab  initio^  where  there  was  fraud,  imposition,  misrepre- 
sentation, or  oppression  in  the  original  agreement.    Ibgg  t.  /oAnston,  771* 

4.  Court  of  Equity  may  Decree  Dissolution  of  Partnership  for  caosss 

arising  subsequent  to  its  formation,  such  as  misconduct,  fraud,  or  viola- 
tion of  duty  of  one  partner,  his  incapacity  or  inability  to  oontribnte  hb 
skill,  labor,  or  diligence,  or  to  perform  his  obligations  or  duties,  or  for 
the  existence  of  a  state  of  facts  rendering  it  impracticable  to  aooomplish 
the  purposes  of  the  partnership.  Id, 
ft.  Court  of  Equity  will  Dissolve  Partnership  at  the  complaint  of  qbs 
who  was  induced  to  enter  into  a  partnership  with  another  through  his 
misrepresentations  as  to  his  skill  as  a  machinist  and  engineer;  sad  be- 
cause of  the  misconduct  and  violation  of  duty  of  the  latter.    Id, 

5.  Court  of  Equity,  upon  Dissolyino  Partnership,  may  Fix  Date  of  the 

dissolution  at  the  time  of  the  abandonment  by  the  aggrieved  party,  and 
notice  thereof  given  by  hioL    Id, 

7.  .Dissolution  of  Partnership  Works  Absolute  Revocation  of  All  Im- 
PUED  Authority  in  either  of  the  partners  to  bind  the  other  to  new  en* 
gagements,  contracts,  or  promises,  made  to  or  with  persons  having  notlos 
of  the  dissolution,  although  springing  out  of  or  founded  upon  the  in- 
debtedness of  the  firm.    Palmar  v.  Dodge^  271. 

8b  No  Power  to  Bind  Copartner  to  New  Enqaosmxntb,-  Contracts,  or 
Promises  can  be  Inferred  from  an  authority  given  by  one  partner  to 
the  other  to  settle,  liquidate,  and  dose  up  the  affairs  of  the  partnership. 
Id. 

9.  Liquidating  Partner  has  No  Power  to  Extend  Time  for  Patmbnt  pi 

Obligations  of  Firm,  to  increase  their  amounts,  or  to  obligate  the  firm 
to  persons  to  whom  it  was  not  bound  at  the  dissolution  of  the  part- 
nership.   Id. 

10.  Surety  on  Promissory  Note  Qiyen  by  One  of  Memrkbs  of  Dubolved 
Partnership,  in  the  name  of  the  firm,  and  to  renew  a  debt  of  snoh  pM^ 
nership,  must  look  to  such  member  alone  for  indemnity,  as  he  oaa  not 
hold  the  other  for  it.    Id. 

PASSENGER  CARRIERS. 
See  Common  Carriers. 


fiffDXZ.  889 

PAYMENT. 
8m  CamcoH  Oabbixb8»  27. 

PLEADING  AND  PBACTIGB. 

L  Ih  Aonoir  vvoh  Pbohissobt  Non,  Ailmatzoit  nr  OoMPLAim  that  th* 
def«ndant  '*made  his  promiMory  note  in  writing,  and  thereby  promieed 
to  pay  to  the  plaintiff,"  eta,  is  a  sufficient  allegation  of  the  note's  de- 
liTery  to  plaintiff  and  of  his  ownership  of  it.    ifow  v.  OuUy^  801. 

i.  Obvkral  Dikial  nr  AcnoN  on  Nots  Biquibib  PBODUonoH  of  Note, 
although  it  does  not  put  the  plaintiff  npon  proof  of  its  ezecntion;  bnt  the 
plea  of  the  general  denial  in  such  an  acti<m  predndes  the  plaintiff  from 
taking  jndgment  by  default,  or  for  want  of  an  answer.  AliU  ▼•  Chanakr^ 
518. 

8.  Plea  that  iw  Plaiktiiv  has  bbkn  Daxkiiixd  Hk  has  buv  so  Qvlt 
THBOUOH  Hn  Owv  Wbono,  eta,  is  applicable  only  in  an  aotloa  on  a 
bond  of  indemnity.    Harmofny  v.  Bmghamt  142. 

4.  ArriB  Duiubhsb  to  Dsolabation  has  buk  Sustained,  if  Plaintiff 
Amends  he  thereby  waives  the  right  to  nview  the  oorreotness  of  said 
ruling  on  appeal.    StalUngs  v.  Newnumf  723. 

i.  Pabtt  Qoino  to  Trial  upon  Other  Ibsubb,  without  Intokino  Action 
OF  Court  upon  Dekurbeeb  to  other  defenses,  is  held  to  have  waived 
such  defenses,  and  the  failnro  of  the  court  to  decide  upon  the  demurren 
furnishes  no  ground  for  roversaL    PrUeheU  ▼•  8iaU^  468. 

0.  Upon  Revsrsal  of  Judohsnt  Oterruung  Demurrer  Caubr  mat  be 
Remanded  with  leave  to  amend  the  declaration,  and  with  a  direction  to 
the  court  to  render  judgment  in  favor  of  the  defendant  upon  the  failure 
of  the  plaintiff  to  make  a  motion  to  that  effect.  FUathmg1C»  Eafr  v.  F^t^ 
Hugh,  653. 

7.  Performanob  of  Condition  Precedent  to  Right  of  Action  must  be 
Strictly  Proved,  to  entitle  plaintiff  to  recover.    OaUey  v.  Morton^  49. 

0.  Laws  of  Foreign  Country  must  be  Pleaded  and  Proved  as  Faoi& 
Peek  V.  Hubbard,  605. 

ii  Pleading  Foreign  Law.— Party  Claiming  Right  under  Law  of  Fom» 
sign  Jurisdiction,  and  not  under  the  common  law,  must  prove  the  law 
upon  which  his  claim  or  right  depends,  as  a  fact;  and  applying  this 
principle  to  the  rules  of  pleading,  he  would  be  required  to  set  out  the  law 
or  statute  upon  which  he  based  his  daim,  in  order  that  the  court  might 
see  if  it  supported  the  right  asserted.    Chum  v.  Hcwdl^  785. 

lOl  Consideration  of  Contract  not  under  Seal  must  be  Aybrbed  and 
Proved  if  the  contract,  as  set  forth  or  described,  does  not  of  itself  afford 
evidence  of  a  consideration,  as  in  the  case  of  negotiable  paper,  and  con« 
tracts  expressing  or  admitting  a  consideration  in  writing,  t/ones  v.  Hot" 
Uday.iSn. 

11.  Consideration  fob  Aooeptanoe  of  Order  by  Principal  on  Agent 
MUST  BE  Averred  and  Proved,  in  an  action  on  the  acceptance,  when 
the  order  accepted  was  to  deliver  to  a  third  person  a  certain  amount  of 
cotton  by  a  certain  day;  although  it  seems  that  the  request  of  the  princi- 
pal was  a  sufficient  consideration  for  the  undertaking  of  the  agent.    Id, 

18.  Error  is  never  Presumed.    MeOadoeif  v.  Ort^j  836. 

II.  If  Facts  Stated  by  Party  in  his  Plbadikgs  can  not  Avail  Him, 
it  is  to  be  presumed  that  none  sufficient  exist,  and  the  legal  result  masl 
follow.    Lottisvitts  efc.  R.  R,  Co,  v.  DaividMm  Co.,  424. 


Ilk  Sujui'ioifi  Wmmi  Go  to  Hsbri  An  FouH&ASioir  of  Acnoir  Sil 
n  BimffAiinED  aftar  an  uoMw&t  to  the  nMcite,  it  Mema.  /bmler  t. 
^loiieiMi,  490. 

lA,   ApPXLLATB  CoUBT  will  not  TaKB  CkWHIXAJIGB  or  BZGXFTION  COITTAIB- 

uro  No  GsBcmaaTB  of  Facts^  but  only  a  oertifioata  of  tba  evidonM, 
ezioapt  when  it  appean  that  after  rejeotiiig  all  the  parol  eridanoe  ia  &▼« 
of  tha  party  ezoepting,  and  giving  foil  force  and  credit  to  that  of  the 
adveiae  party,  the  deciaion  of  tha  oonrt  bdow  still  appeaia  to  ba  wrong. 

16»  DstJUfDAKT  CAM  HOT  Atail  HfimBi.T  OF  DnKHU  HOT  Plsabed  in  hifl 
answer,  in  an  equity  anit,  though  the  defense  appean  in  proof.  Own- 
mmgs  v.  Cofoium,  402. 

17.  Plka  WmcH  DOBS  not  Constitutn  Dkfensb  to  ExTurr  to  WmcH  It 
Pbofessbs  to  Go  is  defeotiTe  in  sabstaace.  Gonseqaently,  a  plea  wluch 
nndertakes  to  answer  as  to  five  slaves,  bat  in  fact  answers  as  to  one  only, 
is  bad  in  toio  on  demurrer.     WiUiek  v.  TVotos  778. 

18.  Paoyisions  of  Nbw  York  Cods  of  Pboobdubk  Ck)NcntNiNO  Vabiaxci 

BBTWBBN  PLBADINGS  AND  PbOOVS  ABB  AfPUOABLB  TO  AlL  AOKONB;  and 

a  varianoe  between  allegations  of  usury  in  an  answer  and  tha  proof  should 
be  deemed  immaterial  when  the  proof  doea  not  dt£Eer  from  the  allegationa 
in  their  entire  scope  and  meaning,  and  the  plaintiff  does  not  prove  that 
ha  was  actually  misled  thereby  to  his  prejudice.     CaiHn  v.  (hmter,  113. 

18.  JoDOB,  IN  Chasoiko  Jubt,  mat  Gall  thbib  Attbntion  to  Evidbnob  of 
Pabtioolab  Fact  ob  Facts,  if  controverted,  for  the  purpose  of  directing 
them  to  the  rules  of  law  that  must  govern  them  in  arriving  at  tha  truth, 
and  if  uncontroverted,  for  the  application  of  the  law  to  the  fact.  All 
that  is  required  of  the  judge  is  that  he  should  neither  dedde  nor  endeavor 
to  influence  the  jury  in  their  decision  on  the  facta.    Jone9  v.  State^  6S0. 

20i  Gaubb  will  not  bb  Rbtbbsbd  bboaubb  Jvdob  Exfbbssbd  Opinion  ss 
to  which  of  the  witnesses  was  most  entitled  to  credit,  if  he  alao  told  the 
jury  that  they  were  the  sole  judges  of  the  credibility  of  the  witneases. 
Porter  v.  Seller,  341. 

81.  Abstbaot  Ghabob,  whbn  It  Assbbts  Gobbbot  Lboal  PBorosniON,  is 
no  ground  for  reversal  unless  it  tended  to  mislead  the  jury.  Taylor  v. 
JtfofTwon,  747* 

S2.  JuDOB  nbbd  not  Instbuct  Jobt  on  Histobt  ob  Objbot  of  Law.  It 
is  sufficient  that  he  states  the  law  itself.    Lmooln  v.  Wrtght^  318. 

83.  Pabtt  can  not  Gomplaxn  of  Gonfuct  in  Instbuotions  caused  by  hia 
obtaining  an  instruction  to  which  he  was  not  entitled.  jPbrM  v.  MeigUt 
868. 

Sii  Pabtt  can  not  CVmiplain  of  Instboction  Gontainino  Gobbbot  Statb- 
HBNT  OF  Law,  though  there  was  no  evidence  on  that  head.    Id, 

86.  Pabtt  is  Entitled  to  Instruction  Gontainino  Htfothbtigal  Siatb- 
MBNT  OF  Law  whenever  there  ia  any  competent  and  rdevant  teatnnony, 
however  alight,  upon  the  point.    Id, 

88.  Fob  Judob  to  Ghabob  Jcby  that  Book  of  Fabbibbt,  Rbfbbbbd  to  bt 
OoVNBBL,  in  addreaaing  them,  is  entitled  to  as  much  weight  as  the  testl- 
mony  of  an  expert  witnesa  in  the  acience,  who  had  been  examined  in  the 
oauae,  is  a  clear  violation  of  the  act  of  179S  which  prohibits  the  judgt 
from  expressing  any  opinion  as  to  the  cradibility  or  weight  of  the  testi- 
moay.    Melvin  v.  Hasly,  171. 


Indkx.  Ml 

flr*  ICnOMPTllMi   TO  RsmJLL  TO   QltM   IHRAUlfllOBB  SOT  BlATUill    VaCTI 

PWTB»  wfll  oot  be  notieed  by  appellate  oouri.    Mrtti^A'a  JDe'r  ▼.  Me* 

Wk  WmwME  OootamL  w  Addbbbino  Jubt  Makib  STAnnnam  fsoh  Book 
OF  Scnorai;  which  he  holds  in  his  hand,  tho  oppoeite  oouimI  doee  not 
waive  the  error  by  refraining  from  inteirapting  him  at  the  time,  for  it  ie 
the  duty  of  the  Jodge  to  correct  the  mistake  when  he  oomee  to  charge 
the  jury.    Melvin  ▼.  EeuU^^  171. 

n.  Imfbopib  BvioTiosr  or  Etiokncb  Whiok  oould  hot  havb  Intlo- 
KNOSD  FiNDUfQ  of  the  jury  is  not  a  ground  for  revening  the  judgment 
in  the  supreme  court.    Awery  ▼•  Averf,  613. 

Bee  ATTAOHMSirn}  Bona  Fidi  PuBCWAaKiw,  2;  Coubtb;  Cbimihal  Law| 
Dctikub;  Equrt;  Estoppel;  Eyidkncb;  Eziootobs  akd  Admin  is- 
tbatobs,  1-3,  13-15,  20;  Feaud,  1;  iKJUMcnoiifli  8,  9;  Juogmentsi 
Mo&TOAon,  2,  4;  Negotiablx  Instruukmts,  16;  Ksw  Trial;  Quasttum 
Mxbuit;  Bbplevut;  Shippino,  4,  8;  Slakdkb^  6;  Toms,  1;  Trespass 
It  Tbotxk:  Virdiot. 

PLEDGES. 
See  Bailments,  1,  8. 

POSSESSION. 

L  Pkbeon  mat  be  Possessor  op  Land  in  Good  Faith,  thoitoh  Aware  oi 
Opposoro  Claim,  if  he  entered  in  full  ccmfidenoe  of  the  yalsdity  of 
his  title;  but  if  he  is  cognisant  of  the  claim  of  another,  he  most  have 
reasonable  and  strong  grounds  to  believe  in  the  soundnefli  of  his  own 
title,  otherwise  he  can  not  claim  to  bo  a  holder  in  good  faith.  Sartain 
V.  HamOUm^  624. 

t.  Mistake  in  Boundary  is  not  Foundation  tor  Possession  in  Good  Faith, 
where  the  party  claiming  to  have  made  the  nustake  failed  to  employ  the 
legal  means  of  information  as  to  his  limits  after  he  had  notice  of  an  ad* 
▼OTM  olaim  to  the  land.     Id, 

flea  ADTRE0R  Possosion;  Criminal  Law,  16,  16;  Estatbb,  1-8;  MoRi^ 

OAOBS,  8. 

POWERS  OF  ATTORNBY. 
SeeAoRNCT,  1-3. 

PRESUMPTIONS. 
Bee  OoMMOW  Cawctibh,  12;  Constitutional  Law,  8;  Tonit  % 

PBINGIPAL  AND  AGENT. 
See  Agenot. 

PROCESS. 
Winr  BiouLAS  oh  m  Faob  Protects  a  ministerial  oflioer  In  Its  azseRtte 

See  Attacrmrntb. 

PR0MI8BS. 
SeeOoRTBAcm. 


Ml  Index. 

FDBLIO  LANDS. 

Vwataos  w  BionnB  ahi>  Raoiiysa  of  Lasd-otfioii  d  ¥imai»  asb  Com* 
oumn  vros  Biosn  of  Fabxsmb  npon  a  rabjeot  whUn  fha  JuMi^ 
Hon  ol  nioh  offiofln.  nnder  the  act  of  congreM  ol  September  4|  lS41,if  ae 

^Vfl^^VHB^^W  V   ^MB      AA  e^NBWe    ^VA     eeAe^FVBB^^^9    AAA  V^wft  w  ^vAe^^^Aft  fA^^M^^^^V^^V^F     w  e    A^^^^M^W^N^^^^B    ^^^^^^V 

See  Equrt,  12. 

PUBGHASEBS. 
See  BovA  Fn>x  PuBOHAaiBfl. 

QUASI  OOBFOBATIONa 
See  CosFOBATiONS,  5. 

QUO  WARRANTO. 

Qvo  Wabbaxto,  whxh  not  Too  Lati.— GoramiHlonen  appcanted  bj  tht 
legulatore  to  aelect  a  town  nto,  and  lay  out  and  aeQ  lota  tbefeon,  wbe 
have  performed  every  act  required  of  thenit  and  are  fimeU  i^fida^  may 
be  prooeeded  against  by  information  in  the  nature  of  a  ^mo  wmrrmUOt 
where  their  oonvictlon  is  Bonght  for  the  porpoee  of  invalidating  their 
acta,  where  each  acta  would  affect  the  general  adminietration  of  affida 
In  the  community.    BurUm  v.  PaUon^  Idi. 

QUANTUM  MERUIT. 

MlABUBI  OF  RlOOTXBT  IN  GaSB  OF  PaBT  PXBIOBKANOB  OF  OURBAOf  VOl 

WoBK  AND  Labor  accepted  by  the  employer  is  the  contract  prioe  Icm 
the  rcMonable  and  fair  amount  paid  by  him  for  completing  the  |db^  end 
any  damage  he  has  auatained  by  non-fulfillment  of  the  oontnet.  JSRH- 
yard  v.  Crabirtt^  475. 

RAILROADS. 

L  It  n  Dutt  of  Raxlboao  Company,  Aotino  thbouoh  its  Aom^  lo  Un 
AT  Lbast  Rsasonablb  and  Obdinakt  CSabb  and  DnJOBNQB  to  avoid 
aU  nnneoeaaary  injury  to  animala  found  accidentally  in  the  way  of  iti 
train  upon  an  unincloeed  road,  in  a  country  where  domeatb  animala  are 
allowed  to  run  at  larg^    Kenohadoer  v.  Cleveland  ete.  J?.  B,  Gow,  24d. 

L  VrasT  AND  Paramount  Object  of  Attbntion  of  Aobnts  of  Railbqab 
OOMFANT  is  a  proper  regard  for  the  aafety  of  the  peracna  and  property  in 
their  charge  on  the  train.  In  thia  they  are  held  to  a  hi{^  degree  of  can 
and  diligence;  and  with  a  due  regard  to  thia  paramount  duty,  they  are 
bound  to  the  ezerciae  of  what,  in  that  peculiar  employment^  would  be 
ordinary  and  reaaonable  care  to  avoid  nnneoeaaary  injury  to  animala  eaa- 
ually  going  npon  their  unincloeed  road;  and  the  company  la  liable  la 
damagea  to  the  owner  for  any  injury  to  animala  ariaing  from  neglect  of 
anchcare.    Id, 

B.  Raiiboad  Companibb  in  Ohio  abb  not  Rbquirkd  bt  Lawto  Fbncs  tsbib 
Roads.  But  when  they  leave  their  roads  open  and  nnfenced,  they  take 
the  risk,  without  any  remedy  against  the  owner,  of  introslona  from  ani- 
mals running  at  large,  as  do  other  proprietora  who  leave  their  lands  u»* 
Indoeed;  and  the  owner  of  the  animals,  in  allowing  them  to  run  at  large, 
takea  the  risk  of  the  lose  or  injury  to  them  by  unavoidable  accident,   id. 


Index.  84S 

vKhlii  pioTiiioiMof  TanneOTee  oonstltatioii,  notwttlisfeMidiBiptba  ttoek  la 
tlie  nllfwd  rabeoribed  lor  by  the  oonnty  be  dtotribatod  amoog  tba  peo- 
ple In  the  propoitione  in  which  they  pey  the  tax  levied  lor  thie  pozpoee, 
lor  it  if  not  the  stock  m  an  invcetment  which  is  contemplated  by  the 
eonatitntion,  bat  the  road  in  which  the  stock  ia  held.  LemiaMe  tU,  M, 
S.  Co,  ▼.  Davithon  Co,,  424. 

iw  CovBfRaonoN  ov  Railroad  thbouoh  Couutt,  although  it  eztenda  through 
other  coontiea  or  states,  is  a  "  county  purpose/'  within  the  pnrHew  of 
the  Tenneeaee  constitution  empowering  the  legislature  to  authorise  the 
several  counties  of  the  state  to  impose  taxes  for  county  purposes.    Id, 

%,  RioBT  or  Railboad  Compant  to  Frzk,  Exclusiti,  akd  Unmolbstsd 
Usx  or  ITS  Railroad  is  Nothing  Mobb  thak  Right  or  EmtT  Othsb 
Land  rRonuETOit  in  the  actual  occupancy  and  use  of  his  lands,  and  does 
not  exempt  it  from  the  duty  enjoined  by  law  upon  every  person  so  to  use 
his  own  property  as  not  to  do  any  unnecessary  and  unavoidable  injuiy 
to  another.    Kerwhaehar  v.  Cleveland  ttc  R,  R,  Co,^  24d. 

7.   LiGISLATURX  MAT,  UNDKB  PoUCS  POWZB,  RlQUIRX  EXISTING  RiqHOADl 

TO  Erict  and  Maintain  Cattli-ovards  at  all  crossings,  and  fences  on 
the  lines  of  their  roads,  under  penalty  of  paying  all  damage  caused  by 
their  neglect  to  comply  with  such  requirements.  Thorpe  v.  Rudamd  ete. 
R,  R,  Co.,  625. 

•k  Railway  Cohpanixs  must  Stand  upon  Strict  Constbvotion  of  their 
chartered  privileges.    CcmmonweaUk  v.  PiUAurgh  etc  R,  R,  Co,,  S72. 

••  PXB80NS  TO  Whom  Managxmrnt  or  Railroad  is  Intrusted  must  Bxji» 
0181  the  strictest  vigilance.    Pemuylvania  R,  R,  Co,  v.  Aepdl,  823. 

10.  Railroads  arb  Answkrablx  vor  Evkrt  Injurt  caused  by  defects  la 
roads,  cars,  or  engines,  or  by  any  nagligenoe,  however  slight*  of  the 
company  or  its  agents.    Id, 

11.  Railroad  Company  n  LiasLR  ior  Acts  op  m  Liasiis  who  are  nmnlDg 
its  road  under  a  long  li«se.    Nelson  v.  Fermonl  eU,  R.  R.  Cai,  014 

See  GoKMOV  Oarrirrs;  Constitutiokal  Law^  4*  7*10l 

REALTY. 
SeeAoTRRsi  Poesnuox; 

REASONABLE  TIME. 
See  Common  Carktwm,  20. 

RENT. 
See  Co-tinanct. 

REPLEVIN. 

DMLABATI0N  DT  RiPLBVIN  MUST  AlLROR  THAT  GoODS  TaKEM  ARS  PlaDI^ 

ipp'b  Propbrtt,  and  that  they  were  taken  out  of  his  possssilop.  Lutkm 
Y,AmdH  422. 

RESCISSION  OF  CONTRACTS. 

I.  Bntirr  Contract  for  Salb  op  Land  por  Spbcipio  Sum  op  Mohit  obb 
not  be  rssdnded  in  part    BaUejf  v.  James,  659. 


844  Index. 

X  Fazlvss  of  TtTLE  TO  Obm  Vmvniaa  Brnvmnm  or  Lahd,  parportad  tobt 
eoiiT«j«d  with  two  other  nndivided  aeTHitlii,  for  a  apacifio  B^^ 
for  thd  roMMMioD  of  tho  witira  ooiitfBofey  bst  tiio  oootnct  ^^""^^^  cntirei  it 
ean  not  bo  retoindod  in  part  and  enf ocoad  aa  to  the  randoa;  and  If  tht 
veadee  decline  to  rescind  the  entire  wmtnuit,  lie  nraat  paj  the  whole  pvr> 
ohaee  money.    Id, 

See  ExiCfUTOBfl  aud  Adkhhbtratobs,  12;  lairAVOT,  2;  Virdob  axd  TEXDKii 

SALES. 

1.  Oenbiul  Raui  is  that  Pubchasib  for  Valitx  or  PnaovAXi  Pbopbxtt 
Takes  No  Bettkr  Tirui  than  his  Vkndor.    Agn^ew  y.  Jokntot^  SOX 

8.  Mbasubino  and  SjrmNO  Apabt  Qooss  abb  not  Esskntial  to  Pkbtbct 
Sals,  except  when  it  ia  neceaeary  in  order  to  define  the  sabjeet-matter. 
Winsiow  V.  Leonard,  354. 

I.  That  Baboain  is  in  Wobds  or  Einuut  Past  ob  Pbbsbnt  Time  does  not 

conoluaively  evidence  a  perfect  sale,  for  the  sale  is  not  perfect  if  the  ven- 
dor did  not  then  own  the  article  contracted  for,  or  if  it  was  not  then  i 
mannfaotored  or  in  existence,  or  not  yet  selected  oat  of  a  lot  of  aimilar 
articlea.    Id, 

4.  Mebslt  SPBOincATioN  or  Goods  Sold,  and  not  Dbutebt,  is  snfficienl 
to  vest  title  in  the  vendee,  as  between  the  vendor  and  vendeCb    Id. 

6.  Vestimo  or  Tttlb  to  Goods  Sold  Depends  upon  Intention  or  Pasties; 
except  where  the  vendor  has  no  title,  or  the  snbject-matter  has  not  bean 
specified.    Id. 

6.  Deuvert,  Weiohino,  and  Settinq  Aside  Goods  are  only  drcnmstanoes 

from  which  the  intention  of  the  parties  to  the  sale,  as  to  the  vesting  of 
title,  may  be  inferred  as  a  matter  of  fact.    Id, 

7.  Title  does  not  Vest  in  Vendee  under  CSontbact  in  Wobds,  '*We  have 

this  day  sold  four  hundred  tons  of  pig-metal,  now  at  our  landing,  or  that 
will  soon  be  delivered  there,**  in  the  absence  of  evidence  that  there  was  a 
defined  lot  of  metal  in  the  intention  of  the  parties.    Id* 

8.  Whbbe  Same  Thino  is  Sold  to  Two  DirrEBENT  Persons  by  contracts 

equally  valid,  and  the  second  vendee  is  without  notice  of  the  first  sale, 
he  who  first  obtains  possession  b  entitled  to  the  property.    Id, 

9.  Pbbson  to  Whom  Personal  Pbofertt  is  Tbansfebbed,  which  property 

had  been  in  the  mere  possession  of  another,  bnt  not  used  for  the  pnrpoees 
of  trade,  must  take  it  at  the  hanrd  of  a  demand  by  the  proper  owner. 
Such  possession,  though  indicative  of  title,  is  not  title.  Agnew  v.  Joh^ 
soil,  303. 

10.  Title  to  Goods  Sold  mat  Vest  in  Vendee,  even  while  the  vendor  has 
such  remaining  control  over  the  goods  as  entitles  him  to  a  lien  for  unpaid 
purchase  money,  or  to  the  right  of  stoppage  m  <raasito,  or  to  the-  ri^t  of 
rescinding  the  sale  if  there  be  no  occasion  for  the  exercise  of  these  rightsw 
WitihIcw  v.  LeoMurd,  354. 

II.  Law  does  not  Imply  Wabrantt  or  Title  to  Personal  Propxrtt  nol 
in  vendor's  possession  at  the  time  of  sale,  and  claimed  by  another.  SaM 
V.  //iar,  458. 

lae  Contbaots,  7,  8;  Damages,  3,  4;  Ezeoutobs  and  Administrators,  II, 
12;  Judicial  Sales;  Mortqaoes,  1;  RnoissiON  or  Contracts.  1;  Vr» 
dor  and  Vendee,  3,  4. 


Index.  S4I 

SEJ^VITUDES. 
SeelUancnna. 

SHERIFFS. 

BaxKiiT  OB  Othsr  Scats  Offiobb  HAvnio  Vessil  ur  Cnnrorrr  mmn 
Statc  Law  mttst  not  Subbindxr  It  itpon  Fxdvral  Pboobsb;  for  If 
he  doM  80,  he  it  liable  to  the  creditor  in  the  wtmte  oonrt.  Keating  r> 
Spink,  214. 

See  Elictioxs,  6;  Executions,  4,  C;  iNDUoriTT. 

SHIPPING. 

1.  PmaoH  HAT  BE  Legal  and  Rboistbred  Owneb  or  Vessel  without  bedto 
LuBLE  for  supplies  ordered  by  her  master.     Lincoln  v.  Wright,  318. 

£.  Pebson  is  Responsible  fob  Suppues  Fubnished  Vessel  ip  He  has  Pos- 
session and  control,  with  the  right  to  direct  her  destination  and  reoeiv* 
her  earnings,  whether  he  has  the  legal  title  or  not.    Id, 

t.  Steamboat  on  Nayioable  Stream  has  Right  to  Qo  to  Bank  when  and 
and  where  it  is  necessary  to  do  so  for  the  purpose  of  taking  in  or  dis- 
charging passengers  or  freight,  provided  she  does  no  unnecessary  damage 
to  seines  spread  in  her  way,  and  those  in  chai|^  of  her  act  without  wan- 
tonness or  malice.    Lewis  v.  Keeling,  168. 

i.    PROCREDINO  against  STEAMBOAT  OR  OtHER  WaTER-CRAIT  IS  OnE  IN  RbM; 

the  liability  is  upon  the  croft,  and  the  judgment  operates  alone  upon  it. 
The  seizure  of  the  thing  is  constructive  notice  to  the  whole  world,  and 
no  other  is  required.     KecUing  v.  Spivk,  214. 

6.  Action  for  Damaoes  Caused  by  Steamboat  Kunnino  into  Flat-boat 

should  be  brought  against  tlie  boat  itself,  and  not  against  the  persons 
named  in  the  attachment  as  its  owners.  The  fact  that  the  defendants 
are  admitted  by  the  affidavit  on  which  the  attachment  issued  to  be  the 
owners  of  the  steamboat,  and  that  the  attachment  bond  whiph  is  made 
payable  to  them  as  such,  makes  no  difference.  Steainboat  Farmer  r, 
MeCraw,  718. 
ft.  Certificate  op  Reoistrt  op  Vemsrl  is  not  Competent  Evidence  to  prove 
or  disprove  its  ownership  by  any  particular  person;  but  the  oath  of  a  party 
made  to  procure  such  registry  is  evidence  against  him  of  the  facts  therein 
stated.     Lincoln  v.  Wright,  316. 

7.  In  Case  op  Collisions,  if  Both  Vessels  are  to  Blame  neither  can  re- 

cover for  the  injury  sustained.     But  this  rule  must  be  understood  with 
reference  to  faults  which  operated  directly  and  immediately  to  produot 
the  collision.     Steamboat  Farmer  v.  McCraw,  718. 
ft.  Mode  op  Procedure  against  Steamboat  outlined.    Id, 

See  Constitutional  Law,  1-12;  Contracts.  8;  Jurisdichon,  3. 

SLANDER. 

U  L^  Action  pob  Slander,  in  having  Charged  Plaintiff  wiiu  Murdib- 
INO  Dependant's  Son,  evidence  that  at  the  time  the  words  were  spoken 
defendant  said  that  his  wife  M'as  very  much  distressed  over  the  death  of 
their  son  is  admissible  as  tending  to  show  that  the  communication  was 
prompted  by  grief  rather  than  malice.    Stalllngs  v.  ICewman,  723. 


STATUTBS. 

L  Whut  Wcmtm  amm  Uod  bt  LMULASiai  nr  RwiiTfftw  lo 

Swiof  wMah  wliBn  wad  with  niereooe  to  tbe  nne  nVjaofcat  the 
mon  law  hmre  olvtained  a  fixed  and  dafiaite  nwant^g,  tfaa  pnnmptim  b 
imnatiUe  that  thay  were  intsBded  to  ba  naed  in  their  oopimnn«law  aania. 
Ex  parte  Ftaeenf,  714 

i.  WoBDfl  ZH  Statutx  HU8T  Ba  CoHmBUSD  OT  FOFULAB  SnrsBy  as  a  general 
rale.    Oumming9  ▼.  Ooleman,  402. 

%  **  PUBOHASEB  "  IN  STATUTI  MaKINO  PaBOL  OdTB  VoXD  AS  TO  CbXDIXOB8» 

PUB0HASBB8,  AHD  M0BZOAGEB8,  withottt  soffioient  change  of  ponearioBf 
meana  a  pozohaaer  tor  money  or  other  valuable  ooniideEatkni.    ItL 

See  OonwiTUTioKAL  Law. 

STOCK. 
See  OojwriTUTioiiAL  Law,  4  7* 

SUBSCBIPnOK. 
Bee  CtonwrruTioyAL  Law,  4;  KAn.ifcOAna,  & 

SUBEnrSHIP. 

L  Svmirr  Who  has  Paid  Dkbt  or  his  Pbikoipal  mat,  nr  Equnr,  Rirjoar 
an  ezecntion  on  a  judgment  against  him  in  favor  of  aaid  prinoipal,  to  the 
extent  of  the  amount  so  paid  as  surety,  although  the  money  waa  not  paid 
until  after  the  commencement  of  the  action  in  which  the  judgment  waa 
rendered,  and  consequently,  would  not  have  been  good  aa  a  set-off  at 
law,  if  it  appears  that  the  principal  has  removed  from  the  atato  leavhig 
no  property.    Britkiin  v.  Qulef,  202. 

1  IfSurcty  Notifus  Holder  of  Pbomisso&t  Notbs,  to  Whom  Thbt  hati 
bbxk  Plxdobd  as  collateral  security,  that  he  signed  aaid  notea  aa  anre^, 
and  requires  him  to  bring  suit  against  his  principal,  it  aeenu  that  thb 
would  be  a  aubatantial  compliance  with  tiie  atatnte.  The  holder  may 
waive  notice  in  writing.  If  the  notice  doea  not  comply  with  the  require 
menta  of  the  statute,  it  would  be  good  at  common  law,  when  oonneoted 
with  proof  showing  failure  to  sue,  and  damage  to  the  aaraty  leealtiDg 
therefrom.    FicktM  v.  Tarborough*9  AdMCr^  728. 

I.  Okb  Subxty  Who  has  Obtained  SECURiry  fbom  bib  Pbhioiyal  Dxbiob 
by  a  mortgage  must  be  regarded  as  a  trustee  for  the  other,  as  the  mortgage 
inures  to  the  benefit  of  all  the  sureties,  and  he  is  boond  to  the  exeroiae  of 
the  dntiea  which  attach  to  that  relation.  If  anoh  aaraty  givea  up  each 
aeonrity  without  the  consent  of  his  co-surety,  he  oaoaot  obtain  oontriba- 
tion  from  him.     Taylor  v.  Morritonf  747. 

4  SuBinxs  ov  OuABDiAN  abb  not  Liable  bob  Woml  amb  Labob  DoniBr 
Wabds  lor  gmudJan.    PhiUip§  v.  i>amf,  472. 

See  PAinvBBSHiF,  10. 

SURVEYS. 

L  PABTrSEExnro  TO  iNTikUDATE  Location  AND  SoBVxr  Made  BTSuBinTOB 

OF  Old  Countt,  on  the  ground  that  at  the  time  each  location  and  aarvey 

were  made  the  land  lay  within  a  new  county  erected  out  of  the  old  one, 

mnat  not  only  ahow  that  at  the  time  the  organiitation  of  the  new  cooatiy 


Indxx.  849 

WM  proTlded  for  by  law,  Kot  alao  that  tiie  ocgmiation  had  be«B  Mfcnallj 
•ffaeted.     Clark  y.  Oom,  631. 
&  Faxlcmi  or  SuBTSTOB  TO  Transtir  Fikld-kotbb  of  SimTST  from  the  rao- 
orda  of  an  old  oonnty  to  those  of  a  new  one  erected  ootof  it  ean  not  aibol 
the  right*  of  the  party  for  whom  the  mrrey  wmi  made.    ItU 

TAXATION. 

L  To  OoNmruTB  Impbotxmbmt  "  Town  ob  Couhtt  VumFoat,"  for  whleh 
inhabitant*  may  be  taxed,  it  need  not  be  entirely  within  the  borden  of 
the  town  or  oonnty.    Lauimrille  etc.  R,  R,  Co,  v.  Davidson  Oo,^  424. 

t,  AflBBflBORS  AlTD  COLLBOTOBB  OV  TaXES  ABB  InDBFBKDBNT  PUBUO  OrWUBM^ 

not  agent*  of  the  town*  in  wfaioh  they  are  rospeetiyely  eleoled.    Ztorit 
lard  ▼.  Jiomro^t  180. 
See  CovBnTUTiOHAL  Law,  6|  7;  Cobfobatioii8»  7»  8|  Biinrurf  Dananffi  St 

BAILBOAfifl,  4,  0. 

TEKAirrs  m  oommok. 

See  Oo-TBiujror. 

TDfB. 

Iir  OunfUTua  I^xb  dvdbb  Statutb  of  DiHgBuiuTioHB,  It  n  VuAonxm  ov 
Ambbtoaw  CouBm  to  indnde  one  day  and  ezolade  the  other,  ezoepi 
when  the  atatnte  reqnirea  ao  many  entire  daya  to  intervene^  la  whicih 
oaae  both  a»  eTolnded.    Owen  v.  SlaUer^  745. 

Bm  ODimov  Oammbm,  29t  DAXAoai,  1;  Khtatm,  6|  Nmoiubu  Ibrbo- 


TITLH. 
Sea  Ck>BTBAon,  8. 

TOBTS. 

L  Ib  Ovb  am  Mors  of  Sbvbbal  FBBfloirs  Baoom  Tra^iBiaoBa  wUa  «i« 
gaged  in  the  aooompliahment  of  a  lawful  oI^m^  ^▼•b  whh  a  Tiaw  to  aid 
SBoh  umuuee,  the  othera,  who  pritlwr  diieet  nor  ooantenanoe  aooli  tor* 
tiooa  acta,  are  not  liable;  although  when  aeveral  persona  are  engaged  in 
doing  an  Ulegal  aet  then  the  aoto  of  any  beeome  the  aot*  of  all,  and  all 
are  eqaally  and  aeTSfaUgr  liaUa.    Mkkardwn  ▼.  Aneraon,  OM. 

%  Ambnt  to  Tobitiovb  Aot  bt  Obb  ob  Mobb  of  Sbfbbal  Pbbbohb  Eat* 
AAOBD  IK  Common  Pubposb  is  hot  PBBSirMBD  on  the  part  of  the 
•Iher*,  bat  la  a  matter  el  Caot  to  be  pcofod^  if  aaeh  pupoae  ia  lawfoli 
^^hnwoK  aaeh  aasont  ia  nrasnnnMl  if  tha  ^*ft— «—>«■»  darian  ia  nnlavfaL  /dL 

SeaTniFi 


Towmk 

Baa  CaBM»unoB%  Si 

TRESPASS. 
L  Ombt  fob  Vhumiux  Kiuoro  Hobsb  mat  bb  Joibmb  mm  Omb  bob 

TteuPAM  in  entering  vpon  plainliirB  land  and  aatttag  Are  to  Ida  Wld- 

'j.Ah.  Daa  Yoib.  LXn-^ 


850  Indxx. 

iQgi;  aad  i9hw  no  dadhgatiOD  b  filed,  noh  ■ddftfail  oooaft  vDl  kt 

ooodderad  m  made.    M^ppqf  ▼.  IfiOer,  177. 
I.  Wbikb  Pabtt  Willvdllt  Skb  Fikb  to  ahb  BoBim  Whias  Bbooob 

TO  AlACHiyB  to  be  thiwhed,  tb«  owner  of  tbe  mafthmo  vmy,  m  m  aotiai 

of  treepMBi  reeover  tem  him  tho  valao  of  tho  whett  daetn^ed.    /rf. 
See  Cbdumal  Law,  9(K  21|  DAiCAon,  6;  DnoruB;  Lrbur;  1|  lfwi> 

OAon,  4 

XROVSB. 

Fl^UTifi  01411  HOT  Bjkxiver  vob  IirnDUUTmoH  TO  Hn  DuuBHi  elBiy  in 
an  aotionof  trover,  withofitaepeciel  ooontor  sfeoMBllBtlMdMiai^^ 
to  thateffMt.    AffmtiD  ▼.  JoAiuofi,  308. 

See  DmHiTB;  iNmuMTy  L 

TRUSTEE  PEOOB88. 
See  ATTAcmcEvn. 

TRUSTS  AND  TRU8TBB8. 

L  l^^klBBPltMIBTElOBTTOWHOLBPBOfn8  0FClBXAXVBAJK8lOai»S» 

TSDU)  TO  Tbustxb,  as  well  as  thaabeolnte  ultimate  dominion  ol  Aedanib 
ia  deviaed  to  certain  legateei,  they  have  a  right  to  have  a  tranafier  of  the 
atook  made  to  them.  It  would  be  different  if  from  the  natoie  of  tiie  tnat 
the  ownenhip  of  the  eetUds  que  tnut  waa  not  immediate  and  abaolote,  or 
If  their  poaaeaeion  woold  defeat  or  endanger  a  legitimate,  nUanate  dla- 
tribation,  of  the  trast  property.  ISamage  ▼•  Oreme^  206^ 
t.  Fits  fbs  Cxrt  Commibbiox  will  hot  n  Allowed  Trotsbe  for  aimflj 
reoeiTing  and  paying  over  dividendaof  atocit  to  liia  eertaii  qm  tnmL    14, 

Bee  OiTABDiAH  AVD  Waxd^  8;  Koticb,  4;  Statoti  oi  laatMXUxm^  1%  Soi» 

TT8HIP,  8. 

USURY. 

L  QuMWiOH  OT  UaoBT  ggouLD  Bi  SuMOTTHP  TO  JpmT,  wiieTB^  oMw^  tht 
waa  BO  direot  eridenoe  of  a  oaariona  agreement  at  tiie  tlBM  wliaB  Hm 
loan  waa  made,  it  waa  ahown  that  twenty^two  daya  thenaftar  n  warn  la 
ezceia  of  the  l^gal  rate  waa  paid  and  reoeived  for  Aa  vaa  of  tte  moMj. 
OaOkti  ▼.  ChmUr^  118. 

ti  SVBBHQUXHT  KSOOTIATIOH  OT  KOTB  UFOH  UsUBIOim  OOHUDHRATIOH  OAH 

HOT  Deibat  AlOnoK  TBEBBON  againat  the  maker,  if  it  Imd  n  l^gid  fnoip- 
tkm  in  the  handa  of  the  holder.    Id, 

VENDOR  Ain>  VENDEE. 

L  GEAKTOBRAaSurBBIOB  Right  to  LAKDUHnLPUBCSAffllMOHHrDFADb 

or  the  mortgage  given  therefor  ia  fbrebloaed,  wliere,  aimnllHieoaaljr  with 
the  oonT^yanoe,8ooh  mortgage  iaezeonted;  andeapeoially.if  tiie|ipaBlor 
ia  in  poaaeaaion  after  the  vendee  haa  made  default,  he  ean  not  be  turned 
oat  of  poaaearion  by  prooeaa  of  ejeotment  or  treapaM  to  try  titles  althoog^ 
thedebtand  mortf^ige  are  barred  by  the  atatateof  Umitationa.  Dimtaji'i 
Adim'r  v.  HV^Al,  fiOfi. 
!•  Vehdeb  kat  bb  Dbobbed  to  Pat  PoBcaiASB  Mohbt,  though  no  deed  be 
daereed  from  the  vendor  to  the  vendee,  when  the  vendor  haa  only  as 


Index.  asi 

•qnf table  titb  in  the  property,  and  hae  eold  hii  iatWBili  anthnrldng  aal 
empowering  the  Tendee  to  acquire  the  legal  title.  Boifey  ▼.  /nmet,  dSt, 
1.  Sals  wnrHocrr  WAiuLurrT  or  Uqutiablb  Ihtbrsst  in  Bkaltt  Cumno 
uiTDKB  CoKTBACT  OF  Salc  of  euoh  equitable  interest  impliee  an  under 
tilring  that  inch  contraot  was  made  by  one  competent  to  contraot;  and 
where  the  oontraiy  proves  tme,  it  is  groond  for  the  reeoission  of  the  isle. 
Id. 

4  VXKDOB  HATIKO  OoirTSTKD  EqUITABLX  IkTBRUT  EziflflmiO  UHDXB  TrLB- 

BOiTD,  and  aathorixed  vendee  to  acquire  legal  title,  the  vendee's  dslMll 
in  failing  to  obtain  the  legal  title  furnishes  him  no  defense  against  the 
pajrment  of  the  purohaee  money.    Id, 
See  BoMA  Fii>a  PmnunBs;   Fiztukb,  8,  4;  SrMifio  PAuoBMAvaii 

StATun  or  Fbaum. 

VERDICT. 

L  VntDicT  Fnmaro  PusomBB  "  Ouiltt  of  MuRon  nr  Fnsr  Dbouo,  avd 
PufimmAHT  FOB  liiFS,"  is  sufficient  to  sustain  his  oonvietion  and  ssn- 
tence  acoordingly.    Nolu  v.  SUOe^  711. 

ti  VuLDiCT  u  SuFFionsN T  TO  SosTAiK  Affbopeiatb  JuDOMKNTy  if  any  un- 
certainty that  may  exist  therein  csq  be  explained  by  reference  to  the 
record;  and  therefore  in  an  action  for  the  recovery  of  a  slave,  a  Tcrdiot 
in  these  words,  "We,  the  jury,  find  for  the  plaintiff,  with  eighty  dollan 
damages  and  costs  of  suit,"  is  sufficient  to  support  a  judgment  for  the 
slave,  and  damages  and  costs  of  suit.     Avery  v.  Avery^  513. 

&   SlTFTIOIKNOT  OF  VXRDIOr.— WhBBX  PLAINTIFF  SCB  FOR  TwO  OB  MOBI 

CAUsn  of  action  properly  joined,  to  which  the  defendant  pleads  the  gen* 
eral  issue,  if  the  jury  in  their  verdict  allow  him  a  specified  number  of  his 
causes  of  action  and  say  nothing  as  to  the  others  the  verdict  is  suffidenl 
to  authorise  a  judgment  for  him  to  the  extent  to  which  it  finds  for  him^ 
and  will  bar  a  second  action  for  the  causes  of  action  not  mentioned  In 
express  words  in  said  verdict    WUtick  ▼.  TVcnmi,  778. 

4.  In  Action  of  Drinitb  fob  Eight  Slavbi,  Vxbdict  d  DiFnonyi  which 

recites,  "  We  find  for  the  plaintiff,  and  assess  the  value  of  the  slaves  sued 
for,'*  etc.,  and  which  proceeds  to  name  and  assess  the  value  of  seven  of 
said  slaves  without  mentioning  the  eighth,  and  snoh  verdict  is  not  suffi- 
cient to  authorise  a  judgment  for  plaintiff  for  any  of  said  slaves.  Bice^ 
J.,  diisenting,  held  the  verdict  a  good  finding  for  plsantiff  for  the  slaves 
named,  and  a  finding  for  defendant  for  the  one  not  named.    Id. 

5.  Whbbs  Pabhovlab  Piiob  of  Pbopbbtt  u  SaiD  job  in  Spicii,  and  not 

in  the  altematlTe  of  damages,  and  the  property  sued  for  is  sequestered 
lor  the  purpcee  of  keeping  it  within  the  jurisdiction  of  the  court,  a  ver- 
dict for  the  phuntiff  is  sufficient,  without  sssessing  flia  value  ol  flia 
Ifropwty.   Awtry  ▼•  ^^"^^t  ^13. 

See  JUBT  ANP  JOBOBS,  4,  fi. 

VESTED  RIGHTS. 
See  Ck>N8TiTUTioNAL  Law. 

ViaOUS  DOGS. 
See  Animaui,  1,  % 


8tl  ImaaL 

WABRANTT. 
8i6  OmraftAOBi^  H 

WATEROOUBSBS. 

1.  OwmB  Of  LAn>  hab  Puma  Fagib  Riobv  «o  Bbhovi  Pcnnaror  Has 

Imflt  opon  hk  land  by  anotlier.    Biekardmm  t;  Emarwon^  99L 
%  Riam  or  Natioation  is  Paramouvt  to  Biobt  or  FisHnra  in  a  saTigdblt 

river.    LewU  ▼.  Keeiing,  168. 
IL  DiTKBaiOH  ov  Watkh  or  Cruk  ih  Violation  ov  Right  of  CoicpLAUi- 

AKT8  entitles  him  to  an  injunction,  even  thoogh  he  mffer  no  aotoal 

dnmAge  thereby.    Burden  v.  Sinn,  758. 
i.  yourm  ov  Watkb  Which  Flows  nr  Ghbxk  nr  Wncm  ahd  Stbiho  b 

gMMTilly  no  oriterion  whatever  aa  to  tho  quantity  of  water  whioh  flowa 

in  tiia  iwniniir  and  £alL    Id, 
See  BAJUMmn»  %  S;  BmnNT  Domlaih;  Lumranon,  4;  SxAXun  ov  lata^ 

AnOHB.  t. 

WILLS. 

L  XtaoLAmATioin  or  TiratobICabb  AFTER  SzTCunovovWiLL,  relating  ta 
the  diapoaition  of  hia  property  thereby,  and  inooneiatent  with  the  wil]« 
are  oompetent  evidence  under  an  issae  involving  hia  testamentary  oapa- 
ckty^  but  ao  far  only  aa  they  tend  to  show  hia  mental  condition  at  the 
time  when  the  wUl  waa  made.     Waterman  v.  Whitney,  71. 

Si  Tm  ov  TasTAHBNTART  Capaoitt  is  not  always  capacity  enough  to  make  a 
oontraoti  for  this  sometimes  requires  a  higher  degree  of  capacity  than  ta 
make  a  will;  where  the  testator  knows  his  estate,  the  object  of  his  af« 
fectiona,  and  to  whom  he  wishes  to  give  his  property,  he  haa  sufficient 
capacity  to  make  a  will.    Kirhoood  v.  Chrdcn^  418. 

%  Tutator's  Extrsmb  Old  Agb  is  not  of  itself  sufficient  to  render  him  fai- 
Bompetent  to  make  a  will.    Jd, 

4.  Mbrb  Omissiom  of  Child  bt  Testator  is  not  of  itself  sufficient  to  impeaeh 
his  capacity  to  make  a  will.    Id, 

••  Bequest  ov  Farm,  CoNDmoxED  upoh  Patmemt  ov  One  Halv  of  its  value, 
naay  be  made,  and  if  the  devisee  is  of  lawful  age,  he  may  claim  it  upon 
paying  one  half  of  its  estimated  value.  If  he  is  a  minor,  the  court  wiU 
order  a  reference  to  a  master  to  see  if  it  would  be  to  his  advantage  to 
do  so.    McQueen  v.  McQueen^  206. 

fi  DBYisa  WAS  Made  to  Testator's  Wive  during  Widowhood,  and  when- 
ever her  death  or  marriage  should  take  place  tlie  property  waa  to  be 
equally  divided  among  his  oliildren  which  may  then  be  alive,  or  who 
Boay  have  left  legitimate  heirs.  Two  of  the  children  died  intestate,  and 
without  heirs,  and  the  widow  conveyed  her  interest  to  the  only  remain- 
ing child.  It  was  held  that  the  latter  had  an  aboolute  title,  though  his 
mother  waa  yet  alive,  and  that  there  was  no  just  ground  to  fear  that  a 
olaim  whioh  might  be  made  by  his  children  in  the  event  of  his  death  be- 
lora  that  of  his  mother  would  be  available  against  one  aoqniring  his  title. 
Mtmdermm  v.  Lnhena,  812. 

!•  Wordb  ov  Surtivobbhip  in  Will  Belatb  to  Peeiod  ov  Ditibion  ob 
Sb JOuavT,  where  the  period  of  enjoyment  la  poa^poned  by  IntaipoaiBf 


JXNBL  SSS 


Allii  OTfettte  «r  ott«r  pirtloDlir  iHlvMl^  «r  wlMn  A  fain*  p«M  ii  hf 
«Im  wffl  find  for  a  dhrWoB.    Fi^tde^  w.  Dmri$.  WK. 

9h  Lddtatiov  Ovsb  Avns  Dkash  of  Fibct  Takxb  ihtw>ui  lamn  k  Toid 
lommofeHMH^  nnlMi  tbnw  k  MMfeUiig  in  the  wffl  to  Mferiot  tlM  l« 
•«dMth  withMit  knM"  to  Utm  in  Iwiag*  and  twflBty.«M  7Mn  IhflM- 
aftor.    Id. 

••  Tku  '*8umTiT0Ba»"  or  Will,  BvnuotB  "Dmra  wi«aouT  Hhui"  to 
liTNln  beiiig,  and  twrnty-OBeyHuratlMnafter,  wlMvaa  Imiafiltopcnom 
In  life  no4  tranamkriUa  to  bain  and  rapraaentotiiFaa  k  pklnly  Intondad, 
bnttha  worda  '^  remainder  of  tha  afareaaid  difldr—  *  are  notaqniraknt 
tothatonn^'anrHYon."    Id. 

10.  "Dnira  without  laaus  "  nr  TBRAiOB'a  Lm-ma  k  naant  wiiora  a 
toatotor  direoto  hk  eatato  to  be  equally  divided  among  hk  ohildrHi,  and 
that  "if  any  ahoold  dia,"  ato.,  without  iamia,  than  thair  portiflna  are  to 
ba  equally  cUTided  among  tha  remainder  of  tha  aforeaaid  ohildren,  oiher- 
wiae  tha  Umitotlon  orer  k  Told  for  remotaneaa.    Id. 

11.  Gbandohildbkh  (jAir  hot  Tau  vnm  Wnx  as  ''GBnjyBorf"  wlian 
there  are  ohildren.    Id. 

IS.  WoBDB  ov  SumTnroBBBir  nr  Will  Robb  to  Dati  ov  Tbraiob*! 
Dkath,  wharerar  a  gift  takea  effect  in  poeeeeiion  immedktoly  upon  the 
death,  nnkae  aome  other  time  k  indicated  by  tha  wilL    Id. 

IS.  No  LiMiTATioir  will  n  Duxxd  Exioutokt  Dvnni  if  it  oan  ba  twatad 
aa  n  remainder.    Jfianderaofi  ▼.  Lnheiu,  SIS. 

8aa  OoNanTcnovAL  Law,  IS; 

WITNESSES. 

It  JvsT  HDBT  DsTEBimni  What  WmmaM  abb  EimiLio  to  Hon  Iv* 
VLUBHOi  whan  the  teatimony  k  conflicting;  and  thk  they  may  do  from 
tariooa  oonaiderationa!  the  manner,  eipreeeion,  and  intelligenae,  and  wlia 
are  liJialy  to  be  beat  informed,  from  their  aitnation  and  intelligence.  Tha 
ptopoaition  that  if  the  witaeaaea  before  the  Jury  are  eqnal  In  credibility 
the  greater  number  moat  preTail  k  uiaoiind.    J<mu  t.  StaUf  660. 

1  Immobal  OB  UNGHAsra  Chabagtbr  ov  WnvBsa.— Tha  jniy  baa  tha  aok 
light  to  reapond  to  the  qneation  how  far  tiia  want  of  ohaatity  wonld  im- 
pair tha  credibility  of  a  witneea.    Id. 

t,  Pabtibs  Bsuro  Madb  WmrBSSBS  bt  Law  ov  Vbbmont  abb  WimaaaM  to 
arery  point  material  to  tha  determination  of  tiia  oaaa.  McDtmkU  t. 
Robimon^  67i. 

L  WrBBBB  18  BOT  DUQUAUVIBD  BT  IlllBBiaT  DT  QUBinOB  AT  InUB|  bttt 

only  by  an  intoreat  in  the  action.    Lincoln  t.  Wright^  SIS. 
i.  QriBiON  OV  WiTNBB8.-~An  objection  to  a  qneation  by  wUoh  n  witnaaa  wm 
aakad,  whether,  from  hk  knowledge  of  aaid  dog;  ha  did  or  did  net 
oonaidar  aaid  dog  a  nniaance,  k  properly  aoatalnad.    Fmrher  t.  Jflee,  77S. 

%k  PA80BNOBB  n  HOT  Ck>MraTEHT  WiTHHBB  TO  PBOTB  VAUm  OV  OOBTBHn 

ov  Tbohx  deliTared  by  liim  to  a  railroad  oompany  for  tnnqportaHoB  aa 
baggage,  im  t.  Sauih  QmrMM  R.  R.  Oo.^  4ffl. 
T.  Ihoomfhtbhot  ov  Withhbb  bt  Bbasoh  ov  Ihtibbr.— TIm  owner  of  a  flat- 
boat  k  net  a  oompetent  witnen  for  tiia  owner  of  gooda  in  an  aotion 
afidnat  a  ateamboat  for  colliding  with  aaid  iUt-boat,  ttad  ^^->*g«7g  pkint- 
m  gooda.    SiKeam6oca  Parmer  t.  MeCfrmo,  7161 

See  DAMAOia,  4;  Etidihoi. 


OPSBVIBlf« 
JuMunLUL 


WBOaVGSL 


3  bios  Ob  035  oab  0